TRANSPORT WORKERS (GENERAL) AWARD NO. 10 OF 1961

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

CITATION : 2024 WAIRC 00022

DELIVERED : THURSday, 18 January 2024

FILE NO. : APPL 73 OF 2023

Applicant

AND

Baking Industry Employers Association of Western Australia (INC)

Respondent

CatchWords : Industrial Law (WA) – Award variation – Transport Workers (General) Award No 10 of 1961 – Consolidation of awards – Breadcarters (Country) Award 1976 – Breadcarters’ (Metropolitan) Award – Transport industry – Bread Carters – Preservation of favourable conditions

Legislation : Industrial Relations Act 1979 (WA)

Bread Act 1903 (WA)

Bread Act 1982 (WA)

Acts Amendment and Repeal (Competition Policy) Act 2003 (WA)

Result : Award varied

Representation:

Applicant : Transport Workers Union of Australia, Industrial Union of Workers, Western Australia Branch             

Respondent : Baking Industry Employers Association of Western Australia (INC)

Case(s) referred to in reasons:

Transport Workers’ Union of Australia, Industrial Union of Workers, Western Australian Branch v Bread Manufacturers’ (Perth and Suburbs) Industrial Union of Employers of Western Australia (1997) 57 WAIG 1724

Reasons for Decision

1         The Transport Workers' Union of Australia, Industrial Union of Workers, Western Australian Branch (TWU) applied to vary the Transport Workers (General) Award No 10 of 1961 to consolidate the General Award with two other state transport workers awards.

2         The application was prompted by the Commission having, of its own motion under s 37D of the Industrial Relations Act 1979 (WA), commenced CICS 20 of 2022 to review the General Award’s scope. The parties who have to date participated in CICS 20 of 2022 supported the General Award’s scope being extended to mirror the scope of the Road Transport and Distribution Award 2020 (Modern Award), including coverage of bread and bakery product cartage and/or distribution. Employees who are employed by employers engaged in bread distribution are currently covered by either the Breadcarters (Country) Award 1976 or the Breadcarters’ (Metropolitan) Award (Breadcarters Awards).

3         It is anticipated that, if the General Award’s scope is extended as outlined above, the two Breadcarters Awards can then be cancelled.

4         The classification structure and corresponding rates of pay for each of the General Award, and Breadcarters Awards are broadly aligned. However, there are some differences in terms and conditions, particularly in relation to hours of work and penalty rates. These differences are historical. They relate to the regulation of the hours and days when bread could be baked and sold, and the holidays observed in the industry, under the Bread Act 1903 (WA): see Transport Workers’ Union of Australia, Industrial Union of Workers, Western Australian Branch v Bread Manufacturers’ (Perth and Suburbs) Industrial Union of Employers of Western Australia (1997) 57 WAIG 1724.

5         The Bread Act 1903 was repealed by the Bread Act 1982 (WA) on 1 March 1983.

6         The Bread Act 1982 continued to regulate the hours of delivery of bread: s 8. However, unlike the Bread Act 1903, it did not contain geographical distinctions, or different regimes for regulating hours of work or holidays for metropolitan and country areas. Arguably, at least since 1982, the rationale for different awards for metropolitan and country bread distribution was removed.

7         The Bread Act 1982 was repealed by the Acts Amendment and Repeal (Competition Policy) Act 2003 (WA): s 3(1). With that repeal, any bread manufacturing industry‑specific considerations and rationale for separate terms and conditions of employment were further diminished, if not totally removed.

8         The consolidation of the awards is achieved by deleting the exclusion of ‘bread carters’ from the General Award’s scope with the addition of the word ‘Bread’ before the industry heading ‘Cake, Biscuit and Pastry Manufacturing and Selling’ in clause 12.1 ‘Named Respondents to Award’.

9         The TWU also proposes variations to the General Award, to preserve the conditions of the Breadcarters Awards which are more favourable than the General Award provisions, namely ordinary hours of work in clause 3.1, shift allowance in clause 5.1.7 and meal and rest breaks in clause 5.6. This is to ensure that employees covered by those other awards are not disadvantaged by the award consolidation.

