[2018] FWCFB 7874

FAIR WORK COMMISSION

DECISION

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

4 yearly review of modern awards—Hair and Beauty Industry Award 2010
(AM2017/50)

Hair and Beauty
VICE PRESIDENT CATANZARITI DEPUTY PRESIDENT ASBURY COMMISSIONER LEE	SYDNEY, 28 DECEMBER 2018

4 yearly review of modern awards – Hair and Beauty Industry Award 2010 – award stage – substantive issues – rostering provisions.

Introduction

[1] Section 156 of the Fair Work Act 2009 (Cth) (the Act) provides that the Fair Work Commission (the Commission) must conduct a 4 yearly review of modern awards as soon as practicable after 1 January 2014 (the Review). The Review has consisted of an Initial stage (dealing with jurisdictional issues), a Common issues stage and an Award stage (which involves a review of all awards in four groups). 1 The Hair and Beauty Industry Award 20102 (the Hair and Beauty Award) has been dealt with in Group 4 of the Award Stage and an Exposure Draft was published by the Commission on 16 November 2016.3 This decision deals with substantive issues raised by parties in relation to the Hair and Beauty Award.

Background

[2] On 22 September 2015, the Commission issued a Statement 4 establishing a pilot to produce a plain language draft of the Pharmacy Industry Award 2010. The aim of the pilot was to create a plain language exposure draft which was simpler and easier for employees and employers to understand than the current award. In a Statement of 6 May 20165 the Commission proposed to prepare plain language drafts of award-specific clauses in a number of other modern awards (the first tranche).

[3] In a Statement dated 27 March 2017 6, the Commission identified further awards for plain language redrafting (the second tranche). The Hair and Beauty Award was proposed to be included in this second tranche of awards. In a Statement issued 28 August 20177, the Full Bench confirmed that the Hair and Beauty Award would be included in the second tranche of awards to be dealt with through the plain language process, but noted that the plain language process for this award would not commence until the substantive claims in respect of the award had been heard and determined.8

[4] The substantive issues in relation to the Hair and Beauty Award were subsequently referred to this Full Bench for hearing and determination (and given the matter number AM2017/50).

[5] As part of the Award Stage, parties interested in Group 4 awards were directed to file submissions in relation to substantive issues by 30 September 2016. 9 A number of parties filed submissions in response to these directions and on 8 March 2017 a summary of substantive issues10 was published by the Commission.

[6] On 11 September 2017, Justice Ross held a conference of the parties to discuss the outstanding substantive matters. 11 A revised summary of proposed variations12 was published by the Commission on 14 September 2017.

[7] Justice Ross held a further conference with the parties on 8 November 2017 13 and in a Statement issued 9 November 201714, referred the matter to Commissioner Lee for further conference.

[8] Commissioner Lee convened a conference of the parties on 1 December 2017 15, and a revised summary of submissions16 and draft report17 were published by the Commission on 14 December 2017. A further conference was listed for 18 January 2018.

[9] The parties sought an adjournment of the further conference, on the basis that discussions were continuing regarding the outstanding substantive matters. By letter dated 20 February 2018 18, Ai Group, acting on behalf of itself and Hair and Beauty Australia (HABA), informed the Commission that the parties were finalising an in-principle agreement and noted that “…it appears that all substantive issues raised in the context of this matter (AM2017/50) would be resolved by the agreement of [the Ai Group, Hair and Beauty Australia and the Shop, Distributive and Allied Employees Association (the SDA)]”. Ai Group further noted that:

“We understand that the Commission may require the parties to file submissions in support of the variations proposed, in order to satisfy it that they should be made. We suggest that directions be issued requiring the filing of such submissions by any interested party by close of business on 8 March 2018. Unless the Commission or any interested party determines that there is the need for a hearing, Ai Group and HABA consider that it may be appropriate for the matter to be dealt with on the papers.” 19

[10] On 21 February 2018, the Full Bench issued Directions 20 for the filing of materials in the matter. The Ai Group (on behalf of itself and HABA), the SDA, Australian Business Industrial and NSW Business Chamber and The Australian Workers’ Union (AWU) all filed submissions in support of the variations proposed.

