[2018] FWCFB 7263
FAIR WORK COMMISSION

DECISION


Fair Work Act 2009

s.156 - 4 yearly review of modern awards

4 yearly review of modern awards – Restaurant Industry Award 2010 – Hospitality Industry (General) Award 2010 – substantive issues
(AM2017/57; AM2017/59)

Restaurant Industry
Hospitality Industry


JUSTICE ROSS, PRESIDENT
DEPUTY PRESIDENT MASSON
COMMISSIONER LEE

MELBOURNE, 12 DECEMBER 2018

4 yearly review of modern awards – Restaurant Industry Award 2010 – Hospitality Industry (General) Award 2010 – substantive issues.

    Chapters

    Page

    Paragraph

    1

    Introduction

    1

    2

    The Review

    3

    3

    Hospitality Award

    9

 

    3.1 The Hospitality sector

    9

 

    3.2 The Claims

    11

    4

    Restaurant Award

    36

 

    4.1 The Restaurant sector

    36

 

    4.2 The Claims

 

    5

    Tool Allowance – the common claim

    59

    6

    Conclusion

    64

    7

    Next steps

    65

    Attachments

    Attachment A: Summary of legislative provisions relating to the service of alcohol by juniors

    77

 

    Attachment B: Background to the current tool allowance provisions in the Hospitality and Restaurant Awards

    81

 

    Attachment C: Draft variation determination – Hospitality award

    90

 

    Attachment D: Draft variation determination – Restaurant award

    106

 
     

    Tables

 

    Paragraph

    Table 1: Employee characteristics of Hospitality industry, 2016

 

    Table 2: Comparison of Annual Wage Review increases and the Take away and fast foods component of the Consumer Price Index

 

    Table 3: Tradespersons rate and amount deducted for ‘A meal’ in the Hospitality Award

 

    Table 4: Food and Beverage stream classification comparison

 

    Table 5: Employee characteristics of Cafes and restaurants, 2016

 

    Table 6: Impact of proposed change in minimum rates

 

1. Introduction

[1] Section 156 of the Fair Work Act 2009 (Cth) (the FW Act) requires the Fair Work Commission (the Commission) to conduct a 4 yearly review of modern awards (the Review) as soon as practicable after 1 January 2014 (the Review). Subsection 156(2) deals with what must be done in the Review and provides that the Commission must review all modern awards and may, among other things, make determinations varying modern awards.

[2] A number of substantive claims have been made to vary the Hospitality Industry (General) Industry Award 2010 (the Hospitality Award) and the Restaurant Industry Award 2010 (the Restaurant Award) as part of the Review. In accordance with the Statement1 issued on 24 October 2017 and the Decision issued on 21 March 2018, 2 a Full Bench has been constituted to deal with these substantive claims.

[3] Directions were issued on 21 May, 3 19 September4 and 14 November 2018.5 Parties seeking variations were directed to file written submissions and any witness statements or documentary material in which they wished to rely on. Submissions and or evidence in support of, or in opposition to, proposed claims were filed by the following parties:

  Australian Business Industrial and the New South Wales Business Chamber (ABI); 6

  Australian Hotels Association, the Accommodation Association of Australia and the Motor Inn, Motel and Accommodation Association (collectively, the Associations); 7

  Restaurant and Catering Industrial Association (RCI); 8 and

  United Voice. 9

[4] A Mention 10 was held on 9 November 2018 to consider the programming of the substantive claims made in relation to the Hospitality Award. A report was subsequently issued on 14 November 2018,11 which outlined the claims that remained outstanding and proposed a process for determining the outstanding matters. In the report the Commission made the following directions:

  The Associations and United Voice were to file a joint report setting out the matters agreed to in respect of the Hospitality Award and a draft variation determination giving effect to that agreement;

  United Voice was to file any documentary material it wished to rely on in support of its tool allowance claim; and

  ABI was to file a short written submission outlining their position in respect of the claims being pressed by United Voice.

[5] The Associations and United Voice filed a joint report 12 on 20 November 2018 in accordance with the directions. United Voice indicated that it did not intend to file further documentary material in support of its tool allowance claims. ABI filed a submission13 on 19 November 2018 outlining their position.

[6] These matters were heard on 26 and 27 November 2018. The transcript of the proceedings and the submissions are available on the 4 yearly review section of the Commission’s website. 14

[7] The proceedings in respect of these two awards have been case managed together due to the commonality of the interested parties. Each award has been reviewed in its own right (see s 156(5)).

[8] It is necessary to first say something about the Commission’s task in the Review before turning to the matters before us.

2. The Review

[9] Section 156 deals with the conduct of the Review and s 156(2) provides that the Commission must review all modern awards and may, among other things, make determinations varying modern awards. In this context ‘review’ has its ordinary and natural meaning of ‘survey, inspect, re-examine or look back upon’. 15 The discretion in s 156(2)(b)(i) to make determinations varying modern awards in a Review, is expressed in general, unqualified, terms.

[10] If a power to decide is conferred by a statute and the context (including the subject-matter to be decided) provides no positive indication of the considerations by reference to which a decision is to be made, a general discretion confined only by the subject matter, scope and purposes of the legislation will ordinarily be implied. 16 However, a number of provisions of the FW Act which are relevant to the Review operate to constrain the breadth of the discretion in s 156(2)(b)(i). In particular, the Review function is in Part 2-3 of the FW Act and hence involves the performance or exercise of the Commission’s ‘modern award powers’ (see s 134(2)(a)). It follows that the ‘modern awards objective’ in s 134 applies to the Review.

[11] Section 138 (achieving the modern awards objective) and a range of other provisions of the FW Act are also relevant to the Review: s 3 (object of the Act); s 55 (interaction with the National Employment Standards (NES)); Part 2-2 (the NES); s 135 (special provisions relating to modern award minimum wages); Division 3 (terms of modern awards) and Division 6 (general provisions relating to modern award powers) of Part 2-3; s 284 (the minimum wages objective); s 577 (performance of functions etc by the Commission); s 578 (matters the Commission must take into account in performing functions etc), and Division 3 of Part 5-1 (conduct of matters before the Commission).

[12] The modern awards objective is in s 134:

‘134 The modern awards objective

What is the modern awards objective?

(1) The FWC must ensure that modern awards, together with the National Employment Standards, provide a fair and relevant minimum safety net of terms and conditions, taking into account:

(a) relative living standards and the needs of the low paid; and

(b) the need to encourage collective bargaining; and

(c) the need to promote social inclusion through increased workforce participation; and

(d) the need to promote flexible modern work practices and the efficient and productive performance of work; and

(da) the need to provide additional remuneration for:

(i) employees working overtime; or

(ii) employees working unsocial, irregular or unpredictable hours; or

(iii) employees working on weekends or public holidays; or

(iv) employees working shifts; and

(e) the principle of equal remuneration for work of equal or comparable value; and

(f) the likely impact of any exercise of modern award powers on business, including on productivity, employment costs and the regulatory burden; and

(g) the need to ensure a simple, easy to understand, stable and sustainable modern award system for Australia that avoids unnecessary overlap of modern awards; and

(h) the likely impact of any exercise of modern award powers on employment growth, inflation and the sustainability, performance and competitiveness of the national economy.

This is the modern awards objective.

When does the modern awards objective apply?

(2) The modern awards objective applies to the performance or exercise of the FWC’s modern award powers, which are:

(a) the FWC’s functions or powers under this Part; and

(b) the FWC’s functions or powers under Part 2-6, so far as they relate to modern award minimum wages.

Note: The FWC must also take into account the objects of this Act and any other applicable provisions. For example, if the FWC is setting, varying or revoking modern award minimum wages, the minimum wages objective also applies (see section 284).’

[13] The modern awards objective is to ‘ensure that modern awards, together with the NES, provide a fair and relevant minimum safety net of terms and conditions’, taking into account the particular considerations identified in ss 134(1)(a)–(h) (the s 134 considerations).

[14] The modern awards objective is very broadly expressed. 17 It is a composite expression which requires that modern awards, together with the NES, provide ‘a fair and relevant minimum safety net of terms and conditions’, taking into account the matters in ss 134(1)(a)–(h).18 Fairness in this context is to be assessed from the perspective of the employees and employers covered by the modern award in question.19

[15] The obligation to take into account the s 134 considerations means that each of these matters, insofar as they are relevant, must be treated as a matter of significance in the decision-making process. 20 No particular primacy is attached to any of the s 134 considerations21 and not all of the matters identified will necessarily be relevant in the context of a particular proposal to vary a modern award.

[16] It is not necessary to make a finding that the award fails to satisfy one or more of the s 134 considerations as a prerequisite to the variation of a modern award. 22 Generally speaking, the s 134 considerations do not set a particular standard against which a modern award can be evaluated; many of them may be characterised as broad social objectives.23 In giving effect to the modern awards objective the Commission is performing an evaluative function taking into account the matters in s 134(1)(a)–(h) and assessing the qualities of the safety net by reference to the statutory criteria of fairness and relevance.

[17] Further, the matters which may be taken into account are not confined to the s 134 considerations. As the Full Court observed in Shop, Distributive and Allied Employees Association v The Australian Industry Group 24 (Penalty Rates Review):

‘What must be recognised, however, is that the duty of ensuring that modern awards, together with the National Employment Standards, provide a fair and relevant minimum safety net of terms and conditions itself involves an evaluative exercise. While the considerations in s 134(a)-(h) inform the evaluation of what might constitute a “fair and relevant minimum safety net of terms and conditions”, they do not necessarily exhaust the matters which the FWC might properly consider to be relevant to that standard, of a fair and relevant minimum safety net of terms and conditions, in the particular circumstances of a review. The range of such matters “must be determined by implication from the subject matter, scope and purpose of the” Fair Work Act (Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24 at 39-40).’ 25

[18] Section 138 of the Act emphasises the importance of the modern awards objective:

‘138 Achieving the modern awards objective

A modern award may include terms that it is permitted to include, and must include terms that it is required to include, only to the extent necessary to achieve the modern awards objective and (to the extent applicable) the minimum wages objective.’

[19] What is ‘necessary’ to achieve the modern awards objective in a particular case is a value judgment, taking into account the s 134 considerations to the extent that they are relevant having regard to the context, including the circumstances pertaining to the particular modern award, the terms of any proposed variation and the submissions and evidence. 26

[20] In 4 Yearly Review of Modern Awards - Penalty Rates (Hospitality and Retail Sectors) decision (the Penalty Rates decision27 the Full Bench summarised the general propositions applying to the Commission’s task in the Review, as follows:

‘1. 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.

2. Variations to modern awards must be justified on their merits. The extent of the merit argument required will depend on the circumstances. Some proposed changes are obvious as a matter of industrial merit and in such circumstances it is unnecessary to advance probative evidence in support of the proposed variation. Significant changes where merit is reasonably contestable should be supported by an analysis of the relevant legislative provisions and, where feasible, probative evidence.

3. In conducting the Review it is appropriate that the Commission take into account previous decisions relevant to any contested issue. For example, the Commission will proceed on the basis that prima facie the modern award being reviewed achieved the modern awards objective at the time it was made. The particular context in which those decisions were made will also need to be considered.

4. The particular context 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 Fair Work Act 2009 (Cth);

  the extent to which the relevant issue was contested and, in particular, the extent of the evidence and submissions put in the previous proceeding will bear on the weight to be accorded to the previous decision; or

  the extent of the previous Full Bench’s consideration of the contested issue. The absence of detailed reasons in a previous decision may be a factor in considering the weight to be accorded to the decision.’ 28

[21] Where an interested party applies for a variation to a modern award as part of the Review, the proper approach to the assessment of that application was described by a Full Court of the Federal Court in Anglo American as follows: 29

‘[28] The terms of s 156(2)(a) require the Commission to review all modern awards every four years. That is the task upon which the Commission was engaged. The statutory task is, in this context, not limited to focusing upon any posited variation as necessary to achieve the modern awards objective, as it is under s 157(1)(a). Rather, it is a review of the modern award as a whole. The review is at large, to ensure that the modern awards objective is being met: that the award, together with the National Employment Standards, provides a fair and relevant minimum safety net of terms and conditions. This is to be achieved by s 138 – terms may and must be included only to the extent necessary to achieve such an objective.

[29] Viewing the statutory task in this way reveals that it is not necessary for the Commission to conclude that the award, or a term of it as it currently stands, does not meet the modern award objective. Rather, it is necessary for the Commission to review the award and, by reference to the matters in s 134(1) and any other consideration consistent with the purpose of the objective, come to an evaluative judgment about the objective and what terms should be included only to the extent necessary to achieve the objective of a fair and relevant minimum safety net.’

[22] In the same decision the Full Court also said: ‘...the task was not to address a jurisdictional fact about the need for change, but to review the award and evaluate whether the posited terms with a variation met the objective.’ 30

[23] We will apply the above observations in this decision. In doing so it is convenient to note here that:

  s 134(1)(b) speaks of ‘the need to encourage collective bargaining’. As a general proposition we are not persuaded that any of the variations we propose to make would ‘encourage collective bargaining’, it follows that this consideration does not provide any support for those variations;

  s 134(1)(e) requires that we take into account ‘the principle of equal remuneration for work of equal or comparable value’. The claims would apply equally to men and women workers. Section 134(1)(e) is neutral to our consideration of the claim before us; and

  the consideration in s 134(1)(h) is not relevant in the present context; no party contended to the contrary.

[24] We turn first to the claims in respect of the Hospitality Award and begin with some background information on the sector.

3. Hospitality Award

[25] The information below presents an update on the profile of the Hospitality industry as published in the Penalty Rates decision31

[26] The Australian Bureau of Statistics (ABS) data of direct relevance to the Hospitality Award are limited.

[27] A paper 32 by Commission staff provides a framework for ‘mapping’ modern award coverage to the Australian and New Zealand Industrial Classification (ANZSIC). Using this framework, the Hospitality Award is mapped to six separate ANZSIC industry classes:

1. 4400—Accommodation;

2. 4511—Cafes and restaurants;

3. 4513—Catering services;

4. 4520—Pubs, taverns and bars;

5. 9201—Casino operation; and

6. 4123—Liquor retailing.

[28] The aggregation of these industry classes will be referred to as the Hospitality industry.

[29] The Australian Census of Population and Housing (Census) is the only data source that contains all of the employment characteristics in Table 1 for the Hospitality industry.

[30] The most recent data, for August 2016, show that there were around 446 000 employees in the Hospitality industry. Table 1 compares certain characteristics of employees in the Hospitality industry with employees in ‘all industries’.

Table 1: Employee characteristics of Hospitality industry, 2016

Note: Part-time work is defined as employed persons who worked less than 35 hours in all jobs during the week prior to Census night. Totals may not sum to the same amount due to non-response. For full-time/part-time status and hours worked, data on employees that were currently away from work (that reported working zero hours), were not presented.

Source: ABS, Census of Population and Housing, 2016

[31] The profile of Hospitality industry employees differs from the profile of employees in ‘All industries’ in five aspects:

  Hospitality industry employees are more likely to be female (54.9 per cent, compared with 50 per cent of all employees);

  Over half (58.1 per cent) of Hospitality industry employees are employed on a part-time basis (i.e. less than 35 hours per week), compared with only 34.2 per cent of all employees;

  Around one quarter (24.0 per cent) of Hospitality industry employees work 1–15 hours per week compared with only 11.6 per cent of all employees;

  Over one third (36.4 per cent) of Hospitality industry employees are aged between 15 and 24 years compared with only 16.6 per cent of all employees; and

  Around three in ten (30.1 per cent) Hospitality industry employees are students (23.9 per cent are full-time students and 6.3 per cent study part time) compared with 13.7 per cent of all employees.

3.2 The Claims

3.2.1 Unopposed claims

[32] The Associations and United Voice have had productive discussions in relation to a number of the substantive claims. As a result of those discussions the Associations and United Voice have agreed that the Hospitality Award be varied to give effect to the following claims (collectively, the agreed position):

(i) Item 3 – Definition of ‘junior employee’

[33] It is proposed that a definition of ‘junior employee’ be inserted in clause 3.1 (Definitions) in the following terms: 33

junior employee means an employee under the age of 20 who is not undertaking a nationally recognised traineeship or apprenticeship’.

(ii) Item 7 – Progression arrangements and pay scales for apprentices

[34] It is proposed that a competency based pay scale for apprentices be inserted into the Hospitality Award, as new clause 14.12, in the following terms:

‘14.12 Competency based progression

(a) For the purpose of competency based wage progression in clause 20.4 an apprentice will be paid at the relevant wage rate for the next stage of their apprenticeship if:

(i) competency has been achieved in the relevant proportion of the total units of competency specified in clause 20.4 for that stage of the apprenticeship. The units of competency which are included in the relevant proportion must be consistent with any requirements in the training plan; and

(ii) any requirements of the relevant State/Territory apprenticeship authority and any additional requirements of the relevant training package with respect to the demonstration of competency and any minimum necessary work experience requirements are met; and

(iii) either:

(b) If the employer disagrees with the assessment of the RTO referred to in clause 14.12(a)(iii)(B) above, and the dispute cannot be resolved by agreement between the RTO, the employer and the apprentice, the matter may be referred to the relevant State/Territory apprenticeship authority for determination. If the matter is not capable of being dealt with by such authority it may be dealt with in accordance with the dispute resolution clause in this award. For the avoidance of doubt, disputes concerning other apprenticeship progression provisions of this award may be dealt with in accordance with the dispute resolution clause.

(c) For the purposes of this clause, the training package containing the qualification specified in the contract of training for the apprenticeship, sets out the assessment requirements for the attainment of the units of competency that make up the qualification. The definition of “competency” utilised for the purpose of the training packages and for the purpose of this clause is the consistent application of knowledge and skill to the standard of performance required in the workplace. It embodies the ability to transfer and apply skills and knowledge to new situations and environments.

(d) The apprentice will be paid the wage rate referred to in clause 14.12(a) from the first full pay period to commence on or after the date on which an agreement or determination is reached in accordance with clause 14.12(a)(iii) or on a date as determined under the dispute resolution process in clause 14.12(b).

(e) If the apprentice disagrees with the assessment of the RTO referred to in clause 14.12(a), and the dispute cannot be resolved by agreement between the RTO, the employer and the apprentice, the apprentice may refer the matter to the relevant State/Territory apprenticeship authority for determination. If the matter is not capable of being dealt with by such authority it may be dealt with in accordance with the dispute resolution clause in this award. For the avoidance of doubt, disputes concerning other apprenticeship progression provisions of this award may be dealt with in accordance with the dispute resolution clause.’ 34

[35] It is also proposed that clause 20.4 be deleted and a new provision relating to apprentice wages be inserted. The new provisions would include competency based wage progression (CBWP) and amendments to terminology such as replacing references to ‘standard weekly rate’ with ‘standard hourly rate’.

(iii) Item 18A – Fork-lift driver allowance

[36] The Associations seek to amend the fork-lift driver allowance at clause 21.2(a), to clarify the application of the allowance to part-time and casual employees. The allowance is an all-purpose allowance which is currently expressed as either a weekly rate for full-time employees or a daily rate for part-time or casual employees. The amendment is not opposed.

(iv) Item 23 – Ordinary hours of work – Full-time employees

[37] It is proposed that subclauses 29.1(a) and (c) are amended to insert ‘accrued day off’ to distinguish between a day off in accordance with the provision and a ‘rostered day off’ as defined in the award. A number of ancillary amendments are also proposed and are set out in Exhibit A1.

[38] It is convenient to say something now about whether the agreed variations are necessary to ensure that the Hospitality Award achieves the modern awards objective.

[39] The amendments to the definition of ‘junior employee’ and to the status of the fork lift driver allowance add clarity and are consistent with the objective of making the Hospitality Award simple and easier to understand. We would make the same observation in relation to the agreed amendments to clauses 3.1, 26.5, 29.1(a), 29.1(c), 30.2, 33.3(b), 37.1(b)(i) and Schedule H.1(d), regarding the insertion of the term ‘accrued day off’. These amendments make clear the distinction between an unpaid day off work (e.g. one of the eight days off provided in each 152 hour four week cycle) and a paid accrued rostered day off (e.g. the accrued rostered day off per 160 hour four week cycle). We are satisfied that the variations are necessary to ensure that the Hospitality Award achieves the modern awards objective and, in particular, to ensure that the award is simple and easy to understand.

[40] The proposed variation to the progression arrangements and pay scales for apprentices introduces CBWP for apprentices. CBWP may be described as a system of wages progression that:

‘means that upon the acquisition of competencies associated with a particular year or stage of the apprenticeship, the apprentice is entitled to be paid the minimum wage rate associated with the next year or stage’ 35

[41] CBWP for apprentices was the subject of detailed consideration in the Modern Awards Review 2012 – Apprentices, Trainees and Juniors decision36 in which the Full Bench said:

[295] We are satisfied that it is consistent with the modern awards objective for the Commission to facilitate the introduction of CBWP for apprentices in awards where it is not already provided for. We agree with the submission of the Commonwealth that the adoption of CBWP in awards supports the modern awards objective of promoting flexible modern work practices and the efficient performance of work (s.134(1)(d) of the Act). We are also satisfied that such a provision will promote productivity in that it will facilitate a more skilled workforce (s.134(1)(f)).’ 37

[42] The proposed amendments in respect of apprentices permits CBWP where that method of progression is permitted in the relevant State or Territory that administers the apprenticeship arrangements. In effect the variations will mean that the award will provide for both CBWP (where permitted in a State or Territory) and time-based progression. The proposed amendments will also expand the range of apprenticeship options available to better align the apprenticeship provisions and the trade classifications in the award.

[43] We are satisfied that the proposed variation will assist the low paid to meet their needs (s 134(1)(a)) and promote flexible and efficient workplaces (s 134(1)(d)). None of the other s 134 considerations are relevant to these particular variations. No party contended to the contrary. Taking into account the s 134 considerations (insofar as they are relevant) we are satisfied that the variation proposed is necessary to ensure that the Hospitality Award achieves the modern awards objective.

3.2.2 Opposed claims

[44] In their joint report the Associations and United Voice set out the claims which are opposed. 38 These claims are dealt with below.

