| [2020] FWCFB 6520 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.156—4 yearly review of modern awards
4 yearly review of modern awards—Textile, Clothing, Footwear and Associated Industries Award 2010
(AM2019/17)
Clothing industry | |
JUSTICE ROSS, PRESIDENT |
MELBOURNE, 3 DECEMBER 2020 |
4 yearly review of modern awards – finalisation of exposure drafts – tranche 3 – Textile, Clothing, Footwear and Associated Industries Award 2010.
[1] This Full Bench has been constituted to oversee the process for finalising the exposure drafts produced during the 4 yearly review of modern awards (the Review) and the consequent variation of each modern award. For that purpose, the modern awards were divided into 3 Tranches. The Textile, Clothing, Footwear and Associated Industries Award 2010 (the Textile Award) was a Tranche 3 award for the purpose of the finalisation of the exposure draft process.
[2] On 2 September 2019 we published a decision 1 which provided an overview of the status of the Review and set out the process for finalising the exposure drafts and the related variation determination of each award, including for the Textile Award.
[3] On 29 January 2020 an Exposure draft and a draft variation determination were published for the Textile Award in conjunction with a decision 2 (the January 2020 decision) in which we expressed the provisional view that the variation to the Textile Award, in accordance with the draft variation determination set out in Attachment C to that decision, was necessary to achieve the modern awards objective.3 Interested parties were invited to comment on our provisional views in relation to the Textile Award.
[4] Submissions were received from the Australian Business Industrial and NSW Business Chamber (ABI), 4 the Australian Industry Group5 (Ai Group) and the Construction Forestry Maritime Mining Energy Union – Manufacturing Division6 (CFMMEU).
[5] On 23 March 2020 we published a Statement 7 and a Background paper (the March 2020 Background Paper) which summarised the submissions filed in respect of the modern awards in Tranche 3.
[6] On 3 April 2020 a conference was convened by Commissioner Bissett in respect of the Textile Award in order to narrow the issues in dispute. The conference was attended by the Ai Group and the CFMMEU. On 8 April 2020 a Report summarising the outcome of the 3 April 2020 conference was published.
[7] On 27 April 2020 we published a decision 8 (the April 2020 decision) confirming a number of provisional views expressed in the March 2020 Background paper and that were the subject of discussion at the 3 April 2020 conference.
[8] On 8 May 2020 an updated Exposure Draft and draft variation determination for the Textile Award were published.
[9] The April 2020 decision identified a number of matters which were outstanding in relation to the Textile Award. We said that a further conference would be convened after the Overtime for Casuals Full Bench (AM2017/51) had determined the matters before it in relation to the Textile Award.
[10] The Overtime for Casuals Full Bench issued decisions in respect of the Textiles Award on 18 August 2020 9, and 30 October 202010, and issued a determination11 on 30 October 2020.
[11] A conference in respect of the Textile Award was held on 13 November 2020 and was attended by the Ai Group, the CFMMEU and the ABI.
[12] This decision deals with the outstanding matters dealt with in conference and other minor amendments made to the final variation determination which will be issued with this decision.
Calculation of overtime for casuals
[13] The April 2020 decision sets out the dispute between the parties regarding the calculation of overtime for casuals at paragraphs [401] to [404] and we concluded that this issue would not be finalised until the Overtime for Casuals Full Bench (AM2017/51) had determined the issues before it in respect of the Textiles Award.
[14] In their decision of 18 August 2020, the Full Bench in AM2017/51 ultimately determined that the calculation of overtime for casual employees is on a cumulative, rather than compounding, basis 12 and that clause 11.9 of the current Textile Award would be amended as follows:13
‘11.9 Casual loading
For each ordinary hour worked, a casual employee must be paid:
(a) the ordinary hourly rate prescribed for the relevant classification; and
(b) a loading of 25% of the hourly rate’
[15] The final variation determination for the Textiles Award will incorporate the above change and others made by the Full Bench determination issued 30 October 2020.
Other Schedules
[16] We noted in the April 2020 decision that the method by which public holiday rates should be calculated for casual employees under clause 43.2 of the Textile Award might not be clear until the Full Bench in AM2017/51 handed down its decision. The parties agreed that in the interim the most sensible approach was to delete the columns in the tables in clauses C.4.1, C.5.1, C.5.2 and C.5.3 specified casual employee rates for anything but ordinary hours (in effect deleting clauses C.5.1, C.5.2 and C.5.3 and the public holiday column in the table in clause C.4.1). The affected clauses were deleted from the Exposure Draft and draft variation determination on 8 May 2020.
[17] It was common ground that this matter would be re-visited following the determination by the Full Bench in AM2017/51. In the April 2020 decision we noted our agreement with the course proposed. 14 The relevant schedules will be reinserted into the final variation determination in a manner which gives effect to the decision of the Full Bench in AM2017/51.
Clause 18.2 – meal breaks
[18] There is an outstanding issue concerning the meal breaks provision for shiftworkers.
[19] Clause 18.2 of the exposure draft does not contain the opening paragraph of the current clause 38.2 of the Textile Award and the CFMMEU contends that its deletion constitutes a diminution of a current condition and proposes that clause 18.2 be amended to include the current text as follows:
‘18.2 Meal breaks—shiftworkers in the textile industry
Shift workers in the textile industry are entitled to meal breaks in accordance with clause 38.1, and as follows:
(a) Where 2 eight hour or 3 eight hour shifts are worked, instead of the meal break provided in clause 18.1, the employer has the discretion to, as opportunity offers, provide the shiftworker a 20 minute paid crib break per shift which will be counted as time worked.
