REVIEW OF CLAUSES 7, 8 AND 16 OF THE MUNICIPAL EMPLOYEES (WESTERN AUSTRALIA) AWARD 2021 PURSUANT TO S 40B OF THE INDUSTRIAL RELATIONS ACT 1979 (WA)

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

CITATION : 2023 WAIRC 00837

DELIVERED : THURSDay, 26 October 2023

FILE NO. : APPL 27 OF 2023

Applicant

AND

(Not Applicable)

Respondent

CatchWords : Industrial Law (WA) — Commission's Own Motion review of Award — Municipal Employees (Western Australia) Award 2021 — s 40B — Whether provisions obsolete or in need of updating — Enterprise flexibility clause — Facilitative provisions — Whether clauses permit agreement to alter effect of Award obligations — Whether evidence of disuse justifies removal

Legislation : Industrial Relations Act 1979 (WA)

Minimum Conditions of Employment Act 1993 (WA) 

Result : Award varied

Representation:

Mr C Fogliani of counsel on behalf of the Western Australian Municipal, Administrative, Clerical and Services Union of Employees

Mr N Ellery of counsel on behalf of the Western Australian Local Government Association

Mr K Trainer on behalf of the Local Government, Racing and Cemeteries Employees Union (WA)

Case(s) referred to in reasons:

Amalgamated Metal Workers and Shipwrights Union of Western Australia & Ors v Anchorage Butchers Pty Ltd & Ors (1982) 62 WAIG 830 (Anchorage Butchers Pty Ltd)

Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union’ known as the Australian Manufacturing Workers’ Union v Visy Packaging Pty Ltd [2022] FWC 1800

Commission’s Own Motion v Not applicable [2005] WAIRC 03121; (2007) 87 WAIG 898

City of Cockburn v Western Australia Municipal, Administrative, Clerical and Services Union of Employees (WASU) & Ors [2023] WAIRC 00797

Federated Municipal and Shire Council Employees Union of Australia and City of Melbourne & Ors; The Municipal Employees (Western Australia) Award 1982 (1983) 290 CAR 206; Print F2794

Federated Municipal and Shire Council Employees Union of Australia and Melbourne City Council & Ors (1983) 291 CAR 330; Print F3509

Ngala Family Resource Centre v The Australian Liquor, Hospitality and Miscellaneous Workers Union, Miscellaneous Workers Division, Western Australian Division (1997) 77 WAIG 2551

Re Award Simplification Decision (1997) 75 IR 272; Print 7500

Safety Net Adjustments and Review - September 1994 (1994) 56 IR 114

Western Australian Municipal, Administrative, Clerical and Services Union of Employees v City of Kalamunda & Ors [2021] WAIRC 00116; (2021) 101 WAIG 375

Reasons for Decision

1         Section 40B of the Industrial Relations Act 1979 (WA) permits the Commission to vary an award for purposes including to ensure the award does not contain provisions that are obsolete or need updating. The Commission initiated this matter under s 40B of the Act to vary the Municipal Employees (Western Australia) Award 2021 (ME Award). It was heard concurrently with APPL 26 of 2023 concerning the Local Government Officers’ (Western Australia) Award 2021 (LGO Award), as the issues in that matter and this one overlap.

2         On 26 October 2023, I issued reasons for decision in APPL 26 of 2023 [2023] WAIRC 00836. These reasons should be read together with the reasons in APPL 26 of 2023.

3         In this matter, the key contentious issue is whether the ME Award cl 8 Index of Facilitative Provisions (and the facilitative provisions referred to in that clause) should be removed from the Award because they are obsolete.

4         The parties to the ME Award are The Western Australian Municipal, Administrative, Clerical and Services Union of Employees (WASU), the Local Government, Racing and Cemeteries Employees Union (WA) (LGRCEU) and 25 local government employers. Both WASU and the LGRCEU participated in these proceedings. The employers named as respondents to the ME Award did not participate in the proceedings. However, the Western Australian Local Government Association (WALGA) was granted leave to intervene on the basis that it had sufficient interest in the matter as the peak membership body of local government employers in Western Australia.

5         The ME Award, like the LGO Award, was made by the Commission in 2021 on WASU’s application of WASU, and without objection from the LGRCEU or the local government authorities who were represented in the application for the Award: Western Australian Municipal, Administrative, Clerical and Services Union of Employees v City of Kalamunda & Ors [2021] WAIRC 00116; (2021) 101 WAIG 375.