(i) Items 20 and 28 – Public holidays

[45] Clause 32.2 provides that employees (other than casuals) who work on public holidays may by agreement be paid, either:

  225% of their ordinary hourly wage rate; or

  125% of their ordinary hourly wage rate plus equivalent paid time is added to the employee’s annual leave or one day instead of such public holiday will be allowed to the employee during the week in which the public holiday they have worked, falls.

[46] The Associations seek a variation of clauses 27.2(c) and 32.2(b) to allow an employer and employee to extend the period in which they can take time off in lieu for time worked on a public holiday.

[47] The initial variation proposed by the Associations to clause 32.2(b) is in red:

(b) Employees (other than casuals) who work on a prescribed holiday may, by agreement, perform such work at their applicable ordinary hourly rate plus 25% additional loading rather than the penalty rate prescribed in clause 32.1, provided that equivalent paid time is added to the employee’s annual leave or one day instead of such public holiday will be allowed to the employee during the week in which such holiday falls. Provided that such holiday may be allowed to the employee within 28 days of such holiday falling due, or at other such time as agreed by the employer and the employee’.

[48] A similar variation was initially sought to clause 27.2(c),:

(c) An employee other than a casual working on Christmas Day when it falls on a weekend, and is not prescribed as a public holiday under the NES will be paid an additional loading of 25% of their applicable ordinary hourly rate for the hours worked on that day and will also be entitled to the benefit of a substitute day, or at other such time as agreed by the employer and the employee’.

[49] In our view the current requirement that the accrued time off be taken ‘within 28 days’ is too restrictive. The imposition of such a short time period may mean that employees are forced to take the accrued time off at a time that doesn’t suit them. They may wish to add the accrued time off to a later period of annual leave or use it to ‘bridge’ between a period between a later public holiday and an RDO. The existing time limitation may also create operational challenges for employers, particularly small and medium businesses (and hence be inconsistent with s 134(1)(d)).

[50] We have concluded that it is necessary to vary clauses 27.2(c) and 32.2(b) to provide greater flexibility in relation to the time within which accrued time off is to be taken. The question is – the nature and extent of that flexibility.

[51] The difficulty with the Associations’ initial proposal was that it provided no outer limit on the period within which the accrued time off is to be taken. The variation initially proposed may also be contrasted with the existing award term dealing with the taking of time off in lieu of overtime, in clause 33.4 of the award, which contains a number of safeguards which are absent from the Associations’ initial proposal.

[52] We raised these concerns with the parties during the course of the proceedings. The Associations and United Voice subsequently advanced a joint, consent, variation that aligns the provision with the safeguards that apply to the taking of time off in lieu of overtime. We think this is an appropriate outcome. The Associations and United Voice propose that the following paragraph be inserted after clause 27.2(c):

‘(d) Despite the requirement to take time off within 28 days of accruing it in clause 27.2 (c), an employee and an employer may agree to extend the period for taking the accrued time off to within 6 months of its accrual subject to the following:

(i) The agreement is recorded in writing and retained as an employee record;

(ii) The accrued time off is taken at a time or times within the period of 6 months agreed by the employee and the employer;

(iii) If the accrued time off is not taken within the period of 6 months, the employer must pay the employee for the accrued time off in the next pay period following those 6 months; and

(iv) If, on the termination of the employee’s employment, accrued time off for working on a public holiday has not been taken, the employer must pay the employee for the accrued time off.’

[53] An amendment in similar terms is proposed in relation to clause 32.2.

[54] Interested parties were provided with an opportunity to comment on the joint proposal advanced by the Associations and United Voice. No party opposed the joint proposal.

[55] The variation of clauses 27.2 and 32.2 in the manner proposed is consistent with the promotion of flexible modern work practices (s 134(1)(d)). None of the other s 134 considerations are relevant to this particular claim. No party contended to the contrary. Taking into account the s 134 considerations (insofar as they are relevant) we are satisfied that the variation proposed is necessary to ensure that the Hospitality Award achieves the modern awards objective.

(ii) Item 21 – Ordinary hours of work – Full time and part-time employees

[56] The Associations seek to vary clause 29.1(a) of the Hospitality Award by introducing a new method by which hours of work can be averaged, namely for the average of 38 hours per week to be worked as ‘76 hours over a two week period’.

[57] Clause 29.1(a) currently provides:

(a) The average of 38 hours per week is to be worked in one of the following ways:

  a 19 day month, of eight hours per day;

  four days of eight hours and one day of six hours;

  four days of nine and a half hours per day;

  five days of seven hours and 36 minutes per day;

  152 hours each four week period with a minimum of eight days off each four week period;

  160 hours each four week period with a minimum of eight days off each four week period plus a rostered day off;

  any combination of the above.’

[58] The Associations’ submission in support of the variation is set out at paragraphs 184 to 204 of its submission of 24 July 2018 as follows:

‘187. The first additional averaging way is:

● 76 hours over a two week period;

188. It is submitted that an averaging arrangement of this nature is permitted by section 63(1) of the FW Act, and is consistent with section 134(1)(d) of the modern awards objective.

189. The HIGA allows employers to pay employees on a fortnightly basis at clause 26.2, and rostering practices to enable a full time employee to average their hours over a two week period complements this fortnightly payment basis.

190. The Associations submit that many hospitality employers use a fortnightly pay cycle.

191. The Associations submit that this arrangement simply creates an option between the arrangements currently available that average hours of a four week cycle and those that provide for the performance of work over a single week.

192. The introduction of this arrangement has no impact on other entitlements or protections available to an employee in accordance with the HIGA nor does it have an impact on the HIGA meeting the modern awards objective, specifically s.134 (1) (da).’ 39

[59] United Voice opposes the proposed variation. The relevant submissions are at paragraphs 56 to 57 of United Voice’s submission in reply of 18 September 2018, as follows:

‘56. The first variation sought is for the average of 38 hours per week to be worked as ‘76 hours over a two week period’. The Hospitality Award already provides 6 different ways in which hours of work can be averaged out. There are already sufficient options available for an employer to enable them to roster appropriately for the business.

57. This proposed variation is unnecessary.’ 40

[60] During the course of the proceedings we indicated that if we were minded to vary clause 29(1)(a) in the manner proposed then, consistent with the other averaging options in the clause, it should read:

  76 hours over a two week period with a minimum of four days off each two week period. (emphasis added)

[61] The Associations accepted that the inclusion of the additional words was appropriate. United Voice’s primary position was to oppose the claim but in the event the Commission was minded to grant the claim, it submitted that it would be appropriate to insert the additional words. 41

[62] The variation of the Hospitality Award in the manner proposed is consistent with the promotion of flexible modern work practices (s 134(1)(d)). None of the other s 134 considerations are relevant. No party contended to the contrary. Taking into account the s 134(1) considerations (insofar as they are relevant) we are satisfied that the variation proposed is necessary to ensure that the Hospitality Award achieves the modern awards objective.

(iii) Item 27 – Penalty rates – Public holidays

[63] Clause 32.2(2) deals with minimum engagement periods for working on a public holiday:

‘(a) An employee other than a casual working on a public holiday will be paid for a minimum of four hours’ work. A casual employee working on a public holiday will be paid for a minimum of two hours’ work’.

[64] The Associations’ claim seeks to make it clear that the minimum engagement periods in clause 32.2(a) refer to all hours worked during a shift and not only to the hours worked on the day that is the public holiday. The Associations’ initial proposal was to add the following sentence at the end of clause 32.2(a):

‘Hours of work performed on the day immediately before or immediately after a public holiday that form part of one continuous shift are counted as part of the employee’s minimum engagement’. 42

[65] This proposal was refined during the course of the proceedings and ultimately the Associations sought to vary clause 32.2(a) as follows:

‘(a) An employee other than a casual working on a public holiday will be paid for a minimum of four hours’ work. A casual employee working on a public holiday will be paid for a minimum of two hours’ work. Hours of work performed on the day immediately before a public holiday, or immediately after a public holiday, and that form part of one continuous shift, are counted as part of the minimum hours worked for the purposes of this clause.

Illustrative Example 1 – Full Day Public Holiday

A full-time employee is rostered to work an 8 hour shift from 4:30pm on Thursday 25 January until 1:00am on Friday 26 January (Australia Day public holiday). The employee takes their half hour unpaid meal break at 8:30pm. Although the employee has only worked one hour on the public holiday, the employee’s overall shift length was at least 4 hours and therefore satisfies the minimum payment requirement.

The full-time employee will receive payment of 7 hours at the ordinary hourly rate (plus late night penalties) and 1 hour at the public holiday rate.

Illustrative Example 2 – Part Day Public Holiday

A casual employee is rostered to work in a regional town on the same day as the town’s annual show day which falls on the first Friday of a month. The town celebrates the annual show with a part day public holiday which is observed from 12:00pm to 5:00pm. The casual employee works from 4:00pm until 7:00pm. Although the employee has only worked one hour on the part day public holiday, the casual employee’s overall shift length was at least 2 hours and therefore satisfies the minimum payment requirement.

The casual employee will receive payment of 1 hour at the casual public holiday rate, and 2 hours at the casual Monday to Friday hourly rate.’

[66] The Associations’ submission in support of the variation is set out at paragraphs 207 to 214 of its submission of 24 July 2018 as follows:

‘207. Clause 32.2(a) proscribes a minimum number of hours for payment in relation to work performed on a public holiday. Further, an employee is entitled to the minimum number of hours payment specified in clause 32.2(a) even where they do not work those minimum hours.

208. Clause 32.2(a) does not state that the payment must be either four hours’ (for permanent employees) or two hours’ (for casual employees) at the applicable public holiday hourly rate.

209. The Associations submit that where an employee performs work immediately prior to a public holiday and continues to work on the actual public holiday, or performs work immediately after a public holiday after having started work on the actual public holiday, the work performed on the non-public holiday is counted toward the minimum number of hours for payment.

210. For example, an employee commences work at 10pm on Thursday, 25 January 2018. The following day is Australia Day; a public holiday, and the employee works until 2am on 26 January. The employee will receive four hours payment for work performed, with only two of the hours paid at the applicable public holiday rate.

211. The Associations seek to vary clause 32.2(a) to provide clarity on the operation of this clause.

...

213. It is submitted that by clarifying the operation of clause 32.2(a), the proposed variation makes this clause more efficient and effective.

214. Accordingly, the Associations submit that the proposed variation meets the modern awards objective having regard to section 134.1(g).’ 43

[67] United Voice opposes the proposed variation. The relevant submissions are at paragraphs 78 to 80 of United Voice’s submissions in reply of 18 September 2018, as follows:

‘78. Clause 32.2(a) provides a benefit for employees in ensuring that an employee will receive adequate hours of payment for the disutility of working on a public holiday.

79. The variation proposed by the AHA reduces the actual minimum engagement period for employees on public holidays, and would have the effect of weakening the benefit that clause 32.2(a) currently provides for employees working on public holidays. This is inconsistent with s134 (1) (da) (iii) of the modern awards objectives.

80. The variation sought by the AHA should be rejected.’ 44

[68] The intent of clause 32.2(a) is to ensure that employees who are required to perform work on public holidays receive a minimum payment. If the hours worked in a ‘stand alone’ shift are all worked on a public holiday then the minimum payment (4 hours for full-time and part-time; 2 hours for casuals) is to be paid at the public holiday rate. The provision is intended to provide a financial disincentive to rostering employees to work for a short period on a public holiday. For example, absent the provision an employer may roster a part time employee to work a 3 hour shift on Christmas day (see clause 29.2(a)). In such circumstances clause 32.2(a) operates to ensure that the employee receives a minimum payment equivalent to the payment for four hours work at the appropriate public holiday rate.

[69] The variation proposed by the Associations preserves the deterrent effect of the clause while avoiding anomalous outcomes. For example, under the current clause a part-time employee may be rostered for an 8 hour shift commencing at 5pm on the day prior to a public holiday (say a Friday) and finishing at 1am on the public holiday. In such circumstances clause 32.2(a)) is open to the interpretation that the employee would receive a minimum payment of 16 hours pay:

  7 hours at their minimum hourly rate, plus

  4 hours at the public holiday rate (225%) (i.e. 9 hours at the minimum hourly rate).

[70] Such an outcome is excessive in circumstances where the employee has worked a continuous shift of more than the minimum four hour engagement required by clause 32.2(a). It does not provide ‘a fair and relevant minimum safety net of terms and conditions’ as required by the modern awards objective.

[71] United Voice submits that the proposed variation is inconsistent with s134(1)(da)(iii). We disagree. Section 134(1)(da) is one of the considerations we are required to take into account in ensuring that all modern awards, together with the NES, provide a fair and relevant minimum safety net of terms and conditions, it states that the Commission must take into account:

‘(da) the need to provide additional remuneration for:

(i) employees working overtime; or

(ii) employees working unsocial, irregular, or unpredictable hours; or

(iii) employees working on weekends or public holidays; or

(iv) employees working shifts’. (emphasis added)

[72] Contrary to United Voice’s submission s134(1)(da) does not mandate the payment of additional remuneration for working on a public holiday; nor does it provide a statutory bar to the variation of a modern award to reduce the minimum payment for work on a public holiday. So much is clear from the following passage from the Penalty Rates decision45

‘[194] … We acknowledge that the provision speaks of ‘the need for additional remuneration’ and that such language suggests that additional remuneration is required for employees working in the circumstances identified in paragraphs 134(1)(da)(i) to (iv). But the expression ‘the need for additional remuneration’ must be construed in context, and the context tells against the proposition that s.134(1)(da) requires additional remuneration be provided for working in the identified circumstances.

[195] Section s.134(1)(da) is a relevant consideration, it is not a statutory directive that additional remuneration must be paid to employees working in the circumstances mentioned in paragraphs 134(1)(da)(i), (ii), (iii) or (iv)…

[196] Importantly, the requirement to take a matter into account does not mean that the matter is necessarily a determinative consideration. This is particularly so in the context of s.134 because s.134(1)(da) is one of a number of considerations which we are required to take into account. No particular primacy is attached to any of the s.134 considerations. The Commission’s task is to take into account the various considerations and ensure that the modern award provides a ‘fair and relevant minimum safety net’.

[73] We accept that in some circumstances the variation proposed will adversely impact on ‘relative living standards and the needs of the low paid’ (s 134(1)(a)), as low paid employees may receive a lesser minimum payment for working on a public holiday. This is a consideration which tells against the proposed variation.

[74] But, we are also satisfied that the variation would promote ‘flexible modern work practices and the efficient productive performance of work’ (s 134(1)(d)), by appropriately setting a minimum engagement period. The variation will impact positively on business by reducing employment costs (s 134(1)(f)) and will ensure that the award is simple and easy to understand (s 134(1)(g)). These considerations all favour making the variation sought.

[75] We would also observe that if clause 32.2(a) is varied in the manner proposed employees working on public holidays will continue to receive ‘additional remuneration’ for performing such work (s 134(1)(da)(iii)). None of the other s 134 considerations are relevant to this particular claim. No party contended to the contrary.

[76] Taking into account the s 134 considerations (insofar as they are relevant) we are satisfied that the variations proposed are necessary to ensure that the Hospitality Award achieves the modern awards objective.

(iv) Item 36A – Deductions for provision of employee accommodation and meals

[77] The Associations seek to vary clause 39 to enable an employer to deduct $8.37 per meal instead of per week. Clause 39 provides (deductions for services other than meals omitted):

‘39.1 Right to make deductions

When an employer provides their employees with accommodation, meals or both, then the employer may deduct an amount of money from the employee’s wages in accordance with this clause.

39.2 Adult employees

The amounts set out in the table below may be deducted from the wages of an adult employee for the provision of accommodation, meals or both by their employer. The same amounts may be deducted from the wages of a junior employee in receipt of adult wages.

NOTE: The ‘Single room and 3 meals a day’ amount is calculated at 25% of the standard weekly rate. The following internal relativity is then applied:

39.3 Junior employees receiving junior rates

The amounts set out in the table below may be deducted from the wages of a junior employee who is being paid junior rates of pay for the provision of accommodation, meals or both by the employer. The amount which may be deducted depends on the age of the employee.

39.4 Deductions for meals

An employer may deduct an amount from an employee’s wages for providing the employee with a meal only if:

(a) the employee does not live in accommodation provided by the employer; and

(b) the meal is provided during the employee’s normal working hours.’

[78] The Associations’ submission in support of the proposed variations is set out in its submission of 24 July 2018. 46 In short, it is contended that the reference to a deduction of $8.37 per week for the provision of a meal is an error and that the permitted deduction is $8.37 per meal. The Associations seek to make good their contention by reference to the relevant pre-reform instruments and the award modernisation process. It is submitted that the error should be rectified to ensure that the provision is simple and easy to understand and apply, consistent with the modern awards objective.

[79] United Voice opposes the proposed variation. The relevant submissions are set out in United Voice’s submissions in reply of 18 September 2018. 47 In short, United Voice submits that while conditions under pre-reform awards may have some relevance they are not determinative, and increasing the deduction as proposed will have a significant adverse financial impact on low paid employees such that it will not meet the modern awards objective. As to the amount of deduction sought to be permitted - $8.37 per meal – United Voice submits:

‘The deduction proposed by the AHA is not equivalent and excessive when considered against the cost of providing a meal to an employee within a hospitality enterprise’. 48

[80] United Voice also points to the ‘relativities’ across clause 39.2 and submits that the variation proposed would give rise to various ‘inconsistencies’:

‘When a single room and 3 meals a day are provided, the deduction permitted is $209.35 per week. When a single room and no meals are provided, the deduction permitted is $198.88 per week. The difference in the two amounts is $10.47, and that is for the provision of 21 meals. Similarly, when a shared room and 3 meals a day are provided the deduction permitted is $204.12 per week. When a shared room and no meals are provided the deduction permitted is $193.65 per week. The difference in the two amounts is again $10.47. To increase the deduction for meals from a per week amount to a per meal amount would result in the cost per meal being excessive when compared with the other permitted deductions.’ 49

[81] We accept that the reference to ‘per week’ is a drafting error and that the deduction should be applied per meal. But that is not the end of the matter, the Associations’ claim must be assessed in the light of the modern awards objective and the other relevant provisions of the FW Act. In particular, it gives rise to a question as to whether a deduction of $8.37 per meal is fair and whether it is a prohibited term, within the meaning of s 151. It also raises the issue of whether any deduction in relation to employees under 18 is lawful, absent the written consent of the employee’s parent or guardian (s 326(4)).

[82] Section 151 provides:

‘Terms about payments and deductions for benefit of employer etc.

A modern award must not include a term that has no effect because of:

(a) subsection 326(1) (which deals with unreasonable deductions for the benefit of an employer); or

(b) subsection 326(3) (which deals with unreasonable requirements to spend or pay an amount); or

(c) subsection 326(4) (which deals with deductions or payments in relation to employees under 18).’

[83] The Explanatory Memorandum provides a guide as to the purpose of s 151:

‘587. Clause 151 prohibits a modern award from including a term that is of no effect because:

  the term includes unreasonable payments and deductions for the benefit of an employer (subclause 326(1)); or

  the term relates to unreasonable requirements in relation to how employees spend their wages or other amounts (subclause 326(3)).

588. Although such terms are of no effect, this clause ensures that such terms are not included in awards, as their inclusion (even though inoperative) could be confusing and create uncertainty.’

[84] Section 324 deals with ‘permitted deductions’, the relevant part states:

‘(1) An employer may deduct an amount from an amount payable to an employee in accordance with subsection 323(1) if:

(a) the deduction is authorised by or under a modern award or an FWC order;

Note 2: Certain terms of modern awards, enterprise agreements and contracts of employment relating to deductions have no effect (see section 326). A deduction made in accordance with such a term will not be authorised for the purposes of this section.’

[85] Section 325 provides:

‘325 Unreasonable requirements to spend or pay amount

(1) An employer must not directly or indirectly require an employee to spend, or pay to the employer or another person, an amount of the employee’s money or the whole or any part of an amount payable to the employee in relation to the performance of work, if:

(a) the requirement is unreasonable in the circumstances; and

(b) for a payment—the payment is directly or indirectly for the benefit of the employer or a party related to the employer.

Note: This subsection is a civil remedy provision (see Part 4-1).

(1A) An employer (the prospective employer) must not directly or indirectly require another person (the prospective employee) to spend, or pay to the prospective employer or any other person, an amount of the prospective employee’s money if:

(a) the requirement is in connection with employment or potential employment of the prospective employee by the prospective employer; and

(b) the requirement is unreasonable in the circumstances; and

(c) the payment is directly or indirectly for the benefit of the prospective employer or a party related to the prospective employer.

Note: This subsection is a civil remedy provision (see Part 4-1).

(2) The regulations may prescribe circumstances in which a requirement referred to in subsection (1) or (1A) is or is not reasonable.’

[86] Section 326 provides that certain terms have no effect:

‘Unreasonable deductions for benefit of employer

(1) A term of a modern award, an enterprise agreement or a contract of employment has no effect to the extent that the term permits, or has the effect of permitting, an employer to deduct an amount from an amount that is payable to an employee in relation to the performance of work, if the deduction is:

(a) directly or indirectly for the benefit of the employer or a party related to the employer; and

(b) unreasonable in the circumstances.

(2) The regulations may prescribe circumstances in which a deduction referred to in subsection (1) is or is not reasonable.

Unreasonable requirements to spend or pay an amount

(3) A term of a modern award, an enterprise agreement or a contract of employment has no effect to the extent that the term:

(a) permits, or has the effect of permitting, an employer to make a requirement that would contravene subsection 325(1); or

(b) directly or indirectly requires an employee to spend or pay an amount, if the requirement would contravene subsection 325(1) if it had been made by an employer.

Deductions or payments in relation to employees under 18

(4) A term of a modern award, an enterprise agreement or a contract of employment has no effect to the extent that the term:

(a) permits, or has the effect of permitting, an employer to deduct an amount from an amount that is payable to an employee in relation to the performance of work; or

(b) requires, or has the effect of requiring, an employee to make a payment to an employer or another person;

if the employee is under 18 and the deduction or payment is not agreed to in writing by a parent or guardian of the employee.’

[87] As set out earlier, s 151 relevantly provides that a modern award must not include a term which has no effect because of ss 326(1) and (4).

