DECISION

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

4 yearly review of modern awards – Plain language re-drafting – Hospitality Industry (General) Award 2010
(AM2016/15)

4 yearly review of modern awards – plain language re-drafting – Hospitality Industry (General) Award 2010 – plain language re-drafting of award-specific clauses.

[1] This decision determines a number of matters in the plain language re-drafting of the Hospitality Industry (General) Award 2010 (the Hospitality award) following the conferences held on 12 and 23 February 2018. This decision also sets out the next steps for the remaining outstanding issues. The matters discussed at the 12 and 23 February 2018 conferences were set out at Attachments A and B of a Statement of 22 January 2018.

[2] The following parties attended the conferences:

•  Australian Hotels Association (AHA), the Accommodation Association of Australia (AAA) and the Motor Inn Motel and Accommodation Association (MIMAA) – (the Associations); 1

•  Australian Business Industrial and the New South Wales Business Chamber (ABI);

•  Business SA (on 12 February 2018 only); and

•  United Voice.

[3] After each conference reports were issued detailing the outcomes of the conferences.

13 February Report

[4] A report was issued on 13 February 2018 setting out the outcomes of the 12 February conference.

[5] Items 39, 41, 43, 56, 59, 60, 67A, 68, 73, 77, 84, 85, 86, 90 and 93 were either resolved or withdrawn at the 12 February 2018 conference.

[6] Items 56, 60A and 71 have been referred to the substantive issues Full Bench.

[7] Items 46 and 69 are to be determined on the basis of submissions already before the Commission.

[8] Item 46 relates to payment of wages. AHA seek to retain the words “if they so desire” from the current award.

[9] Clause 26.5 of the current award is as follows:

‘26.5 Employees who are not paid by electronic funds transfer and whose rostered day off falls on pay day must be paid their wages, if they so desire, before going off duty on the working day prior to their day off.’

[10] Clause 23.5 of the plain language exposure draft (PLED) published on 22 January 2018 is as follows:

‘23.5 An employee paid by cash or cheque who has a rostered day off on a pay day is entitled to be paid on their last day at work before their rostered day off.’

[11] The plain language expert omitted the words ‘if they so desire’ from the PLED on the basis that the words are not necessary because the clause is drafted in terms of an entitlement and not an obligation. 2

[12] AHA submitted that the entitlement under the current award for the employee to be paid before going off duty on the working day prior to their day off only becomes an entitlement if the employee asks for the payment to be made. AHA submitted clause 23.5 of the PLED changes the entitlement from an entitlement that only arises on the employee’s election to a definite entitlement which does not depend on an employee’s election. 3

[13] United Voice prefers the wording of the PLED but does not strongly oppose the AHA’s submission. 4

[14] In our view the expression ‘if they so desire’ lacks clarity and we propose to insert the words ‘at the employee’s election’, as shown below:

‘23.5 An employee paid by cash or cheque who has a rostered day off on a pay day is entitled at the employee’s election to be paid on their last day at work before their rostered day off.’

[15] Interested parties are asked to review the proposed change and advise if they have any objection to the insertion of the highlighted words by 4.00 pm, Wednesday 30 May 2018.

[16] Item 69 relates to special leave without pay arrangements for certain catering employees. The AHA submitted that references to ‘unpaid leave’ throughout the PLED should be replaced with the current award term ‘leave without pay’. 5 AHA submitted that ‘unpaid leave’ is not an entitlement in the current award and therefore could be incorrectly viewed as an entitlement to a particular form of leave.6 AHA is concerned about the interaction of the words ‘unpaid leave’ with s.22 of the Fair Work Act 2009 (Cth) (the Act) which relates to continuous service.7

[17] AHA submitted that s.22 of the Act clearly states that a period of ‘unpaid leave’ does not count for accrual of other entitlements. 8 Under clause 34.4(a) of the current award the period of leave without pay expressly counts for the purpose of accruing personal/carer’s leave, annual leave and long service leave. The proposed clause 30.5(f) also states that ‘unpaid leave periods’ count for the purposes of accruing such leave. AHA suggest that there is no need to define leave without pay as an ‘unpaid leave period’, especially given the wider potential conflict with the definition of continuous service under the Act.9

[18] It appears that an inconsistency arises between the proposed PLED term ‘unpaid leave period’ in clauses 30.5(c) – (f) and the current award terminology. We propose to vary the terms of clause 30.5 of the PLED as follows:

‘30.5 Special leave without pay arrangements for certain catering employees

(a) Clause 30.5 applies to an employee who is employed at or in connection with catering functions in primary or secondary boarding schools or residential colleges associated with tertiary educational institutions.

(b) The employer may require an employee to take a period of leave without pay during all or part of a term break, semester break or the Christmas/summer vacation.

