//
[2018] FWC 6075
General information, not legal advice.
Fair Work Commission
2018-10-01
Original judgment source is linked above.
4 yearly review of modern awards - Plain language re-drafting - General Retail Industry Award 2010
4 yearly review of modern awards - plain language re-drafting - General Retail Industry Award 2010.
[1] This Statement concerns the plain language re-drafting of the General Retail Industry Award 2010 (the Retail Award).
[2] Conferences have been held on 26 October 2017, 19 September 2017, 21 June 2018 and 27 September 2018 to discuss items raised by parties in relation to the plain language exposure draft of the Retail Award (the Retail PLED). A report was issued after the 19 September 2017 conference, setting out the status of the items.[1]
[3] A Statement issued on 23 July 2018[2] set out the outcome of the 21 June 2018 conference and the next steps in finalising the Retail PLED_._ Interested parties were invited to make submissions on outstanding issues.
[4] A revised Retail PLED (the revised PLED) was published on 25 July 2018.[3]
[5] Submissions and reply submissions were received from:
Business SA; and
Shop Distributive and Allied Employees' Association (SDA).
[6] A Conference agenda and revised list of outstanding items was published on the website before the September conference.[4] The September 2018 conference was attended by the SDA and ABI.
[7] This statement sets out the outcome of the September 2018 conference and the next steps for the plain language re-drafting of the Retail Award.
[8] During the September 2018 conference, parties were asked to confirm whether the proposed actions for provisionally resolved agenda items A1 - A10 resolved those items. SDA and ABI confirmed the proposed actions resolved agenda items A1 - A10 as follows:
Items 24 and 26 - clauses 10.6 and 10.7 - Part-time employment (regular pattern of work)
10.6 and 10.7 adopted as provisionally inserted into July 18 PLED
Item 30 - clause 10.10(b) - Changes to roster (part-time employment)
10.10(b) adopted as provisionally inserted into July 18 PLED
Item 33 - clause 11.2 - casual employment - new Note 2
New Note 2 adopted as provisionally inserted into July 18 PLED
New 28.4 adopted as provisionally inserted into July 18 PLED
Updated 15.3 adopted as provisionally inserted into July 18 PLED
Change heading of column 2 from 'breaks' to 'rest breaks' as per agreed position in next PLED
'Immediate family definition' and 23.6(b) adopted as provisionally inserted into July 18 PLED
Updated clause 26 note adopted as provisionally inserted into July 18 PLED
Item 72 - Schedule B - use of term 'ordinary hours'.
[9] The proposed actions will be applied to the next version of the PLED to resolve items A1 - A10.
Item 13 - Clause 7, Table 1 - Facilitative provisions
[10] Item 13 concerns Table 1 in clause 7 (Facilitative provisions for flexible working practices) of the revised PLED. In the September 2017 report, I indicated that this issue would be determined on the papers on the material before the Commission.[5]
[11] Business SA submits that the reference to clause 25.3 in Table 1 is not accurate and that the specific facilitative provision relating to time off instead of payment for overtime is clause 25.3(a).[6] Business SA submits that the rest of clause 25.3 (other than 25.3(a)) provides guidance regarding the agreement made under clause 25.3(a) and that therefore the table should refer to the specific facilitative provision, being 25.3(a).[7]
[12] The SDA submits that the reader must be guided about how clause 25.3(a) operates by reading the entire provision in context, and must therefore be directed to the full provision rather than a specific sub clause.[8]
[13] During the September 2018 conference, parties indicated that the Commission's proposal, to reference clause 25.3 in Table 1 - Facilitative provisions, was not opposed. This approach is consistent with the approach taken in relation to other awards in the 4 yearly review. For example, the Full Bench determined a similar issue in the plain language redrafting of the Restaurant Industry Award 2010 in decision [2017] FWCFB 5397 determined that the table should reference the entire clause.[9] This item is resolved on the basis that Table 1 will refer to clause 25.3.