10      The proposed variations also include a saving provision because some junior rates and allowances in the Breadcarters Awards are currently slightly higher than those in the General Award.

11      Consolidation will mean that employees currently covered by the Breadcarters Awards will benefit from conditions of the General Award which are absent from the Breadcarters Awards, such as:

(a) casual loading of 24% rather than 20%;

(b) bereavement leave for casual employees;

(c) a right to conversion to permanency for casual employees;

(d) the period in which an employee can be paid minimum wages for learning a round is reduced from 10 days to one week;

(e) higher public holiday penalty rates; and

(f) access to a number of allowances not provided for in the Breadcarters awards such as a refrigeration allowance, and a self‑loading equipment allowance.

12      The TWU advised the Commission that there are likely only a small number of bakers and/or bread delivery businesses that are likely to be covered by the state industrial relations system.

13      Nevertheless, the TWU submitted that the consolidation of the awards would be beneficial because:

(a) there will be fewer state awards that cover workers in the Transport Industry in the State industrial relations system;

(b) the award consolidation will likely make things easier for employers and employees to find the applicable terms and conditions of employment; and

(c) the variations will be of particular benefit to businesses that are involved in the carting of bread and those who cart other products.

14      Section 40 of the Act empowers the Commission to vary an award.

15      The TWU is a party bound by the General Award and, therefore, has standing to bring the application: s 40(2) of the Act.

16      As the application is made outside the term specified in the General Award, s 40(3) of the Act is no barrier to the variations sought.

17      The amendments proposed affect a substantive change to the scope of the General Award. The application, therefore, attracts the requirements of s 29A of the Act for publication of the proposed amendments and service on the s 29A parties. A notice of the application was published in the Industrial Gazette on 27 December 2023: (2023) 103 WAIG 1965 and on the Commission’s website and served on the s 29A parties accordingly.

18      The application was served on 44 named respondents to the General Award. The remaining 164 named respondents were identified as being either deregistered, deceased or reasonably believed to be dissolved or wound up.

19      The application was also served on the Baking Industry Employers Association of Western Australia Inc, being the only named respondent to the Breadcarters’ (Metropolitan) Award. The Commission has ascertained that none of the six named respondents to the Breadcarters (Country) Award are current active businesses.

20      The Employers Association advised the Commission it did not oppose the variations sought by the TWU. No other respondent or party sought to be heard or filed any response to the application.

21      The application, being unopposed, was determined on the papers.

22      It is appropriate that the terms and conditions of employment of transport workers engaged in the distribution of bread have conditions aligned with transport workers generally. There is no reason not to extend these conditions to those employees.

23      I am therefore satisfied that it is appropriate to make the variations sought.

24      An order will issue in the following terms:

(a) THAT the Transport Workers (General) Award No 10 of 1961 be varied in accordance with the following schedule and that the variations shall have effect from 1 February 2024.

SCHEDULE

1. Clause 1.2 ‑ Arrangement: Insert the following as a new clause after clause 1.8:

1.9 NO REDUCTION

2. Clause 1.3 ‑ Scope: Delete this clause in its entirety and insert in lieu thereof the following:

1.3. – SCOPE

This Award shall apply to all employees following the vocations referred to in the Classifications Clause 4.3 who are eligible for membership in the applicant Union and who are employed in the industries referred to in Clause 12.1. Provided that this Award shall not apply to employees engaged in the timber industry within the South West Land Division nor to employees whose duties involve them in delivering goods or materials solely beyond the West Australian State border.

3. Clause 1.6 ‑ Definitions: Insert the following new definitions after subclause 1.6.14:

1.6.15 “Bread Carter” shall mean an employee appointed as such who may be required to perform incidental and peripheral work of a general nature in addition to the following specific duties:

1.6.15.1 delivery and conveying of bread and associated products.

1.6.15.2 loading and packing of vehicle.

1.6.15.3 maintain the vehicle in a clean condition and carry out minor maintenance/checking to maintain the vehicle in a roadworthy condition.

1.6.15.4 collect crates.

