Australian Industrial Relations Commission (Full Bench)|2009-05-22

Award Modernisation - Statement - Full Bench [2009] AIRCFB 450 (22 May 2009)

Request from the Minister for Employment and Workplace Relations - 28 March 2008

[1] This statement deals with award modernisation and in particular the exposure drafts for Stage 3. The statement should be read in conjunction with earlier statements and decisions but particularly the decisions relating to the making of the priority modern awards and the Stage 2 modern awards made on 19 December 2008 and 3 April 2009 respectively.[1]

[2] Stage 3 is by far the largest stage in award modernisation. It covers some 39�industries and occupations. We publish with this statement 50 draft awards. Proposals, submissions and other material in relation to the draft awards are to be lodged with the Commission by 12 June 2009. Material can be lodged by post, fax or email and all material lodged will be made available through the internet as soon as practicable. The Full Bench will sit to conduct consultations in relation to the Stage�3�awards for two full weeks between 22�June and 3�July 2009. In the week of 22�June the consultations will be in Melbourne. In the week of 29�June the consultations will be in Sydney. The primary method of dealing with the exposure drafts is by interested parties lodging their views in writing. The consultations are only intended to give parties an opportunity to respond to matters raised by others and not to restate or summarise the material already lodged. We reiterate the view, expressed in a number of statements and decisions, that parties should adhere to the timetable for lodgement. If they do not they run the risk that their contributions will be received too late to be given proper consideration by other parties or by the Commission. Before dealing with the individual exposure drafts there are some matters of general relevance which should be mentioned.

[3] First we think that it is important to reiterate the way in which the modernisation process operates and the purpose of the exposure drafts. Award modernisation is carried out by the Commission subject to the terms of Part XA of the Workplace Relations Act 1996 (Cth) (the Act) and in accordance with a request from the Minister for Employment and Workplace Relations (the Minister). The request has been varied by subsequent amendments on two occasions. The first occasion was on 19 December 2008. The second occasion was on 2 May 2009. We refer to the request as varied as the consolidated request. The process requires the making of a comprehensive set of modern awards by 31�December 2009. The procedure is now reasonably well established. It primarily involves the lodgement of proposals, submissions and other material by interested parties, pre-drafting consultations, publication of exposure drafts by the Commission, lodgement of proposals submissions and other material in relation to the drafts by the parties, further consultations and, finally, publication of the modern awards by the Commission. While the publication of exposure drafts is a critical step in the process, the drafts reflect a provisional view only and changes can and will be made on the basis of the material advanced by the parties. In some cases the drafts may be incomplete because the Commission has not had sufficient information to form even a provisional view in relation to a particular matter.

[4] The modern awards are not to contain State or Territory based differences although there is provision for such differences for a transitional period of five years. We have previously decided that in relation to the first two Stages of award modernisation we would consider whether any transitional provisions were necessary after the modern awards had been made. The published award modernisation timetable makes provision for that process. We have also decided to defer consideration of transitional provisions in the Stage 3 awards. At the time of publication of the Stage 3 awards, scheduled for 4 September 2009, we shall also publish a timetable for submissions and further consultation dealing with the nature of any transitional provisions required in light of the provisions of each modern award as a whole.

[5] We have taken the recent variation to the consolidated request into account in formulating the Stage 3 exposure drafts published with this statement. That variation dealt with principles of equal remuneration, award exemption clauses, individual flexibility terms, industry specific considerations, supplementation of the National Employment Standards (NES), franchisee awards and pieceworker base rates of pay. The President of the Commission was notified of the variation by letter from the Minister dated 7 May 2009. That letter, as well as the consolidated request, has been published on the Commission's website. We have not yet had the benefit of any input from the parties concerning the impact of the variation on the terms of the Stage 3 awards. We shall of course take any comments into account in finalising those awards. There is, however, one matter of importance which requires attention in connection with a number of Stage 3 awards. That matter concerns piecework and in particular the calculation of pay for pieceworkers during paid leave provided for in the NES, including annual leave.

[6] We note that while a number of pre-reform awards and Notional Agreements Preserving State Awards (NAPSAs) provide for piecework it is rare that the conditions of pieceworkers are not based in one respect or another on time. Typically piecework rates are based in some way on the quantity which could be produced by an average employee. This is in many cases subject to a minimum payment contained in a stipulation that the weekly remuneration of a pieceworker cannot fall below a particular amount fixed as a percentage above the ordinary pay for the relevant classification. It may be that an employee working under such provisions should be treated as a timeworker for the purpose of calculating pay while on leave. We also note that many pre-reform awards and NAPSAs do not exclude pieceworkers from the requirements governing ordinary hours of work. In those cases the view might be taken that any piecework should be dealt with by overaward arrangements. Among the industries in which these issues arise in Stage 3 are the wine industry and the timber industry. Where, on the other hand, there is provision for the establishment of a piecework rate but no provision for a minimum payment based on timework or for the application of ordinary hours, an averaging approach may be appropriate in calculating paid leave. Another possibility is to include a component in the piecework rate which is referable to paid leave. There may be other alternatives. We do not think these matters have as yet been adequately discussed. The variation to the consolidated request emphasises the need for such discussion, which should also take into account the relevant provisions of the Act, including the provisions in Division 2 and 4 of Part 7, the terms of the NES and the relevant terms of the consolidated request.

[7] Another more general issue arises in connection with the recent variation to the consolidated request. It is likely that the variation will have some significance in relation to modern awards made in the priority stage and in Stage 2. We do not intend, however, to initiate a review of those awards as that course would lead to considerable delay in completing modernisation. A party covered by a modern award who wishes to challenge terms in that award based on the variation to the consolidated request should make an appropriate application.

[8] In considering provisions related to the contract of employment and types of employment we do not feel that it is appropriate to include provisions providing expressly for probationary, fixed term or seasonal employment in modern awards unless there is a particular reason for doing so. Provided nothing in the award prohibits probationary, fixed term or seasonal employment, they are matters which parties can agree on at the commencement of employment. We do not see any general need for award regulation of those matters. Nor do we think it is appropriate to include requirements that employees work to a particular level of skill or competence or in a particular general fashion. Such requirements simply add to the amount of regulation. While they may have had historical importance, in most cases they no longer serve any useful purpose.

[9] We again draw to parties' attention the need in a number of industries to update and rationalise allowances. Many allowances in pre-reform awards and NAPSAs are inappropriate for inclusion in a modern award because they apply only to one establishment or in one State or Territory. Others may be of uncertain application, excessively detailed, difficult to apply, of little monetary value or simply obsolete. We urge parties to give further consideration to this issue in relation to the Stage 3 awards.

[10] Finally we note that there are a large number of references to legislation, the NES and other matters in the exposure drafts which will require alteration before the awards are finalised. We have not thought it appropriate to anticipate the passage of transitional and consequential legislation. It is prudent to wait until all of the legislative changes are known so that all necessary changes can be made at the same time.

[11] We turn now to the Stage 3 exposure drafts. We shall deal with them according to the industry or occupation to which they are relevant. An alphabetical list of the drafts is in Attachment A.

[12] Airline operations in Australia include the operations of international carriers, domestic and regional aircraft, aircraft used for agricultural and other specialty purposes, passenger and freight transport, fixed wing aircraft and helicopters. A large number of awards apply to parts of the industry, different occupational groups and some of the larger enterprises.

[13] Because air pilots are a discrete type of employment it is not convenient to combine terms and conditions with those applying to other categories of employment under one award. The parties to existing awards have been involved in extensive consultations on the terms of a single award for pilots. Although there are complexities arising from differences between different types of operations the parties have made significant progress in rationalising provisions within the limits of practicality. We have revised the award in an effort to reduce those complexities further, and publish an exposure draft of the Air Pilots Award 2010 for comment. It is drafted as an occupational award for pilots employed in all industries except in the very limited situation where an industry award contains classifications for pilots.

[14] Cabin crew are engaged in a more limited range of operations but the nature of their employment also does not lend itself to common regulation with any other type of airline industry employee. The rationalisation of international, domestic and regional terms and conditions has been possible to a large extent, although certain differences are proposed to be maintained. Any potential for further rationalisation should be addressed by the parties in their comments on the exposure draft. It is desirable that there is greater uniformity in the safety net for cabin crew. We publish an exposure draft of an Aircraft Cabin Crew Award 2010. It applies within the airline industry to cabin crew classifications.

[15] There was not full agreement on the structure of awards to apply to ground staff. The Transport Workers Union (TWU) favours the separation of transport workers into a separate award. Australian Industry Group (AiGroup) proposes coverage of engineering employees by the Manufacturing and Associated Industries and Occupations Award 2010 (Manufacturing Modern Award).[2] Other parties generally support a significant degree of aggregation of ground staff work groups. We have prepared a draft award covering all employees within the specified classifications in transport, clerical, maintenance and stores streams where the employer is involved in either operating aircraft or performing ancillary on-airport servicing of aircraft. The Airline Operations-Ground Staff Award 2010 is drafted to apply to the exclusion of other awards. Maintenance conducted away from an airport would remain covered by the Manufacturing Modern Award.