Item 30A - 10.10(c) - Changes to roster (Part-time employment))
[14] Item 30A concerns Note 1 below clause 10.10(c) of the revised PLED (changes to roster) which states:
'NOTE 1: Clause 15.9(i) restricts an employer from changing a roster to avoid payment of any award entitlements.'
[15] Parties were provided an opportunity to review clause 10.10 following the publication of the revised PLED. The SDA submits that its preference is to retain the wording in the current award clause 12.8(c) and reinsert 'or to avoid any award entitlements' into clause 10.10(c) of the revised PLED, rather than insert a note.[10] No other further submissions were received on this issue.
[16] During the September conference ABI indicated it did not oppose the insertion of the words 'or to avoid any award entitlements' at the end of clause 10.10(c) provided Note 1 was deleted. The parties agreed that the issue is resolved by adding the words proposed by SDA to the end of clause 10.10(c) and deleting Note 1 below clause 10.10(c).
[17] During the course of the September conference the SDA contended that clause 11.1 of the revised PLED did not reflect the terms of clauses 12.6 and 13.1 of the current Award. At present clause 11.1 of the revised PLED states:
'11.1 An employee who is not covered by clause 9 - Full-time employment or clause 10 - Part-time employment must be engaged and paid as a casual employee.'
[18] Clauses 12.6 and 13.1 of the current Award state:
'12.6 An employee who does not meet the definition of a part-time employee and who is not a full-time employee will be paid as a casual employee in accordance with clause 13.'...
'13.1 A casual employee is an employee engaged as such.'
[19] It may be accepted that the terms of clause 12.6 and 13.1 of the current Award have not been reflected in clause 11.1 of the revised PLED. During the Conference a proposal was advanced by the Commission as a means of resolving the issue raised by the SDA. In short, it is proposed that clause 11.1 of the PLED be deleted and replaced by:
'11.1 A casual employee is an employee engaged as such.
11.2 An employee who is not covered by clause 9 - Full-time employment or clause 10 - Part-time employment must be paid as a casual employee.'
[20] Interested parties are invited to review the proposed amendment to clause 11 and make submissions by 4.00 pm, Friday 12 October 2018. Reply submissions are due 4.00 pm, Friday 19 October 2018.
Item 49 - Clause 15.7 - Rosters (Ordinary hours of work)
[21] Item 49 concerns the drafting of entitlements relating to consecutive days off. The revised PLED clause 15.7 was provisionally updated to reflect discussions at the October 2017 and June 2018 conferences as follows:
(a) A roster period cannot exceed 4 weeks except by agreement in clause 15.6(g)(v).
(b) The employer must not roster an employee to work ordinary hours on more than 5 days per week, except as provided by paragraph 15.6(g)(v).
(c) The employer may roster an employee to work ordinary hours on 6 days in one week if the employee is rostered to work ordinary hours on no more than 4 days in the following week.
(i) The employer must roster an employee to work ordinary hours in such a way that they have 2 consecutive days off per week or 3 consecutive days off per 2 week cycle.
(ii) Paragraph (i) is subject to any agreement for different arrangements entered into between the employer and an individual employee at the written request of the employee.
(iii) Different arrangements agreed under paragraph (ii) must be recorded in the time and wages record.
(iv) The employee may end an agreement under paragraph (ii) at any time by giving the employer 4 weeks' notice.
(v) An employee cannot be required as a condition of employment to make a request under paragraph (ii).
(vi) The maximum number of consecutive days on which an employee may be worked (whether ordinary hours or reasonable additional hours) is 6.'
[22] Interested parties were invited to review the revised PLED clause 15.7 and make submissions.
[23] The SDA opposes the revised PLED clause 15.7(d)(vi). It submits that this clause should be moved and renumbered to sit as a standalone under the subheading 'consecutive days off.'[11] The SDA also submits that the wording 'which an employee may be worked' is not consistent with clause 28.12 of the current award. The SDA proposes that the wording from clause 28.12 of the current award should be retained. [12]
[24] During the September 2018 conference interested parties agreed to resolve this issue by moving clause 15.7(d)(vi) to a standalone clause 15.7(e) with the subheading "consecutive days of work". SDA indicated a preference for the GRIA wording but indicated it would be content with the current PLED wording so long as it is moved to a standalone clause. Clause 15.7(d)(vi) of the PLED will be moved to a new clause 15.7(e) ) "consecutive days of work". This item is resolved.
