| [2020] FWCFB 5674 |
| FAIR WORK COMMISSION |
STATEMENT |
Fair Work Act 2009
s.156—4 yearly review of modern awards
4 yearly review of modern awards–Plain language project
(AM2016/15)
JUSTICE ROSS, PRESIDENT |
MELBOURNE, 28 OCTOBER 2020 |
4 yearly review of modern awards – plain language project – timetable for Fast Food Industry Award and Hair and Beauty Industry Award – remaining awards to be redrafted in plain language.
[1] On 22 September 2015, the Commission issued a Statement 1 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.
[2] Following the publication of the Pharmacy Award PLED, the Commission conducted user testing and a Report setting out the results of the testing was published in April 2016. This Report, together with the Plain Language Guidelines, has informed the Commission’s approach to redrafting modern awards in plain language.
[3] Since the pilot, the following awards have been redrafted in plain language and are now in operation:
• Cleaning Services Award 2020;
• Clerks – Private Sector Award 2020;
• General Retail Industry Award 2020;
• Hospitality Industry (General) Award 2020;
• Restaurant Industry Award 2020; and
• Security Services Industry Award 2020.
[4] In a Statement issued on 27 March 2017 2, the Commission proposed that the following awards would also be drafted in plain language:
• Aged Care Award 2010;
• Building and Construction General On-site Award 2010;
• Children’s Services Award 2010;
• Fast Food Industry Award 2010;
• Hair and Beauty Industry Award 2010;
• Manufacturing and Associated Industries and Occupations Award 2010 3;
• Social, Community, Home Care and Disability Services Industry Award 2010; and
• Vehicle Manufacturing, Repair, Services and Retail Award 2010. 4
[5] These awards were selected taking the following factors into account:
• 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.
[6] The plain language redrafting of the Building and Construction General On-site Award 2020 (the Building Award) was supported by the HIA in a submission dated 7 April 2017, but they suggested that this process should commence after the determination of the substantive issues in the award. On 6 April, Ai Group, CFMMEU, AWU, AMWU and the CEPU filed a joint submission opposing the plain language redrafting of the Building Award. The reasons for the opposition were as follows:
• The significant number of clauses in the Building Award that have been the subject of contested 4 Yearly Review proceedings, with major proceedings currently being heard, and several significant decisions still reserved;
• The serious strain that a plain language re-drafting exercise for the Building Award would impose on our resources at a time when the parties are already involved in a very large number of other 4 Yearly Review proceedings;
• The potential changes to the legal effect of the Award that may result;
• The need to ensure a stable awards system; and
• The absence of evidence establishing widespread award non-compliance in the Building Industry.
[7] On 7 April 2017, Ai Group, AMWU, AWU, CFMMEU, CEPU, NUW and United Voice filed a joint submission opposing the plain language redrafting of the Manufacturing and Associated Industries and Occupations Award 2010 (the Manufacturing Award). The reasons for the opposition were as follows:
• The disturbance that would result to the very extensive and constructive negotiations that are taking place to implement the FWC Full Bench decision to incorporate the vehicle manufacturing coverage of the Vehicle Manufacturing, Repair, Services and Retail Award 2010 (Vehicle Award) into the Manufacturing Award.
• The significant number of clauses in the Manufacturing Award that have been the subject of contested 4 Yearly Review proceedings, with several significant decisions on these matters still reserved;
• The serious strain that a plain language re-drafting exercise for the Manufacturing Award would impose on our resources at a time when the parties are already involved in a very large number of other 4 Yearly Review proceedings;
• The potential changes to the legal effect of the Award that may result;
• The need to ensure a stable awards system; and
• The absence of evidence establishing widespread award non-compliance in the Manufacturing Industry.
[8] On 12 April 2017, the Motor Trades Organisations, Ai Group, AMWU and the SDA made a joint submission opposing the inclusion of the Manufacturing and the Vehicle Awards in the plain language redrafting project. The parties objected to the inclusion of these awards due to the decision to move section 2 from the Vehicle Award to the Manufacturing Award and the subsequent negotiations about the redrafting of both awards to accommodate the decision.
[9] In a Statement 5 issued on 28 February 2019 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 that time. No party contested our provisional view.
