| [2021] FWCFB 5281 |
| FAIR WORK COMMISSION |
STATEMENT |
Fair Work (Supporting Australia's Jobs and Economic Recovery) Act 2021
cl.48, Schedule 1 of the Fair Work Act 2009
Casual terms award review 2021
(AM2021/54)
Various industries | |
VICE PRESIDENT HATCHER |
SYDNEY, 26 AUGUST 2021 |
Fair Work Amendment (Supporting Australia’s Jobs and Economic Recovery) Act 2021 – casual amendments – review of modern awards – Stage 2, Group 4 Awards – provisional views.
[1] On 27 March 2021 the Fair Work Act 2009 (Cth) (Act) was amended by Schedule 1 to the Fair Work Amendment (Supporting Australia’s Jobs and Economic Recovery) Act 2021 (Cth) (Amending Act). The amendments included introducing a definition of ‘casual employee’ in s.15A of the Act and casual conversion arrangements in Division 4A of Part 2-2 of the Act.
[2] The Amending Act inserted additional application, savings and transitional provisions into Schedule 1 of the Act. The newly inserted cl.48 of Schedule 1 to the Act requires the Fair Work Commission (Commission) to conduct a review and vary modern awards where necessary to remove inconsistencies, difficulties or uncertainties caused by the amendments to the Act (Casual Terms Review or Review).
[3] The Commission has commenced the Casual Terms Review and it is being conducted in 2 stages. In the first stage a five-member Full Bench considered the nature and scope of the Review and reviewed ‘relevant terms’ (as defined in cl.48) in an initial group of 6 modern awards (Stage 1 awards).
[4] Interested parties were provided with the opportunity to file submissions and to respond to particular questions posed in a Discussion Paper 1 published by the Commission and a hearing was held on 24 June 2021.
[5] The five-member Full Bench issued a decision 2 in relation to Stage 1 on 16 July 2021 (July 2021 decision). The decision sets out the statutory framework for the review and provides a detailed discussion of ‘relevant’ terms in the Stage 1 priority awards and how they interact with the new definitions under the Act as amended.
[6] This Full Bench has been constituted to review the remaining modern awards which have been divided into 4 groups as part of Stage 2 of the Review. Those groups have most recently been detailed in a statement 3 issued on 3 August 2021 by this Full Bench (August 2021 statement).
[7] In the August 2021 statement and the statements issued on 6 August 2021, 4 11 August 20215 and 18 August 20216, this Full Bench reviewed the July 2021 decision and adopted the reasoning of the five-member Full Bench in relation to the ‘relevant terms’ that can be subject of the Review. We expressed provisional views in relation to awards in Groups 1-3 as set out in the attachments to those statements. We also dealt with award-specific issues, as well as general issues relating to casual conversion clauses and the categorisation of casual definition clauses which affects multiple awards.
[8] We now turn to review the State Reference Public Sector and Enterprise Modern Awards in Group 4 (Group 4 awards).
[9] The Group 4 awards are as follows:
• Aboriginal Legal Rights Movement Award 2016;
• Airservices Australia Enterprise Award 2016;
• Australian Broadcasting Corporation Enterprise Award 2016;
• Australian Bureau of Statistics (Interviewers) Enterprise Award 2016;
• Australian Capital Territory Public Sector Enterprise Award 2016;
• Australian Federal Police Enterprise Award 2016;
• Australian Government Industry Award 2016;
• Australian Nuclear Science and Technology Organisation (ANSTO) Enterprise Award 2016;
• Australian Public Service Enterprise Award 2015;
• Australia Post Enterprise Award 2015;
• Christmas Island Administration Enterprise Award 2016;
• Chullora Printing Award 2015;
• CSIRO Enterprise Award 2016;
• GrainCorp Country Operations Award 2015;
• Health Professionals, Medical Scientists and Support Services (Victoria) State Reference Public Sector Modern Award 2018;
• Metropolitan Newspapers (South Australia and Tasmania) Printing Award 2015;
• Northern Territory News Award 2015;
• Northern Territory Public Sector Enterprise Award 2016;
• Note Printing Australia Award 2016;
• Nurses and Midwives (Victoria) State Reference Public Sector Award 2015;
• Nurses (ANMF - Victorian Local Government) Award 2015;
• Optus Award 2015;
• Parliamentary Departments Staff Enterprise Award 2016;
• Printing Industry – Herald & Weekly Times – Production Award 2015;
• Queensland Newspapers Pty Ltd Printing (Murarrie) Award 2015;
• Reserve Bank of Australia Award 2016;
• State Government Agencies Award 2020;
• Telstra Award 2015;
• Victorian Government Schools Award 2016;
• Victorian Government Schools - Early Childhood - Award 2016;
• Victorian Local Government Award 2015;
• Victorian Local Government (Early Childhood Education Employees) Award 2016;
• Victorian Public Service Award 2016;
• Victorian State Government Agencies Award 2015; and
• Viterra Bulk Handling and Storage of Grains, Pulses and Minerals Award 2015.
[10] Taking into account the reasoning and conclusions in the July 2021 decision, we have formed provisional views in relation to the Group 4 awards. These are set out in Attachment A to this Statement.
[11] There are a number of specific issues contained within the Group 4 awards which we will deal with below.
[12] Few of the Group 4 awards contain casual conversion clauses. The two awards that do are the Northern Territory News Award 2015 (Northern Territory News Award) and the State Government Agencies Award 2020 (State Government Agencies Award).
[13] In our Statements of 3 August 2021, 11 August 2021 and 18 August 2021, we provisionally took the view that modern awards which do not currently contain a casual conversion clause should be varied to include a reference to the NES casual conversion provisions. We confirmed the provisional view we expressed in this respect in the 3 August 2021 Statement (in relation to the Mannequins and Models Award 2020) in a decision issued on 20 August 2021. 7
[14] These provisional views were premised on the NES casual conversion provisions being applicable to the employees covered by the awards under consideration. However, the position may be different in respect a number of the awards here. Two examples of this are as follows:
(1) Clause 6.1 of the Australian Public Service Enterprise Award 2015 provides that the Public Service Act 1999 (Cth) (PS Act) specifies the basis of engagement for an employee covered by the award. Section 22(1) of the PS Act empowers the head of a Commonwealth agency to engage persons as employees for the purposes of the agency. Section 22(2) provides that the engagement of an employee must be as (a) an ‘ongoing APS employee’, (b) for a specified term or duration of a specified task, or (c) for duties that are irregular or intermittent. Section 8(1) of the PS Act provides that the PS Act has effect subject to the Fair Work Act. However, s.6(1) provides that all persons engaged on behalf of the Commonwealth as employees must be ‘engaged under this Act, or under the authority of another Act’. It may be arguable that an employee performing casual or intermittent duties appointed pursuant to s.22(2)(c) is not a casual employee within the meaning of s.15A(1) of the Act to which the NES casual conversion provisions apply. It may also be arguable that, notwithstanding the NES casual conversion provisions, a person cannot become an ‘ongoing APS employee’ other than by engagement under the s.22 of the PS Act.
(2) The Victorian Public Service Award 2016 covers employees who are the subject of a referral of power pursuant to the Fair Work (Commonwealth Powers) Act 2009 (Vic). Section 5(1)(a) excludes from the referral ‘matters pertaining to the number, identity or appointment (other than terms and conditions of appointment) of employees in the public sector who are not law enforcement officers’. The effect of this provision may be that the NES casual conversion provisions do not apply to employees under this award because they concern the identity and appointment of persons as full-time or part-time employees in the Victorian public sector (see ss.30B and 30H of the Act).
[15] Our provisional view is that each of the Group 4 awards which does not contain a casual conversion clause should be varied pursuant to s 157(1) of the Act to include a reference to the NES casual conversion provisions, provided that the NES provisions are applicable to the employers and employees covered by the award. We will invite submissions from interested parties about the awards to which this proviso applies. However, we will proceed on the basis that the proviso certainly applies to the non-public sector Group 4 awards in the absence of any submissions to the contrary.
[16] The Northern Territory News Award does not contain the model conversion clause. Instead, it contains the following provisions:
“13.1 The employer when engaging a person shall inform him or her then and there that he/she is to be employed as a casual. Except where this is done, the employee shall be a weekly employee. A casual employee, after two weeks of continuous employment as a casual employee, shall become a full-time weekly employee.
13.2 A casual employee has been continuously employed when he or she has worked the same hours as a full-time weekly employee.”
[17] The third sentence of clause 13.1 is self-evidently more beneficial to employees than the NES entitlements insofar as it provides for direct and mandatory conversion to full-time employment after only 2 weeks’ continuous casual employment involving full-time hours. Further, there is no requirement for the employer to offer conversion as this occurs automatically once the two weeks’ continuous employment has been satisfied. However, the provision is distinct from the NES entitlements in that it does not deal with casual employees working only part-time hours nor does it contemplate conversion to part-time employment, nor does it concern offers or requests for conversion of employment.
[18] The third sentence of clause 13.1, and clause 13.2, are clearly relevant terms. Our provisional view is that the provisions have a sphere of operation which is entirely distinct to the NES provisions such that no inconsistency or interaction difficulty arises, and consequently that they may be retained. In addition a reference to the NES casual conversion provisions should be added to the award. We deal with the first sentence of clause 13.1 separately below.
[19] The State Government Agencies Award contains the model casual conversion clause. Consistent with reasoning and conclusions in the July 2021 decision, our provisional view is that clause 11.6 should be deleted and replaced with a reference to the NES provisions concerning casual employment. As noted in the July 2021 decision, it is appropriate that we also add a note that disputes about casual conversion may be dealt with under the award dispute resolution procedure.
4.1 Airservices Australia Enterprise Award 2016
[20] The Airservices Australia Enterprise Award 2016 (Airservices Award) contains the following definition of a casual employees:
“6.4 Casual employment
(a) A casual employee is a person employed on an irregular, intermittent and hourly basis without any ongoing commitment from either party as to an ongoing relationship.”
[21] No provision of this precise nature was considered in the July 2021 decision, although we note that clause 6.4 includes an ‘employed by the hour’ element. The provision is clearly intended to be entirely definitional in nature. In that respect it is substantially different to clause 11.2 of the Cleaning Services Award 2020, which we considered in our Statement of 11 August 2021 8 at [66]-[68]. Our provisional view is that the clause 6.4 definition of casual employment is a relevant term, is inconsistent with the definition in s.15A of the Act and should be removed, and a new definition of ‘casual employee’ that refers to s.15A of the Act should be added to Schedule G, Definitions of the award.
4.2 Australian Broadcasting Corporation Enterprise Award 2016
[22] The Australian Broadcasting Corporation Enterprise Award 2016 (ABC Award) provides the following definition of casual employee within the Journalists stream:
“32.1 A casual is a person employed temporarily by the day or half day to perform work of a kind similar to that done by employees classified under clause 30 of this Part.”
[23] No provision of this precise nature was considered in the July 2021 decision. However, we consider that the provision is definitional in nature and incorporates an element of the ‘employment day-to-day’ type definition considered in the July 2021 decision. Our provisional view is that clause 32.1 is a relevant term, is inconsistent with the definition in s.15A of the Act and should be removed, and a new definition of ‘casual employee’ that refers to s.15A of the Act should be added to clause 3.1 of the award.
[24] The Australian Capital Territory Public Sector Enterprise Award 2016 (ACT Public Sector Award) contains the following definition of a casual employee:
“6.5 Casual employment
(a) A casual employee is an employee who is engaged to perform work for a short period on an irregular or non-systematic basis.”
[25] No provision of this precise nature was considered in the July 2021 decision. The provision in our view is definitional in nature but also includes a temporal restriction on the use of casual employment.
[26] There is also a second definition of ‘casual employee’ in Schedule E, Definitions of the award as follows:
“Casual employee means a temporary employee who is engaged by the hour on an irregular or occasional basis, or to provide temporary assistance on such days or shifts as the employer may require, other than as a fixed term employee.”
[27] Both provisions are relevant terms. Our provisional view is that:
(1) Both definitions are inconsistent with the definition in s.15A.
(2) The definition in Schedule E should be removed and replaced with a definition that refers to s.15A.
(3) Clause 6.5(a) should be amended to remove its definitional nature but retain the temporal restriction as follows:
“6.5 Casual employee
(a) A casual employee is an employee who is may only be engaged to perform work for a short period.”
[28] The Australian Federal Police Enterprise Award 2016 (AFP Award) contains the following definition of casual employee:
“5.8 Casual employment
(a) Where an employee is engaged on a casual basis to do work that is intermittent or irregular in nature, the employee will receive a 25% loading of their base salary in recognition that they do not have access to certain entitlements.”
[29] There is no other definition of casual employee contained within the AFP Award. It is our provisional view that:
(1) Clause 5.8 contains both a definition element and a requirement for the payment of the 25% casual loading.
(2) Insofar as it constitutes a definition of casual employment, clause 5.8 is not consistent with the definition in s.15A of the Act.
(3) The reference to ‘work that is intermittent or irregular in nature’ appears not to be a restriction on the use of casual employees but a condition on the payment of the 25% loading. This condition, which suggests that some casual employees may not be entitled to the loading, should be removed.
(4) Clause 5.8 should be modified so that definitional element is removed, as follows:
“5.8 Casual employment
(a) Where an employee A casual employee is engaged on a casual basis to do work that is intermittent or irregular in nature, the employee will receive a 25% loading on their base salary in recognition that they do not have access to certain entitlements.”
(5) A new definition of ‘casual employee’ that refers to s.15A of the Act should be added to Schedule F, Definitions of the award.
4.5 Australian Government Industry Award 2016
[30] The Australian Government Industry Award 2016 (Australian Government Award) provides the following at clause 9.4(c):
“9.4 Part-time employment
. . .
(c) Proposals for part-time work may be initiated by the employer for operational reasons or by an employee for personal reasons. An employee engaged on a full-time basis will not be converted to a part-time basis as set out in this clause without the employee’s written agreement.”
[31] Clause 9.4(c) is not, in terms, confined in operation to full-time employees only, and appears to allow for a casual employee to be converted to part-time employment. It is notable in that connection that the requirement for written consent is not expressed to apply to conversion from casual to part-time employment. It is not clear whether clause 9.4(c) was intended to have application to casual employees but, on its face, it appears to do so. To the extent that clause 9.4(c) may be read as allowing non-consensual conversion from casual to part-time employment, our provisional view is that the provision is inconsistent with the NES casual conversion provisions of the Act.
[32] It is our provisional view that the clause should be amended to make clear that its application extends to full-time employees only as follows:
“(c) Proposals for part-time work may be initiated by the employer for operational reasons or by an employee for personal reasons. An employee engaged on a full-time basis will not be converted to a part-time basis as set out in this clause without the employee’s written agreement. This subclause does not apply to casual employees.”
[33] The Australian Government Award contains a number of schedules which contain specific employment conditions for certain government agencies. Schedule L contains employment conditions specific to the Civil Aviation Safety Authority. Clause L.1.2 of Schedule L provides that where there is an inconsistency between the terms of the award and this schedule the terms of this schedule will prevail.
[34] Clause L.3.1(c) of Schedule L provides as follows:
“(c) Casual employment
Casual employment defined at clause 9.5 of the award is further defined in CASA as a person employed on an irregular, intermittent and hourly basis without commitment from either party to ongoing work.”
[35] Clause 9.5, which is referred to in the above provision, contains an ‘engaged and paid as a casual’ definition of casual employment.
[36] It is difficult to disentangle the definitional and non-definitional elements of clause L.3.1(c). Our provisional view is that:
(1) clause 9.5 should be deleted;
(2) a definition of casual employee that refers to s.15A of the Act should be added to clause 2.1 of the award; and
(3) clause L.3.1(c) should be deleted and replaced with the following provision:
“Casual employment
Casual employment is defined in clause 2.1 of the award.”
[37] Schedule M provides employment conditions specific to Electorate Officers employed under Part III and Part IV of the Members of Parliament (Staff) Act 1984. At M.3 it provides:
“M.3 Casual employees
Any provisions of the award specific to casual employees do not apply to Electorate Officers.”
[38] Our provisional view is that if this is a relevant term, it is not inconsistent with the Act nor does it give rise to any interaction difficulty. Its effect is merely that the provisions of the award relating to casual employment do not apply to employees covered by Schedule M.
[39] The Australian Nuclear Science and Technology Organisation (ANSTO) Enterprise Award 2016 (ANSTO Award) states that:
“6. Types of employment
6.1 ANSTO will engage employees in accordance with the provisions of s.24 of the Act, subject to provisions of this award in the following employment categories:
(a) Temporary, engaged for monthly periods up to a maximum period of twelve months.
(b) Part-time, an employee who works specified daily hours for less than 36.75 hours per week.
(c) Term, engaged for a fixed term for not less than one year and not more than three years.
(d) Continuing, an employee who is engaged for an indefinite term.
(e) Apprentices, engaged subject to the term of their indentures.”
[40] The Act referred to in clause 6.1 is defined in Schedule F of the ANSTO Award as the ‘Australian Nuclear Science and Technology Organisation Act 1987 as amended’.
[41] It does not appear that employees are engaged as casual employees under the ANSTO Award, instead, temporary employees under clause 6.1(a) can be engaged for monthly periods. There are two provisions contained in the ANSTO Award which refer to casual employment: clause 23.3 (within the redundancy clause) and clause E.5.3(a) (within Schedule E National Training Wage). Both of these clauses seem standard in nature and do not indicate that casual employees are employed under the ANSTO Award.