[25] Business SA submits that there is a drafting error at clause 15.7(d)(vi), and the clause should be amended as follows:
'15.7(d)(vi) The maximum number of consecutive days on which an employee may be worked hours on which an employee may work (whether ordinary hours or reasonable additional hours) is 6.'[13]
[26] During the September 2018 conference United Voice opposed Business SA's submission. Business SA is invited to inform the Commission of whether it intends to press its submission by 4.00 pm, Friday 12 October 2018. If Business SA continues to press this submission, it should file further submissions in support of its proposed variation by the same day. Reply submissions are due 4.00 pm, Friday 19 October 2018.
[27] The SDA submits that the revised PLED clause 15.8(a) should be amended to delete the phrase 'unless otherwise agreed between the employer and the employee.' The SDA submits that 15.8(b) should be amended as follows:
'Paragraph 15.8(a) will not apply where an employee requests and the employer agrees to other arrangements.'[14]
[28] The SDA submits that this amendment would ensure the revised PLED is consistent with clause 28.13 of the current award, and is consistent with the approach to restructuring other rostering provisions of the revised PLED and objectives of the process.[15]
[29] Arising out of the discussions at the September 2018 conference I propose to vary clause 15.8 of the PLED as follows:
(a) The employer must roster an employee who regularly works Sundays in such a way that they have 3 consecutive days off (including Saturday and Sunday) per 4 week cycle.
(b) Paragraph (a) is subject to any agreement for different arrangements entered into by the employer and an individual employee at the written request of the employee.
(c) Different arrangements agreed under paragraph (b) must be recorded in the time and wages record.
(d) The employee may end an agreement under paragraph (b) by giving the employer 4 weeks' notice.
(e) An employee cannot be required as a condition of employment to agree to an arrangement under paragraph (b).'
[30] Interested parties are invited to review the proposed amendment to clause 15.8 and make submissions by 4.00 pm, Friday 12 October 2018. Reply submissions are due 4.00 pm, Friday 19 October 2018.
Item 51 - Clause 15.9 - Notification of rosters (Ordinary hours of work)
[31] Item 51 relates to notification of rosters under clause 15.9 of the revised PLED.
[32] The SDA raised a number of issues in their 10 November 2017 submission.[16] In the February 2018 Statement interested parties were invited to comment on SDA's submission. No party commented on the SDA's submission. The SDA made a further submission on 22 February 2017.[17] The SDA's proposed amendments were provisionally reflected in the revised PLED as follows:
(a) The employer must ensure that the work roster is available to all employees, either exhibited on a notice board which is conveniently located at or near the workplace or through accessible electronic means.
(i) the number of ordinary hours to be worked by them each week; and
(ii) the days of the week on which they will work; and
(iii) the times at which they start and finish work.
(c) The employer must retain a copy of each completed work roster for at least 12 months and produce it, on request, for inspection by an authorised person.
(d) Due to unexpected operational requirements, the roster of an employee may be changed by mutual agreement by the employer and employee at any time before the employee arrives for work.
(e) The employer may make permanent roster changes at any time by giving the employee at least 7 days' written notice of the change. If the employee disagrees with the change, the period of written notice of the change required to be given is extended to at least 14 days in total.
(f) The employer and employee may seek to resolve a dispute about a roster change in accordance with clause 40 - Dispute resolution.
(g) Paragraph (i) applies to an employee whose roster is changed in a particular week for a one-off event that does not constitute an emergency and then reverts to the previous roster in the following week.
(h) The employee must pay the employee at the overtime rate specified in Table 10 - Overtime rates for any extra time worked by the employee because of the roster change.
