PR991950 [2009] AIRCFB 967 Download Word Document AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION DECISION Workplace Relations Act 1996 s.576H - Commission may vary modern awards Australian Hotels Association (AM2009/38) Australian Hotels Association - South Australian Branch (AM2009/49) Liquor, Hospitality and Miscellaneous Union (AM2009/79 and AM2009/80) Australian Hotels Association - Western Australian Branch (AM2009/84) The Motor Inn, Motel and Accommodation Association (AM2009/105) Chamber of Commerce and Industry Western Australia (AM2009/165) HOSPITALITY INDUSTRY (GENERAL) AWARD 2010 [MA000009] JUSTICE GIUDICE, PRESIDENT VICE PRESIDENT LAWLER VICE PRESIDENT WATSON SENIOR DEPUTY PRESIDENT WATSON SENIOR DEPUTY PRESIDENT HARRISON SENIOR DEPUTY PRESIDENT ACTON COMMISSIONER SMITH MELBOURNE, 23 DECEMBER 2009 [1] This decision deals with a number of applications to vary the Hospitality Industry (General) Award 2010 : AM2009/49 and AM2009/80 - applications by the Australian Hotels Association - South Australian Branch (AHA SA) and the Liquor, Hospitality and Miscellaneous Union (LHMU) to insert agreed transitional provisions for South Australia; AM2009/84 - an application by the Australian Hotels Association - Western Australian Branch (AHA WA) to vary the award for a particular transitional provision in respect of part-time work and other matters in Western Australia; AM2009/38 - an application by the Australian Hotels Association (AHA) to vary the award in a number of respects, including to achieve ‘parity’ with the Restaurant Industry Award 2010 in relation to several conditions; AM2009/79 - an application by the LHMU to vary the award in several respects; AM2009/105 - an application by the Motor Inn, Motel and Accommodation Association (MIMAA) to vary the award in terms broadly consistent with the AHA application in AM2009/80; and AM2009/165 - an application by the Chamber of Commerce and Industry Western Australia (CCIWA) to vary the award in the same terms as sought by the AHA WA in AM2009/84, save for an additional variation sought in respect of the substantive (non-transitional) part-time work provision in clause 12 of the award. [2] We will also deal with the general question of transitional provisions for the award, generally as indicated in our 25 November 2009 statement. 1 Transitional provisions (including AM2009/49, AM2009/80 and AM2009/84) [3] In our decision of 2 September 2009, 2 we deferred consideration of transitional provisions in the Hospitality Industry (General) Award 2010 until the finalisation of the Restaurant Industry Award 2010 . We indicated that the model transitional provisions established in that decision would be the starting point for our consideration of transitional provisions for the award. [4] No-one has suggested that the model transitional provisions should not be included in the award, save for the applications to provide special provisions for South Australia and Western Australia which are dealt with in this decision. [5] Spotless submitted that the model transitional provisions should apply, without the particular transitional arrangements being proposed for South Australia and Western Australia. It also submitted that given variation applications to be determined and transitional provisions being outstanding, the modern award not apply until the first full pay period on or after 1 February 2010 to allow it, and other employers, to prepare for the operation of the modern award. [6] We will insert the model transitional provisions in the award, modified in respect of those special provisions we have accepted. [7] Save for Spotless, no party other than the joint applicants in AM2009/49 and AM2009/80 made submissions. We are not persuaded to delay the operation of the modern award as suggested by Spotless. We will include the agreed arrangements in relation to South Australia, consistent with our decision concerning transitional provisions for the priority and Stage 2 awards 3 . [8] The AHA WA proposed three special transitional provisions for Western Australia, to operate until 31 December 2014 in place of the relevant substantive provisions of the modern award. The variation seeks to preserve certain conditions from the Hotel and Tavern Workers’ Award, 1978 (Western Australia) 4 until that time. The proposed provisions were: “ Part-time work 12.1 A part-time employee shall mean an employee who regularly works no less than twenty ordinary hours per fortnight and no more than seventy-six ordinary hours with no less than three hours per work period. Such hours shall be paid for at ordinary rates of pay. 12.2 A part-time employee shall receive payment for wages, annual leave, public holidays, compassionate leave, and personal/carer’s leave on a pro-rata basis in the same proportion as the number of hours worked each fortnight bears to seventy-six hours. 12.4 A part-time employee employed under the provisions of this clause must be paid for ordinary hours worked at the rate of 1/38th of the weekly rate prescribed in clause 20—Minimum wages, for the work performed. Junior employees 15.1 Junior employees will be paid in accordance with clause 20.5. Junior employees, on reaching the age of 18 years, may be employed in the bar or other places where liquor is sold. 15.2 An employer may at any time demand the production of a birth certificate or other satisfactory proof for the purpose of ascertaining the correct age of a junior employee. If a birth certificate is required, the cost of it must be borne by the employer. 