[2019] FWCFB 5409

The attached document replaces the document previously issued with the above code on 20 August 2019.

The decision has been refiled to correct the table of contents for proposed exposure drafts at Attachment A. The amendments are technical in nature and to do not affect the content of the decision originally issued.

Modern Awards, Economics and Research Section

On behalf of the Associate to President Ross

Dated 10 January 2020

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

4 yearly review of modern awards—Plain language project
(AM2016/15)

4 yearly review of modern awards – plain language project – determination of various issues

CONTENTS

ABBREVIATIONS

ABBREVIATIONS - Awards

Aged Care Award 2010 (Aged Care Award)

Aircraft Cabin Crew Award 2010 (Aircraft Cabin Crew Award)

Air Pilots Award 2010 (Air Pilots Award)

Airline Operations—Ground Staff Award 2010 (Airline Ground Staff Award)

Airport Employees Award 2010 (Airport Employees Award)

Animal Care and Veterinary Services Award 2010 (Animal Care Award)

Aquaculture Industry Award 2010 (Aquaculture Award)

Architects Award 2010 (Architects Award)

Black Coal Mining Industry Award 2010 (Black Coal Award)

Building and Construction General On-site Award 2010 (Building On-site Award)

Business Equipment Award 2010 (Business Equipment Award)

Contract Call Centres Award 2010 (Call Centres Award)

Children’s Services Award 2010 (Children’s Services Award)

Cleaning Services Award 2010 (Cleaning Award)

Clerks – Private Sector Award 2010 (Clerks Award)

Coal Export Terminals Award 2010 (Coal Terminals Award)

Educational Services (Teachers) Award 2010 (Teachers Award)

Electrical, Electronic and Communications Contracting Award 2010 (Electrical Contracting Award)

Fast Food Industry Award 2010 (Fast Food Award)

Food, Beverage and Tobacco Manufacturing Award 2010 (the Food Manufacturing Award)

General Retail Industry Award 2010 (Retail Award)

Graphic Arts, Printing and Publishing Award 2010 (Graphic Arts Award)

Hair and Beauty Industry Award 2010 (Hair and Beauty Award)

Higher Education Industry – General Staff Award 2010 (the Higher Education General Staff Award)

Hospitality Industry (General) Award 2010 (Hospitality Award)

Hydrocarbons Industry (Upstream) Award 2010 (Upstream Award)

Joinery and Building Trades Award 2010 (the Joinery Award)

Manufacturing and Associated Industries and Occupations Award 2010 (Manufacturing Award)

Mannequins and Models Award 2010 (Mannequins and Models Award)

Marine Towage Award 2010 (Marine Towage Award)

Maritime Offshore Oil and Gas Award 2010 (Offshore Oil and Gas Award)

Miscellaneous Award 2010 (the Miscellaneous Award)

Mobile Crane Hiring Award 2010 (Mobile Crane Award)

Pharmacy Industry Award 2010 (Pharmacy Award)

Pharmaceutical Industry Award 2010 (Pharmaceutical Industry Award)

Professional Employees Award 2010 (Professional Employees Award)

Restaurant Industry Award 2010 (Restaurant Award)

Seafood Processing Award 2010 (Seafood Processing Award)

Seagoing Industry Award 2010 (Seagoing Award)

Security Services Industry Award 2010 (Security Award)

Social, Community, Home Care and Disability Services Industry Award 2010 (SCHADS Award)

Storage Services and Wholesale Award 2010 (Storage Services Award)

Sugar Industry Award 2010 (Sugar Industry Award)

Textile, Clothing, Footwear and Associated Industries Award 2010 (TCF Award)

Timber Industry Award 2010 (Timber Award)

Vehicle Manufacturing, Repair, Services and Retail Award 2010 (Vehicle Award)

1. Introduction

[1] On 28 February 2019 (the February 2019 Statement) we issued a Statement 1 which set out the current status of matters before the Plain Language Full Bench and the next steps in the plain language project. We also expressed some provisional views in relation to a number of outstanding issues. No party requested an oral hearing in respect of any of the outstanding issues. This decision determines a number of those issues.

[2] The following submissions were filed in response to the provisional views expressed in the February 2019 Statement:

•  Australian Industry Group 22 March 2019 and 18 April 2019 (Ai Group)

•  Australian Business Lawyers & Advisors (ABI)

•  Australian Manufacturing Workers’ Union (AWMU)

•  Australian Workers’ Union (AWU)

•  CFMMEU (Construction and General Division) 2 April 2019 and 17 April 2019 (CFMMEU C&G Division)

•  CFMMEU (Manufacturing Division) (CFMMEU (MD))

•  CFMMEU (Mining and Energy Division) (CFMMEU (M&E))

•  Communications Electrical Electronic Information Postal Plumbing and Allied Services Union (CEPU)

•  Community and Public Sector Union (CPSU)

•  Housing Industry Association (HIA)

•  Master Builders Australia (MBA)

•  United Voice (UV)

2. Scope of the ‘light touch’ review of modern awards

[3] The plain language project being conducted as part of the Review has three elements:

•  the plain language re-drafting of five ‘standard clauses’, which appear in most modern awards, namely:

•  Award flexibility;

•  Consultation;

•  Dispute resolution;

•  Termination of employment;

•  Redundancy.

•  the plain language re-drafting of selected modern awards; and

•  the plain language ‘light touch’ process to be applied to all modern awards.

[4] Five decisions 2 have been issued in relation to the plain language re-drafting of standard clauses. Determinations3 varying most modern awards were issued on 26 October 2018 and 13 December 2018. A number of award specific issues remain outstanding and we discuss those issues in Chapter 4 of this decision.

[5] In this chapter of the decision we deal with the scope of the ‘light touch’ review of modern awards. The plain language re-drafting of selected modern awards is discussed in chapter 2 of this decision.

[6] A Statement published on 13 February 2019 4 provided a timeline for the finalisation of exposure drafts including further variations arising from the plain language ‘light touch’ process. The 28 February 2019 Statement noted that the ‘light touch’ process would include the following:

(i) Changes to the structure of exposure drafts in Groups 1 to 3 in accordance with the plain language structure. This has already been completed for the awards in group 4.

(ii) Definitions will be moved to clause 2 in all exposure drafts.

(iii) Occupational health and safety references. 5

(iv) Annual, weekly and hourly rates in minimum wages tables. 6

(v) Cross-references in coverage clauses.

(vi) Consistency with the Plain Language Guidelines and removal of archaic language.

(vii) Re-drafting some particularly complicated clauses in exposure drafts to ensure that they are simple and easy to understand.

[7] The intention was that the plain language ‘light touch’ process would apply to all modern awards (except those awards which were to be completely redrafted – see chapter 2 of this decision).

[8] An example of an exposure draft which has been through the ‘light touch’ process was published with a Statement 7 issued on 18 April 2019. The example is based on the Gardening and Landscape Services and Exposure Draft (the Gardening Award example). A conference was held on 29 April 2019 to allow parties the opportunity to comment on the scope of the plain language light touch amendments. A transcript of the conference is available on the Commission’s website.

[9] During the course of the 29 April 2019 conference, MBA raised a concern about the timing of the ‘light touch’ process in relation to the Construction group of awards. We confirm that these awards will not go through the ‘light touch’ process until the substantive claims have been finalised.

[10] At the conference, a number of parties sought an opportunity to file written submissions in relation to the Gardening Award example and the scope of the light touch process. Interested parties were given an opportunity to file further submissions. 8 As a number of matters to be implemented in the light touch process have already been determined the parties are asked to focus on:

•  Changes in wording that have resulted from an application of the plain language guidelines; and

•  Issues arising from the translation from the plain language re-drafting of the General Retail Industry Award 2010 and other awards that have been included in the plain language project.

[11] The following parties filed submissions:

•  CFMMEU (M&E);

•  Australia Nursing and Midwifery Federation (ANMF);

•  CFMMEU (C&G);

•  HIA;

•  Flight Attendants’ Association of Australia (FAAA);

•  Health Services Union (HSU);

•  ABI;

•  Ai Group; and

•  CFMMEU (MD).

[12] A further Statement 9 was issued on 17 May 2019 which attached a summary of the above submissions and invited parties to comment on the accuracy of the summary by 4:00 pm Thursday 23 May 2019. Parties were also informed that absent any request for an oral hearing the Full Bench will determine the matters raised in the submissions on the papers. No party requested an oral hearing. The MBA subsequently made a submission confirming its view about the timing of the light touch review of the Construction group of awards and commenting on the CFMMEU (C&G Division) and HIA submission regarding some award specific issues.

[13] We now return to the scope of the plain language project and the matters set out at (i) to (vii) in paragraph [6] above.

[14] Items (ii) to (v) above have either already been the subject of decisions by the Commission or are determined in this decision and will form part of the light touch update for each modern award.

[15] Before turning to items (i), (vi) and (vii) we propose to briefly summarise the submissions set out at [11] above.

[16] The general tenor of the submissions made – both at the conference and subsequently in writing – urged the Commission to take a cautious, indeed minimalist, approach to changing existing award terms during the light touch process, on the basis that such changes may have unintended consequences.

[17] For example, the CFMMEU (MD) submission identifies a number of clauses in the Gardening Award example which are said to be inconsistent with other award terms; may cause confusion; may change the meaning of an existing award term in a substantive way; or be misleading. The CFMMEU (MD) submission was generally supported by the other unions who made submissions.

[18] ABI and Ai Group both support a minimalist approach to the plain language ‘light touch’ process. ABI submits:

‘As indicated during the Conference on Monday 29 April 2019, ABI and NSWBC support a very confined roll out of the light touch process. Having been involved with the plain language drafting project since its inception, ABI and the NSWBC are conscious of the unintended consequence which can arise from even the most innocuous of drafting changes.

Our clients submit that any further application of the light touch process to other exposure drafts should be confined to drafting features such as headings and archaic language, and that parties have the opportunity to comment on each exposure draft.’ 10 (Emphasis added)

[19] Similarly, Ai Group submits that the Commission should exercise ‘as light a touch as possible’ in implementing this process in order to avoid unforeseen substantive amendments to modern awards. 11 Ai Group goes on to submit:

‘In … we are concerned that if a further substantial redrafting process is now undertaken, parties (including ourselves) will not have resources to devote to undertaking further reviews as comprehensively as may be necessary to ensure that further unintended variations to award entitlements and obligations are not implemented inadvertently.

Also, substantive variations may occur with the result that awards are amended in a manner that is not necessary in the sense contemplated by s.138, or in keeping with s.134.

Consequently, in practical terms, we urge the Commission to adopt a very limited approach when making amendments across the award system to apply the plain language drafting principles.

The Commission should also consider limiting the extent to which it seeks to implement wording changes made in the Hospitality Plain Language Exposure Draft, Restaurant Plain Language Exposure Draft and Retail Plain Language Exposure

Draft across the system. In this regard we are concerned that there may be a range of award specific considerations that necessitate a modified approach being taken across different awards.

The redrafting process should be confined to making structural amendments to implement the plain language award structure, plain language standard clauses and relevant key decisions of common relevance. In this regard we note that interested parties do not appear to have responded to the Commission’s previous invitation to identify clauses that require redrafting by making any such nominations.

To the extent that the Commission does continue with the plain language redrafting process we would urge it to continue to release all drafts in trackchanges format. This, combined with the tables identifying the basis for the changes, greatly assists the parties to undertake the review process.’ 12 (Emphasis added)

[20] The issues raised in the submissions highlight the risks inherent in adopting changes across the award system based on changes which have been made to those selected awards which have been completely redrafted in plain language. We have concluded that the risks involved – particularly the risk of changing the legal effect of an existing award term – outweigh the benefits of such an approach. As is apparent from the submissions, attempting to adopt changes across the award system is likely to be contested, resulting in significant delay to the completion of the Review.

[21] Consistent with the submissions advanced by ABI and Ai Group the ‘light touch’ process will be confined to making changes to the structure of exposure drafts in Groups 1 to 3 awards (in accordance with the plain language structure completed for awards in Group 4) (see (i) at [6] above); plain language standard clauses and relevant key decisions dealing with common issues. As to the proposed restructuring of the exposure drafts for the Group 1 to 3 awards a comparison document showing how awards have been restructured is set out at Attachment A.

[22] As noted in the February 2019 Statement Schedule 1 to the Fair Work Amendment (Repeal of 4 Yearly Reviews and Other Measures) Act 2018 (Cth) repealed the provision for 4 yearly reviews of modern awards in the Fair Work Act 2009 (Cth) (the Act), with effect from 1 January 2018. Consequently, there will not be any further 4 yearly reviews. However, the residual framework for exercising modern awards powers includes s.157 which allows the Commission to make, vary or revoke a modern award on its own motion. This power will allow the Commission to redraft the terms of modern awards which are unduly complex or difficult to understand, after the completion of the Review.

[23] A Statement regarding the finalisation of the Review will be published shortly. The next stage in the Review will involve the publication of final versions of exposure drafts (expressed as draft variation determinations) for all modern awards. This exercise will be done in stages. Any interested party will have an opportunity to comment on the draft determinations and in doing so may propose the variation of any term to make it simpler and easier to understand. In reviewing the final exposure drafts parties may propose the adoption of award terms used in those awards which have been redrafted in plain language (i.e. the awards described in Chapter 2 of this decision).

[24] Further, any interested person is invited to identify any term in any modern award that is ambiguous, uncertain or confusing and it will be considered for plain language re-drafting in the current Review. Any such request is to be forwarded to chambers.ross.j@fwc.gov.au.

3. The scope of the plain language re-drafting of selected awards

[25] On 22 September 2015, the Commission issued a Statement 13 establishing a pilot to produce a plain language draft of the Pharmacy Industry Award 2010 (Pharmacy Award). The purpose of the pilot was to create a plain language exposure draft (PLED) which was simpler and easier for employees and employers to understand than the current Award.

[26] The Commission initially proposed preparing plain language drafts of award-specific clauses in four other modern awards:

•  Clerks – Private Sector Award 2010 (Clerks Award);

•  General Retail Industry Award 2010 (Retail Award);

•  Hospitality Industry (General) Award 2010 (Hospitality Award); and

•  Restaurant Industry Award 2010 (Restaurant Award).

[27] The selection of the first tranche of modern awards to be redrafted in plain language was based on an assessment of the level of award reliance among employers and employees in the industries covered by these awards. Particular weight was given to award reliance among small businesses (those with fewer than 20 employees) on the basis that these entities are less likely to have a dedicated internal human resources management expertise to assist with the interpretation of awards.

[28] In a Statement of 27 March 2017 14 (the March statement) the Commission proposed that a further 10 modern awards would be drafted in plain language. The awards proposed for inclusion in the second tranche of modern awards for plain language re-drafting were:

•  Aged Care Award 2010 (Aged Care Award);

•  Building and Construction General On-site Award 2010 (Building On-site Award);

•  Children’s Services Award 2010 (Children’s Services Award);

•  Cleaning Services Award 2010 (Cleaning Award);

•  Fast Food Industry Award 2010 (Fast Food Award);

•  Hair and Beauty Industry Award 2010 (Hair and Beauty Award);

•  Manufacturing and Associated Industries and Occupations Award 2010 (Manufacturing Award);

•  Security Services Industry Award 2010 (Security Award);

•  Social, Community, Home Care and Disability Services Industry Award 2010 (SCHADS Award); and

•  Vehicle Manufacturing, Repair, Services and Retail Award 2010 (Vehicle Award).

[29] In selecting these modern awards we took into consideration a number of factors including:

•  industries or subsectors identified by the Fair Work Ombudsman as having high levels of non-compliance;

•  award reliance survey data regarding modern awards used by small businesses; and

•  the resources available to the Commission.

[30] In the February 2019 Statement we expressed the provisional view that the Vehicle Award; the Manufacturing Award and the Building On-Site Award would not be re-drafted in plain language at this time.

[31] No party contested our provisional view. We confirm that the Vehicle; Manufacturing and Building On-Site Awards will not be re-drafted in plain language at this time. As mentioned in the February 2019 Statement, in 2020 consideration will be given to the further re-drafting of awards in plain language using the residual framework in the Act. The Vehicle, Manufacturing and Building On-Site Awards will be considered for inclusion in that process in 2020. Interested parties will be provided with a further opportunity to comment on the inclusion of these awards at that time.

[32] The plain language re-drafting of the following awards is complete:

•  Pharmacy Award; 15

•  Clerks Award; 16

•  Restaurant Award; 17

•  Hospitality Award; 18

•  Retail Award; 19

•  Security Award 20

[33] There are two outstanding issues in relation to the plain language re-drafting of the Cleaning Award.

[34] The first issue concerns the temporary close-down provisions in the annual leave clause (i.e. clause 24.4).

[35] Submissions were received from United Voice 21 (UV) and Ai Group.22 UV submits that clause 29.6(a) of the current award states that notice is to be in writing and this requirement is absent from proposed clauses 24.4(b)(i) and (ii) of the revised PLED. UV also submits that proposed clause 24.4 of the revised PLED should be clarified by stipulating that the close down period is for a maximum of 4 weeks. Ai Group does not oppose the variations proposed by UV.

[36] We will amend clause 24.4 in the revised PLED to incorporate UV’s proposed amendments, as follows:

“24.4 Temporary close-down

(a) An employer may require an employee to take annual leave if the employee works for the employer in connection with a site operated by a client of the employer and:

(i) the client plans to temporarily close-down, or significantly reduce, all, or part of, its operations at that site (known as a ‘temporary close-down’); and

(ii) the temporary close-down is for the purposes of the client’s employees taking annual leave.

(b) Employer to notify employee

(i) If an employer requires an employee to take annual leave under clause (a), then the employer must give that employee one months’ notice in writing that they are to take annual leave for the temporary close-down.

(ii) However, if the employer engages an employee during the notice period, then the employer must give that employee notice of the temporary close-down in writing when the employer engages the employee.

(c) Length limit: four weeks plus public holidays

The close-down period under clause (a) may be for up to a maximum of four weeks plus public holidays.

(d) Public holidays during a temporary close-down

If the close-down period includes any public holiday, then:

(i) that public holiday does not count as a day of annual leave, or of leave without pay; and

(ii) the employer is to pay the employee for that day in the way this Award requires.

