| [2021] FWCFB 858 |
| 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, 18 FEBRUARY 2021 |
4 yearly review of modern awards – plain language project – Fast Food Industry Award and Hair and Beauty Industry Award
[1] A Statement 1 published on 28 October 2020 (the October 2020 Statement) 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). Plain language exposure drafts (PLEDs) of the Fast Food Award and the Hair and Beauty Award were also published at that time.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 summary of submissions for each award and a Statement3 was published on 21 January 2021.
[5] Conferences, in respect of both the Fast Food Award and the Hair and Beauty Award were held on 12 February 2021. The transcript of those Conferences is available here and here.
[6] At the 12 February 2021 Conference the parties did not seek to make any corrections to the summary of submissions document published on 21 January 2021.
[7] At [4] of the January 2021 Statement the Full Bench expressed the provisional view that a number of minor amendments be made to the Fast Food PLED to correct errors identified by the parties in their submissions. No party opposed our provisional view. We confirm our provisional view and will amend the Fast Food PLED accordingly.
[8] At the 12 February 2021 Conference Ai Group identified three other minor cross-referencing errors, as follows:
• Clause 21.1, Note 1 under Table 6 delete ‘clause 0’ and insert ‘clause 21.1’.
• Clause 22.3 (b)(i) at the end of the second dot point delete ‘clause 0’ and insert ‘clause 21.1’.
• Clause 22.3(b)(ii) at the end of the second dot point delete ‘clause 0’ and insert ‘clause 21.1’.
[9] No party opposed the corrections proposed by Ai Group. We will amend the Fast Food PLED accordingly.
[10] The submissions filed raise a number of issues for determination, these issues are summarised at [6] of the January 2021 Statement. The agenda published prior to the 12 February 2021 Conference identified proposed resolutions to a number of the items in contention. The items concerned and the proposed resolutions are set out at Attachment A.
[11] Subject to three exceptions, no party at the Conference took issue with the proposed resolutions. The exceptions are in respect of items 4, 13 and 35. The SDA sought an opportunity to make further submissions in respect of these items. Such submissions may be made in accordance with the directions set out below. In respect of the other items we will adopt the proposed solutions and will amend the Fast Food PLED accordingly.
[12] In relation to the more contentious outstanding issues the parties sought an opportunity to file further written submissions in respect of the following items: 10, 11, 12, 15, 17, 18, 19, 20, 21, 22, 25, 30, 39, 40, 50, 51, 52, 53, 54 and 55.
[13] Parties are to file further written submissions in respect of these items by 4:00pm AEDT on Friday 26 February 2021.
[14] Submissions in reply are to be filed by 4:00pm AEDT on Friday 12 March 2021.
[15] The remaining items will be determined on the basis of the submissions which have already been filed. These items are: 2, 28, 31, 33, 37-38 and 45.
[16] All outstanding issues will be determined on the basis of the submissions filed.
[17] At the 12 February 2021 Conference the parties did not seek to make any corrections to the summary of submissions document published on 21 January 2021.
[18] At [4] of the January 2021 Statement the Full Bench expressed the provisional view that a number of minor amendments be made to the Hair and Beauty PLED to correct errors identified by the parties in their submissions. No party opposed our provisional view. We confirm our provisional view and will amend the Hair and Beauty PLED accordingly.
[19] The submissions filed raise a number of issues for determination, these issues are summarised at [6] of the January 2021 Statement. The agenda published prior to the 12 February 2021 Conference identified proposed resolutions to a number of the items in contention. The items concerned and the proposed resolutions are set out at Attachment B.
[20] No party at the Conference took issue with the proposed resolutions. Accordingly we will adopt the proposed solutions and will amend the Hair and Beauty PLED accordingly. We also note that during the course of the Conference the AWU withdrew its objection to the amendment proposed by Ai Group at item 34. We will amend the Hair and Beauty PLED in the manner proposed by Ai Group.
[21] In relation to the more contentious outstanding issues the parties sought an opportunity to file further written submissions in respect of the following items: 8, 15, 16, 20, 22, 28, 29, 30, 32, 33, 38, 40, 47, 49, 50, 54, 55, 56 and 59.
[22] Parties are to file further written submissions in respect of these items by 4:00pm AEDT on Friday 5 March 2021.
[23] Submissions in reply are to be filed by 4:00pm AEDT on Friday 19 March 2021.
[24] The remaining items will be determined on the basis of the submissions which have already been filed. These items are: 9, 10, 23, 25, 26, 27, 41, 43, 46, 58, 61, 63, 64, 65 and 66.
