| [2019] FWC 6058 |
| FAIR WORK COMMISSION |
STATEMENT |
Fair Work Act 2009
s.156 - 4 yearly review of modern awards
4 yearly review of modern awards – plain language re-drafting – Clerks—Private Sector Award 2010
(AM2016/15)
JUSTICE ROSS, PRESIDENT |
MELBOURNE, 30 AUGUST 2019 |
4 yearly review of modern awards – plain language re-drafting – Clerks—Private Sector Award 2010.
[1] The Commission has received correspondence regarding clause 23 and 31 – Rest periods after working overtime – in the plain language exposure draft of the Clerks—Private Sector Award 2010. A copy of that correspondence is set out at Attachment A.
[2] Interested parties are invited to file submissions in relation to the correspondence by 4pm on Friday 20 September 2019. Any submissions in reply must be filed by 4pm on Friday 4 October 2019. All submissions should be emailed to amod@fwc.gov.au.
[3] The Plain Language Full Bench will determine this issue on the papers unless a request for an oral hearing is filed by 4pm Friday 27 September 2019.
PRESIDENT
Printed by authority of the Commonwealth Government Printer
<PR711866>
From: Farrell, Peter <Peter.Farrell@healius.com.au>
Sent: Thursday, 29 August 2019 11:36 AM
To: Chambers - Ross J <Chambers.Ross.j@fwc.gov.au>
Subject: Plain language exposure draft—Clerks—Private Sector Award
Dear Justice Ross,
I write regarding what I see as an unintended consequence that arises in the PLED of the Clerks Private Sector Award regarding rest periods after overtime for shiftworkers.
I note that at paragraphs 32 and 256 of the Full Bench Decision [2019] FWCFB 5409 it is stated:
The plain language re-drafting of the following awards is complete:
• Pharmacy Award;
• Clerks Award;
• Restaurant Award;
• Hospitality Award;
• Retail Award;
• Security Award
I have inserted the relevant subclause from the current Award, in italic text immediately below. On my reading of this subclause paragraphs (a), (b), (c), and (d) apply to all employees. That is, day workers and shiftworkers are entitled to a ten hour break as described in these paragraphs. At paragraph (e) the shiftworker’s entitlement to a ten hour break is reduced to eight hours for the three specific circumstances as described in points (i) (ii) and (iii).
Clerks Private Sector Award 2010
27.3 Rest period after overtime
(a) When overtime work is necessary it must wherever reasonably practicable, be so arranged that employees have at least 10 consecutive hours off duty between the work of successive days.
(b) An employee (other than a casual employee) who works so much overtime between the termination of the employee’s ordinary work on one day and the commencement of the employee’s ordinary work on the next day that the employee has not had at least 10 consecutive hours off duty between those times must, subject to this clause, be released after completion of such overtime until the employee has had 10 consecutive hours off duty without loss of pay for ordinary working time occurring during such absence.
(c) If on the instructions of the employer such an employee resumes or continues work without having had such 10 consecutive hours off duty the employee must be paid at double the ordinary time rate of pay until the employee is released from duty for such period and the employee is then entitled to be absent until the employee has had 10 consecutive hours off duty without loss of pay for ordinary working time occurring during such absence.
(d) Overtime worked in the circumstances specified in clause 27.4 must not be regarded as overtime for the purpose of this clause.
(e) The provisions of this clause apply in the case of shiftworkers as if eight hours were substituted for 10 hours when overtime is worked:
(i) for the purposes of changing shift rosters;
(ii) where a shiftworker does not report for duty and a day worker or a shiftworker is required to replace such shiftworker; or
(iii) where a shift is worked by arrangement between the employees themselves.
The PLED Clerks Private Sector Award published on 1 March 2019 has separate clauses covering rest periods after overtime. Clause 23 and clause 31. Clause 23 is headed Rest period after working overtime (employees other than shiftworkers) and clause 31 is headed Rest period after working overtime for shiftwork”. I have inserted clause 23.1 and clause 31 from the exposure draft in italic text below.
On my reading of these clauses, clause 23 cannot apply to shiftworkers due to the exclusion contained in subclause 23.1. This means that rest periods after overtime for shiftworkers are those described in clause 31 and this is confirmed by sub clause 31.1. Clause 31.2 restricts the circumstances in which a shiftworker is entitled to a break after working overtime to the same three circumstances contained in subclause 27.3 (e) of the current award.
For example, if a shiftworker, from the preceding shift, accepted overtime to work the entire next shift because the employer required additional labour on the following shift he or she is working overtime in circumstances other than those described in 31.2 (a), (b) or (c) and under the clause, as I read it, is not entitled to a break before next reporting for duty. Under the current award clause 27.3 (b) would apply and the employee is entitled to a ten hour break.
23.1 Clause 23 applies to full-time and part-time employees who are not working shifts.
31 Rest period after working overtime for shiftwork
31.1 Clause 31 applies to full-time and part-time employees working shifts.
31.2 The provisions of clause 31 apply when overtime is worked in any of the following circumstances:
(a) for the purposes of changing shift rosters; or
(b) where an employee working a shift does not report for duty and another employee is required to work their shift; or
(c) where a shift is worked by arrangement between the employees themselves.
31.3 When overtime is necessary employees must, wherever reasonably practical, have at least 8 consecutive hours off duty between hours worked on successive days.
31.4 Despite clause 31.3, where an employee, due to overtime worked, would be required to start work without having had 8 consecutive hours off duty between finishing one shift of ordinary hours and beginning the next shift of ordinary hours:
(a) the employer must release the employee from duty after finishing the overtime until the employee has had 8 consecutive hours off duty; and
(b) the employee must not suffer any loss of pay for any ordinary hours not worked as a result of being released from duty.
31.5 If, at the direction of the employer, an employee resumes or continues work without having at least 8 consecutive hours off duty in accordance with clause 31.4 all of the following apply:
(a) the employer must pay the employee at 200% of the minimum hourly rate until such time as the employee is released from duty; and
(b) the employer must release the employee from duty until the employee has had 8 consecutive hours off duty; and
(c) the employee must not suffer any loss of pay for any ordinary hours not worked as a result of being released from duty in accordance with paragraph (b).
Please ignore this email if there is a further draft of the PLED Clerks Private Sector Award that has addressed this issue.
Regards
Peter Farrell
Senior HR Advisor Workforce Management
People and Employment Law, Corporate
Healius Limited
+61 (0) 466 550 622
+61 (0) 2 9432 9438
Level 6 203 Pacific Highway
St Leonards NSW 2065