[16] We have sought to adopt classifications currently applicable in the airline industry for transport workers, clerical, maintenance and stores employees and applied rates that we believe reflect properly fixed minimum rates for the classifications involved. We have included an eight level structure for each of the transport, clerical and maintenance streams and a five level structure for the stores and logistics streams. Obviously in an exercise such as this there is a balance to be struck in formulating classifications and rates because of the significant differences that exist between the current instruments.

[17] We publish a draft Airport Employees Award 2010. Airport operations involve the operation of infrastructure at airports so as to allow airlines to conduct their operations. Airports vary in their size and nature. Generally, however, relevant award covered employees fall into the categories of clerical and administration employees, technical employees and ground operations staff.

[18] An existing federal award applies to most airports. It had its origins in an award which applied to the Federal Airports Corporation when that body operated most airports on behalf of the Commonwealth. Most airports have now been privatised and the level of prescription in the existing award is not appropriate for private sector infrastructure operations of the type now covered. We have endeavoured to simplify and shorten the award. We have had regard to the draft award proposed by the unions who are party to the current award. The input from employers has been limited. We would be greatly assisted by comments from all affected parties on the draft. Further simplification of the award will make it simpler to understand and apply.

[19] There are no general awards which apply in the aluminium industry. In this industry award regulation is in the main by way of enterprise awards. There is one NAPSA that covers one operation (although we were told that the terms and conditions at that operation were regulated by a workplace agreement). Nevertheless, there is a general consensus among the parties that participated in the consultations that a modern award should be made for the aluminium industry. There were no submissions vigorously opposing such a course. We have decided that it is appropriate, in the circumstances, to make a modern award for the aluminium industry. We publish a draft Aluminium Industry Award 2010.

[20] There is considerable consensus amongst the parties as to the coverage of a modern award for the aluminium industry. In general terms, we have decided that the modern award should cover bauxite operations and all processing, refining, smelting, casting and rolling operations performed in connection with the treatment of bauxite, alumina, aluminium or any of their derivatives. The industry should include power and steam generation and material handling at a port, provided the power/steam generation and materials handling (in whole or in part) are directly related to the bauxite/alumina/aluminium operations or activities described earlier. The award should not cover manufacturing operations covered by the Manufacturing Modern Award. Maintenance and electrical contracting employers will only be covered by the award in respect of embedded employees.

[21] There was considerable debate between the parties as to the appropriate approach to be taken to drafting a modern award for this industry. The employers proposed that the Commission ought to adopt the Mining Industry Award 2010[3] as the basic template for the making of a modern award in the aluminium industry. On the other hand, The Australian Workers' Union (AWU) contended that where industry standards can be established across the enterprise awards the Commission ought to include those standards in the modern award.

[22] At this stage we have decided not to adopt the AWU approach or the employers' approach. We think it is appropriate to consider each of the clauses that might be included in the aluminium industry award without being limited to what appears in one particular modern award. That is not to say that the Mining Industry Award 2010[4] or various parts of it are not relevant. As a general approach we have adopted a number of the standards contained in various awards that have been modernised.

[23] We are in the position that there are no widely established award wage rates or allowances in this industry upon which we can rely. At this stage, the parties have not agreed on classifications and wage rates. We have included classifications and wage rates in the exposure draft based generally on those proposed by the employers. We are not wedded in any way to either the detail of each classification and/or its attendant wage rate and allowances. These matters will be revisited in light of the consultations.

[24] There will be no modern award for arts administration. Any relevant awards are dealt with in the entertainment and broadcasting industry.

Cement and concrete products (including asphalt and bitumen industry)

[25] We publish a draft Premixed Concrete Award 2010. An issue arose in the consultations concerning a potential overlap between the premixed concrete industry and the on-site building, engineering and civil construction industry, covered by the Building and Construction General On-site Award 2010.[5] It appears that premixed concrete batch plants are predominantly operated by employers in the premixed concrete industry, servicing customers in a variety of industries including the on-site building, engineering and civil construction industry. There are, however, some employers in the on-site building, engineering and civil construction industry who have purchased and operate their own plant, principally in relation to road-making. We think that batch plant operators and associated premixed concrete classifications should fall within the coverage of the modern award covering the employer - the Premixed Concrete Award 2010 in the case of employers within that industry and the Building and Construction General On-site Award 2010 in relation to employers in that industry. The industry of the employer should determine the coverage. As a result, we have included in the coverage clause of the premixed concrete industry exposure draft an exclusion in relation to employers and their employees in the on-site building, engineering and civil construction industry, covered by the Building and Construction General On-site Award 2010. We propose to vary that award to add, in clause 4.2, an exclusion in relation to the Premixed Concrete Award 2010 when that award is made.

[26] The exposure draft is based on the drafts submitted by the Boral Group (Boral) on 6�March and 15�May 2009, which were amended after discussions with the AWU. Having regard to the Concrete Batching Plants Award 1999,[6] we have:

• updated the minimum wage rates to incorporate Australian Fair Pay Commission increases up to and including the 2008 increase; and

• included a casual conversion provision to the effect of that within the Concrete Batching Plants Award 1999, but in the simplified form contained in the AWU draft.

[27] We have included standard supported wage system and national training wage schedules to the exposure draft and edited the classification descriptors in Schedule A.

[28] We have also adjusted the level of various allowances in the Boral draft:

• the meal allowance from $11.00, to $11.85 reflecting clause 19.11 of the Concrete Batching Plants Award 1999;

• the disability allowance has been calculated at 3.1% of the standard rate; and

• the first aid allowance has been calculated at 1.95% of the standard rate.

[29] Applying our general approach, we have not included provision for redundancy benefits for employees of businesses employing fewer than 15 employees.[7] On our understanding, relevant current instruments, including the Concrete Batching Plants Award 1999, provided for a small business exemption prior to the Redundancy Case 2004.[8]

[30] We have not adopted the AWU proposal to include State based allowances on a transitional basis. Such proposals will be considered when addressing transitional provisions in the award.

[31] We also publish a draft Cement and Lime Award 2010. We considered whether to incorporate the cement and lime industry within the Quarrying Award 2010,[9] or to make a separate award for the cement and lime industry, based on the drafts filed by Boral.

[32] We decided to publish a separate exposure draft for the industry but invite comment on both options in the exposure draft consultations, having regard to the broader range of classifications within the current cement and lime industry awards and NAPSAs. In respect of the possible incorporation of the cement and lime industry into the Quarrying Award 2010, we are particularly interested in the views of the parties as to any additional classifications required to cover the scope of cement and lime industry work and/or additional conditions needed for the cement and lime industry.

[33] We have included the classification structure and rates proposed by Boral in its 15�May draft. Given the variety of minimum wage structures and rates in current awards and NAPSAs in the industry, the absence of any wage rates or classifications in Boral's March draft and the extremely late filing of Boral's later draft, the publication of the structure and rates in the exposure draft will provide all interested parties with an opportunity to consider and comment upon them. This might include consideration against other structures and minimum rates for similar classifications in the exposure drafts for other sectors of the industry and those in the Quarrying Award 2010.

[34] The Boral draft included an industry disability allowance of 7.5% of the standard rate (or $46.40) in place of a range of specific, as incurred, disabilities found, for example, in Table 2 of the Cement Industry (State) Consolidated Award (NSW.)[10] For the purposes of the exposure draft, and subject to further submissions, we have adopted the Boral approach. The exposure draft also contains a number of separate allowances, such as leading hand, first aid, private vehicle usage and protective clothing.

[35] We publish an exposure draft of an Asphalt Industry Award 2010 based on the Boral drafts of 12�March and 15 May 2009, with some amendment.

[36] Whilst we have included road-making in the definition of the asphalt and bitumen industry, as proposed by Boral, it is possible that the term is too broad in its reach, covering activities associated with road-making beyond the asphalt and bitumen industry. We note that the AWU draft award of 6�March does not include road-making in the definition and that some federal awards do and others do not. We invite comment.

[37] We have inserted the casual conversion clause in the terms of the Asphalt and Bitumen Industry (Southern States) Award, 1999[11] in the simplified form proposed by the AWU in its draft of 6 March 2009. We have not included a probation provision. That matter is better left to the contract of employment. We have removed the redundancy provision for employers with fewer than 15 employees, on the understanding that it was not an entitlement in the various federal awards in the industry prior to the Redundancy Case Decision[12] and the Redundancy Case Supplementary Decision.[13]

[38] We have included the classification structure and minimum classification rates from the 15 May Boral draft, which are based on the Asphalt and Bitumen Industry (Southern States) Award, 1999 rates updated to reflect Australian Fair Pay Commission increases.