[25] All outstanding issues will be determined on the basis of the submissions filed.
[26] Parties are to file submissions in accordance with the directions set out at [13] – [14] and [22] – [23].
[27] Revised PLEDs for both Awards will be published with this Statement and will incorporate the changes as set out above.
PRESIDENT
Printed by authority of the Commonwealth Government Printer
<PR727072>
Attachment A – Fast Food Award – List of proposed resolutions
Item Ref |
Description and PLED clause number |
Proposed resolution |
Item 1 |
Definitions - (clause 2) • SDA note the words ‘unless the contrary intention appear’ have been deleted in the PLED |
Standard wording across all PLEDs has been adopted. No change necessary |
Item 3 |
Definitions - default fund employee (clause 2) • SDA objects to the deletion of ‘default fund employee’
|
If a term in the current award is defined but not used anywhere in the award, the definition has been deleted. No change necessary. |
Item 5 |
The National Employment Standards and this award (clause 3.4) • SDA objects to the deletion of the words ‘whichever makes them more accessible’
|
Standard approach across all awards Matter dealt with in [2014] FWCFB 9412 at para [29]. No change necessary. |
Item 6 |
Coverage – ‘fast food industry’ definition (clause 4.2) • SDA objects to location of ‘fast food industry’ definition within the coverage clause. Submits definition be located in the definitions clause and referred to by reference in cl. 4.2 |
PLED updated: Definition of industry moved to clause 4 and a reference definition inserted into clause 2 |
Item 7 |
Coverage: (clause 4.2(a)) • Ai Group objects to replacing the words ‘meals’ and ‘snacks’ with ‘food’ due to concerns about altering the meaning of the coverage clause.
|
Propose amending PLED clause 4.2(a) to: ‘ |
Item 8 |
Coverage – ‘fast food industry’ definition (clause 4.2(b)) • Ai Group objects to replacing the words ‘take away foods’ with ‘food’ due to concern it broadens the scope of the fast food industry and expands the coverage of the award.
|
Propose amending PLED clause 4.2(b) to: (b) ‘ |
Item 9 |
Coverage – ‘fast food industry’ definition (clause 4.2) • Ai Group objects that the words ‘inside the catering establishment’ have not been retained in PLED cl. 4.2(c) due to concerns their deletion may alter the coverage of the award.
|
Propose amending PLED clause 4.2(c) to: (c) ‘food or beverages sold or served in food courts, shopping centres or retail complexes, excluding coffee shops, cafes, bars and restaurants that primarily provide a sit-down service inside the catering establishment.’ |
Item 16 |
Part-time employees – (clause 10) • SDA objects that current award clause 12.8 is not retained in the PLED. |
Current award clause 12.8 is located at PLED clause 11.2 (casual employees). No change necessary |
Item 23 |
Classification definitions (clause 12.4(a)(i)) • Ai G submits that the word ‘food’ in PLED cl. 12.4(a)(i) should be replaced with ‘meals, snacks’ (see item 7) |
Propose to amend this in line with Item 7 |
Item 24 |
Classification definitions (clause 12.4(a)(i)) • Ai G objects to using the phrase ‘food or beverages’ in PLED cl. 12.4(a)(i) rather than ‘food and/or beverages’ because read literally it excludes employees undertaking the relevant activities in relation to both food and beverages. Submits ‘or’ should be replaced with ‘and/or’ |
Propose to replace the word ‘or’ with ‘and/or’ |
Item 26 |
Classification definitions (clause 12.4(a)(i)) • Ai Group submits that PLED cl. 12.4(a)(i) defines a level 1 employee more expansively than the FFIA does and introduces new undefined and unclear terminology such as the reference to ‘retail complex’. Submits ‘retail complex should be deleted’. |
Propose to amend 12.4(a)(i) of the PLED as follows: (i) Engaged in taking orders for … consumption away from the point of sale or in a food court in a shopping centre |
Item 27 |
Classification definitions (clause 12.4(b)(i)) • Ai Group submits that the first ‘or’ in PLED cl. 12.4(b)(i) should be replaced with ‘and/or’.
