[2018] FWCFB 6849

The attached document replaces the document previously issued with the above code on 13 November 2018.

Typographical error at [16] corrected: ‘Alternation’ corrected to ‘Alteration’.

Associate to Justice Ross, President

Dated 16 November 2018

[2018] FWCFB 6849

FAIR WORK COMMISSION

STATEMENT

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

4 yearly review of modern awards – plain language re-drafting – facilitative provisions altering spread of hours
(AM2016/15)

JUSTICE ROSS, PRESIDENT
VICE PRESIDENT HATCHER
COMMISSIONER HUNT

MELBOURNE, 13 NOVEMBER 2018

4 yearly review of modern awards – plain language re-drafting – spread of hours clauses – remove ambiguity

[1] Section 156 of the Act requires the Fair Work Commission (the Commission) to review all modern awards every four years (the Review).

[2] This statement concerns a possible ambiguity that has been identified in a facilitative clause in a number of awards relating to the alteration to the span of ordinary hours by up to one hour at either end of the spread (the Alteration clause).

[3] An example of the Alteration clause is clause 30.2 in the Food, Beverage and Tobacco Manufacturing Award 2010:

‘30.2 – Ordinary hours of work – day workers

…

(c) The ordinary hours of work are to be worked continuously, except for meal breaks, at the discretion of the employer between 6.00 am and 6.00 pm. The spread of hours (6.00 am to 6.00 pm) may be altered by up to one hour at either end of the spread, by agreement between an employer and the majority of employees concerned or, in appropriate circumstances, between the employer and an individual employee. (emphasis added)’

[4] The use of the word ‘either’ in the Alteration clause can be interpreted as allowing for the spread of hours (6am to 6pm) to be altered in different ways, for example:

Possible interpretation	Application (example)	Total spread of hours
Spread may be altered by 1 hour at both ends to shift entire spread	7am to 7pm	12 hours
	5am to 5pm	12 hours
Spread may be altered by up to 1 hour at only one end to increase spread by 1 hour	6am to 7pm	13 hours
Spread may be altered by 1 hour at both ends to increase spread by 2 hours	5am to 7pm	14 hours

[5] The Fair Work Ombudsman (FWO) identified the above issue in relation to the Alteration clause in 7 awards (including Food, Beverage and Tobacco Manufacturing) in correspondence to the Commission in March 2015. In 2016 a note was inserted into the exposure drafts identified by FWO referring to the ambiguity in the clause and asking parties for submissions. A summary of the submissions received is at Attachment A.

[6] During the award stage of the Review, the AMWU submitted that the span of hours clause in the Pharmaceutical Industry Award 2010 was ambiguous as the word ‘either’ could be interpreted as allowing the spread of hours to be altered by up to one hour at only one end of the span, or one hour at both ends of the span. They proposed an amendment to the clause to insert the words ‘subject to maintaining a 9.5 hours spread’, so it would read as follows:

‘Where the employer and the majority of employees in the affected plant, work section or sections agree, subject to maintaining a 9.5 hours spread, the spread of hours may be altered by up to one hour at either end of the spread.’

[7] The Ai Group opposed this variation and submitted that it was a substantive change. The Ai Group submitted that this issue would arise in a number of awards. The Full Bench decided to defer consideration of this issue until the conclusion of the award stage of the Review.

[8] The span of hours ambiguity issue also arose in the Group 2 decision of 10 October 2016 1 (the October 2016 decision), in relation to the Seafood Processing Award 2010. The Full Bench in the October 2016 decision decided to defer consideration of the issue until the conclusion of the award stage of the review noting that:

[9] The Full Bench in the October 2016 decision noted:

‘We would simply observe at this stage that the word “either” as used in clause 8.2(c) and 13.4 is ambiguous. According to its dictionary definition, it may mean one or both of two possibilities, depending on the context. For example the definition in the Macquarie on-line dictionary is as follows:

“adjective 1. one or the other of two: you may sit at either end of the table. 2. each of the two; the one and the other: there are trees on either side of the river. –pronoun 3. one or the other; not both: take either; either is correct.”

