Australian Financial Markets Association ABN 69 793 968 987

Level 3, Plaza Building, 95 Pitt Street GPO Box 3655 Sydney NSW 2001 Tel: +612 9776 7955 Fax: +61 2 9776 4488

Email: info@afma.com.au Web: www.afma.com.au

14 August 2009 Australian Industrial Relations Commission Level 2, CML Building 7 – 21 University Avenue CANBERRA 2600 By email: amod@airc.gov.au Dear Sir/Madam

Submission in Response to the FSU’s Application to Vary the Banking, Finance and Insurance Award 2010 Filed on 22 June 2009

(Matter AM 2009/9) Part 1 – Introduction 1. The Australian Financial Markets Association (AFMA) is the industry

association for Australia’s wholesale banking and financial markets representing over 140 entities across the industry. Our members include Australian and foreign banks, securities companies, state government treasury corporations, fund managers, traders in electricity and other specialised markets and industry service providers. Their business places them at the centre of financial markets; brokering transactions, arranging and underwriting capital raisings, structuring products, trading and investing.

2. These submissions are made by AFMA on behalf of its members. 3. This submission is made by AFMA in response to the Finance Sector

Union’s application to vary the Banking, Finance and Insurance Award 2010 (Award) filed with the Australian Industrial Relations Commission (AIRC) on 22 June 2009 to delete clause 13.2 of the Award (FSU Application) and their submissions in support of the FSU Application filed with the AIRC on 24 July 2009 (FSU Submission).

4. Clause 13.2 of the Award provides that:

‘13.2 The following clauses will not apply to employees who are paid

a salary, before overtime payments and shiftwork allowances, which is more than 15% above the Level 5 minimum weekly rate:

• clause 20.1 – span of hours;

• clause 21.1 – overtime and penalty rates other than call centres;

• clause 21.2(c) – overtime and penalty rates call centres; and

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• clause 16.2(b)(ii) – stand-by and call-back allowance,’

(Exemption). 5. Given that this submission is not in itself an Application to Vary a

Modern Award, the prescribed form R59 has not been used. Part 2 – Executive Summary 6. In summary, AFMA respectfully submits that the Commission must not

make an order under section 576H of the Workplace Relations Act 1996 (Cth) (WR Act) varying the Award to delete the Exemption because the FSU Application is not consistent with the Minister’s Award Modernisation Request (Request). Arguments in support of this include, amongst others, that:

(i) the Commission has already carefully considered the Award, including the Exemption;

(ii) there is a history of exempting employees from coverage and application across a wide range of pre-reform awards and NAPSAs;

(iii) the Exemption is not an ‘objectionable term’ under the FW Act;

(iv) the Exemption does not offend the principle of equal remuneration for work of equal or comparable value (Equity Principle);

(v) the FSU has not recognised the important distinction between award ‘coverage’ and ‘application’; and

(vi) removal of the Exemption will result in increased costs and operational restrictions for employers.

In the alternative, if the Exemption is removed, which AFMA vigorously disagrees with:

(i) the classification structure in the Award should be amended to remove Level 5 and Level 6 employees ie, managerial employees; or

(ii) the coverage clause should be amended to exclude employees who earn a specified salary from coverage.

Part 3 – Response to the FSU Application 7. AFMA respectfully submits that the Commission must not make an order

under section 576H of the WR Act varying the Award to delete the Exemption because the FSU Application is not consistent with the Request for the reasons set out below.

The Commission has already carefully considered the Award, including the Exemption

8. The FSU has sought to rely on amendments to the Request to justify

another inquiry into the Exemption provision – for example, see paragraph 2 of the FSU’s Submission which provides that: ‘The Ministerial Request has been amended to state that modern awards are not intended to exempt employees who are not high income employees from modern award coverage or application unless there is a

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history of exempting such employees across a wide range of pre-reform awards and NAPSAs in the relevant sector. It was also amended to state that modern awards are to help prevent discrimination and promote the principle of equal remuneration for work of equal or comparable value. The FSU submits that the exemption clause in the BFIA is affected by these amendments.’

9. The FSU is seeking to have matters which have been raised and

carefully considered by the Commission dealt with again. AFMA submits that this is inconsistent with the intent of the variation process.

