| [2018] FWCFB 5749 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.156 - 4 yearly review of modern awards
4 yearly review of modern awards – reasonable overtime
(AM2016/15)
JUSTICE ROSS, PRESIDENT |
MELBOURNE, 17 SEPTEMBER 2018 |
4 yearly review of modern awards – plain language re-drafting – reasonable overtime.
[1] Section 156(2) of the Fair Work Act 2009 (Cth) (the Act) 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] During proceedings related to the plain language re-drafting of the General Retail Industry Award 2010 (the Retail award) an issue arose regarding the interaction between the ‘reasonable overtime’ provisions in clause 29.1 and s.62 of the Act. Clause 29.1 of the Retail award is as follows:
‘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.’
[3] A similar issue arose in the plain language re-drafting of the Pharmacy Industry Award 2010 (the Pharmacy award). In those proceedings the Full Bench adopted the agreed position of the parties to delete the reasonable overtime clause from the Pharmacy award and to insert the following note at the start 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] The Commission issued statements on 22 December 2017 2 (the December Statement) and 28 February 2018 (the February Statement)3 identifying additional awards that contained the same ‘reasonable overtime’ provisions as in the Retail award. The Commission expressed a provisional view that the reasonable overtime provisions in the awards listed at Attachment A be deleted and note at [3] in all of those modern awards.4
[5] Interested parties were invited to makes submissions. Submissions were received from the following parties:
• Ai Group; 5
• AMWU; 6
• United Voice (UV); 7
• Master Electricians Australia (MEA); 8
• Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU); 9 and
• Australian Business Industrial and NSW Business Chamber (ABI). 10
[6] In the December and February Statements the Commission proposed to deal with this issue on the papers unless any party sought an oral hearing. 11 No oral hearing was requested.
[7] This decision provisionally determines the issue arising from the interaction between reasonable overtime clauses at Attachment A and s.62 of the Act.
[8] In this decision, references to ‘clause 29.1’ mean references to clause 29.1 of the Retail award (at [2] above) and the equivalent reasonable overtime clause in the awards listed at Attachment A.
[9] The submissions addressed three separate issues with clause 29.1.
• whether the express right of an employer to require employees to work reasonable overtime contained in clause 29.1(a) should be retained;
• whether the list of circumstances in which an employee may refuse to work overtime in clause 29.1(b) should be retained; and
• whether if the whole of clause 29.1 should be deleted and replaced with the note set out at [3] above (the provisional view).
Issue 1: Clause 29.1 (a)
[10] Ai Group opposed the deletion of the express right in clause 29.1(a) on the basis that the inclusion of an express right to require employees to work overtime dates back 70 years in some awards. Ai Group submitted that a model term, upon which clause 29.1 is based, was confirmed in Re Working Hours Case July 2002 12 and submitted the express right is an important provision that is widely relied upon by employers and the Commission should not depart from previous decisions, which decided to include the provision.13
[11] Ai Group proposed that the following clause and note be inserted into the overtime clauses of awards at Attachment A:
‘XX. Subject to section 62 of the Act, an employer may require an employee to work reasonable overtime at overtime rates.
NOTE: Under 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.’ 14
[12] ABI also opposed the removal of clause 29.1(a), submitting that clause 29.1(a) is a long-standing feature of awards and its removal would represent a substantive change. 15
[13] MEA supported the submissions of the Ai Group. 16
[14] MEA’s submission related to the Electrical, Electronic and Communications Contracting Award 2010 (the Electrical award). MEA submitted that:
‘Retaining the provision that communicates to employees an employer may direct employees to work reasonable overtime in the Electrical Modern Award is crucial in maintaining the rights of the employer; particularly in an industry that relies heavily on attendance to emergency call outs, to make an electrical installations safe for the public, or to allow for the continuation of a business’s machinery. For example, in mining or manufacturing operations that operate 24 hours a day. We say that the removal of the provision / wording affects the ability of the employer to be able to require employees to work overtime as section 62 of the Fair Work Act does not communicate in our industry the importance of employers requirement to have overtime completed.’ 17
[15] In support of its submission, MEA suggested that removal of the provision may result in increased casualisation and reliance on labour hire to meet industry demands. MEA also noted the restrictive shift provisions in the Electrical award and suggested that if the employer right to require overtime were removed, then shiftwork provisions should be relaxed. 18
[16] MEA also suggested that when the employer right to direct employees to work overtime was removed from Western Australian State awards, it created increased uncertainty in the Western Australian industrial relations system, which MEA believe has led to more disputes. 19 No data or evidence was provided in support of this contention.
