[2017] FWCFB 6884

The attached document replaces the document previously issued with the above code on 22 December 2017.

Reference in paragraph [7] to paragraph [4] has been amended to paragraph [3].

Modern Awards Team for Justice Ross

Dated 2 January 2018

Fair Work Act 2009
s.156 - 4 yearly review of modern awards

4 yearly review of modern awards—Plain language re-drafting
(AM2016/15)

4 yearly review of modern awards – plain language re-drafting – reasonable overtime.

[1] Section 156(2)(a) of the Fair Work Act 2009 requires the Commission to review all modern awards every four years (the Review). As part of the Review this Full Bench has been constituted to oversee a number of plain language projects.

[2] In the course of proceedings relating to the plain language re-draft of the General Retail Industry Award 2010 (Retail Award) an issue has arisen regarding the interaction between ‘reasonable overtime’ provisions in clause 29.1 and s.62 of the NES. Clause 29.1 sets out factors to be taken into account in determining whether or not overtime may be considered unreasonable. It was submitted that the removal of this provision constituted a substantive change.

[3] A similar issue arose in the plain language re-draft of the Pharmacy Industry Award 2010 (Pharmacy Award). The Full Bench decided to vary the Pharmacy Award by inserting the following note at the beginning of the overtime clause:

‘NOTE: Under the NES (see section 62 of the Act) an employee may refuse to work additional hours if they are unreasonable. Section 62 sets out factors to be taken into account in determining whether the additional hours are reasonable or unreasonable.’ 1

[4] Clause 29.1 of the current Retail Award provides the following:

‘29.1 Reasonable overtime

(a) Subject to clause 29.1(b) an employer may require an employee other than a casual to work reasonable overtime at overtime rates in accordance with the provisions of this clause.

(b) An employee may refuse to work overtime in circumstances where the working of such overtime would result in the employee working hours which are unreasonable having regard to:

(i) any risk to employee health and safety;

(ii) the employee’s personal circumstances including any family responsibilities;

(iii) the needs of the workplace or enterprise;

(iv) the notice (if any) given by the employer of the overtime and by the employee of their intention to refuse it; and

(v) any other relevant matter.’

[5] Clause 29.1 has been removed from the plain language re-draft of the Retail Award and the note appearing in the Pharmacy Award has been inserted.

[6] In a Statement 2 issued on 27 October 2017 the President noted this issue arises in a number of modern awards. An information note on ‘reasonable overtime’ was published on 27 October 2017.3 Attachment 1 to this statement contains a list of awards with an identical ‘reasonable overtime’ clause to the Pharmacy Industry Award 2010.

Next steps

[7] We have a provisional view to insert the note at para [3] of this Statement in all modern awards with clauses in the same terms as the Pharmacy Industry Award 2010) and to remove the reasonable overtime clauses that replicate s.62 of the NES in those awards as part of the plain language review in 2018. Any interested party who opposes the provisional view are directed to file a written submission by 4.00 pm on Thursday, 22 February 2018.

[8] We propose to determine the issue on the papers unless a party seeks an oral hearing. Any such request should be made by 4.00 pm on Thursday, 22 February 2018.

[9] All comments should be sent to amod@fwc.gov.au.

PRESIDENT

<Price code C, PR598921>

Attachment 1

Building and Construction General On-site Award 2010, cl 36.1;

Cleaning Services Award 2010, cl 28.1;

Electrical, Electronic and Communications Contracting Award 2010, cl 26.1;

Fast Food Industry Award 2010, cl 26.4;

General Retail Industry Award 2010, cl 29.1;

Graphic Arts, Printing and Publishing Award 2010, cl 33.1;

Hair and Beauty Industry Award 2010, cl 31.1;

Joinery and Building Trades Award 2010, cl 30.1;

Manufacturing and Associated Industries and Occupations Award 2010, cl 40.2;

Timber Industry Award 2010, cl 30.11.

 1   [2017] FWCFB 344 at [205]-[209].

 2   [2017] FWC 5589.

 3   [2017] FWC 5589.

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