DECISION

Fair Work Act 2009
s.157—Application to vary or revoke a modern award

Australian Hotels Association
(AM2021/73)

Application to vary modern award – insertion of loaded rates schedule – provisional view confirmed – award varied.

1. Background

[1] This decision concerns an application by the Australian Hotels Association (AHA) to vary the Hospitality Industry (General) Award 2020 (the Hospitality Award) (the Application).

[2] The background to the Application is set out in a Statement published on 27 July 2021 (the July 2021 Statement). 1 For present purposes, we need only note that the Application arose out of a process which was initiated by correspondence from the then Minister for Industrial Relations in which the Minister expressed the Government’s view that ‘… in the extraordinary circumstances that have been caused by the COVID pandemic … it would be in Australia’s economic best interest for the Fair Work Commission to use its powers under s.157(3)(a) … to undertake a process to ensure several priority modern awards in sectors hardest hit by the pandemic be amended.’2 The Hospitality Award was among the awards identified by the Minister as priority awards.

[3] On 10 December 2020, the President issued a Statement 3 commencing a process on the Commission’s own motion (the Award flexibility–Hospitality and retail sectors matter). At the commencement of the Award flexibility–Hospitality and retail sectors matter, the Commission published an information note on loaded rates, which is relevant to the present matter. Some further background material in respect of loaded rates is set out in the July 2021 Statement4 and need not be repeated here. It is sufficient for present purposes to note that, as a general proposition, workers paid loaded rates should not be financially worse off than workers who are not. It follows that a loaded rate must result in workers being paid the same or more than they would have been paid if the loaded rate did not apply. This also accords with the view expressed by the then Minister for Industrial Relations in his letter of 9 December 2020:5

‘… [w]hile ultimately any design of loaded rates would be up to the discretion of the Commission, it is the Government’s view that these rates may be optimally structured in a way that ensures workers are not financially worse off over time …’

[4] The Application seeks to incorporate a new schedule to provide ‘a simplified pay arrangement in the form of loaded rates to reduce administrative costs and risk arising from existing pay complexities’. A loaded rate refers to a higher rate of pay intended to incorporate, in part or in whole, penalty rates and other monetary benefits for which separate provision is made in the applicable modern award. The loaded rate is then paid for all hours worked instead of certain penalty rates (such as the penalty rates for Saturday and Sunday work).

[5] A private conference was held on 22 July 2021 with the United Workers’ Union (UWU) and the AHA to discuss the terms of the Application.

[6] Arising from the discussion at the private conference a revised draft determination was sent to the parties. The AHA subsequently confirmed that it is seeking to vary the Hospitality Award in the terms of the revised variation determination.

[7] The revised draft determination seeks to insert a new schedule – Schedule K – Loaded Rate Arrangements – into the Hospitality Award. It also seeks to add Schedule L–Loaded Rate Arrangement Form which sets out the requisite form for the Loaded Rates Arrangement.

[8] Schedule K provides for the payment of a percentage amount above an employee’s ordinary hourly rate (Loaded Rate) in satisfaction of the requirement to pay overtime, penalty rates (except public holiday penalty rates) and the split shift allowance in clause 26.14(1)(b)(i). In particular:

•  The Schedule provides for 6 different Loaded Rate percentages (see clause K.10).

•  Clause K.9 sets out the Loaded Rates Parameters, that is the pattern of hours that may be worked in respect of each of the Loaded Rate percentages.

•  Loaded Rate Arrangements to not apply to certain categories of employees (see clause K.8).

•  The creation, variation and termination of Loaded Rate Arrangements is set out in clauses K.2 – K.7.

•  Disputes about the operation of a Loaded Rate Arrangement is set out in clauses K.17 – K.20.

[9] The Loaded Rates Arrangements under Schedule K only apply to full-time adult employees classified at Level 3 and above.

[10] In the July 2021 Statement we expressed the provisional view that the Application had merit. The Loaded Rates provided for in proposed Schedule K have been the subject of a BOOT analysis conducted by staff in the Commission’s agreements team, and provided to the AHA and UWU. On the basis of that analysis, we said:

‘It seems to us that the quantum of loaded rates and the loaded rate parameters ensure that workers on Loaded Rates Arrangements are paid the same or more than they would have been paid if the loaded rate did not apply. Schedule K also provides the additional protection of access to arbitration. Clause K.19 provides:

K.19. In arbitrating a dispute the Fair Work Commission may:

(a) require an employer to pay an employee the difference between what they were paid under the Loaded Rate Arrangement and what they would otherwise have received under this Award if the Fair Work Commission determines that the arrangement entered into under this Schedule was unfair to the employee; and

(b) terminate a Loaded Rate Arrangement if the Fair Work Commission determines that the arrangement entered into under this Schedule was unfair to the employee.’ 6

[11] A copy of the revised draft determination is attached to the July 2021 Statement. In this decision, we refer to the clause numbers as set out in the revised draft determination. We note that the numbering has been amended in the final determination attached to this decision.

[12] Interested parties were directed to file submissions and evidence in response to our provisional view. The following submissions were received:

•  UWU

•  Australian Council of Trade Unions (ACTU)

•  AHA

[13] In the July 2021 Statement, we indicated that absent a specific request for an oral hearing the matter would be determined on the papers. No party requested either an oral hearing or to cross-examine any of the witnesses. Accordingly, we will proceed to determine the matter on the papers.

2. COVID-19 Pandemic

[14] As noted above, the Application arises from the unique set of circumstances pertaining to the COVID-19 pandemic.

[15] Commission staff have prepared the following information notes which have been published on the COVID-19 updates webpage:

•  Information note – government responses to COVID-19 pandemic

•  Information note – COVID-19 situation update

[16] The Commission also published an information note about the Accommodation and food services industry (which includes the Hospitality industry) on 10 December 2020. This note includes information about the impact of the COVID-19 pandemic. An updated information note was published on 30 August 2021. The Hospitality industry has been one of the industries hit hardest by the pandemic.

[17] The latest data, to the week ending 31 July 2021, show that the number of jobs across all industries is 1.0 per cent higher than that reported in mid-March 2020. However, for Accommodation and food services, it is 14.1 per cent below the level at 14 March 2020 and 13.9 per cent below for Food and beverage services (as shown in Chart 1).

[18] Total wages had also declined in Accommodation and food services by a relatively large percentage (–18.0 per cent) compared with an overall increase of 2.5 per cent across all industries. 7

Chart 1: Change in employee jobs between 14 March 2020 and 31 July 2021

Source: ABS, Weekly Payroll Jobs and Wages in Australia, Week ending 31 July 2021.

