[2019] FWCFB 7035
FAIR WORK COMMISSION

DECISION

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

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

Restaurant industry
Hospitality industry

JUSTICE ROSS, PRESIDENT
DEPUTY PRESIDENT MASSON
COMMISSIONER LEE

MELBOURNE, 23 OCTOBER 2019

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

Background

[1] This decision deals with issues arising from a decision 1 we issued on 6 September 2019 (the September 2019 Decision) concerning applications to vary the Restaurant Industry Award 2010 (the Restaurant Award) and the Hospitality Industry (General) Award 2010 (the Hospitality Award). The issues concern clause 32 – Breaks in the Restaurant Award, some comments received in response to revised draft variation determinations published with the September 2019 Decision and the outcome of a conference in relation to clause 39 of the Restaurant Award and clause 38 of the Hospitality Award (both of which deal with deductions for breakages and cashiering undertakings). The first two of these issues were canvassed at a hearing on 10 October 2019. It is convenient to deal with the draft variation determinations first.

The draft variation determinations

[2] The AHA submitted that there were two typographical errors in the revised draft variation determination for the Hospitality Award. An amended draft variation determination incorporating the AHA suggestions was set out at Attachment 2 to a Statement 2 we issued on 7 October 2019 (the October 2019 Statement). Interested parties were invited to comment on the amended draft variation determination at the hearing on 10 October 2019. There was no opposition to the terms of the draft variation determinations..

[3] We now turn to clause 32 of the Restaurant Award.

Restaurant Award – Clause 32 – Breaks

[4] In a Decision 3 issued 12 December 2018 (the December 2018 decision) we proposed that clause 32 of the Restaurant Award be replaced with a provision in the terms set out in that decision at paragraph [211]. United Voice filed a submission raising several matters in response to the proposed variation of clause 32 and on 30 September 2019, the Australian Hotels Association (AHA) filed a submission in reply to United Voice. Most matters are agreed between the parties, save for the introduction of the facilitative provision at redrafted clause 32.4.

[5] An amended draft variation determination incorporating the agreed matters was attached to a Statement 4 issued on 7 October 2019.

[6] At the hearing on 10 October 2019, parties were asked to:

  confirm whether the agreed matters are accurately reflected in the attached amended draft variation determination; and

  make submissions in respect of the provisional view to insert a facilitative provision into clause 32 (at redrafted clause 32.4)

[7] All parties confirmed that the agreed matters are accurately reflected in the amended draft variation determination set out at Attachment 1. The sole issue in contention concerns the proposal to insert a facilitative provision into clause 32.

[8] Before turning to the submissions in relation to the issue in contention we propose to provide some context.

[9] In the December 2018 Decision we rejected an application by RCI to amend the meal breaks provision to allow breaks to be the subject of individual flexibility agreements. The evidence advanced in support of RCI’s claim is canvassed at [172] – [177] of the December 2018 Decision. Two things led us to conclude that the RCI’s claim lacked merit:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

‘So what we’re saying is that it would be flexible between the employer and employee and again that would need to be signed off by I imagine Fair Work Australia so that the employee isn’t exploited. I know for a fact, and I can honestly sit here and say I would not expect my staff to work seven or eight hours straight without a break.’ 5

[10] While we rejected the claim by RCI, we went on to note (at [203]) that we proposed to review clause 32, in light of the evidence given in the proceedings regarding the need for additional flexibility in the operation of the provision. We dealt with the notion of a facilitative provision at [208] – [210] of the December 2018 Decision:

‘[208] … the evidence in these proceedings points to the need to provide some additional flexibility regarding the timing of the breaks required by clause 32.1. As set out earlier clause 32.1 provides:

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

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

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

[11] The provisional view expressed above then became the individual facilitative provision which is set out at redrafted clause 32.4, as follows:

32.4 Agreement as to time of unpaid meal break

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

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

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

Note: Under section 344 of the Act, an employer must not exert undue influence or undue pressure on an employee to make an agreement under clause 32.4.

[12] In its written submissions, United Voice opposed the proposed introduction of individual facilitation, for the following reasons:

‘14. The proposed clause 32.4 introduces scope for an employer and an employer to agree to an unpaid meal break to be taken within the first 6 and half hours of work (instead of the first 6 hours of work under the current Restaurant Award).

15. United Voice opposes this clause.

16. The current Restaurant Award clause provides sufficient flexibility for employers and meets the modern awards objective s 134(d) of the Fair Work Act 2009 (‘the Act’). Employers are permitted under clause 32.4 of the Restaurant Award to provide a meal break at a later time, provided they pay the employee 150% of the employee’s ordinary base rate of pay from the end of the 6 hours until the meal break is given.