[39] We have expressed expense-related allowances as dollar amounts, where they appear as percentages of the standard rate in the Boral draft, and added such allowances to the provision setting out the basis of adjusting such allowances. State-based allowances, such as the job location allowance for the Australian Capital Territory, have not been included in the exposure draft and will be further considered in the context of transitional provisions, if necessary.

[40] No superannuation clause has been included in the exposure draft on the basis that none of the current Federal awards or the New South Wales NAPSA contains a superannuation provision.

[41] We publish an exposure draft of a Concrete Products Award 2010. It is based on the Boral draft filed on 12 March 2009 and we have also had regard to the draft filed by the AWU on 6 March 2009.

[42] We have removed the redundancy provision for employers with fewer than 15�employees, on the understanding that it was not a feature of the award prior to the Redundancy Case Decision and the Redundancy Case Supplementary Decision.

[43] We have replaced the Western Australian district allowance provision and the accident pay provisions with the transitional provisions inserted in other modern awards on the basis that these current benefits apply only in some States.

[44] A number of expense-related allowances, expressed as a percentage of the standard rate in the Boral draft, have been replaced with dollar amounts.

[45] We have made some changes to the Boral draft in respect of annual leave, to reflect existing provisions of the Cement and Concrete Products Award 2000.[14]

[46] At this stage we propose to add fibre cement products to the definition of manufacturing and associated industries and occupations in the Manufacturing Modern Award.

[47] We publish an exposure draft of a Cemetery Industry Award 2010. There is no principal federal award in this industry, rather there are a number of common rule NAPSAs containing disparate classifications and wage rates.

[48] Australian Federation of Employers and Industries (AFEI) and the AWU have submitted drafts neither of which addressed properly fixed minimum rates. The _Cemetery Employees Award 200_3,[15] which the AWU relied upon, contains a base rate plus a skill increment ranging from $29 to $58 plus a disability allowance of $24.18 to arrive at the total minimum rate.

[49] We have included a six level minimum wages structure and an industry allowance of 3.8%. At this stage we see no room for the application of incremental payments.

[50] At present coal treatment in Australia consists of processing done at wash plants, coke works and in the production of briquettes from brown coal for burning in coal-fired power stations. All existing wash plants are integrated into black coal mining operations and are covered by the Black Coal Mining Industry Award 2010.[16] All briquette production occurs in conjunction with the mining of brown coal for use in electrical power generation and will be covered by the proposed Electrical Power Award 2010. The only operative coke works in Australia is the Bowen coke works and it is covered by an enterprise NAPSA which is excluded from the award modernisation process. The Illawarra Coke Company has two coke works on the New South Wales South Coast. Both of those plants were closed earlier this year. In summary, it appears that there is no coke works or other coal treatment operation in Australia that would be covered by a coal treatment industry modern award and that such an award would cover new entrants only.

[51] In all the circumstances we are inclined to deal with this residual area by extending the scope of the Manufacturing Modern Award to include coal treatment not covered by another modern award. Parties who oppose such a course and who wish to argue for the creation of a coal treatment industry modern award should make a submission in support of that position. In the event that we are dissuaded from our provisional view that there should be no separate modern award for the coal treatment industry we will issue an exposure draft of such award as part of Stage 4.

[52] There is no exposure draft for defence support. The comparative schedules produced by the Registry indicate that the work undertaken is largely regulated by pre-reform enterprise awards. The one exception is a Queensland NAPSA, the Ground Staff - Defence Force Contractors Award - Southern Division 2004.[17] The pre-reform enterprise awards that exist are small in number and there are very few respondent employers. The Liquor, Hospitality and Miscellaneous Union (LHMU) filed a draft award which was based on the Australian Liquor, Hospitality and Miscellaneous Workers Union (Defence Contracting) Award 2002[18] (the Defence Contracting award). That award is binding on two related corporate employers. The scope of the Defence Contracting award, and in turn that reflected in the LHMU draft, relates to work performed by employers and employees under contracts with the Department of Defence. The types of contracts the LHMU had an interest in related to garrison support services and comprehensive maintenance services.

[53] Our provisional view is that it is not appropriate to make a modern award which covers solely the provision of services under contract to one client. The predominance of enterprise awards and the small number of employers operating in this industry also indicates that no award is necessary. Employees performing work under contracts with the Department of Defence will be covered by modern awards already made and in that respect we note the submissions of the LHMU that the work is largely covered by the Hospitality Industry (General) Award 2010 (Hospitality Modern Award),[19] the Security Services Industry Award 2010[20] and the Cleaning Services Award 2010.[21]

Educational services (other than Higher education)

[54] The educational services sector, excluding the universities, covers a wide range of institutions and occupations. These include teachers in a preschool setting and organisations which offer non-accredited courses to adults through community based teaching and instruction. We do not consider it appropriate to attempt to encompass all of these operations in one industry-wide award and indeed none of the submissions received suggested that this was possible. We publish the following exposure drafts:

• Educational Services (Post-Secondary Education) Award 2010

• Educational Services (Schools) General Staff Award 2010

[55] The Commission received a number of submissions concerning the appropriate award coverage for preschool teachers. Some of these submissions argued that preschool and early childhood teachers should be covered by a children's services industry award and that consideration of this should be deferred to Stage 4 when consultation concerning the childcare industry will occur. On the other hand, a number of submissions argued that preschool teachers should be covered by an education industry award.

[56] Currently classifications for preschool teachers can be found in teachers' awards, preschool teachers' awards and in awards covering other children's services. A person with a degree in early childhood education can teach in either a dedicated preschool, a childcare centre, or in a school, including in the lower primary grades.

[57] We have decided, at this stage, to include preschool teachers working in services operated by a school in the draft Educational Services (Teachers) Award 2010. We will defer for further consideration, in Stage 4, the question of award coverage for preschool teachers working in preschools, kindergartens and childcare centres. Our decision to do so should not be taken as indicating that we have formed a final view in relation to award coverage for those teachers.

[58] We received a number of submissions concerning award coverage for schools including whether there should be separate coverage based on who operated the school in question. Our preliminary view is that we should not relate award coverage to the faith or religion of the school. We have, however, considered it appropriate to produce separate draft awards for teachers and for non-teaching staff. For the most part this is the model which has prevailed in the industry and is consistent with the approach we have taken in higher education, with respect to academic and non-academic staff. The nature of the employment of teachers has particular features which differentiate teachers from other employees.

[59] Traditionally teachers' awards have not regulated ordinary hours of work. This has reflected the nature of the flexibility in working arrangements whereby teachers work unregulated hours during term time and to a large degree are able to be absent from the workplace during school holiday periods. The approach we have taken in the exposure draft is to provide for hours of work to be averaged over a period of one school year with a cap on the number of days on which a teacher can be required to attend the workplace. The corollary to this in the exposure draft applying to non-teaching staff is a provision providing the option for staff to be on leave without pay during non-term time and for their wages to be averaged over the school year. There are some other arrangements existing in the industry but due to their limited coverage they are not reflected in the exposure draft.

[60] The draft award for general staff in schools contains a clause, which is reasonably standard, and which requires that at the time of engagement the employer and a part-time employee must agree in writing to the hours and pattern of hours to be worked. Once agreed this can only be varied by agreement. These type of clauses are not typical of teachers awards, particularly with regard to variation of hours. We invite submissions on whether a modern award for teachers should contain such provisions.

[61] Coverage of non-teaching staff in schools has been sporadic and no existing award covers all of the types of employment which may exist in a school. In developing the exposure draft we have taken into account minimum rates and classification descriptions for similar classifications in other modern awards, the need for appropriate relativities between teachers and non-teaching staff and other matters dealt with in submissions. The classification structure in the draft award contains some very detailed lists of typical duties. We are of the view that these could be rationalised and invite submissions on how this might be done.

[62] The range of organisations offering education and instruction to adults in post-secondary education is extremely diverse. At one end of that spectrum are institutions which offer degree level education but which are not universities and at the other community organisations offering unaccredited training. Award coverage in this sector is limited. The exposure draft has been developed on the basis of three teaching streams: academic teachers, who are equivalent to university teachers, teachers who are qualified to teach in institutions such as English language schools and tutor/instructors, who may have no teaching qualifications but possess expertise which qualifies them to instruct students in a particular subject. The draft also includes classifications and minimum wages for non-teaching staff based on other modern awards providing for similar classifications and taking internal relativities into account.

[63] Awards in this sector also cover employees of university unions, student unions and university controlled entities. When the higher education awards were created in the priority stage of award modernisation we did not deal with the coverage of these areas but provided for them to be considered in this stage.

