[2017] FWC 3205 The attached document replaces the document previously issued with the code [2017] FWC 3178 on 13 June 2017 Mirella Franceschini Associate to Justice Ross, President Dated 13 June 2017 1 Fair Work Act 2009 s.156 - 4 yearly review of modern awards 4 yearly review of modern awards – Award stage – Group 2 (AM2014/198) JUSTICE ROSS, PRESIDENT MELBOURNE, 9 JUNE 2017 4 yearly review of modern awards – award stage – Group 2 – technical and drafting issues. [1] The Fair Work Commission is currently reviewing all modern awards as required under s.156 of the Fair Work Act 2009. This Statement provides an update on the status of the technical and drafting issues in the awards allocated to Group 2 as listed in Attachment A. [2] A decision in relation to this group of awards was issued on 10 October 20161 and at paragraph 226 of that decision, the Full Bench directed parties to provide feedback on the revised exposure drafts by 18 November 2016. [3] A number of submissions were received and have been considered by the Commission. Where appropriate and consistent with previous decisions made as part of the Review, exposure drafts have been updated in accordance with the agreed position of the parties. Additionally, determinations varying these awards arising from common issues decisions in relation to annual leave, award flexibility (time off instead of payment for overtime) and payment of wages issued in recent months have been incorporated in the exposure drafts. [4] For some awards there remain a limited number of items that are yet to be resolved. These are listed in a schedule at Attachment B to this Statement. [5] Parties are directed to review the revised exposure drafts and the schedule at Attachment B and provide feedback in writing to amod@fwc.gov.au by 4.00 pm on 30 June 2017 outlining: any errors in the exposure drafts; and any outstanding technical and drafting issues that have been raised previously but are not listed in the schedule. [6] Following receipt of any feedback, further directions will be issued to deal with the outstanding issues. 1 [2016] FWCFB 7254 [2017] FWC 3205 STATEMENT [2017] FWC 3205 2 Next steps [7] Exposure drafts will be amended and republished on the Commission’s website progressively as the remaining issues are resolved in the first half of 2017. [8] Following any amendments to wages or allowances arising from the Annual Wage Review 2016–17 these exposure drafts will be updated to incorporate the adjusted rates and to ensure they are consistent with the Plain language guidelines2 and republished for final comment. The current award will then be varied to substitute all clauses and schedules with the provisions in the exposure draft during the second half of 2017. PRESIDENT Printed by authority of the Commonwealth Government Printer <Price code C, PR593686> 2 [2017] FWCFB 1638 at [15] [2017] FWC 3205 3 Attachment A—List of Group 2 awards Extract from Attachment A to Full Bench Decision of 17 March 2014 [2014] FWCFB 1788; subgroups as per Attachment A of Statement on 6 May 2015 [2015] FWC 3148. Group 2 (19 awards) Award code Award title Subgroup MA000092 Alpine Resorts Award 2010 2A MA000118 Animal Care and Veterinary Services Award 2010 2B MA000114 Aquaculture Industry Award 2010 2A MA000110 Corrections and Detention (Private Sector) Award 2010 2D MA000111 Fire Fighting Industry Award 2010 2D MA000026 Graphic Arts Award 2010 2A MA000027 Health Professionals and Support Services Award 2010 2B MA000008 Horse and Greyhound Training Award 2010 2D MA000031 Medical Practitioners Award 2010 2B MA000034 Nurses Award 2010 2B MA000063 Passenger Vehicle Transportation Award 2010 2C MA000012 Pharmacy Industry Award 2010 2B MA000014 Racing Industry Ground Maintenance Award 2010 2D MA000039 Road Transport (Long Distance Operations) Award 2010 2C MA000038 Road Transport and Distribution Award 2010 2C MA000068 Seafood Processing Award 2010 2A MA000084 Storage Services and Wholesale Award 2010 2A MA000042 Transport (Cash in Transit) Award 2010 2C MA000043 Waste Management Award 2010 2C 4 Attachment B—Status of Group 2 awards – technical and drafting issuesi ITEM PARTY DOCUMENT CLAUSE (exposure draft) SUMMARY OF ISSUE THEIR REFERENCE NOTES AM2014/198 —Alpine Resorts Award 2016 — MA000092 1 Ai Group Submission – 9/12/16 Various Applicable hourly rate Change to minimum hourly rate. Terms may cause confusion. Argues that applicable and minimum hourly rate are synonymous