4 yearly review of modern awards–Award stage–Graphic Arts, Publishing and Printing Award 2010 [2019] FWC 2213

1 Fair Work Act 2009 s.156 – 4 yearly review of modern awards 4 yearly review of modern awards–Award stage–Graphic Arts, Publishing and Printing Award 2010 (AM2014/203) JUSTICE ROSS, PRESIDENT SYDNEY, 4 APRIL 2019 4 yearly review of modern awards – award stage – technical and drafting issues – Graphic Arts, Printing and Publishing Award 2010. [1] On Thursday 20 December 2018 a conference was held to deal with a small number of outstanding technical and drafting issues in the Graphic Arts, Printing and Publishing Award 2010 (the Graphic Arts Award). A transcript of the conference is available on the Commission’s website. [2] The Australian Industry Group (Ai Group) and the Australian Manufacturing Workers’ Union (AMWU) were represented at the conference. [3] Following the conference a Report was published which summarised the agreed matters and directed parties to confer and then file short written submissions on the outstanding contested issues. Submissions were received by Ai Group and the AMWU. The definition of ‘ordinary hourly rate’ and ‘overtime hourly rate’ [4] The first outstanding issue relates to the definition of ‘ordinary hourly rate’ and ‘overtime hourly rate’ in the exposure draft. In the November 2018 decision,1 which dealt with Group 2 awards, the Commission outlined a preliminary view that the expression ‘hourly rate’ would be changed to ‘ordinary hourly rate’ and the following definition would be inserted into the exposure draft for the Graphic Arts Award: ‘ordinary hourly rate means the hourly rate for the employee’s classification specified in clause 8.2, plus any allowances specified as being included in the employee’s ordinary hourly rate or payable for all purposes.’ [5] The AMWU agreed with the Commission’s proposed definition, however requested the following underlined amendments: ‘ordinary hourly rate means the hourly rate for the employee’s classification specified in clause 8.2, plus any allowances specified as being included in the employee’s ordinary hourly rate or payable for all purposes. Where the employee is employed on 1 [2018] FWCFB 7210 [2019] FWC 2213 STATEMENT -- 1 of 8 -- [2019] FWC 2213 2 shift work the penalty payable for the work at such hours will be part of the ordinary hourly rate.’ [6] Ai Group opposed the AMWU’s amendment and also sought to have the words ‘in clause 8.2’ replaced with the words ‘under this award.’ Discussion around this issue occurred during the 20 December conference and the parties agreed to engage in further discussions regarding the wording of the definition and to file short written submissions. [7] In their submission of 10 February 20192 the AMWU stated that the parties agree the definition should be: ‘ordinary hourly rate means the hourly rate for the employee’s classification prescribed by the award, plus any allowances specified as being included in the employee’s ordinary hourly rate or payable for all purposes.’ [8] This wording is the same wording proposed by Ai Group in their submission of 10 December 2018.3 [9] The definition of ‘ordinary hourly rate’ as agreed by the parties at [7] above will be inserted into the exposure draft at Schedule I.1.1. The current definition of ‘hourly rate’ at Schedule I.1.1 will be deleted. [10] In their 10 December 2019 submission, Ai Group proposed a definition of ‘overtime hourly rate’ to be inserted into the exposure draft. At the 20 December conference, the parties agreed that the following definition be inserted into the exposure draft: ‘overtime hourly rate means the ordinary hourly rate for the employee’s classification prescribed by the award, plus any applicable shift allowances.’ [11] This definition will be inserted into the exposure draft at Schedule I.1.1. [12] At the 20 December 2018 conference the parties were in agreement regarding Ai Group’s proposed wording in respect of a number of clauses, with the exception of the wording relating to clause 21.3(c).4 The wording that has been agreed between the parties will be adopted in the exposure draft, as set out below. [13] Clause 18.5 currently states: ‘18.5 If an employee is paid wages by cash and wages are not paid within ordinary working hours, all non-working time during which an employee is kept waiting for payment of wages will be paid at time and a half. The penalty in clause 18.5 will not apply where the delay is beyond the employer’s control.’ [14] Clause 18.5 will be replaced with: 2 AMWU submission, 10 February 2019 at paragraph 5 3 Ai Group submission, 10 December 2019 at paragraph 5 4 Report, 24 December 2018 at [5] – [6] -- 2 of 8 -- [2019] FWC 2213 3 ‘18.5 If an employee is paid wages by cash and wages are not paid within ordinary working hours, all non-working time during which an employee is kept waiting for payment of wages will be paid at 150% of the ordinary hourly rate. The penalty in clause 18.5 will not apply where the delay is beyond the employer’s control.’ [15] Clause 24.2(b) currently states: ‘(b) Overtime will be paid at the following rates: Rate First three hours Time and a half After three hours Double time’ [16] Clause 24.2(b) will be replaced with: ‘(b) Overtime will be paid at the following rates: Rate First three hours 150% of the overtime hourly rate After three hours 200% of the overtime hourly rate’ [17] Clause 24.3(a) currently states: ‘(a) An employee will be paid at the rate of double time for all overtime work done on a Saturday or on a Sunday, except as otherwise provided.’ [18] Clause 24.3(a) will be replaced with the following: ‘(a) Except as otherwise provided, 200% of the overtime hourly rate will be paid for all overtime work done on a Saturday or on a Sunday.’ [19] Clause 24.3(b) currently states: ‘(b) Minimum engagement/payment for work on a Saturday or a Sunday An employee who has been notified by the employer of the requirement to work overtime on a Saturday (not being work which is continuous with work which commenced on a Friday) or on a Sunday and reports to work and is ready, willing and able to perform work, will be provided the following minimum engagements/payments at the rate of double time: (i) Saturday—two hours or two hours pay; (ii) Sunday—four hours or four hours pay.’ -- 3 of 8 -- [2019] FWC 2213 4 [20] Clause 24.3(b) will be replaced with the following: ‘(b) Minimum engagement/payment for work on a Saturday or a Sunday An employee who has been notified by the employer of the requirement to work overtime on a Saturday (not being work which is continuous with work which commenced on a Friday) or on a Sunday and reports to work and is ready, willing and able to perform work, will be provided the following minimum engagements/payments at the rate of 200% of the overtime hourly rate: (i) Saturday—two hours or two hours pay; (ii) Sunday—four hours or four hours pay.’ [21] Clause 24.4 currently states: ‘24.4 Work on a rostered day off Work on a rostered day off is overtime and is paid at the rate of time and a half for the first three hours and double time thereafter.’ [22] Clause 24.4 will be replaced with: ‘24.4 Work on a rostered day off Work on a rostered day off is overtime and is paid at the rate of 150% of the overtime hourly rate for the first three hours and 200% of the overtime hourly rate thereafter.’ [23] Clause 31.3 currently states: ‘31.3 An employee required to work on a public holiday or a substitute day, as provided for in the NES or clause 31.5, will be paid double time and a half with a minimum payment of four hours. Provided that: (a) an employee required as an inserter in a non-daily newspaper office who is required to work on a public holiday will be paid at double time and a half with a minimum payment of two hours; and (b) an employee engaged as a publishing employee in a non-daily newspaper office who is required to work on a public holiday will be paid at double time and a half with a minimum payment of three hours.’ [24] Clause 31.3 will be replaced with: ‘31.3 An employee required to work on a public holiday or a substitute day, as provided for in the NES or clause 31.5, will be paid as follows with a minimum payment of four hours: -- 4 of 8 -- [2019] FWC 2213 5 For ordinary hours 250% of the ordinary hourly rate For overtime 250% of the overtime hourly rate Provided that: (a) an employee required as an inserter in a non-daily newspaper office who is required to work on a public holiday will be paid as follows with a minimum payment of two hours: For ordinary hours 250% of the ordinary hourly rate For overtime 250% of the overtime hourly rate (b) an employee engaged as a publishing employee in a non-daily newspaper office who is required to work on a public holiday will be paid as follows with a minimum payment of three hours: For ordinary hours 250% of the ordinary hourly rate For overtime 250% of the overtime hourly rate’ [25] Clause 31.4 currently states: ‘31.4 Where a weekly employee in a non-daily or regional daily newspaper office, other than an employee listed in clauses 31.3(a) and 31.3(b), is required to work on a public holiday they will be given a day off instead within seven days of the holiday occurring or be paid double time with a minimum payment of four hours. Provided this clause applies instead of the provisions in clause 31.3.’ [26] Clause 31.4 will be replaced with the following: ‘31.4 Where a weekly employee in a non-daily or regional daily newspaper office, other than an employee listed in clauses 31.3(a) and 31.3(b), is required to work on a public holiday they will be given a day off instead within seven days of the holiday occurring or be paid as follows with a minimum payment of four hours: -- 5 of 8 -- [2019] FWC 2213 6 For ordinary hours 200% of the ordinary hourly rate For overtime 200% of the overtime hourly rate Provided this clause applies instead of the provisions in clause 31.3.’ Clause 21.3(c) of the exposure draft [27] Clause 21.3(c) of the exposure draft currently states: ‘(c) The shift allowance is part of the employee’s weekly wage for the purpose of calculating the overtime rate payable in accordance with this award.’ [28] Following the 20 December conference Ai Group and the AMWU had further discussions in relation to this subclause. In their February 2019 submission Ai Group submit that the current 21.3(c) should be replaced with the following wording: ‘The shift allowance is payable during overtime in accordance with this award.’5 [29] The AMWU submits that the clause 21.3(c) in the exposure draft be replaced as follows: ‘During overtime the rate payable is calculated on the ordinary hourly rate prescribed by this award.’6 [30] The wording proposed by Ai Group will be inserted into the exposure draft. An updated exposure draft will be issued concurrently with this Statement. Parties will be provided an opportunity to comment on the updated clauses (see [37]). Insertion of casual ordinary hourly rate definition [31] The AMWU sought the insertion of a definition for the term casual ordinary hourly rate. This issue was discussed at the 20 December conference, and the AMWU subsequently advised that they no longer press the issue.7 Clause 17.3(a) – meal allowance [32] In their submission of 11 February 2019, Ai Group raised an issue concerning a cross referencing error in clause 17.3(a)(iv) and (v) of the exposure draft. Ai Group submit that the clauses incorrectly reference the meal breaks clause (at clause 22 of the exposure draft) rather than the meal period during overtime clause (at clause 24.6 of the exposure draft) and submit that the clauses should be amended as follows: 5 Ai Group submission, 11 February 2019 at paragraph 6 6 AMWU submission, 10 February 2019, at paragraph 10 7 AMWU submission, 10 February 2019, at paragraph 13 -- 6 of 8 -- [2019] FWC 2213 7 ‘17.3 Expense related allowances (a) Meal allowance A meal allowance of $14.28 is payable on each occasion where: … (iv) an employee works overtime for three hours after the employee’s ordinary finishing time and does not take a meal break in accordance with clause 24.6 – Meal Breaks Meal period during overtime; or (v) an employee takes a subsequent meal break in accordance with clause 22 24.6 – Meal period during overtime when working overtime.’ [33] Ai Group submit that the issue is the result of cross-referencing errors in the equivalent clause of the current award. The equivalent provision is clause 25 of the current Award which states: ‘(b) Meal allowance A meal allowance of $14.74 is payable on each occasion where: (i) an employee or an adult apprentice (other than a junior or an apprentice) is required to work overtime for more than one and a half hours without being notified on the previous day or earlier that the employee will be so required to work; (ii) an employee or an adult apprentice (other than a junior or an apprentice) has been so notified of such overtime and then is not required to work such overtime; (iii) a junior or an apprentice (other than an adult apprentice) is required to work overtime for more than one and a half hours; (iv) an employee works overtime for three hours after the employee’s ordinary finishing time and does not take a meal break in accordance with clause 32—Meal breaks; or (v) an employee takes a subsequent meal break in accordance with clause 32 when working overtime.’ (emphasis added) [34] Clause 32 in the current award is the meal breaks clause. In their submission Ai Group highlight that the issue is best understood by looking at the equivalent provision in the pre- modern award, the Graphic Arts – General – Award 2000: ‘5.2.3 Meal allowance A meal allowance of $11.46 is payable where: -- 7 of 8 -- [2019] FWC 2213 8 5.2.3(a) An employee or an adult apprentice (other than a junior or an apprentice) is required to work overtime for more than one and a half hours without being notified on the previous day or earlier that the employee will be so required to work; or 5.2.3(b) An employee or an adult apprentice (other than a junior or an apprentice) who has been so notified of such overtime and then is not required to work such overtime; or 5.2.3(c) A junior or an apprentice (other than an adult apprentice) is required to work overtime for more than one and a half hours; or 5.2.3(d) An employee works overtime for three hours after the employee’s ordinary finishing time and does not take a meal break in accordance with 6.4.6(b); or 5.2.3(e) For each subsequent meal break in accordance with 6.4.6 when working overtime.’ (emphasis added) [35] The above cross-references are to clause 6.4.6 (Meal period during overtime), in clause 6.4 (Overtime). Ai Group submit that this is logical because the meal allowance is only payable for certain meal breaks taken during overtime. Ai Group note in their submission that all of the paragraphs in clause 5.2.3 refer to overtime work. [36] It seems clear that the current award and the exposure draft contain a cross referencing error. The issue will be addressed in the exposure draft and clause 17.3(a) and (i) will be amended in line with paragraph [32] of this Statement. [37] An updated exposure draft will be issued concurrently with this Statement. Parties will be provided an opportunity to comment on the updated clauses in line with ‘Update 2’ to the exposure drafts, which is detailed in Statement [2019] FWC 932 at paragraphs [5] and [6]. PRESIDENT Printed by authority of the Commonwealth Government Printer <PR706512> -- 8 of 8 --