STATEMENT

Fair Work Act 2009
s.156 - 4 yearly review of modern awards

4 yearly review of modern awards – Final stage proceedings
(AM2019/17)

4 yearly review of modern awards – finalisation of Exposure Drafts and variation determinations – Tranche 1 – Funeral Industry Award 2010.

[1] On 24 October 2019 we issued a decision 1 (the October 2019 Decision) in relation to the finalisation of the Exposure Drafts produced during the 4 yearly review of modern awards for the 37 awards2 in Tranche 1. This Statement deals with an outstanding issue in the Funeral Industry Award 2010 (Funeral Industry Award), one of the Tranche 1 awards.

[2] The Exposure Draft for the Funeral Industry Award was last published on 2 September 2019 with amendments made in tracked changes. A draft variation determination was published on the same day. Parties were given the opportunity to file submissions in response to the Exposure Draft and draft variation determination by 8 October 2019. 3 Submissions were received from:

•  Australian Business Industrial (ABI) 4

•  Australian Workers’ Union (AWU) 5

[3] A hearing was held on 11 October 2019 in relation to the Tranche 1 awards, including the issues raised by the AWU in their submission of 9 October 2019 with regards to the Funeral Industry Award. 6 Transcript of the hearing is available on the Commission’s website.7

[4] The October 2019 Decision outlines a remaining issue in relation to the Funeral Industry Award, as follows:

[109] The AWU submits that the overtime rate for afternoon shift is not 120% as stated in the first column and the correct rates appear in clause 20.6.

[110] Clause 20.6 states:

‘20.6 Overtime for shiftworkers—Afternoon shiftworker

(a) All time worked in excess of, or outside the ordinary working hours in clause 20.2 by a shiftworker, or on a shift other than a rostered shift, will be paid at 170% of the minimum hourly rate for the first three3 hours and 220% thereafter.

(b) When less than 7 hours 36 minutes’ notice has been given to the employer by a relief employee that they will be absent from work, and the employee whom the relief employee should relieve is not relieved and is required to continue to work on the employee’s rostered day off, the unrelieved employee will be paid 220% of the minimum hourly rate.

(c) This clause 20.6 operates to the exclusion of clause 20.5.’

[111] The issue raised has a degree of complexity and turns on how the rates are calculated, which depends on the construction of clauses 22.3 and 22.6. We propose to seek further submissions in respect of this issue and will seek the views of the Fair Work Ombudsman.

[5] The relevant rates are set out at clause A.1.4 as follows:

‘A.1.4 Full-time and part-time shiftworkers—overtime

Classification	Afternoon shift	Non-continuing afternoon shift1	Monday to Friday – first 3 hours	Monday to Friday – after 3 hours
	% of minimum hourly rate
	120%	150%	150%	200%
	$	$	$	$
Grade 1	23.39	29.24	29.24	38.98
Grade 2	24.07	30.09	30.09	40.12
Grade 3	24.98	31.23	31.23	41.64
Grade 4	25.85	32.31	32.31	43.08
Grade 5	27.24	34.05	34.05	45.40
Grade 6	28.09	35.12	35.12	46.82

[6] As noted in the October 2019 Decision the issue raised has a degree of complexity and turns on how the rates are calculated, which depends on the construction of clauses 22.5 and 22.6 in the current award (the equivalent clauses of the Funeral Industry Award Exposure Draft as published on 2 September 2019 are 20.5 and 20.6). 8

[7] Clause 20.5 and 20.6 of the Exposure Draft state:

20.5 Afternoon shift penalties

(a) A shiftworker whilst on afternoon shift will be paid 120% of the minimum hourly rate.

(b) A shiftworker on a non-continuing afternoon shift will be paid 150% of the minimum hourly rate for all ordinary hours worked during the shift.

20.6 Overtime for shiftworkers—Afternoon shiftworker

(a) All time worked in excess of, or outside the ordinary working hours in clause 20.2 by a shiftworker, or on a shift other than a rostered shift, will be paid at 170% of the minimum hourly rate for the first 3 hours and 220% thereafter.

