MA000017 - Decision - 11 May 2015

[2015] FWCFB 2831

The attached document replaces the document previously issued with the above code on 11 May 2015.

The following changes have been made:

1. By deleting the appearance for “R LePaver”and inserting “R Liebhaber”.

2. Attachment A to the decision has been amended to reflect the correct wording of clause 13.11 in item A.2 of the draft determination as per the Textile,Clothing and Footwear Union of Australia’s written submissions of 18 December 2014 at paragraphs 158-160.

M Mally

Associate to Senior Deputy President Watson

Dated:12 May 2015

[2015] FWCFB 2831
FAIR WORK COMMISSION

DECISION


Fair Work Act 2009

s.156 - 4 yearly review of modern awards

Textile,Clothing,Footwear and Associated Industries Award 2010
(AM2014/91)

Clothing industry

SENIOR DEPUTY PRESIDENT WATSON

SENIOR DEPUTY PRESIDENT O’CALLAGHAN

COMMISSIONER CRIBB

MELBOURNE,11 MAY 2015

4 yearly review of modern awards —substantive issues —award varied —new clause 9.2(c) in relation to translation of information in some circumstances —consent variation in relation to technical and drafting issues —merit claims re part-time employment,meal breaks and requirement to take annual leave —inconsistency between NES and award re part-time employment —removed.

[1] In a Statement on 13 August 2014, 1 the 4 Yearly Review Full Bench dealing with various Group 1 modern awards referred various issues raised in respect of the current Textile,Clothing,Footwear and Associated Industries Award 20102 (the TCF Award) to this Full Bench to hear and determine.3 In Amended Directions of 18 November 2014,the President directed this Full Bench to hear and determine the substantive issues raised during the 4 yearly review of modern awards (the Review) with respect to the TCF Award,setting out the issues for determination in Schedule E.

[2] For the purpose of this decision the textile,clothing,footwear industry is referred to as the TCF industry.

Approach to the proposed variations

[3] The Review is required to be conducted in accordance with s.156 of the Fair Work Act 2009 (the Act) which states:

    156 4 yearly reviews of modern awards to be conducted

    Timing of 4 yearly reviews

    (1) The FWC must conduct a 4 yearly review of modern awards starting as soon as practicable after each 4th anniversary of the commencement of this Part.

    Note 1:The FWC must be constituted by a Full Bench to conduct 4 yearly reviews of modern awards,and to make determinations and modern awards in those reviews (see subsections 616(1),(2) and (3)).

    Note 2:The President may give directions about the conduct of 4 yearly reviews of modern awards (see section 582).

    What has to be done in a 4 yearly review?

    (2) In a 4 yearly review of modern awards,the FWC:

      (a) must review all modern awards;and

      (b) may make:

        (i) one or more determinations varying modern awards;and

        (ii) one or more modern awards;and

        (iii) one or more determinations revoking modern awards;and

      (c) must not review,or make a determination to vary,a default fund term of a modern award.

    Note 1:Special criteria apply to changing coverage of modern awards or revoking modern awards (see sections 163 and 164).

    Note 2:For reviews of default fund terms of modern awards,see Division 4A.

    Variation of modern award minimum wages must be justified by work value reasons

    (3) In a 4 yearly review of modern awards,the FWC may make a determination varying modern award minimum wages only if the FWC is satisfied that the variation of modern award minimum wages is justified by work value reasons.

    (4) Work value reasons are reasons justifying the amount that employees should be paid for doing a particular kind of work,being reasons related to any of the following:

      (a) the nature of the work;

      (b) the level of skill or responsibility involved in doing the work;

      (c) the conditions under which the work is done.

    Each modern award to be reviewed in its own right

    (5) A 4 yearly review of modern awards must be such that each modern award is reviewed in its own right. However,this does not prevent the FWC from reviewing 2 or more modern awards at the same time.”

[4] It is also necessary to consider provisions of the Act dealing with modern awards for the purposes of the Review.

[5] As observed by the 4 Yearly Review of Modern Awards:Preliminary Jurisdictional Issues Full Bench (Preliminary Issues Full Bench),any variation to a modern award arising from the Review must comply with s.136 of the Act and the related provisions which deal with the content of modern awards (ss.136–155 of the Act). 4 The Preliminary Issues Full Bench stated:

    [40] Any variation of a modern award arising from the Review must comply with the requirements of the FW Act which relate to the content of modern awards. Division 3 of Part 2-3 deals with the terms of modern awards,in particular terms that may or must be included in modern awards,and terms that must not be included in modern awards.”

[6] Section 136 of the Act sets out what can and cannot be included in a modern award –terms that may or must be included. Subdivision B–Terms that may be included in modern awards of Division 3–Terms of modern awards of Part 2-3–Modern awards,sets out the terms which may be included in a modern award,principally in s.139 of the Act. In addition to the matters set out in s.139 a modern award may also include outworker terms (s.140 of the Act);industry specific redundancy schemes (s.141 of the Act);and incidental and machinery terms (s.142 of the Act). Subdivision D–Terms that must not be included in modern awards (ss.150-155 of the Act) deals with terms that must not be included in modern awards.

[7] Section 142 of the Act,which permits the inclusion in modern awards of incidental and machinery terms,provides:

    Incidental terms

    (1) A modern award may include terms that are:

      (a) incidental to a term that is permitted or required to be in the modern award;and

      (b) essential for the purpose of making a particular term operate in a practical way.

    Machinery terms

    (2) A modern award may include machinery terms,including formal matters (such as a title,date or table of contents).”

[8] Section 138 of the Act is also relevant. It provides:

    138 Achieving the modern awards objective

    A modern award may include terms that it is permitted to include,and must include terms that it is required to include,only to the extent necessary to achieve the modern awards objective and (to the extent applicable) the minimum wages objective.”

[9] With respect to this section,the Preliminary Issues Full Bench 5 said:

    [38] Under s.157(1) the Commission must be satisfied that ‘a determination varying a modern award . . . is necessary to achieve the modern awards objective’(emphasis added). In Shop,Distributive and Allied Employees Association v National Retail Association (No 2) (SDA v NRA (No 2)) Tracey J considered the proper construction of s.157(1). His Honour held:

      ‘The statutory foundation for the exercise of FWA’s power to vary modern awards is to be found in s 157(1) of the Act. The power is discretionary in nature. Its exercise is conditioned upon FWA being satisfied that the variation is “necessary”in order “to achieve the modern awards objective”. That objective is very broadly expressed:FWA must “provide a fair and relevant minimum safety net of terms and conditions”which govern employment in various industries. In determining appropriate terms and conditions regard must be had to matters such as the promotion of social inclusion through increased workforce participation and the need to promote flexible working practices.

      The subsection also introduced a temporal requirement. FWA must be satisfied that it is necessary to vary the award at a time falling between the prescribed periodic reviews.

      The question under this ground then becomes whether there was material before the Vice President upon which he could reasonably be satisfied that a variation to the Award was necessary,at the time at which it was made,in order to achieve the statutory objective.

      . . .

      In reaching my conclusion on this ground I have not overlooked the SDA’s subsidiary contention that a distinction must be drawn between that which is necessary and that which is desirable. That which is necessary must be done. That which is desirable does not carry the same imperative for action. Whilst this distinction may be accepted it must also be acknowledged that reasonable minds may differ as to whether particular action is necessary or merely desirable. It was open to the Vice President to form the opinion that a variation was necessary.’

    [39] We are satisfied that s.138 is relevant to the Review. We also accept that the observations of Tracey J in SDA v NRA (No.2),as to the distinction between that which is ‘necessary’and that which is merely desirable,albeit in a different context,are apposite to any consideration of s.138.”[Citations omitted]

[10] The modern awards objective in s.134 of the Act provides:

    134 The modern awards objective

    What is the modern awards objective?

    (1) The FWC must ensure that modern awards,together with the National Employment Standards,provide a fair and relevant minimum safety net of terms and conditions,taking into account:

    (a) relative living standards and the needs of the low paid;and

    (b) the need to encourage collective bargaining;and

    (c) the need to promote social inclusion through increased workforce participation;and

    (d) the need to promote flexible modern work practices and the efficient and productive performance of work;and

    (da) the need to provide additional remuneration for:

        (i) employees working overtime;or

        (ii) employees working unsocial,irregular or unpredictable hours;or

        (iii) employees working on weekends or public holidays;or

        (iv) employees working shifts;and

    (e) the principle of equal remuneration for work of equal or comparable value;and

    (f) the likely impact of any exercise of modern award powers on business,including on productivity,employment costs and the regulatory burden;and

    (g) the need to ensure a simple,easy to understand,stable and sustainable modern award system for Australia that avoids unnecessary overlap of modern awards;and

    (h) the likely impact of any exercise of modern award powers on employment growth,inflation and the sustainability,performance and competitiveness of the national economy.

    This is the modern awards objective.

    When does the modern awards objective apply?

    (2) The modern awards objective applies to the performance or exercise of the FWC’s modern award powers,which are:

        (a) the FWC’s functions or powers under this Part;and

        (b) the FWC’s functions or powers under Part 2-6,so far as they relate to modern award minimum wages.

    Note:The FWC must also take into account the objects of this Act and any other applicable provisions. For example,if the FWC is setting,varying or revoking modern award minimum wages,the minimum wages objective also applies (see section 284).”

[11] Addressing the s.134 considerations,the Preliminary Issues Full Bench said:

    [31] The modern awards objective is directed at ensuring that modern awards,together with the NES,provide a ‘fair and relevant minimum safety net of terms and conditions’taking into account the particular considerations identified in paragraphs 134(1)(a) to (h) (the s.134 considerations). The objective is very broadly expressed. The obligation to take into account the matters set out in paragraphs 134(1)(a) to (h) means that each of these matters must be treated as a matter of significance in the decision making process. As Wilcox J said in Nestle Australia Ltd v Federal Commissioner of Taxation:

      ‘To take a matter into account means to evaluate it and give it due weight,having regard to all other relevant factors. A matter is not taken into account by being noticed and erroneously discarded as irrelevant.’

    [32] No particular primacy is attached to any of the s.134 considerations and not all of the matters identified will necessarily be relevant in the context of a particular proposal to vary a modern award.

    [33] There is a degree of tension between some of the s.134(1) considerations. The Commission’s task is to balance the various s.134(1) considerations and ensure that modern awards provide a fair and relevant minimum safety net of terms and conditions. The need to balance the competing considerations in s.134(1) and the diversity in the characteristics of the employers and employees covered by different modern awards means that the application of the modern awards objective may result in different outcomes between different modern awards.” 6 [Citations omitted]

[12] The Preliminary Issues Full Bench 7 also addressed,in general terms,the relationship between the decision to create a modern award,the historical context8 and the Review:

    “3. The Review is broader in scope than the Transitional Review of modern awards completed in 2013. The Commission is obliged to ensure that modern awards,together with the NES,provide a fair and relevant minimum safety net taking into account,among other things,the need to ensure a ‘stable’modern award system (s.134(1)(g)). The need for a ‘stable’modern award system suggests that a party seeking to vary a modern award in the context of the Review must advance a merit argument in support of the proposed variation. The extent of such an argument will depend on the circumstances. Some proposed changes may be self evident and can be determined with little formality. However,where a significant change is proposed it must be supported by a submission which addresses the relevant legislative provisions and be accompanied by probative evidence properly directed to demonstrating the facts supporting the proposed variation. In conducting the Review the Commission will also have regard to the historical context applicable to each modern award and will take into account previous decisions relevant to any contested issue. The particular context in which those decisions were made will also need to be considered. Previous Full Bench decisions should generally be followed,in the absence of cogent reasons for not doing so. The Commission will proceed on the basis that prima facie the modern award being reviewed achieved the modern awards objective at the time that it was made.”

