Dec 1440/98 M Print Q9229
AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION
Workplace Relations Act 1996
s.113 applications for variation
s.108 references to Full Bench
Shop, Distributive and Allied Employees Association
(C No. 34395 of 1997)
SHOP, DISTRIBUTIVE AND ALLIED EMPLOYEES
ASSOCIATION - VICTORIAN SHOPS INTERIM AWARD 1994
(ODN C No. 33323 of 1991)
[Print L3448 [S0492]]
Retail Traders' Association of Victoria
SHOP, DISTRIBUTIVE AND ALLIED EMPLOYEES
ASSOCIATION - VICTORIAN SHOPS INTERIM AWARD 1994
(ODN C No. 33323 of 1991)
[Print L3448 [S0492]]
C No. 30587 of 1997)
SHOP, DISTRIBUTIVE AND ALLIED EMPLOYEES
ASSOCIATION (FOOD AND LIQUOR STORES)
INTERIM AWARD 1994
(ODN C No. 30030 of 1993)
[Print L3446 [S0490]]
(C No. 30588 of 1997)
SHOP, DISTRIBUTIVE AND ALLIED EMPLOYEES
ASSOCIATION (BOOKSELLERS AND STATIONERS)
INTERIM AWARD 1994
(ODN C No. 30032 of 1993)
[Print L3447 [S0491]]
(C No. 30589 of 1997)
Review of awards pursuant to Item 51 of Part 2 of Schedule 5 of the
Workplace Relations and Other Legislation Amendment Act 1996
SHOP, DISTRIBUTIVE AND ALLIED EMPLOYEES
ASSOCIATION - VICTORIAN SHOPS INTERIM AWARD 1994
(ODN C No. 33323 of 1991)
[Print L3448 [S0492]]
(C No. 00555 of 1998)
SHOP, DISTRIBUTIVE AND ALLIED EMPLOYEES
ASSOCIATION (FOOD AND LIQUOR STORES)
INTERIM AWARD 1994
(ODN C No. 30030 of 1993)
[Print L3446 [S0490]]
(C No. 00553 of 1998)
SHOP, DISTRIBUTIVE AND ALLIED EMPLOYEES
ASSOCIATION (BOOKSELLERS AND STATIONERS)
INTERIM AWARD 1994
(ODN C No. 30032 of 1993)
[Print L3447 [S0491]]
(C No. 00554 of 1998)
Various employees |
Wholesale and retail trade |
COMMISSIONER HINGLEY |
MELBOURNE, 27 JANUARY 1999 |
Allowable award matters.
INTERIM DECISION
These matters had their origin in applications filed with the Commission on 18 February 1997 pursuant to Item 49 of Schedule 5 of the Workplace Relations and Other Legislation Amendment Act 1996 (the WROLA Act) and s.113 of the Workplace Relations Act 1996 (the Act) to vary the Shop, Distributive and Allied Employees Association - Victorian Shops Interim Award 1994, the Shop, Distributive and Allied Employees Association (Food and Liquor Stores) Interim Award 1994 and the Shop, Distributive and Allied Employees Association (Booksellers and Stationers) Interim Award 1994. The application sought a reference to the then President of the Commission for the applications to be heard by a Full Bench of the Commission. The request was granted.
Over a considerable period and under a series of directions by the Full Bench and on occasion members of the bench, and reports to the Full Bench, the parties participated in conciliation conferences which were facilitated by exchanges of documents setting out the respective positions of the parties.
Following the handing down of the Full Bench's Award Simplification decision [Print P7500] on 23 December 1997 Senior Deputy President Marsh listed this matter for submissions as to how it should best proceed and as a result referred the matter to the Commission as presently constituted for conciliation conferences which led to the provision of a new employers' proposal including an expressed desire for a combined retail shops award and a summary document of the employers' proposed award changes. On 24 April 1998 the Commission as presently constituted listed the matter so that the respective parties could outline on transcript their positions. A document was presented to the Commission as an analysis of proposed award clauses (Exhibit RTAV1). The document was referred to as an employer document of the parties respective positions, but subsequently after further amendment in later proceedings became exhibit RTAV6 and with minor contention from the union, became the joint basis of submissions save for two matters being, Trade Union Training Leave and Blood Donor Leave which were retained by the Full Bench for determination.
In its Interim Decision [Print Q4507], the Full Bench dealing with the leave matters on 7 August 1998 said; "It is appropriate to indicate also that we have decided to refer the completion of the review of the three retail awards before us, other than in relation to the leave matters, to Commissioner Hingley for hearing and determination" (p.8).
The interim period having expired, the matters were heard pursuant to Items 50 and 51 of the WROLA Act and s.113 of the Act.
The approach taken by the parties was to direct their submissions to the provisions of the Shop, Distributive and Allied Employees Association - Victorian Shops Interim Award 1994 (the Award) on the basis that with some exceptions the substantive matters of the other two awards were similar.
The substantive submissions on behalf of employers were put by Mr Diserio for the Retail Traders' Association of Victoria (RTAV) and the Australian Industry Group (AIG) [authorizing correspondence of 12 September 1998]. These submissions were generally adopted by Ms Bradley for Victorian Employers' Chamber of Commerce and Industry [confirmed in correspondence of 17 September 1998] and by the Commonwealth Government. Detailed submissions were made by Mr Diserio on a very substantial number of matters in contention which, where and as relevant, I will refer to herein. However the outline of submissions (Exhibit RTAV7) may be broadly summarised as follows;
"The employers desire the three interim shops awards to be combined into one interim award which in turn reflects the reality of the retail industry in Victoria in 1998. In particular, `Sunday trading is now an accepted part of Victoria's lifestyle and is part of the retail industry's operation.' The proposed combined award `should reflect this reality and the imperatives created for the industry as a result'."
It gave a summary of the proceedings leading to this instant hearing and noted that trade union training leave and blood donors leave were the subject of Full Bench determination.
The bases of the award changes sought by employers were set out as:
· changes to shop trading legislation which occurred in Victoria during November 1996;
· s.113 applications to vary the relevant awards originally made in February 1997;
· applications previously made to vary the relevant awards in relation to allowable award and prohibited award matters under the Act and with subsequent test case principles;
· Applications to vary the relevant awards brought under the WROLA Act; and
· the Commission's current review of relevant awards under the WROLA Act.
The areas of agreement were referred to and set out in relevant exhibits and eighteen areas of major disagreement were enunciated (setting aside those matters before the Full Bench).
Those changes sought by the union e.g. extension of adult rates to "juniors with family responsibilities" and other proposed changes to "junior rates", and differentiation within the award of classes of employees other than full-time, permanent part-time and casual were opposed. Also opposed were other changes sought by the union, said by the employers to be inconsistent with the Award Simplification Principles established by the Full Bench of the Commission on 23 December 1997 [Print P7500].
It was said that many other changes sought by the employers related to questions of flexibility and productivity, and consequential changes therefrom.
Mr Woodgate for the Commonwealth in submissions addressed seven specific issues while adopting the thrust of the employer submissions. Those specific issues may be summarised as follows;-
In respect of juniors receiving adult rates where they have family responsibilities it was said there are four barriers to the application succeeding. First, to grant the claim would result in indirect discrimination between two groups of junior employees. Secondly, it will lead to confusion because it is not clear it is limited to juniors with dependants and it is not clear what "family responsibilities" are definitionally. Thirdly, such an increase could not be characterised as a safety-net adjustment or as flowing from a national wage or work value increase and therefore does not fit within current wage fixing principles. Fourthly, there are a range of social security transfer payments provided to persons in paid employment accessible to junior employees. By way of example, Sole Parent Pensions, Childcare Cash Rebates and Childcare Assistance, were cited.
The claim for 18, 19 and 20 year olds to effectively be awarded a wage increase to adult pay levels was similarly said to offend current wage fixing principles, and would require a separate application to vary before a Full Bench. He suggested the Commission as presently constituted should note the Coalition Government's policy intention to legislate to permanently retain junior rates (Exhibit Commonwealth1 p.25).
Mr Woodgate drew attention to the current Commission inquiry into junior rates and cautioned against significant changes before awaiting its outcome.
He said it was instructive to note those amenities deleted in the "Hospitality Case" [Print P7500] and those the Full Bench concluded were not capable of conversion to an allowance. Similarly he pointed to examples found by Marsh SDP in the Metals Industry Award decision [Print P9311] as being not allowable. One of these was an allowance for boiling water as in this instant matter. Accordingly he submitted the union's claim in respect of boiling water in this matter should be rejected.
