Reply submission to applications concerning penalty rates in the 2012 Modern Award Review

These submissions are made in reply to various applications filed which seek to reduce or remove penalty rates payable under the following modern awards:

  • the Fast Food Industry Award 2010;
  • the General Retail Industry Award 2010;
  • the Hair and Beauty Industry Award 2010;
  • the Hospitality Industry (General) Award 2010; and
  • the Restaurant Industry Award 2010.


2. We note that applications made which relate to provisions of the Restaurant Industry Award 2010, including in relation to the payment of penalty rates, are being dealt with in a process overseen by Commissioner Gay which is separate to the current Full Bench process. The ACTU wishes to foreshadow that it will seek to rely on these written submissions in the proceedings before Commissioner Gay, and may file additional submissions in those proceedings at the appropriate time.

3. The ACTU opposes the various applications which seek to reduce or remove penalty rate entitlements under the above awards. Evening and weekend penalty rates are a necessary part of a fair and relevant minimum safety net of terms and conditions. Consistent with section 129(1)(e) of the Fair Work Act 2009 (“the FW Act”), they are designed to specifically compensate workers for the disability associated with working unsocial, irregular or unpredictable hours, and for working on weekends or public holidays. No applicant has shown cogent reasons which justify a departure from the award provisions settled at the end of the Part 10A award modernisation process, by reference to the modern awards objective or otherwise.

4. The ACTU has separately filed a reply submission in relation to applications concerning public holidays.