| [2021] FWCFB 4513 |
| FAIR WORK COMMISSION |
STATEMENT |
Fair Work Act 2009
s.157–Application to vary or revoke a modern award
Australian Hotels Association
(AM2021/73)
Hospitality | |
JUSTICE ROSS, PRESIDENT |
MELBOURNE, 27 JULY 2021 |
Application to vary modern award – insertion of loaded rates schedule – provisional view
[1] On 9 December 2020, the Commission received a letter from the Minister for Industrial Relations in which the Minister expressed the Government’s view that:
‘…in the extraordinary circumstances that have been caused by the COVID pandemic that it would be in Australia’s economic best interest for the Fair Work Commission to use its powers under s.157(3)(a) of the Fair Work Act 2009 (the Act) to undertake a process to ensure several priority modern awards in sectors hardest hit by the pandemic be amended. The process would be envisaged, if you considered it appropriate, to maintain a focus on key changes that could potentially support Australia’s economic recovery. The Government would obviously provide every available assistance to ensure the timely and comprehensive conduct of this process.’ 1
[2] The awards identified by the Minister as priority awards included the Hospitality Industry (General) Award 2020 (the Hospitality Award).
[3] Among the award flexibility measures that ‘could prove critically important for providing businesses in the most distressed part of the economy with the confidence to increase hiring during the recovery’ the Minister’s letter identified:
‘simplified pay arrangements in the form of ‘loaded rates’ and/or ‘exemption rates’ designed to reduce the cost of administrative burden and address concerns about perceived risks arising from existing pay rate complexities and complexity risks that may lead to, particularly small business, mistakenly underpaying employees.’
[4] On 10 December 2020, the President issued a Statement 2 commencing a process on the Commission’s own motion (the Award flexibility–Hospitality and retail sectors matter).
[5] Parties with an interest in the Hospitality Award were directed to file any proposals for award variations and any other relevant comments (including any general principles to guide this process) by 4 pm on Wednesday 27 January 2021.
[6] On 27 January 2021, AHA filed a submission and draft determination seeking 4 separate variations in relation to the Hospitality Award as follows:
• Consolidation of junior employee classification rates into one stream
• Simplification of hours of work arrangements
• Simplification of late night and early morning penalties (to be paid on a pro rata basis)
• Introduction of six loaded rates.
[7] A conference was held on 4 February 2021 3 at which the Commission indicated that the following steps were to be undertaken:
• the Department would make inquiries as to whether the Commonwealth possessed any data in relation to how many employees there may be in each age group within particular streams of the Hospitality Award
• the Commission would develop a short survey instrument for the AHA to distribute to its members in order to ascertain how many employees there are in each age group within particular streams of the Hospitality Award
• the Commission would undertake a ‘BOOT’ analysis of aspects of the AHA’s proposal, and
• the parties were to continue to engage in discussions.
[8] On 11 February 2021, the Commission published the terms of the draft survey for use by AHA. The survey was opened Thursday, 11 February for a period of two weeks.
[9] On 16 February 2021, the Commission provided AHA and the UWU with a BOOT analysis of AHA’s loaded rates proposal.
[10] On 18 February 2021, a further conference was held in respect of the Hospitality Award. 4 During the conference the AHA and UWU confirmed that they continued to engage in discussions regarding the terms of the AHA proposal and requested a meeting with the Commissioner staff members who undertook the BOOT analysis for further discussions.
[11] On 3 March 2021, the Commission published an analysis of the survey as distributed by AHA to its members.
[12] On 4 March 2021, a further conference was held 5 during which the parties requested further time to continue discussions and submit draft determinations. The Commission also indicated that it would provide the parties with information concerning the award history of late night penalty provisions.
[13] On 19 March 2021, the Commission published an Information Note on late night/early morning penalties under the Hospitality Award.
[14] On 24 March 2021, AHA filed a draft determination in relation to the loaded rates proposal. This was subsequently amended on 25 March 2021.
[15] The AHA’s draft determination was discussed at a conference held on 25 March 2021. 6 The Commission indicated that it would contact AHA to complete a further BOOT analysis of the proposal, following which the AHA was to file an application to amend the Hospitality Award.
