DECISION

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

4 yearly review of modern awards – Restaurant Industry Award 2010 – Hospitality Industry (General) Award 2010 – substantive issues
(AM2017/57; AM2017/59)

4 yearly review of modern awards – Restaurant Industry Award 2010 – Hospitality Industry (General) Award 2010 – substantive issues – outstanding matters.

1. Introduction

[1] A number of substantive claims were made to vary the Restaurant Industry Award 2010 (the Restaurant Award) and the Hospitality Industry (General) Award 2010 (the Hospitality Award) as part of the 4 yearly review of modern awards (the Review). The proceedings in respect of these two awards have been case managed together due to the commonality of the interested parties. We note each award has been reviewed in its own right.

[2] On 12 December 2018, we issued a Decision 1 (the December 2018 Decision) in relation to the substantive claims and published draft determinations with respect to both awards for comment. In the December 2018 Decision we decided to vary the Hospitality Award as follows (the paragraph references are to the December 2018 Decision):

● A definition of ‘junior employee’ and ‘accrued day off’ will be inserted in clause 3.1 (see paragraphs [33] and [39]);

● A new clause 14.12 will be inserted to provide for competency based progression (see paragraphs [34] and [40] – [43]);

● Clause 20.4 will be deleted and replaced with a new apprentice wages clause which includes competency based wage progression and amendments to terminology such as replacing references to ‘standard weekly rate’ with ‘standard hourly rate’ (see paragraph [35];

● Clause 21.1(b)(i) – Tool allowance – scope of the provision will be expanded to ‘where a cook or apprentice cook is required to use their own tools…’ and the quantum of the allowance will be increased to $1.73 per day or part thereof and $8.49 per week. Clause 21.1(j) will be varied to provide that the method of adjustment for the tool allowance will be the ‘Tools and equipment for house and garden component of the household expenses utensils and tools subgroup of the CPI (see [212] – [242]);

● Clause 21.1(h) – working away from usual place allowance – will be varied to delete the last sentence (see [126] – [134]);

● The fork-lift driver allowance at clause 21.2(a) will be varied to be expressed as an all-purpose allowance (see paragraphs [36] and [39]);

● Clauses 27.2(c) and 32.2(b) will be varied to give greater flexibility in relation to the time within which accrued time off is taken (see paragraphs [44] – [55]);

● Clauses 29.1(a) and (c) will be varied to insert ‘accrued day off’ (see paragraphs [37] and [39]);

● Clause 29.1(a) will be varied to provide for hours of work to be averaged as 76 hours over a two week period, with a minimum of four days off in each two week period (see paragraphs [56] – [62]);

● Clause 32.2(a) – penalty rates – public holidays will be varied to make it clear that the minimum engagement periods refer to all hours worked during a shift and not only to the hours worked on the day that is the public holiday (see [63] – [76]);

● Clauses 39.2 and 39.3 will be varied to permit a deduction per meal and to give effect to the other aspects of the variation submitted by the Associations and United Voice. The quantum of the deduction will be adjusted by reference to annual movements in the take away and fast food component of the CPI (see [77] – [111]); and

● The definition of food and beverage attendant grade 2 in clause D.2.1 of Schedule D will be amended to include ‘taking reservations, greeting and seating guests’ (see [114]-[127])

[3] We also decided to vary the Restaurant Award, as follows:

● Clause 24.3(a) – tool allowance – scope of the provision will be expanded to ‘where a cook or apprentice cook is required to use their own tools’ (see [212] – [242]).

[4] All of the other claims were dismissed save that we went on to set out our provisional views in respect of the following issues:

(i) that clause 32 of the Restaurant Award be expressly excluded from the scope of IFA’s;

(ii) that clause 32 of the Restaurant Award be replaced by the terms set out in the December 2018 Decision at [211];

(iii) that clause 31 of the Hospitality Award which deals with breaks – will be reviewed;

(iv) that absent any proposal to vary clause 39 of the Restaurant Award such that it is compliant with ss 326(1), (3) and (4) of the Fair Work Act 2009 (the FW Act), the clause should be deleted;

(v) that the progression arrangements for apprentices in the Restaurants Award be varied to provide for a competency based pay scale, as is the case in the Hospitality Award.

