What do Basil, Deckboys and the Funeral Industry Have in Common?

It sounds like the beginning of a bad joke right?

Well, there is a connection, and it is the recent C14 decision released by the Full Bench of the Fair Work Commission earlier this year.

‘C14’ has become the term coined to reference pay rates within the Modern Awards which fall below the National Minimum Wage (NMW) and have created confusion for the past 12 months since the NMW was increased to be higher than the C14 rate for the first time on 1 July 2023.

In a moment of insanity, we decided to put together a (somewhat satirical) summary of the changes in the 70-odd Modern Awards that are impacted by this decision.

Read on and see if you can figure out what basil, deckboys and the funeral industry have in common.

But before the detail … we typically include a ‘lessons for employers’ or ‘practical tips for implementation’ session in our articles.  This time, having read through 59 pages, covering the labyrinth of classification clauses in 70 Awards, we have a key lesson for Fair Work …

Jests aside, getting clarity and consistency is always a positive.  Unfortunately, while clarity may be in reach, consistency across industries remains elusive.  There are a variety of time periods still at play with some Awards limiting the lower rate to a period of 3 months, others 6 months, and others 38 hours.

This is somewhat understandable given that the complexity and technical competence required varies across industries and so where an employee may be able to demonstrate competence in 3 months in one industry, it may take 6 in another.  However, surely there was a better way to do this. For example a consistent clause based on:

• the C14 rate can apply for up to 6 months,

• an assessment to be conducted at regular (every 2 months) intervals, comparing the employee’s competence to the requirements on the next (C13 equivalent) level;

• progression to the next level to occur once competence is demonstrated.

This would create a level playing field across all roles and industries, provide the flex to accommodate positions and industries where learning competence may be quicker or take longer, and also allow for more responsiveness to an individual’s capacity to learn. This final point would also mean there is greater motivation for an employee to apply themselves to learning and demonstrating competence where, under the current (new) system, there is no real reason for an employee to develop competence – they can just bide their time.

Setting our soap box aside, the points we have for employers from the C14 decision are:

• The payment of Industry Allowances are not considered sufficient to bring employees up to the NMW. Those allowances are designed to compensate for the ‘disabilities’ i.e. circumstances relating to the industry in which the work is done and are intended to elevate the pay rate above the NMW.

• If your employees are covered by one of these 70 Awards, take note of the time period limitations which will apply to the lowest classification levels in the Award.  If you have employees on those levels, put measures in place to ensure progression to the next level is managed within the correct timeframe.

Let’s DIVE IN!

Please note the information relating to the changes in each Award is ‘provisional views’ published by the FWC.

We will summarise the changes here, grouping the Awards into 2 key groups:

1.  Awards not requiring variation
2.  Awards requiring variation

Awards Not Requiring Variation

The following Awards do not require variation as a result of the C14 decision as they are already consistent with the new decision i.e. they have a C14 equivalent rate, however it is clearly time bound to only allow employees to remain on that rate for up to 6 months:

1.   Alpine Resorts Award 2020

2.  Asphalt Industry Award 2020

3.  Australian Nuclear Science and Technology Organisation (ANSTO) Enterprise Award 2016

4.  Cemetery Industry Award 2020

5.  Corrections and Detention (Private Sector) Award 2020

6.  Gardening and Landscaping Services Award 2020

7.  Horse and Greyhound Training Award 2020

8.  Hospitality Industry (General) Award 2020

9.  Maritime Offshore Oil and Gas Award 2020

10.  Miscellaneous Award 2020

11.  Northern Territory News Award 2015

12.  Nursery Award 2020

13.  Nurses Award 2020 – Note: student enrolled nurses less than 21 years of age fall below the NMW. The FWC’s provision view is that this creates and adult rate (which is NMW so acceptable) and a junior rate (95% of the adult rate) and as such no variation is required.

14.  Premixed Concrete Award 2020

15.  Professional Diving Industry (Industrial) Award 2020

16.  Racing Clubs Events Award 2020

17.  Racing Industry Ground Maintenance Award 2020

18.  Registered and Licensed Clubs Award 2020

19.  Reserve Bank of Australia Award 2016

20.  Restaurant Industry Award 2020

21. Stevedoring Industry Award 2020 – Note: the Stevedoring Employee Level 1 (C14 equivalent) falls below NMW, however because ordinary hours are 35 per week the actual hourly rate is $24.55. The FWC’s provisional view is that no change is needed to this Award.

22. Supported Employment Services Award 2020

Awards Requiring Variation

1.  Manufacturing and Associated Industry Award 2020 – essentially the flagship for the terminology and evaluation of this decision. The C14 level provides for 38 hours induction training but also includes duties unique from the C13 level and ‘structured training so as to enable them to work at the C13’ level.  The C13 classification then references 3 months of training and duties above those of a C14. This is what created the ambiguity that an employee may remain on C14 indefinitely. Clarification will be added to the C14 classification such that they will be reclassified to C13 within a period of 3 months.