[16] On 19 July 2021 the AHA filed an application to vary the Hospitality Award (the Application). The Application seeks to incorporate a new schedule to provide ‘a simplified pay arrangement in the form of loaded rates to reduce administrative costs and risk arising from existing pay complexities.’
[17] A private conference was held on 22 July 2021 with the UWU and the AHA to discuss the terms of the Application.
[18] Arising from the discussion at the private conference a revised draft determination was sent to the parties after the conference. The AHA subsequently confirmed that it is seeking to vary the Hospitality Award in the terms of the revised variation determination.
[19] A loaded rate refers to a higher rate of pay intended to incorporate, in part or in whole, penalty rates and other monetary benefits for which separate provision is made in the applicable modern award. The loaded rate is then paid for all hours worked instead of certain penalty rates (such as the penalty rates for Saturday and Sunday work).
[20] The Commission has considered and provided commentary regarding the inclusion of loaded rates in modern awards in the following matters:
• Modern Awards Review 2012 (the Transitional review)—Penalty rates; 7 and
• 4 yearly review of modern awards—Penalty rates case (the penalty rates case). 8
[21] Modern awards may, inter alia, include terms about minimum wages, overtime rates, penalty rates, annualised wage arrangements, allowances, leave and leave loadings. 9 Subject to satisfying the modern awards objective there appears to be no legislative barrier to the inclusion of terms about loaded rates in modern awards.
[22] As a general proposition, and noting that any loaded rate would replace existing award benefits, workers paid loaded rates should not be financially worse off than workers who are not. It follows that a loaded rate must result in workers being paid the same or more than they would have been paid if the loaded rate did not apply. This also accords with the view expressed by the then Minister for Industrial Relations in his letter of 9 December:
‘… while ultimately the design of loaded rates would be up to the discretion of the Commission, it is the Government’s view that these rates may be optimally structured in a way that ensures workers are not financially worse off over time …’
[23] In the decision handed down on 23 February 2017, the Full Bench in the Penalty Rates Case 10 observed that there was merit in considering the insertion of appropriate loaded rates into the Hospitality and Retail awards. The Full Bench stated that subject to appropriate safeguards, schedules of ‘loaded rates’ may make awards simpler and easier to understand, consistent with the considerations in s.134(1)(g), and allow small businesses to access additional flexibility without the need to enter into an enterprise agreement.11
[24] The Full Bench also noted that, in reports prepared by the Fair Work Ombudsman, some businesses in the Hospitality and Retail sectors already provide for ‘flat’ (or loaded) rates of pay, in order to simplify their payroll process however they underestimate the additional premium (or loading) required in order to compensate employees for the loss of penalty rates, resulting in noncompliance. The Full Bench commented that insertion of ‘loaded rates’ schedules in these modern awards may have a positive effect on award compliance. 12
[25] Noting the potential complexity involved in the task of developing loaded rates schedules, the Full Bench stated that consideration should be given to the following:
• Any loaded rate will remain part of the safety net and will have to be fair and relevant. 13
• Determining an appropriate loaded rate would not be a straightforward task. For example, an employee working mostly on a weekend or late at night, when a penalty rate would apply, requires a higher loaded rate than an employee working mostly during the ordinary spread of hours, Monday to Friday. 14
• A number of loaded rates may be required to match commonly used roster configurations in each particular industry. For example, one loaded rate for employees working no more than two Saturdays in any 28 day cycle, and another rate for employees working every Sunday, but not Saturdays. 15
• Any loaded rate and the associated roster configuration should be relevant to the needs of industry and employees and there would be benefit in further engagement with interested parties as to the dominant roster patterns in the relevant industries to develop appropriate rates. 16
[26] We have had regard to these considerations in our assessment of the Application and in the formulation of our provisional view.
[27] The Application arises from the unique set of circumstances pertaining to the COVID-19 pandemic.