|
Propose to replace the word ‘or’ with ‘and/or’ |
Item 32 |
Adult rates (clause 15.1) • SDA submits that including the following note linking the hourly rate to the minimum weekly rate would add clarity: ‘The minimum hourly rate is 1/38th of the minimum weekly rate’ • Ai Group not opposed |
Propose inserting the following note as Note 1 and renumbering existing notes as Note 2 and Note 3: Note 1: ‘The minimum hourly rate is 1/38th of the minimum weekly rate’ |
Item 36 |
Cold work allowance (clause 17.3) • SDA suggests including a note showing the quantum as a percentage
|
Standard approach across all awards: percentages moved from allowances clause to Monetary Allowances Schedule No change necessary |
Item 41 |
Transport of employee reimbursement (clause 17.7(b) • Ai Group Submits that the words following the comma should appear in a separate line below PLED cl. 17.7(b)(ii). They are to be read with cl. 17.2(b)(i) - 17.2(b)(ii).
|
Propose the following amendment: ‘The employer must reimburse the employee, as applicable, for any cost they reasonably incur in taking a commercial passenger vehicle: (i) from their usual place of residence to their place of work; or (ii) from their place of work to their usual place of residence |
Item 43 |
Accident pay (clause 18) • SDA objects to the definition for injury at FFIA cl. 20.1(b) is not retained in the PLED cl.18.
|
Current award clause 20.1(b) is at PLED clause 18.2(c). No change necessary |
Item 48 |
Overtime rates: (clause 20.6) • Ai Group submits that PLED cl. 20.6 and Table 5 are not clear that each day stands alone when calculating overtime rates on Monday to Saturday.
|
Propose to add new clause 20.7 as follows (and renumber the clauses that follow accordingly): ‘The overtime rates prescribed in clause 20.6 for overtime work on Monday to Saturday are to be calculated on the basis that each day’s work stands alone.’ |
Item 58 |
Unpaid family and domestic violence leave (clause 26) • SDA objects to referring to the NES and the deleting of the family and domestic violence leave clause (FFIA cl. 32). |
Standard clause inserted into all modern awards. No change necessary |
Item 65 |
Expense-related allowances – clause B.2.1 • Ai Group submits that the references in PLED cl. B.2.1 to ‘per meal’ should be replaced with ‘per occasion’ because the allowance is not payable by reference to each meal consumed, rather the entitlement arises each occasion the relevant criteria are satisfied. |
Propose to replace all references to ‘per meal’ with ‘per occasion’ in clause B.2.1 |
Attachment B – Hair and Beauty Award – List of proposed resolutions
Item Ref |
Description and PLED clause number |
Proposed resolution |
Item 1 |
Definitions – apprentice (clause 2) • Ai Group objects to the definition of ‘apprentice’ due to concerns it is not appropriate and would also apply to trainees. Submits the definition should be deleted
|
Current award contains definition of ‘adult apprentice’ but not ‘apprentice’ Propose to remove the definition of apprentice |
Item 2 |
Definitions – minimum hourly rate (clause 2) • Ai Group submits omission of reference to the rates prescribed by cl. 18 makes the application of provisions regarding the ‘minimum hourly rate’ for apprentices, trainees and graduates unclear. Suggests inserting a reference to cl.18 in the definition.
|
Propose amending definition to read: “minimum hourly rate means the minimum hourly rate specified in clause 17 – Minimum rates or clause 18 – Apprentice, trainee and graduate rates, as applicable.” Note: this change should also be made at clause 24.3(a) (Annual leave loading). |
Item 4 |
Definitions – deletion of standard weekly rates (clause 3.4) • SDA objects to the deletion of the reference to the allowance in the PLED definition of ‘standard weekly rate.’
|
Reflects definition in Comparison of HABIA Current / ED No change necessary |
Item 5 |
The National Employment Standards and this award (clause 3.4) • SDA objects to the deletion of the words ‘whichever makes them more accessible’
|
Standard approach across all awards Matter dealt with in [2014] FWCFB 9412 at para [29]. No change necessary. |
Item 7 |
Coverage (clause 4.2(e)) • ABI Submits that the words ‘face or head massaging’ in PLED cl. 4.2(e) should constitute a separate provision as cl. 4.2(f).
|
Suggest adding new clause 4.2(f) as follows (and renumbering the clauses that follow accordingly): ‘(f) face or head massaging’ |
Item 11 |
Coverage (clause 4.6) • Ai G objects due to concerns about ambiguity. Submits replacing the words ‘the employee’ with ‘it’ make is unclear whether the provision requires an assessment of the environment in which the work is normally performed or the environment in which the work is normally performed by the employee.
