Fair Work Act 2009
s.158–Application to vary or revoke a modern award

Application to vary the Victorian Local Government Award 2015
(AM2021/69)

Application to vary the Victorian Local Government Award 2015 (state-reference public sector award)

[1] On 16 June 2021, Australian Services Union Victorian and Tasmanian Authorities and Services Branch (the ASU) made an application to vary the Victorian Local Government Award 2015 (the VLG Award). The variations proposed seek to replicate variations which have already been made to the Local Government Industry Award 2020 during the 4 yearly review (see Attachment 1).

[2] The application seeks to vary the VLG Award to add and/or replace clauses in relation to:

•  A minimum engagement period for casual employees

•  Requests for flexible working arrangements

•  Block release training and fees

•  Payment on termination of employment

•  Time off instead of payment for overtime

•  Agreement for time off instead of payment for overtime

•  Annual leave in advance

•  Agreement to take annual leave in advance

[3] In addition to the above variations sought, the ASU seeks a variation to the VLG Award by adding a clause in relation to dispute resolution training leave.

[4] A draft variation determination is attached (see Attachment 2).

[5] A mention was held on 7 July 2021, the purpose of which was to discuss if any of the proposed variations were contested. The transcript of the matter is available here.

[6] No party other than the ASU attended the mention. At the mention, the ASU representative was asked if the union had had discussion with any of the employers with an interest in the VLG Award. The ASU responded:

‘Not since filing the application, your Honour.  The ASU contacted the Municipal Association of Victoria prior to lodging the application, and the association indicated that they were not opposed to the application in principle and we've not since been contacted by any other interested parties since lodging the application.’ 1

[7] It is our provisional view that VLG Award be varied in the same terms as the draft determination attached and that the variations proposed are necessary to achieve the modern awards objective.

[8] Any submission opposing our provisional view should be filed by 4pm (AEST) on Friday 13 August 2021. Submissions should be sent to amod@fwc.gov.au.

[9] If no submissions are filed opposing our provisional view, then a determination in the form set out in the draft determination will be issued.

PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR731772>

Attachment 1

Attachment 2

MA000132 PRXXXXX

FAIR WORK COMMISSION

DRAFT DETERMINATION

Fair Work Act 2009
s.157 FWC may vary etc. modern awards if necessary to achieve modern award objectives

VICTORIAN LOCAL GOVERNMENT AWARD 2015
[MA000132]

Review of Victorian Local Government Award 2015 – standard clauses

A. Further to the decision [2021 FWCFB XXXX] issued by the Full Bench on X May 2021, the above award is varied as follows:

1. By inserting clause 9.7 as follows:

9.7 Dispute Resolution Training Leave

(a) An eligible employee shall be entitled to a maximum of five days paid leave to attend courses which are specifically directed towards effective resolution of disputes regarding industrial matters under this award and /or industrial issues which arise at the workplace.

(b) Eligible employees are only entitled to leave in accordance with this clause for accredited courses.

(c) Such leave will be available to an individual eligible employee once only during their employment. The employer and eligible employee may reach an agreement on any requests for refresher training.

(d) For the purpose of this clause an accredited course means Dispute Resolution Training Course conducted by or on behalf of a registered training organisation whose scope of registration Includes industrial relations training.

(e) Nothing in this clause will prevent the employer and the eligible employee from reaching agreement that such training can be provided by a union or other accredited training provider(s).

(f) An eligible employee is defined as a full-time or part-time employee:

(i) who is a union delegate, who has been duly appointed by a union and the employer has been formally notified of that appointment; and

(ii) who has completed 12 months continuous service with the current employer.

(g) An eligible employee must comply with the following notice requirements:

(i) provide the employer with at least five (5) weeks prior notice in writing of their request to attend a dispute resolution training course;

(ii) outline details of the type, content, venue and duration of the course to be attended in the written notice provided in accordance with clause 9.7(g)(i).

(h) The employer will consider a request for leave in accordance with this clause having regard to:

(i) the operational requirements of the employer; and

(ii) the capacity of the employer to make adequate staffing arrangements among current employees during the proposed period of leave.

(i) An employer must not unreasonably refuse to agree to a request by the employee to take dispute resolution training leave.