[13] The approach of the Commission in relation to a significant change was set out by the Security Services Industry Award 2010 4 Yearly Review Full Bench 9 as follows:

    [8] While this may be the first opportunity to seek significant changes to the terms of modern awards,a substantive case for change is nevertheless required. The more significant the change,in terms of impact or a lengthy history of particular award provisions,the more detailed the case must be. Variations to awards have rarely been made merely on the basis of bare requests or strongly contested submissions. In order to found a case for an award variation it is usually necessary to advance detailed evidence of the operation of the award,the impact of the current provisions on employers and employees covered by it and the likely impact of the proposed changes. Such evidence should be combined with sound and balanced reasoning supporting a change. Ultimately the Commission must assess the evidence and submissions against the statutory tests set out above,principally whether the award provides a fair and relevant minimum safety net of terms and conditions and whether the proposed variations are necessary to achieve the modern awards objective. These tests encompass many traditional merit considerations regarding proposed award variations.”

Issues for Determination

[14] The issues that we have been directed to determine are set out in Schedule E to the President’s Amended Directions of 18 November 2014.

[15] Schedule E contained two matters in contest:

      ●a proposal by the Textile,Clothing and Footwear Union of Australia (TCFUA) to vary clause 28.2 of the exposure draft (clause 9.2 of the TCF Award) in respect of consultation about changes to regular rosters or ordinary hours of work;and

      ●a proposed variation of clause 6.3(i) of the exposure draft (clause 13.9 of the TCF Award) in respect of Part‐time employment,which the Australian Industry Group (Ai Group) had not consented to.

[16] Since those Amended Directions were issued,parties with an interest in the TCF Award have continued to meet,with the assistance of Commissioner Lee,in relation to the issues for determination. Those discussions resulted in a “Summary of Submissions”of the interested parties,of 17 November 2014,which were updated following further consultation on 26 November 2014,6 and 21 January 2015 and finally on 17 February 2015 (uploaded to the TCF Award web-page for the Review on 26 February 2015),titled “Updated summary of submissions –revised”(Updated Summary).

[17] The Updated Summary indicated that the Ai Group objection had been withdrawn,leaving only the TCFUA proposal to vary clause 28.2 of the exposure draft (clause 9.2 of the TCF Award) in respect of consultation about changes to regular rosters or ordinary hours of work in contest.

[18] We note that other variations proposed by the TCFUA in its initial submissions 10 and a number of additional issues raised by the employer parties in the course of consultations were not pressed as a result of a consent position ultimately reached between the parties in relation to the technical/drafting matters. That consent position went to the merit/substantive matters raised by the TCFUA,the Ai Group and Australian Business Industrial (ABI) with The NSW Business Chamber Ltd (NSW Chamber) and alleged inconsistencies raised by the Fair Work Ombudsman (FWO). It was agreed that the TCFUA’s proposed variation in respect of consultation about changes to regular rosters or ordinary hours of work would be referred to arbitration for hearing and determination.

[19] The ABI and the NSW Chamber put joint submission and are referred to as the ABI for the purpose of this decision.

TCFUA’s proposal to vary clause 9.2 of the TCF Award (clause 28.2 of the exposure draft) in respect of consultation about changes to regular rosters or ordinary hours of work

[20] Clause 9.2 of the TCF Award is a term setting out requirements for consultation by employers in relation to changes to rosters or ordinary hours of work,as required by s.145A of the Act. The TCFUA seeks to vary clause 9.2 of the TCF Award to tailor the provisions of the model consultation clause in respect of TCF industry,in particular in relation to the requirements regarding provision of information to affected employees. It seeks to do so in three substantive respects:

    1. to add in clause 9.2(b) a requirement that an employer proposing to change an employee’s regular roster or ordinary hours of work do the things required by clause 9.2(b) before introducing the proposed change;

    2. to add to the requirement in clause 9.2(b)(i) that an employer provide to the employee or employees affected and their representatives,if any,information about the proposed change in writing;and

    3. to add a new clause 9.2(c) requiring an employer proposing to change hours to take steps,including the translation of the written materials required by clause 9.2(b)(i) to be translated where the employee’s understanding of written English is limited.

[21] The addition of the new clause 9.2(c) would require the renumbering of clauses 9.2(c) and (d) of the TCF Award.

[22] Clause 9.2,as amended would read:

    9.2 Consultation about changes to rosters or hours of work

      (a) Where an employer proposes to change an employee’s regular roster or ordinary hours of work,the employer must consult with the employee or employees affected and their representatives,if any,about the proposed change.

      (b) The employer must before introducing the proposed change:

        (i) provide in writing to the employee or employees affected and their representatives,if any,information about the proposed change (for example,information about the nature of the change to the employee’s regular roster or ordinary hours of work and when that change is proposed to commence);

        (ii) invite the employee or employees affected and their representatives,if any,to give their views about the impact of the proposed change (including any impact in relation to their family or caring responsibilities);and

        (iii) give consideration to any views about the impact of the proposed change that are given by the employee or employees concerned and/or their representatives.

      (c) Where the employee’s understanding of written English is limited the employer must take measures,including translation of the information required in 9.2(b)(i) into an appropriate language,to ensure the employee understands the proposed change.

      (d) The requirement to consult under this clause does not apply where an employee has irregular,sporadic or unpredictable working hours.

      (e) These provisions are to be read in conjunction with other award provisions concerning the scheduling of work and notice requirements.”

      [Changes underlined]

[23] The variations to clause 9.2 were proposed by the TCFUA in order to individually,and in combination,“give efficacy to the operation of the consultation term as a whole”,in order to ensure that “employees are provided with a meaningful right to be consulted when there is a proposed change to their rosters or ordinary hours of work”. 11

[24] In clause 9.2,the consultation requirements concerning changes to rosters or ordinary hours of work,was added to the TCF Award as a result of the Hours Consultation Full Bench Decision of 23 December 201312 (the Consultation Decision) giving effect to the requirement of s.145A of the Act,introduced through the Fair Work Amendment Act 2013 that all modern awards must include a term requiring employers to consult employees about a change to their regular roster or ordinary hours of work.

[25] The term,as it appears in clause 9.2 to the TCF Award was added to all other modern awards,13 being given effect in the nature of a model clause.

[26] Although tailored provisions were sought in respect of some awards,a model clause approach was taken by the Hours Consultation Full Bench (the Consultation Full Bench) in light of the time constraint imposed by the transitional provision and the limited material before the Consultation Full Bench in relation to specific awards.14 The Consultation Full Bench decided that proposals to tailor the draft relevant term to the circumstances of a particular modern award should be the subject of further consideration in the Review and be determined on the basis of evidence presented by any interested party.15

[27] The Consultation Full Bench dealt specifically with a proposal from the Australian Council of Trade Unions (ACTU) and a number of individual unions for a consultation provision to give effect to s.145A of the Act generally which sought that the information required to be provided to the affected employees and their representatives for the purpose of consultation be provided “in writing”and that in certain circumstances the employer should be required to translate such information into an appropriate language.16 The ACTU proposed a provision in the same terms as the new clause 9.2(c) now proposed by the TCFUA in respect of the TCF Award,save for the referencing of the “information”to clause 9.2(b)(i) in the TCFUA proposed clause 9.2(c).

[28] The Consultation Full Bench was not persuaded to include the provisions sought. It found that:

    “The relevant term is intended to operate in a range of circumstances and across different industries and businesses. The requirements proposed would impose an unwarranted regulatory burden on business (see s.134(1)(f)) and would be particularly burdensome for small and medium sized businesses (see s.3(g)).”17

[29] The Consultation Full Bench also noted that the TCFUA and “Automotive,Food,Metals,Engineering,Printing and Kindred Industries Union”known as the Australian Manufacturing Workers’Union (AMWU) supported the inclusion of these provisions in awards in which they had an interest and that each union put their proposal on the basis of what was said to be “widespread non-compliance”and would “assist enforcing award compliance”. The Consultation Full Bench found that on the limited material before it,it was not prepared to include the provisions sought in those modern awards. It noted that this “issue can be the subject of further consideration in the 4 yearly review of modern awards”.18

[30] It is clear that the Consultation Full Bench contemplated consideration of the tailoring of the model clause in relation to consultation about changes to regular rosters or ordinary hours of work on a specific award basis in the course of the Review,including the variations now proposed by the TCFUA.

[31] To the extent that the variations proposed by the TCFUA constitute a significant change to the consultation provision concerning a proposed change to an employee’s regular roster or ordinary hours of work which departs from the common minimum standard across modern awards and a departure from the prima facie position that the modern award term being reviewed achieved the modern awards objective at the time that it was made,the variation sought must be “supported by a submission which addresses the relevant legislative provisions and be accompanied by probative evidence properly directed to demonstrating the facts supporting the proposed variation”. 19 Proceeding on the basis that “prima facie the modern award being reviewed achieved the modern awards objective at the time that it was made”,20 the Fair Work Commission (the Commission) needs to be persuaded to give effect to the variation to the extent necessary to achieve the modern awards objective.

[32] To comply with s.138 of the Act,the formulation of terms which must be included in modern awards or terms which are permitted to be included in modern awards must be in terms “necessary to achieve the modern awards objective”. In the Review the proponent of a variation to a modern award must demonstrate that if the modern award is varied in the manner proposed then it would only include terms to the extent necessary to achieve the modern awards objective (see s.138). 21 What is “necessary”in a particular case will involve a judgment based on an assessment of the considerations in ss.134(1)(a) to (h),having regard to the “submissions and evidence directed to those considerations”.22 The TCFUA must demonstrate that if the TCF Award is varied in the manner proposed then it would only include terms to the extent necessary to achieve the modern awards objective.

[33] The TCFUA’s variations were supported by the ACTU and The Australian Workers’Union (AWU). They were opposed by the Ai Group and ABI.

Evidence

[34] The TCFUA relied on the witness evidence from Ms M O’Neil,National Secretary of the TCFUA and Ms L Nguyen an Organiser and Education Outreach Officer of the Victoria/Queensland Branch of the TCFUA.

[35] The admission of some of their evidence,in the form of witness statements,was challenged on several grounds:

      ●Ms Nguyen’s evidence referred,with one exception,to unidentified workplaces,which prevented those opposing the variations to verify the evidence asserted or to challenge the assertions with evidence or instructions from the relevant,unnamed employers;

      ●Ms Nguyen’s evidence detailed specific events without disclosing the source of her knowledge of the events and appeared to be hearsay evidence;

      ●Ms O’Neill’s evidence contained numerous assertions which could be properly described as “opinion evidence”. If her evidence was to be advanced as expert evidence,her statement “has not established the proper basis for expert witness status”and the evidence,in any case,“does not meet the criteria for expert evidence”.