[5] Directions were issued for the filing of submissions, and submissions in reply, in respect of these provisional views. 2

[6] Submissions were subsequently received from:

•  United Voice (30 January 2019)

•  Australian Hotels Association (30 January 2019)

•  Restaurant and Catering Industrial (30 January 2019)

[7] No submissions in reply were filed.

2. The Provisional Views

[8] We now turn to deal with each of the provisional views set out above and the submissions received from interested parties.

(i) Clause 32 of the Restaurant Award be expressly excluded from the scope of IFA’s and proposal to amend clause 7.1(a)

[9] As mentioned earlier, we proposed that clause 32 of the Restaurant Award be expressly excluded from the scope of the IFA clause and, to that end, amend clause 7.1(a) of the Restaurant Award as follows:

‘7. Individual flexibility arrangements

7.1 Despite anything else in this award, an employer and an individual employee may agree to vary the application of the terms of this award relating to any of the following in order to meet the genuine needs of both the employee and the employer:

(a) arrangements for when work is performed, excluding clause 32; or

(b) overtime rates; or

(c) penalty rates; or

(d) allowances; or

(e) annual leave loading.’ (emphasis added)

[10] United Voice supported the provisional view and submitted that the exclusions of meal breaks from the scope of IFAs is appropriate given that IFAs are not monitored and there is a risk that employees may be missing out on meal breaks or not receiving adequate meal breaks. United Voice also submitted that there are high levels of non-compliance in the industry and asserted that it cannot be presumed that IFAs in relation to meal breaks result in employees genuinely being ‘better off overall.’ 3

[11] Restaurant and Catering Industrial (RCI) submitted that it ‘maintains its previously outlined position with respect to meal breaks.’ 4 RCI had initially sought to vary clause 32 by deleting subclauses 32.3 and 32.4; which would have removed the ‘penalties’ that apply in the event that an employee is not provided with a meal break in accordance with the other parts of clause 32. RCI subsequently varied its claim and sought to amend the meal breaks clause to allow breaks to be the subject of individual flexibility agreements. In particular RCI sought to insert the following provision in clause 32:

‘The award flexibility clause can be utilised to permit variations to this clause by agreement between the employer and employees.’ 5

[12] In a submission filed on 24 July 2018 6 RCI advanced the following points in support of its proposed variation:

● The amendment proposed ‘is in line with the modern awards objective’.

● The proposed variation is found in a like award – the General Retail Industry Award 2010.

● The evidence will indicate that there are sound and valid operational reasons for the variation, particularly the inconvenience of the break during hours of service.

● The variation will make the break more flexible and satisfy employee and employer needs.

[13] We rejected RCI’s claim in the December 2018 Decision. 7 We have not been persuaded to depart from that view and, further, we confirm our provisional view that clause 7.1(a) be amended to expressly exclude clause 32 – Breaks from the scope of IFA’s.

[14] As we observed in the December 2018 Decision there is a high level of non compliance in the restaurant sector and ‘this is an important contextual factor which tends to suggest that a cautious approach be taken to the provision of additional flexibility through the use of IFA’s.’ 8

[15] Further, if clause 32 could be varied through an IFA the extent of variation possible 9 was disproportionate to the issues that the variation proposed by RCI purported to address (as described in the evidence).10

[16] Finally, the evidence revealed a lack of understanding of the IFA processes by participants in the restaurant industry. 11

[17] We will issue a variation determination which will vary clause 7.1(a) of the Restaurant Award to insert the words ‘, excluding clause 32’.

