| [2021] FWCFB 6050 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.156—4 yearly review of modern awards
4 yearly review of modern awards—Black Coal Mining Industry Award 2010
(AM2019/17)
Coal industry | |
JUSTICE ROSS, PRESIDENT |
MELBOURNE, 30 NOVEMBER 2021 |
4 yearly review of modern awards – finalisation of Exposure Drafts and draft variation determinations – Tranche 3 – Black Coal Mining Industry Award 2010.
[1] This Full Bench has been constituted to oversee the finalisation of 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 Black Coal Mining Industry Award 2010 (the Black Coal Award) was in Tranche 3.
[2] On 29 January 2020 an Exposure Draft 1 and a draft variation determination2 were published for the Black Coal Award in conjunction with a decision3 (January 2020 decision) in which we expressed the provisional view that the variation to the Black Coal Award, in accordance with the draft variation determination set out in Attachment C to that decision, was necessary to achieve the modern awards objective.4 Interested parties were invited to comment on our provisional views in relation to the Black Coal Award.
[3] On 12 March 2020 we issued a statement 5 outlining the submissions received in response to the January 2020 decision in respect of the Black Coal Award and expressing our provisional views on amendments to the Exposure Draft and draft variation determination.6
[4] On 20 March 2020 a conference was held in respect of the issues raised. A report 7 was published on 23 March 2020 setting out the outcomes of the conference.
[5] On 27 April 2020 we issued a decision 8 (April 2020 decision) in which we set out the matters agreed to at the conference and summarised two substantive issues in relation to the Black Coal Award that remained outstanding. The first issue concerned the rates of pay applicable to shiftworkers in Schedules C and D engaged in weekend work and the second related to rates of pay for work performed on a public holiday.
[6] Following the receipt of further submissions, we issued a statement 9 on 18 May 2020 indicating that the two outstanding issues would be referred to a separately constituted Full Bench for determination (AM2020/25).
[7] On 18 November 2020 the Full Bench in AM2020/25 issued a decision 10 in relation to the two outstanding issues. The Full Bench issued a further decision11 on 4 May 2021 in relation to the calculation of shiftwork and weekend work penalties for casual employees in the Black Coal Award in light of the 4 yearly review of Modern Awards – Overtime for casuals decision.12
[8] Further conferences were convened to address the variations to the Exposure Draft necessary to give effect to the decisions of 18 November 2020 and 4 May 2021. On 21 July 2021, a report 13 was filed by the parties outlining an agreed position. Subsequent correspondence received from the parties outlined further agreed amendments. On 21 September 2021 the Full Bench in AM2020/25 issued a decision (September 2021 decision)14 finalising the variations required.
[9] A final variation determination, which will be issued with this decision will incorporate the changes set out in the September 2021 decision, subject to any further amendments outlined in this decision.
[10] This decision will also deal with other outstanding technical and drafting matters and minor amendments affecting the final variation determination and finalise the consequent variation of the Black Coal Award.
Outstanding matters
Overtime for casuals
[11] On 30 October 2020, the Overtime for Casuals Full Bench (AM2017/51) issued a determination 15 varying the Black Coal Award in accordance with its decisions of 18 August 202016 and 30 October 202017. The following amendments have been made to the final variation determination in accordance with these decisions, subject to the further amendments set out at [26] below:
(i) Clause 11.3 has been inserted as follows:
‘11.3 When a casual employee works overtime, they must be paid the overtime rates in clauses 21.2(a) and 21.2(c).’
(ii) The table in clause 21.2(a) has been amended to include overtime rates for casual employees.
(iii) A note has been inserted below the table appearing in clause 21.2(a) as follows:
‘NOTE: The overtime rates for casual employees have been calculated by adding the casual loading prescribed by clause 11.2(a)(ii) to the minimum hourly rate before applying the overtime rates for full-time and part-time employees prescribed by clause 21.2(a).’
(iv) Clause 21.2(c) has been inserted as follows:
‘(c) A casual employee relieving a permanent employee working a roster mentioned in clause 21.2(b) will be paid at the rate of 250% of the minimum hourly rate for all time worked in excess of, or outside, the ordinary hours of the shift they are working.
NOTE: The overtime rate for casual employees has been calculated by adding the casual loading prescribed by clause 11.2(a)(ii) to the minimum hourly rate before applying the overtime rate prescribed by clause 21.2(b).’
Casual terms award review
[12] On 27 March 2021 the Fair Work Act 2009 (Cth) (Act) was amended by Schedule 1 to the Fair Work Amendment (Supporting Australia’s Jobs and Economic Recovery) Act 2021 (Cth) (Amending Act). The amendments included introducing a definition of ‘casual employee’ in s.15A of the Act and casual conversion arrangements in Division 4A of Part 2-2 of the Act.
