[2017] FWC 3205

The attached document replaces the document previously issued with the code [2017] FWC 3178 on 13 June 2017

Mirella Franceschini

Associate to Justice Ross, President

Dated 13 June 2017

[2017] FWC 3205

FAIR WORK COMMISSION

STATEMENT

Fair Work Act 2009
s.156 - 4 yearly review of modern awards

4 yearly review of modern awards – Award stage – Group 2
(AM2014/198)

JUSTICE ROSS, PRESIDENT

MELBOURNE, 9 JUNE 2017

4 yearly review of modern awards – award stage – Group 2 – technical and drafting issues.

[1] The Fair Work Commission is currently reviewing all modern awards as required under s.156 of the Fair Work Act 2009. This Statement provides an update on the status of the technical and drafting issues in the awards allocated to Group 2 as listed in Attachment A.

[2] A decision in relation to this group of awards was issued on 10 October 2016 1 and at paragraph 226 of that decision, the Full Bench directed parties to provide feedback on the revised exposure drafts by 18 November 2016.

[3] A number of submissions were received and have been considered by the Commission. Where appropriate and consistent with previous decisions made as part of the Review, exposure drafts have been updated in accordance with the agreed position of the parties. Additionally, determinations varying these awards arising from common issues decisions in relation to annual leave, award flexibility (time off instead of payment for overtime) and payment of wages issued in recent months have been incorporated in the exposure drafts.

[4] For some awards there remain a limited number of items that are yet to be resolved. These are listed in a schedule at Attachment B to this Statement.

[5] Parties are directed to review the revised exposure drafts and the schedule at Attachment B and provide feedback in writing to amod@fwc.gov.au by 4.00 pm on 30 June 2017 outlining:

any errors in the exposure drafts; and

any outstanding technical and drafting issues that have been raised previously but are not listed in the schedule.

[6] Following receipt of any feedback, further directions will be issued to deal with the outstanding issues.

Next steps

[7] Exposure drafts will be amended and republished on the Commission’s website progressively as the remaining issues are resolved in the first half of 2017.

[8] Following any amendments to wages or allowances arising from the Annual Wage Review 2016–17 these exposure drafts will be updated to incorporate the adjusted rates and to ensure they are consistent with the Plain language guidelines 2 and republished for final comment. The current award will then be varied to substitute all clauses and schedules with the provisions in the exposure draft during the second half of 2017.

PRESIDENT

Attachment A—List of Group 2 awards

Extract from Attachment A to Full Bench Decision of 17 March 2014 [2014] FWCFB 1788; subgroups as per Attachment A of Statement on 6 May 2015 [2015] FWC 3148.

Group 2 (19 awards)

Award code	Award title	Subgroup
MA000092	Alpine Resorts Award 2010	2A
MA000118	Animal Care and Veterinary Services Award 2010	2B
MA000114	Aquaculture Industry Award 2010	2A
MA000110	Corrections and Detention (Private Sector) Award 2010	2D
MA000111	Fire Fighting Industry Award 2010	2D
MA000026	Graphic Arts Award 2010	2A
MA000027	Health Professionals and Support Services Award 2010	2B
MA000008	Horse and Greyhound Training Award 2010	2D
MA000031	Medical Practitioners Award 2010	2B
MA000034	Nurses Award 2010	2B
MA000063	Passenger Vehicle Transportation Award 2010	2C
MA000012	Pharmacy Industry Award 2010	2B
MA000014	Racing Industry Ground Maintenance Award 2010	2D
MA000039	Road Transport (Long Distance Operations) Award 2010	2C
MA000038	Road Transport and Distribution Award 2010	2C
MA000068	Seafood Processing Award 2010	2A
MA000084	Storage Services and Wholesale Award 2010	2A
MA000042	Transport (Cash in Transit) Award 2010	2C
MA000043	Waste Management Award 2010	2C