[36] In the course of the hearing,we decided to admit the evidence,subject to submissions as to weight. To the extent that the evidence involves matters which those opposing the variations did not have an opportunity to challenge,was hearsay evidence and reflects opinion without the identification of specific circumstances,probative value of the evidence is limited. Such evidence falls short in any case of establishing evidence of circumstances applying generally in the TCF industry.

[37] Ms Nguyen gave evidence that many outworkers and factory workers in the TCF industry are from non-English speaking backgrounds (more than half in her experience) and have limited English language and literacy and many are award reliant. In her experience information was only provided in English in the majority of workplaces. She also gave evidence,that it is common for employers to announce change without consultation and use a worker or supervisor to communicate details of the change to workers.

[38] Ms Nguyen also gave evidence in relation to a specific event in relation to three separate employers. To the extent that the evidence did not disclose the employer and other parties were unable to test the evidence,it carries no weight. In relation to the two instances involving a change in working hours,the evidence was that the employer in each case changed working hours and advised the employees of the change. In each case the evidence was that there was no consultation at all about the changes.

[39] Ms O’Neil’s evidence was based on her lengthy experience as an officer of the TCFUA in various capacities. In her experience,key characteristics of the industry include:

      ●a large percentage of the TCF workforce coming from non-English speaking backgrounds (65-70% on her estimation),a majority of whom are women;

      ●a significant number of award reliant and low paid workers within the industry,who have a relatively low level of bargaining power;

      ●the structuring of the industry around both traditional manufacturing and outwork and the existence of “sweatshops”;and

      ●exploitation of TCF outworkers through persistent and widespread non-compliance with award and legislative obligations.

[40] We accept that Ms O’Neil’s evidence was informed by her long involvement in the TCF industry and a depth of understanding of the industry arising from that experience. We note,however,that her evidence was general in nature and shed little light on specific circumstances involving the operation of clause 9.2 of the TCF Award since it commenced on 1 January 2014.

[41] Ms O’Neil’s evidence was that:

      ●many members undertaking outwork from non-English speaking backgrounds have “limited English language spoken and written skills”;and

      ●whilst some TCF outworkers may develop some “English language conversational skills,many cannot read or understand written English with any reasonable level of comprehension”.

[42] Ms O’Neil gave evidence that without the variations proposed,clause 9.2 is likely to be ineffective because TCF employers have not followed the consultation procedures in the TCF Award at all,or only in a cursory way and employees do not understand or enforce their award rights. Her evidence was that disputes about ordinary hours of work,rosters and shift arrangements are common in the TCF industry.

[43] Ms O’Neil provided no specific evidence of the operation of and disputes about clause 9.2 since it was inserted into the award in January 2014.

[44] ABI brought evidence from:

      ●Mr A Jones,a Paralegal with ABI Lawyers &Advisors Pty Ltd:through Mr Jones,ABI relied on a report dated 9 September 1997 of the Industry Commission,Report No. 59 (the IC Report) into the TCF industry and the Australian Bureau of Statistics (ABS) 2011 Census data concerning proficiency in speaking English of TCF industry employees and introduced information from translation services as to the cost of translation.

      ●Mr T Butler,Director of J Robins Manufacturing Pty Ltd,whose evidence was that the company is a footwear manufacturer with 55 employees whose English language skills vary from poor to fluent and only five of whom speak English as their first language. Translation of materials might involve up to nine languages. His evidence was that the company communicates predominantly verbally,followed up by a “calendar poster”,has employed English Second Language (ESL) teachers and provided English classes to employees and utilises co-workers to clarify communication with those with poor comprehension of English. He also gave evidence that there are times when rosters or ordinary hours of work needed to be changed,sometimes within a short time frame. In such cases changes are communicated to and discussed with the teams concerned,seeking feedback/ suggestions.

      ●Mr R Wilkinson,Company Secretary and Director of Akubra Pty Ltd,whose evidence was that Akubra employs 85 employees,all of whom are from an English speaking background. As a matter of best practice,when introducing changes to ordinary hours of work,rosters or other workplace matters,Akubra confirms changes in writing but do not ordinarily write to the employees during the consultation process.

      ●Mr T Hicks,Regulation and Economics Advisor,The NSW Chamber of Commerce Ltd,gave evidence about the construction of a table utilising the 2011 Census data concerning proficiency in speaking English of TCF industry employees.

[45] ABI did not rely on statements filed by Mr B Cloros or Mr J Kyriakidis.

Submissions

TCFUA

[46] The TCFUA submitted that in the current proceedings,the Commission has the requisite power to determine for the TCF Award a consultation clause which departs from the terms of the model provision,as long as the clause is consistent with the requirements of s.145A of the Act,and satisfies the statutory tests governing the Review,including the provisions regarding the content of modern awards (in particular,ss.136,139 and 142). It submitted that s.139(1)(j) provides for a term about procedures for consultation and that the Commission is also empowered under s.142 to include both incidental and machinery terms.

[47] The TCFUA submitted that its proposed variations:

    “ would be consistent with the terms of section 145A;

  • would be incidental to clause 9.2 (a term of a kind mentioned in section 145A) [s142(1)(a)];and


  • essential for the purpose of making that term (9.2) operate in a practical way [s142(1)(b)].”


[48] The TCFUA submitted that the Commission should exercise its discretion under s.156(2)(b) to vary the TCF Award term as proposed by it. It submitted that the discretion in s.156(2) is expressed in “general terms”but is constrained by a number of other provisions in the Act including,s.134 (Modern awards objective) and s.138 (Achieving the modern awards objective).

[49] The TCFUA contended that there are four key mandatory requirements in clauses 9.2(a) and 9.2(b):

    “(i) The obligation on an employer to consult with affected employee/s (and their representatives,if any) about a proposed change to an employee’s regular roster or ordinary hours [9.2(a)];

    (ii) The provision of information to the affected employee/s (and their representatives,if any) by the employer about the proposed change [9.2(b)(i)];

    (iii) The invitation by the employer to the affected employee/s (and their representatives,if any) to give their views about the impact of the proposed change,including in relation to their family and caring responsibilities [9.2(b)(ii)];and

      (iv) The obligation on the employer to give consideration to any views about that impact of the proposed change given by the affected employee/s (and/or their representatives).” 23

[50] The TCFUA submitted that the consultation obligations under clause 9.2 of the TCF Award cannot be discharged unless each element is satisfied,and satisfied in a genuine way by the employer.

[51] In support of its proposed variations,the TCFUA relied on the nature of the TCF industry and its workforce that it is “highly award dependent”,“characterised by widespread and persistent non-compliance with minimum wages,conditions and health and safety standards”and “structured around both traditional factory manufacturing and a significant outwork sector”. The TCFUA submitted that industrial tribunals at both federal and State level,as well as federal and State governments,have for “many decades acknowledged the particular vulnerabilities faced by classes of TCF workers,and provided specific regulation for the TCF industry in an attempt to ameliorate such adverse effects”.

[52] In the context of the particular nature of the TCF industry and its employees,the TCFUA relied on the observations of the Preliminary Issues Full Bench that:

    “. . . the diversity in the characteristics of employers and employees covered by different modern awards means that the application of the modern awards objective may result in different outcomes between different modern awards.”

and that:

    “Different combinations or permutations of provisions may meet the modern awards objective.” 24

[53] In relation to the variation to clause 9.2(b) by inserting the words “before introducing the proposed change”,the TCFUA submitted that despite the intended operation of the consultation clause to be triggered prior to the proposed change being instituted as noted by the Consultation Full Bench, 25 in the TCFUA’s experience,there is “widespread non-compliance with these provisions in the TCF industry”. It submitted that the TCFUA’s evidence “illustrates that much more commonly,TCF industry employers implement changes to rosters and changes to hours of work,and then simply advise affected employees of those changes”. The TCFUA submitted that the additional words clarify “when the obligation is triggered and therefore aid industry compliance with the consultation provision,an important consideration if the clause is to have the beneficial practical effect intended by Parliament”in legislating for s.145A.

[54] In relation to the proposed variation to clause 9.2(b)(ii) requiring the provision of information about the proposed change “in writing”,the TCFUA submitted it is “directed to ensuring that the required information regarding the proposed change is communicated clearly to the affected employee/s and their representatives (if any)”.

[55] The TCFUA submitted that the variation would enhance the operation of the clause by:

      ●formalising the communication and reducing the potential for “confusion or ambiguity as [to] the exact nature of the change being proposed”;

      ●better placing the employee to “seek advice and assistance”;and

      ●ensure that “there is a written record of the proposed change”.

[56] In relation to the insertion of a new clause 9.2(c) which requires translation of the written information in certain circumstances,the TCFUA submitted that the requirement is intended to assist employees for whom English is not a prime language to actually understand the information provided to them by their employer,being in a practical position to seek advice and having a genuine opportunity to be consulted. It relied on difficulties facing TCF workers from a non-English speaking background “when confronted with information in English given to them by their employers”.

[57] In further support of its proposed variations,the TCFUA relied on a history of similar safeguards in TCF industry award regulation which,it submitted,recognised the particular vulnerabilities faced by particular classes of workers in the TCF industry. It referred to the following provisions of the TCF Award:

      ●Award flexibility (clause 7.8);

      ●Facilitative provisions (clause 8.4(a)–Procedure for seeking majority or individual agreement);

      ●Consultation (clause 9.1(b)(iii)–Employer to discuss change);

      ●Payment by results (clause 23.2(c)–Calculation of PBR earnings and 23.7–Alteration of time standards);and

      ●Schedule F–Outwork and related provisions (Appendix to Schedule F–Information to be given to outworkers in clauses F4.3 and 4.5).

[58] The TCFUA submitted that its proposed variations to clause 9.2 meets the modern awards objective in s.134 of the Act,contending that,absent the variations,clause 9.2 will “not operate to achieve the legislative purpose for its inclusion”in the TCF Award to “assist award dependent employees to better reconcile their family and work responsibilities in circumstances where their employer proposes to change their roster or ordinary hours of work”. As a result,it submitted,“a fair and relevant minimum safety net of terms and conditions will not be ensured for the TCF industry”,in light of the matters which characterise the TCF industry.

[59] In relation to the s.134 matters,the TCFUA submitted that:

      ●the variations are necessary to meet the needs of the TCF workers,who are predominantly low paid,to balance their work and family responsibilities through “the inclusion of additional safeguards in the model consultation clause to ensure,as far as possible that workers affected by a proposed roster or hours of work change,can fully understand,and respond to the proposal being mooted”(s.134(1)(a) of the Act);

      ●for those “workplaces which do have the collective industrial strength and desire to bargain with the employer,the minimum terms of the TCF Award invariably form the floor from which those negotiations take place”(s.134(1)(b) of the Act);

      ●its proposed variations to clause 9.2 would “promote social inclusion by enhancing a provision designed to assist employees to balance their work and family/carer responsibilities”(s.134(1)(c) of the Act);

      ●its proposed variations to clause 9.2 will have “no negative impact on productivity in the TCF industry”but if strengthened to operate as intended,clause 9.2 may “prevent the premature departure”of employees affected by the change to their hours and the loss of skilled workers. It submitted that a similar consideration would arise in respect of employment costs. The TCFUA conceded that some (not all) of its proposed variations to clause 9.2 may “increase the regulatory impact on TCF employers”,but submitted that any increase would be “modest”(s.134(1)(f) of the Act);

      ●its proposals would “assist in employees understanding and activating their rights”under clause 9.2 and the “provision of information in writing (including translations) to affected employees would act as a record of the proposed change and may decrease the level and parameters of disputation arising under the clause”(s.134(1)(g) of the Act);

      ●its proposed variations to clause 9.2 of the TCF Award would have no relevance to the considerations in ss.134(1)(d),(da),(e) and (h) of the Act.