[13] The Amending Act inserted additional application, savings and transitional provisions into Schedule 1 of the Act. The newly inserted cl.48 of Schedule 1 to the Act required the Commission to conduct a review and vary modern awards where necessary to remove inconsistencies, difficulties or uncertainties caused by the amendments to the Act.
[14] A Full Bench was constituted (AM2021/54) to review a number of awards, including the Black Coal Award 2010. On 27 September 2021, the Full Bench issued a determination 18 varying the Black Coal Award 2010 in accordance with its decision of the same date.19
[15] The following amendments have been made to the final variation determination in accordance with the decision of the Full Bench in the Casual terms award review:
(i) Clause 2 has been amended to include a definition of ‘casual employee’ and a definition of ‘regular casual employee’.
(ii) Clause 11.1 has been deleted and subsequent clause numbers updated.
(iii) Clause 11.4 has been inserted as follows:
‘11.4 Offers and requests for casual conversion
Offers and requests for conversion from casual employment to full-time or part-time employment are provided for in the NES.
NOTE: Disputes about offers and requests for casual conversion under the NES are to be dealt with under clause 32—Dispute resolution.’
(iv) The words ‘full time employment or 12 months part time or regular and systematic employment’ in clause A.6.8(d) have been deleted and replaced with the words ‘as a full-time employee or twelve months as a part-time or regular casual employee’.
Expression of casual overtime rates in clause 21 and Schedule D
[16] There is an outstanding issue regarding casual overtime rates, as expressed at clause 21.2 and Schedule D of the final variation determination.
[17] The Full Bench in AM2020/25 determined to amend clause 21.2(b) of the Exposure Draft as follows (strike out to be deleted, underline to be added):
‘(b) Subject to clause 21.3, Aall time worked in excess of or outside the ordinary hours of any shift by employees:
(i) who are 6 day roster employees or 7 day roster employees; or
(ii) who work a roster which requires ordinary shifts on public holidays and not less than 272 ordinary hours per year on Sundays; or
(iii) who work a roster which requires ordinary shifts on Saturday and Sunday where the majority of the rostered hours on the Saturday or Sunday shifts fall between midnight Friday and midnight Sunday;
(ii) who are regular weekend workers, meaning employees:
• who work a roster which requires ordinary shifts on public holidays and not less than 272 ordinary hours per year on Sundays; or
• who work a roster which requires ordinary shifts on Saturday and Sunday where the majority of the rostered hours on the Saturday or Sunday shifts fall between midnight Friday and midnight Sunday;
will be paid for at the rate of 200% of the minimum hourly rate., except on public holidays where the rate is 300% of the minimum hourly rate.
[18] In AM2020/25 parties proposed an additional amendment to clause 21.2(b) to insert a note stating:
‘Note: - Where clause 21.2 refers to a rate as being calculated as a percentage of the minimum hourly rate, that reference will (for a casual employee) instead be taken to be a reference to the casual minimum hourly rate where applicable.’
[19] Since the publication of the last Exposure Draft, amendments to clause 17.2 of the Black Coal Award were made by the Overtime for casuals Full Bench. Clause 17.2 of the award now expressly sets out overtime rates for casual employees. In light of these amendments the Full Bench in AM2020/25 determined not to insert the note at clause 21.2(b) of the Exposure Draft as proposed by the parties and referred references to casual overtime rates in clause 21.2 to this Full Bench.
[20] Clause 21.2(a) has been amended to reflect the decision of the Overtime for casuals Full Bench and now provides overtime rates of pay for casual employees and accordingly we are not satisfied that the note proposed by the parties in AM2020/25 is necessary in the sense contemplated by s.138 of the Act. We do not propose to insert the note.
[21] In AM2020/25 the Full Bench determined to insert clauses D.2.6 to D.2.10 which contain tables of overtime rates for casual employees who are 6 or 7 day roster employees and ‘regular weekend workers’ (as now defined in clause 21.2(b)(ii) of the Exposure Draft). However, the Full Bench did not vary clauses 21.2(b) or 21.2(c) in accordance with Schedule D.
