Steve O'Neill
Economics, Commerce and Industrial Relations Group
23 January 1998
Contents
Introduction
Some comments on the decision
Next awards to be reviewed
Appendix 1: Listing of allowable award
matters
Appendix 2: Listing of non-allowable award
matters
Appendix 3: Award tests
Appendix 4: Award simplification principles
Appendix 5 - Model clauses
Endnotes
The Full Bench of the Australian Industrial Relations Commission
(AIRC) delivered a test case decision on the simplification of
federal awards on 23 December 1997.(1) An earlier Current Issues
Brief (CIB No. 6, 1997-98) Award Simplification: Progress
Report by this author covered the background to and issues of
federal award simplification in some detail.(2) That publication
provides useful background to the relevant legislative provisions
which stipulate the simplification process, as well as providing
references to AIRC cases which considered the 'allowable award
matters' issue in 1997, and union responses to government and
employer proposals for simplified awards.
The purpose of this paper is to provide detail and some
interpretation of the AIRC's decision and from that, an outline of
the agenda for award simplification. The award simplification
process means reviewing awards to see which provisions remain and
which are to be removed. Where provisions are retained, the AIRC
will attempt to ensure that they are easy to understand, that they
support workplace efficiency and meet other tests. The 20 allowable
award matters detailed in s. 89A(2) of the Workplace Relations
Act 1996 (the WR Act) provide primary guidance on provisions
which will be retained in awards. If a provision is incidental or
necessary to the operation of the award, it stays (s. 89A(6)); on
the other hand if a provision restricts workplace efficiency, it
will be deleted or may need to be reworded (s. 143). The
Workplace Relations and Other Legislation Amendment Act
1996 (WROLA Act) prescribes provisions and a timeframe within
which the contents of existing awards are to be reviewed so as they
conform with allowable award matters.
Note that the test case decision dealt with one award only which
was the Hospitality Industry-Accommodation, Hotels, Resorts and
Gaming Award 1995, hereon the Hospitality Award, which the
Full Bench reviewed on a clause by clause basis. The decision runs
to 44 pages with another 140 pages of attachments; as well, the
AIRC has provided a separate document which is a draft Hospitality
Award 1998 incorporating in it the simplification and workplace
efficiency principles enunciated in this decision. However, this a
major test case under the WR Act and the principles outlined in
this test case will have application to many hundreds of federal
awards.
For the purposes of answering the question: ' As a result of
this test case decision, how will federal awards be simplified and
according to what criteria?', elements of the decision are
reproduced as appendices in this publication.
In an attachment to its decision Allowable Award
Matters-Attachment D, the Full Bench outlines the Hospitality
Award provisions which fall within each of the 20 allowable award
matters prescribed by the WR Act. Such provisions are therefore
within its jurisdiction to include in awards, including by
arbitration The AIRC may arbitrate on allowable award matters in
the absence of consent of the award parties (employers and unions).
This part of the decision is provided in Appendix 1.
In Appendix 2, Non-allowable Award Matters-Attachment
E, of the decision is reproduced. There, the Full Bench
identifies certain award provisions (of the Hospitality Award)
which are no longer allowable. Accordingly, an award provision
requiring the employer to provide first aid facilities has been
excluded from the draft Hospitality Award, because the authority
for the AIRC to make an award/provision has not been prescribed in
s. 89A(2) of the WR Act. (By contrast, industrial matters
prescribed in the first federal industrial legislation in 1904
actually included the provision of first aid facilities and other
amenities. This is illustrated in CIB No. 6, 1997-98).
In Appendix 3, there is a summarised account of award tests
(discrimination, plain English, workplace efficiency and others)
which the Full Bench applied to the remaining Hospitality Award
provisions. Each of the legislative requirements is identified and
applied to the Hospitality Award.
Together, these elements of the decision outline the AIRC's
criteria for award simplification. The criteria indicate 'what's
in' awards, 'what's out' and provisions which may need to be
reworded (and others which may be deleted).