[17] The AMWU opposed Ai Group’s proposed clause on the basis that it appears to exclude the NES because:
‘to a lay person reading the clause, it expresses a clear intention to provide an employer with a right to require an employee to work reasonable overtime. The note which refers the reader to s 62 doesn’t have any effect as a term of the Award.’ 20 The AMWU submit that the practical effect would be to ‘seemingly exclude the NES entitlement and give the employer something to point to which supports their direction to the employee’.21
[18] The AMWU proposes that the current clause 29.1(a) be deleted.
[19] ABI opposed the AMWU’s proposal to remove clause 29.1(a). ABI submitted clause 29.1(a) ‘…is the operative component permitting an employer to require an employee to work reasonable overtime.’ 22 ABI submitted that this provision is a long-standing feature of some awards and is not contained in the Act. Therefore, its removal would constitute a substantive change.23
[20] MEA and ABI submitted that the employer right to require overtime to be worked does not displace s.62 of the Act. 24
[21] ABI did not oppose the removal of clause 29.1(b) and its replacement with a note in the same terms as the Pharmacy award submitting that the clause 29.1(b) factors are essentially a re-statement of factors found at s.62(3) of the Act. 25 In the alternative, ABI was not opposed to the wording proposed by Ai Group.26
[22] The AMWU opposed deleting clause 29.1(b) if doing so would result in more weight being given to employer friendly factors than would otherwise be the case under the current award. 27
[23] In the event that the Commission agreed with the proposition that deleting the current clause 29.1 and relying on the NES would ‘result in more weight being given to employer friendly factors than would otherwise’, then the AMWU submitted the current clause should be deleted and replaced with the following clause:
‘29.1 Right to refuse additional hours
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.’ 28
[24] The CFMMEU supported the AMWU submission. 29
[25] UV did not oppose removing clause 29.1 and replacing it with the note in accordance with the provisional view expressed by the Commission. 30 ABI did not support UV’s submission.31
[26] The AMWU did not oppose the provisional view if clause 29.1 replicates the NES and there is no change in the legal position, but noted that the NES contains additional factors for considering reasonableness to those listed in clause 29.1(b), some of which are ‘employer friendly factors’. 32 AMWU submitted that if deleting clause 29.1 would result in more weight being given to employer friendly factors than would otherwise be the case under the current award terms for reasonable overtime, the current clause 29.1(b) factors should be retained.33
[27] SDA made submissions in relation to the plain language re-drafting of the Retail award. SDA did not support the proposed variation and requests that the current clause be reinstated in the exposure draft. 34 SDA relied on its submissions in relation to matter AM2014/196 and 197 but does not specify which of the submissions from the part-time and casual full bench proceedings it sought to rely on.
[28] Of the submissions SDA filed in matter AM2014/196 and 197, those filed on 13 May 2016 appear to be the most relevant to the question of reasonable overtime. 35 SDA submitted that the relevant award provision and the statutory framework provided little or no protection for vulnerable casual employees. They submitted that casual employees do not currently have an unqualified right to refuse to work overtime on the basis that there is no additional remuneration. The lack of protection, they submitted, was not a ‘fair and relevant minimum safety net of terms and conditions’ for the purposes of s.134 of the Act. SDA did not make additional submissions in response to the December and February Statements.