10. The FSU Application is contrary to the Commission’s statement that the

Commission: ‘would be unlikely to alter substantive awards terms so recently made after a comprehensive review of the relevant facts and circumstances including award and NAPSA provisions applying across the Commonwealth. Normally a significant change in circumstances would be required before the Commission would embark on a reconsideration…’ (see [2009] AIRCFB 645 at [3]).

11. AFMA submits that there has not been a significant change in

circumstances to warrant a reconsideration of the Exemption. Further, there is a clear history of exemptions in coverage and application across a wide range of pre-reform awards and NAPSAs in the banking, finance and insurance industry (Industry) (see paragraphs 18 to 28 below).

12. Alternatively, if the Commission is minded to consider the FSU’s

Application, AFMA submits that the Minister’s amendments to the Request on 8 May 2009 simply strengthen AFMA’s argument that the Exemption should be retained and the FSU’s Application must fail.

13. In paragraph 4 of the FSU Application, the FSU states that the

Exemption ‘appears to have been derived from the Credit Union Award 1998 AP772291’. The FSU then seeks to reiterate its former submission that the base award for the Award should be the Insurance Industry Award 1998.

14. Even if the Exemption was derived from the Credit Union Award, it was

only after the Commission comprehensively considered all of the awards in the list of financial services group awards, including the history of exemptions from coverage and application in the pre-reform awards and NAPSAs (as set out in Annexure A).

15. The Exposure Draft of the Award released on 23 January 2009 contained

the following exemption provision: ‘13.2 Exemption rate

The following clauses will not apply to employees who are paid a salary, before overtime payments and shiftwork allowances, which is more than 15% above the Level 5 minimum weekly rate above:

• clause 19—Hours of work, except Shiftwork: clause 19.10;

• clause 20—Overtime and penalty rates;

• Public holidays: clauses 24.2 and 24.3;

• Travel expenses: clause 16.4(b)(ii);

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• Stand-by and call-back allowances: clause 16.2(b); and

• Higher duties allowance: clause 16.2(c)’. 16. The Commission removed the exemptions for public holidays, travel

expenses and higher duties allowance. While AFMA does not agree with the removal of these exemptions, such removal does demonstrate that the provision was carefully considered by the Commission.

17. Further, this is reflected in the Commission’s statement that they

amended the Exemption to reflect the Insurance Industry Award 1998 (see [2009] AIRCFB 345 at [134]). The Insurance Industry Award 1998 provides for an exemption for overtime payments for employees whose job is graded at grade 6 or above ie, an employee earning $40,450 or above (see clause 19.2 of the Insurance Industry Award 1998).

There is a history of exempting employees from coverage and application across a wide range of pre-reform awards and NAPSAs

18. Exemption provisions in awards are not novel. The Commission has

accepted that exemption provisions are not uncommon in many areas of Federal and State award regulation (see [2009] AIRCFB 345). Further, the detailed provisions of the Fair Work Act 2009 (Cth) (FW Act) and the Request do not expressly prohibit exemption provisions.

19. Paragraph 2(f) of the Request provides that:

‘2. The creation of modern awards is not intended to:

(f) exempt or have the effect of exempting employees who are not high income employees, from modern award coverage or application, unless there is a wide range of pre-reform awards and NAPSAs in the relevant industry or occupation.’

20. This requires the Commission to consider the NAPSAs and pre-reform

awards (which includes those referred to as ‘enterprise’ awards by the FSU).

21. AFMA has prepared Annexure A to support the submission that there is

a significant history of exempting employees from coverage generally and from application of a number of award entitlements (particularly for span of hours, overtime and stand-by and call back allowances) across a wide range of pre-reform awards and NAPSAs.

22. The FSU submits that 8 out of 17 pre-reform awards and NAPSAs

contain exemption provisions –ie, only 47% of the Industry awards contain exemption provisions.

23. The FSU has not included ‘enterprise awards’ in its analysis of the

history of exemptions in the Industry. This is contrary to the Request. As shown in Annexure A, it is AFMA’s position that approximately 44 of 73 pre-reform awards and NAPSAs – ie, 60% of the Industry awards contain exemption provisions. This constitutes a wide range of pre-reform awards and NAPSAs as required by the Request.

