Fair Work Commission (FWC) President Hatcher has announced a decision to commence a new matter to consider whether modern awards require amendments to reflect impending changes to casual employment terms, as a result of the Closing Loopholes No.2 Act set to take effect on the 26 August 2024.
The FWC has released a provisional view outlining potential amendments which could impact several awards in our sector. The ARA will be making a submission in response to the FWC provisional amendments.
Members can provide feedback to inform the ARA submission at policy@retail.org.au by COB 26 July 2024.
FWC Modern Award Review
The FWC has also released its final report on the Modern Award Review, with references and potential impacts to a number of awards used by our sector, including:
- General Retail Industry Award 2020 (GRIA)
- Fast Food Industry Award 2020 (FFIA)
- Hospitality Industry Award 2020 (HIA)
- Restaurants Industry Award 2020 (RIA)
- Clerks Private Sector Award 2020 (CPSA)
The FWC report was supplemented by a statement from President Hatcher, who announced that the key outcome of the review is that the FWC is to initiate its own proceedings on high-priority matters highlighted by the review process, across the three workstreams of Job Security, Work and Care, and Award Useability.
The Full Bench observed that the GRIA attracted the most proposals for change, and proposals from the largest number of parties, indicating a degree of concern amongst employers about the useability of this award, which is significantly higher than for the other awards subject of the review.
Given the potential overlap with the ARA’s application to vary the GRIA, and the matters raised in the FWC report, President Hatcher has determined that the remaining ARA proposals will be heard and determined on the same timeline as the FWC own-initiated proceedings.
This provides some direction in relation to the next steps on the ARA’s GRIA application, and a streamlined process for the ARA matters to be heard concurrent to other matters related to the GRIA.
It is also worth noting that the President referred to the ARA application as a “significant intervening event” in the modern award review process, highlighting the proactive approach adopted by the ARA in putting forth its application to vary the GRIA.
The announcement also outlined a wholesale review of part-time employment arrangements across seven awards – including the five awards used by our sector, listed above. The hope is that this review will provide greater clarity and flexibility on part-time arrangements, in-line with the ARA’s advocacy and our own application to vary the GRIA. These matters are to be scheduled at a “suitable time” in 2025.
Other matters in the GRIA and CPSA are among a number of high-priority matters to be considered for review within the proceedings to begin in August 2024.
As improvements to award useability and part-time provisions are key considerations in both the FWC proceedings and ARA application, it is hoped that this shared alignment will help build upon the successful outcomes already secured in the GRIA, to drive further positive results for the retail sector.
The ARA remains committed to pursuing changes to modern awards that benefit retailers by reducing complexity and promoting workplace flexibility.
For more information about these announcements, contact the ARA Employment Relations service at membership@retail.org.au or on 1300 368 041.
FWC initiated proceedings on high priority matters
The FWC has advised its commission-initiated proceedings will relate to six key priorities. Further information on these key priorities and the timeline for the initiation of these proceedings, relevant to the retail sector, are outlined below.
General Retail Industry Award 2020
The FWC has advised these proceedings will consider certain proposals advanced in the ‘making awards easier to use’ stream of the modern award review – with the exception of provisions related to part-time employment. The FWC has noted that many of the proposals put forth by industry groups within this stream of the review highlighted employer concerns as to the useability of the award.
As noted above, the ARA’s remaining proposals in its application to vary the GRIA will be heard and determined together within the FWC initiated proceedings. The proceedings will be initiated in August 2024.
Clerks Private Sector Award 2020
The focus of these proceedings will be to develop the ‘working from home’ term within the CPSA. The commission specifically noting the intent of the term is to facilitate employers and employees making workable arrangements for working from home. These proceedings will also be initiated in August 2024.
Part-time employment provisions across seven awards
The purpose of these proceedings will be to undertake a fundamental review of award provisions regulating part-time employment, focused on the seven awards that were the subject of the ‘making awards easier to use’ steam (including those five listed above). The provisions to be reviewed include those relative to the establishment of the hours of employment (including number of hours and days to be worked), prescribed daily and weekly minimum hours of work, and the circumstances by which working hours may be altered and additional hours worked.
The FWC has indicated that the objective of this review will be to establish a standard model clause for part-time employment across these seven awards, noting that any industry specific variations to the model clause would only be made by exception and only if there are good industry-specific reasons to do so.
The ARA’s remaining proposals relevant to part-time employment within the GRIA will be heard and determined together within the FWC’s part-time employment proceeding. The FWC indicated the proceedings will be initiated at a suitable time in 2025.
ARA application to vary the GRIA
The ARA application has already secured variations to the GRIA in relation to the following matters:
- Reduced ambiguity on overtime provisions: Clause 21.2 of the award has restructured the original overtime provisions within the award into a table format with clear expressions as to the applicability of overtime for full-time, part-time and casuals.
- Increased flexibility within rostering arrangements: Employers can now roster an employee to work 6 days in one week, and 4 days in the other week, any which way, per two-week cycle.
- Increased clarity as to the penalty rates payable in the absence of a break between shifts: The amendment of clause 16.6 (b) to expressly state that the applicable penalty rate (200%) is calculated on the ‘employees’ minimum hourly rate’.
- Reduced complexity with the inclusion of multi-site retailers as a retail type with diverse ordinary hours: The insertion of the term ‘retailer’ within clause 15.2 (c) of the award which replaces the word ‘establishment’ provides for the applicability of this provision extends beyond stand-alone retailers.
These variations provide enhanced award useability by reducing ambiguity as to the meaning and operation of certain provisions, in-line with the ARA’s intent in submitting its application.
ARA proposals to be heard through FWC GRIA proceedings
The view expressed by President Hatcher is that the ARA’s remaining proposals, with the exception of proposals relevant to part-time employment, are to be heard and determined together with proposals put forth by other employer groups within the ‘making the awards easier to use’ stream of the review as part of the FWC GRIA proceedings
This decision was made with consideration to the overlap to some of the ARA’s proposals in seeking greater clarity within the award and concerns advanced by industry groups about the useability of the awards system.
The exact ARA proposals to be heard within these proceedings are yet to be confirmed. However, the ARA’s initial assessment is that the following proposals from the ARA’s application will be dealt with in these proceedings:
- Amendment to make clear that written records include digital records, reducing ambiguity.
- Increased clarity and flexibility about the minimum break between shifts.
- Increased flexibility through split shifts, by employee agreement.
- Increased flexibility by allowing the averaging hours over longer periods.
- Increased flexibility by removing the restriction of 19 starts for full-time employees.
- Increased flexibility by enabling 38 ordinary hours to be worked across four days.
- Increased flexibility by providing an ability to waive a meal break and finish early.
- Increased clarity on the application of the first aid allowance.
ARA Proposals to be heard through FWC part-time employment proceedings
As highlighted above, the proposals of the ARA application relative to part-time employment will be heard and determined within the FWC-initiated part-time employment proceedings in 2025.
While the FWC is still yet to confirm which of the ARA proposals will be rolled into this proceeding, the ARA’s initial assessment is that the following proposals will be heard and determined within this proceeding:
- Increased flexibility by removing the requirement for consecutive days off, by employee agreement.
- Increase clarity and flexibility for clarify employees regularly working Sundays.
- Increase clarity and flexibility through standing consent provisions.
- Increase flexibility by removing requirements to notify break times in advance.