[88] It seems clear that subclauses 39.2 and 39.3 are terms that permit ‘an employer to deduct an amount from an amount that is payable to an employee in relation to the performance of work’ and such a deduction is ‘directly or indirectly for the benefit of the employer’. No party contended to the contrary.

[89] The central question is whether such a deduction is ‘unreasonable in the circumstances’ within the meaning of s 326(1)(c)(ii). This expression was considered by Bromberg J in Australian Education Union v State of Victoria (Department of Education and Early Childhood Development) (AEU). 50

[90] In the course of his judgment in AEU, Bromberg J made a number of general observations about the proper construction of s 326. In particular, His Honour concluded that whether a deduction is ‘unreasonable in the circumstances’ is a question of fact and degree dependent upon the relevant surrounding circumstances 51 and then proceeded to identify a number of considerations that are likely to be relevant (though not exhaustive). These considerations appear at [177] – [182] of the judgment and, those which are relevant in the present context may be summarised as follows:

‘1. Consideration must commence from the premise that the ultimate purpose of the scheme is to protect employees from practices that have the effect of denying them the benefit of the remuneration they have earned and are thus entitled to fully enjoy.

2. The extent to which the employer or its related party has benefited will likely be relevant. It will be relevant to assess whether the employee has been taken advantage of in some way, with the result that part of the benefit of his or her remuneration has been lost to the employer. A benefit to the employer is not, of itself, a reason for finding that a deduction was unreasonable. There is nothing wrong in an employer gaining a benefit, but, if that benefit is gained at the expense of the employee, that would tend to indicate unreasonableness. It is the possibility of an unreasonable transfer of the benefit from its intended recipient—the employee—to the employer, which is fastened upon by s.326(1)(c).

3. The phrase ‘in the circumstances’ is of wide import and a broad approach is to be taken to the extent of the circumstances which are considered.’

[91] Having regard to the protective purpose of s 326, a deduction made pursuant to clauses 39.2 and 39.3 may be ‘unreasonable in the circumstances’ within the meaning of s 326(1)(c)(ii) if the deduction is disproportionate to the cost to the employer of providing the meal and if the informed consent of the employee is not required.

[92] Further, as currently drafted, clauses 39.2 and 39.3 are terms which permit an employer to deduct an amount that is payable to an employee under 18 years of age in circumstances where the deduction is ‘not agreed to in writing by a parent or guardian of the employee’. Accordingly, these terms would have no effect in relation to employees under 18 years of age, because of s 326(4), and hence are terms that must not be included in a modern award, because of s 151(c).

[93] The appropriate course is to vary the term to make it clear that deductions for the provision of meals will not apply to employees under 18 years of age, unless it has been agreed to in writing by a parent or guardian of the employee.

[94] To the extent that the purpose of these terms is compensatory, they do not contain a mechanism for ensuring that any deduction made is proportionate to the cost of providing a meal, in all cases. To deal with this issue it would be appropriate to insert a qualification to these terms, as follows:

‘Any deduction made pursuant to clauses 39.2 and 39.3 must not be unreasonable in the circumstances.’

[95] It would also be appropriate to provide that the employee must consent to the provision of the meal, having been informed that a deduction will be made.

[96] Subject to dealing with the quantum of the permitted deduction (and the means for its adjustment), we are satisfied that the amendments we propose to clauses 39.2 and 39.3 are such that deductions made in compliance with the term would not be ‘of no effect’ (because of the operation of ss 151 and 326) and hence there would be no prohibition from including such a term in a modern award.

[97] We now turn to consider whether a deduction of $8.37 per meal is ‘unreasonable in the circumstances’ (s 326(1)(b)) and the related question of whether such a term provides ‘a fair and relevant minimum safety net of terms and conditions’ (s 134).

[98] In assessing the reasonableness of the quantum of the proposed deduction - $8.37 per meal – it is relevant to examine how that figure was arrived at. In 2004 proceedings before the then Australian Industrial Relations Commission the deductible amount for a meal was set at 1 per cent of the minimum wage rate for tradespersons in the award (the ‘trade rate’). 52 The application was determined by consent on 31 August 2004 and the consent order varied the Hospitality Industry – Accommodation, Hotels, Resorts and Gaming Award 1998 to update the deductible amounts and to provide an automatic adjustment of those amounts by reference to movements in the ‘trade rate’.

[99] The method for adjusting the quantum of the meal allowance deduction may be contrasted with the adjustment mechanism which applies to other meal allowance provisions in the Hospitality Award.

[100] Clause 21.1(a)(i) provides that in certain circumstances employees are to be paid a meal allowance, :

‘21.1(a)(i) Expenses incurred in the course of employment

Meal allowance

An employee required to work overtime for more than two hours without being notified on the previous day or earlier that they will be so required to work must either be supplied with a meal by the employer or be paid an allowance of $12.97.’

[101] The meal allowance in clause 21.1(a)(i) is adjusted by reference to movements in the Takeaway and fast foods component of the Consumer Price Index (CPI). By contrast, the meal deduction provision in clause 39.2 is adjusted by reference to increases to the ‘trade rate’, effectively through Annual Wage Review increases. The two methods of adjustment gave rise to different results.

[102] The table below (Table 2) compares the annual and cumulative increases of annual wage review decisions to the ‘trade rate’, with movements in the Take away and fast foods component of the CPI. Annual wage review decisions take effect from 1 July each year. The CPI for Take away and fast foods is for the March quarter, as this is the period applied when adjusting allowances.

Table 2: Comparison of Annual Wage Review increases and the Take away and fast foods component of the Consumer Price Index

Note: CPI increases are for the March quarter of each year. *Increase awarded was a flat dollar amount of $26, therefore, the percentage increase applies only to the national minimum wage.

Source: Annual Wage Review decisions; ABS, Consumer Price Index, Australia, Sep 2018, Catalogue No. 6401.0.

[103] Table 3 presents the ‘trade rate’ in the Hospitality Award and the amount deducted for a meal, both based on Annual Wage Review decisions. The right-hand column shows the amount deducted for ‘a meal’ if it was indexed to the CPI for Take away and fast foods. The increase from the Annual Wage Review 2009–10 decision was a flat dollar amount of $26. This equates to an increase of 4.1 per cent at the tradespersons rate (rounded to the nearest 10 cents).

Table 3: Tradespersons rate and amount deducted for ‘A meal’ in the Hospitality Award

Source: MA000009; ABS, Consumer Price Index, Australia, Sep 2018, Catalogue No. 6401.0.

[104] It is apparent from Table 3 that had the amount that may be deducted for a meal been adjusted in line with the Take away and fast food component of the CPI, the quantum of the permitted deduction would currently be $7.96, not $8.37.

[105] Given that both of these provisions deal with the cost of providing or purchasing a meal, there is no logical reason why these amounts are adjusted by different mechanisms. The takeaway and fast food component of the CPI is the most relevant, and the award will be varied to provide that in future both provisions will be adjusted by movements in that index. No party took a different view.

[106] Mr Ryan, on behalf of the Associations submitted that in food businesses generally the cost of a meal is ‘around about two thirds of the ultimate sale, predicated on a profit margin of about 10%’. 53 Mr Ryan went on to submit:

‘And this is just talking very anecdotally, but coincidentally if an employee works in clause 21.1(a) there’s a meal allowance for an employee who works overtime for more than two hours without being notified the previous day or earlier, they must be supplied with a meal by the employer or paid an allowance of $12.97, and one could argue that should that amount be the same as the deductable amount, but going against that argument would be that well, that’s to compensate the employee to purchase a meal and they don’t necessarily have to purchase it cost price from their employer. But quite coincidentally in an approximate basis $8.37 is around about two-thirds of the $12.97. Again, it’s just arrived there for different reasons.

But if one wanted to assess whether that was a reasonable amount on the general proposition that cost of production is roughly two-thirds and there’s an allowance for purchasing a meal elsewhere and the deduction amount is two-thirds of that amount I would submit that you’re approximately on the money.’ 54

[107] We note that the profit and loss statements provided by the witnesses in these proceedings show a slightly higher profit margin than that submitted by the Associations, of 10.85% and 11.84%.

[108] If the deductible meal amount was set at $7.96 this would represent about 61% (i.e. 7.96/12.97) of the meal allowance payable to an employee under clause 21.1(a)(i), in circumstances where that amount is intended to reimburse an employee for the cost of purchasing a meal. In our view such an outcome represents an appropriate relationship between these two amounts.

[109] We acknowledge that the determination of the quantum of the deductible meal amount is not an exact science. But having regard to the considerations mentioned we are satisfied that an amount of $7.96 is fair. For the reasons given we propose to vary clause 39 as follows:

  the right to make deductions (clause 39.1) will be subject to two qualifications:

○ deductions must not be made from the wages of employees under 18 years of age unless they have been agreed to in writing by a parent or guardian of the employee,

○ any deduction made pursuant to clause 39 must not be unreasonable in the circumstances,

  an employee must consent to the provision of a meal, having been informed of the amount that will be deducted from their wages for the meal, before any deduction may be made;

  the reference to a deduction of $8.37 per week will be varied to $7.96 per meal;

  in the future the quantum of the meal allowance deduction will be adjusted by reference to movements in the takeaway and fast food component of the CPI.

[110] We acknowledge that the variations proposed will adversely impact on ‘relative living standards and the needs of the low paid’ (s 134(1)(a)), in that it will permit a deduction per meal. This is a consideration that tells against the proposed variation.

[111] The variations will also impact positively on business by increasing income (s 134(1)(f)) and will ensure that the award is simple and easy to understand (s 134(1)(g)). These considerations favour making the variation sought. Taking into account the s 134 considerations (insofar as they are relevant) we are satisfied that the variations we propose are necessary to ensure that the Hospitality Award achieves the modern awards objective.

(v) Item 38 – Classifications

[112] The Associations seek to vary the classification definition for ‘Food and Beverage Attendant Grade 2’ (F&B2) in Schedule D.2.1 by inserting the words ‘taking reservations, greeting and seating guests’ as a new duty.

[113] The current F&B2 classification at Schedule D.2.1 is as follows:

Food and beverage attendant grade 2 means an employee who has not achieved the appropriate level of training and who is engaged in any of the following:

  supplying, dispensing or mixing of liquor including the sale of liquor from the bottle department;

  assisting in the cellar or bottle department;

  undertaking general waiting duties of both food and/or beverage including cleaning of tables;

  receipt of monies;

  attending a snack bar; and

  engaged on delivery duties.’

[114] The Associations submit that the variation sought is ‘not a material one, but rather is reflective of the actual duties likely to be performed by an employee employed as a F&B2 and is consistent with the comparable classification in the Restaurants Award, which includes ‘taking reservations, greeting and seating guests’.

[115] The Associations submit that the level 2 classifications in the Hospitality and Restaurant Awards are similar and, further:

‘it is not practical or realistic for those tasks and the seating of guests to only be assigned to Grade 3 employees given that this duty, and exclusion of this duty from the F&B2 classification is inconsistent with the modern awards objective’ 55

[116] United Voice opposes the proposed variation. The relevant submissions are at paragraphs 99 to 104 of United Voice’s submission in reply of 18 September 2018, as follows:

‘99. We disagree with the characterisation of this proposed change as immaterial.

100. The proposed variation, if made, will lead to employees who are currently classified as Food and Beverage Attendant Grade 3 being demoted to Grade 2, with the associated loss of wages.

101. Taking reservations, greeting and seating guests is properly recognised in the Hospitality Award as a higher level duty which requires a greater level of skill than tasks such as general waiting duties, attending a snack bar and delivery duties.

102. In Restaurant and Catering Association of Victoria [2014] FWCFB 1996, evidence was adduced about the work performed by Food and Beverage Attendants under the Restaurant Industry Award 2010 (Restaurants Award). The decision was made on the evidence before the Commission and specifically in relation to the Restaurants Award.

103. Section 156 of the Act requires that each award must be reviewed in its own right and the AHA has not placed probative evidence before the Commission regarding the work of Food and Beverage Attendants under the Hospitality Award that justifies the variation sought.

104. The variation sought by the AHA should be rejected.’

[117] We accept that the current definitions for a F&B2 classification in the Hospitality Award and the Restaurant Award are similar, as shown by Table 4 below (differences are highlighted in red text):

Table 4:Food and Beverage stream classification comparison

[118] It is also relevant to observe that both awards cover restaurants. The Restaurant Award is an industry award which covers employers in the restaurant industry and their employees in the classifications listed in Schedule B (see clause 4.1). The ‘restaurant industry’ is defined in clause 3.1 as follows:

‘restaurant industry means restaurants, reception centres, night clubs, cafes and roadhouses, and includes any tea room, café, and catering by a restaurant business but does not include a restaurant operated in or in connection with premises owned or operated by employers covered by any of the following awards:

(a) Hospitality Industry (General) Award 2010;

(b) Registered and Licensed Clubs Award 2010; or

(c) Fast Food Industry Award 2010’

[119] The Hospitality Award covers employers in the hospitality industry and their employees in the classifications listed in Schedule D (see clause 4.1). The ‘hospitality industry’ is defined in clause 4.2:

‘hospitality industry includes hotels; motor inns and motels; boarding establishments; condominiums and establishments of a like nature; health or recreational farms; private hotels, guest houses, serviced apartments; caravan parks; ski lodges; holiday flats or units, ranches or farms; hostels, or any other type of residential or tourist accommodation; wine saloons, wine bars or taverns; liquor booths; resorts; caterers; restaurants operated in or in connection with premises owned or operated by employers otherwise covered by this award; casinos; and function areas and convention or like facilities operating in association with the aforementioned.’ (emphasis added)

[120] Hence restaurants operated in or in connection with a hospitality venue (such as a hotel or motel) are covered by the Hospitality Award. All other restaurants (i.e. ‘free standing’ restaurants not operated in or in connection with a hospitality venue) are covered by the Restaurant Award. The Restaurant Award expressly excludes restaurants operated in or in connection with premises owned or operated by employers covered by the Hospitality Award, the Registered and Licensed Clubs Award 2010 or the Fast Food Award 2010.

[121] Further, the July 2017 Casual and part-time employment decision 56 also noted the similarities between the Restaurant and Hospitality Awards:

‘[537] RCI originally made a claim for alterations to the part-time employment provisions of the Restaurant Award, with its claim being advanced on a basis similar to those of the Hospitality Associations and CAI. However at the hearing on 29 February 2016 RCI withdrew that claim, saying that “it may be a matter that is more appropriate for the award stage of proceedings”.

[538] Notwithstanding this, because we consider it likely that the circumstances of the restaurant and catering industry with respect to the workability of the current award part-time employment are substantially the same as those for the hospitality and clubs industries, we have formed the provisional view that there is a strong basis for the part-time employment clause in the Restaurants Award to be altered in the same way as for the Hospitality Award and the Clubs Award. We will invite interested parties to make further submissions and, if necessary, adduce evidence in relation to this proposition.’

[122] The inclusion of ‘taking reservations, greeting and seating guests’ in the classification definition for a F&B2 employee in the Restaurant Award was determined in the context of an appeal decision 57 (Restaurants Appeal decision) in which the Full Bench said:

‘[153] We are satisfied on the evidence that the taking of reservations and greeting and seating guests is a function which may ordinarily be expected to be performed by persons who would otherwise be classified as a Food and Beverage Attendant Grade 2, and that the failure to include this work function in the definition of that classification means that such persons may have to be paid at the higher rate for a Food and Beverage Attendant Grade 3 for that reason alone. Mr Taylor, a United Voice official from South Australia and a former worker in the industry, gave evidence that as a consequence of this, as well as the issue of the classification of the receipt of monies function, waiting staff are unlikely to be classified as a Food and Beverage Attendant Grade 1 or 2, and that those two classifications have little significance for the restaurant industry. That cannot be a practical result that was intended by the award modernisation Full Bench which made the Restaurant Award. The purpose of the Food and Beverage Attendant Grade 3 classification was not, we consider, to provide a higher rate of pay just for waiting staff who take reservations and greet and seat guests; as earlier explained the main justification for the Grade 3 classification was that, unlike Grade 2, it applies to a person who has “achieved the appropriate level of training”, being (as the definition of “appropriate level of training” in clause 3.1 makes clear) the completion of relevant AQF Certificate II qualifications. Because the Restaurant Award has classifications which cannot in practical terms be utilised by employers, we conclude that it is clearly not operating effectively because of an anomaly arising from the award modernisation process, and we further find that the Restaurant Award is not meeting the modern awards objective in that it is not providing a “relevant” minimum safety net of terms and conditions. We will vary the Restaurant Award to include the work function of “Taking reservations, greeting and seating guests” in the definition of the classification of Food and Beverage Attendant Grade 2 in clause B.2.2. Again, that variation will make it clear that no existing employee can have his or her classification reduced as a result of the variation. The variation shall take effect on 1 July 2014.’ (footnote omitted)

[123] We accept United Voice’s submission that the above Restaurants Appeal decision was made on the evidence before the Commission in those proceedings and specifically in relation to the Restaurant Award. But the evidence on this issue in those proceedings was quite limited. It consisted of statements from three restaurant operators to the effect that they expected all front of house staff, regardless of classification, to take reservations, greet and seat guests. 58 The witnesses operated a café in Mount Gambier (employing 14 staff); a café/restaurant in regional NSW (employing ‘just under 15 staff’); and a restaurant in Kirribilli, NSW (employing 22 staff). It can hardly be said that the decision of the Appeal Bench was made on the basis of an overwhelming evidentiary case. Rather the conclusion reached was that the failure to include the indicative task (‘taking reservations, greeting and seating guests’) in the Grade 2 classification gave rise to an anomaly because it meant that the Grade 2 classification could not be used in ‘practical terms’ by employers. Standing behind this finding is the common sense proposition that Grade 2 front of house staff would ordinarily be expected to take reservations, greet and seat guests – particularly if the establishment does not have a Maitre’D (or head waiter). In our view this proposition applies with equal force to restaurants which fall within the coverage of the Hospitality Award.

[124] Further, the alignment between the two awards (referred to above) supports greater alignment in the classification structures. It makes no sense for the indicative classifications for a F&B2 employee to be expressed differently in these two awards. Consistent with the conclusion in the Restaurants Appeal decision the existing Grade 2 classification in the Hospitality Award is not ‘relevant’, in that it does not include the task: ‘taking reservations, greeting and seating guests’.

[125] Varying the Hospitality Award in the manner proposed will promote ‘flexible modern work practices and the efficient performance of work’. Taking into account the s 134 considerations (insofar as they are relevant) we are satisfied that the variations are necessary to ensure that the Hospitality Award achieves the modern awards objective.

(vi) Item 47A – Working away from usual place allowance

[126] This issue concerns clause 21.1(h) of the Hospitality Award, which is in the following terms:

21.1 Expenses incurred in the course of employment

(h) Working away from usual place of work

This clause applies where an employer requires an employee other than a casual to work at a place more than 80 kilometres from the employee’s usual place of work. In these circumstances the employer must pay the employee an amount equal to the cost of fares reasonably spent by the employee in travelling from the employee’s usual place of work to the new place of work. However, the employer may recover any amount paid to an employee under this clause if the employee concerned leaves their employment or is dismissed for misconduct within three months of receiving such a payment.’ (emphasis added)

[127] United Voice submits that the last sentence of clause 21.1(h) is an ‘objectionable term’ and must be deleted. The submissions advanced in support of this proposition are set out at paragraphs 12 to 21 of its submissions of 24 July 2018, as follows:

‘12. This provision permits an employer to recover an amount paid to an employee who has incurred expenses by travelling at the employer’s direction simply because they have left their employment within an arbitrary period of time. We rely on our submission filed on 8 June 2017 and for convenience reiterate the salient points made

17. Clause 24.10(c) contravenes subsection 326(1) and is a term that must not be included in a modern award under section 151 which prohibits certain terms about payments and deductions for benefits by employers from an employee. The clause is problematic as it permits an employer to deduct a sum from an employee’s pay.

18. Section 326(1) provides that a term of a modern award has no effect to the extent that the term permits an employer to deduct an amount that is payable to an employee in relation to performance of work if the deduction is both unreasonable in the circumstances and directly or directly for the benefit of the employer

19. Section 326(2) provides that the regulations ‘may prescribe circumstances in which a deduction or payment referred to in subsection (1) is or is not reasonable’.

20. Regulation 2.12 of the Fair Work Regulations 2009 (Cth) (‘the Regulations’) lists a number of circumstances in which a deduction is reasonable for the purposes of s 326(1) of the Act. The recovery of fares paid to the employee is not one of the circumstances prescribed by regulation.

21. Further, clause 24.10 (c) is unreasonable in any circumstance. It is unreasonable to permit an employer to recover an amount paid to an employee who has incurred expenses by travelling at the employer’s direction simply because they have left their employment within an arbitrary period of time. The employee has travelled, performed work and incurred expenses at the direction of the employer. How long their employment continues after the termination of their duties has not rational connection to reimbursement for that travel. The only beneficiary of clause 24.10(c) is the employer.’ 59

[128] The Associations do not oppose United Voice’s claim that the last sentence of clause 21.1(h) be deleted. 60 ABI takes a similar position and submits:

‘4.3 Our clients filed a submission dated 8 June 2017 in respect of the plain language exposure draft of the Hospitality Award, which dealt briefly with this clause at [9]. In short, our clients expressed the view that the provision may require review but otherwise reserved their position

4.11 As our clients consider that the Commission has jurisdiction to include the clause in its entirety is permitted to be in the Hospitality Award, the next question is whether the recovery provision falls foul of section 326 of the FW Act. The relevant test is:

(a) is it directly or indirectly for the benefit of the employer or a party related to the employer; and

(b) is it unreasonable in the circumstances.

4.12 Our clients submit that the answer to the first of these queries is in the affirmative, as the ability to recover an amount previously paid to an employee is clearly beneficial in the employer’s favour.

4.13 Our clients also submit that the recovery of amounts paid will not be unreasonable in all circumstances. However, it is acknowledged that the amount of the deduction is also not referable to the actual loss or cost incurred by the employer when an employee’s employment ceases for the reasons specified in the clause.

