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Current Issues Brief

No. 9 1997-98

Award Simplification: what's out and what's in

ISSN 1440-2009

 Copyright Commonwealth of Australia 1999

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This paper has been prepared for general distribution to Senators and Members of the Australian Parliament. While great care is taken to ensure that the paper is accurate and balanced, the paper is written using information publicly available at the time of production. The views expressed are those of the author and should not be attributed to the Information and Research Services (IRS). Advice on legislation or legal policy issues contained in this paper is provided for use in parliamentary debate and for related parliamentary purposes. This paper is not professional legal opinion. Readers are reminded that the paper is not an official parliamentary or Australian government document. IRS staff are available to discuss the paper's contents with Senators and Members and their staff but not with members of the public.

Published by the Department of the Parliamentary Library, 1999

I N F O R M A T I O N A N D R E S E A R C H S E R V I C E S

Current Issues Brief No. 9 1997-98

Award Simplification: what's out and what's in

Steve O'Neill Economics Commerce and Industrial Relations Group 23 January 1998

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Contents

Contents ............................................................................................................................... 1

Introduction ......................................................................................................................... 1

Some comments on the decision ......................................................................................... 2

Next awards to be reviewed ................................................................................................ 3

Appendix 1: Listing of allowable award matters ............................................................. 5

Appendix 2: Listing of non-allowable award matters ................................................... 13

Appendix 3: Award tests .................................................................................................. 15

Appendix 4: Award simplification principles ................................................................. 19

Appendix 5 - Model clauses .............................................................................................. 23

Endnotes ............................................................................................................................. 26

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Introduction

The Full Bench of the Australian Industrial Relations Commission (AIRC) delivered a test case decision on the simplification of federal awards on 23 December 1997.1 An earlier Current Issues Brief (CIB No. 6, 1997-98) Award Simplification: Progress Report by this author covered the background to and issues of federal award simplification in some detail.2 That publication provides useful background to the relevant legislative provisions which stipulate the simplification process, as well as providing references to AIRC cases which considered the 'allowable award matters' issue in 1997, and union responses to government and employer proposals for simplified awards.

The purpose of this paper is to provide detail and some interpretation of the AIRC's decision and from that, an outline of the agenda for award simplification. The award simplification process means reviewing awards to see which provisions remain and which are to be removed. Where provisions are retained, the AIRC will attempt to ensure that they are easy to understand, that they support workplace efficiency and meet other tests. The 20 allowable award matters detailed in s. 89A(2) of the Workplace Relations Act 1996 (the WR Act) provide primary guidance on provisions which will be retained in awards. If a provision is incidental or necessary to the operation of the award, it stays (s. 89A(6)); on the other hand if a provision restricts workplace efficiency, it will be deleted or may need to be reworded (s. 143). The Workplace Relations and Other Legislation Amendment Act 1996 (WROLA Act) prescribes provisions and a timeframe within which the contents of existing awards are to be reviewed so as they conform with allowable award matters.

Note that the test case decision dealt with one award only which was the Hospitality Industry-Accommodation, Hotels, Resorts and Gaming Award 1995, hereon the Hospitality Award, which the Full Bench reviewed on a clause by clause basis. The decision runs to 44 pages with another 140 pages of attachments; as well, the AIRC has provided a separate document which is a draft Hospitality Award 1998 incorporating in it the simplification and workplace efficiency principles enunciated in this decision. However, this a major test case under the WR Act and the principles outlined in this test case will have application to many hundreds of federal awards.

For the purposes of answering the question: ' As a result of this test case decision, how will federal awards be simplified and according to what criteria?', elements of the decision are reproduced as appendices in this publication.

In an attachment to its decision Allowable Award Matters-Attachment D, the Full Bench outlines the Hospitality Award provisions which fall within each of the 20 allowable award matters prescribed by the WR Act. Such provisions are therefore within its jurisdiction to include in awards, including by arbitration The AIRC may arbitrate on

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allowable award matters in the absence of consent of the award parties (employers and unions). This part of the decision is provided in Appendix 1.