(j) An employer will not be liable for any additional expenses associated with an employee's attendance at a course other than the payment of ordinary hourly ordinary time rate for such absence.

(k) An eligible employee will be required to provide the employer with proof of attendance at, and satisfactory completion of, the course to qualify for payment of leave.

(l) Leave granted pursuant to this clause counts as service for all purposes of this award.

2. By inserting clause 10.5(d) as follows:

(d) A casual employee must be engaged and paid for at least 2 consecutive hours of work on each occasion they are required to attend work.

3. By deleting clause 11 and inserting the following:

11. Termination of employment

Note: The NES sets out requirements for notice of termination by an employer. See ss.117 and 123 of the Act.

11.1 Notice of termination by an employee

(a) This clause applies to all employees except those identified in ss.123(1) and 123(3) of the Act.

(b) An employee must give the employer notice of termination in accordance with Table 1—Period of notice of at least the period specified in column 2 according to the period of continuous service of the employee specified in column 1.

Table 1—Period of notice

Note: The notice of termination required to be given by an employee is the same as that required of an employer except that the employee does not have to give additional notice based on the age of the employee.

(c) In paragraph (b) continuous service has the same meaning as in s.117 of the Act.

(d) If an employee who is at least 18 years old does not give the period of notice required under paragraph (b), then the employer may deduct from wages due to the employee under this award an amount that is no more than one week’s wages for the employee.

(e) If the employer has agreed to a shorter period of notice than that required under paragraph (b), then no deduction can be made under paragraph (d).

(f) Any deduction made under paragraph (d) must not be unreasonable in the circumstances.

11.2 Job search entitlement

(a) Where an employer has given notice of termination to an employee, the employee must be allowed time off without loss of pay of up to one day for the purpose of seeking other employment.

(b) The time off under clause 11.2(a) is to be taken at times that are convenient to the employee after consultation with the employer.

4. By inserting after clause 14.3 (f) the following:

(g) Where an apprentice is required to attend block release training for training identified in or associated with their training contract, and such training requires an overnight stay, the employer must pay for the excess reasonable travel costs incurred by the apprentice in the course of travelling to and from such training. Provided that this clause will not apply where the apprentice could attend an alternative Registered Training Organisation (RTO) and the use of the more distant RTO is not agreed between the employer and the apprentice.

(h) For the purposes of 14.3 (g) above, excess reasonable travel costs include the total costs of reasonable transportation (including transportation of tools where required), accommodation costs incurred while travelling (where necessary) and reasonable expenses incurred while travelling, including meals, which exceed those incurred in travelling to and from work. For the purposes of this subclause, excess travel costs do not include payment for travelling time or expenses incurred while not travelling to and from block release training.

(i) The amount payable by an employer under 14.3 (g) may be reduced by an amount the apprentice is eligible to receive for travel costs to attend block release training under a Government apprentice assistance scheme. This will only apply if an apprentice has either received such assistance or their employer has advised them in writing of the availability of such assistance.

(j) All training fees charged by an RTO for prescribed courses and the cost of all prescribed textbooks (excluding those textbooks which are available in the employer’s technical library) for the apprenticeship , which are paid by an apprentice, shall be reimbursed by the employer within six months of the commencement of the apprenticeship or the relevant stage of the apprenticeship, or within three months of the commencement of the training provided by the RTO, whichever is the later, unless there is unsatisfactory progress.

(k) An employer may meet its obligations under 14.3 (j) by paying any fees and/or cost of textbooks directly to the RTO.

(l) An apprentice is entitled to be released from work without loss of continuity of employment and to payment of the appropriate wages to attend any training and assessment specified in, or associated with, the training contract.

(m) Time spent by an apprentice in attending any training and/or assessment specified in, or associated with, the training contract is to be regarded as time worked for the employer for the purposes of calculating the apprentice’s wages and determining the apprentice’s employment conditions. This subclause operates subject to the provisions of Schedule C – School-based Apprentices.

(n) No apprentice will, except in an emergency, work or be required to work overtime or shiftwork at times which would prevent their attendance at training consistent with their training contract.