3. Consideration

[19] In support of the Application, the AHA submits that:

1. The variation does not disadvantage or leave employees worse off when compared to the Hospitality Award. 8

2. The Hospitality Award’s dispute resolution procedure is open to be enlivened by any employee aggrieved by a loaded rate arrangement, 9 and any loaded rate arrangement must include the employer’s consent to arbitration of a dispute arising from the arrangement by the Commission, meaning any loaded rate arrangement is ultimately subject to Commission oversight.10

3. Four of the modern awards objective factors are said to weigh in favour of the variation sought, namely s.134(1)(a), (d), (f) and (g). 11

4. The proposed variation balances the Government’s request for sensible workplace flexibility in response to changing economic conditions against the need to maintain appropriate safeguards and ensuring employees are not worse off when compared to award entitlements. 12

[20] The UWU and ACTU oppose the Application.

[21] The UWU contends that the Commission has no power to make the variation sought and, further, if we conclude that we have the requisite power then the variation should not be made as it is not necessary to ensure that the Hospitality Award achieves the modern awards objective.

[22] In the alternative, the UWU submits that if we are inclined to make the variation sought it is appropriate that the following course be adopted: 13

•  Schedule K be limited to a term of operation of 12 months (where such period of operation could be extended on application);

•  A review be conducted in relation to the Schedule, which should commence no later than 9 months after its commencement date. The review should consider, among other things, the concerns raised by UWU in relation to its operation.

[23] The ACTU supports the UWU’s submission and opposes the Application. The ACTU advances 3 broad lines of argument in support of its position:

•  The limited utility of the proposal:

‘In an industry where the minority of workers are employed on a full-time basis and even fewer are classified at level 3 or above, Schedule K will be limited in application to a very small cohort of workers – it will be of no practical effect whatsoever in some workplaces.’ 14

•  Schedule K may leave some workers worse off: 15

•  The proposal may have the following negative consequences: 16

•  The denial of working opportunities to casual employees, who may lose shifts to permanent employees who are called in to work additional hours at short notice.

•  The reduced work and overtime opportunities for part-time workers and level 1-2 full-time workers which may flow from the proposal.

•  The ability for employers to schedule work outside of the roster at short notice without paying overtime rates.

•  Greater pressure for employees to work additional hours, including unrostered overtime.

[24] It is convenient to deal first with the UWU’s jurisdictional argument.

[25] There are 3 broad limbs to the UWU argument.

1. Section 139 does not expressly refer to ‘loaded rates’. It does contain a provision to the effect that a modern award may contain a term about minimum wages; however, a loaded rate is not a minimum wage – it is a loaded rate. Similarly, s.139 contains a provision to the effect that a modern award may contain a term about penalty rates. But a loaded rate is not a penalty rate – it is a means by which a number of entitlements including minimum rates, penalty rates, overtime and allowances might be aggregated.

2. Section 139(f) specifically provides that a modern award may include terms about ‘annualised wage arrangements’; the variation proposed is not an annualised salary arrangement.

3. If s.139 is intended to permit the inclusion of a term within a modern award providing for loaded rates, then the legislation must be read as intending that, in addition to annualised wage arrangements, other arrangements, such as loaded rates could be included within a modern award as an alternative to the separate payment of wages and other monetary entitlements. The permissibility of such schemes, such as loaded rates, which might operate in a similar manner to an annualised wage arrangement, must be read into the legislation as being either ‘about’ a term referred to in s.139 or ‘incidental’ to one.

[26] The UWU also contends that even if a loaded rates term is a term which may be included in a modern award, ‘the inclusion of such a term in a modern award will result in a significant departure from the scheme of minimum rates and separately identified entitlements including allowances, penalty rates and overtime envisaged by Part 2-3 of the Act.’ 17 In particular, the UWU submits that:

•  employees receiving loaded rates will not receive separately identified additional remuneration for working overtime, or for working unsocial, irregular or unpredictable hours or weekends, or public holidays, or for working shift work; 18

•  for employees receiving loaded rates, some or all allowances are not separately and clearly identified; 19

•  the loaded rate arrangement which is the subject of this application is envisaged to be implemented through a mechanism described as a “Loaded Rate Arrangement” which is facilitated by a Form described as a “Loaded Rate Arrangement Form” which by its terms is plainly a form of individual arrangement as between the employer and an individual employee. 20

[27] In the July 2021 Statement we expressed the tentative view that ‘there appears to be no legislative barrier to the inclusion of terms about loaded rates in modern awards.’ 21 For the reasons which follow we confirm our tentative view and, further, we are satisfied that the proposed variation is a term that may be included in a modern award.

[28] Section 136 concerns the terms that may or must be included in a modern award, it provides:

136 What can be included in modern awards

Terms that may or must be included

(1) A modern award must only include terms that are permitted or required by:

(a) Subdivision B (which deals with terms that may be included in modern awards); or

(b) Subdivision C (which deals with terms that must be included in modern awards); or

(c) section 55 (which deals with interaction between the National Employment Standards and a modern award or enterprise agreement); or

(d) Part 2-2 (which deals with the National Employment Standards)

Note 1: Subsection 55(4) permits inclusion of terms that are ancillary or incidental to, or that supplement, the National Employment Standards.

Note 2: Part 2-2 includes a number of provisions permitting inclusion of terms about particular matters.

Terms that must not be included

(2) A modern award must not include terms that contravene:

(a) Subdivision D (which deals with terms that must not be included in modern awards); or

(b) section 55 (which deals with the interaction between the National Employment Standards and a modern award or enterprise agreement).

Note: The provisions referred to in subsection (2) limit the terms that can be included in modern awards under the provisions referred to in subsection (1).