The new principles determined by the Full Bench to govern the
AIRC's approach in award simplification are included in the
Appendix 4. When awards are presented to individual commissioners
for simplification, the commissioners will be required to adopt the
principles stipulated in this test case. Three 'model' clauses
proposed by the Full Bench in this decision concerning
anti-discrimination, personal leave and enterprise flexibility
provisions are included in Appendix 5.
The AIRC's award simplification test case decision gives the
impression of being 'tough but fair'. In some respects, it even
bolsters the award system, albeit in its designated minimum safety
net role. As well, the AIRC used the exercise to reassert its
independence. For example it refuted ACTU arguments concerning the
making of award simplification principles and held that sufficient
authority existed for it to make principles under the WROLA Act.
Elsewhere, the AIRC refuted employer and joint government
suggestions that the AIRC should not make provision for union
representation.(3) Also, and very importantly, the AIRC did not
accept invitations of employers and the joint governments to review
existing employee entitlements.(4)
It is also interesting to note the Full Bench's observation that
the current provisions requiring awards to promote efficiency hark
back to earlier, similar exercises of the 1980s and early 1990s.(5)
Earlier legislative requirements to review awards were detailed in
CIB No. 6 1997-98, as were other award reviews developed within
AIRC guidelines.
Also of interest is the AIRC's unwillingness to, at this stage,
develop guidelines on the conversion of paid rate awards to minimum
rates awards. The AIRC made this clear in the following:
-
- We are not prepared to require, as part of an award
simplification exercise, that all awards which are not operating as
minimum rates awards be converted to minimum rates awards in the
manner proposed by the Joint Governments. Whilst this will be an
appropriate course where the award is not a paid rates award, we
believe there has been insufficient attention given in this case to
the treatment of paid rates awards. Items 49(5) and 51(4), which
deal with the conversion of awards which are not operating as
minimum rates awards, is [sic] each discretionary. The
legislation contemplates the continuation of paid rates awards in
some circumstances. Neither the WROLA Act nor the WR Act in terms
[sic] requires paid rates awards to be converted. To the
contrary, the WR Act permits the variation of such awards and, in
specified circumstances, the creation of new ones (ss. 170MX and
170MY).(6)
The AIRC then goes on to rely on discretions concerning the
making of awards which are available to it, given the design of
certain provisions in the WR Act.
For unions, important clauses concerning workplace change,
technological change and consultation with the union, for example,
in redundancy situations and over occupational health and safety
matters, have been removed. This is no more than the intention of
the WR Act, and the AIRC could not find provision for such clauses
within the allowable award matters table, or under the
necessary/incidental provisions.
Thus, in the decision we see the reaffirmation of the
legislative intent to reduce the ability of unions to deliver
workplace intervention through awards. The AIRC also made reference
to the extent of unionisation in respect of the hospitality
industry, which it did not regard as being particularly high, so
the AIRC is taking into account the wishes of workers to be union
members. Certified agreements are not so constrained in respect
consultative clauses and the like, and as was reported in CIB No. 6
1997-98, it is likely that unions will seek consultative provisions
in agreements where the workers in an enterprise seek union
representation and certified agreements. Nevertheless, the decision
indicates the success of the Government's drive to reduce the role
of awards in workplaces.
The President will reconstitute the Full Bench in each of the
award simplification applications in respect of the awards
nominated for review in the initial applications. These include:
the Graphic Arts-General Interim Award 1995, the SDA (Shop
Distributive and Allied Employees' Association (Victoria Shops)
Interim Award 1994, the SDA (Food and Liquor) Interim Award 1994
and the Nurses (ANF-WA Private Hospitals and Nursing Homes)
Consolidated Award, as well as two awards applying to teachers in
Victoria, and the award applying to the 'Sizzlers' restaurant
chain. These reviews will be brought on early in the new year.
At the time the AIRC reserved its decision (November 1997),
Commissioner McDonald had not completed the task of taking evidence
in that part of the employers' application which sought a reduction
in penalty rates in the Hospitality Award. This exercise
recommenced in mid January 1998. The AIRC did note that the task to
simplify remaining awards within the stipulated timeframe (now
about 6 months) will be of 'historic proportions'.