In Appendix 2, Non-allowable Award Matters-Attachment E, of the decision is reproduced. There, the Full Bench identifies certain award provisions (of the Hospitality Award) which are no longer allowable. Accordingly, an award provision requiring the employer to provide first aid facilities has been excluded from the draft Hospitality Award, because the authority for the AIRC to make an award/provision has not been prescribed in s. 89A(2) of the WR Act. (By contrast, industrial matters prescribed in the first federal industrial legislation in 1904 actually included the provision of first aid facilities and other amenities. This is illustrated in CIB No. 6, 1997-98).

In Appendix 3, there is a summarised account of award tests (discrimination, plain English, workplace efficiency and others) which the Full Bench applied to the remaining Hospitality Award provisions. Each of the legislative requirements is identified and applied to the Hospitality Award.

Together, these elements of the decision outline the AIRC's criteria for award simplification. The criteria indicate 'what's in' awards, 'what's out' and provisions which may need to be reworded (and others which may be deleted).

The new principles determined by the Full Bench to govern the AIRC's approach in award simplification are included in the Appendix 4. When awards are presented to individual commissioners for simplification, the commissioners will be required to adopt the principles stipulated in this test case. Three 'model' clauses proposed by the Full Bench in this decision concerning anti-discrimination, personal leave and enterprise flexibility provisions are included in Appendix 5.

Some comments on the decision

The AIRC's award simplification test case decision gives the impression of being 'tough but fair'. In some respects, it even bolsters the award system, albeit in its designated minimum safety net role. As well, the AIRC used the exercise to reassert its independence. For example it refuted ACTU arguments concerning the making of award simplification principles and held that sufficient authority existed for it to make principles under the WROLA Act. Elsewhere, the AIRC refuted employer and joint government suggestions that the AIRC should not make provision for union representation.3 Also, and very importantly, the AIRC did not accept invitations of employers and the joint governments to review existing employee entitlements.4

It is also interesting to note the Full Bench's observation that the current provisions requiring awards to promote efficiency hark back to earlier, similar exercises of the 1980s

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and early 1990s.5 Earlier legislative requirements to review awards were detailed in CIB No. 6 1997-98, as were other award reviews developed within AIRC guidelines.

Also of interest is the AIRC's unwillingness to, at this stage, develop guidelines on the conversion of paid rate awards to minimum rates awards. The AIRC made this clear in the following:

We are not prepared to require, as part of an award simplification exercise, that all awards which are not operating as minimum rates awards be converted to minimum rates awards in the manner proposed by the Joint Governments. Whilst this will be an appropriate course where the award is not a paid rates award, we believe there has been insufficient attention given in this case to the treatment of paid rates awards. Items 49(5) and 51(4), which deal with the conversion of awards which are not operating as minimum rates awards, is [sic] each discretionary. The legislation contemplates the continuation of paid rates awards in some circumstances. Neither the WROLA Act nor the WR Act in terms [sic] requires paid rates awards to be converted. To the contrary, the WR Act permits the variation of such awards and, in specified circumstances, the creation of new ones (ss. 170MX and 170MY).6

The AIRC then goes on to rely on discretions concerning the making of awards which are available to it, given the design of certain provisions in the WR Act.

For unions, important clauses concerning workplace change, technological change and consultation with the union, for example, in redundancy situations and over occupational health and safety matters, have been removed. This is no more than the intention of the WR Act, and the AIRC could not find provision for such clauses within the allowable award matters table, or under the necessary/incidental provisions.

Thus, in the decision we see the reaffirmation of the legislative intent to reduce the ability of unions to deliver workplace intervention through awards. The AIRC also made reference to the extent of unionisation in respect of the hospitality industry, which it did not regard as being particularly high, so the AIRC is taking into account the wishes of workers to be union members. Certified agreements are not so constrained in respect consultative clauses and the like, and as was reported in CIB No. 6 1997-98, it is likely that unions will seek consultative provisions in agreements where the workers in an enterprise seek union representation and certified agreements. Nevertheless, the decision indicates the success of the Government's drive to reduce the role of awards in workplaces.