[60] The TCFUA also submitted that the variations will also assist in compliance with the consultation clause overall,promoting that part of the object of the Act in s.3(c).

Ai Group

[61] Ai Group submitted that:

      ●The TCFUA had “failed to demonstrate that the proposal is consistent with the statutory requirements for variation to a modern award including the modern awards objective and the definition of incidental terms”;

      ●The variations “fall short of the threshold requirements”as outlined by a Full Bench of the Commission in its Preliminary Jurisdictional Issues Decision 26 (Preliminary Issues Decision);and

      ●The “subject matter of the variation was squarely considered and determined by a previous and recent Full Bench decision of the Commission”.

[62] Ai Group submitted that the “proposed variation represents a substantial and unnecessary departure from the terms of the model clause”,that is “unsupported by evidence that the terms of the TCF Award do not satisfy the modern awards objective,and contrary to the TCFUA’s submissions,is not necessary to ensure meaningful operation of the award or the consultation obligations”.

[63] It submitted that the TCFUA had “failed to overcome the relevant statutory hurdles in order to satisfy the Commission that the proposed variations are necessary to achieve the modern awards objective”that:

      ●The relevant award can include terms only to the “extent necessary to achieve the modern awards objective”(s.138 of the Act);

      ●The Commission must ensure that modern awards,together with the National Employment Standards (NES),“provide a fair and relevant minimum safety net of terms and conditions”,taking into account the range of factors,listed in ss.134(1)(a)–(h) of the Act;and

      ●A modern award “must only include terms that are permitted or required by the Act”(s.136(1)),may include “terms about any of the matters listed at s.139(1) or incidental and machinery terms (s.142)”.

[64] Ai Group submitted that the TCFUA had failed to establish that the proposed variations satisfy s.142(1)(b):in “order to reach a conclusion that the proposed term is essential,the Commission must first be satisfied that clause 9.2 is,presently,not operating in a practical way”. Nothing in the evidence relied upon by the TCFUA suggested that,absent the variations proposed,the clause is not operating practically.

[65] Ai Group submitted that:

    “Accordingly,the Preliminary Jurisdictional Issues decision establishes the following key threshold principles:

      ●A proposal to significantly vary a modern award must be accompanied by submissions addressing the relevant statutory requirements and probative evidence;

      ●The Commission will proceed on the basis that a modern award achieved the modern awards objective at the time that it was made;

      ●Relevant previous Full Bench decisions will be taken into account and generally followed,unless there are cogent reasons for not doing so;and

      ●The variation sought must be necessary to achieve the modern awards objective,and not one that is merely desirable.” 27

[66] It submitted that “the TCFUA has failed to meet each of these threshold requirements”.

[67] In relation to s.134 matters,Ai Group submitted:

      ●that it rejected the TCFUA contention that the Preliminary Issues Decision “mandates a broad reading of the term ‘relative living standards and the needs of the low paid’,such that it allows the Commission to consider more than just wage,cost of living and other financial metrics,but also the needs of the low paid more generally,including such matters as ‘the capacity for low paid workers to balance their work and family responsibilities’.”In any case,the TCFUA proposed variations would “not prevent the impact to carer/family responsibilities which the TCFUA claims arise from the unilateral change of working arrangements”. It submitted that it “is a neutral factor in the Commission’s consideration of the TCFUA’s claim”. (s.134(1)(a) of the Act);

      ●the absence of the terms proposed by the TCFUA would,if the “essential need for a provision in the terms sought by the TCFUA exists,in fact incentivise parties to collectively bargain for a term that provides additional ‘safeguards’”(s.134(1)(b) of the Act);

      ●the TCFUA had “failed to mount any evidence in support of its claim that the proposed variations would promote social inclusion. The assertions made are merely speculative,without reference to any evidentiary basis”(s.134(1)(c) of the Act);

      ●the “imposition of the additional obligations proposed runs contrary to the need to promote flexible work practices”. An employer is “entitled to vary an employee’s ordinary hours of work and regular rosters”and having “complied with the current clause 9.2,an employer should be able to exercise that right without needing to first comply with additional onerous obligations”(s.134(1)(d) of the Act);

      ●the proposed variations “may deter an employer from making changes to its operations,as noted above. Such changes are often necessary and important in improving productivity and it is legitimate to assume are undertaken for genuine business purposes. To this extent,the TCFUA’s claim would adversely impact upon business”(s.134(1)(f) of the Act);

      ●clause 9.2,as presently worded,“is simple and easy to understand. There is no evidence before the Commission that its terms have given rise to any ambiguity or confusion”(s.134(1)(g) of the Act);

      ●to the extent that “the matters arising from ss.134(1)(b),(d) and (f) impact upon employment growth,inflation and the sustainability,performance and competitiveness of the national economy,this is also a relevant consideration that runs contrary to the TCFUA’s claim”(s.134(1)(h) of the Act);and

      ●sections 134(1)(da) and (e) of the Act are also neutral considerations. 28

[68] Ai Group submitted that the three elements of the TCFUA proposed variations were squarely put to and considered by the Consultation Full Bench in those proceedings. 29

[69] Ai Group submitted that the granting of the third element of the TCFUA’s claim would be “anomalous if the second element does not succeed. That is,if the information is not required to be provided in writing,considerations as to any limitation which an employee might have regarding understanding of written English become wholly irrelevant”.

[70] Ai Group concluded that the TCFUA’s claim is a “re-agitation of matters recently considered by a Full Bench of this Commission”,seeking a decision that “departs from that determination,in the absence of cogent reasons for doing so”. Ai Group submitted that this is “clearly inconsistent with the approach to be adopted by the Commission in this review”.

ABI

[71] ABI submitted that when considering the merit basis to make variations,the Preliminary Issues Full Bench distinguished between cases “where the need for an award variation is self-evident”and “where significant award changes are proposed”. It submitted that the TCFUA proposed variations of clause 9.2 fell into the latter category and that the TCFUA is required to “adduce merit based evidence of a probative nature to show that if its claims were granted the modern award in question at the conclusion of the 4 Yearly review (inclusive of the claim) achieves the modern awards objective (s.134)”.

[72] ABI conceded that the fact that the Consultation Full Bench “declined to include variations as sought by certain parties into the ‘model term’does not necessarily prevent the Commission from implementing similar or identical provisions into an individual award”,but submitted that the “Full Bench’s comments and reasoning in the Consultation Decision are important and,without sufficient reason to depart,persuasive”.

[73] In respect of the first element of the proposed variation,ABI submitted that the current clause is not ambiguous and does not require clarification. It submitted that a proper construction of clause 9.2 of the TCF Award is that the “obligation to consult is triggered at the time an employer proposes to change an employee’s regular roster or ordinary hours [of] work”,as is clear in clause 9.2(a). It submitted that there is no “ambiguity arising from the terms of clause 9.2 as far as when the consultation process must occur”and that the “provision operates in all other modern awards,apparently without issue”. ABI further submitted that the construction and operation of clause 9.2 was considered by the Consultation Full Bench.

[74] ABI also submitted that the TCFUA had not advanced a “merit based”argument to support the first element of its proposed variation. It submitted that the TCFUA had not demonstrated that if,varied in the manner proposed,clause 9.2 would only include terms to the extent necessary to achieve the modern awards objective. It submitted that whilst the TCFUA had asserted,in relation to the first element of its variation,that there is widespread non-compliance with award provisions in the TCF industry,“employers in the TCF industry do not comply with clause 9.2”and “consultation around changes to rosters and working hours is an area of ‘common disputation within the TCF industry’,”the TCFUA has brought no probative evidence to support the assertions made.

[75] In relation to the second element of the proposed variation –“in writing”–ABI submitted that it appears uncontroversial that the TCF Industry has particular characteristics which distinguish it from other industries:a higher proportion of employees who are born overseas and who come from non-English speaking backgrounds. It submitted that:

    “However,the fact that many employees in the TCF Industry come from a non-English speaking background does not necessarily provide a basis for a finding that:

      (a) The current mechanisms of verbal consultation are somehow not working effectively or are insufficient or inappropriate;or

      (b) Verbal consultation generally is not an effective communication method;or

      (c) The current Award is not meeting the modern awards objective.”

[76] ABI submitted that it is “not the case that every TCF business in Australia employs people who have poor English language skills”and it cannot be said that “macro-level data about the TCF Industry warrants imposing additional obligations on those businesses whose workforce composition is more consistent with the broader Australian workforce”. It submitted that the requirement to inform employees of a change in hours in writing represents an “unreasonable and unnecessary burden on those employers”.

[77] ABI submitted that the evidence demonstrates that “employers utilise a range of techniques to ensure that they can communicate with [employees] effectively in circumstances where an employee has difficulties understanding the English language”and there was no evidence which justifies a finding that “such techniques are inadequate”. ABI submitted that the TCFUA had not “adduced probative evidence sufficient to demonstrate that there is any problem with the current verbal consultation which occurs within the TCF Industry”.

[78] ABI submitted that the second element of the variation proposed cuts across a number of the factors set out in s.134(1) of the Act:in particular it “will likely have a negative effect on the flexibility of modern work practices and the efficient and productive performance of work by limiting an employer’s ability to adapt to changing business circumstances”(s.134(1)(d) of the Act) and have a “negative impact on business,including productivity,employment costs and the regulatory burden”(s.134(1)(f) of the Act). The requirement to “provide information in writing will create additional costs”,“time delays for the employer in exercising their ability to implement change”and “represents an unreasonable regulatory burden on businesses”.

[79] ABI also submitted that the third element of the proposed variation –translation –“cuts across a number of the factors”set out in s.134(1) of the Act:in particular s.134(1)(d) and s.134(1)(f) of the Act.

[80] ABI submitted that its evidence showed that the translation requirement will “impose additional costs and time delays for employers in exercising their ability to implement change”,particularly where “employers have employees from a large number of different backgrounds”. Against that,it submitted,there was no “evidence to support a finding that clause 9.2 is not currently operating ineffectively”in the absence of the translation requirement.

Decision in relation to TCFUA’s proposed variation of clause 9.2

[81] The TCFUA’s case relies on particular characteristics of the TCF workforce and the TCF industry in support of its proposed variation of clause 9.2:low paid employees with a high level of award reliance,a relatively high proportion of employees who are female and from non-English speaking backgrounds,widespread non-compliance with award and legislative provisions and an industry with a mix of traditional manufacturing and outwork. Whilst there is acceptance by some employer organisations of some of these characteristics—for example ABI accepts that the TCF industry has a “higher proportion of employees are born overseas”and a “higher proportion of employees who come from non-English speaking backgrounds” 30—the evidence of the TCFUA in relation to these characteristics is general in nature and based upon the observation of its witnesses from their experience in the TCF industry.