24. Further, the FSU did not include the Clerical Employee’s Award –

Permanent Building Societies State 2003 Award in the 8 out of 17 awards analysis because the FSU says this is a ‘voluntary annualised

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salary provision’ and not an exemption provision (see paragraph 28 of the FSU Submission). This is not the case - this clause is headed ‘Partial Exemption’ and clearly exempts employees from certain award conditions if they earn over $29,182.40 per annum. This is substantially less than the salary included in the Exemption.

25. In paragraph 30 of the FSU Submission, the FSU also argues that the

Insurance Industry Award 1998 does not exempt employees from parts of the award – it provides the employer the option of not having to pay employees grade 6 and above overtime. This is incorrect – it is an exemption provision and has been treated as such by the Commission (see paragraph 17 above). The Commission considered the exemption in the Insurance Industry Award 1998 and amended clause 13.2 of the exposure draft Award to reflect the consideration of this exemption.

26. The FSU also submits that the merits of exemption clauses have been

tested and rejected by the Commission and relies on one Full Bench decision to support this submission – Clerk Breweries Award [Print S6443]. While the Full Bench considered an exemption provision in the Clerks Breweries Case, it did not reject exemption clauses in general. In that case and in those limited circumstances, it rejected an exemption from coverage.

27. The Clerks Breweries Case is distinguishable in these circumstances

because the Exemption is an exemption from application not coverage. This is an important distinction (see paragraphs 36 to 41 below).

28. Further, Annexure A demonstrates that there is a history of exempting

employees from coverage and application across a wide range of pre-reform awards and NAPSAs and that the Commission has been minded to include exemption provisions in many Industry awards.

The Exemption is not an ‘objectionable term’ under the FW Act

29. In paragraph 52 of the FSU Submission, the FSU submits that

exemption provisions are not permitted or required terms in modern awards. The FSU has failed to acknowledge that although exemption provisions are not specifically referred to as permitted or required terms in subdivisions B and C of Part 2-3 of the FW Act, exemption provisions are not ‘objectionable terms’ (as defined in sections 12 and 150 of the FW Act).

30. Further, as set out in paragraphs 18 to 28 above, exemption provisions

are not novel and have been used in a wide range of pre-reform awards and NAPSAs in the Industry.

The Exemption does not offend the Equity Principle

31. On 8 May 2009, the Request was amended to include the following

provision: ‘3. In accordance with section 576B of the Act, the Commission

must have regard to the following factors

(e) the need to help prevent and eliminate discrimination on the grounds of race, colour, sex, sexual preference, age, physical or mental disability, marital status, family responsibilities, pregnancy, religion, political opinion, national extraction or social origin and to promote the

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principle of equal remuneration for work of equal or comparable value…’

32. The FSU has referred to paragraph 3(e) of the Request to support its

Application that the Exemption offends the Equity Principle because 55% of employees in the Industry are women: ‘8. An exemption clause that excludes employees who are not high

income earners of a predominantly female workforce from minimum safety net award conditions is inconsistent with the promotion of the principle of equal remuneration for work of equal or comparable value, and reinforces pay inequity for female employees working in the finance sector.’

33. Paragraph 3(e) of the Request is not a new concept introduced in the

FW Act. The principle was clearly considered when the exemptions in the various Industry awards set out in Annexure A were drafted and approved by the Commission. The Equity Principle was enshrined in legislation as early as 1994 (see sections 170BB of the pre-reform WR Act and in section 623 of the WR Act).

34. Regardless of the gender split of the Industry’s workforce, the FSU has

failed to particularise why the Exemption offends the Equity Principle. 35. The only argument that the FSU has put forward is that industries with a

large number of female employees have awards containing exemption provisions (such as the Clerks – Private Sector Award 2010, the Nurses Award 2010 and the Award) while male dominated industries have awards that do not contain exemption provisions (such as the Black Coal Mining Award 2010 and the Manufacturing and Associated Industries and Occupations 2010). This cannot be said to support the removal of the exemption provision because the coal and manufacturing industries do not have a history of exemptions in a wide range of pre-reform awards and NAPSAs.

The FSU Submission has not recognised the important distinction between award ‘coverage’ and ‘application’

36. The FSU Submission has failed to recognise the important distinction

between ‘coverage’ and ‘application’ of a modern award. In doing so, the FSU Submission has overstated the position.

