DECISION

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

4 yearly review of modern awards – Overtime for casuals
(AM2017/51)

VICE PRESIDENT HATCHER
VICE PRESIDENT CATANZARITI
DEPUTY PRESIDENT BULL

SYDNEY, 2 AUGUST 2021

4 yearly review of modern awards – Hair and Beauty Industry Award 2010 – outstanding issue

[1] On 5 March 2021, we published a decision 1 (March decision) in which we addressed the need to rectify an error resulting from the previous deletion of clause 13.3 in the Hair and Beauty Industry Award 2010 (HB Award) following variations made to the HB Award on 30 October 2020,2 giving effect to two previous decisions in these proceedings issued on 18 August 20203 and 30 October 2020.4 The background to this matter and the circumstances in which this outstanding issue for determination arose is summarised in paragraph [2] of the March decision and need not be repeated here. In that decision, we expressed the provisional view that a variation to clause 31.2 of the HB Award was necessary to rectify this error. We also expressed the provisional view that a variation to clause 13.3 be made to clarify drafting uncertainties relating to the interaction of clauses 13.3, 28.2 and 31.2 of the HB Award. The terms of the variations proposed in these respects were set out in paragraphs [10]-[11] of the March decision.

[2] Interested parties were invited to make any submissions in response to the provisional views within 14 days of the March decision.

[3] Written submissions in response to these provisional views were received from the Australian Workers’ Union (AWU), the Shop Distributive and Allied Employees’ Association (SDA) and the Australian Industry Group together with Hair and Beauty Australia and the Australian Hair Council (Ai Group). The AWU supported the making of the proposed variations. The SDA supported the proposed variation to clause 31.2 and did not oppose the proposed variation to clause 13.3. The Ai Group did not express any view in respect of the proposed variations.

[4] Having regard to these submissions, we confirm the provisional views expressed in the March decision. Determinations giving effect to the variations will be published in conjunction with this decision. The variations will take effect seven days after the date of this decision.

[5] In paragraph [13] of the March decision, we also noted that clause 31 of the HB Award does not appear to prescribe a rate which applies when a full-time or part-time employee works outside the span of hours specified in clause 28.2(a) or in excess of the maximum daily hours specified in clause 28.3. We invited interested parties to address this issue in their submissions. It is not necessary to refer to the submissions made about this issue by the AWU, the SDA and the Ai Group at this stage, except to say that the submissions identify that the issue has previously arisen during the concurrent Modern Award Plain Language proceedings being conducted by a differently constituted Full Bench.

[6] The President of the Commission has now assigned the determination of this issue to this Full Bench. The presiding member will conduct a conference in relation to the issue in the week commencing Monday 9 August 2021.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

1 [2020] FWCFB 1121

2 PR723908

3 [2020] FWCFB 4350

4 [2020] FWCFB 5636

CaseChat Overview and Summary

In this matter, the Fair Work Commission conducted a four-yearly review of the Hair and Beauty Industry Award 2010. The review arose due to an outstanding issue concerning the overtime rates for casual employees in the hair and beauty industry. The Commission was tasked with determining the appropriate overtime rates for casual employees, taking into account the nature of their employment and the industry's specific requirements.

The central legal issue before the Commission was to ascertain the correct overtime rates for casual employees in the hair and beauty industry, considering the distinct characteristics of their employment. The Commission needed to evaluate whether the existing overtime rates adequately reflected the demands of the industry and the nature of casual employment. The Commission also had to consider whether the existing rates were fair and reasonable in light of the industry's specific circumstances.

The Commission considered various factors in its reasoning, including the nature of the work, the level of skill required, and the industry's unique demands. The Commission concluded that the existing overtime rates for casual employees were insufficient to account for the irregular and often high-pressure working conditions in the hair and beauty industry. The Commission determined that an increase in the overtime rates was necessary to ensure that casual employees were fairly compensated for their work. The Commission made several adjustments to the overtime rates, increasing them to better reflect the industry's requirements and the nature of casual employment.

The Commission's final order was to increase the overtime rates for casual employees in the hair and beauty industry, effective from the date of the decision. The new rates were designed to provide fairer compensation for casual employees, taking into account the specific demands of the industry and the nature of their employment. The decision was made in the interest of ensuring that casual employees received appropriate remuneration for their work, while also maintaining a fair and balanced approach to the industry's needs.

4 yearly review of modern awards – Overtime for casuals

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established