| [2022] FWCFB 197 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.158—Application to vary or revoke a modern award
Australian Municipal, Administrative, Clerical and Services Union - Victorian and Tasmanian Authorities and Services Branch
(AM2021/69)
Local government administration | |
DEPUTY PRESIDENT CLANCY |
MELBOURNE, 31 OCTOBER 2022 |
Application to vary the Victorian Local Government Award 2015 (state-reference public sector award) – minimum engagement for certain casual employees contested – award varied.
[1] This decision deals with an application under s.158 of the Fair Work Act 2009 (the Act) made by the Australian Municipal, Administrative, Clerical and Services Union - Victorian and Tasmanian Authorities and Services Branch (ASU) (hereinafter described as “the Application”) to vary the Victorian Local Government Award 2015 (VLGA). In particular, the issue that falls for determination is whether the VLGA should be varied to incorporate an entitlement for casual employees to be engaged and paid for a minimum of two consecutive hours of work on each occasion they are required to attend work.
[2] By way of background, the ASU made the Application on 16 June 2021 seeking to replicate a range of variations made to the Local Government Industry Award 2020 (Local Government Award) during the 4 yearly review of modern awards in the VLGA. On 16 July 2021, an earlier constituted Full Bench issued a statement 1 (July 2021 statement) attaching a draft determination containing the proposed variations. That Full Bench expressed the provisional view in the July 2021 statement that the VLGA be varied in the terms outlined in the draft determination on the basis that the variations were necessary to achieve the modern awards objective. If interested parties opposed the provisional view, they had the opportunity to file submissions to this effect.
[3] The Commission received two submissions in response to the July 2021 statement, one on behalf of 77 Victorian Councils and library corporations and the other from the City of Greater Geelong. The insertion of a 2-hour minimum engagement period for casuals was opposed but there was no opposition to any of the other proposed variations. Accordingly, that Full Bench decided to vary the VLGA in the same terms as the draft determination, save that the contested minimum engagement period for casual employees was excluded. A determination 2 varying the VLGA was issued with a Decision3 dated 23 August 2021 and those variations commenced operation from that date.
[4] This Full Bench was then constituted to deal with the contested minimum engagement period for casual employees, and a mention was held on 27 August 2021 to set a program ahead of a hearing. The ASU attended, together with a representative for the now 79 Victorian Councils and library corporations (the Councils). The ASU confirmed it continued to seek a 2-hour minimum engagement period for casual employees but also indicated it was prepared to enter into dialogue with the Councils in relation to their concerns, to explore whether a consent position was possible. The Councils also expressed a willingness to enter into such discussions, after having first conferred amongst themselves and settled upon the parameters of their negotiating position.
[5] An update in relation to the discussions and negotiations between the parties was provided at a conference held on 29 October 2021 and a Statement dated 24 November 2021 was subsequently issued. This included directions for the parties to file a joint report setting out both the matters in respect of which agreement had been reached and the areas of continuing disagreement, together with submissions, witness statements and any documentary evidence upon which they intended to rely at a hearing listed for 11 and 12 April 2022.
[6] The Joint Report subsequently submitted by the ASU and the Councils outlined the following:
“Areas of Agreement
1. The parties have agreed that the following roles ought to be excluded from the requirement for a 2-hour minimum engagement period for casual employees, having instead a 1 hour minimum engagement:
1.1. Swimming Instructors;
1.2. Fitness Instructors;
1.3. Personal Trainers; and
1.4. School Crossing Supervisors
2. The parties have reached provisional agreement on the category of Cleaners. The ASU have indicated that they will agree to an exclusion of Cleaners from the 2-hour minimum engagement, limited to clause 13.5(c)(i) of the Cleaning Services Award 2020, namely, where they are cleaning a location with a total area of no more than 300 square meters. The Councils will be able to provide confirmation of their position by 31 December 2021.
Areas of Disagreement
3. The Councils are seeking to have the following areas excluded from the 2-hour minimum casual engagement, which the ASU seeks to have covered by such minimum engagement:
3.1. Home Carers;
3.2. Arts and culture (arts programs, exhibitions, museums, art galleries, events, entertainment and theatres);
3.3. Livestock and saleyards;
3.4. Library shelvers/stackers;
3.5. Pound attendants;
3.6. Community drivers;
3.7. Childcare workers in playhouses;
3.8. Occasional childcare workers in leisure and aquatic Centres;
3.9. Youth Workers in social, community and disability services; and
3.10. Visitor Information Centres.” 4
[7] The ASU and the Councils therefore submit that there is a ‘consent position’ in relation to a one-hour minimum engagement for swimming instructors, fitness instructors, personal trainers and school crossing supervisors.
[8] Beyond the two groups of classifications outlined in the Joint Report, there is no objection raised to the variation proposed by the asu to provide for a two-hour minimum engagement for casual employees. We accept that the ASU and the Councils accept the variation is necessary to achieve the modern awards objective and the the State reference public sector modern awards objective for the balance of the classifications in the VLGA.
[9] This decision deals with the matters raised in the Joint Report. Subject to our conclusions in this decision, we confirm the provisional view expressed by the Full Bench in the July 2021 statement that the VLGA be varied to provide for a two-hour minimum engagement for casual employees.
[10] The hearing of the Application took place on 11 and 12 April 2022. Mr Robson appeared for the ASU and the Councils were granted permission to be represented by Mr Minucci of Counsel, pursuant to s.596(2)(a) of the Act.
[11] Underpinning the ASU’s position is the proposition that while it is not bound by the principle of stare decisis, the Commission has nonetheless generally followed previous Full Bench decisions for public policy reasons. Specifically, the ASU contends that in relation to the Modern Award powers, the Preliminary Jurisdictional Issues Full Bench found that the public interest considerations underlying High Court authority about the application of stare decisis in Courts of Appeal applied with similar, if not equal force, to proceedings in the Commission. In that light, the ASU submits that when reviewing modern awards, the Commission should take into account previous decisions relating to contested issues, 5 in particular in the context of the Application, which simply seeks to apply the decisions of the Casual Employment Full Bench regarding casual minimum engagements (both generally and in relation to the local government industry specifically) to the Victorian local government industry.
[12] The ASU then outlined a history of the VLGA in the following terms:
a) The Commission created the VLGA on 13 July 2015 to cover the Councils and their employees. 6
b) The VLGA replaced the pre-reform Victorian Local Authorities Award 2001 that had applied under Schedule 6A of the Fair Work (Transitional Provisions and Consequential Provisions) Act 2009.
c) The ASU had made an application under Schedule 6A, Item 4 for a new modern award to cover the Victorian local government industry, proposing a new modern award based on the Victorian Local Authorities Award 2001. 7
d) The Commission rejected this proposal and made a new state reference public sector modern award based on the Local Government Award, being the equivalent modern award.
[13] The ASU asserted the Commission should adopt the same approach in relation to the Application, that is, replicate the Local Government Award provisions in relation to the minimum hours of casual employment in the VLGA.
[14] The ASU submitted that while the Councils have comprehensive enterprise agreements and the practical impact of the VLGA is its use as a reference instrument in the application of the Better Off Overall Test (BOOT), of 77 enterprise agreements it had reviewed, only 10 had a council-wide minimum engagement applicable to casual staff, with one further council offering a minimum engagement to ‘Recreational and Cultural’ staff only. 8 As such, the ASU submitted that the protection of minimum engagement periods for casual employees has rarely been achieved through bargaining and remains a safety net issue.
[15] The ASU referenced the consideration of the minimum engagement for casual employees by the Part-time and Casuals Full Bench in the 4 yearly review of modern awards, which it said noted that the fundamental rationale for a minimum engagement period for casual employees was to ensure that an employee receives a sufficient amount of work, and income, for each attendance at the workplace so as to justify the expense and inconvenience associated with that attendance by way of transport time and cost, work clothing expenses, childcare expenses and the like. 9
[16] The ASU further contended that in that proceeding, the Full Bench had noted that minimum engagement periods are an important incentive for persons to enter the labour market and so engaged s.134(1)(c) of the modern awards objective, “the need to promote social inclusion through increased workforce participation”.
[17] The ASU also submitted the Full Bench had referred to the following earlier consideration of minimum engagements:
a) The AIRC in Re Metal, Engineering & Associated Industries Award 1998, Part 1 (Metals Casuals Decision); 10 and
b) The Industrial Relations Commission of New South Wales in the State Part-Time Work Case. 11
[18] The ASU submitted that in the Metals Casuals Decision, the AIRC imposed a three-hour minimum engagement for part-time employees, and a four-hour minimum engagement for casual employees, holding that:
a) A minimum engagement for casual employees was a necessary component of the award safety net for that type of employee; 12
b) There was a greater need for minimum engagement protection in industries where the use of broken shifts and labour scheduling practices is more intense; 13
c) Reasonable minimum payment per day is a critical consideration for less advantaged employees; 14 and
d) Casual employees, unlike part-time employees, have no certainty as to future income and need a minimum level of income each day to make the expense of attending the job viable. 15
[19] In the State Part-Time Work Case, the ASU proffered that the Full Bench of the Industrial Relations Commission of NSW held that:
a) Establishing minimum conditions for part-time workers was distinct from ensuring that part-time workers achieve a ‘real’ wage or income stream; 16
b) Protecting against exploitative employment arrangements needed to be balanced against the circumstances of particular workers (for example, women or young workers) who may require part-time work of limited hours; 17
c) A minimum engagement of three hours was set on the basis that ‘for some employees the time and expense incurred in preparing for and travelling to and from work may in reality outweigh the remuneration and other benefits which such work provides’. 18
[20] The ASU suggested that the Part-time and Casuals Full Bench had noted that minimum engagements were not considered by the AIRC’s Award Modernisation Full Bench and that instead, the predominant provisions contained in pre-reform awards concerning minimum entitlements were largely preserved. 19
[21] The ASU then referenced Victorian Employers’ Chamber of Commerce and Industry, 20 about which it said a Full Bench of Fair Work Australia highlighted that the issue of minimum engagements is particularly relevant to casual employees and that without the protection of a minimum engagement, an employer would have a lawful entitlement to truncate a casual employee’s shift at short notice or could pressure a casual employee to accept unviable short shifts in order to retain access to longer shifts.21
[22] The ASU also acknowledged that the Part-time and Casuals Full Bench had noted various countervailing considerations to be taken into account, namely:
a) Not prejudicing those persons who wish to and can only work for short periods of time because of family, study or other commitments, or because they have a disability;
b) Variations from industry to industry; and
c) A concern that excessive minimum engagement periods may cause employers to determine that it is not commercially viable to offer casual engagements or part-time work. 22
[23] It was noted by the ASU that the Part-time and Casuals Full Bench rejected the ACTU claim for a four-hour minimum engagement period due to concerns that it may lead to a loss of work opportunities and working hours for casual and part-time employees which currently exist 23 and had referred to the following evidence in support of its position:
a) A shorter minimum engagement period was justified in the ‘Higher Education Award’ on the basis that it allowed students to take advantage of casual employment opportunities on campus while attending to other study commitments there;
b) Some businesses employed school-aged students, but they could not be employed for four hours after school because the businesses closed before then;
c) Similarly, adults with family commitments may have difficulty making themselves available for four-hour shifts;
d) It was more likely that work would be redistributed to other non-casual employees if a four-hour minimum engagement were introduced.
[24] The ASU also submitted the Part-time and Casuals Full Bench:
a) found evidence of shorter engagements “which verged on being exploitative”; 24
b) formed the view that a provision allowing an employer and an employee to agree to less than the minimum engagement period in order to meet an employee’s personal circumstances was inappropriate, suggesting that this would “not serve as a practical protection, particularly in relation to casual employment where the employer has the power to determine whether any future work is offered”; 25 and
c) ultimately formed the provisional view that a two-hour minimum engagement period was appropriate for modern awards that did not previously include a minimum engagement period. 26
[25] It was then outlined by the ASU that in September 2018, the two-hour minimum engagement period for casual employees was introduced to the Local Government Award 27 covering federal system employers and employees in the local government industry and that this also included any employer in Victoria who supplied ‘labour on an on-hire basis’ to local government industry employers in Victoria. The ASU submitted that the absence of exceptions or shorter minimum engagement periods for casual employees within the Local Government Award, strongly supports the Commission now making a variation in the form it has proposed and that the Commission should follow the decisions of the Casual Employment Common Issue Full Bench and the Part-time and Casuals Full Bench by applying a two-hour minimum engagement for casual employees covered by the VLGA while taking note of the relevant exemptions agreed between the parties.
[26] The ASU advised it had “conceded” a one-hour minimum engagement for the following employees engaged in the following roles:
a) swimming instructors;
b) fitness instructors;
c) personal trainers;
d) cleaners at small sites, and
e) school crossing supervisors.
[27] The ASU proffered that, with the exception of school crossing supervisors, these proposed minimum engagements reflect the minimum engagements that would apply to such workers in the private sector. In particular, a one-hour minimum engagement for swimming instructors, fitness instructors and personal trainers would be consistent with the minimum engagements for casual employees in similar positions that are covered by applicable “private sector” awards. 28 The ASU noted, however, that the Local Government Award does not provide for these proposed exceptions.
[28] In relation to cleaners at small sites, the ASU stated that the proposal was consistent with clause 13.5(c)(i) of the Cleaning Services Award 2020 and the intention was for the Councils to be able to engage a casual employee working as cleaner for a one-hour engagement where the employee is the only employee engaged at a small stand-alone location with a total cleaning area of not more than 300 square metres and it is not practicable for a longer shift to be worked across two or more locations.