[64] We have decided that coverage of university unions and student unions can most appropriately be dealt with by amendment to the Higher Education Industry-General Staff-Award 2010[22] rather than by the creation of an award specific to those organisations. In relation to non-teaching staff in university controlled entities generally, some may be covered by the draft Educational Services (Post-Secondary Education) Award 2010. Others will be covered by a classification in another industry award or in an occupational award.

[65] We have not considered it to be necessary at this stage to make any provision for the matters covered by the Australian Higher Education Practice Teaching Supervision Award 1990.[23]

[66] We publish a draft Electrical Power Award 2010. The preparation of a modern award for the electrical power industry is attended by particular difficulties in terms of establishing a single set of terms and conditions to operate uniformly throughout the States and Territories. There are few federal awards and these are mostly enterprise awards. There are only two pre-reform awards that have a significant general application: the Power and Energy Industry Electrical, Electronic & Engineering Employees Award 1998[24] (QuadE award) which has a practical operation confined to Victoria and the South Australian Power Industry Award 2002[25] which applies to various employers in South Australia. A third federal award, the Victorian Electricity Industry (Mining & Energy Workers) Award 1998[26] applies to several large employers in Victoria. There is one industry NAPSA in Queensland, otherwise award regulation at the State level is essentially confined to enterprise NAPSAs. The classification structures, rates of pay, allowances and others terms and conditions of employment in the various awards and NAPSAs vary greatly. We note that all or almost all employees in the industry are covered by enterprise agreements. These agreements generally provide for significantly better terms and conditions than the relevant awards and NAPSAs.

[67] The coverage clause included in the exposure draft does not include the level of detail proposed by the combined unions in their draft. We think that level of detail (eg. the exhaustive listing of various generation technologies and fuel sources) is unnecessary. At this stage we consider that the form of words we have adopted is sufficient to cover employers who would be commonly understood as being in the electrical power industry.

[68] Our provisional view is that embedded employees of electrical and maintenance contractors and providers of temporary labour services should be covered by the award and the draft makes provision for coverage of those employers in relation to such employees. One issue was the extent to which the award should cover construction work. The coverage clause does not expressly address this issue. However, construction work undertaken by employees of employers who are otherwise within the industry (eg. powerline construction by a network operator) would be caught by the coverage clause in the draft award.

[69] We favour a classification structure of the sort found in the QuadE award. For the purposes of the exposure draft we have adopted the classification descriptions proposed by the national employer group. However, we are not satisfied that these descriptions are adequate. The classification descriptions, including the lists of indicative roles, will need to be revised after further consultation with the parties. Moreover, while we think that a multi-stream classification structure is appropriate, we are not wedded to the streams contained in the QuadE award. For example, it may be better to dispense with a supervisory stream and include supervisory classifications in the other streams and/or include leading hand/supervisory allowances.

[70] While the combined unions and the national employer group proposed very different classification structures the overall range of rates of pay within those classification structures was almost identical. At this stage we have adopted the range proposed by the employers in their penultimate draft with a minor adjustment to ensure that the standard rate is set at the C10 level.

[71] In relation to allowances, we note that the combined unions proposed a very lengthy and prescriptive set of allowances. There is substance in some of the criticisms of the unions' proposals made by the national employer group. At this stage we have included allowances as proposed by the national employer group. However, we are far from persuaded that those allowances are sufficiently extensive or otherwise adequate in terms of specification and rates. Allowances will be revised in light of the consultations.

Entertainment and broadcasting industry (other than Racing)

[72] We publish exposure drafts of the following awards:

• Broadcasting and Recorded Entertainment Award 2010

[73] The exposure draft of the Sporting Organisations Award 2010 is based on the terms of the pre-reform award applying in the area - the National and State Sporting Organisations Award 2001.[27] The draft covers only coaching, clerical and administrative classifications employed by national and state level sporting organisations. Some greater precision in the coverage clause may be desirable. Provision for fixed term coaching contracts is unnecessary and has not been included. The terms of the existing award have been modified in an attempt to accommodate the requirements of the NES. We refer in particular to the provisions of the draft which deal with extra annual leave for coaches. We assume that the provisions constitute supplementation of the NES and compensate for the lack of weekend penalties. Submissions are sought on whether such a provision is consistent with the NES.

[74] The implementation of the standard 25% casual loading will have a cost impact which may need to be considered when the Commission deals with transitional provisions for Stage 3 awards.

[75] The exposure draft of the Amusement, Events and Recreation Award 2010 is based to a large extent on the terms of the AWU Theme Park and Amusement Award 2001[28] but also incorporates many proposals advanced by the Media Entertainment and Arts Alliance (MEAA). Live Performance Australia (LPA) filed a very late draft exhibition industry award for which there has been inadequate time to properly consider.

[76] The classification structure brings together the classifications in a number of pre-reform awards. The classification descriptions require further refinement so that the duties and skills of each level are summarised and the excessive detail is eliminated. The number of allowances will require review. Those proposing that the number of allowances should be increased will need to advance a case based on the maintenance of the safety net.

[77] The exposure draft of the Live Performance Award 2010 is largely based on a draft provided by LPA. It is intended that the award should cover the area presently covered by around one dozen pre-reform awards and NAPSAs. In that context, there may be a need for transitional arrangements in some areas. In many respects the draft simply places all of the standard provisions in one document. The definition of the live performance industry, central to the coverage of the award, will be subject to further review in light of the views expressed during the consultations. While there has been an attempt to standardise some of the general provisions, there is a further need for rationalisation, particularly in relation to the wide range of allowances, many of which are of uncertain relevance and some are quite small. The draft public holiday clause, with different provisions for various classifications, is another area where rationalisation and standardisation is necessary. A number of obsolete award provisions have not been included.

[78] In relation to actors specifically, we will require further input in relation to the award regulation of their engagement and their ordinary hours of work. We refer to the provision permitting 48 hours work in the week prior to a performance and note also that there is no provision for averaging of ordinary hours generally. Similar issues may arise in relation to dancers. We have included the hours provisions from the relevant pre-reform award for orchestral musicians but we query how they relate to the NES. Provisions dealing with Codes of Practice and standard contracts have not been included. We take the view, at this stage at least, that they do not deal with modern award matters and are not appropriate for inclusion.

[79] While we have provided for engagement for the run of the show, we have not made provision for fixed term employment because, as explained earlier in our introduction to this statement, provided such arrangements are not prohibited they are a matter of contract.

[80] Finally we note that the part of the exposure draft dealing with striptease artists does not include minimum wages for the two classifications specified. Nor does the relevant pre-reform award. An award which does not contain wage rates would not normally constitute a safety net and we would be reluctant to make such an award.

[81] The draft of the Broadcasting and Recorded Entertainment Award 2010 attempts to bring together a wide range of occupations covered by many pre-reform awards and NAPSAs. The draft covers the television, commercial radio, motion picture production, film and television distribution and cinema industries. It contains some separate conditions for journalists, actors and musicians involved in those industries.

[82] There is a common salary structure, based on an MEAA proposal but with actors included, which covers all employees except journalists and musicians. The separate classification structure for journalists is based on the one currently applying to radio journalists. Parties are urged to give attention to those structures and identify improvements that can be made. In relation to actors we have not included the separate hourly, daily and weekly rates proposed from the Actors Feature Film Award 2002[29] and the Actors Television Programs Award 2001[30] as we are unsure of the basis for them. They have apparently not been adjusted for some years. Similar issues arise in relation to musicians' rates. We shall require the parties' assistance to establish the appropriate rates.

[83] We have attempted to arrive at safety net wages and provisions and have avoided references to negotiated fees and personal margins. We have not included standard contracts for reasons expressed above in relation to the live performance exposure draft. Equally we have not sought to regulate other matters which are peripheral such as repeat fees and residuals and we have not replicated some award provisions related to Australian content.

[84] There are a range of other matters which will need to be considered before the award can be finalised. We note in particular that many of the provisions around engagement, allowances and pay are very detailed and not really appropriate for a modern award. The classification definitions also require rationalisation. A great deal more needs to be done to update and simplify the language and expression of the draft generally.

[85] Two other matters should be noted. We have included provision for extra annual leave for journalists required to work on public holidays, but we think some attention should be paid to the terms of the NES in this context. We have included provision for the standard casual loading of 25%. This will be an increase in some areas and a reduction in others and may result in a need for transitional provisions. It is also a matter to be taken into account in considering whether there should be separate hourly and daily rates for actors and musicians.

