[2021] FWCFB 4679


Fair Work Act 2009
s.157—Application to vary or revoke a modern award

Restaurant & Catering Industrial




Industrial relations reform working groups – award flexibility – exemption rates – classification structures – substitute allowance – Restaurant Industry Award 2020 – application received – determinations issued.

[1] On 23 April 2021, Restaurant and Catering Industrial (RCI) made an application to vary the Restaurant Industry Award 2020 (the Restaurant Award). The background to the application was set out in a statement 1 published on 3 June 2021 (the June statement).

[2] The application sought to insert two new schedules into the Restaurant Award, Schedule R and Schedule AA. The schedules were proposed in order to assist employers and employees to recover from the COVID-19 pandemic.

[3] The proposed Schedule R included:

  access to a simplified classification structure (which is set out in Schedule AA)

  a ‘substitute’ allowance in substitution for certain work and expense related allowances, and

  exemption rates.

[4] In the June statement, we set out our provisional view that the Award be varied in the terms set out in the draft determination at Attachment A to that statement. Interested parties were directed to file submissions and evidence in response to our provisional view.

[5] On 5 July 2021, we issued a statement 2 (the July statement) inviting comments on the updated information notes prepared by the Commission regarding the COVID-19 situation and the Accommodation and food services industry. We also confirmed that given no specific request for an oral hearing had been received, we would proceed to determine the matter on the papers.

[6] Following correspondence and submissions received from NSW Business Chamber and Australian Business Industrial, the United Workers’ Union and RCI in accordance with the directions of the June and July statements, on 14 July 2021 we issued a decision. 3

[7] In our decision, we proposed to vary the Restaurant Award by inserting Schedule R and Schedule AA as set out in the amended draft determination attached to that decision. We stated that we were satisfied that the variation of the Restaurant Award in the terms of the amended draft determination was necessary to achieve the modern awards objective.

[8] We also confirmed our provisional view expressed in the June statement that Schedule R will operate for an initial period of 12 months. We stated that both Schedule R and Schedule AA will operate from 11 August 2021 until 10 August 2022.

[9] A second draft determination was also attached to our decision, varying the wage rates and the substitute allowance contained in Schedule R in order to ensure they are in line with increase determined in the 2020-21 Annual Wage Review decision. We stated this determination will come into operation on 1 November 2021.

[10] Interested parties were given 7 days to comment on the draft determinations attached to the decision. In correspondence to the Commission, RCI and United Workers’ Union both confirmed they had no comment to make. 4

[11] In accordance with our decision, two determinations varying the Restaurant Award as per the draft determinations will be issued with this statement.


Printed by authority of the Commonwealth Government Printer


 1   [2021] FWCFB 3222

 2   [2021] FWCFB 3876

 3   [2021] FWCFB 4149

 4   Correspondence from RCI, and United Workers’ Union, 22 July 2021.