1.6.15.5 maintain the paperwork associated with the load and sales.

1.6.15.6 merchandise products by delivery and replenishing of stock in retail outlets.

1.6.16 “Country Bread Carter” shall mean a bread carter who operates in the area of Western Australia outside the radius of 45 kilometres from the G.P.O, Perth.

1.6.17 “Loader” (in connection with bread carting) shall mean and include a worker engaged in the sorting, packing, wrapping, slicing, or loading of bread.

4. Insert the following as a new clause after clause 1.8:

1.9. – NO REDUCTION

1.9.1 Despite the provisions of this award, a Bread Carter (including a casual Bread Carter) who was employed at 31 January 2024 under either the:

• Breadcarters’ (Metropolitan) Award or

• Breadcarters (Country) Award 1976

and who continues to be employed after that date with the same employer under this award, must not be paid less than they would have been paid for the same work under the provisions of the former award as it stood at 31 January 2024.

5. Clause 3.1 ‑ Hours:

(a) Renumber subclause 3.1.7 as subclause 3.1.10:

3.1.10 Liberty to apply is reserved to either party to amend this clause for the purpose of making provision for shift employees.

(b) Insert the following as a new subclause 3.1.7:

3.1.7 The ordinary hours of work of a Bread Carter shall consist of work performed over a period of eight consecutive hours on each working day unless agreed between the employer and the majority of employees in the workplace, and shall be worked:

3.1.7.1 For a Country Bread Carter, from Monday to Saturday inclusive.

3.1.7.2 For a metropolitan Bread Carter, five consecutive days from Monday to Friday inclusive.

(c) Insert the following as a new subclause 3.1.8:

3.1.8 Any time worked by a Bread Carter after eight hours on any one day will be overtime and shall be paid for at the rate of time and one half for the first two hours and double time thereafter.

(d) Insert the following as a new subclause 3.1.9:

3.1.9 All time worked by a Country Bread Carter in excess of ten hours on a double delivery day or in excess of twelve hours on a treble or quadruple delivery day shall stand alone and be deemed overtime and shall be paid at the rate of double time.

6. Clause 4.3 ‑ Classifications: Delete subclause 4.3.2 in its entirety and insert in lieu thereof the following:

4.3.2 Grade 2

Driver, rigid vehicle to 4.5 tonnes GVM (Gross Vehicle Mass)

Employee riding a motorcycle in the course of employment

Night Washer

Driver of tow motor

Loader in charge of automatic slicing and wrapping machine

7. Clause 5.1 ‑ Shift Work: Insert the following as new subclauses after 5.1.4:

5.1.7.5 Loaders who are required to commence working before 4.00 a.m. on any day shall be paid for each day so worked, an extra 30 per cent.

5.1.7.6 Loaders who are required to commence work between 4.01 a.m. and 7.00 a.m. on any day shall be paid an extra 15 per cent for each day so worked.

5.1.7.7 Bread Carters who are required to commence working before 7.00 a.m. on any day shall be paid an extra 15 per cent for each day so worked.

5.1.7.8 The early start premiums provided by subclauses 5.1.7.5 to 5.1.7.7 are not payable on overtime hours worked.

8. Clause 5.6 ‑ Meals:

(a) Delete the clause title ‘Meals’ and insert in lieu thereof the following:

5.6. – MEAL AND REST BREAKS

(b) Insert the following as new subclauses after 5.6.5:

5.6.6 An employee engaged in the bread carting industry shall be entitled to a rest period of ten minutes, after eight hours of work in any shift and a further rest period of ten minutes for every two hours worked thereafter in that shift.

5.6.7 Such rest periods shall count as part of the time worked and shall be taken at a time to suit the convenience of the employer and the employee either before or after the entitlement accrues.

9. Clause 12 ‑ Named Parties: Delete the address ‘3rd Floor, Labour Centre 82 Beaufort Street PERTH WA 6000’ that appears under the union’s name.

10. Clause 12.1 ‑ Respondents to the Award: Add the word ‘Bread’ before the words ‘Cake, Biscuit and Pastry Manufacturing and/or Selling:’.