(ii) Clause 32 of the Restaurant Award be replaced by the terms set out at [211] in the December 2018 Decision

[18] In the December 2018 Decision, we proposed that clause 32 of the Restaurant Award be replaced by the terms set out at paragraph [211] as follows:

‘32. Breaks

32.1 Clause 32 deals with meal breaks and rest breaks and gives an employee an entitlement to them in specified circumstances.

32.2 Frequency of breaks

An employee who works the number of hours in any one shift specified in column 1 of Table 2—Entitlements to meal and rest break(s) is entitled to a break or breaks as specified in column 2.

Table 2—Entitlements to meal and rest break(s)

32.3 When the employer rosters an employee’s rest breaks, they must make all reasonable efforts to ensure that breaks are spread evenly across the employee’s shift.

32.4 Agreement as to time of unpaid meal break

(a) An employer and an employee may agree that an unpaid meal break is to be taken after the first hour of work and within the first 6 and a half hours of work.

(b) An agreement must be made after the start of the employee’s shift and within the first 5 hours of the work to which it applies.

(c) The agreement may be reviewed at any time.

NOTE: Under section 344 of the Act, an employer must not exert undue influence or undue pressure on an employee to make an agreement under clause 32.4(a).

32.5 Employer to pay higher rate if break not allowed at rostered time

If the employer does not allow the employee to take an unpaid meal break at the rostered time (or at the time agreed under clause 32.4), then the employer must pay the employee at the rate that applies under clause 32.6:

(a) from when the meal break was due to be taken;

(b) until either the employee is allowed to take the break or the shift ends.

32.6 If an employee is not allowed to take an unpaid meal break in accordance with clause 32.2 at the rostered time, the employer must pay the employee 150% of the employee’s minimum hourly rate from when the meal break was due to be taken until either the employee is allowed to take the break or the shift ends.

32.7 Employer to pay higher rate if break not allowed and no rostered time

If the employer does not allow the employee to take an unpaid meal break and there is no rostered time for the break, then the employer must pay the employee at the rate that applies under clause 32.8:

(a) unless an agreement under clause 32.4 applies, from the end of 6 hours after starting work until either the employee is allowed to take the break or the shift ends; or

(b) if an agreement under clause 32.4 applies, from the end of 6 and a half hours after starting work until either the employee is allowed to take the break or the shift ends.

32.8 If an employee is not allowed to take an unpaid meal break in accordance with clause 32.2 and there is no rostered time for the break, the employer must pay the employee 150% of the employee’s minimum hourly rate:

(a) unless an agreement under clause 32.4 applies, from the end of 6 hours after starting work until either the employee is allowed to take the break or the shift ends; or

(b) if an agreement under clause 32.4 applies, from the end of 6 and a half hours after starting work until either the employee is allowed to take the break or the shift ends.

32.9 Additional rest break

An employer must give an employee an additional paid rest break of 20 minutes if the employer requires the employee to work more than 5 continuous hours after an unpaid meal break.’

[19] RCI made no submissions in response to the redrafted clause and submitted that it ‘maintains its previously outlined position with respect to meal breaks.’ 12 For the reasons given earlier we rejected RCI’s claim in the December 2018 Decision and we have not been persuaded to depart from that view.

[20] United Voice oppose several elements of the redrafted clause 32 of the Restaurant Award. In particular, United Voice:

(a) Opposes the insertion of an individual facilitative provision permitting an employer and employee to agree that the unpaid meal break required by clause 32.1 may be taken ‘no later than six and a half hours after starting work’ (redrafted clause 32.4);

(b) In relation to the timing of the additional 20 minute meal break United Voice contends that the current Restaurant Award provides that, where an unpaid meal break is rostered to be taken after five hours of starting work, the employee must be given an additional 20 minute paid meal break and notes that redrafted clause 32 provides that for employees working 5 or more or up to 10 hours, if an unpaid meal break is rostered to be taken after six hours of work, then the employee is entitled to a 20 minute paid meal break.