4.14 On this basis, our clients concede that the recovery provision may be unreasonable in some circumstances, and its removal is not opposed if the Commission is so minded.’ 61 (emphasis added)

[129] As mentioned earlier, s 151 provides that a modern award must not include a term that has no effect because of subsections 326(1), (3) or (4). It is clear that clause 21.1(h) would have no effect insofar as it purports to permit a deduction from an amount payable to an employee under 18 years in circumstances where the deduction is not agreed to in writing by a parent or guardian of the employee (contrary to s 326(4)). More generally, such a deduction will be of no effect if the deduction is ‘unreasonable in the circumstances’ (within the meaning of s 326(1)(b)).

[130] In the present matter United Voice, the Associations and ABI all acknowledge that the existing deduction term (i.e. the last sentence in clause 21.1(h).) may give rise to a deduction which is ‘unreasonable in the circumstances’. On that basis each of these parties either supports the removal of the provision, or does not oppose its removal. RCI takes a different view and opposes the variation proposed by United Voice.

[131] RCI’s submissions are set out in paragraphs 3 to 13 of its submissions in reply of 18 September 2018, as follows:

‘3. RCI disagrees with a number of United Voice’s submissions in respect of clause 21.1(h) (or clause 24.10(c) of the Plain Language Exposure Draft of the Hospitality Award).

4. Clause 21.1(h) of the Hospitality Award requires an employer to pay the employee an amount equal to the cost of fares incurred by the employee in travelling from the employee’s usual place of work to the new place of work. However, the provision permits an employer to recover an amount paid to the employee if the employee leaves their employment or is dismissed for misconduct within three months of receiving the payment.

5. The provision does not explicitly stipulate that the employer is entitled to deduct this amount from an amount payable to the employee, simply that the employer may recover that amount.

6. United Voice make a number of submissions challenging the operation of clause 21.1(h) on the basis that the clause permits deductions from amounts payable to employees. Whilst RCI does not agree with all of these submissions (see further below), RCI notes that United Voice have made no submissions which challenge the validity of the clause in so far as it allows an employer to recover an amount paid to the employee generally.

7. RCI therefore submits that even if the Commission agrees with United Voice’s submissions in respect of the operation of the law regarding deductions from amounts payable to employees, this should not affect the validity of clause 21.1(h).

8. Turning to United Voice’s specific submissions in respect of deductions from amounts payable to employees, United Voice submit that clause 21.1(h) is problematic because of the operation of section 326 of the Fair Work Act 2009 (Cth) (‘the Act’).

9. RCI notes that section 326(1) of the Act provides that a modern award has no effect to the extent that it provides for a deduction from an amount that is payable to an employee in relation to the performance of work, if the deduction is: (a) directly or indirectly for the benefit of the employer or a party related to the employer; and (b) unreasonable in the circumstances.

10. Section 326(2) of the Act provides that the regulations may prescribe circumstances in which a deduction or payment referred to in subsection (1) is or is not reasonable. RCI notes that the circumstances outlined in Regulation 2.12 of the Fair Work Regulations 2009 (Cth) (‘the Regulations’) are non-exhaustive.

11. On the question of reasonableness, RCI’s view is that it is not reasonable or expected that employers cover the cost of travel to and from work for its employees. Clause 21.1(h) (or clause 24.10(c) of the Plain Language Exposure Draft of the Hospitality Award) provides an employee a benefit of being reimbursed for travel costs where employees work more than 80km away from their usual place of work. RCI submits that it is not unreasonable for an employer to be entitled to recover these costs if the employee subsequently leaves employment within a short time of receiving such a benefit.

12. RCI also disagrees with United Voice’s submission that clause 21.1(h) is problematic in light of section 139 of the Act. Section 139(g) states that modern awards may include terms about matters including “(g) allowances, including for any of the following: (i) expenses incurred in the course of employment;”. RCI considers it is implicit that this means modern awards can include terms that deal with all matters relating to allowances, including when they may be recovered (or deducted) from amounts paid to an employee.

13. This view is supported by the operation of section 326 of the Act which deals with when deductions from amounts payable to employees have no effect. Clearly then, the Act envisages that modern awards may, in some circumstances, include terms dealing with deductions from amounts payable to employees.’ (emphasis added). 62

[132] Two things may be said about RCI’s submission. First, the proposition (at [5] in the RCI submission) that the provision does not give rise to an employer entitlement to deduct the cost of fares paid in the circumstances identified, is without merit. Plainly the provision is intended to authorise an employer to make a deduction (within the meaning of s 324(c)). Indeed if that is not the effect of the term then what possible legal effect does it have? If it has no legal effect it should be deleted in any event.

[133] Second, the proposition (at [11] in the RCI submission above) that in all circumstances such a deduction would not be unreasonable is plainly wrong. Two examples serve to illustrate this point. Take an employee who is paid the cost of fares reasonably spent travelling from their usual place of work to their new place of work and is then dismissed for misconduct the day after receiving the payment. In such circumstances the deduction permitted by clause 21.1(h) may well not be ‘unreasonable in the circumstances’. But this example may be contrasted with a circumstance where an employee is paid the costs of fares and then two and a half months later resigns their employment. In the latter circumstance a deduction of the full amount previously paid to the employee would clearly not be a proportionate response and would be ‘unreasonable in the circumstances’.

[134] As presently framed the last sentence of clause 21.1(h) is a term that has no effect, within the meaning of s 151, and cannot be included in a modern award. No proposal has been advanced to attempt to vary the provision such that it is compliant with subsections 326(1), (3) and (4). In the circumstances the appropriate course is to delete the last sentence of clause 21.1(h) and that is what we propose to do. A similar amendment will be made to the Plain language exposure draft (deleting clause 26.10(c)) of the PLED).

4. Restaurant Award

4.1 The Restaurant sector

[135] The information below presents an update on the profile of the Restaurant sector as published in the Penalty Rates decision63

[136] Using the paper 64 prepared by Commission staff that provides a framework for ‘mapping’ modern award coverage to the ANZSIC, the Restaurant Award is ‘mapped’ to the Cafes and restaurants industry class.

[137] The ABS data of direct relevance to the Cafes and restaurants industry class is also quite limited.

[138] The Census is the only data source that contains all of the employment characteristics for the Restaurant Award.

[139] The most recent data from the Census, for August 2016, show that there were around 213 000 employees in the Cafes and restaurants industry. Table 5 compares certain characteristics of employees in the Cafes and restaurants industry with employees in ‘all industries’.

Table 5: Employee characteristics of Cafes and restaurants, 2016

Note: Part-time work is defined as employed persons who worked less than 35 hours in all jobs during the week prior to Census night. Totals may not sum to the same amount due to non-response. For full-time/part-time status and hours worked, data on employees that were currently away from work (that reported working zero hours), were not presented.

Source: ABS, Census of Population and Housing, 2016

[140] The profile of Cafes and restaurants employees differs from the profile of employees in ‘All industries’ in five aspects:

  Cafes and restaurants employees are more likely to be female (56.5 per cent compared to 50 per cent of all employees);

  around two-thirds (66.4 per cent) of Cafes and restaurants employees are employed on a part-time basis (i.e. less than 35 hours per week), compared with only 34.2 per cent of all employees;

  around three in ten (30.2 per cent) of Cafes and restaurants employees work 1–15 hours per week compared with only 11.6 per cent of all employees;

  almost half (46.9 per cent) of Cafes and restaurants employees are aged between 15 and 24 years compared with only 16.6 per cent of all employees; and

  around four in ten (40.5 per cent) Cafes and restaurants employees are students (33.3 per cent are full-time students and 7.2 per cent study part time) compared with 13.7 per cent of all employees.

4.2 The Claims

[141] Two claims by RCI are being advanced in these proceedings and RCI called two witnesses in support of its claims: 65

  Kris Bunder 66

  Francis Edmund Brailey. 67

[142] Mr Bunder is the owner of Café Del Giorno in Port Lincoln in South Australia. The business opened in March 2000. The café trades Monday to Sunday (7:30 am to 10 pm Monday to Saturday and 8 am to 10 pm Sundays) and employs 7 full-time and 20 casual staff. An additional 3 casual employees are engaged between December and March.

[143] Mr Brailey is the business accountant and licensee of The Marina Café, Church Point Road in NSW, his son owns the business. The business opened in January 2012. The Marina Café trades 7 days a week (8 am to 3:30 pm Sunday to Thursday and 8 am to 10 pm Friday and Saturday) and employs 5 full-time and 8 casual staff.

[144] We now turn to the two claims, the submissions and our consideration.

(i) Junior employees serving liquor

[145] The first claim concerns junior employees serving liquor. RCI 68 originally sought the removal of that part of clause 15.1 which covers the requirement to pay junior employees at the full adult rate for liquor service. The changes initially sought by the RCI appear in red below:

15. Junior employees

15.1 Junior employees will be paid in accordance with clause 20.3. Where the law permits, junior employees may be employed in the bar or other places where liquor is sold. Junior employees working as liquor service employees must be paid at the adult rate of pay in clause 20.1 for the classification for the work being performed.

15.2 An employer may at any time demand the production of a birth certificate or other satisfactory proof for the purpose of ascertaining the correct age of a junior employee. If a birth certificate is required, the cost of it must be borne by the employer.

15.3 No employee under the age of 18 years will be required to work more than 10 hours in a shift.’

[146] RCI amended their original claim and now seek an amendment in respect to the definition of a liquor service employee. RCI’s claim seeks to make it clear that junior employees who simply deliver liquor and do not dispense liquor, are paid at junior rates for all time worked. The variation sought by the RCI appears in red below:

2. Definitions

Liquor service employee means a person employed to sell or dispense liquor in bars, bottle departments or shops and includes a cellar employee. This does not include employees who only deliver liquor to customers and do not sell or dispense liquor behind the bar.’ 69

[147] We note that clause 15.1 of the Restaurant Award provides that ‘Junior employees working as liquor service employees must be paid as an adult in accordance with Table 2 … Minimum rates at the classification rate for the work being performed.’

[148] In a submission filed on 24 July 2018 RCI advances the following points in support of its proposed variation:

  The PLED is ambiguous: RCI witnesses will give evidence that they are confused about how to pay a junior who takes alcohol from a serving or dispensing point to a table. The Award appears to provide that a junior must be paid adult wages for the whole of the shift if they deliver alcohol to a customer. The ambiguity needs to be resolved so it is clear that a junior who simply delivers liquor, and does not dispense liquor, is paid at junior rates for all time worked;

● the amendment proposed ‘is in line with the modern awards objective’;

● the amendment is not designed to allow juniors to dispense alcohol but merely to be able to deliver it to the tables of customers;

● training opportunities will open up for young employees as businesses will be encouraged to hire junior employees;

● the evidence discloses that the liquor beverage may be only be one of out the three or four taken to a table and it is unreasonable to stop a junior taking a range of beverages if one is alcoholic. 70

[149] United Voice opposes the claim. The relevant submissions are at paragraphs 29 to 45 of United Voice’s submission in reply of 2 November 2018, in particular:

‘34. The requirement to pay junior employees working as liquor service employees the adult rate is in recognition that the service of alcohol carries with it specific obligations and responsibilities, no different to those placed on adult employees

37. All states and territories require that employees serving, selling or supplying alcohol acquire and maintain specific qualifications and skills. For example, Responsible Service of Alcohol training is mandatory for everyone in NSW who sells serves and supplies alcohol. Similarly, completing a Responsible Service of Alcohol program is mandatory for staff selling, offering or serving liquor in Victoria.

38. There are significant penalties for breaching responsible service of alcohol requirements.

39. For example, in NSW, an employee can face up a fine to $11,000 for supplying alcohol to an intoxicated person.

40. There is no difference in the qualifications and skills required for the service or supply of liquor between junior employees and adult employees (where junior employees are permitted by law to serve alcohol), and both junior employees and adult employees are subject to significant penalties if they breach their responsibilities under state legislation for the responsible service of alcohol. The current Restaurant Award recognises this by ensuring that junior employees working as liquor service employees must be paid at the adult rate.

41. RCI contend that an employee who serves alcohol by waiting on a table should be paid a lower wage, on the basis that employees who deliver alcohol to tables are somehow performing a lessor duty than employees who pour and serve alcohol at a bar.

42. This is incorrect.

43. An employee serving alcohol to tables is still required to hold any relevant Responsible Service of Alcohol requirements, and would still be subject to penalties if they were to breach the requirements.

44. There is no justifiable reason as to why junior employees who serve alcohol to tables should not be paid the full adult rate, as any other liquor service employee would receive.’ 71

The Evidence

[150] The relevant part of Mr Bunder’s witness statement that concerns the proposed variation to the award provisions relating to juniors serving alcohol is as follows:

‘The definition of ‘liquor service employee’ needs to be changed, because a junior employee that engages in the delivery of food and beverage should not be included in this definition because they are not the employee that is responsible for the sale of liquor to the customer, only the delivery to the table. The employee that mixes and pours the liquor behind the bar is the person responsible for the responsible service of alcohol. “Liquor service employees” should in my opinion be defined as the employees that pour and mix the liquor behind the bar.

The current proviso in the award is not working for my business because I am not able to utilise junior employees in the table service of beverages. Because we are a fully licensed restaurant we require all of our floor staff to assist in all aspects of table service to the customer. Therefore it is not beneficial to employ juniors at this time as they can only serve food and clear tables. We have avoided employing junior staff for this reason.

We anticipate that if the definition were to be changed it would allow us to employ a number of junior staff. This would not only benefit our business but also allow us to take on more staff and give employment to young members of our community that are driven to be a success and asset to their own community.’ 72

[151] The following points emerged from Mr Bunder’s oral evidence in relation to this issue:

  Mr Bunder employs three wait staff under 20 years of age (two 18 years and one 19 years). These three employees are classified as ‘liquor service employees’ – as they deliver alcoholic drinks to customers at tables and take wine orders 73 – and hence are paid adult rates (which are usually only paid to employees who are 20 years of age).74

  Mr Bunder acknowledged that it is an offence under the relevant South Australian legislation to supply alcohol to an intoxicated person and that wait staff who serve alcohol must have a ‘responsible service of alcohol’ qualification. 75 It was put to Mr Bunder in cross examination that the offence of supplying alcohol to an intoxicated person was a relatively serious offence (carrying a maximum fine of $20,000 for a first offence) and that on that basis a young person was taking on some responsibility in supplying alcohol to customers in a restaurant. Mr Bunder replied:

‘Yes, a very - in my opinion, it’s a very, very small amount of responsibility because they’re not the person that’s actually mixing the drinks, they’re not the person that’s putting exactly 30 mils of scotch say in a scotch and cola. Okay, so they’ve taken they order from the customer but they don’t necessarily - they don’t mix the drink, so the drink is mixed by a badged responsible person and supplied to the customer (indistinct) that alcohol the person that delivers that alcohol to the table. So in my restaurant there could be a total of three different people that actually have a part in supplying that alcohol to that customer but in our training and in our restaurant, we instruct the person behind the bar is the one that makes the decision on whether that person is intoxicated or whether that person has had too much alcohol. So they’re the one mixing that drink and they’re the one knowing exactly how many drinks that person has. It’s on the computer in front of them that that table’s had so many drinks, and the other two people, the one that has taken the order and the one that has delivered the drink, they have a small role in that process but what we’re saying is that the person that is supplying the liquor from behind the bar is the person that would be responsible for serving an intoxicated person.’ 76

We return later to this aspect of Mr Bunder’s evidence.

  Mr Bunder acknowledged that if the claim were granted it would reduce his employment costs and increase the profitability of his business. It was also his evidence that such a variation would change the demographics of his workforce – in short, he would employ more 18 and 19 year olds in preference to older workers. The following exchange took place between the Commission and Mr Bunder:

‘And can you just tell me what would you change if the variation was made so that those wait staff serving alcohol who were 18 and 19 are paid their 18 and 19 year old rate and not the adult rate?

-Yes. So it would encourage us to employ more 18 and 19 year old staff.

So – yes?

-Say, instead of getting older staff we would be encouraged to employ younger staff…

Okay. So is it fair to say that it would shift the age demographic within your existing number of employees?

-So at the moment you employ seven full time and 20 casual with some increase over the peak period. But of those 27 I think you’re one of the full-timers.

So the 26 people you employ you’re saying, as I understand it, that if this change went through then you would have a preference or be encouraged to employ more 17 and 18 year old wage staff in that mix, rather than employing more mature wage staff?

-Yes, that would be correct.’ 77

[152] We note that Mr Bunder is not suggesting that he would employ more staff, but rather he would change the age profile within his current staff numbers and employ more 18 and 19 year olds in preference to older workers.

[153] The relevant part of Mr Brailey’s evidence that concerns the definition of ‘liquor service employee’ is as follows:

‘14. I support the change to clause 15.1 of the Award, relating to junior employees serving alcohol. I am aware that there is a matter before the Commission, which will affect this clause, and that the new version of the Award will define what a junior employee is and what type of employee serves liquor.

15. However, I do not think that the change is sufficient to deal with the issue facing businesses such as ours.

16. In my view, the definition of ‘liquor service employee’ needs to be changed, because a junior employee who delivers alcohol to a table should not be included in this definition, because it restricts the range of services that juniors can provide, making it less attractive to employers and to the juniors as well and disrupts the smooth flow of service. For example, if a customer asks a junior employee for an alcoholic beverage, the junior employee must explain that he/she cannot provide that service and that he/she must get another senior employee to come and take the order. This type of response to a service irritates customers.’ 78

[154] The following points emerged from Mr Brailey’s oral evidence in relation to this issue:

  All but one of the front of house staff are over 20 years of age. 79 There is one wait person who is under 20 years of age, but she does not have a responsible service of alcohol qualification and does not serve alcohol in the café.80 Mr Brailey acknowledged that in a practical sense the current award provisions did not affect his business at present:

‘So in a practical sense the limitations of the award in relation to having to pay the adult rate if the junior serves alcohol hasn’t actually affected your business at all. That’s a correct statement, isn’t it?

-Currently that’s correct, yes, but in the future it may change…

You believe it would assist you because it would reduce your potential labour costs because you could hire persons over the age of 18 and under the age of 20 with the responsible service of alcohol certificates and you could pay them less than the adult rate?

-Yes. That’s correct, but that’s not the total story but that particular statement is correct.’ 81

  Mr Brailey was asked why he only had one employee under the age of 20:

‘So she couldn’t serve alcohol. She can’t serve alcohol because she’s not qualified under the Liquor Act to serve alcohol?

-That’s right. If she got an RSA she could serve alcohol.

And you’d have to pay her the - - -?

-But she doesn’t have it.’ 82

  Mr Brailey acknowledged that it was an offence under NSW law to serve alcohol to an intoxicated person:

‘So a person between the age of 18 and 20 who has the responsible service of alcohol certificate, who mistakenly serves alcohol to an intoxicated person can themselves be liable to a fine?-

That is correct.’ 83

[155] A summary of legislative provisions relating to the service of alcohol by juniors is set out at Attachment A.

Consideration

[156] In the course of oral argument RCI was asked to elaborate upon their submission that the proposed variation was ‘in line with the modern awards objective’. In response, Mr Ward, on behalf of RCI submitted:

‘Referring to the provision of the need to promote social inclusion through increased workforce participation, specifically in the evidence it was addressed that the issue of providing [an] incentive to hire junior employees. This goes to a much larger issue that we’re facing in the industry of a skills shortage and new, fresh, young employees aren’t being trained to replace the ones that are moving on. So providing that incentive, however small it may be, for an employee - or rather removing a disincentive for employers to hire young people and invest in the training.’ 84

[157] Section 134(1)(c) requires that we take into account ‘the need to promote social inclusion through increased workforce participation’. Obtaining employment is the focus of s 134(1)(c).

[158] Contrary to Mr Ward’s submission the evidence does not establish that if granted the proposed variation would increase employment. The highest the evidence rose to was the proposition that the variation would change the demographics of Mr Bunder’s workforce – in that he would employ more 18 and 19 year olds in preference to older workers. Importantly, Mr Bunder did not suggest that he would employ more staff, but rather that he would change the age profile within his current staff numbers.

[159] We do accept, however, that if granted the variation would reduce employment costs and improve the profitability of some businesses covered by the Restaurant Award. These are relevant considerations in our assessment of whether the variation is necessary to ensure that the award achieves the modern awards objective.

[160] In assessing the claim it is important to appreciate the scope and impact of the proposed variation. It is common ground that only employees 18 years and over are legally able to serve alcohol in restaurants. Under the Restaurant Award 18 and 19 year old wait staff are paid ‘junior rates’, a proportion of the 20 year old minimum rate (which is the adult rate under this award) (70 and 85% respectively: see clause 20.3). Clause 15.1 operates such that junior employees working as ‘liquor service employees’ must be paid the adult rate for the classification for the work being performed.

[161] The practical effect of the variation will be that 18 and 19 year old wait staff who serve (or deliver) alcoholic beverages to tables in restaurants will only be entitled to the relevant junior rate. The impact of the change in minimum rates is set out below:

Table 6: Impact of proposed change in minimum rates

[162] It is likely that 18 and 19 year olds will be classified as F&BA2 employees, in which case the variation will result in a reduction in their minimum wages of $230.50 per week (or $6.07 per hour) for an 18 year old and $115.25 per week (or $3.03 per hour) for a 19 year old. We accept that the quantum of the impact would be less for part-time and casual employees, but would nonetheless still be significant for those employees. These are substantial reductions which would adversely impact on low paid employees and their capacity to meet their needs (s 134(1)(a)).

[163] It also needs to be born in mind that all employees who serve alcohol in restaurants are required to have a responsible service of alcohol qualification – regardless of the age of the employee. Further, wait staff face significant penalties under State liquor laws if they serve an alcoholic beverage to an intoxicated person. These responsibilities merit the payment of adult wages to those 18 and 19 year old wait staff who serve alcohol.

[164] In the course of his evidence Mr Bunder sought to downplay the extent of this responsibility. We find this aspect of Mr Bunder’s evidence unpersuasive. A waiter is likely to have the most direct contact and engagement with a customer in a restaurant. Consequently they are likely to be in the best position to assess whether or not a customer is intoxicated – not a barman mixing drinks some distance away.

[165] This claim lacks merit. If the Restaurant Award was varied in the manner proposed by RCI it would not provide ‘a fair and relevant minimum safety net of terms and conditions’; it would not achieve the modern awards objective. We reject the claim for those reasons.

