s.576E - Procedure for carrying out award modernisation process

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

[1] The award modernisation process is being carried out pursuant to the terms of Part 10A of the Workplace Relations Act 1996 (WR Act), Schedule 5 to the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Transitional Act) and an award modernisation request made by the Minister for Employment and Workplace Relations on 28�March 2008. The request was made pursuant to s.576C of the WR Act. The request has been varied pursuant to s.576C(4) on some seven occasions. We will refer to the request as varied as the consolidated request.

[2] The most recent variation to the consolidated request was made on 26�August 2009 (the 26�August variation). The variation deals with three matters:

• horticulture industry, hours of work and penalty provisions

• work that involves receiving calls, using call centre technology and entering and retrieving data, hours of work and penalty provisions

[3] We will make some comments in relation to each of the matters.

[4] The 26 August variation in relation to the horticulture industry inserted the following two paragraphs in the consolidated request:

50. The Commission should enable employers in the horticulture industry to continue to pay piece rates of pay to casual employees who pick produce, as opposed to a minimum rate of pay supplemented by an incentive based payment.

51. Where a modern award covers horticultural work, the Commission should:

• have regard to the perishable nature of the produce grown by particular sectors of the horticulture industry when setting the hours of work provisions for employees who pick and pack this produce; and

• provide for roster arrangements and working hours that are sufficiently flexible to accommodate seasonal demands and restrictions caused by weather as to when work can be performed."

[5] The Commission made the Horticulture Award 2010[1] in Stage 2 of award modernisation on 3�April 2009. In the Commission's recent decision on the transitional provisions for priority and Stage 2 modern awards the following passage appears:

"[99] A number of employer representatives including the Horticulture Australia Council, the National Farmers' Federation (NFF) and the AiGroup submitted that the operation of the Horticulture Award 2010 should be delayed for two years pending the review of modern awards provided for in item 6 of Schedule 5 to the Transitional Act. They all expressed concern about the cost of implementing the award, particularly the provisions relating to piecework, casual loading, span of ordinary hours, overtime and penalty rates. It was suggested that, due to the wide range of provisions in award-based transitional instruments, two years will be needed to properly identify the effect of the new award and to develop proposals for variations. No union responded to those submissions, although the AWU did file a submission setting out its position in relation to transitional provisions generally.

[100] We note that since the Horticulture Award 2010 was made on 3�April 2009 the Minister varied the consolidated request on 2 May 2009. That variation amended cl.45(b) which relates to modern award provisions dealing with the calculation of pay for piecework employees while on leave.

[101] Given the scale of the cost increases referred to in the employers' submissions, which at this stage at least have not been contradicted, we have concluded that a number of the modern award provisions may require re-examination. We mention in particular the piecework provisions and provisions relating to hours of work, overtime and penalties. Despite that conclusion it would not be appropriate to simply postpone the operation of the provisions for two years. The appropriate course is for one or more of the employer groups to lodge an application to vary the modern award. If that is done we will establish a program to determine the application before the end of the year."[2]

[6] Assuming that an application is made to vary the Horticulture Award 2010, interested parties will have an opportunity to make comments on the 26�August variation of the consolidated request before any change is made to the award.

[7] In relation to the hours of work and penalty provisions to apply in call centres, the 26�August variation inserted the following in the consolidated request:

"Hours of work and penalty provisions - work that involves receiving calls, using call centre technology and entering and retrieving data

52. Where a modern award applies to employees primarily performing the work of receiving calls, using call centre technology and entering and retrieving data, the Commission should establish working hours and penalty rates arrangements that are substantially based upon those that presently apply to those employees within the industry in which they work."

[8] In its decision of 3�April 2009 the Commission made a Contract Call Centres Award 2010[3] and also included special provisions for employees in call centres in the Clerks -Private Sector Award 2010.[4] The decision contains this passage:

"[162] Parties to the existing Contract Call Centre Industry Award 2003 (CCC Award 2003) supported the making of a separate award for contract call centres in preference to establishing call centre flexibilities within the Clerks Modern Award. In our view there should not be disparate safety net provisions for call centres. Flexibilities which reflect the needs of the industry while enhancing competitiveness and employment growth prospects should be generally available. We will make a CCC Modern Award based on the CCC Award 2003 - amended to reflect the Commission's standard approach to certain modern award provisions. We will also make amendments to the Clerks Modern Award to reflect appropriate call centre flexibilities."[5]

[9] Also in its decision of 3�April 2009 the Commission made the Banking, Finance and Insurance Industry Award 2010.[6] In relation to call centres the Commission said:

"[139] Special provisions have been included dealing with hours of work and penalties for employees in call centres. These provisions mirror the provisions in the Contract Call Centres Award 2010 (CCC Modern Award)."[7]

[10] As a result of the 26�August variation to the consolidated request one or more of the modern awards may require variation. Any interested party may file an application to vary and we will attempt to give consideration to it before the end of 2009.

[11] The 26�August variation inserted the following after paragraph 52 of the consolidated request:

53. The Commission should ensure that the hours of work and associated overtime penalty arrangements in the retail, pharmacy and any similar industries the Commission views as relevant do not operate to discourage employers from:

• offering additional hours of work to part-time employees; and

• employing part-time employees rather than casual employees."

[12] In its decision of 19�December 2008 the Commission made the General Retail Industry Award 2010[8] and the Pharmacy Industry Award 2010.[9] Any interested party which is of the view that either of those awards, or any other award, should be varied to give effect to the 26�August variation should make an appropriate application. We will endeavour to deal with any such application before the end of 2009.

[2] [2009] AIRCFB 800.

[5] [2009] AIRCFB 345.

[7] [2009] AIRCFB 345.

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