[2012] FWA 8761 |
|
DECISION |
Fair Work (Transitional Provisions and Consequential Amendments) Act 2009
Sch. 5, Item 6 - Review of all modern awards (other than modern enterprise and State PS awards) after first 2 years
Village Cinemas Australia Pty Ltd and others
(AM2012/175 and others)
Broadcasting and recorded entertainment industry | |
SENIOR DEPUTY PRESIDENT HAMBERGER |
SYDNEY, 2 NOVEMBER 2012 |
Modern Awards Review 2012; cinemas - applications to vary the Broadcasting and Recorded Entertainment Award 2010.
[1] In March 2012 applications were made to vary the Broadcasting and Recorded Entertainment Industry Award 2010 1 (the Modern Award) by the Greater Union Organisation Pty Ltd; Birch Carroll & Coyle Limited; the Hoyts Corporation Pty Limited; the National Association of Cinema Operators Australia; Village Cinemas Australia; the Australian Entertainment Industry Association (Live Performance Australia, LPA); and the Independent Cinemas Association of Australia, (collectively, the applicants). The applications were made under Item 6, Schedule 5 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (the Transitional Act) as part of the review of all modern awards which Fair Work Australia is required to conduct after the first two years of all modern awards coming into effect.
[2] A series of conciliation conferences were held involving the applicants and the Media, Entertainment and Arts Alliance (MEAA). This led to an agreement concerning a number of variations to the Modern Award. A hearing was conducted in Sydney on 6 September 2012. Mr D Hamilton represented the LPA. The other applicants were represented by Mr J Murdoch SC, and Mr M Serong. The MEAA was represented by Mr J Nolan, of counsel and Mr M Chesher.
The Legislation
[3] Item 6, Schedule 5, of the Transitional Act provides:
“(1) As soon as practicable after the second anniversary of the FW (safety net provisions) commencement day, FWA must conduct a review of all modern awards, other than modern enterprise awards and State reference public sector modern awards.
(2) In the review, FWA must consider whether the modern awards:
(a) achieve the modern awards objective; and
(b) are operating effectively, without anomalies or technical problems arising from the Part 10A award modernisation process.
(2A) The review must be such that each modern award is reviewed in its own right. However, this does not prevent FWA from reviewing 2 or more modern awards at the same time.
(3) FWA may make a determination varying any of the modern awards in any way that FWA considers appropriate to remedy any issues identified in the review.
(4) The modern awards objective applies to FWA making a variation under this item, and the minimum wages objective also applies if the variation relates to modern award minimum wages.
(5) FWA may advise persons or bodies about the review in any way FWA considers appropriate.
(6) Section 625 of the FW Act (which deals with delegation by the President of functions and powers of FWA) has effect as if subsection (2) of that section included a reference to FWA’s powers under subitem (5).”
[4] Provisions of the Fair Work Act 2009 (the Act) are also applicable and relevant to the 2012 Review. Sections 134 and 138 provide as follows:
“134 The modern awards objective
What is the modern awards objective?
(1) FWA must ensure that modern awards, together with the National Employment Standards, provide a fair and relevant minimum safety net of terms and conditions, taking into account:
(a) relative living standards and the needs of the low paid; and
(b) the need to encourage collective bargaining; and
(c) the need to promote social inclusion through increased workforce participation; and
(d) the need to promote flexible modern work practices and the efficient and productive performance of work; and
(e) the principle of equal remuneration for work of equal or comparable value; and
(f) the likely impact of any exercise of modern award powers on business, including on productivity, employment costs and the regulatory burden; and
(g) the need to ensure a simple, easy to understand, stable and sustainable modern award system for Australia that avoids unnecessary overlap of modern awards; and
(h) the likely impact of any exercise of modern award powers on employment growth, inflation and the sustainability, performance and competitiveness of the national economy.
This is the modern awards objective.”
. . .
“138 Achieving the modern awards objective
A modern award may include terms that it is permitted to include, and must include terms that it is required to include, only to the extent necessary to achieve the modern awards objective and (to the extent applicable) the minimum wages objective.”