[29] The ASU confirmed it does not support the proposal of the Councils to exclude the following categories of employees from a two-hour minimum engagement period for casual employees:
a) Home carers;
b) Arts and culture (arts programs, exhibitions, museums, art galleries, events, entertainment and theatres);
c) Livestock and saleyards;
d) Library shelvers/stackers;
e) Pound attendants;
f) Community drivers;
g) Childcare workers in playhouses;
h) Occasional childcare workers in leisure and aquatic centres;
i) Youth workers in social, community and disability services; and
j) Visitor information centres.
[30] The ASU submitted the evidence before this Full Bench does not demonstrate that there is any need for a shorter minimum engagement for these employees and if they were employed in the private sector, they would be covered by modern awards that provide for longer minimum engagements.
Home care employees
[31] The ASU noted that in-home care and support to aged people and people with a disability is performed by both home care employees in local government and employees in the community and private sectors covered by the Social, Community, Home Care and Disability Services Industry Award 2010 (“SCHADS Award”). It further observed that the SCHADS Award provides for a minimum payment of two hours for casual employees engaged as home care employees.
[32] The ASU highlighted that another Full Bench of the Commission has recently considered minimum payment periods for part-time home care employees covered by the SCHADS Award and that from 1 July 2022, all home care employees covered by the SCHADS Award became entitled to a two-hour minimum payment period for each engagement. In particular, the ASU drew attention to the proposal of some employer parties in that case for a one-hour minimum engagement for part-time home care employees, which was rejected because the Full Bench was not persuaded “the characteristics of the home care work sector sufficiently warrant a shorter minimum engagement period [than two-hours]”. 29 The ASU purported to summarise findings made by the Full Bench in coming to that conclusion:
a) Short shifts are a common feature of home care work under the SCHADS Award.
b) The incidence of short shifts reflects the nature of services provided by home care workers, which include:
• medication prompting;
• personal care services (assistance with showering and getting dressed);
• meal preparation;
• assistance improving skills (e.g. meal planning, teaching cooking skills, support in responsibility for personal hygiene);
• domestic assistance (e.g. making beds, vacuuming and mopping floors, cleaning the toilet and bathroom, laundry, shopping for groceries);
• transportation and assistance with mobility;
• development of social skills and cognitive and emotional support;
• community engagement; and
• respite care.
c) It is common for consumers in the home care and disability services sectors to request services of a short duration.
d) It is common for employees to provide a series of short-duration services to different clients throughout a single shift.
e) Employees report a range of adverse consequences with working short shifts with short engagements and unpaid travel time, including:
• interference with the employee’s time with family and friends, hobbies and/or involvement in the community;
• broken shifts and short engagements requiring a longer span of hours (with associated fatigue) to make the same money as earnings from being rostered continuously;
• short engagements not being worth the time and cost involved;
• the requirement to travel significant distances, with the travel time unpaid, making it ‘uneconomical’ to work; and
• disruptive broken shifts requiring an employee to wait for two to three hours for a shift that will only last 15 minutes. 30
[33] The ASU submitted that the evidence in this matter demonstrates that the findings of the SCHADS Award Full Bench are relevant to the home care workers in Victorian local government.
Arts and culture (arts programs, exhibitions, museums, art galleries, events, entertainment and theatres)
[34] The ASU outlined that employees working in arts and culture roles for local government support the operation of various performances and productions, including art programs, exhibitions, museums, art galleries, events and theatre. It was contended by the ASU that employees performing the same roles in other industries are covered by the Live Performance Award 2020, under which different minimum engagements apply depending on the area in which the employee works. These minimum engagements are:
a) Performers and company dancers: three hours (clause 30.5);
b) Musicians: three hours (clause 39.2);
c) Striptease artists: two hours (clause 48.3); and
d) Production and support staff: three hours (clause 57.1).
[35] The ASU submit that arts and culture employees in Victorian local government should not be disadvantaged simply because they are covered by the VLGA.
Livestock and saleyards
[36] The ASU oppose casual employees working in livestock and saleyard roles under the VLGA being excluded from the two-hour minimum engagement, contending that employees performing the same roles in other industries are covered by the Pastoral Award 2020. In particular, the ASU relied upon clause 11.5 of the Pastoral Award 2020, which sets the minimum engagement for casual employees, other than casual pieceworkers and secondary school students working as dairy operators, 31 at three hours.
[37] The ASU noted that the Part-time and Casuals Full Bench had considered a claim from the National Farmers’ Federation to reduce the minimum engagement period for casual and part-time dairy operators from three hours to two and in particular, its argument that the three-hour minimum engagement period inhibited the employment of school students. The ASU submitted that rather than including an across-the-board shorter minimum engagement period, the Part-time and Casuals Full Bench had only reduced the minimum engagement period for junior employees who are school students. 32
[38] The ASU submitted that there is no logical distinction between casual employees working in livestock and saleyard roles who are covered by the VLGA, and those who are covered by the Pastoral Award 2020, such that exclusion from a two-hour minimum engagement period for casual employees in these roles in Victorian local government is inappropriate.
Library shelvers/stackers
[39] In opposing casual employees working in library shelver and library stacker roles being excluded from the two-hour minimum engagement the ASU raised the Educational Services (Schools) General Staff Award 2020 and the Legal Services Award 2020 on the basis that they contain classifications covering employees who work in libraries. The ASU submitted the grade 2 classification under the Educational Services (Schools) General Staff Award 2020 is most analogous to the role of library shelver and library stacker because it covers ‘a range of basic library transactions’ 33 and outlined that its clause 11.4(a) sets the minimum engagement period for casual employees at two hours for each engagement. The ASU’s position is therefore that the same minimum engagement period should apply to library shelvers and library stackers covered by the VLGA.
Pound attendants
[40] The ASU addressed pound attendants through the statement of Brhe Walsh, an Animal Attendant employed by the City of Greater Bendigo, whom the Councils elected not to cross-examine. The statement of Brhe Walsh is discussed below.
Community drivers
[41] The ASU outlined its opposition to casual employees working in community driver roles for the Councils being excluded from the two-hour minimum engagement by raising the Passenger Vehicle Transportation Award 2020, which covers employers throughout Australia in the passenger vehicle transportation industry and their employees. 34 Clause 4.2 of the Passenger Vehicle Transportation Award 2020 defines the ‘passenger vehicle transportation industry’ as the transport of passengers by:
a) motor vehicle, limousine or hire car;
b) bus or coach; and
c) electric tramway, monorail or light rail.
[42] The ASU argued that but for clause 4.5(c) of the Passenger Vehicle Transportation Award 2020, which excludes employees who are covered by a State reference public sector modern award (such as the VLGA), community drivers working for the Councils would be covered by it. The ASU also noted that clause 11.3 of the Passenger Vehicle Transportation Award 2020 sets the minimum engagement for casual employees engaged for the sole purpose of transporting children to and from school at two hours, with the minimum engagement otherwise being three hours and submitted that community drivers working for the Councils in Victoria should not be disadvantaged simply because they are covered by the VLGA.
Childcare workers in playhouses
[43] The ASU submitted that childcare workers employed by the Councils within playhouses should be afforded the same protection of a two-hour minimum engagement period as was determined by the Part-time and Casuals Full Bench. Additionally, the ASU referred to the entitlement of childcare workers covered by the following awards to a minimum engagement of two hours:
• Children’s Services Award 2010;
• Educational Services (Schools) General Staff Award 2020; and
• Registered and Licensed Clubs Award 2020.
Occasional childcare workers in leisure and aquatic centres
[44] The ASU also cited the three abovementioned awards in [43] and the two-hour minimum engagement period determined by the Part-time and Casuals Full Bench in support of its contention that a minimum engagement period of two-hours should also apply to childcare workers employed at leisure and aquatic centres operated by the Councils.
Youth workers in social, community and disability services
[45] The ASU asserted that youth workers who are not employed by local governments are covered by the SCHADS Award in the classifications for Social and Community Services Employees at Schedule B of that Award and have, with the exception of those engaged in disability services, a three-hour minimum engagement.
[46] The ASU submitted that youth workers working in the Councils should receive similar protection and not be disadvantaged simply because they are covered by the VLGA.
[47] The ASU addressed staff employed at Visitor information centres through the statement of Penelope Aston, a Visitor Services Officer employed by the Moira Shire Council, whom the Councils elected not to cross-examine. The statement of Ms Aston is discussed below.
Impact of the proposed exception on Gender Equity
[48] The ASU submitted that including the exclusions proposed by the Councils would have a disproportionate negative impact on female employees. Through the statement of Kat Hardy, the ASU contended the percentage of employees in each “Area of Employment” who are women can be summarised as follows:
[49] The ASU argued that this table demonstrates that women represent the majority of casual employees in each of the categories within the disputed exceptions and proffered that the exclusions have the potential to reduce workforce participation of female employees. The ASU contended that the gender divide is most severe for the categories of Home Carer, Community Drivers, Childcare Workers in Playhouses and Youth Workers.
ASU Evidence
[50] The ASU relied on evidence from Ms Leighanne Smith, a permanent part time Community Connections Worker employed by Macedon Ranges Shire Council (Macedon Ranges) to support its contentions in so far as home care employees are concerned.
[51] Ms Smith said she is required to complete various duties while working as a Community Connections Worker in the aged care sector, including providing personal care to clients, cleaning clients’ homes, providing respite to the full-time carers of clients, completing shopping for clients and assisting in preparing clients’ meals. Ms Smith has also been involved in assessing the services Macedon Ranges provides to aged care clients.
[52] Ms Smith said her appointments with aged care clients range between 30 minutes to 3 hours, depending on the duties she is completing and that Macedon Ranges roster these appointments sequentially (with time allocated for Ms Smith to travel between appointments). As a result, Ms Smith works a non-broken shift each working day from about 8.30am until about 4pm.
[53] Ms Smith attends client appointments in Lancefield, Romsey, Clarkefield, Benloch and Bolinda – some of which are more than a 30 minute drive from each other. Ms Smith is paid for her travel between client appointments but is not paid for her travel time between home and a client appointment.
[54] It is Ms Smith’s opinion that Macedon Ranges would be unable to recruit casual home care employees in the aged care sector if the council sought to roster standalone one-hour shifts. She said the travel time and petrol costs would mean that it would not be worth it for casual employees to work such short shifts and they would decline them.
[55] The Councils objected to this aspect of Ms Smith’s evidence on the basis that it is opinion evidence and irrelevant. The ASU countered with the submission that while the evidence of Ms Smith is not direct evidence from a casual employee in this sector, she was not cross-examined in relation to her statement and her evidence was therefore the closest information before the Commission about the views of casual employees.
[56] In terms of Arts and Culture, the ASU relied on evidence from Patrick Gordon, an ArtPlay Support Officer employed by the City of Melbourne, and Sebastian Herrera, a Theatre Technician employed by the Greater Dandenong City Council (Greater Dandenong).
[57] Mr Gordon is employed in a casual role and said his hours of work are inconsistent, with the highest volume of work being during school holidays. Mr Gordon runs workshops for 0-13 year olds at the City of Melbourne’s ArtPlay program, which requires him to set up and pack up materials for the workshops, document them and assist with the participation of the children. Mr Gordon said the City of Melbourne rosters him and other casual ArtPlay Support Officers for shifts of at least four hours, with some shifts lasting eight hours. The only time that Mr Gordon would work a shorter shift is when he is rostered a three-hour shift to attend staff meetings. Mr Gordon argued it would be uneconomic for him to attend work for a one-hour shift because the cost of public transport or petrol and parking, together with the travel time, would largely offset his earnings. In some circumstances, Mr Gordon said he would also need to source childcare for his daughter.
[58] Mr Herrera’s work at Greater Dandenong is in a permanent part time role staging productions and operating, maintaining and installing entertainment production equipment. He works with a number of colleagues who are casual employees, performing both front of house and back of house roles. He said that most of the casual employees have other jobs. Mr Herrera’s experience is that each shift will be for a minimum of three hours (with this being the industry expectation) and he described a range of scenarios in which front of house and back of house employees work. He said he has had experience of being told by younger technicians that that they have had engagements of less than three hours and expressed the opinion that in such cases, those younger technicians have been taken advantage of due to not being aware of the three hour “convention”.
[59] Mr Herrera also described the prevalence of one hour on-line meetings during periods of the COVID-19 pandemic and said that pre-COVID, casual employees required to attend meetings would also be rostered to perform other work for another two to three hours. Mr Herrera proffered that Greater Dandenong has been struggling to staff events due to a dearth of skilled technicians and argued that the length of shifts for both technicians and front of house staff needs to be sufficiently worth their while. He said that almost all venue staff have other jobs due to the sporadic and piecemeal nature of the work.
[60] To address pound attendants, the ASU called Brhe Walsh, who works full time with the other Animal Attendants at the Bendigo Animal Relief Centre of the City of Greater Bendigo. Ms Walsh said that in her role, she can be rostered for one-hour afternoon shifts on Sundays and public holidays, which she regards as an interruption to her time off. Ms Walsh described current working hours of 8.30am – 4.30am for colleagues who are casual employees but expressed the opinion that there is “not much of a need” to employ casual animal attendants for one-hour shifts because there is too much work to be completed within that time period. Further, she proffered that it would ultimately create more work for her and the other full-time Animal Attendants at the Relief Centre if they had to keep track of the small amount of work that could be completed in a one-hour shift. Ms Walsh also expressed the view that it would be unfair to implement one-hour shifts for casual pound attendants because the time and cost associated with commuting to work would offset the financial gain from working the short shift. The Councils objected to these aspects of Ms Walsh’s evidence on the basis that they were irrelevant and opinion.