6         The parties in these proceedings all agree that cl 7 ‘Enterprise Flexibility’ is invalid and should be removed from the ME Award.

7         In short, that is because cl 7 purports to enable an individual employer and an employee or group of employees to vary the award or make an agreement with the effect of altering the award’s obligations. For the reasons articulated by the Industrial Appeal Court in Ngala Family Resource Centre v The Australian Liquor, Hospitality and Miscellaneous Workers Union, Miscellaneous Workers Division, Western Australian Division (1997) 77 WAIG 2551 (Ngala) and the Full Bench in City of Cockburn v Western Australia Municipal, Administrative, Clerical and Services Union of Employees (WASU) & Ors [2023] WAIRC 00797, there is no statutory basis under the Act for such a provision in an award.

8         Accordingly, cl 7 ‘Enterprise Flexibility’ should be removed.

Clause 8 ‘Index of Facilitative Provisions’: parties’ submissions

9         In relation to cl 8, Facilitative Provisions, WASU’s and WALGA’s submissions in this matter were along the same lines as their submissions made in APPL 26 of 2023. The LGRCEU adopted most of WASU’s submissions, but while WASU characterised cl 8 itself as descriptive of the substantive facilitative provisions, rather than operative in and of itself, LGRCEU argued that cl 8 was itself operative. It argued that cl 8 enabled employers who are otherwise bound by the ME Award to reach an agreement with the unions, an individual employee or a majority of employees that has the effect of bypassing the award in respect of the matters listed in cl 8.1. To that extent, the LGRCEU says cl 8 as a whole is against the scheme of the Act.

10      Clause 8 provides:

8.1 A facilitative provision is one which provides that the standard approach in an award provision may be departed from by agreement between an individual employer and the Union and/or an employee, or the majority of employees, in the enterprise or workplace concerned.

8.2 Facilitative provisions in this award are contained in the following clauses:

11      LGRCEU’s submissions highlight the conceptual impossibility of legally binding rights or obligations being created by a ‘majority employee’ mechanism, whatever that phrase might mean. The Act’s scheme facilitates industrial instruments that are binding on employees individually and as a collective, through the registration of unions that are parties to the industrial instruments. So, the LGRCEU argues, such an agreement can only have effect as an individual agreement between the employer and each individual employee constituting the ‘majority’. As such, those agreements are enforceable only if registered in accordance with Part VID Employer‑Employee Agreements of the Act. Further, to the extent that such agreements may be inferior to the ME Award, they would be ousted by s 114 of the Act, which prohibits contracting out of award provisions.

12      While the LGRCEU is correct to say that individual agreements of the character described above are not part of the scheme of the Act, this does not provide the answer to whether cl 8 is obsolete and should be removed. In my view, cl 8 is not itself operative. It does not have the effect of enabling agreements. Rather, it is, like a definition clause, merely descriptive of particular provisions of the ME Award, which purport to be facilitative provisions.

13      It sets out the intention behind their inclusion in the award. Clause 8 is introductory, or a flag.

14      This characterisation of cl 8 is consistent with the ordinary and natural language of cl 8.1. It refers to what a facilitative provision is. It does not contain language of obligation or permission such as ‘Party A may do X’ or ‘Party B shall do Y’. The language used is substantially the same as the definition of ‘facilitative provision’ given by the Australian Industrial Relations Commission (AIRC) in the September 1994 Safety Net Adjustments and Review (1994) 56 IR 114 at pp 135‑136.

15      The characterisation is also consistent with the heading of the clause being ‘Index of Facilitative Provisions’ and the structure of the clause, with cl 8.2 setting out which clauses ‘contain’ the facilitative provisions.

16      As cl 8 is not itself an operative provision, this means that I must survey the particular ‘facilitative provisions’ listed in cl 8.2 to determine whether, in substance, they purport to enable agreements to vary the ME Award with the effect of altering the award’s obligations, or whether they merely relate to the manner in which award obligations are to be applied.

Alternative Method of Payment of Wages – Clause 18.5

17      Relevant parts of cl 18 are set out below:

18.1 Each employee shall be paid the appropriate rate shown in Clause 16. ‑ Wages, of this award. Subject to 18.2, payment shall be pro rata where less than the full week is worked.