(e) Paid leave and leave without pay

If an employee is to take annual leave due to a temporary close-down under clause (a), then:

(i) if the employee has enough annual leave to cover the full close-down period, then they must take paid annual leave for the full close-down period;

(ii) if the employee has some annual leave but not enough to cover the full close-down period, then they must first take all of the paid annual leave they have and then take leave without pay for the rest of the close-down period — also see clause (f); or

(iii) if the employee has no annual leave, then they must take leave without pay for the full close-down period — also see clause (f).

(f) Alternative to leave without pay

If it is practicable for the employer to arrange work at another site for an employee who would otherwise be on leave without pay under clause (f)(ii) or (iii), then the employer must arrange that work.”

[37] The second outstanding issue concerns the payment for annual leave and the payment of accrued annual leave on termination. The issues are set out at [32] to [54] of the November 2018 decision 23 and at [55] of that decision we expressed the provisional view that clause 24.3 of the Cleaning PLED should be amended by deleting clause 24.3(a)(iii) as proposed by Ai Group, on the basis that the proposed variation is consistent with the common position espoused by the parties.24

[38] Further, in order to resolve the issue in dispute relating to payment of accrued annual leave on termination, we expressed the provisional view at [56] that clause 24.3(c) of the Cleaning PLED should be deleted on the basis that if retained it may result in an employee receiving less on termination than would have been payable to them had they taken leave. Such an outcome would be contrary to s.90(2) of the Act and contravene s.55 and, in such circumstances, the relevant award term—clause 24.3(c)—would have no effect (s.56). 25

[39] Submissions were received from Ai Group 26 and UV.27 Ai Group supports the Commission’s provisional views. UV submits that the characterisation of UV’s position on payment of annual leave on termination at [54] of the November 2018 decision is incorrect and that there is no common position between UV and Ai Group in respect of payment of annual leave on termination. Further, UV does not support the provisional view that clause 24.3(a)(iii) of the Cleaning PLED should be deleted and submits that clause 24.3(a) defines the employee’s base rate of pay for the purposes of s.90 of the Act. It submits that by deleting clause 24.3(a)(iii), an employee’s entitlement to ‘penalty rates paid for shiftwork or rostered ordinary hour of work on Saturday or Sunday’ will no longer form part of their base rate of pay.

[40] UV also objects to the provisional view that clause 24.3(c) of the PLED be deleted and submits that clause 24.3(c) is the only clause in the PLED that relates to payment of annual leave on termination. It submits that clause 24.3(c) simply identifies the method for calculating annual leave on termination and that, regardless of which interpretation the Commission settles on, there should remain a clause in the award that stipulates to employers and employees how annual leave is to be paid on termination.

[41] Ai Group filed a reply submission on 30 November 2018 28 in which it submits that UV’s submission does not raise any new or additional issues that warrant a departure from the provisional views expressed. Ai Group requested that, if the Bench decides to alter to the provision in a way that deviates from the previously expressed provisional view, they should be given another opportunity to comment on such a proposal, given the complexity of the matter.

[42] Given the complexity of the issues raised we propose to list this matter for oral hearing at 9:30am on 26 and 27 September 2019 in Sydney.

[43] As to the remaining awards, the plain language re-drafting of the Aged Care Award, Children’s Services Award, and SCHADS Award will commence after the substantive issues have been heard and determined. A timetable for consultation on the re-drafting process will be issued in the second half of 2019.

[44] A decision issued on 20 February 2019 determined the substantive issues in the Fast Food Award. 29 Plain language re-drafting of this award will commence in the coming weeks. The substantive issues in the Hair and Beauty Award remain outstanding and plain language re-drafting will commence when these issues have been determined.

[45] In its submission the CFMMEU (C&G Division) sought clarification as to whether the Mobile Crane Hiring Award 2010 (Mobile Crane Award) and the Joinery and Building Trades Award 2010 (the Joinery Award) were included in the plain language re-drafting project. We confirm that these awards will not be re-drafted in plain language, at this time.

[46] At the completion of this element of the plain language project the following awards will have been redrafted in plain language:

•  Aged Care Award;

•  Children’s Services Award;

•  Cleaning Award;

•  Clerks Award;

•  Hair and Beauty Award;

•  Hospitality Award;

•  Pharmacy Award;

•  Restaurant Award;

•  Retail Award;

•  Security Award; and

•  SCHADS Award.

4. Plain language re-drafting of standard clauses

[47] Five ‘standard clauses’ are common to most awards, namely:

•  Award flexibility

•  Consultation

•  Dispute resolution

•  Termination of employment; and

•  Redundancy.

[48] These standard clauses have now all been redrafted in plain language 30 and determinations varying most modern awards were issued on 26 October 2018 and 13 December 2018.

[49] A decision issued on 11 December 2018 31 (the December 2018 Decision) addressed a number of award specific issues with respect to the model standard clauses. In that decision we expressed a range of provisional views about these matters. Draft Determinations were issued on 13 December 2018 and interested parties had until 25 January 2019 to file submissions. Submissions in reply were due by 7 February 2019.

[50] We now turn to the issues in each of the awards which remain outstanding.

[51] In relation to standard clause E – Termination of employment, the following awards include award specific notice periods for termination of employment by an employee that would be removed if the standard model term was inserted:

•  Air Pilots Award 2010 (Air Pilots Award) at clause 12.7

•  Animal Care and Veterinary Services Award 2010 (Animal Care Award) at clause 11.3

•  Architects Award 2010 (Architects Award) at clause 12.2

•  Black Coal Mining Industry Award 2010 (Black Coal Award) at clause 13.2

•  Building and Construction General On-Site Award 2010 (Building On-Site Award) at clause 16

•  Educational Services (Teachers) Award 2010 (Teachers Award) at clause 11.4

•  Marine Towage Award 2010 (Marine Towage Award) at clause 11.6

•  Professional Employees Award 2010 (Professional Employees Award) at clause 12.2.

Air Pilots Award

[52] In the December 2018 Decision 32 we expressed the provisional view that:

•  the award specific clauses 12.5 and 12.6 should be retained in the award on the basis that each provides a long standing entitlement and no party sought to contest the retention of the clauses on merit or jurisdictional grounds;

•  the notice entitlement under clause 12.2 should be maintained as a minimum entitlement but should be redrafted so as not to exclude the NES in circumstances where an employee is entitled to 5 weeks’ notice under the NES;

•  clause 12.7 be redrafted to confine its scope to the extent of our jurisdiction; and

•  retain clauses 12.3 and 12.4, convert clause 12.1 into an appropriate note, re-order and re-number the clauses and make minor amendments in the interests of consistent drafting.

[53] No submissions were filed in response to our provisional view and nor were any submissions received in response to the draft determination. We confirm our provisional views and will issue a variation determination in the same terms as the draft determination published on 13 December 2018.

Animal Care Award; Architects Award and the Professional Employees Award

[54] The Animal Care, Architects and Professional Employees Awards contain notice provisions which may be inconsistent with the NES. In requiring only one month’s notice of termination by the employer these award terms exclude part of the NES, in that their operation results in an outcome whereby employees do not receive the full benefit provided by the NES. Under the NES an employee over 45 years of age with more than 5 years’ continuous service is entitled to 5 weeks’ notice; as opposed to the one month’s notice provided by the award terms.

[55] In the December 2018 Decision we accepted that the provision of one month’s notice in each of these awards is a long standing entitlement that arises from the professional nature of the employment in each of the industries and on that basis should be maintained as a minimum entitlement. However, as presently framed the provisions exclude the NES in circumstances where employees are entitled to 5 weeks’ notice under the NES. On that basis we expressed the provisional view 33 that the termination of employment provisions should be replaced with an amended version of the plain language standard clause.

[56] No submissions were filed in response to our provisional views and nor were any submissions received in response to the draft determinations. We confirm our provisional views and will issue variation determinations in the same terms as the draft determinations published on 13 December 2018.

Black Coal Award

[57] Clause 13.2 of the Black Coal Award departs from the standard clause E.1 in a number of respects, including:

(i) the scope of the clause;

(ii) the period of notice required;

(iii) there is no exclusion of employees under 18 years of age from the capacity of the employer to make a deduction from wages;

(iv) there is no prohibition of deductions in circumstances where an employer has agreed to accept less than the required period of notice; and

(v) there is no qualification that any deduction made pursuant to the clause must not be unreasonable in the circumstances.

[58] In the December 2018 Decision we expressed the following provisional views in respect to the matters at (i) to (v):

•  as to (i), the employee notice clause be redrafted so it is confined to the extent of our jurisdiction; 34

•  as to (ii), we do not propose to change the award in the absence of an application to do so; 35

•  as to (iii), it may be that the exclusion of employees under 18 years of age has no utility in this award because of the age profile of the employees to whom the award applies. If that assumption is incorrect then this issue may be revisited; 36 and

•  as to (iv), the protections against unreasonable reductions in paragraphs E.1(e) and (f) of the standard clause are to be inserted in clause 13.2 of the Black Coal Award. 37

[59] We also expressed the provisional view 38 that clause 13.4, Notice of termination – redundancy, be redrafted to ensure that it does not exclude provisions of the NES.

[60] No submissions were filed in response to our provisional views and nor were any submissions received in response to the draft determinations. We confirm our provisional views and will issue variation determinations in the same terms as the draft determinations published on 13 December 2018.

Building On-site Award

[61] The standard clause dealing with termination of employment includes a statement that:

‘This clause applies to all employees except those identified in ss 123(1) and 123(3) of the Act.’

[62] The proposed wording differs from clause 16.1 of the Building On-Site Award which states:

‘Notice of termination is provided for in the NES. The notice provisions of the NES do not apply to daily hire employees working in the building and construction industry.’

[63] MBA submits that the existing clause is adequate and should be retained:

‘We submit that proposed clause 16.1(a) is more complex and would be difficult to understand for Award end users.

Retention avoids requiring users to have regard to the Act and the Award, something that the current Award provisions does not require.’ 39

[64] The CFMMEU (C&G Division) and AMWU opposed the MBA’s submission. The CFMMEU (C&G Division) submits that, contrary to the MBA’s assertion, the existing award clause is not adequate because:

•  The current clause 16.1 only deals with notice of termination by an employer and it only refers to employees covered by s.123(3) of the FW Act, and does not reflect the additional employees covered by s.123(1).

•  The proposed clause 16.1(a) is specific to notice of termination by an employee and reflects the full range of employees that are not covered by the notice requirements in the proposed clause 16.1(b), which reflects the intended operation of the current clause 16.2 of the Building and Construction General On-Site Award 2010.

[65] As to the MBA’s submission regarding the complexity of the proposed clause, the CFMMEU (C&G Division) submits:

‘The proposed clause 16.1(a) is not more complex or difficult to understand (than the existing clause 16.1) as it does nothing more than point the award user to the specific provisions in the FW Act that are relevant. Requiring award users to have regard to the award and the FW Act is nothing new, and is already required by numerous existing provisions in the award (e.g. the definitions of employee, employer and NES in clause 3 – Definitions; clause 5 – Access to the award and the National Employment Standards; clause 6 – The National Employment Standards and this award; clause 9 – Dispute Resolution; and clause 38 – Annual leave). It should also be noted that s.123 falls within Part 2-2 – The National Employment Standards of the FW Act.’ 40

[66] The AMWU made similar submissions.

[67] We reject the MBA’s suggested change, largely for the reasons identified by the CFMMEU (C&G Division). In particular, the MBA’s proposed clause is apt to mislead employers as it only refers to one of the categories of employees who are excluded from the relevant provisions of the NES.

[68] Clause 16.1 deals with notice of termination by an employee. The power to include a term in a modern award specifying the period of notice an employee must give in order to terminate his or her employment is in s.118, which forms part of Subdivision A of Division 11 of Part 2-2 of the Act. Section 123 limits the scope of Division 11 and, relevantly, ss 123(1) and (2) provide:

(1) This Division does not apply to any of the following employees:

(a) an employee employed for a specified period of time, for a specified task, or for the duration of a specified season;

(b) an employee whose employment is terminated because of serious misconduct;

(c) a casual employee;

(d) an employee (other than an apprentice) to whom a training arrangement applies and whose employment is for a specified period of time or is, for any reason, limited to the duration of the training arrangement;

(e)  an employee prescribed by the regulations as an employee to whom this Division does not apply.

…

(3) Subdivision A does not apply to:

(b)  a daily hire employee working in the building and construction industry (including working in connection with the erection, repair, renovation, maintenance, ornamentation or demolition of buildings or structures); or

(c)  a daily hire employee working in the meat industry in connection with the slaughter of livestock; or

(d)  a weekly hire employee working in connection with the meat industry and whose termination of employment is determined solely by seasonal factors; or

(e)  an employee prescribed by the regulations as an employee to whom that Subdivision does not apply.

[69] Clause 16.1(a) provides that clause 16 does not apply to those employees identified in ss 123(1) and (3), because the Commission does not have power to specify the notice those employees must give to terminate their employment. The amendment proposed by the MBA only excludes a sub-set of the employees excluded by ss 123(1) and (3).

[70] We accept that daily hire employees are likely to be the most commonly exempted employees and on that basis will amend clause 16.1(a) to include a note as follows:

‘This clause applies to all employees except those identified in ss 123(1) and 123(3) of the Act.

Note: by s 123(3)(a) this clause does not apply to daily hire employees working in the building and construction industry.’

[71] We will now issue a variation determination in the same terms as the draft determination published on 13 December 2018, with the addition of the note to clause 16.1(a) as set out above.

Teachers Award

[72] Clause 11.5 of the Teachers Award departs from the plain language standard termination of employment clause in a number of respects, including the following:

(i) there is no exclusion of employees under 18 years of age from the capacity of the employer to make a deduction from wages;

(ii) there is no prohibition of deductions in circumstances where an employer has agreed to accept less than the required period of notice;

(iii) the amount that may be deducted from monies due to the employee is not ‘capped’ at one week’s wages; and

(iv) there is no qualification that any deduction made pursuant to the clause must not be unreasonable in the circumstances.

[73] In the December 2018 Decision we expressed the following provisional views in respect of the matters at (i) to (iv):

•  as to (i), it may be that the exclusion of employees under 18 years of age has no utility in this award because of the age profile of the employees to whom the award applies. If that assumption is incorrect then this issue may be revisited; 41

•  as to (ii) to (iv), clauses 11.4 and 11.5 of the Teachers Award be redrafted to ensure that a deduction of an amount from monies owed to an employee was not ‘unreasonable in the circumstances’, within the meaning of s.326(1)(b). 42

[74] We also expressed the provisional view that clauses 11.2, 11.3 and 11.9 be redrafted with application clauses, rather than their application being indicated by the clause heading 43 and that clause 11.6 be replaced by standard clauses E.2 and E.3 and clause 11.1 be converted into a note.

[75] The Independent Schools of Victoria, Independent Schools Tasmania and the Associations of Independent Schools of NSW (the Independent Schools) have filed submissions opposing the incorporation of a ‘cap’ of one weeks wages from the amount that may be deducted on termination from monies due to an employee. The Independent Schools submit that it is reasonable in the circumstances for schools to be authorised to deduct, from monies due to a teacher, the full amount of notice (if any) required by the award but not provided by the teacher:

‘… in circumstances where the amount of notice required is 7 term weeks, any ‘cap’ ought to be higher than one week.’ 44

[76] A witness statement by Ms Kerri Knopp Director Strategic Relations of Independent Schools Victoria, has been filed in support of the submission put by the Independent Schools.

[77] The Independent Education Union of Australia (the IEU) agrees with the provisional views set out in the December 2018 Decision and opposes the amendment proposed by the Independent Schools.

[78] Given the complexity of the issue, and in order to provide the IEU an opportunity to cross examine Ms Knopp, we propose to list this matter for an oral hearing at 9:30am on 26 and 27 September 2019 in Sydney.

Marine Towage Award

[79] Clause 11.6 of the Marine Towage Award deals with notice of termination by permanent employees. Clause 11.6 departs from the standard clause in a number of respects, including the following:

(i) the scope of the clause;

(ii) the period of notice required;

(iii) there is no exclusion of employees under 18 years of age from the capacity of the employer to make a deduction from wages;

(iv) there is no prohibition of deductions in circumstances where an employer has agreed to accept less than the required period of notice;

(v) the amount that may be deducted from monies due to the employee is not ‘capped’ at one week’s pay; and

(vi) there is no qualification that any deduction made pursuant to the clause must not be unreasonable in the circumstances.

[80] In the December 2018 Decision we expressed the following provisional views in respect of matters (i) to (vi):

•  as to (i), the clause be redrafted so it is confined to the extent of our jurisdiction; 45

•  as to (ii), we do not propose to change the award in the absence of an application to do so; 46

•  as to (iii), it may be that the exclusion of employees under 18 years of age has no utility in this award because of the age profile of the employees to whom the award applies. If that assumption is incorrect then this issue may be revisited; 47

•  as to (iv) to (vi), the protections against unreasonable reductions in paragraphs E.1(e) and (f) of the standard clause are to be inserted into clause 11.6. 48

[81] We also proposed to replace clause 11.3 – Job search entitlement with standard clauses E.2 and E.3 and to retain clauses 11.2, 11.4, 11.5 and 11.7, and to convert clause 11.1 into a note. 49

[82] No submissions were filed in response to our provisional views and nor were any submissions received in response to the draft determinations. We confirm our provisional views and will issue variation determinations in the same terms as the draft determinations published on 13 December 2018.

[83] We now turn to deal with a number of award specific issues relating to the Redundancy Standard term.

[84] A decision issued on 16 April 2019 50 (the April 2019 Decision) finalised the structure of the plain language redundancy standard term and inserted that standard term into 100 modern awards. Of the remaining 22 modern awards, 21 have redundancy provisions and in the December 2018 Decision we divided these 21 modern awards into three categories”

Category 1: Awards with an industry-specific redundancy scheme

Category 2: Awards with an industry-specific redundancy element that supplements the NES (such as providing an entitlement to redundancy pay for employees of small businesses).

Category 3: Awards with other variations from the standard redundancy provisions.

[85] The April 2019 Decision dealt with the six awards in the first category. This decision deals with the awards in categories 2 and 3.

