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

4 yearly review of modern awards – Overtime for casuals
(AM2017/51)

4 yearly review of modern awards – overtime for casuals - directions.

[1] On 14 October 2019 I issued a statement and directions 1 (October statement) outlining the position with respect to various group of awards and the process to be followed to resolve the outstanding issues in this matter.

[2] In correspondence sent to the Commission and at the directions hearing before me on 26 November 2019 interested parties provided advice in respect of a number of awards, with the result that an alternative course will be taken for some awards to that proposed in the October statement. This statement sets out the modified position.

[3] The outstanding issues concerning the following 15 awards will be determined on the basis of written submissions received from the parties:

Aboriginal Community Controlled Health Services Award 2010

Aged Care Award 2010

Dredging Industry Award 2010

Fitness Industry Award 2010

Marine Tourism and Charter Vessels Award 2010

Marine Towage Award 2010

Medical Practitioners Award 2010

Nurses Award 2010 (only in respect of the issue of the circumstances in which overtime is payable to casuals)

Pharmacy Industry Award 2010

Port Authorities Award 2010

Ports, Harbours and Enclosed Water Vessels Award 2010

Professional Diving Industry (Industrial) Award 2010

Professional Diving Industry (Recreational) Award 2010

Sporting Organisations Award 2010

Stevedoring Industry Award 2010

[4] In respect of the most recent exposure drafts published for the following 22 awards, there is a consensus that the overtime provisions as they relate to casual employees are satisfactory and require no further modification, subject to the addition in some cases of the appropriate wage tables:

Airline Operators Ground Staff Award 2010

Asphalt Industry Award 2010

Building and Construction General On-Site Award 2010

Concrete Products Award 2010

Cotton Ginning Award 2010

Food, Beverage and Tobacco Manufacturing Award 2010

Gardening and Landscaping Services Award 2010

Gas Industry Award 2010

Hair and Beauty Industry Award 2010

Joinery and Building Trades Award 2010

Manufacturing and Associated Industries and Occupations Award 2010

Mobile Crane Hiring Award 2010

Nursery Award 2010

Pastoral Award 2010

Racing Clubs Event Award 2010

Racing Industry Ground Maintenance Award 2010

Silviculture Award 2010

Storage Services and Wholesale Award 2010

Sugar Industry Award 2010

Surveying Award 2010

Waste Management Award 2010

Wine Industry Award 2010

[5] The Full Bench will review the position with the above awards and will advise the parties and invite further submissions if, notwithstanding the consensus position, it identifies outstanding issues.

[6] In respect of the following 12 awards, there is either a consensus among the interested parties that the relevant provisions in the exposure drafts should be modified in agreed terms, or no identifiable opposition to a proposed modification:

Cement and Lime Award 2010

Cemetery Industry Award 2010

Electrical Power Industry Award 2010

Funeral Industry Award 2010

Higher Education Industry - General Staff Award 2010

Horse and Greyhound Training Award 2010

Hydrocarbons Industry (Upstream) Award 2010

Local Government Industry Award 2010

Pest Control Industry Award 2010

Premixed Concrete Award 2010

Quarrying Award 2010

Seafood Processing Award 2010

[7] Again, the Full Bench will review the position in respect of the above awards, and if any difficulties are identified, the parties will be advised, and further submissions invited.

[8] The following 9 awards will be the subject of the hearing before the Full Bench on 16 and 17 December 2019, and the directions contained in the October statement continue to apply:

Black Coal Mining Industry Award 2010

Contract Call Centres Award 2010

Educational Services (General Staff) Award 2010 (in relation to the outstanding issue identified at paragraph [31] of the decision of 2 October 2019 2)

Labour Market Assistance Industry Award 2010

Oil Refining and Manufacturing Award 2010

Telecommunications Services Award 2010

Textile, Clothing, Footwear and Associated Industry Award 2010

Transport (Cash in Transit) Award 2010

Water Industry Award 2010

[9] In respect of the Transport (Cash in Transit) Award 2010, I was informed at the directions hearing on 26 November 2019 by the TWU that there was no longer any dispute about the operation of the casual overtime provisions of this award and that it could be removed from the matters the subject of the hearing on 16-17 December 2019. However, in correspondence dated 5 December 2019, the TWU advised that the advice it had given was erroneous and that there remained an issue about this award. Accordingly, it remains in the above list of awards to be dealt with at the hearing.