The Commonwealth argued he said, that while the parties sought to preserve the existing parental leave clause, the Commonwealth would submit that the revised Hospitality model clause should be followed. It was the Commonwealth's submission that it was preferable to follow Test Case model clauses. In this regard he said there were three such relevant clauses appropriate to this award i.e. parental leave clause, enterprise flexibility clause and anti-discrimination clause. In respect of the anti-discrimination clause it was he put arguable, that pursuant to S. 89A(8) there was no discretion for the Commission to include an alternative to the model clause.
On the matter of the introduction of change, the Commonwealth argued this was not an allowable matter. It was Mr Woodgate's submission that in the form sought by the union the clause was no more than a device to attract the allowability of a s.89A(2)(p) dispute settlement procedure, but this was not necessary as the award already provided a separate dispute settlement procedure clause. In this reliance was made on the comments of the "Hospitality Case" Full Bench when it noted:
"It is undesirable that awards should contain more than one dispute settlement clause." [Print P7500 p.18]
Mr Woodgate submitted that by definitional change in the Act the government had sought to regularise part-time employment as both "stable and predictable" and in this regard to delineate between these employees and casuals. Mr Woodgate said the evidence showed that part-time employment is numerically small in the retail industry and that perhaps this was because of restrictions e.g. on hours of work, forcing resort to casual employment. The opportunity was present now to convert many presently classed as casuals to the more secure regime of regular part-time positions.
The Commonwealth sought the introduction of facilitative provisions to reflect the emphasis of the legislation on more user friendly, less prescriptive awards, better suited to the needs of enterprises and the workplace, "being mindful of the safeguards and not seeking to reduce entitlements in any way." (transcript 16 October 1998 p.676 @ 36-37).
Mr Ryan for the Shop, Distributive and Allied Employees Association (SDA) in his outline of submissions (Exhibit SDA1 Volume 2 Tab 1) may be summarised as follows, but as with Mr Diserio he also made extensive and detailed submissions on all issues in contention which I will refer to as appropriate.
Mr Ryan in his outline agreed generally that the document Exhibit RTAV6 was an index of the respective positions of the parties, which also indicated that there was agreement as to very little in the award.
It was contended by SDA that the "vast bulk" of award provisions are "both allowable and also necessary for the proper operation of the award in that the clauses do not restrict or hinder flexibility, do not prescribe matters in unnecessary detail and do not hinder the efficient performance of work at the workplace. Further, the Association contends that there are no provisions in the award that need to be further facilitated in favour of the employer." (Exhibit SDA1 Volume 2 Tab 1 paragraph 3).
The SDA sought some changes said to ensure that the award deals properly with allowable matters.
These changes included removal of junior rates of pay for juniors with family responsibilities said to be a double discrimination and in addition to apply Adult rates of pay to employees 18 years of age and older on the basis that 18 years of age was the relevant adult age.
The changes also related to;
· Introduction of Change clause;
· Termination of Employment clause;
· Redundancy clause;
· Recognition of "regular" casuals for certain award entitlements; and
· Conversion of certain amenities provisions into allowances.
It was argued that the bulk of the changes sought by employers do not go to the question of allowability, but various provisions of Item 51(6) and (7), but on proper analysis are not necessary. It was submitted there are no matters of detail or process in the award that are more appropriately dealt with by agreement at the workplace or enterprise nor award matters restricting productivity or efficient performance of work.
The nature and particular circumstances of the industry mitigate against and make inappropriate further facilitative provisions.
The granting of variations proposed by employers it was submitted would have the effect of reducing the existing safety net, introduce significant levels of unfairness in relation to employees employed under the award and the vast majority do not accord with the Act nor the decisions of the Commission in relation to the award simplification process.
The SDA in evidence provided 30 exhibits and four witnesses for examination and 18 sworn witness statements in total.
The witnesses examined by agreement and for convenience were;
Ms Pauline Burgess SDA Women's Co-ordinator
Mr Wade Noonan SDA Organiser
Mr Craig Esposito SDA Organiser
Mr Michael Donovan SDA Victorian Branch Secretary
The RTAV in evidence provided 42 exhibits and relied upon evidence of two witnesses examined, being;
Mr Roger William Sayers Principal of Australian Retail Services (a consulting business); and
Mr Justin Peter Newman. RTAV - Human Resources Consultant.
The Commonwealth provided one exhibit in the form of an extract from the Coalition Government's Industrial Relations Policy (Exhibit C1).
Consideration of Submissions about the Nature of the Industry
I believe it is appropriate that I take into account the submissions of the SDA and the witness evidence, as to the low levels of retail employee award knowledge and access and the allegations that in many cases, they have little or no bargaining power with their employer. I am satisfied on the evidence that there may be in many instances potential for jeopardizing their rights and entitlements, with a too liberal resort to facilitative provisions. Facilitative provisions are in any event intended to "allow agreement at the workplace or enterprise level, between employers and employees (including individual employees), on how the award provisions are to apply:" (WROLA Act Item 51(7)(a)). The Full Bench in the Award Simplification Case (at p.38) commented;
"We think that the approach adopted by the Commission to the insertion of facilitative provisions into awards should reflect the fact that changes made through such clauses are not subject to Commission scrutiny. The nature and extent of the facilitative provisions in a particular award should take into account the circumstances in the industry covered by the award and the history of any existing facilitative provisions. For example in an industry in which employees have little or no bargaining capacity a more cautious approach may be warranted.
We wish to make five general points to assist the parties in the award review process:
1. Facilitative provisions should not be a device to avoid award obligations, nor should they result in unfairness to the employees covered by the award...."
On the other hand I have also had regard to what Mr Diserio and Mr Sayers described in relation to retail market growth, intensive and expanding forms of competition, on-going deregulation of retail trading hours and inter alia the changing lifestyles in the community impacting in changed shopping patterns and consumer demands. The extreme competitiveness and high number of bankruptcies and closures were instanced by both Mr Diserio in submissions and Mr Sayers in evidence (Exhibit RTAV9 @ 29 and 32). These industry and societal changes are those to be given consideration in meeting the tests prescribed in Item 51(6) and (7) specifically.
The task at hand is therefore primarily that which is described in Item 50 and 51 of the WROLA Act and S. 89A of the Act. In this regard the Principles of the Full Bench in its Award Simplification decision as was intended provide instructive guidance. The balance in all of these matters is a pervasive theme of the Act and that is fairness to employees and employers alike. Without attention to fairness the other objects such as efficiency, productivity and public interest have no integrity and are perhaps contradictions in terms.
Proposed Award
I have decided to adopt the procedural approach of the parties in their submissions, and that is to direct my focus and remarks to the Shop, Distributive and Allied Employees Association - Victorian Shops Interim Award 1994 as per exhibits RTAV6 and 8. Whether ultimately that leads to the combination of the three main shops awards into one may become apparent when the issues are determined. The numbering of clauses I have used broadly follow the "SDAEA Proposed Award" column of RTAV6 order, in which I have considered them and are not intended as an annotational direction for final orders. The sequence and numbering will be a consequential part of formatting and settling orders.
The title shall remain unchanged other than to be updated to 1998. I have retained the reference to "interim" at least until the question of combining the awards is determined. I say no more on this question other than that at such or a later time the question may be revisited.
The arrangement will reflect the final content of this award and numbered in the required format.
There will be in addition, an alphabetical index.
For ease of reference a draft arrangement clause is provided as follows. Where appropriate this could be amended at settling of orders.