[82] The TCFUA’s evidence was largely general in nature,and provided little information about the operation of clause 9.2 of the TCF Award,in terms of its practical operation in relation to specific employers,since it commenced operation on 1 January 2014. The only evidence going to specific instances of consultation about changes in regular rosters and ordinary hours of work since that time is found in two instances in which Ms Nguyen related what was told to her in relation to those two instances 31 and instances in relation to four unidentified employers recounted by Ms O’Neil in re-examination,all of which involved a failure to consult at all32 and in one case also involved a failure to provide information other than in English.33 Given the identities of the employers were not disclosed,despite requests to do so,34 no opportunity was provided to those opposing the variation to test the evidence about the circumstances described. No weight can be afforded to the specific content of such evidence.

[83] Additional evidence was given by Ms Nguyen in relation to consultation under clause 9.1 in respect of an identified employer. 35 To the extent the evidence was of what the witness was told,it was not evidence as to the facts conveyed and the evidence did not go directly to consultation required by clause 9.2 of the TCF Award.

[84] The TCFUA’s evidence was largely of the nature of “many people working in the industry” 36 with particular characteristics or generalised statements –“the large percentage”,“significant numbers”,“persistent and widespread”and “common”.37 The only quantification provided in the evidence of Ms Nguyen was that of the workplaces she organises or visits,more than half of the workers are from a non-English speaking background38 and the majority of those workplaces rely on the NES and the TCF Award.39 Ms O’Neil provided evidence on the basis that the TCFUA’s data base and in her own experience that at least 65-70% of workers in the TCF industry come from non-English speaking backgrounds and universally most TCF outworkers and “sweat shop”workers come from countries other than Australia.40

[85] The ABI’s evidence from TCF employers was of limited scope and usefulness. In the case of Mr Butler,it reflected a limited understanding of the requirements of clause 9.2 41 and in the case of Mr Wilkinson,it reflected a view as to the potential implications of the TCF Award on his company in circumstances where the TCF Award does not apply whilst a 2013 enterprise agreement operates.42

[86] The evidence of Mr Jones through the IC Report into the TCF industry and the 2011 Census data concerning proficiency in speaking English of TCF industry employees put some quantitative information before the Commission (although very dated in relation to the IC Report):

      ●In May 1997,the TCF workforce was slightly older than the workforce of the manufacturing industry as a whole and All industries

      ●In May 1997,59% of the TCF workforce was female,a substantially higher proportion than found in the manufacturing industry as a whole and All industries. More contemporary data,published in the Commission’s Research Report 3/2013—Manufacturing industry profile—records that in November 2012,51% of the TCF workforce was female,a substantially higher proportion than found in the manufacturing industry as a whole and slightly higher than for All industries. 43

      ●In May 1997,42% of the TCF workforce was married females,a substantially higher proportion than found in the manufacturing industry as a whole and All industries.

      ●In May 1997,49% of the TCF workforce was born in a country with a non-English speaking background,a substantially higher proportion than found in the manufacturing industry as a whole and All industries.

      ●The now dated IC Report noted that it was “notoriously difficult to obtain reliable data on homeworking employment”, 44 noting a range of estimates from 330,000 in 1994 estimated by the TCFUA and 50,000 estimated by the Australian Tax Office in 1991,45 which the IC Report found to be unlikely in either case –too high and too low respectively.

      ●The 2011 Census data,disclosed that 62% of Textile,Leather,Clothing and Footwear manufacturing employees spoke only English (82% for employees in All industries),25% spoke a language other than English but spoke English well or very well and 12% spoke a language other than English and spoke English not well (11%) or not at all (1%).

[87] The 2011 Census data,whilst recording a subjective self-assessment of spoken English skills by employees in the TCF industry,was the only quantitative evidence before us as to spoken language skills. There was no evidence as to written language skills of TCF employees,either in English or the employees’preferred spoken language.

[88] There was considerable disagreement in relation to the ABI calculations,based on the 2011 Census data,that only 12% of Textile,Leather,Clothing and Footwear manufacturing employees spoke a language other than English and spoke English not well (11%) or not at all (1%). The TCFUA submitted that the information was inconsistent with the experience of its witnesses. The TCFUA raised several issues concerning the reliance which could be placed on the information from the 2011 Census data,including the subjective nature of the assessment of English language skills,the absence of context as to the purpose of use of such skills and the fact that the 2011 Census form was provided in English only. 46 Further it submitted that the information related to any workers in the industry and not to those persons in occupations likely to be covered by the TCF Award. The TCFUA utilised the 2011 Census data to calculate information in relation to English language skills of those occupational groups (technicians and trades workers,machinery operators and labourers) covered by the TCF Award,estimating that at least 54% of those workers either do not speak English very well or not at all.47

[89] There is some validity to the TCFUA’s proposition that the 2011 Census data has deficiencies for the purpose relied on by ABI. We accept that the responses represent a subjective self-assessment of English language skills and some unstated view as to the purpose of the use of the English language,as noted by the ABS. 48 The relevant question in the 2011 Census was question 17—“How well does the person speak English?”which does not provide a context for the use of spoken English. Further,it relates only to the respondent speaking English and not their comprehension of spoken English (or their written English skills).

[90] The TCFUA’s occupationally based calculation that at least 54% of TCF workers either do not speak English very well or not at all,however,is mathematically flawed. It is derived by adding the percentages of each of the three separate occupational groups (12%,22% and 20% respectively –a total of 54%) whereas the percentage of the total number of employees in the occupations who either do not speak English very well or not at all should be derived by calculating the number of persons with those language skills in the three occupations by the total number of employees in those occupations –a figure of 19.3% (which,as a matter of mathematical logic,falls within the range of the 12% –22% for the three separate groups within the total group). Whilst higher than the ABI figure of 12%,the 19.3% arises from the TCFUA’s occupational analysis of the 2011 Census data,rather than the 54% estimate the TCFUA advanced.

[91] No firm conclusion is available from the evidence as to the proportion of TCF Award covered employees with no or limited spoken English language skills. The TCFUA’s witnesses surmised from their experience that the ABI’s 2011 Census data based estimate is too low but provides no quantitative assessment on the issues (compared with estimates of the proportion of TCF workers from a non-English speaking background 49). The 2011 Census data provides quantitative information but has deficiencies of the type noted above. It is likely that the 2011 Census data (even occupationally adjusted) understates the extent of deficiencies in spoken English skills for the purpose of engaging in consultation about workplace conditions. The TCFUA’s estimate was based on the 2011 Census data and their witnesses’evidence as to the non-English speaking background,which suggest that a majority of TCFUA workers have inadequate spoken English skills for the purpose of such consultation,overstates the position. The best finding available from the evidence,a very general finding,is that a substantial proportion of TCF workers,although not approaching a majority of them,have inadequate spoken English skills for the purpose of consultation. There was no evidence as to their written English skills.

[92] The TCFUA relied on award provisions in the TCF Award said to reflect recognition by industrial tribunals of particular characteristics of the industry or recognition in the TCF Award of similar award requirements to those now sought. Some of the provisions relied on in support of that submission,being inserted for particular reasons relevant to the provision and common to modern awards, 50 provide no support for the proposition that it is necessary in order to achieve the modern awards objective to give effect to the proposed variation of clause 9.2. However,we accept that the provisions in relation to consultation regarding major workplace change (clause 9.1(b)(iii)) and outworkers (Schedule F),specific to the TCF Award,were inserted having regard to the particular circumstances of employees in the TCF industry.

[93] We accept that the Commission has,in the past accepted the existence of particular characteristics of the TCF industry and its workforce and crafted some award provisions accordingly. 51 Whilst we accept that the TCFUA’s evidence as to the characteristics of the industry is accurate in broad terms,the TCFUA’s case does not establish how those characteristics support a finding that clause 9.2 of the TCF Award is not meeting the modern awards objective in its current form and how the variations proposed would better meet those objectives,having regard to the nature of the TCF industry and the workforce within it. The TCFUA put no evidence as to any deficiency in relation to the operation of clause 9.2 associated with the absence of the three elements of the variation it proposes. The three specific anonymous examples in the evidence of Ms Nguyen,where one instance involved clause 9.1 and the other two involved instances where,on Ms Nguyen’s evidence,the employer did not consult the employees at all under clause 9.2,but simply informed workers of a change in their hours.

[94] The TCFUA also placed considerable weight on non-compliance with the TCF Award in the TCF industry. However,even accepting that there is a higher than usual level of award non-compliance in the TCF industry,the TCFUA did not relate such non-compliance to its proposed variation.

[95] The issue of non-compliance was raised at two levels:

      ●“widespread and persistent non-compliance with minimum wages”and legislative conditions; 52 and

      ●“widespread non-compliance”with clause 9.2. 53

[96] However,no evidence was put to us at all which goes directly to the operation of clause 9.2 of the TCF Award which establishes that the current terms of clause 9.2 are associated with marked non-compliance. As already noted,the specific examples in the evidence of Ms Nguyen and Ms O’Neil which related to clause 9.2,involved employers failing to consult employees at all under that clause. No explanation was provided by the TCFUA as to how the variation of clause 9.2 it proposes would address or remedy non-compliance of the type brought to our notice in the TCFUA evidence –either generally or specifically in relation to the consultation requirements within clause 9.2 of the TCF Award. Ms O’Neil conceded that the variation proposed by the TCFUA does nothing,by itself,to improve non-compliance in the sweatshop sector. 54

Proposed variation 1 –to clause 9.2(b) –“before introducing the proposed change

[97] The current terms of clause 9.2 in the TCF Award reflect those determined for modern awards generally by the Consultation Full Bench,which made it clear that the “requirement in s.145A is to consult employees about proposed changes to ‘their regular roster or ordinary hours of work’,in order that a genuine opportunity be provided for the affected party to attempt to persuade the decision maker to adopt a different course of action”. 55

[98] The TCFUA proposed the inclusion of the additional words –“before introducing the proposed change”–in clause 9.2(b) in light of what it described as widespread non-compliance with these provisions in the TCF industry in order to “clarify when the obligation is triggered and therefore aid industry compliance with the consultation provision”.

[99] The TCFUA’s evidence of such non-compliance was that TCF industry employers implement changes to rosters and changes to ordinary hours of work,and then simply advise affected employees of those changes –there is no compliance at all with the consultation obligations in clause 9.2 of the TCF Award. 56 No evidence was provided of uncertainty as to when the obligation to consult under clause 9.2 of the TCF Award was triggered.57

[100] We are not persuaded that the current clause 9.2 is uncertain as to when the consultation obligation in clause 9.2 arises. It is clear from the words of clause 9.2 that the obligation to consult arises “[w]here an employer proposes to change an employee’s regular roster or ordinary hours of work”and the obligation is to consult about “the proposed change”.

[101] There was no evidence that the introductory words in the current clause 9.2(b) have been problematic or detracted from the operation of clause 9.2 in practice.

[102] We are not persuaded that such a provision,varied to add the additional words to clause 9.2(b),is incidental to the relevant term and “essential for the purpose of making [the relevant term] operate in a practical way”,within the meaning of s.142(1)(b) of the Act. We are not satisfied that the TCFUA has established cogent reasons to depart from the term determined by the Consultation Full Bench in respect of this issue.