(Source: this list has been adapted from Attachment D,
Allowable Matters/Incidental and Necessary Table which can be
found at page 63 of the Award Simplification Decision)
This table refers to provisions in the current and proposed
Hospitality Award which the AIRC has determined are allowable or
incidental and necessary. The determination of whether or not an
award provision is incidental to an allowable award matter and
necessary for the effective operation of the award may depend on
the circumstances in a particular case.
s. 89A(2)(a) Classifications of employees and
skill-based career paths
- lists of classification and classification structures, covering
the definitions of and duties to be performed by each
classification;
- competency and qualification standards for classification
structures;
- provisions enabling flexibility in the application of the
classification structure (such as provisions regarding
multi-skilling);
- provisions which enable the employer to broadly determine where
former classifications would fit into a new classification
structure eg. translation from old to new structures (as long as
they are relevant) and automatic progression;
- mixed functions clause;
- higher paid employees may relieve lower paid employees without
loss of pay.
s. 89A(2)(b) Ordinary time hours of work and the times
which in which they are performed, rest breaks, notice periods, and
variations to working hours
- span of hours attracting ordinary time payment and any
exemptions for particular classifications or type of employee;
- the number of hours in a time span/s (eg. weekly, monthly or
shift arrangements) which attract ordinary time payment;
- maximum daily hours attracting ordinary time payment;
- notification of hours/rosters and provisions to change hours/
rosters;
- provision for rostered days off;
- make up time arrangements;
- provision for meal breaks, minimum length of meal breaks and
penalty arrangements to apply in the absence of a meal break;
- rest breaks (ie. during ordinary time hours), crib breaks (ie.
during overtime) and breaks between shifts;
- payment for waiting time where employees are paid their wages
at any time other than during their working time.
s. 89A(2)(c) Rates of pay generally (such as hourly
rates and annual salaries), rates of pay for junior trainees or
apprentices, and rates of pay for employees under the supported
wage system
- minimum wage rates (including for juniors, trainees and
apprentices), increments, supplementary payments and safety net
adjustments (as long as they are relevant);
- mixed function payments;
- process and procedures for the determination of age; juniors
paid as adults;
- eligibility for supported wage including provisions for
assessing an employee's productivity capacity;
- provisions for work trials as part of a supported wage
arrangement including induction or training appropriate to the job
being trailed;
- provision for payment of wages;
- manner of payment of wages eg. wages to be paid in cash, by
cheque or by electronic funds transfer;
- payments for when work not performed;
- deductions from wages.
s. 89A(2)(e) Annual leave and leave
loadings
- the quantum of the leave entitlement and of the loading;
- defining service for the purpose of calculating the leave
entitlement;
- when and how the leave entitlement may be taken;
- the effect on the leave entitlement of certain absences from
the workplace;
- payment provisions including for the leave period, the loading
and on termination.
s. 89A(2)(g) Personal/carer's leave, including sick
leave, family leave, bereavement leave, compassionate leave,
cultural leave and other like forms of leave
- quantum of leave entitlement;
- accrual provisions including any limitation on accrual;
- access to accrued entitlements;
- conditions on access to entitlements eg. carer's leave is for
the purpose of caring for an immediate family or household member
who is sick and requires the employee's care and support;
- notice requirements;
- evidence supporting claims;
- effect of workers compensation payments on entitlements;
- unpaid leave;
- time off during notice period;
- leave for consultative meetings to discuss industrial
matters.
s. 89A(2)(h) Parental leave including maternity and
adoption leave
- quantum of leave entitlements;
- eligibility requirements;
- notice requirements;
- evidence supporting claims;
- interaction of parental leave and other leave
entitlements;
- variations to parental leave;
- transfer to a safe job;
- returning to work after a period of parental leave;
- replacement employees.
s. 89A(2)(i) Public holidays
- identification of holidays;
- provision for substitute days;
- payment for working on a public holiday;
- minimum payments for public holiday work;
- absence before or after a public holiday;
- time off instead of public holiday penalty rate.
s. 89A(2)(j) Allowances
- provision for payment in addition to minimum rates of pay
for:
- disabilities, responsibility and skill; or
- the reimbursement of expenses;
- requirements for employees to sign a receipt for clothing or
equipment provided by their employer;
- accident pay.
s. 89A(2)(k) Loadings for working overtime or for casual
work or shift work
Overtime work
- definition of overtime, the basis for its calculation and the
level of overtime loadings;
- minimum payments;
- overtime payments when an employee swaps shifts;
- provision for rest periods and payment for working during a
meal break;
- time off in lieu of payment for overtime.
