| [2014] FWC 2401 [Note: An appeal pursuant to s.604 (C2014/4529) was lodged against this decision - refer to Full Bench decision dated 16 July 2014 [[2014] FWCFB 4738] for result of appeal.] |
| FAIR WORK COMMISSION |
DECISION |
Fair Work (Transitional Provisions and Consequential Amendments) Act 2009
Sch. 5, Item 6 - Modern awards review
Modern Awards Review — Hair and Beauty Industry Award 2010
(AM2012/172, AM2012/200)
Hair and Beauty Industry | |
COMMISSIONER LEWIN |
MELBOURNE, 30 APRIL 2014 |
Transitional review of Modern Awards - review of the Hair and Beauty Industry Award 2010 - proposed variations to existing clauses of the Award - whether the certain clauses of the Award achieve the modern awards objective - whether certain clauses of the Award are operating effectively, without anomalies or technical problems.
[1] This decision concerns applications to vary the Hair and Beauty Industry Award 2010 (the Award). The applications have been made by the Hair and Beauty Industry Association (the HBIA) and the Shop, Distributive and Allied Employees Association (the SDA).
[2] The Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (the Transitional Provisions Act) provides that the Fair Work Commission (the Commission), previously known as Fair Work Australia, must conduct a review of all Modern Awards as soon as practicable after 1 January 2012 (the Transitional Review). The applications by the HBIA and the SDA have been filed with the Commission pursuant to this review.
[3] The principal legislative provision in respect of the Transitional Review is Item 6 of Schedule 5 to the Transitional Provisions Act:
“6 Review of all modern awards (other than modern enterprise awards and State reference public sector modern awards) after first 2 years
(1) As soon as practicable after the second anniversary of the FW (safety net provisions) commencement day, the FWC must conduct a review of all modern awards, other than modern enterprise awards and State reference public sector modern awards.
Note: The review required by this item is in addition to the annual wage reviews and 4 yearly reviews of modern awards that the FWC is required to conduct under the FW Act.
(2) In the review, the FWC 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 the FWC from reviewing 2 or more modern awards at the same time.
(3) The FWC may make a determination varying any of the modern awards in any way that the FWC considers appropriate to remedy any issues identified in the review.
Note: Any variation of a modern award must comply with the requirements of the FW Act relating to the content of modern awards (see Subdivision A of Division 3 of Part 2-3 of the FW Act).
(4) The modern awards objective applies to the FWC 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 the FWC considers appropriate.
(6) Section 625 of the FW Act (which deals with delegation by the President of functions and powers of the FWC) has effect as if subsection (2) of that section included a reference to the FWC’s powers under subitem (5).”
[4] Subitem 6(4) of the Transitional Provisions Act provides that the Commission must take into account the Modern Awards Objective in s 134 of the Fair Work Act 2009 (the Act) if making a variation to the terms and conditions of a Modern Award, other than for the purposes of varying minimum wages in a Modern Award, which is not dealt with for the purposes of this review of the Award.
[5] S 134 of the Act outlines the Modern Awards Objective as follows:
<134 The modern awards objective
What is the modern awards objective?
(1) The FWC 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.”
[6] The legislative provisions applicable to the transitional review were considered in Modern Awards Review 2012 [2012] FWAFB 5600 issued on 29 June 2012. In that decision, the Full Bench dealt with various preliminary issues relating to the approach to be adopted in the review. In particular, and for the purposes of the present matters, I note and adopt the following conclusions in that decision:
“[23] First, any variation of a modern award must comply with the requirements of the FW Act which relate to the content of modern awards. These requirements are set out in Subdivision A of Division 3 of Part 2-3 of the FW Act...
[25] Any variation to a modern award arising from the Review must comply with s.136 of the FW Act and the related provisions which deal with the content of modern awards (ss.136–155 of the FW Act) ...
[83] As to the historical context the award modernisation process was conducted by the AIRC under Part 10A of the former WR Act. The process took place in the period from April 2008 to December 2009 and was conducted in accordance with a written request (the award modernisation request) made by the Minister for Employment and Workplace Relations to the President of the AIRC. The award modernisation process was completed in four stages, each stage focussing on different industries and occupations. All stakeholders and interested parties were invited to make submissions on what should be included in modern awards for a particular industry or occupation. Separate processes, including variously, the provision of submissions, hearings and release of draft awards, were undertaken in respect of the creation of each modern award to ensure parties were able to make submissions and raise matters of concern relevant to particular awards. By the end of 2009 the AIRC had reviewed more than 1500 state and federal awards and created 122 industry and occupation based modern awards.
