[2018] FWCFB 4116

The attached document replaces the document previously issued with the above code on 11 July 2018.

The reference to “Hospitality award and the General Retail Industry Award 2010” in the second bullet point of paragraph [7] has been replaced with “Hospitality and Retail awards”.

Modern Award Team

On behalf of the Associate to Vice President Hatcher

Dated 12 July 2018

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

Registered and Licensed Clubs Award 2010 and Hospitality Industry (General) Award 2010
(AM2017/39)

4 yearly review of modern awards – application to vary the Hospitality Industry (General) Award 2010 and revoke the Registered and Licensed Clubs Award 2010.

[1] This matter takes place in the context of the Commission’s 4-yearly review of modern awards under s.156 of the Fair Work Act 2009. Arising from two decisions 1 of a differently constituted Full Bench that considered penalty rates under a number of retail and hospitality awards, Clubs Australia - Industrial (CAI) has made an application to vary the Hospitality Industry (General) Award 2010 (Hospitality award), and if those variations were made, to revoke the Registered and Licensed Clubs Award 2010 (Clubs award).

[2] The application is opposed by United Voice, the Club Managers’ Association Australia, the Australian Workers’ Union, the Professional Golfers Association of Australia, and a number of clubs and organisations operating within the club industry.

[3] The Full Bench has heard evidence in this matter over some six days.

[4] In the immediate lead up to the hearing listed for final submissions on 11 and 12 July 2018, CAI advised the Commission that it was no longer pressing for the adoption of certain provisions of its proposed revised Hospitality award. CAI also advanced certain alternative positions on a number of other club-specific provisions.

[5] United Voice, with the support of some other parties opposing the application, sought that the matter be adjourned to permit additional evidence and submissions to be led given the revised position adopted by CAI. CAI did not oppose the adjournment, which has been granted.

[6] The Full Bench has subsequently issued further directions giving an opportunity for all parties to provide additional evidence and submissions. Further hearings have been scheduled for late October/early November 2018 to deal with that material and to hear final submissions. In so doing, we indicated that a Statement would be issued by the Full Bench setting out some issues that the parties might consider in providing any supplementary evidence or submissions.

[7] Those issues are as follows:

Should the Full Bench ultimately consider varying the Hospitality award to include coverage of those employees and employers presently covered by the Clubs award the following questions might arise:

•  Should the existing full-time and part-time employees, who are currently covered by the Clubs award, have their existing penalty rates on weekends and public holidays maintained with any reduced rates applicable only to new full-time and part-time employees?

•  Should the revised public holiday rates applicable under the Hospitality award be applied generally to full-time and part-time employees under any “combined” award given that the Penalty Rates Full Bench determined that issue on the basis of the Hospitality and Retail awards before it generally, 2 but deferred consideration of the Clubs award3 given that weekend penalties were not adjusted in that award?

•  Should the system of classifications and working hours arrangements for Club Managers under the present Clubs award be considered more broadly for establishments currently covered by the Hospitality award?

•  Given the basis upon which the application is made, should there be any different working hours and related arrangements for employees under any “combined” award (with the exception of Managers and employees in the proposed maintenance and horticultural stream)?

•  Depending upon the view taken above, would a reasonable delay in the operation of any new “combined” award conditions avoid the need to maintain different hours of work and related arrangements for an interim period as contemplated in the alternative position (point 2) advanced by CAI in its correspondence of 10 July 2018?

[8] We emphasise that the matters we are raising do not represent the preliminary or final view of the Full Bench on any matter, but rather, are issues or options that the Commission may otherwise have raised during final submissions.

VICE PRESIDENT

 1   4-yearly review of modern awards – Penalty Rates [2017] FWCFB 1001, issued 23 February 2017 and 4-yearly review of modern awards – Penalty Rates – Transitional Arrangements [2017] FWCFB 3001, issued 5 June 2017.

 2   See 4-yearly review of modern awards – Penalty Rates [2017] FWCFB 1001 at [1947] to [1957].

 3   Ibid at [1915].

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