[22] Currently an ambiguity exists in clause 21.2 in that it is unclear as to whether it is intended that casual employees who work a roster as set out in clause 21.2(b) are entitled to overtime rates in the circumstance that they are not “relieving a permanent employee” working such roster per clause 21.2(c) [emphasis added]. However, we do not consider that it was the intention of the Full Bench in AM2017/51 to exclude casual employees from overtime rates where they work as 6 or 7 day roster employees or casual regular weekend workers. In the September 2021 decision the Full Bench in AM2020/25 determined to insert in the Exposure Draft tables setting out overtime rates for casual employees who are 6 or 7 day roster employees or regular weekend workers. We consider that clause 21.2 of the Exposure Draft should reflect this decision.
[23] The Full Bench in AM2020/25 also varied clause 21.2(b) to provide a public holiday rate of 300% of the minimum hourly rate for employees to whom the clause applies. It is our view that the public holiday rate should also be expressed to be applicable to causal employees who relieve permanent employees working a roster in clause 21.2(b).
[24] Further, it has come to our attention that clause 21.3 of the Exposure Draft, which provides overtime rates for time worked by 6 and 7 day roster employees in excess of or outside ordinary hours of an afternoon shift, rotating night shift or a permanent night shift, does not make reference to casual employees. However, in the September 2021 decision the Full Bench in AM2020/25 determined to insert, at clause D.2.6, overtime rates for casual staff employees for hours worked as described in clause 21.3. We therefore consider it appropriate that clause 21.3 make reference to overtime rates for casual employees to reflect the decision of the Full Bench in AM2020/25. We also consider that the casual overtime rates at clause 21.2 should be expressed as ‘subject to clause 21.3’, consistent with the wording of the Exposure Draft at clause 21.2(b).
[25] Finally, it is to be noted that the tables inserted at Schedule D expressing casual rates of pay refer to rates of pay by reference to the ‘casual minimum hourly rate’ (being “the minimum hourly rate for a casual employee for the employee’s classification specified in Schedule B—Staff Employees, inclusive of the 25% casual loading set out at clause 11.2(a)”, as provided in clause 2 of the Exposure Draft by the AM2020/25 Full Bench). For consistency, rates of pay for casual employees at clause 21 should also be expressed by reference to the casual minimum hourly rate.
[26] In light of the above we will vary clause 21.2 of the Exposure Draft to provide as follows (underline to be added, strikethrough to be deleted):
(a) Subject to the exceptions in clause 21.2(b) and clause 21.3, all time worked in excess of or outside the ordinary hours of any shift on the following days will be paid for at the following rates:
|
For overtime worked on |
|
|
|
Overtime rate |
||
|
Monday to Friday – first 3 hours |
150 |
|
|
Monday to Friday – after first 3 hours |
200 |
|
|
Saturday – first 3 hours |
150 |
|
|
Saturday – after first 3 hours |
200 |
|
|
Sunday – all hours |
200 |
|
NOTE: The overtime rates for casual employees have been calculated by adding the casual loading prescribed by clause 11.2(a)(ii) to the minimum hourly rate before applying the overtime rates for full-time and part-time employees prescribed by clause 21.2(a).
NOTE: Where clause 21.2(a) refers to a rate as being calculated as a percentage of the minimum hourly rate, that reference will (for a casual employee) instead be taken to be a reference to the casual minimum hourly rate where applicable.
(b) Subject to clause 21.3, all time worked in excess of or outside the ordinary hours of any shift by employees:
(i) who are 6 day roster employees or 7 day roster employees; or
(ii) who are regular weekend workers, meaning employees:
• who work a roster which requires ordinary shifts on public holidays and not less than 272 ordinary hours per year on Sundays; or
• who work a roster which requires ordinary shifts on Saturday and Sunday where the majority of the rostered hours on the Saturday or Sunday shifts fall between midnight Friday and midnight Sunday;
will be paid for at the rate of 200% of the minimum hourly rate, except on public holidays where the rate is 300% of the minimum hourly rate.
‘(c) Subject to clause 21.3, aA casual employee working a roster mentioned in clause 21.2(b) or relieving a permanent employee working a roster mentioned in clause 21.2(b) will be paid at the rate of 200% of the casual minimum hourly rate 250% of the minimum hourly rate for all time worked in excess of, or outside, the ordinary hours of the shift they are working., except on public holidays where the rate is 300% of the casual minimum hourly rate.
NOTE: The overtime rate for casual employees has been calculated by adding the casual loading prescribed by clause 11.2(a)(ii) to the minimum hourly rate before applying the overtime rate prescribed by clause 21.2(b).’
[27] We will also amend clause 21.3 to refer to the ‘minimum hourly rate’ instead of the 'ordinary base hourly rate of pay’ for consistency with clauses C.1.6 and D.1.6 as inserted by the AM2020/25 Full Bench and plain language principles. Additionally, a note will be inserted at the end of clause 21.3 referring to casual overtime rates as follows:
‘NOTE: Where clause 21.3 refers to a rate as being calculated as a percentage of the minimum hourly rate, that reference will (for a casual employee) instead be taken to be a reference to the casual minimum hourly rate where applicable.’