Proposed clause:
This award is arranged as follows:
Part 1 - Application and operation of award
1. Award title
2. Arrangement
3. Anti-discrimination
4. Definitions
5. Incidence
6. Commencement date of award and period of operation
Part 2 - Award flexibility
7. Enterprise flexibility
8. Index of facilitative provisions
Part 3 - Communication, consultation and dispute resolution
9. Dispute avoidance and settling procedure
Part 4 - Employer and employee's duties, employment relationship and related arrangements
10. Terms of employment
10.1 General
10.2 Full-time employees
10.3 Regular part-time employees
10.4 Casual employees
10.5 Retail traineeships
11. Redundancy
11.2 Transfer to lower paid duties
11.3 Transmission of business
11.4 Time off work during notice period
11.5 Severance pay
11.6 Employee leaving during notice period
11.7 Incapacity to pay
11.8 Alternative employment
11.9 Employees exempted
12. Termination of employment
13. Work organisation
Part 5 - Wages and related matters
14. Wages
15. Apprenticeship
16. Supported wage
17. Payment of wages
18. Additional amount for evening and/or Saturday work
19. Sunday work
20. Allowances
20.1 Meal allowance
20.2 Special clothing reimbursement
20.3 Protective clothing reimbursement
20.4 Protective clothing reimbursement - freezer room
20.5 Excess fares reimbursement
20.6 Travelling time reimbursements
20.7 Transfer of employee reimbursement
20.8 Transport allowance
20.9 Transport of employees reimbursement
20.10 Cold work disability allowance
21. Superannuation
Part 6 - Hours of work, breaks, overtime, shift work, weekend work
22. 38 hour week
23. Hours of work and rosters
23.1 Hours
23.2 Times of beginning and ending work
23.3 Rosters
23.4 Exempt shops - alternative rosters
23.5 Small shops - alternative rosters
23.6 Notification of rosters
23.7 Temporary Christmas employees
23.8 Employment on rostered day off
23.9 Existing employees
24. Meal breaks
25. Night shift (full-time and part-time employees)
26. Night shift (casual employees)
27. Certain employees not required to work Saturday afternoon
28. Summer time
29. Overtime
29.1 Reasonable overtime
29.2 Time off in lieu of payment
30. Rest periods
30.1 Full-time weekly employees
30.2 Part-time and casual employees
30.3 Rest periods - Saturday
30.4 Variation to rest periods by agreement
31. Standdown
Part 7 - Leave of absence and pubic holidays
32. Annual leave
33. Sick leave
34. Bereavement leave
35. Family leave
36. Parental leave
37. Jury service
38. Holidays
Part 8 - Accident make-up pay
39. Accident make-up pay
39.1 Entitlement to accident make-up pay
39.2 Accident make-up pay shall not apply
Part 9 - Posting of award
40. Posting of award
Schedule A - List of respondents"
This matter is said to be mainly agreed. This can be dealt with in the settling of orders.
Junior rates of pay shall remain in their current format. Junior rates are currently the subject of a Full Bench inquiry (C No. 33985 of 1998). Whilst it was argued by Mr Ryan that the two issues to which SDA changes refer are distinguishable from the terms of reference of the inquiry, it is in my view not possible to prejudge whether these instant matters will be impacted. This view is reinforced in the Junior Rates Inquiry - Issues Paper of 22 December 1998 [Print Q9610].
I am not satisfied that the juniors with family responsibilities is a discrimination in terms of the current fixation of wage levels per se. The Full Bench in both its majority and minority Safety Net Review - Wages April 1997 decisions [Print P1997] regarding the ACTU, Living Wage Claim, commented on the general view taken by the parties, that the Commission should set wages with the single employee in mind. The majority noted that the 1974 National
Wage Case decision [(1975) 157 CAR 293)] observed that "there are, of course, limits to which the Commission can go to the aid of the low wage earner whose needs are magnified by family obligations" (p.299). The 1997 Full Bench majority agreed, and in determining the federal minimum wage did not distinguish between needs based on a wage earners choice to use part of their wages to support other persons, and other wage earner "needs" (p.66). It also determined that "junior employees" would receive a proportionate amount (p.76). I am also not satisfied that SDA has adequately defined its reference to "family responsibilities" in its claim.
The second claim of SDA in respect of junior rates is in brief, that age 18 is now the legal age of majority and that junior rates should apply only to persons under that age.
I have decided pursuant to s.111(1)(g)(iii) to refrain from making a determination on this point at this time. The Statement and Outline of Procedure of 25 August 1998 in relation to the Junior Rates Inquiry advised;
" The Inquiry will focus, in particular, on:
· whether it is desirable to replace junior rates with alternatives that do not discriminate on the basis of age;
· the consequences for youth employment of abolishing junior rates; and
· the utility of junior rates for different types of employment, for different industries and in the school-to-work transition."
In the circumstances, I am reluctant to pre-empt outcomes of this Inquiry which might define junior rates in terms other than otherwise might legally exist, or may establish alternatives to age related junior rates or lead to their abolition.
Nothing of course prevents the SDA from making a future application following the outcomes of the Inquiry.
The additional words proposed by SDA for insertion in Clause 4 Wages, are in my view not allowable nor incidental and necessary for the effective operation of the award, viz: "The classifications set out above and the relativities between classifications reflect the work performed, the manner in which work is performed and the technology used in the performance of work as at 1990."
The clause will reflect new rates of pay which operate from 7 May 1998, set out in the appropriate minimum rates format, pursuant to the principles established in the Full Bench Paid Rates decision of 20 October 1998 [Print Q7661].
4A. APPRENTICESHIP
The SDA proposed inclusion in Clause 4A of (b) Proportion of Apprentices to Tradespersons or reference to capacity to train same in 1, 2 and 3, is a limitation contrary to s.89A(4)(a) and will be deleted. I can see no valid objections to (c) and (d) and I have retained same. (e) The word "provide" shall be deleted and the following words added, "and the cost of" prior to "all tools" and as an addendum, "except where tools are provided at the employers expense," more appropriately reflecting an allowance, (f) and (g) shall be retained.
Proposed clause:
15.1 The following shall be apprenticeship trades for the purpose of this award:
Floristry
15.2 Wages
Year of Apprenticeship % Retail Worker Grade 1 Wage per week
Pre-Apprenticeship 45 (Rates to be inserted)
1st Year 55
2nd Year 77.5
3rd Year 90
15.3 The Employer may engage pre-apprentices and apprentices under the terms of the regulations or provisions of the appropriate State Training Authority or its agent (STA) provided that a person shall not be deemed to be an apprentice until their indenture has been approved by the STA.
15.4 The Employer shall reimburse an apprentice for all fees and levies relevant to the apprentice training upon satisfactory completion of each year's training and the cost of all tools necessary for carrying out his or her work, except where tools are provided at the employer's expense.
15.5 The pre-apprenticeship and apprenticeship training program and conditions shall be in accordance with the appropriate STA or its agent.
I have adopted the simpler employer proposal and clause title - Work Organisation, which is the Award Simplification decision approach with a text modified for relevance in this award. The existing provision in my view may lead to ambiguity or conflict with the intentions of Item 51(6).
Proposed clause:
Employees must undertake duties as directed within the limits of their competence."
This clause will remain in its current form with the following deletions:
- "Implementation of" in the clause title;
- the first phrase in (a), "From the first pay period on or after 1 May 1984"; and
- Clause 6A(d).
Proposed clause:
22.5 Substitute days
6C HOURS OF WORK AND ROSTERS
There is a very considerable difference in approach between that sought by the SDA as opposed to the employers' proposals in relation to ordinary hours of work and how they might be used. By way of an example Mr Diserio in earlier proceedings described it to the Commission as follows:
"There are a series of three clauses that make up this part of the award, 6A, 6B and 6C. The approach of the employers is basically to incorporate the concepts or remove concepts from all three and to essentially present it in a different way"... "in terms of the implementation of a 38-hour week, employers say that that is really a matter that is for the employer to determine or by agreement between the employer and the employee at the workplace"... "We want one spread of hours that applies to all types of retailers under the award, and we seek those to be from Monday to Saturday from 7 am to 11 pm and...on Sunday from 9 am to 6 pm, and that is to be contrasted with the current spread from 7 am to 9 pm Monday to Friday, and 7 am to 6 pm on Saturday, unless the employer is a class B exempt shop and in that case the spread of hours is Monday to Friday 7 am to 9 pm, on Saturday from 7 am to 6 pm and on Sunday from 10 am to 5 pm." (transcript 24 April 1998 p.12 @ 27-30 and 33-37 and p.13 @ 23-30).
On Mr Diserio's submissions it was open to the Commission to vary the various hours, meal break and roster provisions as sought by employers in response to deregulated trading hours either pursuant to Item 51(6) and (7) or in the alternative pursuant to s.113 if satisfied as to merit (transcript 16 September 1998 p.173 @ 31-41).
The SDA position put by Mr Ryan may be highlighted by this extract from his submission;
"Their approach was to have a wholesale attack on hours of work. They have sought to alter all of the ordinary hours of work across the board. Monday to Sunday as ordinary hours.
So in doing that it is not limited to being an attack on ordinary hours. It immediately means that hours which were overtime hours are now no longer overtime hours, whereas there were existing penalties for working some hours late nights during week days, they have said, no, they go because we altered ordinary hours we no longer need those penalties. They have altered, as part and parcel of that, the concept of rostering so that whereas rostering was limited to the existing approach of Monday to Friday - or Monday to Saturday rostering, they have said no, it is now Monday to Sunday rostering"... "Every single clause that relates to hours of work has been affected by the changes that they have made. The consequence of that is it has a substantial impact upon the existing entitlements of workers in a real sense in terms of money. I mean you cannot alter hours of work without affecting income and they have done that quite significantly." (transcript 15 October 1998 p.617 @ 9-20 and 21-26).