37. In paragraph 3 of the FSU Application the FSU states that:

‘Clause 13.2 of the Award has the effect of exempting employees who are not high income employees from coverage of the modern award.’

38. This is not the case. The concepts of coverage and application are

clearly distinguished in the FW Act and the Request. Clause 13.2 is an ‘exemption rate’ so that limited provisions of the Award do not apply to employees who earn more than $44,252 – ie, limited to span of hours, overtime and penalty rates, stand-by and call back allowances. These employees are still covered by the Award and the remaining provisions of the Award apply to them.

39. The Award, as currently drafted, extends coverage to some managerial

employees – ie, levels 4 to 6 of the Award. This is despite the Industry’s concerns about extending coverage of the Award to

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employees who have not traditionally been award covered and paragraph 2(a) of the Request which provides that: ‘2. The creation of modern awards is not intended to:

(a) extend award coverage to those classes of employees, such as managerial employees, who, because of the nature or seniority of their role, have traditionally been award free…’

40. This is also set out in clause 143(7) of the FW Act which provides that:

‘143 (7) A modern award must not be expressed to cover classes of

employees:

(a) who, because of the nature or seniority of their role, have traditionally not been covered by awards (whether made under laws of the Commonwealth or States; or

(b) who perform work that is not of a similar nature to work that has traditionally been regulated by such awards.’

41. Because the Award will cover many employees in the Industry who

have not previously been covered by any award or other industrial instrument, it is reasonable and necessary for certain limited clauses specified in the Exemption not to apply to those employees. The failure to recognise the important distinction between coverage and application means that the FSU Application is flawed.

Removal of the exemption will result in increased costs and operational restrictions for employers 42. The FSU has submitted that the Exemption is contrary to the modern

award objective in section 134 of the FW Act. AFMA strongly disagrees with this submission and submits that the modern award objective is a balance of the considerations in section 134 of the FW Act.

43. The FSU’s Application is contrary to business interests set out in sections

134(f) and 134(h) which provide that: ‘134 The modern awards objective

(1) FWA must ensure that modern awards, together with the National Employment Standards, provide a fair and relevant minimum safety net of terms and conditions, taking into account: … (f) the likely impact of any exercise of modern award

powers on business, including on productivity, employment costs and regulatory burden

… (h) the likely impact of any exercise of modern award

powers on employment growth, inflation and the substantially, performance and competitiveness of the national economy.’

44. The FSU Application is also contrary to paragraph 2(d) of the Request

which provides that:

‘2. The creation of modern awards is not intended to:

(d) increase costs for employers’.

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45. The removal of the Exemption will further exacerbate the considerable

operational cost increases for employers already imposed by the Award – particularly because of the significant extension of award coverage to many employees who have not previously been covered by any award or industrial instrument.

46. The modern Award will significantly increase the number of employees

covered, particularly for members who are wholesale financial market intermediaries (such as investment banks and securities companies). Members operating within this segment of the industry estimate that less than 5 per cent of their current workforce is covered by award terms and conditions. When the Award comes into effect, it is likely that over 50 per cent of this work population will be covered.

47. If the Exemption is removed, the Industry will be burdened with

additional costs in a difficult economic climate (which has resulted in job losses in the Industry).

48. The FSU’s submission that employees will be disadvantaged by the

inclusion of the Exemption is erroneous. This cannot be the case because the extended award coverage will result in many employees now having the benefit of a significant number of award provisions.

Part 4 – Response to the FSU’s Alternative Application 49. The FSU has suggested an alternative to the removal of the Exemption

entirely – that is, the Exemption should be limited to overtime only. 50. This alternative is also contrary to the Request and the FW Act for

reasons set out above. Part 5 – AFMA Submissions if the Exemption is Removed 51. If clause 13.2 is removed, which AFMA disagrees with, AFMA submits

that: (a) clause 4.3 of the Award should be amended such that coverage

be limited to employees at or below an agreed remuneration level (for eg, $43,264 per annum based on the Level 6 rate in the Award as it is currently drafted); or

(b) the classification structure should be reviewed such that Level 5 and 6 are removed from the Award entirely so that managerial employees are removed from coverage.