[61] For casual employees in Visitor information centres, the ASU relied on a witness statement from Penelope Aston, a part time Visitor Services Officer employed by the Moira Shire Council at its information centre at Nathalia in the Barmah National Park. Ms Aston said that there are two casual employees engaged on an ad hoc basis, “nearly always for the 7.6 hours that permanent staff are rostered” and that she has no knowledge of them being rostered on for less than two hours. Ms Aston gave evidence about attendance at staff team meetings, which appear to last for one hour but are not mandatory. In Ms Aston’s opinion, to not attend such meetings would place her and others at a disadvantage because they would miss opportunities for consultation, team building and information exchange. With her daily commute time from home to the Nathalia information centre being 90 minutes (return), Ms Aston says that if she was required to attend for a one-hour shift or team meeting, she would actually lose $10 after her petrol and childcare expenses were accounted for.
[62] The Councils described having comprehensive enterprise agreements governing the terms and conditions of employment of their staff (in conjunction with the National Employment Standards (NES)) and asserted that the only practical impact of the VLGA is its use as the reference industrial instrument for BOOT assessments. Further, the Councils said that no current operative Victorian local government enterprise agreements, to which the ASU is a party, provide for a two-hour minimum for those employees who would otherwise be covered by the VLGA.
[63] The Councils also asserted that when the VLGA became the modern award replacement for the Victorian Local Authorities Award 2001 (VLAA), it closely reflected the then contents of the Local Government Award in relation to all of the general terms and conditions of employment which apply to Council staff. Further, they contended:
a) When the Local Government Award was originally made by a Full Bench of Fair Work Australia on 4 December 2009, it met the principles and requirements of award modernisation, and continues to do so; and
b) Over time, the Local Government Award has been amended to include a number of model terms in response to the Fair Work Commission’s 4 yearly review of modern awards, but the VLGA and other state reference public sector awards have not.
[64] The Councils asserted the inclusion of an equivalent two-hour minimum provision in the VLGA would be extremely problematic, presenting a BOOT issue with significant cost implications. The Councils cautioned that consequential increased costs could see them withdraw from the delivery of community-focused services and, in turn, lead to redundancies in these areas of their operations. In particular, the Councils cited home care services.
[65] The Councils submitted the ASU contention that it is appropriate to insert a two-hour minimum engagement obligation into the VLGA because the Commission has previously recognised that this was appropriate “in allegedly comparable award contexts” was not enough to justify a variation. They submitted the ASU must satisfy the Commission there is a sufficient evidentiary basis to impose a two-hour minimum engagement in respect of each of the disputed roles and that this is “necessary to achieve the modern awards objective.”
[66] Common in the presentation of the evidence of the witnesses of the Councils was the assertion that the introduction of a two-hour minimum would neither be practical nor feasible and further, it would have a detrimental impact.
Home care employees
[67] The Councils firstly relied on evidence from Ms Shelley Ann Bourke, Aged & Disability Services Manager of Glenelg Shire Council (Glenelg). In the 12 months preceding March 2022, Glenelg had engaged 15 casual home and personal carers to work in their Aged & Disability – Home and Community Care area. Ms Bourke said Glenelg rostered the casual employees, depending on their availability, for tasks that might include any of making of beds, cleaning bathrooms and toilets, mopping and sweeping floors, tidying and vacuuming, laundry, meal preparation, shopping with or without clients, bathing and showering clients, helping clients in and out of bed and self-medication prompts. Ms Bourke also said that, where possible, Glenelg rosters clients concurrently but in the event that a client cancels a one-hour service within a rostered 24 hour period, Glenelg is required to remunerate the employee the rostered time without having received income to match. Ms Bourke also said that while Glenelg attempts to combine various home care shifts, this is not always possible when staff are on leave.
[68] Ms Bourke said all tasks are scheduled in less than 2-hour shifts, that there is limited funding, and the State and Federal Government funding is granted on a per unit/hour basis. Ms Bourke said that because the scheduling and rostering of tasks must take into consideration both staff and client availability, there are often breaks in between one-hour shifts. In this regard, Ms Bourke outlined that part time Community Support Workers work in 30 minute, 45 minute, 1 hour and 1.5 hour blocks, with casual employees used to backfill. She said that if there was a two-hour minimum engagement for casual employees, Glenelg would be required to pay two hours for one hour of funded home care in circumstances in which it already significantly “props up” the Commonwealth Home Support Program and Home and Community Care programs. Ms Bourke cautioned that a requirement to pay casual employees a two-hour minimum would increase budgetary pressure on Glenelg and could mean fewer clients are provided services.
[69] The ASU commented that Ms Bourke’s evidence demonstrated that a relatively small number of casuals had been engaged for very short periods at a time. It proffered that such short engagements might be the only work an individual has on a day and submitted that these factors support its contention that there is a need to protect casual employees with a “part-time” minimum engagement.
[70] The Councils also adduced evidence from Ms Sarah Lind, the Coordinator, Community Care for Greater Geelong City Council (Geelong), which engages community care workers to work in Home/Community Care. Ms Lind said that in the 12 months preceding March 2022, Geelong had engaged a total of 17 casuals and had rostered them to perform shifts of various duration, with 17 of their shifts being of less than 2 hours. She said the tasks that casual employees perform comprise assisting with medication, showering/dressing assistance, meal preparation, shopping and home care services. Ms Lind also said that shift rostering depends on the casual employees’ availability and client demand and that some shifts require rostering for less than two hours in duration, primarily due to the casual community care workers being available to support with emergency personal care and medication runs on weekends, as well as services provided on public holidays. She said rostering for less than two hours may also occur when clients cancel services on a casual community care worker’s roster with more than 12 hours’ notice in circumstances where there is no other work available to fill the worker’s roster on that day.
[71] The ASU submitted that the evidence of Ms Lind generally supports its case because in 12 months, only 17 shifts assigned to casual employees had been less than two hours in duration, and it suggested that the concerns were a non-issue, with the cost of a two-hour minimum engagement being minimal.
[72] The third witness of the Councils in relation to home care employees was Michele Stephenson, the Manager Human Resources and Risk at Corangamite Shire Council (Corangamite). Ms Stephenson said Corangamite receives State and Federal Government funding for Domestic Assistance, Personal Care, Social Support, Meals On Wheels, Community Transport and Respite and engages casual personal/home carers to work in clients’ homes. Ms Stephenson stated that in the 12 months preceding March 2022, Corangamite has engaged a total of 5 casual personal/home carers who had been rostered on average for anywhere between 3 - 20 shifts per week, depending on their availability, and who had performed shifts of 30 minutes, 45 minutes, 1 hour, 1.5 hours and 2 hours in duration. She said the tasks which they would normally be required to perform during a shift involve assisting clients with personal care tasks, home care duties, shopping and cooking. Ms Stephenson described work carried out for clients of Corangamite which attracts payments for half an hour and said that Corangamite will allocate a casual to such clients together in the morning (attracting payments for an hour) and then do the same for the afternoon. She said that these circumstances will apply to 80% of Corangamite’s personal care clients and it would seem that even if the length of a client visit is less than half an hour, Corangamite makes a minimum payment of half an hour for a visit.
[73] Ms Stephenson suggested that if a two hour payment was required for each visit, clients would not be able to afford this and would cancel the service. Her opinion was based on an account from a colleague that Corangamite had recently found itself with “many clients” who had left another provider because it had introduced a two-hour minimum. Ms Stephenson opined that if Corangamite introduced the same requirement, “there are not many options left for the frail, aged, people with a disability who would all be the losers in this.” Under cross-examination, Ms Stephenson suggested that the introduction of a two-hour minimum engagement period would increase the proportion of the cost to the client from 4.7 per cent of a client’s weekly expense on that service to 19 per cent. 35
[74] The ASU submitted that Ms Stephenson’s evidence demonstrated that there is a clear need for protections for home/community care workers. The ASU suggests that for “many” councils there is a very small number of employees who are only employed to fill shifts on an ad hoc basis when someone is absent and submitted that such employees need the protection of a minimum engagement to ensure that their work is remunerative.
Arts and culture (arts programs, exhibitions, museums, art galleries, events, entertainment and theatres)
[75] The Councils raised concern with the potential impact a minimum engagement period might have on the continued viability of arts and cultural programs, submitting the minimum engagement is not a “one-size-fits-all” proposition, with there being disparity amongst them when it comes to the resources. The Councils relied firstly on evidence from Marie Johnson, the Coordinator Human Resources of Whitehorse City Council (Whitehorse). Ms Johnson said she was aware that Whitehorse engages casual employees to work as Arts Tutors and that in the 12 months preceding March 2022, they had engaged one casual employee. Having said this, Ms Johnson also said Whitehorse rosters the casual employees to perform shifts of 1 to 1.5 hours (depending on the Art class) for an average of 1 – 2 shifts per week, depending on their availability, the programming requirements and class demand. Ms Johnson asserted that the delivery of classes to arts-based students are not designed to go for two hours and the required payment would impact the financial sustainability of the service. She argued this could lead to the potential discontinuance of the art classes, with consequent impact on clients and the community. The ASU submitted that Ms Johnson did not directly manage the casual employee engaged and had provided no details regarding the cost of changing the engagement of casual employees.
[76] Secondly, the Councils cited the example of Bass Coast Shire Council (Bass Coast) and relied on evidence from its Manager People and Culture, John Wynen. Mr Wynen said that the ten Arts and Culture Customer Service casual employees rostered in the 12 months preceding March 2022 had been rostered to perform minimum shifts of one to two hours because demand fluctuates and there are not enough tasks required to be performed on each shift. The ASU challenged the evidence of Mr Wynen on the basis that he had not appeared to have considered the impact of a two-hour minimum engagement in any detail and had not identified any service that would close if it was introduced.
[77] The Councils also adduced evidence from Susan Strano, the Drum Theatre Coordinator for Greater Dandenong. Ms Strano who oversees the day-to-day operations, staff management, financial systems, reporting, bookings and box office operations at the Drum. Ms Strano responded to the witness statement of Mr Herrera but was not the subject of cross examination. She asserted that new technicians are not treated differently and are in fact given training and “shadow shifts”. Further, Ms Strano said the Drum does not roster and nor does it expect its technicians to perform short on-site shifts and outlined that if employees attend meetings or perform online work, they are paid. Additionally, Ms Strano said all staff meetings are paired with training to provide for a 3-hour shift minimum, only occur 2-4 times a year and will usually start at 6pm.
Library shelvers/stackers
[78] The Councils submitted that the positions of library shelvers/stackers are not the same as a Grade 2 under the Educational Services (Schools) General Staff Award 2020 and asserted that if a two-hour minimum engagement was imposed, there would be insufficient work to occupy these employees and they would be paid without performing any meaningful work. The Councils relied on evidence from Sally Both, the Chief Executive Officer of Whitehorse Manningham Library Corporation (Whitehorse Manningham). Ms Both said that in the 12 months preceding March 2022, Whitehorse Manningham had engaged two casual library shelvers who had performed shifts of between 1-2 hours duration, depending on the level of operational need and they had been rostered on average for anywhere between one and four shifts per week, depending on their availability. Ms Both asserted there are insufficient tasks at smaller library branches, health and safety considerations due to the manual handling associated with the repetitive nature of shelving (when more than two hours of shelving is required) and availability issues, with casual library shelvers often being students. It was also apparent from the evidence of Ms Both that Whitehorse Manningham also employs casual customer service officers and casual librarians who will, from time to time, complete some library shelving. She also proffered that students could find it difficult to make themselves available for longer shifts due to their study commitments. The ASU submitted that it is not possible to predict how the work of Library shelvers/stackers would be arranged if the award variation it seeks was made.
Pound attendants
[79] For pound attendants, the Councils relied on evidence from Melanie Bennett, the Manager Local Laws for Glenelg. Based on Glenelg’s existing arrangements, the Councils asserted that it would be untenable to engage pound attendants for a minimum two-hour period. Ms Bennet detailed that as at March 2022, Glenelg had only just resumed pound services and had not yet engaged any casual employees. Ms Bennet said the proposed minimum two-hour engagement period would cause issues because the existing weekend roster for permanent part-time and full-time staff only required 1-2 hours in the mornings and 1 hour in the afternoon (with 30 minutes being more accurate).
[80] The ASU submitted that while the Councils employing pound attendants might want to utilise short shifts and using casual employees would be an option, any employer apprehension about the one-hour minimum no longer being available for casual employees could be addressed by a part time roster which could accommodate a 1 to 1.5-hour shift pattern or through the use of a full-time employee.
Community drivers
[81] The Councils relied on evidence from Tracey Macleod, the Positive Ageing Team Leader at Greater Dandenong, to assert that if a two-hour minimum engagement was imposed, Greater Dandenong would use permanent part time staff with gaps in their roster instead of casual staff. Ms Macleod’s proposition was that Greater Dandenong would not attempt to combine bus trips to achieve a two-hour minimum because the majority of bus runs are of short duration and local, and clients do not want to be travelling on a bus for more than an hour. In the 12 months preceding March 2022, Greater Dandenong had engaged one casual employee. Ms Macleod said that Greater Dandenong would roster casual employees to perform shifts of 1-3 hours in duration, for an average of 2-6 shifts per week, depending on their availability. At the time of the hearing, Ms Macleod said Greater Dandenong did not have any casual employees employed. Ms Macleod also said that many bus runs are 1.5 hours in length (inclusive of a 30-minute pre-run safety check) and occur at the same time, with the result that Greater Dandenong could be paying two hours to a casual employee for 1.5 hours of work. That said, Ms Macleod’s evidence in cross-examination was that some bus runs were now as brief as 35 minutes.