15.3 No employee under the age of 18 years will be required to work more than 10 hours in a shift. Breaks 31.1 Every employee shall be entitled to a meal break of not less than one half hour nor more than one hour after not more than five hours of work. 31.2 Where it is not possible for the employer to grant a meal break on any day, the said meal break shall be treated as time worked and the employee shall be paid at the rate applicable to the employee at the time such meal break is due, plus fifty per cent of the prescribed ordinary hourly rate applying to such employee, until such time as the employee is released for a meal. 31.3 In addition to a break for a meal, there may be one other break of at least one hour during each shift. Such break may be taken in conjunction with the meal break. 31.4 Where an employee is required to work 5 or more consecutive hours in a shift the employee shall also be entitled to one (1) only paid break of 10 minutes at a time agreed between the employer and the employee provided that the employer shall not require that the break be taken in the first or last hour of any work period and the employee shall not work more than 5 hours before either the paid or unpaid break is taken.” [9] The AHA WA relied on the 26 August 2009 submissions of the Australian Government in relation to transitional provisions for Priority and Stage 2 modern awards. It drew attention to the submission that the full five year transitional period should be used in transitioning to higher modern award standards particularly in “outlier” states and including the Western Australian hotel industry. AHA WA submitted that the full five year period would provide an orderly phase-in of the modern award and reduce the cost impact for employers. It also relied on particular characteristics of the hotel industry in Western Australia and other costs, although transitioned, arising from the modernisation process. [10] The variations proposed by the AHA WA were supported by CCIWA. [11] The LHMU opposed the AHA WA application. It submitted that, if granted, the application would reduce conditions of employment in an industry that is predominantly made up of part-time and casual employees, many of whom are young students, on very low rates of pay. It submitted that the part-time work variation would lead to uncertainty for part-time employees as to their working arrangements. [12] Having regard to the relatively larger impact of the making of the modern award on hotels in Western Australia and the 26 August 2009 submissions of the Australian Government, we are prepared to provide a transition provision for the operation of the junior employee and breaks provisions. We shall maintain the NAPSA provisions which have operated in the Western Australian industry for a transitional period in order to relieve the cost impact. We do not, however, take the same view in relation to that part of the AHA WA application dealing with part-time work. A major concern raised by the AHA WA in relation to this provision, the discouragement of employers from offering additional hours to part-time employees, will be alleviated by the agreed variation to the part-time provision addressed immediately below (in relation to the applications in AM2009/38, AM2009/79 and AM2009/105). Accordingly, we grant the AHA WA application in relation to junior employees and breaks but refuse it in relation to part-time work. We shall include the model transitional provisions in the award, but modified to reflect the agreed position in South Australia. Subject to our decision in relation to junior employees and breaks in Western Australia, the model provisons will operate with respect to all other States and Territories. AM2009/38, AM2009/79 AM2009/105 and that part of AM2009/165 dealing with the substantive part-time provision [13] The AHA, the LHMU and MIMAA each sought a range of amendments to the award in their applications. Given what follows, it is unnecessary to record the specific variations sought. In later written submissions and at the commencement of consultations before Senior Deputy President Watson on 9 November 2009, each party amended their initial applications and the differences between them reduced considerably. During conciliation, the AHA, the LHMU and MIMAA reached an agreed position on the variation applications, subject to one matter. That matter concerns the LHMU application to vary the definition of appropriate level of training to add a note that the minimum classification level for an employee who has completed AQF Certificate III qualifications relevant to the classification in which they are employed is Level 4. [14] The CCIWA application in AM2009/165, so far as it relates to part-time work, is consistent with the agreement reached between the AHA, the LHMU and MIMAA on 9 November 2009 which we deal with below. Variations agreed between the AHA, the LHMU and MIMAA [15] The following variations to the award were agreed by the AHA, the LHMU and MIMAA: 1. Delete the definition of “appropriate level of training” from clause 3.1 and insert: Appropriate level of training means that an employee: (a) has completed an appropriate training program that meets the training and assessment requirements of a qualification or one or more designated units of competency from a Training Package; and/or (b) has been assessed by a qualified skills assessor to have skills at least equivalent to those attained in an appropriate training course; and/or (c) as at the 30 June 2010, has been doing the work of a particular classification for a period of at least three months. (Note: Any dispute concerning subclause (c) may be referred to Fair Work Australia for determination. Fair Work Australia may require an employee to demonstrate to its satisfaction that the employee utilises skills and knowledge, and that these are relevant to the work the employee is doing.) 