[42] ‘Temporary’ employment under the ANSTO Award appears to be a form of short-term fixed-term employment. Clause 16.12(a) provides that temporary employees will be granted ‘general leave with full pay’ during the first year of continuous service in lieu of the entitlement to personal carer’s leave, and clause 16.12(e) provides that once such employees have completed twelve months’ continuous service they will receive a leave credit of 23 days on full pay and twenty days half pay leave. These paid leave entitlements tend to confirm that this type of employment is not intended to be casual, although there remains a question as to whether such provisions are consistent with the NES.
[43] Our provisional view is that temporary employment provisions of the ANSTO Award are not relevant terms for the purpose of this review.
[44] Clause 6 of the Australian Public Service Enterprise Award 2015 (Australian Public Service Award) provides for three categories of employment:
• full-time employment;
• part-time employment; and
• irregular or intermittent employment.
[45] Under clause 6.5, irregular or intermittent employees:
• work ‘on an irregular or intermittent basis’ (clause 6.5(a));
• are paid ‘the hourly rate for their classification’ (clause 6.5(b));
• are paid ‘a casual loading of 25% of that rate in lieu of paid leave entitlements’ clause 6.5(c)(i)); and
• are excluded from entitlements to annual leave (clause 16.1), compassionate leave (clause 17.5), community service leave (clause 19.2).
[46] A range of other provisions of the award dealing with aspects of irregular or intermittent employment: clauses 14.2, 16.1, 17.5, 19.2-19.3, D.5.3(a) and F.2.3.
[47] Clause 3 of the Australian Public Service Award provides that it covers the Commonwealth of Australia in respect of the Australian Public Service (APS) and employees employed in APS employment. The category of employees engaged on an irregular or intermittent basis in clauses 6.2 and 6.5 reflects s.22(2)(c) of the PS Act, to which reference has earlier been made. As also observed above, s.8(1) of the PS Act relevantly provides that it has effect subject to the Act, and s.6(1) provides that all persons engaged as employees in a Department of the Parliament must be engaged under that Act or under the authority of another Act.
[48] We consider that there are real questions as to the relationship between s.22 of the PS Act and s.15A of the Act and as to how the provisions concerning employment on an irregular or intermittent basis in the Australian Public Service Award are to be considered in this context. We do not propose to express any provisional view about this. We will invite further submissions from the Commonwealth and other interested parties about this issue.
[49] The Christmas Island Administration Enterprise Award 2016 (Christmas Island Administration Award) provides at clause 6.5(a) as follows:
“6.5 Casual employees
(a) A casual employee is an employee who is engaged on an hourly basis under one or more short term contracts to cater for the absence of other employees, or where unexpected or unusual circumstances have arisen or where it would not be reasonable for the work to be done on any other basis.”
[50] Clause 6.5 mixes an ‘engaged on an hourly basis’ definition of casual employment with restrictions on the use of casual employment that are not definitional in nature. Our provisional view is that:
(1) The ‘engaged on an hourly basis’ definition of casual employment in clause 6.5(a) is not consistent with the definition in s.15A of the Act for the reasons stated in July 2021 decision. .
(2) The restrictions on the use of casual employment may be preserved provided they operate upon a definition of casual employment that is consistent with s.15A.
(3) Accordingly, a new definition of ‘casual employee’ that refers to s.15A of the Act should be added to Schedule F, Definitions of the award and clause 6.5(a) should be modified to read:
“6.5 Casual employees
(a) A casual employee is an employee who is may only be engaged on an hourly basis under one or more short term contracts to cater for the absence of other employees, or where unexpected or unusual circumstances have arisen or where it would not be reasonable for the work to be done on any other basis.”
[51] Clause 19.6 of the Christmas Island Administration Award provides that, in relation to parental leave:
“19.6 An eligible casual employee means a casual employee:
(a) employed by an employer on a regular and systematic basis for several periods of employment or on a regular and systematic basis for an ongoing period of employment during a period of at least 12 months; and
(b) who has, but for the pregnancy or the decision to adopt, a reasonable expectation of ongoing employment.
(c) For the purposes of this clause, continuous service is work for an employer on a regular and systematic basis (including any period of authorised leave or absence).
(d) The rights of an employer in relation to engagement and re-engagement of casual employees are not affected, other than in accordance with this clause.
19.7 An eligible casual employee employed on, prior to, or after, 11 April 2005 shall be entitled to parental leave under the terms of this award.”
[52] In the July 2021 decision the Full Bench noted that the Amending Act has replaced the definition of ‘long term casual employee’ in s. 12 of the Act with a definition of ‘regular casual employee’. The Full Bench held that the term ‘regular and systematic casual employee’ used in the Hospitality Industry (General) Award 2020 was used for the same purpose as ‘long term casual employee’ in the General Retail Industry Award 2020 and that both of those terms could be replaced with ‘regular casual employee’ as defined in s.12 of the Act, without changing the effect of those particular award clauses. 9
[53] It is our provisional view that clause 19.6 should be varied to provide that an eligible casual employee is a ‘regular casual employee’ as defined in s.12 of the Act who has been employed for at least 12 months.
[54] It is our provisional view that clause 19.6 should be deleted and replaced with the following provision:
“19.6 An eligible casual employee means:
(a) a regular casual employee who has been employed for at least 12 months; and
(b) who has, but for the pregnancy or the decision to adopt, a reasonable expectation of remaining a regular casual employee.
(c) The rights of an employer in relation to engagement and re-engagement of casual employees are not affected, other than in accordance with this clause.”
[55] Schedule F, Definitions should be varied to add a definition of ‘regular casual employee’ that refers to the definition in s.12 of the Act.
[56] It is also our provisional view that the date of employment criterion in clause 19.7 is redundant and should, pursuant to s.157 of the Act, be deleted.
[57] The CSIRO Enterprise Award 2016 (CSIRO Award) provides the following at clause 6.3 (with clause 6.1 provided for context):
“6.1 Employees under this award will be employed in one of the following categories:
(a) indefinite;
(b) casual; or
(c) specified term.
. . .
6.3 Employees engaged in one of the categories set out in clause 6.1 may be appointed to work full-time or part-time.”
[58] Clause 6.3 appears to provide that casual employees may be appointed to work full-time or part-time.
[59] It is our provisional view that clause 6.3 is not consistent with the definition in s.15A of the Act since it contemplates that casual employees may be engaged to work a number of hours per week that is fixed in advance, and consequently should be amended to make it clear that the clause does not apply to casual employees as follows:
“6.3 Employees engaged in one of the categories set out in clause 6.1(a) or (c) may be appointed to work full-time or part-time.”
[60] The CSIRO Award provides the following at clause 6.4(b):
“6.4 At the time of appointment, CSIRO will inform each employee in writing of the terms of their appointment, including:
…
(b) whether a probationary period applies and, if so, the expected duration of the period and advice in relation to the maximum duration of the period;”
[61] It is our provisional view that clause 6.4(b) is consistent with the Act as amended but may cause difficulty or uncertainty relating to the interaction between the award and s.15A. It is our provisional view that the clause should be amended to make it clear that it does not apply to casual employees as follows:
“(b) if the person has been appointed as an indefinite or specified term employee, whether a probationary period applies and, if so, the expected duration of the period and advice in relation to the maximum duration of the period.”
[62] The CSIRO Award provides the following at clause 6.5(d):
“(d) Employee initiated proposals
Employee initiated proposals for part-time work will be considered promptly and with due consideration for the reasons put forward by the employee in support of the proposal. Such consideration will be subject to operational requirements.”
[63] Clause 6.5(d) is not, in terms, confined in operation to full-time employees and appears to provide for casual employment to be converted to part-time employment. It is our provisional view that clause 6.5(d) is inconsistent with the Act as amended because it appears to provide for access to conversion in a way which is significantly different to that provided under the NES.
[64] It is our provisional view that the clause should be amended to make clear that its application extends to full-time employees only as follows (which is likely to be consistent with its underlying intention):
“(d) Employee initiated proposals
Employee initiated Proposals initiated by full-time employees for part-time work will be considered promptly and with due consideration for the reasons put forward by the employee in support of the proposal. Such consideration will be subject to operational requirements.”
[65] The CSIRO Award contains the following definition of a casual employee at clause 6.6(a):
“(a) A casual employee is engaged by the hour, paid on an hourly basis, to cover genuine temporary need. A casual employee can be called for duty at any time.”
[66] This provision mixes definitional elements with a restriction on the use of casual employment. It is our provisional view that:
(1) The first sentence in clause 6.6(a), which incorporates an ‘engaged by the hour’ definition of casual employment, is not consistent with the definition in s.15A of the Act for the reasons explained in the July 2021 decision. The second sentence of clause 6.6(a) is also not consistent with the definition in s.15A, having regard in particular to s.15A(2)(a).
(2) The restriction on the use of casual employment ‘to cover genuine temporary need’ may be preserved provided it operates upon a definition of casual employment that is consistent with s.15A.
(3) Accordingly, a new definition of ‘casual employee’ that refers to s.15A of the Act should be added to Schedule F, Definitions of the award, and clause 6.6(a) should be modified to read:
“(a) A casual employee is may only be engaged by the hour, paid on an hourly basis, to cover genuine temporary need. A casual employee can be called for duty at any time.”
[67] The Metropolitan Newspapers (South Australia and Tasmania) Printing Award 2015 provides at clause 11:
“11. Weekly employment
11.1 No employee shall be employed other than as an employee by the week which may include a part-time employee or as a casual employee.”
[68] This provision is drafted in a way which is difficult to understand. One way of reading the provision is that the words ‘may include’ apply to ‘as a casual employee’, so that casual employment is a form of weekly employment. A casual employee cannot, conceptually, be ‘an employee by the week’. 10 Consistent with this, clause 13.1 provides that ‘A casual employee is an employee engaged other than as a weekly employee’. Clause 12 also makes separate provision for part-time employment. Our provisional view is that clauses 11.1 and clauses 13.1, read in conjunction, give rise to possible inconsistency and interaction difficulties with the Act, in particular because casual employment as a ‘weekly employee’ may involve a regular agreed pattern of work. Our provisional view is that clause 13.1 should be deleted, that a new definition of ‘casual employee’ that refers to s.15A of the Act should be added to clause 3.1 of the award, and that clause 11.1 should be amended to provide as follows:
“11. Weekly employment
11.1 An employee, other than a casual employee, will be engaged on a weekly basis. Weekly employment may include part-time employment.”
[69] Clause 13.1 of the Northern Territory News Award provides:
“13.1 The employer when engaging a person shall inform him or her then and there that he/she is to be employed as a casual. Except where this is done, the employee shall be a weekly employee. A casual employee, after two weeks of continuous employment as a casual employee, shall become a full-time weekly employee.”
[70] We have earlier dealt with the third sentence of the above provision. The first sentence (apart from the drafting) gives rise to no difficulty, for the reasons explained in the July 2021 decision. The second sentence however may give rise to inconsistency with s.15A since its effect is to deem employment which may fall within the s.15A definition of casual employment as ‘weekly’ (that is, permanent) employment if the requirement in the first sentence is not discharged. Our provisional view is that the first sentence of clause 13.1 may be retained but that the second sentence, which is definitional in nature, should be deleted. A new definition of ‘casual employee’ that refers to s.15A of the Act should be added to clause 3.1, Definitions of the award, and clause 13.1 should be modified to read:
“13.1 The employer when engaging a person shall inform them him or her then and there that he/she is they are to be employed as a casual employee. Except where this is done, the employee shall be a weekly employee.”
[71] As discussed above, the third sentence of clause 13.1 should be retained, but as a separate provision.
[72] The Northern Territory Public Sector Enterprise Award 2016 contains a definition of casual employment at clause 6.1 by reference to the Public Sector Employment and Management Act 1993 (NT) (PSEM Act) as follows:
“6.1 The PSEM Act specifies the basis of engagement for an employee covered by this award (see s.29(3) of the PSEM Act which provides for employment on an ongoing, fixed period or casual basis).”
[73] The PSEM Act defines casual employment in section 29(3)(c) as follows:
“(3) Employment under subsection (1) may be:
(a) ongoing – being employment until the employee resigns or the employment is terminated under this Act, other than casual employment; or
(b) fixed period – being employment for a period of time specified in the contract of employment, other than casual employment; or
(c) casual – being employment to work as and when required from time to time.”
[74] The definition of casual employment in s.29(3)(c) of the PSEM Act, which is incorporated by reference into clause 6.1 of the award, is inconsistent with the definition of casual employment in s.15A of the Act. That gives rise to a question as to the relationship between the Act and the PSEM Act. We do not propose to express any provisional view about this. We will invite further submissions from interested parties (including the Northern Territory Government and the Commonwealth).
[75] Clause I.1.1 of Schedule I of the award, Teachers and Educators, contains a definition of ‘relief teacher’ which is as follows:
“Relief teacher means a teacher employed on a casual basis, as prescribed in clause 6.1, who is engaged as and when required to perform general teaching duties.”
[76] Our provisional view is that this provision, if a relevant term, does not give rise to any inconsistency or interaction difficulty with the Act.
[77] Clause M.6.1 in Schedule M of the award contains the following provision in relation to casual employees in the Power and Water Sector:
“M.6.1 An employee employed as a casual in accordance with clause 6.5 ceases to be a casual employee after being continually employed from more than three weeks.”
[78] This provision appears to operate as a restriction on the length of time a casual employee can be engaged. It is analogous to the provision in the Educational Services (Teachers) Award 2020 (Teachers Award) in the sense that it places a temporal limitation on casual employment as dealt with by the Full Bench in the July 2021 Decision. 11 Consistent with the decision in relation to the Teachers Award our provisional view is that the clause may be retained since it does not give rise to any inconsistency or interaction difficulty with the Act.
[79] Clause 11.2 of the Note Printing Australia Award 2016 provides that a casual employee should be informed that they are employed on a casual basis and is as follows:
“11.2 Terms of employment
A casual employee shall be informed at the time of engagement that such employment is on a casual hourly basis.”
[80] The clause incorporates a definitional element (‘hourly basis’) which may be inconsistent with s.15A of the Act. Our provisional view is that the clause should be amended as follows:
“11.2 Terms of employment
A casual employee shall be informed at the time of engagement that such employment is on a casual hourly basis.”
[81] Clause 6.2 of the Parliamentary Departments Staff Enterprise Award 2016 (Parliamentary Departments Staff Award) provides for three categories of employment: full-time, part-time, or ‘irregular and intermittent basis’. Under clause 6.5, irregular or intermittent employees:
• work ‘on an irregular or intermittent basis’ (clause 6.5(a));
• are paid ‘the hourly rate for their classification’ (clause 6.5(b));
• are paid ‘a casual loading of 25% of that rate in lieu of paid leave entitlements’ (clause 6.5(c)); and
• are excluded from entitlements to annual leave (clause 15), public holidays (clause 20), additional holiday (clause 21), termination of employment (clause 22) and redundancy (clause 23).
[82] Clause 3 of the Parliamentary Departments Staff Award provides that it covers the Commonwealth of Australia in respect of the Parliamentary Service and its employees. The category of employees engaged on an irregular or intermittent basis in clause 6.2 reflects s.22(2)(c) of the Parliamentary Service Act 1999 (Cth). Section 22(1) of that Act empowers the Secretary of a Department of the Parliament to engage employees on behalf of the Commonwealth, and s.22(2) provides that such employees must be engaged as (a) an ongoing Parliamentary Service employee, (b) for a specified term or for the duration of a specified task, or (c) ‘for duties that are irregular or intermittent’. Section 8(1) of the Parliamentary Service Act relevantly provides that it has effect subject to the Act, and s.6(1) provides that all persons engaged as employees in a Department of the Parliament must be engaged under the Parliamentary Service Act or under the authority of another Act.
[83] We consider that there are real questions as to the relationship between s.22 of the Parliamentary Service Act and s.15A of the Act and as to how the provisions concerning employment on an irregular or intermittent basis in the Parliamentary Departments Staff Award are to be considered in this context. We do not propose to express any provisional view about this. We will invite further submissions from the Commonwealth and other interested parties about this issue.
[84] The Printing Industry—Herald and Weekly Times—Production Award 2015 provides at clause 10.4:
“10.4 Good Friday and Christmas Day
(a) All time worked on Good Friday and Christmas Day publications shall be deemed to be equivalent to a shift worked of not less than five hours and shall be paid for at double the wage rate prescribed for the classification in which employed.
(b) Casual employees deriving their livelihood solely from the newspaper industry who have been continuously and regularly employed for four or more shifts each week during the previous twelve months shall be paid for the equivalent of four hours day or five hours night for Good Friday and Christmas Day.”
[85] Clause 10.4(b) provides for casual employees who have been ‘continuously and regularly employed for four or more shifts each week during the previous twelve months’ to qualify for leave. Our provisional view is that clause 10.4(b) is not a relevant term because it does not deal with any of the matters identified in clause 48(1)(c) of Schedule 1 of the Act, but rather is concerned only with establishing the criteria for the prescribed entitlement in respect of Good Friday and Christmas Day.
[86] The Victorian Government Schools Award 2016 does not define casual employees. The award, at clause 10.1, permits employment on a casual basis. Our provisional view is that the absence of a definition for casual employees in an award that permits casual employment creates an ambiguity that may lead to difficulty or uncertainty. Our provisional view is that a definition referencing s.15A of the Act should be included in Clause 3—Definitions as follows:
“casual employee has the meaning given by section 15A of the Act.”