[86] The second category relates to awards with industry-specific redundancy elements that supplement the NES, such as by providing an entitlement to redundancy pay for employees of small businesses. The awards in this category are:

•  Air Pilots Award;

•  Aircraft Cabin Crew Award 2010 (Aircraft Cabin Crew Award);

•  Cleaning Award;

•  Teachers Award;

•  Electrical, Electronic and Communications Contracting Award 2010 (Electrical Contracting Award);

•  Joinery and Building Trades Award 2010 (Joinery Award);

•  Mannequins and Models Award 2010 (Mannequins and Models Award);

•  Manufacturing Award;

•  Security Award;

•  Sugar Industry Award 2010 (Sugar Industry Award);

•  Textile, Clothing, Footwear and Associated Industries Award 2010 (TCF Award); and

•  Timber Industry Award 2010 (Timber Award).

[87] In the December 2018 Decision we expressed the provisional 51 view that awards with an industry-specific element that supplements the NES should be amended to include the plain language standard redundancy clause, but with adaptations as necessary to retain the substance of the industry-specific elements. The note at the beginning of the redundancy clause in these awards may also be amended so as to refer to the industry-specific elements.

[88] We also noted that the background to the industry specific redundancy clauses in the Mannequins and Models Award and the Sugar Industry Award required further consideration and will be dealt with in due course.

[89] Interested parties opposing our provisional view were to lodge a submission explaining their objection by 4pm on 25 January 2019. Submissions in reply were to be filed by 4pm on Friday 8 February 2019.

[90] No submissions were filed opposing our provisional view (nor were any comments received in response to the draft determinations) in relation to the following awards:

•  Air Pilots Award;

•  Aircraft Cabin Crew Award;

•  Cleaning Award;

•  Electrical Contracting Award;

•  Security Award; and

•  TCF Award.

[91] We confirm our provisional view in respect of these awards and will issue variation determinations in the same terms as the draft determinations published on 13 December 2018.

[92] There remain some contested issues in respect of the Joinery Award, the Manufacturing Award and the Timber Award. Given the degree of complexity associated with the contested issues in these awards we propose to list these matters for an oral hearing 9:30am on 26 and 27 September 2019 in Sydney. We now turn to the category 3 matters.

[93] Variations to the standard plain language redundancy clause arise in relation to three modern awards:

•  Coal Export Terminals Award 2010 (Coal Terminals Award);

•  Maritime Offshore Oil and Gas Award 2010 (Offshore Oil and Gas Award); and

•  Seagoing Industry Award 2010 (Seagoing Award).

Coal Terminals Award

[94] In the December 2018 Decision we expressed the provisional view (at [53]) that only the note and subclauses F2 and F3 of the plain language standard redundancy clause be inserted into this award.

[95] No submissions were filed in response to our provisional view; nor were any submissions filed in response to the draft determination. We confirm our provisional view and will issue a variation determination in the same terms on the draft determination published on 13 December 2018.

Offshore Oil and Gas Award / Seagoing Award

[96] The redundancy provisions in these awards do not currently contain a job search entitlement term. Given the location of the work covered by these awards we expressed the provisional view (at [52] of the December 2018 Decision) that this aspect of the plain language standard redundancy term should not be inserted into these awards.

[97] No submissions were filed in response to our provisional view; nor were any submissions filed in response to the draft variation determinations. We confirm our provisional view and will issue variation determinations in the same terms as the draft determinations published on 13 December 2018.

[98] The last of the 22 modern awards not yet varied to insert the plain language redundancy standard term is the Higher Education Industry – General Staff Award 2010 (the Higher Education General Staff Award).

[99] The Higher Education General Staff Award does not presently contain any redundancy provisions. In the December 2018 Decision (at [55]) we expressed the provisional view that the award be varied to include the plain language redundancy standard term.

[100] No submissions were filed in response to our provisional view; nor were any submissions filed in response to the draft determination. We confirm our provisional view and will issue a variation determination in the same terms as the draft determination published on 13 December 2018.

TCF Award

[101] In relation to other standard clauses, there are three outstanding issues in relation to the TCF Award. These issues are discussed at [132] to [142] of the December 2018 Decision in which we expressed the following provisional views:

•  the additional safeguards in clause 7 – Individual Flexibility Arrangements (i.e. clauses 7.4 and 7.9) be retained;

•  in relation to clause 9A – Consultation about changes to rosters or hours of work – clause 9.2(c) will be incorporated into the standard clause; and

•  clause F5.10 in Schedule F will be amended to reflect the change in numbering of clause 10.

[102] No submissions were filed opposing our provisional views and the only submission received in response to the draft determination (filed by the CFMMEU (MD)) supported the draft determination. We confirm our provisional views and will issue a variation determination in the same terms as the draft determination published on 13 December 2018.

5. Annual, weekly and hourly rates in minimum wages tables

[103] A Statement 52 published on 21 March 2018 discussed an issue raised by Ai Group about whether the words ‘full-time employee’ should be included under the minimum weekly wage in the wages table was referred to the plain language Full Bench. In a decision53 in July 2015 the Group 1 Full Bench decided to include hourly rates of pay in the body of the award (in addition to weekly rates) to ensure that awards are simple and easy to understand.

[104] Ai Group submitted that the preamble to the minimum wages table does not state that the table applies to full-time employees and consequently a literal reading appears to require the payment of the minimum weekly rate to all adult employees, including part-time and casual employees. Ai Group propose to insert the words ‘(full-time employees)’ below the heading of the column containing minimum weekly rates in numerous awards in the technical and drafting proceedings of the award stage of the review. 54

[105] The amendment proposed by Ai Group has already been applied to some exposure drafts in Group 4 of the award stage proceedings.

[106] In the February 2019 Statement we expressed the provisional view that the approach suggested by Ai Group should be adopted across all exposure drafts.

[107] Interested parties were invited to comment on our provisional view. Only three submissions addressed this issue in any detail.

[108] The CFMMEU (C&G Division) did not support our provisional view, for two reasons. First, it submitted that the purpose of the minimum wages tables in modern awards was to set out the minimum weekly classification rates and not the minimum weekly award rates of pay. It is said that the minimum weekly award rates of pay will differ depending on whether any all purpose allowances are payable and the type of employment (e.g. casual, part time, shift worker or daily hire).

[109] Second, it is submitted that in a number of awards the insertion of the words ‘full-time employee’ would ‘potentially create confusion rather than reduce it’ and advanced a ‘preferred alternative approach’ to that proposed by Ai Group, which is to add a subclause below the minimum rates table, as follows:

‘X.2 The rates in clause X.1 prescribe minimum classification rates only. The actual minimum rate of pay will depend on the employees type of employment and whether any loadings, penalty rates or all purpose allowance are payable. See summary of hourly rates of pay in Schedule XX.’

[110] HIA opposed the insertion of ‘full-time employee’ below the heading of the column containing minimum weekly rates of pay in the Building On-site Award and the Joinery Award, for the following reasons:

‘Onsite Award

3.1.3 Minimum weekly rates within the Onsite Award are not confined to full-time employment. The Onsite Award has four types of employment, daily hire, full-time weekly hire, part-time weekly hire, and casual. As such adding ‘full time employee’ against the minimum weekly rate in clause 19.1(a) may in fact cause more confusion and is inconsistent with the language used throughout the award. For example, the Onsite Award refers to daily hire employees, and weekly hire employees in the context of clause 19.3, hourly rate calculation. The proposed language is also at odds with the definition of ‘ordinary time hourly rate’ in clause 3 of the Onsite Award which assists the reader to carry out the calculation of the applicable rate of pay.

3.1.4 Additionally, the current wording of Clause 19.1(b) sufficiently explains the application of the minimum weekly wage by reference to clause 3 which sets out how the minimum weekly wage applies to an employee’s applicable type of employment:

19.1(b) The rates in clause 19.1(a) prescribe minimum classification rates only. The payment of additional allowances is required by other clauses of this award in respect of both weekly and hourly payments. The ordinary time hourly rate for an employee’s classification is set out in clause 3 …

Further,

3.1.6 Clause 18.2 of the Joinery Award which immediately follows the minimum wages table at clause 18.1, provides a meaning of ‘minimum weekly rate’:

18.2 For the purposes of clause 18.1, any entitlement to a minimum wage expressed to be by the week means any entitlement which an employee would receive for performing 38 hours of work.

3.1.7 As such HIA does not see the addition of the proposed words outlined in the provisional view as necessary.’

[111] ABI did not oppose the insertion of the reference to ‘full-time employee’ in the minimum rates table ‘as a general proposition; but submits that in some awards (such as the Clerks Award), this change may result in some confusion due to ‘the interaction of the operative part of the clause with the wage table.’

[112] The first point advanced by the CFMMEU (C&G Division) is misconceived. Exposure drafts clearly delineate minimum (classification) rates of pay and ‘ordinary rates of pay’; the latter incorporates any all-purpose allowances. The second point put in favour of the preferred approach of the CFMMEU (C&G Division) does not advance the argument. It amounts to little more than an assertion that adopting Ai Group’s proposal that it would ‘potentially create confusion rather than reduce it’, without particularising the modern awards in which this may occur. If the variation of the exposure drafts in the manner proposed by Ai Group does create confusion in respect of particular awards that can be the subject of submissions in response to the next release of exposure drafts. Neither of the points advance persuade us to depart from our provisional view.

[113] As to the HIA’s submission, we propose to exempt the Building On-Site and Joinery Awards from the approach proposed by Ai Group, at this time. We note the point raised by ABI and will take it into account in the implementation of this change in the Clerks Award.

[114] We confirm that the approach suggested by Ai Group will be adopted across all exposure drafts, save for the Building On-Site and the Joinery Awards. In relation to those two awards the issue can be the subject of further submissions in response to the publication of the next iteration of exposure drafts.

6. Cross references in coverage clauses

[115] In the February 2019 Statement we expressed the provisional view that:

“•  any exposure drafts that do not currently have the industry definition in the coverage clause will be amended in accordance with the July 2017 Group 3 decision; 55 and

clauses dealing with on-hire employees and group training services will be amended to refer to the relevant industry instead of a clause reference.’

[116] Interested parties were invited to comment on our provisional view. Only two submissions addressed this issue in any detail – Ai Group and the HIA. Ai Group submitted that:

‘the clauses to be inserted into particular awards will need appropriate modification to take into account that:

•  Some awards have occupational coverage, rather than industry coverage;

•  Some awards have both industry and occupational coverage; and

•  Many awards cover group apprentices as well as group trainees.

During Stage 4 of the 2008/09 Award Modernisation Process, Ai Group was heavily involved in the development of the coverage clauses for labour hire employees, group apprentices and group trainees. At the time it was evident to all parties and to the AIRC, that the same wording would not be appropriate for all awards because of the issues raised above.

It is important that interested parties be afforded an opportunity to review and comment on any draft determinations that are prepared in order to implement the proposals at paragraphs [33] and [34] of the February Statement, so that any award specific considerations can be identified.’ 56

[117] HIA’s submission was directed at the Building On-site and Joinery Awards:

‘Onsite Award

6.2.4 Clauses 4.6 and 4.7 of the Onsite Award as they relate to on-hire and group training services coverage, reference Clause 4.1 as the defined industry for coverage purposes.

6.2.5 Clause 4.1 of the award confirms the Onsite Award provides coverage for employers and employees in the on-site building, engineering and civil construction industry, whilst clause 4.10 defines the industry for the purposes of clause 4.1.

6.2.6 Accordingly HIA acknowledges that the cross reference issue in Clauses 4.6 and 4.7 of the Onsite Award can be remedied in line with the Commissions provisional view as follows:

4.6 This award covers any employer which supplies labour on an on-hire basis in the on-site building, engineering and civil construction industry set out in clause 4.1 in respect of on-hire employees in classifications covered by this award, and those on-hire employees, while engaged in the performance of work for a business in that industry. This subclause operates subject to the exclusions from coverage in this award.

4.7 This award covers employers which provide group training services for apprentices and/or trainees engaged in the on-site building, engineering and civil construction industry and/or parts of industry set out at clause 4.1 and those apprentices and/or trainees engaged by a group training service hosted by a company to perform work at a location where the activities described herein are being performed. This subclause operates subject to the exclusions from coverage in this award.

Joinery Award

6.2.7 Clauses 4.4, 4.5 and 4.7 of the Joinery Award as they relate to on-hire and group training services coverage, reference Clause 4.8(a) and 4.8(b) as the defined industry and occupations for coverage purposes.

6.2.8 Such reference to Clause 4.8 is correct, as the clause defines the joinery and building trades industries and occupations.’ 57

[118] We confirm our provisional view, Exposure drafts that do not currently have the industry definition in the coverage clause will be amended in accordance with the July 2017 Group 3 decision and clauses dealing with on-hire and employees and group training services will be amended to refer to the relevant industry instead of a clause reference. The variations to be made to the exposure drafts will take into account the matters raised by Ai Group and the HIA and interested parties will have an opportunity to comment on the next iteration of exposure drafts.

7. Reasonable overtime

[119] On 29 October 2018 we issued a Decision [2018] FWCFB 6680 determining a reasonable overtime model term and foreshadowed that draft determinations would be published for the 12 awards at Attachment B to this decision. At [25] of that decision we stated:

‘[25] Draft variation determinations will now be published. Our provisional view will only be displaced in respect of any particular award if it is demonstrated that there are matters or circumstances particular to that award which compel the conclusion that the achievement of the modern award objective for that award does not necessitate the variation of the award to insert the model term. One such matter may be the interaction between the model term and other provisions in that award.’

[120] On 16 November 2018, draft determinations were issued for the 12 awards affected and we foreshadowed that any tailoring of award-specific clauses would be addressed after the publication of the draft determinations. 58 Parties were asked to file submissions and submissions in reply on any proposed variations to the draft determinations. Submissions were received from the following parties:

•  HIA; 59

•  CFMMEU (C&G); 60

•  CEPU; 61

•  AMWU; 62

•  AHA; 63

•  UV. 64

[121] HIA made submissions in relation to the Building On-site Award, the Joinery Award and the Timber Award. It submits that related cross references should be provided in clause (c) where factors are listed to take into account what is reasonable or unreasonable overtime. They submit this approach would enhance the readability of the award and assist in ensuring compliance. HIA proposes the following award specific variations to the Joinery and Timber Awards:

Joinery Award draft determination- Paragraph 1 cl30.1(c)

•  ‘(ix) whether the additional hours are in accordance with averaging terms of Clause 28 in this award inserted pursuant to s.63 of the Act, that applies to the employee’;

Timber Award draft determination – Paragraph 1 cl30.11(c)

•  ‘(ix) whether the additional hours are in accordance with averaging terms of Clause 27 in this award inserted pursuant to s.63 of the Act, that applies to the employee’;

[122] In relation to the Building On-site Award, HIA submits that the averaging of hours reference in the reasonable overtime model term was unnecessary and confusing as the award did not include an averaging of hours terms. We agree and will delete clause 36.1(c)(ix) in the Building On-site Award draft determination.

[123] In relation to the Building On-site Award, the Joinery Award and the Manufacturing Award, CFMMEU (C&G Division) submits that the words ‘other than a casual’ be deleted from paragraph (a) in each clause of the draft determinations and that clause (a) should read:

‘Subject to s.62 of the Act and this clause, an employer may require an employee to work reasonable overtime hours at overtime rates.’

[124] CFMMEU (C&G Division) referred to the Full Bench’s comments regarding whether s.62 applies to casual employees in [2018] FWCFB 6680 at [23] and referred to a transcript from 23 October 2018 65 where the President proposed that where an award currently contains the words ‘other than a casual’ that it would remain but would be removed from the General Retail Industry Award 2010, the Hair and Beauty Award and the Fast Food Award as those words had been removed from these awards by another decision.

[125] CFMMEU (C&G Division) also submits that the current reasonable overtime clauses in the Building On-site, the Joinery and the Manufacturing Awards do not include the words ‘other than a casual’ and the current provisions apply to all employees, including casuals. Further, the Building On-site and Joinery Awards both contain specific penalty rates for casuals required to work overtime.

[126] CEPU advanced a similar submission in relation to the Building On-site Award, Manufacturing Award and the Electrical Award and the AMWU made essentially the same submission in relation to the Manufacturing Award, the Building On-site Award, the Timber Award and the Graphic Arts, Printing and Publishing Award 2010 (Graphic Arts Award). The AMWU submits that the current overtime provisions in all four awards apply to casual employees and accordingly the words ‘other than a casual’ should be deleted.

[127] Australian Hotels Association (AHA) made submissions in relation to the Hospitality Award. AHA stated that the Hospitality Award provides casual employees with an entitlement to overtime rates for work in excess of 12 hours per day or shift; or 38 hours per week, or an average of 38 hours per week over a roster cycle in clauses 13.2, 13.4, 33.1 and 33.2(c). On this basis the AHA submits that the words ‘other than a casual’ should be deleted from the draft determination.

[128] Similarly, UV submitted that the Cleaning Services Award provides that casual employees are entitled to overtime payments (under clauses 12.5(a) and 24.2(a)), and the Hospitality Award also provides casuals with an  entitlement to overtime payments (see clause 13.4).  UV submits that the two awards do not exclude casual employees from the reasonable overtime provisions in clauses 28.1 and 33.1 of the Cleaning and Hospitality Awards, respectively.

[129] Our Statement of 16 November 2018 66 provided that submissions in reply were to be filed by Wednesday 5 December 2018. We note that no submissions were filed opposing the views expressed in the submissions set out above. We accept each of the variations proposed, that is:

•  the words ‘other than a casual’ will be deleted from the variation determinations in respect of the Building On Site; Cleaning Services; Electrical Contracting; Graphic Arts; Hospitality; Joinery; Manufacturing; Timber Awards;

•  the cross referencing in clause 30.1(c)of the Joinery Award and clause 30.11(c) of the timber Award, as proposed by HIA; and

•  the deletion of clause 36.1(c)(ix) of the Building On site Award draft determination.

[130] Variation determinations in respect of each of these awards will be issued shortly.