Food, beverages and tobacco industry (manufacturing)

[86] An exposure draft Food, Beverage and Tobacco Manufacturing Award 2010 has been developed for the food, beverages and tobacco manufacturing industry. The exposure draft incorporates the aerated waters, baking, confectionary, dairy and general food sectors of that industry. It also incorporates the pet food manufacturing industry, the food component of the grocery products manufacture industry and the brewing sector of the liquor and accommodation industry. The non-foods component of the grocery products manufacture industry may, most appropriately, be covered by the Manufacturing Modern Award to the extent it is not already so covered. Submissions are sought from those with a relevant interest as to whether that modern award should be varied to further include the non-foods component of the grocery products manufacture industry and, if so, on the details of the variations needed.

[87] The exposure draft is largely based on that submitted by the AiGroup. However, the definition of "food, beverage and tobacco manufacturing" has been altered to reduce the potential for overlap with other modern awards and exposure drafts. Further, the draft specifically excludes those covered by the Manufacturing Modern Award and the proposed Meat Industry Award 2010, Poultry Processing Award 2010 and Wine Industry Award 2010. Our preliminary view is that the award should not cover clerical employees.

[88] The classification structure in the exposure draft is quite generic. If it remains this way, consideration will need to be given as to how the many employees proposed to be covered by the award are to be classified under the structure. Perhaps some indicative positions could be included in the structure to assist in the process.

[89] A separate exposure draft Poultry Processing Award 2010 has been developed for the poultry processing sector of the food, beverages and tobacco manufacturing industry. The draft is based on a draft award proposed by the AFEI, the National Union of Workers (NUW) and The Australasian Meat Industry Employees Union (AMIEU). That draft award did not contain a classification structure and the structure in the exposure draft is based on that proposed by the AiGroup.

[90] A Seafood Processing Award 2010 exposure draft has also been developed based on the substantively agreed draft award proposed by numerous seafood organisations representing employers in the seafood processing industry, the AWU and the NUW.

[91] We have already dealt with this area in conjunction with the food, beverages and tobacco industry.

[92] We publish a draft Journalists Published Media Award 2010. The main parties who participated in the consultations were MEAA, a group of major employers including News Limited, Pacific Magazines, ACP Magazines, the Country Press Association (CPA) and Fairfax Media. These parties reached a consent position on most issues. Submissions were also received from AiGroup.

[93] The biggest point of difference between the parties concerns coverage. The employers submitted that there should be a journalists' published media award applying only to editorial staff (that is, journalists) in the published media industry. They proposed that - in line with current practice - clerical employees, editorial assistants, call centre and library staff in the published media industry should be covered by the Clerks-Private Sector Award 2010 (Clerks Modern Award).[31] Journalists employed in television and radio should be covered by an award (or awards) specific to those industries. MEAA submitted that the award should encompass journalists in television and radio as well as some employees traditionally covered by clerical awards.

[94] The exposure draft covers journalists employed by newspapers, magazines, periodicals, journals, wire services and online publications. It is envisaged that journalists employed in television and radio will be covered by the proposed broadcasting and recorded entertainment award dealt with earlier. Non-journalists will generally be covered by the Clerks Modern Award, or the Graphic Arts, Printing and Publishing Award 2010[32] (for printing and pre-press employees).

[95] Many employees working for news and editorial websites are not currently award covered. The employers acknowledge that journalists employed on online publications should be covered by an award. The draft award provides that the employees of an employer working on an online publication that is associated with that employer's print publication be covered by the award in the same way as other journalists. Journalists employed by online businesses not associated with a print publication would also be covered by the award, though they would be exempted from the hours, overtime and shiftwork clauses. Our preliminary view is that this is a reasonable compromise between the need to ensure appropriate award coverage of a new area of employment created by technological change and the need for flexibility and limiting the imposition of additional costs on employers.

[96] The main parties agreed on a provision to exempt a certain number of editorial staff employed in specified enterprises from the terms of the award. We have not included the provision. Any proposal to include exemption provisions must be so framed as to ensure it operates consistently across the full range of establishments covered by the award. We would also require submissions addressing the terms of clause 2(f) of the Minister's consolidated request.

[97] An issue arises in relation to termination of employment and redundancy provisions. Some of the relevant NAPSAs include provisions for notice of termination which are more generous than the terms of the NES. On the other hand the pre-reform awards and NAPSAs do not contain redundancy provisions. The application of the minimum standards in the NES will have significant practical effects. Submissions are sought on the adequacy of the provisions we have drafted to implement the NES in these unusual circumstances.

[98] The draft does not include provision for employers and employees to make written agreements to 'buy out' overtime and shift penalties. However the award flexibility provision is obviously available.

[99] The proposed modern award will replace 10 current non-enterprise pre-reform awards and four non-enterprise NAPSAs. The weekly award rates of pay (which have been agreed to by all the major parties) are in some cases significantly higher than the existing applicable rates. There are also additional employee benefits, such as a higher casual loading, and the right to redundancy pay. On the other hand, the proposed award deletes a small number of allowances that have traditionally been payable in some parts of the industry.

[100] The question of award coverage for licensed and registered clubs first arose in the priority stage of award modernisation. We deferred a final conclusion, noting that it might be possible to include the sector in the Hospitality Modern Award and the potential overlap in relation to events staged by clubs and grounds management and maintenance.

[101] There is general support amongst employer and employee associations in the industry for a separate licensed and registered clubs modern award. While it might be possible to include clubs within the Hospitality Modern Award, with some sector specific arrangements, we have decided to make a separate clubs award. We publish a draft Registered and Licensed Clubs Award 2010. The LHMU and Clubs Australia provided a draft award, in a largely agreed form, and we have used this as the basis of the exposure draft.

[102] A major point of contention between the LHMU and Clubs Australia concerned the part-time work provision, with the LHMU proposing a provision based on the Licensed Clubs (Victoria) Award 1998,[33] which is in the same terms as the part-time provision in the Hospitality Modern Award. Clubs Australia proposed a provision based on part of the part-time work provision of the Club Employees (State) Award (NSW).[34] Clubs Australia submitted that its proposal would remove onerous requirements associated with recording the regular pattern of work and any agreed variations to it. The proposal also contained additional restrictions on the days and hours in which part-time work can be performed (which we think constitute unnecessary detail).

[103] We have included the Licensed Clubs (Victoria) Award 1998 provision in the exposure draft rather than the additional provisions proposed by Clubs Australia drawing on the Club Employees (State) Award (NSW). Further, an examination of the Club Employees (State) Award (NSW) discloses two sets of arrangements in respect of part-time employees: those applying to persons engaged before July 1999, which include a 15% part-time loading, and those applying to part-time employees engaged after that time, prescribing an absorbable 'overaward payment' based on that loading for any part-time employees who were previously engaged as casual employees. We prefer the federal award prescription, which is common across most current federal hospitality industry awards.

[104] The major issue raised by Clubs Australia in support of its position was that the New South Wales prescription was agreed between it and the New South Wales branch of the LHMU in order to promote part-time employment over casual employment and that the New South Wales provisions were essential to continue to achieve that end. We are not persuaded, at this stage, that the requirement to document an agreed mutual variation of the regular pattern of work will impede working on a part-time basis. Nor do we see any additional cost implications given the capacity to vary part-time hours by agreement.

[105] Clubs Australia and the LHMU proposed different definitions of shiftworker for the purpose of an additional week's annual leave under the NES. Clubs Australia proposed that we adopt the provision in the Hospitality Modern Award and some other modern awards in the absence of any relevant provision in the predominant current awards. There are provisions for additional leave for shiftworkers in the major federal award and in the NAPSAs for clubs. We have applied the definition in the Licensed Clubs (Victoria) Award 1998, which provides additional leave to a seven day shiftworker who is regularly rostered to work on Sundays and public holidays. This is of similar effect as the Club Employees (State) Award (NSW), although that NAPSA requires that a specific number (30) of Sundays and public holidays be worked.

[106] The final issue which arises for immediate consideration is the inclusion, or otherwise, of a greenkeeper classification within the clubs award. Clubs Australia argue that such inclusion is necessary in light of the number of sporting clubs - bowls and golf clubs - within the clubs industry and the working of employees across grounds and hospitality classifications. The major opposition to the inclusion of greenkeepers/groundsperson classifications within a clubs award came from the AWU, which submitted that their inclusion would cause a substantial loss of wages and conditions of employment to employees who have traditionally been employed under the Sportsground Maintenance and Venue Presentation (Victoria) Award 2001.[35] That award, which covered specific named respondents before being made a common rule in January 2005, applies to the industry of:

"the construction, ornamentation, presentation, formation, maintenance or keeping in order of grounds or enclosures used in conducting outdoor entertainments, outdoor shows, outdoor sports or outdoor amusements of any kind; and the laying out, planting, construction, cultivation, maintenance, keeping in order or removal of gardens (including features) and or lawns and/or trees."