(ii) Item 9 – Meal breaks

[166] The second claim relates to the taking of meal breaks. RCI originally sought a variation to clause 32 by deleting sub-clauses 32.3 and 32.4. 85 These amendments would have removed the ‘penalties’ that apply in the event that an employee is not provided with a meal break in accordance with the other parts of clause 32. RCI subsequently varied this claim, and now seeks to amend the meal breaks provision to allow breaks to be the subject of individual flexibility agreements.86

[167] Clause 32 provides:

‘32.1 If an employee, including a casual employee, is required to work for five or more hours in a day the employee must be given an unpaid meal break of no less than 30 minutes. The break must be given no earlier than one hour after starting work and no later than six hours after starting work.

32.2 If the unpaid meal break is rostered to be taken after five hours of starting work, the employee must be given an additional 20 minute paid meal break. The employer must allow the employee to take this additional meal break no earlier than two hours after starting work and no later than five hours after starting work.

32.3 If an employee is not given the unpaid meal break at the time the employer has told the employee it will be given, the employer must pay the employee 150% of the employee’s ordinary base rate of pay from the time the meal break was to commence until either the meal break is given or the shift ends.

32.4 If clause 32.3 does not apply and an employee is not given a meal break in accordance with clause 32.1 the employer must pay the employee 150% of the employee’s ordinary base rate of pay from the end of six hours until either the meal break is given or the shift ends.

32.5 If an employee is required to work more than five hours after the employee is given the unpaid meal break, the employee must be given an additional 20 minute paid break.

32.6 If a full-time or regular part-time employee is required to work more than 10 ordinary hours in the day, the employee will be given two additional 20 minute paid breaks. In rostering for these breaks, the employer must make all reasonable efforts to ensure an even mix of work time and breaks.

32.7 If an employee is required to work more than two hours’ overtime after completion of the employee’s rostered hours, the employee must be given an additional 20 minute paid break.’

[168] RCI seeks the insertion of the following provision in clause 32:

‘The award flexibility clause can be utilised to permit variations to this clause by agreement between the employer and employees.’ 87

[169] The award flexibility clause, renamed and substituted effective 1 November 2018, 88 provides for individual flexibility arrangements (IFAs):

‘7. Individual flexibility arrangements

7.1 Despite anything else in this award, an employer and an individual employee may agree to vary the application of the terms of this award relating to any of the following in order to meet the genuine needs of both the employee and the employer:

(a) arrangements for when work is performed; or

(b) overtime rates; or

(c) penalty rates; or

(d) allowances; or

(e) annual leave loading.

7.2 An agreement must be one that is genuinely made by the employer and the individual employee without coercion or duress.

7.3 An agreement may only be made after the individual employee has commenced employment with the employer.

7.4 An employer who wishes to initiate the making of an agreement must:

(a) give the employee a written proposal; and

(b) if the employer is aware that the employee has, or reasonably should be aware that the employee may have, limited understanding of written English, take reasonable steps (including providing a translation in an appropriate language) to ensure that the employee understands the proposal.

7.5 An agreement must result in the employee being better off overall at the time the agreement is made than if the agreement had not been made.

7.6 An agreement must do all of the following:

(a) state the names of the employer and the employee; and

(b) identify the award term, or award terms, the application of which is to be varied; and

(c) set out how the application of the award term, or each award term, is varied; and

(d) set out how the agreement results in the employee being better off overall at the time the agreement is made than if the agreement had not been made; and

(e) state the date the agreement is to start.

7.7 An agreement must be:

(a) in writing; and

(b) signed by the employer and the employee and, if the employee is under 18 years of age, by the employee’s parent or guardian.

7.8 Except as provided in clause 7.7(b), an agreement must not require the approval or consent of a person other than the employer and the employee.

7.9 The employer must keep the agreement as a time and wages record and give a copy to the employee.

7.10 The employer and the employee must genuinely agree, without duress or coercion to any variation of an award provided for by an agreement.

7.11 An agreement may be terminated:

(a) at any time, by written agreement between the employer and the employee; or

(b) by the employer or employee giving 13 weeks’ written notice to the other party (reduced to 4 weeks if the agreement was entered into before the first full pay period starting on or after 4 December 2013).

Note: If an employer and employee agree to an arrangement that purports to be an individual flexibility arrangement under this award term and the arrangement does not meet a requirement set out in s.144 then the employee or the employer may terminate the arrangement by giving written notice of not more than 28 days (see s.145 of the Act).

7.12 An agreement terminated as mentioned in clause 7.11(b) ceases to have effect at the end of the period of notice required under that clause.

7.13 The right to make an agreement under clause 7 is additional to, and does not affect, any other term of this award that provides for an agreement between an employer and an individual employee.’

[170] In a submission filed on 24 July 2018 89 RCI advances the following points in support of its proposed variation:

  The amendment proposed ‘is in line with the modern awards objective’.

  The proposed variation is found in a like award – the General Retail Industry Award 2010.

  The evidence will indicate that there are sound and valid operational reasons for the variation, particularly the inconvenience of the break during hours of service.

  The variation will make the break more flexible and satisfy employee and employer needs.

[171] United Voice opposes the claim. The relevant submissions are at paragraphs 4 to 16 of United Voice’s submission in reply of 2 November 2018. United Voice rejects the proposition that the General Retail Industry Award 2010 (Retail Award) is a ‘like award’ and also submits:

‘9. The periodicity of the intensity of work covered by the Restaurant Award is a compelling reason to maintain meal breaks as a fixed part of the award safety net.

10. Allowing meal breaks to become the subject of IFAs could result on employees missing out on meal breaks altogether, or with employees not receiving adequate meal breaks.

11. Whilst IFAs are intended to result in the employee “being better off overall at the time the agreement is made than the employee would have been if no individual flexibility agreement had been agreed to” in accordance with clause 7.3(b), the reality is IFAs are not monitored appropriately and there is no guarantee that the employee will be better off under an IFA.

12. This must be considered in light of the high levels of non-compliance in the hospitality industry (including restaurants).

13. A July 2018 Report by the Fair Work Ombudsman (FWO) found that 72% of businesses audited in the industry as part of FWO’s food precinct activities were non-compliant. 90 This is an astonishing level of non-compliance with minimum award standards.

14. The FWO found that the non-provision of meal breaks was a common breach in the food precinct audit. 91

15. Given the high level of non-compliance with the award already, there is a real risk that expanding the IFA provisions to include meal breaks will result in employees being worse off than under the Restaurant Award.’ 92

The Evidence

[172] The part of Mr Bunder’s witness statement that concerns the proposed variation to the meal break of provisions is as follows:

‘20. I support the changes proposed by RCI to clause 32.3 and 32.4 of the Award, which relates to meal breaks. I understand that RCI is seeking to vary the clause to allow employers and employees alike to enter into flexible work arrangements. This would be in the form of an individual flexibility agreement, which is allowed in most awards.

21. The current meal break provisions mean for my business that breaks are at times taken at inconvenient times.

22. The clause should be changed because meal breaks can create problems particularly in the kitchen environment. When the kitchen is busy we have employees that would rather work through their break to get home earlier. If their shift becomes greater because of extra customers I believe that the employee should have the right to make a decision as to whether he or she is to take a break or work through. Protection needs to be put in place so that this definition is not taken advantage of by us the employer so that employees are not exploited. That is why it is important to have a mutual agreement in place, like an individual flexibility agreement.

23. I believe that this would help business like ours reduce our overall wage cost for all employees to finish earlier without impacting on their wage. Working a shift without a 30 minute break would in turn allow them to finish 30 minutes earlier than previously. This would also allow for the staff closing the restaurant to finish at the same time.’ 93

[173] The following points emerged from Mr Bunder’s oral evidence in relation to this issue:

  Kitchen and floor staff work a variety of split and straight shifts: 94

  Mr Bunder acknowledged that the meal break provisions were not an issue for those working split shifts, as neither of the split shifts was more than five hours:

‘It’s the breakfast shift and the evening shift or the afternoon shift that requires the breaks.’ 95

  As to the rationale for the claim, Mr Bunder said:

‘Well, it’s going to allow them to get to go home earlier. So we have a number of staff that do an afternoon shift or an evening shift that have been at school maybe or have been at - this is their second job, and once their shift goes past six hours, we need to sit them down or five hours, as per our award. We sit them down for a half an hour break. It means that they cannot - they get to go home half an hour later than they normally would (indistinct) cleaning the kitchen up or restocking the kitchen for the next day, or doing the bar, restocking the bar as the front of house staff. So they have come to me personally, I have not approached them, and they have said can we sign a waiver to say that we don’t want to take a break, we’d rather do our seven hours or six and a half hours and then go home? So that’s purely the reason for my suggestion to this arrangement, that we be able to sign and (indistinct) an agreement with our staff that they do work - now I’m not saying we want them to work eight or nine hours and I’m not saying they want to work a silly amount of hours, but the current situation does restrict us in allowing them to get home at a reasonable hour and that’s the main reason for us asking for this change. I know when I was a young employee in the industry in the late 80s I would rather work through my shift and go home early than be there at 11 o’clock at night. It gives (indistinct) sit down for half an hour and have a meal break. So that’s the general reason from our point of view

There are times certainly when we need the staff to be in the kitchen. But that’s when I would normally step in and help out and put that person on a break because I cannot afford to pay overtime wages for that person. Like it’s just unsustainable to pay the extra wages just because it’s busy. So I’m in a lucky position I suppose that I’m a chef so I can step in and help out. So we generally have to negotiate our roster system so that, you know, we adhere to the legislation and where our - what we’re asking is that if it’s a little bit more flexible within individual employees then we could be a little bit more flexible with our roster and allow them to just sort of pick and choose when they have a break.’ 96

  As to how he would apply the flexibility in practice, Mr Bunder said:

‘- now I’m not saying we want them to work eight or nine hours and I’m not saying they want to work a silly amount of hours, but the current situation does restrict us in allowing them to get home at a reasonable hour.’ 97

‘we’re not - we’re certainly not asking for an eight hour shift. No, I think that’s a bit too much to ask someone to do an eight hour shift.’ 98 

‘we would not make our staff work nine hours without a break.’ 99

‘I personally in my restaurant would not make my staff work more than seven hours without a break.’ 100

‘I would not expect my staff to work seven or eight hours straight without a break.’ 101

  Mr Bunder acknowledged that working in a restaurant can be fatiguing:

‘So if you’re on your feet as a waitperson you’d agree that you do get tired after five hours in a busy restaurant on your feet serving people?

-Yes.

And whether they want to go home early or not, there is some good occupational health and safety reasons for them to take a break and have the opportunity to eat a meal?

-That’s correct.’ 102

[174] The relevant part of Mr Brailey’s evidence that concerns the proposed variation to the meal break provisions is as follows:

‘17. I support the changes to clause 32.3 and 32.4 of the Award, which relates to meal breaks. I understand that RCI is seeking to change this clause to allow employers and employees to enter into flexible work arrangements. This would be in the form of an individual flexibility agreement. This option already exists in most awards. Typically staff do not compulsory meal breaks disrupting their shifts and having to have breaks outside of normal meal times. For example, a staff member who starts at 8am might have to have a meal break at 11 am so that they are back on the floor for lunch service.

18. The clause should be changed because employers and employees should be given the option of coming to a flexible working arrangement that benefits both parties. We as employers also do not want to disrupt service by having staff on breaks when they might be needed for preparation or busy periods.’ 103

[175] The following points emerged from Mr Brailey’s oral evidence in relation to this issue:

  Kitchen and floor staff work a variety of split and straight shifts: 104

  As to the rationale for the claim Mr Brailey said:

‘Right, okay. Now if you had the ability to do an arrangement where there was no obligation to give them a break - - -?

-No, mate, we don’t want to eliminate breaks. What we want to do is to have flexibility about when they have their breaks.

Right, and you think five hours is an inappropriate point at which they need to have a break?  -

Well, it’s impossible to look at it on that basis because you - like we never know how busy we’re going to be until we’re actually doing it and therefore, you know, if we’re not busy that’s an ideal time for the people to have a break, right? So what we want to do is to actually have the flexibility around that. So, you know, if we’re busy for the first six hours then we want them to be able to have a break after that, you know? If we’re not busy well, you know, then we’d like them to have a break before so that, you know, with the change from breakfast to lunch you have the people available to work when the work’s there. One of the great problems of the restaurant trade is that you just never know when they’re going to turn up. Sometimes they turn up in the most unusual times. It can be blowing a gale outside or something like that and your restaurant’s full, and vice versa…

Well, what we’re trying to do is to free the award up to correspond with the actual working conditions and the demands on the business. 105

[176] As to how he would apply the flexibility in practice, Mr Brailey said:

‘Correct. You’d agree that there are issues about when people are fatigued and they haven’t had a break that they make more mistakes, drop things at work, all that sort of thing?

-Well, I suppose they do. I mean it’s not really noticeable unless they’re actually working 10 hours or something without a break and we - you know, we wouldn’t - you know, we’d make sure that didn’t happen

In terms of there’s a current entitlement to a half hour unpaid break under the award, with these arrangements what were you proposing to provide in compensation for loss of that entitlement in these proposed individual flexibility arrangements?

-Well, we’re not - they’re not going to lose the entitlement. We’re just going to have a flexible arrangement about when they take their break, that’s all. I mean there’s no change to the fact that they get a break, you know? It’s just a question of when.

And what - if this provision was introduced in the normal course - the flexibility you’re looking for at the moment you have to provide it within five hours what additional period do you think would be reasonable?-

Well, if someone - if a front of house staff for instance starts at nine o’clock, all right - where everybody else has started at 7.30 or 8.00 or whatever - then, you know, it would be reasonable for them to work through the lunch service. You know? That would take it past six hours but not very far past six hours. So - you know - if I said six and a half hours I think that would be reasonable. That would encompass the outer limits of what the flexibility that we’d probably need.’ 106

[177] Mr Brailey acknowledged that working in a restaurant can be fatiguing:

‘But you’d agree there’s a point where fatigue will set in if - the periods where you’re asking permission not to allow staff to have breaks will coincide with when the restaurant is particularly busy. You’d agree with that?

- Correct. Yes.

So there will be a greater intensity of work when effectively you’re asking permission not to allow staff to have a break?

- That’s right.

So they’ll be working longer more intense durations. You’d agree with that?

- That’s right. That’s right, yes

You’d agree there’s also greater risk of people having accidents and so forth if they’re driving a long distance home without having had a break after a long shift?

- Well, I suppose that’s possible if - you know, the restaurant business is a tough business and it does tire people, no question about that.’ 107

Consideration

[178] We note that the standard flexibility term in all modern awards – Individual flexibility arrangements – (clause 7 of the Restaurant Award) enables an IFA to be agreed between an employer and an individual employee. Such an IFA may vary the application of certain terms of the award. The scope of operation of IFAs in the Restaurant Award is set out in clause 7.1:

7.1 Despite anything else in this award, an employer and an individual employee may agree to vary the application of the terms of this award relating to any of the following in order to meet the genuine needs of both the employee and the employer:

(a) arrangements for when work is performed; or

(b) overtime rates; or

(c) penalty rates; or

(d) allowances; or

(e) annual leave loading.’ (emphasis added)

[179] RCI’s application proceeds on the assumption that clause 7 does not permit the making of an IFA which varies the application of Clause 32 – Breaks. There is reason to doubt the correctness of this assumption.

[180] The standard IFA term permits IFA’s which vary the application of the terms of the award which relate to ‘arrangements for when work is performed’. In the course of the Transitional Review required pursuant to Schedule 5, Item 6 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (the Transitional Review) a Full Bench considered the scope of the standard flexibility term and the meaning of the expression ‘arrangements for when work is performed’. In particular, the Full Bench said:

‘[108] While we are not persuaded to vary the scope of the model flexibility term in the manner sought we acknowledge that subclause 7.1 has given rise to some ambiguity and uncertainty, particularly in relation to the scope of the expression ‘arrangements for when work is performed’. It is appropriate that this ambiguity and uncertainty be addressed.

[109] As to how this matter may be addressed a number of parties agreed with the proposition that one way of providing clarification would be to identify the specific provisions within each modern award that fall within the expression ‘arrangements for when work is performed’ in clause 7.1. 108 As we noted earlier (see paragraphs [65]-[67] above) the award terms most frequently varied by an IFA related to arrangements for when work is performed.

[110] The starting point in resolving the existing uncertainty is to ascertain the intention of the 2008 AIRC Full Bench when it determined the scope of the model clause. In deciding that award terms dealing with arrangements for when work is performed would be within the scope of the model clause the AIRC Full Bench made reference to paragraph 576J(1)(c) of the WR Act. 109 A provision in the same terms is now in s.139(1)(c) of the FW Act and it provides:

“(1) A modern award may include terms about any of the following matters:

. . .

(c) arrangements for when work is performed, including hours of work, rostering, notice periods, rest breaks and variations to working hours.”

[111] It is tolerably clear that the AIRC Full Bench intended that the reference to ‘arrangements for when work is performed’ would include the matters specifically identified in s.576J(1)(c), of the WR Act (now s.139(1)(c) of the FW Act), that is ‘hours of work, rostering, notice periods, rest breaks and variations to working hours’ (emphasis added)

[117] Having rejected the contention that minimum engagement terms fall within the meaning of the expression ‘arrangements for when work is performed’, the task remains to provide greater clarity as to the award terms that do fall within that expression. In our view, this is best done on an award by award basis, on application by an interested party. In the event such an application is made we will publish draft variations which will identify the specific clauses in the relevant modern award which fall within the purview of the expression ‘arrangements for when work is performed’. 110

[181] An application of the type referred to in [117] in the above quote was made to vary the Retail Award. We agree with United Voice’s submission that the Retail and Hospitality Awards are not ‘like awards’ and hence the fact that the Retail Award permits IFAs to vary meal breaks is of little relevance to the matter before us.

[182] In the course of oral argument RCI was asked to elaborate upon their submission that the proposed variation was ‘in line with the modern awards objective’. In response, Mr Ward, on behalf of RCI submitted:

‘The need to promote flexible work practises…

And efficient and productive performance of work. The hospitality is one as you heard in the evidence that there’s not a lot of predictability available to the employers and operators. It’s also one of very diverse needs from the employee’s side as well so that we submit that it’s within both parties’ interests to have that flexibility or to at least allow the employee to be able to engage in flexible discussions with the employer to come to an agreement on that point.’ 111

[183] We accept that a variation in the terms sought would ‘promote flexible modern work practices and the efficient and productive performance of work’ (s 134(1)(d).

[184] But in our view, for the reasons which follow the claim lacks merit. If the Restaurant Award was varied in the manner proposed by RCI it would not provide ‘a fair and relevant minimum safety net of terms and conditions’; it would not achieve the modern awards objective.

[185] Two things have led us to conclude that the claim lacks merit. The first concerns the ‘breadth’ of the claim, in light of the evidence regarding the issue to which the claim is intended to address. The short point is that the issues identified in the evidence are much narrower in compass than the resolution proposed. To use the vernacular, the claim amounts to using a sledgehammer to crack a walnut.

[186] The variation sought by RCI would make it clear that an employer and an individual employee may agree to an IFA which varies the meal break provisions in clause 32 of the Restaurant Award. Conceivably such an IFA could:

(i) Remove the ‘penalties’ that apply in the event that an employee is not provided with a break within the timeframes prescribed in clause 32, that is:

  an employee is not given an unpaid break at the time the employer has told the employee that it will be given (in which case the employee is to be paid 150% of their ordinary rate of pay until the break is given, or the shift ends: clause 32.3)

  an employee is not given an unpaid break in accordance with clause 32.1 (i.e. no earlier than one hour and no later than six hours after starting work; in which case the employee is to be paid 150% of their ordinary rate of pay until the break is given or the shift ends: clause 32.4)

(ii) Remove the entitlement to an additional 20 minute paid meal break in the event that:

  The unpaid meal break is rostered to be taken after five hours after starting work: clause 32.2.

  The employee is required to work more than five hours after the employee is given an unpaid meal break: clause 32.5.

  A full time or regular part-time employee is required to work more than 10 ordinary hours in the day: clause 32.6.

  An employee is required to work more than two hours’ overtime after the completion of their rostered hours: clause 32.7.

(iii) Significantly extend the maximum period of work to be performed before an employee must be provided with a 30 minute unpaid meal break.

[187] In relation to the latter possibility ((iii) above) it is conceivable that an IFA could vary clause 32 such that an unpaid 30 minute meal break was to be taken after 7 ˝ hours work (rather than no later than 6 hours after starting work: clause 32.1). The IFA term would apply without regard to the context. For example, such a provision would apply irrespective of whether, following a period of particularly high work intensity, an employee became more fatigued than normal.

[188] We acknowledge that an IFA which varies the meal break provisions in the award (or any other permitted subject matter) must ‘result in the employee being better off overall at the time the agreement is made than if the agreement had not been made’ (the ‘BOOT’) (clause 7.5). An IFA must also satisfy a number of procedural and technical requirements. But the ‘BOOT’ is assessed at the time the IFA is made, not necessarily by reference to its practical application in every given future context. In any event there are potential compliance issues in the context of this award, a point to which we shall return shortly.

[189] The breadth of the variations to meal breaks which may be the subject of an IFA in the event the claim is granted stand in stark contrast to the issues that the variation purports to address (as described in the evidence).

[190] Mr Bunder’s evidence was that the meal break provisions were not an issue in respect of those employees working split shifts. The issue only arose for those employees who worked straight shifts: ‘It’s the breakfast shift and the evening shift or the afternoon shift that requires the breaks’. 112 As to how he would apply the IFA provisions in practice Mr Bunder made it clear he would not make his employees work seven hours straight without a break.113

[191] Mr Brailey made it clear that while he was seeking some limited flexibility regarding the requirement in clause 32.1 that an unpaid meal break be given no later than six hours after starting work, but ‘not very far past six hours’. 114 Mr Brailey’s evidence was:

‘So - you know - if I said six and a half hours I think that would be reasonable. That would encompass the outer limits of what the flexibility that we’d probably need.’ 115

[192] Plainly the extent of the flexibility sought by the witnesses is much more limited than that permitted by the variation RCI proposes. Neither Mr Bunder nor Mr Brailey suggested they needed to utilise the IFA provisions to vary clause 32 in the manner set out at (i) and (ii) of [189] above.