Payment of wages
[28] On 4 June 2020 the Full Bench dealing with the ‘payment of wages’ terms in modern awards as part of the Review (AM2016/8) issued a determination 20 varying the Award to give effect to its decision of 20 May 202021.
[29] Clause 19 of the Exposure Draft and draft variation determination have been amended accordingly, save that the acronym ‘EFT’ has been inserted at clause 19.2 after the words ‘electronic funds transfer’, and as such clause 19.4 will refer to ‘EFT’ instead of the words ‘electronic funds transfer (EFT)’ set out in the determination.
Annual wage review
[30] Rates in the Exposure Draft and draft variation determination have been adjusted in line with the 2020-2021 Annual Wage Review (AWR) decision. 22 In accordance with AWR decision adjusted rates in the Black Coal Award were operative from the start of the first full pay period on or after 1 July 2021.23
[31] As indicated in the April 2020 decision 24 and the statement of 18 May 202025, all parties confirmed that the following changes to the exposure draft were agreed at the conference of 20 March 2020:26
‘1. The correction of the following errors in the Exposure Draft:
• the reference to ‘20XX’ should be replaced with ‘2020’ in the title of the award, the header and clause 1.1’
• the reference to clause 14 in clause 7.2(a) (the index to facilitative provisions) should be deleted and replaced with a reference to clause 15;
• in clause 17.4, each time ‘20XX’ appears it should be replaced with ‘2020’;
• in clause 24.9(a), 24.9(i) and 24.10, the reference to clause 24.4 should be replaced with a reference to clause 24.10;
• in clause A.1.5 Note, the reference to clause 31 should be deleted, consistent with the note following the extant A.1.5;
• in clause A.8.2 Wage related allowances and reimbursements – height money, the final column should be amended to reflect the fact that height money is payable per shift, not per hour.
2. The definition of the ‘black coal mining industry’ in clause 2 will be amended as follows:
‘black coal mining industry has the meaning given in clause 4.2 and clause 4.3’
3. The definition of ‘ordinary week’s pay’ in clause 2 will be amended as follows:
‘ordinary week’s pay means the minimum weekly wage rate in the tables of minimum rates in clause 4.2 Schedules A and B for the award classification rate in respect of 35 ordinary hours.’
4. Clause 25.1 – Personal/carer’s leave and compassionate leave:
The following explanatory words be inserted into clause 25.1 of the Exposure Draft:
‘Personal/carer’s leave entitlements are provided for in the NES. This clause supplements those entitlements and deals with evidence required to be provided by an employee when taking paid personal/carer’s leave.’
5. Clause 21.3 – Six day and seven day roster employees.
Variations to clauses 21.3(a) and (b) will be made as follows:
21.3 Six day and seven day roster employees
(a) All time worked in excess of or outside ordinary hours after of an afternoon shift or a rotating night shift by a 6 day roster employee or a 7 day roster employee will be paid at 215% of the employee’s ordinary base hourly rate of pay.
(b) All time worked in excess of or outside ordinary hours after of a permanent night shift by a 6 day roster employee or a 7 day roster employee will be paid at 225% of the employee’s ordinary base hourly rate of pay.’
[32] We confirm that the above amendments will be made to the final variation determination subject to some minor drafting amendments. 27 Further, we have decided to make a minor amendment to the explanatory words at clause 25.1 in order to reflect the fact that clause 25 concerns compassionate leave in addition to personal and carer’s leave. Clause 25.1 will instead be amended to read as follows (changes underlined):
‘25.1 Personal/carer’s leave and compassionate leave entitlements are provided for in the NES. This clause supplements those entitlements and deals with evidence required to be provided by an employee when taking paid personal/carer’s leave or compassionate leave.’
[33] Additionally, a number of minor drafting amendments have been made to the final variation determination. 28
[34] We also note that, as mentioned above, the final variation determination incorporates changes from the AM2020/25 September 2021 decision, save for the further amendments we have outlined at [22] to [27] and save that at clause D.2.10 the reference to ‘% of minimum hourly rate’ will instead read ‘% of casual minimum hourly rate’ 29.
[35] There are no other technical and drafting matters to be determined in relation to the Black Coal Award.
[36] In the January 2020 decision 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 adopted the reasons set out in the decisions at Attachment B of the January 2020 decision insofar as they are relevant to the Black Coal Award and, in particular, to the considerations in ss.134(1)(a) to (h), which are addressed in each of those decisions.