Next awards to be reviewed

The President will reconstitute the Full Bench in each of the award simplification applications in respect of the awards nominated for review in the initial applications. These include: the Graphic Arts-General Interim Award 1995, the SDA (Shop Distributive

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and Allied Employees' Association (Victoria Shops) Interim Award 1994, the SDA (Food and Liquor) Interim Award 1994 and the Nurses (ANF-WA Private Hospitals and Nursing Homes) Consolidated Award, as well as two awards applying to teachers in Victoria, and the award applying to the 'Sizzlers' restaurant chain. These reviews will be brought on early in the new year.

At the time the AIRC reserved its decision (November 1997), Commissioner McDonald had not completed the task of taking evidence in that part of the employers' application which sought a reduction in penalty rates in the Hospitality Award. This exercise recommenced in mid January 1998. The AIRC did note that the task to simplify remaining awards within the stipulated timeframe (now about 6 months) will be of 'historic proportions'.

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Appendix 1: Listing of allowable award matters

(Source: this list has been adapted from Attachment D, Allowable Matters/Incidental and Necessary Table which can be found at page 63 of the Award Simplification Decision)

This table refers to provisions in the current and proposed Hospitality Award which the AIRC has determined are allowable or incidental and necessary. The determination of whether or not an award provision is incidental to an allowable award matter and necessary for the effective operation of the award may depend on the circumstances in a particular case.

s. 89A(2)(a) Classifications of employees and skill-based career paths

• lists of classification and classification structures, covering the definitions of and duties to be performed by each classification;

• competency and qualification standards for classification structures;

• provisions enabling flexibility in the application of the classification structure (such as provisions regarding multi-skilling);

• provisions which enable the employer to broadly determine where former classifications would fit into a new classification structure eg. translation from old to new structures (as long as they are relevant) and automatic progression;

• mixed functions clause;

• higher paid employees may relieve lower paid employees without loss of pay.

s. 89A(2)(b) Ordinary time hours of work and the times which in which they are performed, rest breaks, notice periods, and variations to working hours

• span of hours attracting ordinary time payment and any exemptions for particular classifications or type of employee;

• the number of hours in a time span/s (eg. weekly, monthly or shift arrangements) which attract ordinary time payment;

• maximum daily hours attracting ordinary time payment;

• notification of hours/rosters and provisions to change hours/ rosters;

• provision for rostered days off;

• make up time arrangements;

• provision for meal breaks, minimum length of meal breaks and penalty arrangements to apply in the absence of a meal break;

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• rest breaks (ie. during ordinary time hours), crib breaks (ie. during overtime) and breaks between shifts;

• payment for waiting time where employees are paid their wages at any time other than during their working time.

s. 89A(2)(c) Rates of pay generally (such as hourly rates and annual salaries), rates of pay for junior trainees or apprentices, and rates of pay for employees under the supported wage system

• minimum wage rates (including for juniors, trainees and apprentices), increments, supplementary payments and safety net adjustments (as long as they are relevant);

• mixed function payments;

• process and procedures for the determination of age; juniors paid as adults;

• eligibility for supported wage including provisions for assessing an employee's productivity capacity;

• provisions for work trials as part of a supported wage arrangement including induction or training appropriate to the job being trailed;

• provision for payment of wages;

• manner of payment of wages eg. wages to be paid in cash, by cheque or by electronic funds transfer;

• payments for when work not performed;

• deductions from wages.

s. 89A(2)(e) Annual leave and leave loadings

• the quantum of the leave entitlement and of the loading;

• defining service for the purpose of calculating the leave entitlement;

• when and how the leave entitlement may be taken;

• the effect on the leave entitlement of certain absences from the workplace;

• payment provisions including for the leave period, the loading and on termination.

s. 89A(2)(g) Personal/carer's leave, including sick leave, family leave, bereavement leave, compassionate leave, cultural leave and other like forms of leave

• quantum of leave entitlement;

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• accrual provisions including any limitation on accrual;

• access to accrued entitlements;

• conditions on access to entitlements eg. carer's leave is for the purpose of caring for an immediate family or household member who is sick and requires the employee's care and support;

• notice requirements;

• evidence supporting claims;

• effect of workers compensation payments on entitlements;

• unpaid leave;

• time off during notice period;

• leave for consultative meetings to discuss industrial matters.

s. 89A(2)(h) Parental leave including maternity and adoption leave

• quantum of leave entitlements;

• eligibility requirements;

• notice requirements;

• evidence supporting claims;

• interaction of parental leave and other leave entitlements;

• variations to parental leave;

• transfer to a safe job;

• returning to work after a period of parental leave;

• replacement employees.

s. 89A(2)(i) Public holidays

• identification of holidays;

• provision for substitute days;

• payment for working on a public holiday;

• minimum payments for public holiday work;

• absence before or after a public holiday;

• time off instead of public holiday penalty rate.