Interested parties should address the issue of ambiguity when the matter arises for final consideration at the conclusion of the Award stage of the Review.’ 2

[10] In the Group 3 award stage decision of 13 March 2018 in relation to the Business Equipment Award 2010, the Full Bench determined that a separate Full Bench would be constituted to deal with the span of hours ambiguity as it had implications for other awards. 3 Further, the AWU 4 and the AMWU 5 submitted that the Sugar Industry Award 2010 was one of a group of awards containing similar ambiguous phraseology in relation to the alteration of the spread of hours which should be dealt with at the conclusion of the award stage of the Review. The Full Bench held that the issue would be dealt with at the conclusion of the award stage of the Review 6.

Award simplification proceedings

[11] During the Award Simplification proceedings, Senior Deputy President Marsh considered whether a variation of the Alteration Clause should be included in a new industry award arising from a review of the Metal Industry Award 1984 and the Graphic Arts – General – Interim Award 1995.

[12] The decision in relation to the Metal Industry Award 1984 7, does not assist with the intended operation of the clause. However, the Alteration Clause was contemplated in more detail in the Graphic Arts – General – Interim Award 19958 decision. At paragraph [147] of that decision, Senior Deputy President Marsh found that the Alteration Clause permits an additional hour to be worked at ordinary time without incurring the penalty or overtime rate, suggesting a narrow interpretation of the clause should be adopted. This interpretation is supported by submissions of employer parties in the matter.

[13] Senior Deputy President Marsh noted that she took into account the following submissions of Mr M Brown (Assistant National Secretary PIAA—Printing Division) stated on transcript:

‘We would ask your Honour to consider for day workers a majority agreement to extend the spread of hours one hour at either one or the other end of a day shift – this provides for a 12 hours spread… (emphasis added). 9

[14] Similarly, Counsel for Ai Group specifically identified the Alteration Clause as one that permits ‘…the spread of hours over which shifts could be worked to be varied by up to 1 hour, a clearly defined range’. 10

[15] Senior Deputy President Marsh concluded:

‘[142] The requirement to pay a morning shift penalty for an entire shift when an extra hour’s work is required is in my view a restriction under Item 51(6)(c) because an efficient allocation of work as access to an early start is inhibited by the obligation to pay the penalty. The same effect results to a lesser extent from the overtime requirement. Productivity may be restricted or hindered. In circumstances where an employee wants to start early fairness to employees is not affected. The evidence demonstrates that early starts do occur by information agreement.

[143] A wide cross section of awards provide for a facilitative clause under which the spread of hours may be altered by up to one hour at either end of the shift [eg., Prints Q6887, Q5897, R0614, R1336, Q0444, N2108, Q5149, Q5884, R1277].

[144] I have given careful consideration to the competing considerations before me and I repeat the conclusion I reached in Metals:

"I adopt the reasoning in 6.1.1(b) in relation to the potential impact of the additional flexibility sought by MTIA. It may well be that access to a more flexible span of ordinary hours meets the needs of particular employees while achieving greater workplace flexibility. The appropriate safeguards should ensure arrangements are genuinely agreed to by an employee or the majority of employees." [Print P9311 p50]

[145] In respect of 6.1.1(b) I stated:

"Under the MTIA provision an employer cannot direct an employee to work ordinary hours on a Saturday or Sunday ie., it is a facilitative provision requiring the agreement of the majority of employees or the individual employee. Having regard to the terms of clause 6.1.1(e) and (f) which provide for penalty rates for Saturday and Sunday I am satisfied that a proper balance can be achieved between workplace flexibility and employee responsibilities and priorities in a way which ensures unfairness to an employee does not result. The provision, which will be subject to the safeguard in clause 2.2.2 (Facilitation by Individual Agreement) and clause 2.2.3 (Facilitation by Majority Agreement), will be inserted into the award..."’ [p50]

[146] On the evidence before me in this matter I am satisfied that a case has been made out pursuant to Item 51(6)(c) to introduce a facilitative clause to vary the span of hours of day workers.

