[2022] FWC 1989
FAIR WORK COMMISSION

STATEMENT

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

Review of certain C14 rates in modern awards
(C2019/5259)

JUSTICE ROSS, PRESIDENT

MELBOURNE, 27 JULY 2022

Review of the classification rates at the C14 rate in modern awards – introductory rates – further steps at Commission’s initiative – matter listed for conference.

[1] This statement concerns the review of modern awards which have classification rates at the C14 rate which are either not transitional rates or where the transition period is not specified. The C14 rate is equivalent to the National Minimum Wage (NMW) rate.

[2] The review has arisen following a statement issued on 28 August 2019 1 (the August 2019 Statement). The August 2019 Statement referred to an extract from the 2018-19 AWR decision2 which noted that 45 modern awards included a rate of pay at the C14 rate. The NMW is currently $812.60 per week or $21.38 per hour.3

[3] In the August 2019 Statement the 45 modern awards were divided into 5 categories including:

  those in which the C14 classification appeared to be transitional, but no particular transition period was specified (category iv), and

  those in which the C14 classification level was not a transitional level (category v).

[4] In the August 2019 Statement I expressed the provisional view that the modern awards in categories (iv) and (v) be referred to a Full Bench for review. In such a review the Full Bench would consider whether the C14 classifications in each of these awards provides a fair and relevant safety net of terms and conditions. Parties were invited to comment on the provisional view and the accuracy of the list of awards.

[5] The relevant awards are set out below:

Category (iv)

  Cement, Lime and Quarrying Award 2020 4

  Concrete Products Award 2020

  Meat Industry Award 2020

  Oil Refining and Manufacturing Award 2020

  Port Authorities Award 2020

  Rail Industry Award 2020

  Stevedoring Industry Award 2020

Category (v)

  Air Pilots Award 2020

  Broadcasting, Recorded Entertainment and Cinemas Award 2020

  Dry Cleaning and Laundry Industry Award 2020

  Funeral Industry Award 2020

  Sugar Industry Award 2020

  Travelling Shows Award 2020

[6] I note that the modern awards listed at [3] have been extensively varied since the August 2019 Statement, including as part of the 4 yearly review of modern awards, however the terms of the awards relevant to this review remain substantively unchanged. A description and extract of each relevant classification is set out in Attachment A.

[7] A number of unions and employer groups filed submissions in response to the August 2019 Statement.

[8] The MEAA indicated it would not be seeking to vary the Broadcasting, Recorded Entertainment and Cinemas Award 2010 on the basis that the award did not have employee classifications at the Grade 1 (C14) level. 5 In these circumstances, it is my provisional view that the references to the Grade 1 classification in the Broadcasting Award are obsolete and should be deleted. It is my provisional view that the removal of the references to the Grade 1 classification is necessary to meet the modern awards objective.

[9] The CFMMEU – MUA Division indicated that it would not be seeking to vary the Port Authorities Award 2010 or the Stevedoring Industry Award 2010 on the basis that the awards were ‘in sufficient terms.’ It is my provisional view that these 2 awards will not be reviewed further as part of this matter.

[10] A Statement was subsequently issued on 2 December 2019 (the December 2019 Statement) inviting the unions to make applications to vary the remaining awards in the manner they proposed, however no applications or requests for assistance were received by the Commission.

[11] The December 2019 Statement also noted that the ACTU intended to provide a written request for the Commission to obtain certain statistical information from the Australian Bureau of Statistics (ABS) Survey of Employee Earnings and Hours (EEH) as to the number of award reliant employees in receipt of C14 level wages in the modern awards which were to be the subject of the union applications.

[12] The ACTU submitted its request in correspondence dated 19 December 2019.

[13] The request sought an analysis of unpublished microdata from the ABS EEH survey.

[14] In its correspondence, the ACTU also commented that the form of the queries in the request may need some revision based on feedback from the ABS.