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s. 89A(2)(j) Allowances

• provision for payment in addition to minimum rates of pay for:

− disabilities, responsibility and skill; or

− the reimbursement of expenses;

• requirements for employees to sign a receipt for clothing or equipment provided by their employer;

• accident pay.

s. 89A(2)(k) Loadings for working overtime or for casual work or shift work

Overtime work

• definition of overtime, the basis for its calculation and the level of overtime loadings;

• minimum payments;

• overtime payments when an employee swaps shifts;

• provision for rest periods and payment for working during a meal break;

• time off in lieu of payment for overtime.

Casual loadings

• provision for and level of loading for ordinary work;

• provision for additional loading for working outside of ordinary hours.

Shiftwork

• provision for and level of loading and definition of shifts.

s. 89A(2)(l) Penalty rates

• provision for penalty payments and the rates applicable for work performed at specified times of the day or on certain days of the week;

• penalty rates not cumulative.

s. 89A(2)(m) Redundancy pay

• definition of redundancy;

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• transfer to lower paid duties;

• severance pay entitlements;

• acceptable alternative employment;

• deductions from severance pay due to superannuation benefits;

• exemption from severance pay eg. termination due to misconduct, traineeships, incapacity to pay.

s. 89A(2)(n) Notice of termination

• period of notice required on termination;

• payment instead of notice;

• exemption from notice provisions eg. termination due to misconduct, traineeships;

• employers right to withhold monies due to an employee if the employee fails to give the required notice.

s. 89A(2)(o) Stand-down provisions

• circumstances under which employees may be stood down and provision for deduction of wages;

• exclusions from the stand-down arrangements;

• effect on other entitlements;

• employee rights in response.

s. 89A(p) Dispute settling procedures

• procedural matters such as:

− hierarchy of dispute resolution steps;

− final conciliating or determining authority;

− continuation of work unless reasonable concern about an imminent risk to

− occupational health or safety;

− timing for progressing particular stages;

− representation.

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s. 89A(2)(q) Jury service

• provision for authorised absence from the workplace;

• eligibility criteria;

• make up of payment to ordinary time earnings level;

• notification to employer of the requirement to attend for jury service and proof of attendance, period of attendance and amount of reimbursement received from the court.

s. 89A(2)(r) Type of employment, such as full-time employment, casual employment, regular part-time employment and shift work

• provision for and definitions of types of employment such as full-time, regular part-time and casual;

• requirement to inform each employee of the terms of their engagement and in particular whether they are full time, regular part time or casual;

• minimum consecutive hours to be worked by part-time and/or casual employees;

• provision for reasonably predictable hours of work including the process for their variation for part-time employees;

• provision for pro-rata employment conditions for part-time employees.

s. 89A(2)(s) Superannuation

• reference to the relevant superannuation legislation;

• definition of ordinary time earnings;

• contribution to be made into a specified fund(s);

• eligibility;

• employer contributions;

• voluntary employee contributions;

• exemptions.

Other Matters

• machinery provisions such as:

− title;

− arrangement;

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− alphabetical index;

− definitions;

− date the award starts;

− where and who the award covers;

− index of facilitative provisions;

• model anti-discrimination clause;

• enterprise flexibility provisions;

• relationship to National Training Wage Interim Award;

• posting of award in the workplace.7

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Appendix 2: Listing of non-allowable award matters

(Source: This list has been adapted from Attachment E, Non-Allowable Matters Table which can be found at page 71 of the Award Simplification Decision).