[84] ... The award modernisation process required by Part 10A of the WR Act has been completed.
[85] Two points about the historical context are particularly relevant. The first is that awards made as a result of the award modernisation process are now deemed to be modern awards for the purposes of the FW Act (see Item 4 of Schedule 5 of the Transitional Provisions Act). Implicit in this is a legislative acceptance that the terms of the existing modern awards are consistent with the modern awards objective. The second point to observe is that the considerations specified in the legislative test applied by the Tribunal in the Part 10A process is, in a number of important respects, identical or similar to the modern awards objective which now appears in s.136 ...
[89] In circumstances where a party seeks a variation to a modern award in the Review and the substance of the variation sought has already been dealt with by the Tribunal in the Part 10A process, the applicant will have to show that there are cogent reasons for departing from the previous Full Bench decision, such as a significant change in circumstances, which warrant a different outcome ...
[99] To summarise, we reject the proposition that the Review involves a fresh assessment of modern awards unencumbered by previous Tribunal authority. It seems to us that the Review is intended to be narrower in scope than the 4 yearly reviews provided in s.156 of the FW Act. In the context of this Review the Tribunal is unlikely to revisit issues considered as part of the Part 10A award modernisation process unless there are cogent reasons for doing so, such as a significant change in circumstances which warrants a different outcome. Having said that we do not propose to adopt a “high threshold” for the making of variation determinations in the Review, as proposed by the Australian Government and others.
[100] The adoption of expressions such as a “high threshold” or “a heavy onus” do not assist to illuminate the Review process. In the Review we must review each modern award in its own right and give consideration to the matters set out in subitem 6(2). In considering those matters we will deal with the submissions and evidence on their merits, subject to the constraints identified in paragraph [99] above.”
[7] The applications as filed have been dealt with in part by decisions of the Full Bench of the Commission.
[8] This decision deals with a number of remaining issues raised by the applications of the HBIA and the SDA. It is convenient to schedule the subject matter of the variations sought by the applications which will be dealt with accordingly:
1) Proposed variation to existing clause 3 — definitions, interpretations and Award coverage;
2) Proposed variation to existing clause 12 — part-time employees;
3) Proposed variation to existing clause 13 — casual employment and proposed variation to existing Schedule D — national training wage;
4) Proposed new clause 21 — annualised Salaries, proposed new clause 21A - alternative remuneration system and incentive payment schemes;
5) Proposed variation to existing clauses 21.4 and 21.5 — excess travelling costs and travelling time reimbursement;
6) Proposed variation to existing clause 21.9 — first aid allowance;
7) Proposed variation to existing clause 24 — superannuation;
8) Proposed variation to existing clause 29 — notification of rosters;
9) Proposed variation to existing clause 30 — rostering principles;
10) Proposed new clause — dress requirements.
[9] The HBIA submitted that the Award should cover the work of ear and body piercing. In its submissions the HBIA proposed that clause 3.1 of the Award — Definitions and Interpretation — be amended to include ear and body piercing for the purposes of the Coverage provisions of clause 4 of the Award. In its submissions the HBIA stated:
1. Amend current clause 3.1 Definitions and interpretation to include ear and body piercing as part of the hair and beauty industry.
2. This will ensure greater certainty regarding award coverage for employees in the hair and beauty industry performing ear and body piercing.