[131] Further, no submissions were received concerning the draft determinations for the Fast Food Award, the Retail Award, the Hair and Beauty Award and the Pharmacy Award. However, in [2018] FWCFB 6680 at [21] we referred to a submission by the National Retail Association’s which noted that the Fast Food, Retail and Hair and Beauty Awards were varied by the Part-time and Casuals Full Bench to remove the words ‘other than a casual’ from the reasonable overtime term. We note that these variations came into effect on 1 January 2018, accordingly it is our provisional view that the reference to ‘other than a casual’ should be deleted in the draft variation determinations in respect of these three awards.

[132] We also note that the draft variation determination in the Pharmacy Award includes the words ‘other than a casual’ in circumstances where they do not appear in the current award and, further, the overtime provisions in the current award appear to apply to ‘all employee’ (see clause 26.1(a)). In these circumstances it is our provisional view that these words be deleted.

[133] Revised draft variation determinations in respect of these four awards will be published shortly and interested parties will have 14 days to comment.

8. National Training Wage

[134] In a Statement of July 2016 67 it was proposed that the National Training Wage Schedule (NTW Schedule) be standardised and removed from all awards except the Miscellaneous Award 2010 (the Miscellaneous Award) and that the NTW be incorporated into other awards by reference to the Miscellaneous Award.

[135] In a decision in June 2017 68 a reference term was inserted into the 94 modern awards specified in Attachment A of that decision. A decision69 of August 2017 finalised the plain language NTW Schedule and the Miscellaneous Award NTW Schedule was varied70 in September 2018.

[136] There are eight awards in which a party had sought to retain an award specific NTW schedule are:

•  Airline Operations—Ground Staff Award 2010 (the Airline Ground Staff Award);

•  Airport Employees Award 2010 (the Airport Employees Award);

•  the Building On site Award;

•  Food, Beverage and Tobacco Manufacturing Award 2010 (the Food Manufacturing Award);

•  the Joinery Award;

•  the Manufacturing Award;

•  the Mobile Crane Award; and

•  the Sugar Industry Award.

[137] The AMWU and Ai Group have come to an agreement on the NTW schedules to be included in the following awards:

•  Airport Employees Award;

•  Food Manufacturing Award;

•  Manufacturing Award; and

•  Sugar Industry Award.

[138] Draft variation determinations reflecting the AMWU/Ai Group agreement will be published with this decision. Interested parties will have 14 days to comment. Absent a request for an oral hearing any outstanding issues will be decided on the papers.

[139] The CFMMEU (C&G Division) sought to retain the NTW schedule in the Building On-site Award, the Joinery Award and the Mobile Crane Award. As noted at a mention held on 7 September 2018, consideration of the NTW schedule in the Building On site Award was deferred until after the Construction Group Full Bench issue a decision in relation to clause 28. 71

[140] In relation to the Joinery and the Mobile Crane Awards, a conference about the National Training Wage issues in these two awards will be held at 2pm on Friday 23 August 2019 in Sydney. A summary of submissions in relation to the Joinery Award and the Mobile Crane Award is at Attachment C.

9. Terminology of rates

[141] In a Statement 72 of March 2018, an issue raised by Ai Group regarding the terminology used to describe rates was referred to the plain language Full Bench. The issue is set out in that statement as follows:

‘[4] The Ai Group submission of 31 August 2016 is as follows:

‘3. Our first concern relates to the characterisation of premiums payable pursuant to an award. Modern awards variously characterise premiums that are payable to an employee as penalties, loadings or allowances. For example, an employee may be entitled to a shift “loading” in respect of work performed during a shift at a particular time. In numerous instances, the characterisation of a particular premium payable under an award has been altered in the corresponding provision of an exposure draft. For instance, where a current award mandates the payment of a shift “allowance”, the exposure draft may instead refer to it as a shift “penalty”. A change to the terminology used to describe a particular payment in an award often has implications for the calculation of other entitlements in the award. We are also concerned that a change in terminology may have implications for the calculation of entitlements under legislation, such as workers’ compensation and long service leave statutes.’

[142] In its submissions of 23 September 2016 Ai Group further submitted:

•  ‘An award provision which requires that shiftworkers be paid, say, 15% extra can legitimately be called a “loading”, but it cannot legitimately be called a “penalty rate” or a “shift rate”.

•  An award provision which states that shiftworkers are to be paid, say, 115% of the ordinary time rate cannot legitimately be referred to as a “loading” or an “allowance”, but it can be referred to as a “shift rate”.

•  The annual leave clause in an award cannot legitimately refer to the “shift loadings” in the shiftwork clause if the shift loadings (e.g. 15%) have been replaced with shift rates (e.g. 115%) and the loading is not separately identified.

•  The annual leave clause in the award cannot provide that an employee is to receive a 17.5% loading or any higher “shift penalty”, if the former shift penalty of, say, 15% has been redrafted as 115%.’

[143] In the Group 3 decision, 73 the Full Bench acknowledged that payment to compensate employees for working shiftwork had been variously described as penalties, loadings, allowances, or rates in modern awards and that ‘shift penalties’ had been used in the Exposure Drafts to make the term consistent, stating that:

‘We are satisfied that a consistent approach on shift penalties is appropriate. While Ai Group proffers a return to existing terminology, an examination of the current award provisions shows there is no consistency between or even within modern awards. The Ai Group submissions on inconsistencies within the exposure drafts of the awards are noted and we will provide provisional views as to how these may be resolved.’

[144] The Full Bench referred this issue to the Plain Language Full Bench. 74

[145] We agree with Ai Group’s explanation of the problems with terminology set out at [142]. We propose to make amendments to the terminology on an award by award basis during the light touch process. Interested parties will be given the opportunity to make submissions about those proposed changes during that process.

[146] In relation to annual leave loading, Ai Group contended that any reference to an employee being paid the higher of annual leave loading or ‘shift loading’ in exposure drafts could be interpreted as an employee on annual leave being paid the higher of 17.5% or a shift loading of, for example 130%. Ai Group stated that this could lead to some shiftworkers being paid 230% while on annual leave. The Ai Group Submission is as follows:

‘4. Our second concern relates to the manner in which premiums are expressed in exposure drafts. Numerous exposure drafts state, for example, that a shift worker is to be paid 130% of the relevant rate, rather than a 30% loading. This has implications for the calculation of other award entitlements which still refer to loadings (e.g. annual leave payments).’” (footnotes omitted)’

[147] The Group 3 Full Bench has previously expressed the view that the provisions in some awards may be ambiguous because the annual leave loading clause isolates the loading component of the shiftwork provision and compares it to annual leave loading. As the redrafted penalty rates clause no longer identifies the loading component of the shiftwork penalty separately, the annual leave loading clause is not comparing like with like. 75

[148] In a statement issued on 28 February 2019 (the February 2019 statement) we agreed with the Ai Group’s explanation of the problems with terminology in their submissions set out at paragraph [2] of this decision. 76 We proposed to make amendments to the terminology on an award by award basis during the light touch process.

[149] We also accepted the submission of the Ai Group that the terminology used in exposure drafts to describe various penalties is likely to cause confusion. 77 We noted that of the 112 modern awards with a provision for annual leave loading, 56 contained a reference to an employee being paid the higher of the annual leave loading or a shift ‘loading’ or ‘allowance’. These 56 awards are set out at Attachment D of this decision. To resolve the issue, we expressed the following provisional view in the February 2019 Statement:

‘[67] In relation to the annual leave loading issue, we propose adopting the suggestion of Ai Group (based on the Clerks PLED):

‘(c) For an employee who would have worked on day work only had they not been on leave, the additional payment is the greater of:

(i) 17.5% of the employee’s minimum hourly rate for the employee’s ordinary hours of work in the period; or

(ii) The minimum hourly rate for the employee’s ordinary hours of work in the period inclusive of weekend penalty rates as specified in clause 21— Penalty rates (employees other than shiftworkers). For the purposes of this clause, the relevant weekend penalty does not include the minimum hourly rate for the employee’s ordinary hours of work.

(d) For an employee who would have worked on shiftwork had they not been on leave, the additional payment is the greater of:

(i) 17.5% of the employee’s minimum hourly rate for the employee’s ordinary hours of work in the period; or

(ii) The minimum hourly rate for the employee’s ordinary hours of work in the period inclusive of shift and weekend penalty rates for shiftwork as specified in clause 28—Penalty rates for shiftwork. For the purposes of this clause, the relevant penalty rates for shiftwork do not include the minimum hourly rate for the employee’s ordinary hours of work.

[68] This solution appears to be relatively straightforward in terms of drafting. However, it requires the reader to deduct the minimum wage from the penalty rates clause and then compare the remainder to the annual leave loading. This may make the award more complex and difficult for users to apply.

[69] We note that in the plain language review of the Clerks Private Sector Award 2010, Ai Group raised a related issue in exposure drafts where the public holiday penalty clause has been moved from the public holidays clause to the penalty rates clause. In those proceedings, Ai Group submitted that this has created an issue in the annual leave loading clause because:

‘It requires the payment of “penalty rates as specified in clause 23”, which prescribes weekend and public holiday penalty rates. This deviates substantively from the current clause 29.3(b)(i), which contemplates only weekend penalty rates. It thereby creates an additional entitlement that is not bestowed by the Award.’

[70] In a decision in September 2018 we decided to insert the word “weekend” before the words “penalty rates” in clause (c)(ii) and the words “shift and weekend” before the words “penalty rates” in clause (d)(ii) as an interim measure, as set out in [67]. We also propose to make this change to all exposure drafts set out at Attachment B.’ 78

[150] Interested parties were invited to make submissions in relation to this proposal. Submissions were received from the following parties:

•  ABI; 79

•  Ai Group;  80

•  AWU;  81

•  AMWU;  82

•  CFMMEU (MD); 83

•  CFMMEU (C&G);  84

•  CFMMEU (M&E);  85

•  CPSU; 86

•  CEPU;  87

•  HIA;  88 and

•  UV; 89

[151] Reply submissions were received from Ai Group 90 and CFMMEU (C&G Division). 91

[152] No party supports the wording of the model clause outlined at [67] of the February 2019 Statement. Submissions outline a number of key concerns, including the following:

•  that adopting the wording of the proposed clause would lower the rate of pay for employees who have ordinary hourly pay inclusive of all-purpose allowances;

•  the proposed clause may cause confusion or uncertainty, and

•  the issue needs to be addressed on an award specific basis.

[153] We will issue a further decision in respect of this matter in the coming weeks.

10. Spread of hours

[154] This issue concerns an ambiguity in a facilitative clause concerning the alteration of the ‘span of hours’ by up to one hour at either end of the spread (the Alteration clause). An example of the Alteration clause is clause 30.2 in the Food Manufacturing Award:

30.2 – Ordinary hours of work – day workers

…

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

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

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

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

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

[158] A Statement 92 published on 13 November 2018 identified 11 modern awards which contained Alteration clauses in substantially the same terms as set out above and invited interested parties to make submissions in relation to the resolution of the ambiguity in the Alteration clauses and to identify any other awards containing a facilitative clause in similar terms.

[159] Parties were also advised that the issue would be dealt with on the papers unless a request was received by 30 November 2018. No request was received and accordingly the span of hours issue will be decided on the papers.

[160] Submissions were received from:

•  ABI;

•  Ai Group;

•  AMWU;

•  AWU;

•  SDA; and

•  The Motor Trades Association of South Australia (the MTA).

[161] Two additional modern awards were identified for possible inclusion in the list of awards containing an Alteration clause and it was proposed that one award in the existing list be deleted.

[162] Both the AMWU 93 and the AWU94 submit that the Airline Ground Staff Award also contains an Alteration clause in substantially the same terms as set out above. Clause 28.2(c) of the Airline Ground Staff Award states:

(c) The ordinary hours of work are to be worked continuously, except for meal breaks, at the discretion of the employer between 7.00 am and 6.00 pm. The spread of hours may be altered by up to one hour at either end of the spread, by agreement between an employer and the majority of employees concerned. (emphasis added)

[163] The Airline Ground Staff Award will be added to the list of awards to be reviewed.

[164] The AWU submits that the Hydrocarbons Industry (Upstream) Award 2010 (Upstream Award) be included in the list of awards to be reviewed. However, we note that in the Group 1 award stage decision issued on 23 October 2015 95 the Full Bench rejected an application by the AWU to amend the spread of hours facilitative clause in that the award by adding the words ‘by one hour at either end’ and resolved the issue in the Upstream Award by altering clauses 13.3(a) and 13.3(b) of the exposure as follows:

(a) Employees, other than shiftworkers, may be required to work up to 12 ordinary hours per day, between within the spread of hours of 6.00am and 6.00pm, Monday to Sunday.

(b) An employer may agree with an individual employee or a majority of affected employees to alter the spread of hours in clause 8.2(a) provided that employees, other than shiftworkers, are not required to work more than 12 ordinary hours per day.

[165] Further, the Upstream Award does not provide that the spread of hours can be altered ‘at either end of the span of hours’. Accordingly, we do not propose to include the award in the list of awards to be reviewed in respect of this issue. If the AWU seeks to vary the facilitation provision in this award it should file a variation application.

[166] The MTA submit that the Vehicle Award should not be included in the list of awards as the relevant clause was in the manufacturing section of the award which was removed from the Vehicle Award exposure draft and moved to the Manufacturing Award in accordance with the August 2016 Vehicle Award decision. 96

[167] The Vehicle Award will be removed from the list of awards to be reviewed.

[168] No other submissions were received in relation to the list of awards. The final list of awards being reviewed in relation to the Alteration clause is:

•  Airline Ground Staff Award;

•  Aquaculture Industry Award 2010 (Aquaculture Award);

•  Business Equipment Award 2010 (Business Equipment Award)

•  Clerks Award;

•  Contract Call Centres Award 2010 (Call Centres Award);

•  Food Manufacturing Award;

•  Manufacturing Award;

•  Pharmaceutical Industry Award;

•  Seafood Processing Award 2010 (Seafood Processing Award);

•  Storage Services and Wholesale Award 2010 (Storage Services Award); and

•  Sugar Industry Award.

[169] Three parties – the AMWU, ABI and Ai Group – made general submissions directed at all of the awards containing an Alteration clause and the AWU made submissions directed at 8 of the 11 awards before us. It is convenient to summarise those submissions first, before turning to the award specific submissions.

[170] The AMWU 97 submits that the Alteration clause is ambiguous on the basis that it could reasonably be interpreted in accordance with either Interpretation 1 or 2. It contends that Interpretation 3 is clearly wrong and the clause in its current form does not permit an additional hour to be added at both ends of the spread of hours.

‘23. Put simply, if the clause was intended to allow for an additional hour at both ends of the spread, there are a myriad of ways the clause could be expressed to make clear that intended operation.

24. To this end, it is instructive that the clause does not read:

➢ “by up to one hour at both ends of the spread”; nor

➢ “by up to one hour at each ends of the spread”; nor

➢ “By up to one hour at either or both ends of the spread”

25. Rather, the alteration clause expresses the alteration as permissible at ‘either’ end of the spread.

26. As noted in the November Statement the Macquarie Dictionary defines the word ‘either’ as follows:

“adjective 1. one or the other of two: you may sit at either end of the table. 2. each of the two; the one and the other: there are trees on either side of the river. –pronoun 3. one or the other; not both: take either; either is correct.” 98

27. As is made clear from the Macquarie dictionary definition, the word ‘either’ can have multiple meaning, depending on the context.

28. The AMWU submits that the word ‘either’, when read in context, should be taken to mean “one or the other; not both.”

29. This is so because when read in conjunction with the words “up to” it is clear to a reasonable person that the total spread may only be altered by “up to” one hour. If the alteration clause permitted the spread to be increased by one hour at both ends, then the words ‘up to’ would have no work to do because the same meaning could be obtained by phrasing the clause: “may be increased by one hour at either end of the spread.”

30. If this logic is followed to its inevitable conclusion, then it follows that the word ‘either’ read and construed in context, must mean “one or the other but not both”.’ 99

[171] The AMWU submits that it has always understood the purpose of the Alteration clause as providing for the alteration of the entire spread of hours, such that the spread of hours moves as a block, but that only one additional hour is allowed. For example, if the spread of hours were expressed to be between 6.00am and 6.00pm, then the facilitative provisions could operate (with agreement) such that the entire spread could be moved to provide for a spread of ordinary hours between 5.00am and 5.00pm or 7.00am and 7.00pm, but not provide for a 13 or 14 hour total spread.

[172] The AMWU contends that when read in the context of the award as a whole (particularly the provisions that make it clear that facilitative provisions are not a device to avoid award obligations, nor should they result in unfairness to employers), Interpretation 1 is to be preferred:

‘This is because interpretation 1 is consistent with the role of the facilitative provisions, in that it allows employees and employers the flexibility to move the spread of ordinary hours, but not to increase it (which may affect shift rates and/or penalties), meaning an avoidance of other award obligations.’ 100

[173] The AMWU propose that the ambiguity in the Alteration clause be resolved by varying the affected awards in similar terms to the AMWU’s proposed variation to the Pharmacy Award, acknowledging that it would be necessary to tailor the variation to the particular provisions in each award. It is submitted that such variations would be consistent with the intended operation of the Alteration clause and with the purpose of facilitative provisions.

[174] The AWU’s submission is directed at the following awards:

•  Aquaculture Award;

•  Food Manufacturing Award;

•  Hydrocarbons Upstream Award;

•  Manufacturing Award;

•  Seafood Processing Award;

•  Storage Services Award;

•  Sugar Industry Award; and

•  Airline Ground Staff Award.

[175] The relevant clauses in respect of each of these awards is set out at Attachment E.

[176] The AWU accepts that the Alteration clause is ambiguous and submits that the words ‘by up to one hour at either end’ indicates that a choice between both ends of the span must be made and that:

‘This precludes any argument that the span of hours can be extended by up to one hour at each end, which would effectively extend the span of hours by up to two hours in total, as the words do not permit that interpretation.’ 101

[177] The AWU accepts that the interpretation for which they contend also largely precludes an argument that the span of hours may be shifted whilst maintaining the same spread of hours, because this would necessarily involve a change at both ends of the span – for example, a shift from 6am to 6pm to 7am to 7pm.