I am not persuaded, on what is before me, that the combination of deregulated shop trading hours and the evolution of new shopping lifestyles and consumer demands, consequentially means that for retail workers, an expanded daily spread of hours, late night hours and Saturday and Sunday work, are a sought after lifestyle corollary, diminishing the unsociability of such work schedules. It is a corollary of such changes, should the Commission so determine, that current or future employees with little or no bargaining power may be obliged
to work extended evening, Saturday or Sunday hours against their domestic responsibilities or personal convenience as ordinary hours to retain or gain their employment.
There was no evidence before me to suggest that current flexibilities available and available Sunday volunteers, cannot meet current trading needs. Where there is an added cost to this there was no evidence that satisfied me, that there was an incapacity on the part of retailers to pay. Indeed there was the evidence of Mr Sayers;
"The retail industry has always been the second largest industry in Australia's economy on a dollar basis." (RTAV 9 @ 26).
"Retail sales were in excess of 115 billion dollars in 1994-95." (ibid @ 27)
"retailing is undergoing significant and dynamic change." (ibid @ 34)
"One major element that has a large impact on shopping in Australia in recent years is tourism and the city shopping centres have the most to gain from the tourism dollar." (ibid 54).
"While Sunday trading is not compulsory, Shopping Centres have been anxious to ensure a full range of retail services are available over seven days and they have compromised with retailers over the "core trading hours" of centres to ensure most retailers open." (ibid 22) (also see "No lease will be able to force a retailer to open." (Exhibit RTAV 1 p.11)).
"Staffing levels have to be in accordance with the level of service you want to give and the hours that the business operates. The business would need to ensure that they are running staffing as effectively as possible mixing full-time, part-time and casuals." (ibid 24).
"Retail turnover in Victoria was worth almost $2.2 billion in June 1996 alone....It is a dynamic and healthy part of the Victorian economy generating jobs and wealth for the whole Victorian economy." (RTAV1 p.4).
Similarly there is no evidence before me to show that retail employers are having difficulty getting employees to volunteer to work on a Sunday, the reverse may be the conclusion to be drawn;
"Mr Donovan's statement or his evidence says somewhere that employers do not have problems getting employees to work on a Sunday. If we take Sunday as separate from, say, public holidays, I think that is the import of part of his evidence." (transcript 17 September 1998 p.225 @ 5-9 - Mr Diserio).
"Work on a Sunday remained voluntary and it has never been suggested to us that retailers are unable to gain sufficient staff among their volunteers to staff their stores on a Sunday." (witness statement of Mr Donovan, p.7 @ 30).
Mr Diserio. "Now in terms of how retailers might be responding to deregulated trading hours, and the way in which they operate their stores, would you agree that there are prospective retail workers who are prepared to work on a Sunday because they are available to work and they are willing to work?"...
Mr Donovan. "Yes." (In cross examination (transcript 15.9.98, p.116 @ 22-25)).
"But it is clear to us that, whilst not every retailer could say that they do not have any trouble employing people, there seem to be a number of people willing to work on those days." (ibid p.225 @ 14-16 - Mr Diserio).
While there is clear evidence of social change in respect of increased consumer desire to shop weekends especially Sundays and shopping becoming a part of contemporary leisure lifestyles, for a variety of reasons it does not follow that retail employees should or do acquiesce in jeopardising their preferred lifestyle, indeed the evidence suggests full-time and regular part-time employees want and need protection from the requirement to work extreme or unsociable hours notwithstanding penalty rate entitlements. This is referred to by Mr Diserio as "the employee position" (which can be inferred from, for example, the views expressed by the Bendigo Trades Hall Secretary in the press during the Bendigo referendum campaign, RTAV4). In his witness statement Mr Donovan (p.8 @ 30) attests;
"Where this issue has been the subject of discussion in enterprise agreements, any proposal to require employees to work on a Sunday has been greeted with great hostility."
In 1993 Gay C while considering penalty rates in respect of the liquor and accommodation industry made some observations which remain I believe apposite today and relevant mutatis mutandis to this instant matter.
He commented;
"The evidence of the union witnesses in this case supported the view that workers value week-ends highly both in seeking to retain the status quo and as a measure of the social detriment they suffer... While there may be some for whom shift work/late night work is a personal boon offering few drawbacks and the frequently recountered `benefits', for many others it presents formidable social, familial and health problems... Additionally, for many workers economic need provides the impetus for working at the `difficult and inconvenient hours'. The fact that the current economic circumstances may produce those prepared to work for lesser amounts is of no assistance in determining a proper rate. Arguments for change and for the status quo must find their just cause in the real workings of the industry... While trading patterns, hotel and shop hours legislation and social habits have altered markedly over the last decade or so, the norm remains for evenings, week ends and public holidays to be the times when friends, families and social groupings, however constructed, are able to be together to enjoy social and
recreational activities. Social dynamics are such as to mean that as religious observance on Sundays undergoes change so do some other forms of activity by way of supplementation. Shift work and work extending well outside the day time hours which thereby intrude regularly and substantially into such social, recreational or family/friend times and the many aspects of life akin to them, causes, in the long standing view of the Commission, an equivalently substantial deterioration in the amenity of life. It is this that is to be recognised." (6 May 1993 [Print K7601], p.41-43).
The (then) Minister for Workplace Relations and Small Business Mr Reith consistently made the point that, "the simplification process is not about stripping back conditions but rather, it is about removing the unnecessary and inappropriate detail.... The simplification of awards will make them easier to use, more flexible and better equipped to accommodate the needs of individual workplaces." (Address to Northern Territory Industrial Relations Society Annual Conference, 29 August 1998 p.3).
This is reflected in the Principle Object of the Act (Section 3) which provides for inter alia, ensuring the maintenance of a genuine and effective safety net of fair and enforceable minimum wages and conditions of employment and providing a framework of rights and responsibilities for employers and employees which supports fair and effective agreement making suitable to the enterprise or workplace (my emphasis).
The accompanying s.113 application seeks to, inter alia, achieve a measure of award deregulation which will, in RTAV's submission, reflect realities and enhance the changed shop trading legislation and consumer shopping demands. This application it is said, provides the Commission with the power to amend the awards as sought, if the Commission is not persuaded that it is available and appropriate pursuant to Item 51(6) and (7), but is persuaded as to merit otherwise on the evidence and submissions. The example for this it was said, "is the concept of the deregulation of shop trading hours in Victoria and the fact that in a generic sense all retailers may trade 365 days a year less 2½ days of public holiday. And of course the generic situation does not take into account that there are indeed shops that may trade on the other 2½ days because of the nature of the business." (transcript 16 September 1998 p.173 @ 36-40).
I have adopted the SDA proposal in relation to Hours of Work and Rosters. I am not persuaded on evidence before me as to the necessity for an extension of ordinary time hours. I note the submission of Mr Diserio that there is a protection for current employees provided for in the employer proposal which provides that such an employee may elect to work ordinary hours on a Sunday (transcript 17.9.98, p.226, @ 6-8). I am not satisfied that on the evidence before me and on the grounds of fairness that there should be any award changes to ordinary hours. I have deleted the following:
(Rosters (c) second paragraph)
"Any other roster arrangement may only be worked by agreement between the employees, the employer and the Shop Distributive and Allied Employees' Association (Victorian Branch) and subsequently approved by this Commission."
This is unnecessary detail, such agreement options are available under the Act.
I shall adopt the employer proposal re "23.4 Temporary Christmas employees" by deleting "full-time weekly" viz:
The award will be varied to provide;
"The provisions of clause 10.3.3 and 23.3 shall not apply to employees engaged for a period not exceeding six weeks during the Christmas/New Year period."
In its current form the clause is in my view inappropriately restrictive.
Proposed clause:
23.1 Hours
23.2 Times of beginning and ending work
Subject to clause 23.3, the ordinary times of beginning and ending work shall be:
Time of beginning Time of ending
Monday - Friday 7.00 a.m. 9.00 p.m.
Saturday 7.00 a.m. 6.00 p.m.
23.2.2 in Class B Exempt Shops:
Monday to Friday 7.00 a.m. 9.00 p.m.
Saturday 7.00 a.m. 6.00 p.m.
Sunday 10.00 a.m. 5.00 p.m.
23.3 Rosters
Subject to clause 22 and 23.5 (Small Shops - Alternative roster) each full-time weekly employee shall be employed on a roster of not more than 4 weeks. In each week of the roster an employee shall be rostered off on either a Monday or a Saturday. Where an employee so elects another week day may be substituted for the Monday or the Saturday as his/her rostered day off.
23.4 Exempt shops - alternative rosters
23.5 Small shops - Alternative roster
23.6 Notification of rosters
23.7 Temporary Christmas employees
The provisions of clause 10.3.3 and 23.3 shall not apply to employees engaged for a period not exceeding six weeks during the Christmas/New Year period.