[87] A subsequent reference to casual employees as a ‘person employed on a casual basis’ can be found in clause 16. Our provisional view is that this could cause difficulty or uncertainty and should be amended as follows:
“A casual employee person employed on a casual basis will be paid an hourly rate (calculated in accordance with clause 14.2) that is not less than the minimum hourly rate applicable to their classification level under Schedule A (in the case of a Teacher, at sub-division 1), plus a 25% loading. Payment of a 25% loading is in lieu of any entitlement to paid leave, and public holidays under this award.”
[88] The Victorian Government Schools - Early Childhood - Award 2016 does not define casual employees. The award, at clause 10.1, permits employment on a casual basis. For the reasons discussed above our provisional view is that a definition referencing s.15A of the Act should be included in Clause 3—Definitions as follows:
“casual employee has the meaning given by section 15A of the Act.”
[89] Casual employees are referred to in a subsequent clause as a ‘person employed on a casual basis’ in clause 15. Our provisional view is that this could cause difficulty or uncertainty and should be amended as follows:
“A casual employee person employed on a casual basis will be paid an hourly rate (calculated in accordance with clause 13.2) that is not less than the minimum hourly rate applicable to their classification level under Schedule A (in the case of an Early Childhood Teacher, at sub-division 1), plus a 25% loading. Payment of a 25% loading is in lieu of any entitlement to paid leave, and public holidays under this award.”
[90] The Victorian Local Government (Early Childhood Education Employees) Award 2016 (Victorian Local Government Early Childhood Award) contains the following definition of a casually employed teacher at clause 10.5(a)(i):
“(i) Casual employment means employment on a day-to-day basis for a period of not more than five consecutive days.”
[91] No provision of this precise nature was considered in the July 2021 decision but we note that clause 10.5(a)(i) incorporates an ‘employment day-to-day’ definition of the type found in the July 2021 decision to be inconsistent with the s.15A definition. In addition, however, clause 10.5(a)(i) contains a temporal restriction on the use of casual employment similar to that in clause 12.1 of the Teachers Award considered in the July 2021 decision. Our provisional view is that the inconsistent definitional element of clause 10.5(a)(i) should be removed but the restriction should be maintained by amending the provision to read as follows:
“(i) Casual employment means employment on a day-to-day basis A casual employee may be employed for a period of not more than five consecutive days.”
[92] In addition, a new definition of ‘casual employee’ that refers to s.15A of the Act should be added to clause 3.1 of the award.
[93] Clauses 10.5(b)(i) and (ii) of the Victorian Local Government Early Childhood Award further define casually employed educators as follows:
“(i) A casual employee is an employee engaged as such and must be paid the hourly rate payable for a full-time employee for the relevant classification in clause 14.5 plus a casual loading of 25%.
(ii) A casual employee is one engaged for temporary and relief purposes.”
[94] Clause 10.5(b)(i) incorporates both an ‘engaged as a casual’ definition and a requirement for the payment of the 25% casual loading. Clause 10.5(b)(ii) is expressed as a further definition but substantively contains a restriction on the use of casual employment. Our provisional view is that the definitional elements of the provisions should be removed on the basis that they are inconsistent with s.15A, and the provisions should be modified to retain their substantive requirements as follows:
“(i) A casual employee is an employee engaged as such and must be paid the hourly rate payable for a full-time employee for the relevant classification in clause 14.5 plus a casual loading of 25%.
(ii) A casual employee is one may only be engaged for temporary and relief purposes.”
[95] Any interested party which opposes any of the provisional views concerning the Group 4 awards as set out above and in Attachment A to this Statement shall file a submission identifying the basis of their opposition by 4PM (AEST) THURSDAY, 2 SEPTEMBER 2021.
[96] Interested parties are to provide submissions in relation to the issues identified above about which we have not expressed provisional views by 4PM (AEST) THURSDAY, 2 SEPTEMBER 2021.
VICE PRESIDENT
Printed by authority of the Commonwealth Government Printer
<PR733202>
ATTACHMENT A
Aboriginal Legal Rights Movement Award 2016 MA000139 | |||
Clause |
Provisional view |
Action |
Notes |
11.3(a)—definition of casual employee |
‘Engaged as a casual’ definition – not consistent – relevant uncertainty or difficulty exists (see [69]-[70] of [2021] FWCFB 4144) Replace with reference to s.15A(1) to make consistent or operate effectively (see [105], [106], [110], [111] of [2021] FWCFB 4144) |
Delete clause 11.3(a) Insert new definition of ‘casual employee’ in clause 3—Definitions and interpretation as follows: casual employee has the meaning given by section 15A of the Act. |
|
11.3(b)—casual loading |
Not inconsistent (at [176] and [178] of [2021] FWCFB 4144) |
No variation necessary |
FWC held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [178] |
11.3(c)—casual pay periods |
Not inconsistent (at [163] of [2021] FWCFB 4144) |
No variation necessary |
FWC held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [163] |
11.3(d)—minimum payment |
Not inconsistent (at [163] of [2021] FWCFB 4144) |
No variation necessary |
FWC held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [163] |
No casual conversion clause |
Add reference to NES casual conversion provisions pursuant to s 157(1), subject to confirmation that NES provisions apply to persons covered by award |
Insert new subclause in clause 11.3 (e) as follows: 11.3(e) Offers and requests for casual conversion Offers and requests for conversion from casual employment to full-time or part-time employment are provided for in the NES. NOTE: Disputes about offers and requests for casual conversion under the NES are to be dealt with under clause 9—Dispute resolution. |
|
12.4(d)—casuals excluded from notice of termination of employment |
Not a relevant term |
No variation necessary |
|
22.2—casuals excluded from personal/carer’s leave provisions in clause 22 (except for 22.9) |
Not a relevant term |
No variation necessary |
|
22.9—personal/carer’s leave for casuals |
General term - not inconsistent (at [179] and [185] of [2021] FWCFB 4144) |
No variation necessary |
This provision provides ‘general terms and conditions of employment of casual employees’ which the FWC Full Bench held (in priority awards) to be not inconsistent nor give rise to uncertainty. (see [185] of [2021] FWCFB 4144) |
C.5.3(a)—NTW—casual loadings disregarded re reduction in minimum wage |
General term - not inconsistent (at [179] and [185] of [2021] FWCFB 4144) |
No variation necessary |
This provision provides ‘general terms and conditions of employment of casual employees’ which the FWC Full Bench held (in priority awards) to be not inconsistent nor give rise to uncertainty. (see [185] of [2021] FWCFB 4144) |
Airservices Australia Enterprise Award 2016 MA000141 | |||
Clause |
Provisional view |
Action |
Notes |
6.4(a) – definition of casual employee |
‘Paid by hour’ definition - not consistent (see [81]-[84] of [2021] FWCFB 4144) Replace with reference to s.15A(1) to make consistent or operate effectively (see [105], [106], [110], [111] of [2021] FWCFB 4144) |
Delete clause 6.4(a) Insert new definition of ‘casual employee’ in Schedule G—Definitions as follows: casual employee has the meaning given by section 15A of the Act. |
|
6.4(b) – hourly rate |
General term - not inconsistent (at [179] and [185] of [2021] FWCFB 4144) |
No variation necessary |
This provision provides ‘general terms and conditions of employment of casual employees’ which the FWC Full Bench held (in priority awards) to be not inconsistent nor give rise to uncertainty. (see [185] of [2021] FWCFB 4144) |
6.4(c)—casual loading |
Not inconsistent (at [176] and [178] of [2021] FWCFB 4144) |
No variation necessary |
FWC held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [178] |
6.4(d), 18.1, 19.3, 20.2 and 22.2—casuals excluded from certain provisions |
Not a relevant term |
No variation necessary |
|
No casual conversion clause |
Add reference to NES casual conversion provisions pursuant to s 157(1) subject to confirmation that NES provisions apply to persons covered by award |
Insert new subclause in clause 6.4 as follows: 6.4(e) Offers and requests for casual conversion Offers and requests for conversion from casual employment to full-time or part-time employment are provided for in the NES. NOTE: Disputes about offers and requests for casual conversion under the NES are to be dealt with under clause 27—Dispute resolution. |
|
14.1(d)—casuals excluded from district allowance |
Not a relevant term |
No variation necessary |
|
16.2—penalty rates for casuals - shiftworkers |
General term- not inconsistent (at [179] and [185] of [2021] FWCFB 4144) |
No variation necessary |
FWC held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [185] |
17.1(a) and 17.6—overtime for casuals |
General term - not inconsistent (at [179] and [185] of [2021] FWCFB 4144) |
No variation necessary |
FWC held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [185] |
B.6, B.7,B.8 and B.9—Summary of hourly rates |
General term - not inconsistent ([179] and [185] of [2021] FWCFB 4144) |
No variation necessary |
|
F.5.3(a) – NTW - casual loadings disregarded re reduction in minimum wage |
General term - not inconsistent (at [179] and [185] of [2021] FWCFB 4144) |
No variation necessary |
This provision provides ‘general terms and conditions of employment of casual employees’ which the FWC Full Bench held (in priority awards) to be not inconsistent nor give rise to uncertainty. (see [185] of [2021] FWCFB 4144) |
Australian Broadcasting Corporation Enterprise Award 2016 MA000147 | |||
Clause |
Provisional view |
Action |
Notes |
10.9—casual employees provided for in other parts of the award |
Not inconsistent |
No variation necessary |
|
11.2—casuals excluded from notice of termination – redundancy |
Not a relevant term |
No variation necessary |
|
15—casuals excluded from leave and public holidays |
Not a relevant term |
No variation necessary |
|
32.1—Journalists stream—definition of casual employee |
‘Paid by hour’ definition - not consistent (see [81]-[84] of [2021] FWCFB 4144) Replace with reference to s.15A(1) to make consistent or operate effectively (see [105], [106], [110], [111] of [2021] FWCFB 4144) |
Delete 32.1. Insert new definition of ‘casual employee’ in clause 3—Definitions and interpretations, as follows: casual employee has the meaning given by section 15A of the Act. |
|
32.2— Journalists stream —classifications of casuals |
General term - not inconsistent (at [179] and [185] of [2021] FWCFB 4144) |
No variation necessary |
This provision provides ‘general terms and conditions of employment of casual employees’ which the FWC Full Bench held (in priority awards) to be not inconsistent nor give rise to uncertainty. (see [185] of [2021] FWCFB 4144) |
32.3— Journalists stream —clauses re calculation of time worked and shift penalties apply to casuals |
General term - not inconsistent (at [179] and [185] of [2021] FWCFB 4144) |
No variation necessary |
This provision provides ‘general terms and conditions of employment of casual employees’ which the FWC Full Bench held (in priority awards) to be not inconsistent nor give rise to uncertainty. (see [185] of [2021] FWCFB 4144) |
33.1— Journalists stream —casual rates of pay |
General term - not inconsistent (at [179] and [185] of [2021] FWCFB 4144) |
No variation necessary |
This provision provides ‘general terms and conditions of employment of casual employees’ which the FWC Full Bench held (in priority awards) to be not inconsistent nor give rise to uncertainty. (see [185] of [2021] FWCFB 4144) |
33.2— Journalists stream —minimum payment |
Not inconsistent (at [163] of [2021] FWCFB 4144) |
No variation necessary |
FWC held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [163] |
33.3— Journalists stream —overtime for casuals |
General term - not inconsistent (at [179] and [185] of [2021] FWCFB 4144) |
No variation necessary |
FWC held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [185] |
37— Journalists stream —casuals exclude from notice of termination |
Not a relevant term |
No variation necessary |
|
49— Journalists stream —annual leave - casuals |
Not inconsistent |
No variation necessary |
This provision provides ‘general terms and conditions of employment of casual employees’ which the FWC Full Bench held (in priority awards) to be not inconsistent nor give rise to uncertainty. (see [185] of [2021] FWCFB 4144) |
60(a)—Actors Stream – all on casual basis |
Not inconsistent |
No variation necessary |
|
74.1—Radio performances – rates of pay include casual loading |
General term - not inconsistent (at [179] and [185] of [2021] FWCFB 4144) |
No variation necessary |
This provision provides ‘general terms and conditions of employment of casual employees’ which the FWC Full Bench held (in priority awards) to be not inconsistent nor give rise to uncertainty. (see [185] of [2021] FWCFB 4144) |
80.1 & 80.2—recreation leave payments |
Not inconsistent |
No variation necessary |
|
86.2—rates are inclusive of casual loadings, leave etc |
Not inconsistent |
No variation necessary |
|
No casual conversion clause |
Add reference to NES casual conversion provisions pursuant to s 157(1) subject to confirmation that NES provisions apply to persons covered by award |
Insert new subclause in clause 10.10 as follows: 10.10 Offers and requests for casual conversion Offers and requests for conversion from casual employment to full-time or part-time employment are provided for in the NES. NOTE: Disputes about offers and requests for casual conversion under the NES are to be dealt with under clause 9—Dispute resolution. |
|
Australian Bureau of Statistics (Interviewers) Enterprise Award 2016 MA000143 | |||
Clause |
Provisional view |
Action |
Notes |
5.1—types of employment |
Not inconsistent |
No variation necessary |
|
5.5(a)—definition of casual employee |
‘Engaged as a casual’ definition – not consistent – relevant uncertainty or difficulty exists (see [69]-[70] of [2021] FWCFB 4144) Replace with reference to s.15A(1) to make consistent or operate effectively (see [105], [106], [110], [111] of [2021] FWCFB 4144) |
Delete clause 5.5(a). Insert new definition of ‘casual employee’ in Schedule A—Definitions and interpretation as follows: casual employee has the meaning given by section 15A of the Act. |
|
5.5(b)—casuals excluded from certain provisions |
Not a relevant term |
No variation necessary |
|
5.5(c) & (d)—casual loading |
Not inconsistent (at [176] and [178] of [2021] FWCFB 4144) |
No variation necessary |
FWC held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [178] |
No casual conversion clause |
Add reference to NES casual conversion provisions pursuant to s 157(1) subject to confirmation that NES provisions apply to persons covered by award |
Insert new subclause in clause 5.6 as follows: 5.6 Offers and requests for casual conversion Offers and requests for conversion from casual employment to full-time or part-time employment are provided for in the NES. NOTE: Disputes about offers and requests for casual conversion under the NES are to be dealt with under clause 19—Dispute resolution. |
|
16.1—leave without pay – casual interviewers |
Not inconsistent |
No variation required. |
|
Australian Capital Territory Public Sector Enterprise Award 2016 MA000146 | |||
Clause |
Provisional view |
Action |
Notes |
6.5(a) and Schedule E - definition of casual employee |
6.5(a) and Sched E definitions – not consistent – restricts s.15A casual employment definition – restriction may be preserved provided they operate upon a definition that is consistent with s.15A (see [98] of Group 2 Statement [2021] FWCFB 4928) ‘Paid by hour/engaged by hour’ definition - not consistent (see [81]-[84] of [2021] FWCFB 4144) Replace with reference to s.15A(1) to make consistent or operate effectively (see [105], [106], [110], [111] of [2021] FWCFB 4144) |
Delete current ‘casual employee’ definition in Schedule E—Definitions. Insert new definition of ‘casual employee’ in Schedule E—Definitions as follows: casual employee has the meaning given by section 15A of the Act. Amend 6.5(a) as follows: 6.5(a) A casual employee |
|
6.5(b)—hourly rate |
General term - not inconsistent (at [179] and [185] of [2021] FWCFB 4144) |
No variation necessary |
This provision provides ‘general terms and conditions of employment of casual employees’ which the FWC Full Bench held (in priority awards) to be not inconsistent nor give rise to uncertainty. (see [185] of [2021] FWCFB 4144) |
6.5(c)—minimum engagement |
Not inconsistent (at [163] of [2021] FWCFB 4144) |
No variation necessary |
FWC held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [163] |
6.5(d)—casual loading |
Not inconsistent (at [176] and [178] of [2021] FWCFB 4144) |
No variation necessary |
FWC held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [178] |
6.5(e)—casuals excluded from certain provisions |
Not a relevant term |
No variation necessary |
|
No casual conversion clause |
Add reference to NES casual conversion provisions pursuant to s 157(1) subject to confirmation that NES provisions apply to persons covered by award |
Insert new subclause in clause 6.6 as follows: 6.6 Offers and requests for casual conversion Offers and requests for conversion from casual employment to full-time or part-time employment are provided for in the NES. NOTE: Disputes about offers and requests for casual conversion under the NES are to be dealt with under clause 27—Dispute resolution. |
|
8.3(a)—casual excluded from shiftworker definition |
Not a relevant term |
No variation necessary |
|
12.3(h)—allowances for casuals |
General term - not inconsistent (at [179] and [185] of [2021] FWCFB 4144) |
No variation necessary |
This provision provides ‘general terms and conditions of employment of casual employees’ which the FWC Full Bench held (in priority awards) to be not inconsistent nor give rise to uncertainty. (see [185] of [2021] FWCFB 4144) |
16.3(c)—overtime for casuals |
General term - not inconsistent (at [179] and [185] of [2021] FWCFB 4144) |
No variation necessary |
FWC held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [185] |
16.5(c) and 16.6(c)—overtime for casual shiftworkers |
General term - not inconsistent (at [179] and [185] of [2021] FWCFB 4144) |
No variation necessary |
FWC held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [185] |
16.8(b)—casuals excluded from rest break after overtime |
Not a relevant term |
No variation required. |
|
16.8(e)—defer commencement of subsequent shift for causals |
General term - not inconsistent (at [179] and [185] of [2021] FWCFB 4144) |
No variation necessary |
This provision provides ‘general terms and conditions of employment of casual employees’ which the FWC Full Bench held (in priority awards) to be not inconsistent nor give rise to uncertainty. (see [185] of [2021] FWCFB 4144) |
17—casuals excluded from annual leave |
Not a relevant term |
No variation necessary |
|
18.5—casuals excluded from additional compassionate leave day |
Not a relevant term |
No variation necessary |
|
19.8(b)—returning after parental leave |
General term - not inconsistent (at [179] and [185] of [2021] FWCFB 4144) |
No variation necessary |