[147] I make it clear that the introduction of a facilitative clause as sought by the employers falls within the scope of facilitation decided in ASD. The level of the shift penalty and the overtime rates is not reduced - the facilitation permits an additional hour to be worked at ordinary time without incurring the penalty or overtime rate but only on an agreed basis.’

Next steps

[16] Alteration clauses in substantially the same terms appear in 11 modern awards (see Attachment B).

[17] The Commission has previously said that this issue will be determined at the conclusion of the award stage of the Review. This part of the Review is now close to finalisation. Accordingly, the President has referred this matter to the plain language Full Bench for determination.

[18] Interested parties are invited to make submissions in relation to the span of hours issue as well as the list of awards at Attachment B. Submissions are due by 4pm on Friday 30 November 2018.

[19] Submissions in reply must be filed by 4pm on Friday 14 December 2018.

[20] All material should be sent to amod@fwc.gov.au.

[21] This matter will be determined on the papers unless any party requests an oral hearing by 30 November 2018.

PRESIDENT

Printed by authority of the Commonwealth Government Printer

Attachment A


Award	Clause(s) Current Award	Clause(s) Exposure Draft	Party	Summary of view
Aquaculture Industry Award 2010	20.2	13.2	AWU	The AWU submit that the spread of hours can be shifted rather than extended at both ends. The intent of the provision is for the spread of hours to be shifted e.g. it can be varied by agreement to be 4am to 6pm or 6am to 8pm.
Aquaculture Industry Award 2010	20.2	13.2	Business SA	Business SA submit that the clause provides for expansion of hours ‘at either end’, which means each end of the spread of ordinary hours can be expanded
Business Equipment Award 2010	27.2(a)	7.2(a)(i)	FWO	In correspondence to the Commission, the FWO identifies the ambiguity in the award but does not provide any substantive submissions on the issue.
Business Equipment Award 2010	27.2(a)	7.2(a)(i)	Business SA	Business SA submit that the intent of the clause is to provide flexibility in the workplace. The phase “at either end” is not restricted. If the intent of the clause was to provide a restriction to one end of the span, the wording of the clause would read “altered by only one hour in total, at either end.” Without this clarification, it is Business SA’s view that the intent is for the clause to be varied at both ends.
			ABI	ABI submit that the use of the words "at either end" demonstrates that the clause is intended to allow for the span of hours to be increased at both ends (i.e. for one hour prior to 7.00 am and one hour after 7.00 pm).
			Ai Group	Ai Group submit that the provision allows for the spread of hours to be altered by up to one hour at one or both ends of the spread simultaneously.
Clerks – Private Sector Award 2010	25.2	8.2(b)	FWO	In correspondence to the Commission, the FWO identifies the ambiguity in the award but does not provide any substantive submissions on the issue.
			Business SA	Business SA submit that the intent of the clause is to provide flexibility in the workplace. The phase “at either end” is not restricted. If the intent of the clause was to provide a restriction to one end of the span, the wording of the clause would read “altered by only one hour in total, at either end.” Without this clarification, it is Business SA’s view that the intent is for the clause to be varied at both ends.
			ABI	ABI submit that the use of the words "at either end" demonstrates that the clause is intended to allow for the span of hours to be increased at both ends (i.e. for one hour prior to 7.00 am and one hour after 7.00 pm).
Contract Call Centres Award 2010	24.8	8.7(a)(i)	FWO	In correspondence to the Commission, the FWO identified the ambiguity in the award but did not provide any substantive submissions on the issue.
			CPSU	The CPSU submits that the alternative interpretations identified by the FWO are not entirely accurate. In the union’s opinion, the clause should be seen to have various applications. The provision does not allow an alteration of the spread of hours from 12 to 14 hours by altering the spread of hours by an hour at both the beginning and end of the spread of hours. Emphasis needs to be placed upon the limitation contained in the subclause that the alteration of the hours should be ‘up to one hour’. Therefore, the provision allows for the spread of hours to be increased (or decreased) by no more than one hour, or to be shifted in its entirety while retaining a 12 hour spread. The CPSU notes that if modification of this subclause is required, it would support an amendment which said the alteration of hours could not make the spread of hours greater than 13 hours or less than 11 hours, avoiding the possibility of the spread being increased to 14 hours.
