| [2018] FWCFB 6781 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.156 - 4 yearly review of modern awards
4 yearly review of modern awards – Plain language re-drafting – Cleaning Services Award 2010
(AM2016/15)
JUSTICE ROSS, PRESIDENT |
MELBOURNE, 8 NOVEMBER 2018 |
4 yearly review of modern awards – plain language re-drafting – Cleaning Services Award 2010.
[1] This decision concerns the plain language re-drafting of the Cleaning Services Award 2010 (the Cleaning Award).
[2] Conferences were held on 8 November 2017, 22 June 2018 and 27 September 2018 to discuss items raised by parties in relation to the plain language exposure draft of the Cleaning Award (the Cleaning PLED). Statements regarding the outcomes of the conferences were issued on 9 November 2017, 1 21 February 20182 and 29 June 2018.3
[3] A revised Cleaning PLED (the revised PLED) was published on 10 September 2018 4 and a draft list of outstanding items was published on 25 September 2018. Interested parties were invited to review the revised PLED and the list of outstanding issues and advise the Commission whether there were any further issues that require determination. The outstanding items were discussed at the conference on 27 September 2018. A transcript of that Conference is available here.
[4] We now turn to deal with the outstanding issues set out in the document published on 25 September 2018. It is common ground that these issues are to be determined on the submissions previously lodged and those made at the Conference on 27 September 2018. A summary of the parties’ submissions is set out at Attachment A to the Conference agenda published on 25 September 2018.
[5] This decision deals with the outstanding plain language re-drafting items.
[6] Item 3 relates to clause 9 – full-time employment of the revised PLED. The employer organisations raised two issues in relation to clause 9. Firstly, the omission in the PLED of the notion that full-time employees are ongoing and regular, 5 and secondly, the introduction of a requirement that the hours of work arrangements of full-time employees be agreed.6
[7] In a submission of 24 July 2018, Ai Group set out the joint position of itself, United Voice and Business SA. The joint position was reviewed by the plain language expert (the Expert) who suggested a minor amendment to the parties’ joint submission which is set out below:
‘9. A full-time employee is an ongoing employee engaged to work an average of 38 ordinary hours per week.
NOTE: Those hours of work are to be arranged in accordance with clauses 13.1 – clause 13.4.’ 7
[8] Ai Group does not oppose the amendments proposed by the Expert. 8 During the September 2018 conference interested parties confirmed that this item was resolved. We will update clause 9 to reflect the agreed position of the parties with the amendments proposed by the Expert as set out at [7].
[9] Item 4 relates to part-time employment. In its July 2018 submission, Ai Group advised that it pressed its submission in relation to clause 10.1 and noted that the parties agreed to the following wording:
‘10.1 A part-time employee is an employee who is engaged to work for fewer than an average of 38 ordinary hours per week and whose hours of work are reasonably predictable.’ 9
[10] Ai Group also referred to the recent decision in the plain language review of the Clerks—Private Sector Award 2010 in support of their proposed amendment. 10 During the September 2018 conference interested parties confirmed that this item is resolved.
[11] We will update clause 10.1 to reflect the agreed position of the parties.
[12] Item 9 relates to clause 11.3 – casual employment. Ai Group submit that the words ‘for each ordinary hour’ that appear in clause 11.3 of the Revised PLED do not appear in the current award, and that they should be removed.
[13] During the September 2018 conference ABI supported Ai Group’s proposed amendment and United Voice did not oppose the proposed amendment. We have decided to adopt Ai Group’s proposed amendment.
[14] Item 12 relates to clause 12.1 – classifications of the Revised PLED which states:
‘12.1 An employer must classify an employee covered by this award in accordance with Schedule A – Classification Definitions.’
[15] Ai Group submits that the re-drafted clause requires an employer to classify all employees in accordance with the classifications in Schedule A, which it submits is not a requirement of the current award. 11 United Voice disagrees and submits the requirement to classify an employee arises under clause 15 of the current award.12 United Voice submits that without the determination of a classification, employers and employees covered by the award would be unable to identify whether wages are paid at the correct rates.