[11] By letters dated 21 and 22 March 2018, the Ai Group (on behalf of itself and HABA) 21 and the SDA22 informed the Commission that they would not be filing submissions in reply. The parties noted that unless the Full Bench had any queries for the parties, or if the Full Bench was not convinced that the proposed variations should be made, the parties were content for the matter to be determined on the papers without a hearing.

Legislative context

[12] The legislative context for the review was canvassed in detail in the 4 yearly Review of Modern Awards: Preliminary Jurisdictional Issues decision²³ (the Preliminary Jurisdictional Issues Decision). We adopt and apply that decision.

[13] Subsection 156(2) of the Fair Work Act 2009 (the FW Act) deals with what must be done in the Review and provides that the Commission must review all modern awards and may, among other things, make determinations varying modern awards.

[14] The ‘scope’ of the Review was considered in the Preliminary Jurisdictional Issues Decision. 24 In that decision, the Full Bench stated that during the Review, the Commission will proceed on the basis that prima facie, the modern award being reviewed achieved the modern awards objective at the time it was made.25 Variations to modern awards should be founded on merit based arguments that address the relevant legislative provisions, accompanied by probative evidence directed to what are said to be the facts in support of a particular claim. The extent of the argument and material required will depend on the circumstances.26

[15] A number of provisions in the Act that are relevant to the Review operate to constrain the breadth of the discretion in s.156(2). It is important to note that the modern awards objective (in s.134) applies to the performance or exercise of the Commission’s ‘modern awards powers’, which are defined to include the Commission’s functions or powers under Part 2-3 of the Act. The Review function in s.156 is in Part 2-3 of the Act and so will involve the performance or exercise of the Commission’s ‘modern award powers’. Thus, the modern awards objective applies to the Review. The modern awards objective is set out in s.134(1) of the Act, as follows:

“134 The modern awards objective

What is the modern awards objective?

(1) The FWC must ensure that modern awards, together with the National Employment Standards, provide a fair and relevant minimum safety net of terms and conditions, taking into account:

(a) relative living standards and the needs of the low paid; and

(b) the need to encourage collective bargaining; and

(d) the need to promote flexible modern work practices and the efficient and productive performance of work; and

(e) the principle of equal remuneration for work of equal or comparable value; and

(f) the likely impact of any exercise of modern award powers on business, including on productivity, employment costs and the regulatory burden; and

(g) the need to ensure a simple, easy to understand, stable and sustainable modern award system for Australia that avoids unnecessary overlap of modern awards; and

(h) the likely impact of any exercise of modern award powers on employment growth, inflation and the sustainability, performance and competitiveness of the national economy.

This is the modern awards objective.”

[16] Section 138 of the FW Act is also relevant to the Review;

“A modern award may include terms that it is permitted to include, and must include terms that it is required to include, only to the extent necessary to achieve the modern awards objective and (to the extent applicable) the minimum wages objective.”

[17] To comply with s.138, the terms included in modern awards must be ‘necessary to achieve the modern awards objective’. What is ‘necessary’ in a particular case involves a value judgment taking into account the s.134 considerations, to the extent that they are relevant, having regard to the submissions and evidence directed to those considerations. Before varying a modern award in the Review, the Commission must be satisfied that the variation is necessary to achieve the modern awards objective.

[18] Section 136 sets out what can be included in modern awards;

“136 What can be included in modern awards

Terms that may or must be included

(1) A modern award must only include terms that are permitted or required by:

(a) Subdivision B (which deals with terms that may be included in modern awards); or

(b) Subdivision C (which deals with terms that must be included in modern awards); or

(c) section 55 (which deals with interaction between the National Employment Standards and a modern award or enterprise agreement); or

(d) Part 2-2 (which deals with the National Employment Standards).

Note 1: Subsection 55(4) permits inclusion of terms that are ancillary or incidental to, or that supplement, the National Employment Standards.

Note 2: Part 2-2 includes a number of provisions permitting inclusion of terms about particular matters.

Terms that must not be included

(2) A modern award must not include terms that contravene:

(a) Subdivision D (which deals with terms that must not be included in modern awards); or

(b) section 55 (which deals with the interaction between the National Employment Standards and a modern award or enterprise agreement).

Note: The provisions referred to in subsection (2) limit the terms that can be included in modern awards under the provisions referred to in subsection (1).”