United Voice submits that:

‘…there is no cogent reason to delay the entitlement to the additional paid meal break until after 6 hours for employees who work 5 to 10 hours of work. The additional paid meal break provides a period of rest for employees who are required to wait a longer period of time for their full unpaid meal break of at least 30 minutes.’ 13

We have considered the United Voice submission and agree this matter requires further consideration. We will provide a further opportunity for comment and deal with this in section 4, Next steps, of this decision.

For clarity purposes, we believe that it may assist to insert the word “additional” into the table, as shown below:

Column 1 Hours worked per day	Column 2 Breaks
5 or more and up to 10		An unpaid meal break of at least 30 minutes (to be taken after the first hour of work and within the first 6 hours of work or in accordance with clause 32.4). If the employee is rostered to take an unpaid meal break later than 6 hours after starting work, an additional 20 minute paid meal break (to be taken after the first 2 hours of work and within the first 6 hours of work).
More than 10		An unpaid meal break of at least 30 minutes (to be taken after the first hour of work and within the first 6 hours of work or in accordance with clause 32.4). If the employee is rostered to take an unpaid meal break later than 5 hours after starting work, an additional 20 minute paid meal break (to be taken after the first 2 hours of work and within the first 5 hours of work). 2 additional 20 minute paid rest breaks.

(c) United Voice submitted that the utility of having both clauses 32.7 and 32.8 within the proposed clause is unclear. We agree there appears to be duplication between these clauses and we note clauses 32.5 and 32.6 appear to have a similar duplication.

(d) United Voice point out that clause 32.7 of the current Restaurant Award does not appear in the proposed clause 32, clause 32.7 provides that:

‘If an employee is required to work more than two hours’ overtime after completion of the employee’s rostered hours, the employee must be given an additional 20 minute paid break.’

United Voice submit that the proposed clause could not be considered fair and relevant if it removed a period of rest for employees working overtime and submitted that clause 32.7 of the current Restaurant Award should be retained.

(e) United Voice note that the proposed clause 32 does not exclude casuals who work more than 10 hours from the entitlement to 2 additional 20 minute paid meal breaks and submit that this is an appropriate amendment given that casual employees may be engaged to work for a maximum of 12 hours per day and that there is no difference in the fatigue experienced by casual workers. 14

[21] RCI chose not to file a submission in response to the issues raised by United Voice. Despite this, we will provide a further opportunity for comment and deal with this in section 4, Next Steps, of this decision.

(iii) Clause 31 of the Hospitality Award, which also deals with breaks, be reviewed in a similar way

[22] In the December 2018 Decision we proposed to review clause 31 of the Hospitality Award, as it also deals with breaks.

[23] The Australian Hotels Association (AHA) opposed such a review and submitted that the meal breaks clause in the Hospitality Award is different to the meal breaks clause in the Restaurant Award. Further, AHA submitted that the meal break provisions in the Hospitality Award have not been subject to any wide spread industrial disputation 15 and have already been subject to detailed review as part of the Plain Language re-drafting common issue.16

[24] United Voice did not express a view about the review of the meal break provisions in the Hospitality Award. Given the views expressed by the AHA (and the absence of any view by United Voice) we do not propose to review the meal break provision in the Hospitality Award. Any party seeking to amend this term may make an application to vary the award.

(iv) Absent any proposal to vary clause 39 of the Restaurant Award such that it is compliant with ss 326(1), (3) and (4) of the Act, the clause should be deleted

[25] Clause 39 of the Restaurant Award provides as follows:

‘No deduction for breakages or cashiering underings

An employer must not deduct any sum from the wages or income of an employee in respect of breakages or cashiering underings except in the case of wilful misconduct.’

[26] Section 151 of the FW Act) provides that a modern award must not include a term that has no effect because of subsections 326(1), (3) or (4);

‘151 Terms about payments and deductions for benefit of employer etc.

A modern award must not include a term that has no effect because of:

(a) subsection 326(1) (which deals with unreasonable deductions for the benefit of an employer); or

(b) subsection 326(3) (which deals with unreasonable requirements to spend or pay an amount); or

(c) subsection 326(4) (which deals with deductions or payments in relation to employees under 18).’

