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

4 yearly review of modern awards – Part-time and Casual Employment
(AM2014/196 and AM2014/197)

4 yearly review of modern awards - common issue - part time employment and casual employment.

Introduction

[1] There remain three issues outstanding in these proceedings, as indicated in paragraphs [31]-[32] of the decision we issued on 21 September 2018: 1

(1) The form of the casual conversion clause to be added to the Stevedoring Industry Award 2010 (Stevedoring Award).

(2) The form of the variation to be made to the Horticulture Award 2010 (Horticulture Award) to establish overtime entitlements for casual employees.

(3) The claim by the ACTU that the Educational Services (Post-Secondary Education) Award 2010 should be varied to include the model casual conversion clause.

[2] This decision determines these remaining issues.

Casual conversion - Stevedoring Industry Award 2010

[3] In paragraph [61] of the decision we issued on 9 August 2018 2 (the August 2018 decision) we expressed a provisional view concerning the form of the casual conversion for this award. The terms of a clause consistent with this clause were set out in the decision, and were as follows:

10.4 Right to request casual conversion

(a) An employee engaged by a particular employer as a regular casual employee may request that their employment be converted to full-time or guaranteed wage employment.

(b) A regular casual employee is a casual employee who has in the preceding period of 12 months worked a pattern of hours on an ongoing basis which, without significant adjustment, the employee could continue to perform as a full-time employee or guaranteed wage employee under the provisions of this award.

(c) A regular casual employee who has worked equivalent full-time hours over the preceding period of 12 months may request to have their employment converted to full-time employment.

(d) A regular casual employee who has worked less than equivalent full-time hours over the preceding period of 12 months, but has worked at least 28 hours per month in 10 of the preceding 12 months, may request to have their employment converted to guaranteed wage employment, with a guaranteed minimum number or average number of full shifts each week corresponding to the pattern and number of hours the employee has worked over the period referred to above.

(e) Any request under this clause must be in writing and provided to the employer.

(f) Where a regular casual employee seeks to convert to full-time employment, the employer may agree to or refuse the request. The request may only be refused on reasonable grounds and after consultation with the employee.

(g) Reasonable grounds for refusal may include that:

(i) it would require a significant adjustment to the casual employee’s hours of work in order for the employee to be engaged as a full-time employee in accordance with the provisions of this award, that is, the casual employee is not truly a regular casual employee as defined in paragraph (b);

(ii) it is known or reasonably foreseeable that the regular casual employee’s position will cease to exist within the next 12 months;

(iii) it is known or reasonably foreseeable that the hours of work which the regular casual employee is required to perform will be significantly reduced in the next 12 months; or

(iv) it is known or reasonably foreseeable that there will be a significant change in the days and/or times at which the employee’s hours of work are required to be performed in the next 12 months which cannot be accommodated within the days and/or hours during which the employee is available to work.

(h) For any ground of refusal to be reasonable, it must be based on facts which are known or reasonably foreseeable.

(i) Where the employer refuses a regular casual employee’s request to convert, the employer must provide the casual employee with the employer’s reasons for refusal in writing within 21 days of the request being made. If the employee does not accept the employer’s refusal, this will constitute a dispute that will be dealt with under the dispute resolution procedure in clause 9. Under that procedure, the employee or the employer may refer the matter to the Fair Work Commission if the dispute cannot be resolved at the workplace level.

(j) Where it is agreed that a casual employee will have their employment converted to full-time employment as provided for in this clause, the employer and employee must discuss and record in writing the conversion to full-time employment.

(k) The conversion will take effect from the start of the next pay cycle following such agreement being reached unless otherwise agreed.

(l) Once a casual employee has converted to full-time employment, the employee may only revert to casual employment with the written agreement of the employer.

(m) A casual employee must not be engaged and re-engaged (which includes a refusal to re-engage), or have their hours reduced or varied, in order to avoid any right or obligation under this clause.

(n) Nothing in this clause obliges a regular casual employee to convert to full-time employment, nor permits an employer to require a regular casual employee to so convert.

(o) Nothing in this clause requires an employer to increase the hours of a regular casual employee seeking conversion to full-time employment.

(p) An employer must provide a casual employee, whether a regular casual employee or not, with a copy of the provisions of this clause within the first 12 months of the employee’s first engagement to perform work. In respect of casual employees already employed as at 1 October 2018, an employer must provide such employees with a copy of the provisions of this subclause by 1 January 2019.

(q) A casual employee’s right to request to convert is not affected if the employer fails to comply with the notice requirements in clause 10.4(p).

[4] Paragraph [62] of the August 2018 decision indicated that a draft determination would be published, and that parties would then have 14 days to make submissions in response.

[5] Submissions were subsequently received from the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) and lawyers acting for a group of stevedoring employers 3 (Stevedoring employers).

[6] The CFMMEU submitted that our rejection in the August 2018 decision of its submission that the definition of “regular casual employee” in respect of whom the clause is to apply (in clause 10.4(b) above) should operate by reference to the employee’s “number of hours” rather than “pattern of hours” over a 12-month period meant that the clause would be left with little practical application, since (as had been acknowledged in the August 2018 decision) the notion of a regular working pattern for stevedores is a rare occurrence. The CFMMEU invited us to reconsider our position in this respect.

[7] The CFMMEU submission is, with respect, based upon a misunderstanding of the proposed clause. Clause 10.4(b) does not require that a casual employee must have worked a regular pattern of hours in order to qualify for casual conversion. Rather, it requires the casual employee to have, in the preceding 12 month period, worked “a pattern of hours on an ongoing basis which, without significant adjustment, the employee could continue to perform as a full-time employee or guaranteed wage employee under the provisions of this award”. That is, the pattern of hours over the preceding 12 months needs only be of such a nature as to be convertible to full-time employment or employment as a guaranteed wage employee (GWE). In the case of GWEs, for example, we said in the August 2018 decision (at paragraph [60]) that “…there is no standard of regularity for GWE employment…”. In those circumstances, there is no requirement for any particular regularity in the pattern of casual employment in order to be able to convert to employment as a GWE – which is the very reason why, as we explained in paragraphs [60] and [61] of the August 2018 decision, we added the additional criterion concerning minimum monthly hours in the proposed clause 10.4(d). In addition, there is considerable flexibility and irregularity in the hours of work of full-time employees, as explained in the Full Bench decision in Re Stevedoring Industry Award 2010 4 at paragraphs [58]-[65]. A casual employee need only work a pattern of hours over the preceding 12 months that is comparable to that which might be worked by a full-time employee under the Stevedoring Award in order to qualify for casual conversion under the proposed clause. Accordingly the CFMMEU submission is rejected.