[15] The Commission agreed to correspond with the ABS and requested that the ABS clarify:

  whether the ACTU’s treatment of casual loading is appropriate; and

  if a finer level of data can be analysed using data collected in the EEH survey but not available as part of the microdata.

[16] The ABS responded to the Commission that:

  it considers the treatment of casual loading a reasonable approach in identifying and adjusting for employees that receive casual loading; and

  it does not consider the data requested suitable for release.

[17] A copy of the ABS’ response was annexed to a further Statement issued on 10 December 2020 6 (the December 2020 Statement).

[18] Since this correspondence, the ABS has published the 2021 EEH survey data. In June 2022, the ABS published microdata which includes information about modern awards for the first time. The microdata is available on the ABS website. Parties may wish to access the microdata to assist with the review of C14 rates.

[19] In the December 2020 Statement the Commission said that it did not propose to take any further steps in relation to the issue of the abovementioned C14 (or NMW) rates on its own initiative at the time, but the offer of assistance to facilitate discussions remained open.

[20] No applications or requests for assistance have been received since the December 2020 Statement was issued. However, now that the 4 yearly review of modern awards is largely complete, I have decided that the C14 rates in the following awards will be reviewed on the Commission’s own motion:

  Cement, Lime and Quarrying Award 2020

  Concrete Products Award 2020

  Meat Industry Award 2020

  Oil Refining and Manufacturing Award 2020

  Rail Industry Award 2020

  Air Pilots Award 2020

  Dry Cleaning and Laundry Industry Award 2020

  Funeral Industry Award 2020

  Sugar Industry Award 2020

  Travelling Shows Award 2020

[21] The matter will be listed for conference before Commissioner Hampton to discuss:

  the programming of the review, and

  the provisional views at [8] and [9].

[22] A notice of listing will be issued shortly.

[23] I anticipate that the Commissioner will subsequently provide a Report to a Full Bench on this matter.

PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR744244>

Attachment A

     

Award

 

Classification

 

Description

 

Extract

Category (iv) awards

Cement, Lime and Quarrying Award 2020

 

Cement and lime industry, Level 1

 

A Level 1 employee is paid at the NMW (cl. 16.1). Schedule A.1.1 describes a Level 1 employee as ‘entry level’ and ‘undertaking Basic competency training’

 

A.1.1 Level 1

A Level 1 employee is an entry level employee without the necessary competency to be classified in Levels 2 to 6 undertaking Basic competency training.

Quarrying industry, Grade 1

 

A Grade 1 employee is paid at the NMW (cl. 16.2) Schedule B.1.1 describes a Grade 1 employee as ‘undertaking Basic competency training’

 

B.1.1 Grade 1

A Grade 1 employee is an employee who is undertaking training to become competent in the Basic Quarry competency.

Concrete Products Award 2020

 

Level 1

 

A Level 1 employee is paid at the NMW (cl. 16.2). Schedule A.1.1 refers to ‘undertaking the employer’s induction programme’

 

A.1 Level 1

A.1.1 Undertaking the employer’s induction programme which may include information on the enterprise, conditions of employment, introduction to supervisors and fellow employees, training and career path opportunities, plant layout, work and documentation procedures, work health and safety and quality assurance.

A.1.2 Employees at this level perform routine duties essentially of a manual nature and to the level of their training;

    (a) perform general labouring and cleaning duties;

    (b) exercise minimal judgment;

    (c) work under direct supervision;

    (d) may undertake structured training so as to enable them to work at level 2; and

    (e) within the limitations of the skill levels as defined employees will be expected to be responsible for the quality of their own work.