(c) The employer must give the affected employees at least one week’s notice in writing of a requirement to take leave without pay and the period (unpaid leave period) for which that leave is to be taken.

(d) The unpaid period of leave without pay period may be varied by agreement between the employee and employer.

(e) An employee may take accrued annual leave or long service leave instead of leave without pay during an unpaid leave a period of leave required to be taken under paragraph (b).

(f) All unpaid leave without pay taken under clause 30.5 periods counts for the purposes of accruing annual leave, long service leave and personal/carer’s leave.

…’

[19] Interested parties are invited to make submissions in regarding the proposed changes to clause 30.5 of the PLED proposed at [18] by 4.00 pm, Wednesday 30 May 2018.

23 February Report

[20] A report was issued on 28 February 2018 setting out the outcomes of the 23 February conference.

[21] Items 12, 14, 15, PTC-2, 29, 30, PTC-3, 65, 110, PTC-5 and PTC-6 were resolved at the 23 February 2018 conference.

[22] In a Statement dated 28 February 2018 items 62 and PTC-4 were referred to the plain language Full Bench to be determined with other awards containing identical reasonable overtime provisions.

[23] Item PTC-1 relates to clause 10—Part-time employment and was referred to the plain language expert, particularly regarding the consistent use of the terms ‘employee’ and ‘part-time employee’. Clause 10 has been reviewed by the plain language expert and is set out at Attachment A to this Decision. Interested parties are asked to review clause 10 and advise if there are any outstanding issues by 4.00 pm, Wednesday 30 May 2018.

[24] Item 17 relates to the wording of the note under clause 11.2 of the PLED, as follows. It was proposed that the issue be resolved by deleting the note and interested parties were invited to make submissions about the proposed deletion. The Associations were the only parties to make a submission and submitted that the note should be retained in the PLED. 10

[25] The note at clause 11.2 of the PLED is based on the second sentence of clause 13.1 of the current award which states:

‘…The casual loading is paid as compensation for annual leave, personal/carer’s leave, notice of termination, redundancy benefits and the other entitlements of full-time or part-time employment.’

[26] During the conference on 23 February it was noted that in most modern awards there is no explanation of what the casual loading compensates a casual employee for and that clause 13.1 of the current award is not accurate because the things listed do not cover all the matters compensated for by the casual loading. 11 In a decision [2014] FWCFB 941212 a Full Bench decided that it would not include in exposure drafts a clause identifying provisions of awards that do not apply to casuals due to the controversy amongst interested parties about which entitlements casual employees are not entitled to.

[27] While the second sentence of the current award clause 13.1 is reflected in a note in the PLED, we are of the view that as the note is not accurate and should not be retained. An inaccurate note has potential to increase confusion about award entitlements. This issue is resolved by deleting the note under clause 11.2 of the PLED.

[28] Item 19 relates to payment for casual employees in clause 11.6 (previously 11.4) of the PLED and the proposed inclusion of a note below that clause to address a submission from AHA. Clause 11.4 as it was first published in the PLED on 27 April 2017 as follows:

‘11.4 An employer must pay a casual employee at the end of each engagement unless the employer and the employee have agreed that the pay period of the employee is either weekly or fortnightly.’ (now clause 11.6)

[29] The equivalent clause in the current award is clause 13.5:

‘13.5 A casual employee must be paid at the termination of each engagement, but may agree to be paid weekly or fortnightly.’

[30] AHA’s original submission was that the clause could be simplified by amending the wording to state: ‘A casual employee must be paid at the termination of each engagement, or otherwise in accordance with clause 21’. 13 In response to this submission, the plain language expert proposed inserting a note below the clause in the following terms:

‘NOTE: Under clause 23.1 the employer and an individual casual employee may agree to a weekly or fortnightly pay period.’

[31] A revised plain language exposure draft was published on 25 October 2017. 14 No amendments were made to clause 11.4 (now clause 11.6) and the proposed note was not inserted.

[32] In its 20 November 2017 submission, United Voice opposed inclusion of the note on the basis that it is unnecessarily complicated and the plain language exposure draft already addressed the entitlement clearly. 15 United Voice confirmed this view during the 23 February 2018 conference16 and submitted that under the current award, agreement to be paid weekly or fortnightly arises under clause 13 (casual employment)17 and that the note makes the clause more complicated than the way the clause is currently drafted.18

[33] In their submission of 21 November 2017, the Associations submitted that the wording in the PLED as published on 25 October 2017 (which did not amend to clause or add the note) was acceptable and resolved the item. 19 The Associations confirmed during the 23 February 2018 conference that they considered the item resolved.20 It is unclear from the transcript of 23 February 2018 conference and the Associations’ submissions whether the Associations consider the item resolved on the basis of inclusion of the note or without it.