[16] During the June 2018 conference, the Commission noted the need for an employer to decide and inform the employee about which classification they are to be employed in so that employees are able to determine whether they are being paid correctly under the award. Discussions also took place about the need to make awards simple and easy to understand. 13 Parties were invited to make further submissions and were informed that the issue would be determined on the papers.14 Ai Group did not file further material in support of their claim but sought to rely on earlier submissions.
[17] We have decided to adopt clause 12 as it appears in the revised PLED. We agree with United Voice that parties should be able to identify the correct rates of pay applicable to a particular employee under the award. For this reason it is necessary to include an award obligation requiring the employer to classify the employee in a classification in Schedule A. We would also observe that the obligation in clause 12.1 of the Revised PLED is consistent with the existing requirement in clause 15.1 of the Cleaning Award, which states:
‘Classifications are set out in Schedule D – Classifications. An employee, other than an excluded employee, must be employed in a classification in Schedule D and paid as such.’ (emphasis added)
[18] Item 13 relates to clause 13 – ordinary hours of work. In the June 2018 Statement the Commission invited submissions on the following proposed amendment:
‘13.1 Ordinary hours of work and roster cycles—full-time employees
(a) Ordinary hours may be worked on any day of the week
(b) Full-time employees work an average of 38 ordinary hours per week in one of the following ways:
(i) working 5 days of 7.6 hours each per week; or
(ii) working 152 hours per 4 week cycle in workplaces at which employees work on a rostered day off basis in accordance with clause 13.2; or
(iii) working 19 days of 8 hours each per month; or
(iv) working up to 10 hours on any day or days by agreement between the employer and the majority of employees concerned (therefore enabling a weekday to be taken off more frequently than would otherwise apply).
13.2 An employee who works on a rostered day off basis over a 4 week cycle is entitled to up to 12 rostered days off over each 12 month period.
13.3 Except in an emergency and subject to clause 30.1 consultation about changes to rosters or hours of work, an arrangement agreed under clause 13.2(b) may only be changed on giving a minimum of one week’s notice.
13.4 An arrangement agreed under clause 13.1(a) and in operation cannot be changed within the course of a cycle.’ 15
[19] United Voice maintains their position that clauses 24.1(e) and (f) of the Cleaning Award require that ordinary hours of work be determined by agreement between the employer and the employee and suggest the following amendment to clause 13.3 of the Commission’s proposal at [18] to resolve their concerns:
‘13.3 Except in an emergency and subject to clause 30.1 consultation about changes to rosters or hours of work, an arrangement agreed by the employer and employee under clause 13.2(b) may only be changed on giving a minimum of one week’s notice.’ 16
[20] During the September 2018 conference Ai Group and ABI indicated that they were not opposed to the change proposed by United Voice, but contested United Voice’s interpretation of clauses 24.1(e) and (f) of the Cleaning Award. We have decided to adopt the amendment to clause 13.3 proposed by United Voice, we do not propose to comment on the differing interpretations of clauses 24.1(e) and (f) of the current award.
[21] Ai Group and United Voice submit that the cross reference in clause 13.4 should be to 13.1(b). 17 This cross-reference will be amended.
[22] Items 18 and 19 relate to clause 14 – Breaks.
[23] Item 18 relates to an ABI submission. Following the November 2017 conference, the Expert reviewed clause 18 and a proposed amendment was published as an attachment to the Revised agenda and list of outstanding items of 19 June 2018. 18 The Expert’s proposed amendments were applied to clause 14 in the revised PLED. Interested parties were invited to review the revised PLED and advise the Commission if there were any further issues that require determination.
[24] During the September 2018 conference the parties confirmed that this item was resolved on the basis of the Expert’s proposed amendment.
[25] Following the June 2018 conference the Commission proposed a solution to item 19 by deleting the word ‘rostered’ from clause 14.3(a), and by amending clause 14.4(c) as follows:
‘14.4(c) The employee must not suffer any loss of pay for ordinary working time hours not worked during the period of a release from duty mentioned in paragraph (b).’ 19
[26] Any party opposing the proposal was invited to make further submissions. Ai Group did not oppose the variation proposed by the Commission. 20 No other party made a submission. During the September 2018 conference interested parties confirmed that this item is resolved. We will adopt the amendment at [25].