[28] Commission staff have prepared the following information notes which have been published on the COVID-19 updates webpage:
• Information note – COVID-19 situation update
• Information note – Government responses to COVID-19 pandemic
[29] As noted in the 2020-21 Annual Wage Review decision (the AWR decision), the COVID-19 pandemic cast a large shadow over 2020. While predominantly a public health issue, federal and state government-imposed restrictions to contain the spread of the virus had a profound economic impact. 17 The restrictions included travel restrictions (both international and domestic) and social distancing rules. The social and economic consequences of these measures were unprecedented and led to business closures and job losses. All but ‘essential workers’ were forced to stop work or modify their work arrangements. These actions significantly reduced domestic activity and resulted in ‘a large and near-simultaneous contraction across the global economy.’18
[30] The Hospitality industry has been one of the industries hit hardest by the pandemic. The Commission also published an information note about the Accommodation and food services industry (which includes the hospitality industry) on 10 December 2020. This note includes information about the impact of the COVID-19 pandemic. An updated information note was published on 26 July 2021.
[31] At the commencement of the Award flexibility–Hospitality and retail sectors matter, the Commission published an information note on loaded rates, which is relevant to the present matter.
[32] The Commission has previously varied the Hospitality Award inserting various Schedules to assist the industry and employees in it to respond to the Pandemic:
• Schedule X - Additional Measures During the COVID-19 Pandemic
• Schedule J – Award Flexibility During the COVID-19 Pandemic
• Schedule L – Award Flexibility During the COVID-19 Pandemic.
[33] The Australian economy has recovered to a greater extent and more quickly than anticipated. However, the pandemic is not over and risks remain. As noted in the AWR decision:
‘While the economic recovery is well underway and the overall outlook is much more positive than it was last year, we acknowledge the risk of domestic outbreaks and on-going disruptions to other major economies. COVID-19 outbreaks necessitating further containment measures remain a significant risk and, as the Commonwealth submits ‘even localised outbreaks could have an impact on consumer and business confidence weighing on consumption and investment’. 19
[34] The AWR decision also observed that the pattern in 2021 in respect to further cases of community transmission has seen comparatively brief lockdown periods comprised of stay-at-home orders generally localised to particular regions that have limited the reasons for people to leave their homes. Broadly, it has meant that only work deemed ‘essential’ has been allowed to operate during these periods. These restrictions imposed in each state and territory, and nationally, have been documented in the Commission’s information note throughout the pandemic. 20
Source: Fair Work Commission (2021), Information note - government responses to COVID-19 pandemic, updated 26 July.
Note: Lockdown duration commences from when restrictions were first increased. High severity means very limited reasons to leave home. Medium severity involves some easing of restrictions with the ability to gather in limited numbers in homes, public or venues. Low severity involves relatively little restrictions but still more than before the lockdown commenced. A lockdown is considered to be finished when restrictions return to the same level or are comparable to pre-lockdown levels. Lockdowns are defined as those with restrictions that are considered high severity.
The second Victorian lockdown started on 20 June 2020, but only data from 1 July 2020 are shown. However, the duration includes the days prior to 1 July 2020.
[35] Chart 1 shows the length of lockdowns since Victoria’s second wave of COVID-19 from the middle of 2020. The lockdowns have been temporary and the strictest lockdowns (those with restrictions that are considered high severity) have included: 21
• South Australia in mid-November 2020 (3 days) and July 2021 (6 days and ongoing);
• Sydney’s Northern Beaches in late December 2020, with fewer restrictions for the rest of Greater Sydney (including Wollongong, Central Coast, and Blue Mountains) that lasted for several weeks, and in May 2021 (4 days) and in late June/ July 2021 (30 days and ongoing);
• Brisbane in January and late March/early April 2021 (both for 3 days) and South East Queensland in late June/early July 2021 (4 days);
• Perth and surrounding regions in late January/early February (5 days) late April 2021 (3 days) and late June/early July 2021 (4 days);
• Victoria in mid-February 2021 (5 days), late May/early June 2021 (14 days), with restrictions easing in regional Victoria after 1 week; and July (10 days and ongoing); and
• Darwin, Palmerston and certain rural regions in the Northern Territory in late June/early July 2021 (6 days) and Alice Springs in late June/early July 2021 (3 days).
[36] States and territories have also re-imposed border restrictions during these times.
