| [2021] FWCFB 293 |
| 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, 21 JANUARY 2021 |
4 yearly review of modern awards – plain language project – Fast Food Industry Award and Hair and Beauty Industry Award.
[1] On 28 October 2020 we issued a Statement 1 (the October 2020 Statement) in which we set out the timetable for the plain language re-drafting of the Fast Food Industry Award 2010 (the Fast Food Award) and the Hair and Beauty Industry Award 2010 (the Hair and Beauty Award). At that time we also published plain language exposure drafts (PLEDs) of the Fast Food Award and the Hair and Beauty Award.2 Interested parties were invited to file submissions in response to the published PLEDs by 4.00pm Wednesday, 25 November 2020. Submissions in reply were to be filed by 4.00pm Wednesday, 9 December 2020.
[2] Submissions were received from:
• Australian Business Industrial and the NSW Business Chamber (ABI), in respect of the Fast Food Award and the Hair and Beauty Award (25 November 2020);
• Australian Industry Group (Ai Group), in respect of the Hair and Beauty Award and the Fast Food Award (25 November 2020);
• The Australian Workers’ Union (AWU), in respect of the Hair and Beauty Award (25 November 2020); and
• The Shop, Distributive and Allied Employees’ Association (SDA), in respect of the Fast Food Award (25 November 2020) and the Hair and Beauty Award (1 December 2020).
[3] Submissions in reply were received from:
• Ai Group, in respect of the Fast Food Award and the Hair and Beauty Award (9 December 2020);
• AWU, in respect of the Hair and Beauty Award (9 December 2020); and
• SDA, in respect of the Fast Food Award (9 December 2020) and the Hair and Beauty Award (9 December 2020).
[4] A number of minor errors were identified by the parties in their submissions. It is our provisional view that the following minor amendments should be made to the PLEDs as follows:
Fast Food Award
• Clause 7.2, Table 1 (Facilitative provisions) – references to clauses 10.5 and 10.7 deleted; 3
• Clause 12.4(a)(i) (Classifications) – word ‘primarily’ inserted after ‘public’ in clause 12.4(a); 4
• Clauses 13.2(a)-(d) (Ordinary hours of work and rostering) – the word ‘ordinary’ inserted before ‘hours’; 5
• Clause 15.2 (Minimum rates) – the word ‘or’ replaced with the words ‘of age’; 6
• Clause 17.8 (Allowances) – the word ‘requires’ replaced with ‘requests’; 7
• Clause 18.3(d) (Accident pay) – the cross reference to clause 18.3(d) in the Note replaced with a cross reference to clause 18.3(d)(ii); 8
• Clause 20.5 (Overtime) – the words ‘a roster of’ deleted from the Note; 9
• Clause 22.2 (Annual leave) – the words ‘7-day’ inserted before ‘shiftworker’; 10
• Clauses 22.8(d) and 22.8(e) (Annual leave) – the cross reference to clause 22.8(b) replaced with a cross reference to clause 22.8(a); 11
• Clause 32.1(c) (Redundancy) – the cross reference to clause 32.1(b)(i) replaced with a cross reference to clause 32.1(b)(ii); 12
• Clause 32.3(c) (Redundancy) – the cross reference to clause 32.3(a) replaced with a cross reference to clause 32.3(b); 13 and
• Clauses A.1.1, A.2.1, A.3.2 and A.3.4 (Summary of Hourly Rates of Pay) – the word ‘between’ inserted before ‘10.00 pm’ in column 3 of the tables in each clause. 14 A consequential amendment has been made to insert the word ‘between’ within Table 6 appearing in clause 21.1.