[34] As foreshadowed in the 28 February 2018 report, the Commission will determine this issue on the material before the Commission with the other outstanding issues outlined in this Decision.

[35] We are not persuaded that it is necessary to include the note. Clause 11.6 of the PLED published on 25 October 2017 accurately reflects clause 13.5 of the current award. It is not necessary to amend clause 11.6 or add a note. Item 19 is resolved on that basis.

[36] Items 33, 34 and 35 relate to the breaks clause. During the 23 February 2018 conference it was determined that these items would be referred to the plain language expert for amendment to more accurately reflect the existing award provision.

[37] The plain language expert has reviewed clause 16 in relation to the issues raised in items 33 – 35 and the proposed clause 16 is set out at Attachment B.

[38] In its submission of 9 March 2018, the Associations indicated an intention to make further submissions in relation to clause 16 after it was reviewed by the plain language expert. AHA drew particular attention to the issue they had raised in relation to clause 16.6 (as part of item 33) which was omitted in error from the 23 February 2018 conference agenda and supporting materials. 21

[39] Interested parties are invited to make submissions on the revised clause 16 at Attachment B by 4.00 pm, Wednesday 30 May 2018.

Next steps

[40] The outstanding issues relating to the plain language re-drafting of the Hospitality award are as follows:

1. An issue relating to payment of wages (item 46);

2. An issue relating to special leave arrangements for certain catering employees (item 69);

3. Issues relating to part-time employment (PTC-1);

4. Two issues relating to casual employment (items 17 and 19); and

5. Issues relating breaks (items 33 – 35).

[41] An updated version of the PLED will be published shortly.

[42] Interested parties are invited to make final submissions on the items identified at paragraphs [15], [19], [23] and [39] of this Statement by 4.00 pm, Wednesday 30 May 2018. Reply submissions are due by 4.00 pm on Wednesday 13 June 2018. All material should be sent to amod@fwc.gov.au.

[43] Liberty to apply.

[44] In the absence of a request for an oral hearing, the outstanding items relating to plain language re-drafting of the Hospitality award will be determined on the papers. Requests for an oral hearing are to be directed to chambers.ross.j@fwc.gov.au by 4.00pm, Thursday 14 June 2018.

PRESIDENT

Attachment A—Revised clause 10

Clause 10—Part-time employment

10.1 Classifications

An employer may employ a part-time employee in any classification defined in Schedule A—Classification Structure and Definitions.

10.2 Definition of part-time employee

A part-time employee is an employee who:

(a) is engaged to work at least 8 and fewer than 38 ordinary hours per week (or, if the employer operates a roster, an average of at least 8 and fewer than 38 hours per week over the roster cycle); and

(b) has reasonably predictable hours of work.

10.3 A part-time employee is entitled, on a proportionate basis, to the same pay and conditions as those of full-time employees who do the same kind of work.

10.4 Setting guaranteed hours and availability

At the time of engaging a part-time employee, the employer must agree in writing with the employee on all of the following:

(a) the number of hours of work guaranteed to the employee each week (or, if the employer operates a roster, over the roster cycle) (the guaranteed hours); and

(b) the days of the week on which, and the hours on those days during which, the employee is available to work the guaranteed hours (the employee’s availability).

10.5 Any change to a part-time employee’s guaranteed hours may only be made with the written consent of the employee.

10.6 Rostering

The employer may roster a part-time employee to work their guaranteed hours and any additional hours in accordance with clause 15.2—Part-time employees and clause 15.5—Rosters (Full-time and part-time employees).

10.7 However, a part-time employee:

(a) must not be rostered to work any hours outside the times at which they have agreed to be available; and

(b) must have 2 days off each week.

10.8 Increasing guaranteed hours to match regular work pattern

If a part-time employee has regularly worked a number of ordinary hours in excess of their guaranteed hours for at least 12 months, then they may request in writing that the employer agree to increase their guaranteed hours.

10.9 If the employer agrees to a request under clause 10.8, then the employer and the part-time employee must vary the agreement made under clause 10.4 to reflect the employee’s new guaranteed hours. The variation must be recorded in writing before it occurs.

10.10 The employer may only refuse a request under clause 10.8 on reasonable business grounds. The employer must notify the part-time employee in writing of a refusal and the grounds for it.

10.11 Change in employee’s circumstances that changes their availability

If there is a genuine and ongoing change in the part-time employee’s personal circumstances, then they may alter the times they are available by giving 14 days’ written notice of the alteration to the employer.

10.12 If the employer cannot reasonably accommodate the alteration to the part-time employee’s availability as altered under clause 10.11, then (regardless of clause 10.5):

(a) the part-time employee’s guaranteed hours agreed under clause 10.4 cease to apply; and

(b) the employer and the part-time employee must agree a new set of guaranteed hours under clause 10.4.