23.8 Employment on rostered day off
At his /her own election but not otherwise, an employee may be rostered on his/her rostered day off or on a day or half day off which accrues under clause 22.2.3, 22.2.4, 22.2.5 or 22.2.6.
23.9 Existing employees
Notwithstanding any other provisions of this clause or of clause 14 - Wages, employees in the employment of an employer on 12 September 1988 may elect to continue working on their previous roster and shall not be required to work beyond 6.00 p.m. on more than one day in any week not to work beyond 6.00 p.m. on any day in the week if they work on the following Saturday."
I have adopted with modification in the opening paragraph the employer provision at "27.0 Reasonable overtime". This further enhances employer flexibility which I am persuaded on the evidence and argument is appropriate in this regard.
Otherwise the clause will remain in its current form but with the following amendment;
"Reasonable overtime
An employer may require an employee - other than a casual employee - to work reasonable overtime at overtime rates."
This amendment shall become the first subclause with consequential subclause renumbering and as a consequence clause 7(c) is deleted.
Proposed clause:
29.1 Reasonable overtime
An employer may require an employee - other than a casual employee - to work reasonable overtime at overtime rates.
29.4 Time off in lieu of payment
8. NIGHT SHIFT (WEEKLY EMPLOYEES)
I have substantially retained the current provisions while adopting certain employer proposals which in my view provide further flexibility and are consequently less restrictive. The clause title shall be varied as per the employer proposal viz.:
"Night Shift (Full-Time and Part-Time Employees)"
The first subclause shall therefore be consequentially reworded in terms of the employer proposal deleting;
"This clause shall apply only to weekly employees engaged in or in connection with replenishing fixtures in any shop between the hours of 6.00pm and 8.00am whilst the shop is not open for trading"
and inserting;
"This clause shall apply only to employees (other than casuals) while the shop is not open for trading specifically engaged in or in connection with replenishing fixtures in any shop between the hours of 6.00pm and 8.00am."
The parties are agreed to delete;
"For the purposes of this subclause, where a shift falls partly on a holiday, the shift which commences on the holiday shall be regarded as the holiday shift. Provided that if not required to work on a holiday shift such employee shall be entitled to be absent without loss of pay."
This subclause will be deleted. Otherwise the clause will remain in its current form including (h) which is as follows;
"(h) The hours of work shall be regular and any intention to alter the hours shall be notified in writing to the SDAEA and the employee seven days before such change."
Proposed clause:
clause 23 (Hours of work and rosters)
clause 29 (Overtime)
clause 18 (Additional amounts for evening and/or Saturday work)
clause 24 (Meal break)
clause 38 (Holidays)
clause 19 (Sunday work)
25.5.4 Such time off must be taken at a mutually convenient time and within four weeks of the public holiday or, where agreed between the employee and the employer, may be accumulated and taken as part of annual leave.
25.5.5 Time off in lieu must equate to the penalty rate i.e. if the employee works three hours on a public holiday and the additional penalty rate is time and a half and the employee elects to take time off in lieu of payment the time off would equal 4.5 hours.
I have adopted the following employer proposal wherein it shall be expressed in the award as follows;
"This clause shall apply only to casual employees while the shop is not open for trading specifically engaged in or in connection with replenishing fixtures in any shop between the hours of 6.00 p.m. and 8.00 a.m."
then shall follow as proposed by SDA;
"Casual employees may be engaged under this clause where weekly employees are engaged on a night shift in accordance with provisions in Clause 25."
The following words in the provision restricting weekly employees from voluntarily contracting separately for engagement as a casual under the provisions of this clause will be deleted as an inappropriate restriction on the employer or on the relevant employee.
The SDA suggested deletions in (d) in toto and (f) in part and (g) in toto shall be deleted. The current provision (h) entitling a minimum payment as for four hours work is retained. I see no compelling reason supported by evidence to reduce this entitlement.
Proposed clause:
26.2 Casual employees may be engaged under this clause where weekly employees are engaged on a night shift in accordance with the provisions of clause 25.
Clause 23 Hours of work and rosters - day workers
Clause 29 Overtime
Clause 18 Additional amount for evening and/or Saturday work
Clause 24 Meal break
Clause 20.1 Meal allowance
Clause 10 Terms of employment
Clause 38 Holidays
Clause 19 Sunday work
Clause 34 Bereavement leave
Clause 12 Termination of employment
Clause 20.5 Excess fares reimbursement
Clause 20.7 Transfer of employee reimbursement
This clause shall remain unchanged. I am not persuaded that there are evidentially justified grounds for a reduction in entitlement. This includes retention of junior rates as per (a), (b) and (c).
The existing provision shall remain with the addition of the following words to (c) following, "minimum of three hours", "unless otherwise mutually agreed". Thus providing a facilitative provision to provide flexibility to employer and employee alike.
I have noted the employers' desire to have the ability to roster employees to avoid incurring the second meal allowance referred to in 12(a). This was in part consequential to other employer claims made in respect of an increased spread of ordinary hours which I have rejected. The effect of the additional meal allowance was referred to by Mr Diserio as "a substantial amount of money". The SDA for its part seeks to retain the existing clause unchanged. I am persuaded that the impact could be lessened for the employer without detriment to the employee by an addendum to 12 (a) (renumbered to 12.1) at the end of the first sentence and in relation to the first meal allowance only, of the following words, "where 24 hours notice has not been given." The remainder of clause 12 shall remain unchanged.
Proposed clause 20.1.1:
"20.1 .1 Overtime
An employee required to work not less than one hour of overtime after his or her ordinary time of ending work shall be paid a meal allowance of $8.65, where 24 hours notice has not been given. Provided that where such overtime work exceeds four hours a further meal allowance of $7.80 shall be paid."
The words "(Monday to Saturday inclusive)" and the parenthesis are deleted in clause 13(a) Full-time weekly employees and 13(b) Part-time and casual employees. The inclusion is unnecessary detail and is all inclusive except Saturday morning 13(e).
As proposed by SDA, clause 13(d) Rest periods - Sunday is consequentially deleted, but the employer suggested proposal for variation to rest periods by agreement shall be adopted as set out in Exhibit RTAV6.
Proposed clause:
30.1 Full-time weekly employees
30.2 Part-time and casual employees
30.3 Rest periods - Saturday
30.3.2 All rest periods shall be counted as time worked.
30.3 Variation to rest periods by agreement
An employer and a majority of employees and/or an employer and an employee may agree to take rest periods in a different way to that provided by this clause."
13A. BOILING WATER
This clause is not an allowable matter, nor is it incidental to an allowable matter in Section 89A(2) and necessary for the effective operation of the award. It is also not a provision suitable or appropriate for conversion to an allowance. (Decision - Metal Industry Award 1984 - Part 1 [Print P9311]). It will be deleted.
I adopt the amended Award Simplification Case [Print P7500] approach of SDA in respect of 14.1, 14.2.1, 14.2.2. 14.2.2(d) (SDA "junior" proposals are rejected) 14.2.3, (14.2.4 deleted repeats 14.2.2(a)), 14.3.1, 14.3.2, 14.3.3, 14.3.4, 14.3.5, 14.3.6, and 14.3.7. The terms in 14.3.8 are deleted as they duplicate 14.3.3(vi). 14.3.9 shall be retained. All words after, "one day of the week", in 14.3.10 are adopted as per the SDA reworded proposal and the savings clause. The suggested 14.3.11 is in contravention of s.89A(4)(b) and will not be included.
14.3.12, 14.3.13, 14.3.14, 14.3.16, 14.3.17 shall be retained. 14.3.15 is unnecessary and is deleted (provided for in 14.3.17). Compassionate leave will be reworded to Bereavement Leave wherever appearing. 14.3.18(a) will be retained but 14.3.18(b) is deleted on the basis that it is unnecessary as the award otherwise provides for a Dispute Avoidance and Resolution Procedure in respect of matters related to the award.
14.3.19 Training and Promotion
Training is referred to in the Award Simplification Case [Print P7500] wherein it was commented;
"We do not accept training can never be the subject of award prescription .... In any case where training is said to be an allowable matter, careful examination of all the circumstances will be required." (p.27)
Watson SDP in the restructuring of the National Metal and Engineering On Site Construction Award 1989 (MECA Restructuring Print P4026) was satisfied that a training provision of the type before him was an allowable matter.
In the Metals Part I Case [Print P9311] Marsh SDP commented that;
"Training provisions were inserted into the Metal Industry Award as part of the package of proposals identified as providing a basis for the proper operation of the skill based career path which was an objective of the structural efficiency principle." (p.40)
As such it can be said to be consistent with the mechanisms of s.89A(6) and incidental to s.89A(2)(a).