(i) An employer must not change the roster of an employee with the intention of avoiding payment of penalties, loadings or other applicable benefits. If the employer does so, the employee must be paid any penalties, loadings or benefits as if the roster had not been changed.
NOTE 1: clause 10.10 contains additional rostering provisions for part-time employees.
NOTE 2: see clause 31 - Rostering restrictions for the rosters of shiftworkers.'
[33] Interested parties were invited to review the revised clause 15.7 and make submissions.
[34] Business SA opposes the drafting of revised clause 15.9(h). Business SA submits that the legal operation of revised clause 15.9(h) goes beyond the operation of the equivalent current award clause 28.14(e). Business SA submits that clause 28.14(e) limits the requirement for extra time to be paid at the overtime rate overtime rate to 'where an employee's roster is changed with the appropriate notice for a once-only event caused by particular circumstances not constituting an emergency, and the roster reverts to the previous pattern in the following week.'[18]
[35] Business SA submits that 28.14 of the current award has been split into two clauses 15.9(g) and 15.9(h) in the revised PLED. They submit consequently the obligation in paragraph 15.9(h) gives the impression that the overtime rate is payable where any extra time is worked due to a roster change. They argue that this may not always be the case and provide the example of clause 15.9(d), which they say allows the roster of an employee to be changed by mutual agreement between the employee and the employer at any time before the employee arrives at work, provided the change is due to unexpected operational requirements.[19]
[36] Business SA provided two solutions to the issue they identify. The first option is to amend clause 15.9(h) to refer to clause 15.9(g) as follows:
'The employee must pay the employer at the overtime rate specified in Table 10 - Overtime rates for any extra time worked by the employee because of the roster change in clause 15.9(g).'[20] (Option 1)
[37] Alternatively, Business SA proposes that clause 15.9(h) could be added as a second sentence in clause 15.9(g) as follows:
'Paragraph (i) applies to an employee whose roster is changed in a particular week for a oneoff event that does not constitute an emergency and then reverts to the previous roster in the following week. The employer must pay the employee at the overtime rate specified in Table 10 - Overtime rates for any extra time worked by the employee because of this roster change.'[21] (Option 2)
[38] During the September 2018 conference, ABI and the SDA supported an amendment in the terms of Business SA's first option (at [36]). Clause 15.9 will be amended in the terms proposed by Business SA's first option.
[39] SDA also does not support the revised PLED clause 15.9(g), (h) and (i). They submit that clause 15.9(g) should not reference clause 15.9(i). They also submit that it is not clear that revised Retail PLED clauses 15.9(g) and (h) should be read together. They submit that paragraphs 15.9(g), (h) and (i) of the revised PLED should be redrafted to accurately reflect the logic of clauses 28.14(e) and (f) of the current General Retail Award.[22] In the September 2018 conference parties agreed that this issue could be resolved by amending the cross-reference in clause 15.9 from paragraph (g) to paragraph (h). These amendments resolve item 51.
Item 56A - Clause 16.6(b) - Breaks between work periods
[40] Issue 56A relates to whether the rate payable under clause 16.6(b) of the revised PLED compounds with other applicable penalties such as weekend penalties.
[41] The SDA previously submitted that that clause 16.6(b) should read 'that an employee will be paid double the rate they would be entitled to' which must be inclusive of all relevant penalties, overtime and loadings.[23]
[42] Business SA and ABI & NSWBC previously opposed the SDA's submission, arguing that such an interpretation is not supported by the current award and would be a substantive change.[24] Business SA submitted that where multiple penalties may be payable to an employee, the penalty which is to the greatest advantage to the employee will be paid. In the absence of further evidence from the SDA, Business SA opposed suggestions that the 200% rate compounds with other penalties.[25]
[43] Interested parties were invited to make further submissions on this issue.
[44] Business SA and the SDA rely on their earlier submissions on this issue.[26]
[45] During the September 2018 conference interested parties agreed that this item be resolved by retaining the wording of PLED clause 16.6(b). The issue in dispute relates to the meaning of the words 'the rate the employee would be entitled to...'. Item 56A is resolved on the basis that there is a level of ambiguity in the current provisions, which continues to exist in the terms of the PLED.
