[2013] FWC 4949 |
FAIR WORK COMMISSION |
DECISION |
Fair Work (Transitional Provisions and Consequential Amendments) Act 2009
Part 2 of Schedule 5, item 6—Review of all modern awards (other than modern enterprise awards and State reference public sector modern awards) after first 2 years
Shop, Distributive and Allied Employees Association
GENERAL RETAIL INDUSTRY AWARD 2010
[MA000004]
Retail Industry
COMMISSIONER HAMPTON |
ADELAIDE, 25 JULY 2013 |
Modern Awards Review 2012 - applications to vary the General Retail Industry Award 2010 - - Full Bench decision - public holiday provision - outstanding issue to be determined - how alternative forms of compensation are to be selected - agreed position - alternatives to operate by agreement - election able to be made in relation to each public holiday - default position to be penalty payment - other matters already determined by the Full Bench - award varied - General Retail Industry Award 2010.
1. Background
[1] This decision arises from an application to vary the General Retail Industry Award 2010 (the General Retail award) made by the Shop, Distributive and Allied Employees Association (the SDA). This, along with many other applications have been made in the context of the review of modern awards being conducted by the Fair Work Commission in accordance with the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (the Transitional Provisions Act) (the Transitional Review).
[2] A series of related applications concerning public holiday provisions, including the immediate matter, were heard and determined by a Full Bench in Modern Awards Review 2012 - Public Holidays [2013] FWCFB 2168 (the Full Bench decision).
[3] One of the common elements of the applications dealt with by the Full Bench concerned alternative methods of compensating for work performed on public holidays. Various employer groups and the SDA made competing proposals dealing with the issue in relation to the General Retail award.
[4] The SDA claim and the other related applications were all considered, and for the most part determined, by the Full Bench. However, one aspect of the existing clause 29.4(d) was ultimately referred to me. Given that this context is directly relevant, it is appropriate to set out the relevant part of the Full Bench decision in full.
“[164] The SDA has also sought that clause 29.4(d) of the General Retail Award be varied to provide that time off in lieu or additional annual leave is to operate as compensation only where sought by an employee.
[165] The existing provision is as follows:
“29.4(d) Public holidays
Work on a public holiday must be compensated by either:
(i) payment at the rate of an additional 150%;
(ii) an equivalent day or equivalent time off instead without loss of pay; or
(iii) an additional day or equivalent time as annual leave.
[166] Accordingly, the award presently establishes that payment for the public holiday (at an additional 150%), time off in lieu, and additional annual leave, are equivalent options for the compensation of public holiday work.
[167] The SDA contend that the current clause is ambiguous and uncertain in that it is not clear who has the right to select between options (i), (ii) and (iii) as to the form of compensation. That is, the employer or the employee or mutual agreement and, if so, what happens if agreement cannot be reached.
[168] Further, the SDA suggest that it is not clear in respect of options (ii) and (iii) whether it is “time for time” or time at the penalty rate that is applied or what “equivalent day” or “equivalent time off'” mean.
[169] The SDA’s proposed revised provision would relevantly read as follows:
29.4(d) Public Holidays
Work on a public holiday must be compensated by payment at the rate of 250% (275%for a casual).
Time off in lieu of payment of the penalty rate prescribed for work on a public holiday pursuant to this clause may be provided if an employee so elects and it is agreed by the employer.
Such time off in lieu must be taken at a mutually convenient time and within four weeks of the public holiday or, where agreed between the employee and the employer, may be accumulated and taken as part of annual/eave.
Time off in lieu must equate to the penalty component of the time worked on the holiday.
[170] In terms of the substantive issue, the SDA contend that the absolute right of retail employees to be paid double time and a half on public holidays provided prior to the making of the modern award, should be re-established.
[171] The SDA also submits that there is an anomaly in that the three awards "spun off" from the retail award; being the Fast Food Award, the Hair and Beauty Award and the Pharmacy Industry Award 2010, “provide employees with a right to payment at the rate of double time and a half for work on a public holiday and the General Retail Award 2010 does not provide employees with that right.”