Including an exemption for an employee earning more than an agreed remuneration level

52. AFMA has prepared Annexure A to support our submission that there is

a significant history of exempting employees from coverage generally and from application of a number of award entitlements (particularly for span of hours, overtime and stand-by and call back allowances) across a wide range of pre-reform awards, NAPSAs, Federal awards and enterprise awards.

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Amendment to the Classification Structure 53. The Award as currently drafted extends coverage to managerial

employees – ie, levels 4 to 6 of the Award. This is inconsistent with paragraph 2(a) of the Request which provides that:

‘2. The creation of modern award is not intended to:

(a) extend award coverage to those classes of employees, such as managerial employees, who, because of the nature or seniority of their role, have traditionally been award free…’

Part 6 – Closing Comments 54. AFMA appreciates the opportunity to make this submission. Should you

have any queries about the matters raised, please contact Denise Hang, Policy Executive, at dhang@afma.com.au or on (02) 9776 7994.

Yours sincerely

Duncan Fairweather Executive Director

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ANNEXURE A

SUMMARY OF EXEMPTION PROVISIONS IN FINANCIAL SERVICES AWARDS

Pre-reform awards or NAPSAs with an exemption provision:

AWARD NAPSA OR PRE-REFORM AWARD

CLAUSE EXEMPTION*

1. Adelaide Bank Employees Award 2000

Pre-reform award

Clause 6 Employees who earn in excess of 10% more than the highest award classification (ie, $38,884.56 per annum) are exempt from: • Hours of work • Overtime • Late trading day, Saturday and Sunday

work • Annual leave loading • Public holidays.

2. AMP Employees' Award 2002

Pre-reform award

Clause 4.1

Employees who voluntarily elect to accept the offer of management terms of employment under letters of employment will be exempt from all the provisions of the Award except the dispute and grievance resolution procedure, provided that the overall terms and conditions of such offer are no less favourable to the employee than the overall terms and conditions of this Award: • Level 4 employees of AMP Services Limited

(ie, earning $41,959.20) • Employees of AMP Henderson Global

Investors Limited and Cogent Investment Operations Pty Ltd who receive a Fixed Pay Package equal to or greater than $41,959.20

• Employees who accepted a written offer of a remuneration package under either Clause 5.5 of the Finance Sector - AMP Employees’ Award 1995 or Clause 23.2 of the Finance Sector - AMP Asset Management Employees’ Award 1996: • Rates of pay • Hours • Flexible hours • Overtime.

3. Bank of America Award 1999

Pre-reform award

Clause 4 The award does not apply to employees whose total wage and remuneration package is in excess of $723.00 per week (ie, $37,596 per annum) (or, if employed part-time or as a casual, in excess of $19.03 per hour).

4. Bank of China Award 2000

Pre-reform award

Clause 4 The award does not apply to employees whose total wage and remuneration package is in excess of $713.00 per week (ie, $37,076 per annum) (or, if employed part time or as a casual, in excess of $18.76 per hour).

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AWARD NAPSA OR PRE-REFORM AWARD

CLAUSE EXEMPTION*

5. Bank of Queensland Award 1999

Pre-reform award

Clause 3 The award does not apply to employees receiving an annual salary in excess of $52,364.20.

6. Bank of Tokyo-Mitsubishi Award 1999

Pre-reform award

Clause 4 The award does not apply to support staff employees in receipt of an actual weekly salary of $711.70 or more (ie, $37,008.40 per annum) (or, if employed part-time or as a casual, an actual hourly wage of $18.72 or more).

7. Banking Services - ANZ Group - Award 1998

Pre-reform award

Clause 6 The award does not apply to staff categorised higher than the highest management category in the award (Category E - maximum annual salary $71,281) except for termination of employment, leave provisions and workers compensation make-up pay. Additionally, Total Employment Cost Remuneration may be offered to staff members permanently appointed to managerial positions. Staff members who accept TEC packages are not covered by the award except for the following provisions: Anti-discrimination, Transmission of business, Workplace flexibility, Procedures for the avoidance of industrial disputes, Employment relationship, Abandonment of employment, Interruption of work, Termination of employment, Allowances - car/taxi, Annual leave, Bereavement leave, Sick leave, Parental leave, Long service leave, Transfers - removal expenses, Travelling expenses, Workers compensation make-up pay.