			Note: The issue has been identified in the Exposure Draft, and parties have been asked to provide submissions on this issue by 4 April 2016, and submissions in reply by 5 May 2016.
Food, Beverage and Tobacco Manufacturing Award 2010	30.2	N/A (not yet drafted)	FWO	In correspondence to the Commission, the FWO identifies the ambiguity in the award but does not provide any substantive submissions on the issue.
Hydrocarbons Industry (Upstream) Award 2010 *The issue was resolved by the Full Bench in [2015] FWCFB 7236 . (see below section 5 for further detail.)	22.2(b)	8.2(b)	AMWU	In transcript at PN1017, the AMWU raises concern that the wording of clause 8.2(b) in the exposure draft does not provide an adequate framework within which the spread of hours can be altered. In correspondence to the Commission dated 24 November 2014, the union argues that the award may (incorrectly) be interpreted as allowing for a spread of ordinary hours greater than the 12 ordinary hours per day specified in clause 8.2(a). It argues that the clause should be confined to an alteration of the spread of hours while retaining the 12 hour spread, and proposes that the ordinary hours be limited to an alteration of the spread of hours by one hour at either end. Accordingly, the AMWU suggests the following wording be inserted into clause 8.2(b): “by one hour at either end. However, the spread of hours cannot be altered so that there would be more than 12 ordinary hours per day”. 11 On 15 May 2015, the AMWU provides detailed submissions in support of its proposed variation. The organisation argues that the variation proposed is necessary to protect the integrity of the afternoon and night shift penalties – in that the variation removes the potential interpretation that the spread of hours can be altered (by agreement) up to the boundaries of where an employee would become a shiftworker. The AMWU also argues that the variation is required to address the identified ambiguity (multiple possible interpretations) and provide clarity regarding the intention of the provision. The union refers to the modern award objectives in support of its proposal.
			AWU	In correspondence to the Commission, the AWU confirms its support for the variation proposed by the AMWU and reiterates their point that it is inappropriate for a modern award to provide that the spread of day work ordinary hours can be varied without restriction on an individual basis.
			Ai Group	In detailed reply submissions, the Ai Group addresses the points raised in the AMWU submissions dated 15 May 2015. The organisation submits that the application of clause 22.2(b) does not give rise to an anomaly. It suggests that the AMWU have confused certain concepts, such as shiftworkers as opposed to employees working flexibly, and that the union has failed to satisfy the relevant statutory criteria required to establish that a significant variation is necessary to ensure the award achieves the modern award objectives. Further, the Ai Group argues that the provision is not ambiguous. The Ai Group submits that subclause 22.2(b) is facilitative in nature, as it enables employees and employers to reach agreement to alter the spread of hours set in clause 22.2(a). There are no parameters set around the extent to which the spread may be varied. The lack of temporal qualifications does not necessitate that the provision is ambiguous, and the proposed variation is therefore not required to clarify the meaning of the subclause.
Manufacturing and Associated Industries and Occupations Award 2010	36.2(c) 37.2	13,2(c) 29.2(b)	AMWU	The AMWU submits that the extension of the spread of ordinary hours at either end of the spread is not intended to provide for a 13 or 14 hour spread, but is to allow the hour at which the 12 hour ordinary spread commences or finishes be altered by up to one hour. The AMWU relies on a decision 12 of SDP Marsh during the Award Simplification proceedings to suggest the intention of the provision was to provide flexibility in the start and finish time of the spread of hours – not to provide for a longer spread overall. Accordingly, in its proposed variations, the AMWU amends the spread of ordinary hours clause to be “subject to maintaining a 12 hour spread”.
			ABI and NSW Business Chamber	In submissions in reply, the ABI and NSW Business Chamber submit that the spread of ordinary hours allows employees to work up to 12 ordinary hours per day.
			FWO	In correspondence to the Commission, the FWO identifies the ambiguity in the award but does not provide any substantive submissions on the issue.