[29] Section 139(1) is in Subdivision B and deals with terms that may be included in modern awards, it provides:

139 Terms that may be included in modern awards—general

(1) A modern award may include terms about any of the following matters:

(a) minimum wages (including wage rates for junior employees, employees with a disability and employees to whom training arrangements apply), and:

(i) skill-based classifications and career structures; and

(ii) incentive-based payments, piece rates and bonuses;

(b) type of employment, such as full-time employment, casual employment, regular part-time employment and shift work, and the facilitation of flexible working arrangements, particularly for employees with family responsibilities;

(c) arrangements for when work is performed, including hours of work, rostering, notice periods, rest breaks and variations to working hours;

(d) overtime rates;

(e) penalty rates, including for any of the following:

(i) employees working unsocial, irregular or unpredictable hours;

(ii) employees working on weekends or public holidays;

(iii) shift workers;

(f) annualised wage arrangements that:

(i) have regard to the patterns of work in an occupation, industry or enterprise; and

(ii) provide an alternative to the separate payment of wages and other monetary entitlements; and

(iii) include appropriate safeguards to ensure that individual employees are not disadvantaged;

(g) allowances, including for any of the following:

(i) expenses incurred in the course of employment;

(ii) responsibilities or skills that are not taken into account in rates of pay;

(iii) disabilities associated with the performance of particular tasks or work in particular conditions or locations;

(h) leave, leave loadings and arrangements for taking leave;

(i) superannuation;

(j) procedures for consultation, representation and dispute settlement.

(2) Any allowance included in a modern award must be separately and clearly identified in the award.

[30] The Commission has previously held that the particular subject matters set out in s.139(1)(a) to (j) are to be given their ordinary meaning that ‘there is no warrant for a restrictive construction to be placed on any of them.’ 22

[31] The prefatory words in s.139(1) are also important; namely a modern award may include terms ‘about’ any of the matters set out in s.139(1)(a) to (j). This expression was the subject of consideration in the 4 yearly review of modern awards – Plain language – standard clauses decision, 23 in which the Full Bench said:

‘It is also appropriate to adopt a liberal construction of the word ‘about’ in s.139(1), to the extent permitted by the context. The legislative context, and particularly s.142, leads us to conclude that more than an incidental connection is required between a proposed award term and one of the subject matters set out in s.139(1)(a) to (j). We note that such an approach is consistent with that adopted by the Full Bench in the Modern Awards Review 2012 – Apprentices, Trainees and Juniors Decision (the ‘Apprentices decision’) and the Pastoral Award - learner shearers decision.’ 24 [Footnotes omitted]

[32] We agree with and adopt the above statements as to the proper construction of s.139(1). Hence, it is appropriate to adopt a liberal construction of the word ‘about’ in s.139(1); though more is required than an incidental connection with one of the subject matters in s.139(1)(a) to (j).

[33] In the context of s.139(1) the word ‘about’ is used as a preposition – linking ‘a modern award may include’ with the matters set out in s.139(1)(a) to (j). In this context the Macquarie Dictionary defines ‘about’ as ‘concerning’ or ‘connected with’.

[34] It seems to us that the proposed term is a term ‘about’ minimum wages; arrangements for when work is performed, including hours of work; overtime rates; penalty rates; and allowances. The loaded rates specified in proposed Schedule K are in satisfaction of the requirements of:

•  Clause 26.14(b)(i) – Split shift allowance;

•  Clause 28 – Overtime; and

•  Clause 29 – Penalty rates, with the exception of penalty rates in relation to Public Holidays (see clause K.2).

[35] In other words, Schedule K defines the circumstances in which overtime and certain allowances and penalty rates are to be paid. Further, clause K.10 sets out the range of days and maximum weekly hours applicable to certain loaded rates, as follows:

[36] Clause K.10 sets the rate of pay for a maximum number of weekly hours over certain days. Conceptually it is no different from an award term providing that ordinary hours are to be worked, say Monday to Friday, and are not to exceed 38 hours per week. The only difference is that clause K.10 provides a higher number of ‘ordinary hours’ (40 to 45) which may be worked over a greater range of days (including Monday to Sunday). Both terms are ‘about’ minimum wages and arrangements for when work is performed, including hours of work.

[37] Further, the proposed term provides that overtime is payable for work performed in excess of the ‘loaded rate maximum weekly hours’ in clause K.10. Such a term is plainly a term ‘about’ overtime rates.

[38] We reject the UWU’s contention that the Commission has no power to make the variations sought.

[39] We now turn to the merits arguments.

[40] There are 5 broad limbs to the merits arguments advanced by the ACTU and the UWU.

1. Schedule K may leave some workers worse off.

2. The proposed loaded rate arrangements are ‘extremely complex and may increase the incidence of non-compliance with the award.’ 25

3. The scheme proposed in Schedule K is not an ‘opt-in’ by agreement scheme, the use of the loaded rate arrangements is determined unilaterally by the employer (the compulsion point).

4. The proposal is of limited utility.

5. Other negative consequences.

[41] We propose to deal with each of these arguments in turn.

(i) The disadvantage point

[42] The UWU contends that ‘the myriad of circumstances in which the award operates makes it difficult to predict with absolute certainty that the aggregation of minimum rates, penalties and allowances would not result in any employee being worse off under the loaded rate arrangements than if they were paid under the terms of the current award.’ 26

[43] The UWU points to the fact that while the BOOT analysis comparing the loaded rate arrangements with the current award term shows that employees will earn more under the proposed loaded rates; ‘in some cases, it is a very fine margin’. 27 On this basis the UWU submits:

‘In circumstances where in some cases the margins as modelled are so fine, FWC cannot be confident that no worker will be worse off under the variation proposed by the application. It should be refused on that basis.’ 28

[44] The ACTU advances a similar point and submits that Schedule K may leave workers worse off in the following circumstances: 29

•  When a worker paid according to Schedule K works on their rostered day off. For example, if a Monday to Sunday worker performs work on a Tuesday, which is their RDO, after being called in at short notice, and performs 10 hours shifts on the Saturday and/or Sunday as per their ordinary roster.

•  When a Monday to Saturday or Monday to Sunday worker paid according to Schedule K works overtime on a weekday (instead of the overtime being applicable to a Saturday or Sunday). This may arise if a worker performs additional hours outside of their roster, in addition to their rostered hours.

[45] The AHA responds to the submission put as follows:

‘The primary disadvantage example used in the UWU Submissions and ACTU Submissions is an employee working on a rostered day off, not being entitled to payment of overtime in accordance with clause 28.2(d) of the Award.

For the avoidance of doubt, the AHA never intended the Proposed Variation to vary the application of clause 28.2(d) of the Award. If an employee is required to work on a rostered day off, the employee is entitled to be compensated in accordance with the Award requirements.

Separately, clause K.13. of the Draft Determination provides “Unless modified by clauses K.2, K.9, and subject to clause K.14 a Loaded Rate Arrangement does not vary the application of other terms of this award”.