[46] SDA filed a late submission raising a new issue in relation to clause 17 (Work organisation). SDA submits there is no equivalent clause in the current award. Clause 17 of the revised PLED states:
An employer may require an employee to perform duties across the different classification streams set out in Schedule A - Classification Definitions that they are competent to perform."
[47] SDA submits clause 17 is inconsistent with the revised PLED clause 16 and current award clause 14 which do not entertain an employee being required 'to perform duties across the different classification streams'. SDA submit that clause 17 should be deleted.[27]
[48] During the September 2018 conference ABI sought the opportunity to take this item on notice. ABI and any other interested party are to file submissions regarding the proposed deletion of PLED clause 17 by 4.00 pm, Friday 12 October 2018. Reply submissions are due 4.00 pm, Friday 19 October 2018.
[49] Item 57 concerns the minimum rates table in clause 18.1 of the revised PLED and was discussed at the October 2017 conference.[28] In the September 2017 report, I indicated that this issue would be determined on the papers on the material before the Commission.[29]
[50] SDA submits that additional notes in relation to penalty rates, overtime and public holidays should be inserted into the clause as follows:
'NOTE 4: Clause X - Overtime sets out rates of pay when overtime applies.
NOTE 5: Clause X - Penalty rates sets out rates of pay when penalties should apply.
NOTE 6: Clause X - Public holidays sets out rates of pay for work on Public holidays.'[30]
[51] SDA submits that clause 18.1 is unclear, and additional notes would better inform the reader about all the rates that must be considered in relation to payment of wages under this Award.[31]
[52] Business SA submits that it is not necessary to insert additional notes under clause 18.1, and the additional notes go beyond assisting minimum rate calculations. Business SA submits that the three notes already in place in clause 18.1 adequately assist the reader in calculating the minimum rate payable to an employee.[32] ABI & NSWBC submit that their clients oppose the insertion of the three notes proposed by the SDA.[33]
[53] During the September 2018 conference I confirmed that this item would be determined on the papers on the basis of submissions already before the Commission.
[54] Issue 62A relates to the term 'appropriate rate of pay' in clause 23.11 (concerning the recall allowance) of the revised PLED. During the June 2018 conference Business SA submitted that 'appropriate rate of pay' means the applicable ordinary hourly rate.[34] The SDA submitted that 'appropriate rate of pay' means the appropriate overtime rate, and that as an employee is being recalled to work that rate may be time and half or double time.[35]
[55] The parties acknowledged that the 'appropriate rate of pay' is ambiguous and the Commission indicated that they would be given the opportunity to examine any award history in relation to clause 23.11 and make further submissions.[36] Parties were asked whether they wanted to argue a case based on award history or leave the phrase 'appropriate rate of pay' in the PLED with a level of ambiguity.
[56] The SDA indicated that it would make no further submissions in relation to this issue.[37] No other submissions were received on this issue.
[57] During the September 2018 conference the parties agreed that item 62A is resolved by retaining the current award wording 'appropriate rate of pay'. This resolution acknowledges ambiguity about the meaning of 'appropriate rate of pay' in the current award.
[58] Item 63 relates to reasonable overtime and is being dealt with in other proceedings. A decision was issued in relation to reasonable overtime on 17 September 2018.[38]
[59] Item PTC1 relates to amendments made to clause 25 (overtime) of the revised PLED as a result of the part-time and casual Full Bench proceedings.[39]
[60] At the June 2018 conference parties sought the opportunity to review the overtime clause in the context of changes to the rostering provisions at clauses 10 and 15, and make submissions once issues surrounding the rostering provisions (items 49 and 51) of the revised PLED are resolved.[40]
[61] During the September 2018 conference the SDA noted the PLED overtime clause reflects the current clause, but reserved its position to review the PLED in its entirety. Parties also noted changes may be arise from the Overtime for Casuals common issue. Interested parties will have the opportunity to make submissions if amendments to other clauses of the PLED result in unintended consequences.