[10] The Award currently states the definition of ‘hair and beauty industry’ as
hair and beauty industry means:
(a) performing and/or carrying out of shaving, haircutting, hairdressing, hair trimming, facial waxing, hair curling or waving, beard trimming, face or head massaging, shampooing, wig-making, hair working, hair dyeing, manicuring, eye-brow waxing or lash tinting, or any process or treatment of the hair, head or face carried on, using or engaged in a hairdressing salon, and includes the sharpening or setting of razors in a hairdressing salon; and/or
(b) performing and/or carrying out manicures, pedicures, nail enhancement and nail artistry techniques, waxing, eyebrow arching, lash brow tinting, make-up, analysis of skin, development of treatment plans, facial treatments including massage and other specialised treatments such as lymphatic drainage, high frequency body treatments, including full body massage and other specialised treatments using machinery and other cosmetic applications and techniques, body hair removal, including (but not limited to) waxing chemical methods, electrolysis and laser hair removal, aromatherapy and the application of aromatic plant oils for beauty treatments, using various types of electrical equipment for both body and facial treatments
[11] The extension of the Award’s coverage as proposed by HBIA is logically coherent with the existing coverage provisions. However, if the coverage of the Award were to be extended to the work of ear and body piercing, it would be necessary to value and classify the work to enable effective application of the terms of the Award. HBIA submitted the work should be classified as a Hair and Beauty Employee Level 2, within the existing classification structure of the Award.
[12] There is nothing before me of any evidentiary nature that I consider relevant upon which I could arrive at a proper value for the work of ear and body piercing. The Commission has not seen the work nor has there been any material submitted which makes reference to how the work should be evaluated having regard to the existing classifications and any qualifications related to the performance of ear and body piercing work.
[13] In my view, without a proper evaluation of the work of ear and body piercing and a determination of an appropriate classification and rate of pay for the work, it would be inappropriate to vary the Award as sought by the HBIA.
[14] The Commission has embarked on the four year review of all Modern Awards as required by s.156 of the Fair Work Act 2009 (the Act). The HBIA may seek to pursue this matter in a manner before the four year review such as would enable a proper evaluation, classification and determination of appropriate minimum wages for the relevant work. I consider it inappropriate to cause the conduct of two award reviews simultaneously if that can be avoided. The HBIA should reconsider this part of its application to enable it to bring evidence and submissions addressing the issues I have identified, should it choose to, as part of the four year review.
[15] The HBIA submitted that the provisions of the Award relating to part-time employees and the prescribed process by which employees and employers agree to the employee being employed on a part-time basis, should be amended.
[16] The HBIA submitted as follows:
1. Vary the current clause 12 of the Award to remove the restrictive part time provisions that prevent many hair and beauty salons from employing part time employees.
2. The variation requires that a part-time employee and their employer will mutually agree in writing to the average number of hours to be worked each week.
3. The variation then provides that a part-time employee’s hours may be varied by mutual agreement on a temporary or permanent basis.
[17] The essential variation proposed to the existing part-time provisions prescribed by the Award is the averaging of the hours of part-time employees, indefinitely. A reading of the Award provisions will reveal that the averaging of a part-time employees’ hours is fundamentally at odds with the existing provisions of the Award, as set out below:
12. Part-time employees
[Varied by PR994450]
12.1 A part-time employee is an employee who:
(a) works less than 38 hours per week; and
(b) has reasonably predictable hours of work.
12.2 At the time of first being employed, the employer and the part-time employee will agree, in writing, on a regular pattern of work, specifying at least:
12.3 Any agreement to vary the regular pattern of work will be made in writing before the variation occurs.
12.4 The agreement and variation to it will be retained by the employer and a copy given by the employer to the employee.
12.5 An employer is required to roster a part-time employee for a minimum of three consecutive hours on any shift.
12.6 An employee who does not meet the definition of a part-time employee and who is not a full-time employee will be paid as a casual employee in accordance with clause 13.
12.7 A part-time employee employed under the provisions of this clause will be paid for ordinary hours worked at the rate of 1/38th of the weekly rate prescribed for the class of work performed. Overtime is payable for all hours worked in excess of the agreed number of hours.
12.8 Rosters
(a) A part-time employee’s roster, but not the agreed number of hours, may be altered by the giving of seven days’ notice in writing or in the case of an emergency, 48 hours, by the employer to the employee.
(b) Rosters will not be changed from week to week, or fortnight to fortnight, nor will they be changed to avoid any award entitlements.
12.9 Award entitlements
[12.9 varied by PR994450 from 01Jan10]
A part-time employee will be entitled to payments in respect of annual leave, public holidays, personal/carer’s leave and compassionate leave arising under the NES or this award on a proportionate basis. Subject to the provisions contained in this clause all other provisions of the award relevant to full-time employees will apply to part-time employees.
