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Fair Work Act 2009                                                    






s.156 - 4 yearly review of modern awards


Four yearly review of modern awards


Food, Beverage and Tobacco Manufacturing Award


By Telephone AEST


12.09 PM, TUESDAY, 9 JUNE 2020


THE DEPUTY PRESIDENT:  Good morning.  It's Clancy DP on the line for a telephone conference in relation to the Food, Beverage and Tobacco Manufacturing Award.  Could I confirm I have on the line Mr Miller?


MR G MILLER:  Yes, I'm here, Deputy President.


THE DEPUTY PRESIDENT:  Thank you.  From ABI to I have Mr Cahill?


MR S CAHILL:  Yes, Deputy President.


THE DEPUTY PRESIDENT:  Thank you.  And from Ai Group, Ms Bhatt?


MS R BHATT:  Yes, Deputy President.


THE DEPUTY PRESIDENT:  Thank you.  This is the resumption of a teleconference that took place on 25 May 2020 and the outcome of that telephone conference was the parties were going to have some further discussions about the wording of some particular clauses relating to casual rates of pay, contained within - or that are to be contained within the body of the award and in schedule B of the award.


I have received, this morning, some correspondence, from Mr Miller, that provides an update in relation to those discussions.


So I'll let Mr Miller talk to those first, and to the proposed amendments that are said to have arisen out of those discussions then I'll ask the other parties for their views and we'll go from there.  So I'll ask you, now, Mr Miller - I understand that you're appearing on behalf of the AWU, in Mr Crawford's absence, so I'm assuming that when you are speaking on behalf of the AMWU you are also speaking on behalf of the AWU, is that correct?


MR MILLER:  Yes, thank you, Deputy President.


THE DEPUTY PRESIDENT:  All right, thanks.  Thank you, Mr Miller, I'll hand over to you.


MR MILLER:  Sure.  Deputy President, as you pointed out, where we left off, at the conclusion of the last conference, was that AMWU undertook to circulate some proposals with a view to resolving the remaining technical issues that have been identified by ABI's submissions in response to amendments (indistinct) originally by us, in our submissions, that we made in relation to the exposure draft, in March.


So the AMWU has used this period to circulate a number of proposals, which we've done and, as you've pointed out, that final proposal was sent to your Chambers this morning.  Really, this proposal is, in substance, the position that we put in those March submissions, in effect.  It involved the restructuring of the current clause 10 and the purpose of that is to reflect the correspondence clause dealing with casuals in the Manufacturing Award.


We've taken this approach because we formed the view that in this award, similar to the manufacturing award, it's necessary to clarify, with precision, that the casual loading is calculated on the minimum rate, plus any relevant all purpose allowances.  So, in other words, the casual loading is taken as a (indistinct) of the ordinary hourly rate.  In addition, we think it's necessary to clarify that where elsewhere in the award there's a reference to a penalty rate or shift loading or some entitlement being calculated as a percentage of the ordinary hourly rate that that reference will, for a casual employee, be taken to a reference to the casual ordinary hourly rate.


So that's, in substance, the reason that we've taken that approach.  I understand that that approach is not opposed, at least by the AiG and, I suspect, by the ABI as well.  Mr Cahill can, perhaps, correct me later of, if necessary.


The remainder of the proposed amendments were dealing with some proposed amendments to the tables, in schedule B, to clarify the basis of the rates for casuals in those tables, to clarify that they are minimum rates and to clarify the process for calculating the rates where, in fact, a casual employee is entitled to all purpose allowances, other than the casual loading.


In addition to that, you'll see also the proposed new tables for the casual employees when they're working overtime.  So we've got a proposed new clause B.2.4, which deals with casual employees, other than continuous shift workers, that would cover casual employees that are day workers but also casual employees that are non continuous shift workers.  That table sets out the relevant rates, the relevant overtime rates for those scenarios and then, in addition, there's a new B.2.5 which we propose which deal with scenarios for casual employees working overtime, where those casual employees are continuous shift workers.


So, yes, Deputy President, those are the amendments we'd seek and hopefully this explanation provides a basis for why we seek those amendments.  I'm happy to answer any questions and I would just reiterate that this proposal has been sent to the other parties well in advance of this conference.


As you say, I've been asked to (indistinct) appearance for the AWU, in relation to this matter, and they support or position.  I've also received correspondence from the AiG confirming that they're not opposed to this package we're proposing as proposed amendments.  With respect to the ABI, I can't speak for their position so Mr Cahill will, perhaps, need to assist me there.


THE DEPUTY PRESIDENT:  All right.  Thank you.  Just the tables, the position for continuous shift workers, the earlier incarnation of the tables, or the tables that are currently in the exposure draft, at B.2.3, don't appear to have a public holiday rate for - sorry, it has a public holiday rate for continuous shift workers that is the same as the Sunday rate, and yet the table that is proposed to be inserted as clause B.2.5 is indicated to apply for casual employees who are continuous shift workers, working overtime Monday to Sunday.  Is there any reason why there won't be rate prescribed for continuous shift workers working overtime on a public holiday?


MR MILLER:  Well, because it's the same rate, Deputy President, it's 200 per cent.  So, in our view, and in the absence of any contrary views, we took the view that it would be sufficient to just set out that it was the rate that applied Monday to Sunday, inclusive in that is the acknowledgment that it also applies on a public holiday.


THE DEPUTY PRESIDENT:  All right.  I'm just wondering why you wouldn't make that clear?


MR MILLER:  I'm happy to do so, Deputy President.  I didn't give any thought to it.


THE DEPUTY PRESIDENT:  Okay.  All right.  It just seems to me that - well, the table gives the impression that whenever a casual employee who is a continuous shift workers works overtime, the rate's going to be 200 per cent.  All right.  If that's the case, the table could indicate that, that's what I'm posing.