A.1.3 Classification descriptors

  • Operator of concrete mixing machine with a rated capacity in excess of 0.4 cubic metres (1/2 cubic yard approximately)
  • Automatic tile/ridge machine operator
    Maker by hand of tiles, ridges, apexes and starters
  • Pipe machine operator
  • Employee making pipe specials, i.e. concreting junctions, splays or other articles including the use of cortex and who may be required to work from plans and/or specifications
  • Moulder special, employed working from plans and specifications
  • Pre-stressed concrete—steel stressing operator
  • Automatic block/brick machine operator
  • Off-bearer operator
  • Operator bending, cutting and/or fixing bars, rods or reinforcement working from plans
  • Exposed aggregate maker-finisher (includes control of washing off of wet concrete surfaces)
  • Coating machine operator

Meat Industry Award 2020

 

MI 1

 

An MI 1 employee is paid at the NMW (cl. 16.1). Schedule A.3.1 refers to an employee at this level ‘undergoing on-the-job training for an initial period of at least 3 months’

 

A.3.1 Meat Industry Level 1

An employee at this level will be a person with no experience in the industry undergoing on-the-job training for an initial period of at least 3 months.

Oil Refining and Manufacturing Award 2020

 

Lubricants/

bitumen plants and terminals, Trainee (level 1)

 

A Lubricants/bitumen plants and terminals trainee (level 1) is paid at the NMW (cl. 16.1). Schedule A.1.4 describes this as an employee undergoing the necessary orientation and training to enable safe and efficient performance as an operator

 

A.1.4 Lubricants/bitumen plants and terminals

Trainee (level 1) … A trainee plant and terminal operator is an employee undergoing the necessary orientation and training to enable safe and efficient performance as an operator.

Port Authorities Award 2020

 

Level 1

 

A Level 1 employee is paid at the NMW (cl. 15.1). Schedule A.1 describes an employee at this level as having ‘completed induction’

 

A.1 Level 1

o Completed induction
o Works under detailed instruction
o Basic civil/maintenance work, mooring deckhand, cleaning wharves and sheds
o Operating small plant, fork lifts (up to 10,000 kg), bob cats, sweepers, line markers

Rail Industry Award 2020

 

Operations (Op), Level 1 Rail Worker

 

An Operations (Op) Level 1 Rail Worker is paid at the NMW (cl. 15.1). Schedule A states that employees at this level ‘undertake and successfully complete standard induction training’

 

Schedule A—Classification Definitions

Operations Classifications

1 … Employees at this level undertake and successfully complete standard induction training and will be required to:

o Be responsible for personal safety and use the protective equipment provided to perform work safely.
o Undertake a range of functions with a basic knowledge of policies, procedures and guidelines using a sound level of skill to perform the functions.
o Perform routine customer service, presentation and operations duties requiring minimal judgment.
o Undertake tasks with direct supervision and guidance.

Stevedoring Industry Award 2020

 

Grade 1

 

A Grade 1 employee is paid at the NMW (cl. 16.1). Schedule A.1 describes an employee at this level as someone ‘who is undergoing induction and initial training prior to appointment as a stevedoring employee Grade 2’

 

A.1 Grade 1

A Grade 1 employee is an employee who is undergoing induction and initial training prior to appointment as a stevedoring employee Grade 2.

Category (v) awards

Air Pilots Award 2020

 

Single engine UTBN 1360 kg, First Officers and Second Pilots

 

First Officers and Second Pilots of Single engine UTBNI 1360 kg are paid at the NMW (Schedule A.1.1). It is noted that there are additions to salary in A.1.3 and A.1.4 which may mean that employees receive an amount greater than the NMW.

 

No description

Single engine 1360 kg-3359 kg, First Officers and Second Pilots

 

First Officers and Second Pilots of Single engine 1360 kg-3359 kg are paid at the NMW (Schedule A.1.1). It is noted that there are additions to salary in A.1.3 and A.1.4 which may mean that employees receive an amount greater than the NMW.

 

No description

Aerial application pilot, 0-1000 flying hours experience in the industry

 

An Aerial application pilot with less than 1000 hours of flying experience is also paid at the NMW (Schedule C.9.1). It is noted that there are additions to salary in C.9.5 which may mean that employees receive an amount greater than the NMW.

 

C.1.1 Aerial application pilot means a pilot holding an agricultural or aerial application

rating issued by CASA but does not include an executive officer of the company.