[8] The Stevedoring employers raised in their submissions a number of issues concerning the drafting of the proposed casual conversion clause. Firstly, it proposed that the definition of “regular casual employee” in proposed clause 10.4(b) be modified to remove the criterion concerning the pattern of hours and to be replaced by the monthly hours criterion currently contained in proposed clause 10.4(d). This is rejected. The pattern of hours element of the definition will operate in the manner discussed above and is a key aspect of the standard casual conversion provision which has emerged from these proceedings. The additional monthly hours criterion in clause 10.4(d) was, as explained in the August 2018 decision, specific to conversion to employment as a GWE was not intended to become a general criterion for conversion. Secondly, the Stevedoring employers submitted that there should be corresponding changes to clause 10.4(d). We consider these to be largely unnecessary, except we agree that a request for conversion to employment as a GWE does not need to reference the existing pattern of hours (which may, as discussed above, be irregular) but only the average number of hours over the preceding 12 months. Finally, the Stevedoring employers pointed out that clauses 10.4(f), (g)(i), (j), (l), (n) and (o) erroneously omit references to guaranteed wage employment. This will be rectified.

[9] Due to the passage of time, the dates in clause 10.4(p) will need to be modified. We intend that the determination to add the casual conversion clause will take effect from the start of the first full pay period on or after 15 April 2019, so the dates in clause 10.4(p) will be altered to 15 April 2019 and 15 July 2019 respectively. The clause to be added to the Stevedoring Award will be in the following terms:

10.4 Right to request casual conversion

(a) An employee engaged by a particular employer as a regular casual employee may request that their employment be converted to full-time or guaranteed wage employment.

(b) A regular casual employee is a casual employee who has in the preceding period of 12 months worked a pattern of hours on an ongoing basis which, without significant adjustment, the employee could continue to perform as a full-time employee or guaranteed wage employee under the provisions of this award.

(c) A regular casual employee who has worked equivalent full-time hours over the preceding period of 12 months may request to have their employment converted to full-time employment.

(d) A regular casual employee who has worked less than equivalent full-time hours over the preceding period of 12 months, but has worked at least 28 hours per month in 10 of the preceding 12 months, may request to have their employment converted to guaranteed wage employment, with a guaranteed minimum number or average number of full shifts each week corresponding to the average number of hours the employee has worked over the preceding period of 12 months.

(e) Any request under this clause must be in writing and provided to the employer.

(f) Where a regular casual employee seeks to convert to full-time or guaranteed wage employment, the employer may agree to or refuse the request. The request may only be refused on reasonable grounds and after consultation with the employee.

(g) Reasonable grounds for refusal may include that:

(i) it would require a significant adjustment to the casual employee’s hours of work in order for the employee to be engaged as a full-time or guaranteed wage employee in accordance with the provisions of this award, that is, the casual employee is not truly a regular casual employee as defined in paragraph (b);

(ii) it is known or reasonably foreseeable that the regular casual employee’s position will cease to exist within the next 12 months;

(iii) it is known or reasonably foreseeable that the hours of work which the regular casual employee is required to perform will be significantly reduced in the next 12 months; or

(iv) it is known or reasonably foreseeable that there will be a significant change in the days and/or times at which the employee’s hours of work are required to be performed in the next 12 months which cannot be accommodated within the days and/or hours during which the employee is available to work.

(h) For any ground of refusal to be reasonable, it must be based on facts which are known or reasonably foreseeable.

(i) Where the employer refuses a regular casual employee’s request to convert, the employer must provide the casual employee with the employer’s reasons for refusal in writing within 21 days of the request being made. If the employee does not accept the employer’s refusal, this will constitute a dispute that will be dealt with under the dispute resolution procedure in clause 9. Under that procedure, the employee or the employer may refer the matter to the Fair Work Commission if the dispute cannot be resolved at the workplace level.

(j) Where it is agreed that a casual employee will have their employment converted to full-time or guaranteed wage employment as provided for in this clause, the employer and employee must discuss and record in writing the conversion to full-time or guaranteed wage employment.

(k) The conversion will take effect from the start of the next pay cycle following such agreement being reached unless otherwise agreed.

(l) Once a casual employee has converted to full-time or guaranteed wage employment, the employee may only revert to casual employment with the written agreement of the employer.

(m) A casual employee must not be engaged and re-engaged (which includes a refusal to re-engage), or have their hours reduced or varied, in order to avoid any right or obligation under this clause.

(n) Nothing in this clause obliges a regular casual employee to convert to full-time or guaranteed wage employment, nor permits an employer to require a regular casual employee to so convert.

(o) Nothing in this clause requires an employer to increase the hours of a regular casual employee seeking conversion to full-time or guaranteed wage employment.

(p) An employer must provide a casual employee, whether a regular casual employee or not, with a copy of the provisions of this clause within the first 12 months of the employee’s first engagement to perform work. In respect of casual employees already employed as at 15 April 2019, an employer must provide such employees with a copy of the provisions of this subclause by 15 July 2019.

(q) A casual employee’s right to request to convert is not affected if the employer fails to comply with the notice requirements in clause 10.4(p).

Horticulture Award 2010 – overtime entitlements for casual employees

[10] In the August 2018 decision we foreshadowed our intention to publish a draft determination regarding the Horticulture Award 2010 concerning the issue of overtime penalty rates for casual employees and provide interested parties with 21 days to make further submissions regarding the draft determination. The draft determination was published on 30 August 2018.

[11] As explained in paragraphs [80] and [81] of the August 2018 decision, the basis of the draft determination emerged from a number of conferences conducted by Deputy President Kovacic at the request of the parties in attendance at a hearing on 1 February 2018. Those parties were the Australian Workers’ Union (AWU), the National Union of Workers (NUW), the Australian Industry Group (Ai Group) and the National Farmers’ Federation (NFF). The opportunity for interested parties to make further submissions in response to the draft determination was intended to provide parties who, because they did not attend the scheduled hearing on 1 February 2018, did not have the opportunity to participate in the conference which occurred on that day and the ensuing exchange of views that resulted in the draft determination.

