The attached document replaces the document previously issued with the above code on 9 July 2021.

Conference date amended to 11.00am Monday 9 August 2021.

[2021] FWC 3905

Fair Work Act 2009

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

Application to vary a modern award to remove ambiguity or uncertainty or to correct error -- General Retail Industry Award 2020 - clause 11- minimum engagement for casual employees - conference to be convened.

[1] The Commission has received an application to vary the General Retail Industry Award 2020 (the 2020 Award) from the Australian Payroll Association Pty Ltd pursuant to s.160 of the Fair Work Act 2009 (FW Act) to remove ambiguity or uncertainty.

[2] The President has referred the application to me to deal with pursuant to s.616(3D)(a) and s.582 of the FW Act.

[3] The application is in relation to clause 11 - Casual employees (clauses 11.3 - 11.6 in particular).

[4] Clause 11 of the 2020 Award relevantly states:

11.1 A casual employee is an employee engaged as such.

11.4 An employer must pay a casual employee for a minimum of 3 hours' work, or 1.5 hours' work in the circumstances set out in clause 11.5, on each occasion on which the casual employee is rostered to attend work even if the employee works for a shorter time.

(a) the employee is a full-time secondary school student; and

(b) the employee is engaged to work between 3:00 pm and 6:30 pm on a day on which the employee is required to attend school; and

(c) the employee, with the approval of the employee's parent or guardian, agrees to work for fewer than 3 hours; and

(d) employment for a longer period than the agreed period is not possible either because of the operational requirements of the employer or the unavailability of the employee.

11.6 An employer must pay a casual employee at the end of each engagement or weekly or fortnightly in accordance with pay arrangements for full-time and part-time employees.

[5] In its application the Australian Payroll Association says:

I am writing in relation to clause 11.4 of the GRI Award in relation to paying casuals a minimum of 3 hours work. The change in the wording to the clause states that an employer must pay a casual a minimum of 3 hours work, which implies even if the employee goes home sick and works less than 3 hours then the employer must pay them 3 hours. I gather this was not the intention as an employee can then come in and after an hour say they are sick and they get paid 3 hours, so employers may be overpaying employees as a result of the change of the wording for this clause.

Can you please investigate and ideally make it clearer again the Award?

[6] The earlier provisions in the General Retail Industry Award 2010 (2010 Award) state:

13.4 The minimum daily engagement of a casual is three hours, provided that the minimum engagement period for an employee will be one hour and 30 minutes if all of the following circumstances apply:

(a) the employee is a full-time secondary school student; and

(b) the employee is engaged to work between the hours of 3.00 pm and 6.30 pm on a day which they are required to attend school; and

(c) the employee agrees to work, and a parent or guardian of the employee agrees to allow the employee to work, a shorter period than three hours; and

(d) employment for a longer period than the period of the engagement is not possible either because of the operational requirements of the employer or the unavailability of the employee.

[7] During the 4 yearly review of modern awards a number of awards were varied to incorporate 'plain language'. Clause 11.4 was amended during this plain language process. The Commission published a plain language exposure draft of the 2010 Award on 5 July 2017. It also published a document comparing the 2010 Award with the plain language exposure draft.

[8] Parties were given the opportunity to provide submissions on the plain language exposure draft (PLED). Submissions were filed by:

• ABI on 3 August 2017

• Business SA on 2 August 2017

• SDA on 4 August 2017

[9] Submissions in reply were filed by:

• ABI on 22 August 2017

• Business SA on 22 August 2017

• SDA on 17 August 2017

[10] The SDA, in its written submissions of 4 August 2017, did not support the insertion of clauses 11.3 and 11.4, arguing that the current clause 13.4 should be retained:

76. The proposed variations to GRIA clause 13.4 are substantive and the reader is not aided by the plain language redraft of clause 11.3 and 11.4.

77. It is not made clear that the clauses 11.3 and 11.4 should be read together.

78. The reference to a minimum daily engagement of 3 hours for casual employees has been removed. As stated at paragraph 47 in relation to part-time employment, this is a substantive change.

79. The SDA does not support the insertion of clauses 11.3 and 11.4. GRIA clause 13.4 should be retained.

[11] Paragraphs [76]-[79] of the SDA submission became 'item 34' in the summary of submissions document produced by the Commission on 5 September 2017 and re-published on 18 October 2017.