Hair and Beauty Award
• Clause 2 (Definitions) – text appearing between definitions of ‘Table 15’ and ‘Table 16’ deleted; 15
• Clause 4.1(b) (Coverage) – opening bracket before the word ‘with’ deleted; 16
• Clause 7.2, Table 1 (Facilitative provisions) – clauses 10.4 and 15.2(c)(i) deleted from the table; 17
• Clause 7.2, Table 1 (Facilitative provisions) – the word ‘timing’ replaced with ‘duration’; 18
• Clause 11.5 (Casual employees) – cross reference to clause 22.2 replaced with a cross reference to clause 22.4; 19
• Clause 14.4, Table 2 (Ordinary hours of work) – span of ordinary hours on Sundayin Table 2 corrected to 10am-5pm; 20
• Clauses 15.2 and 15.3 (Rostering arrangements) – cross-reference in Note at the end of each clause amended to read ‘clause 32—Dispute resolution’; 21
• Clauses 18.1(a), 18.2(a) and 18.3(a) (Minimum rates) – removal of rates tables applying to apprentices starting before 1 January 2014. 22 Consequential amendments have been made to table numbering and headings in clauses 2, 18.1, 18.2, 18.3, B.5.3, B.5.4, B.5.7 and B.5.8;
• Clause 22.5 (Overtime rates) – second cross reference to clause 22.2 replaced with a cross reference to clause 22.4; 23
• Clause 24.2 (Annual leave) – the words ‘7-day’ inserted before the word ‘shiftworker’; 24
• Clause 24.6(f) (Annual leave) – the words ‘Error! Reference source not found’ replaced with a cross reference to clause 24.3; 25
• Clause 34.1(c) (Redundancy) – cross reference to clause 34.1(b)(i) replaced with a cross reference to clause 34.1(b)(ii); 26
• Clause 34.3(c) (Redundancy) – cross reference to clause 34.3(a) replaced with a cross reference to clause 34.3(b); 27
• Clauses B.5.3 and B.5.4 (Summary of Hourly Rates of Pay) – the words ‘and beauty therapy’ deleted from clauses B.5.3 and B.5.4; the rates for beauty therapy apprentices inserted at new clauses B.5.5 and B.5.6; current clauses B.5.5 and B.5.6 renumbered as clauses B.5.7 and B.5.8; 28
• rates in previous clause B.5.6 amended to be the same as the rates in the 3rd column. 29
[5] These amendments will be marked up in the next published version of the PLEDs.
[6] A summary of submissions for each award has been prepared and will be published to the website with this Statement. The submissions raise the following issues for determination:
Fast Food Award
• Definitions of ‘adult employee’ and ‘standard rate’, proposed deletion of definition of ‘default fund employee’ in clause 2 (Definitions);
• Drafting of clauses 4.2(a), 4.2(b), 4.2(c), 4.3, 4.4(d), 4.4(e) and 4.5 (Coverage);
• Drafting of clauses 10, 10.3 and 10.8 (Part-time employees);
• Drafting of clause 11.3 (Casual employees);
• Drafting of clauses 12.2, 12.4 (Classification definitions);
• Proposed insertion of maximum weekly hours for casual employees in clause 13.1 (Ordinary hours of work and rostering);
• Drafting of clause 14.4 (Breaks);
• Use of the term ‘adult rates’ in clauses 15.1 and 15.2 (Minimum rates);
• Drafting of clauses 17.4, 17.5, 17.6(a)(iii) and 17.7(b) (Allowances);
• Drafting of clause 18.3(d) (Accident pay – entitlement to payment);
• Drafting of clause 20.6 (Overtime);
• Drafting of clauses 22.2, 22.3 and 22.6(a) (Annual leave); and
• Drafting of clause B.2.1 (Expense related allowances).
Hair and Beauty Award
• Proposed deletion of ‘apprentice’ definition and drafting of ‘minimum hourly rate’ definition in clause 2 (Definitions);
• Drafting of clauses 4.2(e), 4.2(j), 4.3(a), 4.5(d) and 4.6 (Coverage);
• Drafting of clause 9 (Full-time employees);
• Drafting of clauses 10.3(a) and 10.6 (Part-time employees);
• Drafting of clauses 11, 11.3(a), 11.4, 11.5 (Casual employees);
• Drafting of clauses 12.2, 12.3, 12.5, 12.6 and 12.7 (Apprentices);
• Drafting of clause 13.2 (Classifications);
• Drafting of clause 14.1 (Ordinary hours of work);
• Drafting of clauses 15.1 and 15.3(d) (Rostering principles – all employees);
• Drafting of clause 17.2 (Junior rates);
• Drafting of proposed definitions in clause 18.3 (Apprentice, trainee and graduate rates);
• Drafting of clause 18.4 (Minimum rates for adult apprentices;
• Drafting of clauses 20.7, 20.8(a), 20.9(a) and 20.10(b) (Allowances);
• Drafting of clauses 22.2 and 22.5 (Overtime);
• Drafting of clauses 23.1 and 23.2(a) (Penalty Rates);
• Drafting of clauses 24.2, 24.3, 24.4(b), 24.6(f), 24.7(a) and 24.9(d) (Annual leave); and
• Drafting of clauses 29.2 and 29.3 (Public holidays).
[7] As set out in the October 2020 statement, a conference will be listed for 9:30am AEDT on Friday 12 February 2021, before the President. A notice of listing will be issued shortly. The purpose of the conference is to discuss the issues set out at para [6] above and the republished PLEDs.