The list also refers to provisions in the current Hospitality Award which the AIRC has determined are not allowable. The determination of whether or not an award provision is incidental to an allowable award matter and necessary for the effective operation of the award may depend on the circumstances in a particular case.

s. 89A(2)(a) Classifications of employees and skill-based career paths

• statements of objectives or intent [clause 1A];

• limitations on employment in particular classifications [clauses 16.4.8 (b) and 16.5.3 (a) iii)].

s. 89A(2)(k) Loadings for working overtime or for casual work or shift work

• preference for the working of overtime rather than casual employment [clause 28.1].

s. 89A(2)(m) Redundancy pay

• notification and consultation on the introduction of change [clause 11];

• requirement for discussions to take place prior to redundancies [clauses 17.1 and 17.10.1];

• provisions requiring the employer to notify the CES in respect of impending redundancies [clause 17.7].

s. 89A(2)(n) Notice of termination

• provision that an employer shall not dismiss an employee on the grounds of refusal to dress in a manner which would cause that employee embarrassment [clause 14.1.2];

• employee not to be given notice of termination while on authorised leave [clause 18.1.8];

• requirement to provide employees with a statement of employment on termination [clause 18.4];

• employer's right to summarily dismiss an employee in certain circumstances [clause 18.5.2];

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• provision that a termination of employment shall not be harsh, unjust or unreasonable [clause 18.6].

s. 89A(2)(r) Type of employment, such as full-time employment, casual employment, regular part-time employment and shift work

• a prohibition on employees being engaged as casuals in the hotel in which they are permanently employed [clause 16.1.3];

• limitations on the number or proportion of employees that an employer may employ in a particular type of employment, such as quotas and ratios [clause 16.5.3(a)(iii)];

• minimum or maximum hours of work for regular part-time employees other than minimum number of consecutive hours [clause 16.3.1].

Other Matters

• a clause setting out the history of award changes [clause 8A];

• standards for accommodation [clause 35.5];

• provision by the employer for items or services such as clothing, tools, equipment, laundering and accommodation which are not in the nature of an allowance [clause 41];

• provisions in relation to sexual harassment [clause 14.1];

• a provision that employees not be required to clean or attend sanitary conveniences provided for the opposite sex except in certain circumstances [clause 14.2.2];

• amenities [clause 40];

• requirement to provide a first aid kit [clause 42];

• preference to unionists [clause 45];

• union officials [clause 47], but see Division 11A of Part IX of the WR Act.8

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Appendix 3: Award tests

Award provisions which pass the test of being allowable must be reviewed against the nine tests stipulated below. Refer to page 33 of the Award Simplification Decision.

1. Unnecessary detail

Item 49(7)(a) of the WROLA Act provides that the Commission must, if it considers it appropriate, review the award to determine whether or not it meets the criterion that:

it does not include matters of detail or process that are more appropriately dealt with by agreement at the workplace or enterprise level.

In the context of the Hospitality Award, the following provisions prescribe "matters of detail or process that are more appropriately dealt with by agreement at the workplace or enterprise level".

• clause 13 - Board of Reference - deleted from the proposed award;

• clause 26 - Hours of Work - amended to provide that the arrangements for working an average of 38 hours per week are to be agreed between the employer and employee at the workplace, subject to compliance with a number of minimum standards.

2. Workplace efficiency and productivity

Items 49(7)(b) and (c) of the WROLA Act provide that the Commission must, if it considers it appropriate, review the award to determine whether or not it meets the following criteria:

(b) it does not prescribe work practices or procedures that restrict or hinder the efficient performance of work;

(c) it does not contain provisions that have the effect of restricting or hindering productivity, having regard to fairness to employees .

The AIRC considered that these requirements could be met by the use of majority clauses (which, where an enterprise is governed by a number of awards, allows the award which covers the largest number of employees to apply). It was also noted that the April 1991 National Wage Case decision considered a wider role for majority clauses to support enterprise flexibility.

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3. Work Organisation

The AIRC considered that work organisation within the hotels industry would be enhanced with the following award changes proposed for the new Hotels Award:

• 10.1 Employees must undertake duties as directed within the limits of their competence;

• 10.2 Despite the recognition of five career path streams, such streams do not prevent employees undertaking duties across different streams;

and clause 14.2.1 of the award has been deleted. It states:

Any bar attendant or cellarman shall not be required to scrub or wash floors or tables; such work shall be performed by the useful (Note: a useful is an employee who picks up used glasses, washes these, replenishes trays with clean glasses and performs similar duties).

