Australian Amusement Leisure & Recreation Association Inc (AALARA)

Transcription

1 Australian Amusement Leisure & Recreation Association Inc (AALARA) Industrial Report March 2017 Contents: 1. Update on the 4 Yearly Review of Modern Awards Award Stage Common Matters Part time and casual claims Penalty Rates Case: Hospitality and Retail Sectors FWC Decision Domestic Violence Leave Case Decision of VP Watson Family Friendly work arrangements Minimum Wage Review Workplace Legislation: Update Federal Legislation Building and Construction Industry (Improving Productivity) Bill and the Building and Construction Industry (Improving Productivity) Amendment Bill Bills before the Parliament Superannuation (Objective) Bill Fair Work Amendment (Gender Pay Gap) Bill Parliamentary Inquiries into Bills and Other Matters Fair Work Amendment (Repeal of 4 Yearly Reviews and Other Measures) Bill Fair Work Amendment (Protecting Vulnerable Workers) Bill Fair Work Amendment (Corrupting Benefits) Bill Gender segregation in the workplace and its impact on women's economic equality Corporate Avoidance of Fair Work Act Case Update When a redundancy is not a genuine redundancy what is reasonable redeployment? Recall to duty, overtime and work outside of normal hours LEVEL 2, BATHURST STREET, SYDNEY NSW 2000 POSTAL PO BOX A233, SYDNEY SOUTH NSW 1235 PHONE FAX WEBSITE

2 1. Update on the 4 Yearly Review of Modern Awards The 4 yearly review of modern awards by the Fair Work Commission (FWC) is being undertaken in two stages: an Award stage comprising all awards, where each award has been allocated to one of four groups and a common matters stage. Both stages are being undertaken simultaneously throughout the remainder of Award Stage Amusements Events and Recreation Award 2010 (AERA) and the Travelling Shows Award 2010 (TS Award) As advised in previous reports, both of the above Awards are being reviewed in Group 4D. The FWC s Exposure Draft Travelling Shows Award 2016 was published on 16 November The Exposure Draft Amusement, Events and Recreation Award 2016 was published on 22 November AFEI has filed submissions concerning the Exposure Drafts and submissions in reply to those made by unions and other parties. AFEI has identified concerns with a number of proposed provisions of the Exposure Draft awards. Conferences regarding the drafting and technical issues of both Exposure Drafts will be conducted by the FWC in March As advised earlier, there are also some proposed substantive changes to the AERA including a union proposal to introduce a provision into the Award for annual leave loading. The above awards are also impacted by a number of common matters in the Review. 1.2 Common Matters Part time and casual claims As previously reported, the unions are seeking very substantial amendments to awards as part of their common claims affecting more than 100 modern awards. Specifically in the AERA (not the TS Award) the unions propose: a 4 hour minimum engagement period for casuals; a 4 hour minimum engagement period for part time employees; In both the above Awards, the unions propose: casual conversion after 6 months; and prohibiting the engagement of additional part time or casual employees without offering the hours to existing employees. The scope of the proceedings was significant, with over 150 witnesses being called to give evidence. Hearings have now concluded although it is not clear when a decision is expected Penalty Rates Case: Hospitality and Retail Sectors FWC Decision In late 2014, various employer bodies made applications to vary the penalty rates provisions in a number of modern awards in the Hospitality and Retail sectors. The applications proposed different outcomes across the awards, depending on the circumstances of the particular sectors. The case proceeded throughout with final hearings in October Page 2