The proposed variations
[5] There are currently five awards in the cinema industry. The Modern Award and four enterprise awards covering Hoyts, Village Roadshow, Greater Union, and Birch Carroll & Coyle. No application has been made to modernise these four enterprise awards and they are expected to cease to apply from 1 January 2014 by virtue of Schedule 6 of the Transitional Act. The Modern Award only covers small employers and a small minority of employees in the cinema industry. The applicants and MEAA agree that it does not currently provide a sound basis for an industry award which will, in a short time, apply to the operations of all cinema industry employers including large employers and a large number of employees in the industry. The variations agreed by the parties are designed to address this deficiency (though there are still some unresolved issues concerning junior wage rates.) I am satisfied that the proposed variations are consistent with the legislative provisions governing the modern award review process. I am satisfied that the following agreed variations should be made to the Modern Award:
[6] The first change is to add a clause 10.6:
“10.6 Special provisions for employees in cinemas
Clauses 10.2 to 10.5 will not apply to employees in cinemas.”
[7] This clarifies that the general provisions in the Modern Award relating to types of employment do not cover cinema employees.
[8] The second change is to clause 14.12. The name of the clause is changed from “Cinema Workers” to “Employees in cinemas”. The clause itself is changed so that it reads:
“All employees in cinemas will receive an 8% penalty averaging component instead of Sunday penalty payments and reduced Public Holiday penalties.”
[9] This change is designed to ensure that all employees in cinemas, whether they be managerial or ‘cinema workers’ receive the 8% penalty averaging component. Similarly, clause 26.3 is renamed ‘Special provisions for employees in cinemas’ and clause 26.3 (a) is changed to read:
“Clause 26.2 will not apply to employees in cinemas.” (This is instead of applying only to “Cinema Workers”, as now).
[10] In Part 9—Cinemas the following new clauses are added, and the existing clauses renumbered accordingly:
“53. Coverage
No employer covered by this Part 9 and not otherwise covered by Parts 6, 7, 8, 10, 11 or 12 shall be covered by the Hospitality Industry (General) Award 2010 or the Restaurant Industry Award 2010.”
[11] A specific provision dealing with types of employment in the cinema industry is then inserted. This clause reflects the attempt by the parties better to reflect the contemporary industrial practices which the enterprise awards applicable to the four major groups have provided for many years.
“54. Types of employment
54.1 At the time of engagement an employer will inform each employee in writing of the terms of their engagement and, in particular, whether they are to be full-time, part-time or casual.
54.2 Full-time employment
(a) A full-time employee is an employee who is engaged to work 76 hours per fortnight (or 152 hours in a 28 day cycle) by written agreement between the employer and the employee, which may be terminated as provided in clause 53.1(d).
(b) A full-time employee must be provided with a written statement setting out their classification, applicable pay scale and terms of engagement.
54.3 Part-time employment
(a) A part-time employee is an employee who works less than 76 ordinary hours in a 14 day cycle (or less than 152 hours in a 28 day cycle by written agreement between the employer and the employee); has regular, reasonably predictable and continuous employment; and receives, on a pro rata basis at the rate of 1/38th of the weekly rate, equivalent pay and conditions to those of full-time employees who do the same kind of work.
(b) An employer is required to roster a part-time employee for a minimum of four consecutive hours on any day or shift. An employer will offer to roster a part-time employee for a minimum of 8 hours in any consecutive 7 day period commencing on a Thursday.
(c) All hours worked in excess of full-time hours will be overtime and will be paid as such.
54.4 Casual employment
(a) A casual employee is an employee engaged as such and paid by the hour. An employer when engaging a casual must inform the employee that they are employed as a casual, of their hours of work, classification level and rate of pay.
(b) A casual employee must be paid at the relevant minimum hourly wage plus a loading of 25%. Such loading is paid instead of all paid leave including annual leave, personal/carers leave and public holidays not worked whether prescribed in this award or the NES.
(c) Casual employees must be paid at the termination of each engagement but may agree to be paid weekly or fortnightly.
(d) Casual employees are entitled to a minimum payment of three hours’ pay on each occasion they are required to attend for work.”
[12] The existing clause 53 of the Modern Award is varied by removing the phrase “-other than managers” from the heading of clause 53.1—Hours of work and by deleting clause “53.2 Hours of work—managers” This removes the anomaly of different provisions for working hours for managers. In clause 53.1(b) insert the following words after the words “Full-time employees must work 76 ordinary hours in a 14 day cycle. . .”:
“. . . (or 152 ordinary hours in a 28 day cycle by written agreement between the employer and employee).”
[12] In clause 53.1(c) the following words are inserted after "Part-time employees will be required to work an agreed number of ordinary hours in a 14 day cycle...”:
“. . . (or a 28 day cycle by written agreement).”
