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

4 yearly review of modern awards
(AM2019/17)

4 yearly review of modern awards – Ports, Harbours and Enclosed Water Vessels Award 2010 – shift work rates on weekends.

[1] This Statement outlines a proposed course of action for resolving an outstanding issue in the Ports, Harbours and Enclosed Vessels Award 2010 (the Ports Award).

[2] In a decision issued on 13 March 2018, relating to the Group 3 awards ([2018] FWCFB 1405), the Full Bench proposed that a conference be convened to discuss which rates apply to shift work on weekends in the Ports Award. 1

[3] On 6 June 2018 a Background Paper was published setting out the issue and summarising the submissions received to that date. A copy of the Background Paper is attached to this Statement.

[4] A conference of interested parties was held on 21 June 2018. The transcript of that conference is here.

[5] The outcome of the conference was set out in the Group 3 decision of 15 October 2018, 2 as follows:

‘[160] In the March 2018 decision, the Full Bench proposed to convene a further conference of interested parties to discuss the outstanding issue of which rates apply to shiftwork on weekends.

[161] A proposal about how to resolve the matter was outlined in a background paper published on 6 June 2018, which stated: 3

‘[25] With the exception of Business SA and MIAL, the parties appear to agree that shift work on Saturdays and Sundays is paid at the overtime rate and is not inclusive of shift allowance. Both the current award and exposure draft seem to support this, though it requires a careful reading of the three relevant clauses to arrive at that position.

[26] If this position were adopted it may be desirable to insert a new clause at 13.3 of the exposure draft, to clarify how the shiftwork rates interact with overtime, along the following lines:

“Shiftwork rates in clause 13.2 are not payable when working overtime. The relevant overtime rate is payable instead.”

[162] This proposal was discussed at the conference which was convened on Thursday 21 June 2018. During the conference the AWU, AMOU, MUA, AIMPE and MIAL all agreed with the proposed new clause 13.3 which was set out at paragraph [26] of the background paper.

[163] The AWU and AMOU suggested that alternative wording may be preferable due to the contention around whether or not shiftwork can be worked on Saturdays and Sundays. They suggested the following wording: 4

“Shiftwork rates in clause 13.2 are not payable when working outside of ordinary hours. In clause 7.2, the relevant overtime is payable instead.”

[164] The MUA also supported the alternate wording as did AIMPE who had concerns regarding the use of the words “when working overtime”. Whilst MIAL broadly supported the new wording they noted that as shiftwork, by its definition, will finish outside of the span of ordinary hours the wording may cause confusion. Ultimately, the parties agreed to proceed with the wording of the clause proposed in the background paper.

[165] AFEI did not support the proposal and advanced an alternative view in respect of the issue. At the conference before the Commission, AFEI were requested to convene a teleconference of interested parties to address their position concerning ordinary hours and weekend rates under the Award. During that teleconference, AEFI were requested by a number of other parties to file written details explaining their position. 5

[166] On 2 August 2018 AEFI made a submission explaining their position, 6 which was also made on behalf of the Boating Industry Association – Commercial Vessels Division and the Association of Marine Park Tourism Operators. The submission states:

“The Background Paper states, incorrectly in our view, that ‘any work between midnight on Friday and midnight on Sunday is overtime.’ The Background Paper’s statement indicates its conclusion is based on Clause 18.2 of the Award which states ‘[o]rdinary hours may be worked between 6am and 6pm for up to eight hours per day, Monday to Friday inclusive.’”

[167] AFEI submits the following:

“• Clause 18.2 of the Award is not an exhaustive statement of when ordinary hours can be worked;

• Clause 20.1(b) of the Award is clear that it permits ordinary hours to be worked on Saturdays, irrespective of whether it is day work or shift work

• Clause 20.3 of the Award is clear that it permits ordinary hours to be worked on Sundays, irrespective of whether it is day work or shift work;

• The Award prescribes a loading of 50% and 100% respectively for ordinary hours and overtime worked on Saturdays and Sundays;

• Clause 18.2 of the Award is not an impediment to working ordinary hours on a weekend, or on shift work;

• There is no justification for removing the wording currently in Clause 20.1(b) and 20.3 of the Award from the substantive text of the section, which permits ordinary hours to be worked on weekends.