(b) When less than 7 hours 36 minutes’ notice has been given to the employer by a relief employee that they will be absent from work, and the employee whom the relief employee should relieve is not relieved and is required to continue to work on the employee’s rostered day off, the unrelieved employee will be paid 220% of the minimum hourly rate.

(c) Clause 20.6 operates to the exclusion of clause 20.5

[8] The AWU provided further submissions on 25 October 2019 in response to the October 2019 Decision 9 and submit that the issue of calculating shiftwork overtime rates was previously considered by a Full Bench during the 4-yearly review.10 In its submissions, the AWU referred to the following decisions11:

•  [2018] FWCFB 1548–Award stage–Group 4 decision.

•  [2018] FWCFB 4175–Award stage–Group 4 decision.

•  [2018] FWCFB 6852–Award stage–Group 4 decision.

[9] The AWU submitted that, in line with the decisions referred to above, the following amendments should be made to the Funeral Industry Award Exposure Draft:  12

‘(i) Schedule A.1.4: The overtime rates table for shiftworkers should be amended to the following effect (parts of table not relevant to submission omitted) which combines the table at A.1.4 and A.1.5:

A.1.4 Full-time and part-time shiftworkers – overtime

Classification	Day shift – minimum hourly rate	Afternoon shift – Monday to Sunday – first 3 hours	Afternoon shift – Monday to Sunday – after 3 hours	Afternoon shift – work on an RDO when relief employee absent
	100%	170%	220%	220%

Classification	Non-continuing afternoon shift – Monday to Sunday – first 3 hours	Non-continuing afternoon shift – Monday to Sunday – after 3 hours	Non-continuing afternoon shift – work on an RDO when relief employee absent	All shiftworkers – public holiday – all day
	200%	250%	250%	200%

An explanatory footnote referring to clause 20.6(b) can be added for the ‘work on an RDO when relief employee absent’ rates.

(ii) Schedule A.1.5: The table set out below can be deleted:

Classification	Day shift (minimum hourly rate)	Afternoon shift – Saturday and Sunday		Non-continuing afternoon shift1 – Saturday and Sunday
		First 3 hours	After 3 hours	First 3 hours	After 3 hours
	% of minimum hourly rate
	100%	170%	220%	200%	250%
	$	$	$	$	$
Grade 1	19.49	33.13	42.88	38.98	48.73
Grade 2	20.06	34.10	44.13	40.12	50.15
Grade 3	20.82	35.39	45.80	41.64	52.05
Grade 4	21.54	36.62	47.39	43.08	53.85
Grade 5	22.70	38.59	49.94	45.40	56.75
Grade 6	23.41	39.80	51.50	46.82	58.53

(iii) Schedule A.2.2: Amend the heading of the ordinary hours column to read “Day shift – ordinary hours”. Delete the ‘Monday – Friday – first 3 hours’ and ‘Monday – Friday – after 3 hours’ columns and insert a ‘Public holiday – all day’ column with a rate of ‘225%’.’

Next steps

[10] Interested parties are invited to file submissions in response to the issue outlined above and the AWU’s proposed resolution by 4pm on Friday 20 December 2019. Any submissions in reply must be filed by 4pm on Friday 17 January 2020. As we stated at [212] of the October 2019 Decision we also seek the view of the Fair Work Ombudsman about the interpretation of these provisions. The Funeral Industry Award will then be finalised in the Tranche 3 group of awards. 13

[11] Submissions should be sent to amod@fwc.gov.au and will be published on the Commission’s website.

PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR714596>

 1   [2019] FWCWB 7173.

 2   [2019] FWCWB 7173 at [2].

 3   [2019] FWCFB 6077 at [35] and [36] and dates as amended by [2019] FWCFB 6562.

 4   ABI submission dated 27 September 2019

 5   AWU submission dated 9 October 2019 and 25 October 2019

 6   AWU submission, 9 October 2019, at para 18 to 20.

 7   Transcript 11 October 2019

 8   [2019] FWCWB 7173 at [111] and [212].

 9   AWU submissions, 25 October 2019.

 10   AWU submissions, 25 October 2019, at para 9.

 11   AWU submissions, 25 October 2019, at para 5 and 7.

 12   AWU submissions, 25 October 2019, at para 10.

 13   See timetable at [36] of [2019] FWCFB 6077