[10] In a decision 6 issued on 20 August 20197, we confirmed that the Vehicle, Manufacturing and Building awards would not be redrafted in plain language as part of the 4 yearly review of modern awards. We noted that consideration might be given to redrafting these awards in plain language in 2020 and that interested parties would be given the opportunity to comment on the plain language redrafting awards. The review of the Vehicle Award and the Manufacturing Award is now complete (subject to any outstanding common issues) and the 2020 awards are in operation. On 7 October 2020, a Full Bench issued a decision8 in relation to the finalisation of the technical and drafting review of the Building Award. Submissions in relation to the draft variation determination are due on 26 October 2020 and the Full Bench proposed finalising the determination on the papers.
[11] Interested parties are asked to comment on whether the plain language redrafting of the Vehicle, Manufacturing and Building Awards should commence in 2020. This may be the plain language redrafting of each awards as a whole or the redrafting of particular clauses that may require clarification. Any submissions should be filed by 4pm on Friday 6 November 2020.
[12] The Social, Community, Home Care and Disability Services Industry Award 2010 and the Children’s Services Award 2010 are the subject of claims for substantive variations and these matters remain outstanding. 9 Once the substantive claims have been finalised the plain language redrafting of these two awards, and the Aged Care Award 2010, will commence.
[13] Plain language exposure drafts (PLEDs) for the Fast Food Industry Award 2010 (Fast Food Award) and the Hair and Beauty Industry Award 2010 (Hair and Beauty Award) will be published with this statement. A comparison document setting out the changes made to the current 2010 awards will also be published. The standard clauses 10 in each award have already been redrafted in plain language and these provisions have not been amended in the PLEDS. Other provisions that have been inserted as a result of a common issue during the review have also not been redrafted further, these include:
• Requests for flexible working arrangements;
• Right to request casual conversion;
• Payment on termination of employment;
• Reasonable overtime;
• Time off instead of payment for overtime; and
• Annual leave provisions: excessive leave, cashing out of annual leave and annual leave in advance.
[14] An overview of the changes made is set out below:
• Each of the awards has been restructured in accordance with the plain language structure of awards. 11
• A table of facilitative provisions has been inserted.
• The leave to deal with family and domestic violence model term has been replaced with the reference to the National Employment Standards in accordance with the decision issued on 25 July 2020. 12
• Some provisions such as entitlement to breaks, overtime and penalty rates have been redrafted so that the information appears in a table.
[15] In circumstances where a provision in the Fast Food or Hair and Beauty Award is identical to a provision that has already been the subject of plain language redrafting in another award, the plain language redrafting has been adopted. An example of this is clause 12.10 in the HABIA which is identical to clause 12.10 in the General Retail Award 2010 as set out below:
General Retail Award 2010 |
Hair and Beauty Industry Award 2010 |
12.10 Conversion of existing employees No full-time or casual employee will be transferred by an employer to part-time employment without the written consent of the employee. Provided that where such transfer occurs all leave entitlements accrued will be deemed to be continuous. A full-time employee who requests part-time work and is given such work may revert to full-time employment on a specified future date by agreement with the employer and recorded in writing. |
12.10 Conversion of existing employees No full-time or casual employee will be transferred by an employer to part-time employment without the written consent of the employee. Provided that where such transfer occurs all leave entitlements accrued will be deemed to be continuous. A full-time employee who requests part-time work and is given such work may revert to full-time employment on a specified future date by agreement with the employer and recorded in writing. |
[16] The provision in the Hair and Beauty PLED has been redrafted in the same terms as the General Retail Industry Award 2020 as follows:
8.3 Moving between types of employment
(a) A full-time or casual employee can only become a part-time employee with the employee’s written consent.
(b) Moving to part-time employment does not affect the continuity of any leave entitlements.
(c) A full-time employee:
(i) may request to become a part-time employee; and
(ii) if that request is granted by the employer, may return to full-time employment at a future date agreed in writing with the employer.
[17] A further example of redrafting from previous plain language redrafting processes is the transfer of employee reimbursement allowance that appears in both the Fast Food Award at clause 19.5 and the Hair and Beauty Award at clause 21.6. Clause 19.5 from the Fast Food Award is set out below:
19.5 Transfer of employee reimbursement
Where any employer transfers an employee from one township to another, the employer will be responsible for and will pay the whole of the moving expenses, including fares and transport charges, for the employee and their family.
[18] An identical clause appeared at 19.5 of the Pharmacy Award 2010. In a decision 13 in relation to the plain language redrafting of the Pharmacy Award we decided to redraft the provision and to include a definition of ‘immediate family’. The clauses in both the Fast Food Award and Hair and Beauty Award have been redrafted in the same terms as the identical clause in the Pharmacy Award, as follows:
17.8 Moving expenses
(a) Clause 17.8 applies if an employer transfers an employee from one township to another.