[178] However, the AWU submits that a provision that allows the span of hours to be shifted but not extended ‘has considerable merit and should be considered by the Full Bench to be a potential outcome for the matter,’ because:

‘A facilitative provision that allows an employer and its employees to agree to shift the span of ordinary hours by up to one hour in either direction provides some flexibility for the employer in determining an amended span of hours to suit the employer but does not subject employees to an increased span of hours that would necessarily mean the potential forfeiture of more shift loadings and/or penalties that the employees would have otherwise been entitled to.’ 102

[179] The AWU contends that it ‘is not the role of facilitative provisions to assist employers to avoid award entitlements’ and that the best balance between employee and employer interests is a provision that allows for the span of ordinary hours to be shifted by up to one hour in either direction, but not extended (Interpretation 1). They submit that this would ensure a degree of flexibility for the employer to vary the span of hours in the award to suit the business with the least potential negative effect on employees.

[180] The AWU contends that there is no ‘countervailing benefit’ for the employees who agree to vary their span of hours and accordingly the impact on such employees of such a variation must be kept to ‘an absolute minimum’ 103 because:

‘The extension of ordinary hours is almost certain to cause employees to forfeit loadings or penalties that are likely to have applied had the ordinary hours not been extended, and the greater the extension, the greater the potential detriment.’ 104

[181] They also submit that the operation of the clause should be remedied in a way that is consistent across all awards.

[182] In its reply submission Ai Group 105 objects to the unions’ proposals to deal the clauses’ ambiguity by limiting the capacity for parties to vary the spread of ordinary hours by only permitting the spread to be shifted rather than expanded. As to the submissions of the AMWU and AWU, Ai Group submits that the approach advocated by the unions would:

‘represent a significant departure from the current arrangements. It would likely result in disruption to the manner in which ordinary hours are arranged in practice under the various awards. Such a change may consequently necessitate the implementation of an alteration to the existing operations of some employers, or at the very least increase their costs. Such a step should not be lightly taken and should certainly not be implemented based on the limited material before the Commission.’ 106

[183] Ai Group also submits 107 that the unions’ arguments that such provisions are either unfair or disadvantageous to employees or inconsistent with the nature of facilitative provisions ‘should carry little weight.’ In this context Ai Group submits:

•  the arrangements operate subject to majority or individual agreement which is ‘a meaningful form of safeguard that has long been utilised within the context of the award system’;

•  there are a myriad of reasons why employees may genuinely wish to work earlier or later in the day; and

•  there is no reason why a fair and relevant safety net cannot seek to balance the interest of employers and employees by retaining an ability for such parties to reach agreement on the limited expansion of the standard arrangements for ordinary hours.

[184] As to the merits of an approach that enables extension of the ordinary hours at both ends of the relevant spread, Ai Group submits that such an interpretation is likely to facilitate workplace flexibility in a manner that may benefit both employers and employees; and that ss 134(1)(d) and (f) weigh in favour of retaining the ability to vary the spread of ordinary hours at both ends. 108

[185] Similarly, ABI does not agree with the position advanced by union parties; relevantly, that the clause should be interpreted such that the provisions allow the spread of hours to be shifted by one hour at one of the ends of the spread such that the total length of the spread of hours does not increase. It contends that the interpretation advanced by the union parties appears to rely upon assigning the word “either” with the meaning “one or the other”, but not “both” and requires the word “altered” to mean changed but not increased. ABI contends that their interpretation is not logically consistent.

‘It is not possible to “shift” the spread of hours at only one end of the spread of hours without increasing or possibly decreasing the number of hours making up the spread of hours. If the number of hours in the spread of hours is to be maintained, the spread of hours must be “shifted” at both ends. Nor is the provision well written to achieve that result. It is not an intuitive reading to understand “altered by up to one hour at either end […]” to mean the [12 hour spread of hours] (6:00am to 6:00pm) may be shifted by up to one hour in either direction.’ 109

[186] Both ABI and Ai Group contend that the Alteration clause facilitates the variation of the spread of hours at both ends of the spread. We deal first with ABI’s submission.

[187] ABI acknowledge a degree of ambiguity in the drafting of the Alteration clause, arising from the varied meanings of the word ‘either’ and ABI submits that the word ‘either’ should be interpreted in this context to allow the variation of the spread of hours at either or both ends of the spread; i.e. as meaning “both”, or conversely, “one or the other”. In support of this proposition, ABI and NSWBC note the definition of “either” in the Macquarie Concise Dictionary as follows:

‘1.one or the other of two... 2. each of the two; the one and the other... 3. One or the other but not both....’ 110

[188] ABI submits that the Alteration clause is intended to be a facilitative provision providing for rostering flexibility for employees and employers, by permitting agreement on an extended period during the day when day work employees can work their ordinary hours. Ordinary time work within the spread remains subject to the constraints on ordinary hours, that is a maximum average of 38 hours per week (depending on the award), most often worked at a rate of 7.6 or 8 hours per day, or longer (including possibly 12 hours in a day). It is submitted that the provision applies to individual day work employees as well as to work groups or sections, and both arrangements can coexist.

[189] ABI contends that there is little justification for limiting the provisions to apply to only one end of the spread of hours at a time and submits that this is particularly so given that an election to vary the spread of hours at one end does not practically exclude variation of the spread at the other.

[190] Contrary to the submissions advanced by the unions, ABI argues that the interpretation of the Alteration clause for which it contends does not result in an outcome which reduces the entitlements of employees because variations may only operate by agreement and only in relation to the spread of ordinary hours, as opposed to number of ordinary hours worked by an individual employee.

[191] ABI submit the interpretation it advances does not conflict with the approach endorsed by Senior Deputy President Marsh in her decision in the review of the Graphic Arts - General - Interim Award 1995 during the Award Simplification proceedings (and which is referred to at [11]-[15] of the February 2019 Statement). 111 The Senior Deputy President emphasised that the clause is intended to operate such that an additional hour may be worked at ordinary time by an employee or group of employees, without incurring the penalty or overtime rate. It is submitted that this is the practical effect of the interpretation preferred by ABI, as the limitation on the number of ordinary hours worked on a particular day is not affected, but rather the spread over which those hours may be worked by particular employees.

[192] It is convenient to deal with the AMWU’s submission in reply 112 to ABI, before turning to Ai Group’s submission.

[193] The AMWU submits that the definition of ‘either’ in Macquarie Dictionary does not assist ABI’s claim but does support the AMWU’s interpretation that, while an alteration to either one or other ends of the spread is permissible, ultimately a choice must be made should which end is to be altered.

[194] The AMWU concedes that there is a tension between its two submissions that the word ‘either’ means ‘one or the other but not both’ and that the Alteration clause is intended to operate to allow the spread of hours to be shifted as a block, but not increased. But the AWMU submits that that tension is reconcilable on the basis that if the spread is shifted from 6.00am-6.00pm to 5.00am-5.00pm, then the alteration is still only taking place at one end of the spread, in this case at the beginning of the spread and that the other end of the spread gets ‘dragged’ in the same direction. It argued that such a facilitation still only permits one additional hour that would otherwise be outside the normal spread of hours to be worked at ordinary time and, hence, the spread is only being altered at one end. The AMWU submits that its preferred interpretation is not inconsistent with SDP Marsh in the Graphic Arts Award decision and is consistent with the way facilitative provisions are intended to operate. 113

[195] The AMWU agrees with ABI’s submission that the Alteration clause only operates in relation to the spread of ordinary hours and not the number of ordinary hours and that the actual maximum number of ordinary hours that may be worked by an employee in any one day remains unchanged and will depend on the terms of the particular award. But it submits that the fact that alterations to the spread of hours do not change the maximum number of ordinary hours of work per day does not assist the ABI construction of the Alteration clause.

[196] As to the ABI’s submission that expanding the spread of hours at either or both ends does not reduce employee entitlements, the AMWU submits that this is ‘plainly wrong.’ It submits that altering the spread of hours at one or both ends will necessarily have an effect on employee entitlements and have the potential to affect either penalty rates or shift allowance entitlements, depending on the award in question. For example, the Manufacturing Award 114 provides that all work performed outside the spread of hours must be at overtime rates.

[197] As mentioned earlier, Ai Group 115 contends that the Alteration clause facilitates varying the spread of hours at both ends of the spread and opposes any ‘loss of existing flexibility’ to vary the spread of hours. After dealing with some of the history of the current term in the Manufacturing Award, Ai Group refers to the following extract from its submission of 12 November 2014:

‘Clause 13.2(c) – Ordinary hours of work – day work

161. The AMWU proposes to insert the following words to clause 13.2(c) of the Award, which sets out the spread of ordinary hours for day workers (6am to 6pm) and permits variation to the spread by one hour at either end if the employer and employees concerned agree: “Subject to clause 5.3 and subject to maintaining a 12 hour spread.”

162. The AMWU submits that the word “either” in clause 13.2(c) is intended to mean “one or the other; not both” and cite the Concise Macquarie Dictionary to support this view. Ai Group does not agree with the union’s submission. The word “either” can mean one or the other, or both.

163. It is important that flexibility be maintained and that existing work arrangements are not disturbed. For example, it may suit one employee in a workplace, due to family responsibilities, to have a spread of hours between 5am and 5pm, and another employee in that workplace to have a spread of hours between 7am and 7pm, by agreement with the employer. The union’s proposed variation would disturb such arrangements.

164. The award applies to a very large number of employees in a very large number of workplaces and it is impossible for the Commission to understand the full, negative impacts of the union’s proposed amendment. Therefore, the amendment should be rejected.’ 116

[198] In the alternative, in the event that we decide that ‘one employee should not have flexibility to agree to vary the spread of hours at both ends’, Ai Group submits that ‘it is critical that different individual employees in an enterprise are able to agree to a variation at different ends of the spread for the reasons referred to in paragraph 12 above, and consistent with Marsh SDP’s Graphic Arts Award Simplification Decision.’

[199] At paragraph 12 of its submissions Ai Group states:

‘12. The flexibility in the third dot point above is critical because:

● Different employees in the same enterprise often have a need for flexibility at different ends of the day. Often employees have arrangements with their partners whereby one drops off the children at school or childcare in the morning and the other picks up the children. For example (assuming that the relevant award has a 6am – 6pm spread of hours, with an ability to extend by up to one hour at either end):

o One employee in the enterprise may wish to drop off children at school or childcare in the morning and consequently wish to start later (e.g. 10am) and finish later (e.g. 6.30pm).

o Another employee in the same enterprise may wish to pick up children from school or childcare and wish to start earlier (e.g. 5.30am) and finish earlier (e.g. 2.00pm).

● Enterprises often have a need for flexibility at different ends of the day for different classifications or for different employees, e.g. one employee may start work early to open up the workshop, and another employee may finish late to lock up the workshop.’

[200] The ‘flexibility’ referred to in Ai Group’s submission is a reference to SDP Marsh’s decision 117 to include the following facilitative provision in the Graphic Arts Award:

‘6.1.1(a)(iii) The daily spread of hours may be altered by up to one hour at one end of the spread (but not both), by agreement between the employer and an individual employee.’

[201] At the third dot point in paragraph 11 of its submissions Ai Group describes this aspect of her Honour’s decision, as follows:

‘To allow an extension at both ends of the 7.00am to 6.00pm spread of hours by agreement between the employer and different individual employees in the enterprise, ie an individual employee in an enterprise could only agree to extend the spread of hours applicable to him or her at one end, but a different individual employee in the same enterprise could agree to an extension at the other end of the spread of hours. For example, the spread of hours for one individual employee in the enterprise could be 6.00am to 6.00pm and the spread of hours for a different individual employee could be 7.00am to 7.00pm.’

[202] Later we return to Ai Group’s submission that it is critical that different individual employees in a workplace are able to agree to a variation at different ends of the spread.

[203] The AMWU rejects Ai Group’s interpretation of the Alteration clause on the basis that:

•  the Alteration clause does not currently permit an alteration at both ends; and

•  no evidence has been adduced of the Alteration clause having been used that way. 118

[204] The AMWU contends that Ai Group’s submission that ‘it is critical that different individual employees in an enterprise are able to agree to a variation at different ends of the spread’ will depend on the construction of the particular modern award in relation to restrictions or caveats on individual flexibility arrangements.

[205] The AMWU submits that, for example, if a modern award permits an alteration to the spread of ordinary hours by individual facilitation, then prima facie, the flexibility identified by Ai Group would be permissible, subject to any limitations or restrictions. However, if individual facilitation were not permissible, then the flexibility identified by Ai Group would not be permissible. Also, there may be circumstances where an award does permit individual facilitation, there may be other caveats or restrictions on using facilitative provisions on an individual basis. The AMWU submits that these restrictions should not be disturbed.

[206] Two other parties make award specific submissions.

[207] The MTA’s 119 submission is directed at the Clerks Award. It submits that clause 25.2 of the Clerks Award was ‘intended to allow for an employee, or a majority of employees, to either start work earlier or to finish later in relation to the spread of ordinary hours prescribed by Clause 25.1(b) of the Award’ and that both ends of the spread of ordinary hours would be capable of alteration by up to an hour, by agreement.

[208] The Monday to Friday spread of ordinary hours in the Clerks Award is 7am to 7pm 120 and clause 25.2 states, relevantly:

‘The spread of hours may be altered by up to one hour at either end of the spread, by agreement between an employer and the majority of employees concerned or in appropriate circumstances, between the employer and an individual employee.’

[209] The MTA submits that it ‘doesn’t see any ambiguity with the current wording of the Award, if applied in a pragmatic manner’.

[210] On the MTA’s interpretation of clause 25.2(b) of the Clerks Award, the spread of hours may be altered from the standard 7.00am to 7.00pm Monday–Friday to 6.00am to 6.00pm, or alternatively, 8.00am to 8.00pm; leaving the existing total spread of 12 hours undisturbed. They submit that while the start of the spread of hours could commence at 6.00am for some employees and finish at 8.00pm for others, depending on the agreement reached by an individual employee, the total spread of hours ‘should remain at 12 hours per employee’.

[211] The MTA’s interpretation of clause 25.2(b) of the Clerks Award is consistent with the interpretation of the Alteration clause advanced by the union parties.

[212] The SDA submission is directed at the Storage Services Award. Clause 8.1(d) of that award provides that ordinary hours are worked between 7am and 5.30pm, Monday to Friday. Clause 8.2 provides:

‘The spread of hours may be altered by up to one hour at either end of the spread, by agreement between an employer and the majority of employees concerned or between the employee and the employer.’

[213] The SDA contends that the clause ‘permits that the spread of hours can be altered at one or other end of the day, but not both’ and submits that the use of the word ‘either’ clearly means one or the other but not both and that if the intention of the clause was to permit the spread of hours to be expanded at both ends then the word ‘either’ would instead have read ‘both’.

[214] The SDA also contends that the use of the word ‘altered’ instead of the word ‘increased’ is instructive – ‘altered’ suggests that the spread of hours may be shifted but not necessarily increased.

[215] The SDA notes that the spread of hours facilitative provision in the Graphic Arts Award is drafted such that ‘there can be no ambiguity in the respect of an amendment of the spread of hours’.

Consideration

[216] We commence by making six general observations.

[217] First, consistent with the views of most parties we find that the Alteration clause is ambiguous. As mentioned earlier, the ambiguity arises from the use of the word ‘either’, which may be interpreted in different ways (see [155] above). The purpose of the plain language re-drafting process, as part of the 4 yearly review, is to ensure that provisions are drafted in a way which resolves and removes ambiguity of this nature.

[218] Second, in our view the resolution of the ambiguity is not confined to ascertaining the original intention of the drafter of the clause, given the differences in the statutory context and the fact that the issue arises in the context of the Review. We propose to resolve the ambiguity consistent with our obligation to ensure that modern awards provide a fair and relevant safety net of minimum terms and conditions. It follows that merit arguments and the modern awards objective are relevant to the resolution of the ambiguity in the Alteration clause. Indeed a number of parties addressed such matters in the course of their submissions.

[219] Third, as submitted by the AWU it is desirable that the Alteration clause be varied in a way that is consistent across the affected awards, while taking into account the terms of the Alteration clause in each of the awards before us. In that regard we note that there is considerable variation in the content of these terms across the awards (see Attachment E).

[220] Fourth, contrary to the submissions advanced by ABI and Ai Group, it seems to us that a facilitative provision which permits the variation of the spread of hours in an award necessarily imposes some financial detriment on employees. Such variations necessarily reduce employee entitlements as they permit the certain hours to be paid at ordinary time rates which would have been, absent the variation, paid at overtime rates.

[221] However, contrary to the AWU’s submission we reject the proposition that the facilitation of such variations provides ‘no countervailing benefit’ for the employees who agree to vary their span of hours. As Ai Group submits, employees may have a need for some flexibility in relation to start and finish times, to meet their family responsibilities and personal commitments. Variations to the standard spread of hours may assist such employees.

[222] Fifth, as mentioned earlier, ABI contends that its proposed interpretation of the Alteration clause does not reduce employee entitlements because (among other things) a variation to the spread of hours does not affect the maximum number of ordinary hours that an employee may be required to work each day. ABI is correct, up to a point. It is correct that varying the spread of hours does not affect the maximum number of ordinary hours which may be worked by an employee. However, for the reasons given earlier we do not agree with the proposition that a variation to the spread of hours does not reduce employee entitlements.

[223] But the point advanced by ABI raises another, more significant issue – namely what is the utility of a facilitative provision that permits a variation to both ends of the spread of hours in circumstances where an employer cannot require an employee to work the full (varied) spread of hours at ordinary rates? It seems to us that this points against the Alteration clauses being interpreted as allowing, in respect of any individual or majority agreement reached pursuant to the clause, an extension of the span of hours by one hour at both ends of the day, since this would not result in any operational benefit additional to an extension of the span at only one end of the day.

[224] This conclusion does not however gainsay the merit of the proposition advanced by Ai Group that different employees in the same enterprise may have a need for flexibility at different ends of the day and that enterprises may have a need for flexibility at both ends of the spread for different parts of the enterprise. We return to this point shortly.