[12] The draft determination provided for the following variations to the Horticulture Award:

1. By renumbering clause 22.2 as 22.3.

2. By inserting a new clause 22.2 as follows:

22.2 The ordinary hours of work for casual employees other than shiftworkers will not exceed 304 ordinary hours averaged over an eight week period provided that:

(a) Ordinary hours of work for casual employees can be worked at any time.

(b) Each ordinary hour of work worked by a casual employee on any day of the week (excluding public holidays) between 5.00 am and 8.30 pm will be paid at the employee’s minimum hourly wage for his or her classification plus a casual loading of 25%.

(c) In a State or Territory that does not observe daylight saving time, by agreement between the employer and a majority of affected casual employees, the 5.00 am to 8.30 pm daily spread of hours can be moved forward one hour (4.00 am to 7.30 pm) for the period of daylight saving time in other States and Territories.

(d) Each ordinary hour worked by a casual employee on any day of the week (excluding public holidays) between 8.31 pm and 4.59 am (or 7.31 pm and 3.59 am in accordance with clause 22.2(c)) will attract a loading of 15% of the employee’s minimum hourly wage for his or her classification (in addition to the casual loading of 25%).

(e) The maximum number of ordinary hours which a casual employee may work per engagement, or on any day, is 12 ordinary hours.

(f) All time worked in excess of 12 hours per engagement, 12 hours in a single day or 304 ordinary hours over an eight week period will be deemed overtime.

3. By renaming clause 24.2 as “Payment for overtime—other than casual employees”.

4. By renumbering clause 24.3 as clause 24.4.

5. By inserting a new clause 24.3 as follows:

24.3 Payment for overtime—casual employees

Each hour worked in excess of 12 hours per engagement, 12 hour in a single day or 304 ordinary hours over an eight week period will be paid at a rate of 175% of the employee’s minimum hourly wage for his or her classification (inclusive of the casual loading).

6. By deleting clause 15.5(c) and inserting the following:

Clause 24.4—Meal allowance.

7. By renaming clause 28.3 as “Public holiday rates of pay—other than

casual employees”.

8. By inserting clause 28.4 as follows:

28.4 Public holiday rates of pay—casual employees

All hours worked by a casual employee on a public holiday (both ordinary hours and any overtime) will be paid at a rate of 225% of the employee’s minimum hourly wage for his or her classification (inclusive of the casual loading).

9. By updating cross-references accordingly.” (Footnotes not included)

Submissions

[13] Further submissions were received from the AWU, NUW, Ai Group, the NFF and a number of other organisations, enterprises and individuals. The submissions are summarised below.

AWU

[14] The AWU submitted that:

•  it remained supportive of the proposal which emerged from the conferences conducted by the Commission and reflected in the draft determination;

•  it did not accept that any of the submissions filed by employers regarding the draft determination justified a departure from the proposal;

•  it was not willing to consider any reductions to the conditions in the proposal and was of the view that the terms of the proposal, if adopted, should be improved in the near future; and

•  if the proposal was not adopted and further hearings were held to determine the appropriate conditions for the Horticulture Award, it intended to pursue the same span of ordinary hours and overtime payment conditions for casual employees as currently apply to permanent employees under the Award.

[15] With particular regard to the draft determination, to avoid any confusion arising from the renaming of current clause 24.2 pursuant to paragraph 3 of the draft determination, the AWU proposed that the terms of current clause 24.2(e) of the Horticulture Award should also become part of the new clause 22.2 to make it clear that casual employees continue to be entitled to be paid for a minimum of 3 hours if required to work on a Sunday.

NUW

[16] The NUW submitted that it did not oppose the proposal reflected in the draft determination as it was beneficial for the provisions of the Horticulture Award to be free from uncertainty and ambiguity. However, the NUW also stated that it maintained its general position that casual employees should be treated the same as permanent employees in terms of their maximum ordinary hours, spread of hours and overtime rate under the Horticulture Award and reserved its rights to prosecute this in the future. In addition, the NUW:

•  noted that some employers were now seeking conditions for casual employees that were inferior to those reflected in the draft determination, which it opposed; and

•  foreshadowed that were the draft determination not adopted it would press for its abovementioned general position to be reflected in the Award.

[17] The NUW, like the AWU, also suggested that the terms of current clause 24.2(e) of the Horticulture Award be included in the proposed new clause 22.2 to make it clear that casual employees continued to be entitled to be paid for a minimum of 3 hours if required to work on a Sunday.

Ai Group

[18] The Ai Group submitted that its position remained that it did not oppose the Horticulture Award being varied to reflect the proposal which emerged from the conferences conducted by the Commission. The Ai Group further stated that it had reviewed the draft determination and was of the view that it reflected the proposal.

NFF

[19] The NFF stated that its submissions were made on behalf of both its membership and the members of the NFF Horticulture Council, being NFF, Northern Territory Farmers, Australian Blueberry Growers' Association, AUSVEG, Growcom, Apple and Pear Australia Ltd, Dried Fruits Australia, NSW Farmers Association, Victorian Farmers Federation, the Voice of Horticulture, Summerfruit Australia Limited, and Vegetables WA.

[20] The NFF also stated that it agreed to the proposed outcome, subject to clarification of the effect of this outcome on piecework arrangements and the potential for “double dipping” regarding night loading and overtime payments.

[21] With regard to the piecework issue, the NFF submitted that clause 15.5 of the Horticulture Award meant inter alia that casual employees who were on a piecework agreement would not earn the proposed night or overtime loadings irrespective of the hours they worked. The NFF noted that this was consistent with the Commission’s understanding as expressed in its decision of 5 July 2017 5 (principal decision) and the AWU’s submissions in the proceedings. Nevertheless “for abundant caution” the NFF proposed the inclusion of the following note at clauses 15.2, 22.2 and 24.2 of the Horticulture Award:

“Note: pursuant to clause 15.5, employees working under piecework rate agreements will not be paid overtime penalties pursuant to clause 24.3 or the 15% loading payable pursuant to clause 22.2(d) for hours worked between 8.31 pm and 4.59 am (or 7.31 pm and 3.59 am), and the “minimum hourly rate” established for the purposes of clause 15.5 will not include those amounts.”