4. Facilitative Provisions

Item 49(8)(a) of the WROLA Act provides that the Commission must determine whether or not the award, where appropriate:

contains facilitative provisions that allow agreement at the workplace or enterprise level, between employers and employees (including individual employees), on how the award provisions are to apply.

The AIRC observed that a facilitative provision normally provides that the standard approach in the award provision may be departed from by agreement between an individual employer and an employee or the majority of employees in an enterprise or part of the enterprise concerned. It said in the decision:

The nature and extent of the facilitative provisions in a particular award should take into account the circumstances in the industry covered by the award and the history of any existing facilitative provisions. For example in an industry in which employees have little or no bargaining capacity a more cautious approach may be warranted. (p.38)

5. Regular Part-time Work

Item 49(8)(b) of the WROLA Act provides that the Commission must review the award to determine that, where appropriate, "it contains provisions enabling the employment of regular part-time employees". The part-time work provisions in the Hospitality Award have been reviewed to bring them into conformity with the WR Act. This process has included the deletion of clauses 16.3.1(a) and (b) which set out minimum and maximum hours of work for regular part-time employees.

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6. Plain English

Item 49(8)(c) of the WROLA Act provides the Commission must determine whether or not the award

is expressed in plain English and is easy to understand in both structure and content.

The AIRC again endorsed its 1995 Third Safety Net Adjustment and Section 150A Review decision (Print M5600, 9 October 1995), and noted that its 1995 publication Making Federal Awards Simpler provided guidance on drafting plain english award clauses (p.41).

7. Obsolete Provisions and Updating

Item 49(8)(d) of the WROLA Act provides that the Commission must review the award to determine whether or not it "contains provisions that are obsolete or that need updating". A range of provisions has been inserted in awards over time to deal with a particular circumstance, event or project that is no longer relevant and should be deleted. In the context of the Hospitality Award the following provisions are obsolete:

clause 19.4 - Supplementary payments;

clauses 19.5.1 to 19.5.3 - Arbitrated safety adjustment;

clause 20.1.1 - Weekend penalty rates - savings provision; and

clause 37 - Training.

The AIRC observed that:

The question of whether or not a particular award provision is obsolete is a question of fact. In the absence of agreement between the award parties, evidence is required to establish that a provision is obsolete. (p.41)

8. Trainee Wages and Supported Wage System

Item 49(8)(e) of the WROLA Act provides that the Commission must review the award to determine that, where appropriate, "it provides support to training arrangements through appropriate trainee wages and a supported wage system for people with disabilities". The existing provision in the Hospitality Award was retained, including its training requirement.

9. Discrimination

Item 49(8)(f) of the WROLA Act provides that the Commission must review the award to ensure that:

it does not contain provisions that discriminate against an employee because of, or for reasons including, race, colour, sex, sexual preference, age, physical or mental

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disability, marital status, family responsibilities, pregnancy, religion, political opinion, national extraction or social origin.

The AIRC reaffirmed the structure of its earlier model anti-discrimination clause developed in its Third Safety Net decision but made some minor changes to make this clause take account of the WR Act. The new model anti-discrimination clause is presented in Appendix 5 of this paper.9

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Appendix 4: Award simplification principles

(Source: Award Simplification Decision, p. 30; note that the Full Bench's use of 'our' and 'we' has been replaced with 'Full Bench')

1. The Commission will review awards in the following circumstances:

• upon application under Item 49 of the WROLA Act, provided that the Commission is satisfied that the applicant or applicants have made reasonable attempts to reach agreement with the other parties to the award about how the award should be varied and the treatment of matters that are not allowable award matters; and

• after 30 June 1998, when the Commission is satisfied that the award has been affected by Item 50 of the WROLA Act, relating to parts of an award that ceased to have effect at the end of the interim period.

A party proposing any departure from this principle must apply pursuant to s. 107 of the WR Act for the matter to be dealt with by a Full Bench.

2. Awards will be varied so that they:

• act as a safety net of fair minimum wages and conditions of employment (s. 88A(b));

• are simplified and suited to the efficient performance of work according to the needs of particular workplaces or enterprises (s. 88A(c)); and

• encourage the making of agreements between employers and employees at the workplace or enterprise level (s. 88A(d)).