3 On 23 February 2017 the FWC announced its decision to make modest reductions in penalty rates in some, but not all, of the awards. The Full Bench made clear that it had taken an industry specific approach to its decision, and that there is no warrant for reducing penalty rates in other modern awards. The reductions in rates are as follows: The Retail Award where Sunday rates will be reduced from: 200% to 150% for full-time and part-time employees 200% to 175% for casuals The Pharmacy Award where Sunday rates will be reduced for work between 7 am and 9 pm from: 200% to 150% for full-time and part-time employees 200% to 175% for casuals The Hospitality Award where Sunday penalty rates will be reduced for full-time and part-time employees (but not for casuals) from 175% to 150%. The Fast Food Award where Sunday penalty rates for Level 1 employees only will be reduced from: 150% to 125% for full-time and part-time employees. 175% to 150% for casuals. Except in the Fast Food Award, the Full Bench did not reduce the Sunday penalty rates to the same level as the Saturday penalty rates. The FWC also made reductions in public holiday penalty rates in: The Hospitality Award, Retail Award, Fast Food Award and Pharmacy Award where public holiday penalty rates will be reduced from: 250% to 225% for full-time and part-time employees 275% to 250% for casuals The Restaurant Award where public holiday penalty rates will be reduced from 250% to 225% for full-time and part-time employees. The change to public holiday rates are to come into effect on 1 July The Full Bench also decided to vary some of the penalty provisions in relation to early/late night work in the Restaurant and Fast Food Awards. Although the FWC indicated that these changes would take effect from late March 2017, in a further decision it has determined that these changes will not take effect until 1 July The FWC has further decided that transitional arrangements will be necessary to implement the reductions in Sunday penalty rates and has sought views on what these arrangements should look like. It has expressed a provisional view that reductions in Sunday penalty rates should take place in a series of annual adjustments on 1 July each year (commencing 1 July 2017) to coincide with any increases in wages arising from the Annual Wage Review and that it is likely that at least two instalments will be required. In coming to its conclusion that the provisions it would vary no longer met the modern awards objective, the FWC found that evidence that the current level of Sunday penalties restricted trading, lowered staffing levels and restricted the type and range Page 3

4 of services provided. It considered that reducing Sunday and public holiday penalties is likely to lead to longer Sunday and public holiday trading hours, a reduction in owner worked hours, an increase in services offered and hours worked. Given the modest level of reductions and the complex and lengthy transition provisions likely to ensue, it is uncertain that these predicted outcomes will be realised. It is also a concern that the Decision indicated that although no party proposed an increase in the Saturday penalty rate for casual employees, the FWC favours a 25% differential for casual rates and would be prepared to consider a proposal to increase the current Saturday casual rate of 135% to 150% as part of the remaining 4 yearly review. Significantly, for these and other awards, the FWC has raised the issue of whether the term additional (rates) should be substituted for penalty (rates). This will affect all awards and further directions from the FWC to investigate this are to follow. It has specifically raised the question of whether there can be loaded rates (a single higher rate which is not determined by the particular hours which are worked) developed for the Hospitality, Fast Food and Retail awards. The FWC will commence investigating this after the transitional provisions have been settled Domestic Violence Leave Case Decision of VP Watson The ACTU s claim seeks 10 paid domestic violence leave days per annum for victims of domestic violence. The unions have also indicated they will continue to campaign for the inclusion of paid domestic violence leave in the National Employment Standards. On 27 February 2017, one of the members of the FWC s Full Bench presiding over the case, Vice President Watson, issued his decision, in which he rejects the unions claims, as discussed below. At this stage the decision/s of the other two members of the Full Bench have not been issued and it is not known whether the Vice President s decision will form part of a majority Full Bench decision. The case commenced in November 2015 after the Australian Council of Trade Unions (ACTU) proposed, as part of the Review, a family and domestic violence leave clause for inclusion in all modern awards. The case involved hearings over seven days, with a large number of expert, employer and employee witnesses and submissions from the principal parties, the Australian Human Rights Commission, State and Territory Governments and individual employees and employers. Employer groups argued that although family and domestic violence is an important social issue, it is not appropriate to be dealt with through modern awards and that it is not necessary as part of a genuine modern award safety net. They also argued that the ACTU has failed to make out a case that an additional form of leave is appropriate or necessary as it is already addressed in the granting of 10 days of paid personal/carer s leave. Further, employees are currently entitled to take annual leave for other circumstances such as attendance at court, counselling or meetings with advisors. It is the role of the Commonwealth Parliament to determine the major categories of leave entitlements for employees and, to date, parliament has not supported the inclusion of paid domestic violence leave entitlements in the National Employment Standards. Page 4