[27] Section 325 provides: 

‘325 Unreasonable requirements to spend or pay amount

(1) An employer must not directly or indirectly require an employee to spend, or pay to the employer or another person, an amount of the employee’s money or the whole or any part of an amount payable to the employee in relation to the performance of work, if:

(a) the requirement is unreasonable in the circumstances; and

(b) for a payment—the payment is directly or indirectly for the benefit of the employer or a party related to the employer.

Note: This subsection is a civil remedy provision (see Part 4-1).

(1A) An employer (the prospective employer) must not directly or indirectly require another person (the prospective employee) to spend, or pay to the prospective employer or any other person, an amount of the prospective employee’s money if:

(a) the requirement is in connection with employment or potential employment of the prospective employee by the prospective employer; and

(b) the requirement is unreasonable in the circumstances; and

(c) the payment is directly or indirectly for the benefit of the prospective employer or a party related to the prospective employer.

Note: This subsection is a civil remedy provision (see Part 4-1).

(2) The regulations may prescribe circumstances in which a requirement referred to in subsection (1) or (1A) is or is not reasonable.’

[28] Section 326 provides that certain terms have no effect:

‘Certain terms have no effect

Unreasonable deductions for benefit of employer

(1) A term of a modern award, an enterprise agreement or a contract of employment has no effect to the extent that the term permits, or has the effect of permitting, an employer to deduct an amount from an amount that is payable to an employee in relation to the performance of work, if the deduction is:

(a) directly or indirectly for the benefit of the employer or a party related to the employer; and

(b) unreasonable in the circumstances.

(2) The regulations may prescribe circumstances in which a deduction referred to in subsection (1) is or is not reasonable.

Unreasonable requirements to spend or pay an amount

(3) A term of a modern award, an enterprise agreement or a contract of employment has no effect to the extent that the term:

(a) permits, or has the effect of permitting, an employer to make a requirement that would contravene subsection 325(1); or

(b) directly or indirectly requires an employee to spend or pay an amount, if the requirement would contravene subsection 325(1) if it had been made by an employer.

Deductions or payments in relation to employees under 18

(4) A term of a modern award, an enterprise agreement or a contract of employment has no effect to the extent that the term:

(a) permits, or has the effect of permitting, an employer to deduct an amount from an amount that is payable to an employee in relation to the performance of work; or

(b) requires, or has the effect of requiring, an employee to make a payment to an employer or another person;

if the employee is under 18 and the deduction or payment is not agreed to in writing by a parent or guardian of the employee.’

[29] In the December 2018 Decision we expressed the provisional view that clause 39 should be deleted as follows:

‘It is clear that clause 39 would have no effect insofar as it purports to permit a deduction from an amount payable to an employee under 18 years in circumstances where the deduction is not agreed in writing by a parent or guardian of the employee (contrary to s 326(4)). More generally such a deduction will be of no effect if it is ‘unreasonable in the circumstances’ (see s 325(1)(b)); this may be the case if the deduction was disproportionate to the ‘breakages or cashiering underings’. Absent any proposal to vary clause 39 such that it is compliant with subsections 326(1), (3) and (4) it is our provisional view that the clause be deleted.’ 17

[30] The draft determination published with the December 2018 Decision deleted clause 39 of the Restaurant Award in its entirety, at item 4.

[31] The RCI, AHA and United Voice all submitted that a similar clause exists in the Hospitality Award at clause 38. We agree that the clauses are identical and accordingly, clause 38 of the Hospitality Award requires review.

[32] RCI opposes the deletion of clause 39 from the Restaurant Award 18 and submits that the clause is ‘…first and foremost a protection of employees against deductions for unintentional breakage and cash underings in error.’19

[33] RCI assertted that ‘…all versions of the clause have included a caveat for wilful misconduct’ 20 and that there is no conceivable reason that an employer should not be protected against the deliberate actions of their employees with regards to breakage and cash underings.