Attachment B—Status of Group 2 awards – technical and drafting issues 3


ITEM	PARTY	DOCUMENT	CLAUSE (exposure draft)	SUMMARY OF ISSUE	THEIR REFERENCE		NOTES
*AM2014/198 —Alpine Resorts Award 2016 —* MA000092**
1	Ai Group	Submission – 9/12/16	Various	Applicable hourly rate Change to minimum hourly rate. Terms may cause confusion. Argues that applicable and minimum hourly rate are synonymous based on definition.	Paras 10–13		Applicable hourly rate included due to the 8.33% seasonal employee loading which forms part of a seasonal employee’s rate for purpose of overtime, penalties etc. Issue of whether 8.33% loading is to be deleted has been referred to the Full Bench in AM2016/30.
*AM2014/199 — Animal Care and Veterinary Services Award 2016 —* MA000118**
1	AVA	Submission – 06/12/16	8.3(c)	Ordinary hours – 3 days off/cycle 3 days off duty includes being off duty from on call. 93% of AVA’s employers currently interpret the clause this way. Does not support current working of the note as per AFEI’s proposal as follows: “Note: An associate is not in receipt of a day off for the purposes of Clause 8.3(c) if they perform scheduled active on call duty on that day”. This note implies that the associate can be rostered on call on their off duty days. This note should be removed.	Page 1		Outstanding
*AM2014/200 — Aquaculture Award 2016 —* MA000114**
Nil – no submissions on further revised exposure draft received
*AM2014/201 — Corrections and Detention (Private Sector) Award 2016 —* MA000110**
Nil – all issues arising from submissions incorporated into exposure draft
*AM2014/202 — Fire Fighting industry Award 2016 —* MA000111**
1	UFU	Submission – 30/11/16	9	Ordinary hours of work and rostering In response to FWC question re: rosters: There can be no work other than on the 10/14 roster.	Para 1		Outstanding
2	UFU	Submission – 30/11/16	20.1	Definition of overtime – public sector In response to FWC question re: reference to minimum weekly rate: Reference to ‘minimum weekly rate’ in clause 20.1(c) should be to the ‘total weekly wage in clause 13.’ This prevents additional payment for overtime where payment has already been provided as part of the total weekly wage. The minimum weekly wages does not provide payment for overtime.	Para 2		Outstanding
3	UFU	Submission – 30/11/16	20.2	Definition of overtime – private sector In response to FWC question re: overtime for shiftworkers: Overtime should be payable to shiftworkers not working on a 10/14 roster on the same basis as those working a 10/14 roster. Overtime should be paid where a fire fighter works outside their rostered shifts or works more than 4 shifts per week.	Para 3		Outstanding
4	UFU	Submission – 30/11/16	22.3	10/14 roster employees and other public sector employees In response to FWC question re: note to clarify rate of pay on leave: Note is not necessary but would be desirable.	Para 4		Outstanding
5	UFU	Submission – 30/11/16	Schedule D	Definitions – public sector employee and private sector employee Public and private sector have a well-understood meaning within the fire fighting industry and further definition is not necessary.	Para 5		Outstanding
*AM2014/20 — Graphic Arts, Printing and Publishing Award 2016 —* MA000026**
**Note: a background document highlighting the inconsistencies in approach to describing rates has been prepared to demonstrate the complexities of the issues raised will be published on the Commission website.
1	Ai Group	Submission – 14/12/16	18.5	Payment of wages Time and a half should be replaced with 150%.		Para 36	This was done because in some circumstances arising under this award the conversion to percentage results in employee being worse of.
2	Ai Group	Submission – 14/12/16	24.2(b), 24.3(a), 24.3(b), 24.4(a), 31.3, 31.4	Overtime, penalties and public holidays Time and a half, double time etc should be replaced with percentages.		Paras 37 – 45	As above
3	Ai Group	Submission – 14/12/16	Schedule I	Definitions Definition of ordinary hourly rate is not included. Party submits it should be. The term is used in the award.		Para 46	Outstanding. Definition has not been included as the term ‘ordinary hourly rate’ was used in the current award and may have had a different meaning to that determined by the Full Bench in the four yearly review.