[19] Section 142 is also relevant, as it provides:

“142 Incidental and machinery terms

Incidental terms

(1) A modern award may include terms that are:

(a) incidental to a term that is permitted or required to be in the modern award; and

(b) essential for the purpose of making a particular term operate in a practical way.

Machinery terms

(2) A modern award may include machinery terms, including formal matters (such as a title, date or table of contents).”

[20] The general principles as to the interpretation and application of the above provisions have been comprehensively set out in a number of decisions issued throughout the Review, most notably the 4 Yearly Review of Modern Awards – Annual Leave Decision 27 and the 4 Yearly Review of Modern Awards - Penalty Rates Decision.28 We intend to follow those principles.

The award variations proposed

[21] The substantive variations proposed by the parties are summarised in the following table:

Summary of submissions item number	Description of issue
S3A	Deletion of rosters clause
S4	Definition and minimum rates for pre-apprentice
S6	Definitions of trainee and graduate
S9	Notification of rosters
S9A	Notification of rosters
S11	Rostering principles – provision for employees regularly working Sundays
S13,14	Rostering principles – consecutive days off
S15	Clarity around operation of 38 hour week rosters

[22] Items S4 and S6 relate to variations to definitions for certain terms; “pre-apprentice”, “trainee” and “graduate”. As this award is to be dealt with through the plain language process, we are of the view that these matters would be more appropriately dealt with by the Plain Language Full Bench when it considers this award. Those two matters are now referred to the Plain Language Full Bench.

[23] The remaining substantive matters all relate to rostering issues identified by the parties. We now turn to deal with those matters, the consent position of the parties and their submissions in support of variations proposed. The substantive items S3A, S11, S13 and S14 are dealt with at paragraphs [66] – [67] below.

The Ordinary Hours Variation – item S15

[24] The SDA made a claim for the insertion of a clause to provide greater clarity around the operation of the 38 hour week. 29 The SDA submitted that the Hair and Beauty Award refers to full-time employees working an average of 38 hours per week in clause 11 and clause 28.2(a) of the current award but does not specify how the averaging of hours should work.30

[25] Clause 11 of the Hair and Beauty Award provides:

“11. Full-time employees

A full-time employee is an employee who is engaged to work an average of 38 hours per week.”

[26] Clause 28.2 of the Hair and Beauty Award provides:

“28.2 Ordinary hours

(a) Ordinary hours must not exceed an average of 38 per week and may be worked within the following spread of hours: …”

[27] Clause 30 of the Hair and Beauty Award provides the following in relation to rosters and ordinary hours:

“30. Rostering principles

30.1 A roster period cannot exceed four weeks.

30.2 Ordinary hours will be worked on not more than five days in each week, provided that if ordinary hours are worked on six days in one week, ordinary hours in the following week will be worked on no more than four days.”

[28] The SDA submitted that inserting a provision which regulates how a full-time employee can be rostered for an average of 38 hours per week “…is necessary to meet the modern awards objective by providing a fair and relevant safety net.” 31 The SDA submitted that such a provision will “remove ambiguity pertaining to the operation of average hours for full-time employees and is consistent with other awards which contain similar averaging provisions”.32

[29] Ai Group, HABA and the SDA propose that new clauses 28.4 and 28.5 be inserted into the Hair and Beauty Award. The new clauses stipulate that the ordinary hours of a full-time employee will be rostered to average 38 hours per week over a period of one, two, three or four weeks as follows:

“28.4 38 hour week rosters for full-time employees

A full-time employee will be rostered for an average of 38 ordinary hours per week, worked in any of the following forms:

(a) 38 hours in one week;

(b) 76 hours in two consecutive weeks;

(d) 152 hours in four consecutive weeks.”

28.5 Notwithstanding clause 28.4, a full-time employee may be rostered to work an average of 38 ordinary hours per week in accordance with an arrangement implemented prior to [insert date of effect of Commission’s determination].”