18.2 Wages shall be paid at the discretion of the employer on either a weekly or fortnightly basis.

…

18.4 Absences from duty

18.4.1 An employee whose ordinary hours are arranged such that the employee receives a rostered day (RDO) and who is paid wages averaged over the roster period and is absent from duty (other than on annual leave, long service leave, holidays prescribed under this award, paid sick leave, workers’ compensation or bereavement leave) shall, for each day he/she is so absent, lose average pay for that day calculated by dividing his/her average weekly wage rate by five.

18.4.2 An employee who is absent from duty for part of a day shall lose average pay for each hour he/she is absent by dividing his/her average daily pay rate by eight.

18.4.3 Provided when such an employee is absent from duty for a whole day he/she will not accrue a credit because he/she would not have worked ordinary hours that day in excess of 7 hours 36 minutes for which he/she would otherwise have been paid. Consequently, during the week of the work cycle he/she is to work less than 38 ordinary hours, he/she will not be entitled to average pay for that week. In that week, the average pay will be reduced by the amount of the credit he/she does not accrue for each whole day during the work cycle he/she is absent.

18.4.4 The amount by which an employee’s average weekly pay will be reduced when he/she is absent from duty (other than on annual leave, long service leave, holidays prescribed under this award, paid sick leave, workers’ compensation or bereavement leave) is to be calculated as follows:

18.4.5 Examples

…

18.5 Alternative method of payment

An alternative method of paying wages to that prescribed by 18.2 and 18.4 may be agreed between the employer and the majority of the employees concerned and recorded in writing and kept with the relevant wage records.

…

(emphasis added)

18      Clauses similar to this have appeared in state and federal awards covering municipal employees in Western Australia since 1983. The clause was inserted into the Municipal Employees (Western Australia) Award 1982 relating only to the City of Perth by a consent order of the Australian Conciliation and Arbitration Commission: Federated Municipal and Shire Council Employees Union of Australia and City of Melbourne & Ors; The Municipal Employees (Western Australia) Award 1982 (1983) 290 CAR 206; Print F2794. At that time, the City of Perth was transitioning from a 40‑hour to a 38‑hour working week, and it was envisaged that award variations would be sought by agreement extending the 38‑hour week provisions to other local governments. The union and employer parties agreed on these terms for the implementation of the shorter week, following the approach of the metal trades industry consent award made in December 1981.

19      Shortly after, in November 1983, and again by consent, the Municipal Employees (Western Australia) Award 1982 was further varied to extend the 38‑hour week provisions, including this cl 18.5, to the other award respondents: Federated Municipal and Shire Council Employees Union of Australia and Melbourne City Council & Ors (1983) 291 CAR 330; Print F3509.

20      The approach of the metal trades industry consent award is set out in the schedule of variations in Amalgamated Metal Workers and Shipwrights Union of Western Australia & Ors v Anchorage Butchers Pty Ltd & Ors (1982) 62 WAIG 830 (Anchorage Butchers Pty Ltd). Relevant extracts from that schedule are annexed to these reasons.

21      The schedule reveals that the purpose of the variations to the Payment of Wages clause of the metal trades industry award was to enable weekly wages to be averaged to avoid fluctuating wage payments each week. The need for such a provision arose in the context of implementing a reduction in ordinary working hours from 40 to 38, which might be achieved through various methods, as contemplated by cl 3, including through rostered days off during a work cycle.

22      While cl 8(2) mentions that wages are to be paid weekly or fortnightly, most of the text of cl 8(2) is directed at the method of averaging in circumstances where hours worked might fluctuate from week to week. Similarly, cl 8(3) deals with the method of averaging when an employee is absent from work. Clause 8(3) does not deal with the frequency of payment.

23      So when cl 8(4) refers to an ‘alternative method of paying wages to that prescribed by sub‑clause (2) and (3)’ it must be referring to the averaging system, not the frequency of payment. The averaging system is common to both sub‑clauses referenced. Further, had cl 8(4) been directed at the frequency of payment, it would have said as much, rather than using the word ‘method’, which is inapt to describe the frequency of payment.

24      When comparing cl 18 of the ME Award to cl 8 of the Metal Trades (General) Award as varied in 1982, it appears that cl 18.5 retains the original form of cl 8.3. But cl 18.2 makes no mention at all of the averaging system. It only contains the obligation to pay wages weekly or fortnightly. I have not attempted to ascertain why cl 18.2 has evolved in the way it has, but it is reasonable to infer that the relevance of the averaging system would naturally diminish over time after the implementation of the 38‑hour week.