This provision provides ‘general terms and conditions of employment of casual employees’ which the FWC Full Bench held (in priority awards) to be not inconsistent nor give rise to uncertainty. (see [185] of [2021] FWCFB 4144) |
21—casuals excluded from community service leave |
Not a relevant term |
No variation necessary |
|
25.2—casuals excluded from redundancy |
Not a relevant term |
No variation necessary |
|
F.2.6(b)(v) – casuals excluded from redundancy payments for Correctional Officers |
Not a relevant term |
No variation necessary |
|
F.3.2 – casual editors – hourly pay |
General term - not inconsistent (at [179] and [185] of [2021] FWCFB 4144) |
No variation necessary |
This provision provides ‘general terms and conditions of employment of casual employees’ which the FWC Full Bench held (in priority awards) to be not inconsistent nor give rise to uncertainty. (see [185] of [2021] FWCFB 4144) |
Australian Federal Police Enterprise Award 2016 MA000142 | |||
Clause |
Provisional view |
Action |
Notes |
5.5—requirement to inform at engagement (general) |
Not inconsistent (at [120]-[121] of [2021] FWCFB 4144) |
No variation necessary |
Must inform if probation applies and period if applicable. |
5.8(a)—definition of casual |
Definition element not consistent but requirement for payment of loading should be retained. Replace with reference to s.15A(1) to make consistent or operate effectively (see [105], [106], [110], [111] of [2021] FWCFB 4144) |
Insert new definition of ‘casual employee’ in Schedule E—Definitions as follows: casual employee has the meaning given by section 15A of the Act. Amend 5.8(a) as follows: “5.8 Casual employment (a) |
|
5.8(a)—casual loading |
Not inconsistent (at [176] and [178] of [2021] FWCFB 4144) |
No variation necessary |
FWC held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [178] |
5.8(b)—exclusions applying to casuals |
Not a relevant term |
No variation necessary |
|
5.8(c)—minimum payment |
Not inconsistent (at [163] of [2021] FWCFB 4144) |
No variation necessary |
FWC held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [163] |
5.8(d) and 5.8(e)—maximum hours for casuals within 12 month period |
Not inconsistent (at [163] of [2021] FWCFB 4144) |
No variation necessary |
FWC held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [163] |
5.9—fixed term employment |
Fixed term or maximum term employment does not fall within the definition of s.15A of the Act (at [136]-[139] of [2021] FWCFB 4144) |
No variation necessary |
|
13.2—shiftwork for casuals |
General term- not inconsistent (at [179] and [185] of [2021] FWCFB 4144) |
No variation necessary |
FWC held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [185] |
14.4—overtime for casuals |
General term - not inconsistent (at [179] and [185] of [2021] FWCFB 4144) |
No variation necessary |
FWC held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [185] |
15.1—casuals excluded from annual leave |
Not a relevant term |
No variation necessary |
|
16.9—casuals excluded from additional paid compassionate leave |
Not a relevant term |
No variation necessary |
|
18.2—casuals excluded from community service leave |
Not a relevant term |
No variation necessary |
|
E.5.3—casual loadings disregarded in calculating pay reduction for employee becoming trainee |
General term - not inconsistent (at [179] and [185] of [2021] FWCFB 4144) |
No variation necessary |
This provision provides ‘general terms and conditions of employment of casual employees’ which the FWC Full Bench held (in priority awards) to be not inconsistent nor give rise to uncertainty. (see [185] of [2021] FWCFB 4144) |
No casual conversion clause |
Add reference to NES casual conversion provisions pursuant to s 157(1) subject to confirmation that NES provisions apply to persons covered by award |
Insert new clause 5.10 as follows: 5.10 Offers and requests for casual conversion Offers and requests for conversion from casual employment to full-time or part-time employment are provided for in the NES. NOTE: Disputes about offers and requests for casual conversion under the NES are to be dealt with under clause 24—Dispute resolution. |
|
Australian Government Industry Award 2016 MA000153 | |||
Clause |
Provisional view |
Action |
Notes |
9.2 – requirement to inform at engagement |
Not inconsistent (at [120]-[121] of [2021] FWCFB 4144) |
No variation necessary |
|
9.3—definition of full-time employee |
Residual definition of full-time employee – not a relevant term (at ‘134] and [135] of [2021] FWCFB 4144) |
No variation necessary |
|
9.4(c)—conversion to part-time |
Clause on its face applies to casual employees – inconsistent with NES casual conversion provisions – modify clause so that inapplicable to casuals |
Amend clause 9.4(c) as follows: (c) Proposals for part-time work may be initiated by the employer for operational reasons or by an employee for personal reasons. An employee engaged on a full-time basis will not be converted to a part-time basis as set out in this clause without the employee’s written agreement. This subclause does not apply to casual employees. |
|
9.5(a)—definition of casual employee |
‘Engaged as a casual’ definition – not consistent – relevant uncertainty or difficulty exists (see [69]-[70] of [2021] FWCFB 4144) Replace with reference to s.15A(1) to make consistent or operate effectively (see [105], [106], [110], [111] of [2021] FWCFB 4144) |
Delete clause 9.5(a). Insert new definition of ‘casual employee’ in clause 2—Definitions and interpretation, as follows: casual employee has the meaning given by section 15A of the Act. |
|
9.5(b)—hourly rate |
General term - not inconsistent (at [179] and [185] of [2021] FWCFB 4144) |
No variation necessary |
This provision provides ‘general terms and conditions of employment of casual employees’ which the FWC Full Bench held (in priority awards) to be not inconsistent nor give rise to uncertainty. (see [185] of [2021] FWCFB 4144) |
9.5(c)—casual loading |
Not inconsistent (at [176] and [178] of [2021] FWCFB 4144) |
No variation necessary |
FWC held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [178] |
No casual conversion clause |
Add reference to NES casual conversion provisions pursuant to s 157(1) subject to confirmation that NES provisions apply to persons covered by award |
Insert new clause 9.6 as follows: 9.6 Offers and requests for casual conversion Offers and requests for conversion from casual employment to full-time or part-time employment are provided for in the NES. NOTE: Disputes about offers and requests for casual conversion under the NES are to be dealt with under clause 8—Dispute resolution. |
|
11.4(c)—excludes casuals from redundancy provisions |
Not a relevant term |
No variation necessary |
|
18.2—penalty rates for casuals (shiftworkers) |
General term- not inconsistent (at [179] and [185] of [2021] FWCFB 4144) |
No variation necessary |
FWC held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [185] |
19.6—overtime for casuals (no loading payable) |
General term - not inconsistent (at [179] and [185] of [2021] FWCFB 4144) |
No variation necessary |
FWC held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [185] |
19.8(c)—overtime for casuals |
General term - not inconsistent (at [179] and [185] of [2021] FWCFB 4144) |
No variation necessary |
FWC held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [185] |
19.9(c)—overtime for casuals (shiftworkers) |
General term - not inconsistent (at [179] and [185] of [2021] FWCFB 4144) |
No variation necessary |
FWC held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [185] |
20.1—excludes casuals from annual leave |
Not a relevant term |
No variation necessary |
|
21.5—excludes casuals from additional one day paid compassionate leave |
Not a relevant term |
No variation necessary |
|
26.1 & 26.3—leave to deal with family and domestic violence |
General term - not inconsistent (at [179] and [185] of [2021] FWCFB 4144) |
No variation necessary |
This provision provides ‘general terms and conditions of employment of casual employees’ which the FWC Full Bench held (in priority awards) to be not inconsistent nor give rise to uncertainty. (see [185] of [2021] FWCFB 4144) |
J.6—APRA specific conditions—casual employees – hourly rate |
General term - not inconsistent ([179] and [185] of [2021] FWCFB 4144) |
No variation necessary |
This provision provides ‘general terms and conditions of employment of casual employees’ which the FWC Full Bench held (in priority awards) to be not inconsistent nor give rise to uncertainty. (see [185] of [2021] FWCFB 4144) |
K.8—Australian Sports Commission specific conditions—shift work provisions |
General term- not inconsistent (at [179] and [185] of [2021] FWCFB 4144) |
No variation necessary |
FWC held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [185] |
K.15.1 – Australian Sports Commission—casuals excluded from paid maternity leave |
Not a relevant term |
No variation necessary |
|
L.3.1(c) – Civil Aviation Safety Authority – casual definition |
L.3.1(c) – casual definition – not consistent – delete and replace with cross-reference to definition that is consistent with s.15A |
Amend L.3.1(c) as follows:
Casual employment is defined in clause 2.1 of the award. |
|
M.3 – Electorate officers – excludes casual employee provisions |
If a relevant term, no inconsistency or interaction difficulty |
No variation necessary |
|
O.11.2(c)—Special Broadcasting Service Corporation - overtime |
General term - not inconsistent (at [179] and [185] of [2021] FWCFB 4144) |
No variation necessary |
FWC held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [185] |
S.5.3—NTW—casual loading to be disregarded in calculating if trainee’s pay reduced |
General term - not inconsistent (at [179] and [185] of [2021] FWCFB 4144) |
No variation necessary |
This provision provides ‘general terms and conditions of employment of casual employees’ which the FWC Full Bench held (in priority awards) to be not inconsistent nor give rise to uncertainty. (see [185] of [2021] FWCFB 4144) |
Australian Nuclear Science and Technology Organisation (ANSTO) Enterprise Award 2016 MA000144 | |||
Clause |
Provisional view |
Action |
Notes |
6.1(a)—definition of temporary employment |
Not a relevant term. |
No variation necessary |
|
No casual conversion clause |
No casual employment under award, so casual conversion not relevant. |
No variation necessary |
|
6.1(c)—definition of term employment |
Fixed term or maximum term employment does not fall within the definition of s.15A of the Act (at [136]-[139] of [2021] FWCFB 4144) |
No variation necessary |
|
23.3(c)—casual employees excluded from redundancy provisions |
Not a relevant term |
No variation necessary |
|
E.5.3—casual loadings disregarded in calculating pay reduction for employee becoming trainee |
General term - not inconsistent (at [179] and [185] of [2021] FWCFB 4144) |
No variation necessary |
This provision provides ‘general terms and conditions of employment of casual employees’ which the FWC Full Bench held (in priority awards) to be not inconsistent nor give rise to uncertainty. (see [185] of [2021] FWCFB 4144) |
Australian Public Service Enterprise Award 2015 MA000124 | |||
Clause |
Provisional view |
Action |
Notes |
6.1, 6.2—types of employment 6.5-Irregular or intermittent employment 14.2—penalty rate for irregular or intermittent employees 16.1—irregular or intermittent employees excluded from annual leave entitlements 17.5—irregular or intermittent employees excluded from additional paid compassionate leave 19.2 and 19.3—irregular or intermittent employees excluded from community service leave D.5.3(a)—casual loadings disregarded in calculating pay reduction for employee becoming trainee F.2.3—COMCAR employees—minimum payment |
No provisional view |
Further submissions invited. |
|
No casual conversion clause |
Add reference to NES casual conversion provisions pursuant to s 157(1) subject to above and confirmation that NES provisions apply to persons covered by award |
Insert new clause 6.6 as follows: 6.6 Offers and requests for casual conversion Offers and requests for conversion from casual employment to full-time or part-time employment are provided for in the NES. NOTE: Disputes about offers and requests for casual conversion under the NES are to be dealt with under clause 26—Dispute resolution. |
|
Australia Post Enterprise Award 2015 MA000137 | |||
Clause |
Provisional view |
Action |
Notes |
14.2—requirement to inform at engagement (general) |
Not inconsistent (at [120]-[121] of [2021] FWCFB 4144) |
No variation necessary |
|
16.1(a)—definition of part-time employee |
Not a relevant term |
No variation necessary |
|
17.1—definition of casual employee |
‘Paid by hour’ definition - not consistent (see [81]-[84] of [2021] FWCFB 4144) ‘Residual category’ definition - possible interaction difficulties or uncertainty because of differently-expressed casual definitions (see [76]-[77] of [2021] FWCFB 4144) Replace with reference to s.15A(1) to make consistent or operate effectively (see [105], [106], [110], [111] of [2021] FWCFB 4144) |
Delete clause 17.2. Insert new definition of ‘casual employee’ in clause 3—Definitions and interpretation as follows: casual employee has the meaning given by section 15A of the Act. |
|
17.2—casual loading |
Not inconsistent (at [176] and [178] of [2021] FWCFB 4144) |
No variation necessary |
FWC held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [178] |
17.3—penalty rate for casuals |
General term- not inconsistent (at [179] and [185] of [2021] FWCFB 4144) |
No variation necessary |
FWC held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [185] |
18—fixed term employment |
Fixed term or maximum term employment does not fall within the definition of s.15A of the Act (at [136]-[139] of [2021] FWCFB 4144) |
No variation necessary |
|
23.4(d)—pay progression for casuals and fixed termers |
General term - not inconsistent (at [179] and [185] of [2021] FWCFB 4144) |
No variation necessary |
This provision provides ‘general terms and conditions of employment of casual employees’ which the FWC Full Bench held (in priority awards) to be not inconsistent nor give rise to uncertainty. (see [185] of [2021] FWCFB 4144) |
31.2(d)—overtime for casuals |
General term - not inconsistent (at [179] and [185] of [2021] FWCFB 4144) |
No variation necessary |
FWC held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [185] |
34.1—casual employees excluded from annual leave |
Not a relevant term |
No variation necessary |
|
35.1 and 35.16—unpaid personal and compassionate leave for casuals |
General term - not inconsistent (at [179] and [185] of [2021] FWCFB 4144) |
No variation necessary |
This provision provides ‘general terms and conditions of employment of casual employees’ which the FWC Full Bench held (in priority awards) to be not inconsistent nor give rise to uncertainty. (see [185] of [2021] FWCFB 4144) |
B.5.3(a)—casual loadings disregarded in calculating pay reduction for employee becoming trainee |
General term - not inconsistent (at [179] and [185] of [2021] FWCFB 4144) |
No variation necessary |
This provision provides ‘general terms and conditions of employment of casual employees’ which the FWC Full Bench held (in priority awards) to be not inconsistent nor give rise to uncertainty. (see [185] of [2021] FWCFB 4144) |
No casual conversion clause |
Add reference to NES casual conversion provisions pursuant to s 157(1) subject to confirmation that NES provisions apply to persons covered by award |
Insert new clause 17.4 as follows: 17.4 Offers and requests for casual conversion Offers and requests for conversion from casual employment to full-time or part-time employment are provided for in the NES. NOTE: Disputes about offers and requests for casual conversion under the NES are to be dealt with under clause 12—Dispute resolution. |
|
Christmas Island Administration Enterprise Award 2016 MA000149 | |||
Clause |
Provisional view |
Action |
Notes |
6.5(a)—definition of casual employee |
‘Paid by hour’ definition - not consistent (see [81]-[84] of [2021] FWCFB 4144). Restrictions on use of casual employment may be preserved provided they operate upon a definition of casual employment that is consistent with s.15A. Replace with reference to s.15A(1) to make consistent or operate effectively (see [105], [106], [110], [111] of [2021] FWCFB 4144) |
Vary clause 6.5(a) to provide: A casual employee Insert new definition of ‘casual employee’ in clause F.1.1 as follows: casual employee has the meaning given by section 15A of the Act. |
|
6.5(b)—exclusions applying to casual employees |
Not a relevant term |
No variation necessary |
|
6.6—casual loading |
Not inconsistent (at [176] and [178] of [2021] FWCFB 4144) |
No variation necessary |
FWC held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [178] |
11.6—casuals excluded from district allowance |
Not a relevant term |
No variation necessary |
|
11.8(a)—casuals excluded from annual airfare allowance |
Not a relevant term |
No variation necessary |
|
12.1(d)—super for casuals |
General term - not inconsistent (at [179] and [185] of [2021] FWCFB 4144) |
No variation necessary |
This provision provides ‘general terms and conditions of employment of casual employees’ which the FWC Full Bench held (in priority awards) to be not inconsistent nor give rise to uncertainty. (see [185] of [2021] FWCFB 4144) |
13.1—penalty rates for casuals |
General term- not inconsistent (at [179] and [185] of [2021] FWCFB 4144) |
No variation necessary |
FWC held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [185] |
14.1 and 14.3—overtime for employees other than casuals |
Not a relevant term |
No variation necessary |
|
14.2—overtime for casual employees who are not shiftworkers |
General term - not inconsistent (at [179] and [185] of [2021] FWCFB 4144) |
No variation necessary |
FWC held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [185] |
14.4—overtime for casual shiftworkers |
General term - not inconsistent (at [179] and [185] of [2021] FWCFB 4144) |
No variation necessary |
FWC held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [185] |
16—casuals excluded from personal/carer’s and compassionate leave |
Not a relevant term |
No variation necessary |
|
17.2—casuals excluded paid leave on public holidays |
Not a relevant term |
No variation necessary |
|
18.2 and 18.3—casuals excluded from community service leave entitlements |
Not a relevant term |
No variation necessary |
|
19.1—casual employees excluded from entitlements in Maternity Leave (Commonwealth Employees) Act 1973 |
Not a relevant term |
No variation necessary |
|
19.6 and 19.7—parental leave for eligible casual employees |
Reference to ‘regular and systematic employee’ to be replaced with ‘regular casual employee’. Definition of ‘regular casual employee’ which refers to definition in s.12 of the Act to be added to Schedule F. Redundant date criterion in clause 19.7 to be removed. |
Vary clause 19.6 to provide: 19.6 An eligible casual employee means: (a) a regular casual employee who has been employed for at least 12 month; and (b) who has, but for the pregnancy or the decision to adopt, a reasonable expectation of remaining a regular casual employee. (c) The rights of an employer in relation to engagement and re-engagement of casual employees are not affected, other than in accordance with this clause.” Add definition of ‘regular casual employee’ in Schedule F. Vary clause 19.7 to provide: 19.7 An eligible casual employee |
|
20.12—termination of casuals |
General term - not inconsistent (at [179] and [185] of [2021] FWCFB 4144) |
No variation necessary |
This provision provides ‘general terms and conditions of employment of casual employees’ which the FWC Full Bench held (in priority awards) to be not inconsistent nor give rise to uncertainty. (see [185] of [2021] FWCFB 4144) |
No casual conversion clause |
Add reference to NES casual conversion provisions pursuant to s 157(1) subject to confirmation that NES provisions apply to persons covered by award |