17. The proposed clause 32.4 also allows an employer to defer an employee’s meal break, but without any penalty for the first 30 minutes. This would have the effect of reducing an employee’s wages in this situation.

18. Whilst the proposed clause envisions a scenario in which an employee agrees to this freely, the reality is more complex. There will be circumstances in which an employee is not given a genuine choice.

19. The proposed clause 32.4 is unnecessary and should not be adopted.’

[13] The AHA and ABI support the introduction of a facilitative provision as proposed in clause 32.4 above. The AHA submits that given clause 34 has been excluded from the scope of Individual Flexibility Agreements the facilitative provision ‘provides a limited degree of flexibility … that meets the … need to promote flexible modern work practices and efficient productive performance at work’ 6 (s.134(1)(d)).

[14] We confirm our provisional view that the redrafted clause 32.4 contain an individual facilitative provision. We now turn to the terms of that provision.

[15] During the course of the hearing on 10 October 2019 the Commission drew the parties’ attention to what may be regarded as a lack of clarity as to proposed clause 32.4(c), which states:

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

[16] The concept of ‘reviewing’ a facilitation agreement ‘at any time’ seems somewhat nebulous. The intention of clause 32.4(c) was to provide a safeguard in the event that, for example, an employee who had agreed to defer their break subsequently becomes fatigued and needs a break. In such circumstances the employee could, in essence, change their mind and revert back to the default position in the award. The converse would also apply.

[17] An employer may have an operational reason for wishing to withdraw from such an agreement. In the event that either party withdraws from a facilitation agreement, the break should be taken in accordance with the default, award, provision.

[18] United Voice supported some clarification of proposed clause 32.4(c) to reflect the stated intention. The AHA did not oppose the clarification of proposed clause 32.4(c) subject to a time limitation being imposed, that is any right to withdraw from an agreement must be exercised before the penalty provisions in the clause become operative. We agree and propose that proposed clause 32.4(c) be amended to read:

32.4 Agreement as to time of unpaid meal break

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

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

(c) The employee or the employer may withdraw from an agreement within the first 5 hours of the work to which it applies.’

Note: Under section 344 of the Act, an employer must not exert undue influence or undue pressure on an employee to make an agreement under clause 32.4.

[19] During the course of the hearing on 10 October 2019 Mr Ryan, on behalf of the AHA, raised a further issue with the draft variation determination for the Restaurant Award, which is Attachment 1 to the October 2019 Statement. The issue concerns the expression ‘150% of the employees minimum hourly rate’ in subclauses 32.5 and 32.6. Mr Ryan submitted that, for clarity and consistency with the current term, this expression should be deleted and replaced with ‘50% of the employee’s ordinary hourly rate extra’, such that the amended subclauses read:

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

If the employer does not allow the employee to take an unpaid meal break at the rostered time (or at the time agreed under clause 32.4), then the employer must pay the employee 150% 50% of the employee’s minimum ordinary hourly rate extra:

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

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

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

If the employer does not allow the employee to take an unpaid meal break and there is no rostered time for the break, then the employer must pay the employee 150% 50% of the employee’s minimum ordinary hourly rate extra:

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

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

[20] There was no opposition to the course proposed by Mr Ryan and we will amend the draft variation determination accordingly.

[21] The final issue concerns the outcome of a conference before Commissioner Lee in relation to clause 39 of the Restaurant Award and clause 38 of the Hospitality Award.

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

No deduction for breakages or cashiering underings

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

[23] Section 151 of the FW Act provides that a modern award must not include a term that has no effect because of subsections 326(1), (3) or (4);

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

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

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

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

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

[24] Section 325 provides: 

325 Unreasonable requirements to spend or pay amount

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

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

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

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

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

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

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

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

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

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

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

‘Certain terms have no effect

Unreasonable deductions for benefit of employer

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

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

(b) unreasonable in the circumstances.

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

Unreasonable requirements to spend or pay an amount

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

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

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

Deductions or payments in relation to employees under 18

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

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

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

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

[26] In the December 2018 Decision we expressed the provisional view that clause 39 should be deleted as follows:

‘It is clear that clause 39 would have no effect insofar as it purports to permit a deduction from an amount payable to an employee under 18 years in circumstances where the deduction is not agreed in writing by a parent or guardian of the employee (contrary to s 326(4)). More generally such a deduction will be of no effect if it is ‘unreasonable in the circumstances’ (see s 325(1)(b)); this may be the case if the deduction was disproportionate to the ‘breakages or cashiering underings’. Absent any proposal to vary clause 39 such that it is compliant with subsections 326(1), (3) and (4) it is our provisional view that the clause be deleted.’ 7

[27] In the September 2019 Decision we summarised the submissions of RCI, AHA and United Voice in response to our provisional view. There was a measure of agreement in the submissions put and at [40] of the September 2019 Decision we said:

‘Given the degree of commonality in the submissions advanced we think there is merit in convening a conference of the parties in an effort to arrive at an agreed variation to the relevant clause in each award.’

