| [2020] FWCFB 2640 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.156—4 yearly review of modern awards
4 yearly review of modern awards
(AM2019/17)
JUSTICE ROSS, PRESIDENT |
MELBOURNE, 20 MAY 2020 |
4 yearly review of modern awards – finalisation of exposure drafts – Restaurant Industry Award 2010.
[1] This Decision deals with the finalisation of the variation determination for the Restaurant Industry Award 2010 (the Restaurant Award).
[2] The Restaurant Award is in Tranche 2 and a draft variation determination and tracked exposure draft were published on 14 October 2019 and re-published on 14 February 2020 to incorporate changes arising out of the substantive issue matter in the Restaurant Award (AM2017/57). 1 A Statement was issued on the same day inviting parties to comment by 28 February 2020.2
[3] The United Workers Union (UWU) filed a submission on 28 February 2020 and an additional submission on 13 March 2020.
[4] In a decision issued on 23 March 2020, 3 (the March decision) we expressed a provisional view at [50] that the amendment proposed by the UWU in their 28 February submission be adopted and at [52] referred the issue raised in their 13 March submission for conference. The conference was held on 30 April 2020 and was attended by representatives from the Australian Hotels Association (AHA) and the UWU.4
[5] A background paper 5 was published prior to the conference and the outstanding issue was set out at [8]–[9], as follows:
‘The outstanding issue relates to the provisions surrounding the entitlement to meal and rest breaks.
The current award and draft variation determination use the terminology of ‘ordinary hours’ as opposed to ‘hours’ with respect to break entitlements, and it is contended by UWU that the current terminology of ‘ordinary hours’ in the breaks clause may not entitle an employee to a break when a shift was comprised of overtime hours or where less than 5 ordinary hours are worked and subsequent overtime is worked, as the breaks seemingly only provided for ‘ordinary hours’.’
[6] At the conference on 30 April 2020 the parties agreed that the word ‘ordinary’ should be omitted. The parties noted that the same issue arises in the Hospitality Industry (General) Award 2010 and that they had attended a conference before Commissioner Lee in relation to that award. At the conference before Commissioner Lee the parties had agreed that a note would be inserted at the breaks clause to clarify the entitlement. There was also agreement that any outcome from the conference in the Hospitality Award matter should also be applied to the Restaurant award.
[7] On 1 May 2020 the AHA wrote to the Commission, setting out the agreed note to be inserted into both the Restaurant and the Hospitality award. 6
[8] On 20 May 2020, the Full Bench dealing with this issue in the Hospitality award issued a decision 7 finalising the note. As agreed between the parties, the same amendment will be made in the Restaurant award. The note will be inserted at the end of clause 16.8 as set out below:
NOTE: For the purposes of clause 16.8 the overtime worked does not compound on the break entitlements under clause 16.2.
EXAMPLE: An employee who works a 7 hour shift, followed by 3 hours of overtime will be entitled to breaks as follows:
(a) for the 7 hour shift, an unpaid meal break of at least 30 minutes under clause 16.2; and
(b) for the 3 hours of overtime, an additional 20 minute paid rest break under clause 16.8.
[9] The word ‘ordinary’ will also be deleted from the heading column 1 of Table 2 in clause 16.2—Frequency of breaks.
[10] We also confirm the provisional view expressed at [50] of the March decision.
[11] Accordingly, the following amendments will be made to the draft variation determination published on 14 February 2020:
1. The note below Table 7 in clause 23.4 (Overtime) will be amended to read:
NOTE 2: Schedule B—Summary of Hourly Rates of Pay sets out the hourly overtime rate for all employee classifications, including junior employees and apprentices, according to when overtime is worked.
2. The note below Table 8 in clause 24.2 (Penalty rates) will be amended to read:
NOTE: Schedule B—Summary of Hourly Rates of Pay sets out the hourly overtime rate for all employee classifications, including junior employees and apprentices.
[12] There are no other outstanding technical and draft matters to be determined in relation to the Restaurant Award. Accordingly, a final variation determination will be issued incorporating the amendments listed at [8], [9] and [11] above, with an operative date of 29 May 2020.
PRESIDENT
Printed by authority of the Commonwealth Government Printer
<PR719510>
1 Draft variation determination and exposure draft, 14 February 2020
4 Transcript, 30 April 2020 conference
5 Background paper, 29 April 2020
6 AHA correspondence, 1 May 2020