2. Delete the definition of “ standard rate ” from clause 3.1 and insert: Standard weekly rate means the minimum weekly wage for a level 4 rate (Cook (tradesperson) grade 3) in clause 20.1. Standard hourly rate means the minimum hourly wage for a level 4 classification (Cook (tradesperson) grade 3) in clause 20.1. 3. Add the word “liquor booth” to clause 4.5. 4. Delete clause 12—Part-time employment, and insert: 12. Part-time employment 12.1 An employer may employ part-time employees in any classification in this award. 12.2 A part-time employee is an employee who: (a) works less than full-time hours of 38 per week; (b) has reasonably predictable hours of work; and (c) receives, on a pro rata basis, equivalent pay and conditions to those of full-time employees who do the same kind of work. 12.3 At the time of engagement the employer and the part-time employee will agree in writing on a regular pattern of work, specifying at least the hours worked each day, which days of the week the employee will work and the actual starting and finishing times each day. 12.4 Any agreed variation to the hours of work will be recorded in writing. 12.5 An employer is required to roster a part-time employee for a minimum of three consecutive hours on any shift. 12.6 An employee who does not meet the definition of a part-time employee and who is not a full-time employee will be paid as a casual employee in accordance with clause 13—Casual employment. 12.7 All time worked in excess of the hours as agreed under clause 12.3 or varied under clause 12.4 will be overtime and paid for at the rates prescribed in clause 33— Overtime. 12.8 A part-time employee employed under the provisions of this clause must be paid for ordinary hours worked at the rate of 1/38th of the weekly rate prescribed in clause 20—Minimum wages, for the work performed. 5. Delete “clause 21.1(b)—Clothing equipment and tools” and “clause 21.1(c)—Vehicle allowance” from the dot points in clause 20.2(b) and insert: Clause 21 – Allowances Clause 37.1(b)(i) – Additional arrangements for full-time employees (on public holidays) 6. Insert a new subclause at 20.2(e): A hotel manager will be reimbursed for all moneys reasonably expended by him/her for and on behalf of the employer subject to hotel policy or approval. 7. Delete clause 28.4 and insert: 28.4 Superannuation fund Unless, to comply with superannuation legislation, the employer is required to make the superannuation contributions provided for in clause 28.2 to another superannuation fund that is chosen by the employee, the employer must make the superannuation contributions provided for in clause 28.2 and pay the amount authorised under clauses 28.3(a) and (b) to one of the following superannuation funds: (a) HOST-PLUS; (b) InTrust Super; (c) Sunsuper; (d) HostWest Superanuation Fund; (e) Westscheme Superanuation Fund; or (f) any superannuation fund to which the employer was making superannuation contributions for the benefit of its employees before 12 September 2008, provided the superannuation fund is an eligible choice fund. 8. Delete clause 34.1 and insert: 34.1 Leave entitlements Annual leave is provided for in the NES. It does not apply to casual employees. For the purpose of the additional week of leave provided by the NES, a shiftworker is a seven day shiftworker who is regularly rostered to work on Sundays and public holidays in a business in which shifts are continuously rostered 24 hours a day for seven days a week. 9. Insert a new clause 36A—Ceremonial Leave, to read as follows: 36A. Ceremonial leave (a) An employee who is legitimately required by Aboriginal or Torres Strait Islander tradition to be absent from work for ceremonial purposes will be entitled to up to 10 working days unpaid leave in any one year, on the giving of 4 weeks’ notice (where practicable) and with the approval of the employer. (b) An employee who has requested an absence for ceremonial leave must, if required by the employer, give the employer evidence that would satisfy a reasonable person that the absence is because the employee is legitimately required to be absent for ceremonial leave. 10. Delete from clause A.1.1 of Schedule A—Classification Definitions, the definition of “Food and beverage attendant grade 3” and insert: Food and beverage attendant grade 3 means an employee who in addition to the tasks performed by a Food and beverage attendant grade 2 is engaged in any of the following: the operation of a mechanical lifting device; attending a wagering (e.g. TAB) terminal, electronic gaming terminal or similar terminal; full control of a cellar or liquor store (including the receipt, delivery and recording of goods within such an area); mixing a range of sophisticated drinks; supervising food and beverage attendants of a lower grade; taking reservations, greeting and seating guests; and training food and beverage attendants of a lower grade. 