If the FWC agrees with the UWU Submissions and ACTU Submissions regarding the uncertainty of clause K.14. Note 1 wording, the AHA will not oppose an amendment to ensure the appropriate intention is clearly conveyed.’ 30 [Footnotes omitted]

[46] As a general proposition, and noting that loaded rates replace existing award benefits, workers paid loaded rates should not be financially worse off than workers who are not. It follows that a loaded rate must result in workers being paid the same or more than they would have been paid if the loaded rate did not apply. This also accords with the view expressed by the then Minister for Industrial Relations in his letter of 9 December: 31

‘… [while] ultimately any design of loaded rates would be up to the discretion of the Commission, it is the Government’s view that these rates may be optimally structured in a way that ensures workers are not financially worse off over time …’

[47] As to the proposition that employees will be worse off under the loaded rates arrangements when required to work on their rostered days off, we note the AHA’s submission that Schedule K was not intended to vary the application of clause 28.2(d) to (f).

[48] We accept the submissions of the ACTU and the UWU that the current drafting of the Schedule may not accurately reflect the intentions of the AHA. To put the issue beyond doubt we will amend the revised draft determination to clearly reflect that the Loaded Rate Arrangement does not vary the application of clause 28.2(d).

[49] As to the other points advanced, Schedule K as a whole, and in particular clause K.2, does not prevent applicable full-time rostering stipulations in clause 15 of the Hospitality Award applying to employees subject to the proposed Loaded Rates Arrangement.

[50] In respect of employees who may be required to work overtime on a weekday, we are unable to identify any roster pattern that complies with the applicable provisions in clause 15 of the Hospitality Award and the Loaded Rate Parameters that would leave employees worse off if they were working under a Loaded Rate Arrangement. In accordance with clause K.14 of the revised draft determination, when employees work outside the scope of the Loaded Rate Parameters set out in clause K.9, they are entitled to payment of overtime in accordance with the Hospitality Award.

[51] Further, Schedule K also provides the additional protection of access to arbitration. Clause K.19 provides:

‘K.19. In arbitrating a dispute the Fair Work Commission may:

(a) require an employer to pay an employee the difference between what they were paid under the Loaded Rate Arrangement and what they would otherwise have received under this Award if the Fair Work Commission determines that the arrangement entered into under this Schedule was unfair to the employee; and

(b) terminate a Loaded Rate Arrangement if the Fair Work Commission determines that the arrangement entered into under this Schedule was unfair to the employee.’

[52] Contrary to the submissions advanced by the ACTU and UWU we are satisfied that the quantum of loaded rates and the Loaded Rate Parameters ensure that workers on Loaded Rates Arrangements are paid the same or more than they would have been paid if the Loaded Rate did not apply.

(ii) The complexity point

[53] In the July 2021 Statement we made the following observations:

‘In the decision handed down on 23 February 2017, the Full Bench in the Penalty Rates Case observed that there was merit in considering the insertion of appropriate loaded rates into the Hospitality and Retail awards. The Full Bench stated that subject to appropriate safeguards, schedules of ‘loaded rates’ may make awards simpler and easier to understand, consistent with the considerations in s.134(1)(g), and allow small businesses to access additional flexibility without the need to enter into an enterprise agreement.

The Full Bench also noted that, in reports prepared by the Fair Work Ombudsman, some businesses in the Hospitality and Retail sectors already provide for ‘flat’ (or loaded) rates of pay, in order to simplify their payroll process however they underestimate the additional premium (or loading) required in order to compensate employees for the loss of penalty rates, resulting in noncompliance. The Full Bench commented that insertion of ‘loaded rates’ schedules in these modern awards may have a positive effect on award compliance.’ 32 [Footnotes omitted]

[54] The UWU does not cavil with the observations above but contends that it is ‘inconceivable that the loaded rates scheme proposed by the application results in the simplification of payroll processes’. 33 In support of this contention the UWU submits that the loaded rates scheme only applies to full-time employees classified at level 3 or above and hence ‘[a] payroll process would need to be maintained in its current form for other employees’34 to accommodate employees being paid loaded rates. An existing payroll process would need to be significantly enhanced to deal with:35

•  a new means by which some employees could be paid (in addition to those based on existing methodologies (some are described in the Supplementary Submissions at [35]));

•  6 different loaded rates, which align to 6 different roster configurations;

•  at least 8 different variables arising from the Loaded Rate Parameters which could give rise to the loaded rates arrangements being voided, or could give rise to payments additional to the loaded rate payment becoming required (namely, (i) a roster cycle not operating weekly; (ii) a roster cycle not commencing on a Monday; (iii) work performed beyond a maximum of 11.5 hours Monday to Friday; (iv) work performed before 7:00AM, (v) work performed past 12:00 midnight; (vi) work performed on a Saturday past 10 hours, (vii) work performed on a Sunday past 10 hours; (viii) a break in shifts of 3 hours or less (note further that because work which exceeds the daily and / or shift maximum hours, the loaded rate range of days or the loaded rate maximum weekly hours attracts overtime rates, and overtime under the award is paid at 150% for the first 2 hours and 200% after 2 hours, further complexity arises in relation to such work exceeding 2 hours); and

•  The system must also be careful to add all-purpose allowances to minimum rates before the loaded rate percentage is applied.

[55] The UWU also submits that the loaded rates calculations ‘must be re-calibrated to deal with the impact of the increase to the split shift allowance, part compensation for which is included within the loaded rate percentage (assuming an increase to the split shift allowance flows as a result of Annual Wage Review decisions).’ 36

[56] In reply the AHA submits that the proposed variation ‘is no more complex than understanding and interpreting other aspects of the Award’ and that it ‘provides greater clarity and eases compliance obligations’ because: 37

•  the parameters are narrow and clear;

•  the tables at K.10 and K.11 outlined in the Draft Determination qualify the dollar value of the loaded rates percentage on the ordinary hourly rate; and

•  Schedule L clearly and articulately particularises the intended arrangement.

[57] We accept that Schedule K has a degree of complexity; but the UWU overstates the extent of that complexity. We agree with the AHA that the Loaded Rates Parameters are clearly expressed.

[58] Finally, we turn to the proposition that the loaded rates will need to be ‘recalibrated’ in the event that there is an increase in the quantum of the split shift allowance following an Annual Wage Review decision. Commissioner Bissett will convene a conference of all interested parties following the publication of the 2021-22 Annual Wage Review decision to discuss whether the loaded rates require adjustment to ensure that employees are not worse off.

(iii) The compulsion point

[59] As noted by the UWU, the proposed variation permits an employer to elect to pay an employee a loaded rate; an employee is not entitled to refuse the arrangement and nor is the arrangement proposed to be subject to agreement between employers and employees.