[28] Commissioner Lee held a conference of the parties at the conclusion of the hearing on 10 October 2019. Arising out of the conference the parties (AHA, RCI and United Voice) reached a consent position to vary the relevant clauses to provide as follows:

Clause 38 - The Hospitality Award

38. Deductions for breakages or cashiering underings

38.1 Right to make deductions

Subject to clauses 38.2 and 38.3, an employer must not deduct any sum from the wages due to an employee under this award in respect of breakages or cashiering underings except in the case of wilful misconduct.

38.2 Deductions to be reasonable and proportionate

Any deduction made under clause 38 must be reasonable in the circumstances and proportionate to the loss suffered by the employer.

38.3 Deductions for employees under 18 years of age

Deductions must not be made under clause 38 from the wages of an employee who is under 18 years of age unless the deductions have been agreed to in writing by the employee’s parent or guardian.

Clause 39 - The Restaurant Award

39. Deductions for breakages or cashiering underings

39.1 Right to make deductions

Subject to clauses 39.2 and 39.3, an employer must not deduct any sum from the wages due to an employee under this award in respect of breakages or cashiering underings except in the case of wilful misconduct.

39.2 Deductions to be reasonable and proportionate

Any deduction made under clause 39 must be reasonable in the circumstances and proportionate to the loss suffered by the employer.

39.3 Deductions for employees under 18 years of age

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

[29] We are satisfied that the agreed variations do not offend s.151 and are necessary to ensure that the awards achieve the modern awards objective.

[30] We now publish a final draft variation determination in respect of the Restaurant Award and the Hospitality Award (at Attachments 1 and 2) and provide interested parties with 7 days to comment.

PRESIDENT

Appearances:

P. Ryan, with K. Zammit, for the Australian Hotels Association

N. Dabarera for United Voice

K. Thomson for ABI and NSW Business Chamber

Hearing details:

Melbourne

2019

10 October

Printed by authority of the Commonwealth Government Printer

<PR713234>

ATTACHMENT 1 – Final draft variation determination – Hospitality Award

fwc_logo

MA000009  PRXXXXXX

DRAFT DETERMINATION

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

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

HOSPITALITY INDUSTRY (GENERAL) AWARD 2010

[MA000009]

Hospitality industry

JUSTICE ROSS, PRESIDENT
DEPUTY PRESIDENT MASSON
COMMISSIONER LEE

MELBOURNE, XX MONTH 2019

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

A. Further to the Full Bench decisions issued by the Fair Work Commission on 12 December 2018 [2018] FWCFB 7263, 6 September 2019 [2019] FWCFB 6092 and 23 October 2019 [2019] FWCFB 7035, the above award is varied as follows:

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

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

junior employee means an employee who is less than 21 years of age and who is not undertaking a nationally recognised traineeship or apprenticeship.

2. By inserting a new clause 14.12 as follows:

14.12 Competency based progression

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

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

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

(iii) either:

(A) the Registered Training Organisation (RTO), the employer and the apprentice agree that the abovementioned requirements have been met; or

(B) the employer has been provided with written advice that the RTO has assessed that the apprentice meets the abovementioned requirements in respect to all the relevant units of competency and the employer has not advised the RTO and the apprentice of any disagreement with that assessment within 21 days of receipt of the advice.

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

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

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

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

3. By deleting clause 20.4 and inserting the following:

20.4 Apprentice wages

(a) Apprentices other than Waiting apprenticeship

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

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

(iii) Competency based wage progression

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

(A) Four year apprenticeship (nominal term)

Stage of apprenticeship

Minimum training requirements on entry

% of the standard hourly rate

Stage 1

On commencement and prior to the attainment of the minimum training requirements specified for Stage 2

55

Stage 2

On attainment of 25% of the total competencies specified in the training plan for the relevant AQF Certificate III qualification; or 9 months after commencing the apprenticeship, whichever is the earlier.

65

Stage 3

On attainment of 50% of the total competencies specified in the training plan for the relevant AQF Certificate III qualification; or 9 months or after commencing Stage 2, whichever is the earlier

80

Stage 4

On attainment of 75% of the total competencies specified in the training plan for the relevant AQF Certificate III qualification; or 9 months after commencing Stage 3, whichever is the earlier.