11. Add to clause A.1.9 of Schedule A: This additional classification also does not apply to: Any Hotel Manager who is an employee of a proprietary or private company (within the meaning of the Corporations Law) where he/she holds sufficient number of shares to entitle him/her to voting control at general meetings of the company; or Any Hotel Manager who is the senior partner of a partnership or has at least 49% of that partnership; or A parent, spouse, son or daughter of a Hotel Manager excluded from the additional classification by this paragraph. 12. Delete the numbering (only) to Items “A.1.1 to A.1.9” in Schedule A and replace it with new numbering “A.2.1 to A.2.9”. 13. Delete the numbering (only) to Items “A.1.10 to A.1.15” in Schedule A and replace with new numbering “A.3.1 to A.3.6”. [16] We will vary the award to give effect to each of the agreed variations, other than that relating to ceremonial leave. Ceremonial leave is not found in existing instruments and can in any event be dealt with by agreement consistent with the award provisions for substitution where relevant. [17] Variation 1 ensures that the definition of “appropriate level of training” does not operate to disadvantage an employee who has been working at a classification level for a period of time, in the absence, in particular, of a skills assessment, when the award commences. The note ensures that an employee utilises skills and knowledge relevant to the work they are doing. [18] Variations 2, 7, 12 and 13 are editorial in nature and are appropriate. We note that the renumbering of clauses in Schedule A relates to Schedule A as it currently appears in the award. The numbering will be changed again when the transitional schedule is included in the award. [19] Variation 3 adds “liquor booth” to the definition of “hospitality industry”, consistent with our decision of 4 December 2009. 5 [20] Variation 4 amends the award by incorporating the substance of the part-time provision in the Restaurant Industry Award 2010 . 6 That provision was based on the part-time provision currently in the Hospitality Industry (General) Award 2010 , but subsequently modified in light of the amendment to the consolidated request made on 26 August 2009. The history of the matter is set out in the Commission’s decision of 25 September 2009 concerning the publication of the exposure drafts for the Stage 4 modern awards. 7 That provision, now agreed by the AHA, LHMU and MIMAA, provides appropriate flexibility and will be inserted into the award in place of the current provision. It is clearly consistent also with the proposal advanced by CCIWA. In light of this variation to the part-time work provision, there is no need to insert the transitional provision sought by the AHA in relation to part-time work. [21] Variations 5, 6 and 11, relating to managers, better reflect the terms of the Liquor and Accommodation Industry - Hotels, Resorts and Gaming - (Managerial Staff) - Award 2003 . 8 [22] Variation 8 clarifies the operation of the provision concerning the additional week’s leave for shiftworkers under the NES and corrects a typographical error. [23] Variation 10 clarifies the definition of Food and beverage attendant grade 3. The contested issue [24] The LHMU application, as amended in submissions filed on 7 December 2009, seeks to vary the definition of appropriate level of training by adding the following note: “Note: The minimum classification level for an employee who has completed AQF Certificate III qualifications relevant to the classification in which they are employed is the Level 4 rate prescribed in clause 20.1. Any dispute concerning an employee’s entitlement to be paid at Level 4 may be referred to Fair Work Australia for determination. Fair Work Australia may require an employee to demonstrate to its satisfaction that the employee utilises skills and knowledge derived from Certificate III competencies, and that these are relevant to the work the employee is doing.” [25] An element of the note sought by the LHMU in its initial application also went to the classification of employees who had completed Certificate II qualifications at level 4. That element of the initial application was not persisted with. It may be that there are discussions between the interested parties and further application may be made dealing with the recognition of accredited qualifications in the classification structure. The variation now sought by the LHMU, limited in its scope to Certificate III qualifications, is without prejudice to any position a party may take in relation to any review of the modern award or the regulation of minimum wages for employees holding relevant Certificate II qualifications. [26] The LHMU proposal, in its broader form, was advanced by it late in the post-exposure draft consultations on priority awards. In our decision of 19 December 2008, we said: “On 28 October 2008, the LHMU, in the context of suggesting amendments to the definition of ‘appropriate level of training’ proposed translation arrangements linking Australian Qualifications Framework (AQF) qualifications to classification levels for food and beverage attendants. Whilst, on its face, this proposal has some attraction, it was introduced at a very late stage of the consultations. Consequently other organisations and parties were not in a position to assess and comment on it. Further, it is unclear what, if any, cost implications might arise from the proposal. While we have not included the proposal in the award we invite those interested to discuss the proposal further and, if appropriate, revisit the issue through an application to vary the draft award before it comes into operation.” 