[34] RCI submits that in the event that the Commission accepts the submission as to the necessity of the clause but still be of a mind to amend the clause, then the following wording should be used:

‘39. No deduction for breakages or cashiering underings

An employer must not deduct any sum from the wages or income of an employee in respect of breakages or cashiering underings except in the case of wilful misconduct.

(a) In cases of wilful misconduct, the deduction must be reasonable in the circumstances and proportionate to the loss suffered by the employer;

(b) Any deductions against the wages or income of an employee under 18 years old must be authorised in writing by a parent or guardian.’

[35] The Australian Hotels Association referred to the Award Simplification Decision 21 and submitted that the Commission had formed a view that such a provision afforded protections for employees.22 The AHA contended that the provision should be retained in a modified form that requires:

● a deduction must only be made in cases of wilful misconduct; and

● any amount deducted must be from an employees’ wages; and

● must not be unreasonable in the circumstances; and

● if the employee is under 18 years of age, must not be made unless the amount has been agreed to in writing by the employee’s parent or guardian. 23

[36] The AHA also observed that in the absence of an entitlement to deduct in the case of wilful misconduct, the only other option for an employer to recover an amount would be to commence proceedings in a court of competent jurisdiction. 24

[37] United Voice agreed with the proposition that the clause provides some protection for employees from deductions in circumstances other than ‘wilful misconduct’ and submitted that the wholescale removal of the clause may have ‘…the unintended consequence of employers deducting employee wages for accidental breakages or cashiering underings that occur as the result of mistakes.’ 25

[38] United Voice submit that the potential breach of s.151 of the Act may be resolved by an amendment to clause 39 to:

‘…ensure that the deduction is not unreasonable in the circumstances, is not disproportionate to the loss of the employer and can only be made for employees 18 and over if agreed to in writing and for employees under 18 if agreed to in writing by a parent or guardian of the employee.’

[39] United Voice proposed that the clause be amended as follows:

‘An employer must not deduct any sum from the wages or income of an employee in respect of breakages or cashiering underings except in the case of wilful misconduct.

a. In cases of wilful misconduct, the deduction must be reasonable in the circumstances and not disproportionate to the loss suffered by the employer and;

b. Any deductions from the wages or income of an employee must be authorised in writing:

(i) Where the employee is 18 years old and above the deduction must be authorised in writing by the employee.

(ii) Where the employee is under 18 years old the deduction must be authorised in writing by a parent or guardian.’

[40] Given the degree of commonality in the submissions advanced we think there is merit in convening a conference of the parties in an effort to arrive at an agreed variation to the relevant clause in each award.

(v) The progression arrangements for apprentices in the Restaurants Award be varied to provide for a competency based pay scale, as is the case in the Hospitality Award

[41] The December 2018 Decision determined that a competency based pay scale for apprentices would be inserted into the Hospitality Award. The variation means that the Hospitality Award will provide for both competency based wage progression (where permitted in a State and Territory) and time based arrangements for apprentices and also expands the range of apprenticeship options available to better align the apprenticeship provisions and the trade classifications in the Hospitality Award.

[42] The Restaurant Award only provides time based progression for apprentices (see clause 20.2). Given the similarities in coverage between the two awards, we expressed the provisional view that the Restaurant Award be varied in the same manner as the Hospitality Award. A proposed variation was published in the draft determination for the Restaurant Award attached to the December 2018 Decision (at items 1 and 2). The December 2018 Decision directed anyone opposing this provisional view to make a submission to that effect in response to the draft determination. A process for submissions in reply was established and it was noted that the matter would be determined on the papers unless any party requested a hearing on the matter.

[43] Two submissions were received with respect to this issue. RCI indicated that they do not oppose our provisional view. 26 Similarly, United Voice submitted that it did not oppose the introduction of competency based progression in the Restaurant Award.27

[44] No requests for a hearing in relation to this matter were received. We have determined to deal with this matter on the papers.

