[2010] FWAFB 379 |
FAIR WORK AUSTRALIA |
DECISION |
Workplace Relations Act 1996
s.576H—Commission may vary modern awards
Fair Work (Transitional Provisions and Consequential Amendments) Act 2009
Sch 5, Item 14—Variation of modern award
FAST FOOD INDUSTRY AWARD 2010
[MA000003]
JUSTICE GIUDICE, PRESIDENT |
MELBOURNE, 29 JANUARY 2010 |
[1] This decision concerns three applications to vary the Fast Food Industry Award 2010 1 (the modern award). The applications were made pursuant to s.576H of the Workplace Relations Act 1996 and were not determined by 31 December 2009. The applications will be determined by Fair Work Australia pursuant to item 14 of Schedule 5 to the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009.2
[2] The first application was jointly filed by the National Retailers Association Ltd (NRA) and Australian Industry Group (AiGroup). The second and third applications were filed by the Shop, Distributive and Allied Employees Association (SDA).
[3] At the exposure draft stage it was originally proposed that the fast food industry be dealt with in conjunction with the retail industry. This was strongly opposed by employers and ultimately a separate fast food award was made. Employers also argued at the time that the terms of the modern award should not reflect the terms of the National Fast Food Retail Award 2000 3 (the pre-reform award) as it had limited application and was inconsistent with many other instruments applying to the fast food sector.
[4] The Commission nevertheless attached significant weight to the pre-reform award especially as much of its content had been the subject of relatively recent arbitration. The employers seek to have a number of aspects of the modern award revisited on grounds advanced during the drafting and consultation process. The current applications reveal ongoing disparity between the positions of the employer groups on the one hand and the SDA on the other.
[5] The application by the NRA and AiGroup proposes eight variations and the SDA applications also propose eight variations. Some of the applications are competing or overlap. We will deal with the matters raised by subject matter.
Part-time employment
[6] The NRA and AiGroup proposed amendments to the part-time provisions. They relied upon the terms of cl.53 of the Minister for Employment and Workplace Relations’ award modernisation request. Clause 53, which was added to the request on 26 August 2009, provides:
“Overtime penalty rates – part-time work
53. The Commission should ensure that the hours of work and associated overtime penalty arrangements in the retail, pharmacy and any similar industries the Commission views as relevant do not operate to discourage employers from:
• offering additional hours of work to part-time employees; and
• employing part-time employees rather than casual employees.”
[7] The NRA and AiGroup proposal is to remove the requirement in cl.12.7 of the modern award that overtime is payable for all hours worked by a part time employee in excess of the agreed number of hours. The SDA proposed an alternative draft clause as part of its application
[8] Since cl.53 was inserted in the request, variations have been made to a number of modern awards to make it clear that overtime is not payable to part-time employees when they agree in writing to work additional hours within the other limits on ordinary hours. That is an appropriate course in this award as well. We will replace the relevant words in cl.12.7 with the following:
“All time worked in excess of the hours as agreed under clause 12.2 or varied under clause 12.3 will be overtime and paid for at the rates prescribed in clause 26.2—Overtime and penalty rates.”
[9] The SDA also sought rostering provisions for part-time employees. There is insufficient precedent for such a provision in the relevant instruments and that aspect of the SDA’s claim is rejected.
Casual rates
[10] The second variation sought by the NRA and AiGroup is to amend cl.13.2 concerning casual employees by replacing the word “actual” with the word “ordinary”. Clause 13.2 is in the following terms:
“13.2 A casual will be paid both the actual hourly rate paid to a full-time employee and an additional 25% of the ordinary hourly rate for a full-time employee.”
[11] We agree this change is appropriate; the intention is for casual employees to receive the casual loading in addition to ordinary rates of pay.
Casual engagement
[12] The SDA seeks the insertion of a minimum engagement for casual employees of three hours. We consider this to be reasonable and consistent with existing provisions and we will make the variation.
Rostering provisions
[13] The SDA seeks the insertion of rostering provisions. The variations are strongly opposed. In our view the SDA has not made out a case based on provisions of relevant existing instruments or otherwise. That claim is refused.
Special clothing – laundry allowance
[14] The third variation sought by the NRA and AiGroup is a reduction in the special clothing allowance payable in accordance with cl.19.2(b). Clause 19.2(b) is in the following terms:
“(b) Where an employee is required to launder any special uniform, dress or other clothing, the employee will be paid an allowance of $4.53 per garment per week.”