[30] The SDA submitted that when considering the proposed clause against s.134(1) of the Act, consideration is neutral for all except s.134(1)(a) and s.134(1)(g). 33 The SDA submitted that the proposed clause will have a positive impact on the relative living standards and the needs of the low paid by ensuring employees are being paid all entitlements under the award in a timely manner, such as the calculation of the payment for overtime, which refers to an average of 38 hours.34 The SDA submitted that the insertion of the proposed clause will support the need to ensure a simple, easy to understand, stable and sustainable modern award system as “it will ensure a greater understanding for both employers and employees about how averaging for full-time employees should work over a roster period”.35

[31] Ai Group submitted that clause 28.5 is proposed to preserve:

“…any existing arrangements that might otherwise be disturbed by the operation of clause 28.4 which, for the first time, will require that ordinary hours of work of a full-time employee under the Award cannot be averaged for a period over 4 weeks.” 36

[32] Ai Group submitted that the proposed 28.5 is important “…because the manner in which ordinary hours are averaged can have a bearing on when an employee is required to work ordinary hours and the manner in which an employer structures their roster”. 37

[33] The SDA submitted that clause 28.5 is inserted to mitigate any issues that may arise for the operation of businesses who may have existing alternative arrangements and that the clause therefore should not have any impact on current employment practices. 38

[34] We agree with the submissions of the Ai Group, HABA and the SDA regarding the proposed clause 28.4, in particular that it is consistent with the need to ensure a simple, easy to understand, stable and sustainable modern award system for Australia that avoids unnecessary overlap of modern awards. It is our provisional view that the proposed clause 28.4 be inserted into the award, with one minor variation. In our view, it would make the clause clearer and easier to understand if the word ‘ordinary’ was inserted into the clause before the word ‘hours’ in (a) – (d). We believe the insertion of the word ‘ordinary’ into these subclauses fits within the principles of plain language. It is our provisional view that the following clause 28.4 is inserted into the award:

‘28.4 38 hour week rosters for full-time employees

A full-time employee will be rostered for an average of 38 ordinary hours per week, worked in any of the following forms:

(a) 38 ordinary hours in one week;

(b) 76 ordinary hours in two consecutive weeks;

(d) 152 ordinary hours in four consecutive weeks.’

[35] We do not agree with the submissions made in relation to the proposed clause 28.5. The draft clause has the effect of preserving previously agreed averaging arrangements (that is, agreed prior to the coming into effect of a Commission determination). We do not support this proposed variation for two principle reasons. Firstly, we consider it would be difficult to enforce an ‘arrangement implemented prior to . . .’ and we believe the terms of this clause would likely be subject to disputation. This is not consistent with the objective of providing a simple and easy to understand modern award system. Secondly, there is no evidence as to what arrangements are being preserved under this clause. Therefore, we are unable to determine whether arrangements that may be preserved under this clause are consistent with providing a fair and relevant safety net. For these reasons we do not agree with the consent variation to clause 28.5 and it is our provisional view not to insert this clause into the award.

The Roster Notification Variation, the Mutual Change Variation and the Unilateral Variation – items S9 and S9A

[36] The SDA and HABA have both proposed changes to clause 29 - Notification of rosters. The current clause provides:

“29. Notification of rosters

29.1 The employer will notify staff of:

(a) the number of ordinary hours to be worked each week;

(b) the days of the week on which work is to be performed; and

29.2 Due to unexpected operational requirements, an employee’s roster for a given day may be changed by mutual agreement with the employee prior to the employee arriving for work.

29.3 Rosters for permanent employees must be notified to employees at least 14 days in advance.

29.4 Rosters may be changed at any time by mutual agreement between the employer and employee.

29.5 An employee’s roster may not be changed with the intent of avoiding payment of penalties, loadings or other benefits applicable. Should such circumstances arise the employee will be entitled to such penalty, loading or benefit as if the roster had not been changed.”

[37] The SDA sought to amend the clause to:

(a) insert a requirement that employers notify staff in writing (which may include by electronic means) of the rostering requirements:

(b) insert a requirement for employers to retain superseded rosters for 12 months, which could be, on request, produced for inspection by an authorised person; and

(c) insert wording in bold into clause 29.4 which stated that rosters for permanent employees including any changes where applicable, must be notified to employees at least 14 days in advance. 39

[38] The changes proposed by HABA were sought to enhance the capacity for an employer to change a roster. Their proposals were to:

• Delete clause 29.2;

• Renumber clause 29.3 as 29.2;

• Insert a new clause 29.3 as follows:

“A permanent employee’s roster may be varied by the provision of 7 days’ notice.”

• Insert a new clause 29.4 as follows;

“A permanent employee’s roster for a particular day may be varied by the provision of at least 48 hours’ notice if this is due to an unexpected change in operational requirements or an emergency.”

