[2019] FWCFB 8380
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, 13 DECEMBER 2019

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

[1] We have issued three Decisions dealing with substantive claims to vary the Restaurant Industry Award 2010 (the Restaurant Award) and the Hospitality Industry (General) Award 2010 (the Hospitality Award):

•  12 December 2018 1

•  6 September 2019 2

•  23 October 2019 3

[2] A Decision 4 issued 23 October 2019 included final draft variation determinations in respect of the Restaurant Award and the Hospitality Award and provided interested parties with 7 days to comment.

[3] The Australian Hotels Association (AHA) in correspondence dated 30 October 2019 indicated that they agreed with the draft variation determinations and also referred to an issue raised during the proceedings held on 10 October 2019 relating to apprentice wage rates (see Transcript). This decision concerns the issue raised by the AHA regarding some of the apprentice rates contained in the draft variation determinations previously published by the Commission. 5

[4] During the proceedings, it was determined that the parties were to file the change sought to the apprentice provisions in the draft variation determinations and should there be a dispute about the changes sought, a hearing would be set. 6

[5] In the AHA correspondence dated 30 October 2019, the AHA indicated that it was the view of the AHA that ‘…Schedule B of the Plain Language Exposure Draft published 14 October 2019 for both awards resolves that matter.’ 7

[6] Contrary to the AHA submission, it appears there remains an issue with the method of calculating the hourly rates for apprentices contained in the draft variation determinations.

Restaurant Award

[7] In relation to the Restaurant Award, the method of calculation for apprentices undertaking time based progression contained in the draft variation determination is unchanged from the current modern award provisions as follows:

(cook grade 3 weekly rate multiplied by applicable apprentice percentage) divided by 38

Table 1: Restaurant Award – time-based progression calculations

[8] However the Restaurant Award draft variation determination sets a different method of calculation for apprentices undertaking competency based progression as follows:

standard hourly rate multiplied by applicable apprentice percentage

Table 2: Restaurant Award – competency-based progression

[9] The difference in calculation method set out above results in a 1 cent difference in the resulting rates when using the same apprentice percentage as set out in Table 3 below.

Table 3: Restaurant Award comparison time-based progression and competency-based progression hourly rates

Hospitality Award

[10] In relation to the Hospitality Award, the method of calculation for apprentices undertaking time-based progression contained in the draft variation determination is different from that in the current modern award. The current provisions of the Hospitality Award provide for a calculation as follows:

(standard weekly rate multiplied by applicable apprentice percentage) divided by 38

Table 4: Hospitality Award – time-based progression – current award provisions for cooking apprentices

[11] The Hospitality draft variation determination provides a different calculation for time-based progression as follows:

standard hourly rate multiplied by applicable apprentice percentage

Table 5: Hospitality Award – time-based progression – draft variation determination for cooking apprentices

[12] The different calculation methods for time-based progression result in a 1 cent difference for time based apprentices between the current modern award rates and the rate calculated in accordance with the draft variation determination.

[13] For completeness, the Hospitality Award draft variation determination provides the same method of calculation for time-based progression and competency-based progression.

Conclusion

[14] It is our provisional view that the method for calculating apprentice rates in the Restaurant Award and the Hospitality Award for both time and competency-based progression should be consistent. The question then becomes which formula is to be preferred.

[15] Currently, both the Restaurant Award and the Hospitality Award provide for time-based progression to be calculated as

(applicable weekly rate multiplied by applicable apprentice percentage) divided by 38

[16] The plain language exposure drafts 8 for both awards, published by the Commission on 14 October 2019 continue to provide a calculation method for time-based apprentices using the above formula.

[17] We note that the Manufacturing and Associated Industries and Occupations Award 2010 (the Manufacturing Award) provides for competency-based progression and sets out minimum wages at clauses 25.1 and 25.6. The Manufacturing Award sets out both weekly and hourly rates of pay for each stage of apprenticeship and these rates are calculated using the same formula.

[18] It is our provisional view that the draft variation determinations should be amended to match the provisions in the current Restaurant and Hospitality Awards and that the rates for both streams of apprenticeship should be calculated using the same formula:

(applicable weekly rate multiplied by applicable apprentice percentage) divided by 38

[19] Any party opposed to our provisional view must file a submission setting out their position by no later than 4:00 pm Friday 17 January 2020. Submissions are to be sent to amod@fwc.gov.au in Word format. If there is no opposition to our provisional view we will amend and issue the variation determination accordingly.

PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR715055>

 1   [2018] FWCFB 7263

 2   [2019] FWCFB 6092

 3   [2019] FWCFB 7035

 4   [2019] FWCFB 7035

 5   See Transcript, 10 October 2019 PN122-139

 6   See Transcript, 10 October 2019 PN136-137

 7   Plain language exposure draft—Hospitality Industry (General) Award 20XX, 14 October 2019; Plain language exposure draft—Restaurant Industry Award 20XX, 14 October 2019

 8   Plain language exposure draft—Hospitality Industry (General) Award 20XX, 14 October 2019; Plain language exposure draft—Restaurant Industry Award 20XX, 14 October 2019