Pharmaceutical Industry Award 2010 *The Full Bench delayed determining the issue until the conclusion of the review in [2015] FWCFB 7236 (see below section 5 for further detail).	23.2(b)	8.2(c)	AMWU	The AMWU submits that the provision is ambiguous in that the word “either” could be interpreted as allowing the spread of hours to be altered by up to one hour at only one end of the spread, or one hour at both ends of the spread. The AMWU relies on a decision of SDP Marsh during the Award Simplification proceedings to suggest the intention of the provision was to provide flexibility in the start and finish time of the spread of hours – not to provide for a longer spread overall. The union argues their interpretation is consistent with the role of facilitative provisions to avoid diminishing employee entitlements and to enable agreement regarding the implementation of entitlements within a defined scope. As such, the AMWU proposed correcting the ambiguity by inserting the words “subject to maintaining a 9.5 hours spread”. In its submissions about the revised exposure draft, the AMWU reiterates its claim that given the ambiguity inherent in clause 8.2(c), the clause should be amended to ensure clarity in accordance with modern award objectives.
	23.2(b)	8.2(c)	Ai Group	In transcript from a hearing on 28 November 2014, the Ai Group raises concern that in altering the spread of hours at either end of the spread, the spread of hours could be shortened instead of being extended (PN61). In further submissions, it contends the issue is a substantive one, and opposes the variation sought by the AMWU. This position is reiterated in its submissions in reply.
Seafood processing Award 2010	23.2(c)	8.2(c) 13.4	AMWU	The AMWU submits that clarification is required that while the spread of hours can be changed, its duration cannot. The union recommends amending subclause 8.2(c) by inserting ‘but may not be altered to increase the spread of hours beyond 12 hours a day’ immediately following ‘either end of the spread’. The union also recommends amending clause 13.4 by inserting the following at the end of the existing text: ‘but not both’. In reply submissions, the AMWU considers the matter to be substantive. Given that a similar application has been made in respect of the Hydrocarbons Industry (Upstream) Award 2010, the union believes the issue should be re-examined once a determination has been made in the Hydrocarbons matter.
			AWU	In reply submissions, the AWU agrees that the duration of the spread of hours cannot be extended.
			Ai Group	In reply submissions, the Ai Group opposes the AMWU’s proposal to vary the provision. The party argues that the proposal is tantamount to a substantive change rather than clarification of the operation of the provision. The current terms of the award do not preclude the extension of the spread of hours beyond 12 hours. In further reply submissions, the Ai Group strongly opposes the variation sought. It agrees with the AMWU that the issue is substantive and that consideration of the matter should be deferred until the Commission issues its decision with respect to the Hydrocarbons Industry (Upstream) Award 2010 (despite there being subtle differences between the two provisions). Nonetheless, the Ai Group notes the following in relation to the matter: It disagrees with the AMWU’s ‘erroneous’ suggestion that the clause prohibits a spread greater than 12 hours. There is no such requirement, whether express or implied. The plain and ordinary meaning of the clause is clear, in that the spread of hours may be altered by up to one hour at either end of the spread, enabling a variation by one hour or less, at the commencement of the spread, the conclusion of the spread, or both. There is no requirement that the spread be 12 hours in length. The party contends that the AMWU’s interpretation would significantly restrict a current flexibility that is available under the award, which would disadvantage all concerned. There is tension between the AMWU’s proposal and the operation of clause 23.5 of the award, which deals with the arrangement of ordinary working hours. Specifically, subclause 23.5(c) contemplates the implementation of days or shifts that are 12 ordinary hours in length subject to various conditions, such as the provision of an additional meal break. However, an employee cannot work a 12 ordinary hour day within a 12 hour spread if they must also take a meal break that does not count as time worked. This suggests the clause should not be interpreted as contemplated by the AMWU, as to do so would run contrary to the clear intention of clause 23.5(c) and would remove a flexibility that is essential to business operations in the industry. The Commission has determined that the four yearly review is to proceed on the basis that modern awards achieve the modern awards objectives when they were made. When this award was made, it contained the very provision that is the source of the controversy in these proceedings. Therefore, it is for the AMWU to establish that a departure from the current terms is necessary to ensure that the award continues to achieve the modern award objective. The proposed variation runs contrary to a number of modern award objectives under s.134(1), including the need for collective bargaining; the need to promote flexible modern work practices and the efficient and productive performance of work; the likely impact of any exercise of modern award powers on business including on productivity, employment costs and the regulatory burden; and the need to ensure a simple, easy to understand, stable and sustainable modern award system for Australia that avoids unnecessary overlap of modern awards.