[37] These lockdowns were expected to adversely impact a number of industries, including hospitality (other than those providing take away food services). 22 The increase awarded from the 2020–21 Annual Wage Review was delayed until 1 November 2021 for modern awards mapped to the Accommodation and food services industries including the Hospitality Award.23
[38] In 2021, restrictions have since been re-imposed at different times during city or state-wide lockdowns. At the end of July 2021, restrictions were in place across Greater Sydney and surrounds, Victoria and South Australia, meaning that hospitality venues are closed except for providing takeaway services, while in other parts of the country there were density and capacity limits.
[39] The number of employee jobs in the Accommodation and food services sector has not yet returned to the level recorded before the onset of the pandemic. This can be measured using the data released by the ABS that provide weekly statistics on employee jobs and wages using payroll data from the Australian Taxation Office.
[40] Employee jobs in Accommodation and food services fell 35 per cent in only 4 weeks (between 14 March and 11 April 2020), a larger fall than any other industry. While the ensuing rebound was longer than the initial fall, more than half of the number of employee jobs lost in those 4 weeks had returned by early July 2020. However, this was interrupted by restrictions being re-imposed in Victoria. Between early July and mid-November 2020, the number of employee jobs was relatively steady in the industry. With the re-opening of hospitality in Victoria in the last week of October, this increased up to mid-December 2020. 24
[41] The latest data, to the week ending 3 July 2021, show that the number of jobs across all industries is 3.3 per cent higher than that reported in mid-March 2020. However, for Accommodation and food services, it is 3.5 per cent below the level at 14 March 2020 and 3.1 per cent below for Food and beverage services (as shown in Chart 2).
[42] Total wages had also declined in Accommodation and food services by a relatively large percentage (–10.9 per cent) compared with an overall increase of 2.1 per cent across all industries. 25
Source: ABS, Weekly Payroll Jobs and Wages in Australia, Week ending 3 July 2021.
[43] It appears to us that the Accommodation and food services sector continues to be disproportionately affected by the pandemic. Further, the likely future pattern of lockdowns will substantially affect the sector in those areas subject to lockdown.
[44] The revised draft determination seeks to insert a new Schedule into the Hospitality Award.
[45] A copy of the revised draft determination is attached at Attachment A.
[46] In support of the proposed revised draft determination the AHA advanced the following broad lines of argument:
• the proposed variation will provide greater certainty for employees in relation to weekly take home pay.
• it will protect the needs of the low paid by ensuring employees are not worse off.
• it will promote more flexible work practises.
• it will reduce both the administrative and regulatory burden on employers as the processing of payroll and associated administrative tasks will be more efficient (particularly for those employers who do not have sophisticated payroll processes which automatically calculate penalties and entitlements owed).
• it will simplify the award making it easier to understand for employers and employees and will promote compliance with award obligations.
[47] The loaded Rates Arrangements provided for in proposed Schedule K have been the subject of a BOOT analysis.
[48] It seems to us that the quantum of loaded rates and the loaded rate parameters ensure that workers on Loaded Rates Arrangements are paid the same or more than they would have been paid if the loaded rate did not apply. Schedule K also provides the additional protection of access to arbitration. Clause K.19 provides:
K.19. In arbitrating a dispute the Fair Work Commission may:
(a) require an employer to pay an employee the difference between what they were paid under the Loaded Rate Arrangement and what they would otherwise have received under this Award if the Fair Work Commission determines that the arrangement entered into under this Schedule was unfair to the employee; and
(b) terminate a Loaded Rate Arrangement if the Fair Work Commission determines that the arrangement entered into under this Schedule was unfair to the employee.
[49] It is our provisional view that the Application has merit.
[50] In accordance with the discussion at the private conference on 2 July 2021, the following direction are issued:
1. The UWU is to file submissions in respect of the Application by no later than 4pm (AEST) Friday, 20 August 2021.
2. The AHA is to file submissions in reply by no later than 4pm (AEST) Friday, 27 August 2021.
Note: Depending on the extent of the UWU submissions, the AHA has liberty to seek further time in which to file its reply submissions.
3. Unless there is a request for an oral hearing the Application will be determined on the papers. If an oral hearing is requested, the Application will be listed for hearing at 9.30AM (AEST), Tuesday 31 August 2021.