[107] We have incorporated a greenkeepers' stream classification in the exposure draft, because of the incidence of such work within the industry. The stream is broadly reflective of the classification structure in the Sportsground Maintenance and Venue Presentation (Victoria) Award 2001, with similar minimum wages. We understand this award to be the pre-eminent federal award dealing with sportsground maintenance. We have also had regard to the rate for the Greenkeeper Supervisor in the Tasmanian NAPSA - the Licensed Clubs Award.[36] We have also included management employee classifications in the greenkeepers structure.

[108] In submissions dated 8 May 2009, the AWU submitted an amended draft which contained greenkeeper classifications similar to but not identical to those which we have included in the exposure draft. In addition, they included other additional terms and conditions which, they submitted, were necessary to accommodate greenkeeping classifications in the award. These proposed amendments were advanced relatively late, with a limited opportunity for a response by other interested parties. We would welcome further comment on the structure contained in the exposure draft and the recent AWU proposals during the forthcoming consultations.

Liquor and accommodation industry (manufacturing)

[109] We have developed an exposure draft Wine Industry Award 2010. The exposure draft covers the wine industry from the growing of wine grapes through to the despatching of wine or grape spirit from storage associated with a winery or wine distillery. The draft largely reflects a draft award submitted by the South Australian Wine Industry Association Incorporated, the AWU and the LHMU. Interested parties should give further consideration to simplifying the classification structure in the exposure draft. The provision for piecework also requires careful consideration.

[110] While some urged us to include independent wine grape growing in the Horticulture Award 2010[37], or at least apply some of the provisions of that modern award to independent wine grape growing, the extent to which current horticulture awards and NAPSAs actually apply to independent wine grape growing was not readily apparent. We invite further submissions on this issue.

[111] The brewing sector of the liquor and accommodation industry has already been dealt with in our consideration of the food, beverages and tobacco manufacturing industry.

[112] We publish three maritime awards, namely:

[113] The draft Seagoing Industry Award 2010 reflects substantial agreement between the unions (the Maritime Union of Australia (MUA), the Australian Institute of Marine and Power Engineers (AIMPE) and the Australian Maritime Officers Union (AMOU)) and employers represented by the Australian Mines and Metals Association (AMMA) and the Australian Ship Owners' Association (ASOA). The exposure draft also reflects the current Maritime Industry Seagoing Award 1999[38] with the necessary amendments and inclusions reflecting standard modern award provisions.

[114] The employers proposed the insertion of part-time and probationary employment. This proposal was opposed by the unions. The current award does not provide for part-time or probationary employment. Part-time employment is not a current employment practice in this industry and we have decided not to include provision for it at this stage. We have also decided not to insert a probation clause but observe that it is open to any employer to engage persons on probation. We have referred to probationary engagement in some general remarks at the beginning of this statement.

[115] We have included the Commission's standard termination of employment clause but without the job-search benefit as it would not seem to be practical in the seagoing environment. We have included a national training wage clause which is new to this industry but may facilitate the use of trainees if appropriate. We have not included a superannuation provision on the basis that superannuation has not been a feature of the relevant awards.

[116] The classification definitions may not adequately differentiate between what seem to be occupations within the same stream albeit attracting different rates of remuneration. We invite further submissions with a view to establishing appropriate definitions.

[117] CSL Australia Pty Ltd (CSL), submitted that some key features of the current pre-reform award are inappropriate. These include annualised rates comprehensive of overtime, certain penalties and the leave factor. The current award reflects the outcome of the award simplification process and includes features of predecessor awards that have applied in this industry for many decades. Annualised salaries comprehending a range of components and the lengthy periods of leave recognise the nature of an industry where seagoing employees are required to remain on a vessel even when they are not physically working. It is a unique working environment and these award provisions reflect that fact. At this stage we are not persuaded that we ought to depart from current provisions.

[118] CSL also proposed that some new classifications (e.g. tradespersons) should be provided for. We consider that the inclusion of such classifications and the striking of appropriate rates should be a matter for further comment by all parties. We are unaware of any attempts by CSL to vary the current pre-reform award in that regard.

[119] Finally, CSL observed that the current award only applies to named respondents. The union and AMMA/ASOA proposals would extend the coverage of the modern award to all vessels operating in Australian waters, including foreign flagged vessels. We have not made specific provision for this in the draft. Any restriction or expansion of the coverage of awards is a matter properly governed by the Act.

[120] The draft Dredging Industry Award 2010 reflects some consent between interested parties comprising various unions (the MUA, AIMPE, AMOU and the AWU) and the Dredging Industry Industrial Secretariat (DIIS). The exposure draft proposes to replace three existing awards: the Maritime Industry Dredging Award 1998,[39] the Dredging Industry (AWU) Award 1998[40] and the Marine Engineers (Non Propelled) Dredge Award 1998.[41]

[121] We have decided to include provisions as to part-time employment which were proposed by DIIS but opposed by the unions. We have also decided to adjust the loading for casuals to 25% as proposed by the unions in accordance with our standard approach.

[122] DIIS also proposed the insertion of annual salaries comprehensive of a range of penalties and provisions setting out what is known in the maritime industry as a 'leave factor'. The proposal does not reflect the existing award provision and the unions did not support it. We are not satisfied that such significant changes should be made at this time.

[123] We have also not included existing aggregate weekly wages for fully operational vessels as the basis or components of such rates were not readily ascertainable. We are prepared to review the position if the parties are able to provide us with further material. The minimum wage rates reflect the skills and responsibilities of the classifications concerned, but also the unique environment in which employees operate on vessels engaged in dredging operations.

[124] We have inserted the current award allowances associated with shipkeeping. They refer to "remote" and "less remote" areas. We invite further submissions as to how such terms can be better defined. We have decided to include the national training wage provisions in order to provide an opportunity for such employment if the circumstances exist. We have not included provisions as to superannuation as this is not provided for in the current awards.

[125] The classifications in Schedule A of this draft do not sufficiently define the classifications and do not differentiate between occupations within the same stream. The deficiencies will have to be attended to before the award is finalised.

[126] We deal now with the draft Maritime Offshore Oil and Gas Award 2010. The unions initially proposed the making of an industry award that would cover the entire offshore oil and gas sector. Those unions were the MUA, the AIMPE, the AMOU and the AWU. This was opposed by various employer interests who sought the continuation of separate awards in the offshore area for maritime and for production. The unions subsequently proposed an alternative whereby there could continue to be a separate maritime offshore oil and gas award. We have decided to establish a draft award which is confined to the maritime area of the offshore oil and gas industry. The draft is based on the current Maritime Industry Offshore Oil and Gas Operations Award 2003[42] with variations reflective of award modernisation provisions.

[127] The principal employer group AMMA/ASOA proposed the inclusion of provisions as to part-time and probationary employment. They are not a feature of the current award. We have decided not to include them at this stage. We observe once again that provided it is not prohibited, probationary employment is a matter of contract in any event.

[128] The parties proposed the insertion of comprehensive termination of employment provisions. We have decided to insert the usual provision in modern awards but without the job-search provisions which do not seem to be relevant to this industry.

[129] The annual salaries reflect the complex working arrangements on board vessels as well as what is known as the 'leave factor' which recognises balancing the extensive time on board a vessel with extensive time on shore. This was a matter of consent and also represents award provisions of many decades standing.

[130] The classification definitions set out in Schedule A like those in the two previous maritime drafts, also need attention. We invite further submissions with a view to establishing appropriate definitions.

[131] We now publish an exposure draft of a Meat Industry Award 2010.

[132] This industry has been the subject of a number of inquires and Full Bench decisions. Significant reform has already taken place and, as such, the three underpinning pre-reform awards covering different sections of the industry are mostly up-to-date.

[133] There is a high level of agreement on the terms of a modern award. With the exception of one matter, the draft combines the three pre-reform awards and follows the decision of the Full Bench and proceedings under its supervision. Where there has been a difference between those most involved in the industry we have preferred to follow the Full Bench decisions and the terms of the existing pre-reform awards. The exception to this is in relation to the salesperson in a retail butchers shop. In light of the rates fixed in the General Retail Industry Award 2010,[43] we have raised the minimum rate for a salesperson to a level closer to the entry rate for a retail employee but maintained internal relativities.

[134] The award contains provisions for incentive payments. The ascertainment of the payments to be made to employees on incentive payments during annual leave is a matter that needs to be addressed in the context of piecework and payment by results provisions generally. We note that in this award employees on incentive schemes are entitled to a minimum weekly payment based on the relevant minimum wage plus a loading. We referred to this matter in the introduction to this statement.

[135] Consideration was first given to modern award arrangements for offshore island resorts in dealing with the priority industries.[44] The Full Bench deferred consideration of award coverage for offshore island resorts currently subject to the Off-Shore Island Resorts Award - State 2005 (Qld) [45] (the Queensland Offshore NAPSA) until Stage 3.

