Changes to fuel retail and wholesale awards

It is important for all fuel-industry operators to understand the current and coming requirements in the area of casual employment, despite extensive media coverage and speculation, writes ACAPMA.

Unions, individuals and employer organisations have petitioned the Fair Work Commission to make (or not make) changes in the area of casual employment across the fuel industry and the whole employment market.

In general, the union submissions have centred around calls for all regular casuals  to be automatically deemed permanent employees after a qualifying period of employment (most setting this at 12 months). The arguments put forward largely assume that casual employees are deemed to be casuals solely at the determination and desire of the employer. This argument discounts or ignores the fact that, in many cases, casual employment is the preference of the employee, based on financial, study, family and other commitments and concerns.

Had the commission granted automatic deeming of all casuals as permanent or permanent part-time, the result would have been drastic changes to wage-structure and payroll systems across the employment market.

“In fuel retail particularly, where many small family-operated sites already struggle with payroll and the management of the shift loadings that apply to permanent staff in a myriad of complex possibilities and combinations, depending on the operation of the whole roster, such a unilateral change would likely have resulted in widespread cost and confusion,” ACAPMA Executive Manager for Employment and Training Elisha Radwanowski said.

“In the decision handed down last week, the Fair Work Commission has stopped short of acceding to these calls for automatic deeming of casuals as permanent staff. Rather, the commission identified that there are legitimate situations where casual employment is the preference of the employee and the employer, and to create a situation where employees were automatically converted from casual to permanent status, regardless of their personal circumstances and preferences, would be a perverse outcome.”

The commission has, however, identified that a number of awards do not have any provision for casual-conversion discussions to be facilitated between employees and employers, and that there is not a prompt for both parties to review their choices and assess their appropriateness long term. To address this, the commission has developed a model casual-conversion clause that will be placed in all modern awards that do not currently have such a clause. The model clause is open for discussion and comment until August 2, 2017, after which time the commission will finalise the clause and fold it into all modern awards that currently do not have a casual-conversion clause.

The characteristics of the model clause include a requirement for employers to provide casual employees with a copy of the casual-conversion clause within 12 months of their start date and a requirement to consider and approve an election by a casual employee to convert to permanent status, unless such conversion would result in significant adjustment to hours currently worked in order to meet the permanent-employment provisions of the award. It is clear that the position will soon cease to exist, and that the hours currently worked are likely to significantly change in the next 12 months.

There is likely to be some finessing of the model clause in the coming weeks as part of the comment period until August 2, 2017. However, the decision makes it clear that those awards that do not currently have an established casual-conversion clause and process will soon have them inserted.

The decision has also highlighted that it is open to the review of current casual-conversion clauses in line with the model clause. Final determinations on any changes to existing casual-conversion clauses are likely to be released soon after August 2, 2017.

What is important for operators in the fuel wholesale and retail industry to understand, says ACAPMA, is the current provisions in the awards and the impact of the recent decision on the future operation of these provisions.

Under the Road Transport and Distribution Award 2010, which applies to fuel wholesale transport workers, clause 12.6 outlines the casual-conversion process, whereby a regularly engaged casual working regular systematic hours for a period of 12 months is entitled to elect to convert to permanent. A requirement within the clause is that the business reminds the employee, in writing, within four weeks of their right to elect to convert upon the right accruing (after 12 months). If the employee elects to convert to permanent they must do so in writing within four weeks. Once the business receives an election to convert to permanent, it must be either accepted or refused, but must not unreasonably be refused. If the election is refused, the refusal must specify reasons and be discussed with the employee.

Under the Vehicle Manufacturing, Repair, Service and Retail Award 2010, which applies to fuel retail workers, clause 13.3 outlines the casual-conversion process, whereby a regularly engaged casual working regular systematic hours for a period of six months, is entitled to elect to convert to permanent. A requirement within the clause is that the business reminds the employee, in writing, within four weeks of their right to elect to convert upon the right accruing (after six months). If the employee elects to convert to permanent, they must do so in writing within four weeks. Once the business receives an election to convert to permanent, it must be either accepted or refused, but must not unreasonably be refused. If the election is refused the refusal must specify reasons and be discussed with the employee.

Under the Clerks Private Sector Award 2010, there is no existing provision for casual conversion. As such, the model clause will apply in its final form.

As ACAPMA has outlined here, here and here, the operation of casual conversion is not new to the fuel wholesale and retail industry, having been in operation for many years. The decision handed down has not drastically altered the operation of this element in the fuel wholesale and retail industry; rather it has highlighted that the commission is keen to facilitate some streamlining of the notification process and to extend this requirement for dialogue on the employment relationship to other industries and awards that do not currently have these requirements.

“If the commission’s model clause is applied to our awards, the requirement to notify employees of their right to elect to convert will be a much more streamlined process for businesses, replacing the requirement to notify employees within a four-week window around the time that the entitlement accrues, with the requirement to notify any time within 12 months,” Ms Radwanowski said. “This would be a positive step.”

In a change made specifically to the Vehicle Manufacturing, Repair, Service and Retail Award 2010, which applies to retail fuel site workers, a new minimum engagement period for casuals will apply of three hours. This is a completely new requirement.

“The area of the decision that may affect many fuel retail operators now is the new requirement to provide a minimum shift of three hours for casuals,” Ms Radwanowski said. “While most operators are running rosters that far exceed this and will not be too affected, some operators run with unique rosters based on specific time-of-day offerings.”

ACAPMA advises all retail-fuel-site operators to review their rosters to ensure compliance with this new requirement.

Also included in the decision handed down last week is a determination that part-time work will be allowed, with specific circumstances under the Road Transport (Long Distance) Operations Award 2010. Whereas part-time work had previously been precluded, it will now be allowed in one, two or three fixed working days per week in a written part-time agreement, provided that a minimum of eight hours or 500km (depending on the pay approach selected) is guaranteed per day/shift. The commission has further stipulated that an employee on a part-time agreement under this award may not work any other days or times than those specified under the agreement. If the employer requests other days or times and the employee agrees, this work is to be paid for at casual rates. The final wording of this clause will be released after a comment period ending in mid-August 2017.

“We are urging all members to familiarise themselves with the current operations and requirements and to remember that the final wording of any changes has not yet been released,” Ms Radwanowski said. “ACAPMA will keep members posted once the final award changes are published.

This is an edited version of an article originally circulated by ACAPMA on July 6, 2017.

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