[103] We are not satisfied that the TCFUA has established a case for the first element of its proposed variation.

Proposed variation 2 –to clause 9.2(b)(i) –“in writing

[104] The second element of the variation of clause 9.2 proposed by the TCFUA would add a requirement that information about the proposed changes to rosters or ordinary hours of work which must be provided to the employee or employees affected and their representatives,if any,be provided in writing.

[105] Such a proposal was considered and rejected by the Consultation Full Bench on the basis that the “relevant term is intended to operate in a range of circumstances and across different industries and businesses”and would “impose an unwarranted regulatory burden on business (see s.134(1)(f)) and would be particularly burdensome for small and medium sized businesses (see s.3(g))”. 58

[106] The requirement of this element of the TCFUA’s proposed variation is that information about the proposed change be communicated to employees and their representatives,if any,in relation to any proposal to change regular rosters or ordinary hours of work. As noted by the Consultation Full Bench the requirement to consult about changes to regular rosters or ordinary hours of work is intended to operate in a range of circumstances across different businesses. In elaboration,the Consultation Full Bench said in relation to the substance of the obligation to consult:

    “. . . the precise content of an obligation to consult will depend on the context. The extent and significance of a proposed change,in terms of its impact on the affected employees,will have a bearing on the extent of the opportunity to be provided. Hence a change of limited duration to meet unexpected circumstances may mean that the opportunity for affected employees to express their views may be more limited than would be the case in circumstances where the proposed change is significant and permanent. It is also relevant to note that while the right to be consulted is a substantive right,it does not confer a power of veto. Consultation does not amount to joint decision making”. 59

[107] There will be some circumstances,requiring consultation to occur in order to provide the affected employees with a genuine opportunity to attempt to persuade the employer to adopt a different course of action,in which the provision of information about the change in writing (and in some circumstances,appropriately translated) would be required. However,in other circumstances the provision of information in writing would impose an unnecessary burden and would not be necessary to ensure genuine consultation. It is effective consultation,the undertaking of genuine consultation in the particular circumstance in which it occurs,which would better meet the needs of the low paid (and other workers) and enhancing social inclusion by ensuring proper regard is had to their family circumstances,rather than a requirement,in all circumstances,to provide information about the proposed changes in writing.

[108] There will be circumstances where verbal communication of the required information results in more effective consultation than the provision of the information in writing,as is reflected in the experience of Mr Butler and Mr Wilkinson,particularly where employees from a non-English speaking background have better verbal than written English skills. Even where employees have poor English language skills,the verbal communication of a proposal to change regular hours or ordinary hours might be effectively undertaken verbally where the employer and the affected employees come from the same backgrounds and share a common preferred language. Similarly,where a proposal to change hours is of limited effect and/or duration,verbal communication might be effective. As Ms O’Neil conceded in her evidence,the effectiveness of verbal communication of a proposed change “depends upon the complexity of what’s being communicated,and the circumstances and the context of it”. 60

[109] Ms Nguyen gave evidence in relation to consultation about significant changes (redundancies) by ClickCorp Pty Ltd (ClickCorp) 61 under clause 9.1 of the TCF Award. The issues raised by Ms Nguyen in that case concerned the failure to provide certain information (a skill matrix),consultation and the provision of professional interpreters within the consultation process. The evidence about that redundancy process did not raise issues about the requirement in clause 9.1(b)(iii) of the TCF Award that the employer must provide in writing to the employees concerned and their representatives,if any,all relevant information about the changes. ClickCorp did in fact provide relevant information in writing in that case.

[110] Whilst the TCFUA submitted that the requirement to communicate the information in writing would formalise the process and result in a written record of the proposed change,it is not clear to us that the provision of written information would enhance the consultation process in all circumstances. That requirement may detract from the effectiveness of the communication of the proposed change in some circumstances. In our view,an obligation to provide information in writing in every circumstance in which a change to regular rosters or ordinary hours of work is proposed would impose an unwarranted regulatory burden on business and would be particularly burdensome for small and medium sized businesses.

[111] We are not persuaded that the requirement to provide information in writing would materially impact,one way or the other on other modern awards objective.

[112] As we have already noted,in some circumstances the provision of relevant information in writing (and in some circumstances,appropriately translated) would be necessary to achieve genuine consultation. Clause 9.2,in its current terms,obliges an employer to engage in genuine consultation in relation to a proposed change in an employee’s regular roster or ordinary hours of work,in the sense that an affected employee is provided with a genuine opportunity to “express a view about a proposed change in order to seek to persuade the decision maker to adopt a different course of action”,as was noted by the Consultation Full Bench. 62 However,to impose a requirement to provide information “in writing”in circumstances where it is not required to achieve genuine consultation would impose a regulatory burden which is unnecessary to meet the modern awards objective and the requirement of genuine consultation inherent in clause 9.2 in those circumstances.

[113] We are not persuaded that the second element of the TCFUA’s variation of clause 9.2 of the TCF Award is necessary to achieve the modern awards objective,having regard to the various s.134 matters. We are not persuaded that clause 9.2,varied to add the “in writing”requirement,is incidental to the clause and “essential for the purpose of making [the relevant term] operate in a practical way”,within the meaning of s.142(1)(b) of the Act. We are not satisfied,on the evidence,that the absence in clause 9.2 of the proposed “in writing”requirement has been problematic or detracted from the operation of clause 9.2 in practice.

[114] We are not satisfied that the TCFUA has established a case for the second element of its proposed variation.

Proposed variation 3 –new clause 9.2(c) –translation of information

[115] The third element of the TCFUA’s proposed variation was the addition of a requirement,in a new clause 9.2(c) of a requirement on an employer that:

    “Where the employee’s understanding of written English is limited the employer must take measures,including translation of the information required in 9.2(b)(i) into an appropriate language,to ensure the employee understands the proposed change.”

[116] The proposed variation is directed to and relies,on its face,on the provision of the relevant information in writing insofar as the trigger for the operation of the clause is the employee’s understanding of written English. Given our decision in relation to the second element of the TCFUA’s proposed variation,the new provision would be unnecessary,unless the requirement related to the taking of measures,including translation of the information whether conveyed verbally or in writing on the basis of the adequacy of an employee’s English skills.

[117] To the extent that the proposed variation is intended to be directed to,and is contingent upon,the requirement to provide written information which we have not acceded to,the third element of the TCFUA variation fails. However,the TCFUA’s proposal that the information be translated is not contingent upon it succeeding in relation to that element of its proposal requiring that the information be provided in writing. 63

[118] We accept that there will be some circumstances in which steps including translation of information provided,whether in writing where effective consultation requires it or orally,will be necessary to ensure that the provision of information occurs in a manner,which provides affected employees with a genuine opportunity to attempt to persuade the employer to adopt a different course of action. Whatever,the precise level,we are satisfied that a substantial group of TCF workers have very limited or no spoken English language skills. Effective consultation,the undertaking of genuine consultation in the particular circumstances in which it occurs,would better meet the needs of the low paid (and other workers) and enhancing social inclusion by ensuring proper regard is had to their family circumstances.

[119] Consistent with the past recognition of the English language skills of a proportion of the TCF workforce by the Commission,the fact that there is a substantial group of TCF workers who have very limited or no spoken English language skills,and the evidence of Ms O’Neil of instances of a lack of understanding of decisions conveyed to employees in English affecting their employment,we are persuaded that some augmentation of the consultation provision in relation to changes to regular rosters and ordinary hours of work in the TCF Award is necessary to ensure that the purpose of the clause reflected in s.145A is effectively achieved. We will insert a new clause 9.2(c) in the following terms:

    (c) Information must be provided to affected employees and their representatives,if any,in accordance with clause 9.2(b)(i) in a manner which facilitates employee understanding of the proposed changes,having regard to their English language skills. This may include the translation of the information into an appropriate language.”

[120] We are not satisfied that the TCFUA has established a case for the third element of its proposed variation,but we are persuaded to vary the award in the manner indicated above.

[121] The additional provision would not create a burden on employers beyond that necessary to ensure that they undertake consultation about changes in regular rosters and ordinary hours of work in a manner which ensures that genuine consultation occurs in the sense set out by the Consultation Full Bench. 64

[122] To the extent that the variation of clause 9.2,as we have decided,goes beyond the express terms of s.145A,we are satisfied that the variation is essential for the purpose of making that term operate in a practical way in the TCF industry,within the scope of s.142(1) of the Act and is necessary to achieve the modern awards objective (s.138 of the Act).

Consent variations proposed

[123] Schedule E to the President’s Amended Directions of 18 November 2014 also contained a series of variations to which parties with an interest in the TCF Award consented.

[124] On 27 October 2014,the TCFUA filed a draft determination provided by the parties in relation to the TCF Award,referencing clause numbers of the TCF Award,reflecting Agreement in relation to:

      ●Technical/drafting matters

    • Clause 15 (Juniors)


    • Clause 23.7 (Alteration of time standards –Payment by results (PBR))


    • Clause 38.1(b) (Meal break –Breaks)


    • Clause 38.2(a) (Meal breaks and shift workers (textile industry) –Breaks)


    • Clause 43.5 (Rostered day falling on public holiday –Public holidays)


    • Schedule B (Classifications/Skill levels)


    • Schedule C:7 (Apprentices)


    • Schedule F:8.2(f) (Extended liability of principal –Outwork and related provisions)


    • Schedule G (Definitions)


      ●TCFUA &ABI,AIG merit claims

    • Clause 13.9 (Part‐time employment) –FWO NES inconsistency issue


    • Clause 13.11 (Part‐time employment) –TCFUA claim


    • Clause 40.1(a) (Meal Breaks –Breaks,rests and meal allowance during overtime) –Ai Group claim


    • Clause 41.4 (Requirement to take annual leave –Annual leave) –TCFUA claim.


[125] These consent variations relate to each of the consent matters identified in Schedule E to the President’s Amended Directions of 18 November 2014. The draft determination is attached to this decision as Attachment A. The draft determination attached reflects the correction,in respect of clause 13.11 drawn to our attention in the 18 December 2014 written submission of the TCFUA. 65

[126] The consent variations proposed,and reflected in the draft determination in Attachment A,are in our view of the nature of variations described in the Preliminary Issues Decision about the Review 66 as variations which can be determined with little formality,albeit subject to the obligation upon the Commission to ensure that “modern awards,together with the NES,provide a fair and relevant minimum safety net taking into account,among other things,the need to ensure a ‘stable’modern award system (s.134(1)(g))”.67

[127] We accept that the consent variations described as technical/drafting matters fall into the category of being “self-evidently necessary”to cure “typographical errors or other anomalies”as outlined in the Preliminary Issues Decision. They rectify,variously,referencing errors,formatting errors,grammatical deficiencies to provide better clarity,anomalies or errors,more logical sequencing and typographical errors.

[128] We are satisfied that the variations proposed as technical/drafting matters comply with the requirements of the Act which relate to the content of modern awards and are necessary to advance the modern awards objective in relation to the need to ensure a simple,easy to understand,stable and sustainable modern award system (s.134(1)(g) of the Act). Since the proposed variations do not alter the substance of the provisions,other elements of the modern awards objective are not in issue or do not arise.