[27] Item 25 relates to clause 20.1. United Voice initially sought to retain the wording of clause 17 of the current award on the basis that is clearer and more direct than clause 20.1 of the revised PLED. 21 Ai Group disagreed and submits the wording of clause 20.2 is sufficiently clear.22
[28] During the September 2018 conference United Voice indicated it did not wish to press this item. We will adopt clause 20.1 as it appears in the revised PLED.
[29] Item 32 relates to clause 22.6 (call back for non-cleaning purposes). Ai Group sought an amendment which it submitted reflected the current award entitlements. United Voice disagreed with Ai Group’s proposed amendment and submitted the revised PLED accurately reflects the current award entitlement.
[30] After the June conference this clause was referred to the plain language Expert. The Expert proposed the following amendment to clause 23.6 which was included in the draft list of outstanding items of 25 September 2018 as follows:
(a) Clause 23.6 applies to an employee who is required by the employer to return to work after completing their ordinary hours to perform administrative duties or for the purposes of a disciplinary or counselling interview.
(b) Clause 23.6 applies:
(i) whether the employee is required to attend at the employer’s premises or at the premises of a client of the employer; and
(ii) irrespective of whether the employee is notified of the requirement before or after leaving the workplace.
(c) The employer must pay the employee at the rate of pay and for the minimum number of hours as shown in the following table.
Table X: Rates and hours of pay when employee called back for administrative duties or for a disciplinary or counselling interview.
Day on which the employee’s attendance is required |
Rate of pay |
Minimum number of hours paid for |
Monday to Friday |
Ordinary hourly rate plus any applicable shift penalty |
2 hours |
Saturday |
Appropriate Saturday rate |
3 hours |
Sunday |
Appropriate Sunday rate |
4 hours |
(c) The employer must pay the employee at the rate of pay otherwise applicable (including overtime and penalty rates) for the minimum number of hours specified in paragraph 23.6(d).
(d) The minimum number of hours is:
(i) if attendance is required on a Monday to Friday; and
(ii) if attendance is required on a Saturday; and
(iii) if attendance is required on a Sunday.
[31] During the September 2018 conference Ai Group, ABI and United Voice did not oppose the Expert’s proposed amendment. We have decided to adopt the Expert’s amendment at [30].
[32] Following the June 2018 conference, United Voice and Ai Group agreed to hold further discussions in relation to this item and were invited to file a joint report on the outcome of further discussions. Parties were also provided the opportunity to reply to the joint report.
[33] United Voice and Ai Group reported on the outcome of their discussions as follows:
‘3. United Voice and Ai Group are in agreement on the interpretation of how annual leave is paid when taken in accordance with clause 29.3 and clause 29.4 of the Cleaning Award. However, the parties have not been able to reach agreement on the appropriate form of words to reflect this agreement in the PLED.
4. The parties are in dispute regarding how the PLED should reflect how annual leave is paid on termination in accordance with clause 29.7 Payment of accrued annual leave on termination.
5. United Voice will file a submission in support of its position on 13 August 2018. Ai Group will file a submission in reply by 24 August 2018. Such submissions will address the respective organisations’ positions in relation to clause 25 of the PLED.’
[34] Subclauses 29.3 and 29.4 of the Cleaning Award state:
29.3 Definition of ordinary pay
For the purposes of payment of annual leave, an employee’s ordinary pay means remuneration for the employee’s normal weekly number of hours of work calculated at the ordinary time rate of pay and in addition will include:
(a) leading hand allowance;
(b) first aid allowance;
(c) penalty rates paid for shiftwork or rostered ordinary hours of work on Saturday and/or Sunday; and
(d) part-time allowance for part-time employees working shiftwork (Monday to Friday) or rostered ordinary hours on a Saturday and/or a Sunday.
29.4 Payment of annual leave
(a) The terms of the NES prescribe the basis for payment for annual leave, including payment for untaken leave upon the termination of employment. In addition to the terms of the NES, an employer is required to pay an additional leave loading of 17.5% calculated on an employee’s ordinary time rate of pay.
(b) Provided that where the employee would have received a saved or transitional rate of pay, or shift, weekend (Saturday or Sunday), or public holiday penalty payments according to the roster or projected roster, had the employee not been on leave during the relevant period, and such saved, transitional or penalty payments would have entitled to employee to a greater amount than the loading of 17.5% on the rates set out in clause 16—Minimum wages of this award, then such rates will be paid instead of the 17.5% loading.