5 Further, it was argued that employment conditions in Australia are generally very favourable towards employees and that paid family and domestic violence leave exists in very few other countries. Taking into account the various considerations, the Vice President rejected the unions claims, in a 56 page decision. He concluded that it is not necessary, in order to provide a fair and relevant safety net, for modern awards to provide the form of additional paid leave claimed by unions. As the other members of the FWC s Full Bench have not yet issued their decisions, the outcome of the case remains uncertain at this time. As noted in the Vice President s decision, the final outcome will be determined only when the subsequent decisions of the other two members of the Full Bench are published, as it will be the majority position of the Full Bench that prevails Family Friendly work arrangements This claim is scheduled for hearing in August 2017, with the ACTU directed to file its submissions and witness statements by February In this claim, unions are seeking a parental leave clause which would entitle employees returning from parental leave to work on a part time basis or on reduced hours for two years from the date of birth/placement of the child. The clause would also provide an entitlement to 15.2 hours paid antenatal leave. The ACTU and any interested parties are directed to file written submissions and any witness evidence by 28 February The FWC intends to list this matter for a day hearing in mid-august Minimum Wage Review In the minimum wage review United Voice proposed that the FWC minimum wage panel consider setting a five-year target for the national minimum wage (NMW) to improve relativities with median earnings to combat rising inequality. While not specifying exactly what target should be adopted, United Voice suggested a target or band whereby the NMW is expressed as a percentage of median wages. The FWC Wage panel considered there was merit in this proposal and invited submissions in response to a background paper it prepared on this issue. Employers and the Australian Government have opposed setting a target for the NMW and made submissions to the FWC in October In late March 2017, in response to a United Voice query about a preliminary hearing for its proposal, the FWC announced that a decision on this would be announced prior to the closing date for lodging submissions in reply in mid April Issues arising from the decision are to be dealt with in submissions in reply or during final consultations in May Page 5

6 The timetable for this year s review is as follows: Closing date for submissions: 29 March 2017 Closing date for reply submissions, including submissions on a medium term target: 13 April 2017 Closing date for submissions on matters arising from the Budget: 12 May 2017 Likely date for FWC minimum wage decision: end of May first week of June 2017 Private sector rates of pay excluding bonuses grew by another record low of 1.8% in trend terms to December The Australian Bureau of Statistics December 2016 quarter Wage Price Index shows trend private sector pay rates are growing at the slowest annual pace since it started collecting the data in late 1997 and equals the record low wages growth recorded in the September quarter Core inflation at 1.5% is running below the Reserve Bank s 2-3 % target band. Unemployment persists at 5.9%, almost a full percentage point above the level usually associated with full employment. Underemployment at 9% is a major concern across most sectors, with fewer hours on offer and part time work overtaking full time jobs growth. Having regard for the poor state of the labour market and Australia s patchy economic performance, AFEI s submission to the review has urged the FWC to award an increase of not more than 1.2%. Members should be aware, however, that Unions are proposing an increase of $45 per week or around 6.7% for employees at the C10 or trade equivalent level. 3. Workplace Legislation: Update 3.1 Federal Legislation Building and Construction Industry (Improving Productivity) Bill and the Building and Construction Industry (Improving Productivity) Amendment Bill 2017 The Bill to re-establish the Australian Building and Construction Commission (ABCC) and strengthen penalties for coercion and unlawful industrial action was finally passed by the Senate in late The new legislation requires compliance with the Code for the Tendering and Performance of Building Work 2016 (the Code). This prohibits restrictive clauses in enterprise agreements that limit the ability of a contractor to manage its business or improve productivity, as well as those that give unions disproportionate power on building sites. The Bill passed only after a number of amendments proposed by cross bench senators. The amendments included a two year moratorium or grace period on non-code compliant enterprise agreements for tendering for Commonwealth projects, along with some other measures. Subsequently in February 2017, the Building and Construction Industry (Improving Productivity) Amendment Bill 2017 was passed. This bill amends the expiry of the 'grace period' from 28 November 2018 to 31 August 2017, for enterprise agreements made before the Code commenced on 2 December While new enterprise agreements made after 2 December 2016 must comply with the code, those with existing enterprise Page 6

7 agreements will have until 31 August 2017 to ensure their agreements are codecompliant. 3.2 Bills before the Parliament Superannuation (Objective) Bill 2016 This Bill forms part of the government's superannuation reform package announced in the Budget on 3 May The purpose of the Superannuation (Objective) Bill 2016 is to 'legislate the primary objective and subsidiary objectives of the superannuation system'. This Bill was introduced in response to the Financial System Inquiry finding that a lack of clarity around the ultimate objective of superannuation had led to ad hoc decision making, complexity and cost, as well as uncertainty about the superannuation. The Government wants to make clear superannuation is not to be used for tax minimisation or estate planning. It is intended that this will provide the framework for the development of future superannuation policy by protecting the primary objective of the superannuation system in legislation. The primary objective is defined as being to provide income in retirement to substitute or supplement the age pensions. The subsidiary objectives, to be prescribed by regulation are to: facilitate consumption smoothing over the course of an individual s life; manage risks in retirement; be invested in the best interests of superannuation fund members; alleviate fiscal pressures on Government from the retirement income system; and be simple, efficient and provide safeguards. The Bill was referred to the Senate Economics Legislation Committee for inquiry which recommended that the Senate should pass the Bill Fair Work Amendment (Gender Pay Gap) Bill 2015 This Bill seeks to reduce the gender pay gap by removing legal prohibitions on workers discussing their own pay. It would also prohibit employers from taking adverse action against employees for disclosing information about their own pay. The Bill was referred to a Senate inquiry which released its report in late The majority report recommended that the Senate does not pass the Bill and that there should be government, employer and union collaboration to implement best practice strategies to tackle the gender pay gap. Page 7

