| [2020] FWCFB 2303 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.156—4 yearly review of modern awards
4 yearly review of modern awards
(AM2019/17)
JUSTICE ROSS, PRESIDENT |
MELBOURNE, 4 MAY 2020 |
4 yearly review of modern awards – finalisation of exposure drafts – Clerks—Private Sector Award 2010.
[1] This Decision deals with the finalisation of the Exposure Draft and variation determination for the Clerks—Private Sector Award 2010 (Clerks Award). The Clerks Award is in Tranche 2 and a draft variation determination and Exposure Draft were published for comment on 14 October 2019. In a decision 1 published on the same day, we expressed the provisional view that the variation of the Tranche 2 awards in accordance with the draft variation determinations was necessary to achieve the modern awards objective.
[2] On 12 February 2020, the Annualised Wage Arrangements Full Bench issued a determination varying the Clerks Award to include a new annualised wage arrangement term. In a decision issued on 14 February 2020, 2 we decided to issue a revised Exposure Draft and draft variation determination, incorporating the variations made by the Annualised Wage Arrangements Full Bench.
[3] A revised Exposure Draft and draft variation determination were published on 21 February 2020. 3 The revised documents incorporated variations made by the Annualised Wage Arrangements Full Bench4 at clause 18 and interested parties were invited to comment.
[4] The Australian Industry Group (Ai Group) filed a submission on 2 March 2020 which stated that:
‘clause 18.1(a) should provide for an annualised wage arrangement to encompass penalties applicable when an employee is required to work through a meal break (clause 15.4). These are appropriately considered to be ‘Overtime penalty rates’, as referred to in clause X.1(a)(iii).’
[5] In our decision 5 issued on 23 March 2020, we noted that a conference would be convened to discuss the issue raised by Ai Group.
[6] The conference was convened on 30 April 2020 and was attended by representatives from Ai Group, ABI and the ASU. The transcript of the conference is available here.
[7] As discussed at the conference, Ai Group made a similar submission to the Annualised Wage Arrangements Full Bench on 31 January 2020 6 seeking the inclusion of the penalty when an employee is required to work through a meal break. The amendments sought by Ai Group were not included in the final variation determination issued by the Annualised Wage Arrangements Full Bench.7 A final decision was not issued by that Full Bench.
[8] This Full Bench has been constituted to oversee the finalisation of Exposure Drafts produced during the Review. It is not appropriate for us to deal with the variation of a determination recently made by another Full Bench. In a statement issued today, the President has referred the issue raised by Ai Group to the presiding member of the Annualised Wage Arrangements Full Bench.
[9] There are no other outstanding technical and drafting matters to be determined in relation to the Clerks Awards. Accordingly, we confirm our provisional view that the variation of the Clerks Award in accordance with the draft variation determination is necessary to achieve the modern awards objective We will now proceed to issue a final variation determination. The variation determination will be in the same terms as the draft issued on 21 February 2020 with the addition of the new schedules; Schedule I 8 and Schedule X.9 The final variation determination will commence operation on 29 May 2020.
PRESIDENT
Printed by authority of the Commonwealth Government Printer
<PR718765>
6 Ai Group submission, 31 January 2020.
7 See Schedule of determinations published on 12 February 2020.