Insert new clause 6.7 as follows: 6.7 Offers and requests for casual conversion Offers and requests for conversion from casual employment to full-time or part-time employment are provided for in the NES. NOTE: Disputes about offers and requests for casual conversion under the NES are to be dealt with under clause 23—Dispute resolution. |
|
B.5, B.6, B.7 and B.8—Summary of hourly rates |
General term - not inconsistent ([179] and [185] of [2021] FWCFB 4144) |
No variation necessary |
|
E.5.3(a)—casual loadings disregarded in calculating pay reduction for employee becoming trainee |
General term - not inconsistent (at [179] and [185] of [2021] FWCFB 4144) |
No variation necessary |
This provision provides ‘general terms and conditions of employment of casual employees’ which the FWC Full Bench held (in priority awards) to be not inconsistent nor give rise to uncertainty. (see [185] of [2021] FWCFB 4144) |
F.1.1—definition of casual ordinary hourly rate |
General term - not inconsistent (at [179] and [185] of [2021] FWCFB 4144) |
No variation necessary |
This provision provides ‘general terms and conditions of employment of casual employees’ which the FWC Full Bench held (in priority awards) to be not inconsistent nor give rise to uncertainty. (see [185] of [2021] FWCFB 4144) |
Chullora Printing Award 2015 MA000127 | |||
Clause |
Provisional view |
Action |
Notes |
10.2(a)—definition of casual employee |
‘Engaged as a casual’ definition – not consistent – relevant uncertainty or difficulty exists (see [69]-[70] of [2021] FWCFB 4144) Replace with reference to s.15A(1) to make consistent or operate effectively (see [105], [106], [110], [111] of [2021] FWCFB 4144) |
Delete clause 10.2(a). Insert new definition of ‘casual employee’ in clause 3—Definitions and interpretation as follows: casual employee has the meaning given by section 15A of the Act. |
|
No casual conversion clause |
Add reference to NES casual conversion provisions pursuant to s 157(1) |
Insert new clause 10.3 as follows: 10.3 Offers and requests for casual conversion Offers and requests for conversion from casual employment to full-time or part-time employment are provided for in the NES. NOTE: Disputes about offers and requests for casual conversion under the NES are to be dealt with under clause 9—Dispute resolution. |
|
10.2(b)—minimum payment |
Not inconsistent (at [163] of [2021] FWCFB 4144) |
No variation necessary |
FWC held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [163] |
12.2—redundancy entitlement for certain casuals |
General term - not inconsistent (at [179] and [185] of [2021] FWCFB 4144) |
No variation necessary |
This provision provides ‘general terms and conditions of employment of casual employees’ which the FWC Full Bench held (in priority awards) to be not inconsistent nor give rise to uncertainty. (see [185] of [2021] FWCFB 4144) |
14.3(a)—ordinary time rate for casuals |
General term - not inconsistent (at [179] and [185] of [2021] FWCFB 4144) |
No variation necessary |
This provision provides ‘general terms and conditions of employment of casual employees’ which the FWC Full Bench held (in priority awards) to be not inconsistent nor give rise to uncertainty. (see [185] of [2021] FWCFB 4144) |
14.3(b)—casual loading |
Not inconsistent (at [176] and [178] of [2021] FWCFB 4144) |
No variation necessary |
FWC held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [178] |
14.3(c)—overtime for casuals |
General term - not inconsistent (at [179] and [185] of [2021] FWCFB 4144) |
No variation necessary |
FWC held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [185] |
14.3(d)—overtime and penalty rates for casual publishing hand at Sunday newspaper |
General term - not inconsistent (at [179] and [185] of [2021] FWCFB 4144) |
No variation necessary |
FWC held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [185] |
16..3—casual pay period |
Not inconsistent (at [163] of [2021] FWCFB 4144) |
No variation necessary |
FWC held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [163] |
21.1(a)—penalty rates for casuals |
General term- not inconsistent (at [179] and [185] of [2021] FWCFB 4144) |
No variation necessary |
FWC held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [185] |
22.5—casual terms to apply to employees who volunteer to work an additional shift in another department |
General term - not inconsistent (at [179] and [185] of [2021] FWCFB 4144) |
No variation necessary |
This provision provides ‘general terms and conditions of employment of casual employees’ which the FWC Full Bench held (in priority awards) to be not inconsistent nor give rise to uncertainty. (see [185] of [2021] FWCFB 4144) |
23.7—annual leave for casuals working 1 or more shifts a week |
General term - not inconsistent (at [179] and [185] of [2021] FWCFB 4144) |
No variation necessary |
This provision provides ‘general terms and conditions of employment of casual employees’ which the FWC Full Bench held (in priority awards) to be not inconsistent nor give rise to uncertainty. (see [185] of [2021] FWCFB 4144) |
C.5.3(a)—casual loadings disregarded in calculating pay reduction for employee becoming trainee |
General term - not inconsistent (at [179] and [185] of [2021] FWCFB 4144) |
No variation necessary |
This provision provides ‘general terms and conditions of employment of casual employees’ which the FWC Full Bench held (in priority awards) to be not inconsistent nor give rise to uncertainty. (see [185] of [2021] FWCFB 4144) |
CSIRO Enterprise Award 2016 MA000148 | |||
Clause |
Provisional view |
Action |
Notes |
6.3—appointment to full-time or part-time work |
Not consistent |
Amend clause 6.3 as follows: 6.3 Employees engaged in one of the categories set out in clause 6.1(a) or (c) may be appointed to work full-time or part-time. |
|
6.4—requirement to inform at engagement |
6.4(a), (c), (d) not inconsistent (at [120]-[121] of [2021] FWCFB 4144) 6.4(b) - not inconsistent – relevant uncertainty or difficulty exists relating to interaction between award clause and s.15A |
Amend 6.4(b) as follows: (b) if the person has been appointed as an indefinite or specified term employee, whether a probationary period applies and, if so, the expected duration of the period and advice in relation to the maximum duration of the period. |
|
6.5(d) – proposals for part-time work |
Clarify that clause does not apply to casual employees so that not inconsistent with NES casual conversion clause |
Amend 6.5(d) as follows: (d) Employee initiated proposals
|
|
6.6(a)—definition of casual employee |
‘Paid by hour’ definition - not consistent (see [81]-[84] of [2021] FWCFB 4144) Replace with reference to s.15A(1) to make consistent or operate effectively (see [105], [106], [110], [111] of [2021] FWCFB 4144) |
Proposed modification to clause 6.6(a): (a) A casual employee Insert new definition of ‘casual employee’ in Schedule F—Definitions as follows: casual employee has the meaning given by section 15A of the Act. |
|
6.6(b) and 6.6(c)—casual loading |
Not inconsistent (at [176] and [178] of [2021] FWCFB 4144) |
No variation necessary |
FWC held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [178] |
6.6(d)—exclusions applying to casuals |
Not a relevant term |
No variation necessary |
|
6.6(e)—minimum payment |
Not inconsistent (at [163] of [2021] FWCFB 4144) |
No variation necessary |
FWC held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [163] |
6.6(f)—termination of casual employment |
General term - not inconsistent (at [179] and [185] of [2021] FWCFB 4144) |
No variation necessary |
This provision provides ‘general terms and conditions of employment of casual employees’ which the FWC Full Bench held (in priority awards) to be not inconsistent nor give rise to uncertainty. (see [185] of [2021] FWCFB 4144) |
No casual conversion clause |
Add reference to NES casual conversion provisions pursuant to s 157(1) subject to confirmation that NES provisions apply to persons covered by award |
Insert new clause 6.7 as follows: 6.7 Offers and requests for casual conversion Offers and requests for conversion from casual employment to full-time or part-time employment are provided for in the NES. NOTE: Disputes about offers and requests for casual conversion under the NES are to be dealt with under clause 24—Dispute resolution. |
|
8.5(c)(iii)—casuals excluded from flextime |
Not a relevant term |
No variation necessary |
|
10.1—hourly rate for employees other than casuals |
Not a relevant term |
No variation necessary |
|
14.3—penalty rates for casuals |
General term- not inconsistent (at [179] and [185] of [2021] FWCFB 4144) |
No variation necessary |
FWC held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [185] |
15.6 and 15.7—overtime for casuals |
General term - not inconsistent (at [179] and [185] of [2021] FWCFB 4144) |
No variation necessary |
FWC held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [185] |
16.1—casuals excluded from annual leave |
Not a relevant term |
No variation necessary |
|
22.2—casuals excluded from redundancy entitlements |
Not a relevant term |
No variation necessary |
|
E.5.3(a)—National Training Wage - casual loadings disregarded |
General term - not inconsistent (at [179] and [185] of [2021] FWCFB 4144) |
No variation necessary |
This provision provides ‘general terms and conditions of employment of casual employees’ which the FWC Full Bench held (in priority awards) to be not inconsistent nor give rise to uncertainty. (see [185] of [2021] FWCFB 4144) |
GrainCorp Country Operations Award 2015 MA000138 | |||
Clause |
Provisional view |
Action |
Notes |
10.3(i)—definition of casual employee |
‘Residual category’ definition - possible interaction difficulties or uncertainty because of differently-expressed casual definitions (see [76]-[77] of [2021] FWCFB 4144) Replace with reference to s.15A(1) to make consistent or operate effectively (see [105], [106], [110], [111] of [2021] FWCFB 4144) |
Delete clause 10.3(i). Insert new definition of ‘casual employee’ in clause 3.1—Definitions as follows: casual employee has the meaning given by section 15A of the Act. |
|
10.4(a)—definition of casual and minimum engagement |
‘Paid by hour’ definition - not consistent (see [81]-[84] of [2021] FWCFB 4144) Replace with reference to s.15A(1) to make consistent or operate effectively (see [105], [106], [110], [111] of [2021] FWCFB 4144) Minimum engagement - not inconsistent (at [163] of [2021] FWCFB 4144) |
Proposed clause 10.4(a): (a) A casual employee Insert new definition of ‘casual employee’ in clause 3.1—Definitions as follows: casual employee has the meaning given by section 15A of the Act. |
|
10.4(b)—casual loading |
Not inconsistent (at [176] and [178] of [2021] FWCFB 4144) |
No variation necessary |
FWC held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [178] |
No casual conversion clause |
Add reference to NES casual conversion provisions pursuant to s 157(1) |
Insert new clause 10.5 as follows: 10.5 Offers and requests for casual conversion Offers and requests for conversion from casual employment to full-time or part-time employment are provided for in the NES. NOTE: Disputes about offers and requests for casual conversion under the NES are to be dealt with under clause 9—Dispute resolution. |
|
19.1(d)—overtime for casuals |
General term - not inconsistent (at [179] and [185] of [2021] FWCFB 4144) |
No variation necessary |
FWC held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [185] |
Health Professionals, Medical Scientists and Support Services (Victoria) State Reference Public Sector Modern Award 2018 MA000157 | |||
Clause |
Provisional view |
Action |
Notes |
10.1(b)—requirement to inform at engagement (general) |
Not inconsistent (at [120]-[121] of [2021] FWCFB 4144) |
No variation necessary |
|
10.4(a)—definition of casual employee and maximum ordinary hours |
‘Engaged as a casual’ definition – not consistent – relevant uncertainty or difficulty exists (see [69]-[70] of [2021] FWCFB 4144) ‘Paid by hour’ definition - not consistent (see [81]-[84] of [2021] FWCFB 4144) ‘Residual category’ definition - possible interaction difficulties or uncertainty because of differently-expressed casual definitions (see [76]-[77] of [2021] FWCFB 4144) The remainder of the clause sets the maximum ordinary hours per week at 38 hours. Retain this part of clause. Replace with reference to s.15A(1) to make consistent or operate effectively (see [105], [106], [110], [111] of [2021] FWCFB 4144) |
Proposed clause 10.4(a): (a) A casual employee Insert new definition of ‘casual employee’ in clause 3—Definitions and interpretation as follows: casual employee has the meaning given by section 15A of the Act. |
|
10.4(b)—casual loading |
Not inconsistent (at [176] and [178] of [2021] FWCFB 4144) |
No variation necessary |
FWC held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [178] |
10.4(c)—minimum engagement |
Not inconsistent (at [163] of [2021] FWCFB 4144) |
No variation necessary |
FWC held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [163] |
10.4(d)—penalty rates for casuals |
General term- not inconsistent (at [179] and [185] of [2021] FWCFB 4144) |
No variation necessary |
FWC held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [185] |
No casual conversion clause |
Add reference to NES casual conversion provisions pursuant to s 157(1) subject to confirmation that NES provisions apply to persons covered by award |
Insert new clause 10.5 as follows: 10.5 Offers and requests for casual conversion Offers and requests for conversion from casual employment to full-time or part-time employment are provided for in the NES. NOTE: Disputes about offers and requests for casual conversion under the NES are to be dealt with under clause 9—Dispute resolution. |
|
20.6—casuals excluded from rostering clause |
Not a relevant term |
No variation necessary |
|
23.7(b)—casuals excluded from provision re rest period after overtime |
General term - not inconsistent (at [179] and [185] of [2021] FWCFB 4144) |
No variation necessary |
This provision provides ‘general terms and conditions of employment of casual employees’ which the FWC Full Bench held (in priority awards) to be not inconsistent nor give rise to uncertainty. (see [185] of [2021] FWCFB 4144) |
30.1—casuals excluded from paid parental leave |
Not a relevant term |
No variation necessary |
|
E.5.3(a)— National Training Wage - casual loadings disregarded |
General term - not inconsistent (at [179] and [185] of [2021] FWCFB 4144) |
No variation necessary |
This provision provides ‘general terms and conditions of employment of casual employees’ which the FWC Full Bench held (in priority awards) to be not inconsistent nor give rise to uncertainty. (see [185] of [2021] FWCFB 4144) |
Metropolitan Newspapers (South Australia and Tasmania) Printing Award 2015 MA000130 | |||
Clause |
Provisional view |
Action |
Notes |
11.1—weekly employment |
Possible inconsistency and interaction difficulty -delete and replace. |
Delete clause 11.1 and replace with: 11.1 An employee, other than a casual employee, will be engaged on a weekly basis. Weekly employment may include part-time employment.” |
|
13.1—definition of casual employee |
‘Residual category’ definition - possible interaction difficulties or uncertainty because of differently-expressed casual definitions (see [76]-[77] of [2021] FWCFB 4144) Replace with reference to s.15A(1) to make consistent or operate effectively (see [105], [106], [110], [111] of [2021] FWCFB 4144) |
Delete clause 13.1 Insert new definition of ‘casual employee’ in clause 3.1 as follows: casual employee has the meaning given by section 15A of the Act. |
|
13.2—requirement to inform at engagement (general) |
Not inconsistent (at [120]-[121] of [2021] FWCFB 4144) |
No variation necessary |
|
13.3—minimum engagement and payment |
Not inconsistent (at [163] of [2021] FWCFB 4144) |
No variation necessary |
FWC held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [163] |
13.4—casual loading – other than casual publishing employee |
Not inconsistent (at [176] and [178] of [2021] FWCFB 4144) |
No variation necessary |
FWC held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [178] |
13.5—shiftwork – other than casual publishing employee |
General term - not inconsistent (at [179] and [185] of [2021] FWCFB 4144) |
No variation necessary |
FWC held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [185] |
13.6—hourly rate and casual loading |
General terms - not inconsistent (at [179] and [185] of [2021] FWCFB 4144) |
No variation necessary |
FWC held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [185] |
13.7—overtime and penalty rates included in rate - casual publishing employees |
General term- not inconsistent (at [179] and [185] of [2021] FWCFB 4144) |
No variation necessary |
FWC held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [185] |
No casual conversion clause |
Add reference to NES casual conversion provisions pursuant to s 157(1) |
Insert new clause 13.8 as follows: 13.8 Offers and requests for casual conversion Offers and requests for conversion from casual employment to full-time or part-time employment are provided for in the NES. NOTE: Disputes about offers and requests for casual conversion under the NES are to be dealt with under clause 9—Dispute resolution. |
|
18.2(a), 18.2(d) and 18.2(e)—redundancy entitlement for certain casuals |
General term - not inconsistent (at [179] and [185] of [2021] FWCFB 4144) |
No variation necessary |
This provision provides ‘general terms and conditions of employment of casual employees’ which the FWC Full Bench held (in priority awards) to be not inconsistent nor give rise to uncertainty. (see [185] of [2021] FWCFB 4144) |
E.5.3(a)— National Training Wage - casual loadings disregarded |
General term - not inconsistent (at [179] and [185] of [2021] FWCFB 4144) |
No variation necessary |
This provision provides ‘general terms and conditions of employment of casual employees’ which the FWC Full Bench held (in priority awards) to be not inconsistent nor give rise to uncertainty. (see [185] of [2021] FWCFB 4144) |
Northern Territory News Award 2015 MA000129 | |||
Clause |
Provisional view |
Action |
Notes |
13.1 (except last sentence sentence) - |
‘Engaged as a casual’ definition – not consistent – relevant uncertainty or difficulty exists (see [69]-[70] of [2021] FWCFB 4144) Replace with reference to s.15A(1) to make consistent or operate effectively (see [105], [106], [110], [111] of [2021] FWCFB 4144) |
Amend the first two sentences of clause 13.1 as follows: 13.1 The employer when engaging a person shall inform them Insert new definition of ‘casual employee’ in clause 3.1 as follows: casual employee has the meaning given by section 15A of the Act. |
|
13.1 (last sentence) & 13.2—casual conversion |
No inconsistency. Retain existing provisions and add reference to NES casual conversion provisions. |
Delete clause 13.2 and the last sentence of clause 13.1. Insert new clauses 13.2 and 13.3 as follows:
13.2 A casual employee, after two weeks of continuous employment as a casual employee, shall become a full-time weekly employee. A casual employee has been continuously employed when he or she has worked the same hours as a full-time weekly employee.” 13.3 Offers and requests for casual conversion Offers and requests for conversion from casual employment to full-time or part-time employment are provided for in the NES. NOTE: Disputes about offers and requests for casual conversion under the NES are to be dealt with under clause 9—Dispute resolution. |
|
13.3 and 13.4—minimum payment |
Not inconsistent (at [163] of [2021] FWCFB 4144) |
No variation necessary. |
FWC held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [163] |
13.5—casual loading |
Not inconsistent (at [176] and [178] of [2021] FWCFB 4144) |
No variation necessary |
FWC held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [178] |