PRESIDENT
Printed by authority of the Commonwealth Government Printer
<PR732170>
Attachment A
REVISED DRAFT DETERMINATION
Fair Work Act 2009
s.157 – FWC may vary etc. modern awards if necessary to achieve modern awards objective
Hospitality Industry (General) Award 2020
(AM2020/103)
JUSTICE ROSS, PRESIDENT XXXXX
XXXXX______________________ 2021
Award schedule – COVID-19 pandemic – Loaded rate arrangements
A. Further to the decision [_______________] issued by the Full Bench of the Fair Work Commission on ______________ 2021, the above award is varied as follows:
1. By inserting Schedule K as follows:
K.1. Schedule K provides for the payment of a percentage amount above an employee’s ordinary hourly rate (Loaded Rate) in satisfaction of the requirement to pay overtime, penalty rates (except public holiday penalty rates) and the split shift allowance in clause 26.14(1)(b)(i). In particular:
(a) The Schedule provides for 6 different Loaded Rate percentages (see clause K.11).
(b) Clause K.10. sets out the Loaded Rates Parameters, that is the pattern of hours that may be worked in respect of each of the Loaded Rate percentages.
(c) Loaded Rate Arrangements to not apply to certain categories of employees (see clause K.9).
(d) The creation, variation and termination of Loaded Rate Arrangements is set out in clauses K.2 – K.8.
(e) Disputes about the operation of a Loaded Rate Arrangement is set out in clauses K.18 – K.20.
NOTE: Loaded Rates Arrangements under Schedule K only apply to full-time adult employees classified at Level 3 and above.
K.2. Subject to the provisions of Schedule K, an employer may elect to pay a full-time employee classified at Level 3 or above, a percentage amount above the employee’s ordinary hourly rate (Loaded Rate) in satisfaction of the requirements of:
(a) Clause 26.14(b)(i) – Split shift allowance;
(b) Clause 28 – Overtime; and
(c) Clause 29 – Penalty rates, with the exception of penalty rates in relation to Public Holidays.
NOTE: An employee’s ordinary hourly rate is defined in clause 2 of the Award.
K.3. If an employer elects to pay an employee a Loaded Rate, the employer must provide the employee with a written loaded rate arrangement in accordance with the form set out in Schedule L (Loaded Rate Arrangement).
K.4. The employer must keep a copy of the Loaded Rate Arrangement and any document terminating that arrangement as a time and wages record.
K.5. Subject to clause 39 – Consultation about changes to rosters or hours of work, an employer may vary the Loaded Rate Arrangement by giving 2 weeks’ written notice of the issuing a new Loaded Rate Arrangement.
K.6. A Loaded Rate Arrangement may be terminated:
(a) at any time by written agreement between the employee and the employer; or
(b) by the employer giving 2 weeks’ written notice.
K.7. A Loaded Rate Arrangement terminated in accordance with clause K.6(b) ceases to have effect at the end of the notice period.
K.8 Schedule K does not apply to part-time or casual employees or to employees:
(a) employees classified at the introductory level, Level 1 or Level 2
(b) paid in accordance with Clause 18.4 – Junior Rates;
(c) paid in accordance with Schedule E.4 – Supported Wage Rates;
(d) engaged in accordance with Clause 15.3 – Catering in remote locations; and
(e) rostered in accordance with Clause 15.1(b) (vii) of this award.
K.9. A Loaded Rate is only in satisfaction of the payments set out at K.2(a), (b) and (c) if all of the following rostering requirements are met (Loaded Rate Parameters):
(a) The roster cycle must operate weekly commencing on a Monday;
(b) Monday to Friday: a maximum of 11.5 hours (excluding meal breaks) per day / shift rostered between 7:00am and 12:00am (midnight);
(c) Saturday: a maximum of 10 hours (excluding meal breaks);
(d) Sunday: a maximum of 10 hours (excluding meal breaks); and
(e) If the period between shifts is 3 hours or less a split shift allowance must be paid.
K.10. The Loaded Rate Range of Days and Loaded Rate Maximum Weekly Hours applicable to the Loaded Rate Percentage as set out in the table below.