12.10 Conversion of existing employees
No full-time or casual employee will be transferred by an employer to part-time employment without the written consent of the employee. Provided that where such transfer occurs all leave entitlements accrued will be deemed to be continuous. A full-time employee who requests part-time work and is given such work may revert to full-time employment on a specified future date by agreement with the employer and recorded in writing.
[18] The variation sought by the HBIA is shown in diagrammatic form below with the proposed additions sought represented as the underlined text and the deletions of various existing Award provisions represented as struck-out:
12. Part-time employees
[Varied by PR994450]
12.1 A part-time employee is an employee who:
(a) works less than 38 hours per week; and
(b) has reasonably predictable hours of work.
12.2 At the time of first being employed, the employer and the part-time employee will agree, in writing, on the average hours to be worked each week.on a regular pattern of work, specifying at least:
• the hours worked each day;
• which days of the week the employee will work;
• the actual starting and finishing times of each day;
• that any variation will be in writing;
• that the minimum daily engagement is three hours; and
• the times of taking and the duration of meal breaks.
12.3 A part-time employee’s agreed hours as outlined in clause 12.2 may be flexed up by mutual agreement on a temporary or permanent basis.
12.3 Any agreement to vary the regular pattern of work will be made in writing before the variation occurs.
12.4 The agreement and variation to it will be retained by the employer and a copy given by the employer to the employee.
12.5 An employer is required to roster a part-time employee for a minimum of three consecutive hours on any shift.
12.6 An employee who does not meet the definition of a part-time employee and who is not a full-time employee will be paid as a casual employee in accordance with clause 13.
12.7 A part-time employee employed under the provisions of this clause will be paid for ordinary hours worked at the rate of 1/38th of the weekly rate prescribed for the class of work performed. Overtime is payable for all hours worked in excess of the agreed number of hours.
12.8 Rosters
(a) A part-time employee’s roster, but not the agreed number of hours, may be altered by the giving of seven days’ notice in writing or in the case of an emergency, 48 hours, by the employer to the employee.
(b) Rosters will not be changedfrom week to week, or fortnight to fortnight, nor will they be changed tofor the sole purpose of avoiding any award entitlements.
[19] The extracted Award provisions show the applicable part-time employment provisions which are similar if not identical to many such provisions appearing in Modern Awards generally.
[20] In my view, any variation to the terms of a Modern Award, as determined by the Full Bench of the Commission, as appropriate to meet the Modern Awards Objective, should specifically address the merits of the variation which is sought and establish a sound basis for a conclusion that any proposed variation is necessary to meet the Modern Awards Objective. There is no evidence before me upon which I could be satisfied that the part-time employee provisions of the Award are not operating effectively or are operating with anomalies or technical problems.
[21] As there is no proper evidentiary basis for reaching the requisite threshold for the exercise of the Commission’s power to vary the Award in relation to part-time employees as sought, I must dismiss this aspect of the HBIA’s application accordingly.
[22] The casual loading rate as prescribed by cl.13.1 of the Award is 25%. Clause D.6.1 of Schedule D to the Award specifies that a school-based trainee may agree to be paid a loading rate of 25% on all ordinary hours worked in lieu of paid annual leave, paid personal/carer’s leave and paid absence on a public holiday.
[23] In my view, I am bound by the decision in the Annual Wage Review 2012-2013 [2013] FWCFB 4000 where the Full Bench of the Commission considered applications to vary the standard 25% casual loading in Modern Awards stating:
“[583] In each review the Panel is required to review casual loadings in modern awards and to include a casual loading for award/agreement free employees in the national minimum wage order. The casual loading for award/agreement free employees must be expressed as a percentage.
...
[586] We have decided to increase the casual loading for award/agreement free employees to 24 per cent in line with approach adopted in the 2009–10 Review decision. We have also determined that it is appropriate not to make any alteration to the standard casual loading in modern awards, noting the transitional arrangements applying in those instruments.”
(emphasis added)
[24] I consider the link between the casual loading provisions and the school-based trainee provisions of a 25% loading, for considerations prescribed for similar conditions in Schedule D of the Award as referred to by the HBIA should be maintained. Nothing was put to me which would justify the separation of the issues involved by reference to the amount of the two loadings.