[60] The UWU advances 2 points about the fact that the scheme is compulsory for employees whose employer elects to use it: 38

1. This is another factor relevant to Commission’s discretion as to whether or not to vary the Hospitality Award and should carry significant weight against granting the Application.

2. If the Commission is inclined to make the variation sought, then a specific obligation to consult should be included.

[61] As to the second point, the UWU submits that the form of the obligation should be adopted from the recent variation made to the Restaurant Industry Award 2020 as words inserted into the proposed schedule as follows:

‘K.X Consultation

K.X.1 Prior to initiating any of the provisions in this Schedule the employer must consult with all employees affected by the proposed change and their representatives (if any).

K.X.2 For the purpose of the consultation, the employer must:

(a) Provide to the employees and their representatives (if any) information about the proposed change (for example, information about the nature of the change and when it is to begin); and

(b) Invite the employees to give their views about the impact of the proposed change on them (including any impact on their family or caring responsibilities) and also their representative (if any) to give their views about that impact.

K.X.3 The employer must consider any views given under clause K.X.2(b).’

[62] The UWU also proposes that a consequential amendment be made to proposed clause K.19 as follows:

‘K.19. In arbitrating a dispute the Fair Work Commission may:

(a) terminate an agreement made under Schedule K if it determines that the employer failed to consult as required by clause XX’

[63] In reply the AHA submits that the Loaded Rates Arrangements are structured such that employees are not disadvantaged by the arrangement and in these circumstances mutual consent is unnecessary. Further, the AHA submits:

‘ … should the FWC determine a consultation provision in the Proposed Variation is warranted, the AHA does not oppose the proposed consultation clause in the UWU Submissions.

However, the AHA does oppose the variation sought at paragraph 58(c) of the UWU Submissions because K.19(b) of the Draft Determination already empowers the FWC to terminate a loaded rate arrangement where entering into one is “unfair to the employee”.’ 39

[64] We agree with the AHA that it is not necessary to require employee agreement given the Loaded Rates Parameters. However, we think a consultative term is appropriate given that a Loaded Rates Arrangement changes the basis upon which an employee is remunerated.

[65] We will amend the revised determination to require an employer to consult with an employee at least 7 days prior to implementing a Loaded Rates Arrangement. We will also vary clause K.19 in the manner proposed by the UWU. Such an amendment will give the Commission the discretion to terminate a Loaded Rates Arrangement if the employer failed to consult as required; a Loaded Rates Arrangement would not be automatically invalidated for a failure to consult.

(iv) The utility point

[66] The UWU submits that the loaded rates schedule contemplated by the Application will be limited in its application only to: 40

•  Full-time employees, which might comprise between 30% and 50% of the workforce (or less);

•  Of these, only those employees performing a role classified at level 3 or above;

•  Of these, only those employees who are award-reliant; and

•  Of these, only those employees who are paid according to the Hospitality Award, and not some above-award arrangement.

[67] The UWU submits that ‘the limited potential for practical benefit (if any) weighs against the exercise of the discretion to make the variation sought.’ 41

[68] The ACTU makes a similar point and submits:

‘In an industry where the minority of workers are employed on a full-time basis, and even fewer are classified at level 3 or above, Schedule K will be limited in application to a very small cohort of workers – it will be of no practical effect whatsoever in some workplaces. This limits the relevance of Schedule K in term of its ability to deliver meaningful measures to assist businesses in their post-COVID-19 recovery.’ 42

[69] We agree with the general proposition that when considering an application to vary an award, it is appropriate that the Commission take into account the practical or direct operative affect if the variation was made. 43

[70] We also acknowledge that in practical terms the Application is only relevant to a limited cohort of employees covered by the Hospitality Award. But we reject the argument that these considerations tell against granting the Application. While the practical relevance of the Application is limited it cannot properly be characterised as insignificant. Further, the modest nature of the Application is in fact a consideration which weighs in its favour, in that it is confined to relatively senior full-time employees which assists in assessing whether those employees are likely to be adversely affected by the Loaded Rates Arrangements.

(v) Other negative consequences

[71] In its submission the ACTU identifies other issues which it characterises as a number of ‘negative consequences’ associated with the revised draft determination (see [23] above). A number of the suggested ‘negative consequences’ are entirely speculative; in particular the asserted impact on the work and overtime opportunities for casuals, part-time employees and full-time employees at Levels 1 and 2.

[72] Little elaboration is provided in respect of the remaining asserted negative consequences and it is far from clear how the revised draft determination can be said to give rise to pressure for employees to work unrostered overtime; particularly given the protection afforded by s.62 of the Act.

[73] In conclusion, subject to the amendments referred to at [48] and [65] above, we are satisfied that the proposed variation has merit.

[74] We now turn to consider the modern awards objective.

3.4 The Modern Awards Objective

[75] The Commission may make a determination varying a modern award if the Commission is satisfied the determination is necessary to achieve the modern awards objective. The modern awards objective is in s.134 of the Act and provides as follows:

‘What is the modern awards objective?

134(1) The FWC must ensure that modern awards, together with the National Employment Standards, provide a fair and relevant minimum safety net of terms and conditions, taking into account:

(a) relative living standards and the needs of the low paid; and

(b) the need to encourage collective bargaining; and

(c) the need to promote social inclusion through increased workforce participation; and

(d) the need to promote flexible modern work practices and the efficient and productive performance of work; and

(da) the need to provide additional remuneration for:

(i) employees working overtime; or

(ii) employees working unsocial, irregular or unpredictable hours; or

(iii) employees working on weekends or public holidays; or

(iv) employees working shifts; and

(e) the principle of equal remuneration for work of equal or comparable value; and

(f) the likely impact of any exercise of modern award powers on business, including on productivity, employment costs and the regulatory burden; and

(g) the need to ensure a simple, easy to understand, stable and sustainable modern award system for Australia that avoids unnecessary overlap of modern awards; and

(h) the likely impact of any exercise of modern award powers on employment growth, inflation and the sustainability, performance and competitiveness of the national economy.’

This is the modern awards objective.

When does the modern awards objective apply?

(2) The modern awards objective applies to the performance or exercise of the FWC’s modern award powers, which are:

(a) the FWC’s functions or powers under this Part; and

(b) the FWC’s functions or powers under Part 2-6, so far as they relate to modern award minimum wages.

Note: The FWC must also take into account the objects of this Act and any other applicable provisions. For example, if the FWC is setting, varying or revoking modern award minimum wages, the minimum wages objective also applies (see section 284).’