4	AMWU	Submission – 18 November 2016	Clause 5.5(c)	5.5 Level 2—facilitation by majority or individual agreement (c) Such an agreement under this clause binds the individual employee		Para a)	Proposed additional word proposed based on the amendment to the Award in the Report to the Full Bench dated 8 December 2015 at page 4
*AM2014/204 — Health Professionals and Support Services Award 2016 —* MA000027**
1	Ai Group	Submission – 14/12/16	19.1	Overtime rates Clause has been updated with reference to para [98] of decisions which states agreed changes in Roe C’s reports to the Full Bench would be adopted. Ai Group does not agree with the change to clause 19.1. It is not clearly documented that the change to this clause was agreed. Matter should be referred to Full Bench as part of HSU’s substantive variations.		Paras 62 - 64	Outstanding – seek referral to Full Bench.
*AM2014/205 — Horse and Greyhound Training Award 2016 —* MA000008**
Nil – all issues arising from submissions incorporated into exposure draft
*AM2014/206 — Medical Practitioners Award 2016 —* MA000031**
Nil – all issues arising from submissions incorporated into exposure draft
*AM2014/207 — Nurses Award 2016 —* MA000034**
1	ACE	Submission – 08/12/16	17.5(b)(i)	Annual leave – shiftworkers Issue of who is considered a shiftworker is unclear. ACE submits it is not the intention to provide shiftworkers with any additional loading than non-shiftworkers. Annual leave loading is based on 4 weeks or 152 hours at 17.5%. Issue should be dealt with as part of wider consultations.		Page 2	Outstanding
2	ANMF	Submission – 30/11/16	A.1	Classification definitions Wording proposed by ANMF of A.1 may need to be reviewed in light of release of 2016 Standards for Practice.		Page 1	Discussions between parties are taking place.
2	ACE	Submission – 08/12/16	A.1	Opposes ANMF revised wording of clause A.1, and confirm the Enrolled Nurse Standards for Practice at section 3.8 confirm that an enrolled nurse can support and supervise an assistant in nursing. Clause should not be amended as proposed by ANMF.		Page 3	Discussions between parties are taking place.
*AM2014/208 — Passenger Vehicle Transportation Award 2016 —* MA000063**
1	AWU	Submission – 28/11/16	10.5(d)	Casual employment AWU supports the position of TWU that a casual employee solely engaged for the purpose of transportation from school children to and from school may be rostered to perform two separate engagements per day with a minimum payment of 2 hours for each separate engagement.		Page 1	Outstanding
*AM2014/209 — Pharmacy Industry Award 2016 —* MA000012**
Award being dealt with separately
*AM2014/210 — Racing Industry Ground Maintenance Award 2016 —* MA000014**
1	Ai Group	Submission – 14/12/16	B.3	Rates – casual employees Clause should be amended to make it clear that the morning work, evening work, Saturday, Sunday and public holiday rates and overtime rates do not apply to a casual employee engaged on night cleaning duties consistent with clause 6.5. Suggest including a footnote. Ai Group is concerned the schedule suggests all casual employees are entitled to the rates set out in B.3		Paras 125 – 126	Outstanding
*AM2014/211 — Road Transport (Long Distance Operations) Award 2016 —* MA000039**
1	NRTA	Submission – 29/11/16	6.3	Part-time employment Clause has been updated in accordance with 1^st report to Full Bench. However, no part-time clause has been included in accordance with report.			Part-time clause has been referred to Part-time Full Bench.
2	ARTIA	Submission – 23/11/16	11	Minimum wages/Schedule A Rates are incorrect. Standard rates in the decisions section could also be incorrect. Clause 11.5(c) refers to the ‘agreed driving hours’ for a grade 4 but it is unclear whether or not this has been changed to a Grade 6 in light of comments above.		Para 5	Rates appear to be correct. If claim pursued, could ARTIA please provide details of which rates are incorrect. Definition of standard rate updated and correct standard rate amount inserted into schedule C. 11.5(c) updated.
3	NRTA	Submission – 29/11/16	11.2(a)	New provision New clause that was incorporated as a result of the 2^nd report to the Full Bench does not do as the parties and the Commission appear to intend. Provision has no work to do. The intention to set out how the fortnightly period is derived is not necessary as the provision relates to a simple calculation of payment (2x prescribed weekly rate) and does not require the calculation of a ‘period’. Provision should be deleted.		Para 10	Outstanding. Could NRTA file submissions regarding whether Ai Group’s reflects their view?
