| FWC 5201|
|FAIR WORK COMMISSION|
Fair Work Act 2009
s.160—Application to vary modern award to remove ambiguity or uncertainty or correct error
The Australian Workers’ Union – Funeral Industry Award 2020
VICE PRESIDENT HATCHER
SYDNEY, 29 OCTOBER 2021
Application by the Australian Workers’ Union under s 160 of the Fair Work Act 2009 to rectify error or uncertainty in the Funeral Industry Award 2020 – award varied.
 This decision deals with an application made by the Australian Workers’ Union (AWU) 1 pursuant to section 160 of the Fair Work Act 2009 (FW Act) to vary the Funeral Industry Award 2020 (Funeral Award) to remove what are said to be ambiguities or uncertainties concerning overtime rates for casual employees. Specifically, the AWU’s application seeks the variation of clauses 11.2, 11.3, 19.2, 19.4(a) and (b), 20.6(c) and 20.7(c) of the Funeral Award.
 In a decision issued on 13 August 2021 2 (13 August decision) I determined that, insofar as the application concerns clauses 19.2, 20.6(c) and 20.7(c), which prescribe penalty rates for work performed on an employee’s rostered day off, I was not satisfied that there was any ambiguity or uncertainty requiring rectification. However, I accepted the AWU’s contention that uncertainty arises in respect of clauses 19.4(a) and (b). I also identified uncertainty concerning the minimum payment for casuals performing removal work, in that clause 11.4 provides that a casual employee must be paid for a minimum of 4 hours’ work each time they are required to attend work whereas 19.4(a) and (b) provide for a minimum payment of 2 hours with respect to removal work.
 In the 13 August decision I considered it appropriate to exercise my discretion to vary the Funeral Award to resolve the identified uncertainties. As to the form of the variations to be made to resolve the issue of the minimum payment for casual employees performing removal work, I expressed the provisional view that clause 11.4 should be varied to make clear that the minimum payment of 4 hours prescribed by the clause does not apply to removal work. The variations I proposed to make were set out at paragraph  of the 13 August decision. Interested parties opposing the provisional view were given 7 days to file a submission.
 The AWU filed a submission on 19 August 2021 3. In respect of the proposed variation to clause 11.4, the AWU submitted that the potential conflict between clauses 11.4 and 19.4 was already resolved by clause 19.6, which was inserted during the award stage proceedings of the 4 yearly review and obviates any need to vary clause 11.4.
 The AWU also submitted that, notwithstanding the conclusions stated in the 13 August decision, there remained merit in its proposed variations to clauses 19.2, 20.6(c) and 20.7(c) being made. It submitted that whilst the description of casual employment provided by clause 11.1 currently prevents a casual from accruing a rostered day off, as a result of the Casual Terms Award Review 4 being conducted by the Commission, this clause will soon be deleted and replaced with a definition providing that “casual employee” has the meaning given by section 15A of the FW Act. The AWU submitted that under the definition provided by section 15A it appears conceivable that a casual employee could temporarily work a pattern of hours which includes a rostered day off, as the definition of a casual employee in s 15A of the FW Act does not contain reference to a casual employee being engaged by the hour and paid as a casual employee.
 A submission in reply to the AWU was filed by the Australian Industry Group (Ai Group) on 27 August 2021. 5 The Ai Group submitted that the removal of clause 11.1 and the insertion of a reference to section 15A of the FW Act resulting from the Casual Terms Award Review could not have been contemplated by the parties when the agreed position on a cumulative approach to overtime penalty rates for casuals was reached. As such, Ai Group submitted that these forecasted changes should not be taken into account when varying the Funeral Award to give effect to the Full Bench’s decision in the Overtime for Casuals proceedings.6 The Ai Group therefore contended that the rejection of the AWU’s proposal to amend clauses 19.2, 20.6(c) and 20.7(c) should be maintained.
 I accept the AWU’s submission that clause 19.6, which I overlooked, already resolves the uncertainty I identified in relation to the minimum payment payable to casual employees for removal work arising from clauses 11.4 and 19.4(a) and (b). Accordingly, the variation to clause 11.4 proposed in the 13 August decision (proposed variation 2) will not be made. The references to a minimum payment of 2 hours in the proposed variations to clauses 19.4(a) and (b) (proposed variations 3 and 4) will also be removed in order to make clear that the minimum engagement periods for part-time and casual employees in respect of removal work are provided for by clause 19.6. The minimum payment of 2 hours for full-time employees in respect of removal work will be retained by the inclusion of a separate clause at 19.4(d).
 In relation to the other aspect of the AWU’s submissions, the variations to the Funeral Award arising from the Casual Terms Award Review which were pending at the time of those submissions have now been made. The previous clause 11.1, which provided that a casual employee is engaged by the hour, has now been removed and, instead, a definition of “casual employee” referring to s 15A of the FW Act has been added. Those changes do not, however, cause me to change the conclusion I stated in the 13 August decision that clauses 19.2, 20.6(c) and 20.7(c) have no practical application to casual employees because they cannot, by definition, accrue a rostered day off. Clause 11.2 remains (now renumbered clause 11.1 as a result of the Casual Terms Award Review). It requires casual employees to be paid for every hour that they work, meaning that time cannot be accrued towards a rostered day off. Further, under the new definition of “casual employee”, such an employee will not have any “firm advance commitment to continuing and indefinite work according to an agreed pattern of work for the person”, making it difficult to contemplate how a rostered day off would accrue in circumstances where the employee has no contractual commitment to be provided with work over the course of any roster.
 The other variations proposed in the 13 August decision were not opposed, and I consider it an appropriate exercise of the discretion conferred by s 160 of the FW Act for such variations to be made. 7 A determination varying the Funeral Award accordingly will be published in conjunction with this decision. The variations will take effect 7 days after the date of this decision.
Printed by authority of the Commonwealth Government Printer
1 AWU application, 5 May 2021.
2  FWC 4903.
3 AWU submission, 19 August 2021.
4  FWCFB 5153.
5 Ai Group reply submission, 27 August 2021.
6 Ai Group reply submission, 27 August 2021, at 10.
7 Clause numbering will need to be adjusted following the variations effected by the Casual Terms Award Review in  FWCFB 5153