Casual loadings
- provision for and level of loading for ordinary work;
- provision for additional loading for working outside of
ordinary hours.
Shiftwork
- provision for and level of loading and definition of
shifts.
s. 89A(2)(l) Penalty rates
- provision for penalty payments and the rates applicable for
work performed at specified times of the day or on certain days of
the week;
- penalty rates not cumulative.
s. 89A(2)(m) Redundancy pay
- definition of redundancy;
- transfer to lower paid duties;
- severance pay entitlements;
- acceptable alternative employment;
- deductions from severance pay due to superannuation
benefits;
- exemption from severance pay eg. termination due to misconduct,
traineeships, incapacity to pay.
s. 89A(2)(n) Notice of termination
- period of notice required on termination;
- payment instead of notice;
- exemption from notice provisions eg. termination due to
misconduct, traineeships;
- employers right to withhold monies due to an employee if the
employee fails to give the required notice.
s. 89A(2)(o) Stand-down provisions
- circumstances under which employees may be stood down and
provision for deduction of wages;
- exclusions from the stand-down arrangements;
- effect on other entitlements;
- employee rights in response.
s. 89A(p) Dispute settling procedures
- procedural matters such as:
- hierarchy of dispute resolution steps;
- final conciliating or determining authority;
- continuation of work unless reasonable concern about an
imminent risk to
- occupational health or safety;
- timing for progressing particular stages;
- representation.
s. 89A(2)(q) Jury service
- provision for authorised absence from the workplace;
- eligibility criteria;
- make up of payment to ordinary time earnings level;
- notification to employer of the requirement to attend for jury
service and proof of attendance, period of attendance and amount of
reimbursement received from the court.
s. 89A(2)(r) Type of employment, such as full-time
employment, casual employment, regular part-time employment and
shift work
- provision for and definitions of types of employment such as
full-time, regular part-time and casual;
- requirement to inform each employee of the terms of their
engagement and in particular whether they are full time, regular
part time or casual;
- minimum consecutive hours to be worked by part-time and/or
casual employees;
- provision for reasonably predictable hours of work including
the process for their variation for part-time employees;
- provision for pro-rata employment conditions for part-time
employees.
s. 89A(2)(s) Superannuation
- reference to the relevant superannuation legislation;
- definition of ordinary time earnings;
- contribution to be made into a specified fund(s);
- eligibility;
- employer contributions;
- voluntary employee contributions;
- exemptions.
Other Matters
- machinery provisions such as:
- title;
- arrangement;
- alphabetical index;
- definitions;
- date the award starts;
- where and who the award covers;
- index of facilitative provisions;
- model anti-discrimination clause;
- enterprise flexibility provisions;
- relationship to National Training Wage Interim Award;
- posting of award in the workplace.(7)
(Source: This list has been adapted from Attachment E,
Non-Allowable Matters Table which can be found at page 71 of
the Award Simplification Decision).
The list also refers to provisions in the current Hospitality
Award which the AIRC has determined are not allowable. The
determination of whether or not an award provision is incidental to
an allowable award matter and necessary for the effective operation
of the award may depend on the circumstances in a particular
case.
s. 89A(2)(a) Classifications of employees and
skill-based career paths
- statements of objectives or intent [clause 1A];
- limitations on employment in particular classifications
[clauses 16.4.8 (b) and 16.5.3 (a) iii)].
s. 89A(2)(k) Loadings for working overtime or for casual
work or shift work
- preference for the working of overtime rather than casual
employment [clause 28.1].
s. 89A(2)(m) Redundancy pay
- notification and consultation on the introduction of change
[clause 11];
- requirement for discussions to take place prior to redundancies
[clauses 17.1 and 17.10.1];
- provisions requiring the employer to notify the CES in respect
of impending redundancies [clause 17.7].