3	Ai Group	Submission – 14/12/16	11.2(a)	NRTA submissions unintentionally misstate the proposed variation. Ai Group understands NRTA’s concerns would be resolved by the following wording: “The fortnightly payment must be calculated by reference to consecutive fortnightly periods.” Ai Group would not be opposed to this wording. Generally note that wording in ED was agreed to.		Para 133 – 136
*AM2014/212 — Road Transport and Distribution Award 2015 —* MA000038**
1	ARTIA	Submission – 23/11/16	6.5(c)	Casual loading The casual loading of 25% is ‘in addition to’ any other penalty payment and should be calculated as a dollar allowance and then added to the penalty payment.		Para 2	Outstanding
2	ARTIA	Submission – 23/11/16	Schedule C	Hourly rate – oil distribution workers A divisor of 35 hours is used for all employees including part-time employees. This is contested and being dealt with by the Full Bench.		Para 7	Issue has been referred to Full Bench. Outstanding
3	NRTA	Submission – 29/11/16		Rates in relation to oil distribution workers are contested and being referred to by Full Bench.		Para 7	Issue has been referred to Full Bench. Outstanding
4	NRTA	Submission – 29/11/16	Schedule D	Allowances schedule – CPI category of travelling allowance Party referred to [2009] AIRCFB 980, and submits that there is no reason to change the current subgroup..		Para 9	Outstanding
*AM2014/213 — Seafood Processing Award 2015 —* MA000068**
1	AMWU	Submission – 18/11/16	8.2(c)	Ordinary hours of work – day workers Variations should be considered at conclusion of review stage		Para 1	Outstanding
2	AMWU	Submission – 18/11/16	13.4	Shiftwork – span of hours Variations should be considered at conclusion of review stage		Para 1	Outstanding
3	AMWU	Submission – 18/11/16	13.5	Afternoon and night shift allowances Submits no variation should be made, as no inconsistency presents with ‘allowances’ or ‘rates’ terminology as submitted by the AIG on 31/08/16.		Para 2(a)	Outstanding
4	AMWU	Submission – 18/11/16	13.6, 13.7 and 13.8	No variation should be made, as no inconsistency presents with ‘allowances’, ‘rates’ or ‘loadings’ terminology as submitted by the AIG on 31/08/16.		Para 2(b)	Outstanding
*AM2014/214 — Storage Services and Wholesale Award 2016 —* MA000084**
1	Business SA	Submission – 09/12/16	4	Award flexibility Agreed wording has not been incorporated into ED, but notes AMOD email of 11/11/16 which acknowledge it would be included in next ED	1.1		Submission unclear. Clause 8.4 has been updated. However, no reference found to clause 4 in correspondence of 11/11/16.
2	SDA	Submission – 01/11/16	9.2	Rest break Wording of current award to be retained (see report to Full Bench of 16 Mar16)	Page 1		Report to Full Bench indicates that the wording ‘commencement or cessation of work’ be retained. Does not indicate that entire 9.2 will be replaced.
	Ai Group	Submission – 14/12/16		As above	167 – 168
	Business SA	Submission – 09/12/16		Word ‘normal’ deleted when reverting wording back to current award. The word should be added.	1.1
3	Business SA	Submission – 09/12/16	17	Annual leave Delete ‘and’ at the end of 17.5(b) and amend 17.6 and 17.7 formatting.			Deleted. Formatting aspect of submission unclear.
4	SDA	Submission – 01/11/16	Schedule C	Summary of monetary allowances Calculations for first aid and cold temperature allowances are incorrect. ($11.53, not $11.81)	Page 2		AMOD calculates that rates are correct. However, standard rate updated in schedule C.1.
*AM2014/215 — Transport (Cash in Transit) Award 2016 —* MA000042**
Nil – all issues arising from submissions incorporated into exposure draft
*AM2014/216 — Waste Management Award 2015 —* MA000043**
1	AMWU	Submission – 18/11/16	15.3	Shift loadings Submits no variation should be made, as no inconsistency presents with ‘loadings’ or ‘rates’ terminology as submitted by the AIG on 31/08/16.		Para 3(a)	Outstanding
2	AMWU	Submission – 18/11/16	17.2(b)	Annual leave – shiftwork Submits no variation should be made, as no inconsistency presents with terminology as submitted by the AIG on 31/08/16.		Para 3(b)	Outstanding

1 [2016] FWCFB 7254

2 [2017] FWCFB 1638 at [15]

3 In their submission dated 31 August 2016, Ai Group has raised a number of issues across most exposure drafts.

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