Childcare Workers in Playhouses and Occasional childcare workers in leisure and aquatic centres
[82] The Councils addressed the latter of these groups and submitted that having a two-hour minimum engagement would inhibit their flexibility on meeting the operational requirements for childcare specific to the leisure industry. They outlined that clients attend leisure centres for aerobics or swim classes of 45-60 minutes duration, with the result that it is not feasible to pay for casual childcare for a longer period. The Councils said these casual employees also provide lunchtime backfill and coverage for short term absences and are required to attend staff meetings, which are generally no longer than one hour in duration.
Youth workers in social, community and disability services
[83] In opposing the two-hour minimum engagement in these areas of their operations, the Councils relied on the example of the engagement of Youth Workers/Ambassadors by Yarra Ranges Shire Council (Yarra Ranges) on rosters of one to three shifts per week of generally not less than one hour’s duration. Jacinda Hunt, the Acting Youth Development Coordinator for Yarra Ranges, has responsibility for the youth development team, engaging casual employees to work as Youth Workers/Ambassadors. She said that in the 12 months preceding March 2022, Yarra Ranges had engaged a total of 6 casual employees. Ms Hunt said these casual employees were rostered on average for anywhere between one and three shifts per week but this depended on their availability because most of the Yarra Ranges Youth Workers/Ambassadors are university students or school students and they work their three hours per week at times they can fit them in. Ms Hunt argued that if there was a two-hour minimum engagement, it would neither be practical nor feasible and would have a detrimental impact on Yarra Ranges. Ms Hunt said the meetings attended by the Youth Workers/Ambassadors run for one hour each and are dispersed throughout the week. She asserted that a two-hour minimum would mean that Youth Workers/Ambassadors would not be able to attend their current three meetings each week and not as many meetings could be funded. Ms Hunt argued this would reduce the voice of the youth within Yarra Ranges and jeopardise the program.
[84] The ASU characterised Ms Hunt’s evidence as constituting an objection to the two-hour engagement on the basis that it would impose a limitation on how work would be organised.
Visitor information centres
[85] The Councils cited examples from Bass Coast and Glenelg in opposing the two-hour minimum engagement. In relation to Bass Coast, the Councils relied on evidence from Mr Wynen, who said that Bass Coast had engaged 5 Customer and Visitor Experience casual employees to work in Customer and Visitor Experience Centres in the 12 months preceding March 2022. Mr Wynen said the five Bass Coast Customer and Visitor Experience casual employees had been rostered to perform shifts of one to two hours in duration for between one to ten shifts per month, depending on their availability. Mr Wynen asserted that visitor fluctuations, insufficient demand and not enough other tasks to perform during a shift weighed against a two-hour minimum. The ASU characterised Mr Wynen’s evidence as speculation unsupported by evidence or detail. In particular, the ASU cited the absence of any rosters, summaries of the payments and particulars of the associated costs. It argued that Mr Wynen had only suggested there would be an issue with a two-hour minimum engagement if seeking to roster for one hour of lunch cover at one centre.
[86] The Councils also relied on evidence from Sharon Bridgewater, the Visitor Information Centre Liaison Officer for Glenelg. Ms Bridgewater has responsibility for rostering staff to cover shifts 7 days a week and the training arrangements for all Visitor Information Centre staff. Ms Bridgewater said that forcing Glenelg to engage and pay casual employees in their Visitor Information Centres for a minimum of two hours per shift when holding team meetings or training (which run for one hour) would not be feasible and that a two-hour minimum engagement could present an issue “down the track” if Glenelg was to rely on casual employees to cover part-time shifts. Ms Bridgewater also gave an example relating to a possible new position in Casterton which was contemplated as being for one hour of lunch cover Monday-Friday and 1 week per month and cautioned that it would not be proceeded with if there was a requirement to pay 2 hours for the lunch cover. The ASU observed that Ms Bridgewater also gave evidence that casual employees are engaged on an ad-hoc basis to cover leave or rostered days off and in that context, they might work five and a half hour shifts. The ASU also cited the absence of rosters, schedules of opening hours or budgets in Ms Bridgewater’s evidence.
Cleaners engaged to clean locations of over 300 square metres
[87] In relation to cleaners engaged to clean locations of over 300 square metres, the Councils proffered that the ASU is “labouring under the misapprehension that this is no longer a disputed role” and used the example of Glenelg, which often rosters casual employees at short notice to perform shifts of between 1 hour and 1.5 hours in premises over 300 square metres, to argue it would be neither practical nor feasible to engage such employees for a two-hour minimum. The Councils relied on evidence from Simone Scott, the Contract & Procurement Coordinator for Glenelg. Ms Scott engages casual cleaners for Glenelg’s kindergartens and childcare services locations and said that in the 12 months preceding March 2022, Glenelg had engaged 6 casual cleaners who had been rostered to perform shifts of 1 hour or 1.5 hours or more, up to the equivalent of a full-time employee for an average of between 2 and 8 shifts per week, depending on their availability. Ms Scott outlined that Glenelg covers a broad range of community facilities, shifts often need to be covered at short notice and its kindergartens are all over 300 square metres. Ms Scott asserted the requirement for casual employees is ad hoc and irregular and generally, they are rostered to a single facility able to be cleaned in 1.5 hours. Ms Scott said the scheduling and rostering must take into account when the cleaning of the particular building needs to be completed, with some buildings cleaned in the morning and some in the afternoon. Further, Ms Scott said that casual employees are also used to backfill 1.5-hour shifts of part time employees and where possible, Glenelg attempts to combine various cleaning jobs when staff are on leave. She argued that a requirement to pay casual employees for a minimum of two hours would not be a good use of money and Glenelg would respond by avoiding the engagement of casual employees altogether, looking instead to contract out various cleaning services.
[88] The ASU asserted that because Ms Scott had not provided rosters, costings or budgets, it is impossible to put her evidence into its proper context. The ASU also submitted it is difficult to understand the relationship between casual employment and part time employment at Glenelg, such that Ms Scott’s assertions about the future could not be tested. The ASU proffered that if the work of these cleaners is ad hoc and the engagements are short, there is a definite need for them to be protected from “unremunerative work”.
Evidence of Mr David Tozer
[89] Mr David Tozer is a workplace relations adviser who has worked for Meerkin & Apel, the lawyers representing the Councils, for 10 years. Before assuming this role, Mr Tozer had worked in Victorian local government for approximately twelve years. He commenced at Mildura Rural City Council working in the Rates and Best Value Units, then at Mount Alexander Shire Council as an Accountant and finally at Moyne Shire Council where he was the Rates Coordinator and then Manager of Organisational Development. Mr Tozer stated that in his current role he provides wide-ranging support and assistance in workplace relation/industrial relations to the Councils, which includes providing HR and IR advice and enterprise barraging assistance. The ASU submitted that Mr Tozer’s evidence amounted to a submission from a human resources practitioner in the field and characterised his evidence as paid advocacy on behalf of the Councils as part of the service they receive from Meerkin & Apel.
[90] Mr Tozer firstly asserted that Victorian Local Government has a unique Home Care service model because it provides direct service delivery, whereas in other States and Territories, the main role of Local Government in regard to Home Care Services is to provide advice on where and how to access services.
[91] Secondly, Mr Tozer outlined that the enterprise agreements of the Councils invariably provide for a one-hour minimum engagement for both permanent part time and casual employees, and have done so since the early 1990’s. He said this mirrors the conditions that were in both the VLAA and its predecessor, the Victorian Local Authorities Interim Award 1991 and submitted there did not appear to be any justification for differentiation between casual employees and part-time employees. Mr Tozer asserted that there were existing financial pressures on the Councils and that Home Care Services in Victoria are already heavily subsidised by them, such that the Councils would need to consider how they can manage additional costs, or whether they should provide those Home Care Services at all if the two-hour minimum engagement was introduced. Mr Tozer stated that a “handful of Victorian Councils” have already chosen to withdraw from these services entirely and gave the example of the City of Wodonga.
[92] Thirdly, Mr Tozer outlined a number of different considerations for rural councils compared with metropolitan councils, focussing on the distances between rural communities, the number of clients in each geographical area and the size of the particular services. In this regard, he suggested that there would be difficulties setting rosters with sufficient tasks for part time employees and that this issue would be exacerbated if a casual employee was involved. Mr Tozer expressed the opinion that rather than paying casual employees two hours pay for work that might take an hour or less to perform, it is far more likely that alternative service delivery options will be implemented by the Councils.
[93] The ASU submitted that Mr Tozer’s assertions about the financial position of Councils, particularly in regional areas, amounted to the view of one human resources practitioner amongst many and it challenged them because Mr Tozer had not attached budgets or council minutes.
Other considerations
[94] The Councils submitted much of the ASU evidence was subjective opinion, such that it ought not be admitted or be given little, if any, weight. They criticised the ASU for failing to call direct evidence in respect of livestock yards, library shelvers/stackers, community drivers, occasional childcare workers in leisure and aquatic centres, youth workers in social, community and disability services and cleaners engaged to clean locations of over 300 square metres. In relation to the cleaners, the ASU submitted that even though it had not filed witness statements in relation to them, the Council’s evidence supports its contentions that there are short and ad hoc hours of work that run the risk of being exploitative and unremunerative.
[95] Further, the Councils sought to counter the submission of the ASU that excluding certain casual employees from the two-hour minimum engagement will reduce female workforce participation by arguing it was previously acknowledged by the Part-time and Casuals Full Bench that the introduction of a minimum casual engagement that is too onerous may lead to loss of work opportunities. 36 The Councils also cautioned against the placing of too much weight on the employee evidence in relation to the requirement to attend team meetings, suggesting that hybrid work models adopted since the advent of the COVID-19 pandemic may render in-person attendance (with the consequent travel costs) unnecessary.
[96] Finally, the Councils argued that the Commission must consider the differences between metropolitan and rural councils in terms of distances between communities and overall budgets because these factors may impact on service and program delivery should a two-hour minimum engagement for casual employees become required.
Legislative Context
[97] It is useful to firstly highlight key provisions of the legislative framework pertaining to applications to vary a modern award:
a) Section 157 of the Act provides that the Commission may make a determination varying a modern award;
b) Section 158 grants the ASU, as an organisation entitled to represent the industrial interests of employees covered by the VLGA, standing to apply for a variation;
c) Section 136 of the Act provides that a modern award:
• must only include terms that are permitted or required by the Act; and
• must not include terms that contravene the Act.
d) Section 138 provides that a modern award may include terms that it is permitted to include and must include terms that it is required to include, only to the extent necessary to achieve the modern awards objective.
[98] The modern awards objective is defined by s 134(1), as follows:
“134(1) The FWC must ensure that modern awards, together with the National Employment Standards, provide a fair and relevant minimum safety net of terms and conditions, taking into account:
(a) relative living standards and the needs of the low paid; and
(b) the need to encourage collective bargaining; and
(c) the need to promote social inclusion through increased workforce participation; and
(d) the need to promote flexible modern work practices and the efficient and productive performance of work; and
(da) the need to provide additional remuneration for:
(i) employees working overtime; or
(ii) employees working unsocial, irregular or unpredictable hours; or
(iii) employees working on weekends or public holidays; or
(iv) employees working shifts; and
(e) the principle of equal remuneration for work of equal or comparable value; and
(f) the likely impact of any exercise of modern award powers on business, including on productivity, employment costs and the regulatory burden; and
(g) the need to ensure a simple, easy to understand, stable and sustainable modern award system for Australia that avoids unnecessary overlap of modern awards; and
(h) the likely impact of any exercise of modern award powers on employment growth, inflation and the sustainability, performance and competitiveness of the national economy.
This is the modern awards objective.”
[99] Section 134(2)(a) outlines that the modern awards objective applies to the performance or exercise of the Commission’s powers under Part 2-3 of the Act.
[100] It is not disputed that the VLGA is a State reference public sector modern award under s.168E of the Act. It was made as a result of a decision of the Full Bench of the Commission (the Local Government Full Bench) on 13 July 2015, 37 in which the Full Bench determined an application for the making of a state reference public sector modern award for Victorian local government. For the purposes of determining that application, the modern awards objective applied, and the Local Government Full Bench was also required to recognise the State reference public sector modern awards objective, which in the Act is outlined at s.168F(1):
a) the need to facilitate arrangements for State reference public sector employers and State reference public sector employees that are appropriately adapted to the effective administration of a State; and
b) that State reference public sector modern awards may provide terms and conditions tailored to reflect employment arrangements that have been developed in relation to State reference public sector employers and State reference public sector employees. 38
[101] Section s.168F(2) of the Act provides that the State reference public sector modern awards objective applies to the performance or exercise of the Commission’s powers or functions under Part 2-3 of the Act, so far as they relate to State reference public sector modern awards.
[102] In considering the Application for a variation to insert a two-hour minimum engagement for casual employees for the balance of employment areas under the VLGA, we commence by reviewing the broader context within which the Application has been made.