[29] The employer groups oppose the proposed removal of clause 29.1(a) on the basis that this would remove the employer right to require an employee to work reasonable overtime and would result in a substantive change in award conditions for employers. It is argued that this would result in the removal of a long-standing award provision and result in an imbalance of rights of employers and employees regarding the working of reasonable overtime. The employer groups support deletion of clause 29.1(b) on the basis that it replicates the NES entitlement.
[30] On the other hand, the AMWU and CFMMEU oppose the deletion of clause 29.1(b) on the basis that additional ‘employer friendly’ factors that appear in the NES but not clause 29.1(b) would result in more weight being given to employer friendly factors when determining the reasonableness of additional hours under the NES than there currently would be under the award.
[31] The AMWU and CFMMEU also submitted that clause 29.1(a) should be deleted because it has the practical effect of displacing the NES and would result in an imbalance of rights in favour of the employer as employees would be unlikely to know that they could refuse to work unreasonable additional hours.
[32] The parties agree that the current reasonable overtime clauses are based on the model clause arising from Re Working Hours Case July 2002, 36 which is as follows:
‘X.1 Subject to clause X.2 an employer may require an employee to work reasonable overtime at overtime rates.
X.2 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:
X.2.1 any risk to employee health and safety;
X.2.2 the employee’s personal circumstances including any family responsibilities;
X.2.3 the needs of the workplace or enterprise;
X.2.4 the notice (if any) given by the employer of the overtime and by the employee of his or her intention to refuse it; and
X.2.5 any other relevant matter.’
[33] When determining the model clause, the Australian Industrial Relations Commission (AIRC) Full Bench decided that the clause should:
• balance considerations of both employers and employees in determining whether additional hours are reasonable; and
• include a reference to the ‘well-established’ right of an employer to require an employee to work reasonable overtime. 37
[34] Re Working Hours Case July 2002 was determined under a different legislative regime. A reasonable overtime provision was first included into Federal Legislation as a part of the Work Choices legislation and was retained, with some amendments, in the Act.
[35] Section 226 of the Workplace Relations Act 1996 (Cth) (the WR Act) provided:
‘Subdivision B—Guarantee of maximum ordinary hours of work
226 The guarantee
(1) An employee must not be required or requested by an employer to work more than:
(a) either:
(i) 38 hours per week; or
(ii) subject to subsection (3), if the employee and the employer agree in writing that the employee’s hours of work are to be averaged over a specified averaging period that is no longer than 12 months—an average of 38 hours per week over that averaging period; and
(b) reasonable additional hours.
Note 1: An employee and an employer may agree that the employee is to work less than 38 hours per week, or less than an average of 38 hours per week over the employee’s averaging period.
Note 2: A requirement for an employee to work a particular number of hours may come, for example, from an award or a workplace agreement.
Calculating the number of hours worked
(2) For the purposes of paragraph (1)(a), in calculating the number of hours that an employee has worked in a particular week, or the average number of hours that an employee has worked per week over an averaging period, the hours worked by the employee are taken to include any hours of authorised leave taken by the employee during the week, or during that period.
Start of averaging period
(3) For the purpose of subparagraph (1)(a)(ii), if an employee starts to work for an employer after the start of a particular averaging period that applies to the employee, that averaging period is taken, in relation to the employee, not to include the period before the employee started to work for the employer.
Reasonable additional hours
(4) For the purposes of paragraph (1)(b), in determining whether additional hours that an employee is required or requested by an employer to work are reasonable additional hours, all relevant factors must be taken into account. Those factors may include, but are not limited to, the following:
(a) any risk to the employee’s health and safety that might reasonably be expected to arise if the employee worked the additional hours;
(b) the employee’s personal circumstances (including family responsibilities);
(c) the operational requirements of the workplace, or enterprise, in relation to which the employee is required or requested to work the additional hours;
(d) any notice given by the employer of the requirement or request that the employee work the additional hours;
(e) any notice given by the employee of the employee’s intention to refuse to work the additional hours;
(f) whether any of the additional hours are on a public holiday;
(g) the employee’s hours of work over the 4 weeks ending immediately before the employee is required or requested to work the additional hours.
