By Australasian Convenience and Petroleum Marketers Association Executive Manager Employment and Training Elisha Radwanowski.
Following a series of formal conferences and submissions the Fair Work Commission has issued a Decision to alter the modern award that applies to fuel retail staff (the Vehicle Repair, Service and Retail Award 2020) to address and clarify long running inconsistencies with respect to the payment of junior Roadhouse Attendants and bring the Summary Wage Tables Schedule attached to the Award, in line with the actual wage rate clauses. The changes will apply from the first full pay period on or after 2 August, 2021.
Since 1968, fuel retail staff (driveway attendants, roadhouse attendants and console operations) received junior rates, being a proportion of the adult rates, until the age of 21 years. In 1976 the award was changed to reflect that casual employees received junior rates until the age of 20 years and the full casual adult rate from their 20th birthday. This change was deliberate and resulted in a quirk (one of many) in the fuel retail section of the Award where there are two types of ‘adults’; a permanent adult is someone who has turned 21 years of age, and a casual adult who is someone who has turned 20 years of age.
This long-established quirk has been a curiosity, but not a burden or cause for confusion for the industry… until mid-2019 when the Schedule B Summary of Hourly Rates of Pay tables for permanent staff were altered in an effort to achieve consistent titles and the tables that included junior rates stopped at 19 years, which would mean that a permanent employee is an adult who has turned 20 years of age.
The Schedule B Summary Wage Tables are just that, a summary of various clauses of the Award. The way the tables were altered in mid-2019 resulted in them being in conflict with the clauses from the Award that they were supposed to be summarising. Clause 16 outlines clearly that a junior rate is to apply to fuel retail workers until their 21st birthday, however the 20-year-old rate was missing from the Summary Wage Tables and the titles were altered to state “Full-time and part-time adult (20 years and over) console operators, driveway attendants and roadhouse attendants”.
There have been issues in the past with the information presented in the Summary Wage Tables, they were first introduced in 2016 and aim to synthesise large amounts of information and variability into a standardised structure, and effort that sometimes results in more confusion (as it has here) not less.
As the Summary Wage Tables are just that, a summary of the actual clauses of the Award, and a working understanding of the Award clauses and how they interact is necessary, particularly in the fuel industry with all its quirks, ACAPMA has long directed members to the actual clauses and their functions, not the Summary Wage Tables. As a result, ACAPMA Members were not directed to change the definition of a permanent adult employee when the Summary Wage Tables were changed in mid-2019.
Despite the clear outline in the Award clauses the changes to the Summary Wage Tables did cause confusion for some, with one law firm writing to the Fair Work Commission asking which applied, the award clause or the Summary Wage Table.
Relying on its power under section 160 of the Fair Work Act to vary modern awards to remove ambiguity, uncertainty or correct an error the Commission called a series of formal conferences and submission rounds, which highlighted that the 2019 change to the Summary Wage Tables likely arose from a close reading of the definitions which includes an erroneous definition of an adult roadhouse attendant as being a person over 20 years of age or older, and a not so close reading of clause 16 which provides for junior rates for 20 year old permanent staff.
A historical review of the Award highlights that the offending definition was placed into the Award in 2012 in the mistaken belief that it had been accidentally removed prior. A deep dive into the history of this definitions shows that it has been a cause of confusion for some time being inserted and removed and changed repeatedly to add or remove the adult and 20-year reference in a literal comedy of errors.
Regardless of the source of the confusion, this sensible, common sense alteration by the Commission of the award is welcome, and highlights the fact that the Summary Wage Tables, while part of the award, must be derived from the clauses in the award itself.
Impact on business
ACAPMA advises members that the decision will have no impact on the recently provided ACAPMA Quick Reference Guides for this Award, as they were drawn based on the Award clauses and not the Summary Wage Tables.
However, if the business;
- Has been utilising the Summary Wage Tables at Schedule B (B.3) of the Award, and
- has employed permanent full time or part time console operators, driveway attendants or roadhouse attendants, and
- Those permanent employees are 20 years of age.
It should be noted that, from the first full pay period on or after 2 August 2021, the rate they should be receiving is 87.5% of the adult rate, not 100% of the adult rate
Practically if this situation has occurred the business could be in a position to explore the steps to correct an overpayment. ACAPMA members are reminded that this is a delicate process that requires notice and communication and members should reach out for ACAPMAs assistance with this process.
See the Draft Determination here.
Published with permission from ACAPMA.
Source: https://acapmag.com.au/