[25] Accordingly, I dismiss this aspect of the HBIA’s application.
[26] The alternative remuneration and incentive payment scheme proposed in the HBIA’s application is addressed in the submissions filed on behalf of HBIA as follows:
1. The Award needs to be varied to provide for the introduction of an incentive or performance based scheme. This scheme will deliver employers the flexibility to structure remuneration to allow for a fixed base pay component and an incentive component. This mechanism will achieve two goals - it will facilitate the attainment of higher performance standards and it will mean that high performance employees will be more appropriately rewarded for their contribution.
2. In the service sector customer service standards are paramount and labour regulation should be specifically geared to support the achievement of operational objectives.
[27] The HBIA’s proposal is at odds with the conceptual basis of the existing system of regulation of minimum terms and conditions of employment as prescribed by the National Employment Standards and Modern Awards generally determined by the Full Bench as appropriate to meet the Modern Awards Objective.
[28] Even if it were thought desirable that a system as contemplated by the HBIA’s application should replace the existing terms and conditions of employment prescribed by the Award, either in whole or in part, which I do not, on what is before me, the nature and merits of the proposal would have to be fully specified, detailed and evaluated on a proper basis of evidence in order to satisfy the Commission that the system of remuneration proposed would meet the Modern Awards Objective.
[29] In my view, the necessary threshold for consideration of this aspect of HBIA’s application is for HBIA to provide evidence of the alleged necessity for such a system of incentive or performance based remuneration, as opposed to the totally different basis upon which the minimum terms and conditions of employment are prescribed by the Award.
[30] Modern Awards prescribe minimum terms and conditions of employment, by reference to a number of ordinary hours of work, the prescription of minimum weekly and hourly rates of pay, plus additional and discrete entitlements for the incidents of employment.
[31] While s.139 of the Act provides that annualised wage arrangements may be included in a Modern Award in order to do so the Commission would need to be satisfied that the Award is not operating effectively, is operating with anomalies or that the variation is warranted for technical reasons. I cannot be so satisfied on the bare assertions submitted in support of the application.
[32] No such conclusion could possibly be justified for such a significant variation to the system of existing minimum terms and conditions of employment provided for by the Award on the bare assertions before me. Accordingly, this aspect of HBIA’s application must be dismissed.
[33] The HBIA submits allowances should be paid on an hourly basis, rather than a daily or weekly basis, as follows:
1. The amendment of current clause 22.3 to ensure that the allowance is paid on an hourly basis to avoid casual and part time employees receiving the same amount as a full time employee.
[34] Where an employee is engaged by the hour or on a part-time basis, it would usually not be appropriate for an employee to receive an allowance for a condition of the employment based on a daily or weekly basis if the work is performed for a part of a day or a week. There will be many exceptions to this principle. However, where, for example, an allowance is based on the experience of a particular condition or incident of the employment such as working in heat and that condition or incident is only experienced for a limited number of hours on a day or during a week then payment for the whole of the ordinary hours of work for the day or week does not result in a fair minimum condition of the entitlement. In such circumstances, it is unfair to require the employer to pay an amount of allowance which is not calculated by reference to the employee’s actual experience of the condition or incident of the work for which the allowance is payable. In fact, the employer, in these circumstances, would be paying an employee more than the amount of allowance determined as appropriate for the relevant experience of the conditions for which the payment of the allowance is prescribed.
[35] In order to give effect to the principle above, it would be necessary to give consideration to the nature of any relevant allowance and the circumstances for which it is paid as compensation.
[36] To the extent that an allowance is appropriately paid on an hourly basis rather than daily or weekly, it may be appropriate to vary the Award in accordance with the application.
[37] However, the allowances prescribed by cl 21.4 and 21.5 are not of the character of payment for a condition under which the work is performed. Rather, the allowances are reimbursement of expenses or imposts incurred by employees because of a direction of their employer for the convenience of the e3mployers business.