[35] Clause 24.3 of the revised PLED is in the following terms:
24.3 Payment for annual leave
(a) For the purpose of calculating the amount that the employer is required by section 90 of the Act to pay an employee for a period of paid annual leave, the employee’s base rate of pay for the employee’s ordinary hours of work in the period must be taken to include any of the following that are payable to the employee:
(i) a leading hand allowance; and
(ii) a first aid allowance; and
(iii) penalty rates paid for shiftwork or rostered ordinary hours of work on a Saturday or Sunday; and
(iv) a part-time allowance for part-time employees working shiftwork (Monday to Friday) or rostered ordinary hours on a Saturday or a Sunday.
(b) The employer must pay an employee for the employee’s ordinary hours of work in a period of paid annual leave an additional payment that is the greater of the following amounts:
(i) 17.5% of the employee’s ordinary hourly rate (that is the employee’s rate of pay for ordinary hours of work not including any shift, weekend or public holiday penalties);
(ii) the shift, weekend or public holiday penalty rates that the employee would have received for ordinary hours of work for which the employee would have been rostered in the period had the employee not been on leave.
(c) the employer must pay an employee for a period of untaken paid annual leave when the employment of the employee ends, a loading of 17.5% calculated on the employee’s base rate of pay as defined in paragraph (a).
(d) Clause 24.3 also applies in calculating the amount payable to an employee by the employer for a period of untaken paid annual leave when the employment of the employee ends.
[36] Section 90 of the NES deals with payment for annual leave, as follows:
(1) If, in accordance with this Division, an employee takes a period of paid annual leave, the employer must pay the employee at the employee’s base rate of pay for the employee’s ordinary hours of work in the period.
(2) If, when the employment of an employee ends, the employee has a period of untaken paid annual leave, the employer must pay the employee the amount that would have been payable to the employee had the employee taken that period of leave.
[37] The meaning of ‘base rate of pay’ is set out in s.16 of the Act:
16 Meaning of base rate of pay
General meaning
(1) The base rate of pay of a national system employee is the rate of pay payable to the employee for his or her ordinary hours of work, but not including any of the following:
(a) incentive-based payments and bonuses;
(b) loadings;
(c) monetary allowances;
(d) overtime or penalty rates;
(e) any other separately identifiable amounts.
Meaning for pieceworkers in relation to entitlements under National Employment Standards
(2) Despite subsection (1), if one of the following paragraphs applies to a national system employee who is a pieceworker, the employee’s base rate of pay, in relation to entitlements under the National Employment Standards, is the base rate of pay referred to in that paragraph:
(a) a modern award applies to the employee and specifies the employee’s base rate of pay for the purposes of the National Employment Standards;
(b) an enterprise agreement applies to the employee and specifies the employee’s base rate of pay for the purposes of the National Employment Standards;
(c) the employee is an award/agreement free employee, and the regulations prescribe, or provide for the determination of, the employee’s base rate of pay for the purposes of the National Employment Standards.
(3) The regulations may prescribe, or provide for the determination of, the base rate of pay, for the purpose of section 206, of an employee who is a pieceworker. If the regulations do so, the employee’s base rate of pay, for the purpose of that section, is as prescribed by, or determined in accordance with, the regulations.
Note: Section 206 deals with an employee’s base rate of pay under an enterprise agreement.
[38] For present purposes no relevant regulations have been made pursuant to s.16(3).
[39] Subclauses 29.3 and 29.4 of the Cleaning Award and clause 24.3 of the revised PLED are modern award terms that specify an employee’s base rate of pay for the purposes of the NES. Hence these award terms define the base rate of pay for employees to whom the award applies (see s.16(2)(a)).
[40] Ai Group submits that the terms of clauses 29.3 and 29.4 of the Cleaning Award are ‘problematic’, noting that:
• clause 29.3 purports to define the term ‘ordinary pay’ for the purpose of payment of annual leave but clause 29.4 (which deals with the payment of annual leave) does not actually refer to the term ‘ordinary pay’; and
• read together, clauses 29.4(a) and 29.4(b), imply that penalties for shiftwork and ordinary hours worked on a weekend could be paid under both clause 29(3)(c) and 29.4(b) in connection with a single period of annual leave where the relevant penalties under clause 29.4(b) are higher than the 17.5% annual leave loading.