[45] We are satisfied that the proposed variation meets the modern awards objective in that it will assist the low paid to meet their needs (s.134(1)(a)) and promote flexible and efficient workplaces. None of the other s.134 considerations are relevant to this variation.

[46] No party raised any issues with the terms of the variation as set out in the Restaurant Award draft determination annexed to the December 2018 Decision. Since the publication of that draft, the Commission has issued a Decision in the Annual Wage Review 2018-19 28 which has impacted the wage rates contained in the draft determination published. We will update the draft determination accordingly. We also note one typographical error contained in the draft determination has been corrected. At item 2, clause 20.2(b)(ii), the draft determination for the Restaurant Award differed from that proposed for the Hospitality Award. The Restaurant Award draft determination has been corrected to match the Hospitality Award draft determination by deleting the word ‘will’ appearing after ‘Apprentices’ such that the clause will now read:

‘Apprentices must receive the standard hourly rate…’

[47] We will publish with this decision a revised draft variation determination and provide interested parties with an opportunity to comment.

3. The Draft Determinations

The Hospitality Award

[48] The AHA raised a number of issues in relation to the draft determination for the Hospitality Award.

Definition of ‘junior employee’

[49] AHA note that the definition of ‘junior employee’ as set out in the draft determination was different to that published in the plain language exposure draft for the Hospitality Award, published 8 August 2018 (the PLED). 29 The PLED defines ‘junior employee’ as ‘…an employee who is less than 21 years of age,’ while the draft determination published with the December 2018 Decision defined a junior employee as ‘…an employee under the age of 20 who is not undertaking a nationally recognised traineeship or apprenticeship.’

[50] AHA submitted that the definition inserted into the award should refer to an employee who is less than 21 years of age, notwithstanding that, at the age of 20 years, 100% of the adult rate would apply.

[51] We will incorporate the change proposed by the AHA in the revised draft determination and invite comment from other interested parties.

Ordinary hours of work and accrued day off

[52] The December 2018 Decision determined that the term ‘accrued day off’ would be inserted into the Hospitality Award to distinguish between a day off in accordance with clause 29 (Ordinary hours of work (Full-time and part-time employees) and a ‘rostered day off’ as defined in the award.

[53] We determined that the amendments would make clear the distinction between an unpaid day off work (i.e. one of the eight days off provided in each 152 hour four week cycle) and a paid accrued day off (i.e. the accrued day off per 160 hour four week cycle).

[54] The terminology used in the draft determination published with the December 2018 Decision did not adequately differentiate between these two items, referring at times to an ‘accrued rostered day off.’

[55] AHA submitted that the term ‘accrued day off’ more readily highlights the distinction between the two concepts under clause 29. United Voice also sought amendments to clause 29 to correct the reference.

[56] We agree with the above submissions and will publish a revised draft variation determination with this decision.

Food and Beverage Attendant Grade 3

[57] The December 2018 Decision varied the classification definition for ‘Food and Beverage Attendant Grade 2’ in schedule D.2.1 by inserting the words ‘taking reservations, greeting and seating guests’ as a new duty.

[58] AHA submitted that while the draft determination correctly varied the classification definition for ‘Food and Beverage Attendant Grade 2,’ a consequential amendment to the classification definition for ‘Food and Beverage Attendant Grade 3’ is required, namely the deletion of the words ‘taking reservations, greeting and seating guests.’

[59] AHA submitted that the words ‘taking reservations, greeting and seating guests’ are now redundant for ‘Food and Beverage Attendant Grade 3’ because of the opening text of the definition for that classification which states:

‘Food and beverage attendant grade 3 means an employee who in addition to the tasks performed by a Food and beverage attendant grade 2 is engaged in any of the following:’

[60] AHA submitted that the retention of the words ‘taking reservations, greeting and seating guests’ at ‘Food and Beverage Attendant Grade 3’ would cause confusion as to the correct classification for an employee performing these duties.