• The Exposure Draft should be revised to ensure it is clear that it continues to permit an employee to work ordinary hours on a Saturday and Sunday, as is currently permitted by Clause 20.1 of the Award.”

[168] AEFI submit that Clause 12.2 of the Exposure Draft be revised as follows to retain the wording from the current Award:

12.2 Employees will be paid the following rates for overtime worked Monday to Friday, ordinary hours and overtime worked on a Saturday or on a Sunday, or work on a public holiday:

[169] Clause 12.2 of the current exposure draft was initially proposed in table form in the MUA submission of 14 April 2016 to clarify when overtime rates were applicable. The words above that table were modified to incorporate suggested words from the AWU’s submission dated 18 April Submission. Clause 12.2 of the exposure draft, which was last published on 18 July 2017, is currently in the following terms:

12.2 Employees will be paid the following rates for all overtime worked Monday to Friday, work on a Saturday or on a Sunday, or work on a public holiday or ordinary weekend work at the following rates:

[170] AEFI states that if the Commission intends to proceed with the current wording in Clause 12.2 of the Exposure Draft that directions be issued for interested parties to file written submissions on this matter.

[171] Clause 12.2 of the current exposure draft was initially proposed in a table form in a submission from MUA on 14 April 2016, with alternative wording at the start of the clause to resolve the inconsistency between the span of hours provided for ordinary hours at clause 7.2 and the mention of ordinary hours in relation to overtime on weekends. 123 The words above the table in that submission (which were incomplete) were further modified to incorporate suggested words from the AWU’s 18 April 2016 submission.124

[172] AEFI’s submission seeks to resolve a potential inconsistency between the span of hours clause and the inclusion of ordinary hours for overtime rates on weekends and public holidays by stating that the span of hours clause is non-exhaustive. The span of hours clause, at 7.2 of the exposure draft and 18.2 of the current award reads as follows:

“Ordinary hours may be worked between 6.00 am and 6.00 pm for up to eight hours per day, Monday to Friday inclusive.”

[173] Whilst this clause uses the phrase “may be worked” rather than “must be worked” or “are only worked” suggesting it may be considered permissive rather than exhaustive, we see little utility in a span of hours clause that is not exhaustive. If we accept AFEI’s submission that ordinary hours can be worked on weekends, it should follow that the span of hours clause be amended to clarify this.

[174] AEFI’s submission does not specifically address the issue of whether shiftwork undertaken on weekends attracts shift allowance rates in addition to overtime rates. If AFEI’s proposal were accepted, the proposed clause 13.3 may no longer exclude the possibility of shiftwork rates being paid in addition to overtime rates on weekends as shiftwork on weekends could be classed as work at ordinary hours that attract overtime rates rather than is overtime work.

[175] Interested parties are invited to file submissions by 4.00 pm on 31 October 2018. Submissions should be sent to amod@fwc.gov.au. The matter will then be determined on the papers, unless there is any objection to this course.’

[6] Submissions were subsequently received from AFEI and the Construction, Forestry, Maritime, Mining and Energy Union - Maritime Union Division (CFMMEU). No party objected to the matter being determined on the papers.

[7] In a submission filed on 31 October 2018, AFEI proposed further amendments to the exposure draft and provide detailed reasons for why it says the current award does allow for ordinary hours and overtime to be worked on weekends and does not allow for payment of both overtime rates and shiftwork rates on weekends.