[76] The modern awards objective is very broadly expressed. 44 It is a composite expression which requires that modern awards, together with the National Employment Standards (NES), provide ‘a fair and relevant minimum safety net of terms and conditions’, taking into account the matters in ss.134(1)(a)–(h) (the s.134 considerations).45 Fairness in this context is to be assessed from the perspective of the employees and employers covered by the modern award in question.46

[77] The obligation to take into account the s.134 considerations means that each of these matters, insofar as they are relevant, must be treated as a matter of significance in the decision-making process. 47 No particular primacy is attached to any of the s.134 considerations48 and not all of the matters identified will necessarily be relevant in the context of a particular proposal to vary a modern award.

[78] It is not necessary to make a finding that the award fails to satisfy one or more of the s.134 considerations as a prerequisite to the variation of a modern award. 49 Generally speaking, the s.134 considerations do not set a particular standard against which a modern award can be evaluated; many of them may be characterised as broad social objectives.50 In giving effect to the modern awards objective the Commission is performing an evaluative function taking into account the matters in s.134(1)(a)–(h) and assessing the qualities of the safety net by reference to the statutory criteria of fairness and relevance.

[79] Section 138 of the Act emphasises the importance of the modern awards objective:

‘Section 138 Achieving the modern awards objective

A modern award may include terms that it is permitted to include, and must include terms that it is required to include, only to the extent necessary to achieve the modern awards objective and (to the extent applicable) the minimum wages objective.’

[80] What is ‘necessary’ to achieve the modern awards objective in a particular case is a value judgment, taking into account the s.134 considerations to the extent that they are relevant having regard to the context, including the circumstances pertaining to the particular modern award, the terms of any proposed variation and the submissions and evidence. 51

[81] We now turn to the s.134 considerations; in doing so it is convenient to refer to the revised draft determination as amended in accordance with our decision at [48] and [65] above as the amended draft determination.

s. 134(1)(a): relative living standards and the needs of the low paid

[82] A threshold of two-thirds of median full-time wages provides ‘a suitable and operational benchmark for identifying who is low paid,’ 52 within the meaning of s.134(1)(a). Using this benchmark, employees paid at classification levels 1 to 5 in the Hospitality Award are ‘low paid’ within the meaning of s.134(1)(a).

[83] The UWU contends that the consideration in s.134(1)(a) ‘weighs neither for or against the proposed variation.’ 53 In particular, the UWU submits that ‘any incidental benefit is marginal at best’54 and:

‘The intention of the variation is not to provide for higher wages for low paid workers. While it is conceivable in some cases a loaded rate could result in higher wages than would apply under the current award, the variation should not be assessed as one that has the intent of providing higher remuneration for work performed under the award. [There] is no benefit intended to be provided to low paid workers, in terms of remuneration, with respect to the variation.’ 55

[84] The ACTU submits that ‘any variation which reduces the actual or available take-home pay of hospitality workers will affect them significantly, and… is a relevant consideration to… s 134(a).’ 56

[85] The ACTU also submits that:

‘ … regard should be had not only to hospitality workers as a whole, but also to the relative standards and needs of various classes of workers within the hospitality industry – for instance, the relative living standards and needs of casual, part-time and level 1-2 full time workers (who may have reduced work opportunities under this proposal) as compared to the living standards and needs of level 3 and above full-time workers within the industry.’ 57

[86] As to the UWU’s submission, the intention of the variation is irrelevant; it is only the actual or likely affect that is relevant. In our view it is likely that the variation will result in some full-time employees receiving higher wages than would apply under the current award, for the same work.

[87] In view of the Loaded Rate Parameters; and the range of days and maximum weekly hours associated with particular loaded rates, we are satisfied that no employee to whom the loaded rate arrangements will apply will be worse off if the Application is granted.

[88] The extent to which the loaded rates result in an increase in wages will depend on the circumstances and is difficult to estimate with any precision; but the likelihood is that some low paid full-time employees will be better off.

[89] The ACTU suggestion that the variation may reduce the work opportunities of casual, part-time and Level 1 and 2 full-time workers is entirely speculative. No evidentiary basis is advanced in support of the contention.

[90] In our view – taking account of the matters mentioned – this consideration weighs in favour of the amended draft variation.

s. 134(1)(b) the need to encourage collective bargaining

[91] The AHA submits that s.134(1)(b) is a neutral consideration.

[92] The UWU submits that s.134(1)(b) consideration ‘might weigh marginally against the proposed variation’:

‘If the award is varied to incorporate such a scheme, industrial parties will be dissuaded from using collective bargaining as the means to achieve this. In this sense, the variation does not promote collective bargaining, and might discourage it.’ 58

[93] Similarly, the ACTU submits:

‘The availability of loaded rates, albeit for only a small section of the workforce, may diminish the incentive that employers have to engage in enterprise bargaining, on the basis of a preparedness to negotiate other terms which are beneficial for workers in exchange for securing loaded rates.’ 59

[94] We accept that the proposed variation may be said to decrease the incentive for employers to bargain; but it is also likely that employee and employer decision making about whether or not to bargain is influenced by a complex mix of factors. Section 134(1)(b) speaks of ‘the need to encourage collective bargaining’. We are not persuaded that the proposed variation would ‘encourage collective bargaining’. It follows that this consideration weighs against the amended draft variation.

s. 134(1)(c) the need to promote social inclusion through increased workforce participation

[95] The use of the conjunctive ‘through’ in s.134(1)(c) makes it clear that in this context social inclusion is a concept to be promoted through increased workforce participation. As the Expert Panel observed in the 2012-13 Annual Wage Review decision, obtaining employment is the focus of this consideration. 60

[96] The AHA contends this is a neutral consideration. Similarly, the UWU submits that it ‘weighs neither for or against the proposed variation.’ 61

[97] The ACTU contends that, if granted, the Application ‘may divert work opportunities from casual and part-time workers into additional hours for level 3 and above full-time workers covered by Schedule K’ and that this would ‘decrease workforce participation and reduce social inclusion for some workers.’ 62

[98] In our view s.134(c) is a neutral consideration. The asserted negative effects on the workforce participation of some employees is entirely speculative.

s. 134(1)(d) the need to promote flexible modern work practices and the efficient and productive performance of work

[99] The AHA submits the Application will promote more flexible modern work practices and is necessary given the need for flexibility and support as employers in the hospitality industry respond to the impact of COVID-19. 63 The Application will allow employers to opt for different payment styles for award covered employees, while remaining compliant with award obligations.