[41] In Ai Group’s submission the current award provisions result in ‘double dipping’ and are not justifiable in the context of a fair and relevant minimum safety net of terms and conditions. Ai Group submits that the revised PLED clarifies some of these matters but also gives rise to the potential for ‘double dipping’.
[42] The alleged ‘double dipping’ arises as follows. Clause 25.3(a)(iii) of the revised PLED includes ‘penalty rates paid for shiftwork or rostered ordinary hours of work on a Saturday or Sunday’ in the base rate of pay to be used to calculate the amount that an employer is required to pay an employee for a period of annual leave by s. 90 of the Act. However, clause 25.3(b)(ii) requires an employer to pay an employee for the employee’s ordinary hours of work in a period of paid annual leave, the ‘shift, weekend or public holiday penalty rates that the employee would have received for ordinary hours of work for which the employee would have been rostered in the period had the employee not been on leave’ where this amount would be greater than the 17.5% annual leave loading.
[43] Put simply, because clause 25.3(b) is worded so as to provide for a payment that is ‘an additional payment’ it appears to suggest that employees get both the payments under clauses 25.3(a) and 25.3(b). It is on this basis that Ai Group submits that the revised PLED has not resolved the issue of ‘double dipping’ with regard to payment of shift and weekend penalty rates during a period of annual leave.
[44] United Voice submits that clause 24.3 of the revised PLED accurately reflects clauses 29.3 and 29.4 of the current award. 23
[45] The Ai Group outlined their understanding of the issue in contest as follows:
‘17. The submissions filed by United Voice on 13 August 2018 do not address payment for annual leave that is taken in any detail. Nonetheless, Ai Group understands that United Voice does not believe that the current award entitles an employee to be paid the relevant shift, weekend or public holiday penalties twice in relation to a period of leave that is taken. Moreover, we understand that it is common ground between the parties that the Award should only provide that an employee receives either the relevant penalties or the 17.5% loading. As such, we understand that the contest between the parties relates to whether the drafting of PLED properly reflects this position. Ai Group contend that the proposed provisions require amendment.’ 24
[46] During the September 2018 conference United Voice agreed with Ai Group’s characterisation of the disputed issue.
[47] Ai Group proposed the following amendment in order to address the issue that arises regarding double payment of shift and ordinary hours of work penalties, and annual leave loading:
‘Ai Group’s Proposed Amendment to the PLED
18. Ai Group proposes rectifying the issue of double dipping with regard to the penalties payable for shift work and ordinary hours worked on a weekend as well as the inadvertent provision for payment of both annual leave loading as well as these rates, during a period of annual leave, by deleting cl. 24.3(a)(iii) of the revised PLED as follows:
24.3 Payment for annual leave
(a) For the purpose of calculating the amount that the employer is required by section 90 of the Act to pay an employee for a period of paid annual leave, the employee’s base rate of pay for the employee’s ordinary hours of work in the period must be taken to include any of the following that are payable to the employee:
(i) a leading hand allowance; and
(ii) a first aid allowance; and
(iii) penalty rates paid for shiftwork or rostered ordinary hours of work on a Saturday or Sunday; and
(iv) (iii) a part-time allowance for part-time employees working shiftwork (Monday to Friday) or rostered ordinary hours on a Saturday or a Sunday.
19. This suggested amendment preserves the entitlement to the rates listed in cl.24.3(b)(ii) where these are collectively higher than the 17.5% annual leave loading payable under cl. 24.3(b)(i).’ 25
[48] During the September 2018 conference ABI supported Ai Group’s proposed deletion of clause 24.3(a)(iii). United Voice opposed the proposed deletion of 24.3(a)(iii) but stated they were willing to consider amendment to clause 24.3(b) to resolve this item.