PRESIDENT
Printed by authority of the Commonwealth Government Printer
<PR726324>
2 Plain Language Exposure Draft – Fast Food Award, 28 October 2020; Plain Language Exposure Draft – Hair and Beauty Award, 28 October 2020.
3 Ai Group, Submission, 25 November 2020, paragraph 28
4 Ai Group, Submission, 25 November 2020, paragraph 41-44
5 Ai Group, Submission, 25 November 2020, paragraph 53; SDA, Reply Submission, 9 December 2020, paragraph 16
6 Ai Group, Submission, 25 November 2020, paragraph 56; SDA, Reply Submission, 9 December 2020, paragraph 19
7 SDA, Submission, 25 November 2020, paragraph 25; Ai Group, Reply Submission, 9 December 2020, paragraph 26
8 SDA, Submission, 25 November 2020, paragraph 28
9 Ai Group, Submission, 25 November 2020, paragraphs 66-68; SDA, Reply Submission, 9 December 2020, paragraphs 29 and 30
10 Ai Group, Submission, 25 November 2020, paragraphs 72 – 73; SDA, Reply Submission, 9 December 2020, paragraphs 33-34
11 Ai Group, Submission, 25 November 2020, paragraphs 81 and 82; SDA, Submission, 25 November 2020, paragraph 34; SDA, Reply Submission, 9 December 2020, paragraph 40; Ai Group, Reply Submission, 9 December 2020, paragraph 29
12 Ai Group, Submission, 25 November 2020, paragraph 83; SDA, Reply Submission, 9 December 2020, paragraph 41
13 Ai Group, Submission, 25 November 2020, paragraph 84; SDA, Reply Submission, 9 December 2020, paragraph 17
14 Ai Group, Submission, 25 November 2020, paragraphs 85–88; SDA, Reply Submission, 9 December 2020, paragraph 43
15 Ai Group, Submission, 25 November 2020, paragraph 5; SDA, Reply Submission, 9 December 2020, paragraph 5; AWU, Reply Submission, 9 December 2020, paragraph 6.
16 Ai Group, Submission, 25 November 2020, paragraph 6; AWU, Reply Submission, 9 December 2020, paragraph 7
17 Ai Group, Submission, 25 November 2020 paragraphs 20–23; SDA, Reply Submission, 9 December 2020, paragraph 5, 10; AWU, Submission, 9 December 2020, paragraph 12
18 Ai Group, Submission, 25 November 2020 paragraph 24; SDA, Reply Submission, 9 December 2020, paragraph 10; AWU, Submission, 9 December 2020, paragraph 12
19 Ai Group, Submission, 25 November 2020 paragraph 28; SDA, Submission, 1 December 2020, paragraph 11; AWU, Submission, 9 December 2020, paragraph 21
20 AWU, Submission, 25 November 2020, para 5; SDA, Submission, 1 December 2020, paragraph 14, Ai Group, Reply Submission, paragraphs 10 and 17
21 Ai Group, Submission, 25 November 2020 paragraph 53 and 55; AWU, Submission, 9 December 2020, paragraph 31 and 33; SDA, Reply Submission, 9 December 2020, paragraph 31
22 Ai Group, Submission, 25 November 2020, paragraph 58; AWU, Submission, 25 November 2020, paragraph 18; SDA, Reply Submission, 9 December 2020, paragraph 64
23 SDA, Reply Submission, 9 December 2020, paragraph 64
24 Ai Group, Submission, 25 November 2020 paragraphs 72 and 73; SDA, Reply Submission, 9 December 2020, paragraph 44; AWU, Submission, 9 December 2020, paragraph 44
25 Ai Group, Submission, 25 November 2020 paragraph 80; SDA, Reply Submission, 9 December 2020, paragraph 47
26 Ai Group, Submission, 25 November 2020 paragraph 87; SDA, Reply Submission, 9 December 2020, paragraph 52; AWU, Submission, 9 December 2020, paragraph 49
27 Ai Group, Submission, 25 November 2020 paragraph 88; SDA, Reply Submission, 9 December 2020, paragraph 53; AWU, Submission, 9 December 2020, paragraph 50
28 Ai Group, Submission, 25 November 2020 paragraphs 91 and 92; SDA, Reply Submission, 9 December 2020, paragraphs 56 and 57; AWU, Submission, 9 December 2020, paragraphs 51 and 52
29 Ai Group, Submission, 25 November 2020 paragraph 93; SDA, Reply Submission, 9 December 2020, paragraph 58; AWU, Submission, 9 December 2020, paragraph 53