[100] The UWU concedes that s.134(1)(d) ‘may weigh in favour of the proposed variation, in so far as a loaded rate arrangement could be said to constitute a “flexible modern work practice”.’ 64

[101] The ACTU submits that flexible modern work practices should not come at a cost of reduced take home pay for workers, or at the expense of other factors to be considered as part of the modern awards objective. 65

[102] We are satisfied that this consideration weighs in favour of the amended draft variation.

s. 134(1)(da) the need to provide additional remuneration

[103] The AHA and UWU submit that s.134(1)(da) is a neutral consideration.

[104] The ACTU submits that this consideration weighs against granting the Application on the basis of the ACTU’s submissions regarding the ‘ways in which Schedule K could dispense with existing arrangements for the payment of additional remuneration (on an overall basis) to workers covered by Schedule K.’ 66

[105] Contrary to the ACTU’s submission, Schedule K does not ‘dispense with’ the provision of additional remuneration it simply substitutes overtime and weekend penalty payments with a higher loaded rate.

[106] We are satisfied that s.134(1)(da) is a neutral consideration.

s. 134(1)(e) the principle of equal remuneration for work of equal or comparable value

[107] This consideration is neutral; no party contended to the contrary.

s. 134(1)(f) the likely impact of any exercise of modern award powers on business, including on productivity, employment costs and the regulatory burden

[108] The AHA submits that the Application will reduce the regulatory and administrative burden for employers who do not have sophisticated payroll processes. 67

[109] The UWU contends that the proposed variation would increase the regulatory burden, because: 68

•  the variation would not change, in any way, the entirety of the regulatory burden required to be borne in relation to an employer’s employees who are not paid loaded rates; and

•  for those employers who pay some employees loaded rates, a different and significant additional regulatory burden must be borne to administer the loaded rates scheme, including the loaded rates parameters and the range of variables that can arise as a result of those parameters.

[110] The ACTU submits that notwithstanding that the adoption of Schedule K is voluntary for employers, it will increase complexity for businesses:

‘Schedule K contains a number of parameters, and provides for 6 different loaded rates – each with specific eligibilities. There is considerable risk that employers will apply the wrong rates to the wrong employees, or fail to adhere to the several parameters. This does not reduce the risk of wages non-compliance, but rather increases it due to the lack of familiarity with the proposed provisions.

Further, on the basis that Schedule K is unlikely to be adopted for all workers in an enterprise, it will create a system of dual regulation and the complexity that attaches to that.’ 69

[111] In reply the AHA submits that any additional regulatory burden ‘is only limited to understanding the loaded rate parameters of the Proposed Variation.’ 70 The AHA contends that once employers understand the parameters, enforcing it within the business will not be difficult.

[112] We accept the submission of AHA that the proposed variation will reduce the regulatory burden on employers. In this context we note that the loaded rates arrangements are optional, and we would expect that employers will weigh the administrative benefits and any short term additional regulatory burden when deciding whether to utilise the Loaded Rates Arrangements. On balance, this factor weighs in favour of making the amended draft determination.

s. 134(1)(g) the need to ensure a simple, easy to understand, stable and sustainable modern award system for Australia that avoids unnecessary overlap of modern awards

[113] The AHA contends that the proposed variation will make the Hospitality Award simpler and easier to understand:

‘the Proposed Variation goes to the heart of section 134(1)(g). Currently the Award has:

7 wage levels (not including juniors or apprentice classifications)

15 different allowances; and

5 different penalties (not including public holidays)

which apply to different employees at different times based on different days. The Award, without the Proposed Variation is a complex industrial instrument.

As a result of this, employers can be found liable for underpayment claims as a result of inadvertent errors being made due to the complexity of the Award and its legal requirements.

Further, various employee union bodies have raised their concerns regarding Award noncompliance in the hospitality industry.

The Proposed Variation balances the needs of:

employees by minimizing the instances of Award non-compliance, and

employers by creating a simplified pay structure which assists with better legal compliance and accountability.’ 71

[114] The UWU contends that this consideration weighs against the Application and submits:

‘The proposed variation is neither simple nor easy to understand. If the award, without the proposed variation, is a complex industrial instrument it is a more complex industrial instrument with it.’ 72

[115] Similarly, the ACTU submits that ‘employers will likely find the proposed new scheme difficult to understand and apply correctly.’ 73

[116] In reply the AHA contends that the proposed variation ‘provides clarity and simplicity by combining Award entitlements into one readily ‘packaged’ rate of pay, subject to clear and decisive parameters’ and that ‘the parameters of the Proposed Variation are no more complex than other loaded rate arrangements in enterprise agreements.’ 74

[117] In response to the submissions made regarding payroll processes, the AHA submits:

‘facilitating the inclusion of a loaded rate arrangement is no more difficult to manage and implement than those processes which already deal with the payment of wages (i.e., in complying with the parameters, it is an hourly rate multiplied by the loaded rate maximum weekly hours).’ 75

[118] In our view, on balance, this consideration weighs in favour of the amended draft variation.

s.134(1)(h) the likely impact of any exercise of modern award powers on employment growth, inflation and the sustainability, performance and competitiveness of the national economy

[119] The AHA and UWU submit that this is a neutral consideration. In particular, the UWU submits:

‘It may be that it is this factor which might be relevant to the impact of the COVID-19 pandemic, and the significant challenges being faced by this industry as a result….if there is any economic benefit associated with the variation (which is unclear) the benefit would be extremely marginal and not of sufficient weight to bear in favour of the variation in the context of the modern award objective.’ 76

[120] The ACTU submits that ‘due to the limited scope of Schedule K, it will have minimal positive impact on employment growth etc.’ 77

[121] In our view the proposed variation sought will have little impact on the sustainability, performance and competitiveness of the national economy. This matter in s.134(1)(g) is a neutral consideration.

[122] Taking into account the s.134(1) considerations we are satisfied that the variation of the Hospitality Award in the terms of the amended draft determination is necessary to achieve the modern awards objective.

[123] There is one final matter. As mentioned earlier, in the event that we are inclined to make the variation sought the UWU submits that:

•  Schedule K be limited to a term of operation of 12 months (where such period of operation could be extended on application);

•  A review be conducted in relation to the Schedule, which should commence no later than 9 months after its commencement date. The review should consider, among other things, the concerns raised by UWU in relation to its operation.

[124] Given the confined nature of the proposed variation and the various safeguards incorporated within it, we are not persuaded that it is necessary to limit the period of the operation of Schedule K; nor is it necessary to specify that a review of the schedule be conducted no later than 9 months after its commencement date.