[38] This proposal is the subject of the reasoning immediately above; however, the nature of a first aid allowance is not that of an allowance payable as compensation for an incident of the employment. Rather, a first aid allowance is provided for an employee’s acquisition of a qualification and appointment by the employer. For these reasons I decline to vary the first aid allowance, specifically having regard to the distinction of the relevant allowance from allowances paid as compensation for incidents of the conditions of work. I have also had regard to the decision of Justice Boulton in Modern Awards Review 2012—General Retail Industry Award 2010 [2013] FWC 6056 in relation to the same proposed amendments in the General Retail Industry Award 2010. In that matter, the Commission decided against the application to vary the Award in the same terms proposed by the HBIA and said as follows:
[50] The expression of a first aid allowance as a weekly amount for all employees appointed to perform such duties is a common feature of many modern awards across a variety of industries. The [National Retail Association (NRA)] only referred to one modern award provision that refers specifically to a daily rate for full-time employees appointed to perform first aid duties, which would then apply to part-time employees on the basis of days worked. I do not consider that the adoption in the Award of a common formulation for the payment of a first aid allowance represents an anomaly or technical difficulty arising from the award modernisation process, or that any variation to clause 20.9 is required to achieve the modern awards objective. It has also not been shown that there is any cogent reason for altering the provision determined by the Award Modernisation Full Bench in the circumstances of the general retail industry. I have therefore decided not to make the variation proposed by the NRA.
[51] As was acknowledged by the parties in the proceedings, if there is real concern by employers about the payment of the full first aid allowance to part-time or casual employees, employers may simply choose to appoint as first aid attendants only full-time employees or other employees who are engaged for a significant number of hours in each week. However such an approach may be contrary to the otherwise desirable objective of encouraging employees to undertake first aid training and to be available to provide first aid assistance at the workplace when required.
Proposed variation to existing clause 24 — superannuation
[39] There is nothing before me on behalf of the HBIA which could justify a conclusion that it is necessary to vary the superannuation provisions of the Award in order to achieve the Modern Awards Objective or because the Award is not operating effectively, or is anomalous or technically deficient.
[40] In my view, nothing has been put to me which persuades me that the following provisions of clause 24.5 of the Award should be varied:
24.5 Absence from work
Subject to the governing rules of the relevant superannuation fund, the employer must also make the superannuation contributions provided for in clause Error! Reference source not found. and pay the amount authorised under clauses Error! Reference source not found. or Error! Reference source not found.:
(a) Paid leave—while the employee is on any paid leave.
(b) Work-related illness or injury—for the period of absence from work (subject to a maximum of 52 weeks) of the employee due to work related injury or work related illness provided that:
(i) the employee is receiving workers compensation payments or is receiving regular payments directly from the employer in accordance with statutory requirements; and
(ii) the employee remains employed by the employer.
[41] The superannuation provisions of the Award were determined as appropriate by the Full Bench of Fair Work Australia. The provisions are common to many Modern Awards. The HBIA’s case does not establish that the provisions are not operating effectively, or are operating with anomalies or technical problems. Any variations to such provisions are in my view more appropriately dealt with by a Full Bench in the course of the four year review as provided for by s 156of the Act, in light of the general issues involved
Proposed variation to existing clause 29 — notification of rosters
[42] Clause 29.5 of the Award currently provides as follows:
An employee’s roster may not be changed with the intent of avoiding payment of penalties, loadings or other benefits applicable. Should such circumstances arise the employee will be entitled to such penalty, loading or benefit as if the roster had not been changed.
[43] The HBIA has made submissions that the current clause 29.2 should be varied “to ensure that rosters may not be changed for the sole intent of avoiding penalties or loadings that would have been paid had the roster not been changed” (emphasis added).
[44] There is nothing before me which would lead to a conclusion that this term of the Award should be varied, either in the materials filed on behalf of HBIA or in HBIA’s submissions. Moreover, the textual variation proposed could be seen to suggest that a roster may be varied with the currently proscribed intention provided that there are collateral operational intentions. In my view, this would create uncertainty and ambiguity. The current situation is that any change in a roster is to be free of the prescribed intention and such a change will not be unlawful, if free of that intention. This aspect of HBIA’s application will be dismissed for these reasons.
Proposed variation to existing clause 30 — rostering principles
[45] The HBIA application proposes a variation to cl 30.3(b) and cl 30.3(c) of the Award to “provide for employees to mutually agree not to have consecutive days off as prescribed in the current cl 30.3(a)”.