s. 89A(2)(n) Notice of termination
- provision that an employer shall not dismiss an employee on the
grounds of refusal to dress in a manner which would cause that
employee embarrassment [clause 14.1.2];
- employee not to be given notice of termination while on
authorised leave [clause 18.1.8];
- requirement to provide employees with a statement of employment
on termination [clause 18.4];
- employer's right to summarily dismiss an employee in certain
circumstances [clause 18.5.2];
- provision that a termination of employment shall not be harsh,
unjust or unreasonable [clause 18.6].
s. 89A(2)(r) Type of employment, such as full-time
employment, casual employment, regular part-time employment and
shift work
- a prohibition on employees being engaged as casuals in the
hotel in which they are permanently employed [clause 16.1.3];
- limitations on the number or proportion of employees that an
employer may employ in a particular type of employment, such as
quotas and ratios [clause 16.5.3(a)(iii)];
- minimum or maximum hours of work for regular part-time
employees other than minimum number of consecutive hours [clause
16.3.1].
Other Matters
- a clause setting out the history of award changes [clause
8A];
- standards for accommodation [clause 35.5];
- provision by the employer for items or services such as
clothing, tools, equipment, laundering and accommodation which are
not in the nature of an allowance [clause 41];
- provisions in relation to sexual harassment [clause 14.1];
- a provision that employees not be required to clean or attend
sanitary conveniences provided for the opposite sex except in
certain circumstances [clause 14.2.2];
- amenities [clause 40];
- requirement to provide a first aid kit [clause 42];
- preference to unionists [clause 45];
- union officials [clause 47], but see Division 11A of Part IX of
the WR Act.(8)
Award provisions which pass the test of being allowable must be
reviewed against the nine tests stipulated below. Refer to page 33
of the Award Simplification Decision.
1. Unnecessary detail
Item 49(7)(a) of the WROLA Act provides that the Commission
must, if it considers it appropriate, review the award to determine
whether or not it meets the criterion that:
-
- it does not include matters of detail or process that are more
appropriately dealt with by agreement at the workplace or
enterprise level.
In the context of the Hospitality Award, the following
provisions prescribe "matters of detail or process that are more
appropriately dealt with by agreement at the workplace or
enterprise level".
- clause 13 - Board of Reference - deleted from the proposed
award;
- clause 26 - Hours of Work - amended to provide that the
arrangements for working an average of 38 hours per week are to be
agreed between the employer and employee at the workplace, subject
to compliance with a number of minimum standards.
2. Workplace efficiency and productivity
Items 49(7)(b) and (c) of the WROLA Act provide that the
Commission must, if it considers it appropriate, review the award
to determine whether or not it meets the following criteria:
The AIRC considered that these requirements could be met by the
use of majority clauses (which, where an enterprise is governed by
a number of awards, allows the award which covers the largest
number of employees to apply). It was also noted that the April
1991 National Wage Case decision considered a wider role for
majority clauses to support enterprise flexibility.
3. Work Organisation
The AIRC considered that work organisation within the hotels
industry would be enhanced with the following award changes
proposed for the new Hotels Award:
- 10.1 Employees must undertake duties as directed within the
limits of their competence;
- 10.2 Despite the recognition of five career path streams, such
streams do not prevent employees undertaking duties across
different streams;
and clause 14.2.1 of the award has been deleted. It states:
-
- Any bar attendant or cellarman shall not be required to scrub
or wash floors or tables; such work shall be performed by the
useful (Note: a useful is an employee who picks up used glasses,
washes these, replenishes trays with clean glasses and performs
similar duties).
4. Facilitative Provisions
Item 49(8)(a) of the WROLA Act provides that the Commission must
determine whether or not the award, where appropriate:
-
- contains facilitative provisions that allow agreement at the
workplace or enterprise level, between employers and employees
(including individual employees), on how the award provisions are
to apply.