(b) The employer must pay the total cost (including fares and other transport charges) of moving the employee and any members of the employee’s immediate family, as defined in clause 2—Definitions, who reside in the employee’s household.
Fast Food Award
[19] The substantive claims for the Fast Food Award were finalised in a decision dated 1 October 2019. 14 The part-time and overtime provisions of the award were subsequently varied. Minor plain language drafting changes have been made to these provisions in the PLED.
[20] The issue of overtime for casual employees is currently before a separate Full Bench. A decision and draft determination have been issued. The draft determination has been incorporated into the PLED, this may need to be amended when a final variation determination has been issued.
[21] An Exposure Draft of the Fast Food Award was published on 16 November 2016. A summary of submissions document was published on 8 March 2017.
Hair and Beauty Award
[22] The substantive claims for the Hair and Beauty Award were finalised in a decision dated 14 June 2019. 15 The subsequent variation determination amended the roster provisions for full time employees and the notification of rosters provisions.
[23] There is an outstanding issue in relation to the Saturday and Sunday penalty rates applicable to casual employees. This issue is listed for mention on 23 November 2020. The outstanding issue is noted on the PLED.
[24] The issue of overtime for casual employees is currently before a separate Full Bench. A decision and draft determination have been issued. The draft determination has been incorporated into the PLED, this may need to be amended when a final variation determination has been issued.
[25] An Exposure Draft of the Hair and Beauty Award ABIA was published on 16 November 2016. A summary of submissions document was published on 8 March 2017. A number of issues remain outstanding from those submissions. The following issues have been noted in the PLED:
• The Hair and Beauty Award contains rates for pre-apprentices however, the award does not contain a definition of ‘pre-apprentice’. Interested parties are asked to comment on whether a definition is required.
• Definitions of ‘hairdressing trainee’, ‘hairdressing graduate’ and ‘beauty therapy graduate’ have been included. These definitions were proposed by the SDA. Ai Group did not object to two of the definitions but submitted that the definition of ‘hairdressing trainee’ required further consideration.
• There was disagreement between the parties about whether overtime rates apply for full time and part time employees who work outside the span of ordinary hours. The PLED includes tables of overtime and penalty rates and interested parties are asked to comment these tables.
[26] The PLED also includes a question for the parties in relation to junior rates. The current Hair and Beauty Award provides for junior rates as follows:
18. Junior rates
Junior employees will be paid the following percentage of the appropriate wage rate in clause 17:
Age |
% of adult rate of pay |
16 years of age and under |
50 |
17 years of age |
75 |
18 years of age |
100 |
[27] The PLED includes a summary of hourly rates of pay at Schedule B. It is not clear from the award which classification levels apply to junior employees. In the November 2016 Exposure Draft, the Commission included junior rates at classification levels 1,2 and 3. The Fair Work Ombudsman’s Pay Guide for the Hair and Beauty Award provides junior rates for Level 1 and Level 2 employees. Parties are asked to comment on whether the junior rates should be limited to certain classification levels.
[28] Interested parties are invited to make submissions in response to the Fast Food PLED and the Hair and Beauty Award PLED by 4pm on Wednesday 25 November 2020.
[29] Submissions in reply should be filed by 4pm on Wednesday 9 December 2020.
[30] A conference will then be convened to finalise any outstanding issues.
[31] Submissions should be filed in Word format and emailed to amod@fwc.gov.au.
[32] In a decision issued on 20 August 2019 16, we invited any interested party to identify any term in any modern award that is ambiguous, uncertain or confusing so that the term could be considered for plain language re-drafting. This invitation was repeated in a decision by a separate Full Bench on 2 September 201917 and a Statement on 28 February 2020.18 To date, no union, employer organisation or government has sought such a change. The invitation remains open and any party wishing to pursue such a change should email: Chambers.Ross.j@fwc.gov.au.
[33] A further statement in relation to the plain language project will be published in November 2020.
PRESIDENT
Printed by authority of the Commonwealth Government Printer
<PR723823>
3 Now the Manufacturing and Associated Industries and Occupations Award 2020.
4 Now the Vehicle Repair, Services and Retail Award 2020.
10 Individual flexibility arrangements, dispute resolution, consultation about major workplace change, consultation about changes to rosters and hours of work, termination of employment and redundancy.
11 See Attachment A to [2019] FWCFB 5409
16 [2019] FWCFB 5409 at [24]
17 [2019] FWCFB 6077 at [14]