[10] In respect of the Aircraft Cabin Crew Award 2010, which was identified in the October Statement as an award which was to be the subject of the hearing on 16 and 17 December 2019, an alternate course will now be taken. The issue concerning the Aircraft Cabin Crew Award 2010 will be the subject of continuing discussion as at a conference to be conducted by Commissioner Bissett as part of a broader process concerning that award on 17 December 2019. If the issue is not resolved at that conference, the parties will advise the Commission, and it will be resolved at the hearing and in accordance with the directions referred to in paragraph [14] below.

[11] A directions hearing will be held at 9.00am on 11 December 2019 to deal with programming for the conduct of the hearing on 16-17 December 2019.

[12] In respect of the following 6 awards, there is no dispute that there are outstanding issues which require resolution:

Aluminium Industry Award 2010

Amusement, Events and Recreation Award 2010

Business Equipment Award 2010

Health Professionals and Support Services Award 2010

Pharmaceutical Industry Award 2010

Salt Industry Award 2010 (including as to the issues identified in the report issued by the President, Justice Ross, on 29 November 2019).

[13] The parties are directed to file any evidence and submissions concerning the above awards in accordance with the attached directions. In the event that the matters cannot be determined on the papers and a hearing is required, the hearing will be conducted at 10.00am on 24 February 2020 in Sydney (with video-links on request).

[14] In addition:

(1) The report of the President, Justice Ross, dated 29 November 2019 has referred to this Full Bench additional issues concerning the Wool Storage, Sampling and Testing Award 2010. Accordingly this award has been removed from the list of the awards the subject of the hearing on 16-17 December 2019 and will be added to the list in [12], with the directions in [13] to apply.

(2) In respect of the Airport Employees Award 2010, the CPSU submitted that the relevant provisions of this award were similarly phrased to provisions in awards included in the above list and would be determined by the result obtaining in respect of those awards. No other party expressed an interest in this award. Accordingly, we will add the Airport Employees Award 2010 to the above list to ensure consistency of outcomes. The same directions will apply.

(3) As to the Live Performance Award 2010, the MEAA advised in correspondence dated 4 December 2019 that there is now an issue concerning the relevant provisions of this award. Accordingly, this award will also be added to the above list, and the same directions will apply.

[15] In relation to the Broadcasting, Recorded Entertainment and Cinemas Award 2010, the MEAA has advised in email correspondence dated 5 December 2019 that there may be an issue concerning this award arising from the decision of a separately constituted Full Bench issued on 20 November 2019. 3 The MEAA is directed to advise within seven days of the date of this statement whether it wishes to pursue the matter identified. If so, the award will be added to the list in [12] above and the same directions will apply. If no such advice is received, this award will be regarded as resolved and will not further be dealt with by this Full Bench.

[16] In respect of the following 18 awards, there has been following conferrals involving interested parties no opposition to the position advanced by Australian Business Industrial and the NSW Business Chamber (ABI) in previously filed submissions:

Animal Care and Veterinary Services Award 2010

Architects Award 2010

Banking, Finance and Insurance Award 2010

Car Parking Award 2010

Clerks - Private Sector Award 2010

Commercial Sales Award 2010

Educational Services (Post-Secondary Education) Award 2010

Fast Food Industry Award 2010

General Retail Industry Award 2010

Graphic Arts, Printing and Publishing Award 2010

Legal Services Award 2010

Market and Social Research Award 2010

Meat Industry Award 2010

Plumbing and Fire Sprinklers Award 2010

Poultry Processing Award 2010

Real Estate Industry Award 2010

Supported Employment Services Award 2010

Travelling Shows Award 2010

[17] In respect of the Children’s Services Award 2010, agreement has been reached between ABI and relevant unions as to the correct interpretation of the relevant provisions of the award.