13.6—overtime and penalty rates for casuals |
General term - not inconsistent (at [179] and [185] of [2021] FWCFB 4144) |
No variation necessary |
FWC held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [185] |
16.2(a), 16.2(d) and 16.2(e) —redundancy entitlement for certain casuals |
General term - not inconsistent (at [179] and [185] of [2021] FWCFB 4144) |
No variation necessary |
This provision provides ‘general terms and conditions of employment of casual employees’ which the FWC Full Bench held (in priority awards) to be not inconsistent nor give rise to uncertainty. (see [185] of [2021] FWCFB 4144) |
A.2.3(b)—indicative tasks for a Level 2 employee |
Not inconsistent |
No variation necessary |
|
D.5.3(a)— National Training Wage - casual loadings disregarded |
General term - not inconsistent (at [179] and [185] of [2021] FWCFB 4144) |
No variation necessary |
This provision provides ‘general terms and conditions of employment of casual employees’ which the FWC Full Bench held (in priority awards) to be not inconsistent nor give rise to uncertainty. (see [185] of [2021] FWCFB 4144) |
Northern Territory Public Sector Enterprise Award 2016 MA000151 | |||
Clause |
Provisional view |
Action |
Notes |
6.1—basis of engagement under PSEM Act |
No provisional view |
Invite further submissions |
|
6.2—types of employment |
Not inconsistent |
No variation necessary |
|
6.5(a) —casual hourly rate |
Not inconsistent |
No variation necessary |
|
6.5(b)—casual loading |
Not inconsistent (at [176] and [178] of [2021] FWCFB 4144) |
No variation necessary |
FWC held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [178] |
No casual conversion clause |
Add reference to NES casual conversion provisions pursuant to s 157(1) subject to confirmation that NES provisions apply to persons covered by award |
Insert new clause 6.5(c) as follows: 6.5(c) Offers and requests for casual conversion Offers and requests for conversion from casual employment to full-time or part-time employment are provided for in the NES. NOTE: Disputes about offers and requests for casual conversion under the NES are to be dealt with under clause 26—Dispute resolution. |
|
15.3(c)—overtime for casuals |
General term - not inconsistent (at [179] and [185] of [2021] FWCFB 4144) |
No variation necessary |
This provision provides ‘general terms and conditions of employment of casual employees’ which the FWC Full Bench held (in priority awards) to be not inconsistent nor give rise to uncertainty. (see [185] of [2021] FWCFB 4144) |
15.5(d)—casual shiftworkers |
General term - not inconsistent (at [179] and [185] of [2021] FWCFB 4144) |
No variation necessary |
This provision provides ‘general terms and conditions of employment of casual employees’ which the FWC Full Bench held (in priority awards) to be not inconsistent nor give rise to uncertainty. (see [185] of [2021] FWCFB 4144) |
18.1—annual leave (casuals excluded) |
Not a relevant term |
No variation necessary |
|
19.9—personal/carer’s leave (casuals excluded) |
Not a relevant term |
No variation necessary |
|
20.3—unpaid parental leave |
Not inconsistent (at [163] of [2021] FWCFB 4144) |
No variation necessary |
FWC held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [163] |
21.1—leave to attend industrial proceedings (casuals excluded) |
Not a relevant term |
No variation necessary |
|
I.1.1—relief teacher – definition |
If a relevant term, no inconsistency or interaction difficulty |
No variation necessary |
|
I.4.1—relief teacher – minimum engagement |
Not inconsistent (at [163] of [2021] FWCFB 4144) |
No variation necessary |
FWC held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [163] |
I.4.2—relief teacher – pay rate |
General term - not inconsistent (at [179] and [185] of [2021] FWCFB 4144) |
No variation necessary |
This provision provides ‘general terms and conditions of employment of casual employees’ which the FWC Full Bench held (in priority awards) to be not inconsistent nor give rise to uncertainty. (see [185] of [2021] FWCFB 4144) |
K.5—School-based Admin Officers - casual loading |
Not inconsistent (at [176] and [178] of [2021] FWCFB 4144) |
No variation necessary |
FWC held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [178] |
M.4(a)(iv)—Power and Water - apprentices |
Not inconsistent |
No variation necessary |
|
M.6.1—Power and Water – casual employees |
‘An employee employed as a casual in accordance with clause 6.5 ceases to be a casual employee after being continually employed from more than three weeks’. No inconsistency or interaction difficulty. |
No variation necessary. |
|
M.6.2—Power and Water – one hour’s notice of termination for casuals |
General term - not inconsistent (at [179] and [185] of [2021] FWCFB 4144) |
No variation necessary |
This provision provides ‘general terms and conditions of employment of casual employees’ which the FWC Full Bench held (in priority awards) to be not inconsistent nor give rise to uncertainty. (see [185] of [2021] FWCFB 4144) |
M.14.11—call back (casuals excluded |
Not a relevant term |
No variation necessary |
|
M.15.3—penalty rates— (casuals excluded) |
Not a relevant term |
No variation necessary |
|
Note Printing Australia Award 2016 MA000156 | |||
Clause |
Provisional view |
Action |
Notes |
3.1 & 11.1—definition of casual |
‘Paid by hour’ definition - not consistent (see [81]-[84] of [2021] FWCFB 4144) Replace with reference to s.15A(1) to make consistent or operate effectively (see [105], [106], [110], [111] of [2021] FWCFB 4144) |
Delete current ‘casual worker’ definition in clause 3.1. Delete clause 11.1. Insert new definition of ‘casual employee’ in clause 3.1—Definitions and interpretation, as follows: casual employee has the meaning given by section 15A of the Act. |
|
11.2—requirement to inform at engagement |
Inconsistent – similar to ‘paid by the hour’ type definition |
Amend 11.2 as follows: 11.2 Terms of employment A casual employee shall be informed at the time of engagement that such employment is on a casual |
|
11.3(a) —casual rate of pay |
General term - not inconsistent (at [179] and [185] of [2021] FWCFB 4144) |
No variation necessary |
This provision provides ‘general terms and conditions of employment of casual employees’ which the FWC Full Bench held (in priority awards) to be not inconsistent nor give rise to uncertainty. (see [185] of [2021] FWCFB 4144) |
11.3(b)—penalty rates and overtime for casuals |
General term - not inconsistent (at [179] and [185] of [2021] FWCFB 4144) |
No variation necessary |
FWC held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [185] |
11.4—minimum engagement/payment |
Not inconsistent (at [163] of [2021] FWCFB 4144) |
No variation necessary |
FWC held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [163] |
11.5—caring responsibilities – casuals |
General term - not inconsistent (at [179] and [185] of [2021] FWCFB 4144) |
No variation necessary |
This provision provides ‘general terms and conditions of employment of casual employees’ which the FWC Full Bench held (in priority awards) to be not inconsistent nor give rise to uncertainty. (see [185] of [2021] FWCFB 4144) |
18.9—casuals excluded from redundancy provisions |
Not a relevant term |
No variation necessary |
|
22.1(b)(ii)—stand by for work payment |
General term - not inconsistent (at [179] and [185] of [2021] FWCFB 4144) |
No variation necessary |
This provision provides ‘general terms and conditions of employment of casual employees’ which the FWC Full Bench held (in priority awards) to be not inconsistent nor give rise to uncertainty. (see [185] of [2021] FWCFB 4144) |
30.2—casuals excluded from annual leave provisions |
Not a relevant term |
No variation necessary |
|
31.3—casuals excluded from paid personal leave provisions |
Not a relevant term |
No variation necessary |
|
35.2—casuals excluded from paid public holidays |
Not a relevant term |
No variation necessary |
|
C.5.3—NTW—casual loading disregarded in calculating if suffered pay reduction |
General term - not inconsistent (at [179] and [185] of [2021] FWCFB 4144) |
No variation necessary |
This provision provides ‘general terms and conditions of employment of casual employees’ which the FWC Full Bench held (in priority awards) to be not inconsistent nor give rise to uncertainty. (see [185] of [2021] FWCFB 4144) |
E.1.2—Skills based classification structure |
Not inconsistent |
No variation necessary |
|
Nurses and Midwives (Victoria) State Reference Public Sector Award 2015 MA000125 | |||
Clause |
Provisional view |
Action |
Notes |
10.1—requirement to inform at engagement |
Not inconsistent (at [120]-[121] of [2021] FWCFB 4144) |
No variation necessary |
|
10.4(a) —definition of casual employee |
‘Engaged as a casual’ definition – not consistent – relevant uncertainty or difficulty exists (see [69]-[70] of [2021] FWCFB 4144) ‘Paid by hour’ definition - not consistent (see [81]-[84] of [2021] FWCFB 4144) ‘Residual category’ definition - possible interaction difficulties or uncertainty because of differently-expressed casual definitions (see [76]-[77] of [2021] FWCFB 4144) Replace with reference to s.15A(1) to make consistent or operate effectively (see [105], [106], [110], [111] of [2021] FWCFB 4144) |
Delete clause 10.4(a) Insert new definition of ‘casual employee’ in clause 3—Definitions and interpretation, as follows: casual employee has the meaning given by section 15A of the Act. |
|
10.4(b)—casual loading |
Not inconsistent (at [176] and [178] of [2021] FWCFB 4144) |
No variation necessary |
FWC held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [178] |
10.4(c) —minimum payment |
Not inconsistent (at [163] of [2021] FWCFB 4144) |
No variation necessary |
FWC held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [163] |
10.4(d)—shiftwork for casuals |
General term - not inconsistent (at [179] and [185] of [2021] FWCFB 4144) |
No variation necessary |
FWC held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [185] |
No casual conversion clause |
Add reference to NES casual conversion provisions pursuant to s 157(1) subject to confirmation that NES provisions apply to persons covered by award |
Insert new subclause in 10.4 as follows: XX.X Offers and requests for casual conversion Offers and requests for conversion from casual employment to full-time or part-time employment are provided for in the NES. NOTE: Disputes about offers and requests for casual conversion under the NES are to be dealt with under clause 9—Dispute resolution. |
|
25.4(b)—casuals excluded from rest period after overtime provision |
Not a relevant term |
No variation necessary |
|
31.4(a) & 31.6(b)—penalty rates for public holidays on weekends - casuals |
General term- not inconsistent (at [179] and [185] of [2021] FWCFB 4144) |
No variation necessary |
This provision provides ‘general terms and conditions of employment of casual employees’ which the FWC Full Bench held (in priority awards) to be not inconsistent nor give rise to uncertainty. (see [185] of [2021] FWCFB 4144) |
31.6(a)—casuals excluded from the different penalty rates for public holidays on weekends applicable to other employees |
Not a relevant term |
No variation necessary |
|
31.6(b) —casual penalty rates for public holidays on weekends |
General term- not inconsistent (at [179] and [185] of [2021] FWCFB 4144) |
No variation necessary |
This provision provides ‘general terms and conditions of employment of casual employees’ which the FWC Full Bench held (in priority awards) to be not inconsistent nor give rise to uncertainty. (see [185] of [2021] FWCFB 4144) |
33.2—casuals excluded from paid parental leave |
Not a relevant term |
No variation necessary |
|
Nurses (ANMF - Victorian Local Government) Award 2015 MA000131 | |||
Clause |
Provisional view |
Action |
Notes |
10.1 – requirement to inform at engagement |
Not inconsistent (at [120]-[121] of [2021] FWCFB 4144) |
No variation necessary |
|
10.4(a) |
‘Engaged as a casual’ definition – not consistent – relevant uncertainty or difficulty exists (see [69]-[70] of [2021] FWCFB 4144) ‘Paid by hour’ definition - not consistent (see [81]-[84] of [2021] FWCFB 4144) Replace with reference to s.15A(1) to make consistent or operate effectively (see [105], [106], [110], [111] of [2021] FWCFB 4144) |
Delete clause 10.4(a) Insert new definition of ‘casual employee’ in clause 4—Definitions as follows: casual employee has the meaning given by section 15A of the Act. |
|
10.4(b) – casual loading |
Not inconsistent (at [176] and [178] of [2021] FWCFB 4144) |
No variation necessary |
FWC held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [178] |
10.4(c) – minimum payment |
Not inconsistent (at [163] of [2021] FWCFB 4144) |
No variation necessary |
FWC held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [163] |
10.4(d) – shiftwork for casuals |
General term - not inconsistent (at [179] and [185] of [2021] FWCFB 4144) |
No variation necessary |
FWC held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [185] |
No casual conversion clause |
Add reference to NES casual conversion provisions pursuant to s 157(1) subject to confirmation that NES provisions apply to persons covered by award |
Insert new subclause in 10.5 as follows: 10.5 Offers and requests for casual conversion Offers and requests for conversion from casual employment to full-time or part-time employment are provided for in the NES. NOTE: Disputes about offers and requests for casual conversion under the NES are to be dealt with under clause 9—Dispute resolution. |
No casual conversion clause |
17.6 – higher qualifications allowance – pro rata weekly salary for casual |
Not inconsistent |
No variation necessary |
|
24.3(b) – casuals excluded from rest period after overtime provision |
Not a relevant term |
No variation necessary |
|
30.6 – accident pay – liability to pay casuals |
No inconsistent |
No variation necessary |
|
Optus Award 2015 MA000133 | |||
Clause |
Provisional view |
Action |
Notes |
8.5(a)—definition of casual employee |
‘Paid by hour’ definition - not consistent (see [81]-[84] of [2021] FWCFB 4144) Replace with reference to s.15A(1) to make consistent or operate effectively (see [105], [106], [110], [111] of [2021] FWCFB 4144) |
Delete clause 8.5(a). Insert new definition of ‘casual employee’ in clause 3—Definitions and interpretation, as follows: casual employee has the meaning given by section 15A of the Act. |
|
8.5(b)—casual loading |
Not inconsistent (at [176] and [178] of [2021] FWCFB 4144) |
No variation necessary |
FWC held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [178] |
8.6—fixed term or project employment is distinct from casual employment |
Not inconsistent |
No variation necessary |
|
10(c)—one hour’s notice of termination for casuals |
General term - not inconsistent (at [179] and [185] of [2021] FWCFB 4144) |
No variation necessary |
This provision provides ‘general terms and conditions of employment of casual employees’ which the FWC Full Bench held (in priority awards) to be not inconsistent nor give rise to uncertainty. (see [185] of [2021] FWCFB 4144) |
No casual conversion clause |
Add reference to NES casual conversion provisions pursuant to s 157(1) |
Insert new clause as follows: X.X Offers and requests for casual conversion Offers and requests for conversion from casual employment to full-time or part-time employment are provided for in the NES. NOTE: Disputes about offers and requests for casual conversion under the NES are to be dealt with under Schedule B—Dispute resolution. |
|
Parliamentary Departments Staff Enterprise Award 2016 MA000145 | |||
Clause |
Provisional view |
Action |
Notes |
6.1—types of employment 6.2—types of employment 6.5-Irregular or intermittent employment 13.2—penalty rate for irregular or intermittent shiftworker 14.3(c), 14.4(b), 14.5(c) and 14.6(b), 14.6(c)—overtime for irregular or intermittent employees 15.1—irregular or intermittent employees excluded from annual leave 16.5—irregular or intermittent employees excluded from paid compassionate leave 18.2 and 18.3—irregular or intermittent employees excluded from community service leave entitlements |
No provisional view |
Invite further submissions |
|
6.4(c)—conversion to part-time employment |
Clarify that clause does not apply to casual employees so that not inconsistent with NES casual conversion clause |
Amend clause 6.4(c) as follows: (c) Proposals for part-time work may be initiated by the Secretary for operational reasons or by |
|
No casual conversion clause |
Add reference to NES casual conversion provisions pursuant to s 157(1) subject to consideration of irregular or intermittent employment (as above) and confirmation that NES provisions apply to persons covered by award |
Insert new clause 6.6 as follows: 6.6 Offers and requests for casual conversion Offers and requests for conversion from casual employment to full-time or part-time employment are provided for in the NES. NOTE: Disputes about offers and requests for casual conversion under the NES are to be dealt with under clause 25—Dispute resolution. |
|
D.5.3(a)— National Training Wage - casual loadings disregarded |
General term - not inconsistent (at [179] and [185] of [2021] FWCFB 4144) |
No variation necessary |
This provision provides ‘general terms and conditions of employment of casual employees’ which the FWC Full Bench held (in priority awards) to be not inconsistent nor give rise to uncertainty. (see [185] of [2021] FWCFB 4144) |
Printing Industry – Herald & Weekly Times – Production Award 2015 MA000126 | |||
Clause |
Provisional view |
Action |
Notes |
10—casual employment |
No definition – add definition referring to s.15A to ensure no interaction difficulty |
Insert new definition of ‘casual employee’ in clause 3—Definitions and interpretation as follows: casual employee has the meaning given by section 15A of the Act. |
|
No casual conversion clause |
Add reference to NES casual conversion provisions pursuant to s 157(1) |
Insert new clause 10.8 as follows: 10.8 Offers and requests for casual conversion Offers and requests for conversion from casual employment to full-time or part-time employment are provided for in the NES. NOTE: Disputes about offers and requests for casual conversion under the NES are to be dealt with under clause 9—Dispute resolution. |
|
10.1(a)—meaning of day work and night work for casuals |
General term - not inconsistent (at [179] and [185] of [2021] FWCFB 4144) |
No variation necessary |
This provision provides ‘general terms and conditions of employment of casual employees’ which the FWC Full Bench held (in priority awards) to be not inconsistent nor give rise to uncertainty. (see [185] of [2021] FWCFB 4144) |
10.1(b)(i), 10.1(b)(iii) and 10.2—minimum payments |
Not inconsistent (at [163] of [2021] FWCFB 4144) |
No variation necessary |
FWC held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [163] |
10.1(b)(ii)-(vi)—various penalty rates |
General term- not inconsistent (at [179] and [185] of [2021] FWCFB 4144) |
No variation necessary |
FWC held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [185] |
10.2—Call |
General term - not inconsistent (at [179] and [185] of [2021] FWCFB 4144) |
No variation necessary |
This provision provides ‘general terms and conditions of employment of casual employees’ which the FWC Full Bench held (in priority awards) to be not inconsistent nor give rise to uncertainty. (see [185] of [2021] FWCFB 4144) |
10.3—standing time regarded as time worked |
General term - not inconsistent (at [179] and [185] of [2021] FWCFB 4144) |
No variation necessary |
This provision provides ‘general terms and conditions of employment of casual employees’ which the FWC Full Bench held (in priority awards) to be not inconsistent nor give rise to uncertainty. (see [185] of [2021] FWCFB 4144) |
10.4—rates and minimum payments for casuals on Good Friday and Christmas day |
Not a relevant term |
No variation necessary.