95

 

(b) Waiting apprenticeship

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

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

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

(A) Two year waiting apprenticeship (nominal term

(c) Proficiency payments – cooking trade

(i) Application

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

(ii) Payments

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

(1) one occasion only:

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

  thereafter, the standard hourly rate.

(2) on two occasions:

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

  thereafter, the standard hourly rate.

(3) on all three occasions:

  for the entire fourth year, the standard hourly rate.

(d) Proficiency payments – waiting trade

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

(ii) Payments

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

(e) Adult apprentices

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

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

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

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

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

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

(h) Working away from usual place of work

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

6. By deleting the table appearing in clause 21.1(j) and inserting the following:

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

(a) Fork-lift driver

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

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

8. By deleting clause 26.5 and inserting the following:

26.5 Employees who are not paid by electronic transfer and whose rostered day off or accrued day off falls on a pay day must be paid their wages, if they so desire, before going off duty on the working day prior to their day off.

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

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

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

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

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

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

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

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

29.1 Full-time employees

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

  a 19 day month, of eight hours per day;

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

  four days of nine and a half hours per day;

  five days of seven hours and 36 minutes per day;

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

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

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

  any combination of the above.

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

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

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

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

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

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

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

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

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

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

13. By deleting clause 30.2 and inserting the following:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

(b) Additional arrangements for full-time employees:

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

  Be paid an extra days’ pay; or

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

  Receive an additional day’s annual leave.

19. By deleting clause 38 and inserting the following:

38. Deductions for breakages or cashiering underings

38.1 Right to make deductions

Subject to clauses 38.2 and 38.3, an employer must not deduct any sum from the wages due to an employee under this award in respect of breakages or cashiering underings except in the case of wilful misconduct.

38.2 Deductions to be reasonable and proportionate

Any deduction made under clause 38 must be reasonable in the circumstances and proportionate to the loss suffered by the employer.

38.3 Deductions for employees under 18 years of age

Deductions must not be made under clause 38 from the wages of an employee who is under 18 years of age unless the deductions have been agreed to in writing by the employee’s parent or guardian.

20. By deleting clause 39 and inserting the following:

39. Provision of employee accommodation and meals

39.1 Right to make deductions

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

39.2 Deductions not to be unreasonable

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

39.3 Deductions for employees under 18 years of age

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

39.4 Deductions for meals

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

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

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

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

39.5 Deductions for accommodation or accommodation and meals—Adult employees

39.6 Deductions for accommodation or accommodation and meals—Junior rates

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

Table 2—Employees on junior rates

39.7 Amount of deduction for meals

An employer may deduct an amount of $8.21 from an employee’s wages for providing the employee with a meal.

39.8 Adjustment of amount of deduction for meals

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

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

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

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

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

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

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

  assisting in the cellar or bottle department;

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

  receipt of monies;

  attending a snack bar;

  engaged on delivery duties; and

  taking reservations, greeting and seating guests.

22. By deleting the definition of food and beverage attendant grade 3 in clause D.2.1 of Schedule D and inserting the following:

Food and beverage attendant grade 3 means an employee who in addition to the tasks performed by a Food and beverage attendant grade 2 is engaged in any of the following:

  the operation of a mechanical lifting device;

  attending a wagering (e.g. TAB) terminal, electronic gaming terminal or similar terminal;

  full control of a cellar or liquor store (including the receipt, delivery and recording of goods within such an area);

  mixing a range of sophisticated drinks;

  supervising food and beverage attendants of a lower grade; and

  training food and beverage attendants of a lower grade.

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

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

24. By updating the table of contents and cross-references accordingly.

B. This determination comes into operation from XX MONTH 2019. In accordance with s.165(3) of the Fair Work Act 2009 these items do not take effect until the start of the first full pay period on or after XX MONTH 2019.

PRESIDENT

Printed by authority of the Commonwealth Government Printer

ATTACHMENT 2 – Final draft variation determination – Restaurant Award

fwc_logo

MA000119  PRXXXXX

DRAFT DETERMINATION


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

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

RESTAURANT INDUSTRY AWARD 2010

[MA000119]

Restaurants

JUSTICE ROSS, PRESIDENT
DEPUTY PRESIDENT MASSON
COMMISSIONER LEE

MELBOURNE, XX MONTH 2019

4 yearly review of modern awards – Restaurant Industry Award 2010 – substantive issues.

