MODERN AWARDS – 4 yearly review – s.156 Fair Work Act 2009 – Full Bench – various employer and union bodies made applications to vary provisions concerning casual employment and part-time employment in a number of modern awards – applications were heard together – applications in two broad categories – first, there were applications which sought the variation of a broad number of modern awards in a standardised way – these applications were given the nomenclature ‘common claims’ – second were applications directed to specific modern awards – common claims – the Australian Council of Trade Unions (ACTU) common claim consisted of three elements – first the ACTU sought a model casual conversion clause to be placed in 88 modern awards which did not already contain such a clause, as well as in 17 modern awards which do currently contain such a clause, and further that the existing casual conversion clauses in 5 other modern awards be altered so that casual employees meeting specified criteria would be deemed to have become permanent employees after an identified period – the second element was a standard provision for modern awards to require a standard daily minimum engagement period of 4 hours for all casual and part-time employees – the third element was a model clause which prohibited employers from engaging and re-engaging casual employees to avoid award obligations, required consultation with current casual and/or part-time employees about increasing their hours of work prior to engaging new employees, and required that casual employees upon engagement be informed of their classification and rate of pay – the Australian Manufacturing Workers’ Union (AMWU) claimed two variations to the Manufacturing and Associated Industries and Occupations Award 2010 (Manufacturing Award), the Vehicle Manufacturing, Repair, Services and Retail Award 2010 (VMRSR Award), the Graphic Arts, Printing and Publishing Award 2010 (Graphic Arts Award) and the Food, Beverage and Tobacco Manufacturing Award 2010 (Food and Beverage Award) – the first would vary the existing casual conversion clauses to a ‘deeming’ model of conversion – the second would vary the current minimum engagement provisions for casual and part-time employees so that the minimum period would be four hours, or three hours by written agreement between the employer and the employee – the Australian Industry Group (Ai Group) sought a variation to the existing casual conversion clauses in 21 modern awards to remove the requirement upon employers to notify eligible casual employees of their right to request to convert to permanent employment – the Recruitment & Consulting Services Association Australia & New Zealand (RCSA) similarly sought to have the notification requirement in the existing casual conversion clauses in 20 modern awards removed – in relation to the casual conversion element of the ACTU claim, the Full Bench decided it was necessary that modern awards contain a provision where casual employees may elect to convert to full-time or part-time employment, subject to specified criteria and restrictions – the Full Bench accepted the proposition advanced by the ACTU that the unrestricted use of casual employment without the safeguard of a casual conversion clause may operate to undermine the fairness and relevance of the safety net – a draft model casual conversion provision with qualifying period of 12 calendar months was developed for 85 modern awards which do not currently contain a provision of this nature – interested parties provided with an opportunity to make further submissions about the terms of this proposed model provision to be filed be filed on or before 2 August 2017 – the Full Bench did not consider that the ACTU established a case to vary the casual conversion clauses in any existing modern award – not satisfied that the modern awards objective requires the grant of the other two elements of the ACTU claim – in relation to the AMWU claim, the Full Bench did not accept that it was necessary to alter the existing casual conversion clauses to a ‘deeming’ model in order to meet the modern awards objective – the Full Bench did grant the AMWU claim to vary the casual minimum engagement provisions in the four named awards – considered that a facilitative provision with a minimum ‘floor’ of a 3 hour minimum engagement was necessary to achieve the modern awards objective in this respect – the claim advanced by the Ai Group and the RCSA to remove the notification requirement upon employers in existing casual conversion clauses was rejected – specific award claims – hospitality awards – claims were advanced by employer organisations for more flexible part-time employment provisions in the Hospitality Industry (General) Award 2010 (Hospitality Award) and the Registered and Licensed Clubs Award 2010 (Clubs Award) – United Voice made a claim for overtime penalty rates in the Hospitality Award, the Clubs Award and the Restaurant Industry Award 2010 (Restaurants Award) to apply to casual employees where they have worked in excess of 38 hours per week or 10 hours per day – United Voice also advanced a further claim that the minimum daily engagement period for casual employees in each of the 3 hospitality awards should be increased from 2 hours to 3 hours, and that the daily maximum ordinary hours for full-time