[193] The second point we would make concerns the evidence as to the understanding of the IFA processes by employees in the restaurant industry and compliance issues generally. Neither Mr Bunder, nor Mr Brailey had any IFA’s in place in their businesses. Mr Bunder’s evidence also disclosed an erroneous assumption about the implementation (or ‘approval’) of an IFA. Mr Bunder was under the impression that an IFA would have to be approved by the Commission:

‘So what we’re saying is that it would be flexible between the employer and employee and again that would need to be signed off by I imagine Fair Work Australia so that the employee isn’t exploited. I know for a fact, and I can honestly sit here and say I would not expect my staff to work seven or eight hours straight without a break.’ 116

[194] We wish to make it clear that we intend no criticism of Mr Bunder, he was simply being candid as to what he understood the process to be, and it is not an unreasonable assumption in circumstances where enterprise agreements are approved by the Commission (but IFA’s are not).

[195] We note that in the Transitional Review proceedings in relation to the model flexibility term (now at clause 7 of the Restaurants Award) the Accommodation Association of Australia (AAA) proposed that the model term be amended such that IFA’s would be submitted to Fair Work Australia (as the Commission then was), or to the Fair Work Ombudsman (FWO) for approval. The Australian Industry Group and the Australian Chamber of Commerce and Industry opposed AAA’s application. The Full Bench rejected AAA’s application noting that:

‘No substantive argument has been advanced in support of the variation proposed and, in our view, the application lacks merit and would increase the regulatory burden on business, contrary to the modern awards objective (see s.134(1)(f)).

We also note that there is a real question as to whether such a variation would be compatible with the legislative intent of s.144(5).’ 117

[196] As to compliance issues generally, United Voice submitted that there is a high level of non-compliance in the restaurant sector, including regarding the provision of meal breaks and that:

‘Given the high level of non-compliance with the award already, there is a real risk that expanding the IFA provisions to include meal breaks will result in employees being worse off than under the Restaurant Award.’ 118

[197] United Voice relied on two publications by the FWO in support of the above submission. The first publication: Food Precincts Activities – a report on compliance activities undertaken by the Fair Work Ombudsman, July 2018 (the Food Precincts Report), 119 sets out the results of ‘blitz style’ activities which focused on food precincts in Richmond Melbourne, Glebe Point Road in Sydney and in Brisbane’s Fortitude Valley. The FWO’s food precincts campaign primarily focussed on venues in the food and beverages services sector encompassing cafes and restaurants, takeaway food services and pubs, taverns and bars.

[198] At p 5 of the Food Precincts Report the FWO observes that:

‘The hospitality industry, and particularly food precincts, are prone to significant non-compliance with workplace relations laws and the industry is a key focus of the FWO’s compliance operations. Despite the hospitality industry only making up around 7% of Australia’s workforce, it accounted for the highest number (17%) of disputes the FWO assisted with, in 2016-18.’

[199] The Food Precincts Report reveals a high level of non-compliance (at p 15):

‘Of the three areas visited, Melbourne’s Victoria Street had the highest degree of non-compliance with an 81% non-compliance rate.

Of the 243 audits completed across all three precincts during the campaign:

  174 (72%) were non-compliant

  69 (28%) businesses were compliant with all requirements

  57 (23%) businesses were subject to enforcement action as a result of non-compliance

  44 (18%) businesses were issued a Formal Caution as a result of non-compliance

  $471 904 was recovered for 616 employees from 102 businesses.’

[200] The second FWO publication relied on by United Voice is a FWO media release dated 11 July 2018 which accompanied the release of the Food Precincts Report, which says:

‘The most common breaches related to underpayment of workers base hourly rates (38%) with inadequate or non-existent employment records and pay slips another common trend (28%). Other common issues included non-provision of meal breaks, incorrectly classified workers and non-payment of overtime’. 120 (emphasis added)

[201] The high level of non-compliance in this sector is an important contextual factor which tends to suggest that a cautious approach be taken to the provision of additional flexibility through the use of IFA’s.

[202] For the reasons given we reject RCI’s claim. Further, it is our provisional view that clause 32 should be expressly excluded from the scope of IFAs and to that end would propose to amend clause 7.1(a) as follows:

‘7. Individual flexibility arrangements

7.1 Despite anything else in this award, an employer and an individual employee may agree to vary the application of the terms of this award relating to any of the following in order to meet the genuine needs of both the employee and the employer:

(a) arrangements for when work is performed, excluding clause 32; or

(b) overtime rates; or

(c) penalty rates; or

(d) allowances; or

(e) annual leave loading.’ (emphasis added)

[203] We also propose to further review clause 32, in light of the evidence in the proceedings regarding the need for additional flexibility in the operation of the provision.

[204] We note that the Review is to be distinguished from inter partes proceedings. Section 156 imposes an obligation on the Commission to review all modern awards and each modern award must be reviewed in its own right. The Review is conducted on the Commission’s own motion and is not dependent upon an application by an interested party. Nor is the Commission constrained by the terms of a particular application. 121 The Commission is not required to make a decision in the terms applied for (s 599) and, in a Review, may vary a modern award in whatever terms it considers appropriate, subject to its obligation to accord interested parties procedural fairness and the application of relevant statutory provisions, such as ss 134, 138 and 578.

[205] At the time the Hospitality and Restaurant Awards were made they contained identical rest break provisions. 122 Clause 31 of the Hospitality Award was then varied during the Transitional Review, reflecting a consent position by United Voice and the AHA.123 The variation determination124 took effect on 15 August 2013 and a marked up version of clause 31, showing the variations is set out below:

31. Breaks

31.1 Breaks

If anAn employee, (including a casual employee,) who is required to work for five ora shift of more than five hours and up to six hours in a day they must be givenmay elect to take an unpaid meal break of no less thanup to 30 minutes during the shift and the employer shall not unreasonably refuse the request. The break must be given no earlier than one hour after starting work and no later than five and a half hours after starting work.

31.2 If the unpaid meal break is rostered to be taken after five hours of starting work, the employee must be given an additional 20 minute paid meal break. The employer must allow the employee to take this additional meal break no earlier than two hours after starting work and no later than five hours after starting work.

31.2 Longer shifts

(a) If the employee is required to work a shift of more than six hours and up to eight hours, the employee is entitled to an unpaid meal break of no less than 30 minutes. The unpaid break may be taken no earlier than two hours after starting work and no later than six hours of starting work.

(b) If the employee is required to work a shift of more than eight hours and up to 10 hours, the employee is entitled to an unpaid break of no less than 30 minutes and an additional 20 minute paid break (which may be taken as two 10 minute paid breaks).

The unpaid break may be taken no earlier than 2 hours after starting work and no later than six hours after starting work. Breaks should be spread evenly across the shift.

(c) If the employee is required to work a shift exceeding 10 hours, the employee is entitled to an unpaid break of no less than 30 minutes and two 20 minute paid breaks. The unpaid break may be taken no earlier than two hours after starting work and no later than 6 hours after starting work. Breaks should be spread evenly across the shift.

31.3 Request for unpaid meal break

(a) Where an employee elects to take an unpaid break, the request must be made in writing no later than at the commencement of a shift and the employer shall not unreasonably refuse the request.

(b) The written request will apply to all shifts undertaken by the employee of more than five hours, unless otherwise agreed between the employee and employer. This arrangement may be reviewed at any time.

31.3 If an employee is not given the unpaid meal break at the time the employer has told them it will be given, the employer must pay the employee an extra hourly or part thereof payment at the rate of 50% of the ordinary hourly rate from the time the meal break was to commence until either the meal break is given or the shift ends.

31.4 If clause 31.3 does not apply and an employee is not given a meal break in accordance with clause 31.1 the employer must pay the employee an extra hourly or part thereof payment at the rate of 50% of the ordinary hourly rate from the end of six hours until either the meal break is given or the shift ends.

31.4 Break not given

For a shift of more than six hours, if the employer does not release an employee for an unpaid meal break the employee shall be paid at the rate of 50% of the ordinary hourly rate extra for each hour or part of an hour from six hours after the employee started work until the employer gives the employee the unpaid meal break, or until the shift ends.

31.5 Entitlement to additional breaks

(a) If the employer requires an employee an employee is required to work more than five continuous hours after they are given thean unpaid meal break, theythe employer must give the employee be given an additional 20 minute paid break.

31.6 If a full-time or part-time employee is required to work more than 10 ordinary hours in the day, they will be given two additional 20 minute paid breaks. In rostering for these breaks, the employer must make all reasonable efforts to ensure an even mix of work time and breaks.

31.7 (b) If the employer requires an employee an employee is required to work more than two hours’ overtime after completion of the employee’sthe employee completes his or her rostered hours, theythe employer must give the employee be given an additional 20 minute paid break.’

[206] The main changes introduced by the variation determination appear to be:

  providing that an unpaid meal break of 30 minutes was optional (at the election of the employee) for shifts of more than 5 hours and up to 6 hours duration;

  removal of the 150% payment if the unpaid meal break is not given at the time the employer told the employee it will be given;

  provision of one additional 20 minute paid break for shifts of between 8 and 10 hours duration; and

  provision of two (previously one) additional paid break for shifts exceeding 10 hours.

[207] We now turn to review the meal break provisions in the Restaurant Award. There are number of aspects of clause 32 that invite attention, in particular:

  Clause 32.6 provides that a ‘full-time or regular part-time employee’ required to work more than 10 ordinary hours in the day is to be given ‘two additional 20 minute paid breaks’. This provision gives rise to two issues, :

● Casual employees may be engaged for a maximum of 12 hours per day or per shift (clause 13.2(a)). Time worked in excess of 12 hours per day or per shift is paid at overtime rates (clause 13.5). Given that the additional breaks are plainly directed at alleviating fatigue associated with working more than 10 ordinary hours in a day, why doesn’t the clause apply to casual employees?

● Does the ‘10 ordinary hours in the day’ have to be worked continuously or does the provision apply to ‘split shifts’?

  Clause 32.7 provides that an employee required to work more than two hours’ overtime after completion of their ‘rostered hours’ must be given an additional 20 minute paid break. This provision may have unintended consequences, :

● A part-time employee must not be rostered to work in excess of 11 ˝ hours or less than 3 hours in a day (clause 12.5(b)). What if a part-time employee is only rostered to work for three hours and then is required to work a further three hours overtime – they would have to be provided with an unpaid meal break of 30 minutes (clause 23.1) and an additional 20 minute paid break (clause 23.7) in circumstances where they have only worked for six and a half hours.

[208] In addition to these issues with the current clause, the evidence in these proceedings points to the need to provide some additional flexibility regarding the timing of the breaks required by clause 32.1. As set out earlier clause 32.1 provides:

‘32.1 If an employee, including a casual employee, is required to work for five or more hours in a day the employee must be given an unpaid meal break of no less than 30 minutes. The break must be given no earlier than one hour after starting work and no later than six hours after starting work.’ (emphasis added)

[209] The flexibility sought by the witnesses concerned the requirement that the meal break required by clause 32.1 be taken ‘no later than six hours after starting work’. It will be recalled that Mr Bunder’s evidence was that he would not make his employees work seven hours straight without a break. Mr Brailey made it clear that he sought some additional flexibility regarding the requirement that a break be given no later than six hours after starting work, but that the break should be taken ‘not very far past six hours’ and that ‘six and a half hours … would be reasonable’. 125

[210] We propose to vary clause 32 to insert an individual facilitative provision whereby an individual employee and employer may agree that the unpaid meal break required by clause 32.1 may be taken ‘no later than six and a half hours after starting work.’

[211] It is our provisional view that clause 32 of the Restaurant Award should be replaced by the following:

32. Breaks

16.1 Clause 32 deals with meal breaks and rest breaks and gives an employee an entitlement to them in specified circumstances.

16.2 Frequency of breaks

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

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

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

32.4 Agreement as to time of unpaid meal break

(a) An employer and an employee may agree that an unpaid meal break is to be taken after the first hour of work and within the first 6 and a half hours of work.

(b) An agreement must be made after the start of the employee’s shift and within the first 5 hours of the work to which it applies.

(c) The agreement may be reviewed at any time.

NOTE: Under section 344 of the Act, an employer must not exert undue influence or undue pressure on an employee to make an agreement under clause 16.4(a).

32.5 Employer to pay higher rate if break not allowed at rostered time

If the employer does not allow the employee to take an unpaid meal break at the rostered time (or at the time agreed under clause 32.4), then the employer must pay the employee at the rate that applies under clause 32.6:

(a) from when the meal break was due to be taken;

(b) until either the employee is allowed to take the break or the shift ends.

32.6 If an employee is not allowed to take an unpaid meal break in accordance with clause 32.2 at the rostered time, the employer must pay the employee 150% of the employee’s minimum hourly rate from when the meal break was due to be taken until either the employee is allowed to take the break or the shift ends.

32.7 Employer to pay higher rate if break not allowed and no rostered time

If the employer does not allow the employee to take an unpaid meal break and there is no rostered time for the break, then the employer must pay the employee at the rate that applies under clause 32.8:

(a) unless an agreement under clause 32.4 applies, from the end of 6 hours after starting work until either the employee is allowed to take the break or the shift ends; or

(b) if an agreement under clause 32.4 applies, from the end of 6 and a half hours after starting work until either the employee is allowed to take the break or the shift ends.

32.8 If an employee is not allowed to take an unpaid meal break in accordance with clause 32.2 and there is no rostered time for the break, the employer must pay the employee 150% of the employee’s minimum hourly rate:

(a) unless an agreement under clause 32.4 applies, from the end of 6 hours after starting work until either the employee is allowed to take the break or the shift ends; or

(b) if an agreement under clause 32.4 applies, from the end of 6 and a half hours after starting work until either the employee is allowed to take the break or the shift ends.

32.9 Additional rest break

An employer must give an employee an additional paid rest break of 20 minutes if the employer requires the employee to work more than 5 continuous hours after an unpaid meal break.’

5. Tool Allowance – the common claim

[212] The tool allowance claims made by United Voice seek the same outcome in relation to both awards and it is convenient to deal with them together. In doing so we wish to make it clear that we have considered the claims in the context of the particular awards and have reviewed each award in its own right.

[213] Clause 21.1(b)(i) of the Hospitality Award provides that:

(i) Where a cook is required to use their own tools, the employer must pay an allowance of $1.55 per day or part thereof up to a maximum of $7.60 per week.’

[214] Clause 21.1(j) provides for the adjustment of expense-related allowances and the relevant adjustment factor for the tool allowance is the percentage movement in the ‘Clothing and footwear group’ within the CPI.

[215] The comparable provisions in the Restaurant Award are at clauses 24.3(a) and 24.5. The tool allowance provisions in the Restaurant Award are different in quantum, application and method of adjustment to those in the Hospitality Award. Clauses 24.3(a) and 24.5 of the Restaurant Award provide:

24.3 (a) Where an apprentice cook is required to use their own tools (and is not in receipt of a tool allowance), the employer must pay an allowance of $1.73 per day or part thereof up to a maximum of $8.49 per week…

24.5 At the time of any adjustment to the standard rate, each expense related allowance will be increased by the relevant adjustment factor. The relevant adjustment factor for this purpose is the percentage movement in the applicable index figure most recently published by the Australian Bureau of Statistics since the allowance was last adjusted.

The applicable index figure is the index figure published by the Australian Bureau of Statistics for the Eight Capitals Consumer Price Index (Cat No. 6401.0), as follows:

[216] The background to the current tool allowance provisions in these awards is set out at Attachment B.

[217] The claims advanced by United Voice seek to align the tool allowance provisions in these two awards: to increase the quantum of the allowance and to vary the indexation factor.

[218] The claim to vary the indexation factor in the Hospitality Award from the clothing and footwear group to the tools and equipment group is not opposed.

[219] The indexation factor for the tool allowance provision in the Hospitality Award was not the subject of any contest or detailed consideration during the award modernisation process.

[220] Clothing and footwear is one of the 11 groups in the CPI. This group includes expenditure on clothing, footwear, accessories such as watches and jewellery and services such as dry cleaning and shoe repair services. 126

[221] Tools and equipment for house and garden is an expenditure class in the sub-group of Household appliances, utensils and tools (within the Furnishings, household equipment and services group) (tools CPI). Items in this expenditure class include motorised and hand tools such as electric drills, saws, lawnmowers, screwdrivers, wrenches and spanners; garden tools such as wheelbarrows, spades, shovels; ladders; door fittings (hinges, handles and locks). 127

[222] A summary of the tool allowance provisions in various other modern awards is at Annexure A to United Voice’s submission of 24 July 2018. 128 Almost all of the tool allowances referred to in Annexure A are varied according to movements in the ‘Tools, equipment’ component of the CPI. The exceptions are the Registered and Licensed Clubs Award 2010 which is in similar terms to the Hospitality Award, and the Building and Construction General On-site Award 2010, which is varied in accordance with movements in the Eight Capitals CPI.

[223] In our view there is no rational justification for varying an allowance relating to kitchen tools by reference to movements in the clothing and footwear component of the CPI. We propose to grant this aspect of United Voice’s claim.

[224] The second element of United Voice’s claim concerns the scope of the tool allowance provisions.

[225] At present, the tool allowance in the Hospitality Award is only paid to cooks, not apprentice cooks. Conversely, in the Restaurant Award, the allowance is only paid to apprentice cooks, not cooks. United Voice seeks to vary the awards such that the tool allowance is paid:

‘where a cook or apprentice cook is required to use their own tools…’ 129

[226] United Voice submits that the tool allowance is intended to compensate for the disutility experienced by an apprentice cook or a cook when directed to use their own tools at work, including:

  Maintenance and sharpening;

  Managing the risk of theft and replacement.

[227] United Voice also submits:

‘There is also the incentive such an allowance creates for the development and maintenance of trade skills and efficiencies which benefit both the employee and the employer. There are efficiencies associated with the worker using good quality tools that he or she is familiar with.’ 130

[228] The Associations and ABI do not oppose United Voice’s claim regarding the scope of the tool allowance clauses. RCI takes a different view; it opposes the variation sought on the basis that United Voice has not advanced any evidence to justify the proposed variations.

[229] There appears to be no particular reason why the tool allowance only applies to cooks (and not apprentices) in the Hospitality Award and to apprentice cooks (and not cooks) in the Restaurant Award. RCI was invited to identify any logical basis for the different approach taken in each award, but did not do so.

[230] Given the similarities between these two awards, to which we have referred earlier (see [115] to [121] above) we are satisfied that the scope of the tool allowance provision should be the same in each award. We are also satisfied that the allowance should be paid ‘where a cook or apprentice cook is required to use their own tools…’.

[231] The final aspect of United Voice’s tool allowance claim concerns the quantum of the allowance. The quantum of the allowances in the two allowances are different:

Hospitality Award: ‘$1.55 per day or part thereof, up to a maximum of $7.60 per week’

Restaurant Award: ‘$1.73 per day or part thereof, up to a maximum of $8.49 per week’.

[232] United Voice seeks a common, increased, quantum in both awards; ‘$2.55 per day or part thereof up to a maximum of $11.20 per week’. As to the justification for such an increase, United Voice submits:

‘Both are tool allowances and what is sought to be compensated is materially very similar. There is a degree of arbitrariness as to the amount of any such allowance and this is why the standard in other modern awards is the most relevant consideration. A historical approach whereby award histories are reviewed with a view to extracting some scientific or mathematical justification as to what is a proper amount is unhelpful and otiose. A comparison of what comparable modern awards provide now is the most useful practical guide in this review’. 131

[233] United Voice relies on the quantum of the tool allowances in Annexure A to its submission of 24 July 2018 to support its claim to increase the quantum of these allowances in the Hospitality and Restaurant Awards. During the course of oral argument United Voice placed particular reliance on the tool allowances paid to cooks under the Aged Care Award 2010 and the Health Professionals and Support Services Award 2010. Each of these allowances is $11.20, but we would observe that the tool allowance provisions in these awards are distinguishable from the tool allowance provisions in the Hospitality and Restaurant Awards as they do not provide any mechanism for the reimbursement of the cost of purchasing tools.

[234] During the course of oral argument United Voice acknowledged that its claim with respect to the quantum of the tool allowance ‘has a significant element of ambit in it’ and that its ‘principal concern’ was to align the quantum of the tool allowance in both awards, at the level prescribed in the Restaurant Award. 132

[235] As to aligning the quantum of the allowances in the two awards, United Voice submits:

‘The current tool allowances in the 2 awards are by any reasonable assessment discordant with each other. For what should be broadly similar allowances, in related modern awards, they provide for the payment of different amounts, the basis of eligibility is different and the CPI factor applied is different. There does not appear any discernible rational justification for these differences and resolution of such anomalies is an appropriate object of ‘review’ within a 4 yearly review. Modern award factors 134(1)(e) and (g) are relevant to harmonising the tool allowance for persons working as cooks and apprentices in restaurants and hospitality.’ 133

[236] The Associations did not oppose the tool allowance in the Hospitality Award being increased to the level of the allowance in the Restaurant Award (i.e. $8.49) and then both allowances being adjusted by reference to the tools CPI component. 134 The Associations oppose any increase in the allowance beyond $8.49, on the basis that no case has been made out for the increase to $11.20 proposed by United Voice. ABI supports the position of the Associations, while not resiling from its primary submission.135

[237] In opposing the claim, RCI submits:

‘RCI opposes the claim to increase the amount of the tool allowance in clause 21.1(b)(i) of the Hospitality Award and clause 24.3(a) of the Restaurant Award. United Voice have not advanced any evidence to demonstrate that employees are being disadvantaged by the current amount of the tool allowance…

It is also relevant that clause 21.1(b)(x) of the Hospitality Award and clause 24.3(i) of the Restaurant Award stipulate that where the employer requires an employee to provide and use certain tools, the employer must reimburse the employee for the costs of purchasing such equipment. Employees are therefore reimbursed in full for any costs related to purchasing the tools and also receive a separate tool allowance for having to use the tools in the course of their employment’. 136

[238] All parties were invited to identify the justification for the difference in the quantum of the tool allowance in these two awards; no logical justification was proffered.

[239] In considering the quantum of allowance in the Hospitality Award it is of interest to look at what the quantum of the tool allowance would have been had the ‘tools and equipment for house and garden’ been used to adjust the allowance’ since the modern award was made in 2010.

