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The Fair Work Commission has admitted to “inadvertently” deleting an award clause entitling casuals to overtime penalty rates in the the Hair and Beauty Industry Award as part of the Commission’s four-yearly review of modern awards.

The Fair Work Commission noted that in its October decision considering various submissions responding to a draft determination, it “inadvertently omitted to deal with” an Ai Group submission relating to the clause in question.

“As a consequence, the Hair and Beauty Industry Award was varied in the terms set out in the draft determination on 30 October 2020, with the variation taking effect on 20 November 2020,” the Fair Work Commission said.

In subsequent correspondence, the SDA (Union for Retail, Fast Food and Warehousing workers) argued that the variation effectively left the award “silent” on how hours worked outside the span of ordinary hours are treated.

“The SDA submits that the pre-varied clause treats these hours not as overtime but as hours that attract a penalty payment,” said the bench.

“As a consequence of the variation made by the Commission, casual employees are no longer entitled to the penalty that was previously prescribed by clause 13.3.”

Following discussions, the Fair Work Commission confirmed that the Ai Group believed the variation to represent a “substantive and potentially unintended change”, while the SDA argued that it should be rejected.

“We accept that the deletion of the previous clause 13.3, which was not concerned with overtime as such, was an error, and that as a result an entitlement to a penalty rate for ordinary hours worked outside the spread of hours on any day has been inadvertently removed,” said the bench.

“This needs to be rectified.”

Concluding that the previous clause should not be simply re-inserted in its previous form, “since this would resurrect some drafting uncertainties”, the Fair Work Commission expressed a provisional view that “a better course would be to add the entitlement for which clause 13.3 formerly provided to clause 31.2, which sets out the payment regime for overtime and penalty rates”.

The Fair Work Commission said it also provisionally considered that clause 13.3 should be modified to provide for casuals to be paid “relevant” rates when working overtime.

The Fair Work Commission has invited interested parties to file submissions on its proposed variations within 14 days.

“If you need help interpreting the Hair and Beauty Industry Award and determining employee entitlements please contact the HR experts at BetterHR. Our advisors are qualified employment lawyers and HR professionals. We’ve helped thousands of business owners and managers to operate successfully and avoid costly mistakes.” – says Sean Wilson, BetterHR CEO.

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