8 3.3 Parliamentary Inquiries into Bills and other matters Fair Work Amendment (Repeal of 4 Yearly Reviews and Other Measures) Bill. Employer groups and unions support the abolition of the mandatory requirement in the FW Act for the FWC to conduct four yearly reviews of modern awards. In December 2016, they sent a joint letter to the Minister for Employment, Michaelia Cash, seeking a repeal of this provision. The current award review (and the second round of award reviews since 2010) is unlikely to be completed before 1 January 2018, the due date for a third round of review. The parties are agreed that the current continuous cycle of review is onerous and unsustainable, and other mechanisms to vary awards would still be available within the Fair Work Act 2009 (Cth). To achieve this, the Government has apparently drafted the Fair Work Amendment (Repeal of 4 Yearly Reviews and Other Measures) Bill. This Bill will also empower the FWC to overlook minor errors in documentation when considering approval of enterprise agreements. This measure is intended to remedy the overly technical approach taken by the FWC in its approval processes. For example, listing the phone number of the FWO instead of the FWC as the contact number on the Notice of Employee Representational Rights, or issuing these on company letterhead has resulted in the rejection of applications for the approval of enterprise agreements. The Government is currently seeking Opposition support for these measures. The Bill has been referred to the Senate Education and Employment Legislation Committee which is due to report in May Fair Work Amendment (Protecting Vulnerable Workers) Bill 2017 The Government has introduced the Fair Work Amendment (Protecting Vulnerable Workers) Bill, to deliver on its election promise to legislate measures to prevent the exploitation of visa and other vulnerable workers. This Bill amends the FWA by: Introducing a higher scale of penalties for serious contraventions of prescribed workplace laws. Increasing penalties for record-keeping failures. Making franchisors and holding companies responsible for underpayments by their franchisees or subsidiaries where they knew or ought reasonably to have known of the contraventions and failed to take reasonable steps to prevent them. The new responsibilities will only apply where franchisors and holding companies have a significant degree of influence or control over their business networks. Expressly prohibiting employers from unreasonably requiring their employees to make payments (e.g. demanding a proportion of their wages be paid back in cash). Strengthening the evidence-gathering powers of the Fair Work Ombudsman to ensure that the exploitation of vulnerable workers can be effectively investigated. Page 8

9 Penalties have been increased tenfold, with maximum penalties for a new 'serious contravention' provision of 600 units for individuals and 3,000 for body corporates ($108,000, and $540,000 ) up from the existing 60 and 300 which are retained for less serious contravention. The Government holds the view that the current penalties for failure in record keeping under sections 535 and 536 of the FWA are too low compared to other civil penalty provisions within the Act. According to the Bill s explanatory memorandum a contravention "is only a 'serious contravention' if the contravening conduct was deliberate and part of a systematic pattern of conduct relating to one or more other persons". The Bill has been referred to the Senate Education and Employment Legislation Committee which is due to report in May Fair Work Amendment (Corrupting Benefits) Bill 2017 This Government Bill amends the Fair Work Act 2009 to respond to recommendations of the Final Report of the Royal Commission into Trade Union Governance and Corruption. It bans corrupt and secret payments made between employers and trade unions. It also requires disclosure by both employers and unions of financial benefits they stand to gain as a result of an enterprise agreement before employees vote on that agreement. The bill also outlaws payments or other benefits transferred from employers to unions or their officers. Certain legitimate categories of payments will be allowed, such as payments at fair market value for genuine services that are actually provided by a union, or genuine payment of membership fees. The criminal penalties will apply equally to an employer and a union. The party that makes or offers the payment will be penalised in the same way as the party that solicits or receives the payment. Criminal penalties for payments with the intent to corrupt will be a maximum of 10 years in prison and $900,000 for an individual, or $4.5 million for companies. Maximum penalties for other illegitimate payments will be two years in prison or $90,000 for an individual, or $450,000 for companies. The Bill has been referred to the Senate Education and Employment Legislation Committee which is due to report in May Gender segregation in the workplace and its impact on women's economic equality In November 2016 a Senate inquiry, proposed by Labor, into gender segregation in the workplace and its impact on women's economic equality commenced, with a report date of 30 March This inquiry follows several other parliamentary inquiries over the past decade into gender equality in retirement incomes, superannuation, pay equity and the gender pay gap. The focus of this inquiry is the contribution of occupational and industrial segregation to economic inequality. The inquiry is to report by 11 May Page 9