|
|
10.5—accident pay for casuals |
General term - not inconsistent (at [179] and [185] of [2021] FWCFB 4144) |
No variation necessary |
This provision provides ‘general terms and conditions of employment of casual employees’ which the FWC Full Bench held (in priority awards) to be not inconsistent nor give rise to uncertainty. (see [185] of [2021] FWCFB 4144) |
10.6—annual holidays for casuals |
General term - not inconsistent (at [179] and [185] of [2021] FWCFB 4144) |
No variation necessary |
This provision provides ‘general terms and conditions of employment of casual employees’ which the FWC Full Bench held (in priority awards) to be not inconsistent nor give rise to uncertainty. (see [185] of [2021] FWCFB 4144) |
10.7—clauses applicable or not applicable to various types of causal employees |
General term - not inconsistent (at [179] and [185] of [2021] FWCFB 4144) |
No variation necessary |
This provision provides ‘general terms and conditions of employment of casual employees’ which the FWC Full Bench held (in priority awards) to be not inconsistent nor give rise to uncertainty. (see [185] of [2021] FWCFB 4144) |
13.1(e)—notice of termination |
General term - not inconsistent (at [179] and [185] of [2021] FWCFB 4144) |
No variation necessary |
This provision provides ‘general terms and conditions of employment of casual employees’ which the FWC Full Bench held (in priority awards) to be not inconsistent nor give rise to uncertainty. (see [185] of [2021] FWCFB 4144) |
14.2 and 14.5—redundancy entitlement for certain casuals |
General term - not inconsistent (at [179] and [185] of [2021] FWCFB 4144) |
No variation necessary |
This provision provides ‘general terms and conditions of employment of casual employees’ which the FWC Full Bench held (in priority awards) to be not inconsistent nor give rise to uncertainty. (see [185] of [2021] FWCFB 4144) |
22.1—casuals excluded from hours of work clause |
Not a relevant term |
No variation necessary |
|
25.1—Night work |
General term - not inconsistent (at [179] and [185] of [2021] FWCFB 4144) |
No variation necessary |
This provision provides ‘general terms and conditions of employment of casual employees’ which the FWC Full Bench held (in priority awards) to be not inconsistent nor give rise to uncertainty. (see [185] of [2021] FWCFB 4144) |
27.3—casuals excluded from personal/carer’s and compassionate leave |
Not a relevant term |
No variation necessary |
|
C.5.3(a)—casual loadings disregarded in calculating pay reduction for employee becoming trainee |
General term - not inconsistent (at [179] and [185] of [2021] FWCFB 4144) |
No variation necessary |
This provision provides ‘general terms and conditions of employment of casual employees’ which the FWC Full Bench held (in priority awards) to be not inconsistent nor give rise to uncertainty. (see [185] of [2021] FWCFB 4144) |
Queensland Newspapers Pty Ltd Printing (Murarrie) Award 2015 MA000128 | |||
Clause |
Provisional view |
Action |
Notes |
11.1—definition of casual employee |
‘Engaged as a casual’ definition – not consistent – relevant uncertainty or difficulty exists (see [69]-[70] of [2021] FWCFB 4144) Replace with reference to s.15A(1) to make consistent or operate effectively (see [105], [106], [110], [111] of [2021] FWCFB 4144) |
Amend clause 11.1: “A casual employee’s Insert new definition of ‘casual employee’ in clause 3—Definitions as follows: casual employee has the meaning given by section 15A of the Act. |
|
11.1—termination of casual employment |
General term - not inconsistent (at [179] and [185] of [2021] FWCFB 4144) |
No variation necessary |
This provision provides ‘general terms and conditions of employment of casual employees’ which the FWC Full Bench held (in priority awards) to be not inconsistent nor give rise to uncertainty. (see [185] of [2021] FWCFB 4144) |
11.2—casual loading |
Not inconsistent (at [176] and [178] of [2021] FWCFB 4144) |
No variation necessary |
FWC held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [178] |
11.3—overtime for casuals |
General term - not inconsistent (at [179] and [185] of [2021] FWCFB 4144) |
No variation necessary |
FWC held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [185] |
11.4—minimum payment |
Not inconsistent (at [163] of [2021] FWCFB 4144) |
No variation necessary |
FWC held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [163] |
No casual conversion clause |
Add reference to NES casual conversion provisions pursuant to s 157(1) |
Insert new subclause in clause 10.5 as follows: 10.5 Offers and requests for casual conversion Offers and requests for conversion from casual employment to full-time or part-time employment are provided for in the NES. NOTE: Disputes about offers and requests for casual conversion under the NES are to be dealt with under clause 9—Dispute resolution. |
|
15.2(a), (d) and (e)—redundancy for casuals |
General term - not inconsistent (at [179] and [185] of [2021] FWCFB 4144) |
No variation necessary |
FWC held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [185] |
C.5.3—other minimum wages (casual loadings disregarded) |
General term - not inconsistent (at [179] and [185] of [2021] FWCFB 4144) |
No variation necessary |
This provision provides ‘general terms and conditions of employment of casual employees’ which the FWC Full Bench held (in priority awards) to be not inconsistent nor give rise to uncertainty. (see [185] of [2021] FWCFB 4144) |
Reserve Bank of Australia Award 2016 MA000140 | |||
Clause |
Provisional view |
Action |
Notes |
10.4(a)—definition of casual employee |
‘Engaged as a casual’ definition – not consistent – relevant uncertainty or difficulty exists (see [69]-[70] of [2021] FWCFB 4144) Replace with reference to s.15A(1) to make consistent or operate effectively (see [105], [106], [110], [111] of [2021] FWCFB 4144) |
Amend clause 10.4(a) as follows: (a) Insert new definition of ‘casual employee’ in clause 2—Definitions as follows: casual employee has the meaning given by section 15A of the Act. |
|
10.4(a)—ordinary hours for casuals |
General term - not inconsistent (at [179] and [185] of [2021] FWCFB 4144) |
No variation necessary |
This provision provides ‘general terms and conditions of employment of casual employees’ which the FWC Full Bench held (in priority awards) to be not inconsistent nor give rise to uncertainty. (see [185] of [2021] FWCFB 4144) |
10.4(b) and (c)—casual loading |
Not inconsistent (at [176] and [178] of [2021] FWCFB 4144) |
No variation necessary |
FWC held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [178] |
No casual conversion clause |
Add reference to NES casual conversion provisions pursuant to s 157(1) subject to confirmation that NES provisions apply to persons covered by award |
Insert new subclause in clause 10.4(d) as follows: 10.4(d) Offers and requests for casual conversion Offers and requests for conversion from casual employment to full-time or part-time employment are provided for in the NES. NOTE: Disputes about offers and requests for casual conversion under the NES are to be dealt with under clause 9—Dispute resolution. |
|
11.1(e)—Notice of termination by bank for casuals |
General term - not inconsistent (at [179] and [185] of [2021] FWCFB 4144) |
No variation necessary |
This provision provides ‘general terms and conditions of employment of casual employees’ which the FWC Full Bench held (in priority awards) to be not inconsistent nor give rise to uncertainty. (see [185] of [2021] FWCFB 4144) |
D.5.3—other minimum wages (casual loadings disregarded) |
General term - not inconsistent (at [179] and [185] of [2021] FWCFB 4144) |
No variation necessary |
This provision provides ‘general terms and conditions of employment of casual employees’ which the FWC Full Bench held (in priority awards) to be not inconsistent nor give rise to uncertainty. (see [185] of [2021] FWCFB 4144) |
State Government Agencies Award 2020 MA000121 | |||
Clause |
Provisional view |
Action |
Notes |
7.2—facilitative provision (Working from home—casual employee) |
General term - not inconsistent (at [179] and [185] of [2021] FWCFB 4144) |
No variation necessary |
This provision provides ‘general terms and conditions of employment of casual employees’ which the FWC Full Bench held (in priority awards) to be not inconsistent nor give rise to uncertainty. (see [185] of [2021] FWCFB 4144) |
11.1—definition of casual employee |
‘Engaged as a casual’ definition – not consistent – relevant uncertainty or difficulty exists (see [69]-[70] of [2021] FWCFB 4144) Replace with reference to s.15A(1) to make consistent or operate effectively (see [105], [106], [110], [111] of [2021] FWCFB 4144) |
Delete clause 11.1 Insert new definition of ‘casual employee’ in clause 2—Definitions as follows: casual employee has the meaning given by section 15A of the Act. |
|
11.2 and 11.3—casual loading |
Not inconsistent (at [176] and [178] of [2021] FWCFB 4144) |
No variation necessary |
FWC held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [178] |
11.4—minimum payment |
Not inconsistent (at [163] of [2021] FWCFB 4144) |
No variation necessary |
FWC held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [163] |
11.5—provisions applicable to casuals |
General term - not inconsistent (at [179] and [185] of [2021] FWCFB 4144) |
No variation necessary |
This provision provides ‘general terms and conditions of employment of casual employees’ which the FWC Full Bench held (in priority awards) to be not inconsistent nor give rise to uncertainty. (see [185] of [2021] FWCFB 4144) |
11.6—casual conversion |
Model clause – not consistent - less beneficial than NES - replace with NES provision to make awards consistent and operate effectively – (see [197]-[202], [211] of [2021] FWCFB 4144) Add note about casual conversion disputes so award operates effectively (see [199], [212], [215] of [2021] FWCFB 4144). |
Delete clause 11.6. Insert new clause 11.6 as follows: 11.6 Offers and requests for casual conversion Offers and requests for conversion from casual employment to full-time or part-time employment are provided for in the NES. NOTE: Disputes about offers and requests for casual conversion under the NES are to be dealt with under clause 30—Dispute resolution. |
|
15.2—minimum rate for casual General/Field work stream |
General term - not inconsistent (at [179] and [185] of [2021] FWCFB 4144) |
No variation necessary |
This provision provides ‘general terms and conditions of employment of casual employees’ which the FWC Full Bench held (in priority awards) to be not inconsistent nor give rise to uncertainty. (see [185] of [2021] FWCFB 4144) |
Telstra Award 2015 MA000123 | |||
Clause |
Provisional view |
Action |
Notes |
10.3(a)—termination of a casual |
General term - not inconsistent (at [179] and [185] of [2021] FWCFB 4144) |
No variation necessary |
This provision provides ‘general terms and conditions of employment of casual employees’ which the FWC Full Bench held (in priority awards) to be not inconsistent nor give rise to uncertainty. (see [185] of [2021] FWCFB 4144) |
10.3(b)—definition of casual employee |
‘Engaged as a casual’ definition – not consistent – relevant uncertainty or difficulty exists (see [69]-[70] of [2021] FWCFB 4144) Replace with reference to s.15A(1) to make consistent or operate effectively (see [105], [106], [110], [111] of [2021] FWCFB 4144) |
Amend clause 10.3(a): “A casual employee Insert new definition of ‘casual employee’ in clause 3—Definitions as follows: casual employee has the meaning given by section 15A of the Act. |
|
10.3(b)—casual loading |
Not inconsistent (at [176] and [178] of [2021] FWCFB 4144) |
No variation necessary |
FWC held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [178] |
No casual conversion clause |
Add reference to NES casual conversion provisions pursuant to s 157(1) |
Insert new subclause in clause 10.4 as follows: 10.4 Offers and requests for casual conversion Offers and requests for conversion from casual employment to full-time or part-time employment are provided for in the NES. NOTE: Disputes about offers and requests for casual conversion under the NES are to be dealt with under clause 9—Dispute resolution. |
|
13.3(l)—casual apprentices |
General term - not inconsistent (at [179] and [185] of [2021] FWCFB 4144) |
No variation necessary |
This provision provides ‘general terms and conditions of employment of casual employees’ which the FWC Full Bench held (in priority awards) to be not inconsistent nor give rise to uncertainty. (see [185] of [2021] FWCFB 4144) |
13.3(m)—regular and systematic employee |
Definitions of ‘regular and systematic casual employee’ is a relevant term – proposed to update term - (at [142], [147] and [149] of [2021] FWCFB 4144) |
Delete the term ‘regular and systematic casual employee’ in 13.3(m) and replace with ‘regular casual employee’ Insert new definition in clause 3: regular casual employee has the meaning given by section 12 of the Act. |
|
20.6(b)—casuals excluded from rest period after overtime |
Not a relevant term |
No variation necessary |
|
22.2—casuals excluded from annual leave |
Not a relevant term |
No variation necessary |
|
Victorian Government Schools Award 2016 MA000155 | |||
Clause |
Provisional view |
Action |
Notes |
No definition of casual employee |
Insert definition of ‘casual employee’ in clause 3—Definitions as follows: casual employee has the meaning given by section 15A of the Act. |
||
10.1—modes of employment |
Not inconsistent (at [176] and [178] of [2021] FWCFB 4144) |
No variation necessary |
FWC held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [178] |
10.3 and 16—casual payments |
Not inconsistent (at [163] of [2021] FWCFB 4144) |
No variation necessary |
FWC held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [163] |
11.2—casuals excluded from Notice of termination by an employer – teachers provision |
Not a relevant term |
No variation necessary |
|
11.6—casuals excluded from Statement of service - teachers provision |
Not a relevant term |
No variation necessary |
|
11.7—termination of casual employment - teachers |
General term - not inconsistent (at [179] and [185] of [2021] FWCFB 4144) |
No variation necessary |
This provision provides ‘general terms and conditions of employment of casual employees’ which the FWC Full Bench held (in priority awards) to be not inconsistent nor give rise to uncertainty. (see [185] of [2021] FWCFB 4144) |
16—casual loading |
Inconsistent reference to casuals |
Amend clause 16 as follows: A casual employee |
FWC held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [178] |
No casual conversion clause |
Add reference to NES casual conversion provisions pursuant to s 157(1) subject to confirmation that NES provisions apply to persons covered by award |
Insert new subclause in clause 10.4 as follows: 10.4 Offers and requests for casual conversion Offers and requests for conversion from casual employment to full-time or part-time employment are provided for in the NES. NOTE: Disputes about offers and requests for casual conversion under the NES are to be dealt with under clause 9—Dispute resolution. |
|
D.5.3—other minimum wages (casual loadings disregarded) |
General term - not inconsistent (at [179] and [185] of [2021] FWCFB 4144) |
No variation necessary |
This provision provides ‘general terms and conditions of employment of casual employees’ which the FWC Full Bench held (in priority awards) to be not inconsistent nor give rise to uncertainty. (see [185] of [2021] FWCFB 4144) |
Victorian Government Schools - Early Childhood - Award 2016 MA000152 | |||
Clause |
Provisional view |
Action |
Notes |
No definition of casual employee |
Insert definition of ‘casual employee’ in clause 3—Definitions as follows: casual employee has the meaning given by section 15A of the Act. |
||
No casual conversion clause |
Add reference to NES casual conversion provisions pursuant to s 157(1) subject to confirmation that NES provisions apply to persons covered by award |
Insert new subclause in clause 10.5(d) as follows: 10.5(d) Offers and requests for casual conversion Offers and requests for conversion from casual employment to full-time or part-time employment are provided for in the NES. NOTE: Disputes about offers and requests for casual conversion under the NES are to be dealt with under clause 9—Dispute resolution. |
|
10.3 and 15—casual payments |
Not inconsistent (at [163] of [2021] FWCFB 4144) |
No variation necessary |
FWC held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [163] |
10.5—casuals excluded from Notice of termination by an employer – teachers provision |
