4 yearly review of modern awards—Award stage—Group 4—Food, Beverage and Tobacco Manufacturing Award 2010

[2018] FWCFB 7509

[2018] FWCFB 7509

FAIR WORK COMMISSION

STATEMENT

Fair Work Act 2009
s.156—4 yearly review of modern awards

4 yearly review of modern awards—Award stage—Group 4—Food, Beverage and Tobacco Manufacturing Award 2010
(AM2014/268, AM2014/75)

JUSTICE ROSS, PRESIDENT
VICE PRESIDENT CATANZARITI
DEPUTY PRESIDENT GOSTENCNIK
COMMISSIONER LEE
COMMISSIONER CIRKOVIC MELBOURNE, 11 DECEMBER 2018

4 yearly review of modern awards – award stage – exposure drafts – Group 4 awards – Food, Beverage and Tobacco Manufacturing Award 2010 – Manufacturing and Associated Industries and Occupations Award 2010.

[1] This Statement deals with an outstanding issue arising from the technical and drafting matters dealt with in the Food, Beverage and Tobacco Manufacturing Award 2010 (the Food Manufacturing Award). A decision dealing with Group 4 awards was issued on 13 November 2018 (the November 2018 decision) 1.

[2] At paragraphs [32] – [45] of that decision we dealt with an issue relating to the terminology ‘applicable rate of pay’ and how it would be applied in a number of different clauses in the exposure draft for the Food Manufacturing Award and, in particular with an issue at clause 13.1(b) of the exposure draft and a dispute between the parties about the drafting of clause 13.1(b). 2 The proposed amendment to clause 13.1(b) of the exposure draft is:

‘13.1 An employee must not be required to work for more than five hours without an unpaid meal break of a minimum of 20 minutes except in the following circumstances:

...

(b) by agreement between an employer and an individual employee or the majority of employees in an enterprise or part of an enterprise concerned, an employee or employees may be required to work in excess of five hours but not more than six hours at the applicable rate of pay without a meal break. Employees will be paid for the fifth hour at the rate applying immediately prior to the end of the fourth hour.’

[3] We noted in the November 2018 decision that the dispute between the parties appeared to be whether clause 13.1(b) of the exposure draft should make reference to ‘the fifth hour’ or ‘the fourth hour’. We outlined that this issue would be referred to a separately constituted full bench to determine.

[4] We also noted in our November 2018 decision that the same issue arises in the exposure draft for the Manufacturing and Associated Industries and Occupations Award 2010 (the Manufacturing Award), at clause 14.1(b).

[5] In correspondence received by the Commission on 19 November 2018, the Australian Industry Group (Ai Group) advised that Ai Group and the Australian Manufacturing Workers’ Union (AMWU) had reached a consent position regarding the issue. The correspondence noted that the agreed wording had been detailed in a submission filed by the AMWU on 19 October 2018 and that submission indicates that both the AWU and the CEPU support the submission.

[6] The wording that the parties have agreed to is as follows:

‘(b) by agreement between an employer and an individual employee or the majority of employees in an enterprise or part of an enterprise concerned, an employee or employees may be required to work in excess of five hours but not more than six hours without a meal break, at the rate of pay applying to the employee immediately prior to the end of the fifth hour of work.’ (emphasis added)

[7] We have considered the wording proposed by the Ai Group and the AMWU, and agree with the proposal advanced. The wording will be adopted in the exposure drafts for the Food Manufacturing Award (at clause 13.1(b)) and the Manufacturing Award (at clause 14.1(b)). Each exposure draft will be updated and republished in due course.

[8] Interested parties will be provided with an opportunity to comment on each exposure draft once it is updated prior to it being finalised.

PRESIDENT

Printed by authority of the Commonwealth Government Printer

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 1   [2018] FWCFB 6852

 2   [2018] FWCFB 6852 at [36] – [45]