• Renumber the existing clause 29.4 as clause 29.5. 40

[39] The consent position proposed by the SDA and Ai Group on behalf of HABA is for three amendments to be made to clause 29, the Roster Notification Variation, the Mutual Change Variation and the Unilateral Change Variation.

[40] The Roster Notification Variation proposes to delete clause 29.1 and insert as follows:

“29.1 The employer will provide permanent employees with a written roster (which may be by electronic means) that identifies:

(a) the number of ordinary hours to be worked each week;

(b) the days of the week on which work is to be performed; and

(c) the commencing and ceasing time of work for each day of the week.”

[41] Ai Group on behalf of HABA submitted that the proposed change makes it clear that the clause applies only to full-time and part-time employees (consistent with clause 13.4 of the Award). 41 Ai Group further submitted that the variation makes clear that the obligation to notify under clause 29.1 and the obligation to “notify” a “roster” under clause 29.3 are not two separate obligations. Ai Group submitted that the proposed clause is necessary to meet the modern awards objective because it will promote flexible modern work practices and the efficient and productive performance of work (s.134(1)(d) of FW Act); and will make the award simple and easy to understand (s.134(1)(g)).42

[42] The SDA submitted that clause 12 of the Hair and Beauty Award already requires that a part-time employee must have a written agreement regarding the regular pattern of work and that any variation to this regular pattern of work must be in writing. SDA submitted that the Roster Notification Variation thus extends the obligation to provide a written roster to full-time employees. 43 The SDA submitted that the variation will provide greater certainty as to the provision of rosters which will help in promoting modern awards objectives outlined in s.134(1)(a) of the FW Act and s.134(1)(g) of the FW Act.44

[43] The Mutual Change Variation proposes the deletion of clause 29.2 and the renumbering of clause 29.3 as 29.2.

[44] Ai Group submitted that clauses 29.2 and 29.4 of the Hair and Beauty Award deal, in “inconsistent terms” with the circumstances in which the roster of a permanent employee may be varied by mutual agreement. 45Ai Group submitted that while 29.4 provides a ‘broadly framed ability to change rosters by agreement at any time for any reason”, 29.2 is more confined and it would appear that “clause 29.2 has no work to do, as the circumstances in which it would operate are wholly subsumed by clause 29.4.”46

[45] Ai Group submitted that the deletion of clause 29.2 would ensure that the award includes only clauses that are necessary to meet the modern awards objective and would ensure that the award is simple and easy to understand by removing inconsistency. 47

[46] The Unilateral Change Variation proposes a new clause 29.3 to be inserted into the award as follows:

“29.3 A full-time employee’s roster for a particular day may be varied by the provision of at least 48 hours’ notice if this is due to an unexpected change in operational requirements (for example, staff absences or changes in customer demand).

NOTE: Clause 29.3 is to be read in conjunction with clause 8.2 of this Award.”

[47] Ai Group, on behalf of HABA submitted that once a roster is notified, the provisions of the Hair and Beauty Award do not presently afford an employer any ability to change a full-time employee’s roster without that employee’s agreement. 48 Ai Group submitted that it is;

“…self-evident that there will be circumstances in which an employer needs to alter the roster of a full-time employee due to unexpected changes in operational requirements. This could include, for example, the need to relieve an employee on unplanned leave or because of an unexpected change in customer demand. An example of the latter is the cancellation of a booking by a bridal party with little notice, which would otherwise have required the labour of multiple hairdressers and/or beauticians.” 49

[48] Ai Group further notes that the provisions applying to full-time employees are different to those applying to part-time employees. Ai Group submitted that clause 12.8 of the Hair and Beauty Award provides the employer with some latitude to unilaterally vary the roster of a part-time employee. 50 Ai Group submitted that the reason for this distinction is not apparent and is anomalous.51

[49] Ai Group submitted that the provision as proposed does not give employers an unfettered right to vary the roster of a full time employee but rather:

• Grants an employer the right to change the roster for a particular day;

• Requires the provision of at least 48 hours’ notice;

• Limits the ability to change the roster in circumstances in which the change is due to an unexpected change in operational requirements;

• Provides examples of the circumstances in which the clause might operate; and

• Includes a note to the reader to have regard to clause 8.2 of the Award.