[18] In respect of the awards referred to in [16] and [17], the parties are requested to identify within seven days any modifications to existing exposure drafts that might be necessary to give effect to the agreed/not opposed position. The Full Bench will then consider the position with respect to each award and will advise the parties and invite further submissions if any remaining issues are identified.

[19] In respect of the following awards, there does not appear to have been any position advanced by any party:

Coal Export Terminals Award 2010

Mannequins and Models Award 2010

State Government Agencies Award 2010

[20] The Full Bench will therefore review and finalise the position with the above awards itself without requiring any further assistance from interested parties.

[21] In respect of the Horticulture Award 2010, discussions and consultations are continuing with a view to an agreement being reached. Interested parties are requested to provide advice as to the position with this award at the report back on 9.00am on 11 December 2019.

[22] In respect of the Mining Industry Award 2010, email correspondence from the AWU dated 29 November 2019 has advised that agreement had been reached with the Ai Group and ABI to the effect that the existing provisions of the award applied the 25% loading to overtime rates on a compounding basis, and that any drafting issues arising from that agreement could be dealt with by the Full Bench constituted to finalise the exposure draft for that award. If any interested party wishes to contradict this position, they should advise the Commission accordingly within seven days. If no such advice is received, this award shall be dealt with in the manner proposed in the AWU’s correspondence.

[23] Finally, in the Full Bench’s decision of 8 October 2019, 4 the Full Bench expressed a provisional view about a submission lodged by the HSU on 23 January 2019 concerning the Ambulance and Patient Transport Industry Award 2010, and invited further submissions from the HSU and any other party if they wished to pursue the matter further.5 Submissions were to be filed by 29 October 2019. No submissions were received. Accordingly the HSU’s submission will be taken to have been resolved by the view expressed by the Full Bench, and no further step needs to be taken in relation to the Ambulance and Patient Transport Industry Award in this proceeding.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR714974>

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

4 yearly review of modern awards – Overtime for casuals
(AM2017/51)

Further to the Statement of 6 December 2019 in this matter, the following directions are made:

1. In respect of the awards identified in paragraphs [12] and [13] of the Statement:

1.1 Interested parties shall file any evidence and submissions in support of their contentions as to the entitlement of casuals to overtime by 5.00pm Friday 17 January 2020.

1.2 Any evidence and submissions in response shall be filed by 5.00pm Friday 7 February 2020.

1.3 Any evidence and submissions in reply to any material filed in accordance with direction 2.2 shall be filed by 5.00pm Friday 14 February 2020.

1.4 A hearing date before the Full Bench is reserved for 10.00am on 24 February 2020 in Sydney (with video-links on request) if any party, after the filing of material in accordance with directions 2.1-2.3, requests that a hearing be conducted. Such advice must be communicated by

1.5 All evidence and submissions shall be sent to amod@fwc.gov.au in both Word and PDF format.

2. In respect of the awards identified in paragraphs [16] and [17] of the Statement, parties are requested to identify by 5.00pm on 16 December 2019 any variations to the exposure drafts for the following awards which may be necessary to give effect to the agreed/not opposed position.

3. In respect of the Mining Industry Award 2010, if any interested party wishes to take issue with the AWU’s email correspondence of 29 November 2019, it shall advise the Commission in writing by 5.00pm on 13 December 2019.

4. In respect of the Broadcasting, Recorded Entertainment and Cinemas Award 2010 the MEAA shall advise whether it wishes to pursue the issues contained in its correspondence of 5 December 2019 by 5.00pm on 13 December 2019.

 1   [2019] FWC 7087

 2   [2019] FWCFB 6953

 3   [2019] FWCFB 7608

 4   [2019] FWCFB 6953

 5   Ibid at [27]-[30]