10.13 Payment rates

(a) An employer must pay a part-time employee for ordinary hours worked in accordance with clause 18—Minimum rates.

(b) An employer must pay a part-time employee at the rates prescribed in Table 10—Overtime rates for all time worked in excess of:

(i) 38 hours per week (or, if the employee works in accordance with a roster, an average of 38 hours per week over the roster cycle); or

(ii) the maximum daily hours limitations specified in clause 15.2—Part-time employees; or

(iii) the employee’s rostered hours.

10.14 Pre 1 January 2018 agreed pattern of work

A part-time employee who immediately before 1 January 2018 had a written agreement with their employer on a regular pattern of work is entitled to continue to be rostered in accordance with that agreement but may enter into a new written agreement under clause 10.4.

Attachment B—Revised clause 16

Clause 16—Breaks

16.1 Clause 16 deals with meal breaks and rest breaks and gives an employee an entitlement to them in specified circumstances.

16.2 Frequency of breaks

An employee who works the number of hours in any one shift specified in column 1 of Table 2—Entitlements to meal and rest break(s) is entitled to a break or breaks as specified in column 2.

Table 2—Entitlements to meal and rest break(s)

16.3 When the employer rosters an employee’s breaks, they must make all reasonable efforts to ensure that the breaks are spread evenly across the employee’s shift.

16.4 Employer to pay higher rate if break not allowed

If, during an employee’s shift of more than 6 hours, the employer does not allow the employee to take an unpaid meal break, then the employer must pay the employee at the rate that applies under 16.5:

(a) from 6 hours after the employee started work on that shift;

(b) until either the employee is given a break or the shift ends.

16.5 The rate the employer must pay the employee under clause 16.4 is:

(a) the rate the employer was paying the employee at the end of the 6th hour of work on that shift; and

(b) 50% of the employee’s ordinary hourly rate.

EXAMPLE Mary is a full-time employee whose ordinary hourly rate is $20.00 an hour. She is working an 8 hour shift. Under Table 2—Entitlements to meal and rest break(s), she is entitled to an “unpaid meal break (to be taken after the first 2 hours of work and within the first 6 hours of work)”. If she has been working for 6 hours and has not been allowed a break, then she becomes entitled to be paid the higher rate under 16.4 and 16.5.

If the shift is a normal mid-week shift on which Mary is paid her ordinary hourly rate of $20.00, then from when she has worked 6 hours until she is allowed to take a break or her shift ends, the employer is to pay her:

(a) her ordinary hourly rate of $20.00;

(b) plus 50% of her ordinary hourly rate, which is $10.00.

So she is to be paid $30.00 an hour after she has worked for 6 hours until she is allowed to take a break or the shift ends.

If the shift is a Sunday shift on which Mary is paid 150% of her ordinary hourly rate of $20.00, then from when she has worked 6 hours until she is allowed to take a break or her shift ends, the employer is to pay her:

(a) her Saturday shift rate of $30.00 (being 150% of her ordinary hourly rate of $20.00);

(b) plus 50% of her ordinary hourly rate, which is $10.00.

So she is to be paid $40.00 an hour after she has worked for 6 hours until she is allowed to take a break or the shift ends.

16.6 Additional rest break

An employer must give an employee an additional paid rest break of 20 minutes if the employer requires the employee to work more than:

(a) 5 continuous hours after an unpaid meal break; or

(b) 2 hours’ overtime after the employee finishes their rostered hours.

 1   The AHA appeared on behalf of itself, AAA and MIMAA.

 2   See Summary of outstanding issues 8 February 2018, item 46.

 3   Transcript 12 February 2018 at [54].

 4   Transcript 12 February 2018 at [55].

 5   AHA submission, 13 June 2017, paragraph 52.

 6   AHA submission, 5 September 2017, paragraph 53.

 7   Transcript 12 February 2018 at [160].

 8   Transcript 12 February 2018 at [161].

 9   Transcript 12 February 2018 at [162].

 10   AHA submission, 9 March 2018, paragraph 1.

 11   Transcript 23 February 2018 at [84].

 12   [2014] FWCFB 9412 at [69].

 13   AHA submission, 13 June 2016, paragraph 13.

 14   Revised exposure draft (changes tracked) 25 October 2017.

 15   United Voice submission, 20 November 2017, paragraphs 4 – 6.

 16   Transcript 23 February 2018 at [97].

 17   Transcript 23 February 2018 at [100].

 18   Transcript 23 February 2018 at [97].

 19   AHA submission, 20 November 2017, paragraph 19.

 20   Transcript 23 February 2018 at [94].

 21   AHA submission, 9 March 2018, paragraphs 3 – 4.

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