[225] Our final observation concerns Ai Group’s submission that ‘it is critical that different individual employees in an enterprise are able to agree to a variation at different ends of the spread’. Given the context in which this submission is advanced we have taken Ai Group to be seeking to retain the existing capacity for flexibility by agreement with individual employees that exists in some of the awards before us (see the Business Equipment Award (cl. 27.1(a)(i)); Clerks Award (cl. 25.2); Call Centres Award (cl. 24.8(a)(i)); Food Manufacturing Award (cl. 30.2(c)); Manufacturing Award (cl. 36.2); Seafood Processing Award (cl. 23.2); Storage Services Award (cl. 29.3(c))).

[226] We do not propose to vary these awards in a way that alters the existing capacity to access flexibility by agreement between the employer and an individual employee. Nor do we propose to vary any of the caveats or restrictions on that capacity. We only propose to focus on the extent of the flexibility that can be utilised.

[227] So, where do these observations take us?

[228] It is our provisional view that the Alteration clauses were intended to operate so that an agreement made with a group of employees or, where available, with an individual employee, permitted an alteration to shift the entire spread of hours forward by one hour or back by one hour. Hence, if the standard spread is 6am to 6pm (a 12 hour spread) the Alteration clause would facilitate the variation of the spread forward to 5am to 5pm, or back to 7am to 7pm, retaining the 12 hour spread. This approach is consistent with the language used in the provisions. The alternative approaches contended for have no practical utility because, as earlier stated, they cannot result in the employee’s number of ordinary working hours in the day being extended.

[229] However it also seems to us that the Alteration clauses were not intended to prohibit different agreements being reached with different groups in an enterprise or, where an Alteration clause permits agreement to be reached with individual employees, different agreements being reached with different individuals. For example, it may suit the employer and a group of employees in a part of the enterprise with a common start time to vary the standard spread to facilitate an early start - say at 5am. In the case of this group of employees, the effect of such an agreement would be to alter the spread of hours for that group to 5am to 5pm. It may suit the employer and a group in another part of the enterprise to start later and finish later, in which case they may agree to shift the spread for that group to 7am to 7pm. Likewise, where agreements with individual employees are permitted, the employer may agree with employee X to move the spread of hours forward to 5am to 5pm, and may also agree with employee Y to move the spread back to 7am to 7pm.

[230] To the extent that there is doubt as to the current capacity for employers and employees to take such an approach under the Alteration clauses, we consider that the Alteration clauses should be varied to make it clear that such a capacity exists. We note that a number of awards expressly permit or at least clearly contemplate discrete agreements being reached with particular operational groups of employees in an enterprise. These awards are the Airline Ground Staff Award, the Business Equipment Award, the Call Centres Award, the Food Manufacturing Award, the Manufacturing Award and the Pharmaceutical Industry Award. In the case of the Food Manufacturing Award, for example, it does this by way of a provision separate to the Alteration clause (earlier set out) which refers to a number of identified facilitation clauses in the award generally, including the Alteration clause, and states that they ‘can be utilised by agreement between an employer and the majority of employees in the workplace or a section or sections of it, or the employer and an individual employee’ (clause 8.3(a), italics added). We note that different expressions are used in some of these awards (e.g. ‘in the workplace or a section or sections of it’; ‘in the plant, work section or sections’ etc), but the objective is the same. The position in other awards is less clear; for example, the Clerks Award permits agreement simply with ‘the majority of employees concerned’. However even in the case of that clause, the additional capacity to reach agreements with individual employees implies that different agreements may be reached with different employees, and this in turn implies that different agreements may be reached with different groups of ‘employees concerned’.

[231] It is our provisional view that the 11 modern awards set out at [168] above be varied consistent with the provisional views set out above (at [228]-[230]). Further, it is our provisional view that such variations are necessary to achieve the modern awards objective. In expressing that provisional view we have taken into account the matters in s.134(1)(a) to (h), insofar as they are relevant. In particular, the variations proposed will:

•  promote flexible modern work practices; and

•  ensure that the awards are simple and easy to understand.

[232] In respect of Alteration clauses which currently permit both majority and individual agreement, our provisional view is that they should be varied to read as follows (using the Food Manufacturing Award provision as the template):

30.2 – Ordinary hours of work – day workers

…

(c) The ordinary hours of work are to be worked continuously, except for meal breaks, at the discretion of the employer between 6.00 am and 6.00 pm. The spread of hours (6.00 am to 6.00 pm) may be moved up to one hour forward or one hour back by agreement between an employer and:

(i) the majority of employees at the workplace;

(ii) the majority of employees in a discrete section of the workplace; or

(iii) an individual employee.

Different agreements may be reached with the majority of employees in different sections of the workplace or with different individual employees.

[233] In respect of Alteration clauses which currently permit majority agreement only, our provisional view is that they should be varied to read as follows (using the Pharmaceutical Industry Award as a template):

23.2 Ordinary hours of work—day workers

…

(b) The ordinary hours of work for day workers are to be worked continuously, except for meal breaks and rest pauses, between 7.45 am and 5.15 pm, Monday to Friday inclusive. The spread of hours (7.45 am to 5.15 pm) may be moved up to one hour forward or one hour back by agreement between an employer and:

(i) the majority of employees at the workplace; or

(ii) the majority of employees in a discrete section of the workplace.

Different agreements may be reached with the majority of employees in different sections of the workplace.

[234] We acknowledge that the Alteration clauses in some of the 11 awards (e.g. the Call Centres Award) are structured differently and would require some modification to the above proposed provisions. Draft variation determinations will be published shortly.

[235] Interested parties will be invited to file submissions in response to the provisional views expressed above and in relation to the draft variation determinations.

11. Shutdown provisions

[236] During the annual leave common issue proceedings an issue arose in relation to the Black Coal Award regarding annual leave shutdown. In a Statement 121 issued in November 2017, shutdown provisions in awards listed at Attachment A to that statement were referred to the plain language Full Bench. There is also one outstanding issue that relates to continuity of service when an employee is on annual leave shutdown.

[237] In a decision 122 issued on 22 September 2016, the Annual Leave Full Bench decided that the broad right for an employer to direct the taking of annual leave without other considerations and requirements, as was provided for in clause 25.4(c) of the Black Coal Award, was not consistent with s.93(3) of the Act.123 Therefore it was a term that could not be included in a modern award.124

[238] In the decision issued in March 2017, 125 the Annual Leave Full Bench observed that a term permitting different arrangements for annual leave during a period of shutdown or close-down may be consistent with the statutory framework, depending on the terms of such a provision. The Full Bench decided to vary the Black Coal Award to delete the existing shutdown clause and expressed the provisional view that a revised shutdown provision should be inserted and invited parties to file submissions on that view.126

[239] A decision 127 issued in October 2017 dealt with the form of the revised shutdown clause. The Full Bench decided to insert the revised shutdown provision as expressed in the March decision subject to some amendments and the Black Coal Award was varied on 9 November 2017.128

[240] Attachment F sets out a list of the other 80 modern awards containing shutdown provisions.

[241] During proceedings relating to the shutdown provisions in the Black Coal Award, the then Construction, Forestry, Mining and Energy Union (CFMEU) submitted that where an employee takes unpaid leave during a shutdown period that leave counts as service and provisions to that effect should be inserted. 129 The CFMEU submitted it is fair and reasonable for unpaid leave during shutdown to count as service because the leave would be taken as a result of the employer’s action and would not be taken in absence of that action.130 The CFMEU also submitted an employee therefore should not be subject to a penalty and a shutdown situation is distinct from the scenario where an employee initiates the taking of leave without pay.131

[242] The Full Bench was not satisfied that it was appropriate to deal with this issue at that time because it may have implications for the review of all shutdown terms in modern awards. 132 Accordingly, the continuity issue was referred to this Full Bench.

[243] In a Statement issued on 28 February 2019 133 (the February 2019 Statement) we asked interested parties to make submissions on the following matters:

1. Whether the modern awards that currently contain shutdown provisions should be varied to include the following model term:

‘XX.XX Shutdown

(a) Clause XX.XX applies if an employer intends to shutdown all or part of its operation for a particular period (temporary shutdown period) and wishes to require affected employees to take leave during that period.

(b) The employer must give the affected employees 28 days’ written notice of a temporary shutdown period, or any shorter period agreed between them and the employer.

(c) The employer must give written notice of a temporary shutdown period to any employee who is engaged after the notice is given under paragraph (b) and who will be affected by that period, as soon as reasonable practicable after the employee is engaged.

(d) The following applies to any affected employee during a temporary shutdown period:

(i) the employee may elect to cover the temporary shutdown period by doing one, or a combination of 2 or more, of the following:

•  taking paid annual leave if the employee has accrued an entitlement to such leave;

•  taking leave without pay;

•  taking annual leave in advance in accordance with an agreement under clause XX.XX;

(ii) if the employee does not make an election under subparagraph (i) that covers the whole of the temporary shutdown period, then the employer may direct the employee to take a period of paid annual leave to which the employee has accrued an entitlement.

(e) A direction by the employer under clause XX.XX(d)(ii):

(i) must be in writing; and

(ii) must be reasonable.

(f) The employee must take paid annual leave in accordance with a direction under clause XX.XX(d)(ii).

(g) In determining the amount of paid annual leave to which an employee has accrued an entitlement, any period of paid annual leave taken in advance by the employee, in accordance with an agreement under clause XX.XX, to which an entitlement has not been accrued is to be taken into account.

(h) If a temporary shutdown period includes a day or part-day that is a public holiday and would have been a working day for the employee had the employee not been on leave in accordance with clause XX.XX, the employee is taken not to be on leave on that day or part-day.

(i) Clauses XX.XX to XX.XX do not apply to a period of annual leave that an employee is required to take during a temporary shutdown period in accordance with clause XX.XX.’

2. Any award specific variations that should be made; and

3. Whether unpaid leave taken during a shutdown period counts as service.

[244] In the February 2019 Statement we stated that this issue would be decided on the papers unless any party requested a formal hearing by Friday 5 April 2019. No requests were made.

[245] Submissions were received from:

•  CFMMEU (MD);¹³⁴

•  UV;¹³⁵

•  CFMMEU (C&G);¹³⁶

•  ABI;¹³⁷

•  CPSU;¹³⁸

•  CEPU; 139

•  AMWU; 140

•  MBA;¹⁴¹

•  AWU;¹⁴²

•  Ai Group;¹⁴³

•  Australasian Meat Industry Employees Union (AMIEU);¹⁴⁴

•  CFMMEU (M&E);¹⁴⁵

•  AHA;¹⁴⁶

•  HIA;¹⁴⁷ and

•  FAAA.¹⁴⁸

[246] Submissions in reply were received from:

•  CFMMEU (C&G);¹⁴⁹

•  Ai Group;¹⁵⁰ and

•  AMIEU. 151

[247] We will issue a further decision in respect of this matter in due course.

12. Hourly rates of pay schedules

[248] In the July 2017 Group 3 decision the Full Bench set out a proposal relating to the hourly rates of pay schedules in exposure drafts that had been raised by Ai Group. 152 The Full Bench stated:

‘[360] We accept the proposition that to include every pay rate, particularly for awards where all purpose allowances only apply to some employees, is not practical and would amount to a substantive change in approach. However, to improve the understanding of the rates table we propose that for modern awards that contain an all purpose allowance which applies to only some employees clause X.1.2 will be amended in accordance with the approach suggested in respect of the Business Equipment Award 2010 (see [357] above). Additionally a footnote will be marked next to ‘% of ordinary hourly rate’ in the heading row of the rates table, which states:

‘Rates in table are calculated based on the minimum hourly rate, see clauses X.1.1 and X.1.2.’

[361] Where an award contains an all purpose allowance that applies to all employees and that allowance has been incorporated in the rates in the hourly rates tables, this will be identified by a note along the following lines:

^xOrdinary hourly rate includes the industry allowance payable to all employees for all purposes.’

[249] In the February 2019 Statement interested parties were invited to comment on the Full Bench’s proposal set out above. If there was no opposition to the provisional view we proposed to apply this change to all exposure drafts.

[250] The CFMMEU (C&G Division) opposes the suggested approach, contending that the Building On-site and Joinery Awards contain a number of all-purpose allowances and it is concerned that if the tables of hourly rates in the relevant schedule do not include the all of the all purpose allowances then they will serve no useful purpose as the tables would not reflect the actual ordinary hourly rates required to be paid. Further, it submits that the note at the beginning of the schedule that states “Employers who meet their obligations under this schedule are meeting their obligations under the award”, is likely to mislead employers as to the legal requirements under the award and potentially expose employers to costly litigation for underpayment of wages.

[251] The CFMMEU (C&G Division) submits that the best approach to the hourly rates of pay schedules would be to deal with them on an award by award basis as this would allow flexibility for individual awards to include the different all-purpose allowances applicable under the award where appropriate.

[252] The HIA 153 and MBA154 both submit that the issue of the inclusion of hourly rates tables for the Building On-site Award 2010 will be affected by any final decision made by the Construction Awards Full Bench in AM2016/23, and seek to reserve the right to comment until after any such decision is made. The HIA also supports the provisional view in regard to the Joinery Award.155

[253] We accept that a further decision of the Construction Awards Full Bench may have an impact on the hourly rates to be included in the Building On-site Award and on that basis do not propose to progress this issue in respect of that award at this time.

[254] As to the CFMMEU (C&G Division) submission we are not persuaded to depart from the provisional view expressed in the July 2017 Group 3 decision. Interested parties will have an opportunity to comment on the next iteration of the exposure drafts and issues such as those raised by the CFMMEU (C&G Division) in its submission can be addressed at that time. We accept that some tailoring may be required in some awards. We note that in its submission the CFMMEU (C&G Division) states:

‘The CFMMEU C&G submits that it is not a particularly difficult task to include in the tables of hourly rates the ordinary hourly rates inclusive of all purpose allowances that apply for different employees. This has been done by industrial parties in preparing their own wage sheets ever since awards were first made. Whilst it is recognised that this would amount to a substantive change in approach by the Full Bench, it is submitted that the interests of employees and employers covered by the relevant awards would justify this change.’ 156

13. Next Steps

(i) Plain Language re-drafting (see Chapters 1-5 and 11)

[255] The ‘light touch’ process will be confined to making changes to the structure of exposure drafts in Groups 1 to 3 awards (in accordance with the plain language structure completed for awards in Group 4); plain language standard clauses and relevant key decisions. In accordance with the conclusions reached in this decision the ‘light touch’ review of awards will include the following changes:

•  The words ‘full-time employee’ will be included under the minimum weekly wage in the wages tables (except for the Building On-site Award and the Joinery Award). We note the point raised by ABI and will take it into account in the implementation of this change in the Clerks Award. The point raised by ABI will be taken into account in the implementation of this change in the Clerks Award (see Chapter 4 at [112]-[114]).

•  Any exposure drafts which do not currently have the industry definition in the coverage clause will be amended in accordance with the July 2017 Group 3 decision [2017] FWCFB 3433 at [339]. Clauses dealing with on-hire employees and group training services will be amended to refer to the relevant industry instead of a clause reference. [Note: Variations to be made to the exposure drafts will take into account the matters raised by Ai Group and the HIA.] (see Chapters 5 at [118])

•  Hourly rates of pay schedules will be amended in all exposure drafts (except the Building On-site Award pending the determination of the substantive claims in respect of that award in accordance with the proposal in the July 2017 Group 3 decision (see [248] and [254] above).

[256] The plain language re-drafting of the following awards is complete:

•  Pharmacy Award; 157

•  Clerks Award; 158

•  Restaurant Award; 159

•  Hospitality Award; 160

•  Retail Award; 161

•  Security Award 162

[257] There is one outstanding issue in relation to the plain language re-drafting of the Cleaning Award and it will be listed for an oral hearing on 26 or 27 September 2019 in Sydney with the matters referred to at [260].

[258] Plain language re-drafting of the Fast Food Award will commence in the coming weeks. As to the remaining awards, the plain language re-drafting of the Aged Care Award, Children’s Services Award, Hair and Beauty Award and the SCHADS Award will commence after the substantive issues in respect of these awards have been heard and determined.

[259] At the completion of this element of the plain language project the following awards will have been redrafted in plain language:

•  Aged Care Award;

•  Children’s Services Award;

•  Cleaning Services Award;

•  Clerks Award;

•  Hair and Beauty Award;

•  Hospitality Award;

•  Pharmacy Award;

•  Restaurant Award;

•  Retail Award;

•  Security Services Industry Award; and

•  SCHADS Award.

[260] The five ‘standard clauses’ common to most awards have now all be redrafted in plain language 163 and determinations varying most modern awards were issued on 26 October 2018 and 13 December 2018. The vast majority of the remaining award specific issues are resolved in Chapter 4 of this decision. There remain some contested issues in respect of the Joinery Award, the Manufacturing Award, the Teachers Award and the Timber Award. Given the degree of complexity associated with the contested issues in these awards, they will be listed for an oral hearing commencing at 9:30am on 26 and 27 September 2019 in Sydney. A Mention in respect of these matters, and the Cleaning Award issue (see [257] above) will be held at 1:00pm on Friday 20 September 2019.

(ii) Reasonable overtime (see Chapter 7)

[261] This issue affects the 12 modern awards listed at Attachment 3.

[262] We accept each of the variations proposed in the submissions, that is:

● the words ‘other than a casual’ will be deleted from the variation determinations in respect of the Building On Site; Cleaning Services; Electrical Contracting; Graphic Arts; Hospitality; Joinery; Manufacturing; Timber Awards;
● the cross referencing in clause 30.1(c)of the Joinery Award and clause 30.11(c) of the timber Award, as proposed by HIA; and

● the deletion of clause 36.1(c)(ix) of the Building On site Award draft determination.

[263] Variation determinations in respect of each of these awards will be issued shortly.

[264] Further, revised draft variation determinations will be published shortly for the Fast Food, General Retail, Hair and Beauty and Pharmacy Awards. Interested parties will have 14 days to comment.

(iii) National Training Wage (see Chapter 8)

[265] There are eight modern awards in which a party has sought to retain an award specific training schedule. The AMWU and Ai Group have come to an agreement on the NTW schedules to be included in 4 of these awards: Airport Employees Award; Food Manufacturing Award; Manufacturing Award and the Sugar Industry Award. Draft variation determinations will be published with this decision and interested parties will have 14 days to comment.

[266] Consideration of the NTW schedule in the Building On-site Award will be deferred until the Construction Full Bench issue a decision in relation to clause 28.