[8] The AFEI submitted the following in respect of which rates apply to shift work on weekends:

•  for each hour of work on a Saturday, the rate of 1.5 times the ordinary hourly base rate of pay (this does not include any shift rate at cl. 21.2 of the current award),

•  for each hour of work on a Sunday, the rate of 2 times the ordinary hourly base rate of pay (this does not include any shift rate at cl. 21.2 of the current award).⁷

[9] AFEI submitted that ‘while ordinary time hours are distinct from overtime hours under the current award, the respective rates for ordinary hours on a Saturday and on a Sunday are commensurate with the rates for overtime on a Saturday and on a Sunday.’⁸ AFEI submitted the relevant provisions of the current award for determining the rates for work on a Saturday and Sunday are clause 20.1(b) and 20.3 which are set out below:

‘20. Overtime and penalty rates

20.1 Employees will be entitled to be paid:

…

(b) a loading of 50% of the ordinary hourly base rate of pay for all ordinary hours and overtime worked between midnight Friday and midnight Saturday;

…

20.3 Sunday work

An employee will be paid a loading of 100% of the ordinary hourly base rate of pay for any hours, ordinary and overtime, worked on a Sunday.’

[10] AFEI submitted that ‘that shift hours are in the nature of ordinary hours of work, albeit the hours usually attract an additional payment. Thus, a shift of ordinary hours is different in character from any overtime hours worked outside of that shift.’⁹ AFEI further submitted that clauses 20.1(b) and 20.3 mention both ordinary hours and overtime, but they do not conflate the two. AFEI submitted that hours on a Saturday or Sunday can either be ordinary hours or overtime.¹⁰

[11] AFEI also submitted that the rate on which the loadings are calculated at clauses 20.1(b) and 20.3 for both ordinary hours and for overtime hours is the hourly rate of pay for ordinary hours of work and that rate does not include any loadings or penalties which would otherwise apply to the hours of work.¹¹

[12] The current award provides for shift work rates at clause 21.2 as follows:

21.2 Shiftwork rates

Type of shift	Percentage of the ordinary time rate
	%
Afternoon shift	115
Night shift	115
Permanent night shift	130

[13] AFEI submitted that the shift loadings at clause 21.2 are not included for the purposes of calculating any ordinary time or any overtime worked on a Saturday or on a Sunday.¹² AFEI submitted the ‘correctness of this approach is reflected in the rates set out at table A.2.1 and table A.2.2 of the Exposure Draft and by the most recent rates published by the Fair Work Ombudsman – none of these rates implies any compounding of shift rates at cl.21.2 with the weekend rates for ordinary time or overtime at cl. 20.1(b) and cl.20.3.’¹³

[14] AFEI noted that their proposal of 2 August 2018 was not intended to be a substantive change to the award conditions and that it does not seek a change in entitlements from the current award.¹⁴ Its concern focussed on the difference in approach between 20.1(b) and 20.3 of the current award and clause 12 of the exposure draft.¹⁵ AFEI submitted that each of the sub-clauses at cl. 20.1(a)-(c) of the current award are separated by a semicolon, whereas in the introductory text at clause 12.2 of the exposure draft are separated by commas. AFEI submitted this could ‘suggest conflation, rather than separation, of the items addressed, could convey an impression that it is dealing with overtime only – and yet under the current award cl.20.1 (b) and cl.20.3 address both ordinary hours and overtime hours.’¹⁶

[15] AFEI proposed a new clause 7.2 of the exposure draft as follows:

7.2 Span of hours

Ordinary hours may be worked:

(a) between 6.00am and 6.00pm for up to eight hours per day, Monday to Friday inclusive; or

(b) in accordance with a shift of ordinary hours as per clause 13 ‘Shiftwork’ of this award, or on a Saturday, a Sunday or a public holiday.

[16] AFEI proposed a new clause 12.1 of the exposure draft as follows (and delete the existing 12.2):

12.1 Employees will be paid at the applicable rates shown in the table below for:

(a) any overtime worked Monday to Friday;

(b) any ordinary hours and any overtime worked on a Saturday;

(c) any ordinary hours and any overtime worked on a Sunday;

(d) any ordinary hours and any overtime worked on a public holiday.