			Business SA	In reply submissions, Business SA opposes the AMWU’s proposal to vary the clause. Business SA submits that the proposed insertion of the words ‘but may not be altered to increase the spread of hours beyond 12 hours a day’ constitutes a significant change as it may prevent the spread of hours beyond 12 hours.
			ABI & NSWBC	In reply submissions, the organisations do not support the submissions made by AMWU as they are not consistent with the current award provisions. In further reply submissions, the organisations agree with the AMWU’s submission of 21 July 2015 that the matter is substantive and should therefore be dealt with after the Hydrocarbons Industry (Upstream) Award 2010 application has been determined.
Storage Services and Wholesale Award 2010	22.2	8.2 15.2	AWU	The AWU relies on the submissions made by the AMWU in relation to the exposure draft of the Manufacturing and Associated Industries and Occupations Award 2010 dated 29 October 2014, and submits the word ‘either’ means ‘one or the other; not both’. To remove any ambiguity, the AWU proposes amending the clause to state: Subject to maintaining a 10.5 hours spread, the spread of hours may be altered by up to one hour at either end of the spread, but agreement between an employer and the majority of employees covered or between the employee and the employer. In later submissions, the AWU contend that the word ‘either’ permits the expansion of the spread of hours at one end or the other end, and not both. The union refers to the Concise Macquarie Dictionary, which defines the word ‘either’ as ‘one or the other; not both’.
			SDA	The SDA submits that a narrow interpretation should be adopted in that the clause (in using the word ‘either’ as opposed to ‘both’) provides that the spread of hours can be altered at one or the other end but not both. In later submissions, the SDA elaborates and argues that when read with the facilitative provisions, it is clear there is no intent to permit an increase in the daily spread of hours. Use of the word ‘altered’ instead of the word ‘increased’ is instructive – ‘altered’ suggests that the spread of hours may be shifted but not necessarily increased. Further, facilitative provisions are not mechanisms to reduce entitlements of employees. The SDA refer to the Graphic Arts Printing and Publishing Award 2010 as a point of contrast with respect to the spread of hours provision.
			NUW	In its submissions, the NUW supports the submissions of the AWU that that spread can be altered at one or the other end of spread, but not both.
			Ai Group	The Ai Group submits that the words of the clause do not suggest that the other end of the spread must be shifted to maintain a spread of 10.5 hours. In other words, the clause permits expansion of the spread of hours at either end. The Ai Group argues that clause 8.1(d) (which provides that an employee may work up to 10 ordinary hours in a day) supports their interpretation of clause 8.2. Clause 8.1(d) enables an employer, by agreement with the employee(s), to stagger working days of up to 10 ordinary hours in length for different employees over a possible spread of 12.5 hours. This flexibility is essential to business operations in the industry and needs to be maintained. The Ai Group further submits that the SDA’s submissions and the AWU’s proposal are opposed. The award, as currently drafted, does not require the maintenance of a 10.5 hour spread. The variation proposed by the AWU is a substantive one that would introduce a significant inflexibility, and is therefore contrary to the modern awards objective (ss.134(2)(d) and (f) of the Act).
			AFEI	The AFEI submits that it would be an unreasonable reading of the facilitative provision to restrict its operation by adopting a narrow construction. Rather, a fair reading of the clause is one which maximises its potential for both employers and employees, particularly given the facilitative provisions in the award and the protection provided through the requirement that any changes to the spread be by agreement. Accordingly, the AFEI submits that the SDA have mischaracterised the effect of the facilitative provision as one which strips away entitlements. Therefore, it is the AFEI’s view that the spread of hours may be extended at each end, and that no change is required. Like the SDA, the AFEI also relies on the Graphic Arts Printing and Publishing Award 2010 as a point of contrast with respect to the spread of hours provision – noting that if it were the intention that the Storage Services and Wholesale Award 2010 be construed narrowly then it would have been expressly framed as such.