[125] As we have noted (at [58] above) a conference will be convened after the publication of the 2021-22 Annual Wage Review decision to discuss whether the loaded rates require adjustment to ensure that employees are not worse off.

[126] Further, the UWU or any other interested party may apply to vary or delete Schedule K at any time.

[127] A variation determination in the terms of the amended draft variation will be published with this decision. The determination comes into operation on 3 September 2021. In accordance with s.165(3) of the Act, the determination will not take effect in relation to a particular employee until the start of the employee’s first full pay period that starts on or after 3 September 2021. We note that we have made some minor formatting amendments to the final variation determination. This has resulted in some numbering changes.

[128] We will also issue a second determination which will come into operation on 1 November 2021. This determination will increase the rates in the loaded rates clause in accordance with the Annual Wage Review 2020-21 decision. 78

PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR733326>

 1   [2021] FWCFB 4513 (‘July 2021 Statement’).

 2   Letter from Minister for Industrial Relations, 9 December 2020, p 1.

 3   [2020] FWC 6636.

 4   July 2021 Statement at [19]–[26].

 5   Letter from Minister for Industrial Relations, 9 December 2020, p 2.

 6   July 2021 Statement at [48].

 7   ABS, Weekly Payroll Jobs and Wages in Australia, Week ending 31 July 2021.

 8   AHA submission, 26 July 2021 at [20].

 9   AHA submission, 26 July 2021at [25].

 10   AHA submission, 26 July 2021 at [26].

 11   AHA submission, 26 July 2021 at [27]–[39].

 12   AHA submission, 26 July 2021 at [40]–[41].

 13   UWU submission, 20 August 2021 at [35].

 14   ACTU submission, 20 August 2021 at [15].

 15   ACTU submission, 20 August 2021 at [19]–[24].

 16   ACTU submission, 20 August 2021 at [24].

 17   UWU submission, 20 August 2021 at [27].

 18   Fair Work Act 2009 (Cth), s.134(1)(da) (‘Act’),

 19   Fair Work Act 2009 (Cth), s.139(2).

 20   Fair Work Act 2009 (Cth), s.3(c).

 21   July 2021 Statement at [21].

 22   4 yearly review of modern awards – Plain language – standard clauses [2017] FWCFB 5258 at [65].

 23   [2017] FWCFB 5258.

 24   4 yearly review of modern awards – Plain language – standard clauses [2017] FWCFB 5258 at [66].

 25   UWU submission, 20 August 2021 at [29(b)].

 26   UWU submission, 20 August 2021 at [30].

 27   UWU submission, 20 August 2021 at [32].

 28   UWU submission, 20 August 2021 at [34].

 29   ACTU submission, 20 August 2021 at [23].

 30   AHA submission, 27 August 2021 at [18]–[21].

 31   Letter from Minister for Industrial Relations, 9 December 2020, p 2.

 32   [2021] FWCFB 4513 at [23] and [24].

 33   UWU submission, 20 August 2021 at [41].

 34   UWU submission, 20 August 2021 at [41].

 35   UWU submission, 20 August 2021 at [41].

 36   UWU submission, 20 August 2021 at [43].

 37   AHA submission 27 August 2021 at [32]–[33].

 38   UWU submission, 20 August 2021 at [58].

 39   AHA submission, 27 August 2021 at [41]–[42].

 40   UWU submission, 20 August 2021 at [66].

 41   UWU submission, 20 August 2021 at [67].

 42   ACTU submission, 20 August 2021 at [15].

 43   See Health Sector Award – Pandemic Leave [2020] FWCFB 3561.

 44   Shop, Distributive and Allied Employees Association v National Retail Association (No 2) (2012) 205 FCR 227 at [35].

 45   4 yearly review of modern awards – Penalty rates [2017] FWCFB 1001 at [128]; Shop, Distributive and Allied Employees Association v The Australian Industry Group [2017] FCAFC 161 at [41]–[44].

 46   Annual Wage Review 2017-18 [2018] FWCFB 3500 at [21]–[24].

 47   Edwards v Giudice (1999) 94 FCR 561 at [5]; Australian Competition and Consumer Commission v Leelee Pty Ltd [1999] FCA 1121 at [81]–[84]; National Retail Association v Fair Work Commission (2014) 225 FCR 154 at [56].

 48   Shop, Distributive and Allied Employees Association v The Australian Industry Group [2017] FCAFC 161 at [33].

 49   National Retail Association v Fair Work Commission (2014) 225 FCR 154 at [105]–[106].

 50   See National Retail Association v Fair Work Commission (2014) 225 FCR 154 at [109]-[110]; albeit the Court was considering a different statutory context, this observation is applicable to the present context.

 51   See generally: Shop, Distributive and Allied Employees Association v National Retail Association (No.2) (2012) 205 FCR 227.

 52   4 yearly review of modern awards – Penalty rates [2017] FWCFB 1001 at [166].

 53   UWU submission, 20 August 2021 at [45].

 54   UWU submission, 20 August 2021 at [45(b)].

 55   UWU submission, 20 August 2021 at [45(a)].

 56   ACTU submission, 20 August 2021 at [33].

 57   ACTU submission, 20 August 2021 at [34].

 58   UWU submission, 20 August 2021 at [46].

 59   ACTU submission, 20 August 2021 at [36].

 60   [2012] FWCFB 4000 at [100]–[102].

 61   UWU submission, 20 August 2021 at [47].

 62   ACTU submission, 20 August 2021 at [37] and [38].

 63   AHA submission, 26 July 2021 at [30]–[31].

 64   UWU submission, 20 August 2021 at [48].

 65   ACTU submission, 20 August 2021 at [39].

 66   ACTU submission, 20 August 2021 at [40].

 67   AHA submission, 27 August 2021 at [58].

 68   UWU submission, 20 August 2021 at [51].

 69   ACTU submission, 20 August 2021 at [42] and [43].

 70   AHA submission, 27 August at [59].

 71   AHA submission, 26 July 2021 at [35]–[38].

 72   UWU submission, 20 August 2021 at [52].

 73   ACTU submission, 20 August 2021 at [44].

 74   AHA submission, 27 August 2021 at [61]–[62].

 75   AHA submission, 27 August 2021 at [63].

 76   UWU submission, 20 August 2021 at [53] and [54].

 77   ACTU submission, 20 August 2021 at [45].

 78   [2021] FWCFB 3500 and PR729263.