I have had regard to the context in which the training and promotion provision in this award pertains, I am not satisfied that it meets the necessary criteria, either in respect to training or promotion. Consequently 14.3.19 will be deleted.
The SDA proposals re 14.3.20 Existing Part-time employees will be adopted (as amended in Exhibit RTAV6) except that all words after "such conferences" (in bold) shall be deleted for the same reasons given in relation to 14.3.18(b) i.e. the Dispute Avoidance and Settling Procedure exists for this purpose and it is unnecessary to constantly make reference to it in this way.
Casual Employment
This clause shall adopt the SDA proposal but not the suggested amendment to juniors with family responsibilities and deletion of junior rates for (a) 20 years, (b) 19 years and (c) 18 years, for reasons previously given. (Exhibit RTAV6, p.54 Retail Workers Ground 1 Juniors (excluding Manager and Departmental Manager)).
Retail Traineeships
This matter is agreed to remain unchanged. The SDA suggests relocating it . On the basis of a user friendly approach I am of the view that it should remain in clause 14.
I have reworded this clause as follows;
10.1 General
10.1.1 Employees under this award will be employed in one of the following categories:
10.2 Full-time employees
A full-time employee is an employee who is engaged to work an average of 38 hours per week.
10.3 Regular part-time employees
10.3.1 An employer may employ regular part-time employees in any classification in this award.
10.3.2 A regular part-time employee is an employee who:
- the hours worked each day;
- which days of the week the employee will work;
- the actual starting and finishing times of each day;
- variation must be in writing;
- minimum daily employment is 3 hours;
- all time worked in excess of agreed hours is paid at the overtime rate; and
- the times of taking and the duration of meal breaks.
Where the rostered paid hours fall on a public holiday and work is not performed by the employee, such employee shall not lose pay for the day.
Where the employee works on the holiday, such employee shall be paid in accordance with Clause 38 - Holidays.
10.3.14 Other Award Provisions
10.3.15 Conversion of Existing Employees
10.4.2 A casual must be paid as follows:
10.4.2(a)(ii) in any other week - at the ordinary wages plus 25%. An employee shall be entitled to a minimum payment as for two hours' work on any day.
Clause 23 Hours of work and rosters
Clause 29 Overtime
Clause 18 Additional amount for evening and/or Saturday work
Clause 20.1 Meal allowance
Clause 33 Sick leave except as provided in clause 33.3
Clause 38 Holidays
Clause 34 Bereavement leave
Clause 37 Jury service
Clause 12 Termination of employment
Clause 20.5 Excess fares reimbursement
Clause 20.7 Transfer of employee reimbursement
Clause 20.8 Transport allowance - electrical, furniture and hardware shops.
Amount per hour (to be inserted at appropriate rate in settling of orders)
CLOTHING AND FOOTWEAR SHOPS
MANAGER (as defined):-
(a) in charge of two or more persons $
(b) working singly or in charge of one person $
CLOTHING AND FOOTWEAR SHOPS
DEPARTMENT MANAGER (as defined)
(a) in charge of two or more persons $
(b) working singly or in charge of one person $
ELECTRICAL, FURNITURE AND HARDWARE SHOPS
MANAGER (as defined)
(a) in charge of two or more persons $
(b) working singly or in charge of one person $
ELECTRICAL, FURNITURE AND HARDWARE SHOPS
DEPARTMENT MANAGER (as defined)
(a) in charge of two or more persons $
(b) working singly or in charge of one person $
FOOD SHOPS
MANAGER (as defined)
(a) in charge of two or more persons $
(b) working singly or in charge of one person $
FOODS SHOPS
DEPARTMENT MANAGER (as defined)
(a) in charge of two or more persons $
(b) working singly or in charge of one person $
GENERAL SHOPS
MANAGER (as defined)
(a) in charge of two or more persons $
(b) working singly or in charge of one person $
GENERAL SHOPS
DEPARTMENT MANAGER (as defined)
(a) in charge of two or more persons $
(b) working singly or in charge of one person $
RETAIL WORKER GRADE 2 $
CANVASSERES or collectors who are in any way connected with the sale of goods:- $
RETAIL WORKER GRADE 1 $
JUNIORS (excluding MANAGER and DEPARTMENT MANAGER)
(a) 20 years $
(b) 19 years $
(c) 18 years $
(d) 17 years $
(e) 16 years and under $
New Year's Day, Australia Day, Labour Day, Good Friday, Easter Saturday, Easter Monday, Anzac Day, Queen's Birthday, Melbourne Cup Day, Christmas Day, Boxing Day - double time and a half.
Note: For the special provisions in relation to annual leave entitlement see `Clause D' of Clause 32 - Annual Leave.
10.5 Retail traineeship
I will retain the existing award clause with only minor amendment. In my view the entitlements are clear and I am not persuaded that there is any compelling merit or ambiguity argument for change which would have the effect that the entitlements would be reduced or removed for casual employees. The words, "For the purposes of this subclause service prior to 1 August 1948 shall be disregarded", shall be deleted because it is an obsolete qualification.
The current provisions of this clause on their face provide for pro rata entitlement for casual employees. The SDA sought to specifically refer to all modes of employment. The employers seek to remove this entitlement on the basis it was argued that the casual loading should be an "all in" compensation, and increase in the loading was opposed. It was not contested by the employers that this was a reduction in the entitlement for relevant current employees, but it was submitted that the current loading was appropriate when examined as an across industry standard. I am not satisfied that I should remove this entitlement nor was I provided with sufficient evidence or argument that would allow me to determine the appropriate loading if I were persuaded to the "all in" argument. I am also at this time and in the absence of a legal interpretation, unprepared to accept the SDA additional wording. This is a matter capable of addressing in the future at the volition of the parties. Accordingly, the current entitlement will remain.
The SDA and the employers are however to confer and provide an agreed simplified and more concise version of this clause.
In correspondence of 21 December 1998 Mr Diserio advised the Commission as follows;
"Your will recall that in these proceedings, the union sought several changes to the existing public holiday provisions. The changes sought were set out in the relevant parts of RTAV6 and SDA27 tendered on 16 October 1998.
The employers' position about the union changes to the Melbourne Cup Day provisions was set out in my letter to you dated 27 October 1998.
The union has now lodged 3 separate applications with the Commission (C Nos 75996, 75997 and 75999 of 1998) seeking variations to the existing public holiday provisions in the Victorian interim holiday provision in the Victorian interim shop awards. Copies of each are enclosed for your information. These applications are listed before Deputy President Acton on 22 December.
The union's new applications go beyond the matters sought by it in the simplification proceedings.
Given this development, I respectfully request that the union's `application' about public holidays in the proceedings currently subject to your decision be `placed on hold' subject to final outcome of the union's applications in C Nos 75996, 75997 and 75999 of 1998."
I have acceded to this request pursuant to s.111(1)(g)(iii).
This provision shall be retained unchanged. It is allowable (s.89A(2)(b)) and clear as to its meaning. viz;
"19.1
The special rate for all work done on Sunday shall be double time.
19.2
An employer shall not require any employee to work on a Sunday but an employee may elect to work on a Sunday."
Consistent with my earlier expressed views I am not persuaded to vary or restructure ordinary hours of work.
I am satisfied that the terms of this clause should largely remain unchanged but that the title should be changed from "Compassionate Leave" to the more apposite "Bereavement Leave". I adopt also the employer wording in the proposal at 34.1 and 34.2 in lieu of the current 1.6.
34.1 An employee shall on the death of a spouse, parent, foster parent, mother-or father-in-law, sibling, child or stepchild be entitled to bereavement leave.
34.2 Bereavement leave shall be granted as follows:
I accept the employer submission that it is relevant to adopt the Award Simplification Case approach in this matter albeit that casuals in this industry in many cases may effectively have a continuing employment type of relationship, their mode of employment remains a casual one.
The employer proposal set out in RTAV6 shall be adopted. In my view this provision distinguishes itself from Sick Leave and Annual Leave. Annual leave refers to "every employee" (underlining my emphasis). Sick leave refers to an employee on terms of weekly employment as prescribed in Clause 14 (i.e. full-time as per 14(a)) and other employees regularly employed under Clauses 10(b) - part-time employment or 14(c) - casual employment or Clause 9 Night shift (casual employees).
The employer provision also amends appropriately the current gender specific references which will be adopted.
Proposed clause:
The prescriptive provisions in (c) and (d) re provision of statement in writing and procedures to be followed where a shop intends to change from weekly pays to fortnightly pays are to be deleted. These are matters of regulation (Regulation 132A and 132B of the Act) and detail and process more appropriately dealt with by agreement (Item 51 6(a)).