			Business SA	Business SA submits that the clause refers to the expansion of hours at ‘either end’, meaning each end of ordinary hours can be expanded. Business SA supports the Ai Group and AFEIs’ submissions on this matter.
			ABI & NSWBC	In reply submissions, the organisations note that the ambiguity results from the varied meanings of the word ‘either’, which could be taken to mean ‘both’, or conversely, ‘one or the other’. ABI and NSWBC do not agree with the SDA that the provisions allow the spread of hours to be shifted by one hour at only one end of the spread without increasing/decreasing the hours. If the number of hours in the spread of hours is to be maintained, the spread of hours must be shifted at both ends. The organisations submit that the word ‘either’ in this context should be interpreted to allow the variation of the spread of hours at both ends of the spread, and make reference to the Macquarie Concise Dictionary in support of their view. The ABI and NSWBC suggest that to adopt the narrow interpretation suggested by the SDA and the AWU would be to introduce a significant inflexibility affecting both employers and employees, and ignores the protection offered by virtue of the clauses operating by agreement and only in relation to the spread of ordinary hours. In the alternative, the organisations submit that the clause should be understood to allow the extension of the spread of ordinary hours at the beginning or the end of the spread.
			FWO	In correspondence to the Commission, the FWO identifies the ambiguity in the award but does not provide any substantive submissions on the issue.
Sugar Industry Award 2010	29.3(c)	11.3(c)	AWU	Parties agreed on the following clause: (c) Altering the spread of hours (i) The ordinary hours of work are to be worked continuously, except for meal breaks, at the discretion of the employer. The spread of hours may be altered by up to one hour at either end of the spread by agreement between an employer and the majority of employees concerned or, in appropriate circumstances, between the employer and an individual employee. (ii) Where the spread of hours is altered in accordance with sub clause 11.3(c)(i), work outside the hours of 6.00 am to 6.00 pm will be paid at overtime rates and will be deemed to be part of the ordinary hours of work for the purposes of clause 11—Ordinary hours of work and rostering—other than shiftworkers. AWU submission dated 28 November 2017 noted that this would be dealt with at the conclusion of the Review.
			AMWU	AMWU submission dated 28 November 2017 states that ‘this is one of a group of Awards containing similar ambiguous phraseology in relation to the alteration of the spread of hours. This Award should be considered at the conclusion of the Award stage of the Review in accordance with the decision of the Full Bench [2015] FWCFB 7236 at [159].’
Vehicle Manufacturing, Repair, Services and Retail Award 2010	53.1(c)	40.1(c)	AMWU	The AMWU’s view is that the intent of the provision is for the spread of hours to be shifted e.g. it can be varied by agreement to be 4am to 6pm or 6am to 8pm. Therefore, in its draft determination, the AMWU seek the following variation to clause 53.1(c) of the original award by removing the words ‘either end’ and inserting ‘only one end’. However, in later submissions dated 25 March 2015, it is noted that the proposed variation is not being pursued by the AMWU at this time – with a caveat that the union reserves its right to pursue the variation pending the outcome of further discussions by the parties.
			MTA	In submissions, the MTA notes the AMWU’s original request for a variation to clause 53.1(c), and agrees that this is a leave reserved matter and may lead to further discussions between the parties.
			FWO	In correspondence to the Commission, the FWO identifies the ambiguity in the award but does not provide any substantive submissions on the issue.

List of abbreviations

ABI & NSWBC	Australian Business Industrial and the New South Wales Business Chamber Ltd.
AFEI	Australian Federation of Employers and Industries
Ai Group	Australian Industry Group
AMWU	“Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU)
ASU	Australian Municipal, Administrative, Clerical and Services Union
AWU	The Australian Workers’ Union
CPSU	The Community and Public Sector Union
FWO	Fair Work Ombudsmen
MTA	Motor Traders’ Association of New South Wales, Motor Trade Association of South Australia, Motor Trade Association of West Australia, and the Victorian Automobile Chamber of Commerce
NUW	National Union of Workers
SDA	Shop, Distributive & Allied Employees’ Association