Note: An employee and an employer may agree that the employee may take breaks during any additional hours worked by the employee.
[36] Section 62 of the Act is based on s.226 of the WR Act and deals with maximum weekly hours, as follows:
‘62 Maximum weekly hours
Maximum weekly hours of work
(1) An employer must not request or require an employee to work more than the following number of hours in a week unless the additional hours are reasonable:
(a) for a full-time employee – 38 hours; or
(b) for an employee who is not a full-time employee – the lesser of:
(i) 38 hours; and
(ii) the employee's ordinary hours of work in a week.
Employee may refuse to work unreasonable additional hours
(2) The employee may refuse to work additional hours (beyond those referred to in paragraph (1)(a) or (b)) if they are unreasonable.
Determining whether additional hours are reasonable
(3) In determining whether additional hours are reasonable or unreasonable for the purposes of subsections (1) and (2), the following must be taken into account:
(a) any risk to employee health and safety from working the additional hours;
(b) the employee's personal circumstances, including family responsibilities;
(c) the needs of the workplace or enterprise in which the employee is employed;
(d) whether the employee is entitled to receive overtime payments, penalty rates or other compensation for, or a level of remuneration that reflects an expectation of, working additional hours;
(e) any notice given by the employer of any request or requirement to work the additional hours;
(f) any notice given by the employee of his or her intention to refuse to work the additional hours;
(g) the usual patterns of work in the industry, or the part of an industry, in which the employee works;
(h) the nature of the employee's role, and the employee's level of responsibility;
(i) whether the additional hours are in accordance with averaging terms included under section 63 in a modern award or enterprise agreement that applies to the employee, or with an averaging arrangement agreed to by the employer and employee under section 64;
(j) any other relevant matter.
…’
[37] The Explanatory Memorandum to the Fair Work Bill 2008 (Explanatory Memorandum) provides commentary on s.62 of the Act:
‘242. This Division establishes the maximum weekly hours for employees and also the circumstances in which an employee may refuse a request or requirement to work additional hours if the hours are unreasonable.
…
244. Subclause 62(1) provides that an employer must not request or require an employee to work more than a specified number of hours in a week, unless the additional hours are reasonable.
• 245. The specified hours are:
• for a full-time employee – 38 hours; or
• for an employee who is not a full-time employee – the lesser of 38 hours or the employee’s ordinary hours of work in a week.
…
247. An employer may request or require an employee to work additional hours either expressly or by implication (e.g., by setting tasks that could only be completed by the employee working additional hours).’
[38] Paragraph 247 of the Explanatory Memorandum acknowledges that a requirement to work additional hours may be a lawful and reasonable direction. But it is important to bear in mind that s.62(1) is a prohibition which overrides any inconsistent express or implied contractual right.
[39] The central proposition advanced by the employers in support of their position is that award provisions giving employers the express right to require employees to work overtime are ‘longstanding’ and the Commission should not depart from previous Commission decisions. We note at the outset that there is an inherent contradiction in the submission put – the employers argue in favour of the status quo and the application of precedent and then advance an award term which departs from both.
[40] As mentioned in a number of decisions during the course of the Review, the nature of modern awards under the Act is quite different from the awards made under previous legislative regimes. 38 In times past awards were made in settlement of industrial disputes. The content of these instruments was determined by the constitutional and legislative limits of the tribunal’s jurisdiction; the matters put in issue by the parties (i.e. the ‘ambit’ of the dispute) and the policies of the tribunal as determined from time to time in wage fixing principles or test cases. An award generally only bound the employers, employer organisations and unions who had been parties to the industrial dispute that gave rise to the making of the award and were named as respondents.