8. BankWest/ TrustWest Award 1998

Pre-reform award

Clause 8.4.2

Where an employee is offered and accepts a remuneration package in accordance with the packaging of Managerial Salaries Memorandum of Agreement 1990 (between the R&I Bank of WA and the ABEU), (or as varied by the parties from time to time) they will be exempt from the clauses within the Award dealing with: • Full time employees (deals with hours,

overtime etc) • Shift work • Leave in lieu of travelling time • Meal money • Standby/Callback allowances.

9. BNP Paribas Award 2005

Pre-reform award

Clause 6 Employees who earn in excess of $42,339 are exempt from the clauses within the Award dealing with: • Minimum wage • Meal allowance • Car allowance

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AWARD NAPSA OR PRE-REFORM AWARD

CLAUSE EXEMPTION*

• Breaks • Overtime • Shift penalties • Hours for employees who earn above

$53,586. 10. BT Financial

Group Award 1999

Pre-reform award

Clause 4 The terms of clauses 6 to 30 inclusive shall not apply to employees in receipt of an annual remuneration package of more than $45,000 (ie $1,730.76 per fortnight or if employed part time or as a casual, an actual hourly wage of more than $22.77 per hour).

11. Cardlink Services Award 2001

Pre-reform award

Clauses 11 and 12

• Hours –employees performing duties as computer shift leader, senior computer operator, computer operator, senior referral operator and referral operator are exempt from the clause dealing with hours.

• Overtime - Managers and their designated secretaries and investigating officers are exempt from the clause dealing with overtime.

12. Chase Manhattan Bank Australia Award 1999

Pre-reform award

Clause 4 The award does not apply to support staff employees in receipt of an actual yearly wage of $38,285.00 or more (or, if employed part-time an actual hourly wage of $19.38 or more).

13. Citibank Award 2000

Pre-reform award

Clause 4 The award does not apply to any Associate who is in receipt of a total wage and remuneration package in excess of $728.00 per week (ie, $37,856 per annum) (or $19.16 per hour for part-time or casual Associates).

14. Clerical and Administrative Employees in Permanent Building Societies (State) Award (NSW)

NAPSA Clause 14 Weekly employees earning in excess of 15% above the grade 5 rate of pay are exempt from the award, subject to certain exceptions.

15. Clerical Employees' Award - Permanent Building Societies - State 2003 (QLD)

NAPSA Clause 1.3.2

A full-time employee remunerated in excess of the highest award level may mutually agree in writing not to be bound by the award: except for annual leave, LSL, sick leave, family leave, super, disputes resolution and redundancy.

16. Colonial Group Enterprise

Pre-reform award

Clause 23.1

Overtime does not apply to employees designated as members of the Colonial Graduate Program, Information Services

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AWARD NAPSA OR PRE-REFORM AWARD

CLAUSE EXEMPTION*

Award 2003, The

Professionals, Actuarial Students or classified as Grades 6, 7 and above.

17. Commonwealth Bank of Australia Employees Award 1999

Pre-reform award

Clause 8 The award applies to employees up to and including MC level ($55,369 per annum) and Service Staff. Subject to particular conditions contained in clause 8 of the award, an employee may accept an offer made by the Bank to enter into an agreement specifying an alternative form of remuneration and employment conditions and he or she may be exempted from the provisions of this Award and agreements in relation to varied working arrangements, overtime and separate attendance, meal allowance, leave in lieu of travelling time, on-call allowance, telephone availability allowance, higher duty allowance and annual leave loading. The clause applies to select specialist employees and/or individual situations where the employee and the Bank agree that normal Award provisions are inappropriate for the retention and recruitment of individual employees.

18. Commsec Award 2006

Pre-reform award

Clause 4.3

Employees employed on a written contract of employment specifying alternative employment conditions are exempt from (provided they are not less favourable than the award): • All allowances and loadings, including:

meal allowance (clause 10); car allowance (clause 11); annual leave loading (clause 15.2.2)

• Hours of work (clause 13); • Shift work (clause 14); and • Severance pay (clause 20.3) where an

employee’s entitlement to severance pay under this Award is greater than 25% of the minimum annual salary prescribed in clause 8.2 for full-time employees in a particular classification.