25      This raises the possibility that the retention of cls 18.2 and 18.5 after the removal of the averaging system in cl 18.2 is an unintended omission. Or that at least the retention of the reference to cl 18.2 in cl 18.5 is an oversight and that it was never really intended that the obligations to pay wages weekly or fortnightly be able to be altered by agreement. However, I have not heard from the parties in this regard, so will not make any conclusion about the correct construction of cl 18.5.

26      What I can say, is that the current text of cl 18.2 creates an obligation to pay wages weekly or fortnightly. That is an obligation that an agreement made under cl 18.5 will impermissibly affect.

27      I therefore consider that cl 18.5 is invalid to the extent that it purports to permit an agreement about the matters contained in cl 18.2.

28      Clause 18.4 is in a different category. It does not contain any obligation. Rather, it specifies how pay is to be adjusted in circumstances where an employee who has a Rostered Day Off, but who is ordinarily paid according to an averaging system (presumably in accordance with a method that is no longer expressly specified), is absent from work. It does not, and cannot, affect the primary obligation in cl 18.1 to pay the cl 16 wage rate for a full week’s work, or pro rata where less than the full week is worked.

29      Accordingly, cl 18.5 is permissible to the extent that it enables agreement about cl 18.4 matters.

30      However, because I suspect that cls 18.3 and 18.4 have been carried over from previous industrial agreements unintentionally, I will hear from the parties as to whether those clauses are obsolete and should be removed for reasons other than reasons concerning their validity as facilitative provisions.

Hours of duty – spread of hours – Clauses 20.1.2(1) and 20.1.5(1)

31      Relevant parts of cl 20 are set out below:

…

20.1.1 Subject to the provisions of this subclause, the ordinary hours of work shall be an average of 38 per week to be worked on one of the following bases:

(1) 38 hours within a work cycle not exceeding seven consecutive days; or

(2) 76 hours within a work cycle not exceeding 14 consecutive days; or

(3) 114 hours within a work cycle not exceeding 21 consecutive days; or

(4) 152 hours within a work cycle not exceeding 28 consecutive days.

20.1.2 Except as hereinafter provided:

(1) The ordinary hours of duty may be worked on any or all days of the week, Monday to Friday inclusive shall be worked between the hours of 6.00 a.m. and 5.00 p.m. Provided that the spread of hours may be altered by agreement between the employer and the majority of employees in any section or sections of the workforce. And the agreement is recorded in writing and kept with the relevant time records.

…

…

32      This provision also appears to be modelled on the Metal Trades (General) Award. It is substantially the same as the provisions first introduced into cl 2 of the Metal Trades (General) Award in 1982: Anchorage Butchers Pty Ltd p 831, and which the Commission in Court session was content to permit in Commission’s Own Motion v Not applicable [2005] WAIRC 03121; (2007) 87 WAIG 898.

33      In 1999, Senior Deputy President Marsh of the AIRC considered whether to include a provision for majority agreement to alter the spread of hours by up to one hour at either end of the spread in the Graphic Arts ‑ General ‑ Interim Award 1995 Re Award Simplification Decision (1997) 75 IR 272; Print 7500. The Senior Deputy President drew guidance from the Full Bench’s Re Award Simplification Decision (1997) 75 IR 272; Print 7500, including its statements at pp 38‑39:

1. Facilitative provisions should not be a device to avoid award obligations, nor should they result in unfairness to the employees covered by the award.

2. Facilitative provisions provide for agreement at the workplace level about the manner in which a particular award provision is to be applied. Such agreements may be between:

• the employer and an employee; or

• the employer and a majority of employees at the workplace. Once such an agreement has been reached, the particular form of flexibility agreed may be utilised by agreement between the employer and an individual employee.

3. To ensure that a facilitative provision operates fairly, the Commission may prescribe safeguards, including provisions:

• which require that the implementation of facilitative arrangements be recorded in the time and wages records kept by the employer pursuant to Division 1 of Part 9A of the Workplace Relations Regulations;

• for the notification of unions party to the relevant award who have members employed at the particular enterprise of the intention to utilise the facilitative provision and providing such unions with a reasonable opportunity to participate in negotiations regarding its use. Union involvement in this process does not mean that the consent of the union is required prior to the introduction of agreed facilitative arrangements at the enterprise;

• for a monitoring process under which a particular facilitative provision is reviewed, after a reasonable period, to consider its impact in practice.