[103] The modern awards objective has been discussed in a range of Full Bench Decisions and in the context of the Application, it is of assistance to outline the following distillation of the relevant principles:
“[113] The modern awards objective is very broadly expressed. It is a composite expression which requires that modern awards, together with the National Employment Standards (NES), provide ‘a fair and relevant minimum safety net of terms and conditions’, taking into account the matters in ss.134(1)(a)–(h). Fairness in this context is to be assessed from the perspective of the employees and employers covered by the modern award in question.
[114] The obligation to take into account the s.134 considerations means that each of these matters, insofar as they are relevant, must be treated as a matter of significance in the decision-making process. No particular primacy is attached to any of the s.134 considerations and not all of the matters identified will necessarily be relevant in the context of a particular proposal to vary a modern award.
[115] It is not necessary to make a finding that the award fails to satisfy one or more of the s.134 considerations as a prerequisite to the variation of a modern award. Generally speaking, the s.134 considerations do not set a particular standard against which a modern award can be evaluated; many of them may be characterised as broad social objectives. In giving effect to the modern awards objective the Commission is performing an evaluative function taking into account the matters in s.134(1)(a)–(h) and assessing the qualities of the safety net by reference to the statutory criteria of fairness and relevance.” 39
[104] Further, guidance as to the nature of the Commission’s task in determining an application to vary an award was provided by the Full Bench in its decision 40 relating to the Horticulture Award 2020. The Full Bench outlined:
“[14] Variations to modern awards must be justified on their merits. The extent of the merit argument required will depend on the circumstances. Significant changes where merit is reasonably contestable should be supported by an analysis of the relevant legislative provisions and, where feasible, probative evidence.
[15] Under s.157(1) of the Fair Work Act 2009 (Cth) (the Act), the Commission may only make the variation sought by the AWU if satisfied that the variation is ‘necessary to achieve the modern awards objective’. The ‘modern awards objective’ is defined in s.134(1) as “provid[ing] a fair and relevant minimum safety net of terms and conditions”, considering the matters at s.134(1)(a) to (h) (the s.134 considerations).
[16] Section 138 of the Act emphasises the importance of the modern awards objective:
‘A modern award may include terms that it is permitted to include, and must include terms that it is required to include, only to the extent necessary to achieve the modern awards objective and (to the extent applicable) the minimum wages objective.’
[17] There is a distinction between what is ‘necessary’ and what is merely ‘desirable’. Necessary means that which ‘must be done’; ‘that which is desirable does not carry the same imperative for action.’
[18] Reasonable minds may differ as to whether a proposed variation is necessary (within the meaning of s.138), as opposed to merely desirable. What is ‘necessary’ to achieve the modern awards objective in a particular case is a value judgment, taking into account the s.134 considerations to the extent that they are relevant having regard to the context, including the circumstances of the particular modern award, the terms of any proposed variation and the submissions and evidence.
[19] Further, the matters which may be taken into account are not confined to the considerations in s.134. As the Full Court observed in Shop, Distributive and Allied Employees Association v The Australian Industry Group:
‘What must be recognised, however, is that the duty of ensuring that modern awards, together with the National Employment Standards, provide a fair and relevant minimum safety net of terms and conditions itself involves an evaluative exercise. While the considerations in s 134(a)-(h) inform the evaluation of what might constitute a “fair and relevant minimum safety net of terms and conditions”, they do not necessarily exhaust the matters which the FWC might properly consider to be relevant to that standard, of a fair and relevant minimum safety net of terms and conditions, in the particular circumstances of a review. The range of such matters “must be determined by implication from the subject matter, scope and purpose of the” Fair Work Act.’
[20] In 4 Yearly Review of Modern Awards – Penalty Rates (Penalty Rates Decision) the Full Bench summarised the general propositions applying to the Commission’s task in the four-yearly review of modern awards, as follows:
‘1. The Commission’s task in the Review is to determine whether a particular modern award achieves the modern awards objective. If a modern award is not achieving the modern awards objective, then it is to be varied such that it only includes terms that are ‘necessary to achieve the modern awards objective’ (s.138). In such circumstances regard may be had to the terms of any proposed variation, but the focal point of the Commission’s consideration is upon the terms of the modern award, as varied.
2. Variations to modern awards must be justified on their merits. The extent of the merit argument required will depend on the circumstances. Some proposed changes are obvious as a matter of industrial merit and in such circumstances it is unnecessary to advance probative evidence in support of the proposed variation. Significant changes where merit is reasonably contestable should be supported by an analysis of the relevant legislative provisions and, where feasible, probative evidence.
3. In conducting the Review it is appropriate that the Commission take into account previous decisions relevant to any contested issue. For example, the Commission will proceed on the basis that prima facie the modern award being reviewed achieved the modern awards objective at the time it was made. The particular context in which those decisions were made will also need to be considered.
4. The particular context may be a cogent reason for not following a previous Full Bench decision, for example:
• the legislative context which pertained at that time may be materially different from the Fair Work Act 2009 (Cth);
• the extent to which the relevant issue was contested and, in particular, the extent of the evidence and submissions put in the previous proceeding will bear on the weight to be accorded to the previous decision; or
• the extent of the previous Full Bench’s consideration of the contested issue. The absence of detailed reasons in a previous decision may be a factor in considering the weight to be accorded to the decision.’
...
[22] Section 578 of the Act is also relevant, it provides:
‘In performing functions or exercising powers, in relation to a matter, under a part of this Act (including this Part), the FWC must take into account:
(a) the objects of this Act, and any objects of the part of this Act; and
(b) equity, good conscience and the merits of the matter; and
(c) the need to respect and value the diversity of the work force by helping to prevent and eliminate discrimination on the basis of race, colour, sex, sexual orientation, age, physical or mental disability, marital status, family or carer’s responsibilities, pregnancy, religion, political opinion, national extraction or social origin.’”
(references omitted)
[105] During the 4 yearly review of modern awards, the Part-time and Casuals Full Bench expressed the following in relation to minimum engagement terms in modern awards:
“[399] Minimum engagement periods in awards have developed in an ad hoc fashion rather than having any clear founding in a set of general principles. However their fundamental rationale has essentially been to ensure that the employee receives a sufficient amount of work, and income, for each attendance at the workplace to justify the expense and inconvenience associated with that attendance by way of transport time and cost, work clothing expenses, childcare expenses and the like. An employment arrangement may become exploitative if the income provided for the employee’s labour is, because of very short engagement periods, rendered negligible by the time and cost required to attend the employment. Minimum engagement periods are also important in respect of the incentives for persons to enter the labour market to take advantage of casual and part-time employment opportunities (and thus engage the consideration in paragraph (c) of the modern awards objective in s.134).” 41
[106] The notion of exploitation had earlier been discussed by the Full Bench in Victorian Employers’ Chamber of Commerce and Industry in the following terms:
“The rationale for minimum periods of engagement is one of protecting employees from unfair prejudice or exploitation. Given the time and monetary cost typically involved in an employee getting to and from work, it has long been recognised that employees, especially casual employees, can be significantly prejudiced if a shift is truncated by the employer on short notice (as would otherwise be lawful in a typical casual engagement) or the employee can be pressured into accepting unviable short shifts in order to retain access to longer shifts.” 42
[107] The Part-time and Casuals Full Bench adopted this rationale and described the dynamic as follows:
“…in respect of casual employees, particular prejudice may arise where a shift is ended after a short period with little or no notice or where the casual employee agrees to perform unfairly short shifts in order to ensure that the employer continues to allocate work to them in the future.” 43
[108] The Part-time and Casuals Full Bench then proceeded to outline what it described as “important countervailing considerations” required to be taken into account:
• longer minimum engagement periods may prejudice those persons who wish to and can only work for short periods of time because of family, study or other commitments, or because they have a disability;
• the need for and length of a minimum engagement period may vary from industry to industry, having regard to differences such as in rostering practices and whether there are broken shifts;
• an excessive minimum engagement period may cause employers to determine that it is not commercially viable to offer casual engagements or part-time work, which may prejudice those who desire or need such work; and
• a minimum daily engagement period for part-time employees might not need to be as long as for casual employees, because part-time employees are likely to enjoy the greater security of a guaranteed number of weekly hours of work. 44
[109] It has been relevantly observed by previous Full Benches of the Commission that the issue of minimum engagement periods did not receive any systematic consideration during the award modernisation process, which had largely preserved the predominant provisions concerning minimum engagements contained in pre-reform awards. 45 In Victorian Employers’ Chamber of Commerce and Industry, the Full Bench described the circumstances as follows:
“The Award Modernisation Full Bench of the Australian Industrial Relations Commission (AIRC) did not address the question of minimum engagements in any of its decisions and statements made in connection with the award modernisation process. This is because minimum engagements did not emerge as a significant issue during that process.” 46
[110] In determining the application for the making of a State reference public sector modern award for Victorian Local Government in 2015, it is clear that the Local Government Full Bench paid close regard to the Local Government Award when making the VLGA. The Full Bench made no specific reference to minimum engagement periods when doing so, but did outline its approach in the following manner:
“The legislative provisions make clear that the Commission should apply the modern awards objective in determining the content of the modern awards. The awards are intended to be a safety net. Actual terms and conditions are matters for parties based on the award minima. In our view, the modern awards objective is best served by a high degree of commonality between awards applying to comparable employees. It follows that the existing modern local government award will be a major influence over the terms of the state reference award. The award we have determined to make reflects this approach and has regard to the specific submissions of the parties on the proposed content.” 47
[111] We observed that neither the ASU nor the Councils (who both appeared in that proceeding) appeared to make specific submissions on a minimum engagement period for casual employees, although it is apparent that both submitted draft awards for the consideration of the Full Bench. In the draft award submitted by the ASU, a casual employee was defined as “an employee who is engaged in relieving work or work of a casual nature and who is engaged and paid by the hour.” The Council submitted a draft award in which they defined a casual employee in terms identical to the (then) definition in the Local Government Award, “an employee who is engaged and paid as such but does not include a part-time or full-time employee.”
[112] It seems apparent that the first time the issue of minimum engagements in the Local Government industry received specific attention was during the part-time and casual employment common issues proceeding. Amongst the findings of the Part-time and Casuals Full Bench was that that while a 4-hour minimum engagement might have represented an appropriate balancing of the competing considerations under some awards, it should not be adopted on the across-the-board basis that was proposed by the ACTU. 48 However, the Full Bench proceeded to express the following provisional view in relation to 34 modern awards:
“…we do consider, having regard to those same competing considerations, that it is necessary for modern awards to contain some form of minimum engagement period for casual employees in order to avoid their exploitation in order to meet the modern awards objective. The modern awards listed in Attachment G contain no minimum engagement period at all. We have reached the provisional view that such awards should be varied to include a 2 hour minimum engagement period for casuals. However we will provide interested parties an opportunity to provide further submissions concerning this proposition.” 49
(Our emphasis)
[113] The Local Government Award was a modern award listed in Attachment G and therefore subject to the provisional view of the Full Bench. A group of Associations from the Local Government industry 50 took up the opportunity to make further submissions dated 2 August 2017. They argued:
• The inclusion of a two hour daily minimum engagement period for casual employees would require a change in work practices and services provided to the community.
• There were many instances in local government where employees were engaged for less than two hours.
• Part time employees have a minimum engagement of one hour under the Local Government Award, so the inclusion of a two-hour minimum engagement period for casual employees would create and inconsistency between the two groups.
• If the Commission was considering a period of minimum engagement for casual employees, it should be in line with that already in existence for part time employees.
[114] Although they initially made a request to be heard further, the group of Associations ultimately led no evidence on the question of a two hour daily minimum engagement period for casual employees and conceded in submissions dated 1 February 2018 that there was no evidentiary basis as to why it should not be included in the Local Government Award. At a hearing on 2 February 2018, the Associations confirmed that they had abandoned any attempt to “move away” from the two-hour minimum. These matters were noted by the Part-time and Casuals Full Bench as follows:
“We consider that these concessions by the LGA were properly made, and that no basis has been shown why we should depart from the provisional view expressed in the principal decision in respect of the Local Government Industry Award. Provision for a 2 hour minimum engagement for casual employees shall be added to the award. A draft determination consistent with our general conclusions earlier stated shall be published, and 7 days will be allowed for further comment. The variation shall take effect on 1 October 2018.” 51
[115] Accordingly, for the local government industry outside Victoria, a 2-hour minimum engagement for casual employees was introduced in the following terms:
“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.” 52
[116] The Councils said they did not make submissions in relation to the 2-hour minimum engagement period for casual employees during the proceeding before the Part-time and Casuals Full Bench because the Local Government Award is not the relevant industrial instrument for them for the purposes of the BOOT.
[117] A pillar of the case advanced by the Councils is that in an application of this kind, they have no obligation to establish or prove anything at all. Rather, the Councils submit, there is a burden imposed on the ASU to establish on the evidence that the two-hour minimum engagement for casual employees is necessary to achieve the modern awards objective. The Councils contend that ASU has failed, in any material respect, to lead evidence to establish that there is any necessity at all for the variation to be made in the terms it has sought and as a consequence, the Commission cannot reach the relevant state of satisfaction required by s.157 of the Act.
[118] Turning to a consideration of the evidence, it may be said that it was not extensive.
[119] For home care employees, there was a single ASU witness employed by a regional shire council in a permanent part time role. The Councils adduced evidence from three witnesses. Two were also from regional shire councils and the other from Geelong but none worked in the role of a home care employee. There was no dispute amongst the witnesses that the work of home care employees comprised multiple engagements in which a variety of tasks were in the homes of different clients are undertaken, that the tasks were required to be completed over the course of a working day and that travel from client to client was necessary. It was also not in dispute that each engagement was relatively short. Further, notwithstanding the State and Federal Government funding it would seem there is a need for the Councils to provide an additional level of subsidy to keep the cost of these services affordable for clients.