[50] Ai Group submitted that the proposed clause is necessary to ensure the award meets the modern awards objective to provide a fair and relevant safety net of terms and conditions. Ai Group submitted that it is “…not fair that an employer does not have any ability to change the rosters of full-time employees under the award”, and that this inflexibility is unworkable and costly. 52

[51] Ai Group submitted that the modern awards objective considerations s.134(1)(c), 134(1)(da), s.134(1)(e) are neutral considerations in relation to this proposed variation. Ai Group submitted that the proposed clause will not adversely impact the relative living standards or needs of the low paid 53 and is highly unlikely to remove any incentive to collective bargaining.54

[52] Ai Group submitted that the consideration of the need to promote flexible, modern work practices and the efficient and productive performance of work 55 self-evidently supports the variation proposed. Ai Group submitted that the proposal will improve efficiency and the productive performance of work by providing employers with greater scope to manage their rosters and arrange them to align with operational requirements.56 Similarly, Ai Group submitted that the consideration of the likely impact on business, including on productivity, employment costs and the regulatory burden57 also supports the granting of the variation. Ai Group submitted that the variation will provide employers with greater flexibility and will reduce employment costs and improve efficiency and productivity.58

[53] Finally, Ai Group submitted that the proposed change is simple and easy to understand (noting in particular the proposed “Note” referring readers to clause 8.2 of the award and the inclusion of examples in the clause) and notes that it is difficult to measure the likely impact on employment growth, inflation and the sustainability, performance and competitiveness of the national economy, but submitted that in their view this would not be adversely impacted by the proposed change.

[54] The SDA consents to the Unilateral Change Variation with the inclusion of the note. 59 The SDA submitted that the note ensures that the new proposed clause is read in conjunction with clause 8.2 of the Hair and Beauty Award, which requires an employer to consult with the employee or employees affected and their representatives about a proposed change to an employee’s regular roster or ordinary hours of work. The SDA submitted that clause 8.2 of the Hair and Beauty Award also requires the employer to invite the employee/s to give their views about the impact of the proposed change, including any impact in relation to their family or caring responsibilities and to consider those views.60

[55] The SDA submitted that the note will provide a mechanism for employees who may not be able to change their roster at short notice to be consulted and “…consideration made for the reasons why they cannot change their roster, particularly if they have family or caring responsibilities”. 61

[56] The SDA submitted that it is satisfied that, with the inclusion of the note, the proposed variation meets the modern awards objective. 62

Consideration

Roster notification variation

[57] In relation to the proposed roster notification variation, it is apparent that the amendment proposed has the effect of altering the obligation on employers to provide a ‘written roster’ as opposed to simply notifying staff, as is the requirement under the current provision. We are of the view that the reference to electronic means is a logical and contemporary amendment, and is consistent with a number of other clauses in modern awards. We note that the proposed roster notification variation only provides the obligation to ‘permanent employees’ rather than to ‘staff’ which is the requirement under the existing provision. This variation has the effect of removing the obligation to provide casual employees with the information contained in the existing clause 29.1(a)-(c). We do not agree with this aspect of the variation. In our view the obligation to provide employees with the information should continue to extend to all employees, not just permanent employees while noting that it is only permanent employees who must be provided with this information 14 days in advance.

[58] We do not propose to insert the roster notification variation in the form consented to by the parties. It is our provisional view that the following clause be inserted at 29.1 of the award:

‘29.1 The employer must ensure that a work roster is available to all employees, either on a notice board which is conveniently located at or near the workplace or through accessible electronic means.

(a) The roster must show for each employee:

(i) the number of ordinary hours to be worked by them each week; and

(ii) the days of the week on which they will work; and

(iii) the times at which they start and finish work.’

Mutual and unilateral change variation

[59] In relation to the Mutual Change Variation, we do not agree that the proposed variation meets the modern awards objective. The proposed clause limits the scope of notice of roster alteration to full-time employees whereas the existing clause applies to all employees including part-time and casuals. In its place, the proposed clause 29.3 creates a unilateral right for an employer to vary the roster as a result of changes in the operational requirements with at least 48 hours’ notice. We note that the variation to include a unilateral right of an employer to alter a roster is not common across other modern awards. It is also not consistent with clause 29.4 in the current Hair and Beauty Award.