[49] The payment of annual leave on termination is also an issue in dispute. This issue is dealt with in clause 29.7 of the Cleaning Award:
‘29.7 Payment of accrued annual leave on termination
Where an employee is entitled to payment of untaken annual leave on termination of employment under the terms of the NES, the employer must also pay the employee a loading of 17.5% calculated on an employee’s ordinary time rate of pay.’
[50] Clause 24.3(c) of the revised PLED deals with this issue, as follows:
‘Clause 24.3 also applies in calculating the amount payable to an employee by the employer for a period of untaken paid annual leave when the employment of the employee ends.’
[51] The parties are in dispute about how the PLED should reflect how annual leave is paid on termination, in accordance with clause 29.7 of the Cleaning Award.
[52] In respect of the annual leave on termination issue, United Voice relied on their earlier submission in which it supports retaining the current award clause. 26
[53] Ai Group notes that the NES now deals with payment of annual leave on termination at s.90(2) of the Act and proposed deleting clause 25.4(c) of the revised PLED to avoid a circumstance arising where the award delivers an entitlement that is lower than the NES. 27
[54] It appears from the foregoing that it is common ground between the parties that the revised PLED should only provide that an employee receives either the relevant penalties (ie penalty rates for shiftwork or weekend work) or the 17.5% loading, but not both. Further, United Voice does not believe that the current award entitles an employee to be paid the relevant shift, weekend or public holiday payments twice in relation to a period of leave.
[55] It is our provisional view that, absent some special circumstances pertaining to this award, we would amend clause 24.3 of the PLED by deleting clause 24.3(a)(iii), as proposed by Ai Group. The proposed variation is consistent with the common position espoused by the parties. In taking annual leave an employee would receive the greater of either the relevant penalties (by virtue of clause 24.3(b)(ii)) or the 17.5% leave loading (by virtue of clause 24.3(a)), but not both.
[56] It is also our provisional view that clause 24.3(c) of the revised PLED be deleted. If clause 24.3(c) was retained it may result in an employee receiving less than would have been payable to the employee had the employee taken that leave. For example, if the employee’s shift, weekend or public holiday penalty rates they would have received for ordinary hours of work for which the employee would have been rostered in the period had they not been on leave are greater than 17.5% of the employee’s ordinary hourly rate, then the payment on termination under clause 24.3(c) would be less than they would have received had they taken the leave. Such an outcome would be contrary to s.90(2) and contravene s.55. In such circumstances the relevant award term – clause 24.3(c) – would have no effect (s.56).
[57] We deal later with the next steps in finalising these issues.
[58] Items 36 and 37 relate to clause 24.4 – annual leave temporary close down. The Commission has foreshadowed that these issues will be considered by the plain language Full Bench as a separate issue with close down provisions in other awards. However, during the September 2018 conference the parties indicated a preference that items 36 and 37 be dealt with as a part of these proceedings. The parties’ submissions were referred to the Expert for re-drafting following the September conference. The Expert has proposed the following variation to address the parties concerns:
‘24.4 Temporary close-down
(a) An employer may require an employee to take annual leave if the employee works for the employer in connection with a site operated by a client of the employer and:
(i) the client plans to temporarily close-down, or significantly reduce, all, or part of, its operations at that site (known as a ‘temporary close-down’); and
(ii) the temporary close-down is for the purposes of the client’s employees taking annual leave.
(b) Employer to notify employee
(i) If an employer requires an employee to take annual leave under clause (a), then the employer must give that employee one months’ notice that they are to take annual leave for the temporary close-down.
(ii) However, if the employer engages an employee during the notice period, then the employer must give that employee notice of the temporary close-down when the employer engages the employee.
(c) Length limit: four weeks plus public holidays
The close-down period under clause (a) may be for up to four weeks plus public holidays.
(d) Public holidays during a temporary close-down
If the close-down period includes any public holiday, then:
(i) that public holiday does not count as a day of annual leave, or of leave without pay; and
(ii) the employer is to pay the employee for that day in the way this Award requires.
(e) Paid leave and leave without pay
If an employee is to take annual leave due to a temporary close-down under clause (a), then:
(i) if the employee has enough annual leave to cover the full close-down period, then they must take paid annual leave for the full close-down period;
(ii) if the employee has some annual leave but not enough to cover the full close-down period, then they must first take all of the paid annual leave they have and then take leave without pay for the rest of the close-down period — also see clause (f); or
(iii) if the employee has no annual leave, then they must take leave without pay for the full close-down period — also see clause (f).