4. The safeguards, if any, provided in respect of a particular facilitative provision will depend on the nature of the provisions sought and the circumstances of the particular industry.

5. Facilitative provisions should be used to promote the efficient performance of work at the enterprise level and to avoid the prescription of matters in unnecessary detail.

34      In allowing the facilitative provision about the spread of hours, the Senior Deputy President stated at [147]:

I make it clear that the introduction of a facilitative clause as sought by the employers falls within the scope of facilitation decided in the Award Simplification Decision. The level of the shift penalty and the overtime rates is not reduced ‑ the facilitation permits an additional hour to be worked at ordinary time without incurring the penalty or overtime rate but only on an agreed basis.

35      In Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union’ known as the Australian Manufacturing Workers’ Union v Visy Packaging Pty Ltd [2022] FWC 1800, Gostencnik DP described a substantially similar clause in the Manufacturing and Associated Industries and Occupations Award 2010 (Manufacturing Award) as being ‘concerned with the methods of arranging ordinary working hours for day workers’, with the specified spread of hours being a default position: [65]‑[66]. The Deputy President referred to the Manufacturing Award’s definition of a facilitative provision, as a provision that allows agreement between an employer and employees on how specific award provisions are to apply at the workplace or a section or sections of it. And that the specific award provisions establish both the standard or default position and the framework within which agreement can be reached as to how the particular provisions should be applied in practice: [69]‑[70].

36      Therefore, identifying a clause as a facilitative provision indicates that the specific provisions are not obligations, but are, rather, a default position from which there can be departure without altering the award’s obligations.

37      In that same vein, the specified spread of hours in cl 20.1.2 is a default position. Accordingly, any agreement made under the clause is one that is about how the obligation to recognise ordinary hours of 38 per week is to be implemented. It is not an agreement that has the effect of altering the award obligation. Such an agreement is permissible.

Hours of duty – Clause 20.1.5(1)

20.1.5 The ordinary hours of work shall be consecutive except for a meal interval, which shall not exceed one hour; and

(1) An employee shall not be compelled to work for more than five hours without a meal interval except where an alternative arrangement is entered into by mutual agreement.

(2) When an employee is required for duty during his/her usual meal interval and his/her meal interval is thereby postponed for more than half an hour; he/she shall be paid at overtime rates until he/she gets his/her meal.

38      Clause 20.1.5(1) must be read in the context of cl 20.1.5(2). The entitlement to be paid overtime rates under cl 20.1.5(2) cannot be triggered unless there is a mechanism for an employee to work during their normal meal interval, or to postpone the interval for more than half an hour. This shows that the award permits the meal interval to be moved back beyond five hours. In other words, the award does not oblige the employer to always allow a meal interval after five hours. Rather, a meal interval can be moved back, and the method by which it is to be moved back is mutual agreement.

39      The clause is permissible.

Annual leave – leave to be taken – Clause 23.6.1

23.6 Leave to be taken

23.6.1 Annual leave shall be given and taken in such period or periods and at such a time or at such times mutually convenient to the employer and the employee and, except as hereinafter provided, within twelve months of the date upon which the leave accrued due.

23.6.2 In special circumstances, and with the consent of the employer, an employee may defer the taking of any accrued annual leave, or any part thereof not taken, for a period not exceeding two years after the date when the leave accrued due

40      WASU did not argue this clause purports to enable a departure from the award. The clause states what is the practical method of taking annual leave, that is, by taking the leave at times that are mutually convenient to the employer and the employee. To that extent, the clause is consistent with the Minimum Conditions of Employment Act 1993 (WA) (MCEA).

41      I note that the clause purports to limit the circumstances where annual leave can be taken outside of 12 months of the date upon which the leave accrued due. These limits may be contrary to s 25(1) of the MCEA, which prohibits an employer from refusing an employee taking, at any time suitable to the employee, any annual leave that accrued more than 12 months before that time. This is a different issue, but may be a reason to vary cl 23.6.1. I will hear from the parties in this regard.

Public holidays – substitute days – Clause 24.4.1(1)

24.4 Substitute days

24.4.1 An employer, with the agreement of the union which is a party to this award, may substitute another day for any prescribed in this clause.

(1) An employer and his or her employees may agree to substitute another day for any prescribed in this clause. For this purpose, the consent of the majority of affected employees shall constitute agreement.