5. By deleting clause 22.3 and inserting the following:

22.3 Time off instead of payment for overtime

(a) An employee and employer may agree in writing to the employee taking time off instead of being paid for a particular amount of overtime that has been worked by the employee.

(b) Any amount of overtime that has been worked by an employee in a particular pay period and that is to be taken as time off instead of the employee being paid for it must be the subject of a separate agreement under clause 22.3.

(c) An agreement must state each of the following:

(i) the number of overtime hours to which it applies and when those hours were worked;

(ii) that the employer and employee agree that the employee may take time off instead of being paid for the overtime;

(iii) that, if the employee requests at any time, the employer must pay the employee, for overtime covered by the agreement but not taken as time off, at the overtime rate applicable to the overtime when worked;

(iv) that any payment mentioned in subparagraph (iii) must be made in the next pay period following the request.

Note: An example of the type of agreement required by this clause is set out at Schedule F. There is no requirement to use the form of agreement set out at Schedule F. An agreement under clause 22.3 can also be made by an exchange of emails between the employee and employer, or by other electronic means.

(d) The period of time off that an employee is entitled to take is the same as the number of overtime hours worked.

EXAMPLE: By making an agreement under clause 22.3 an employee who worked 2 overtime hours is entitled to 2 hours’ time off.

(e) Time off must be taken:

(i) within the period of 6 months after the overtime is worked; and

(ii) at a time or times within that period of 6 months agreed by the employee and employer.

(f) If the employee requests at any time, to be paid for overtime covered by an agreement under clause 22.3 but not taken as time off, the employer must pay the employee for the overtime, in the next pay period following the request, at the overtime rate applicable to the overtime when worked.

(g) If time off for overtime that has been worked is not taken within the period of 6 months mentioned in paragraph (e), the employer must pay the employee for the overtime, in the next pay period following those 6 months, at the overtime rate applicable to the overtime when worked.

(h) The employer must keep a copy of any agreement under clause 22.3 as an employee record.

(i) An employer must not exert undue influence or undue pressure on an employee in relation to a decision by the employee to make, or not make, an agreement to take time off instead of payment for overtime.

(j) An employee may, under section 65 of the Act, request to take time off, at a time or times specified in the request or to be subsequently agreed by the employer and the employee, instead of being paid for overtime worked by the employee. If the employer agrees to the request then clause 22.3 will apply, including the requirement for separate written agreements under paragraph (b) for overtime that has been worked.

Note: If an employee makes a request under section 65 of the Act for a change in working arrangements, the employer may only refuse that request on reasonable business grounds (see section 65(5) of the Act).

(k) If, on the termination of the employee’s employment, time off for overtime worked by the employee to which clause 22.3 applies has not been taken, the employer must pay the employee for the overtime at the overtime rate applicable to the overtime when worked.

Note: Under section 345(1) of the Act a person must not knowingly or recklessly make a false or misleading representation about the workplace rights of another person under clause 22.3.

6. By inserting clause 22A as follows:

22A. Requests for flexible working arrangements

22A.1 Employee may request change in working arrangements

Clause 22A applies where an employee has made a request for a change in working arrangements under section 65 of the Act.

NOTE 1: Section 65 of the Act provides for certain employees to request a change in their working arrangements because of their circumstances, as set out in section 65(1A). Clause 22A supplements or deals with matters incidental to the NES provisions.

NOTE 2: An employer may only refuse a section 65 request for a change in working arrangements on ‘reasonable business grounds’ (see section 65(5) and (5A)).

NOTE 3: Clause 6 is an addition to section 65.

22A.2 Responding to the request

Before responding to a request made under section 65, the employer must discuss the request with the employee and genuinely try to reach agreement on a change in working arrangements that will reasonably accommodate the employee’s circumstances having regard to:

(a) the needs of the employee arising from their circumstances;

(b) the consequences for the employee if changes in working arrangements are not made; and

(c) any reasonable business grounds for refusing the request.

NOTE 1: The employer must give the employee a written response to an employee’s section 65 request within 21 days, stating whether the employer grants or refuses the request (section 65(4)).

NOTE 2: If the employer refuses the request, then the written response must include details of the reasons for the refusal (section 65(6)).

22A.3 What the written response must include if the employer refuses the request

(a) Clause 22A.3 applies if the employer refuses the request and has not reached an agreement with the employee under clause 22A.2.