The AIRC observed that a facilitative provision normally
provides that the standard approach in the award provision may be
departed from by agreement between an individual employer and an
employee or the majority of employees in an enterprise or part of
the enterprise concerned. It said in the decision:
-
- The nature and extent of the facilitative provisions in a
particular award should take into account the circumstances in the
industry covered by the award and the history of any existing
facilitative provisions. For example in an industry in which
employees have little or no bargaining capacity a more cautious
approach may be warranted. (p.38)
5. Regular Part-time Work
Item 49(8)(b) of the WROLA Act provides that the Commission must
review the award to determine that, where appropriate, "it contains
provisions enabling the employment of regular part-time employees".
The part-time work provisions in the Hospitality Award have been
reviewed to bring them into conformity with the WR Act. This
process has included the deletion of clauses 16.3.1(a) and (b)
which set out minimum and maximum hours of work for regular
part-time employees.
6. Plain English
Item 49(8)(c) of the WROLA Act provides the Commission must
determine whether or not the award
-
- is expressed in plain English and is easy to understand in both
structure and content.
The AIRC again endorsed its 1995 Third Safety Net Adjustment
and Section 150A Review decision (Print
M5600, 9 October 1995), and noted that its 1995 publication
Making Federal Awards Simpler provided guidance on
drafting plain english award clauses (p.41).
7. Obsolete Provisions and Updating
Item 49(8)(d) of the WROLA Act provides that the Commission must
review the award to determine whether or not it "contains
provisions that are obsolete or that need updating". A range of
provisions has been inserted in awards over time to deal with a
particular circumstance, event or project that is no longer
relevant and should be deleted. In the context of the Hospitality
Award the following provisions are obsolete:
clause 19.4 - Supplementary payments;
clauses 19.5.1 to 19.5.3 - Arbitrated safety adjustment;
clause 20.1.1 - Weekend penalty rates - savings provision;
and
clause 37 - Training.
The AIRC observed that:
-
- The question of whether or not a particular award provision is
obsolete is a question of fact. In the absence of agreement between
the award parties, evidence is required to establish that a
provision is obsolete. (p.41)
8. Trainee Wages and Supported Wage System
Item 49(8)(e) of the WROLA Act provides that the Commission must
review the award to determine that, where appropriate, "it provides
support to training arrangements through appropriate trainee wages
and a supported wage system for people with disabilities". The
existing provision in the Hospitality Award was retained, including
its training requirement.
9. Discrimination
Item 49(8)(f) of the WROLA Act provides that the Commission must
review the award to ensure that:
-
- it does not contain provisions that discriminate against an
employee because of, or for reasons including, race, colour, sex,
sexual preference, age, physical or mental disability, marital
status, family responsibilities, pregnancy, religion, political
opinion, national extraction or social origin.
The AIRC reaffirmed the structure of its earlier model
anti-discrimination clause developed in its Third Safety
Net decision but made some minor changes to make this clause
take account of the WR Act. The new model anti-discrimination
clause is presented in Appendix 5 of this paper.(9)
(Source: Award Simplification Decision, p. 30; note
that the Full Bench's use of 'our' and 'we' has been replaced with
'Full Bench')
1. The Commission will review awards in the following
circumstances:
- upon application under Item 49 of the WROLA Act, provided that
the Commission is satisfied that the applicant or applicants have
made reasonable attempts to reach agreement with the other parties
to the award about how the award should be varied and the treatment
of matters that are not allowable award matters; and
- after 30 June 1998, when the Commission is satisfied that the
award has been affected by Item 50 of the WROLA Act, relating to
parts of an award that ceased to have effect at the end of the
interim period.
A party proposing any departure from this principle must apply
pursuant to s. 107 of the WR Act for the matter to be dealt with by
a Full Bench.
2. Awards will be varied so that they:
- act as a safety net of fair minimum wages and conditions of
employment (s. 88A(b));
- are simplified and suited to the efficient performance of work
according to the needs of particular workplaces or enterprises (s.
88A(c)); and
- encourage the making of agreements between employers and
employees at the workplace or enterprise level (s. 88A(d)).
3. A simplified award is one which provides minimum working
arrangements encompassing entitlements to pay and conditions and
reasonable protections for both employees and employers in the
accessing and granting of the entitlements. Such awards may also
include clauses which are administrative in nature (eg. title,
parties bound, arrangement) and clauses which provide for the
flexible application of the award such as enterprise flexibility
clauses and majority clauses.
