Under the Fair Work Act 2009 CTH Modern Awards undergo a full formal review every four years, and a technical review every two years. The determinations from the 2012 technical review have been posted and the result has been some changes to the Modern Awards in the downstream petroleum industry. This weeks HR Highlight will explore the changes and the impact on businesses in the industry.

The Review

Under the Fair Work Act the technical review is of a narrower scope than the four year full review. The technical review focuses on correcting drafting errors and clarifying interpretive confusion. Changes can be made to the Awards that will apply retrospectively or prospectively. The retrospective changes are made as such because they are to correct drafting errors and clarify intentions that were there from the beginning of the Award.

The Changes

The Vehicle Manufacturing Repair Services and Retail Award 2010 (VMRSRA) is one of the Awards that has been modified under the technical review. The changes are primarily cosmetic or clarification based, but it is import to understand what they are and the impact they will have on the practical operations of the business. On the whole the changes are retrospective in action, making them in force from 1/1/2010. The intention of this is not to create a back debt for any clauses changed that may impact on payment, but rather to make it clear that the current reading was the intention when the Award was first created. In the instance that the change may result in a change in payments or conditions they will need to be rectified moving forward. The changes made that effect the downstream petroleum industry do not create such a situation, so businesses can rest easy on that count. A full table of the changes, the reasons for the change and an exploration of the impact on businesses is included at the end of this article.

What you need to do

It is important for all businesses to clearly articulate to staff the employment instrument that they are engaged under. For many job roles in the downstream petroleum industry this means that under individual contracts, enterprise agreements or collective agreements sits the Awards. All staff should be made aware of the primary instrument of employment and the underlying Award and classification. Staff should also be made aware of where they can locate a copy of their employment instrument and underlying Award.

Many businesses keep a copy of the Award onsite to satisfy this requirement. ACAPMA advises members to update their copy of the VMRSRA using the following link: http://www.fwc.gov.au/documents/modern_awards/pdf/MA000089.pdf

Other Awards

The determinations for the Road Transport and Distribution Award and the Clerks Private Sector Award, are yet to be released. ACAPMA will monitor this situation and advise Members when changes are determined in these Awards.

Here to Help

ACAPMA members are reminded that the ACAPMAlliance Workplace Relations Professionals are available to assist with all employment matters. For more information just call 1300 160 270.

HR Highlights are things to consider, implement and watch out for in your business. They are provided as general advice and you should seek further advice on your situation by calling 1300 160 270 and speaking to one of the ACAPMA Workplace Relations Professionals it’s free for members.

ACAPMA membership is affordable at only $550 per year for a single site and valuable with sites gaining HR advice support and representation as well as a raft of other benefits and discounts. Click here to learn more about ACAPMA membership.

Elisha Radwanowski BCom (HRM & IR)
ACAPMA Workplace Services Manager

So what changed exactly?

The varied clauses that impact on businesses in the downstream petroleum industry include:

3.1“adult roadhouse attendant means an employee of 20 years of age or over employed  in a roadhouse, snack bar, kiosk or restaurant being part of or operated as an integral part of an establishment falling within the area of this award”Word adult added as it was omitted as a drafting error.

Change retrospective from  1/1/2010

No practical impact on business operations
26.7“In addition to a meal break, an employer may provide to an employee either a morning or afternoon tea break not exceeding 15 minutes. Where a break is unpaid it must not exceed 15 minutes duration. Where both a morning and an afternoon tea break is provided on the same day or shift at least one of such breaks must be paid.”Sentences added to clarify that up to one tea break is unpaid.

Change retrospective from 1/1/2010

Possible impact if paid breaks are a standard used in the business.  Does not change current arrangement for paid breaks above the Award without consultation.
28.1.bcasual employees covered by clause 36Casual rates for driveway attendants,
roadhouse attendants and console operators or clause 41Casual employees
Sentences added to clarify where to find the clause that does apply to casual driveway attendants

Change retrospective from 1/1/2010

No practical impact on business operations
28.2.aAn employee required to work outside the ordinary hours as prescribed by the award [note: deleted – on a Sunday or public holidays] will be paid as follows:Added and deleted to clarify that the clause deals with overtime generally not just weekend and public holiday overtime.