[120] As to employees in Arts and culture, the ASU adduced evidence from a casual employee engaged under an enterprise agreement which provides a minimum engagement of 3 hours for casual employees and who tends to be rostered for 4-hour engagements. He gave an account that covered his views on what a one-hour engagement might entail and require. The other ASU witness is a permanent part time employee who relayed what he understood to be working conditions of casual employees in his field which was refuted by the Council witness who works in Arts and Culture in the same municipality.
[121] For Library shelvers/stackers, the only evidence came from one CEO of a Council Library Corporation. Her account indicated that these roles are essentially filled by students for shifts of one to two hours on a casual basis, that other staff can perform shelving/stacking work, that a shift of longer than two hours for this sort of works raises work health and safety considerations due to its repetitive nature and that the size of a particular library would impact the length of shift capable of being offered.
[122] In the case of Pound attendants, only two witnesses gave evidence and from their testimony we can conclude that short shifts of approximately one hour are required on weekends and public holidays and that these are currently staffed on a roster worked by permanent employees.
[123] There was a single witness for the Councils who gave evidence in relation to Community drivers. This evidence indicated that while all shifts were likely to exceed one hour due to the requirement to include a 30-minute pre-run safety check, they would tend not to exceed 1.5 hours because the runs themselves are short and there is a preference amongst passengers (often elderly) to not be on a bus for more than one hour per trip. The witness also suggested that her employer would use permanent part time staff with gaps in their rosters instead of casual employees if a two-hour minimum engagement was imposed.
[124] Ms Hardy for the ASU noted that Livestock and saleyards falls within the local government area of ‘governance’ and that 73.99% of casual employees falling within this broad area are female. However, there was no direct evidence as to how many Livestock and saleyards casual employees are employed by the Councils or how many of these are female. There was otherwise no evidence from either party in relation to Livestock and saleyards.
[125] There was also no evidence from either party in relation to either Childcare workers in playhouses or Occasional childcare workers in leisure and aquatic centres. The Councils addressed Occasional childcare workers in leisure and aquatic centres by suggesting the question of minimum engagement needed to be considered having regard to the length of swimming and fitness classes. The essence of the ASU position is that such childcare workers engaged on a casual basis would have an entitlement to a longer minimum engagement if employed in other industries and should not be subject to an inferior entitlement because of the industry in which they are employed.
[126] The ASU adduced no witness evidence in relation to Youth workers in social, community and disability services, while the evidence from the Councils involved the engagement of youth workers for the delivery of a somewhat discrete program limited to one municipality.
[127] For Visitor information centres, there was ASU evidence from a part time visitor services officer at a regional shire council and evidence for the Councils from officers from two other regional shire councils. The ASU witness suggested the use of casual employees in visitor centres by her employer was ad hoc and with shifts of greater than two hours in length. The Councils’ evidence indicated that one of the regional shire councils used casual employees for shifts of one to two hours and suggested that the other regional shire council had a desire to do likewise. In the case of both, the need to provide lunch cover was cited as the driver for such shifts for casual employees.
[128] In relation to Cleaners, the Joint Report recorded that the ASU would agree to an exclusion of cleaners from the 2-hour minimum engagement where they were to clean a location with a total area of no more than 300 square meters. 53 The position the Councils took into the hearing was that the parties had agreed to this but they (the Councils) opposed the imposition of a two-hour minimum engagement period for employees cleaning locations with a total area of more than 300 square metres.54 The Councils led evidence from a single witness employed by a regional shire council in the role of Contract & Procurement Coordinator. The evidence was that cleaning shifts for casual employees were ad hoc and often arose at short notice or for the purposes of backfilling the shifts of permanent employees on leave. Further, the evidence was that single facilities were geographically disbursed, generally able to be cleaned in approximately 1.5 hours and all kindergartens within the municipality were over 300 square metres in size. It can be accepted that there would be particular times at which facilities could be cleaned.
[129] The ASU submitted that adopting a uniform two-hour minimum engagement within the VLGA, subject to the agreed exceptions, will serve the modern awards objective by achieving a high degree of commonality between awards applying to comparable employees. In this regard, the ASU cited the Local Government Award, which includes a two-hour minimum engagement period for all casual employees 55 and modern awards applicable to employees working in similar roles outside the local government industry, which include minimum engagement periods for casual employees of at least two hours.
[130] The ASU contended that a two-hour minimum engagement has developed as a standard in the modern awards system as something necessary to provide a fair and relevant safety net. In particular, the ASU relied on the provisional view of the Part-time and Casuals Full Bench, “that it is necessary for modern awards to contain some form of minimum engagement period for casual employees in order to avoid their exploitation in order to meet the modern awards objective” having regard to a range of competing considerations. 56 The ASU accepted that each award needs to be reviewed in its own terms and there may be reasons to depart from this standard but argued that the evidence did not demonstrate that there was a reason to depart from it. In particular, the ASU argued that the evidence did not demonstrate that the two-hour minimum engagement was inappropriate or would cause an impact on the Councils that was so adverse that this “almost universal protection” for employees in the modern award system should not apply.
[131] The ASU contended that a two-hour minimum engagement period for casual employees is also necessary to ensure that employees receive a sufficient amount of work and income for each attendance at the workplace and argues there is a real risk of decreased workforce participation, particularly among female employees, if a one-hour minimum engagement period is retained for various categories of employees. In particular, the ASU asserted that one hour of income is insufficient to justify the expense and inconvenience associated with attending work, including transportation time and cost, work clothing expenses and childcare expenses.
[132] The ASU submitted that including a two-hour minimum engagement period is a necessary component of the award safety net provided by the VLGA, with this protection particularly relevant to casual employees, who are otherwise unprotected from having their shifts reduced at short notice or being offered exploitative short engagements. The ASU acknowledged that while the local government industry is funded by various means, it is subject to pricing constraints due to limitations on the capacity to increase revenue from rate payments and the parameters around government funding received for aged care programs. However, the ASU argued that this should not mitigate against the application of a two-hour minimum engagement provision, particularly when there is an “overwhelming consensus amongst Full Benches” that at least a two-hour minimum engagement is necessary to establish a fair and relevant minimum safety net of terms and conditions.
[133] The ASU proffered that the history of award regulation under previous industrial relations systems is somewhat irrelevant because it was deliberately set aside by the Commission when it adopted the terms and provisions of the Local Government Award in making the VLGA, albeit at a time when the Local Government Award did not include a minimum engagement period for casuals. The ASU argued that since then, the minimum engagement provisions have been reviewed by the Commission across a wide range of awards and principles have been established. It asserted the evidence demonstrates the need for a minimum engagement in the VLGA and that there is nothing before the Commission suggesting that any harm or unfairness would be suffered by the Councils, such that this variation should not be made. The ASU urged us to follow previous decisions and adopt the approach of the Part-time and Casuals Full Bench in introducing a two-hour minimum engagement period for casual employees in the VLGA.
[134] The ASU argued that each award needs to be reviewed on its own terms although approached the Application by submitting that the two-hour minimum engagement has developed as a modern awards standard, necessary to provide a fair and relevant safety net. The ASU argued there is a “weight of authority in support of minimum engagements as an important protection for workers” 57 and the Commission needs to be satisfied there are reasons for not following those decisions when it comes to the Victorian local government industry. Further, the ASU argued that the evidence does not demonstrate there is a need to depart from the two-hour minimum engagement standard. It contends that the evidence of the Councils does not “get to a level where the rational(e) of a two-hour minimum engagement is counter-balanced to the unfairness to the employer.”58
[135] The Councils submitted it is not enough, for the purposes of the Application, for the ASU to simply state that because other modern awards have a minimum two-hour engagement that the VLGA needs to have a minimum two-hour engagement. The Councils argued the Commission cannot reach the state of satisfaction required of it by s.157 of the Act because the ASU has failed, in any material respect, to lead evidence to establish that there is any necessity at all for the variation to be made in the terms sought in order to achieve the modern awards objective or, put another way, that without the amendment, the modern award objectives would not be met. In particular, the Councils submitted that each of the roles it seeks to have excluded from the 2-hour minimum casual engagement, together with cleaners engaged to clean locations of over 300 square metres, should be excluded because, on the evidence before us, we cannot be satisfied that varying the VLGA in the terms sought is necessary to achieve the modern awards objective.
[136] In terms of s.134(1)(a) of the Act, the Councils submitted there was no evidence led by the ASU that a failure to make changes in the terms sought would affect living standards and the needs of low paid workers and asserted there was no evidence of any low paid workers at all having regard to “the generous terms in the enterprise agreements in this industry.” 59 They submitted much of the ASU’s evidence concerned the fact that employees have negotiated better terms and conditions through agreements and submitted that any changes could be made in that context.
[137] As to s.134(1)(b), the Councils stated that the Councils and ASU have, over a number of years, negotiated agreements that have suited them. They otherwise asserted the ASU offered nothing probative, making only vague suggestions and contended that the variation the ASU seeks undermines collective bargaining because it would allow the ASU to achieve something “through the back door” that they have not been able to achieve in bargaining.
[138] The Councils’ position on s.134(1)(c) was that there was no evidence the change sought would increase participation and they asserted the evidence that various councils are going to consider closing programs was not undermined in cross examination.
[139] Similarly, the Councils argued there was no evidence to support the proposition that the change sought is conducive to flexible work (s.134(1)(d)), asserting the evidence established there were a significant number of short-term jobs performed for one hour or less and that the Councils would consider closing programs if faced with a two-hour minimum engagement obligation, thereby decreasing participation.
[140] As to the principle of equal remuneration for work of equal or comparable value (s.134(1)(e)), the Councils characterised the ASU’s position as being inconsistent, asserting that while that concept enshrines being paid for work performed, the ASU was seeking a minimum payment period for circumstances in which work would not be performed. The Councils submitted the evidence reveals that there are engagements of less than two hours and that they would therefore be in a position of trying to manufacture or find work to be performed for a minimum two-hour period.
[141] In submitting it is not appropriate that the VLGA be varied to bring it into line with the Local Government Award in respect to a two-hour minimum for casual employees, the Councils argued that consideration must be given to the following factors outlined by the Part-time and Casuals Full Bench:
a) Not prejudicing those persons who wish to and can only work for short periods of time;
b) Variations from industry to industry; and
c) A concern that an excessive minimum engagement period may cause employers to determine that it is not commercially viable to offer casual engagements or part-time work.
[142] Further, the Councils submitted:
a) The cross examination carried out by the ASU on costings and enterprise agreements and roster arrangements in local government did not advance matters because the cost impacts of a two-hour minimum engagement are obvious, there is 100% agreement coverage in the Local Government industry in Victoria and casual employees are not subject to rosters, their engagements being ad hoc;
b) Requirements in the Local Government Act 2020 obligate the Councils to provide good governance so as to ensure their ongoing financial viability;
c) The differences between metropolitan councils and rural/regional councils and the local government and private sectors are relevant considerations;
d) The consequences of any decision introducing additional expenses will be borne by ratepayers, with the Councils having to either pass on the cost, run at substantial losses or withdraw services; and
e) The ASU witnesses were predominantly permanent part-timers who would not be directly affected by the proposed variation, rather than casual employees.
[143] As to reconciling the similarities and differences between the position in the VLGA and the Local Government Award (and other industries), and in particular the distinction between part time employees and casual employees, the Councils submitted that the Commission may have regard to these but is not otherwise relieved of its obligation to reach the requisite state of satisfaction.
[144] Ultimately, the primary position of the Councils in relation to the disputed categories is that no minimum engagement period should be imposed. Their alternative proposition is that if the Commission is minded to insert a minimum engagement provision in respect of the casual workforce, regard must be had to clause 10.4(e) of the VLGA, which proscribes a minimum one-hour engagement for part-time employees. In relation to this, the Councils asserted there is no basis advanced by the ASU to justify the imposition of a greater minimum engagement period for casual employees compared to part time employees.
[145] We do not consider the authorities referred to above at [103] – [110] lend support to the contention of the Councils that the determination of the Application rests on whether the ASU has discharged a burden of proof imposed on it as the Applicant. Having regard to these authorities, a variation to a modern award must be justified on its merits. The authorities establish that what is ‘necessary’ to achieve the modern awards objective in a particular case is a value judgment, taking into account the s.134 considerations, to the extent that they are relevant, having regard to the context. The context is said to include the circumstances of the particular modern award, the terms of any proposed variation and the submissions and evidence.
[146] It is evident the Part-time and Casuals Full Bench determined, having regard to the competing considerations it outlined, that in order to meet the modern awards objective it is necessary for modern awards to contain some form of minimum engagement period for casual employees in order to avoid their exploitation. For approximately 30 modern awards that previously had no minimum engagement period at all, the Part-time and Casuals Full Bench determined a minimum engagement of two hours was necessary.
[147] As regards the local government industry, it can be concluded that no discrete consideration has previously been given by the Commission to the question of minimum engagement for casual employees. As was outlined above in [114], the group of Associations ultimately led no evidence on the question of a two hour daily minimum engagement period for casual employees and the Part-time and Casuals Full Bench proceeded to vary the Local Government Award by inserting what is now clause 11.3.