based on definition. Paras 10–13 Applicable hourly rate included due to the 8.33% seasonal employee loading which forms part of a seasonal employee’s rate for purpose of overtime, penalties etc. Issue of whether 8.33% loading is to be deleted has been referred to the Full Bench in AM2016/30. AM2014/199 — Animal Care and Veterinary Services Award 2016 — MA000118 1 AVA Submission – 06/12/16 8.3(c) Ordinary hours – 3 days off/cycle 3 days off duty includes being off duty from on call. 93% of AVA’s employers currently interpret the clause this way. Does not support current working of the note as per AFEI’s proposal as follows: “Note: An associate is not in receipt of a day off for the purposes of Clause 8.3(c) if they perform scheduled active on call duty on that day”. This note implies that the associate can be rostered on call on their off duty days. This note should be removed. Page 1 Outstanding [2017] FWC 3205 5 ITEM PARTY DOCUMENT CLAUSE (exposure draft) SUMMARY OF ISSUE THEIR REFERENCE NOTES AM2014/200 — Aquaculture Award 2016 — MA000114 Nil – no submissions on further revised exposure draft received AM2014/201 — Corrections and Detention (Private Sector) Award 2016 — MA000110 Nil – all issues arising from submissions incorporated into exposure draft AM2014/202 — Fire Fighting industry Award 2016 — MA000111 1 UFU Submission – 30/11/16 9 Ordinary hours of work and rostering In response to FWC question re: rosters: There can be no work other than on the 10/14 roster. Para 1 Outstanding 2 UFU Submission – 30/11/16 20.1 Definition of overtime – public sector In response to FWC question re: reference to minimum weekly rate: Reference to ‘minimum weekly rate’ in clause 20.1(c) should be to the ‘total weekly wage in clause 13.’ This prevents additional payment for overtime where payment has already been provided as part of the total weekly wage. The minimum weekly wages does not provide payment for overtime. Para 2 Outstanding 3 UFU Submission – 30/11/16 20.2 Definition of overtime – private sector In response to FWC question re: overtime for shiftworkers: Overtime should be payable to shiftworkers not working on a 10/14 Para 3 Outstanding [2017] FWC 3205 6 ITEM PARTY DOCUMENT CLAUSE (exposure draft) SUMMARY OF ISSUE THEIR REFERENCE NOTES roster on the same basis as those working a 10/14 roster. Overtime should be paid where a fire fighter works outside their rostered shifts or works more than 4 shifts per week. 4 UFU Submission – 30/11/16 22.3 10/14 roster employees and other public sector employees In response to FWC question re: note to clarify rate of pay on leave: Note is not necessary but would be desirable. Para 4 Outstanding 5 UFU Submission – 30/11/16 Schedule D Definitions – public sector employee and private sector employee Public and private sector have a well- understood meaning within the fire fighting industry and further definition is not necessary. Para 5 Outstanding AM2014/20 — Graphic Arts, Printing and Publishing Award 2016 — MA000026 **Note: a background document highlighting the inconsistencies in approach to describing rates has been prepared to demonstrate the complexities of the issues raised will be published on the Commission website. 1 Ai Group Submission – 14/12/16 18.5 Payment of wages Time and a half should be replaced with 150%. Para 36 This was done because in some circumstances arising under this award the conversion to percentage results in employee being worse of. 2 Ai Group Submission – 14/12/16 24.2(b), 24.3(a), 24.3(b), 24.4(a), 31.3, 31.4 Overtime, penalties and public holidays Time and a half, double time etc should Paras 37 – 45 As above [2017] FWC 3205 7 ITEM PARTY DOCUMENT CLAUSE (exposure draft) SUMMARY OF ISSUE THEIR REFERENCE NOTES be replaced with percentages. 3 Ai Group Submission – 14/12/16 Schedule I Definitions Definition of ordinary hourly rate is not included. Party submits it should be. The term is used in the award. Para 46 Outstanding. Definition has not been included as the term ‘ordinary hourly rate’ was used in the current award and may have had a different meaning to that determined by the Full Bench in the four yearly review. 