[46] The Award currently provides:
30.3 Consecutive days off
(a) Ordinary hours will be worked so as to provide an employee with two consecutive days off each week or three consecutive days off in a two week period.
(b) This requirement will not apply where the employee requests in writing and the employer agrees to other arrangements, which are to be recorded in the time and wages records. It cannot be made a condition of employment that an employee make such a request.
(c) An employee can terminate the agreement by giving four weeks’ notice to the employer.
[47] In my view, the proposed variation is unnecessary as the provisions of cl 30(a) and (b) of the Award provide sufficient flexibility to enable the agreement contemplated by the application.
[48] The SDA seek a variation of the Award to include the following:
By adding a new clause "Dress Requirements"
Dress Requirements
An employer shall not require an employee to dress in a revealing or indecent manner which would cause that employee embarrassment. This includes wearing clothing with slogans or items such as badges.
[49] The SDA makes the following submission in support of the variation:
3. Currently, there is no mechanism available to employees to refuse to wear inappropriate dress if directed by their employer to do so. The Award does not refer to indecent dress and anti-discrimination legislation does not readily provide prevention to such practices.
4. In the past the retail industry has experienced 'topless' or 'see-through' standards of dress being required of employees. Some employers, for the sake of increasing their sales, have resorted to having topless retail workers, whether it be in a sandwich bar in Thomastown, hairdressing salons, or hardware shops, in order to increase sales.
5. Some employers have sought to require their employees to wear provocative and indecent clothing. In some instances, retailers have directly employed strippers or exotic dancers who are prepared to work either semi-nude or nude in a retail establishment. Even where this occurs, retailers often then require their ordinary employees to wear revealing or indecent dress in order to maximise the effect of having the professional 'nude' worker in the store.
6. As a result of these practices, the Hairdressers and Beauty Industry (Victoria) Award was varied to insert a protection to employees:
Part 2 3.1- DRESS REQUIREMENTS
An employer shall not require an employee to dress in a revealing or indecent manner which would cause that employee embarrassment.
7. At the time of Award Modernisation, the practice of requiring revealing or indecent dress of employees had declined, but was still occurring. This was evidenced by statements made by the Federal Sex Discrimination Commissioner, Elizabeth Broderick in an interview with Ashley Hall on ABC Radio'. She recounted an incident involving a retail worker in South Australia who was put in the position of either complying with an order from her employer to wear see-through clothing whilst on a supermarket checkout or resigning her employment. The employee reluctantly chose resignation.
8. Recently, there have been incidences of employees being required to wear provocative dress or provocative slogans on badges or clothing. In May 2011, a retailer asked its staff to wear "I love sex" badges as part of its Sex! campaign which included topless mannequins, a large image of a near-naked woman wearing partially unzipped jeans and posters with the word 'Sex' placed throughout and outside of the retail store (See Attachment A).
9. With no provision in the Award or anti-discrimination legislation to protect employees, they are powerless to refuse.
10. The only recourse has been to engage in a publicity campaign to shame the employer, which oftentimes provides the employer with the publicity they seek to generate with their provocative slogans/clothing.
11. The Award should provide as a right, a protection for employees which clearly prevents an employer from requiring any employee to dress in such a manner which would cause them embarrassment.
12. The SDA believes that the 'Dress Requirements' clause is essential to make the contract of employment, types of employment, classification and wage structure and anti-discrimination provisions operate in a practical way.
13. There is no value in having any of these terms and conditions in an award if they can be effectively thwarted by an employer making demands upon an employee to wear indecent or revealing dress, thus forcing an employee to effectively resign their employment in order to avoid discomfort or embarrassment.
[50] There was no opposition to the variation proposed by the SDA. In my view, the SDA’s case is persuasive and warrants a variation to the Award which would prevent employees being directed to wear inappropriate clothing or slogans which are demeaning in order to perform work and enjoy the protections of the minimum terms and conditions of employment prescribed by the Award, if the jurisdiction and power to do so exists.
[51] However, as outlined in paragraph 6, above, in the Modern Awards Review 2012 decision the Full Bench of Fair Work Australia stated clearly that any variation of a Modern Award must comply with the requirements of the Act as set out in Subdivision A of Division B of Part 2-3 thereof.