MR MILLER:  Okay, just to clarify, Deputy President, would you propose that an additional column be added with the public holiday rate, effectively duplicating the rate in the column that it sits immediately next to, or would it be just a matter of amending the title of that column from something to say, like "Monday to Sunday and Public Holidays".


THE DEPUTY PRESIDENT:  Yes.  Because it occurred to me that the intention for parties, the shared intentions, seemed to be to put the rates for casual employees in these tables so that there was an easy to follow reference to what casual employees are paid.  It just then seemed there was one gap, and that would be casual continuous shift workers working on a public holiday.  So I mean the column could simply be renames, "Monday to Sunday and Public Holidays", perhaps.


MR MILLER:  Yes, okay.


THE DEPUTY PRESIDENT:  Anyway, I'll ask to hear from Ms Bhatt and then Mr Cahill.  Have a think about that, anyway, Mr Miller.  Okay, thank you, Ms Bhatt?


MS BHATT:  Thank you, Deputy President.  Our position is as indicated by Mr Miller.  We don't opposed the changes that are set out in the AMWU's proposal and we don't oppose either of the proposed approaches that have just been discussed, in respect of the public holiday rate.


THE DEPUTY PRESIDENT:  Okay.  Thank you.  I'm just making a note.


As I understand it, Mr Miller and Ms Bhatt, what is being proposed here, for this award, is a set of arrangements which, or a set of clauses and form of wording that has been adopted in the Manufacturing Award, is that correct?


MS BHATT:  That's my understanding, yes.


MR MILLER:  Yes, in substance is reflects what's in the Manufacturing Award.


THE DEPUTY PRESIDENT:  All right.  Thank you.  Mr Cahill?


MR CAHILL:  Thank you, Deputy President.  Our position is the same as AiG's position, we do not oppose the proposal that's been put forward.


THE DEPUTY PRESIDENT:  All right.  So the position then seems to be that, as far as parties who are interested in this award are concerned, there is now a proposed form of wording before the Commission, dealing with clause 10 of the exposure draft and, in particular there, clause 10.2, 10.3 and I think some consequent renumbering to 10.4 and 10.5 - sorry, 10.4 and a 10.5 amended renumbering.  Then some new wording for clause B.2.1 in the schedule, which is to replace the current clause B.2.1 in the exposure draft.


Then a new clause B.2.2, which then makes the current, as in the current exposure draft, the table at B.2.2, that would be then B.2.3, is that correct, Mr Miller?


MR MILLER:  Sorry, Deputy President, could you just repeat that?


THE DEPUTY PRESIDENT:  So I'm looking at the latest exposure draft, you've proposed new wording for B.2.1?




THE DEPUTY PRESIDENT:  A new clause B.2.2?




THE DEPUTY PRESIDENT:  The current table, B.2.2, would be renumbered B.2.3?


MR MILLER:  Yes, that would have to be, yes.


THE DEPUTY PRESIDENT:  You've then got a new footnote, which would be applicable for the - - -


MR MILLER:  To be read with B.2.3 and B.2.4.


THE DEPUTY PRESIDENT:  Yes.  So the renumbered B.2.3 and B.2.4.  Then your tables, the current B.2.3 is to be replaced with two new tables, which would be as you've set out in your attachment sent to my Chambers this morning, tables B.2.4 and B.2.5, is that right?


MR MILLER:  That's not quite right, Deputy President.  The table at B.2.3 would remain then there would be an additional table, which would be - sorry, what's currently B.2.3 in the exposure draft would have to be renumbered to B.2.4 and then a new table inserted, which would be B.2.5.  Now, that's the table that I had incorrectly suggested be called B.2.4, in my correspondence.  That's a regrettable error to me not contemplating the earlier need to renumber, which you've just pointed out.  So that first addition - - -


THE DEPUTY PRESIDENT:  So that's B.2.5 and then the - B.2.5 would be the table for casual employees, other than continuous shift workers for overtime.


MR MILLER:  Yes, that's correct.


THE DEPUTY PRESIDENT:  Then there would be a further table, B.2.6, which is casual employees, continuous shift workers for overtime.


MR MILLER:  Yes, that's right.


THE DEPUTY PRESIDENT:  The column in that could be "Monday to Sunday and Public Holidays".


MR MILLER:  Yes.  I don't oppose that amendment.


THE DEPUTY PRESIDENT:  All right.  If I could just go back to that footnote, replacing the footnote 1, that footnote 1 will be the footnote that is at the foot of each of the tables which will now be B.2.3, B.2.4, B.2.5 and B.2.6.


MR MILLER:  Yes, that's right.


THE DEPUTY PRESIDENT:  All right.  What I will proceed to do, if those matters are all agreed, is that I will complete a report to the Full Bench, in relation to this award.  The Full Bench will consider that report and then, subsequently, issue a statement which will outline the Full Bench's views and any further steps hat the Full Bench proposes be taken, in relation to this award.


Are there any other matters that any of the parties on the line for today's conference was to raise, prior to us concluding?  Firstly, from you, Mr Miller?


MR MILLER:  No, nothing further from me, Deputy President.


THE DEPUTY PRESIDENT:  Thank you.  Ms Bhatt?


MS BHATT:  No, thanks, Deputy President.


THE DEPUTY PRESIDENT:  Thank you.  Mr Cahill?


MR CAHILL:  No, thank you, Deputy President.


THE DEPUTY PRESIDENT:  Thank you.  Well, I'll proceed in the manner in which I've outlined and I thank the parties for their attendance today and also for the work they did in between the two conferences.  Thank you very much, the conference is now closed.

ADJOURNED INDEFINITELY                                                         [12.28 PM]