Item 69 - Clause 27.1 (Application of Part (Shiftwork)
[62] Item 69 concerns clause 27.1 of the revised PLED. Business SA seeks to insert the word 'specifically' into clause 27.1 as follows:
'27.1 Part 6 applies only to persons specifically employed to do shiftwork.'[41]
[63] Business SA submits that the relevant clause in the current award contains the word 'specifically':
'30.1(a) This clause will only apply to persons specifically employed as shiftworkers under this award.'
[64] Business SA submits that the PLED clause is less clear than the current award equivalent at clause 30.1(a), and that, given that clause 27 in general seeks to make it clear which employees Part 6 applies to, the word 'specifically' should be reinserted.[42]
[65] SDA agrees that the word 'specifically' should be inserted into clause 27.1.[43] Item 69 is resolved by inserting the word 'specifically' in clause 27.1.
[66] A further revised PLED reflecting the changes in this decision will be published shortly.
[67] Interested parties are invited to make final submissions in relation to the items in paragraphs [20], [26], [30] and [48] by 4.00 pm, Friday 12 October 2018. Reply submissions are due by 4.00 pm, Friday 19 October 2018.
[68] Interested parties are also invited to make submissions on any unintended consequences arising from amendments to the PLED by 4.00 pm, Friday 19 October 2018.
[69] All material should be sent to amod@fwc.gov.au.
[3] Revised Retail PLED, 25 July 2018.
[4] Conference agenda and revised list of outstanding items, 21 September 2018.
[5] Report, 19 September 2017, paragraph [2].
[6] Business SA submission, 2 August 2017, paragraph 2.3.
[7] Business SA submission, 2 August 2017, paragraph 2.3.
[8] SDA submission, 17 August 2017, paragraph 6.
[9] [2017] FWCFB 5397, [9]-[16].
[10] SDA submission, 16 August 2018, paragraph 7.
[11] SDA submission, 16 August 2018, paragraph 11.
[12] SDA submission, 16 August 2018, paragraph 12.
[13] Business SA submission, 7 August 2018, paragraph 4.
[14] SDA submission, 16 August 2018, paragraph 13.
[15] SDA submission, 16 August 2018, paragraph 13.
[16] SDA submission, 10 November 2017, paragraphs 17 - 20.
[17] SDA submission, 22 February 2018, paragraph 10.
[18] Business SA submission, 7 August 2018, paragraph 5.1-5.7.
[19] Business SA submission, 7 August 2018, paragraph 5.1-5.7.
[20] Business SA submission, 7 August 2018, paragraph 5.8.
[21] Business SA submission, 7 August 2018, paragraph 5.9.
[22] SDA submission, 10 November 2017, paragraphs 14.
[23] SDA submission, 10 November 2017, paragraph 22; Transcript, 21 June 2018, paragraphs 198 - 208.
[24] Business SA submission, 22 February 2018, paragraph 5.1.
[25] Business SA submission, 22 February 2018, paragraph 5.2.
[26] Business SA submission, 7 August 2018, paragraph 7.1, SDA submission, 22 February 2018, paragraph 16.
[27] SDA submission, 25 September 2018, paragraphs 4 - 6.
[28] Transcript, 26 October 2017, paragraphs 310 - 318.
[30] SDA submission, 4 August 2017, paragraph 29.
[31] SDA submission, 20 September 2017, page 2.
[32] Business SA submission, 20 September 2017, paragraph 6.
[33] ABI & NSWBC submission, 20 September 2017.
[34] Transcript, 21 June 2018 paragraphs 235.
[35] Transcript, 21 June 2018 paragraphs 231.
[36] Transcript, 21 June 2018 paragraphs 229-241.
[37] SDA submission, 16 August 2018, paragraph 19.
[40] Transcript, 21 June 2018, paragraphs 298 - 300.
[41] Business SA submission, 2 August 2017, paragraph 7.
[42] Business SA submission, 2 August 2017, paragraph 7.
[43] SDA submission, 25 September 2018, paragraphs 7 - 8.
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