[61] We will incorporate the change proposed by the AHA in the revised draft determination and invite comment from other interested parties.

Typographical errors and Annual Wage Review 2018-19

[62] The parties identified a number of typographical errors contained in the draft determination published with the December 2018 decision. We have considered those comments and will incorporate them into the revised draft variation determination we publish with this decision.

[63] We note the draft determination published with the December 2018 Decision at item 3 appeared to include an error at clause 20.4(e)(i). That clause refers to ‘the minimum hourly wage for Level 4 in clause 20.4(a0 or 20.4(b)’. We believe this is an error and have corrected this reference in the revised draft determination to refer to ‘Level 4 in clause 20.1’. Any interested party may file a comment in relation to this change in accordance with the timetable set out at section 4, Next Steps.

[64] The wage rates and allowances contained in the revised draft determination have also been adjusted pursuant to the decision in the Annual Wage Review 2018-19.

The Restaurant Award

[65] No matters raised by the parties in relation to the draft determination for the Restaurant Award published with the December 2018 Decision. We will update the wage rates and allowances in the draft determination in accordance with the Annual Wage Review 2018-19 30 and issue a revised draft determination for comment.

4. Next steps

[66] Revised draft variation determinations will be published with this decision. Interested parties are to file any comments in relation to the revised draft variation determinations by no later than 4pm on Monday 30 September 2019.

[67] A conference will be convened by Commissioner Lee in relation to the review of clause 39 – No deduction for breakages or cashiering underings – of the Restaurant Award (and clause 38 of the Hospitality Award).

[68] Any interested party may file a submission in reply to UV’s submission in relation to clause 32, Breaks, of the Restaurant Award, by no later than 4pm on Monday 30 September 2019.

[69] All submissions and notifications are to be filed to amod@fwc.gov.au.

[70] This matter will be listed for Hearing before the Full Bench at 9:30am on 10 October 2019 to deal with all unresolved matters.

PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR711917>

 1   [2018] FWCFB 7263

 2   Ibid at [249], [255] and [257]

 3   United Voice, Submission, 30 January 2019, para 3

 4   Restaurant & Catering Industrial, Submission, 30 January 2019, page 3

 5   Restaurant and Catering Industrial, Submission, 24 July 2018, para 5

 6   Ibid at paras 6 – 9

 7   [2018] FWCFB 7263 at [183]

 8   Ibid, at [201]

 9   Ibid, at [186] – [187]

 10   Ibid, at [189] – [192]

 11   Ibid at [193] – [194]

 12   Restaurant & Catering Industrial, Submission, 30 January 2019, page 3

 13   United Voice, Submission, 30 January 2019, para 11

 14   Ibid at para 29

 15   Australian Hotels Association, Submission, 30 January 2019, page 4

 16   4 yearly review of modern awards – Plain language re-drafting – Hospitality Industry (General) Award 2010 [2018] FWCFB 4468 at [39] – [76]

 17   [2018] FWCFB 7263, [255]

 18   Restaurant and Catering Industrial, Submission, 30 January 2019, page 1

 19   Ibid

 20   Ibid

 21   Award Simplification Decision; Re The Hospitality Industry – Accommodation, Hotels, Resorts and Gaming Award 1995 (1997) 75 IR 272 – Giudice J President, Ross VP, McIntyre VP, MacBean SDP and McDonald C, Decision issued 23 December 1997, Print P7500, 14.3

 22   Australian Hotels Association, Submission, 30 January 2019, page 5

 23   Australian Hotels Association, Submission, 30 January 2019, page 6

 24   Ibid

 25   United Voice, Submission, 30 January 2019, para 33

 26   Restaurant and Catering Industrial, Submission, 30 January 2019, page 3

 27   United Voice, Submission, 30 January 2019, para 37

 28   [2019] FWCFB 3500

 29   Hospitality Industry (General) Award 2017 – plain language exposure draft, 8 August 2018

 30   [2019] FWCFB 3500