19. Credit Union Award 1998

Pre-reform award

Clause 11.1.3

Employees who earn in excess of $42,322.82 are exempt from the clauses dealing with: • Terms of engagement • Hours of work • Shift work • Overtime • Public holidays • Higher grade pay • Travelling expenses and stand-by • Call allowances.

20. Deutsche Bank

Pre-reform award

Clause 4 The award does not apply to support staff employees in receipt of an actual fortnightly

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AWARD NAPSA OR PRE-REFORM AWARD

CLAUSE EXEMPTION*

Australia Award 1998

salary of $1,479.50 or more (ie, $38,467 per annum).

21. Finance Industry - Finance Company Employees' Award 2001

Pre-reform award

Clause 4 Employees who earn in excess of $37,020 are exempt from the clauses in the award dealing with: • Hours of work • Overtime • Wages and classifications.

22. Fiserv Award 2005

Pre-reform award

Clause 5 The award does not apply to any employee who occupies a managerial position, or to any employee who does not perform the majority of his or her duties as set out in this award.

23. GIO Australia Award 2002

Clause 6 An employee who is on a written remuneration package contract of employment and whose name is recorded in a register to be kept by GIO shall be exempt from the provisions of this Award provided that the overall terms and conditions of employment are not less than those prescribed by this Award for the classification and level in which the employee is employed.

24. HSBC Bank Australia Award 1999

Pre-reform award

Clause 4 The award does not apply to employees in receipt of an actual annual wage of $39,803.00 or more (or, if employed part-time or as a casual, an actual hourly wage of $20.14 or more).

25. Insurance Industry Award 1998

Pre-reform award

Clause 19.3

Employees Grade 6 or above are exempt from payment of overtime.

26. Lloyds Bank Australia Award 2002

Pre-reform award

Clause 5 The Award does not apply to any support staff employee whose total remuneration package is $36,892 per annum or more.

27. Macquarie Bank Award 1999

Pre-reform award

Clause 4 The award does not apply to employees who are in receipt of actual weekly remuneration of $732.00 or more (ie, $38,064 per annum) (or actual hourly remuneration of $19.26 per hour or more).

28. Mizuho Corporate Bank, Ltd. Award 1999

Pre-reform award

Clause 4 The award does not apply to support staff employees in receipt of an actual weekly salary of $708.00 or more (ie, $36,816 per annum) (or, if employed part-time or as a casual, an actual hourly wage of $18.63 or more).

29. National Australia Bank Group Award 2002

Pre-reform award

Clause 6 Employees in salary levels H ($46,789) and above are exempt from: • Hours • Overtime • Meal money • Leave in lieu of travelling time • Shift work • Rest periods • Stand-by/call back allowance.

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AWARD NAPSA OR PRE-REFORM AWARD

CLAUSE EXEMPTION*

30. OCBC Bank Award 1999

Pre-reform award

Clause 4 The award does not apply to support staff employees in receipt of an actual weekly salary of $708.00 or more (ie, $36,816 per annum) (or, if employed part-time or as a casual, an actual hourly wage of $18.63 or more).

31. Perpetual Trustees Award 2000

Pre-reform award

Clause 4 The award does not apply to any employee who is in receipt of an actual salary which is, or when added to the cost to the employer of non award benefits is $603.00 per week or more or $15.87 per hour or more (ie $31,356 per annum).

32. Primary Industry Bank of Australia Award 1998

Pre-reform award

Clause 9 Overtime does not apply to part-time employees and employees grade 3 or above (ie, $41,876 per annum) or part time officers.

33. Queensland Credit Union Award 1999

Pre-reform award

Clause 16.4

Employees who earn in excess of $40,893 are exempt from: • Hours of work • Overtime • Public holidays • Higher duties allowance • Travelling and vehicle allowances.

34. Reserve Bank of Australia Salaried Employees Award 2000

Pre-reform award

Clause 5 The award does not apply to employees whose salary exceeds that paid to an employee of Level 5 Classification on the Bank's General Salary Scale (ie, $53,992 per annum).

35. Salomon Smith Barney Australia Award 1999

Pre-reform award

Clause 4 The award does not apply to support employees in receipt of a total remuneration package of $721.00 per week or more (ie, $37,492 per annum) (or, if employed part-time or as a casual, a total remuneration package of $18.97 per hour or more).