10 3.3.5 Corporate Avoidance of Fair Work Act 2009 This inquiry continues with over 180 submissions being made, mostly from unidentified individuals. Public hearings are now being held. As reported in the November report, the terms of reference for this inquiry are framed in unbalanced and anti-employer terms. There is a presumption of employer culpability and no investigation of avoidance of the Fair Work Act 2009 (Cth) by unions. This inquiry focusses on the incidence of, and trends in, corporate avoidance of the Act with particular reference to the use of labour hire, contracting arrangements and workers on visas. The inquiry also considers employers use of redundancy, enterprise agreement making, and transfer of business provisions of the Act as a means of avoiding Act obligations. In their submissions employers have emphatically disagreed with this presumption. The Committee is not due to report until 7 August Case Update 4.1 When a redundancy is not a genuine redundancy what is reasonable redeployment? Background The decision of the Full Bench of the FWC in Mr Grant Skinner et al v Asciano Services quashed an earlier single member decision made by Fair Work Commissioner Johns in May of The case examines the circumstance of 7 unfair dismissal applications by employees of Asciano Services Pty Ltd, an Australian freight logistics company, operating in railway freight and shipping. In the first half of 2015 Asciano had been advised of a reduction in workload as a result of smaller grain volumes for export. The reduction in workload and altered requirement for export led to a reduction in the need for train crews, as well as a requirement for a greater focus on costs. As a result, Asciano decided it required fewer train crew employees from two particular depots and dismissed a number of employees by reason of redundancy. Consequently, 7 Asciano employees made applications for unfair dismissal to the FWC, alleging their dismissals were not cases of genuine redundancy. In the decision at first instance, the Commissioner dismissed all 7 applications, finding that the individuals were dismissed as a result of genuine redundancy. The Commissioner found that Asciano complied with their consultation obligations and found that it would not have been reasonable in all of the circumstances to redeploy the seven employees. In considering redeployment options, Asciano stated it would consider each of the employees for alternative roles, advise employees of vacant positions and opportunities to transfer to its other operations and invite each of the employees to indicate their interest in any of the available roles. Asciano maintained that the employees either showed no interest in the available positions, declined offers or were unsuccessful in their application due to a lack of qualifications. Although in the past Asciano had allowed for voluntary redundancy swaps, at least in some circumstances, in this instance this option was not available. Page 10

11 The employees appealed the decision to the Full Bench of the FWC, arguing it would have been reasonable in all the circumstances for Asciano to have redeployed the affected employees through inviting voluntary redundancies from unaffected employees in unaffected locations. The Decision of the FWC Full Bench During the Appeal, the employees argued that Asciano was required to offer the possibility of redundancy swaps in order to comply with its obligation to consider redeployment that was reasonable in all the circumstances. The Full Bench considered there is no general obligation for an employer to consider a process whereby employees whose positions are redundant can swap with other employees who wish to volunteer for redundancy. Despite this, the Full Bench held that, because the obligation under the Fair Work Act 2009 (Cth) redundancy provisions is expressed in the context of reasonable in all the circumstances, whether or not an employer should consider the possibility of swaps will depend on a number of relevant factors. In Asciano s circumstances the following factors were relevant in determining whether a redundancy swap should have been considered: Size of the business (with a large number of employees who undertake the same role as those being made redundant). The number of employees performing the same or substantially the same role meant that allowing a swap would not place onerous training requirements on the respondent. In some cases there were potential swaps possibly available in depots reasonably proximate to the depots in which the appellants were working. The respondent had previously allowed swaps in similar circumstances. As a result, in this particular instance, the Full Bench decided the possibility of swaps should have been considered, and Asciano s failure to do so, by removing that option from consideration altogether, resulted in the Respondent employer having failed to comply with its obligations under the Fair Work Act 2009 (Cth) genuine redundancy provisions. Ultimately, the Full Bench ruled that it would have been reasonable in all of the circumstances for an employer to allow employees whose positions are redundant to swap with other employees who wish to volunteer for redundancy. Implications of the Full Bench decision Whilst this decision confirms there is no general requirement for all employers to consider the possibility of voluntary redundancy swap whilst deciding whether or not to end an individual s employment by way of redundancy, the Full Bench decision has provided an indication on the re-deployment efforts expected of some employers. This decision suggests that, in the circumstances outlined above, an employer s failure to consider voluntary redundancy swaps may result in an organisation failing to defend itself against a claim that a redundancy was not a case of genuine redundancy under the Fair Work Act 2009 (Cth). Employers should be mindful of whether or not it is reasonable in the circumstances to offer voluntary redundancy swaps when considering employees for redundancy. Mr Grant Skinner et al v Asciano Services [2017] FWCFB 574 Page 11