Broadcasting, Recorded Entertainment and Cinemas Award 2020

 

Entertainment employee, Grade 1

 

A Grade 1 entertainment employee is paid at the NMW (cl. 13.3). Clause 13.2(a) suggests that there may not be any employees paid at the Grade 1 rate under the award.

 

No description

Dry Cleaning and Laundry Industry Award 2020

 

Dry cleaning employee, Level 1

 

A Dry cleaning employee Level 1 is paid at the NMW (cl. 18.1(a)

 

A.1 Dry cleaning employee Level 1

An employee who is below the level of a tradesperson dry cleaner and is not within Levels 2 to 4.

Funeral Industry Award 2020

 

Grade 1

 

A Grade 1 employee is paid at the NMW (cl. 15.1)

 

12.1 Grade 1

    (a) Funeral director’s assistant;

    (b) coffin draper; or

    (c) adult employee not mentioned elsewhere in any of Grades 2 to 6.

Sugar Industry Award 2020

 

C14/L2

 

The C14/L2-milling general operator is paid at the NMW (cl. 19.1).

 

B.1.1 Milling general operator—level 2 (C14)

    (a) An employee at this level is required to:

      (i) work under supervision;

      (ii) exercise decision making/responsibility within their level of skill and training;

      (iii) demonstrate awareness of general quality control standards in particular responsibility for their own work and advise of quality control problems where identified;

      (iv) assist with on-the-job training;

      (v) service and adjust equipment according to their level of skill and training and advise of any additional maintenance required;

      (vi) demonstrate general housekeeping skills; and

      (vii) demonstrate ability to use common language skills to engage in communication and to read and understand written and oral instructions plus prepare records that convey information accurately and concisely.

    (b) Indicative classifications would include, for example:

      (i) General mill worker

      (ii) Bagasse loftperson

      (iii) Bagasse reclaimer operator

      (iv) Carrier hand

      (v) Greaser

      (vi) Locomotive driver’s assistant

      (vii) Tram construction and maintenance worker

      (viii) Watchperson

      (ix) Bulk sugar loader

      (x) Malcolm Moore driver’s assistant

      (xi) Form setter’s assistant

BT1

 

The BT1 rate (cl 21.1) applies to ‘new starters’ who undertake a 3 month probation period

 

C.1 Bulk terminals employee level 1 (BT1)

    New starter—basic labouring duties. This is the level for a new terminal technician who undertakes a 3 month probation period whilst training and performing basic labouring duties.

Travelling Shows Award 2020

 

Grade 1

 

A Grade 1 employee is paid at the NMW (cl. 16.1)

 

12.2 Grade 1

An employee at this level is employed as a ride attendant and includes employees not otherwise classified. An employee at this level:

    (a) is responsible for the quality of their own work, subject to routine supervision;

    (b) works under routine supervision either individually or in a team environment;

    (c) performs tasks under general supervision, exercising limited discretion within defined procedures;

    (d) performs work which is subject to final checking and, as required, progress checking;

    (e) is trained in, and applies, basic quality/service requirements relating to their own work and may be required to give general inquiry assistance to the customer;

    (f) has a good working knowledge of health and safety procedures;

    (g) may require basic technical skills to perform the work;

    (h) is engaged in the operation of rides, amusements, games, stalls or general labouring duties as directed; and

    (i) may carry out all work incidental, peripheral or necessary for the proper conduct of the business including driving a motor vehicle, painting and digging.

 1   [2019] FWC 5863.

 2   [2019] FWCFB 3500.

 3   Increases to minimum wages following the 2021-22 AWR will be applicable from 1 October 2022 for modern awards in the aviation, tourism and hospitality sectors including the Air Pilots Award 2020.

 4   The Cement and Lime Award 2010 has been amalgamated with the Quarrying Award 2010 to become the Cement, Lime

and Quarrying Award 2020.

 5   Transcript 29 November 2019 at [66].

 6   [2020] FWC 6647.