[267] The NTW schedule in the Joinery Award and the Mobile Crane Award will be the subject of a conference at 2pm on Friday 23 August 2019.

(iv) Terminology of Rates (see Chapter 9)

[268] This issue concerns the 56 modern awards set out at Attachment D which contain a reference to an employee being paid the higher of the annual leave loading or a shift ‘loading’ or ‘allowance’. We will issue a further decision in respect of this matter in the coming weeks.

(v) Spread of Hours (see Chapter 10)

[269] This issue concerns an ambiguity in a facilitative clause concerning the alteration of the ‘span of hours’ by up to one hour at either end of the spread (the Alteration clause).

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

[271] The awards being reviewed in relation to the Alteration clause are:

•  Airline Ground Staff Award;

•  Aquaculture Award;

•  Business Equipment Award;

•  Clerks Award;

•  Call Centres Award;

•  Food Manufacturing Award;

•  Manufacturing Award;

•  Pharmaceutical Industry Award;

•  Seafood Processing Award;

•  Storage Services Award; and

•  Sugar Industry Award.

[272] We make a number of general observations about this issue at [216]-[226] and express provisional views at [228]-[234]. Draft variation determinations will be published shortly. Interested parties will be invited to file submissions in response to the provisional views expressed above and in relation to the draft variation determinations.

(vi) Shutdown provisions (see Chapter 11)

[273] Attachment F sets out 80 modern awards containing shutdown provisions which are the subject of further consideration.

[274] In the February 2019 Statement we asked interested parties to make submissions on the following matters:

1. Whether the modern awards that currently contain shutdown provisions should be varied to include the following model term:

‘XX.XX Shutdown

(a) Clause XX.XX applies if an employer intends to shutdown all or part of its operation for a particular period (temporary shutdown period) and wishes to require affected employees to take leave during that period.

(b) The employer must give the affected employees 28 days’ written notice of a temporary shutdown period, or any shorter period agreed between them and the employer.

(c) The employer must give written notice of a temporary shutdown period to any employee who is engaged after the notice is given under paragraph (b) and who will be affected by that period, as soon as reasonable practicable after the employee is engaged.

(d) The following applies to any affected employee during a temporary shutdown period:

(i) the employee may elect to cover the temporary shutdown period by doing one, or a combination of 2 or more, of the following:

•  taking paid annual leave if the employee has accrued an entitlement to such leave;

•  taking leave without pay;

•  taking annual leave in advance in accordance with an agreement under clause XX.XX;

(ii) if the employee does not make an election under subparagraph (i) that covers the whole of the temporary shutdown period, then the employer may direct the employee to take a period of paid annual leave to which the employee has accrued an entitlement.

(e) A direction by the employer under clause XX.XX(d)(ii):

(i) must be in writing; and

(ii) must be reasonable.

(f) The employee must take paid annual leave in accordance with a direction under clause XX.XX(d)(ii).

(g) In determining the amount of paid annual leave to which an employee has accrued an entitlement, any period of paid annual leave taken in advance by the employee, in accordance with an agreement under clause XX.XX, to which an entitlement has not been accrued is to be taken into account.

(h) If a temporary shutdown period includes a day or part-day that is a public holiday and would have been a working day for the employee had the employee not been on leave in accordance with clause XX.XX, the employee is taken not to be on leave on that day or part-day.

(i) Clauses XX.XX to XX.XX do not apply to a period of annual leave that an employee is required to take during a temporary shutdown period in accordance with clause XX.XX.’

2. Any award specific variations that should be made; and

3. Whether unpaid leave taken during a shutdown period counts as service.

[275] In the February 2019 Statement we also stated that this issue would be decided on the papers unless any party requested a formal hearing by Friday 5 April 2019. No requests were made.

[276] We will issue a further decision in respect of this matter in due course.

(vii) Finalisation of the Review

[277] A Statement regarding the finalisation of the Review will be published in the coming weeks. The next stage in the Review will involve the publication of final versions of exposure drafts (expressed as draft variation determinations) for all modern awards. This exercise will be done in stages. Any interested party will have an opportunity to comment on the draft determinations and in doing so may propose the variation of any term to make it simpler and easier to understand. In reviewing the final exposure drafts parties may propose the adoption of award terms used in those awards which have been redrafted in plain language (i.e. the awards described in Chapter 2 of this decision).

PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR710994>

Attachment A – comparison showing how awards have been restructured

Plain Language Exposure Draft – Table of Contents
The plain language exposure draft table of contents was originally published as Attachment B of the 2016 Plain Language Pilot Report and based on the Pharmacy PLED⁽¹⁾ in April 2016.
The table of contents has been modified since the original publication.

⁽¹⁾ See Attachment B of the 2016 Plain Language Pilot Report. This Table of contents was proposed for the plain language exposure draft for the pharmacy Industry Award 2014.
⁽²⁾ The current exposure draft Table of contents is taken from the current Group 1 to 3 exposure drafts.
⁽³⁾ The National Training Wage Schedule in contained in the Miscellaneous Award 2010 and 113 awards refer to that award. The following 8 awards will retain the National Training Wage Schedule until the issue of relating to retention of award-specific schedules has been determined:

•  Airline Operations—Ground Staff Award 2010;

•  Airport Employees Award 2010;

•  Building and Construction General On-site Award 2010;

•  Food, Beverage and Tobacco Manufacturing Award 2010;

•  Joinery and Building Trades Award 2010;

•  Manufacturing and Associated Industries and Occupations Award 2010;

•  Mobile Crane Hiring Award 2010; and

•  Sugar Industry Award 2010.

Note this Table of contents is taken from the exposure draft proposed for the Pharmacy Industry Award 2014; not all provisions may be included in other awards

Note this Table of contents is proposed for the plain language exposure draft for the Pharmacy Industry Award 2014; not all provisions may be included in other awards

The Job search entitlement provision will be incorporated in the Termination of employment and Employee leaving during redundancy notice period provisions in accordance with the Plain language—Standard clauses decision issued on 20 July 2017

Attachment B

Building and Construction General On-site Award 2010, cl 36.1;

Cleaning Services Award 2010, cl 28.1;

Electrical, Electronic and Communications Contracting Award 2010, cl 26.1;

Fast Food Industry Award 2010, cl 26.4;

General Retail Industry Award 2010, cl 29.1;

Graphic Arts, Printing and Publishing Award 2010, cl 33.1;

Hair and Beauty Industry Award 2010, cl 31.1;

Hospitality Industry (General) Award 2010, cl 33.1

Joinery and Building Trades Award 2010, cl 30.1;

Manufacturing and Associated Industries and Occupations Award 2010, cl 40.2;

Pharmacy Industry Award 2010, note at cl 26;

Timber Industry Award 2010, cl 30.11.

Attachment C

Joinery and Building Trades Award 2010

Mobile Crane Hiring Award 2010

Attachment D – 56 awards containing reference to an employee being paid the higher of the annual leave loading or a shift ‘loading or ‘allowance’

Aboriginal Community Controlled Health Services Award 2010

Aged Care Award 2010

Airport Employees Award 2010

Animal Care and Veterinary Services Award 2010

Asphalt Industry Award 2010

Banking, Finance and Insurance Award 2010

Black Coal Mining Industry Award 2010

Building and Construction General On-site Award 2010

Business Equipment Award 2010

Car Parking Award 2010

Cement and Lime Award 2010

Cleaning Services Award 2010

Clerks - Private Sector Award 2010

Coal Export Terminals Award 2010

Concrete Products Award 2010

Contract Call Centres Award 2010

Dry Cleaning and Laundry Industry Award 2010

Educational Services (Post-Secondary Education) Award 2010

Educational Services (Schools) General Staff Award 2010

Educational Services (Teachers) Award 2010

Electrical Power Industry Award 2010

Electrical, Electronic and Communications Contracting Award 2010

Fast Food Industry Award 2010

Food, Beverage and Tobacco Manufacturing Award 2010

Gas Industry Award 2010

General Retail Industry Award 2010

Graphic Arts, Printing and Publishing Award 2010

Hair and Beauty Industry Award 2010

Health Professionals and Support Services Award 2010

Higher Education Industry-General Staff-Award 2010

Joinery and Building Trades Award 2010

Legal Services Award 2010

Manufacturing and Associated Industries and Occupations Award 2010

Meat Industry Award 2010

Medical Practitioners Award 2010

Miscellaneous Award 2010

Mobile Crane Hiring Award 2010

Nurses Award 2010

Pastoral Award 2010

Pest Control Industry Award 2010

Pharmaceutical Industry Award 2010

Pharmacy Industry Award 2010

Poultry Processing Award 2010

Premixed Concrete Award 2010

Quarrying Award 2010

Road Transport and Distribution Award 2010

Seafood Processing Award 2010

Social, Community, Home Care and Disability Services Industry Award 2010

Storage Services and Wholesale Award 2010

Sugar Industry Award 2010

Telecommunications Services Award 2010

Textile, Clothing, Footwear and Associated Industries Award 2010

Timber Industry Award 2010

Vehicle Manufacturing, Repair, Services and Retail Award 2010

Waste Management Award 2010

Wine Industry Award 2010

Attachment E – awards being reviewed in relation to the Alteration clause

Airline Ground Staff Award

Clause 8 deals with facilitative provisions:

‘8.1 Facilitative provisions

(a) Agreement to vary award provisions

(i) This award contains facilitative provisions that allow agreement between an employer and employees on how specific award provisions are to apply at the workplace or section or sections of it. The facilitative provisions are identified in clauses 8.2, 8.3 and 8.4.

(ii) The specific award provisions establish both the standard award conditions and the framework within which agreement can be reached as to how the particular provisions should be applied in practice. Facilitative provisions are not to be used as a device to avoid award obligations nor should they result in unfairness to an employee or employees covered by this award.

8.2 Facilitation by individual agreement

The following facilitative provisions can be utilised upon agreement between an employer and an individual employee:

8.3 Facilitation by majority or individual agreement

(a) The following facilitative provisions can be utilised by agreement between the employer and a majority of employees in the workplace or part of it, or the employer and an individual employee:

(b) Where agreement is reached with the majority of employees in the workplace or part of it to implement a facilitative provision in clause 8.3(a), that agreement binds all such employees.

8.4 Facilitation by majority agreement

(a) The following facilitative provisions can be utilised upon agreement between the employer and majority of employees in the workplace or part of it:

(b) Where agreement is reached with the majority of employees in the workplace or part of it to implement a facilitative provision in clause 8.4(a), that agreement binds all such employees.’

(Emphasis added)

Clauses 28.2 states, relevantly:

‘28.2 Ordinary hours of work—day work

…

(c) The ordinary hours of work are to be worked continuously, except for meal breaks, at the discretion of the employer between 7.00 am and 6.00 pm. The spread of hours may be altered by up to one hour at either end of the spread, by agreement between an employer and the majority of employees concerned.

…

(e) Any work performed outside the agreed spread of hours must be paid for at overtime rates.’

Aquaculture Award

[278] Clause 19.2 Ordinary hours of work - day workers states, relevantly:

‘19.2 Ordinary hours of work—day workers

…

(c) The ordinary hours of work are to be worked continuously, except for meal breaks, at the discretion of the employer between 5.00 am and 7.00 pm for up to 10 hours a day.

(d) Any work performed in excess of or outside the spread of hours must be paid for at overtime rates.’

Business Equipment Award

Clause 8, Facilitative provisions states:

‘8.1 A facilitative provision provides that the standard approach in an award provision may be departed from by agreement between an individual employer and an employee, or the majority of employees in the enterprise or part of the enterprise concerned. Facilitative provisions are not to be used as a device to avoid award obligations nor should they result in unfairness to an employee or employees covered by this award.

8.2 Facilitative provisions in this award are contained in the following clauses:

(a) clause 27—Ordinary hours of work and rostering;

(b) clause 28—Special provisions for shiftworkers;

(c) clause 29—Meal breaks; and

(d) clause 34.2—Public holidays.’

Clause 27 Ordinary hours of work and rostering states, relevantly:

‘27.1 Ordinary hours of work—day workers

(a) Subject to this award, the ordinary hours of work for day workers are to be an average of 38 per week, of no more than eight hours per day, between the hours of 6.30 am to 6.30 pm at the discretion of the employer on any day or all of the days of the week, Monday to Friday.

27.2 Flexibility in relation to day work hours

(a) The following forms of flexibility may be implemented in respect of all employees in a workplace or section/s thereof, subject to agreement between the employer and the majority of the employees concerned in the workplace or relevant section/s. Agreement in this respect may also be reached between the employer and an individual employee:

(i) the spread of hours (i.e. 6.30 am to 6.30 pm) may be altered by up to one hour at either end of the spread;

(ii) the days on which ordinary hours are worked may include Saturday and/or Sunday, subject to the penalties in clause 27.4 and 27.5;

(iii) in excess of eight hours and up to 12 hours of ordinary time may be worked per day, exclusive of meal breaks. The implementation of 12 hour days is subject to the provisions of clause 28.4 of this award.

(b) Where an agreement is reached by the majority of employees it will apply to all the employees in the workplace or section/s to which the agreement applies. This does not in any way restrict the application of an individual agreement.

(c) Where agreement is reached in accordance with this paragraph, the agreement must be recorded in the time and wages records.’

Clerks Award

Clause 25 Ordinary hours of work states, relevantly:

‘25.1 Weekly hours of work—day workers

(a) The ordinary hours of work for day workers are to be an average of 38 per week but not exceeding 152 hours in 28 days, or an average of 38 over the period of an agreed roster cycle.

(b) The ordinary hours of work may be worked from 7.00 am to 7.00 pm Monday to Friday and from 7.00 am to 12.30 pm Saturday. Provided that where an employee works in association with other classes of employees who work ordinary hours outside the spread prescribed by this clause, the hours during which ordinary hours may be worked are as prescribed by the modern award applying to the majority of the employees in the workplace.

(c) Not more than 10 hours exclusive of meal breaks (except if paid for at overtime rates) are to be worked in any one day.

25.2 Altering spread of hours

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

Call Centres Award

Clause 24 Ordinary hours of work provides, relevantly:

‘24.6 Spread of ordinary hours of work

(a) Subject to clause 24.6(b), except as provided for in clause 24.8(a)(i), the ordinary hours of work for day work must be worked between the following spread of hours:

(i) Monday to Friday—7.00 am to 7.00 pm;

(ii) Saturday—midnight on Friday and midnight on Saturday.

(b) Employees may be required to work ordinary hours outside the spread of hours in clause 24.6(a)(i) or (ii) subject to payment of the penalty rates in clause 24.7(a).

(c) Any work performed by an employee prior to the spread of hours which is continuous with ordinary hours is to be regarded as part of the 38 ordinary hours of work.

…

24.8 Flexibility in relation to working hours

(a) The following forms of flexibility may be implemented in respect of all employees in a workplace or section(s) thereof, subject to agreement between the employer and the majority of the employees concerned in the workplace or relevant section(s). Agreement in this respect may also be reached between the employer and an individual employee:

(i) the spread of hours in clauses 24.6(a)(i) and (ii) may be altered by up to one hour at one or both ends of the daily spread;

(ii) in excess of 10 hours and up to 12 hours of ordinary time may be worked per day or shift. The implementation of 12 hour days or shifts is subject to the provisions of clause 24.13;

(iii) a roster may operate on the basis that the weekly average of 38 ordinary hours is worked over a period which exceeds 28 consecutive days but does not exceed 12 months.

(b) Where an agreement is reached by the majority of employees it will apply to all the employees in the workplace or section(s) to which the agreement applies. This does not in any way restrict the application of individual agreement.

(c) Where an agreement is reached in accordance with this clause, the agreement must be recorded in the time and wages records.’

Food Manufacturing Award

Clause 8 deals with facilitative provisions and states, relevantly:

‘8.1 Agreement to vary award provisions

(a) This award also contains facilitative provisions which allow agreement between an employer and employees on how specific award provisions are to apply at the workplace or section or sections of it. The facilitative provisions are identified in clauses 8.2, 8.3 and 8.4.

(b) The specific award provisions establish both the standard award condition and the framework within which agreement can be reached as to how the particular provisions should be applied in practice. Facilitative provisions are not to be used as a device to avoid award obligations nor should they result in unfairness to an employee or employees covered by this award.

…

8.3 Facilitation by majority or individual agreement

(a) The following facilitative provisions can be utilised by agreement between the employer and the majority of employees in the workplace or a section or sections of it, or the employer and an individual employee:

(b) Where agreement is reached between the employer and the majority of employees in the workplace or a section or sections of it to implement a facilitative provision in clause 8.3(a), the employer must not implement that agreement unless:

(i) agreement is also reached between the employer and each individual employee to be covered by the facilitative provision; and

(ii) the agreement reached is kept by the employer as a time and wages record.

(c) Where no agreement has been sought by the employer with the majority of employees in accordance with clause 8.3(b), the employer may reach agreement with individual employees in the workplace or a section or sections of it and such agreement binds the individual employee provided the agreement reached is kept by the employer as a time and wages record and provided the agreement is only with an individual employee or a number of individual employees less than the majority in the workplace or a section or sections of it.

8.4 Facilitation by majority agreement

(a) The following facilitative provisions may only be utilised by agreement between the employer and the majority of employees in the workplace or a section or sections of it:

(b) Where agreement is reached with the majority of employees in the workplace or a section or sections of it to implement a facilitative provision in clause 8.4(a), that agreement binds all such employees provided the agreement reached is kept by the employer as a time and wages record.’

Clause 30 Ordinary hours states, relevantly:

‘30.2 Ordinary hours of work—day workers

…

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

Manufacturing Award

Clause 8 deals with facilitative provisions and states, relevantly:

‘8.1 Agreement to vary award provisions

(a) This award also contains facilitative provisions which allow agreement between an employer and employees on how specific award provisions are to apply at the workplace or section or sections of it. The facilitative provisions are identified in clauses 8.2, 8.3 and 8.4.

(b) The specific award provisions establish both the standard award condition and the framework within which agreement can be reached as to how the particular provisions should be applied in practice. Facilitative provisions are not to be used as a device to avoid award obligations nor should they result in unfairness to an employee or employees covered by this award.