12 4.2 Recall to duty, overtime and work outside of normal hours This case involved an underpayment claim for on call duties performed outside of the ordinary hours of work between 2006 and In 2012 the employer began making recall to duty payments and the worker claimed back pay. The employee s duties included managing the roster for doctors at a hospital, which involved answering and making calls outside of her ordinary hours about changes to the rosters. The requirement to do so was an ongoing arrangement rather than a specific request from her employer on each given occasion. The employee was paid an on call allowance. Initially the dispute was whether the telephone calls the applicant made and received outside her workplace and regular working hours constituted recalls to duty as that term was used in the relevant enterprise agreements. Recalls to duty triggered entitlements under the agreements. The employer argued that the recall allowance should only apply where the employee was required to return to the workplace. The Federal Court decided that there had been no recalls to duty. Instead the employee was entitled to overtime payments for the hours she spent managing the roster outside of her ordinary hours which included phone calls as well as other tasks. The Court found that a recall to duty under the enterprise agreements required a specific instruction on each occasion from the employer. The employee was correctly paid the on-call allowance to recognise the inconvenience of being available at all hours, but she had not been recalled to duty because the employer had not given an instruction to do so. The Court reached its conclusion by finding that the overtime payments provisions in the enterprise agreements were concerned with an employee working reasonable additional hours which were either expressly or impliedly authorised by the employer, including by way of an ongoing understanding or arrangement between the employer and the employee. Overtime payment was not considered to be confined to a specific direction from the employer. The employee s duty to manage the roster outside of ordinary hours was part of an ongoing understanding due to the sporadic nature of the task. Therefore, the work she performed was overtime because the Court considered that they were reasonable additional hours authorised by the employer. The employee was awarded $27, in overtime payments. In calculating overtime the Court relied upon the employee s phone bills as an estimate and applied the applicable hourly rate. On this basis, overtime payments were calculated at $18, However, the phone records only provided information as to calls placed by employee, and not calls or text messages received. In addition, the Court found that the employee s role also involved consulting rosters, making lists, contacting doctors and waiting for responses. Therefore, the first amount of $18, was increased by 50% to compensate for a lack of evidence. The employer had commenced paying the employee a three hour minimum recall payment in 2012 and subsequently in 2013, double time recall payments. This amounted to payments of $60, The employer sought leave to off-set this amount against the amount of the unpaid overtime work. This was rejected by the Court, for reasons which included lack of evidence and the need for a timely and cost effective resolution of the dispute. Page 12

13 The Court did take into account the time during which the employee was paid the double recall allowance and excluded this period of time when calculating overtime. It also rejected the employee s claim that she was entitled to double time payment for overtime performed without a break of eight hours from ordinary work, as the employee had not been recalled to work. Relevantly, however, this eight hour break was specific in the enterprise agreement to applying only to recalls to work. The enterprise agreement did not consider, for example, a general minimum break between rostered work or a minimum break after performing overtime (such provisions are common in modern awards). Implications This case highlights the need for: A correct interpretation of the entitlements set out in awards and enterprise agreements; Carefully considered and documented arrangements for out of hours work; Attention to record keeping and payments for time worked outside normal hours arrangements. Polan v Goulburn Valley Health (No 2) [2017] FCA January 2017 AFEI March 2017 Page 13