The reference in (e) to the Industrial Relations Act 1988 will be altered to the Workplace Relations Act 1996.
Proposed clause:
17.1 Wages shall be paid as follows:
This clause shall remain unchanged, I reject the reference to a class of employee described in the phrase "except regular casuals".
The Act and the Award Simplification decision encourage predictable and regular hours of work for part-time employment to clearly delineate permanent part-time employment from casual employment. While SDA relied for authority on the decision of the Full Bench in the Court Reporting Officers Case of 5 March 1998 [Print P9271] (CRO Case), wherein long term casual employees were given the jurisdictional protection of unfair termination provisions of the Act, this was largely a finding of fact as to a retrospective examination of the employment history of the relevant individual.
The Full Bench in the CRO case did not establish a new mode of employment relating to "regular casuals", rather it commented as follows;
"As this case demonstrates, an employee may have the title "casual" attached to their classification but, in reality, they are employed under policies and procedures that are anything but "casual" employment as this title is generally understood in industrial usage. As we conclude elsewhere, the employment of those employees took on all the features of permanent part-time employment."
I also decline the deletion sought by SDA of an employers prescribed right to withhold moneys due to the employee in the event of the employee's failure to give notice. My decision in this regard is consistent with the current award provision and the guidance provided in the Award Simplification Case.
The provision relating to provision of a statement of employment is deleted as not allowable and by agreement of the parties.
The clause as it stands is an amenity provision and as such is not an allowable matter (see Award Simplification Case Non-Allowable Matters Table - Attachment E at p.72 - Other Matters).
In the normal industrial sense a first aid allowance refers to an allowance paid to an employee who has been trained to render first aid. (see Metals Case Order [Print Q0444] at 5.9.2 (b) p.48).
What is sought by SDA as an allowance has no amount specified nor does it express what is meant by the words, "an adequate first-aid outfit".
In my view this remains an amenity provision and is not appropriate to be expressed as an allowance. Accordingly it will be deleted.
Consistent with the Award Simplification Case (see 23.3.2 at p.135) I accept the SDA amendment which allows reimbursement of costs for special uniforms, dress or clothing where the employer requires employees to wear, but fails to provide same. In this regard I regard the appropriate wording to be;
"20.2 Special clothing reimbursement
This clause is not an allowable matter and will be deleted.
Consistent with my reasons in respect of Clause 24 Clothing, this clause shall be worded as follows;
"20.3 Protective clothing reimbursement
Where it is agreed the work performed by an employee is of a dirty, wet or obnoxious nature requiring suitable protective clothing, the employer must reimburse the employee for the costs incurred in purchasing the suitable protective clothing and any necessary laundering cost incurred by the employee. This shall not apply where suitable protective clothing is provided and laundered at the employer's cost."
The second paragraph relating to the reference of any lack of agreement to the Australian Industrial Relations Commission will be deleted on the basis that the award provides a dispute avoidance and settling procedure.
The parties agree that the existing provisions are to remain as is. They are allowable and will be retained, however I will substitute the word "reimbursed" in lieu of "paid" so as to read, "reimbursed by the employer". "27. Excess Fares" shall be titled "20.5 Excess Fares Reimbursement". "28. Transfer of Employee" shall be titled "20.7 Transfer of employee reimbursement".
29A. TRANSPORT OF EMPLOYEES
I accept the position of SDA that this clause is appropriate for conversion to an allowance by way of a reimbursement consistent with the Hospitality Clause decision (see 23.4.1 at p.136). I amend the SDA suggested proposal as follows;
20.9.2Provided always that an employee may elect to provide his or her own transport.
The last two paragraphs are incidental to this allowable matter (s.89A(6), s.89A(2)(j)) and shall remain.
This clause is not allowable and is to be deleted.
The parties agree that this clause is allowable pursuant to s.89A(2)(g) subject, however, to the reference at 30.6 to Grievance Process being deleted. The Grievance process subclause will be deleted. The clause otherwise shall be retained.
This clause is incidental to allowable matters and necessary for the effective operation of the award and will be retained (see Award Simplification Case decision Attachment D at p.69 - Other Matters).
The Full Bench in its decision of 29 May 1997 [Print P1297] found that Accident Pay was a form of allowance and therefore an allowable award matter pursuant to s.89A(2)(j).
The employers propose a simplified shorter version. I have decided to adopt that version.
Proposed clause:
39.1 Entitlement to accident make-up pay
Where an employee becomes entitled to weekly compensation payments under the Accident Compensation Act 1985 (the Act), the employer will pay to the employee an amount equivalent to the difference between:
39.2 Accident make-up pay shall not apply:
39.5 Maximum period of payment
The maximum period or aggregate period of accident make-up pay to be made by an employer shall be a total of 39 weeks for any one injury.
39.6 Absences on other paid leave
An employee shall not be entitled to payment of accident make-up pay in respect of any period of other paid leave of absence.
39.7 Variation in compensation rates
Any changes in compensation rates under the Act shall not increase the amount of accident make-up pay above the amount that would have been payable had the rates of compensation remained unchanged.
39.8 Medical examination
39.9 Death of employee
All rights to accident pay shall cease on the death of an employee."
This matter is not allowable pursuant to the majority decision of the Full Bench in the Leave Case [Print Q9399] and will be deleted.
This matter is not allowable and will be deleted.
The parties are agreed that this clause is to remain. It is an allowable matter. However I reject the suggested inclusion of SDA which seeks to add the words; "But does include a casual employed on a regular and systematic basis" for reasons previously cited. The current clause shall be retained but suitably amended by the parties in the settling of orders to reflect the up to date determination of the Full Bench of the Commission in this matter.[Print Q5597]
This is a clause relating to consultation on change which the Full Bench in the Award Simplification Case decision (see p.11 at 11 and p.16 at 17) found as unable to be characterised as to content by reference to any of the allowable award matters. The SDA has attempted to overcome this non-allowability by converting it into a dispute resolution provision regarding consultation on the introduction of change. Such conversion is not appropriate. As was observed by Duncan DP in Re Telstra Corporation General Conditions of Employment Award 1996 [Print Q0071], it is important to consider the substance of the clause and "not the form". This proposed clause is a mechanism concerning consultation rights and cannot be characterised as a dispute settlement procedure. This award when issued will contain an adequate dispute avoidance and resolution procedure clause. The Full Bench in its Award Simplification Case decision commented (at p.18 re Clause 22.3) that "it is undesirable that awards should contain more than one dispute settlement clause."
The clause will be deleted and the proposed clause is not adopted.
The SDA proposal contains a requirement at 37.1(b) that the employer provide reasons in writing for the proposed terminations. In my view this is not dissimilar in intent to the provision (17.1.3. p.119) which was deleted by the Full Bench in the Award Simplification Case. Accordingly I decline to adopt those words for inclusion in this award. Clause 37.5 is deleted by agreement. Clause 37.8 Superannuation Benefits is in the current award and is sought by the employers to be retained. While it is said by the union to be obsolete, it was retained in the Award Simplification Case decision and I intend to follow that guidance. It will be retained.
37.12 Employers exempted
It was said by Mr Ryan for SDA that this clause was originally inserted in the Test Case model clause as "a safety net provision to give a breathing space to small employers in the first year or two of the introduction of the TCR decision. It was never intended to have a lengthy term of operation" (transcript 14 October 1998 p.521 at 35-37). It was then asserted that "given the consistency of approach adopted by this Commission to ensure that the community standard of the TCR provision, the redundancy package itself, is universally available and the extraordinary large number of applications and decisions which have granted the removal of that clause, we say that it can be removed by you under the Section 113 application" (ibid p.522 at 12-16). He did not direct me to the appropriate TCR reference to this, examples or evidence of such authority and did not in my view discharge the onus of establishing merit. I would need to hear more persuasive merit argument before removing this subclause. This is an option for future consideration by the SDA. The subclause will be retained.
For reasons previously given I do not accept the insertion in this subclause, the words, "other than casuals employed on a regular and systematic basis".
Proposed clause:
11.2 Transfer to lower paid duties
Where an employee is transferred to lower paid duties for reasons set out in clause 11.1 the employee shall be entitled to the same period of notice of transfer as he/she would have been entitled to if his/her employment had been terminated, and the employer may at the employer's option make payment in lieu thereof of an amount equal to the difference between the former ordinary time rate of pay and the new lower ordinary time rates for the number of weeks of notice still owing.