2.  Airline Operations – Ground Staff Award 2020 – similar to the Manufacturing Award, the ‘Aircraft Worker 1’ classification in the Maintenance and engineering stream will be clarified such that progression to Level 2 will occur within a period of 3 months.

3.  Vehicle Repair, Services and Retail Award 2020 – similar to the Manufacturing Award, the Level 1 (R1) classification will be clarified such that progression to Level 2 (R2) will occur within a period of 3 months.

4.  Graphic Arts, Printing and Publishing Award 2020 – Level 1 (C14 equivalent) includes provisions for up to 38 hours of training, however also states that on the completion of the required training, the employee will be reclassified to level 2’. This creates a scenario that an employee could remain indefinitely on Level 1 while completing the ‘required training’. The Level 1 classification will be clarified such that progression to Level 2 (R2) will occur within a period of 3 months.

5.  Amusement, Events and Recreation Award 2020 – There was some ambiguity in the wording for ‘Introductory level employee’ (C14 equivalent) that which may have allowed an employee to remain at that level for longer than 3 months. This will be amended to clarify that this level will only apply for up to 3 months and that after 3 months there will be automatic progression to Grade 1.

6.  Dry Cleaning and Laundry Industry Award 2020 – The current classification wording indicates that demonstration of competence is required before progressing from Level 1 (C14 equivalent) to Level 2. This will be amended so that an employee can only remain at the Level 1 rate (introductory level) for a maximum of 6 months.

7.  Meat Industry Award 2020 – The existing wording for a Meat industry Level 1 employee (C14 equivalent) is that it applies during training for at least 3 months (i.e. there is no upper limit on the time period that the rate can apply).  This will be amended to state that it is for a period of at least 3 months, but no longer than 6 months.

8.  Travelling Shows Award 2020 – The Grade 1 classification (C14 equivalent) contains broad wording about applying to ‘ride attendants’ and ‘employees not otherwise classified’ – so it there is no indication of transition to the next level, nor a time limitation.  This will change such that Grade 1 will apply to a new entrant to the industry with less than 3 months experience.

9.  Animal Care and Veterinary Services Award 2020 – a simple clarification that an employee cannot remain on Level 1 (C14 equivalent) for longer than 3 months).

10.  Aquaculture Industry Award 2020 – interestingly, the levels in this award are separated by whether you are working with ‘Finfish’ or ‘Shellfish’ (!?!?) and when you progress from Level 1 (the C14 equivalent rate) to Level 2, differs accordingly. The Level 2 rate also currently falls below the NMW.  This means 2 changes for this Award – an increase to the level 2 rate and clarification that progression to level 2 will be after 4 months in the industry.

11.  Architects Award 2020 – in this Award, the rates with fall below the NMW appear to be able to apply for up to 3 years! The proposed change is that Student of Architecture 21 years of age and over will be paid at least at the NMW.

12.  Business Equipment Award 2020 – the Technical Employee Level 1 (C14 equivalent) currently applies while the employee is gaining ‘basic competency’ without any timeframes. As such, the pay rate for Level 1 will be increased to match the NMW.

13.  Cement, Lime and Quarrying Award 2020 – the Grade 1 in quarrying (C14 equivalent) currently applies while the employee is gaining ‘basic competency’ without any timeframes. The provisional view is that both levels will only apply for a maximum of 6 months before progression occurs. The Grade 2 pay rate will also require increase to match the NMW.

14.  Children’s Services Award 2010 – Two classifications (Support Worker Level 1.1 and Children’s Services Employee Level 1.1) fall below the NMW in this Award and progression to the next level does not occur until 12 months in the industry. The provisional view is that the rates for both classifications will be increased to match the NMW.

15.  Concrete Products Award 2020 – Level 1 (C14 equivalent) and level 2 both fall below the NMW. The provision view is to limit the period that an employee can be engaged at Level 1 to 6 months; and Level 2 will be increased to match the NMW.

16.  Cotton Ginning Award 2020 – The Cotton Ginning Employee Level 1, is slightly above the C14 rate, but less than the NMW and there is no indication of progression from level 1 to level 2. FWC is intending to apply 2 rates of pay to Level 1. The first one being the C14 equivalent for a maximum of 6 months, followed by the second rate at the NMW.

17.  Electrical, Electronic and Communications Contracting Award 2020 – The Electrical worker Grade 1 is above the C14 rate, but below NMW with no progression of duties or indication of timeframes to move to level 2. Because of this, FWC is intending to change the pay rate for the Level 1 to the NMW.