[41] Modern awards are very different to awards of the past. They are not made to prevent or settle industrial disputes between particular parties. Rather, the purpose of modern awards, together with the NES and national minimum wage orders, is to provide a safety net of fair, relevant and enforceable minimum terms and conditions of employment for national system employees (see ss.3(b) and 43(1)). They are, in effect, regulatory instruments that set minimum terms and conditions of employment for the employees to whom the modern award applies (see s.47).
[42] The Commission’s task in the Review is to determine whether a particular modern award achieves the modern awards objective. If a modern award is not achieving the modern awards objective then it is to be varied such that it only includes terms that are ‘necessary to achieve the modern awards objective’ (s.138). In such circumstances regard may be had to the terms of any proposed variation, but the focal point of the Commission’s consideration is upon the terms of the modern award, as varied.
[43] In conducting the Review it is appropriate that the Commission take into account previous decisions relevant to any contested issue. The particular context in which those decisions were decided may be a cogent reason for not following a previous Full Bench decision, for example the legislative context which pertained at that time may be materially different from the Act. Re Working Hours Case July 2002 was decided in a markedly different legislative context and is only of limited relevance to the determination of the matter before us.
[44] The central issue before us is what sort of term is necessary to achieve the modern awards objective (within the meaning of s.138) and which does not exclude any provision of the NES.
[45] In our view the clause and accompanying note proposed by Ai Group does not provide a ‘fair and relevant minimum safety net’ within the meaning of the modern awards objective. Fairness in this context is to be assessed from the perspective of both employers and employees; the proposed clause lacks the requisite balance.
[46] Nor are we attracted to the retention of clause 29.1(b) in its current form – it refers only some of the s.62(3) considerations and its retention is apt to confuse. The AMWU’s proposal is no better, it simply seeks to excise what it characterises as ‘employer friendly’ factors.
[47] The additional factors in s.62(3) that are not included in clause 29.1(b) are as follows:
‘(d) whether the employee is entitled to receive overtime payments, penalty rates or other compensation for, or a level of remuneration that reflects an expectation of, working additional hours;
(g) the usual patterns of work in the industry, or the part of an industry, in which the employee works;
(h) the nature of the employee's role, and the employee's level of responsibility;
(i) whether the additional hours are in accordance with averaging terms included under section 63 in a modern award or enterprise agreement that applies to the employee, or with an averaging arrangement agreed to by the employer and employee under section 64.’
[48] The Explanatory Memorandum provides the following commentary about the s.62(3) factors and makes specific reference to some of the new factors in the examples provided:
‘250. The relevance of each of these factors and the weight to be given to each of them will vary according to the particular circumstances. In some cases, a single factor will be of great importance and outweigh all others. Other cases will require a balancing exercise between factors. For example:
• There may be a situation where, although an employer provides advance notice of the requirement to work additional hours and the requirement to work those hours is based on the needs of the workplace, the hours are nonetheless unreasonable when the risks to employee health and safety or the employee's family responsibilities are taken into account.
• The significant remuneration and other benefits paid to a senior manager, together with the nature of the role and level of responsibility, may be sufficient to ensure that additional hours are reasonable in many cases.
• The additional hours an employee is required to work may also be reasonable if the hours are worked at a particular time and in a particular manner in order to meet the employer's operational requirements, or are worked in accordance with a particular pattern or roster that is prevalent in a particular industry, such as the fly-in-fly-out arrangements in the mining industry. The fact that a requirement to work additional hours is set out in the offer of employment accepted by an employee will also be relevant, though not determinative.’
[49] The addition of new factors in considering the reasonableness of additional hours was plainly a deliberate decision of the legislature.