11.3 Transmission of business
11.4 Time off work during notice period
11.4 Severance pay
Period of continuous service Severance pay
Less than one year Nil
1 year but less than 2 years 4 weeks pay
2 years but less than 3 years 6 weeks pay
3 years but less than 4 years 7 weeks pay
4 years and over 8 weeks pay
11.6 Employee leaving during notice period
An employee whose employment is terminated for reasons set out in clause 11.1 may terminate his/her employment during the period of notice and, if so, shall be entitled to the same benefits and payments under clause 11 had he/she remained with the employer until the expiry of such notice. Provided that in such circumstance the employee shall not be entitled to payment in lieu of notice.
11.7 Incapacity to pay
An employer, in a particular redundancy case, may make application to the Commission to have the general severance pay prescription varied on the basis of the employer's incapacity to pay.
11.8 Alternative employment
An employer, in a particular redundancy case, may make application to the Commission to have the general severance pay prescription varied if the employer obtains acceptable alternative employment for an employee.
11.9 Employees exempted
Clause 11 shall not apply where employment is terminated as a consequence of misconduct, or in the case of casual employees, apprentices or employees engaged for a specific period of time or for a specific task or tasks."
The employers seek the deletion of this clause in line with their arguments to have Sunday form part of ordinary hours, changes to existing hours, rostering provisions etc. It is also said that such changes and the deletion of this clause would allow simpler consolidation of retail awards.
Those arguments in my deliberations have not prevailed, and accordingly I intend to retain the existing clause. In retaining the clause I do not accept that award consolidation options are discouraged or prevented.
I am not persuaded, consistent with my earlier decisions, that I should delete this clause. It is an existing provision which in fairness to the employees concerned should be retained. It is a matter incidental to s.89A(2)(b) and necessary for the effective operation of the award and will be retained.
The parties agree the existing provision is allowable and should be retained unamended. I agree that if not allowable pursuant to s.89A(2) it is incidental to s.89A(2)(b) and necessary for the effective operation of the award. It will be retained.
This matter is allowable pursuant to s.89A(2)(s) and will be retained.
I was taken by Mr Ryan to the history of this clause wherein as he put it, the Full Bench in relation to the Retail Industry, Second Safety net adjustment/enterprise flexibility clauses decision of 11 April 1995 [Print M0782] commented;
"In our view, existing clauses which establish a `process for agreements to be negotiated' as envisaged by Section 113A, will meet the relevant test for the second arbitrated safety net adjustment even though the clause is not in the same terms as the model clause."
It then went on to comment;
"At this stage the Commission will adopt a cautious approach in dealing with a non-consensual application to vary an existing enterprise flexibility clause."
In my view it is important to note that this decision was as a result of a reference pursuant to s.108 of the Industrial Relations Act 1988. The Full Bench at that time, made reference to negotiations when an existing clause is not in the same terms as the model clause and suggested that "Such negotiations could take place in the context of the (then) Section 150A review discussions."
The Award Simplification decision proposed a much simpler model clause by way of guidance to parties about how awards should be varied pursuant to Items 50 and 51 of the WROLA Act. The enterprise flexibility model clause was also adopted in the Metal Industry Award decision of Marsh, SDP of 11 March 1998 [Print P9311]. I propose in this matter to do the same. The title shall also reflect the model clause i.e. "Enterprise Flexibility."
This clause will be deleted pursuant to the Full Bench decision in the Leave Case of 23 December 1998 [Print Q9399]. It is not allowable.
Dispute settling procedures are allowable pursuant to s.89A(2)(p). Section 91 provides that "the Commission shall, where it appears practicable and appropriate, encourage the parties to agree on procedures for preventing and settling, by discussion and agreement, further disputes between the parties or any of them, with a view to the agreed procedures being included in an award."
The RTAV proposal seeks to retain the existing clause amended in terms of the Award Simplification Case decision to provide for other employee representation as an additional option to a union representative, where as the SDA seeks the Metals Industry Award provisions.
The SDA propose a broader focus than the current award focus on a "grievance procedure", with a proposal for a "dispute avoidance and resolution procedure."
Both proposals have merit and are allowable, and I have incorporated them in the following new clause;
In the event of a grievance/dispute arising in the workplace the procedure to be followed to resolve the matter will be as follows:
9.1 Consultation shall take place within the particular establishment concerned.
9.3 If the problem remains unresolved, the matter may be referred by either party to the Australian Industrial Relations Commission for resolution.
9.4 While the parties attempt to resolve the matter work will continue as normal unless an employee has a reasonable concern about an imminent risk to his or her health and safety."
The current clause is not an allowable matter. The SDA propose to redraft the current entitlement in the nature of a reimbursement allowance pursuant to s.89A(2)(j). In my view the clause would be more appropriately worded as follows;
"20.4 Protective clothing reimbursement - freezer room
20.4.1 Where an employee is required to work in a freezer room, where the temperature is reduced by artificial means below 0 degrees Celsius, the employer must reimburse the employee for the cost of purchasing suitable protective clothing.
20.4.2 The provisions of this clause do not apply where the suitable clothing is supplied to the employee at the employer's expense."
It is agreed that the current provision be retained although there was a suggestion made by RTAV that the word "primarily" should be substituted in lieu of "principally". As far as I can determine there is no compelling reason for the change from the current text. It appears of no consequence. I leave the matter to the parties in the settling of orders.
This matter is allowable (s.89A(2)(j)) and is agreed to be retained. In as much as Exhibit RTAV6 denotes differing titles, I adopt the following clause nomenclature;
"47. TRAVELLING TIME REIMBURSEMENTS"
There is agreement between the parties that the current clause reflects the model clause of this Commission, other than the references to minimum quantum requiring amendment from $45.00 to $50.00. This is an allowable matter (Award Simplification Case p.15-16) and will be retained, but the quantums adjusted.
This award shall be operative on and from 23 December 1998 and remain in force for a period of six months.
This is not allowable and will be deleted.
In this matter SDA sought to retain the existing clause and to amend it to reflect the exemption as to junior rates of pay. The employers sought the inclusion of the Award Simplification Case model clause, but with amendment to include reference to Item 54(2) of the WROLA Act.
I propose to adopt the Commission's model clause unamended.
The SDA propose to amend the current clause to specify "a full-time" employee is covered by these provisions. The employers seek a less "restrictive" stand down provision pursuant to the Item 51(6). I am not persuaded on what was before me that these provisions as currently expressed are intended to apply or should apply, only to full-time employees. It would be an inappropriate and unfair restriction on an employer. However it would also be unfair to employees and a diminution of a current entitlement to delete the final sentence of the current provision. Accordingly I adopt the employer proposal with an addendum of the retention of the last sentence of the current clause viz: "Provided further that any such time lost shall be counted as time worked in computing sick leave under this Award, and shall not break continuity of employment for the purposes of any entitlement." I note and have adopted the amendment of "for any part of a day" in lieu of "for any day".
Proposed clause:
31.1 An employer may deduct payment for any part of a day during which an employee cannot usefully be employed because of any strike, breakdown of machinery or any stoppage of work for any cause for which the employer cannot reasonably be held responsible. This does not break continuity of employment for the purpose of any entitlements.
31.2 Provided further that any such time lost shall be counted as time worked in computing sick leave under this award, and shall not break continuity of employment for the purposes of any entitlement."
This will be included in the award at the appropriate place consistent with the Commission's award formatting guidelines.
This decision and relevant reasons will provide guidance to the parties in providing new draft orders consistent with the Commission's required formatting. Immediately following the publishing of this decision I intend to list a conference of the parties to address those matters and other matters relating to relevant roping-in awards, Appendices, respondency schedule and possible award consolidations.
When the draft order is prepared by the parties I will examine it and issue a final decision pursuant to all relevant award simplification criteria.
BY THE COMMISSION:
COMMISSIONER
Decision Summary
Award - review of award - award simplification - s89A Workplace Relations and Other Legislation Amendment Act 1996 - various employees, wholesale and retail trade - wage rates - union sought to apply adult rates of pay to juniors with family responsibilities - rejected - Commission not satisfied junior rate for person with family responsibilities amounted to discrimination - union sought junior rates apply to those under 18 years - reject - Commission reluctant to pre-empt outcome of junior rates inquiry - hours of work - employer claim to increase span of hours rejected - no evidence current flexibilites cannot meet trading needs of employers - no necessity for extension of ordinary hours - other provisions simplified consistent with full bench decisions. | ||||
Application by Shop Distributive and Allied Employees Association to vary the Shop Distributive and Allied Employees Association - Victorian Interim Shops Award 1994 and Others. | ||||
C No 34395 of 1997 and Others |
Print Q9229 | |||
Hingley C |
Melbourne |
27 January 1999 | ||
Printed by authority of the Commonwealth Government Printer
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