18.  Fitness Industry Award 2020 – the Level 1 classification (C14 equivalent) applies for 456 hours, varying the length of service depending on the mode of employment, creating uncertainty. The FWC is proposing to amend this so that it is the lesser of 456 hours training or 6 month’s employment at Level 1.

19.  Food, Beverage and Tobacco Manufacturing Award 2020 – Level 1 (C14 equivalent) applies for a period of 3 months; however the Level 2 classification muddies the waters by introducing the requirement to complete a ‘structured induction program over 3 months’ to progress to level 2 (how many small businesses do you know that have a structured induction program??). The Award will be varied so that it reads as ‘over a period not exceeding 3 months’.

20.  Funeral Industry Award 2020 – Grade 1 (C14 equivalent) has different duties prescribed compared to Grade 2 and as such, does not appear to be a transitional rate. The Award is proposed to be amended so that Grade 1 can only apply for a maximum of 6 months; and the duties prescribed for Grade 2, will include those currently in Grade 1.

21.  Horticulture Award 2020 – this Award has the complete combination.  Level 1 (C14 equivalent) has unique duties when compared to Level 2. Level 2 states that it applies to employees who have ‘completed up to 3 months structured training’ (again, how many companies have ‘structured training’). The Award is proposed to be amended so that Level 1 can only apply for a maximum of 3 months; and the duties prescribed for Level 2, will include those currently in Level 1.

22.  Joinery and Building Trades Award 2020 – Level 1 (C14 equivalent) refers to employees undertaking up to 38 hours induction training, but then broadens to ‘routine duties … while undertaking structured training’ as well as including a list of occupations (general hand and factory hand) not covered in other levels. The expected change will be that within a period of 3 months, an employee will be reclassified to Level 2 and the Level 2 clause will be varied to reflect that they will ‘have completed the required training or will have up to 3 months’ work experience at Level 1.

23.  Live Performance Award 2020 – The Production and Support Staff level 1 (Induction/Training) (C14 equivalent) rate applies for 6 weeks induction training or 228 hours for casuals which seems clear enough. However, it also refers to the performance of routine duties (not induction training). The change will be adding a requirement that an employee will not remain at Level 1 for longer than 3 months.

24.  Marine Tourism and Charter Vessels Award 2020 – Crew Level 1 sits between C14 and the NMW and has wording that intends for it to apply for the first 3 months. However Level 2 indicates that the Introduction Deckhand Course (or equivalent) is also required to progress to Level 2.  This will be clarified by stating that after completing 3 months of employment, the employee will be classified at Level 2.

25.  Oil Refining and Manufacturing Award 2020 – Both the Refinery Operations – Trainee Operator and Lubricants/bitumen plants and terminals – Trainee fall below the NMW in this Award. However, a fulltime employee only works 35 hours under this Award (and the resulting maths means that the minimum hourly rates are actually above NMW) and each classification is limited to employees undergoing necessary orientation and training.  As such, The FWC holds that there is no variation required.

26.  Pastoral Award 2020 – this Award has a 3-way complication!

The Farm and Livestock Hand Level 1 (C14 equivalent) covers distinct positions (some of which are not covered in higher levels) including some stated as applying to employee with experience of <12 months and some of <3 months. This will change so that those clauses referencing <12 months, and those roles that do not have a time frame allocated will reference <6 months.

The Piggery Attendant Level 1 and 2 both fall below NMW and there is inconsistency between the wording for level 1 (applying for up to 38 hours induction training) and Level 2 (having completed up to 3 months’ structured training). The FWC is intending to clarify that progression from level 1 to 2 must be within a period not exceeding 3 months.

The Poultry Worker Level 1 (C14 equivalent) applies for a period of 12 months in the industry. The FWC intends to reduce this to 6 months.

27.  Port Authorities Award 2020 – Level 1 (C14 equivalent) is defined as an employee completing induction but also prescribes a unique set of duties as distinct from Level 2.  There is also no clear progression to Level 2. The FWC’s provisional view is that a requirement should be added that an employee may not be engaged at Level 1 for more than 6 months and the duties previously prescribed for Level 1 can also be performed at Level 2 as part of ‘lower level duties’.

28.  Pest Control Industry Award 2020 – Level 1 under this Award is above C14 but less than the NMW. The description of level is clear in saying it is a new entrant to the industry with no previous experience, yet to apply for a licence and has <6 months in the industry. This in itself seems relatively clear, however the presumption is that everyone in the industry will apply for a license and opens the door to an employee who does not apply for a license, remaining at level 1 indefinitely. The FWC intends to clarify that either after 6 months in the industry or once the employee has applied for a license but has yet to be examined or licensed other than provisionally, an employee will progress to Level 2.