[50] It seems to us that there is a need to formulate a term which makes explicit both the employers right to require an employee to work reasonable overtime and an employee’s right to refuse to work unreasonable additional hours. In our view a clause in the following terms satisfies that need:
x. Reasonable overtime – model term
x.1 Subject to s.62 of the Act and this clause, an employer may require an employee - other than a casual - to work reasonable overtime hours at overtime rates.
x.2 An employee may refuse to work overtime hours if they are unreasonable.
x.3 Options 1, 2 or 3
[51] As noted above, there are three options in relation to clause X.3.
[52] Option 1 would set out the factors in s.62(3), as follows:
Option 1
‘x.3 In determining whether overtime hours are reasonable or unreasonable for the purpose of this clause the following must be taken into account:
(a) any risk to employee health and safety from working the additional hours;
(b) the employee's personal circumstances, including family responsibilities;
(c) the needs of the workplace or enterprise in which the employee is employed;
(d) whether the employee is entitled to receive overtime payments, penalty rates or other compensation for, or a level of remuneration that reflects an expectation of, working additional hours;
(e) any notice given by the employer of any request or requirement to work the additional hours;
(f) any notice given by the employee of his or her intention to refuse to work the additional hours;
(g) the usual patterns of work in the industry, or the part of an industry, in which the employee works;
(h) the nature of the employee's role, and the employee's level of responsibility;
(i) whether the additional hours are in accordance with averaging terms included under section 63 in a modern award or enterprise agreement that applies to the employee, or with an averaging arrangement agreed to by the employer and employee under section 64.’
[53] Option 2 would incorporate the factors in s.62(3) in a note, as follows:
Option 2
‘x.3 In determining whether overtime hours are reasonable or unreasonable for the purpose of this clause the factors set out in s.62(3) of the Act are to be taken into account.
NOTE: The factors in s.62(3) are:
(a) any risk to employee health and safety from working the additional hours;
(b) the employee's personal circumstances, including family responsibilities;
(c) the needs of the workplace or enterprise in which the employee is employed;
(d) whether the employee is entitled to receive overtime payments, penalty rates or other compensation for, or a level of remuneration that reflects an expectation of, working additional hours;
(e) any notice given by the employer of any request or requirement to work the additional hours;
(f) any notice given by the employee of his or her intention to refuse to work the additional hours;
(g) the usual patterns of work in the industry, or the part of an industry, in which the employee works;
(h) the nature of the employee's role, and the employee's level of responsibility;
(i) whether the additional hours are in accordance with averaging terms included under section 63 in a modern award or enterprise agreement that applies to the employee, or with an averaging arrangement agreed to by the employer and employee under section 64.
(j) any other relevant matter.’
[54] Option 3 is a clause in the following terms:
Option 3
‘x.3 In determining whether overtime hours are reasonable or unreasonable for the purpose of this clause the factors set out in s.62(3) of the Act are to be taken into account.’
[55] Options 1 and 2 have the benefit of clarity – they clearly sets out the factors to be taken into account without the need to refer to another instrument. Option 3 has the benefit of brevity.
[56] Interested parties are invited to comment on whether options 1, 2 or 3 should be included in the model term. Any submissions in respect of this issue are to be filed by 4pm on Tuesday 2 October 2018. Submissions in reply are to be filed by 4pm on Tuesday 16 October 2018. All submissions are to be sent to amod@fwc.gov.au.
[57] A short oral hearing will be held at 2pm AEDT on Tuesday 23 October 2018 to finalise this issue.
[58] Subject to the finalisation of clause X.3, it is our provisional view that the variation of the awards in Attachment A to insert the model term to replace the existing reasonable overtime provisions is necessary to achieve the modern awards objective. In reaching that view we have taken into account the considerations in s.134(1)(a) to (h). The matters in s.134(1)(a), (b), (c), (d), (e) and (h) are not relevant to the variation of these awards to insert the model term. The variation is consistent with s.134(1)(da), insofar as it refers to the working of additional hours at overtime rates. As to s.145(1)(f), we accept that such a variation will give rise to some, albeit not significant, increase in regulatory burden. As to s.134(1)(g) we are of the view that the variation of these awards in the manner proposed will make them simpler and easier to understand by providing greater consistency between the award term and the NES.