[22] As to the interaction of the night loading and overtime payments, the NFF confirmed that its position on the proposal was contingent on the proposed clause operating such that overtime hours do not attract the 15% night loading irrespective of the time of day the overtime was worked. The NFF noted in its submissions that the proposed new clause 22.2(d), as set out in the draft determination, provided that ordinary hours that are worked outside the span of 5:00 am to 8:30 pm (or 4:00 am to 7:30 pm as per proposed clause 22.2(c) of the draft determination) attract the night loading, adding that overtime hours are not ordinary hours of work and as such cannot attract the night loading. Nevertheless for the avoidance of future disputation the NFF proposed the inclusion of the following note in the proposed clause 22.2:

“Note: The 15% loading payable pursuant to clause 22.2(d) for hours worked between 8.31 pm and 4.59 am (or 7.31 pm and 3.59 am) is payable for work during ‘ordinary hours’ and is not payable for work during hours which are overtime.”

[23] The NFF also submitted that the Commission’s decision in this matter would have a very significant financial impact on growers, contending that growers would need time to prepare for, manage and find ways to absorb this financial impact and for industry bodies to disseminate information regarding the outcome of this matter and educate growers as to its requirements. Accordingly, the NFF submitted that the Commission should allow growers a reasonable period of time to adjust to this new arrangement and develop appropriate processes to manage it. To that end the NFF proposed a transitional process similar to that adopted by the Commission during award modernisation, i.e. a staggered introduction over a course of years. At a minimum, the NFF proposed a transitional period of not less than 6 months.

[24] Finally, the NFF proposed the deletion of the word “averaged” from the proposed clause 22.2 on the basis that it was not included in the current clauses 22.1 or 22.2 of the Award and its deletion would avoid confusion and potential disputation.

Other submissions

[25] Submissions were also received from the following organisations, enterprises and individuals:

•  A.C.N. Orchards;

•  Atlanta Fruit Sales Pty Ltd;

•  Mr Steve Chapman;

•  CherryHill Orchards Pty Ltd;

•  Fruit Growers Victoria;

•  Graham’s Factree;

•  Kalafatis Fresh Produce Pty Ltd;

•  S & RD Loverso Orchards;

•  Marenny Vale Orchards Pty Ltd;

•  W. F. Montague Pty Ltd;

•  TFGA Industrial Association T/A Primary Employers Tasmania;

•  V F Siciliano & Sons;

•  Turnbull brothers Orchards;

•  Mr Ross Turnbull;

•  Vigliaturo Orchards; and

•  Wandin Valley Farms.

[26] In general terms, these other submissions either opposed and/or expressed serious concern about the impact of the draft determination if implemented. For example, some growers contended that they would be put out of business if they had to pay overtime to casual employees. More specifically, key aspects of these other submissions included that:

•  introducing overtime payments for casual employees would result in increased costs to consumers and potentially result in a shift to imported fruit;

•  labour costs were a significant component of operating costs in the horticulture industry and any increase in costs would significantly impact on the industry’s export competiveness;

•  if the determination was implemented growers would manage hours of work so as to avoid having to pay overtime thereby exacerbating existing difficulties in attracting and retaining seasonal workers, particularly as many seasonal harvest workers were working holidaymakers/overseas backpackers who sought to maximise their income during the harvest period meaning that any reduction in hours they were offered would make harvesting work less attractive to them;

•  demand for workers could vary significantly due to climatic conditions such that picking schedules during harvest needed to be flexible enough to shift in response to weather events;

•  growers were price takers not price setters;

•  penalty rates would only further distort and increase compliance issues;

•  introducing overtime payments for casual employees would result in extra administration costs associated with monitoring hours worked and pay rates as well as hiring additional staff; and

•  introducing overtime payments for casual employees would result in reduced employment in the sector and increase the use of labour hire contractors.

[27] Beyond the above, the Voice of Horticulture advised that it did not wish to make any further submissions in relation to the draft determination.

[28] Kalafatis Fresh Produce Pty Ltd requested that the Commission contact it “for further discussion regarding this matter”. However, no other party requested to be heard in respect of the draft determination.

[29] In terms of possible changes to the draft determination, Primary Employers Tasmania suggested that the 8 week period referred to in clause 22.2 of the draft determination be varied to 6 months as previously proposed by the NFF. Fruit Growers Victoria similarly suggested that hours be averaged over a longer period but added that, if the Commission considered a period of 26 weeks too long, it would support a 13 week period with scope for this period to be extended by agreement between an employee and their employer.

Consideration

[30] In the absence of any widespread request for a formal hearing to be conducted in respect of the draft determination, we propose to finalise our decision based on the submissions received.

[31] The issues raised in the submissions received (other than those from the AWU, the NUW, the Ai Group and the NFF) largely seek to re-agitate matters considered and dealt with in the principal decision in this matter issued on 5 July 2017. 6 The principal decision in particular considered the seasonal patterns of work in the horticulture industry and the consequences of casual overtime rates upon business viability as follows:

“[748] As indicated, we accept the submission of the AWU that the Horticulture Award does not properly prescribe the ordinary hours of employment for casual employees, and therefore does not comply with s.147. This requires rectification. Further, as a matter of general principle, for essentially the same reasons set out in Chapter 4 in connection with the Hospitality Award, we consider that it is necessary to achieve the modern awards objective of a fair and relevant safety net for a modern award which prescribes overtime penalty rates for weekly employees to also prescribe them to casual employees. In reaching that conclusion, we have similarly taken into account the consideration specified in s.134(1), and have placed particular weight upon s.134(1)(da)(i) and (f). The identified principle requires application to the Horticulture Award. However, this requires considerable caution having regard to the particular circumstances applicable to this award.

[749] We consider that evidence adduced by the NFF and ABI convincingly demonstrates at least the following propositions:

(1) Horticultural businesses tend to be price takers for their product, meaning that they have little or no capacity to pass on any increase of significance in their labour costs. Therefore any award variation which significantly increases labour costs would adversely affect profit margins and potentially affect business viability, which ultimately might have adverse employment effects.

(2) Casual employees are used extensively to perform seasonal harvesting functions. These functions require extensive hours of work to be performed in relatively short periods of time. Weather events may mean that harvesting time which is lost on particular days must be made up in subsequent days, regardless of which day of the week it is.

(3) Casual employees who perform seasonal harvesting work are commonly on work or holiday visas. Their preference is (within reason) to work as many hours, and earn as much income, as they can within a short space of time and then move on.

(4) The most likely response of horticultural employers to the imposition of any onerous overtime penalty rate requirement will be to try to avoid its incidence. Most would try to achieve this by reducing the working hours of their casuals to a level which did not attract any overtime payments, and employ more casuals to cover the hours. However this could be counter-productive because it was likely that the lower incomes per worker this would produce would reduce the supply of persons willing to work casually in the industry. The alternatives mentioned were to move to less labour intensive crops or reduce output.