[240] If the tool allowance in the Hospitality Award had been adjusted by reference to the tools index, since 2010, it would be 7 cents higher per day, or 33 cents higher per week (i.e. $1.62 per day, $7.93 per week).

[241] We agree with the Associations’ submission. There is merit in aligning the tool allowances in the two awards, at $8.49. We also agree that United Voice has failed to make a case for any increase above this level. We reject United Voice’s application to increase the tool allowance in the Restaurant and Hospitality Awards to $11.20. We will increase the quantum of the tool allowance in the Hospitality Award to $8.49. The tool allowance provisions in each award will be adjusted by reference to movements in the Tools CPI component.

[242] The variations we propose to make to the tool allowance provisions in these awards will assist the low paid to meet their needs (s 134(1)(a)) and will have an adverse impact on employment costs (s 134(1)(f)), albeit the impact is not likely to be significant. None of the other s 134 considerations are relevant to these claims. No party contended to the contrary. Taking into account the s 134 considerations (insofar as they are relevant) we are satisfied that the variations proposed are necessary to ensure that the Hospitality Award and the Restaurant Award achieve the modern awards objective.

6. Conclusion

[243] The central issue in these proceedings is whether the amendments we propose to make to the Hospitality Award and the Restaurant Award provide a ‘fair and relevant minimum safety net’. As mentioned earlier, fairness in this context is to be assessed from the perspective of the employees and employers covered by the modern award in question.

[244] The modern awards objective is to ‘ensure that modern awards, together with the NES, provide a fair and relevant minimum safety net of terms and conditions’, taking into account the particular considerations identified in paragraphs 134(1)(a)–(h). We have taken into account those considerations insofar as they are relevant to the matters before us and have decided to vary the awards in the manner indicated below. In our view these variations are necessary to ensure that the Hospitality Award and the Restaurant Award achieve the modern awards objective.

[245] The Hospitality Award will be varied as follows:

  A definition of ‘junior employee’ and ‘accrued day off’ will be inserted in clause 3.1 (see paragraphs [33] and [39]);

  Clause 14.12 will be deleted and replaced with a new clause which provides for competency based progression (see paragraphs [34] and [40] – [43]);

  Clause 20.4 will be deleted and replaced with a new apprentice wages clause which includes competency based wage progression and amendments to terminology such as replacing references to ‘standard weekly rate’ with ‘standard hourly rate’ (see paragraph [35];

  Clause 21.1(b)(i) – Tool allowance – scope of the provision will be expanded to ‘where a cook or apprentice cook is required to use their own tools…’ and the quantum of the allowance will be increased to $1.73 per day or part thereof and $8.49 per week. Clause 21.1(j) will be varied to provide that the method of adjustment for the tool allowance will be the ‘Tools and equipment for house and garden component of the household expenses utensils and tools subgroup of the CPI (see [212][242]);

  Clause 21.1(h) – working away from usual place allowance – will be varied to delete the last sentence (see [126][134]);

  The fork-lift driver allowance at clause 21.2(a) will be varied to be expressed as an all-purpose allowance (see paragraphs [36] and [39]);

  Clauses 27.2(c) and 32.2(b) will be varied to give greater flexibility in relation to the time within which accrued time off is taken (see paragraphs [44][55]);

  Clauses 29.1(a) and (c) will be varied to insert ‘accrued day off’ (see paragraphs [37] and [39]);

  Clause 29.1(a) will be varied to provide for hours of work to be averaged as 76 hours over a two week period, with a minimum of four days off in each two week period (see paragraphs [56][62]);

  Clause 32.2(a) – penalty rates – public holidays will be varied to make it clear that the minimum engagement periods refer to all hours worked during a shift and not only to the hours worked on the day that is the public holiday (see [63][76]);

  Clauses 39.2 and 39.3 will be varied to permit a deduction of $7.96 per meal and to give effect to the other aspects of the variation submitted by the Associations and United Voice. The quantum of the deduction will be adjusted by reference to annual movements in the take away and fast food component of the CPI (see [77][111]); and

  The definition of food and beverage attendant grade 2 in clause D.2.1 of Schedule D will be amended to include ‘taking reservations, greeting and seating guests’ (see [114]-[127])

[246] The Restaurant Award will be varied as follows:

  Clause 24.3(a) – tool allowance – scope of the provision will be expanded to ‘where a cook or apprentice cook is required to use their own tools’ (see [212][242]).

[247] All of the other claims before us are dismissed.

7. Next steps

[248] Draft variation determinations giving effect to our decision are attached (see Attachments C and D). Interested parties will have until 4pm Wednesday, 30 January 2019 to comment on the draft variation determinations. Any comments are to be filed to amod@fwc.gov.au. The variation determinations will be finalised on the papers unless any party requests an oral hearing. Any such request must be made in writing and by no later than 4pm Monday, 21 January 2019.

[249] At [202] we expressed the provisional view that clause 32 of the Restaurant Award be varied to be expressly excluded from the scope of IFAs. We also propose to further review clause 32 of the Restaurant Award and clause 31 of the Hospitality Award – both the provisions which deal with ‘breaks’ (see [203] [205]). We have identified a number of aspects of clause 32 that invite attention (see [207]) and have expressed a provisional view that clause 32 (of the Restaurant Award) be replaced by the term set out at [211]. Submissions in respect of these provisional views are to be filed by no later than 4pm Wednesday, 30 January 2019. Submissions in reply are to be filed by no later than 4pm Monday, 11 February 2019. These issues will be determined on the papers unless any party requests an oral hearing. Such a request must be made in writing and by no later than 4pm Monday, 21 January 2019.

[250] We note that a number of the Associations’ claims to vary the Hospitality Award have been deferred pending the finalisation of related proceedings, in particular:

  Item 19 – Payment of wages – the determination of this claim will be deferred until the finalisation of the Payment of Wages common issue.

  Item 34 – Public holidays – additional arrangements for full time employees – the hearing of this claim will be deferred until the finalisation of AM2017/39. The Associations’ claim will then be heard and determined by the Public Holidays Full Bench.

[251] Further, RCI’s claim (item 6) to vary clause 27 – Payment of Wages of the Restaurant Award will be deferred until the finalisation of the Payment of Wages common issue.

[252] There are two final matters which we wish to raise.

[253] Clause 39 of the Restaurant Award provides as follows:

No deduction for breakages or cashiering underings

An employer must not deduct any sum from the wages or income of an employee in respect of breakages or cashiering underings except in the case of wilful misconduct.’

[254] As presently drafted this clause gives rise to a right (or at least an implied right) to deduct a sum from an employee’s wages in respect of ‘breakages or cashiering underings’ in circumstances where the employee has engaged in ‘wilful misconduct’.

[255] As mentioned earlier, s 151 provides that a modern award must not include a term that has no effect because of subsections 326(1), (3) or (4). It is clear that clause 39 would have no effect insofar as it purports to permit a deduction from an amount payable to an employee under 18 years in circumstances where the deduction is not agreed in writing by a parent or guardian of the employee (contrary to s 326(4)). More generally such a deduction will be of no effect if it is ‘unreasonable in the circumstances’ (see s 325(1)(b)); this may be the case if the deduction was disproportionate to the ‘breakages or cashiering underings’. Absent any proposal to vary clause 39 such that it is compliant with subsections 326(1), (3) and (4) it is our provisional view that the clause be deleted. We will include a variation to this effect in the draft variation determination published with this decision. Anyone opposing our provisional view may make a submission to that effect in response to the draft variation determination, by no later than 4pm Wednesday, 30 January 2019. Submissions in reply are to be filed by no later than 4pm Monday, 11 February 2019. This matter will be determined on the papers unless any party requests an oral hearing. Such a request must be made in writing by no later than 4pm Monday 21 January 2019.

[256] The second matter concerns the progression arrangements for apprentices in the Restaurant Award. As we have determined earlier, a competency based pay scale for apprentices will be inserted into the Hospitality Award. The variation will mean that the Hospitality Award will provide for both CBWP (where permitted in a State or Territory) and time based arrangements. The variation also expands the range of apprenticeship options available to better align the apprenticeship provisions and the trade classifications in the award. As we have indicated, we are satisfied that the variation proposed for the Hospitality Award is necessary to ensure that the award achieves the modern awards objective.

[257] The Restaurant Award only provides time based progression for apprentices (see clause 20.2). Given the similarities in coverage between the two awards it is our provisional view that the Restaurant Award be varied in the same manner as the Hospitality Award. We propose to include a variation to this effect in the draft variation determinations published with this decision. Anyone opposing our provisional view may make a submission to that effect in response to the draft variation determination, by no later than 4pm Wednesday, 30 January 2019. Submissions in reply are to be filed by no later than 4pm Monday, 11 February 2019. This matter will be determined on the papers unless any party requests an oral hearing. Such a request must be made in writing by no later than 4pm Monday 21 January 2019.

[258] All submissions are to be sent to amod@fwc.gov.au.

PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR702693>

ATTACHMENT A – Summary of legislative provisions relating to the service of alcohol by juniors

ATTACHMENT B

Tools allowance in the Hospitality Industry (General) Award 2010

In [2008] AIRCFB 1000, the Full Bench decided to insert the following clause on the Consumer Price Index (CPI) into all modern awards and stated that the CPI is to be adjusted in accordance with the specified index at the time of any general wage adjustment:

[75] In order to ensure that those covered by each award have access to the current amount, arrangements will be made for the expense-related allowances to be updated in accordance with the specified index at the time of any general wage adjustment.’

A description of the CPI group, sub-group and expenditure classes relevant to the tools allowance for the Hospitality Industry (General) Award 2010 is provided below.

The following pre-modern awards to the Hospitality Industry (General) Award 2010 (Hospitality Award) contained ‘clothing, equipment and tools’ clauses:

  Hospitality Industry - Accommodation, Hotels, Resorts and Gaming Award 1998

  Hotels, Resorts and Certain Other Licensed Premises Award - State (Excluding South-East Queensland) 2003

  Liquor and Allied Industries Catering, Cafe, Restaurant, Etc. (Australian Capital Territory) Award 1998

  Liquor Trades Hotels (Australian Capital Territory) Award, 1998

  Motels, Accommodation and Resorts (State) Award.

In addition, the predecessors to the Restaurant Industry Award 2010: Airport Catering Award 2002 and Liquor and Allied Industries Catering, Cafe, Restaurant, Etc. (Australian Capital Territory) Award 1998 contained ‘clothing, equipment and tools’ clauses.

These clauses are extracted in the attached table.

Award modernisation consideration

Award modernisation decisions on the Hospitality Award do not discuss the ‘clothing, equipment and tools allowances. In the Exposure Draft dated September 2008 there is the ‘clothing, equipment and tools’ clause.

There will be no discussion on the provisions in the Restaurant Industry Award 2010 as it used the Hospitality Industry Award as a base document.

Tables showing clothing, equipment and tools’ allowance clauses in predecessor awards to the Hospitality Industry (General) Award 2010 and Restaurant Industry Award 2010

fwc_logo
MA000009  PRXXXXXX

DRAFT DETERMINATION

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

4 yearly review of modern awards – Hospitality Industry (General) Award 2010 – substantive issues

(AM2017/57)

HOSPITALITY INDUSTRY (GENERAL) AWARD 2010

[MA000009]

Restaurants

JUSTICE ROSS, PRESIDENT
DEPUTY PRESIDENT MASSON
COMMISSIONER LEE

MELBOURNE, XX DECEMBER 2018

4 yearly review of modern awards – Hospitality Industry (General) Award 2010– substantive issues.

A. Further to the Full Bench decision issued by the Fair Work Commission on XX December 2018 [2018] FWCFB XXXX, the above award is varied as follows:

1. By inserting the following definitions in clause 3.1 in alphabetical order:

accrued day off means a paid day off accrued in accordance with clause 29.1(a) and 29.1(c) that is not a rostered day off.

junior employee means an employee under the age of 20 who is not undertaking a nationally recognised traineeship or apprenticeship.

2. By inserting a new clause 14.12 as follows:

14.12 Competency based progression

(a) For the purpose of competency based wage progression in clause 20.4 an apprentice will be paid at the relevant wage rate for the next stage of their apprenticeship if:

(i) competency has been achieved in the relevant proportion of the total units of competency specified in clause 20.4 for that stage of the apprenticeship. The units of competency which are included in the relevant proportion must be consistent with any requirements in the training plan; and

(ii) any requirements of the relevant State/Territory apprenticeship authority and any additional requirements of the relevant training package with respect to the demonstration of competency and any minimum necessary work experience requirements are met; and

(iii) either:

(b) If the employer disagrees with the assessment of the RTO referred to in clause 14.12(a)(iii)(B) above, and the dispute cannot be resolved by agreement between the RTO, the employer and the apprentice, the matter may be referred to the relevant State/Territory apprenticeship authority for determination. If the matter is not capable of being dealt with by such authority it may be dealt with in accordance with the dispute resolution clause in this award. For the avoidance of doubt, disputes concerning other apprenticeship progression provisions of this award may be dealt with in accordance with the dispute resolution clause.

(c) For the purposes of this clause, the training package containing the qualification specified in the contract of training for the apprenticeship, sets out the assessment requirements for the attainment of the units of competency that make up the qualification. The definition of “competency” utilised for the purpose of the training packages and for the purpose of this clause is the consistent application of knowledge and skill to the standard of performance required in the workplace. It embodies the ability to transfer and apply skills and knowledge to new situations and environments.

(d) The apprentice will be paid the wage rate referred to in clause 14.12(a) from the first full pay period to commence on or after the date on which an agreement or determination is reached in accordance with clause 14.12(a)(iii) or on a date as determined under the dispute resolution process in clause 14.12(b).

(e) If the apprentice disagrees with the assessment of the RTO referred to in clause 14.12(a), and the dispute cannot be resolved by agreement between the RTO, the employer and the apprentice, the apprentice may refer the matter to the relevant State/Territory apprenticeship authority for determination. If the matter is not capable of being dealt with by such authority it may be dealt with in accordance with the dispute resolution clause in this award. For the avoidance of doubt, disputes concerning other apprenticeship progression provisions of this award may be dealt with in accordance with the dispute resolution clause.

3. By deleting clause 20.4 and inserting the following:

20.4 Apprentice wages

(a) Apprentices other than Waiting apprenticeship

(i) A person who has completed a full apprenticeship for which there is a trade qualified classification provided for in this award, must be paid no less than the standard hourly rate for each hour worked.

(ii) Except where clause 20.4(a)(iii) is applicable an employee will be paid the percentage of the standard hourly rate for each hour worked, in accordance with the following table:

(iii) Competency based wage progression

Where the relevant apprenticeship legislation allows competency based progression and the training contract does not specify otherwise, an employee apprenticed in a trade after < date of the Determination> will be paid the percentage of the standard hourly rate for each hour worked, in accordance with the following table:

(A) Four year apprenticeship (nominal term)

(B) Three year apprenticeship (nominal term)

(b) Waiting apprenticeship

(i) Any person who has completed a full apprenticeship as a qualified tradesperson must be paid not less than the standard hourly rate for each hour worked.

(ii) Except where clause 20.4(b)(iii) is applicable, an employee apprenticed in the waiting table will be paid the relevant percentage or portion of the standard hourly rate for each hour worked, in accordance with the following table:

(iii) Where the relevant apprenticeship legislation allows competency based progression and the training contract does not specify otherwise an employee apprenticed in the waiting trade after <date of the Determination> will be paid the percentage of the standard hourly rate for each hour worked, in accordance with the following table:

(A) Two year waiting apprenticeship (nominal term)

(c) Proficiency payments – cooking trade

(i) Application

Proficiency pay as set out in clause 20.4(c)(ii) will apply to apprentices who have successfully completed their schooling in a given year.

(ii) Payments

Apprentices must receive the standard hourly rate during the latter half of the fourth year of the apprenticeship where the standard of proficiency has been attained on one, two or three occasions on the following basis:

(1) one occasion only:

  for the first nine months of the fourth year of apprenticeship, the normal fourth year rate of pay;

  thereafter, the standard hourly rate.

(2) on two occasions:

  for the first six months of the fourth year of apprenticeship, the normal fourth year rate of pay;

  thereafter, the standard hourly rate.

(3) on all three occasions:

  for the entire fourth year, the standard hourly rate.

(d) Proficiency payments – waiting trade

(i) Application

Proficiency pay as set out in clause 20.4(d)(ii) will apply to level 2 apprentices who have successfully completed their schooling in the first year.

(ii) Payments

Apprentices who have attained the standard of proficiency in ther first year must receive the standard hourly rate for each ordinary hour worked during the latter half of the second year of apprenticeship.

(e) Adult apprentices

(i) The minimum hourly wage for an adult apprentice who commenced on or after 1 January 2014 and is in the first year of their apprenticeship must be 80% of the minimum hourly wage for Level 4 in clause 20.4(a) or 20.4(b), or the rate prescribed by clause 20.4(a) or 20.4(b) for the relevant year or stage of the apprenticeship, whichever is the greater.

(ii) The minimum hourly wage for an adult apprentice who commenced on or after 1 January 2014 and is in the second and subsequent years of their apprenticeship must be the rate for the lowest adult classification in clause 20.1, or the rate prescribed by clause 20.4(a) or 20.4(b) for the relevant year or stage of the apprenticeship, whichever is the greater.

(iii) A person employed by an employer under this award immediately prior to entertaining into a training arrangement as an adult apprentice with that employer must not suffer a reduction in their minimum hourly wage by virtue of entering into the training agreement, provided that the person has been an employee in that enterprise for at least six months as a full-time employee or twelve months as a part-time or regular and systematic casual employee immediately prior to commencing the apprenticeship. For the purpose only of fixing a minimum wage, the adult apprentice must continue to receive the minimum wage that applies to the classification specified in clause 20.1 or 20.3 in which the adult apprentice was engaged immediately prior to entering into the training agreement.

4. By deleting clause 21.1(b)(i) and inserting the following:

(i) Where a cook or apprentice cook is required to use their own tools, the employer must pay an allowance of $1.73 per day or part thereof up to a maximum of $8.49 per week.

5. By deleting clause 21.1(j) and inserting the following:

6. By deleting clause 21.1(h) and inserting the following:

(h) Working away from usual place of work

This clause applies where an employer requires an employee other than a casual to work at a place more than 80 kilometres from the employee’s usual place of work. In these circumstances the employer must pay the employee an amount equal to the cost of fares reasonably spent by the employee in travelling from the employee’s usual place of work to the new place of work.

7. By deleting clause 21.2(a) and inserting the following:

(a) Fork-lift driver

(i) In addition to the minimum hourly wage rate set out in clause 20.1, a fork-lift driver must be paid an additional allowance, per hour, equal to 1.5% of the standard hourly rate for all purposes.

(ii) A part-time or casual fork-lift driver who was employed immediately prior to <date of determination> must, in addition to the minimum hourly wage rate set out in clause 20.1, be paid an additional allowance, per day, equal to 0.3% of the standard weekly rate, to a maximum of 1.5% of the standard weekly rate per week. A part-time or casual employee in receipt of the daily fork-lift driver allowance under this subclause may elect to receive the fork-lift driver allowance under subclause (i).

8. By deleting clause 26.5 and inserting the following:

9. By renumbering clauses 27.2(d) and 27.2(e) as clauses 27.2(e) and 27.2(f).

10. By inserting a new clause 27.2(d) as follows:

(d) Despite the requirement to take time off within 28 days of accruing it in clause 27.2 (c) an employee and an employer may agree to extend the period for taking the accrued time off to within 6 months of its accrual subject to the following:

(i) The agreement is recorded in writing and retained as an employee record;

(ii) The accrued time off is taken at a time or times within the period of 6 months agreed by the employee and the employer;

(iii) If the accrued time off is not taken within the period of 6 months, the employer must pay the employee for the accrued time off in the next pay period following those 6 months; and

(iv) If, on the termination of the employee’s employment, accrued time off for working on a public holiday has not been taken, the employer must pay the employee for the accrued time off.

11. By deleting clause 29.1(a) and inserting the following:

29.1 Full-time employees

(a) The average of 38 hours per week is to be worked in one of the following ways:

  a 19 day month, of eight hours per day;

  four days of eight hours and one day of six hours;

  four days of nine and a half hours per day;

  five days of seven hours and 36 minutes per day;

  152 hours each four week period with a minimum of eight days off each four week period;

  160 hours each four week period with a minimum of eight days off each four week period plus a rostered day off;

  76 hours over a two week period with a minimum of four days off each two week period;

  any combination of the above.

12. By deleting clause 29.1(c) and inserting the following:

(c) In addition to the conditions set out under clause 29.1(b), where the agreed hours of work arrangement provides for 160 hours per four week period with a rostered day off, the arrangement will be subject to the following:

(i) No employee is to work more than 10 days in a row without a rostered day off.

(ii) Where practicable the rostered day off must be contiguous with an employee’s rostered days off.

(iii) Accrued days off may be banked, up to a maximum of five days.

(iv) An employee may elect, with the consent of the employer, to take an accrued day off in part day amounts.

(v) If an accrued day off falls on a public holiday, then where practicable, the next day is to be taken as the accrued day off.

(vi) The entitlement to an accrued day off at the employee’s ordinary hourly rate is subject to the following:

(A) Each day of paid leave, except annual leave and long service leave, and any public holiday occurring during the four week cycle must be regarded as a day worked for accrual purposes; and

(B) An employee who has not worked a complete four week cycle in order to accrue an accrued day off must be paid a pro rata amount for credits accrued for each day worked in the cycle. The pro rata amount is 24 minutes pay for each eight hour day worked.

13. By deleting clause 30.2 and inserting the following:

30.2 The roster will be alterable by mutual consent at any time or by amendment of the roster on seven days’ notice. Where practicable two weeks’ notice of rostered day or days off or of accrued day off or days off should be given provided that the days off may be changed by mutual consent or through sickness or other cause over which the employer has no control.

14. By deleting clause 32.2(a) and inserting the following:

(a) An employee other than a casual working on a public holiday will be paid for a minimum of four hours’ work. A casual employee working on a public holiday will be paid for a minimum of two hours’ work. Hours of work performed on the day immediately before a public holiday, or immediately after a public holiday, and that form part of one continuous shift, are counted as part of the minimum hours worked for the purposes of this clause.