and part-time employees under each award should be equalised at 10 hours – evidence demonstrated that the current part-time provision in the Hospitality Award was close to being a dead letter because it did not provide a workable model for the regulation of part-time employment in the sector covered by that award – the Full Bench reached the same conclusion about the current part-time provision in the Clubs Award – clear that greater flexibility in the rostering of hours is necessary for the part-time provisions in these 2 awards to become relevant – the Full Bench propose to vary the 2 awards to provide for part-time employment provisions which allow the employer greater flexibility in the rostering of the working hours of part-time employees, but require working hours to be allocated only in the periods which the employee had indicated he or she is available to work – provisional view that there was a strong basis for the parttime employment clause in the Restaurants Award to be altered in the same way as for the Hospitality Award and the Clubs Award – interested parties invited to make further submissions and, if necessary, adduce evidence in relation to this proposition – in relation to United Voice’s overtime claim, the Full Bench was satisfied that a fair and relevant minimum safety net for casual employees covered by the 3 awards requires that casual employees receive the benefit of overtime penalty rates for all time worked in excess of 12 hours in a day or 38 hours per week – SCHCDSI Award and Aged Care Award – Australian Business Industrial, the New South Wales Business Chamber and Jobs Australia sought that the current part-time employment provision in the Social, Community, Home Care and Disability Services Industry Award 2010 (SCHCDSI Award) be varied to allow greater flexibility in the way in which the hours of work for part-time employees were fixed – claim was primarily advanced in the context of the development and implementation by the Australian Government of the National Disability Insurance Scheme (NDIS) – Full Bench not satisfied at this time that the new part-time employment provision proposed by employer organisations for the SCHCDSI Award was necessary to achieve the modern awards objective – held that the current provision as applied in practice were reasonably flexible – the conclusions reached are made at a time when the NDIS is still a long way from full implementation – issues raised by the claim may require further review if, after the NDIS has been fully implemented, a different picture emerges – Retail, Fast Food and Hair and Beauty Awards – the Shop, Distributive and Allied Employees’ Association (SDA) sought variations to the General Retail Industry Award 2010 (Retail Award), the Fast Food Industry Award 2010 (Fast Food Award), and the Hair and Beauty Industry Award 2010 (Hair and Beauty Award) to apply overtime penalty rates to casual employees who work in excess of ordinary hours in a day or a week – the Ai Group also sought that the Fast Food Award be varied to allow an employer and a casual employee to agree to a daily engagement of less than the minimum of 3 hours currently required – the Full Bench concluded that it was necessary to vary the awards to provide for overtime penalty rates to apply to casuals in order to meet the modern awards objective – the proposed Ai Group variation was rejected – Horticulture, Pastoral and Wine Industry Awards – the AWU advanced a claim to vary the Horticulture Award 2010 (Horticulture Award) to ‘clarify’ that casuals employees under the award were entitled to overtime penalty rates – necessary to achieve the modern awards objective of a fair and relevant safety net for a modern award which prescribes overtime penalty rates for weekly employees to also prescribe them to casual employees – the Full Bench considered that the ordinary hours of casual employees should be no more than 12 hours per day, and that overtime penalty rates should be payable for work performed in excess of 12 hours – the National Farmers’ Federation (NFF) sought a variation to the Pastoral Award 2010 to reduce the minimum period of engagement from 3 hours to 2 hours for part-time and casual dairy operators – the Full Bench were not satisfied that it was necessary to reduce the minimum engagement period for casual and part-time dairy operators however the NFF’s evidence did demonstrate that the 3 hour minimum engagement period might inhibit the employment of school students – the Full Bench will therefore reduce the minimum engagement period to 2 hours for junior employees who are school students – the South Australian Wine Industry Association (SAWIA) sought a variation to the Wine Industry Award 2010 to reduce the minimum period of engagement of casual employees from 4 to 2 hours of work – evidence advanced identified the problem that unexpected weather events could cause the abandonment of grape pruning and harvesting work well before 4 hours’ work had been completed and this meant that winery operators could become cautious about when to call in their casual workforce to carry out pruning or harvesting work – the Full Bench considered that the identified problem should be resolved by a reduction to the minimum engagement period from 4 hours to 2 hours in circumstances where a weather event not expected at