[750] Additionally the evidence of the AWU demonstrated what we, from our collective experience, already know to be the case, namely that award non-compliance in the horticultural industry is widespread. Therefore the addition of further significant labour costs on award-compliant employers is likely to increase their competitive disadvantage vis-a-vis non-compliant employers, or to lead to greater non-compliance.

[751] It is necessary to bear these matters in mind in the application of overtime penalty rates to casual employees under the Horticulture Award in order to ensure that any variation is not counter-productive and frustrates the achievement of the modern awards objective. We acknowledge the evidence adduced by the AWU to the effect that the horticultural industry is currently in a phase where outputs and profits are generally good. However modern award provisions need to be crafted in a way that makes them sustainable at all stages of the business cycle ...

…

[753] In respect of weekly ordinary hours, the position should remain that the hours for casuals are the lesser of an average of 38 hours per week or the hours required to be worked by the employer. There remains 2 critical issues to be resolved: first, over what period may the 38 weekly hours of casual employees be averaged and, second, should overtime penalty rates be payable for work in excess of those hours? We consider that those issues should be resolved in a way in which overtime penalty rates do not become payable in respect of seasonal casual employees who are required, and want to, work large amounts of hours in a short period of time.

…

[755] We consider that a better solution to the difficulty would be to allow an averaging period of sufficient length to allow long hours of work to be performed in short periods of time without attracting overtime penalty rates. We are provisionally minded to allow weekly hours to be averaged over a period of 8 weeks, so that overtime penalty rates would only be payable if the employee worked in excess of 304 hours over an 8 week period ...” 7

[32] Accordingly, while we note the concerns expressed in many of the submissions received from growers, we have already considered the issues raised and balanced them against the interests of employees. Nothing raised in the submissions would cause us to re-visit the conclusion reached in the principal decision that casual employees covered by the Horticulture Award should be entitled to overtime penalty rate entitlements. We further note that the draft determination seeks to accommodate these employer concerns by providing a less beneficial span of hours and overtime penalty rate for casual employees than for permanent employees covered by the Horticulture Award. Indeed in the August 2018 decision we noted that these less beneficial entitlements “may arguably be justifiable on the basis that it would give effect to the principal decision on at least an introductory basis, in circumstances where the horticultural industry has never paid penalty rates for casual overtime before and is rife with award compliance problems.” 8

[33] With regard to the 6 month averaging period proposed by Fruit Growers Victoria and Primary Employers Tasmania, we consider that such a period is too long and has the potential to negate the Full Bench’s principal decision in circumstances where, as noted above, the proposed arrangement is already less beneficial for casual employees when compared to the arrangements applying to permanent employees covered by the Horticulture Award. We similarly consider the alternative period advocated by Fruit Growers Victoria, i.e. 13 weeks with scope for this period to be extended by agreement between an employee and their employer, to be too long and open to abuse in circumstances where casual employees are likely to have no real capacity to refuse an extended averaging period.

[34] With regard to the NFF’s proposals that notes be included in the determination regarding piecework arrangements and the interaction of the night loading and overtime payments, we are not convinced of the need for either of the proposed notes to be included in the Horticulture Award.

[35] In respect of the piecework issue, clause 15.5 of the Horticulture Award provides as follows:

15.5 The following clauses of this award do not apply to an employee on a piecework rate:

(a) Clause 22—Ordinary hours of work and rostering;

(b) Clause 24—Overtime; and

(c) Clause 24.3—Meal allowance.

[36] In our view clause 15.5 is clear and unambiguous. As such, we do not accept that there is any need for the proposed note to be included in the Horticulture Award.

[37] As to the interaction of the night loading and overtime payments, the reference to “Each ordinary hour worked” in the proposed clause 22.2(d) and the terms of proposed clause 24.3 which specifies that casual employees “will be paid at a rate of 175% of the employee’s minimum hourly wage for his or her classification (inclusive of the casual loading)” in our view obviates the need for the inclusion of the note proposed by the NFF.

[38] As submitted by the NFF, we agree that the word “averaged’ in clause 22.2 of the draft determination should be deleted. The word has no work to do in circumstances where, under the draft determination, casual employees do not become entitled to overtime simply because they have worked more than 38 hours in a week. Further, we note that the word “averaged” is not used elsewhere in the draft determination where there is reference to “304 ordinary hours over an 8 week period” (see proposed clauses 22.2(f) and 24.3).

[39] With regard to the NFF’s suggestion that the determination provide for a transitional period for implementation of the likelihood of the introduction of overtime for casual employees, we note that the industry has been on notice of the intention to introduce overtime payments for employees covered by the Horticulture Award since mid-2017. This was first stated in our principal decision which was issued on 5 July 2017, was reiterated in our August 2018 decision, and was reflected in the draft determination issued on 30 August 2018. For this reason we consider that a transitional period is unnecessary. The determination to give effect to our decision will operate from the first full pay period on or after 15 April 2019.

[40] Finally, we deal with the proposal advanced by the AWU and the NUW that the current clause 24.2(e) of the Horticulture Award be included in the proposed new clause 22.2 to make it clear that casual employees continue to be entitled to be paid for a minimum of 3 hours if required to work on a Sunday. First, we note that clause 10.4(e) of the Horticulture Award provides for a minimum engagement period for casual employees of “at least 2 consecutive hours of work on each occasion they are required to attend work” (underlining added). Second, we note that clause 24.2 deals with payment for overtime and that casual employees covered by the Horticulture Award are not presently entitled to overtime. As such, we are not satisfied, based on the material before the Commission, that clause 24.2(e) of the Horticulture Award applies to casual employees. Against that background and having regard to the terms of clause 10.4(d) of the Horticulture Award we do not propose to adopt the Unions’ proposal.

Conclusion

[41] A final determination, in the terms of the draft determination issued on 30 August 2018 with the amendment identified in paragraph [37] above will be issued in conjunction with this decision and will operate from the start of the first full pay period on or after 15 April 2019.