[52] S 139 of the Act deals with terms that may be included in a Modern Award as follows:
139 Terms that may be included in modern awards—general
(1) A modern award may include terms about any of the following matters:
(a) minimum wages (including wage rates for junior employees, employees with a disability and employees to whom training arrangements apply), and:
(i) skill-based classifications and career structures; and
(ii) incentive-based payments, piece rates and bonuses;
(b) type of employment, such as full-time employment, casual employment, regular part-time employment and shift work, and the facilitation of flexible working arrangements, particularly for employees with family responsibilities;
(c) arrangements for when work is performed, including hours of work, rostering, notice periods, rest breaks and variations to working hours;
(d) overtime rates;
(e) penalty rates, including for any of the following:
(i) employees working unsocial, irregular or unpredictable hours;
(ii) employees working on weekends or public holidays;
(iii) shift workers;
(f) annualised wage arrangements that:
(i) have regard to the patterns of work in an occupation, industry or enterprise; and
(ii) provide an alternative to the separate payment of wages and other monetary entitlements; and
(iii) include appropriate safeguards to ensure that individual employees are not disadvantaged;
(g) allowances, including for any of the following:
(i) expenses incurred in the course of employment;
(ii) responsibilities or skills that are not taken into account in rates of pay;
(iii) disabilities associated with the performance of particular tasks or work in particular conditions or locations;
(h) leave, leave loadings and arrangements for taking leave;
(i) superannuation;
(j) procedures for consultation, representation and dispute settlement.
(2) Any allowance included in a modern award must be separately and clearly identified in the award.
[53] I have considered the provisions and am unable to be satisfied that the variation sought by the SDA, despite its obvious and compelling merits, falls within any of the statutory criteria of a term which may be included in a Modern Award.
[54] I have considered the provisions of s.142 of the Act which provides as follows:
142 Incidental and machinery terms
Incidental terms
(1) A modern award may include terms that are:
(a) incidental to a term that is permitted or required to be in the modern award; and
(b) essential for the purpose of making a particular term operate in a practical way.
Machinery terms
(2) A modern award may include machinery terms, including formal matters (such as a title, date or table of contents).
[55] I have also had regard to consideration during the Award Simplification process conducted under the “pre-reform” Workplace Relations Act 1996 (the WR Act) in relation to the Entertainment and Broadcasting Industry - Actors (Theatrical) Award 1998 1(the Theatrical Award) which dealt with a not unrelated subject matter and the operation of s.89A (2) of the legislation as it then was which provided that Awards may include.
“provisions that are incidental to the matters in subsection (2) and necessary for the effective operation of the award.”
[56] Notably, the Full Bench of the Australian Industrial Relations Commission (the AIRC) determined that a provision requiring nude or semi nude appearances by actors should be specified in a contract for performance at the time of engagement was incidental to the operation of the classifications of the Theatrical Award as follows:
‘The effect of the clause is to exclude from the duties of the classification in the award duties which involve appearing nude or semi-nude unless the employee agrees to performing such duties at the time employment commences. Looked at in this light, we have concluded that the provision is an allowable matter within s. 89A(2) (a) - classifications.’
[57] For reasons I have not been able to determine the relevant provision does not appear in the Modern Live Performance Award 2010 made as a consequence of the Award Modernisation Process.
[58] While I consider that the proposed term may be capable of being characterised as incidental to the classification of work which may be required to be performed by employees where employment is covered by the Award I doubt that it could fit the statutory requirements of s.142 (1) (b). It seems to me that the classification of employees in accordance with the terms of the Award can operate in a practical way as currently provided for by terms of the Award.
[59] As a matter of merit, it would be my view that the proposed variation should be included in the Award to incidentally exclude the capacity of an employer to direct an employee to dress in a demeaning or offensive manner and that it would be desirable for the Commission to have the power to do so.
[60] However, I find it impossible to conclude that the proposed variation is essential so that the terms of the Award classifying the work of employees it covers can operate in a practical way.
[61] In my view, this a matter appropriate for consideration by the legislature in any future review of the Act, to provide a means whereby employees may be protected from any mandatory requirement to dress or present themselves in ways which may be objectively considered demeaning or offensive in order to enjoy the minimum terms and conditions of employment prescribed by the Award.
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