		% of ordinary hourly rate (see definition of ‘ordinary hourly rate’ at A.1.1 of Schedule A – Summary of Hourly rates of pay).
Overtime
Monday to Friday	First three hours	150
	After three hours	200
Ordinary hours and overtime
Saturday		150
Sunday		200
Public holiday		250

[17] AFEI proposed a new clause 13.2 of the exposure draft as follows:

13.2 Shiftwork rates

(a) Except where the ordinary hours are worked on a Saturday, a Sunday or a public holiday, employees will be paid the following rates for ordinary hours worked on any shift type defined at clause13.1 of this award:

Type of shift	% of the ordinary time rate (see definition of ‘ordinary hourly rate’ at A.1.1 of Schedule A – Summary of Hourly rates of pay).
	%
Afternoon shift	115
Night shift	115
Permanent night shift	130

(b) Where the ordinary hours are worked on a Saturday, a Sunday or a public holiday, the employee will be paid at the applicable rate set out in clause 12.1 of this award.

[18] AFEI propose to delete the definition of ‘ordinary hourly rate’ at Schedule H – Definitions and replace with:

‘ordinary hourly rate has the meaning given to it at A.1.1 of Schedule A – Summary of Hourly Rates of Pay of this award.’

[19] We note that there have been changes in the clause numbering of the Exposure Draft since the AFEI submission of 31 October 2018. These issues are addressed in AFEI’s submission of 4 March 2020,  17 as follows:

‘Since 31 October 2018, the Exposure Draft has undergone further changes notably to clause numbering. As a consequence, the proposals for clarifying amendments in the submission filed 31 October 2018 require variation to take into account the clause numbering in the Exposure Draft published 29 January 2020 and the definition of ‘ordinary hourly rate’ at clause 2 of the said draft.

Therefore, in the event that the Commission finds in favour of the AFEI parties with regard to the submissions filed 31 October 2018 in AM2014/241 and orders variations as proposed therein, the form of the amendments to the Exposure Draft published 29 January 2020 will be as follows:

A. Delete cl. 18.1 and cl. 18.2 of the Exposure Draft published 29 January 2020 and replace with new cl. 18.1 (and renumber existing cll.18.3 and 18.4 accordingly):

18.1 Employees will be paid at the applicable rates shown in the table below for:

(a) any overtime worked Monday to Friday;

(b) any ordinary hours and any overtime worked on a Saturday;

(c) any ordinary hours and any overtime worked on a Sunday;

(d) any ordinary hours and any overtime worked on a public holiday.

B. Replace cl. 12.2 of the Exposure Draft published 29 January 2020 with:

12.2 Span of hours

Ordinary hours may be worked:

(a) between 6.00am and 6.00pm for up to eight hours per day, Monday to Friday inclusive; or

(b) in accordance with a shift of ordinary hours as per clause 19 ‘Shiftwork’ of this award, or on a Saturday, a Sunday or a public holiday.

C. Replace cl. 19.2 of the Exposure Draft published 29 January 2020 with the following:

19.2 Shiftwork rates

(a) Except where the ordinary hours are worked on a Saturday, a Sunday or a public holiday, employees will be paid the following rates for ordinary hours worked on any shift type defined at clause 19.1 of this award:

Type of shift	% of the ordinary hourly rate (see definition of ordinary hourly rate clause 2 ‘Definitions’)
Afternoon shift	115
Night shift	115
Permanent night shift	130

[20] In a submission filed on 1 November 2018, the CFMMEU (Maritime Union Division) opposed AFEI’s proposal to amend clause 12.2 of the exposure draft as set out in their correspondence of 2 August 2018. It submitted ‘the proposal has the effect of enabling employees to be rostered to work ordinary hours on weekends, on public holidays and outside the span of hours set out in clause 7.2.’ The CFMMEU submitted the AFEI proposal ‘would also enable an employee to be rostered for 8 hours from 7pm on a Monday but only paid at 115% of their ordinary rate of pay rather than 150% of their ordinary rate of pay for the first 3 hours and 200% of their ordinary rate of pay thereafter.’¹⁸ The CFMMEU submitted this ‘is the first time in over 8 years and at the death nell of the 4 yearly review that it has been suggested that employees could be paid in this way.’¹⁹

[21] The CFMMEU submitted the intent of the MUA in the award modernisation process in originally proposing the award provisions was:

‘(a) Ordinary hours of work were worked between 6.00am and 6.00pm for up to eight hours per day, Monday to Friday;

(b) all hours worked on a Saturday be paid at 150% of the ordinary rate of pay;