4. When varying an award pursuant to these principles, the
Commission will seek to ensure that at the end of the process the
award has the following characteristics:
- it does not contain provisions that are not either allowable
award matters, or both incidental to allowable award matters and
necessary for the effective operation of the award;
- it provides minimum entitlements for employees in relation to
allowable award matters consistent with its safety net
character;
- subject to Principle 6, it provides for rates of pay that
operate as minimum rates;
- where appropriate, it includes provisions enabling the
employment of regular part-time employees;
- it does not include provisions which set maximum or minimum
hours of work for regular part-time employees; and
- it includes an anti-discrimination clause.
5. Where appropriate, the award must also be reviewed against
Items 49(7) and (8) or Items 51(6) and (7) so that it:
- does not prescribe matters of detail or process that are more
appropriately dealt with by agreement at the workplace or
enterprise level;
- does not prescribe work practices that restrict or hinder the
efficient performance of work;
- does not contain provisions that have the effect of restricting
or hindering productivity, having regard to fairness to
employees;
- contains facilitative provisions that allow agreement at the
workplace or enterprise level between employers and employees
(including individual employees) on how the award provisions are to
apply;
- is expressed in plain English and is easy to understand in both
structure and content;
- does not contain provisions that are obsolete or need
updating;
- it provides support for training arrangements through
appropriate trainee wages and a supported wage system for people
with disabilities;
- does not contain provisions which discriminate against
employees on any of the grounds specified in Item 49(8)(f);
and
- complies in all other respects with the requirements of the WR
Act and the WROLA Act.
6. In considering whether to vary a paid rates award pursuant to
Items 49(5) and 51(4), the Commission will take into account any
Full Bench decision subsequent to this one which deals with the
variation of paid rates awards.
7. Award simplification does not involve a general review of the
level of award entitlements. Despite this, entitlements coming
within (the scope of) Items 49(7)(b) and (c) and Items 51(6)(b) and
(c) may be altered if a proper basis exists for doing so.
8. There is no requirement that an award contain provisions in
respect of each of the allowable award matters. Claims for new
award (10)provisions may be dealt with by application in the usual
way under Part VI of the WR Act. Claims for new allowances should
be the subject of a separate application unless the principle of
the payment of an allowance already exists in the award in relation
to the same or a similar entitlement. Even in those cases the form
and amount of the allowance must be justified on the merits.
9. The new Hospitality Award which the Full Bench proposes,
subject to settlement of the draft order, provides guidance to the
parties to other awards in the award simplification process. In
each award, account will need to be taken of any special
circumstances which might be relevant. To assist award parties
generally, the Commission has prepared two tables which illustrate
the application of ss. 89A(2) and (6) to the Hospitality Award
(Attachments D and E). In addition to the personal leave model
framework clause (Attachment B) the proposed award contains amended
model clauses for enterprise flexibility, anti-discrimination and
parental leave.
ANTI-DISCRIMINATION MODEL FRAMEWORK CLAUSE (proposed for
clause 13 of the revised Hospitality Award. Source:
Award Simplification Decision p. 43)
13.1 It is the intention of the respondents to this award to
achieve the principal object in s.3(j) of the Workplace Relations
Act 1996 through respecting and valuing the diversity of the work
force by helping to prevent and eliminate discrimination on the
basis of race, colour, sex, sexual preference, age, physical or
mental disability, marital status, family responsibilities,
pregnancy, religion, political opinion, natural extraction or
social origin.
13.2 Accordingly, in fulfilling their obligations under the
dispute avoidance and settling clause, the respondents must make
every endeavour to ensure that neither the award provisions nor
their operation are directly or indirectly discriminatory in their
effects.
13.3 Nothing in this clause is taken to affect:
13.3.1 any different treatment (or treatment having different
effects) which is specifically exempted under the Commonwealth
anti-discrimination legislation;
13.3.2 junior rates of pay, until 22 June 2000 or later date
determined by the Commission in accordance with s. 143(1E) of the
Act;
13.3.3 an employee, employer or registered organisation,
pursuing matters of discrimination in any State or federal
jurisdiction, including by application to the Human Rights and
Equal Opportunity Commission;(11)
13.3.4 the exemptions in s. 170CK(3) and (4) of the Act.