(b) The written response under section 65(4) must include details of the reasons for the refusal, including the business ground or grounds for the refusal and how the ground or grounds apply.

(c) If the employer and employee could not agree on a change in working arrangements under clause 22A.2, then the written response under section 65(4) must:

(i) state whether or not there are any changes in working arrangements that the employer can offer the employee so as to better accommodate the employee’s circumstances; and

(ii) if the employer can offer the employee such changes in working arrangements, set out those changes in working arrangements.

22A.4 What the written response must include if a different change in working arrangements is agreed

If the employer and the employee reached an agreement under clause 22A.2 on a change in working arrangements that differs from that initially requested by the employee, then the employer must provide the employee with a written response to their request setting out the agreed change(s) in working arrangements.

22A.5 Dispute resolution

Disputes about whether the employer has discussed the request with the employee and responded to the request in the way required by clause 22A, can be dealt with under clause 9—Dispute resolution.

7. By deleting clause 23.6 and inserting the following:

23.6 Annual leave in advance

(a) An employer and employee may agree in writing to the employee taking a period of paid annual leave before the employee has accrued an entitlement to the leave.

(b) An agreement must:

(i) state the amount of leave to be taken in advance and the date on which the leave is to commence; and

(ii) be signed by the employer and employee and, if the employee is under 18 years of age, by the employee’s parent or guardian.

Note: An example of the type of agreement required by clause 23.6 is set out at Schedule G. There is no requirement to use the form of agreement set out at Schedule G.

(c) The employer must keep a copy of any agreement under clause 23.6 as an employee record.

(d) If, on the termination of the employee’s employment, the employee has not accrued an entitlement to all of a period of paid annual leave already taken in accordance with an agreement under clause 23.6, the employer may deduct from any money due to the employee on termination an amount equal to the amount that was paid to the employee in respect of any part of the period of annual leave taken in advance to which an entitlement has not been accrued.

8. By inserting Schedule F as follows:

Schedule F—Agreement for time off instead of payment for overtime

Name of employee: _____________________________________________

Name of employer: _____________________________________________

The employer and employee agree that the employee may take time off instead of being paid for the following amount of overtime that has been worked by the employee:

Date and time overtime started: ___/___/20___ ____ am/pm

Date and time overtime ended: ___/___/20___ ____ am/pm

Amount of overtime worked: _______ hours and ______ minutes

The employer and employee further agree that, if requested by the employee at any time, the employer must pay the employee for overtime covered by this agreement but not taken as time off. Payment must be made at the overtime rate applying to the overtime when worked and must be made in the next pay period following the request.

Signature of employee: ________________________________________

Date signed: ___/___/20___

Name of employer

representative: ________________________________________

Signature of employer

representative: ________________________________________

Date signed: ___/___/20___

9. By inserting Schedule G—Agreement to Take Annual Leave in Advance as follows:

Schedule G—Agreement to Take Annual Leave in Advance

Name of employee: _____________________________________________

Name of employer: _____________________________________________

The employer and employee agree that the employee will take a period of paid annual leave before the employee has accrued an entitlement to the leave:

The amount of leave to be taken in advance is: ____ hours/days

The leave in advance will commence on: ___/___/20___

Signature of employee: _____________________________

___________

Date signed: ___/___/20___

Name of employer

representative: ________________________________________

Signature of employer

representative: ________________________________________

Date signed: ___/___/20___

[If the employee is under 18 years of age - include:]

I agree that:

if, on termination of the employee’s employment, the employee has not accrued an entitlement to all of a period of paid annual leave already taken under this agreement, then the employer may deduct from any money due to the employee on termination an amount equal to the amount that was paid to the employee in respect of any part of the period of annual leave taken in advance to which an entitlement has not been accrued.

Name of parent/guardian: ________________________________________

Signature of parent/guardian: ________________________________________

Date signed: ___/___/20___

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

B. This determination comes into operation from X May 2021. In accordance with s.165(3) of the Fair Work Act 2009 this determination does not take effect until the start of the first full pay period on or after X May 2021.

PRESIDENT

 1   Transcript 7 July 2021 at PN6