(c) all hours worked on a Sunday be paid at 200% of the ordinary rate of pay; and

(d) all hours worked on a Public Holiday be paid at 250% of the ordinary rate of pay.’²⁰

[22] The CFMMEU submitted that in light of the concerns of AFEI that the award permits the working of ordinary hours outside the span of 6am to 6pm for up to 8 hours per day Monday to Friday clause 7.2 of the Exposure Draft should be amended to read:

7.2 Ordinary hours may only be worked between 6.00am and 6.00pm for up to eight hours per day, Monday to Friday inclusive.²¹

[23] In a decision issued on 23 November 2018 the Group 3 Full Bench said:

‘[21] It appears that there is broad agreement between interested parties that all hours worked on a Saturday or Sunday, regardless of whether they are overtime or ordinary hours, are paid at the same rate (i.e. 150 per cent on a Saturday and 200 per cent on a Sunday).

[22] It also appears that there is some agreement amongst the parties that if ordinary hours can be worked on a weekend, shift work rates are not payable, the relevant rate in clause 12.2 of the exposure draft is applicable.

[23] The issues raised by AFEI and CFMMEU in relation to the Ports, Harbours and Enclosed Water Vessels Award 2010 will be the subject of a conference before the President at 2pm on 20 December 2018 in Sydney. Any further submissions in respect of these issues are to be filed by 4pm on Monday 10 December 2018. If the issues are not resolved at the conference they will be determined on the papers, absent any request for an oral hearing. Any such request must be made by no later than 4pm on 20 December 2018.’ 22

[24] A transcript of the conference of 20 December 2018 is here.

[25] In a Statement 23 issued on 13 February 2019 the Commission noted that there remained the issue relating to rates that apply to shiftworkers on weekends in respect of this award and indicated that a separate decision determining this issue will be published in due course.

[26] To recap, the following submissions have been filed in relation to this issue:

•  Maritime Union of Australia (14 April 2016);

•  The Australian Workers’ Union (18 April 2016);

•  The Maritime Union of Australia (4 August 2017);

•  Australian Federation of Employers and Industries (2 August 2018)

•  Australian Federation of Employers and Industries (31 October 2018);

•  Construction, Forestry, Maritime, Mining and Energy Union - The Maritime Union of Australia Division (1 November 2018);

•  Construction, Forestry, Maritime, Mining and Energy Union - The Maritime Union of Australia Division (20 December 2018);

•  Australian Federation of Employers and Industries (4 March 2020); and

•  Maritime Industry Australia (4 March 2020).

[27] This issue has now been transferred from the Group 3 awards Full Bench to this Full Bench. We propose to determine the issue on the papers having regard to the above submissions. If any party opposes that course or seeks an opportunity to file further submissions they should advise the Commission in writing by 4pm Friday, 3 April 2020. Any such advice is to be sent to chambers.ross.j@fwc.gov.au.

PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR717680>

Fair Work Act 2009

s.156 - 4 yearly review of modern awards

4 yearly review of modern awards—Ports, Harbours and enclosed Water Vessels Award 2010

Note: This is a background document only and does not purport to be a comprehensive discussion of the issues involved. It has been prepared by the Commission research area and does not represent the view of the Commission on any issue.

Background

[28] The purpose of this paper is to address the issues raised in the most recent exposure draft of the Ports, Harbours and Enclosed Water Vessels Award 2010 (Ports Award) relating to the relevant rate to be paid to a shiftworker working on a weekend.

[29] This issue of rates for weekend work in the Ports Award was first raised by the Fair Work Ombudsman (FWO) in the following terms:

“Clause 18.2 states that ordinary hours can be worked Monday to Friday. However, clauses 20.1(b) and 20.3 refer to ordinary hours worked on a Saturday and Sunday. lt may be unclear under what circumstances an employee can work ordinary hours on a Saturday or Sunday.” 24

[30] In the exposure draft dated 7 November 2016 parties were asked to respond to the following question related to the issue raised by FWO:

‘…whether the span of ordinary hours in clause 7.2 should also be defined to clarify under what circumstances an employee can work ‘ordinary hours’ on a weekend.’ 25

[31] The Maritime Union of Australia (MUA), Business SA, Maritime Industry Australia Ltd. (MIAL) and The Australian Workers’ Union (AWU) made initial submissions on this question. Submissions in reply were received from AWU with further submissions from the MUA and MIAL, and later submissions from the Australian Maritime Officers’ Union (AMOU) and The Australian Institute of Marine and Power Engineers (AIMPE). These submissions are summarised later in this background paper.