Not a relevant term |
No variation necessary |
|
10.9—casuals excluded from Statement of service - teachers provision |
Not a relevant term |
No variation necessary |
|
10.10—termination of casual employment - teachers |
General term - not inconsistent (at [179] and [185] of [2021] FWCFB 4144) |
No variation necessary |
This provision provides ‘general terms and conditions of employment of casual employees’ which the FWC Full Bench held (in priority awards) to be not inconsistent nor give rise to uncertainty. (see [185] of [2021] FWCFB 4144) |
15—Minimum casual rate of pay |
Inconsistent reference to casuals |
Amend clause 15 as follows: A casual employee |
|
C.5.3—other minimum wages (casual loadings disregarded) |
General term - not inconsistent (at [179] and [185] of [2021] FWCFB 4144) |
No variation necessary |
This provision provides ‘general terms and conditions of employment of casual employees’ which the FWC Full Bench held (in priority awards) to be not inconsistent nor give rise to uncertainty. (see [185] of [2021] FWCFB 4144) |
Victorian Local Government Award 2015 MA000132 | |||
Clause |
Provisional view |
Action |
Notes |
10.2—requirement to inform at engagement (general) |
Not inconsistent (at [120]-[121] of [2021] FWCFB 4144) |
No variation necessary |
|
10.5(a)—definition of casual employee |
‘Engaged as a casual’ definition – not consistent – relevant uncertainty or difficulty exists (see [69]-[70] of [2021] FWCFB 4144); and ‘Residual category’ definition - possible interaction difficulties or uncertainty because of differently-expressed casual definitions (see [76]-[77] of [2021] FWCFB 4144) Replace with reference to s.15A(1) to make consistent or operate effectively (see [105], [106], [110], [111] of [2021] FWCFB 4144) |
Delete clause 10.5(a) Insert new definition of ‘casual employee’ in clause 3—Definitions as follows: casual employee has the meaning given by section 15A of the Act. |
|
10.5(b)—casual loading |
Not inconsistent (at [176] and [178] of [2021] FWCFB 4144) |
No variation necessary |
FWC held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [178] |
10.5(c)—overtime and penalty rates for casuals |
General term - not inconsistent (at [179] and [185] of [2021] FWCFB 4144) |
No variation necessary |
FWC held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [185] |
No casual conversion clause |
Add reference to NES casual conversion provisions pursuant to s 157(1) subject to confirmation that NES provisions apply to persons covered by award |
Insert new subclause in clause 10.5(d) as follows: 10.5(d) Offers and requests for casual conversion Offers and requests for conversion from casual employment to full-time or part-time employment are provided for in the NES. NOTE: Disputes about offers and requests for casual conversion under the NES are to be dealt with under clause 9—Dispute resolution. |
|
14.3(f)— regular and systematic employee |
Definition of ‘regular and systematic casual employee’ is a relevant term – proposed to update term - (at [142], [147] and [149] of [2021] FWCFB 4144) |
Delete the term ‘regular and systematic casual employee’ in 14.3(f) and replace with ‘regular casual employee’ Insert new definition in clause 3: regular casual employee has the meaning given by section 12 of the Act. |
|
15.4(b)(i)—casuals excluded from Excess travelling time and fares provision |
Not a relevant term |
No variation necessary |
|
22.4(b)—casuals excluded from rest period after overtime provision |
Not a relevant term |
No variation necessary |
|
D.5.3(a)—Other minimum wage provisions - casual loadings disregarded |
General term - not inconsistent (at [179] and [185] of [2021] FWCFB 4144) |
No variation necessary |
This provision provides ‘general terms and conditions of employment of casual employees’ which the FWC Full Bench held (in priority awards) to be not inconsistent nor give rise to uncertainty. (see [185] of [2021] FWCFB 4144) |
Victorian Local Government (Early Childhood Education Employees) Award 2016 MA000150 | |||
Clause |
Provisional view |
Action |
Notes |
10.2(a)—requirement to inform at engagement (general) |
Not inconsistent (at [120]-[121] of [2021] FWCFB 4144) |
No variation necessary |
|
10.5(a)(i)—definition of casual employee (teachers) |
Clause 10.5(a)(i)– not consistent – restricts s.15A casual employment definition – restrictions may be preserved provided they operate upon a definition that is consistent with s.15A (see [98] of Group 2 Statement [2021] FWCFB 4928) |
Amend clause 10.5(a)(i) as follows: (i) Insert new definition of ‘casual employee’ in clause 3—Definitions as follows: casual employee has the meaning given by section 15A of the Act. |
|
10.5(a)(ii)—extension of casual engagement and maximum engagement for casual teachers (teachers) |
General term - not inconsistent (at [179] and [185] of [2021] FWCFB 4144) |
No variation necessary |
This provision provides ‘general terms and conditions of employment of casual employees’ which the FWC Full Bench held (in priority awards) to be not inconsistent nor give rise to uncertainty. (see [185] of [2021] FWCFB 4144) |
10.5(a)(iii)—rates of pay for casual teachers |
General term - not inconsistent (at [179] and [185] of [2021] FWCFB 4144) |
No variation necessary |
This provision provides ‘general terms and conditions of employment of casual employees’ which the FWC Full Bench held (in priority awards) to be not inconsistent nor give rise to uncertainty. (see [185] of [2021] FWCFB 4144) |
10.5(b)(i)—definition of casual employee (educators) |
‘Engaged as a casual’ definition – not consistent – relevant uncertainty or difficulty exists (see [69]-[70] of [2021] FWCFB 4144) Replace with reference to s.15A(1) to make consistent or operate effectively (see [105], [106], [110], [111] of [2021] FWCFB 4144) |
Amend clause 10.5(b)(i) as follows: “A casual employee Insert new definition of ‘casual employee’ in clause 3—Definitions as follows: casual employee has the meaning given by section 15A of the Act. |
|
10.5(b)(i)—casual loading (educators) |
Not inconsistent (at [176] and [178] of [2021] FWCFB 4144) |
No variation necessary |
FWC held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [178] |
10.5(b)(ii)— definition of casual employee (educators) |
Relevant terms and may cause interaction difficulty because expressed in a definitional way. Remove definitional element but retain substantive temporal limitation on casual employment similar to the maximum term of employment in the Teachers Award and dealt with at [98] of [2021] FWCFB 4144) |
Amend clause 10.5(b)(ii) as follows: (ii) A casual employee may only be |
|
10.5(b)(iii)—minimum payment (educators) |
Not inconsistent (at [163] of [2021] FWCFB 4144) |
No variation necessary |
FWC held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [163] |
10.5(b)(iv)—casual pay period (educators) |
Not inconsistent (at [163] of [2021] FWCFB 4144) |
No variation necessary |
FWC held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [163] |
10.5(b)(v) and 21.1(c)—overtime for casual educators |
General term - not inconsistent (at [179] and [185] of [2021] FWCFB 4144) |
No variation necessary |
FWC held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [185] |
No casual conversion clause |
Add reference to NES casual conversion provisions pursuant to s 157(1) |
Insert new subclause in clause 10.5(c) as follows: 10.5(c) Offers and requests for casual conversion Offers and requests for conversion from casual employment to full-time or part-time employment are provided for in the NES. NOTE: Disputes about offers and requests for casual conversion under the NES are to be dealt with under clause 9—Dispute resolution. |
|
11.2—casuals excluded from the Notice of termination by an employer—teachers provision |
Not a relevant term |
No variation necessary |
|
11.6— casuals excluded from the Statement of service—teachers |
Not a relevant term |
No variation necessary |
|
11.7—termination of casual employees |
Not inconsistent (at [163] of [2021] FWCFB 4144) |
No variation necessary |
FWC held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [163] |
13.1(b)(iii)—recognition for previous service for casual teachers |
General term - not inconsistent (at [179] and [185] of [2021] FWCFB 4144) |
No variation necessary |
This provision provides ‘general terms and conditions of employment of casual employees’ which the FWC Full Bench held (in priority awards) to be not inconsistent nor give rise to uncertainty. (see [185] of [2021] FWCFB 4144) |
14.4(a)—casual teacher’s salary |
General term - not inconsistent (at [179] and [185] of [2021] FWCFB 4144) |
No variation necessary |
This provision provides ‘general terms and conditions of employment of casual employees’ which the FWC Full Bench held (in priority awards) to be not inconsistent nor give rise to uncertainty. (see [185] of [2021] FWCFB 4144) |
14.4(b)—casual teacher minimum payment |
Not inconsistent (at [163] of [2021] FWCFB 4144) |
No variation necessary |
FWC held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [163] |
23.4(b)—casuals excluded from Pro rata payment of salary inclusive of annual leave—teachers provision |
Not a relevant term |
No variation necessary |
|
Victorian Public Service Award 2016 MA000135 | |||
Clause |
Provisional view |
Action |
Notes |
6.5(a)—definition of casual employee |
‘Engaged as a casual’ definition – not consistent – relevant uncertainty or difficulty exists (see [69]-[70] of [2021] FWCFB 4144) Replace with reference to s.15A(1) to make consistent or operate effectively (see [105], [106], [110], [111] of [2021] FWCFB 4144) |
Delete clause 6.5(a). Insert new definition of ‘casual employee’ in clause 2—Definitions as follows: casual employee has the meaning given by section 15A of the Act. |
|
6.5(b)—casual loading |
Not inconsistent (at [176] and [178] of [2021] FWCFB 4144) |
No variation necessary |
|
6.5(c)—minimum payment |
Not inconsistent (at [163] of [2021] FWCFB 4144) |
No variation necessary |
FWC held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [163] |
6.5(d)—reference to provisions which do and don’t apply to casuals |
General term - not inconsistent (at [179] and [185] of [2021] FWCFB 4144) |
No variation necessary |
This provision provides ‘general terms and conditions of employment of casual employees’ which the FWC Full Bench held (in priority awards) to be not inconsistent nor give rise to uncertainty. (see [185] of [2021] FWCFB 4144) |
No casual conversion clause |
Add reference to NES casual conversion provisions pursuant to s 157(1) subject to confirmation that NES provisions apply to persons covered by award |
Insert new subclause in clause 6.5(d) as follows: 6.5(d) Offers and requests for casual conversion Offers and requests for conversion from casual employment to full-time or part-time employment are provided for in the NES. NOTE: Disputes about offers and requests for casual conversion under the NES are to be dealt with under clause 29—Dispute resolution. |
|
20.1—casuals excluded from annual leave |
Not a relevant term |
No variation necessary |
|
21.1—casuals excluded from personal/carer’s leave and compassionate leave |
Not a relevant term |
No variation necessary |
|
23.3(a) and (b)—casuals excluded from family violence leave |
Not a relevant term |
No variation necessary |
|
25—casuals excluded from public holiday provision |
Not a relevant term |
No variation necessary |
|
L.3.3(a)(vii)—work level standards - typical duties |
General term - not inconsistent (at [179] and [185] of [2021] FWCFB 4144) |
No variation necessary |
|
P.5.3(a)—Other minimum wage provisions (casual loadings disregarded) |
General term - not inconsistent (at [179] and [185] of [2021] FWCFB 4144) |
No variation necessary |
|
Victorian State Government Agencies Award 2015 MA000134 | |||
Clause |
Provisional view |
Action |
Notes |
8.6(a)—definition of casual employee |
‘Engaged as a casual’ definition – not consistent – relevant uncertainty or difficulty exists (see [69]-[70] of [2021] FWCFB 4144) Replace with reference to s.15A(1) to make consistent or operate effectively (see [105], [106], [110], [111] of [2021] FWCFB 4144) |
Delete clause 8.6(a). Insert new definition of ‘casual employee’ in clause 3—Definitions as follows: casual employee has the meaning given by section 15A of the Act. |
|
8.6(b) and (c)—casual loading |
Not inconsistent (at [176] and [178] of [2021] FWCFB 4144) |
No variation necessary |
|
8.6(d)—minimum payment |
Not inconsistent (at [163] of [2021] FWCFB 4144) |
No variation necessary |
FWC held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [163] |
8.6(e)—reference to provisions which do and don’t apply to casuals |
Not a relevant term |
||
No casual conversion clause |
Add reference to NES casual conversion provisions pursuant to s 157(1) subject to confirmation that NES provisions apply to persons covered by award |
Insert new subclause in clause 8.6(f) as follows: 8.6(f) Offers and requests for casual conversion Offers and requests for conversion from casual employment to full-time or part-time employment are provided for in the NES. NOTE: Disputes about offers and requests for casual conversion under the NES are to be dealt with under clause 9—Dispute resolution. |
|
12.1-12.4—payment for casuals |
General term - not inconsistent (at [179] and [185] of [2021] FWCFB 4144) |
No variation necessary |
This provision provides ‘general terms and conditions of employment of casual employees’ which the FWC Full Bench held (in priority awards) to be not inconsistent nor give rise to uncertainty. (see [185] of [2021] FWCFB 4144) |
20.1—casuals excluded from annual leave |
Not a relevant term |
No variation necessary |
|
21.1—casuals excluded from personal/carer’s leave |
Not a relevant term |
No variation necessary |
|
33.1-33.2—payment for casuals (Emergency Services Telecommunications Authority) |
General term - not inconsistent (at [179] and [185] of [2021] FWCFB 4144) |
No variation necessary |
This provision provides ‘general terms and conditions of employment of casual employees’ which the FWC Full Bench held (in priority awards) to be not inconsistent nor give rise to uncertainty. (see [185] of [2021] FWCFB 4144) |
38.2—payment for casual (VicRoads) |
General term - not inconsistent (at [179] and [185] of [2021] FWCFB 4144) |
No variation necessary |
|
40—minimum payment (Catchment Management Authorities) |
Not inconsistent (at [163] of [2021] FWCFB 4144) |
No variation necessary |
|
E.5.3—Other minimum wage provisions |
General term - not inconsistent (at [179] and [185] of [2021] FWCFB 4144) |
No variation necessary |
|
Viterra Bulk Handling and Storage of Grains, Pulses and Minerals Award 2015 MA000136 | |||
Clause |
Provisional view |
Action |
Notes |
10.3—definition of casual employee |
‘Engaged as a casual’ definition – not consistent – relevant uncertainty or difficulty exists (see [69]-[70] of [2021] FWCFB 4144) Replace with reference to s.15A(1) to make consistent or operate effectively (see [105], [106], [110], [111] of [2021] FWCFB 4144) |
Amend clause 10.4 by deleting the words “A casual employee is one engaged as such.” Insert new definition of ‘casual employee’ in clause 3—Definitions as follows: casual employee has the meaning given by section 15A of the Act. |
|
10.3—casual loading |
Not inconsistent (at [176] and [178] of [2021] FWCFB 4144) |
No variation necessary |
FWC held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [178] |
10.3—minimum payment |
Not inconsistent (at [163] of [2021] FWCFB 4144) |
No variation necessary. |
FWC held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [163] |
No casual conversion clause |
Add reference to NES casual conversion provisions pursuant to s 157(1) |
Insert new subclause in clause 10.4 as follows: 10.4 Offers and requests for casual conversion Offers and requests for conversion from casual employment to full-time or part-time employment are provided for in the NES. NOTE: Disputes about offers and requests for casual conversion under the NES are to be dealt with under clause 9—Dispute resolution. |
|
21.7—overtime for casuals |
General term - not inconsistent (at [179] and [185] of [2021] FWCFB 4144) |
No variation necessary |
FWC held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [185] |
28.2—casuals excluded from dispute resolution procedure training leave |
Not a relevant term |
No variation necessary |
|
1 Discussion Paper, 19 April 2021.
3 [2021] FWCFB 4714, at Attachment A.
9 [2021] FWCFB 4144 at [142].
10 See AMIEU v Diamond Valley Pork Pty Ltd [2021] FWCFB 532 at [47]-[51].
11 [2021] FWCFB 4144 at [98].