9 [27] Whilst there have been discussions between the parties since that time, no agreement has been reached. The application now made by the LHMU provides that an employee with a relevant AQF Certificate III (trade equivalent) qualification who utilises skills and knowledge derived from Certificate III competencies relevant to the work the employee is doing must be classified at grade 4 and paid the minimum “trade” rate. Thus, for example, a Food and beverages attendant who is accredited with a relevant Certificate III qualification and is utilising the skills acquired, would be classified at grade 4, in the same way as would occur in relation to an employee who has completed an apprenticeship in waiting undertaking the same work. Similarly, a cook with a Certificate III qualification, and utilising relevant skills, would be classified in the same way as a Cook who has completed an apprenticeship, being classified as a Cook tradesperson grade 3 or 4, depending on the work performed. [28] The LHMU submitted that the proposed variation follows upon industry discussions, suggested by the Full Bench in its 19 December 2008 decision, which had led to agreed positions with Clubs Australia and Restaurant and Catering Australia and which are reflected in the modern awards applying to restaurants and registered and licensed clubs. [29] The AHA, supported by MIMAA, opposed the application, primarily on cost grounds. It submitted that: the operation of the LHMU variation would discourage training in the industry and result in a reversion to in-house training instead of training within the national training framework; it is not possible to make a direct link between qualifications and job classification in a fair and proper way; at the very least, the variation should be subject to greater consultation and examination of the full financial impact and how the integrity of the AQF Industry Qualifications and workplace requirements may be linked; and the AHA would support such a review but believe it should be undertaken once the current award modernisation process is finalised. [30] Various major hotels made submissions supporting the AHA’s submission that the classification structure should be maintained until a full review of the structure and training arrangements can be conducted. They submitted that the combined effect of the food and beverages grade 3 definition, in the award as published, and the initial LHMU application in respect of the grading of employees with Certificate II or III qualifications would or could affect a substantial number of their employees and would or could add additional costs to the non-managerial wages bill. The proportions of employees affected might vary between 5% and 75% and the additional cost to the non-managerial wages bill might be between 0.2% and 7.26%. [31] In its 23 November 2009 submission, the LHMU submitted that it is now well established that AQF Certificate III is equivalent to a trade qualification and that completion of an AQF Certificate III qualification is equivalent to passing an appropriate trade test. That contention was not contested by the AHA or MIMAA. It is supported by the Qualifications Framework: Tourism, Hospitality and Events and the Australian Apprenticeships Training Information Service materials submitted by the ACTU on 4 November 2009 in the Stage 4 restaurant industry consultations. The LHMU proposal seeks to make it clear in the award that an employee with a relevant AQF Certificate III qualification who utilises skills and knowledge derived from Certificate III competencies relevant to the work they are doing must be classified at grade 4 and paid the appropriate minimum rate. It submitted that the classification descriptions for food and beverage grade 4 employees and cook (tradesperson) grade 3 clearly envisage that an employee who has passed an appropriate test equivalent to a “trade” test should be classified at Level 4 of the wages scale. [32] The AHA did not contest the substance of the variation sought. Rather it argued that the variation should not be considered without a major hearing or review and relied on the cost to employers of paying Certificate III qualified employees, utilising the skills acquired in their work, at the same level as an employee qualified through the completion of an apprenticeship. [33] In our view, a major review is not necessary in relation to the amended variation sought by the LHMU, although a more substantial hearing might have been required if the application was not limited to its present scope. We are satisfied that the application as now proposed by the LHMU should be made. The change will do little more than modernise the award to accommodate the development of training options other than apprenticeships within the national training framework. The basic concept that employees who have obtained and utilise relevant skills in their work should have those skills recognised and paid for within the classification structure is well established. It was an element of the structural efficiency principle of the late 1980’s which was directed, amongst other things, to “establishing skill-related career paths which provide an incentive for workers to continue to participate in skill formation”. 