[129] We turn now to the consent variations proposed in relation to the TCFUA,ABI and AIG merit claims.

1. Clause 13.11 (Part-time employment)

[130] Here the variation proposes to amend clause 13.11—Part-time employment by inserting at the end of 13.11 the words “Following transfer to full-time employment accrual will occur in accordance with the provisions relevant to full-time employment. At the request of the employee,the employer must provide to the employee written confirmation of the quantum of the employee’s leave entitlements as at the date of the conversion”and inserting a Note separated from the clause which states,“Note:The Fair Work Regulations 2009 contain obligations in relation to the making and retention of employee records”,so that the clause reads as follows:

    13.11 Where an employee and their employer agree in writing,part-time employment may be converted to full-time and vice-versa. If such an employee transfers from full-time to part-time (or vice-versa),all accrued award and legislative entitlements will be maintained. Following transfer to part-time employment accrual will occur in accordance with the provisions relevant to part-time employment. Following transfer to full-time employment accrual will occur in accordance with the provisions relevant to full-time employment. At the request of the employee,the employer must provide to the employee written confirmation of the quantum of the employee’s leave entitlements as at the date of the conversion.

    [Note:The Fair Work Regulations 2009 contain obligations in relation to the making and retention of employee records.]”

[131] The proposed variation was supported in the submissions by the TCFUA,the AWU and the Ai Group and was not opposed by any interested party.

[132] We are satisfied that the proposed variation complies with the requirements of the Act which relate to the content of modern awards. Clause 13.11 of the TCF Award is part of a term about a type of employment.

[133] The first element of the variation provides clarity by reflecting in clause 13.11 the position in relation to accrual of leave entitlements following transfer to full-time employment,mirroring terms of the current clause relating to transfer to part-time employment.

[134] The second element,concerning an obligation upon the employer to provide to the employee written confirmation of the quantum of the employee’s leave entitlements as at the date of the conversion if requested by the employee. It is directed to addressing a source of disputation concerning the quantum of accrued leave entitlements,asserted by the TCFUA and not challenged. The third element,the inclusion of a Note alerting readers of the TCF Award to obligations in relation to the making and retention of employee records within the Fair Work Regulations 2009 (the Regulations) which is related to the second element.

[135] We are satisfied that taking into account the considerations in s.134(1)(a)–(h) of the Act,the variation provides clarity and does not add to the regulatory burden of the employer in that it goes no further than to require the employer to provide information,required to be kept by the employer’s obligations under the Regulations,to an employee if requested to do so by them.

[136] We will make the variation in the form agreed between the interested parties.

2. Clause 40.1(a) (Meal Breaks)

[137] The proposed variation to clause 40.1(a) of the TCF Award is to include the additional words “The provision of a meal allowance does not apply if the employer provides an adequate meal”at the end of the clause so that the clause would read as follows:

    40.1 Meal Breaks

    (a) An employee required to work in excess of one and half hours overtime will be allowed a meal break of at least 30 minutes and will in addition to any overtime payable be paid a meal allowance. The provision of a meal allowance does not apply if the employer provides an adequate meal.”

[138] The proposed variation is intended to provide additional clarity to the TCF Award in respect of the interaction between clause 40.1(a) (Meal breaks) and clause 24.5 (Meal allowance),and ensuring that the respective provisions are read consistently in relation to the other. To the extent that there is potential for confusion between the two provisions,the proposed variation addresses that possibility in a confined way.

[139] The proposed variation was supported and not opposed by interested parties. It complies with the modern awards content requirements of the Act. In our view,it provides clarity about the interaction between the two clauses,so as to provide simpler and easier to understand provisions. To that extent,the variation is necessary to achieve the modern awards objective. It does not alter the substance of the provisions and in that respect is of no material effect in relation to other elements of the modern awards objective.

3. Clause 41.4 (Requirement to take annual leave)

[140] Clause 41 of the TCF Award deals with the subject matter of annual leave. Clause 41.4 currently provides as follows:

    41.4 Requirement to take annual leave

    Annual leave must be taken within 18 months of the entitlement accruing. For the purpose of ensuring accrued annual leave is taken within that period,and in the absence of agreement as provided for in s.88 of the Act,an employer may require an employee to take a period of annual leave from a particular date provided the employee is given at least 28 days notice.”

[141] The proposed variation is to replace the provision as follows:

    41.4 Requirement to take annual leave

    Once an employee has accrued 6 weeks annual leave,for the purpose of ensuring accrued annual leave is taken,and in the absence of agreement as provided for in s88 of the Act,an employer may direct an employee to take a period of annual leave,subject to the following:

    (a) The employer must provide the employee with no less than 28 days’notice of the requirement to take annual leave;

    (b) Where after an employer has issued a direction to take annual leave pursuant to this clause,the relevant employee requests to take annual leave at an alternate time (but within 6 months of the date of the direction),the employer must not unreasonably refuse to agree to that request;and

    (c) The employee must retain at least four (4) weeks of accrued annual leave after the direction is given by the employer.”

[142] The proposed variation alters the current clause 41.4 as follows:

      ●Changing the wording of the “trigger”for the employer’s right to direct an employee to take annual leave (i.e. change from “within 18 months of entitlement accruing”to “accrued 6 weeks annual leave”);

      ●Introducing an expanded formulation regarding the rights of employees subject to a direction from their employer to take annual leave;

      ●Introducing a new term (41.4(c)) which guarantees that after a direction to take annual leave,the affected employee must retain a minimum of four weeks accrual of annual leave.

[143] The proposed variation was supported in the submissions by the TCFUA,the AWU and not opposed by any interested party.

[144] Section 93(3) of the Act provides:

    Terms about requirements to take paid annual leave

    (3) A modern award or enterprise agreement may include terms requiring an employee,or allowing for an employee to be required,to take paid annual leave in particular circumstances,but only if the requirement is reasonable.”

[145] Clause 41.4 of the TCF Award is such a term.

[146] The TCFUA supported the proposed variation on the basis of providing additional safeguards for employees in circumstances where an employer is entitled under clause 41.4 of the TCF Award to direct an employee to take excess accrued leave,in order to protect the beneficial nature of the annual leave entitlement and to meet the reasonableness requirement in s.93(3) of the Act.

[147] We are satisfied that the variation proposed complies with the modern awards content requirements of the Act,being part of a term about arrangements for taking leave (s.139(h) of the Act).

[148] The addition of safeguards in relation to the right of an employer to direct the taking of excessive accrued annual leave arising from the variation,involves the maintenance of a minimum of four weeks accrual and a right to an employee to suggest an alternate basis of taking the period of annual leave directed (subject to a capacity of the employer to refuse,unless the refusal is unreasonable). The safeguards better protect the benefit of the leave to employees and have regard to the needs of the employees,better accommodate employees taking accrued annual leave at a time that suits their personal circumstances,including family commitments and better promotes the purpose of recovery,rest and recreation and are consistent with those parts of the modern awards objective in ss.134(1)(a) and (c) of the Act and may enhance the productivity of employees when they return to work from leave. Whilst the variations introduce some safeguards which may raise issues in respect of s.134(1)(f) of the Act,the safeguards are not unreasonable and employers remain able to manage excessive accrual of annual leave. Overall,we are satisfied that the variation is necessary to achieve the modern awards objective,having regard to the reasonableness requirement within s.93(3) of the Act.

4. Clause 13.9 (Part-time employment)

[149] The proposed variation in respect of clause 13.9 of the TCF Award arose from a consideration by the parties of an alleged inconstancy between the clause and the NES raised by the FWO in its document filed with the Commission on 4 April 2014. The inconsistency was said to relate to the method of accrual of annual leave and personal/carers’leave for part-time employees on the basis of the averaging element of clause 13.9,which the FWO contended was unclear whether a particular employee would be better or worse off under clause 13.9 of the TCF Award.

[150] Clause 13.9 of the TCF Award provides:

    13.9 When calculating an employee’s pro rata entitlement to annual leave and personal/carer’s leave,they must be paid in proportion to the average number of hours worked in the previous 12 months. If there is not a 12 month period of employment then the calculation will be based on the average number of hours worked in each week for the actual period of employment.”

[151] The consent variation proposed in relation to clause 13.9 includes the addition of the word “ordinary”before the word “hours”wherever it appears in clause 13.9 so that the clause reads as follows:

    13.9 When calculating an employee’s pro rata entitlement to annual leave and personal/carer’s leave,they must be paid in proportion to the average number of ordinary hours worked in the previous 12 months. If there is not a 12 month period of employment then the calculation will be based on the average number of ordinary hours worked in each week for the actual period of employment.”[Proposed variation underlined]

[152] The consent variation proposed addresses and effectively removes an apparent inconsistency between clause 13.9 of the TCF Award and the NES (ss.87(2) and 96(2) of the Act),to the extent that they stipulate how annual leave and personal/carer’s leave are to accrue,which was identified by the FWO.

[153] We will make the variation to provide clarity and remove any inconsistency between the TCF Award and the NES and to ensure that the award is simple and easy to understand (s.134(1)(g) of the Act).

Conclusion

[154] We will give effect to each of the consent variations proposed,in the terms reflected in the consent draft determination in Attachment A, 68 amended as required to reflect drafting style and/or any variations to the TCF Award arising from other Review outcomes since the consent draft determination was prepared by the parties.

[155] We decline to vary clause 9.2 of the TCF Award as sought by the TCFUA.

[156] We will,however,add a new clause 9.2(c) in the following terms:

    (c) Information must be provided to affected employees and their representatives,if any,in accordance with clause 9.2(b)(i) in a manner which facilitates employee understanding of the proposed changes,having regard to their English language skills. This may include the translation of the information into an appropriate language.”

SENIOR DEPUTY PRESIDENT

Appearances:

V Wiles with M O’Neil and R Liebhaber for the Textile,Clothing and Footwear Union of Australia.

M Mead for The Australian Industry Group.

K Scott for Australian Business Industrial and The New South Wales Business Chamber Ltd.

J Gherjestani for The Australian Workers’Union.

Hearing details:

2015.

Melbourne and Sydney (via video):

March 13 and 19.

    Attachment A

<<File No>> <<Print No>>

FAIR WORK COMMISSION

DRAFT DETERMINATION

Fair Work Act 2009

Part 2-3,Div 4 –4 Yearly review of modern awards

Textile,Clothing,Footwear and Associated Industries Award 2010

AM2014/91 [MA000017]

Textile,clothing and footwear and associated industries

PRESIDENT ROSS MELBOURNE,XX XX 2014

    A. Further to the Decision and Reasons for Decision of XX XX 2014,it is determined pursuant to section 156(2)(b)(i) of the Fair Work Act 2009,that the Textile,Clothing,Footwear and Associated Industries Award 2010 be varied as follows:

      1. By amending clause 13.9 “Part-time employment”by including the word “ordinary”before the word “hours”where-ever it appears in the clause,so that the clause reads as follows:

        13.9 When calculating an employee’s pro rata entitlement to annual leave and personal/carer’s leave,they must be paid in proportion to the average number of ordinary hours worked in the previous 12 months. If there is not a 12 month period of employment then the calculation will be based on the average number of ordinary hours worked each week for the actual period of employment.’

