s 160 - Application to vary a modern award to remove ambiguity or uncertainty or correct error

BROADCASTING, RECORDED ENTERTAINMENT AND CINEMAS AWARD 2020

[MA000091]

Application to vary a modern award to remove ambiguity or uncertainty or correct error - Broadcasting, Recorded Entertainment and Cinemas Award 2020 - Clause 60 - Meal breaks - Clause ambiguous and uncertain - variation to be made.

• [1] Mr Joshua Anderson has applied under s 160 of the Fair Work Act 2009 (Cth) (the Act) for a determination varying the Broadcasting, Recorded Entertainment and Cinemas Award 2020 (the Award) to remove an ambiguity or uncertainty (the Application). The Application seeks to vary Clause 60 to clarify cinema workers' entitlement for meal breaks and/or penalties for work of 5 hours or more.

• [2] On 4 June 2025 I issued Directions that interested parties file a position paper in relation to the application by 25 June 2025. The only position paper received was from the Cinema Association of Australasia (CAA).

• [3] A conference was held on 8 July 2025. It was attended by Mr Anderson and CAA. During the conference it became clear that a counterproposal advanced by CAA would be acceptable to Mr Anderson. On that basis I issued a Statement on 29 July setting out the proposed variation and inviting interested parties to make submissions on it.[1]

• [4] The President has since issued a direction pursuant to s 616(3D)(a) of the Act that I deal with the Application.

• [5] I have, for the reasons that follow, and subject to any further comment on the draft determination, decided to make the variation in the terms set out below. A draft determination will issue with this decision.

• [6] The Application is confined to Clause 60 of the Award which deals with meal breaks. The clause is in the following terms:

60.1 The employer must allow a meal break of 30 minutes or, if the employee and the employer agree, up to 60 minutes when employees are working a rostered period of work in excess of 5 hours unless that rostered work period would end within that meal break.

60.2 Employees required to work beyond 5 hours without a meal break will be paid at 200% of the minimum hourly rate for the period of the meal break.

• [7] The clause was inserted into the predecessor Broadcasting and Recorded Entertainment Award 2010 by a variation ordered by a Full Bench of the Australian Industrial Relations Commission in Australian Entertainment Industry Association.[2] The Full Bench observed that the clause "appear[ed] to have been inadvertently omitted" from the modern award.

• [8] The substance of the Clause inserted was taken from the Entertainment and Broadcasting Industry - Cinema Award - 1998 which, at Clause 25 provided_:_

The employer must allow a meal break of 30 minutes or, if the employee and the employer agree, up to one hour when employees are working a rostered period of work in excess of 5 hours unless that rostered work period would end within that meal break. Employees required to work beyond 5 hours without a meal break will be paid double the ordinary rate for the period of the meal break.

• [9] The Commission's jurisdiction to vary a modern award pursuant to s 160 is limited to removing "an ambiguity or uncertainty or to correct an error". Accordingly, I must be satisfied that the current clause is ambiguous, uncertain or that it contains an error.

• [10] In a Statement of 29 July 2025 I directed interested parties to make submissions. In addition to the initial submissions received from Mr Anderson and the CAA I have received and had regard to submissions made by:

• The Media, Entertainment and Arts Alliance (MEAA);
• The Greater Union Organisation Pty Ltd;
• The HOYTS Corporation Pty Ltd;
• Live Performance Australia; and
• Village Cinemas Australia Pty Ltd.

• [11] Each of the parties accept that Clause 60 is affected by ambiguity and uncertainty of a kind that enlivens the Commission's jurisdiction to vary the provision under s 160.

1. the failure to specify whether meal breaks are paid or unpaid;
2. whether the meal break entitlement only arises during a 'rostered' period of work that is in excess of 5 hours, as opposed to a period of work in excess of 5 hours that is not 'rostered';
3. the inclusion and interpretation of the phrase 'unless that rostered work period would end within that meal break'; and

• 4. the interaction between clauses 60.1 and 60.2.[3]

• [13] I am satisfied that, and I find that Clause 60 is ambiguous and uncertain. Being so satisfied, I turn to the proposed variation.

• [14] The variation proposed by the CAA and agreed by Mr Anderson is in the following terms:

60.1 The employer must allow an unpaid meal break of 30 minutes (or, if the employee and the employer agree, up to 60 minutes) when employees are working a rostered period of work that is in excess of 5 hours unless that rostered work period would end within that meal break.

60.2 Employees required to work beyond 5 hours without being provided with a meal break in accordance with clause 60.1 will be paid at 200% of the minimum hourly rate for the period of the meal break."

• [15] Of the submissions received, all parties save for the MEAA supported the proposed variation in the terms circulated. The MEAA did not oppose the proposed variation.

• [16] The power to vary must be directed at removing the identified ambiguity, uncertainty or error. Accordingly, I must be satisfied that the proposed variation would so function.

• [17] In Variation on the Commission's own motion - Modern award superannuation clause review ( [2023] FWCFB 264) the Full Bench noted at [53] that:

Because s 160 is found within Part 2-3 of Chapter 2 of the FW Act, it is arguable that the exercise of the discretion must be guided by the modern awards objective in s 134(1) since s 134(2)(a) provides that the modern awards objective 'applies to the performance or exercise' of the Commission's function and powers under Part 2-3.

• [18] Accordingly, I have regard to the modern awards objective set out at s 134 of the Act. I note particularly s 134(1)(g) being "the need to ensure a simple, easy to understand, stable and sustainable modern award system for Australia that avoids unnecessary overlap of modern awards".

• [19] I am satisfied that the proposed variation would remove the ambiguity and uncertainty that I have found above. I am also satisfied that the proposed variation both simplifies and clarifies the meal break entitlement, and to that extent conforms to modern awards objective.

• [20] A draft determination will be issued simultaneously with this decision.

• [21] Interested parties will have 7 days to provide any submissions on the draft determination. In the absence of any issues being identified, I will proceed to issue the final determination and vary the Award after that date.

[1] [2025] FWC 2204.

[2] [2009] AIRCFB 998.

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