10 The classification of Certificate III qualified employees at the trades level is reflected in a range of modern awards, across a diverse range of industries and occupations. 11 The provision now sought by the LHMU was inserted, in broader form encompassing Certificate II, in the Restaurant Industry Award 2010. 12 Clubs Australia has applied, with the support of the LHMU, to vary the Registered and Licensed Clubs Award 2010 13 in the same terms as the LHMU variation sought in the current matter. In our view, the variation sought by the LHMU is consistent with the approach to classification generally adopted in modern awards. [34] Further, we think that payment for trades level skills acquired and utilised by employees might assist in addressing the recruitment and retention problems within the hospitality industry. Such problems were noted in the following comments of the Federal Minister for Tourism, cited in a submission by the Mint Group, whilst launching a joint national training initiative between Mint Group and Hyatt Australia recently: “The program will improve workplace retention in a sector with a traditionally high staff turnover and is an investment which will boost productivity.” [35] Similar observations in a June 2007 publication - Current vacancies: Workforce challenges facing the Australian tourism sector 14 - were brought to our attention in the 23 November 2009 submission by the LHMU: “While the clear majority of submitters cited low wages as the primary disincentive for recruitment and retention, other than encouraging a culture of tipping, no solutions were offered. ...” [36] We do not accept the AHA proposition that recruitment and retention can be effectively addressed through increased training, although the significance of those matters in fixing minimum wages in a safety net award might require further examination. [37] We understand that the variation may involve some cost increases for some employers although any additional costs would seem to be limited. Whilst the major hotels estimated that the variation, as originally proposed by the LHMU, could or would affect between 5% and 75% and could or would add between 0.2% to 7.26% to the non-managerial wages bill, that information has to be regarded with some caution. First, the variation now only involves the Certificate III qualification, whereas the hotel figures are based on a variation in relation to both Certificate II and III qualifications. Further, the figures are not consistent. For example, two hotels estimated the application would affect 5% of their workforce, but estimated additional payroll costs of 0.2% and 5.5% respectively. [38] We will vary the award in the amended form proposed by the LHMU, save that we have altered the wording to make it explicit that an employee will not be classified at level 4 requires unless required to utilise skills and knowledge derived from Certificate III competencies which are relevant to the work undertaken. Accordingly, we will add the underlined words to the provision proposed by the LHMU and vary the award in those amended terms: “Note: The minimum classification level for an employee who has completed AQF Certificate III qualifications relevant to the classification in which they are employed and who utilises skills and knowledge derived from Certificate III competencies relevant to the work undertaken is the Level 4 rate prescribed in clause 20.1. Any dispute concerning an employee’s entitlement to be paid at Level 4 may be referred to Fair Work Australia for determination. Fair Work Australia may require an employee to demonstrate to its satisfaction that the employee utilises skills and knowledge derived from Certificate III competencies, and that these are relevant to the work the employee is doing.” BY THE COMMISSION: PRESIDENT 1 [2009] AIRCFB 934 . 2 [2009] AIRCFB 800 , at para 71. 3 [2009]AIRCFB 800 at para 48. 4 AN160174. 5 [2009] AIRCFB 945 , at para 180.4. 6 MA000119. 7 [2009] AIRCFB 945 at paras 11, 186 and 195-200 8 AP821899. 9 [2008] AIRCFB 1000 , at para 125. 10 National Wage Case - August 1988 [1987-88] 25 IR 170, at 179. 11 For example, wage group: C10 (b) production systems employee in the Manufacturing and Associated Industries and Occupations Award 2010 , grade 4 in the Nursery Award 2010 , aged care employee—level 4 in the Aged Care Award 2010 , nursing assistant (experienced) in the Nurses Award 2010 and retail employee level 4 in the General Retail Industry Award 2010 . 12 MA000119. See [2009] AIRCFB 945 , at para 183. 13 AM2009/119. 14 House of Representatives Standing Committee on Employment, Workplace Relations and Workforce Participation. Printed by authority of the Commonwealth Government Printer <Price code C, PR991950>