…

42      WASU does not contend this clause is invalid or impermissible because it involves the unions in the process of agreeing to any substitution of days for public holidays and referral for arbitration by the Commission in the event of disagreement.

43      In my view, the unions’ involvement in the agreement is not determinative of the clause’s validity. Like cl 28.4.1 of the LGO Award, this provision, properly categorised, concerns the method for meeting the obligation in cl 24.1 to allow employees to take holidays without loss of pay. It provides an alternative method by which the obligation can be satisfied, that is, by substituting another day for the listed public holiday.

Parental leave – commencement of leave – Clause 28.3.4

28.3 Maternity leave

28.3.1 An employee must provide notice to the employer in advance of the expected date of commencement of parental leave. The notice requirements are:

(1) of the expected date of confinement (included in a certificate from a registered medical practitioner stating that the employee is pregnant) ‑ at least ten weeks;

(2) of the date on which the employee proposes to commence maternity leave and the period of leave to be taken – at least four weeks.

…

28.3.4 Subject to 28.2.1 and unless agreed otherwise between the employer and employee, an employee may commence parental leave at any time within six weeks immediately prior to the expected date of birth.

44      WASU did not argue this clause is invalid. It accepts that the clause does not purport to prevent departure from the award. It is clearly a provision that concerns how specific award provisions apply in practice. It does not purport to allow an agreement to alter award obligations.

45      The clause is permissible.

If the facilitative provisions are valid, are they obsolete due to disuse?

46      As in APPL 26 of 2023, WASU and LGRCEU each argued that even if the clauses were valid, they should be removed because there is no evidence of their current use. Mr Fitz Gerald’s evidence was relied upon. What he told the Commission about the LGO Award, he said, applied equally to the ME Award. He did not recall ever providing a service to any of his clients in relation to cl 8 of the ME Award and has never been approached for advice on how to apply the clause. Nor was he aware of any clients that have taken the initiative themselves to apply the facilitative provisions. He offered the opinion that removing the clause would have no impact on his clients.

47      However, in cross‑examination, he conceded that in 2021, he had been involved in registering an industrial agreement under s 41 for a regional local government employer, which contained provisions for flexibility in relation to how hours of work could be organised. The particular clause permitted the spread of hours to be altered by agreement between the employer and a majority of employees in any section or sections of the workforce.

48      He also confirmed that in 2020 he had been involved in the registration of an enterprise bargaining agreement for a rural local government authority, which provided for an employee and the Shire to agree to substitute a day taken as a holiday in substitution for a named public holiday, and for various allowances and leave loading to be incorporated in an annual salary by agreement between the employer and an employee.

49      WALGA relied on Ms Davina Hunter’s evidence to establish that the contentious clauses remain relevant and are not obsolete. In relation to the ME Award, Ms Hunter could not recall a specific example of advice given to a local government about the hours of work clause but said:

…we do receive inquiries around hours of work and span of hours, and whether there is an ability, for employers and employees to agree to vary those – the times when an employee will start and finish work. That normally arises in the context of [a] request for change in start time for caring responsibilities, family responsibilities, and just generally to provide flexibility to employees…

50      As for the substitution of public holidays in cl 24.4.1, Ms Hunter was not aware of that clause being applied, but did say that similar provisions for substitution of public holidays by agreement were included in industrial agreements, and those industrial agreements were the subject of advice that WALGA had given members.

51      As observed in APPL 26 of 2023, the evidence gives the overall impression that the facilitative provisions of the ME Award are rarely if ever used. However, for the same reasons that I expressed in APPL 26 of 2023, I do not consider this is a sound basis for their removal from the ME Award.

Orders

52      Further to the matters dealt with in these reasons, the Commission initiated this matter of its own motion additionally because the ME Award contains rates of pay that are less than the statutory minimum rates of pay. This matter was listed to determine the issues concerning cls 7 and 8 only, and the balance of the proceeding was adjourned to be dealt with at a later date.

53      In light of the above reasons and those in APPL 26 of 2023, the ME Award should be varied by deleting cl 7 ‘Enterprise Flexibility’.

54      The matter will otherwise be relisted so I may hear from the parties in relation to:

(a) what variations might be necessary to cl 18.5, reflecting my reasons;

(b) whether variations should be made to cls 18.4 and 23.6.1 for reasons not the subject of argument at the hearing of this matter; and

(c) how the ME award should be varied to remove rates of pay that are below statutory minimum rates.

Schedule