(b) 7 day continuous shiftworkers are entitled to a paid 20 minute meal break during each shift.’
(emphasis added)
[20] At [362] of the March 2020 Background paper we invited interested parties to comment on the amendment proposed by the CFMMEU. Ai Group had no objection to the proposed amendment. ABI opposed the proposed amendment on the basis that it would result in a substantive change with employees receiving two meal breaks per shift.
[21] ABI advanced an alternate proposition, that clause 18.2 be amended as follows: 15
‘(a) Shift workers in the textile industry (other than 7 day continuous shiftworkers) are entitled to meal breaks in accordance with clause 18.1. Where 2 eight hour or 3 eight hour shifts are worked, instead of the meal break provided in clause 18.1, the employer has the discretion to, as opportunity offers, provide the shiftworker a 20 minute paid crib break per shift which will be counted as time worked. (b) 7 day continuous shiftworkers in the textile industry are entitled to a paid 20 minute meal break during each shift. This entitlement applies instead of the unpaid meal break prescribed by clause 18.1.’
[22] This matter was discussed by the parties at the conference before Commissioner Bissett on 13 November 2020. At the conclusion of the conference the issue remained outstanding. The parties indicated that they would continue their discussions and attempt to reach an agreement with respect to the redrafting of clause 18.2.
[23] On 20 November 2020 we received correspondence from Ai Group, advising that they, along with the ABI and the CFMMEU, agreed that clause 18.2 of the exposure draft should be amended as follows:
‘18.2 Meal breaks—shiftworkers in the textile industry
Clause 18.1 applies to shiftworkers in the textile industry, subject to the following:
(a) Where 2 eight hour or 3 eight hour shifts are worked, instead of the meal break provided in clause 18.1, the employer has the discretion to, as opportunity offers, provide the shiftworker a 20 minute paid crib break per shift which will be counted as time worked.
(b) 7 day continuous shiftworkers in the textile industry are entitled to a paid 20 minute meal break during each shift instead of the meal break provided in clause 18.1.’ 16
[24] We agree with the proposed redrafting of clause 18.2 and will amend the final variation determination accordingly.
[25] A number of other amendments resulting from various Full Bench matters will be incorporated into the final variation determination for the Textile Award as follows:
• Wages and expense-related allowances have been updated in line with the adjustment provided for in the 2019–20 Annual Wage Review decision; and 17
• Schedule X—Additional Measures During the COVID-19 Pandemic has been extended until 29 March 2021 and this date has been amended throughout Schedule X. 18
[26] Additionally, a number of minor errors and drafting amendments will be made to the draft variation determination for the Textile Award. 19
[27] There are no other technical and drafting matters to be determined in relation to the Textile Award. In our 29 January 2020 decision 20 we expressed the provisional view that the variation of the modern awards in accordance with the published draft variation determinations was, in respect of the Tranche 3 awards, necessary to achieve the modern awards objective. In reaching that conclusion we adopt the reasons set out in the decisions at Attachment B of the 29 January 2020 Decision insofar as they are relevant to the Textile Award and, in particular, to the considerations in ss.134(1)(a) to (h), which are addressed in each of those decisions. Subject to the amendments set out in the April 2020 decision and those detailed in this decision, we confirm our provisional view.
[28] A final variation determination will be issued shortly incorporating the changes outlined in this decision, with the operative date of 1 February 2021.
[29] Interested parties will have until 4.00 pm on Thursday 17 December 2020 to file any comment in relation to the amendments to the Textile Award to be effected by this decision and our earlier decisions. Comments must be sent electronically to amod@fwc.gov.au. This process is intended only to provide an opportunity to correct any errors; it is not an opportunity to relitigate the issues which have already been determined.
PRESIDENT
Printed by authority of the Commonwealth Government Printer
<PR725143>
3 Ibid, at [6].
4 ABI submission, 6 March 2020; ABI submission, 7 April 2020.
5 Ai Group submission, 6 March 2020; Ai Group submission, 7 April 2020.
6 CFMMEU submission, 6 March 2020; CFMMEU submission, 9 April 2020.
14 Ibid, at [430]-[432].
15 ABI submission, 7 April 2020 at paras [75]-[79].
16 CFMMEU submission, 20 November 2020.
17 [2020] FWCFB 3500; PR718834; PR718989.
18 [2020] FWCFB5137; PR723048.
19 The reference in clause 2 to “clause 19—Minimum rates” has been changed to refer to “clause 19.1”; the words “alteration of time standards” appears in both at clauses 7.4(a) and 7.4(h), so clause 7.4(h) has been deleted; the reference in clause 31.3(c)(ii) to “clause 5.4” has been changed to refer to “clause 7.4”; the words “six” and “four” in clause 11.12 have been replaced with “6” and “4” respectively to be consistent with Plain Language Guidelines; the word “public holidays” in clause 37.2 has been changed to “public holiday”; quotation marks have been placed around ‘clause 43.4’ in clause 43.4(g); the reference in clause B.5.10(a)(ii) to “part (i)” has been changed to refer to “clause B.5.10(a)(i)”; the column headed “Afternoon & night” placed before “Permanent” night shift” in clause C.3.1 to reflect body of award and style of table to have percentage appearing in ascending order; the word ‘weekly’ already appears before ‘standard rate’ in clause D.1.1 and the duplicate reference has been deleted (this also accords with definition in clause 2); the clauses references in the table at clause D.1.1 for “Recording of time standard” amended to refer to specific pinpoints at clause 21.9(d).