|
Propose to revert to the current award wording as Ai Group suggest: “… the work performed by the employee and to the environment in which the employee normally performs the work.” |
Item 17 |
Part time employees (clause 10.6) • Ai Group objects that cl. 10.6 only refers to cl. 17. Submits the minimum rates payable to apprentices, trainees and graduates in cl. 18 should also be referenced. Alternative wording provided.
|
Propose PLED clause 10.6 be amended: ‘A part-time employee must be paid in accordance with clause 17—Minimum rates or clause 18—Apprentice, trainee and graduates, as applicable.’ |
Item 18 |
Casual employees (clause 11) • Ai G provides a suggested a clause outlining ordinary hours of work for casual employees to be inserted at PLED cl. 11.
|
Propose a new clause 11.3 be inserted as follows (and the clauses that follow be renumbered accordingly):
|
Item 19 |
Casual employees (clause 11.3(a)) • Ai Group objects that cl. 11.3(a) only refers to cl. 17. Submits the minimum rates payable to apprentices, trainees and graduates in cl. 18 should also be referenced.
|
Propose PLED clause 11.3(a) be amended as follows:
|
Item 24 |
Apprentices (clause 12.5) • SDA submits that the wording of HABIA cl.19.5(i) should be retained, particularly the phrase ‘…work or be required to work’. Objects to deletion of the word ‘work’ as italicised above.
|
Propose amending clause 12.5 in order to be consistent with current award clause 19.5(i), as follows: ‘Except in an emergency, an apprentice must not work or be required to work |
Item 36 |
Rostering – part time employees (clause 15.3(d)) • Ai G submits that a reference to cl.10.4 should be added to cl.15.3(d) to ensure that any subsequent agreement to change an employee’s hours of work is taken into account.
|
Propose amending clause 15.3(d) to: ‘An employer may change an employee’s roster, but not the number of hours agreed under clause 10.3 or as varied under clause 10.4…’ |
Item 42 |
Broken Hill allowance (clause 20.4) • SDA suggests including a note showing the quantum as a percentage |
Standard approach across all awards: percentages moved from allowances clause to Monetary Allowances Schedule No change proposed |
Item 44 |
Tool allowance (clause 20.8(a)) • AWU submits PLED cl. 20.8(a) should be amended to expressly state that the tool allowance is payable in relation to scissors and other cutting instruments.
|
Propose amending 20.8(a) as follows:
|
Item 45 |
Travelling time reimbursement (clause 20.9(a)) • SDA notes that the PLED restricts the reimbursement to full-time or part-time employees. Submits that the clause should begin with ‘If an employer requires an employee to work…’ in order to capture any employee who is required to work somewhere other than their usual place of work |
Current award clause 13.4 sets out provisions in the award that do not apply to casuals. Current award clause 21.5 (travelling time reimbursement) does not apply to casuals. The words ‘full-time or part-time’ were inserted to clarify that PLED clause 20.9(a) does not apply to casuals. |
Item 48 |
Transport of employee reimbursement (20.10(b)(ii)) • Ai G submits that the words whichever is applicable’ in cl.20.10(b)(ii) relate to cl.20.10(b)(i) and 20.10(b)(ii) and should therefore appear on a separate line below cl.20.10(b)(ii).
|
Propose to reword clause as follows:
(i)from their usual place of residence to their place of work; or (ii) from their place of work to their usual place of residence |
Item 52 |
Overtime rates (clause 22.5) • Ai G Submits that the reference to rostered days off in Table 16 should include a footnote referring to cl.23.2, otherwise it is not clear when those rates are payable.
|
Propose inserting a new Note 2 (and renumbering existing note 2 to note 3):
|
Item 53 |
Overtime rates (clause 22.5) • AWU submits that the wording of Note 1 is currently inaccurate because the Sunday and public holiday rates have not been calculated in the manner stated in the note.
|
Propose amending note to clarify, as follows: NOTE 1: The overtime rates for casual employees for Monday to Saturday have been calculated by adding the casual loading specified in clause 11.3(b) to the overtime rates for full-time and part-time employees specified in clause 22.5. |
Item 60 |
Temporary close-down (clause 24.4(b)) • SDA objects to PLED cl.24.4(b) and submits it should be deleted because it is not in the HABIA.
|
Propose to make no amendment. Current award clause 33.5 states: ‘33.5 Requirement to take leave notwithstanding terms of the NES An employer may require an employee to take annual leave by giving at least four weeks’ notice as part of a close-down of its operations.’ |
2 Plain Language Exposure Draft – Fast Food Award, 28 October 2020; Plain Language Exposure Draft – Hair and Beauty Award, 28 October 2020.