[172] The ARA opposed the claim and contended that the SDA’s application to effectively remove clauses 29.4(d)(i) and (ii) of the award was a further attempt to revisit matters dealt with previously by the AIRC and FWA. It further contended that there was no evidence or submissions that demonstrated cogent reasons to make the change and it should be rejected.
[173] As with many other claims made by parties in this Transitional Review, this issue was considered by the Commission as part of the award modernisation process. In 2010, the Commission dealt with an application by the SDA to rationalise the different forms of compensation for work on public holidays and found that a case had not been made out to support the variations.
[174] Although a more comprehensive case was presented on this aspect than was advanced in the award modernisation process, there is no evidence to indicate that the current provision is operating in a manner that would not be consistent with the modern awards objective. Given that it formed part of the package of conditions determined through the ‘swings and roundabouts’ approach the AIRC adopted during the award modernisation process, we are not persuaded that the provision should be changed.
[175] There is not prioritisation of the compensation options in clause 29.4(d) and there is no express provision as to how the election is made. We do not consider that the approach of the SDA to rely solely on employee election for the “alternative” forms of compensation is appropriate as part of this review. However, we accept that some clarification as to how the provision is to be applied in practice may be appropriate. Given that this aspect received very little attention in the submission of the parties, this element of the claim will be referred to Commissioner Hampton to determine in accordance with this decision with recourse to the Full Bench if appropriate.
[176] In relation to the other aspects of the SDA’s claim, we are not persuaded that the proposed variations to the General Retail Award should be made as part of this Transitional Review.
[177] For the reasons given, we are not persuaded that these proposed variations to the General Retail Award should be made as part of this Transitional Review.
[5] Following the decision, I made arrangements for the major parties to hold discussions with a view to reaching an agreement on the appropriate provision. 1 Ultimately, the SDA and those employer groups seeking to be heard on the matter have proposed a revised clause 29.4(d) dealing with compensation for work on public holidays and the elements of that proposal are agreed.
2. The proposals to vary the modern award
[6] The SDA and the National Retail Association (the NRA) made very similar proposals.
[7] The NRA advanced the following provision:
“29.4(d) Payment for work on a public holiday
(a) Work on a public holiday must be compensated by payment at the rate of an additional 150%.
(b) Provided that by mutual agreement of the employee and the employer, the employee (other than a casual) may be compensated for a particular public holiday by either:
(i) An equivalent day or equivalent time off instead without loss of pay. The time off must be taken within four weeks of the public holiday occurring, or it shall be paid out; or
(ii) An additional day or equivalent time as annual leave.
(c) The employee is entitled to a fresh choice of payment or time off by agreement with the employer on each occasion work is performed on a public holiday.
(d) If no agreement can be reached on the method of compensation, the default arrangement shall be as per 29.4(d)(a).”
[8] The NRA proposal was supported by Australian Business Industrial.
[9] The initial proposal advanced by the SDA before me was as follows:
“29.4 (d) Public holidays
Work on a public holiday must be compensated by payment at the rate of an additional 150%.
Provided that by mutual agreement of the employee and the employer, the employee (other than a casual) may be compensated for a particular public holiday by
(i) Time off without loss of pay calculated at the penalty equivalent (i.e., 150%). The time off must be taken within four weeks of the public holiday occurring, or it shall be paid out; or
(ii) Time added to annual leave calculated at the penalty equivalent (i.e., 150%).
The employee is entitled to a fresh choice of payment or time off by agreement with the employer on each occasion work is performed on a public holiday.
If no agreement can be reached on the method of compensation, the default arrangement shall be payment at the rate of an additional 150%.”