15. By renumbering 32.2(c) as 32.2(d).

16. By inserting a new clause 32.2(c) as follows:

(c) Despite the requirement to take time off within 28 days of accruing it in clause 32.2 (b) an employee and an employer may agree to extend the period for taking the accrued time off to within 6 months of its accrual subject to the following:

(i) The agreement is recorded in writing and retained as an employee record;

(ii) The accrued time off is taken at a time or times within the period of 6 months agreed by the employee and the employer;

(iii) If the accrued time off is not taken within the period of 6 months, the employer must pay the employee for the accrued time off in the next pay period following those 6 months; and

(iv) If, on the termination of the employee’s employment, accrued time off for working on a public holiday has not been taken, the employer must pay the employee for the accrued time off.’

17. By deleting clause 33.3(b) and inserting the following:

(b) When a full-time or part-time employee works overtime on a rostered day off or an accrued day off the following apply:

(i) Subject to clause 33.3(b)(ii), the employee shall be paid 200% of their ordinary hourly rate for at least four hours even if they work less than four hours.

(ii) The four hour minimum payment does not apply to work which is part of the normal roster which began the day before the rostered day off or accrued day off or when overtime worked is continuous from the previous day’s duty.

18. By deleting clause 37.1(b)(i) and inserting the following:

(b) Additional arrangements for full-time employees:

(i) A full-time employee whose rostered day off or accrued day off falls on a public holiday must, subject to clause 32.2, either:

  Be paid an extra days’ pay; or

  Be provided with an alternative day off within 28 days; or

  Receive an additional day’s annual leave

19. By deleting clause 39 and inserting the following:

39. Provision of employee accommodation and meals

39.1 Right to make deductions

Subject to clauses 39.2 and 39.3, an employer may deduct an amount from the wages of an employee for the provision of either meals or accommodation or both.

39.2 Deductions not to be unreasonable

Any deduction made under clause 39 must not be unreasonable in the circumstances.

39.3 Deductions for employees under 18 years of age

Deductions must not be made under clause 39 from the wages of an employee who is under 18 years of age unless the deductions have been agreed to in writing by the employee's parent or guardian.

39.4 Deductions for meals

An employer may only deduct an amount from an employee’s wages for providing the employee with a meal if:

(a) the employee does not live in accommodation provided by the employer; and

(b) the meal is provided during the employee’s normal working hours; and

(c) the employee has been informed of the amount that will be deducted from the employee's wages for the meal and has consented to the meal being provided.

39.5 Deductions for accommodation or accommodation and meals—Adult employees

An employer may deduct from the wages of an adult employee, or the wages of a junior employee on adult rates, the amounts specified in column 2 of Table 1-Employees on adult rates for the service specified in column 1 provided by the employer.

Table 1—Employees on adult rates

NOTE: The ‘Single room and 3 meals a day’ amount is calculated at 25% of the standard weekly rate. The following internal relativity is then applied:

39.6 Deductions for accommodation or accommodation and meals—Junior rates

An employer may deduct from the wages of a junior employee on junior rates aged as specified in column 2 of Table 2 – Employees on junior rates, the amount specified in column 4 for the service specified in column 1 provided by the employer.

Table 2—Employees on junior rates

39.7 Amount of deduction for meals

An employer may deduct an amount of $7.96 from an employee’s wages for providing the employee with a meal.

39.8 Adjustment of amount of deduction for meals

(a) At the time of any adjustment to the standard rate, the amount specified in clause 39.7 (or that amount as increased under this clause) will be increased by an adjustment factor.

(b) The adjustment factor is the percentage movement in the consumer price index figure for the Take away and fast foods expenditure class published by the Australian Bureau of Statistics for the Eight Capitals Consumer Price Index (Cat No. 6401.0):

(i) for the first increase, since [date of commencement of clause 39.7] ; and

(ii) for any subsequent increase, since the amount was last increased under this clause

20. By deleting the definition of food and beverage attendant grade 2 in clause D.2.1 of Schedule D and inserting the following:

Food and beverage attendant grade 2 means an employee who has not achieved the appropriate level of training and who is engaged in any of the following:

  supplying, dispensing or mixing of liquor including the sale of liquor from the bottle department;

  assisting in the cellar or bottle department;

  undertaking general waiting duties of both food and/or beverage including cleaning of tables

  receipt of monies;

  attending a snack bar;

  engaged on delivery duties; and

  taking reservations, greeting and seating guests.

21. By deleting Schedule H.1(d) and inserting the following:

(d) Where a part-time or full-time employee is usually rostered to work ordinary hours between 7.00 pm and midnight, but as a result of having a rostered day off or an accrued day off provided in this award, does not work, the employee will be taken to be a on a public holiday for such hours and paid their ordinary rate of pay for those hours.

22. By updating the table of contents and cross-references accordingly.

B. This determination comes into operation from [XX December 2018]. In accordance with s.165(3) of the Fair Work Act 2009 these items do not take effect until the start of the first full pay period on or after [date to be inserted].

PRESIDENT

Printed by authority of the Commonwealth Government Printer

Attachment D: Draft variation determination – Restaurant award

MA000119  PRXXXXXX

DRAFT DETERMINATION

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

4 yearly review of modern awards – Restaurant Industry Award 2010 – substantive issues

(AM2017/57)

RESTAURANT INDUSTRY AWARD 2010

[MA000119]

Restaurants

JUSTICE ROSS, PRESIDENT
DEPUTY PRESIDENT MASSON
COMMISSIONER LEE

MELBOURNE, XX DECEMBER 2018

4 yearly review of modern awards – Restaurant Industry Award 2010– substantive issues.

A. Further to the Full Bench decision issued by the Fair Work Commission on XX December 2018 [2018] FWCFB XXXX, the above award is varied as follows:

1. By inserting a new clause 14.12 as follows:

14.12 Competency based progression

(a) For the purpose of competency based wage progression in clause 20.2 an apprentice will be paid at the relevant wage rate for the next stage of their apprenticeship if:

(i) competency has been achieved in the relevant proportion of the total units of competency specified in clause 20.2 for that stage of the apprenticeship. The units of competency which are included in the relevant proportion must be consistent with any requirements in the training plan; and

(ii) any requirements of the relevant State/Territory apprenticeship authority and any additional requirements of the relevant training package with respect to the demonstration of competency and any minimum necessary work experience requirements are met; and

(iii) either:

(A) the Registered Training Organisation (RTO), the employer and the apprentice agree that the abovementioned requirements have been met; or

(B) the employer has been provided with written advice that the RTO has assessed that the apprentice meets the abovementioned requirements in respect to all the relevant units of competency and the employer has not advised the RTO and the apprentice of any disagreement with that assessment within 21 days of receipt of the advice.

(b) If the employer disagrees with the assessment of the RTO referred to in clause 14.12(a)(iii)(B) above, and the dispute cannot be resolved by agreement between the RTO, the employer and the apprentice, the matter may be referred to the relevant State/Territory apprenticeship authority for determination. If the matter is not capable of being dealt with by such authority it may be dealt with in accordance with the dispute resolution clause in this award. For the avoidance of doubt, disputes concerning other apprenticeship progression provisions of this award may be dealt with in accordance with the dispute resolution clause.

(c) For the purposes of this clause, the training package containing the qualification specified in the contract of training for the apprenticeship, sets out the assessment requirements for the attainment of the units of competency that make up the qualification. The definition of “competency” utilised for the purpose of the training packages and for the purpose of this clause is the consistent application of knowledge and skill to the standard of performance required in the workplace. It embodies the ability to transfer and apply skills and knowledge to new situations and environments.

(d) The apprentice will be paid the wage rate referred to in clause 14.12(a) from the first full pay period to commence on or after the date on which an agreement or determination is reached in accordance with clause 14.12(a)(iii) or on a date as determined under the dispute resolution process in clause 14.12(b).

(e) If the apprentice disagrees with the assessment of the RTO referred to in clause 14.12(a), and the dispute cannot be resolved by agreement between the RTO, the employer and the apprentice, the apprentice may refer the matter to the relevant State/Territory apprenticeship authority for determination. If the matter is not capable of being dealt with by such authority it may be dealt with in accordance with the dispute resolution clause in this award. For the avoidance of doubt, disputes concerning other apprenticeship progression provisions of this award may be dealt with in accordance with the dispute resolution clause.

2. By deleting clause 20.2 and inserting the following:

20.2 Apprentice wages

(a) Minimum wages

(i) A person who has completed a full apprenticeship for which there is a trade qualified classification provided for in this award, must be paid no less than the standard hourly rate for each hour worked.

(ii) Except where clause 20.2(a)(iii) is applicable an employee will be paid in accordance with the following table:

(iii) Competency based wage progression

Where the relevant apprenticeship legislation allows competency based progression and the training contract does not specify otherwise, an employee apprenticed in a trade after < date of the Determination> will be paid the percentage of the standard hourly rate for each hour worked, in accordance with the following table:

(A) Four year apprenticeship (nominal term)

(b) Proficiency payments – cooking trade

(i) Application

Proficiency pay as set out in clause 20.2(b)(ii) will apply to apprentices who have successfully completed their schooling in a given year.

(ii) Payments

Apprentices will receive the rate of pay of a qualified cook during the latter half of the fourth year of the apprenticeship where the standard of proficiency has been attained on one, two or three occasions on the following basis:

(1) one occasion only:

  for the first nine months of the fourth year of apprenticeship, the normal fourth year rate of pay;

  thereafter, the standard hourly rate.

(2) on two occasions:

  for the first six months of the fourth year of apprenticeship, the normal fourth year rate of pay;

  thereafter, the standard hourly rate.

(3) on all three occasions:

  for the entire fourth year, the standard hourly rate.

(c) Adult apprentices

(i) The minimum wage of an adult apprentice who commenced on or after 1 January 2014 and is in the first year of their apprenticeship must be 80% of the rate prescribed for a Cook grade 3, or the rate prescribed by clause 20.2(a) for the relevant year of the apprenticeship, whichever is the greater.

(ii) The minimum wage of an adult apprentice who commenced on or after 1 January 2014 and is in the second and subsequent years of their apprenticeship must be the rate for the lowest adult classification in clause 20.1, or the rate prescribed by clause 20.2(a) for the relevant year of the apprenticeship, whichever is the greater.

(iii) A person employed by an employer under this award immediately prior to entering into a training agreement as an adult apprentice with that employer must not suffer a reduction in their minimum wage by virtue of entering into the training agreement, provided that the person has been an employee in that enterprise for at least six months as a full-time employee or twelve months as a part-time or regular and systematic casual employee immediately prior to commencing the apprenticeship. For the purpose only of fixing a minimum wage, the adult apprentice must continue to receive the minimum wage that applies to the classification specified in clause 20.1in which the adult apprentice was engaged immediately prior to entering into the training agreement.

3. By deleting clause 24.3(a) – clothing, equipment and tools allowance and inserting the following:

(a) Where a cook or an apprentice cook is required to use their own tools (and is not in receipt of a tool allowance), the employer must pay an allowance of $1.73 per day or part thereof up to a maximum of $8.49 per week.

4. By deleting clause 39 in its entirety.

5. By updating the table of contents and cross-references accordingly.

B. This determination comes into operation from [XX December 2018]. In accordance with s.165(3) of the Fair Work Act 2009 these items do not take effect until the start of the first full pay period on or after [date to be inserted].

PRESIDENT

Printed by authority of the Commonwealth Government Printer

1 [2017] FWC 5530.

 2   [2018] FWCFB 1548 at [396].

 3   [2018] FWC 2761. Amended directions also issued on 3 and 20 July 2018.

 4   [2018] FWC 5779.

 5   Report to the Full Bench and Directions - Restaurant and Hospitality Award, 14 November 2018.

 6   ABI and NSWBC submission in reply, 5 November 2018; submission in reply, 19 November 2018.

 7   AHA and others submission in reply, 18 September 2018; submission, 24 July 2018; submission, 8 February 2018; submission, 24 November 2017; submission, 13 October 2016.

 8   RCI correspondence of 13 July 2018; submission in reply of 18 September 2018.

 9   United Voice submission, 24 July 2018; submission in reply, 2 November 2018.

 10   Transcript, 9 November 2018.

 11   Report to the Full Bench – Restaurant and Hospitality Award, 14 November 2018.

 12   AHA and others Joint Report, 20 November 2018.

 13   ABI and NSWBC submission, 19 November 2018.

 14   Transcript, 26 November 2018 and Transcript, 27 November 2018.

 15   Shop, Distributive and Allied Employees Association v The Australian Industry Group [2017] FCAFC 161 at [38].].

 16   O’Sullivan v Farrer (1989) 168 CLR 210 at [12]-[13].

 17   Shop, Distributive and Allied Employees Association v National Retail Association (No 2) (2012) 205 FCR 227 at [35].

 18   [2017] FWCFB 1001 at [128]; Shop, Distributive and Allied Employees Association v The Australian Industry Group [2017] FCAFC 161 at [41]–[44].

 19   [2018] FWCFB 3500 at [21]-[24].

 20   Edwards v Giudice (1999) 94 FCR 561 at [5]; Australian Competition and Consumer Commission v Leelee Pty Ltd [1999] FCA 1121 at [81]-[84]; National Retail Association v Fair Work Commission (2014) 225 FCR 154 at [56].

 21   Shop, Distributive and Allied Employees Association v The Australian Industry Group [2017] FCAFC 161 at [33].

 22   National Retail Association v Fair Work Commission (2014) 225 FCR 154 at [105]-[106].

 23   See National Retail Association v Fair Work Commission (2014) 225 FCR 154 at [109]-[110]; albeit the Court was considering a different statutory context, this observation is applicable to the Commission’s task in the Review.

 24   Shop, Distributive and Allied Employees Association v The Australian Industry Group [2017] FCAFC 161.

 25   Ibid at [48].

 26   See generally: Shop, Distributive and Allied Employees Association v National Retail Association (No.2) (2012) 205 FCR 227.

 27   [2017] FWCFB 1001.

 28   Ibid at [269].

 29   CFMEU v Anglo American Metallurgical Coal Pty Ltd [2017] FCAFC 123.

 30   Ibid at [46].

 31   [2017] FWCFB 1001 at [760] – [765].

 32   Preston M, Pung A, Leung E, Casey C, Dunn A and Richter O (2012) ‘Analysing modern award coverage using the Australian and New Zealand Industrial Classification 2006: Phase 1 report’, Research Report 2/2012, Fair Work Australia.

 33   AHA and others submission, 13 October 2016.

 34   AHA and others submission, 20 November 2018.

 35   [2013] FWCFB 5411 at [270].

 36   Ibid.

 37   [2013] FWCFB 5411 at [295].

 38   During the course of the hearing the Associations withdrew the claims in Item 2 – Multi hiring arrangements; part of Item 21 – dealing with averaging over 26 weeks; and Item 39 – in part, dealing with the Clerical Grade 3 classification. See AHA correspondence, 26 November 2018.

 39   AHA and others submission, 24 July 2018.

 40   United Voice submission in reply, 18 September 2018.

 41   Transcript, 27 November 2018 at PN224.

 42   AHA submissions, 13 October 2016 at para 22; submission, 12 November 2015 at paras 24 – 28.

 43   AHA and others submission, 24 July 2018 at paras 207-214.

 44   United Voice submission in reply, 18 September 2018 at paras 78-80.

 45   [2017] FWCFB 1001 at [194] to [196].

 46   AHA and others submission, 24 July 2018 at paras 218-232.

 47   United Voice submissions in reply, 18 September 2018 at paras 89 to 96.

 48   Ibid at para 94.

 49   Ibid at para 95.

 50   Australian Education Union v State of Victoria (Department of Education and Early Childhood Development) (AEU) [2015] FCA 1196.

 51   Ibid at [176].

 52   Matter C2004/4556 Transcript 31 August 2004 at [30] to [38].

 53   Transcript, 27 November 2018 at PN272 – PN273.

 54   Ibid at PN277 – PN278.

 55   AHA and others submission, 24 July 2018 at para 247.

 56   [2017] FWCFB 3541.

 57   [2014] FWCFB 1996.

 58   See Exhibit A13 at [39]; Exhibit A14 at [35] and Exhibit A21 at [44].

 59   United Voice submission, 24 July 2018.

 60   AHA and others submission, 18 September 2018 at paras 11-12; Joint Report, 20 November 2018 at para 4.

 61   ABI and NSWBC submissions in reply, 5 November 2018 at paras 4.1 – 4.14.

 62   RCI submission in reply, 18 September 2018.

 63   [2017] FWCFB 1001 at [1018]-[1022].

 64   Preston M, Pung A, Leung E, Casey C, Dunn A and Richter O (2012) ‘Analysing modern award coverage using the Australian and New Zealand Industrial Classification 2006: Phase 1 report’, Research Report 2/2012, Fair Work Australia.

 65   RCI also sought the payment of wages provisions be varied to allow for payment on all days of the week. This claim has been referred to the Payment of Wages common issue Full Bench for determination.

 66   Exhibit RCI1; Transcript 26 November 2018 at PN34 to PN327.

 67   Exhibit RCI2; Transcript 26 November 2018 at PN355-PN493.

 68   RCI submission, 2 March 2015; submission of 12 October 2016; submission of 24 July 2018.

 69   RCI submission, 24 July 2018 at para 22.

 70   RCI submission, 24 July 2018.

 71   United Voice submission in reply, 2 November 2018.

 72   Witness Statement of Kris Raymond Bunder, 24 July 2018 at para 15.

 73   Transcript, 26 November 2018 at PN104.

 74   Ibid at PN68 – PN74.

 75   Ibid at PN163 and PN186.

 76   Transcript, 26 November 2018 at PN186.

 77   Ibid at PN281-PN282, PN288.

 78   Witness Statement of Francis Edmund Brailey, 24 July 2018 at paras 14 – 16.

 79   Transcript, 26 November 2018 at PN373 – PN374.

 80   Ibid at PN386 – PN392.

 81   Ibid at PN421 and PN423.

 82   Ibid at PN398 – PN399.

 83   Transcript, 26 November 2018 at PN556.

 84   Ibid at PN556.

 85   RCI submission, 2 March 2015 at para 13; submission, 12 October 2016 at para 25.

 86   RCI submission, 24 July 2018 at para 5.

 87   Ibid.

 88   PR610285.

 89   RCI submission, 24 July 2018 at paras 6 – 9.

 90   Fair Work Ombudsman, Food Precincts Activity Report, July 2018, page 3. Note: This figure includes employees covered by the Restaurant Industry Award 2010, Hospitality Industry (General) Award 2010 and the Fast Food Industry Award 2010, accessed at https://www.fairwork.gov.au/reports/food-precincts-activities-report/download-pdf.

 91   Fair Work Ombudsman, ‘FWO’s Food Precincts campaign returns $471,904 in wages owed to hospitality workers’, 11 July 2018, accessed at https://www.fairwork.gov.au/about-us/news-and-media-releases/2018-media-releases/july-2018/20180711-food-precincts-mr.

 92   United Voice submission in reply, 2 November 2018.

 93   Witness Statement of Kris Raymond Bunder, 24 July 2018 at paras 20 - 23.

 94   Transcript, 26 November 2018 at PN204 - PN216.

 95   Ibid at PN209.

 96   Transcript, 26 November 2018 at PN239 and PN265.

 97   Ibid at PN239.

 98   Ibid at PN244.

 99   Transcript, 26 November 2018 at PN254.

 100   Ibid at PN255.

 101   Ibid at PN258.

 102   Ibid, 26 November 2018 at PN251 – PN252.

 103   Witness Statement of Francis Edmund Brailey, 24 July 2018 at paras 17 – 18.

 104   Transcript, 26 November 2018 at PN440 – PN448.

 105   Transcript, 26 November 2018 at PN450 – PN451 and PN468.

 106   Transcript, 26 November 2018 at PN465, PN467 and PN489.

 107   Ibid at PN457 – PN459 and PN466.

 108   VECCI at Transcript paragraphs 184-185; NRA at Transcript paragraphs 209-212.

 109   [2008] AIRCFB 550 at [70].

 110   [2013] FWCFB 2170.

 111   Transcript, 26 November 2018 at PN558 and PN560.

 112   Transcript, 26 November 2018 at PN209.

 113   Ibid at PN258.

 114   Ibid at PN489.

 115   Ibid.

 116   Transcript, 26 November 2018 at PN258.

 117   [2013] FWCFB 2170 at [201]-[202].

 118   United Voice submission in reply, 2 November 2018 at para 15.

 119   Fair Work Ombudsman, Food Precincts Activity Report, July 2018, page 3. Note: This figure includes employees covered by the Restaurant Industry Award 2010, Hospitality Industry (General) Award 2010 and the Fast Food Industry Award 2010, accessed at https://www.fairwork.gov.au/reports/food-precincts-activities-report/download-pdf

 120   Fair Work Ombudsman, ‘FWO’s Food Precincts campaign returns $471,904 in wages owed to hospitality workers’, 11 July 2018, accessed at https://www.fairwork.gov.au/about-us/news-and-media-releases/2018-media-releases/july-2018/20180711-food-precincts-mr

 121   [2016] FWCFB 3177 at [135]–[140].

 122   See MA000009 as at 19 December 2008 and MA000119 as at 4 December 2009.

 123   [2013] FWC 5736.

 124   PR540249.

 125   Transcript 26 November 2018 at PN418.

 126   ABS, Consumer Price Index, Concepts Sources and Methods, Australia, 2017, Catalogue No. 6461.0, p. 61.

 127   ABS, Consumer Price Index, Concepts Sources and Methods, Australia, 2017, Catalogue No. 6461.0, p. 68.

 128   United Voice submission, 24 July 2018 at Annexure A.

 129   Ibid at paras 24 – 26.

 130   Ibid at para 36.

 131   Ibid at para 30.

 132   Transcript, 27 November 2018 at PN17-PN19.

 133   United Voice submission, 24 July 2018 at para 38.

 134   Transcript, 27 November 2018 at PN47-PN51.

 135   Transcript, 27 November 2018 at PN71 and PN183-PN188; see ABI submission, 5 November 2018 at paras 5.15(a) to (g).

 136   RCI submission in reply, 18 September 2018 at paras 14-15.