the start of a pruning or harvesting shift prevents the completion of 4 hours’ work – Road Transport Awards – the Australian Public Transport Industrial Association (APTIA) sought a modification of the 2 hour minimum engagement period for the transportation of school children in the Passenger Vehicle Transportation Award 2010 (Bus Award) so that the employer and employee could agree upon a lesser period of engagement in specified circumstances – the APTIA claim was rejected – the Transport Workers’ Union of Australia (TWU) also sought a variation to clarify that the existing provision required a minimum payment of 2 hours’ pay for each separate engagement in a day – the Full Bench considered that a modified version of the variation sought by the TWU would resolve any interpretational issue – the Ai Group made a claim to introduce a provision in the Road Transport (Long Distance Operations) Award 2010 (Long Distance Award) to enable employees to be employed on a part-time basis – the Full Bench accepted that there may be limited opportunities for the introduction of part-time employment in the long distance sector – such part-time work opportunities may be attractive to older drivers who wish to wind down the amount of driving hours they perform in a week, or to potential drivers who wish to work for only a few days in the week because they have other family, employment or study commitments – while the demand for such work is likely to be limited, the Full Bench saw no reason in principle why it should not be facilitated by an appropriate parttime employment provision being placed in the Long Distance Award – Building and Construction Awards – a significant issue had arisen concerning the calculation of the quantum of the casual hourly rate in the Building and Construction General On-site Award 2010 (Building Award) – the controversy was whether the casual loading should be calculated by reference to the hourly rate payable to Daily Hire employees (which includes a ‘follow the job’ loading) or by reference to the hourly rate payable to Weekly Hire employees (that does not include the ‘follow the job’ loading) – proposals to resolve this issue were advanced by the Master Builders’ Association (MBA), the Housing Industry Association (HIA) and the Construction, Forestry, Mining and Energy Union (CFMEU) – the Full Bench accepted that the Building Award did not state with clarity the method by which casual hourly rates were to be calculated – considered that the issue concerning the calculation of the casual hourly rate should be resolved in accordance with the approach proposed by the MBA – as another Full Bench is dealing with a range of substantive issues concerning the Building Award the Full Bench will defer from making a final variation to the Building Award until that issue has been finalised – the Joinery and Building Trades Award 2010 (Joinery Award) provided for a minimum daily engagement period of 7.6 hours – the HIA, the MBA and the Ai Group have all proposed that the minimum engagement period be reduced to 4 hours – no evidence that the current provision was not meeting the modern awards objective – the claim was rejected – Black Coal Mining Industry Award – the Ai Group proposed as a matter of principle that the Black Coal Mining Industry Award 2010 (Black Coal Award) be varied to remove a current restriction upon the employment of casuals other than in staff classifications, so that casuals might be engaged across all classifications of the award, including production and engineering classifications – the Full Bench could not be satisfied that simply introducing casual employment on an across-the-board basis without any restrictions or qualifications to address the safety-critical nature of the industry and the current prevalence of full-time employment would be consistent with the objective – the Ai Group application was rejected – the Full Bench invited employers in the industry to make a further application and mount a case supported by industry evidence to address the identified issues – Rail Industry Award – the Rail, Tram and Bus Union (RTBU) sought a variation to the Rail Industry Award 2010 (Rail Industry Award) to clarify that the casual loading of 25% be paid when overtime and penalty rates were also applicable – the award variations proposed by the RTBU and the rail employers involved the casual loading and the penalty rates being separately calculated by reference to, and then separately added to, the base ordinary rate – the Full Bench considered that this was the correct approach and the Rail Industry Award should be varied on that basis – Legal Services Award – a group of 21 law firms (Law Firms) sought a variation to the Legal Services Award 2010 (Legal Services Award) to reduce the minimum daily payment for casual employees from 4 hours to 3 hours – the Full Bench was not satisfied that the existing 4 hour minimum casual engagement was inconsistent with the achievement of the modern awards objective – the Law Firms’ proposal was rejected – next steps – the Full Bench made directions regarding the resolution of claims in relation to these matters – the directions can be found in chapter 13 of the decision. 4 yearly review of modern awards – Casual employment and Part-time employment
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