[15] The NRA and AiGroup submit that the allowance, based on the pre-reform award provisions applicable in all states and territories other than New South Wales, is not reflective of the uniform allowance payable in a number of relevant industry Notional Agreements Preserving State Awards (NAPSAs). They seek to vary the clause to provide a lesser allowance for full-time employees of $2.25 per week and an allowance per shift of $0.45 for part-time and casual employees.
[16] We have decided to vary the clause to provide a weekly and daily figure rather than a per garment figure as follows:
“(b) Where an employee is required to launder any special uniform, dress or other clothing, the employee will be paid the following allowance:
(i) For a full-time employee—$6.25 per week;
(ii) For a part-time or casual employee—$1.25 per shift.”
Broken Hill allowance
[17] The SDA seeks the inclusion of a Broken Hill allowance in a similar manner to the district allowances in the Northern Territory and Western Australia. The application was supported by the Barrier Industrial Council. No party opposed the application. We will vary the modern award in line with the application.
New allowances
[18] The SDA seeks the insertion of a number of new allowances based on the provisions of the General Retail Industry Award 2010. 4 The allowances are opposed by employers and no case has been made out based on provisions in relevant pre-modern award instruments. The claim is rejected.
Cold work disability allowance
[19] The SDA seeks clarification that the disability allowances in cl.19.8(a) and (b) are cumulative. Such a position is consistent with previous instruments. We will make the proposed variation.
Extra travel costs
[20] The SDA seeks to remove the three week limitation on payment of the allowance for extra travel costs. The proposal is not consistent with the purpose of the clause or its predecessor and is rejected.
Payment of wages
[21] The SDA seeks a clause to permit averaging of weekly pay over a fortnight to provide more regular income to employees. No reasons were provided for the employer opposition. We can see merit in the proposal and will amend the modern award accordingly.
Overtime and penalty rates
[22] The NRA and AiGroup seek variations to cl.26.2–Overtime and penalty rates. Clause 26.2 is in the following terms:
“26.2 Overtime and penalty rates
Hours worked in excess of the ordinary number of hours of work prescribed in clause 25.2 are to be paid at time and a half for the first two hours and double time thereafter, except on a Sunday which will be paid at the rate of double time.
(a) Evening work Monday to Friday (excluding shiftwork)
A loading of 10% will apply for ordinary hours of work within the span of hours between 6.00 pm and midnight, and for casual employees an additional 25% of the rate on top of the casual rate.
(b) Saturday work (excluding shiftwork)
A loading of 25% will apply for ordinary hours of work within the span of hours on a Saturday, and for casual employees an additional 25% on top of the casual rate.
(c) Sunday work
A 75% loading will apply for all hours of work on a Sunday for full-time, part time and casual employees.”
[23] Since making this award the Commission has reviewed the penalty payments applying in the restaurant industry. Those penalty payments are found in the Restaurant Industry Award 2010 5. For fast food operations that open into the evening there is logic in adopting a similar approach to penalty payments. We have decided to vary cl.26.2(a) to provide for a 10% loading to be payable after 9.00 pm and a 15% loading to be payable after midnight. Casual employees are to receive the relevant loading in addition to the 25% casual loading.
[24] In relation to Saturday work, the NRA and AiGroup seek to vary cl.26.2(b) so as to limit the payment of Saturday penalties to full-time and part-time employees. It is a common feature of awards generally including awards in the restaurant industry that casual employees receive relevant loadings in addition to casual loadings. We do not intend grant the application.
[25] The NRA and AiGroup seek an alteration in cl.26.2(c) to bring about a reduction in the penalty payable for ordinary hours worked on a Sunday by full-time and part-time employees from 75% to 25%.
[26] We have reconsidered the level of this loading having regard to the Sunday penalty rates in relevant pre-reform awards and NAPSAs and in particular the penalties now applicable in the restaurant industry. In all the circumstances we consider that a loading of 50% for full-time and part-time employees and 75% for casuals is fair and appropriate.
Night shift
[27] The NRA and AiGroup propose the insertion of a new clause providing for work on night shift. We do not believe that a case has been made out for such a provision.
Annual leave
[28] The NRA and AiGroup seek a provision permitting an employer to direct an employee to take annual leave in certain circumstances. It has not been established that there is a history of such provisions in previous instruments. The change is opposed. We have decided not to adopt it.
PRESIDENT
1 MA000003.
2 Schedule 5 was modified by the Fair Work Legislation Amendment Regulations 2009 (No.2) on 14 December 2009.
3 AP806313.
4 MA00004.
5 MA000119.
Printed by authority of the Commonwealth Government Printer
<Price code C, MA000003 PR992812>