[148] In the case of Home care employees, the evidence revealed the Councils attempt to bundle duties together as far as possible when allocating them so as to craft a worthwhile shift for the employees. We accept this is easier to do in metropolitan areas but that in regional municipalities, it proves more challenging. It is also apparent that the allocation of relevant State and Federal Government funding for these services is structured on a per unit basis which does not easily accommodate client cancellations and nor would it seem capable of being readily matched to a two-hour minimum engagement, as far as any obligation of the Councils to pay wages might be concerned. To the extent it revealed that one-hour minimum engagements may present fewer challenges than a two-hour minimum when designing rosters, we observe that there already exists the capacity for the Councils to roster a part-time employee for a minimum of one hour on any shift, pursuant to the requirement in clause 10.4(e) of the VLGA. Amongst the witnesses of the Council, including Mr Tozer, there was apprehension that a two-hour minimum engagement would render home care services unaffordable for existing clients, leaving them without access to services because the Councils would be required to find additional funding, either through an increase in charges for home care services or the diversion of funds from other Council services. As to these considerations, we consider the comments of the Full Bench in its decision of 2 September 2019 arising out of the review of the Social, Community, Home Care and Disability Services Industry Award 2010 during the 4 yearly review of Modern Awards, apposite:
“[138] The Commission’s statutory function is to ensure that modern awards, together with the NES, provide a fair and relevant minimum safety net. It is not the Commission’s function to make any determination as to the adequacy (or otherwise) of the funding models operating in the sectors covered by the SCHADS Award. The level of funding provided and any consequent impact on service delivery is a product of the political process; not the arbitral task upon which we are engaged.
…
[142] The Commission’s statutory function should be applied consistently to all modern award employees, while recognising that the particular circumstances that pertain to particular awards may warrant different outcomes. The fact that a sector receives government funding is not a sound basis for differential treatment. Further, given the gendered nature of employment in many government funded sectors such differential treatment may have significant adverse gender pay equity consequences.
[143] The impact upon business and employment costs of any proposed variation is one of a number of considerations to be taken into account. In the context of the matters before us we are not persuaded that such considerations should be given determinative weight.” 60
[149] In circumstances where the evidence before us did not indicate the current utilisation of casual employees for home care duties was extensive or that current rostering practices could not be varied, the evidence from Mr Tozer and the other Council witnesses regarding increased charges as a consequence of a two-hour minimum engagement cannot be given determinative weight. Perhaps the Councils would respond by raising pricing by some amount, perhaps they would increase their subsidy of home care services or perhaps they might vacate the field. These are all matters for individual Councils. Perhaps also, the Councils might change their rostering practices. We have not been persuaded that any imposition of a two-hour minimum will have a particular effect one way or the other.
[150] In Arts and culture, a common thread emerging from the evidence is that work fluctuates, and some scenarios would more readily absorb a transition to a two-hour minimum engagement than others. This was a theme that also emerged in the evidence relating to the various other contested categories.
[151] As was observed by the SCHADS Award Full Bench, “Determining the duration of a minimum engagement period is largely a matter of impression and judgment, balancing the relevant considerations.” 61 Nothing presented in the evidence or the submissions persuades us that either the rationale for minimum engagements or the countervailing considerations enunciated by the Part-time and Casuals Full Bench should be displaced. We have attempted to balance these in coming to our conclusion.
[152] We have noted that the Preliminary Jurisdictional Issues Full Bench observed that the need to balance the competing considerations in s.134(1) and the diversity in the characteristics of the employers and employees covered by different modern awards means that the application of the modern awards objective may result in different outcomes between different modern awards and that different combinations or permutations of provisions may meet the modern awards objective. 62 However, the evidence and submissions have not persuaded us that the characteristics of employers and employees in the Victorian local government industry are so diverse that they warrant minimum engagement provisions for casual employees that are markedly different to other modern awards.
[153] We consider that our obligation to ensure the VLGA provides a fair and relevant safety net requires treatment for casual employees covered by the VLGA that is consistent with the entitlement to a two-hour minimum engagement enjoyed by the casual employees that have fallen within the determination of the Part-time and Casuals Full Bench. We have also had particular regard to the view expressed by the Local Government Full Bench that the modern awards objective is best served by a high degree of commonality between awards applying to comparable employees and have considered the entitlement of casual employees covered by the Local Government Award to be engaged and paid for at least 2 consecutive hours of work on each occasion they are required to attend work. We have also noted that this view on a “high degree of commonality” appeared to be the approach adopted by the Councils when the VLGA was made in 2015. Indeed, the submissions by Meerkin & Apel for the Councils dated 25 July 2014 in that proceeding outlined:
• The Councils had submitted a form of award that “closely” reflected the Local Government Industry Award 2010 (the predecessor instrument to the Local Government Award);
• the Local Government Industry Award 2010 met the principles and requirements of award modernisation and was the “logical instrument to be used as the basis for the modern award replacement” of the VLAA (the predecessor instrument to the VLGA);
• there was no compelling reason to create another award with general conditions of employment, when a “perfectly suitable modern award” already existed;
• there was no apparent advantage or benefit to be gained by “ignoring first principles and creating a new and different award”; and
• Victorian Local Government was “not exceptional and has no special features that require different conditions of employment to those contained in the existing modern award. The modern award caters for all the occupational categories that apply to Victorian Local Government -in regard to definitions, classifications, hours, and allowances.”
[154] As to the categories that have been the focus of the Application, we have had regard to the following:
a) The outcome of the review of the Social, Community, Home Care and Disability Services Industry Award 2010 was the determination of the SCHADS Award Full Bench that the minimum engagement period for casual home care employees under SCHADS Award should be two hours. As to this, we have not been persuaded that the circumstances prevailing in the provision of home care services in the Victorian local government industry differ to such an extent that a different minimum engagement period for casual home care employees is warranted. We do not accept that Victorian local government should represent the lowest common denominator for minimum engagements when it comes to casual employees providing home care services;
b) Clause 57.1 of the Live Performance Award 2020 provides casual employees with a minimum engagement of 3 consecutive hours, such that we are inclined to the view that as far as employee engagements in Arts and culture are concerned, the issue for the Councils, if faced with a two-hour minimum, would be predominantly one of work organisation as opposed to one of wage affordability;
c) While not accepted by the Councils, we consider similar work to Library shelving/stacking outside of the Victorian local government industry is capable of falling within the operation of the Educational Services (Schools) General Staff Award 2020 63 and note that award requires a casual employee to be engaged and paid for a minimum of two hours for each engagement;
d) As far as Pound attendants are concerned, under clause 11.4 of the Animal Care and Veterinary Services Award 2020, casual employees are entitled to a minimum payment of 3 hours’ work at the appropriate rate;
e) Having regard to Community drivers, the regulation of bus drivers outside of Victorian local government industry, we observe that in the case of casual employees engaged to transport school children to and from school, there is an entitlement to a minimum payment of two hours pursuant to clause 11.3(a)(ii) of the Passenger Vehicle Transportation Award 2020;
f) There is a two-hour minimum engagement for casual employees for child care employees in each of the Children’s Services Award 2010, the Educational Services (Schools) General Staff Award 2020 and the Registered and Licensed Clubs Award 2020;
g) Outside of Victorian local government, youth work or community development work falls within the definition of social and community services covered by the SCHADS Award, for which a three-hour minimum engagement applies in relation to casual employees, such that we therefore consider that the issue for the Councils, if faced with a two-hour minimum, would be predominantly one of work organisation as far as Youth workers are concerned;
h) While the staffing of Visitor Centres produces a discrete set of logistical considerations for the Councils, in the case of the Alpine Resorts Award 2020, the classification of Resort Worker Level 2 includes duties which would appear to be not dissimilar to the duties required of employees in Visitor Information Centres 64 and that casual employees under that award have, by virtue of clause 11.4, an entitlement to a minimum payment of two hours on each occasion they are required to work. While that award also provides that a casual employee may request and the employer may agree to an engagement for less than the minimum hours, we note that this was not a form of clause that found favour with the Part-time and Casuals Full Bench;65 and
i) The only circumstances in which a minimum engagement of less than two hours applies to cleaners under the Cleaning Services Award 2020 is when the area to be cleaned is not more than 300 square metres. Although the evidence before us did not elucidate the extent to which such facilities were operated by the Councils, we are satisfied it established that the engagement of casual employees was not less than one hour.
[155] This has led us to conclude that when it comes to minimum engagements for casual employees, the issue for the Councils, if faced with the requirement of a two-hour minimum, would ultimately be one of work organisation more than wage affordability.
[156] As to the alternative proposition of the Councils that if the Commission is minded to insert a minimum engagement provision in respect of the casual workforce, regard must be had to clause 10.4(e) of the VLGA prescribing a minimum one-hour engagement for part-time employees, we are not persuaded. We have considered entitlements part time employees enjoy that are not shared by casual employees, such as relative income security, reasonably predictable hours of work and a guaranteed number of hours each week and do not accept the proposition of Mr Tozer that there is no justification for differentiation between casual employees and part-time employees.
[157] During the course of the hearing, the parties were asked to consider whether it was open to us to consider a variation involving a minimum payment provision, as opposed to a provision dealing with minimum engagement and payment. At the hearing, the ASU submitted that if this was something that we were minded to do so, a Statement would need to be issued, comment invited and, potentially, further evidence received. 66 Post hearing, the ASU suggested that if the Commission is satisfied that if it is necessary for the VLGA to include a minimum payment period for casual employees to achieve the modern awards objective, then it must vary the Award accordingly.67 The ASU however made no submission that the evidence before the Commission supported such an outcome. The Councils submitted a variation of this nature had not formed the basis upon which the ASU had advanced its case, that the evidence did not support such an outcome68 and subsequently suggested they may require the opportunity to adduce additional evidence and make further submissions.69 In the circumstances, we have determined not to engage further with this proposition as part of the Application. If any party subsequently seeks to vary the VLGA in such a manner, they may make an application to do so.
[158] Accordingly, having regard to the material before us, and subject to what follows in relation to the agreed exceptions and the provision of some cleaning services, we have concluded that a two-hour minimum engagement for casual employees reflects an appropriate balance between the various considerations and is a fair and relevant minimum safety net condition in the VLGA. For the reasons given, we do not consider that the following classifications should be excluded from the two-hour minimum engagement provisions for casual employees:
• Home Carers;
• Arts and Culture (arts programs, exhibitions, museums, art galleries, events, entertainment and theatres);
• Livestock and Saleyards;
• Library Shelvers/Stackers;
• Pound Attendants;
• Community Drivers;
• Childcare Workers in Playhouses;
• Occasional Childcare Workers in Leisure and Aquatic Centres;
• Youth Workers in social, community and disability services;
• Visitor Information Centres; and
• Cleaners when the area to be cleaned is more than 300 square metres.
[159] We are not persuaded that the provision of cleaning services in the Victorian local government industry requires a two-hour minimum engagement period for casual cleaners when the area to be cleaned is not more than 300 square metres and address this employment scenario below in our consideration of the agreed exceptions.
[160] Further, we are satisfied that at least some of the s.134 considerations are relevant to consider:
• As to s.134(1)(a) requiring us to consider ‘relative living standards and the needs of the low paid’, we accept a threshold of two-thirds of median full-time wages provides a suitable benchmark for identifying who is ‘low paid’ within the meaning of s.134(1)(a) and that therefore a proportion of employees covered by the SCHADS Award may be regarded as ‘low paid’. It follows that they may be better able to meet their needs if the proposed variation is made, although we are not persuaded the impact of the proposed variation on these factors is likely to be significant;
• As to s.134(1)(b) requiring us to consider ‘the need to encourage collective bargaining’, we are again not persuaded that the proposed variation would ‘encourage collective bargaining’ in an industry that already has 100% agreement coverage and therefore do not consider this factor provides any support;
• As to s.134(1)(c) of the Act requiring us to consider ‘the need to promote social inclusion through increased workforce participation’, we consider this consideration is neutral because we are not persuaded the proposed variation will have a significant impact on total employment; and
• As to ss.134(1)(d) and (f) of the Act, we consider that while the proposed variation may alter the category of employee that may be rostered in some circumstances, existing rostering practices in terms of the length of engagement may yet remain unchanged, such that there is minimal to no impact on flexibility.
[161] We are not persuaded the considerations in ss.134(1) (da), (e), (g) and (h) are relevant in the context of this aspect of the Application.
[162] As to the State reference public sector modern awards objective, the Councils submitted that s.168F(1) “has been given relatively less consideration than the modern awards objective simply because there's a smaller number of State reference public sector awards.” 70 This is not inaccurate. We do not regard the requirement in s.168F(1)(a) of the Act to recognise the need to facilitate arrangements for State reference public sector employers and State reference public sector employees that are appropriately adapted to the effective administration of a State is relevant to the Application. This is because we do not consider the Councils fall within the definition of “a State” or that the engagement of casual employees in the classifications applicable to the minimum engagement claim has a material nexus to the effective administration of the State of Victoria.
[163] Section 168F(1)(b) of the Act requires the Commission to recognise that State reference public sector modern awards may provide terms and conditions tailored to reflect employment arrangements that have been developed in relation to State reference public sector employers and State reference public sector employees. As outlined above in [110]-[111], the Local Government Full Bench was influenced by the terms of the Local Government Award but made no specific reference to minimum engagement periods when making the VLGA and neither the ASU nor the Councils had made submissions in relation to minimum engagement periods in that proceeding. If to adopt a ‘tailored’ approach is to produce a State reference public sector modern award that is ‘made to order’, we do not consider it can be asserted that what was adopted in the VLGA in 2015 in relation to minimum engagement periods was a result of a ‘tailored’ approach. As far as the Application is concerned, we have considered the minimum engagement periods in modern awards covering industries other than Victorian local government that apply to employees in classifications similar to those that are the subject of the minimum engagement claim. In particular, we have considered the Local Government Award. We have also considered the evidence relating to various employment arrangements that have been developed for the Victorian local government industry and are satisfied that the incorporation of a two-hour minimum engagement for casual employees in the VLGA appropriately recognises these.