[13] The existing clause 53.1(d) is renumbered as clause 53.1(e), and a new clause 53.1(d) is inserted which reads:
“(d) Where there is a written agreement to work ordinary hours in a 28 day cycle, the employer or the employee may, on 28 days’ notice in writing to the other party, terminate the agreement and the employee will commence or resume working ordinary hours in a 14 day cycle from the next roster cycle commencing after the expiration of 28 days from the giving of notice.”
[14] A new clause 53.1(f) is added which reads:
“(f) Any employee required to attend a meeting arranged or authorised by the employer or any structured training session shall be paid a minimum of two hours ordinary pay.”
[15] The existing provisions on rostering have been completely redrafted as a result of discussions between the parties to reflect the rostering practices of the larger employers, while still having regard to arrangements that apply in the smaller operators. The existing clauses 53.2 and 53.3 are deleted and replaced with the following:
“53.2 Rosters
(a) The employer will post a draft roster on the Friday and will post a final roster on the Monday afternoon before the start of the week to be worked. The start of the week is a Thursday.
(b) Where a change to the final roster is required to be made, an agreement between the employer and the employee is required.
(c) The employer can change the roster at short notice without agreement due to unforeseen operational requirements. However if the employer changes the roster for other reasons, employees will be paid double the ordinary rate for hours worked outside the original roster.
(d) To the extent practicable, the rostering process shall be undertaken in consultation with individual employees affected.”
[16] The parties agreed that the special allowances for theatre managers contained in the Modern Award are anomalous, and should be deleted. Managers would however be compensated through adjustments made to the classification structure. Accordingly, the existing clauses 55.1, 55.2, and 55.3 are to be deleted. Consequential amendments are to be made to the title of the existing clause 55, deleting the reference to theatre managers and the remaining clauses 55.4 to 55.6 are to be renumbered.
[17] A consequential change is to be made to the existing clause 56.1, dealing with overtime and penalty rates for full-time and part-time employees, to reflect the more flexible averaging provisions contained in the hours of work clauses. The following words are to be inserted to clause 56.1(a) after the words “Work for more than 76 ordinary hours, or on more than 10 days in any 14 day cycle. . .”
“. . . (or more than 152 ordinary hours, or more than 20 days in any 28 day cycle, by written agreement between the employer and employee),. . .”
[18] The reference in the heading to the existing clause 56.3 to “Cinema Workers” is to be replaced with “All employees in cinemas”. Clause 56.3(a) is to be adjusted to provide for flexibility that is contained in the existing enterprise awards. Following extensive discussions between the parties it was agreed that after the first sentence, the following words are to be added:
“Where the employer is satisfied that occupational health and safety standards will be met, an employee may request and the employer may agree that a break of not less than 8 hours be substituted for the 10 hour break.”
[19] It was also agreed to complement this provision so that in clause 56.3(b), after the words “If the employer requires an employee to return to work before the employee has had 10 hours of duty” the following words are to be added:
“(or 8 hours at the request of the employee).”
[20] An additional clause is to be added to the existing clause 56.3:
“(d) Weekly employees will be free from duty for a minimum of two days each week and such days will be consecutive where reasonably possible. If any of the days are not given and taken, payment will be made at the rate of time and a half for the first two hours and double time after that for all hours so worked with a minimum payment for four hours.”
[21] Two typographical errors identified in clauses 56.3(b) and(c) are to be corrected.
[22] The existing clause 56.4 providing for specific arrangements for managers is to be deleted.
[23] The parties also agreed to a number of changes to the classification structure in the Modern Award insofar as it relates to cinema employees. The existing classification of Cinema Worker Level 1 becomes Cinema Worker Level 2. A new entry level position is created with the title Cinema Worker Level 1. It is determined as follows:
“E.1.1 Cinema Worker Level 1
(a) A Cinema Worker Level 1 is an employee who is undertaking the necessary induction and training to perform work within the scope of this level.
(b) Indicative of the tasks which an employee at this level may perform are the following:
(i) cleaning and hygiene;
(ii) policy and procedures knowledge;
(iii) food and beverage preparation for sale;
(iv) stock replenishment;
(v) ticket tearing and customer assistance;
(vi) product presentation and service knowledge;
(vii) telephone skills;
(viii) ensuring customer comfort is maintained;
(ix) undertaking minor maintenance or repairs as required.