4 AMWU Submission – 18 November 2016 Clause 5.5(c) 5.5 Level 2—facilitation by majority or individual agreement (c) Such an agreement under this clause binds the individual employee Para a) Proposed additional word proposed based on the amendment to the Award in the Report to the Full Bench dated 8 December 2015 at page 4 AM2014/204 — Health Professionals and Support Services Award 2016 — MA000027 1 Ai Group Submission – 14/12/16 19.1 Overtime rates Clause has been updated with reference to para [98] of decisions which states agreed changes in Roe C’s reports to the Full Bench would be adopted. Ai Group does not agree with the change to clause 19.1. It is not clearly documented that the change to this clause was agreed. Matter should be referred to Full Bench as part of HSU’s substantive variations. Paras 62 - 64 Outstanding – seek referral to Full Bench. [2017] FWC 3205 8 ITEM PARTY DOCUMENT CLAUSE (exposure draft) SUMMARY OF ISSUE THEIR REFERENCE NOTES AM2014/205 — Horse and Greyhound Training Award 2016 — MA000008 Nil – all issues arising from submissions incorporated into exposure draft AM2014/206 — Medical Practitioners Award 2016 — MA000031 Nil – all issues arising from submissions incorporated into exposure draft AM2014/207 — Nurses Award 2016 — MA000034 1 ACE Submission – 08/12/16 17.5(b)(i) Annual leave – shiftworkers Issue of who is considered a shiftworker is unclear. ACE submits it is not the intention to provide shiftworkers with any additional loading than non-shiftworkers. Annual leave loading is based on 4 weeks or 152 hours at 17.5%. Issue should be dealt with as part of wider consultations. Page 2 Outstanding 2 ANMF Submission – 30/11/16 A.1 Classification definitions Wording proposed by ANMF of A.1 may need to be reviewed in light of release of 2016 Standards for Practice. Page 1 Discussions between parties are taking place. ACE Submission – 08/12/16 Opposes ANMF revised wording of clause A.1, and confirm the Enrolled Nurse Standards for Practice at section 3.8 confirm that an enrolled nurse can support and supervise an assistant in nursing. Clause should not be amended as proposed by ANMF. Page 3 [2017] FWC 3205 9 ITEM PARTY DOCUMENT CLAUSE (exposure draft) SUMMARY OF ISSUE THEIR REFERENCE NOTES AM2014/208 — Passenger Vehicle Transportation Award 2016 — MA000063 1 AWU Submission – 28/11/16 10.5(d) Casual employment AWU supports the position of TWU that a casual employee solely engaged for the purpose of transportation from school children to and from school may be rostered to perform two separate engagements per day with a minimum payment of 2 hours for each separate engagement. Page 1 Outstanding AM2014/209 — Pharmacy Industry Award 2016 — MA000012 Award being dealt with separately AM2014/210 — Racing Industry Ground Maintenance Award 2016 — MA000014 1 Ai Group Submission – 14/12/16 B.3 Rates – casual employees Clause should be amended to make it clear that the morning work, evening work, Saturday, Sunday and public holiday rates and overtime rates do not apply to a casual employee engaged on night cleaning duties consistent with clause 6.5. Suggest including a footnote. Ai Group is concerned the schedule suggests all casual employees are entitled to the rates set out in B.3 Paras 125 – 126 Outstanding [2017] FWC 3205 10 ITEM PARTY DOCUMENT CLAUSE (exposure draft) SUMMARY OF ISSUE THEIR REFERENCE NOTES AM2014/211 — Road Transport (Long Distance Operations) Award 2016 — MA000039 1 NRTA Submission – 29/11/16 6.3 Part-time employment Clause has been updated in accordance with 1st report to Full Bench. However, no part-time clause has been included in accordance with report. Part-time clause has been referred to Part-time Full Bench. 2 ARTIA Submission – 23/11/16 11 Minimum wages/Schedule A Rates are incorrect. Standard rates in the decisions section could also be incorrect. Clause 11.5(c) refers to the ‘agreed driving hours’ for a grade 4 but it is unclear whether or not this has been changed to a Grade 6 in light of comments above. Para 5 Rates appear to be correct. If claim pursued, could ARTIA please provide details of which rates are incorrect. Definition of standard rate updated and correct standard rate amount inserted into schedule C. 11.5(c) updated. 