Casual conversion - Educational Services (Post-Secondary Education) Award 2010 

[42] The position with respect to this award was outlined in our decision of 21 September 2018 9 as follows:

“[32] There is another matter which arose after the principal decision which remains to be dealt with. In submissions filed on 2 August 2017, the ACTU submitted (at paragraphs 34-35) that it had omitted in error the Educational Services (Post-Secondary Education) Award 2010 from the list of awards which should be varied to add a casual conversion clause, and that it should now be varied to include the model clause. We will allow interested parties to file any further written submissions they wish to make in respect of this issue within 28 days of the date of this decision.”

[43] A joint submission was subsequently received from the Australian Council of Trade Unions, the Independent Education Union of Australia, the National Tertiary Industry Education Union and the Australian Education Union (ACTU joint submission). A submission was also filed by the Australian Higher Education Industrial Association (AHEIA). The ACTU joint submission reiterated the position that the Educational Services (Post-Secondary Education) Award 2010 (Post-Secondary Education Award) was omitted from the ACTU’s original casual conversion claim by error, and that the considerations which caused the Full Bench to determine in the principal decision that a standard casual conversion should be established were fully applicable to the area of employment covered by the award. However the ACTU joint submission accepted that there were some distinct features in Post-Secondary Education Award, including provision for “sessional employment”, which warranted the model clause being modified for this award. It proposed two clauses in the following terms (for non-teaching staff and teaching staff respectively):

10.8 Right to request casual conversion (non-teaching staff members)

This clause applies to employees other than teaching staff members.

(a) A person engaged by a particular employer as a regular casual employee may request that their employment be converted to full-time or part-time employment.

(b) A regular casual employee is a casual employee who has in the preceding period of 12 months worked a pattern of hours on an ongoing basis which, without significant adjustment, the employee could continue to perform as a full-time employee or part-time employee under the provisions of this award.

(c) A regular casual employee who has worked equivalent full-time hours over the preceding period of 12 months’ casual employment may request to have their employment converted to full-time employment.

(d) A regular casual employee who has worked less than equivalent full-time hours over the preceding period of 12 months’ casual employment may request to have their employment converted to part-time employment consistent with the pattern of hours previously worked.

(e) Any request under this subclause must be in writing and provided to the employer.

(f) Where a regular casual employee seeks to convert to full-time or part-time employment, the employer may agree to or refuse the request, but the request may only be refused on reasonable grounds and after there has been consultation with the employee.

(g) Reasonable grounds for refusal include that:

(i) it would require a significant adjustment to the casual employee’s hours of work in order for the employee to be engaged as a full-time or part-time employee in accordance with the provisions of this award – that is, the casual employee is not truly a regular casual employee as defined in paragraph (b);

(ii) it is known or reasonably foreseeable that the regular casual employee’s position will cease to exist within the next 12 months;

(iii) it is known or reasonably foreseeable that the hours of work which the regular casual employee is required to perform will be significantly reduced in the next 12 months; or

(iv) it is known or reasonably foreseeable that there will be a significant change in the days and/or times at which the employee’s hours of work are required to be performed in the next 12 months which cannot be accommodated within the days and/or hours during which the employee is available to work.

(h) For any ground of refusal to be reasonable, it must be based on facts which are known or reasonably foreseeable.

(i) Where the employer refuses a regular casual employee’s request to convert, the employer must provide the casual employee with the employer’s reasons for refusal in writing within 21 days of the request being made. If the employee does not accept the employer’s refusal, this will constitute a dispute that will be dealt with under the dispute resolution procedure in clause 9. Under that procedure, the employee or the employer may refer the matter to the Fair Work Commission if the dispute cannot be resolved at the workplace level.

(j) Where it is agreed that a casual employee will have their employment converted to fulltime or part-time employment as provided for in this clause, the employer and employee must discuss and record in writing:

(i) the form of employment to which the employee will convert – that is, full-time or part-time employment; and

(ii) if it is agreed that the employee will become a part-time employee, the matters referred to in clause 10.3(b).

(k) The conversion will take effect from the start of the next pay cycle following such agreement being reached unless otherwise agreed.

(l) Once a casual employee has converted to full-time or part-time employment, the employee may only revert to casual employment with the written agreement of the employer.

(m) A casual employee must not be engaged and re-engaged (which includes a refusal to reengage), or have their hours reduced or varied, in order to avoid any right or obligation under this clause.

(n) Nothing in this clause obliges a regular casual employee to convert to full-time or part-time employment, nor permits an employer to require a regular casual employee to so convert.

(o) Nothing in this clause requires an employer to increase the hours of a regular casual employee seeking conversion to full-time or part-time employment.

(p) An employer must provide a casual employee, whether a regular casual employee or not, with a copy of the provisions of this subclause within the first 12 months of the employee’s first engagement to perform work. In respect of casual employees already employed as at 1 January 2019, an employer must provide such employees with a copy of the provisions of this subclause by 1 April 2019.

(q) A casual employee’s right to request to convert is not affected if the employer fails to comply with the notice requirements in paragraph (p).

10.9 Right to request casual conversion (teaching staff members)

This clause applies only to teaching staff members.

(a) A person engaged by a particular employer as a regular casual employee may request that their employment be converted to full-time employment, part-time employment or sessional employment.

(b) A regular casual employee is a casual employee who has in the preceding period of 12 months worked a pattern of hours on an ongoing basis which, without significant adjustment, the employee could continue to perform as a full-time employee, part-time employee or sessional employee under the provisions of this award.

(c) A regular casual employee who has worked equivalent full-time hours over the preceding period of 12 months’ casual employment may request to have their employment converted to full-time employment or sessional employment on a full time basis.

(d) A regular casual employee who has worked less than equivalent full-time hours over the preceding period of 12 months’ casual employment may request to have their employment converted to part-time employment or sessional employment on a part time basis consistent with the pattern of hours previously worked.

(e) Any request under this subclause must be in writing and provided to the employer.

(f) Where a regular casual employee seeks to convert to full-time, part-time or sessional employment, the employer may agree to or refuse the request, but the request may only be refused on reasonable grounds and after there has been consultation with the employee.

(g) Reasonable grounds for refusal include:

(i) that it would require a significant adjustment to the casual employee’s hours of work in order for the employee to be engaged as a full-time, part-time or sessional employee in accordance with the provisions of this award – that is, the casual employee is not truly a regular casual employee as defined in paragraph (b);

(ii) (except in the case of a request to convert to sessional employment) that it is known or reasonably foreseeable that the regular casual employee’s position will cease to exist within the next 12 months;

(iii) (except in the case of a request to convert to sessional employment) that it is known or reasonably foreseeable that the hours of work which the regular casual employee is required to perform will be significantly reduced in the next 12 months; or

(iv) it is known or reasonably foreseeable that there will be a significant change in the days and/or times at which the employee’s hours of work are required to be performed in the next 12 months which cannot be accommodated within the days and/or hours during which the employee is available to work.