[136] In the Stage 3 consultations submissions were made on behalf of some island resorts respondent to the Queensland Offshore NAPSA:

• Holiday Villages (Australia) Pty Ltd - Club Med Lindeman Island Resort;

[137] The Australian Hotels' Association (AHA) put submissions on behalf of some other respondents to the Queensland Offshore NAPSA - Hayman Island and the Voyagers Group. All of those employers sought a separate modern award for offshore island resorts, based upon the Queensland Offshore NAPSA. In the alternative they sought separate provisions within the Hospitality Modern Award**,** directed to incorporating the broader range of classifications within which employees working on offshore islands are engaged and flexibility to permit employees to undertake work across classifications.

[138] The principal unions with an interest in the industry, the LHMU and the AWU, opposed a separate award or the provision of separate safety net terms and conditions of employment from those in the Hospitality Modern Award_._ The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) submitted that the work performed by electrical and electronic employees will be adequately covered by other modern awards.

[139] We have decided to reject the employers' proposal at this stage. The Hospitality Modern Award should be varied to delete clause 4.1(h), which exempted offshore island resorts from coverage. We will, however, consider appropriate transitional arrangements for employers covered by the Queensland Offshore NAPSA to allow those employers a period of time to negotiate appropriate agreements, bearing in mind there are already agreements which operate on top of the Queensland Offshore NAPSA.

[140] We have taken this approach for several reasons. First, it is evident that while the Queensland Offshore NAPSA is a multiple-employer award it applies to a limited number of offshore island resorts in Queensland. It does not cover the offshore island resort industry as a whole. A majority of offshore island resorts are covered by general hospitality awards and NAPSAs. There is no good reason to extend the Queensland Offshore NAPSA arrangements to offshore island resorts generally for the purpose of a safety net award, nor to distinguish between offshore island resorts. Indeed, notwithstanding the endeavours of the AHA to provide a definition of offshore island resorts to allow such a distinction, it is not apparent to us that a workable definition can be derived.

[141] Secondly, the classification structure and rates in the Queensland Offshore NAPSA are not consistent with minimum rates and allowances in other safety net awards. When the traditional hospitality classifications in the Queensland Offshore NAPSA rates are adjusted for Australian Fair Pay Commission increases the minimum rates are still below those for comparable classifications in the Hospitality Modern Award. In addition, the classifications and rates proposed in respect of non-traditional classifications provide an extremely compressed classification structure for particular occupations and inadequate minimum wages. This is best illustrated by reference to the single classification for a nurse at salary level 7, which includes a registered nurse. The Nurses Award 2010[46] provides wages for registered nurses at level 1, commencing at $697 per week, and going up to $843 per week. In comparison the updated Queensland Offshore NAPSA rate for a nurse is $680.50.

[142] Finally, we believe there will be sufficient scope for employees to work flexibly across classifications at the same level in the Hospitality Modern Award.

[143] We have decided to publish three exposure drafts. They are the Hydrocarbons Industry (Upstream) Award 2010, the Oil Refining and Manufacturing Award 2010 and the Gas Industry Award 2010.

[144] We refer first to the Hydrocarbons Industry (Upstream) Award 2010. The exposure draft is based on the draft award filed by AMMA. We have not adopted the AWU submission that the activities traditionally covered by the various upstream production awards should be incorporated into the same exposure draft as the maritime oil and gas sector activities.

[145] We have varied the wage rates from those in the AMMA draft. We invite further submissions explaining the basis upon which the minimum wage rates have been arrived at. The level 3 classification is the first level at which a trade qualified employee is referred to. The rate for that classification in the AMMA draft is $685.90. The other rates reflect a percentage relativity to that rate. We would be assisted by submissions explaining how these rates were calculated and how it is said that they are appropriate for this minimum safety net award. For the time being we have included a trade equivalent rate of the same amount as the rate in the Manufacturing Modern Award and the remaining rates at the same level as in the Mining Industry Award 2010.

[146] The exposure draft reflects expense related allowance percentages by reference to the revised level 3 classification. It is not our intention to reduce the monetary value of the allowances as contained in the AMMA draft and the parties should give consideration to the revised calculations. We should refer to one significant allowance which was contained in the AMMA draft titled "Recovery of initial travel cost from outside capital city metro area". We have not included this allowance in the exposure draft. Should the employers press for this we invite further submissions including the identification of any awards containing a similar allowance.

[147] We have not accommodated all of the provisions of clause 16 of the AMMA draft. An employer's right to stand down an employee and the circumstances in which they can be exercised are contained in the Act and we doubt the need for clause 19 of the exposure draft. To the extent to which we have accommodated other provisions of the AMMA draft we have placed them in the annual leave clause.

[148] We next refer to the Oil Refining and Manufacturing Award 2010. This exposure draft is based on the draft proposed by the Oil Industry Industrial Committee (OIIC). The AWU also filed a draft award however it did not contain classifications or wage rates and the allowances appeared to be largely extracted from the Manufacturing Modern Award. Should these allowances be pressed by the AWU as relevant to this sector of the oil and gas industry we invite further submissions about each allowance.

[149] In the pre-exposure draft consultations the parties advised that they were having discussions concerning the appropriate wage and classification structure and further submissions would be made. Subsequently we received a proposal from the OIIC but nothing from the unions who had appeared at the consultations. The OIIC structure has been reflected in the draft award. It will be seen however that at this stage we have not included rates for the two highest levels in the maintenance stream. We require further submissions in relation to the appropriate minimum safety net rates for those classifications.

[150] The OIIC draft ordinary hours were set at an average of 38 per week. The AWU proposed 70 per fortnight. A similar issue arose in the context of the hours of employees in oil distribution activities in the Road Transport and Distribution Award 2010[47] (RT&D Modern Award). That modern award now contains an hours clause dealing specifically with oil distribution workers. They are 35 ordinary hours per week or 70 per fortnight. We there acknowledged the submissions made by the OIIC that, in the context of a modern transport award, there should not be different hours for the various sectors within that industry. We noted that the hours in the oil distribution sector had been the equivalent of 35 per week for many decades. For largely the same reasons we have again decided to retain the lesser hours in this exposure draft. They have been the hours for this sector since at least the making of the Standard Hours (Oil Companies) Award 1974.[48] On balance, our current view is that for this sector of the oil industry these hours constitute, in terms of s.576L, a fair minimum safety net.

[151] The OIIC draft contains a clause allowing an employee's weekly hours to be averaged over a period of up to 26 weeks. It is not apparent from a perusal of the existing awards in this sector that there is any ability to average ordinary hours over a period in excess of two weeks. We invite further submissions in relation to this matter and assistance in relation to identifying existing provisions which deal with the averaging of hours.

[152] The OIIC draft provides that the ordinary hours for employees other than shiftworkers may be worked on any day from Monday to Sunday. The existing awards do not reflect ordinary hours for these workers being performed on Saturdays and Sundays. We have reflected the existing Monday to Friday provisions in the exposure draft however the parties are invited to make further submissions about this matter.

[153] We now turn to the Gas Industry Award 2010. The only proposal for an award in this industry was filed by the AWU. The AWU described it as covering the activities from the time gas enters the pipelines offshore through to downstream retail. It was not intended to cover offshore accumulation or retail which is associated with retail in the electrical power industry.[49]

[154] The draft was largely based on the Energy (Gas) Industry Award 1999[50] a pre-reform award (the Energy Gas Award). We note that a number of provisions in the draft also reflect the provisions of the Gas Industry Award - State 2003, a Queensland NAPSA[51] (the Queensland NAPSA). We doubt that the provisions of either award are an appropriate basis for a modern industry award for this sector.

[155] The Energy Gas Award reflects a number of provisions similar to those traditionally found in public sector awards. In this respect, and without going into any detail, we note the circumstances surrounding the making of this award and the contemporaneous proceedings which led to the making of the VENcorp Award 1999.[52] The wages and classification structures in each of these awards are very similar if not identical. There is no description of the scope of the employers' industry covered in the Energy Gas Award so it is unclear as to whether it is a reliable basis for a modern industry award covering the whole of the sector. In this respect we note a number of other pre-reform awards that cover employers and employees associated with the operation of transmission pipelines, gas plants and facilities, gas industry contractors, salaried employees in the LP gas industry and gas extraction, treatment, separation and supply. It is not apparent that the Energy Gas award should be preferred as the basis for classification structures, wage rates and conditions to the exclusion of any provisions of these other awards.