[32] The revised summary of submissions was published on 30 May 2016 and it identified this issue as item 23. The revised summary was discussed at the conference of 6 and 7 June 2016 convened to deal with the technical and drafting issues which have been identified in relation to Group 3 exposure drafts. The purpose of the conference was to:

‘• confirm published summaries of submissions are accurate and reflect the position of the parties

• identify any submissions or variations which are now agreed or withdrawn;

• identify whether any matters raised in submissions are of a substantive nature and require consideration by a specially constituted Full Bench (in relation to matters where this has not previously occurred).’ 26

[33] The discussion on 6 June confirmed that item 23 was contested. 27

[34] A conference was convened for 30 June to deal with technical and drafting issues in the maritime related awards. The conference was cancelled at the request of the MUA and with agreement of AIMPE, MIAL, AMMA and AMOU and was relisted for 4 August 2016 to ‘discuss the outstanding issues in relation to the review of the above maritime awards.’ 28 This conference discussed all remaining items in the summary of submissions for the Ports Award, including the overtime and weekend work issue.

[35] A revised exposure draft incorporating the agreed position from the August conference on these clauses was published on 7 November 2016.

Ports, Harbours and Enclosed Water Vessels Award 2010

[36] The current award 29 states that ordinary hours may be worked in the following manner:

18.2 Span of hours

Ordinary hours may be worked between 6.00 am and 6.00 pm for up to eight hours per day, Monday to Friday inclusive.

[37] The overtime clause in the current award makes it clear that all time worked outside these ordinary hours is overtime and any work between midnight on Friday and midnight on Sunday is overtime with the rates set out below:

20. Overtime and penalty rate

20.1 Employees will be entitled to be paid:

(a) a loading of 50% of the ordinary hourly base rate of pay for the first three hours, and 100% of the ordinary hourly base rate of pay thereafter for any time worked outside of ordinary hours on a Monday to Friday, except for public holidays;

(b) a loading of 50% of the ordinary hourly base rate of pay for all ordinary hours and overtime worked between midnight Friday and midnight Saturday; and

(c) a minimum of four hours if recalled to work overtime after leaving the employer’s premises.

…

20.3 Sunday work

An employee will be paid a loading of 100% of the ordinary hourly base rate of pay for any hours, ordinary and overtime, worked on a Sunday.

[38] The shift work clause (extracted below) is silent on ordinary hours of work for shift workers and on the interaction between shift allowance and overtime rates. It appears that clause 18—Hours of Work applies to shift workers as well as day workers. Currently, a shiftworker working shiftwork on a weekend is entitled to be paid for all ordinary or overtime hours at the overtime rate (per Overtime clauses 20.1(b) and 20.3).

[39] Clause 21 is set out as follows:

21. Shiftwork

21.1 The following shifts may be worked:

(a) afternoon shift means any shift finishing after 6.00 pm and at or before midnight;

(b) continuous work means work carried on with consecutive shifts of employees throughout the 24 hours of each of at least six consecutive days without interruption except during breakdowns or meal breaks or due to unavoidable causes beyond the control of the employer;

(c) night shift means any shift finishing subsequent to midnight and at or before 8.00 am;

(d) permanent night shift employee means an employee who:

(i) during a period of engagement on shift, works night shift only;

(ii) remains on night shift for a period longer than four consecutive weeks; or

(iii) works on a night shift which does not rotate or alternate with another shift or with day work so as to give them at least one third of their working time off night shift in each shift cycle during such engagement period or cycle.