A. Further to the Full Bench decisions issued by the Fair Work Commission on 12 December 2018 [2018] FWCFB 7263, 6 September 2019 [2019] FWCFB 6092 and 23 October 2019 [2019] FWCFB 7035, the above award is varied as follows:

1. By inserting the words “, excluding clause 32” after the word “performed” and before the word “; or” in clause 7.1(a).

2. By inserting a new clause 14.12 as follows:

14.12 Competency based progression

(a) For the purpose of competency based wage progression in clause 20.2 an apprentice will be paid at the relevant wage rate for the next stage of their apprenticeship if:

(i) competency has been achieved in the relevant proportion of the total units of competency specified in clause 20.2 for that stage of the apprenticeship. The units of competency which are included in the relevant proportion must be consistent with any requirements in the training plan; and

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

(iii) either:

(A) the Registered Training Organisation (RTO), the employer and the apprentice agree that the abovementioned requirements have been met; or

(B) the employer has been provided with written advice that the RTO has assessed that the apprentice meets the abovementioned requirements in respect to all the relevant units of competency and the employer has not advised the RTO and the apprentice of any disagreement with that assessment within 21 days of receipt of the advice.

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

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

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

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

3. By deleting clause 20.2 and inserting the following:

20.2 Apprentice wages

(a) Minimum wages

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

(ii) Except where clause 20.2(a)(iii) is applicable an employee will be paid in accordance with the following table:

(iii) Competency based wage progression

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

(A) Four year apprenticeship (nominal term)

(b) Proficiency payments – cooking trade

(i) Application

Proficiency pay as set out in clause 20.2(b)(ii) will apply to apprentices who have successfully completed their schooling in a given year.

(ii) Payments

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

(1) one occasion only:

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

  thereafter, the standard hourly rate.

(2) on two occasions:

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

  thereafter, the standard hourly rate.

(3) on all three occasions:

  for the entire fourth year, the standard hourly rate.

(c) Adult apprentices

(i) The minimum wage of an adult apprentice who commenced on or after 1 January 2014 and is in the first year of their apprenticeship must be 80% of the rate prescribed for a Cook grade 3, or the rate prescribed by clause 20.2(a) for the relevant year of the apprenticeship, whichever is the greater.

(ii) The minimum wage of an adult apprentice who commenced on or after 1 January 2014 and is in the second and subsequent years of their apprenticeship must be the rate for the lowest adult classification in clause 20.1, or the rate prescribed by clause 20.2(a) for the relevant year of the apprenticeship, whichever is the greater.

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

4. By deleting clause 24.3(a) – clothing, equipment and tools allowance and inserting the following:

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

5. By deleting clause 32 – Breaks and inserting the following:

32. Breaks

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

32.2 Frequency of breaks

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

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

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

32.4 Agreement as to time of unpaid meal break

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

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

(c) The employee or the employer may withdraw from an agreement within the first 5 hours of the work to which it applies

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

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

If the employer does not allow the employee to take an unpaid meal break at the rostered time (or at the time agreed under clause 32.4), then the employer must pay the employee 50% of the employee’s ordinary hourly rate extra:

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

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

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

If the employer does not allow the employee to take an unpaid meal break and there is no rostered time for the break, then the employer must pay the employee 50% of the employee’s ordinary hourly rate extra:

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

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

32.7 Additional rest break

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

32.8 Additional rest break after overtime

An employer must give an employee an additional 20 minute paid break if the employer requires the employee to work more than two hours’ overtime after completion of the employee’s rostered hours.

6. By deleting clause 39 and inserting the following:

39. Deductions for breakages or cashiering underings

39.1 Right to make deductions

Subject to clauses 39.2 and 39.3, an employer must not deduct any sum from the wages due to an employee under this award in respect of breakages or cashiering underings except in the case of wilful misconduct.

39.2 Deductions to be reasonable and proportionate

Any deduction made under clause 39 must be reasonable in the circumstances and proportionate to the loss suffered by the employer.

39.3 Deductions for employees under 18 years of age

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

7. By updating the table of contents and cross-references accordingly.

B. This determination comes into operation from XX MONTH 2019. In accordance with s.165(3) of the Fair Work Act 2009 these items do not take effect until the start of the first full pay period on or after XX MONTH 2019.

PRESIDENT

Printed by authority of the Commonwealth Government Printer

 1   [2019] FWCFB 6092

 2   [2019] FWCFB 6898

 3   [2018] FWCFB 7263

 4   [2019] FWCFB 6898

 5   [2018] FWCFB 7263 at [185] – [193]

 6   Transcript PN75

 7   [2018] FWCFB 7263, [255]