3. A simplified award is one which provides minimum working arrangements encompassing entitlements to pay and conditions and reasonable protections for both employees and employers in the accessing and granting of the entitlements. Such awards may also include clauses which are administrative in nature (eg. title, parties bound,

arrangement) and clauses which provide for the flexible application of the award such as enterprise flexibility clauses and majority clauses.

4. When varying an award pursuant to these principles, the Commission will seek to ensure that at the end of the process the award has the following characteristics:

• it does not contain provisions that are not either allowable award matters, or both incidental to allowable award matters and necessary for the effective operation of the award;

• it provides minimum entitlements for employees in relation to allowable award matters consistent with its safety net character;

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• subject to Principle 6, it provides for rates of pay that operate as minimum rates;

• where appropriate, it includes provisions enabling the employment of regular part-time employees;

• it does not include provisions which set maximum or minimum hours of work for regular part-time employees; and

• it includes an anti-discrimination clause.

5. Where appropriate, the award must also be reviewed against Items 49(7) and (8) or Items 51(6) and (7) so that it:

• does not prescribe matters of detail or process that are more appropriately dealt with by agreement at the workplace or enterprise level;

• does not prescribe work practices that restrict or hinder the efficient performance of work;

• does not contain provisions that have the effect of restricting or hindering productivity, having regard to fairness to employees;

• contains facilitative provisions that allow agreement at the workplace or enterprise level between employers and employees (including individual employees) on how the award provisions are to apply;

• is expressed in plain English and is easy to understand in both structure and content;

• does not contain provisions that are obsolete or need updating;

• it provides support for training arrangements through appropriate trainee wages and a supported wage system for people with disabilities;

• does not contain provisions which discriminate against employees on any of the grounds specified in Item 49(8)(f); and

• complies in all other respects with the requirements of the WR Act and the WROLA Act.

6. In considering whether to vary a paid rates award pursuant to Items 49(5) and 51(4), the Commission will take into account any Full Bench decision subsequent to this one which deals with the variation of paid rates awards.

7. Award simplification does not involve a general review of the level of award entitlements. Despite this, entitlements coming within (the scope of) Items 49(7)(b) and (c) and Items 51(6)(b) and (c) may be altered if a proper basis exists for doing so.

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8. There is no requirement that an award contain provisions in respect of each of the allowable award matters. Claims for new award 10provisions may be dealt with by application in the usual way under Part VI of the WR Act. Claims for new allowances should be the subject of a separate application unless the principle of the payment of an allowance already exists in the award in relation to the same or a similar entitlement. Even in those cases the form and amount of the allowance must be justified on the merits.

9. The new Hospitality Award which the Full Bench proposes, subject to settlement of the draft order, provides guidance to the parties to other awards in the award simplification process. In each award, account will need to be taken of any special circumstances which might be relevant. To assist award parties generally, the Commission has prepared two tables which illustrate the application of ss. 89A(2) and (6) to the Hospitality Award (Attachments D and E). In addition to the personal leave model framework clause (Attachment B) the proposed award contains amended model clauses for enterprise flexibility, anti-discrimination and parental leave.

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Appendix 5 - Model clauses

ANTI-DISCRIMINATION MODEL FRAMEWORK CLAUSE (proposed for clause 13 of the revised Hospitality Award. Source: Award Simplification Decision p. 43)

13.1 It is the intention of the respondents to this award to achieve the principal object in s.3(j) of the Workplace Relations Act 1996 through respecting and valuing the diversity of the work force by helping to prevent and eliminate discrimination on the basis of race, colour, sex, sexual preference, age, physical or mental disability, marital status, family responsibilities, pregnancy, religion, political opinion, natural extraction or social origin.

13.2 Accordingly, in fulfilling their obligations under the dispute avoidance and settling clause, the respondents must make every endeavour to ensure that neither the award provisions nor their operation are directly or indirectly discriminatory in their effects.

