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17/10/19

FWC reject’s Union application to vary overtime penalty for casuals

FWC reject’s Union application to vary overtime penalty for casuals  

The Fair Work Commission (‘FWC’) as part of the 4-yearly review of modern awards (‘the Review’) has been determining applications made in the Overtime for Casuals Common Issues matter[1]. In this particular Common Issues matter, United Voice back in January 2018 filed submissions seeking to vary the overtime provisions for casuals in the Hospitality Industry (General) Award 2010 (‘HIGA’), Restaurant Industry Award 2010 (‘RIA’) and Registered and Licensed Clubs Award 2010 (‘Clubs Award’). United Voice were seeking a variation in which casuals who worked overtime would receive the 25% casual loading in addition to the current overtime rates of pay in those awards.[2]

The AHA opposed United Voice’s application arguing that a Full Bench of the FWC had already dealt with the question of how overtime for casuals should be calculated in these awards back in the Part-time Employment and Casual Employment common issues matter.[3] The Full Bench in that particular common issues matter on 24 November 2017 determined that the overtime penalty for casuals in the HIGA, RIA and Clubs Award was inclusive, not exclusive, of the casual loading.[4]

On 8 October 2019, a Full Bench of the FWC in the Overtime for Casuals Common issues matter rejected United Voice’s application to vary the current overtime provisions for casuals in the HIGA, RIA and Clubs Award. The Bench’s rejection was summarised in paragraph 10 of the decision:

“[10] We consider that United Voice’s application is misconceived and must be rejected. The earlier Full Bench dealing with part-time and casual employment common issue as part of the 4 yearly review has already reviewed overtime provisions of the Hospitality Award, the Clubs Award and the Restaurant Award, and has varied those provisions in the terms sought by United Voice in order that the awards meet the modern awards objective in s 134(1). Now, as part of the same 4 yearly review, United Voice seeks that the already-reviewed provisions be reviewed for a second time. United Voice has not explained how this is jurisdictionally possible. Nor has United Voice explained how it is that the award variations which it previously sought and which took effect only last year no longer meet the modern awards objectives….”[5]

Accordingly, the current overtime provisions for casual employees in the HIGA, RIA and Clubs Award that have been in place since 1 January 2018 remain unchanged.

If any Members have any queries in relation to this matter please contact Owen, Gary or Didier at the AHA|SA on 8232 4525.

 

[1] 4 Yearly Review of Modern Awards – Overtime for Casuals (AM2017/51)

[2] [2019] FWCFB 6953, see para [2]

[3] 4 Yearly Review of Modern Awards – Part-time Employment and Casual Employment (AM2014/196 & AM2014/197)

[4] [2017] FWCFB 6181 at [3]

[5] [2019] FWCFB 6953 at [10]



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