(f) Alternative to leave without pay
If it is practicable for the employer to arrange work at another site for an employee who would otherwise be on leave without pay under clause (f)(ii) or (iii), then the employer must arrange that work.’
[59] We deal later with the next steps in finalising this issue.
[60] Item 40 relates to clause 32 – Consultation about changes of contract. United Voice opposed the removal of the words ‘including a relevant union’ on the basis that this removes the direct acknowledgement that a union may be involved in the process for consultation about change of contract. 28
[61] During the September 2018 conference, the Ai Group did not oppose the re-insertion of the words ‘including a relevant union’ on the basis that United Voice’s proposal is to simply reinsert words that exist in the current award. ABI did not oppose the proposed change. We have decided to insert the words ‘including a relevant union’ in clause 32.8.
[62] The following cross-referencing errors were also identified by the Ai Group: 29
• Clause 13.3 of the Exposure Draft should refer to ‘clause 13.1(b)’ instead of ‘clause 1.1(a)’.
• The second clause 17.6(a) should be renumbered ‘clause 17.6(b)’.
• The reference to ‘clause 17’ in Note 2 under clause 17.6 should be replaced with ‘clause 17.6’.
[63] During the September 2018 conference, interested parties confirmed that these items are resolved. The cross-referencing errors will be corrected.
[64] A final PLED reflecting the changes in this decision and recent variations to the Cleaning Award will be published shortly.
[65] Interested parties are invited to make submissions in relation to our provisional views at paragraphs [55] and [56] and the Expert’s proposed amendment (see [58]) by 4.00 pm, 23 November 2018. Reply submissions are due by 4.00 pm, 30 November 2018.
[66] All material should be sent to amod@fwc.gov.au. These matters will be decided on the papers absent any request for a further hearing.
[67] The process outlined above will finalise the plain language redrafting of the Cleaning Award subject to the determination of any substantive claims to vary the award and the finalisation of a number of common issues affecting all, or most, modern awards.
PRESIDENT
Printed by authority of the Commonwealth Government Printer
<PR702007>
4 Revised Cleaning PLED, 10 September 2018.
5 Ai Group submission, 12 October 2017, paragraphs 5 – 7.
6 Ai Group submission, 12 October 2017, paragraphs 5 – 7, Business SA submission, 13 October 2017, paragraph 2.
7 Draft list of outstanding items, 10 September 2018; Ai Group submission, 24 July 2018, paragraph 3.
8 Ai Group submission, 21 September 2018, paragraph 5.
9 Ai Group submission, 24 July 2018, paragraph 8.
10 Ai Group submission, 21 September 2018, paragraphs 6 – 8.
11 Ai Group submission, 12 October 2017, paragraph 8; Ai Group submission, 24 July 2018, paragraph 13.
12 United Voice submission, 20 October 2017, paragraph 14 – 16; United Voice submission, 27 July 2018, paragraphs 2 – 12.
13 Transcript, 22 June 2018, PN 170, 174.
14 Transcript, 22 June 2018, PN 179.
15 [2018] FWC 3842 at [33].
16 United Voice submission, 13 July 2017, page 1; Ai Group submission, 21 September 2018, paragraph 14.
17 Ai Group submission, 24 July 2018, paragraph 14; United Voice submission, 13 July 2017, page 1.
18 Revised agenda and list of outstanding items, 19 June 2018.
19 [2018] FWC 3842 at [13].
20 Ai Group submission, 6 July 2018, page 1.
21 United Voice submission, 6 October 2017, paragraphs 24 – 27.
22 Ai Group submission, 20 October 2017, paragraph 15.
23 United Voice submission, 13 August 2018, paragraph 4.
24 Ai Group submission, 24 August 2018, paragraph 17.
25 Ai Group submission, 24 August 2018, paragraphs 18 – 19.
26 United Voice submission, 20 October 2017, paragraph 33.
27 Ai Group submission, 24 August 2018, paragraph 27.
28 United Voice submission, 6 October 2017, paragraphs 52 – 55.
29 Ai Group submission, 21 September 2018, paragraph 14.