[156] We also note that the award respondents are limited to a number of Victorian based corporations and although we accept that they may have activities beyond that State the list is small and does not contain the major corporations operating around Australia in this sector. As no submission was made on behalf of any of these employers we do not know if they are still active in this industry.[53]

[157] The only appearance at the pre-exposure draft consultations on behalf of any employer interests was by AiGroup and its submission was principally directed towards the manufacture of industrial gases. It submitted that that activity had been covered, for many decades, by the Metal Industry Award[54] and should now be covered by the Manufacturing Modern Award. In this respect it identified its member BOC Gases. We note clause 4.3(d) in the Manufacturing Modern Award which, read together with clause 4.2(a)(i), provides that the award covers the manufacture, making, processing, treatment and preparation of industrial gases.

[158] The draft we publish should be considered by parties in the industry as a matter of urgency. Assuming that an award should issue for this industry a great deal more needs to be done. Firstly the coverage of the award needs to be clear. It would appear from the AWU draft that it proposes the coverage to extend to clerical, administrative, professional and managerial employees and trades and engineering employees. The structure contains definitions which were described as generic which is certainly an accurate description for them. Importantly though the draft provides that the reader needs to look to the employer's method of classification which would depend on "an objective evaluation system as contained in the employer's policies manual". The draft also provided that the application of the generic definitions were to be determined by "comprehensive position descriptions". It is unclear from the AWU draft which level an employee should be classified at.

[159] As for remuneration levels we have not adopted the wage rates in the draft. The lowest levels are described as wage rates A to E. Thereafter there are some 10 bands each of which has three levels within the band. Although there is no explanation contained within the wages structure it would seem that levels B through to E may well have historically related to junior employees. Level A is said to be the trade equivalent and the next level, being level 1 of Band 1, is said to be the minimum level at which an adult employee can be paid. If this structure is pressed by the AWU much more needs to be said by way of explanation of how it is justified as providing appropriate minimum wages for the industry. A number of other provisions in the classification definitions and structure are unsuitable for a minimum safety net award and in that respect we refer to the provisions relating to the selection of employees which, in certain circumstances are to be by reference to seniority and the obligations placed upon employers in relation to advertising of positions internally.

[160] For the purposes of encouraging discussion between parties in the industry we have included wages identifying a trade level similar to that in the Manufacturing Modern Award and other wage levels by reference to what might be appropriate percentage relativities. In doing so we have also considered the actual rates in the ten levels of the Energy Gas Award. It is likely that these rates may be able to be adopted in relation to operator and some trades classifications but they may not be appropriate in the event the parties agree that the award should cover clerical, administrative and professional classifications. Finally we note that within the draft proposed by the AWU there are a number of provisions and allowances for building and construction work. We are unclear as to whether it is proposed that that work should be covered by this award and urge the parties to also give consideration to these provisions. Consideration also needs to be given to whether driving classifications are appropriate. In this respect the parties should refer to the RT&D Modern Award and the reasons of the Full Bench for making that award.[55]

[161] The paper products industry is dealt with below in conjunction with the timber industry.

[162] Pet food manufacturing has already been dealt with in conjunction with the food, beverages and tobacco industry.

[163] We publish a Pharmaceutical Industry Award 2010 exposure draft. It is based on that proposed by the NUW. However, the coverage clause has been simplified to try to overcome concerns about potential overlap with the coverage of the Manufacturing Modern Award. The classification structure does not extend to technical and professional employees who will be covered by awards and exposure drafts with occupational scope.

[164] We have decided not to make a modern award for this industry. The LHMU, which has coverage of most of the relevant employees submitted that:

"…significant changes in the nature of photography, namely the movement to digital media and away from film, removes the need for a separate photographic industry award."

[165] Employees engaged primarily in printing photographs from digital media in retail outlets, who may or may not perform other retail duties, will be covered by the General Retail Industry Award 2010.[56] There appears to be no need for any amendment to the current proposed award to accommodate this.

[166] The coverage of the Manufacturing Modern Award might be altered to make it clear that the award covers employees engaged in process manufacturing. This could be done by expanding the list of industries in clause 4.2 of the award to cover the processing and printing of photographs from film.

[167] Consultations in relation to this industry revealed that there are a range of different types of employers and operations, from predominantly land based administrative bodies to the operators of various types of vessels. These differences make it impractical to aggregate the various operations under one award. We have decided to publish five exposure drafts as outlined below.

[168] First, we have decided to publish a draft Port Authorities Award 2010. Port authorities are usually government-owned bodies responsible for the overall administration of a port. They oversee shipping, stevedoring and other operations but often also conduct a number of activities related to the operation of the port and port infrastructure. The exposure draft covers all of the employees of all port authorities even though some employees may be involved in activities such as dredging or bulk loading which would be covered by another award if their employer was not a port authority. We can see the desirability of comprehensive coverage of port authority employees so that only one award applies to each employer, but also of confining the award to those types of employers. The draft reflects this approach. We have included marine pilots as they are often employees of the port authority. We have not attempted to particularise every type of employee activity but the classifications should be reviewed by interested parties to ensure that they are sufficiently comprehensive.

[169] The Stevedoring Industry Award 2010 is proposed to cover the land based operations of employers who are involved in the loading and unloading of vessels. A number of exclusions have been included. Employees at bulk sugar terminals will be covered by the proposed Sugar Industry Award 2010. Employees at coal export terminals will be covered by the proposed Coal Export Terminals Award 2010, with which we deal now.

[170] We publish a draft Coal Export Terminals Award 2010. These operations have discrete characteristics and are usually operated by interests associated with coal mining companies and often within a port operated by a port authority. The draft award is confined to coal export terminals where the loading of coal for export is the only port operation undertaken.

[171] We also publish a draft Marine Towage Award 2010. It covers all tugboat operations including tug and barge activities and harbour towage.

[172] We publish a draft Ports, Harbours and Enclosed Water Vessels Award 2010. It covers all marine operations in enclosed waters including ferries, barges, and all other miscellaneous vessels. We consider that tourist based charter operations should be excluded as these are more appropriately combined with seagoing tourist charter operations and covered by an award developed by reference to existing standards in the tourist industry. We deal with this award later.

[173] With respect to each of the five drafts the Commission has been greatly assisted by the contributions of interested parties who have submitted well developed draft awards. The exposure drafts we publish are intended to simplify the drafts further and reflect the general approach to award provisions in other modern awards.

[174] This industry does not include parcel and courier services or electronic mail services: those activities are covered by other modern awards. Obviously, Australia Post is the key employer in the postal services industry. Australia Post is bound by a number of awards all of which are enterprise awards. As such any modern award made for the postal services industry would not cover Australia Post. In the result, the postal services industry, for award modernisation purposes, consists of privately operated post offices under a license or franchise from Australia Post. There is a single underlying pre-reform award, the Postal Services Industry Award 2003,[57] that binds all or almost all the operators of licensed or franchised post offices.

[175] The Fair Work (Transitional Provisions and Consequential Amendments) Bill 2009 (T&C Bill) is presently before the Parliament. Clause 2 of Schedule 6 to that bill, in the context of a part establishing a process for modernising enterprise awards, contains a definition of enterprise award that is broader than the definition of enterprise award in Part 10A of the Act and in the Fair Work Act 2009. Several parties submitted, we think correctly, that the Postal Services Industry Award 2003 is an enterprise award within the meaning of the definition in the T&C Bill. Be that as it may, the Postal Services Industry Award 2003 is not an enterprise award for the purposes of Part 10A of the Act because it does not apply to a "single business" as specified in s.322 of the Act and we commenced preparation of a modern award for the postal services industry based on that award. However, the amendments to the consolidated request made on 2 May 2009 introduced a broader definition of enterprise award for the purposes of the request which is in line with the definition in the T&C Bill. Paragraph 2(e) of the request provides in part that the creation of a modern award is not intended "to result in the modification of enterprise awards". The amendments of 2 May 2009 added a new paragraph 2A to the request:

"2A. In paragraph 2(e) an enterprise award means an award that regulates the terms and conditions of employment in:

(a) a single enterprise (or part of a single enterprise) only; or

(b) in one or more enterprises, if the employers all carry on similar business activities under the same franchise and are:

ii. related bodies corporate of the same franchisor; or

[176] The term "franchise" is not defined. Our provisional view is that the licenses under which licensed post offices operate have the attributes of a franchise and are to be treated as franchises for the purposes of paragraph 2A of the consolidated request. If this view is correct then the terms of the consolidated request require us to exclude the Postal Services Industry Award 2003 from the current award modernisation process and, accordingly there is no need to make a modern award for the postal services industry. Any party who opposes this conclusion should make an appropriate submission. In the event that we are persuaded that our provisional view is incorrect we will issue a draft modern award for the postal services industry as part of Stage 4.

[177] We deal with these two industries together.

Award Modernisation - Statement - Full Bench [2009] AIRCFB 450 (22 May 2009)

At a glance

Court

Decision date

Source

Judgment (275 paragraphs)

Award Modernisation - Statement - Full Bench [2009] AIRCFB 450 (22 May 2009)

Legislation Cited (1)