29.  Rail Industry Award 2020 – The Level 1 Rail Worker (Op) (C14 equivalent) classification is described in very vague terms, with no time limitations or progression to Level 2. FWC intends to require progression to Level 2 after 3 months’ employment.  This Award has a second classification (Level 1 Rail Worker (TCI)) which falls marginally below the NMW (but not as low as C14).  The provisional view of the FWC is that this classification will have the pay rate increased by the minor amount necessary to match the NMW.

30.  Seafood Processing Award 2020 – this Award also has 2 classifications which fall below the NMW. A Process Attendant Level 1 (C14 equivalent) applies to a new employee undertaking training in their first 3 months of experience.  Fairly clear. However, it also states that an employee remains at Level 1 until they are capable of demonstrating competency – this could be an indefinite period. A Process Attendant Level 2 falls marginally below the NMW and again, requires assessment of competency at a higher level before progressing. FWC intends to amend Level 1 so that an employee may not be classified at that level for more than 6 months; and increase the level 2 rate to align with the NMW.

31.  Seagoing Industry Award 2020 – The minimum rate for an Ordinary Seaman/ Wiper/ Deckboy/ Catering Boy/ 2nd Cook/ Messroom Steward is marginally above C14 and there is no indication of transition to Level 1. FWC is intending to vary the classification so that it may only apply for the first 6 months of employment. Interestingly, there is no mention of updating some antiquated, gender specific terminology and as such, so perhaps this level also only applies to individual identifying as the male species in certain roles?

32.  Sugar Industry Award 2020 – This Award takes top prize with 4 classifications falling below the NMW. These are a mixture of levels which prescribe 240 hours, 6 weeks, holding relative certifications, 38 hours of induction, or a 3 month probation period. Fair Work intends to increase the CT1 level to the NMW and amend the classification for the L2 to transition to the next level after 3 months. The CPT (Inductee/Trainee) and BT1 classifications will remain unchanged as they are plainly transitional in nature.

33.  Textile, Clothing, Footwear and Associated Industries Award 2020 – in this Award a ‘Trainee’ in the general rates section is equivalent to C14 and as it is bounded by a maximum 3-month period, FWC does not intend to change this. The ‘General Hand’ under ‘Wool and basil employees’ (and no, this is not referring to a herb – a ‘basil’ is a tanned sheepskin) will likely be amended to ‘General hand – first 3 months of employment only’ to ensure that it also is time bound.

34.  Timber Industry Award 2020 – the Level 1 classification in the General Timber Stream (c14 equivalent) is taken by FWC to be clear in only applying for up to 6 months and so required no change. The Level 1 classification in the Wood and Timber Furniture Stream (also C14 equivalent) also indicates a period of up to 3 months, however the Level 2 classification adds confusion requiring successful completion of the induction program and the core units of the Furnishing Industry Training Package along with demonstrated competency at Level 2 duties. The FWC intends to amend these classifications to the effect that an employee may only remain at Level 1 for up to 3 months.

35.  Wine Industry Award 2020 – this Award has a mammoth 7 different streams, all of which have a Grade 1 classification (C14 equivalent). This level is for 3 months induction, followed by training in modules to move to Grade 2, for assessment within 12 months.  This clearly takes the time period beyond Fair Work’s intended 6 months. Because the Grade 2 classification is higher than the NMW, the FWC is proposing 2 rates for Grade 1.  One that applies for the first 6 months (the C14 equivalent) and the second which applies for the following 6 months (matching the NMW).

36.  Wool Storage, Sampling and Testing Award 2020 – of the 3 classifications in this Award that fall below the NMW, 2 have a clear time period of 3 months.  These are both defined as ‘Frist 3 months’ at which point they progress to ‘Level 1’. The 3rd (Wool Industry Worker Level 1, Wool Storage) is not a transitional classification and only provides for progression when a higher level position becomes available. The FWC intends to change this classification to match the first 2.

37.  Air Pilots Award 2020 – can you believe we would pay people involved in the aviation industry who are paid less than the NMW?  That is a scary thought!  Updates will be made to limit the lower pay rates to a period of 6 months.

From here, the Awards become government or state specific and we will stop our deep dive at this point. For interests’ sake, the other Awards impacted are:

Australia Post Enterprise Award 2015

Australian Capital Territory Public Sector Enterprise Award 2016

Australian Government Industry Award 2016

Christmas Island Administration Enterprise Award 2016

Metropolitan Newspapers (South Australia and Tasmania) Printing Award 2015

Northern Territory Public Sector Enterprise Award 2016

Note Printing Australia Award 2016

Nurses and Midwives (Victoria) State Reference Public Sector Award 2015

Printing Industry – Herald & Weekly Times – Production Award 2015

Victorian Local Government (Early Childhood Education Employees) Award 2016

Victorian State Government Agencies Award 2015