3 NRTA Submission – 29/11/16 11.2(a) New provision New clause that was incorporated as a result of the 2nd report to the Full Bench does not do as the parties and the Commission appear to intend. Provision has no work to do. The intention to set out how the fortnightly period is derived is not necessary as the provision relates to a simple calculation of payment (2x prescribed weekly rate) and does not require the calculation of a ‘period’. Provision should be deleted. Para 10 Outstanding. Could NRTA file submissions regarding whether Ai Group’s reflects their view? [2017] FWC 3205 11 ITEM PARTY DOCUMENT CLAUSE (exposure draft) SUMMARY OF ISSUE THEIR REFERENCE NOTES Ai Group Submission – 14/12/16 NRTA submissions unintentionally misstate the proposed variation. Ai Group understands NRTA’s concerns would be resolved by the following wording: “The fortnightly payment must be calculated by reference to consecutive fortnightly periods.” Ai Group would not be opposed to this wording. Generally note that wording in ED was agreed to. Para 133 – 136 AM2014/212 — Road Transport and Distribution Award 2015 — MA000038 1 ARTIA Submission – 23/11/16 6.5(c) Casual loading The casual loading of 25% is ‘in addition to’ any other penalty payment and should be calculated as a dollar allowance and then added to the penalty payment. Para 2 Outstanding 2 ARTIA Submission – 23/11/16 Schedule C Hourly rate – oil distribution workers A divisor of 35 hours is used for all employees including part-time employees. This is contested and being dealt with by the Full Bench. Para 7 Issue has been referred to Full Bench. Outstanding 3 NRTA Submission – 29/11/16 Rates in relation to oil distribution workers are contested and being referred to by Full Bench. Para 7 4 NRTA Submission – 29/11/16 Schedule D Allowances schedule – CPI category of travelling allowance Party referred to [2009] AIRCFB 980, and submits that there is no reason to change the current subgroup.. Para 9 Outstanding [2017] FWC 3205 12 ITEM PARTY DOCUMENT CLAUSE (exposure draft) SUMMARY OF ISSUE THEIR REFERENCE NOTES AM2014/213 — Seafood Processing Award 2015 — MA000068 1 AMWU Submission – 18/11/16 8.2(c) Ordinary hours of work – day workers Variations should be considered at conclusion of review stage Para 1 Outstanding 2 AMWU Submission – 18/11/16 13.4 Shiftwork – span of hours Variations should be considered at conclusion of review stage Para 1 Outstanding 3 AMWU Submission – 18/11/16 13.5 Afternoon and night shift allowances Submits no variation should be made, as no inconsistency presents with ‘allowances’ or ‘rates’ terminology as submitted by the AIG on 31/08/16. Para 2(a) Outstanding 4 AMWU Submission – 18/11/16 13.6, 13.7 and 13.8 No variation should be made, as no inconsistency presents with ‘allowances’, ‘rates’ or ‘loadings’ terminology as submitted by the AIG on 31/08/16. Para 2(b) Outstanding AM2014/214 — Storage Services and Wholesale Award 2016 — MA000084 1 Business SA Submission – 09/12/16 4 Award flexibility Agreed wording has not been incorporated into ED, but notes AMOD email of 11/11/16 which acknowledge it would be included in next ED 1.1 Submission unclear. Clause 8.4 has been updated. However, no reference found to clause 4 in correspondence of 11/11/16. 2 SDA Submission – 01/11/16 9.2 Rest break Wording of current award to be retained (see report to Full Bench of 16 Mar16) Page 1 Report to Full Bench indicates that the wording ‘commencement or cessation of work’ be retained. Does not indicate that entire 9.2 will be Ai Group Submission – 14/12/16 As above 167 – 168 [2017] FWC 3205 13 ITEM PARTY DOCUMENT CLAUSE (exposure draft) SUMMARY OF ISSUE THEIR REFERENCE NOTES Business SA Submission – 09/12/16 Word ‘normal’ deleted when reverting wording back to current award. The word should be added. 1.1 replaced. 3 Business SA Submission – 09/12/16 17 Annual leave Delete ‘and’ at the end of 17.5(b) and amend 17.6 and 17.7 formatting. Deleted. Formatting aspect of submission unclear. 4 SDA Submission – 01/11/16 Schedule C Summary of monetary allowances Calculations for first aid and cold temperature allowances are incorrect. ($11.53, not $11.81) Page 2 AMOD calculates that rates are correct. However, standard rate updated in schedule C.1. AM2014/215 — Transport (Cash in Transit) Award 2016 — MA000042 Nil – all issues arising from submissions incorporated into exposure draft AM2014/216 — Waste Management Award 2015 — MA000043 1 AMWU Submission – 18/11/16 15.3 Shift loadings Submits no variation should be made, as no inconsistency presents with ‘loadings’ or ‘rates’ terminology as submitted by the AIG on 31/08/16. Para 3(a) Outstanding 2 AMWU Submission – 18/11/16 17.2(b) Annual leave – shiftwork Submits no variation should be made, as no inconsistency presents with terminology as submitted by the AIG on 31/08/16. Para 3(b) Outstanding i In their submission dated 31 August 2016, Ai Group has raised a number of issues across most exposure drafts.