Meal Breaks
11 As to the issue of meal breaks for employees working ordinary hours on weekends, the Union contended that these employees should be provided with a 20 minute paid meal break whereas the employers argued that they should be provided with the "usual" unpaid meal break. The Union's contention was based on the proposition that the weekend work was "shift work" under the award.
12 The award we made in relation to the issue of weekend work arose from the particular circumstances of the proceedings before us and had regard to the arguments put particularly by the Union and the joint employers. We have accordingly permitted the working of ordinary hours on weekends on a basis analogous to shift work having regard to the submissions made by the parties and decided that, in order to qualify for work on this basis, employees would be classified as shift workers, albeit on a somewhat unusual basis. It must however be recognised that the provisions made depended upon the very particular arguments in the proceedings and the new category of shift workers created is unusual in terms of shift work provisions. In a practical sense, weekend work on the basis of ordinary time with the payment of weekend shift penalties is more like day work in its usual form. In those circumstances, we consider that the employers' submissions should be accepted and that persons working ordinary time on a weekend should be provided with the usual unpaid meal break rather than a 20 minute paid meal or crib break.
13 However, in varying the award in that way we should acknowledge that towards the end of their submissions the parties generally, including Employers First, accepted that it would be appropriate to include in the award an alternative provision providing for a paid meal break in situations where there was agreement to this approach. The alternative provision would involve the inclusion of a proviso that if the employer and employee agreed the employee could, instead of having the usual unpaid meal break, have a 20 minute paid meal or crib break. The award should be varied accordingly.
Whether 17 per cent allowance to be paid to employees when on sick leave
14 The Union contended that the 17 per cent allowance to be paid to employees working ordinary hours between 6 pm and 7 pm on week days should be paid when employees are on sick leave. The employers submitted that the allowances should not be payable in respect of sick leave and relied upon the fact that the Saturday loading payable under this award (and, for that matter, in other awards) was not paid when the employee was on sick leave
15 We consider that the approach of the employers in this matter is correct and base our decision on the situation concerning the payment of the Saturday morning allowance under this award. We consider that is an allowance in some ways analagous to the 17 per cent allowance awarded, although calculated on a different basis. It would be therefore anomalous to provide that the 17 per cent allowance be paid in respect of sick leave when the Saturday morning allowance is not so paid, and we order accordingly.
Savings provisions (including application by Employers First for retrospectivity)
16 In respect of the loading for shift workers who work between 6 pm and 7 pm, the Commission said at [264] of its December decision:
[264] The employers propose that a savings provision should be included if the Commission granted this part of the application. In this regard, it is agreed that any existing employee who is in receipt of an afternoon shift loading and whose hours finish after 6.00 pm and at or before 7.00 pm would continue to receive the afternoon shift loading. In our view, such a savings provision is appropriate and the variation is granted upon that basis.