Change retrospective from 1/1/2010

Potential impact on some individual flexibility agreements or facilitative agreements that have varied the use of ordinary hours.  The intention of the technical review is not to change existing onus but to clarify so the impact should be nil.  Future treatment should include reference to Clause 28.2
28.5.bFor work other than that referred to in clause 28.5(a) and clause 28.9 an
employee required to work overtime on a Sunday or a public holiday will be
afforded at least four hours work or paid for four hours at the appropriate rate.
Added to clarify that the 4 hour minimum does not apply to overtime worked on a Public Holiday or Sunday

Change retrospective from 1/1/2010

No practical impact on business operations
35.1A junior or adult apprentice undertaking a full-time or part-time course can advance through an apprenticeship either by completing each stage of the required competencies in accordance with an agreed training plan entered into by an
employer, an employee and the required training provider and consistent with the regulations of the relevant State or Territory  Apprenticeship training Authority, or by completing each year of service of an apprenticeship.
Added to clarify the staged nature of apprentices

Change retrospective from 1/1/2010

No practical impact on business operations
41.1.bdriveway attendant, console operator, roadhouse attendant (for casuals doing  this type of work see clause 43.6).Added for each of navigation to the clause that does apply to these employees.

Change retrospective from 1/1/2010

No practical impact on business operations
43.3Ordinary hours worked on Saturdays, Sundays and public holidays
(a) Permanent employees principally engaged to perform duties of a driveway attendant, console operator or a roadhouse attendant will be paid as follows:
(i) Saturday work – ordinary time until noon, time and a half thereafter;
(ii) Sunday work – time and a half; and
(iii) public holidays – ordinary time for the period worked in addition to the
ordinary rate of pay.
(b) Payments prescribed by this clause will stand alone and will not be included  for any other purpose of this award.
Added to clarify that each payment stands alone, which was omitted in error from the original draft

Change retrospective from 1/1/2010

No practical impact on business operations
42.2Despite the provisions of clause 43.3(a), where an employee covered by clause 43.3 works a night shift which finishes on Saturday morning, the relevant night shift  penalty in clause 42.2 will continue to apply for that portion of the shift falling on
Saturday morning. If that Saturday is a public holiday then the public holiday rate in clause 43.3(a)(iii) will apply instead of the relevant night shift penalty rate in clause 42.2 for that portion of the shift falling on the public holiday
Added to clarify the transition from week to weekend and regular day to public holidayNo practical impact on the business, except where the business has taken the more generous reading of applying a penalty rate to the whole shift when a majority of the shift occurs on a public holiday, as is the practice of some business.  The step back to Award provisions and paying based on actual hours of the shift as per 42.2 would require consultation and notification of a nature that would depend on the employment instrument involved
43.4a) Permanent employees principally engaged to perform duties of a driveway attendant, console operator or a roadhouse attendant when required to work outside their ordinary hours will be paid as follows:
(i) on a Sunday at the rate of double time;
(ii) on a public holiday at the rate of double time; or
(iii) at other times at the rate of time and a half for the first three hours and
then double time thereafter.
(b) the extra rates prescribed by clause 43.4(a) are in substitution for and not
cumulative upon the shiftwork allowances prescribed in clause 42.2 of this award.
Added to clarify that the overtime provisions of 43.4 override the provisions of 42.2No practical impact on the business
24.4.a.iiiExcept that where an employee abandons his or her employment or the employee’s employment is terminated without notice for serious and wilful misconduct the employer will pay the wages due to the employee within two business days (not including a Saturday, Sunday or public holiday) of the termination.added to provide more time to process termination payment in recognition of operational constraintsNo practical impact on the business