      2. By amending clause 13.11 “Part-time employment”by inserting at the end of 13.11 the words “Following transfer to full-time employment accrual will occur in accordance with the provisions relevant to full-time employment. At the request of the employee,the employer must provide to the employee written confirmation of the quantum of the employee’s leave entitlements as at the date of the conversion”and inserting a Note separated from the clause which states,“Note:The Fair Work Regulations 2009 contain obligations in relation to the making and retention of employee records”,so that the clause reads as follows:

        13.11 Where an employee and their employer agree in writing,part-time employment may be converted to full-time and vice-versa. If such an employee transfers from full-time to part-time (or vice-versa),all accrued award and legislative entitlements will be maintained. Following transfer to part-time employment accrual will occur in accordance with the provisions relevant to part-time employment. Following transfer to full-time employment accrual will occur in accordance with the provisions relevant to full-time employment. At the request of the employee,the employer must provide to the employee written confirmation of the quantum of the employee’s leave entitlements as at the date of conversion.

        [Note:The Fair Work Regulations 2009 contain obligations in relation to the making and retention of employee records]”[insert hyperlink]

      3. By amending clause 15 “Juniors”by replacing reference to “clause 20.9”with reference to “clause 20.10”so that the clause reads as follows:

        “An employer may employ junior employees and must pay juniors in accordance with clause 20.10”

      4. By amending clause 23.7 “Alteration of Time Standards”to correct formatting and insert the word “and”after “employer”and before “the”in the reformatted 5th bullet point,so that the clause reads as follows:

        “Once a time standard has been fixed under this clause,it must not be altered except where any of the following circumstances occur:

      • There is a change in the manufacturing methods;


      • There is a change in the materials used;


      • There is a change in the machines or equipment used;


      • To correct an agreed error in the existing time standard;or


      • By agreement between the employer and the PBR employees,in accordance with clause 8.3. Any proposal which is put to employees must be reduced to a written form for their consideration prior to the taking of a vote.”


      5. By amending clause 38.1(b) “Meal break”to insert the clause number “clause 39”after the phrase “overtime rates”,so that the clause reads as follows:

        “(b) If the employer requires an employee (other than a maintenance employee who is required to work through a meal break to rectify a mechanical breakdown) to work through a meal break,the employee must be paid at overtime rates (clause 39) until the break is taken.”

      6. By amending clause 38.2(a) “Meal breaks and shift workers (textile industry)”to insert the words “hour”and “eight”,so that the clause reads as follows:

        “(a) Where two eight hour or three eight hour shifts are worked,in lieu of the meal break provided in sub-clause 38.1(a),the employer has the discretion to,as opportunity offers,provide the shift worker a 20 minute paid crib break per shift which shall be counted as time worked.”

      7. By amending clause 40.1(a) “Meal Breaks”by inserting at the end of clause 40.1(a) the words “The provision of a meal allowance does not apply if the employer provides an adequate meal”so that the clause reads as follows:

        40.1(a) An employee required to work in excess of one and a half hours overtime will be allowed a meal break of at least 30 minutes and will in addition to any overtime payable be paid a meal allowance. The provision of a meal allowance does not apply if the employer provides an adequate meal.”

      8. By deleting clause 41.4 “Requirement to take annual leave”in its entirety,and inserting the following new clause 41.4 in lieu thereof:

        41.4 Requirement to take annual leave

      Once an employee has accrued 6 weeks annual leave,for the purpose of ensuring accrued annual leave is taken,and in the absence of agreement as provided for in s88 of the Act,an employer may direct an employee to take a period of annual leave,subject to the following:

(a) The employer must provide the employee with no less than 28 days’notice of the requirement to take annual leave;

(b) Where after an employer has issued a direction to take annual leave pursuant to this clause,the relevant employee requests to take annual leave at an alternate time (but within 6 months of the date of the direction),the employer must not unreasonably refuse to agree to that request;and

(c) The employee must retain at least four (4) weeks of accrued annual leave after the direction is given by the employer.

      9. By amending clause 43.5 “rostered day off falling on public holiday”to insert the word “Except”at the commencement of the clause,so that the clause reads as follows:

        “Except where the rostered day off falls on a Saturday or a Sunday,where a full-time employee’s ordinary hours of work are structured to include a day off and such day off falls on a public holiday,the employee is entitled,at the discretion of the employer,to either:
        (a) 7.6 hours of pay at the ordinary time rate;or
        (b) 7.6 hours of extra annual leave;or
        (c) A substitute day off on an alternative week day.

      10. By amending Schedule B “Classifications/Skill Levels”to include the following phrase at the commencement of Schedule B and to delete it’s corresponding appearance at the end of the definition of “Storeworker Grade 4”

        “These skill levels are to be read in conjunction with an explanation of the terms contained in Schedule C”

      11. By amending clause C.7 in Schedule C “Apprentices”by changing the term ‘contracts of apprenticeship’to ‘contract of apprenticeship’so that the clause reads as follows:

        “The probationary period of an apprentice must be as set out in the training agreement or contract of apprenticeship consistent with the requirements of the Apprenticeship Authority and with State legislation but must not exceed three months.”

      12. By moving Schedule C “Apprentices”so that it directly follows Schedule F “Outwork and Related Provisions”,and renumbering Schedule C accordingly “Schedule G”

      13. By updating the references to Schedule C in the Award so that they now read “Schedule G”. This variation affects the following clauses:

        a. Clause 16;

      14. By amending sub-clause F.8.2(f) of Schedule F to include a full-stop at the end of the sub-clause.

      15. By moving Schedule G “Definitions”so that it directly follows Schedule B,and renumbering Schedule G accordingly “Schedule C”.

    B. This determination comes into operation on the first full pay period commencing on and from XX XX 2014.

PRESIDENT

 1   [2014] FWCFB 5537.

 2   MA000017.

 3   [2014] FWCFB 5537,at para 8.

 4   [2014] FWCFB 1788.

 5   [2014] FWCFB 1788.

 6   [2014] FWCFB 1788,at paras 31–33.

 7   [2014] FWCFB 1788, at para 60.

 8   See [2015] FWCFB 616,at paras 5–7.

 9   [2015] FWCFB 620.

 10   Concerning dispute resolution training leave,part-time employment,annual leave and special unpaid leave.

 11   TCFUA submission,18 December 2014,at para 56.

12 [2013] FWCFB 10165.

13 [2013] FWCFB 10165,at para 107.

14 [2013] FWCFB 10165,at para 53.

15 [2013] FWCFB 10165,at paras 54–55.

16 [2013] FWCFB 10165,at paras 75–83.

17 [2013] FWCFB 10165,at para 83.

18 [2013] FWCFB 10165,at para 84.

 19   [2014] FWCFB 1788,at para 60.3.

 20   [2014] FWCFB 1788,at para 24.

 21   [2014] FWCFB 1788,at para 60.5.

 22   [2014] FWCFB 1788,at paras 36 and 60.5.

 23   TCFUA submissions,18 December 2014,at p.17.

 24   [2014] FWCFB 1788,at paras 33–34.

 25   [2013] FWCFB 10165,at paras 34–37.

 26   [2014] FWCFB 1788.

 27   Ai Group submissions,30 January 2015,at pp. 9–10.

 28   ibid.,at pp. 10–14.

 29   [2013] FWCFB 10165,the first element (“proposed”) at paras 33–34 and 63;the second element (‘in writing”) and the third element (“translation”) at paras 75–84.

 30   ABI submission,2 February 2015,at paras 61–62.

 31   Witness statement,Ms Nguyen,at paras 16–17.

 32   Transcript,at paras 736–740 and 758.

 33   Transcript,at para 738.

 34   Correspondence of ABI,23 January 2015 (posted to web-site on 27 January 2015).

 35   Witness statement,Ms Nguyen,at para 15.

 36   Witness statement of Ms Nguyen in relation to non-English speaking background and limited English language and literacy (at para 5),women in the industry (at para 5) and dependence on the minimum wage (at para 5);business size and absence of union structures (at para 8) and experience in translating (at para 11) and witness statement,Ms O’Neil,in relation to limited spoken English and written skills (at paras 15–16).

 37   Witness statement,Ms O’Neil,at paras 10,23 and 31.

 38   Witness statement,Ms Nguyen,at para 5.

 39   Witness statement,Ms Nguyen,at para 6.

 40   Witness statement,Ms O’Neil,at para 11.

 41   Transcript,at paras 1646–1649.

 42   Transcript,at para 1766.

 43   Table 3.3 of 9 September 1997 of the Industry Commission,Report No. 59 –Labour Market and Microeconomic Reform.

 44   Witness statement,Mr Jones,Attachment A,at pp. 121–122.

 45   Witness statement,Mr Jones,Attachment A,at p. 121.

 46   TCFUA submission,8 April 2015,at paras 5.4–5.5.

 47   TCFUA submission,8 April 2015,at paras 5.14–5.16.

 48   TCFUA submission,8 April 2015,at para 5.5.

 49   TCFUA submission,8 April 2015,at paras 5.7–5.8.

 50   Clause 7.8 of the Textile,Clothing,Footwear and Associated Industries Award 2010 [MA000017] is in the same terms as clause 7.8 of the Manufacturing and Associated Industries and Occupations Award 2010 [MA000010]. See the explanation in relation to the award flexibility by the 4 Yearly Review of Modern Awards:Preliminary Jurisdictional Issues Full Bench,[2013] FWCFB 10165,at para 77.

 51   [2008] AIRCFB 550,at paras 94–95,[2008] AIRCFB 717,at paras 100 and 103 and [2008] AIRCFB 1000,at paras 147,150 and 152.

 52   TCFUA submission,18 December 2014,at paras 48 and 106 and witness statement,Ms O’Neil,at para 25.

 53   TCFUA submission,18 December 2014,at para 62 and witness statement,Ms O’Neil,at paras 25 and 31.

 54   Transcript,at para 496.

 55   [2013] FWCFB 10165,at para 35.

 56   TCFUA submission,8 April 2015,at paras 6.4,6.5,6.9,6.10 and 6.11 and Transcript,at paras 736–740.

 57   See,for example evidence in relation to consultation under clause 9.2 in Transcript,at paras 736–740.

 58   [2013] FWCFB 10165,at para 83.

 59   [2013] FWCFB 10165,at para 32.

 60   Transcript,at paras 650 and 662.

 61   Witness statement,Ms Nguyen,at para 15.

 62   [2013] FWCFB 10165,at para 31.

 63   Transcript,at paras 583–584.

 64   [2013] FWCFB 10165,at paras 31–32.

 65   TCFUA submission,18 December 2014,at para 160.

 66   [2014] FWCFB 1788.

 67   ibid.,at para 23.

 68   The draft determination reflects the correction,in respect of clause 13.11,drawn to our attention in the TCFUA submission,18 December 2014,at para 160.

Printed by authority of the Commonwealth Government Printer

<Price code G, MA000017  PR563427 >

About this document
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Code:
PR563427D
Title:
MA000017 - Decision - 11 May 2015
Effective:
11 May 2015
Updated:
12 May 2015
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MA000017 - Decision - 11 May 2015
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