[59] Draft variation determinations will be published after clause X.3 has been finalised. Our provisional view would only be displaced in respect of any particular award if it is demonstrated that there are matters or circumstances particular to that award which compel the conclusion that the achievement of the modern award objective for that award does not necessitate the variation of the award to insert the model term. One such matter may be the interaction between the model term and the existing award provisions relating to part time employees.
PRESIDENT
Printed by authority of the Commonwealth Government Printer
<PR700337>
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;
Hospitality Industry (General) Award 2010, cl 33.1
Joinery and Building Trades Award 2010, cl 30.1;
Manufacturing and Associated Industries and Occupations Award 2010, cl 40.2;
Pharmacy Industry Award 2010, note at cl 26;
Timber Industry Award 2010, cl 30.11.
1 [2017] FWCFB 344 at [205]-[209], [2017] FWCFB 3337 at [3].
4 The SDA made submissions during the plain language re-drafting proceedings in relation to the Retail award but did not make any specific submissions in relation to the December Statement.
5 Ai Group Submission – 22 February 2018; Ai Group Submission – 1 March 2018 (amended submission of 22 February 2018); Ai Group Submission – 9 March 2018.
6 AMWU Submission –16 March 2018.
7 United Voice Submission – 9 March 2018.
8 MEA Submission – 6 March 2018.
9 CFMEU C&G Submission – 19 March 2018.
10 ABI & NSWBC Submission – 19 March 2018.
11 [2017] FWCFB 6884 at [8]; [2018] FWC 1244 at [11].
12 Re Working Hours Case July 2002 (2002) 114 IR 390.
13 Ai Group Submission – 22 February 2018 at paragraphs 11 and 14.
14 Ai Group Submission – 22 February 2018 at paragraph [6]; Ai Group Submission – 9 March 2018.
15 ABI & NSWBC Submission – 20 March 2018 at paragraph 2.5.
16 MEA Submission – 6 March 2018, paragraph 3.
17 MEA Submission – 6 March 2018, paragraph 4.
18 MEA Submission – 6 March 2018, paragraphs 8 - 10.
19 MEA Submission – 6 March 2018, paragraph 15.
20 AMWU Submission –16 March 2018, paragraph 10-11
21 AMWU Submission – 16 March 2018, paragraphs 5 – 6.
22 ABI & NSWBC Submission – 20 March 2018 at paragraph 2.5.
23 ABI & NSWBC Submission – 20 March 2018 at paragraph 2.5.
24 MEA Submission – 6 March 2018, paragraph 17; ABI & NSWBC Submission – 20 March 2018 at paragraph 4.3.
25 ABI & NSWBC Submission – 20 March 2018 at paragraph 2.4 and 4.3.
26 ABI & NSWBC Submission – 20 March 2018 at paragraph 2.4.
27 AMWU Submission – 16 March 2018, paragraph 49 – 64.
28 AMWU Submission – 16 March 2018, paragraph 64.
29 CFMEU C&G Submission – 19 March 2018.
30 UV Submission – 9 March 2018.
31 ABI & NSWBC Submission – 20 March 2018 at paragraph 3.3.
32 AMWU submission – 16 March 2018, paragraph 49.
33 AMWU submission – 16 March 2018, paragraph 64.
34 SDA submission – 4 August 2017 at 142 – 143; SDA submission – 10 November 2017 at 26.
35 SDA Submission – 13 May 2016 at paragraph 37-42.
36 Re Working Hours Case July 2002 (2002) 114 IR 390 at 394.
37 Re Working Hours Case July 2002 (2002) 114 IR 390 at 430 and 394.
38 National Retail Association v Fair Work Commission [2014] FCAFC 118 at [18]; Penalty Rates decision [2017] FWCFB 1001, Chapter 3.