[12] Item 34 was raised a number of times with the parties in conferences and hearings but little of substance appears to have been said on these issues. Following the conference on 19 September 2017, only Business SA appears to have made a submission on 20 September 2017 in relation to item 34 as follows:

5.1 Business SA submits the SDA's concern regarding clauses 11.3 and 11.4 is unwarranted. It is clear that these clauses are to be read together as clause 11.3 expressly refers to 'work in the circumstances set out in clause 11.4.

[13] ABI did not make any submission on this issue.

[14] No party made a submission about the inclusion of the words 'even if the employee works for a shorter time'.

[15] The SDA ultimately withdrew the issue at item 34 at the June 2018 conference - see Commission Statement [2018] FWC 4046 at [17].

[16] The redrafted clause was consequently inserted into the final award without further amendment.

[17] As mentioned in the excerpt from the SDA submissions of 4 August 2017 at [10] above, the SDA raised a similar matter in relation to the part-time employment provisions as proposed in the PLED. In respect to part-time employment the 2010 Award included that:

12.2 At the time of first being employed, the employer and the part-time employee will agree, in writing, on a regular pattern of work, specifying at least:

12.5 An employer is required to roster a part-time employee for a minimum of three consecutive hours on any shift.

[18] The PLED proposed that this be amended to read:

10.9 An employer must roster a part-time employee on any shift for a minimum of 3 consecutive hours.

[19] In response to this redrafting the SDA, in its submission of 4 August 2017, contended:

The phrase 'minimum daily engagement is three hours' has been removed from the exposure draft. This is a substantive change which removes the 'minimum daily engagement' from part-time employment which has the effect of allowing part-time employees to be engaged on more than one occasion per day. The GRIA does not permit this.

[20] The Plain Language (PL) expert subsequently provided drafting comments which were recorded in the Revised summary of submissions. The comment in relation to this issue was:

I suggest that 10.9 might be re-worded as "The minimum daily engagement for a part-time employee is 3 consecutive hours".

[21] This suggestion was accepted and the clause 10.9 in the 2020 Award is in those terms.

[22] No party pressed for a similar change to the redrafted casual provisions even though the minimum payment terms for casual and part-time employees in the 2010 Award were both expressed as a 'minimum daily engagement'.

[23] The Australian Payroll Association does not outline any particular variation to the 2020 Award but rather seeks that the Commission 'please investigate and ideally make it clearer...'.

160 Variation of modern award to remove ambiguity or uncertainty or correct error

(1) The FWC may make a determination varying a modern award to remove an ambiguity or uncertainty or to correct an error.

(2) The FWC may make the determination:

• (a) on its own initiative; or

• (b) on application by an employer, employee, organisation or outworker entity that is covered by the modern award; or

• (c) on application by an organisation that is entitled to represent the industrial interests of one or more employers or employees that are covered by the modern award; or

• (d) if the modern award includes outworker terms - on application by an organisation that is entitled to represent the industrial interests of one or more outworkers to whom the outworker terms relate.

[25] Given the requirements of s.160(2) it is not immediately apparent that the Australian Payroll Association has standing to make the application (unless it is otherwise covered by the 2020 Award). If this is the case it still remains open to the Commission to vary the 2020 Award on its own initiative if the relevant requirements are met and this is necessary.

[26] I have determined to convene a conference of all interested parties in relation to this matter to consider how the application should proceed.

[27] A conference will be convened by telephone at 11.00am Monday 9 August 2021.

[28] Parties are asked to advise the chambers of Commissioner Bissett of their details for participation in the conference at chambers.bissett.c@fwc.gov.au by no later than 4.00pm Friday 6 August 2021.

[29] Correspondence in relation to this matter should be sent to chamber.bissett.c@fwc.gov.au. Chambers will ensure that materials are published to the Fair Work Commission website.

[30] All correspondence, parties submissions, notices of listing and decisions will be issued via the webpage established in relation to this application. A dedicated My awards subscription service called "General Retail Industry Award 2020" is used for this matter and interested parties are requested to subscribe to receive notifications on the subscription services page on the Commission's website. Any questions regarding the subscription service can be sent to amod@fwc.gov.au.

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