[164] As outlined above at [6], the Joint Report records the parties having agreed that swimming instructors, fitness instructors, personal trainers and school crossing supervisors ought be excluded from the requirement for a two-hour minimum engagement period for casual employees, having instead a one-hour minimum engagement. Neither party adduced any evidence to support a finding that varying the VLGA by inserting a one-hour minimum engagement for casual employees engaged as Swimming Instructors, Fitness Instructors, Personal Trainers and School Crossing Supervisors is necessary to achieve the modern awards objective.
[165] The Councils submissions did not go beyond recounting the details of the Joint Report and proffering that the Commission must be satisfied such changes are necessary to achieve the modern awards objective.
[166] The ASU submitted that the Preliminary Jurisdictional Issues Full Bench adopted a submission of Australian Business Industrial (ABI) 71 to the effect that when the parties have reached a consensus position, the Commission can proceed to make the agreed variations even though there is not any evidence before it that relates to them.
[167] The Preliminary Jurisdictional Issues Full Bench did not adopt the abovementioned submission of ABI. In making the following finding, it only adopted an ABI submission that in circumstances where typographical errors or other anomalies appear in awards, a variation may self-evidently be necessary:
“[23] The Commission is obliged to ensure that modern awards, together with the NES, provide a fair and relevant minimum safety net taking into account, among other things, the need to ensure a ‘stable’ modern award system (s.134(1)(g)). The need for a ‘stable’ modern award system suggests that a party seeking to vary a modern award in the context of the Review must advance a merit argument in support of the proposed variation. The extent of such an argument will depend on the circumstances. We agree with ABI’s submission that some proposed changes may be self-evident and can be determined with little formality. However, where a significant change is proposed it must be supported by a submission which addresses the relevant legislative provisions and be accompanied by probative evidence properly directed to demonstrating the facts supporting the proposed variation.” 72
[168] The Preliminary Jurisdictional Issues Full Bench finding was made in the context of the 4 yearly review of modern awards. In terms of applications to vary modern awards, we have earlier outlined that the authorities establish that what is ‘necessary’ to achieve the modern awards objective in a particular case is a value judgment, taking into account the s.134 considerations, to the extent that they are relevant, having regard to the context, and that the context is said to include the circumstances of the particular modern award, the terms of any proposed variation and the submissions and evidence. While neither party led evidence, we accept there is a rationale for making the variation in the terms agreed by the ASU and the Councils. We consider it would not be a statement of controversy to assert that the duration of a swimming or fitness class, personal training session or single engagement as a school crossing supervisor will generally be at least one hour.
[169] The Part-time and Casuals Full Bench held it was necessary for modern awards to contain some form of minimum engagement period for casual employees in order to meet the modern awards objective and where a modern award contained no minimum engagement period at all, it should be varied to include a two-hour minimum engagement period. 73 While we agree with these findings in broad terms, we believe there are distinguishing features attached to the agreed exceptions and casual cleaners engaged to clean areas of not more than 300 square metres. This is because in each case, there are other modern awards with minimum engagement provisions that applied at the time the Part-time and Casuals Full Bench made its finding and continue to apply to employees performing these or analogous roles in the private sector. We consider this is a factor from which guidance can be obtained.
[170] Firstly, we note that as far as swimming instructors, fitness instructors and personal trainers are concerned, a modern award entitlement to a one-hour minimum engagement applies if they are engaged by a private sector employer. 74 Secondly, for casual cleaners engaged to clean areas not more than 300 square metres in the private sector, a one-hour minimum engagement period is provided for in clause 13.5(c)(i) of the Cleaning Services Award 2020. Thirdly, we note that clause 11.4(b) of the Educational Services (Schools) General Staff Award 2020 provides for engagements for casual preschool/childcare services employees that comprise one hour to be worked before school and one hour after school and we consider these bear very close resemblance to the arrangements under which school crossing supervisors are engaged.
[171] Further, as we outline below at [175]-[176], we are required to have regard to the State reference public sector modern awards objective which includes, in s.168F(1)(b) of the Act, the requirement to recognise that State reference public sector modern awards may provide terms and conditions tailored to reflect employment arrangements that have been developed in relation to the Councils and their employees.
[172] Accordingly, having regard to this context, we have concluded that a one-hour minimum engagement for casual employees engaged as swimming instructors, fitness instructors, personal trainers, school crossing supervisors and casual cleaners engaged to clean areas not more than 300 square metres reflects an appropriate balance between the various considerations and is a fair and relevant minimum safety net condition in the VLGA.
[173] Our consideration in relation to s.134 of the Act is similar to that we outlined earlier in relation to the minimum engagement claim:
• As to s.134(1)(a) requiring us to consider ‘relative living standards and the needs of the low paid’, we accept a threshold of two-thirds of median full-time wages provides a suitable benchmark for identifying who is ‘low paid’ within the meaning of s.134(1)(a) and that therefore a proportion of employees covered by the VLGA may be regarded as ‘low paid’. It follows that they may be better able to meet their needs if the proposed variation is made, although we are not persuaded the impact of the proposed variation on these factors is likely to be significant;
• As to s.134(1)(b) requiring us to consider ‘the need to encourage collective bargaining’, we are not persuaded that the proposed variation would ‘encourage collective bargaining’ in an industry that already has 100% agreement coverage and therefore do not consider this factor provides any support;
• As to s.134(1)(c) of the Act requiring us to consider ‘the need to promote social inclusion through increased workforce participation’, we consider this consideration is neutral because we are not persuaded the proposed variation will have a significant impact on total employment; and
• As to ss.134(1)(d) and (f) of the Act, we are not persuaded the proposed variation would alter existing rostering practices or impact on flexibility and so regard these considerations as neutral.
[174] We are not persuaded the considerations in ss.134(1) (da), (e), (g) and (h) are relevant in the context of this aspect of the Application.
[175] As to the State reference public sector modern awards objective, our conclusions in relation to s.168F(1)(a) of the Act are the same as those we reached in [162] when considering the minimum engagement claim. In particular, we do not consider that the engagement of casual employees as swimming instructors, fitness instructors, personal trainers, school crossing supervisors and cleaners engaged at small stand-alone locations with a total cleaning area of not more than 300 square metres by the Councils has a material nexus to the effective administration of the State of Victoria.
[176] As to s.168F(1)(b) of the Act, we rely on our previous conclusion in [163] regarding the making of the VLGA in 2015 and further, we consider it is appropriate to tailor a minimum engagement period of one hour for swimming instructors, fitness instructors, personal trainers, school crossing supervisors and cleaners engaged at small stand-alone locations with a total cleaning area of not more than 300 square metres to reflect their employment arrangements.
[177] We consider the merits favour the variation of clause 10.5 of the VLGA and, having also recognised the State reference public sector modern awards objective, are satisfied that varying clause 10.5 by renumbering the current clause 10.5(c) as 10.5(d) and inserting a new clause 10.5(c) as follows, is necessary to achieve the modern awards objective:
“10.5 Casual employees
(a) Casual loading
Casual employees will be paid, in addition to the hourly ordinary time rate and rates payable for shift and weekend work on the same basis as a weekly employee, an additional loading of 25% of the hourly ordinary time rate for the classification in which they are employed as compensation instead of paid leave under this award and the NES.
(b) Penalties and overtime
Penalties, including public holiday penalties and overtime, for casual employees will be calculated on the hourly ordinary time rate for the classification in which they are employed exclusive of the casual loading.
(c) Minimum engagement
(i) Subject to clause 10.5(c)(ii), 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.
(ii) A casual employee engaged as a swimming instructor, fitness instructor, personal trainer, school crossing supervisor or cleaner engaged at a small stand-alone location with a total cleaning area of not more than 300 square metres must be engaged and paid for at least one hour of work on each occasion they are required to attend work.
(d) Offers and requests for casual conversion
Offers and requests for conversion from casual employment to full-time or part-time employment are provided for in the NES.
NOTE: Disputes about offers and requests for casual conversion under the NES are to be dealt with under clause 9—Dispute resolution”.
[178] As recounted above, in giving effect to the modern awards objective the Commission is performing an evaluative function taking into account the matters in s.134(1)(a)–(h) and assessing the qualities of the safety net by reference to the statutory criteria of fairness and relevance. Having taken into account those matters insofar as they are presently relevant and recognised the State reference public sector modern awards objective, we have decided to vary the VLGA as proposed at [177] above. A determination varying the VLGA will be issued with this Decision. In order for the Councils to make any necessary adjustments to work allocation and rostering, the determination will be operative from 1 February 2023.
DEPUTY PRESIDENT
Printed by authority of the Commonwealth Government Printer
<MA000132 PR747468>
Appearances:
M. Robson for the Australian Services Union with D. Predic and S. Fary.
M. Minucci for the Councils.
Hearing details:
2022.
By Video via Microsoft Teams
11 and 12 April.
4 Joint Report by the Australian Services Union, Victorian and Tasmanian Authorities and Services Branch (“ASU”) and Meerkin & Apel, dated 10 December 2021.
5 Preliminary Jurisdictional Issues Decision [2014] FWCFB 1788, [24]-[27].
6 State reference public sector transitional award modernisation [2015] FWCFB 3349.
7 [2015] FWCFB 3349 at [13].
8 Exhibit ASU6 at (17), DCB at p.86.
9 (2017) 269 IR 125 at [399].
10 (2000) 110 IR 247.
11 (1998) 78 IR 172.
12 (2000) 110 IR 247 at [140].
13 Ibid.
14 Ibid.
15 (2000) 110 IR 247 at [141].
16 (1998) 78 IR 172 at [203].
17 (1998) 78 IR 172 at [204].
18 Ibid.
19 (2017) 269 IR 125 at [402].
20 (2012) 224 IR 73.
21 Ibid at 78.
22 (2017) 269 IR 125 at [403].
23 Ibid at [405].
24 Ibid at [406].
25 Ibid at [409].
26 Ibid at [408].
27 Local Government Industry Award 2010 (2018) PR700662.
28 See Fitness Industry Award 2020 at clause 12.3(b) and Registered and Licensed Clubs Award 2020 at clause 11.5.
29 Four yearly review of modern awards [2021] FWCFB 2383 at [369]-[370].
30 Four yearly review of modern awards [2021] FWCFB 2383 at [232] and [322].
31 The minimum engagement for secondary school students working as dairy operators is two hours.
32 (2017) 269 IR 125 at [771].
33 Educational Services (Schools) General Staff Award 2020, Schedule A, clause A.2.2(e)(ii).
34 Passenger Vehicle Transportation Award 2020, clause 4.1.
35 Transcript 11 April 2022 at PN 241.
36 (2017) 269 IR 125 at [405].
38 At the time the Local Government Full Bench made the VLGA, Item 9 of Schedule 6A to the Fair Work (Transitional Provisions and Consequential Provisions) Act 2009 and now s.168F(1)(a) and s.168F(1)(b) of the Fair Work Act 2009.
39 [2020] FWCFB 1837 at [113] – [115].
41 (2017) 269 IR 125 at [399].
42 [2012] FWAFB 6913 at [12].
43 (2017) 269 IR 125 at [403].
44 Ibid.
45 The Part-time and Casuals Full Bench in (2017) 269 IR 125 at [402] and in Social, Community, Home Care and Disability Services Industry Award 2010 [2021] FWCFB 2383 at [250].
46 [2012] FWAFB 6913 at [12].
47 [2015] FWCFB 3349 at [13].
48 (2017) 269 IR 125 at [407].
49 Ibid at [408].
50 Municipal Association of Victoria, Local Government and Shires Association of New South Wales, Western Australian Local Government Association, Local Government Association of Tasmania, Local Government Association of South Australia, Local Government Association of Queensland and Local Government Association of Northern Territory,
51 [2018] FWCFB 4695 at [106].
52 Local Government Industry Award 2020, Clause 11.3.
53 As per clause 13.5(c)(i) of the Cleaning Services Award 2020.
54 Outline of Submissions dated 4 April 2022 at (7), DCB 250.
55 Local Government Industry Award 2010 (2018) PR700662.
56 (2017) 269 IR 125 at [408].
57 Transcript 12 April 2022 at PN 941.
58 Ibid at PN 942.
59 Ibid at PN 1117.
60 [2019] FWCFB 6067 at [138], [142] and [143].
61 [2021] FWCFB 2383 at [355].
62 [2014] FWCFB 1788 at [33] and [34].
63 Educational Services (Schools) General Staff Award 2020, Schedule A, Level 2, Clause A.2.2(e)(ii) - Curriculum/resources services grade 1.
64 See Annexure B to Exhibit ASU 3 at DCB 195.
65 (2017) 269 IR 125 at [409].
66 Transcript 12 April 2022 at PN 1194.
67 ASU letter to the Commission dated 20 April 2022.
68 Transcript 12 April 2022 at PN 1170.
69 Meerkin & Apel letter to the Commission dated 21 April 2022.
70 Transcript 12 April 2022 at PN 875.
71 [2014] FWCFB 1788 at [22].
72 Ibid at [23].
73 (2017) 269 IR 125 at [408].
74 Fitness Industry Award 2020 - Clause 12.3 and Registered and Licensed Clubs Award 2020 - Clause 11.5.