(h) For any ground of refusal to be reasonable, it must be based on facts which are known or reasonably foreseeable.

(i) Where the employer refuses a regular casual employee’s request to convert, the employer must provide the casual employee with the employer’s reasons for refusal in writing within 21 days of the request being made. If the employee does not accept the employer’s refusal, this will constitute a dispute that will be dealt with under the dispute resolution procedure in clause 9. Under that procedure, the employee or the employer may refer the matter to the Fair Work Commission if the dispute cannot be resolved at the workplace level.

(j) Where it is agreed that a casual employee will have their employment converted to fulltime, part-time or sessional employment as provided for in this clause, the employer and employee must discuss and record in writing:

(i) the form of employment to which the employee will convert – that is, full-time or part-time employment or sessional employment on a full time or part-time basis; and

(ii) if it is agreed that the employee will become a part-time employee, the matters referred to in clause 10.3(b).

(k) The conversion will take effect from the start of the next pay cycle following such agreement being reached unless otherwise agreed.

(l) Once a casual employee has converted to full-time or part-time employment, the employee may only revert to casual employment with the written agreement of the employer.

(m) A casual employee must not be engaged and re-engaged (which includes a refusal to reengage), or have their hours reduced or varied, in order to avoid any right or obligation under this clause.

(n) Nothing in this clause obliges a regular casual employee to convert to full-time or part-time employment, nor permits an employer to require a regular casual employee to so convert.

(o) Nothing in this clause requires an employer to increase the hours of a regular casual employee seeking conversion to full-time or part-time employment.

(p) An employer must provide a casual employee, whether a regular casual employee or not, with a copy of the provisions of this subclause within the first 12 months of the employee’s first engagement to perform work. In respect of casual employees already employed as at 1 January 2019, an employer must provide such employees with a copy of the provisions of this subclause by 1 April 2019.

(q) A casual employee’s right to request to convert is not affected if the employer fails to comply with the notice requirements in paragraph (p).

[44] The AHEIA submitted that it opposed the model clause being added to the Post-Secondary Education Award, but sought the opportunity to consult with its members about the modified clauses proposed in the ACTU joint submission.

[45] A conference in relation to this award and some other outstanding matters was conducted by Deputy President Kovacic on 29 October 2018. The only employer participant in relation to the Post-Secondary Education Award was the AHEIA. That conference was adjourned to enable the parties to confer, and directions to that effect were subsequently issued.

[46] A further conference before the Deputy President was conducted on 7 March 2019. At this conference the ACTU advised that it had sought responses from a number of employers in the sector in respect of its proposed casual conversion clause, but it only received responses from the Victorian TAFE Association, which did not oppose the inclusion of a casual conversion clause in the Post-Secondary Education Award subject to the clause providing scope to refuse on reasonable grounds, and the AHEIA, which adopted a “wait and see” position. The conference concluded on the basis that the AHEIA would advise its position on the proposed clause in 2 weeks, with another conference listed for 27 March 2019. In correspondence dated 25 March 2019, the AHEIA indicated that it would not oppose the Post-Secondary Education Award being varied to add the modified provisions proposed in the ACTU joint submission. Accordingly, the 27 March 2019 conference was cancelled.

[47] Having regard to the position of the AHEIA, we provisionally consider that the Post-Secondary Education Award should be varied to include the casual conversion provisions proposed in the ACTU joint submission. The proposed provisions are consistent with the principles of the model clause established in the principal decision but contain modifications appropriate to the circumstances of this award. However because of the limited employer participation in the process since the ACTU joint submission was filed, we will publish the proposed provisions in a draft determination and allow any other potential interested party 21 days to file any further submissions. If no submissions are received opposing the variations, they will then be made.

VICE PRESIDENT

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<PR706379>

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

EDUCATIONAL SERVICES (POST-SECONDARY EDUCATION) AWARD 2010
[MA000075]

4 yearly review of modern awards – common issues - part time employment and casual employment – casual conversion – Educational Services (Post-Secondary Education) Award 2010.

A. Further to the Full Bench decisions issued by the Fair Work Commission on 2 April 2019 [2019] FWCFB 2108 and on 9 August 2018 [2018] FWCFB 4695, the above award is varied as follows:

1. By inserting clause 10.8 as follows:

10.8 Right to request casual conversion (non-teaching staff members)

This clause applies to employees other than teaching staff members.

(a) A person engaged by a particular employer as a regular casual employee may request that their employment be converted to full-time or part-time employment.

(b) A regular casual employee is a casual employee who has in the preceding period of 12 months worked a pattern of hours on an ongoing basis which, without significant adjustment, the employee could continue to perform as a full-time employee or part-time employee under the provisions of this award.

(c) A regular casual employee who has worked equivalent full-time hours over the preceding period of 12 months’ casual employment may request to have their employment converted to full-time employment.

(d) A regular casual employee who has worked less than equivalent full-time hours over the preceding period of 12 months’ casual employment may request to have their employment converted to part-time employment consistent with the pattern of hours previously worked.

(e) Any request under this subclause must be in writing and provided to the employer.

(f) Where a regular casual employee seeks to convert to full-time or part-time employment, the employer may agree to or refuse the request, but the request may only be refused on reasonable grounds and after there has been consultation with the employee.

(g) Reasonable grounds for refusal include that:

(i) it would require a significant adjustment to the casual employee’s hours of work in order for the employee to be engaged as a full-time or part-time employee in accordance with the provisions of this award – that is, the casual employee is not truly a regular casual employee as defined in paragraph (b);

(ii) it is known or reasonably foreseeable that the regular casual employee’s position will cease to exist within the next 12 months;

(iii) it is known or reasonably foreseeable that the hours of work which the regular casual employee is required to perform will be significantly reduced in the next 12 months; or

(iv) it is known or reasonably foreseeable that there will be a significant change in the days and/or times at which the employee’s hours of work are required to be performed in the next 12 months which cannot be accommodated within the days and/or hours during which the employee is available to work.

(h) For any ground of refusal to be reasonable, it must be based on facts which are known or reasonably foreseeable.