PERSONAL LEAVE MODEL FRAMEWORK CLAUSE
(Source: Award Simplification Decision, p. 55)
1. Amount of Paid Personal Leave
1.1 Paid personal leave will be available to an employee when
they are absent due to
- personal illness or injury (sick leave); or
- for the purposes of caring for an immediate family or household
member who is sick and requires the employee's care and support
(carer's leave); or
- bereavement on the death of an immediate family or household
member (bereavement leave).
- 1.2(i) Personal leave of: [sum of current sick leave plus
bereavement leave award entitlement] will be available in the first
year of service;
- [sum of current sick leave plus bereavement leave award
entitlement] will be available per annum in the second and
subsequent years of service.
1.2(ii) In any year unused personal leave accrues at the rate of
the lesser of:
(a) [current award sick leave entitlement] less the amount of
sick leave taken from the current year's personal leave entitlement
in that year; or
(b) the balance of that year's unused personal leave.
1.2(iii) Personal leave may accumulate to a maximum of [insert
current award maximum sick leave accumulation limit].
2. Immediate Family or Household
2.1 The entitlement to use personal leave for the purposes of
carer's or bereavement leave is subject to the person being
either:
2.1(i) a member of the employee's immediate family; or
2.1(ii) a member of the employee's household.
2.2 The term "immediate family" includes:
2.2(i) spouse (including a former spouse, a de facto spouse and
a former de facto spouse) of the employee. A de facto spouse means
a person of the opposite sex to the employee who lives with the
employee as his or her husband or wife on a bona fide domestic
basis; and
2.2(ii) child or an adult child (including an adopted child, a
step child or an ex-nuptial child), parent, grandparent, grandchild
or sibling of the employee or spouse of the employee.
3. Sick Leave
3.1 An employee is entitled to use up to [current award
entitlement] of the current year's personal leave entitlement as
sick leave in the first year of service and [current award
entitlement] in the second and subsequent years of service.
3.2 An employee is entitled to use accumulated personal leave
for the purposes of sick leave where the current year's sick leave
entitlement has been exhausted.
3.3 [insert any notice, certification etc. provisions].
4. Bereavement Leave
4.1 An employee is entitled to use up to [current award
entitlement] personal leave as bereavement leave [on each
occasion/annually as prescribed in existing award].
4.2 Where an employee has exhausted all personal leave
entitlements, including accumulated entitlements, they will be
entitled to [current award entitlement] unpaid bereavement
leave.
4.3 [insert any provisions for overseas deaths, notifications,
proof of death etc.].
5. Carer's Leave
5.1 An employee is entitled to use up to five days personal
leave each year as carer's leave.
5.2 [insert requirements regarding proof, notification etc].
5.3 An employee may take unpaid carer's leave by agreement with
the employer.(12)
ENTERPRISE FLEXIBILITY PROVISIONS (proposed as clause 9
of the revised Hospitality Award. Source: Award
Simplification Decision pages 9 and 93).
Where an employer or employees wish to pursue an agreement at
the enterprise or workplace about how the award should be varied to
make the enterprise or workplace operate more efficiently according
to its particular needs the following processes shall apply:
9.1 A consultative mechanism and procedures appropriate to the
size, structure and needs of the enterprise or workplace shall be
established.
9.2 For the purpose of the consultative process the employees
may nominate the Union or another to represent them.
9.3 Where agreement is reached an application shall be made to
the Commission.(13)
- AIRC, Award Simplification Decision (Print P7500) 23
December 1997.
- Department of the Parliamentary Library, Award
Simplification: Progress Report (Current Issues Brief No. 6
1997-98).
- AIRC, op. cit., p. 3.
- ibid.
- ibid., p. 34
- ibid., p. 30
- AIRC, Award Simplification Decision (Print P7500) 23
December 1997, p. 63.
- ibid., p. 71.
- ibid., p. 33.
- ibid., p. 30
- ibid., p. 43.
- ibid., p. 55.
- ibid., pp. 9, 93.