4 yearly review of modern awards [2020] FWC 2576

1 Fair Work Act 2009 s.156 - 4 yearly review of modern awards 4 yearly review of modern awards (AM2019/17) JUSTICE ROSS, PRESIDENT MELBOURNE, 18 MAY 2020 4 yearly review of modern awards –finalisation of Exposure Drafts and draft variation determinations –Tranche 3 awards –Black Coal Mining Industry Award 2010 [1] A Statement1 published on 12 March 2020 in relation to the Black Coal Mining Industry Award set out the issues in respect of this award and indicated that it will be the subject of a separate conferencing process. [2] A conference in respect of the issues raised was held on Friday 20 March 2020. The transcript of the conference is available to be viewed here. A Report published on 23 March 2020 sets out the outcomes of the conference. [3] The matters that were agreed at the conference are as follows: 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. 1 [2020] FWCFB 1297 [2020] FWC 2576 STATEMENT -- 1 of 4 -- [2020] FWC 2576 2 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 clauses Schedules A.4 and B.2 for the award classification rate in respect of 35 ordinary hours.’ 4. Clause 25.1 – Personal carers 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. [4] Two issues remained outstanding. Issue 1: Shiftwork rates Schedules C and D [5] The CFMMEU (M&E) submits that the rates in clauses C.1.2, D.1.2 and D.2.2 should be amended, as follows: (i) for the first 4 hours on a Saturday: 165% for an afternoon and rotating night shift and 175% for hours worked on a permanent night shift; and (ii) on a Saturday after the first 4 hours: 215% for an afternoon and rotating night shift and 225% for hours worked on a permanent night shift. [6] The CFMMEU (M&E) proposal is supported by the other unions and opposed by Ai Group and the Coal Mining Industry Employer Group (CMIEG) Issue 2: Clause 29.4 Employee required to work on a recognised public holiday -- 2 of 4 -- [2020] FWC 2576 3 [7] Ai Group seeks a variation to clause 29.4 (clause 18.4 of the Exposure Draft at that time). ‘18.4 Employee required to work on a recognised public holiday (a) An employee who is required to work on a public holiday is to be paid at the rate of double time 200% of the relevant minimum hourly rate prescribed by clauses A.4 and B.2 for work performed during ordinary hours, in addition to any amount payable in respect of the relevant minimum weekly rate payment prescribed by clauses A.4 and B.2. (b) Work performed in excess of ordinary hours on a public holiday is to be paid at the rate of 300% of the relevant minimum hourly rate prescribed by clauses A.4 and B.2. treble time. (c) The rates prescribed by this clause are paid in substitution for, and are not cumulative upon, the penalty rates in clause 13 and the overtime rates in clause 14 of this award.’2 [8] The Report contained the following directions: 1. All parties are to confirm their agreement to the matters set out [5] above by no later than 4pm, Wednesday 15 April 2020. 2. The CFMMEU (M&E) is to file a draft determination and a submission in support of its proposed variation by no later than 4pm, Wednesday 15 April 2020. 3. Ai Group is to file a draft determination and a submission in support of its proposed variation by no later than 4pm, Wednesday 15 April 2020. 4. Interested parties are to file any submission in reply to the submissions filed pursuant to directions 1 and 2, by no later than 4pm, Wednesday 13 May 2020. 5. Liberty to apply. [9] The following submissions were filed in accordance with these directions:  Coal Mining Industry Employer Group (CMIEG) on 13 May 2020  Construction, Forestry, Maritime, Mining and Energy Union (Mining and Energy Division) on 20 April 2020 and 13 May 2020  Ai Group on 15 April 2020 and Reply Submission on 13 May 2020  Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) on 13 May 2020  Australia Manufacturing Workers’ Union on 14 May 2020  Association of Professional Engineers, Scientists And Managers Australia (APESMA) on 15 May 2020 2 Ai Group submission, 13 November 2015. -- 3 of 4 -- [2020] FWC 2576 4  Electrical Trades Union of Australia on 21 April 2020 [10] All parties confirmed that the matters set out at [3] above are agreed. [11] The CFMMEU (M&E) and Ai Group confirmed that they are pursuing Issues 1 and 2. [12] Issue 1 is set out above. The CFMMEU (M&E) filed a submission in support if its position and provided a proposed variation (at Annexure A). [13] The AMWU and CEPU support the CFMMEU (M&E) submission. [14] The variation proposed by the CFMMEU (M&E) is opposed by Ai Group in its submission of 13 May 2020 and by CMIEG. [15] The issue is set out above. Ai Group filed a submission in support of its position on 15 April 2020. Ai Group’s proposed variation determination is set out at Annexure A to that submission. [16] Ai Group’s position is opposed by the CFMMEU (M&E) for the reasons set out in its submission of 13 May 2020. Next Steps [17] In the Tranche 3 decision3 of 27 April 2020 the Full Bench indicated that the outstanding issues in respect of this award would be the subject of a conference after the filing of reply submissions on 13 May 2020. Given the positions of the respective parties, there seems little utility in a further conference in respect of the outstanding issues. [18] I propose to refer the outstanding issues to a Full Bench for determination. In the event that any party seeks a conference in respect of these issues they can make a request to [email protected]. PRESIDENT Printed by authority of the Commonwealth Government Printer <PR719423> 3 [2020] FWCFB 2124 -- 4 of 4 --