(c) No Cinema Worker Level 1 employee shall be required to handle cash except in the course of supervised training in cash handling tasks. In such circumstances the employee shall not be responsible for a correct balance of that cash. An employee who has completed 100 hours of service at Cinema Worker Level 1 may request cash handling training. The employer will not unreasonably refuse such request. After 30 hours of such training and upon achieving the required level of competency for a Cinema Worker Level 2, the employee shall be classified at Cinema Worker Level 2.”
[24] The existing definition of Cinema Worker Level 1 will now apply to Cinema Worker Level 2. The indicative task (vi) (now appearing under Cinema Worker Level 2) is to be deleted, and replaced with the following:
“(vi) preparing for sale and selling food and drink items and where required prepare, cook and quality assure all food items in any of the food outlet preparation areas in the cinema complex;”
[25] The indicative task (vii) (now appearing under Cinema Worker Level 2) is to be deleted and the remaining indicative tasks are to be renumbered. The reference to Level 2 in the existing indicative task (ix) is to be replaced with a reference to Level 3. A new indicative task (x) is to be added:
“(x) general maintenance as required.”
[26] The current Cinema Worker Level 2 becomes Cinema Worker Level 3. A new clause is added to Level 3:
“(d) A Cinema Worker Level 3 is also a person appointed as a trainee manager, under the supervision of a manager or assistant manager for a period of not more than six months, engaged in training for the duties of an assistant manager or manager. A trainee manager will not be left in charge of a theatre, except in the case of an emergency. A part-time and/or casual trainee manager will complete the equivalent of six months full-time training before being eligible to be appointed as assistant manager and/or manager.”
[27] The existing Cinema Worker Level 3 becomes Cinema Worker Level 4. Additional indicative tasks are added to Level 4:
“(vii) may be operationally responsible for a food preparation department covering day-to-day operations to ensure efficient delivery of food ensuring adherence to standard recipe cards and food hygiene requirements.
. . .
(ix) maintenance of lighting throughout the cinema; and
(x) supervising and directing general technical operations throughout the cinema complex, including computer systems. This may include, but not be limited to local management of film content, including playlists and alternate content; identifying and resolving technical issues; maintenance of all projector lighting; completing local repairs and maintenance, or arranging for work to be completed.”
[28] The current clause E.1.4 concerning the classification of Trainee Manager is deleted. Instead in clause E.1.5 a Cinema Worker Level 5 is defined as a person appointed as an assistant manager or technical manager who assists a manager of a theatre in carrying out the duties of a manager as provided in the Modern Award and who is called upon to carry out the duties and responsibilities of a manager during the absence of a manager from the theatre. A Cinema Worker Level 6 is defined as a person who was appointed as a manager.
[29] Complementary changes are made to the Common Salary Structure in Clause 14.2. The reference to Trainee Cinema Manager at Grade 1 is deleted. A Cinema Worker Level 1 is included at Grade 2, and a Cinema Worker Level 2 is set at Grade 3. Cinema Worker Level 3 is set at Grade 5, with the reference to Assistant Cinema Manager at this level being deleted. Cinema Worker Level 4 is set at Grade 7, Cinema Worker Level 5 at Grade 8 and Cinema Worker Level 6 at Grade 9.
[29] Complementary changes are made to the Common salary structure in the existing clause 14.2. The reference to Trainee Cinema Manager at Grade 1 is deleted. A Cinema Worker Level 1 is included at Grade 2; a Cinema Worker Level 2 is set at Grade 3 and a Cinema Worker Level 3 is set at Grade 5. The reference to Assistant Cinema Manager appearing under Grade 5 is deleted. Cinema Worker Level 4 is set at Grade 7, Cinema Worker Level 5 is set at Grade 8 and Cinema Worker Level 6 at Grade 9.
[30] This decision does not deal with the issue of junior rates. The Tribunal will reconsider this issue after further discussions are held between the parties.
SENIOR DEPUTY PRESIDENT
Appearances:
D Hamilton for Live Performance Australia;
J Murdoch SC of counsel with M Serong, solicitor for the Greater Union Organisation Pty Ltd; Birch Carroll & Coyle Limited; the Hoyts Corporation Pty Limited; the National Association of Cinema Operators Australia; Village Cinemas Australia and the Independent Cinemas Association of Australia;
J Nolan, of counsel with M Chesher Media Entertainment and Arts Alliance.
Hearing details:
2012.
Sydney:
September 6.
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