21.2 Shiftwork rates

Draft clauses in the 18 July 2017 exposure draft of Ports, Harbours and Enclosed Water Vessels Award 2010

[40] The span of hours clause in the current exposure draft 30 clause retains the wording from clause 18.2 of the current award:

7.2 Span of hours

Ordinary hours may be worked between 6.00 am and 6.00 pm for up to eight hours per day, Monday to Friday inclusive.

[41] The current exposure draft overtime clause was initially proposed in a table form in the MUA submission of 14 April 2016 to clarify when overtime rates were applicable, including for work on weekends. The words above the table in that submission (which were incomplete) were further modified to incorporate suggested words from the AWU’s 18 April submission (page 5). The final version in the exposure draft of 7 November 2016 is:

12. Overtime and penalty rates

12.1 Entitlement to payment for overtime

Overtime is payable to employees for any time worked outside of ordinary hours on a Monday to Friday (except a public holiday).

12.2 Employees will be paid the following rates for all overtime worked Monday to Friday, work on a Saturday or on a Sunday, or work on a public holiday or ordinary weekend work at the following rates:

12.3 Minimum payment for recall to work overtime

An employee will be paid for a minimum of four hours if recalled to work overtime after leaving the employer’s premises.

[42] The current exposure draft Shiftwork clause is substantially unchanged but the definitions section was reformatted as follows:

13. Shiftwork

13.1 Shiftwork definitions:

(a) afternoon shift means any shift finishing after 6.00 pm and at or before midnight;

(b) continuous work means work carried out:

(i) on consecutive shifts of employees;

(ii) over 24 hours a day;

(iii) for at least six consecutive days; and

(iv) without interruption, except during breakdowns, meal breaks or due to unavoidable causes beyond the control of the employer;

(c) night shift means any shift finishing after midnight and at or before 8.00 am;

(d) permanent night shift employee means an employee who:

(i) during a period of engagement on shift, works night shift only;

(ii) remains on night shift for a period longer than four consecutive weeks; or

(iii) works on a night shift which does not rotate or alternate with another shift or with day work so as to give them at least one third of their working time off night shift in each shift cycle during such engagement period or cycle.

13.2 Shiftwork rates

[43] The changes to the overtime clause in the exposure draft were intended to make it easier to work out when to pay overtime and at which rate.

Parties Submissions

[44] The parties are at odds vary about how the shift allowance and overtime rates apply to shiftworkers working on weekends. The interaction between ordinary hours and payment for afternoon and evening shift work Monday to Friday has been raised by parties.

[45] The AWU submission of 18 April 2016 makes it clear that:

‘In response to the question about weekend shift rates, our understanding is that the shift work rates set out at clause 13.2 are not cumulative on the weekend penalty rates. Shift work rates do not apply to work performed on weekends and public holidays’ 31

[46] This is confirmed in their submission on 5 May 2016.

[47] The MUA’s position is similar:

‘The span of ordinary hours of work is set by clause 7.2. That clause is in these terms:

Ordinary hours may be worked between 6.00 am and 6.00 pm for up to eight hours per day, Monday to Friday inclusive.

This clause makes it clear that work on Saturday and Sunday falls outside the span of ordinary hours.’ 32

[48] Business SA’s position on shiftwork rates is that the current award does not permit shiftwork on weekends and submits that if clause 7.2 was amended to permit ordinary hours on weekend the appropriate rate would be 150% plus the shiftwork rate for shiftworkers working on weekends, as follows:

‘Clause 13.2 – Shiftwork Rates

The shiftwork rates are provided in clause 13.2. Afternoon shiftworkers are paid 115% of the ordinary hourly rate, night shift are also paid 115% and permanent night shift are paid 130%.

Parties are asked to make submissions on which rates apply to shift work on

weekends. Issue of how the casual loading applies in relation to shiftwork and

weekend penalties has been referred to AM2014/197.