…

8.3 Facilitation by majority or individual agreement

(a) The following facilitative provisions can be utilised by agreement between the employer and the majority of employees in the workplace or a section or sections of it, or the employer and an individual employee:

(b) Where agreement is reached between the employer and the majority of employees in the workplace or a section or sections of it to implement a facilitative provision in clause 8.3(a), the employer must not implement that agreement unless:

(i) agreement is also reached between the employer and each individual employee to be covered by the facilitative provision; and

(ii) the agreement reached is kept by the employer as a time and wages record.

(c) Where no agreement has been sought by the employer with the majority of employees in accordance with clause 8.3(b), the employer may reach agreement with individual employees in the workplace or a section or sections of it and such agreement binds the individual employee provided the agreement reached is kept by the employer as a time and wages record and provided the agreement is only with an individual employee or a number of individual employees less than the majority in the workplace or a section or sections of it.’

(Emphasis added)

[279] Clause 36 Ordinary hours of work states, relevantly:

‘36.2 Ordinary hours of work—day workers

…

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

Pharmaceutical Industry Award

Clause 23 Ordinary hours of work states, relevantly:

‘23.2 Ordinary hours of work—day workers

…

(b) The ordinary hours of work for day workers are to be worked continuously, except for meal breaks and rest pauses, between 7.45 am and 5.15 pm, Monday to Friday inclusive. The spread of hours may be altered by up to one hour at either end of the spread by agreement between the employer and the majority of employees in the plant, work section or sections concerned.’

Seafood Processing Award

Clause 23 Ordinary hours of work states, relevantly:

‘23.2 Ordinary hours of work—day workers

…

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

Storage Services Award

Clause 8 deals with facilitative provisions and states, relevantly:

‘8.1 Agreement to vary award provisions

(a) This award contains facilitative provisions that allow agreement between an employer and employees on how specific award provisions are to apply at the workplace or enterprise level.

(b) The specific award provisions establish both the standard award conditions and the framework within which agreement can be reached as to how the particular provisions should be applied in practice. Facilitative provisions are not to be used as a device to avoid award obligations nor should they result in unfairness to an employee or employees covered by this award.

…

8.3 Facilitation by majority agreement

The following facilitative provisions can be utilised upon agreement between the employer and the majority of employees in the workplace or part of it. Once such an agreement has been reached, the particular form of flexibility agreed upon may be utilised by agreement between the employer and an individual employee without the need for the majority to be consulted:

(i) Payment of wages—electronic funds transfer;

(ii) Hours of work—ordinary hours;

(iii) Hours of work—days of week;

(iv) Hours of work—spread of hours;

(v) Hours of work—maximum number of hours; and

(vi) Shift rosters.

(b) The agreement reached must be recorded in writing and kept as a time and wages record.’

Clause 22 Ordinary hours of work states, relevantly:

‘22.2 Spread of hours

(a) Ordinary hours will be worked between 7.00 am and 5.30 pm.

(b) The spread of hours may be altered by up to one hour at either end of the spread, by agreement between an employer and the majority of employees concerned or between the employee and the employer.’

Sugar Industry Award

Clause 29 Ordinary hours of work states, relevantly:

‘29.3 Other than field sector

…

(b) Weekly hours of work—day workers

(i) The ordinary hours of work are to be an average of 38 per week.

(ii) The ordinary hours of work may be worked from 6.00 am to 6.00 pm Monday to Friday.

(iii) Not more than 10 hours exclusive of meal breaks (except if paid for at overtime rates) are to be worked in any one day.

(c) Altering spread of hours

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

Attachment F– 80 modern awards containing a shutdown provision

1. Aboriginal Community Controlled Health Services Award 2010 (clause 26.3)

2. Aircraft Cabin Crew Award 2010 (clause 25.4)

3. Airline Operations–Ground Staff Award 2010 (clause 34.9)

4. Alpine Resorts Award 2010 (clause 26.3)

5. Aluminium Industry Award 2010 (clause 22.5)

6. Ambulance and Patient Transport Industry Award 2010 (clause 30.12)

7. Animal Care and Veterinary Services Award 2010 (clause 26.5)

8. Aquaculture Industry Award 2010 (clause 23.3)

9. Asphalt Industry Award 2010 (clause 25.4)

10. Banking, Finance and Insurance Award 2010 (clause 24.5)

11. Broadcasting and Recorded Entertainment Award 2010 (clause 23.4)

12. Building and Construction General On-site Award 2010 (clause 38.3)

13. Business Equipment Award 2010 (clause 31.4)

14. Car Parking Award 2010 (clause 25.4)

15. Cemetery Industry Award 2010 (clause 24.3)

16. Cement and Lime Award 2010 (clause 24.4)

17. Children’s Services Award 2010 (clause 24.4)

18. Cleaning Services Award 2010 (clause 29.6)

19. Clerks—Private Sector Award 2010 (clause 29.5)

20. Coal Export Terminals Award 2010 (clause 19.7)

21. Commercial Sales Award 2010 (clause 24.5)

22. Concrete Products Award 2010 (clause 26.4)

23. Contract Call Centres Award 2010 (clause 27.9)

24. Educational Services (Post-Secondary Education) Award 2010 (clause 25.6)

25. Electrical Power Industry Award 2010 (clause 27.8)

26. Electrical, Electronic and Communications Contracting Award 2010 (clause 28.5)

27. Food, Beverage and Tobacco Manufacturing Award 2010 (clause 34.11)

28. Gardening and Landscaping Services Award 2010 (clause 24.9)

29. Gas Industry Award 2010 (clause 25.3)

30. General Retail Industry Award 2010 (clause 32.5)

31. Graphic Arts, Printing and Publishing Award 2010 (clause 37.12)

32. Hair and Beauty Industry Award 2010 (clause 33.5)

33. Health Professionals and Support Services Award 2010 (clause 31.4)

34. Higher Education Industry—Academic Staff—Award 2010 (clause 27.2)

35. Higher Education Industry—General Staff—Award 2010 (clause 30.4)

36. Horse and Greyhound Training Award 2010 (clause 23.3)

37. Hospitality Industry (General) Award 2010 (clause 34.3)

38. Hydrocarbons Industry (Upstream) Award 2010 (clause 27.7)

39. Joinery and Building Trades Award 2010 (clause 32.9)

40. Journalists Published Media Award 2010 (clause 24.8)

41. Legal Services Award 2010 (clause 35.6)

42. Local Government Industry Award 2010 (clause 25.5)

43. Manufacturing and Associated Industries and Occupations Award 2010 (clause 41.10)

44. Meat Industry Award 2010 (clause 37.8)

45. Mining Industry Award 2010 (clause 23.6)

46. Mobile Crane Hiring Award 2010 (clause 25.5)

47. Miscellaneous Award 2010 (clause 23.4)

48. Nursery Award 2010 (clause 27.12)

49. Nurses Award 2010 (clause 31.9)

50. Oil Refining and Manufacturing Award 2010 (clause 26.6)

51. Pest Control Industry Award 2010 (clause 24.9)

52. Premixed Concrete Award 2010 (clause 24.4)

53. Pharmaceutical Industry Award 2010 (clause 26.10)

54. Plumbing and Fire Sprinklers Award 2010 (clause 34.3)

55. Poultry Processing Award 2010 (clause 27.9)

56. Premixed Concrete Award 2010 (clause 24.4)

57. Professional Employees Award 2010 (clause 19.4)

58. Quarrying Award 2010 (clause 29.4)

59. Racing Clubs Events Award 2010 (clause 30.3)

60. Racing Industry Ground Maintenance Award 2010 (clause 24.2)

61. Real Estate Industry Award 2010 (clause 25.2(c))

62. Registered and Licensed Clubs Award 2010 (clause 30.4)

63. Restaurant Industry Award 2010 (clause 35.3)

64. Road Transport (Long Distance Operations) Award 2010 (clause 23.8)

65. Road Transport and Distribution Award 2010 (clause 29.7)

66. Salt Industry Award 2010 (clause 25.6)

67. Seafood Processing Award 2010 (clause 27.11)

68. Security Services Industry Award 2010 (clause 24.9)

69. Silviculture Award 2010 (clause 29.3)

70. Storage Services and Wholesale Award 2010 (clause 26.6)

71. Sugar Industry Award 2010 (clause 33.5)

72. Supported Employment Services Award 2010 (clause 22.3)

73. Surveying Award 2010 (clause 24.3)

74. Telecommunications Services Award 2010 (clause 23.9)

75. Textile, Clothing, Footwear and Associated Industries Award 2010 (clause 41.7)

76. Timber Industry Award 2010 (clause 33.11)

77. Vehicle Manufacturing, Repair, Services and Retail Award 2010 (clause 29.12)

78. Water Industry Award 2010 (clause 27.4)

79. Wine Industry Award 2010 (clause 31.9)

80. Wool Storage, Sampling and Testing Award 2010 (clause 26.3)

 1   [2019] FWCFB 1255

 2   [2017] FWCFB 4419; [2018] FWCFB 3009; [2018] FWCFB 4177; [2018] FWCFB 4704 and [2018] FWCFB 7447

 3   Revised schedule of draft determinations

 4   [2019] FWCFB 1255

 5   [2019] FWCFB 1255 at [41]

 6   Ibid at [28]

 7   [2019] FWC 2698

 8   See Statement issued on 18 April 2019, [2019] FWC 2698

 9   [2019] FWC 3430

 10   ABI submission, 9 May 2019 Plain Language re-drafting – light touch at 8.1-8.2

 11   Ai Group submission, 9 May 2019 Plain Language re-drafting – light touch at [79]

 12   Ai Group submission, 9 May 2019 Plain Language re-drafting – light touch at [81]-[86]

 13   [2015] FWC 6555

 14   [2017] FWCFB 1638

 15   [2017] FWCFB 344; [2017] FWCFB 1612; [2018] FWCFB 3337; [2018] FWCFB 5504; [2018] FWCFB 6803

 16   [2018] FWCFB 5553; [2018] FWCFB 6980

 17   [2017] FWCFB 5397; [2018] FWCFB 2559; [2018] FWCFB 4496, [2018] FWCFB 6709

 18   [2018] FWCFB 2710; [2018] FWCFB 4468; [2018] FWCFB 6711

 19   [2018] FWCFB 6850; [2019] FWCFB 276

 20   [2018] FWCFB 6755

 21   United Voice submission, 23 November 2018, paragraphs 11 – 13

 22   Ai Group submission in reply, 30 November 2018, paragraphs 5 – 6

 23   [2018] FWCFB 7447

 24   [2018] FWCFB 6781, paragraph 55

 25  Ibid

 26   Ai Group submission, 23 November 2018, paragraphs 3 – 4

 27   United Voice submission, 23 November 2018, paragraphs 2 – 10

 28   Ai Group submission in reply, 30 November 2018, paragraphs 3 – 4

 29   [2019] FWCFB 272

 30   [2017] FWCFB 4419; [2017] FWCFB 5258 [2018] FWCFB 3009; [2018] FWCFB 4177; [2018] FWCFB 4704; [2018] FWCFB 7447 and [2019] FWCFB 2548

 31   [2018] FWCFB 7447

 32   Ibid at [67], [70], [75] and [78]

 33   Ibid at [94] and [95]

 34   Ibid at [101]

 35   Ibid at [102]

 36   Ibid at [103]-[104]

 37   Ibid at [105]

 38   Ibid at [108]

 39   MBA submission, 25 January 2019 at [11]-[12]

 40   CFMMEU (C&G) submission, 8 February 2019 at [10]

 41   [2018] FWCFB 7447 at [114]

 42   Ibid at [115]-[116]

 43   Ibid at [117]

 44   Independent Schools’ submissions, 25 January 2019 at [3]

 45   [2018] FWCFB 7447 at [121]

 46   Ibid at [122]

 47   Ibid at [123]

 48   Ibid at [125]

 49   Ibid at [126]

 50   [2019] FWCFB 2548

 51   [2018] FWCFB 7447 at [28]

 52   [2018] FWC 1544 at [14] – [22]

 53   [2015] FWCFB 4658

 54   Ai Group submissions – 23 September 2016, paragraphs 34 – 35

 55   [2017] FWCFB 3433 at [339]

 56   Ai Group Submission, 22 March 2019 at [7] – [9]

 57   HIA submission, 22 March 2019 at 3.2.4 – 3.2.8

 58   Statement and Directions [2018] FWCFB 7006

 59   Housing Industry Association submission, 27 November 2018

 60   CFMMEU - Construction and General Division submission, 28 November 2018

 61   Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union submission, 28 November 2018

 62   Australian Manufacturing Workers' Union submission, 28 November 2018

 63   Australian Hotels Association submission, 29 November 2018

 64   United Voice submission, 3 December 2018

 65   Transcript, 23 October 2018 at PN6

 66   [2018] FWCFB 7006

 67   [2016] FWC 4495

 68   [2017] FWCFB 3176

 69   [2017] FWCFB 4174

 70   PR596349

 71   Transcript – 7 September 2018 PN15

 72   [2018] FWC 1544 at [14] – [22]

 73   [2017] FWCFB 3433

 74   [2017] FWCFB 5536 at [582], [592]

 75   Ibid at [586]

 76   [2019] FWCFB 1255 at [63]

 77   Ibid at [65]

 78   [2019] FWCFB 1255 at [67] to [70]

 79   ABI, submission,1 April 2019 at [5.1]-[5.3]

 80   Ai Group submission, 22 March 2019 at [13]-[24]

 81  AWU submission, 25 March 2019 at [3]-[8]

 82   AMWU submission, 27 March 2019 at [8]-[11]

 83   CFMMEU – MD submission ,8 April 2019 at [5]-[7]

 84   CFMMEU – C&G submission, 2 April 201 at [12]-[14]

 85   CFMMEU – M&E submission, 22 March 2019 at [5]-[7]

 86   CPSU submission, 29 March 2019 at [2]- [4]

 87   CEPU submission, 29 March 2019 at [3]-[5]

 88   HIA submission, 22 March 2019 at [4.1.1]-[4.1.8]

 89   United Voice, submission, 4 April 2019 at [3]-[4]

 90   Ai Group submission in reply, 18 April 2019 at [7]-[24]

 91   CFMMEU – C&G submission in reply, 17 April 2019 at [12]-[14]

 92   [2018] FWCFB 6849

 93   AMWU Submission, 8 December 2018

 94   AWU Submission, 11 December 2018

 95   [2015] FWCFB 7236

 96   [2016] FWCFB 4418 at [42]

 97   AMWU Submission, 8 December 2018

 98   The Concise Macquarie Dictionary Revised Edition Doubleday 1982

 99   AMWU submissions, 8 December 2019 at [23] – [30]

 100   Ibid at [17]

 101   AWU submission, 11 December 2018 at [9]

 102   Ibid at [12]

 103   Ibid at [18]

 104   Ibid at [19]

 105   Ai Group Submission in reply, 21 December 2018

 106   Ai Group submission, 21 December 2019 at [6]

 107   Ibid at [8] – [10]

 108   Ibid at [73]

 109   ABI submission, 7 December 2018, at [2.6]

 110   Ibid at [2.3]

 111   Print R7898, 5 August 1999

 112   AMWU Submission in reply, 21 December 2018

 113   P7898, 5 August 1999 at [147]

 114   Manufacturing and Associated Industries and Occupations Award 2010

 115   Ai Group Submission, 6 December 2018

 116   As referred to in Ai Group Submission 6 December 2018 at [14]

 117   Print R7898

 118   AMWU Submission in reply, 21 December 2018 at [34] to [36]

 119   MTA Submission, 21 November 2018

 120   See clause 25.1(b)

 121   [2017] FWC 5861

 122   [2016] FWCFB 6836.

 123   Ibid at [83]

 124   Ibid at [83]

 125   [2017] FWCFB 959

 126   Ibid at [34]

 127   [2017] FWCFB 5394

 128   Ibid at [76]; PR597595

 129   Construction, Forestry, Mining and Energy Union (CFMEU) submission October 2017 with the support of the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) and The Association of Professional Engineers, Scientists and Managers, Australia (APESMA)

 130   CFMEU submission October 2017 at [10]

 131   Ibid

 132   [2017] FWCFB 5394 at [63]-[67]

 133   [2019] FWCFB 1255.

134 CFMMEU – MD submission, 8 April 2019

135 United Voice submission, 4 April 2019

136 CFMMEU – C&G submission, 2 April 2019

137 ABI & NSWBC submission, 1 April 2019

138 CPSU submission, 29 March 2019

 139   CEPU submission, 29 March 2019

 140   AMWU submission, 27 March 2019

141 MBA submission, 22 March 2019

142 AWU submission, 25 March 2019

143 Ai Group submission, 22 March 2019

144 AMIEU submission, 22 March 2019

145 , CFMMEU – M&E submission, 22 March 2019

146 AHA submission, 22 March 2019

147 HIA submission, 22 March 2019

148 FAAA submission, 3 May 2019

149 CFMMEU – C&G submission in reply, 17 April 2019

150 Ai Group submission in reply, 18 April 2019

 151   AMIEU submission in reply, 17 May 2019

 152   [2017 FWCFB 3433 at [353] – [362]

 153   HIA, op cit., at paragraphs 4.3.2 to 4.3.3

 154   MBA, op cit

 155   HIA, op cit., at paragraph 4.3.5

 156   CFMMEU (C&G Division) submission, 2 April 2019 at [22]

 157   [2017] FWCFB 344; [2017] FWCFB 1612; [2018] FWCFB 3337; [2018] FWCFB 5504; [2018] FWCFB 6803

 158   [2018] FWCFB 5553; [2018] FWCFB 6980

 159   [2017] FWCFB 5397; [2018] FWCFB 2559; [2018] FWCFB 4496, [2018] FWCFB 6709

 160   [2018] FWCFB 2710; [2018] FWCFB 4468; [2018] FWCFB 6711

 161   [2018] FWCFB 6850; [2019] FWCFB 276

 162   [2018] FWCFB 6755

 163   [2017] FWCFB 4419; [2017] FWCFB 5258 [2018] FWCFB 3009; [2018] FWCFB 4177; [2018] FWCFB 4704; [2018] FWCFB 7447 and [2019] FWCFB 2548