13.3 Nothing in this clause is taken to affect:

13.3.1 any different treatment (or treatment having different effects) which is specifically exempted under the Commonwealth anti-discrimination legislation;

13.3.2 junior rates of pay, until 22 June 2000 or later date determined by the Commission in accordance with s. 143(1E) of the Act;

13.3.3 an employee, employer or registered organisation, pursuing matters of discrimination in any State or federal jurisdiction, including by application to the Human Rights and Equal Opportunity Commission;11

13.3.4 the exemptions in s. 170CK(3) and (4) of the Act.

PERSONAL LEAVE MODEL FRAMEWORK CLAUSE (Source: Award Simplification Decision, p. 55)

1. Amount of Paid Personal Leave

1.1 Paid personal leave will be available to an employee when they are absent due to

• personal illness or injury (sick leave); or

• for the purposes of caring for an immediate family or household member who is sick and requires the employee's care and support (carer's leave); or

• bereavement on the death of an immediate family or household member (bereavement leave).

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• 1.2(i) Personal leave of: [sum of current sick leave plus bereavement leave award entitlement] will be available in the first year of service;

• [sum of current sick leave plus bereavement leave award entitlement] will be available per annum in the second and subsequent years of service.

1.2(ii) In any year unused personal leave accrues at the rate of the lesser of:

(a) [current award sick leave entitlement] less the amount of sick leave taken from the current year's personal leave entitlement in that year; or

(b) the balance of that year's unused personal leave.

1.2(iii) Personal leave may accumulate to a maximum of [insert current award maximum sick leave accumulation limit].

2. Immediate Family or Household

2.1 The entitlement to use personal leave for the purposes of carer's or bereavement leave is subject to the person being either:

2.1(i) a member of the employee's immediate family; or

2.1(ii) a member of the employee's household.

2.2 The term "immediate family" includes:

2.2(i) spouse (including a former spouse, a de facto spouse and a former de facto spouse) of the employee. A de facto spouse means a person of the opposite sex to the employee who lives with the employee as his or her husband or wife on a bona fide domestic basis; and

2.2(ii) child or an adult child (including an adopted child, a step child or an ex-nuptial child), parent, grandparent, grandchild or sibling of the employee or spouse of the employee.

3. Sick Leave

3.1 An employee is entitled to use up to [current award entitlement] of the current year's personal leave entitlement as sick leave in the first year of service and [current award entitlement] in the second and subsequent years of service.

3.2 An employee is entitled to use accumulated personal leave for the purposes of sick leave where the current year's sick leave entitlement has been exhausted.

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3.3 [insert any notice, certification etc. provisions].

4. Bereavement Leave

4.1 An employee is entitled to use up to [current award entitlement] personal leave as bereavement leave [on each occasion/annually as prescribed in existing award].

4.2 Where an employee has exhausted all personal leave entitlements, including accumulated entitlements, they will be entitled to [current award entitlement] unpaid bereavement leave.

4.3 [insert any provisions for overseas deaths, notifications, proof of death etc.].

5. Carer's Leave

5.1 An employee is entitled to use up to five days personal leave each year as carer's leave.

5.2 [insert requirements regarding proof, notification etc].

5.3 An employee may take unpaid carer's leave by agreement with the employer.12

ENTERPRISE FLEXIBILITY PROVISIONS (proposed as clause 9 of the revised Hospitality Award. Source: Award Simplification Decision pages 9 and 93).

Where an employer or employees wish to pursue an agreement at the enterprise or workplace about how the award should be varied to make the enterprise or workplace operate more efficiently according to its particular needs the following processes shall apply:

9.1 A consultative mechanism and procedures appropriate to the size, structure and needs of the enterprise or workplace shall be established.

9.2 For the purpose of the consultative process the employees may nominate the Union or another to represent them.

9.3 Where agreement is reached an application shall be made to the Commission.13

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Endnotes

1. AIRC, Award Simplification Decision (Print P7500) 23 December 1997.

2. Department of the Parliamentary Library, Award Simplification: Progress Report (Current Issues Brief No. 6 1997-98).

3. AIRC, op. cit., p. 3.

4. ibid.

5. ibid., p. 34

6. ibid., p. 30

7. AIRC, Award Simplification Decision (Print P7500) 23 December 1997, p. 63.

8. ibid., p. 71.

9. ibid., p. 33.

10. ibid., p. 30

11. ibid., p. 43.

12. ibid., p. 55.

13. ibid., pp. 9, 93.