[37] Subject to the amendments detailed in the September 2021 decision and in this decision we confirm our provisional view in respect of the variations to the Black Coal Award.
[38] A final variation determination incorporating the changes outlined this decision will be issued shortly, with an operative date of 28 January 2022.
[39] Interested parties will have until 4pm (AEDT) on Wednesday 15 December 2021 to file any comment in relation to the amendments to the Black Coal Award that are affected 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. Any issues raised will be determined on the papers.
PRESIDENT
Printed by authority of the Commonwealth Government Printer
<MA000001 PR735928>
1 Exposure Draft, 29 January 2020.
2 Draft variation determination, 29 January 2020.
4 Ibid at [6].
6 Ibid at [5], [10], [14] and [18].
13 Report from parties, 21 July 2021.
15 PR723855, corrected by PR724396.
22 [2021] FWCFB 3500 at [175].
23 [2021] FWCFB 3500 at [295].
24 [2020] FWCFB 2124 at [20].
25 [2020] FWC 2576 at [3].
26 See Report, 23 March 2020 at [5].
27 In relation to the definition of ‘ordinary week’s pay’ at clause 2 the word ‘wage’ has been omitted from the final variation determination to accord with plain language principles. Further, the comma that appeared in the definition in the Exposure Draft of 29 January 2020 has been retained. We note additionally that the references to ‘ordinary base hourly rate of pay’ at clause 21.3 will be amended to ‘minimum hourly rate’ as per paragraph [27] of this decision.
28 Inserted 'industry' in the title of the award throughout the award; bullet points inserted in definition of base rate of pay at clause 2; reference to 'clause 14.1' replaced with reference to 'Clause 14—Ordinary Hours of work' in definition of ordinary hours at clause 2; deleted subclause number and subclause heading at clause 14.1; inserted the word 'with' after 'accordance' in clause 15.2(b)(ii); substituted 'Schedule A.8.3 and 'Schedule B.3.2' with 'clause A.8.3 and clause B.3.2' at clause 16.2(b); inserted '(EFT)' after the words ‘electronic funds transfer’ at clause 19.2; substituted the words 'this schedule' with 'Schedule A—Production and Engineering Employees' at clauses A.8.1 and A.8.5; deleted the word 'per' before 'shift' at the first row in the ‘Payable’ column of the table at clause A.8.2(a); inserted 'Washery allowance - minimum payment' in the ‘Allowance’ column of the table at clause A.8.2(a); inserted 'Where an employee is employed in or about a washery This allowance is in substitution of all other disability allowances except water money' in the ‘Application’ column of the table at clause A.8.2(a); substituted 'per day/shift' with 'per day or shift' in second row and fifth row of the ‘Payable’ column of the table at clause A.8.2(a); inserted '—minimum payment' after 'Shaft work (Electrical / Mechanical)' in the fifth row of the ‘Allowance’ column of the table at clause A.8.2(a); inserted '—per afternoon shift’ after 'Additional shift allowance—Open cut employees' in thirteenth row of the ‘Allowance’ column of the table at A.8.2(a); inserted 'Additional shift allowance—Open cut employees—per night shift' in the ‘Allowance’ column of the table at A.8.2(a); added 'Where an employee is engaged on afternoon shift and/or night shift at open cut workings and who is in receipt of the 15% shift allowance' in the fourteenth row of the ‘Application’ column of the table at A.8.2(a); inserted the word 'an' before 'employee' in the third row of the ‘Application’ column in the table at A.8.2(b); moved 'Mines Rescue Training Officer Level 2' to a separate row below 'Occupational Health Nurse' in the ‘GROUP I’ section of the table at clause B.2.1; Changed reference in header of third column from ‘% of the standard rate’ to ‘% of Mineworker – Induction Level 2 Weekly Rate’ in the table at clause B.3.1(a) in accordance with [2015] FWCFB 7236 at [12]; substituted ‘this schedule’ with ‘Schedule B—Staff Employees’ at clause B.3.4; substituted 'clause E.1' with 'Schedule E—School-based Apprentices' in clause E.1; substituted 'this Schedule' with 'Schedule I—Mines Rescue Service Employees' at clause I.1; changed ':' to ';' at clause I.4.2; substituted reference to 'clause 14.1' with 'Clause 14—Ordinary hours or work' at clause I.6.1; adjusted paragraph order and numbering at clause I.6.1.
29 In accordance with the proposal of Ai Group as set out in its submission of 25 August 2021 and [2021] FWCFB 5117 at [32] and [33].