Loaded Rate Percentage (% of ordinary hourly rate) |
Loaded Rate Range of Days |
Loaded Rate Maximum Weekly Hours |
110.20% |
Monday to Friday |
40 |
120.00% |
Monday to Friday |
45 |
116.95% |
Monday to Saturday |
40 |
123.40% |
Monday to Saturday |
45 |
126.85% |
Monday to Sunday |
40 |
131.05% |
Monday to Sunday |
45 |
K.11. The Loaded Rate in dollar value based on the Loaded Rate Percentage is set out below:
Note: The rates in the tables below are based on the minimum hourly rates in accordance with clause 18—Minimum rates. All-purpose allowances need to be added to minimum rates before the Loaded Rate Percentage is applied.
Loaded Rate Percentages | ||||||
110.20% |
120.00% |
116.95% |
123.40% |
126.85% |
131.05% | |
$ |
$ |
$ |
$ |
$ |
$ | |
Level 3 |
$24.16 |
$26.30 |
$25.64 |
$27.05 |
$27.81 |
$28.73 |
Level 4 |
$25.45 |
$27.71 |
$27.00 |
$28.50 |
$29.29 |
$30.26 |
Level 5 |
$27.04 |
$29.45 |
$28.70 |
$30.28 |
$31.13 |
$32.16 |
Level 6 |
$27.77 |
$30.24 |
$29.47 |
$31.10 |
$31.97 |
$33.02 |
K.12. The Loaded Rate for casino gaming classifications in dollar value based on the Loaded Rate Percentages as set out below:
Note: The rates in the tables below are based on the minimum hourly rates in accordance with clause 18—Minimum rates. All-purpose allowances need to be added to minimum rates before the Loaded Rate Percentage is applied.
Loaded Rate Percentages | ||||||
110.20% |
120.00% |
116.95% |
123.40% |
126.85% |
131.05% | |
$ |
$ |
$ |
$ |
$ |
$ | |
Level 3 |
$25.45 |
$27.71 |
$27.00 |
$28.50 |
$29.29 |
$30.26 |
Level 3A |
$26.65 |
$29.02 |
$28.28 |
$29.84 |
$30.68 |
$31.69 |
Level 4 |
$27.04 |
$29.45 |
$28.70 |
$30.28 |
$31.13 |
$32.16 |
Level 5 |
$27.85 |
$30.32 |
$29.55 |
$31.19 |
$32.06 |
$33.12 |
Level 6 |
$28.65 |
$31.20 |
$30.41 |
$32.10 |
$32.99 |
$34.07 |
K.13. Unless modified by clauses K.2, K.9, and subject to clause K.14 a Loaded Rate Arrangement does not vary the application of the other terms of this award.
K.14. The Loaded Rate Percentage will only apply to, and be in satisfaction of, work performed and the allowances specified within the Loaded Rate Parameters.
NOTE 1: An employee will be entitled to overtime in accordance with clause 28 – Overtime for work which exceeds the daily and / or shift maximum hours, the Loaded Rate Range of Days or the Loaded Rate Maximum Weekly Hours each week.
NOTE 2: Under the NES (see section 62 of the Act) an employee may refuse to work additional hours if they are unreasonable. Section 62 sets out factors to be taken into account in determining whether the additional hours are reasonable or unreasonable.
NOTE 3: An employee will be entitled to the relevant penalty rates and applicable entitlements for work completed on, or other arrangements relating to a public holiday in accordance with clause 29 – Penalty rates and clause 35 – Public holidays.
NOTE 4: If an employee performs work beyond the scope of the Loaded Rates Parameters, but does not exceed the daily and / or shift maximum hours, the Loaded Rate Range of Days or the Loaded Rate Maximum Weekly Hours each week, the employee will be entitled to the applicable penalty rate or allowance in accordance with the award.
EXAMPLE: If the employee starts work at 6:00am on a Tuesday, the employer must pay the employee an additional amount of $3.46 in accordance with clause 29.2. If the employee has a split shift where the period exceeds 3 hours, the additional payment is $1.49, being the difference between the split shift allowances in clause 26.14 – Split Shift Allowance.