The current Draft does not provide for shiftwork on weekends and therefore should not occur. Clause 7.2 limits ordinary hours of work to Monday to Friday, 6:00 am to 6:00 pm, with an 8 hour workday. Clause 13.2 applies shiftwork rates as a percentage of the ordinary hourly rate. Should clause 7.2 be amended to extend ordinary hours to weekends, the appropriate rate to apply would be 150% of the ordinary hourly rate for the first 8 hours of work. With an afternoon, night or permanent night shift attracting an additional rate through clause 13.2.’ 33

[49] MIAL’s submission of 5 August 2016 34 indicates they believed payment for Saturday work at 150% was an increase on the current award. They agreed that the reference to ‘ordinary hours’ adjacent to the table in clause 12.2 should be removed (as it was in the current exposure draft).

[50] The AMOU submission of 13 December 2016 agreed with the MUA proposal for the overtime clause 35, as did AIMPE in their submission of 21 December 2016.

The 4 August 2016 conference

[51] The issue of ordinary hours worked on weekends was discussed at the conference on 4 August 2016 36 which dealt with the various maritime awards. After a brief discussion the MUA, the MOUA and the AWU agreed on the MUA wording for clause 12.2 —Overtime. However on being asked by the Commission “So your submission is that there should be no additional payment for working ordinary hours on a Saturday or a Sunday?”37 MIAL supported no change “beyond what currently exists”38 and the MUA agreed on having an opportunity to put more material.39

Are the issues resolved?

[52] With the exception of Business SA and MIAL, the parties appear to agree that shift work on Saturdays and Sundays is paid at the overtime rate and is not inclusive of shift allowance. Both the current award and exposure draft seem to support this, though it requires a careful reading of the three relevant clauses to arrive at that position.

[53] If this position were adopted it may be desirable to insert a new clause at 13.3 of the exposure draft, to clarify how the shiftwork rates interact with overtime, along the following lines:

Shiftwork rates in clause 13.2 are not payable when working overtime. The relevant overtime rate is payable instead.”

[54] As outlined in the March 2018 Group 3 Awards Decision ([2018] FWCFB 1405) at para [297] we propose to convene a conference of interested parties to discuss the matter further. The proposal outlined above at para [26] will be discussed at the conference which will be listed for Thursday 21 June in Sydney at 11.00 am. A notice of listing will be issued in due course.

 1   See [2018] FWCFB 1405 para [297]

 2   [2018] FWCFB 6368

 3   Background paper – rates for weekend work, 6 June 2018

 4   Transcript, 21 June 2018 at para [19]

 5   AEFI, Submission, 2 August 2018

 6   AEFI, Submission, 2 August 2018

7 AFEI submission, 31 October 2018 at 2

8 AFEI submission, 31 October 2018 at 3

9 AFEI submission, 31 October 2018 at 7

10 AFEI submission, 31 October 2018 at 7

11 AFEI submission, 31 October 2018 at 12

12 AFEI submission, 31 October 2018 at 15

13 AFEI submission, 31 October 2018 at 19

14 AFEI submission, 31 October 2018 at 29-30

15 AFEI submission, 31 October 2018 at 31

16 AFEI submission, 31 October 2018 at 34

 17   AFEI submission, 5 March 2010 at 2-3

18 CFMMEU submission, 1 November 2018 at 2

19 CFMMEU submission, 1 November 2018 at 3

20 CFMMEU submission, 1 November 2018 at 4

21 CFMMEU submission, 1 November 2018 at 5

 22   [2018] FWCFB 7145

 23   [2019] FWC 932

 24   See FWO Submission, 2 March 2015, item 31.

 25  

Exposure draft, 7 November 2016 at clause 12.2

 26   Notice of listing, 6-7 June 2016

 27   Transcript, 6 June 2016 at para [293].

 28   Notice of listing for 4 August 2016, 11 July 2016

 29   MA000052.

 30   Exposure draft, 7 November 2016.

 31   See AWU Submission, 18 April 2016, para 17.

 32   See MUA Submission, 14 April 2016, para10.

 33   See BusinessSA Submission, 15 April 2016, para 12.2.10.

 34   See MIAL Submission, 5 May 2016, page 2.

 35   See AMOU Submission, 13 December 2016. page 2.

 36   Transcript, 4 August 2016, at paras {459] to [494]

 37   Ibid, at para [487]

 38   Ibid, at para [488].

 39   Ibid, at para [492].