[60] Ai Group submit that there was a distinction between the treatment of part-time employees in clause 12.8 and that of full-time employees in the existing clause 29.2 and that the new clause 29.3 addressed this. We agree that the existing clause 29.2 is not consistent with the part-time provisions in clause 12.8. For the reasons stated above we do not propose to adopt the Mutual Change Variation. We also do not propose to leave the clause in the award as currently drafted. We also agree with the submissions of Ai Group that it is apparent that clause 29.2 has no work to do as the circumstances in which it would operate are wholly subsumed by clause 29.4. We agree that clause 29.2 should be deleted.

[61] It is our provisional view that a new clause should replace the clause currently appearing at clause 29.4. Given the deletion of clause 29.2, the new clause will appear as clause 29.3 in the award as follows:

‘29.3 (a) An employee’s roster may be changed at any time by:

(i) mutual agreement between the employer and employee prior to the employee arriving for work; or

(ii) the employer giving 48 hours’ notice to the employee in the case of an emergency.

(b) This clause does not apply to casual employees who may have their roster changed at any time.’

[62] The above clause preserves the existing flexibility to allow for mutually agreed variations with an additional right for unilateral variation by the employer with notice, but only in emergency situations. It also clarifies that casuals are not subject to those notice provisions due the nature of their engagement. This is consistent with the Full Bench decision of the Australian Industrial Relations Commission which dealt with casual employment and the Metal, Engineering and Associated Industries Award 1998 – Part I. 63

[63] We think that this clause will best meet the modern award objective. It is consistent with the need to promote flexible modern work practices and ensuring a simple and easy to understand modern award system. Other factors in s 134(1) are neutral considerations.

[64] Given the number of amendments we have provisionally made to clause 29, the proposed new clause is set out below in its entirety:

‘29. Notification of rosters

29.1 The employer must ensure that a work roster is available to all employees, either on a notice board which is conveniently located at or near the workplace or through accessible electronic means.

(a) The roster must show for each employee:

(i) the number of ordinary hours to be worked by them each week; and

(ii) the days of the week on which they will work; and

(iii) the times at which they start and finish work.

29.2 Rosters for permanent employees must be notified to employees at least 14 days in advance.

29.3 (a) An employee’s roster may be changed at any time by:

(i) mutual agreement between the employer and employee prior to the employee arriving for work; or

(ii) the employer giving 48 hours’ notice to the employee in the case of an emergency.

(b) This clause does not apply to casual employees who may have their roster changed at any time.

29.4 An employee’s roster may not be changed with the intent of avoiding payment of penalties, loadings or other benefits applicable. Should such circumstances arise the employee will be entitled to such penalty, loading or benefit as if the roster had not been changed.’

Next Steps

Outstanding substantive matters

[65] As set out in the table at [21] above, there are a number of other substantive claims that were not the subject of the consent variation between the parties, and are therefore not dealt with in this decision. These claims are:

• Item S3A: a claim by HABA to delete clause 12.8 of the award (dealing with rosters)

• Item S11: a claim by the SDA to insert a provision for employees regularly working Sundays

• Item S13 and S14: a claim by HABA to vary clause 30.3 of the award relating to consecutive days off.

[66] Parties are directed to inform the Commission if they intend to press the outstanding claims by no later than 4.00 pm (AEDT) on 11 January 2019. If no submissions are received we will consider the outstanding items to be withdrawn.

Provisional views

[67] Interested parties are provided an opportunity to comment on the provisional views outlined in this decision at paras [34], [35], [58], [62] and [65]. Any interested party is directed to file a short written submission relating to our provisional views. Submissions must be filed no later than 4.00 pm (AEDT) on 25 January 2019. Submissions in reply are to be filed by no later than 4.00 pm (AEDT) on 22 February 2019. These issues will then be determined on the papers unless any party requests an oral hearing. Such a request must be made in writing and by no later than 4.00 pm (AEDT) on 22 February 2019. Any submissions are to be filed to amod@fwc.gov.au.

[68] Draft variation determinations giving effect to our final decision will be published for comment in due course. The variation determinations will be finalised on the papers unless any party requests an oral hearing. Any such request must be made in writing to amod@fwc.gov.au at the relevant time.

[69] The exposure draft for the Hair and Beauty Award will also be updated with our final determination at the relevant time.

Seal of the Fair Work Commission with member's signature