[10] During the proceedings, the SDA indicated that it would not press its alternative sub-clauses dealing with the calculation of the time off in lieu, given that the Full Bench had directly dealt with that issue. On that basis, it consented to the variation of the award to reflect the agreed elements. The SDA indicated that its position was adopted on the basis that it was without prejudice to other matters, including the consideration by the Commission of alternative forms of compensation in other awards 2 and subsequent reviews of this award.
[11] The employer parties seeking to be heard in this matter accepted that this variation was being considered in the particular context of the earlier Full Bench decision and this award.
3. Consideration
[12] Leaving formatting issues aside, the following elements of the proposals are common and are agreed by the parties seeking to be heard:
● The alternative forms of compensation are to operate by mutual agreement of employee and employer;
● The alternative forms of compensation will be expressed in the same terms as the existing award provision;
● The default option is for the penalty rate payment;
● Time off not taken within four weeks is to be paid out; and
● There is an entitlement for both parties to make a fresh choice of payment or time off in relation to each public holiday where work is performed.
[13] These elements deal with the issue referred to me by the Full Bench and are consistent with that decision. I am also satisfied that they are appropriate concepts to form part of the public holiday clause in the General Retail award.
[14] In terms of the sub-clause dealing with the fresh choice concept, I have raised with the parties an alternative form of words that would better reflect the mutual basis of the election. That is, to confirm that it is a mutual election that may be revisited on each relevant occasion. All parties have supported that alternative, which is set out as part of the final variation below.
4. Conclusions
[15] It is evident to me that the Full Bench decision dealt with the issue of the calculation of the time off in lieu of public holiday work 3 and all other aspects of the existing clause. The exception to that finding was the need for some clarity about how decisions concerning the alternative compensation options were to be made.
[16] For that reason, I have not considered the clause at large and this decision does not represent a determination as to how the calculation of time off in lieu or related provisions should operate in other circumstances.
[17] I have earlier indicated my general satisfaction with the agreed elements of the proposals. Given the Full Bench decision, I am satisfied that an amendment to clause 29.4(d) of the General Retail award is necessary to better achieve the modern awards objective and to ensure that the award is operating effectively, without anomalies or technical problems arising from the Part 10A award modernisation process. 4
[18] In terms of format, the NRA proposal reflects the agreed arrangements and the effect of this decision, and I propose to adopt it for present purposes with minor drafting changes. I will however adopt a modified version of the ‘fresh choice’ sub-clause discussed with the parties and use sub-clause numbering consistent with the format used in other clauses of this award.
[19] Accordingly, the General Retail award is to be varied to insert a revised clause 29.4(d) Public holidays, in the following form:
(d) Public holidays
(i) Work on a public holiday must be compensated by payment at the rate of an additional 150%.
(ii) Provided that by mutual agreement of the employee and the employer, the employee (other than a casual) may be compensated for a particular public holiday by either:
(A) An equivalent day or equivalent time off instead without loss of pay. The time off must be taken within four weeks of the public holiday occurring, or it shall be paid out; or
(B) An additional day or equivalent time as annual leave.
(iii) The employee and employer are entitled to a fresh choice of payment or time off by agreement on each occasion work is performed on a public holiday.
(iv) If no agreement can be reached on the method of compensation, the default arrangement shall be as per clause 29.4(d)(i).
[20] The variation will come into operation on and from 1 August 2013. I note that the effect of the Act is that the determination will take effect in relation to employees at the start of each employee’s first full pay period that starts on or after that date. 5
[21] A determination is being issued in conjunction with this decision. 6
Hearing dates:
2013
July 19.
Appearances:
M Donovan with Mr Zhang and Ms Bridger of the Shop, Distributive and Allied Employees Association.
S Elliffe of the National Retail Association.
J Murphy of Australian Business Industrial.
1 A directions conference was convened on 18 April 2013.
2 There are other modern awards being considered by the Commission arising from the Full Bench decision. They are however being considered in a different context.
3 Paras [167] to [176] of the Full Bench decision.
4 Item 6 of Schedule 5 to the Transitional Provisions Act.
5 S.165 of the Act.
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