(i) Where the employer refuses a regular casual employee’s request to convert, the employer must provide the casual employee with the employer’s reasons for refusal in writing within 21 days of the request being made. If the employee does not accept the employer’s refusal, this will constitute a dispute that will be dealt with under the dispute resolution procedure in clause 9. Under that procedure, the employee or the employer may refer the matter to the Fair Work Commission if the dispute cannot be resolved at the workplace level.

(j) Where it is agreed that a casual employee will have their employment converted to fulltime or part-time employment as provided for in this clause, the employer and employee must discuss and record in writing:

(i) the form of employment to which the employee will convert – that is, full-time or part-time employment; and

(ii) if it is agreed that the employee will become a part-time employee, the matters referred to in clause 10.3(b).

(k) The conversion will take effect from the start of the next pay cycle following such agreement being reached unless otherwise agreed.

(l) Once a casual employee has converted to full-time or part-time employment, the employee may only revert to casual employment with the written agreement of the employer.

(m) A casual employee must not be engaged and re-engaged (which includes a refusal to reengage), or have their hours reduced or varied, in order to avoid any right or obligation under this clause.

(n) Nothing in this clause obliges a regular casual employee to convert to full-time or part-time employment, nor permits an employer to require a regular casual employee to so convert.

(o) Nothing in this clause requires an employer to increase the hours of a regular casual employee seeking conversion to full-time or part-time employment.

(p) An employer must provide a casual employee, whether a regular casual employee or not, with a copy of the provisions of this subclause within the first 12 months of the employee’s first engagement to perform work. In respect of casual employees already employed as at XX Month 2019, an employer must provide such employees with a copy of the provisions of this subclause by XX Month 2019.

(q) A casual employee’s right to request to convert is not affected if the employer fails to comply with the notice requirements in paragraph (p).

2. By inserting clause 10.9 as follows:

10.9 Right to request casual conversion (teaching staff members)

This clause applies only to teaching staff members.

(a) A person engaged by a particular employer as a regular casual employee may request that their employment be converted to full-time employment, part-time employment or sessional employment.

(b) A regular casual employee is a casual employee who has in the preceding period of 12 months worked a pattern of hours on an ongoing basis which, without significant adjustment, the employee could continue to perform as a full-time employee, part-time employee or sessional employee under the provisions of this award.

(c) A regular casual employee who has worked equivalent full-time hours over the preceding period of 12 months’ casual employment may request to have their employment converted to full-time employment or sessional employment on a full time basis.

(d) A regular casual employee who has worked less than equivalent full-time hours over the preceding period of 12 months’ casual employment may request to have their employment converted to part-time employment or sessional employment on a part time basis consistent with the pattern of hours previously worked.

(e) Any request under this subclause must be in writing and provided to the employer.

(f) Where a regular casual employee seeks to convert to full-time, part-time or sessional employment, the employer may agree to or refuse the request, but the request may only be refused on reasonable grounds and after there has been consultation with the employee.

(g) Reasonable grounds for refusal include:

(i) that it would require a significant adjustment to the casual employee’s hours of work in order for the employee to be engaged as a full-time, part-time or sessional employee in accordance with the provisions of this award – that is, the casual employee is not truly a regular casual employee as defined in paragraph (b);

(ii) (except in the case of a request to convert to sessional employment) that it is known or reasonably foreseeable that the regular casual employee’s position will cease to exist within the next 12 months;

(iii) (except in the case of a request to convert to sessional employment) that it is known or reasonably foreseeable that the hours of work which the regular casual employee is required to perform will be significantly reduced in the next 12 months; or

(iv) it is known or reasonably foreseeable that there will be a significant change in the days and/or times at which the employee’s hours of work are required to be performed in the next 12 months which cannot be accommodated within the days and/or hours during which the employee is available to work.

(h) For any ground of refusal to be reasonable, it must be based on facts which are known or reasonably foreseeable.

(i) Where the employer refuses a regular casual employee’s request to convert, the employer must provide the casual employee with the employer’s reasons for refusal in writing within 21 days of the request being made. If the employee does not accept the employer’s refusal, this will constitute a dispute that will be dealt with under the dispute resolution procedure in clause 9. Under that procedure, the employee or the employer may refer the matter to the Fair Work Commission if the dispute cannot be resolved at the workplace level.

(j) Where it is agreed that a casual employee will have their employment converted to fulltime, part-time or sessional employment as provided for in this clause, the employer and employee must discuss and record in writing:

(i) the form of employment to which the employee will convert – that is, full-time or part-time employment or sessional employment on a full time or part-time basis; and

(ii) if it is agreed that the employee will become a part-time employee, the matters referred to in clause 10.3(b).

(k) The conversion will take effect from the start of the next pay cycle following such agreement being reached unless otherwise agreed.

(l) Once a casual employee has converted to full-time or part-time employment, the employee may only revert to casual employment with the written agreement of the employer.

(m) A casual employee must not be engaged and re-engaged (which includes a refusal to reengage), or have their hours reduced or varied, in order to avoid any right or obligation under this clause.

(n) Nothing in this clause obliges a regular casual employee to convert to full-time or part-time employment, nor permits an employer to require a regular casual employee to so convert.

(o) Nothing in this clause requires an employer to increase the hours of a regular casual employee seeking conversion to full-time or part-time employment.

(p) An employer must provide a casual employee, whether a regular casual employee or not, with a copy of the provisions of this subclause within the first 12 months of the employee’s first engagement to perform work. In respect of casual employees already employed as at XX Month 2019, an employer must provide such employees with a copy of the provisions of this subclause by XX Month 2019.

(q) A casual employee’s right to request to convert is not affected if the employer fails to comply with the notice requirements in paragraph (p).

3. By updating the table of contents and cross-references accordingly.

B. This determination comes into operation from XX Month 2019. In accordance with s.165(3) of the Fair Work Act 2009 this determination does not take effect until the start of the first full pay period that starts on or after the date of the operation.

VICE PRESIDENT

 1   [2018] FWCFB 5846

 2   [2018] FWCFB 4695

 3   Qube Ports Pty Ltd, Qube Bulk Pty Ltd; DP World Group of Companies; Patrick Stevedores Holdings Pty Ltd and Victoria International Container Terminal.

 4   [2015] FWCFB 1729

 5   [2017] FWCFB 3541 at [747]

 6   [2017] FWCFB 3541, 269 IR 125

 7   Ibid at [748]-[755]

 8   [2018] FWCFB 4695 at [83]

 9   [2018] FWCFB 5846

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