K.15. The employer must keep a record of the starting and finishing times of work, and any unpaid breaks taken. This record must be signed by the employee or acknowledged as correct in writing (including by electronic means) by the employee, each pay period or roster cycle.
K.16. For the purposes of the NES, the base rate of pay of an employee receiving a Loaded Rate under this Schedule is the employee’s ordinary hourly rate and excludes any incentive-based payments, bonuses, loadings, monetary allowances, overtime and penalties.
K.17. Any dispute regarding the operation of Schedule K may be referred to the Fair Work Commission in accordance with clause 40 – Dispute resolution.
K.18. An employer who enters into a Loaded Rate Arrangement under Schedule K provides consent to a dispute arising from the arrangement being settled by the Fair Work Commission through arbitration in accordance with clause 40 – Dispute resolution and section 739(4) of the Act.
K.19. In arbitrating a dispute the Fair Work Commission may:
(a) require an employer to pay an employee the difference between what they were paid under the Loaded Rate Arrangement and what they would otherwise have received under this Award if the Fair Work Commission determines that the arrangement entered into under this Schedule was unfair to the employee; and
(b) terminate a Loaded Rate Arrangement if the Fair Work Commission determines that the arrangement entered into under this Schedule was unfair to the employee.
2. By inserting Schedule L as follows:
Schedule L - Loaded Rate Arrangement Form
Name of employer: _____________________________________________
Name of employee: _____________________________________________
Employee Classification/Wage Level: ______________________________________
Loaded Rate Range of Days: _____________________________________________
Loaded Rate Maximum Weekly Hours: __________
Loaded Rate Percentage: __________
Ordinary Hourly Rate: __________
Loaded Rate (ordinary hourly rate x loaded rates percentage): __________
Acknowledgement by Employer
The employer acknowledges that by entering into this arrangement, the employee must be paid the employee Loaded Rate for all hours up to the Loaded Rate Maximum Weekly Hours each week.
The employer acknowledges and agrees to roster the Loaded Rate Maximum Weekly Hours in accordance with the Loaded Rate Parameters defined in clause K.6 of Schedule K.
The employer acknowledges additional payments will apply to work performed on days, or at times, beyond the scope of the Loaded Rate Parameters, or for allowances not specified in the Loaded Rate Parameters.
By entering into this arrangement, the employer consents to any dispute arising from this arrangement being settled by the Fair Work Commission through arbitration in accordance with clause 40 – Dispute resolution and section 739(4) of the Act.
Name of employer representative: ________________________________________
Signature of employer representative: ________________________________________
Date signed: ___/___/20___
3. By updating the table of contents accordingly.
4. This determination comes into operation on XX DATE 2021. In accordance with s.165(3) of the Fair Work Act 2009, this determination does not take effect in relation to a particular employee until the start of the employee’s first full pay period that starts on or after XX DATE 2021.
PRESIDENT
1 Letter from Minister for Industrial Relations, 9 December 2020.
3 Transcript, 4 February 2021
4 Transcript, 18 February 2021.
5 Transcript, 4 March 2021.
6 Transcript, 25 March 2021.
9 Fair Work Act 2009 (Cth), s.139
11 [2017] FWCFB 1001 at [90]
12 Ibid at [91]
13 Ibid at [92] and [2081]
14 Ibid at [92] and [2080].
15 Ibid at [2082].
16 Ibid at [93].
17 See Fair Work Commission (2021), Information note―Government responses to COVID-19 pandemic, 26 July.
18 [2020] FWCFB 3500 at [24]; RBA (2020), Statement on Monetary Policy, May, p. 1.
19 Australian Government submission to the AWR decision, 26 March 2021 at paras 4, 53.
20 Fair Work Commission (2021), Information note – government responses to COVID-19 pandemic, updated 26 July.
21 Fair Work Commission (2021), Information note – government responses to COVID-19 pandemic, updated 26 July: Fair Work Commission (2021), Information note – COVID-19 situation update, updated 26 July.
22 [2021] FWCFB 3500 at [247]
23 [2021] FWCFB 3500 at [254]
24 ABS, Weekly Payroll Jobs and Wages in Australia, Week ending 3 July 2021.
25 To the week ending 5 June 2021.