36. Scottish Pacific Business Finance Employees Award 2003

Pre-reform award

Clause 6 The terms of this award will not apply to any employee in receipt of a salary package in excess of $68,300 TEC per annum or $64,893 TR per annum. Any person employed by Scottish Pacific whose salary exceeds $42,214 per annum may be offered a salary package of not less than $42,800 TEC and, if such package is accepted, shall be excluded from the following provisions of this award as the packaged salary shall be deemed to compensate for such provisions: • Severance loan concessions • Recall to duty • Shift work • Higher duties

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AWARD NAPSA OR PRE-REFORM AWARD

CLAUSE EXEMPTION*

• Superannuation • Overtime • Wages • Probation • Temporary duties expenses • Stand-by and call back • Travelling expenses • Flexible bank holiday • Hours of work • Meal breaks and allowance • Annual leave loading.

Where an employee accepts a change from being non-packaged to a salary package, the package will include such value for those provisions that the packaged salary paid over a year would be sufficient to cover what the employee would have been entitled to if all the provisions exempted had actually applied. Any person who is offered a salary package of up to $68,300 and is not already packaged will be given the option of accepting such a package without risk to the position/promotion offered. Where an employee, earns more than $42,214 per annum and is not packaged, such employee will be exempt from the provisions of the award as set out in 6.4. Provided however, that where such employee is required to work on a weekend and is not in a ‘sales oriented’ position (as defined in 6.5 below), they will receive the appropriate weekend loadings for all time so worked. Any person employed by Scottish Pacific in a ‘sales oriented’ position who is not packaged shall be excluded from: • Hours of work • Overtime • Shift work • Recall to duty • Weekend work • Meal allowance • Stand-by / call back • Meal breaks.

37. SEALCORP Employees Award 2003

Pre-reform award

Clause 6 The terms of this award will not apply to any employee in receipt of a salary package in excess of $68,300 TEC per annum. Any person employed by SEALCORP whose salary exceeds $42,214 per annum may be offered a salary package of not less than

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AWARD NAPSA OR PRE-REFORM AWARD

CLAUSE EXEMPTION*

$42,800 TEC and, if such package is accepted, shall be excluded from the following provisions of this award as the packaged salary shall be deemed to compensate for such provisions: • Severance loan concessions • Temporary duties expenses • Stand-by and call back • Travelling expenses • Corporate wardrobe • Flexible bank holiday • Hours of work • Meal breaks and allowance • Annual leave loading • Probation • Shift work • Recall to duty • Higher duties • Superannuation • Overtime • Wages.

Where an employee accepts a change from being non-packaged to a salary package, the package will include such value for those provisions that the packaged salary paid over a year would be sufficient to cover what the employee would have been entitled to if all the provisions exempted had actually applied. Any person who is offered a salary package of up to $68,300 and is not already packaged will be given the option of accepting such a package without risk to the position/promotion offered. Where an employee, other than a Customer Service Manager, earns more than $42,214 per annum and is not packaged, such employee will be exempt from the provisions of the award as set out in 6.4. Provided however, that where such employee is required to work on a weekend and is not in a ‘sales oriented’ position (as defined in 6.5 below), they will receive the appropriate weekend loadings for all time so worked. Any person employed by SEALCORP in a ‘sales oriented’ position who is not packaged shall be excluded from: • Hours of work • Overtime • Shift work

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AWARD NAPSA OR PRE-REFORM AWARD

CLAUSE EXEMPTION*

• Recall to duty • Weekend work • Meal allowance • Stand-by / call back • Meal breaks.

38. St. George Bank Employees Award 2002

Pre-reform award

Clause 6 The award does not cover any employee in receipt of a salary package in excess of $70,172 TEC per annum or $66,765 TR per annum. Any person employed by St. George whose salary exceeds $44,086 per annum may be offered a salary package of not less than $44,672 TEC (or a comparable amount for those staff who are members of the MandF Retirement Fund) and, if such package is accepted, shall be excluded from the following provisions of this award as the packaged salary shall be deemed to compensate for such provisions: • Severance loan • Temporary duties expenses • Stand-by and call back • Travelling expenses • Corporate wardrobe • Flexible bank holiday • Hours of work • Meal breaks and allowance • Annual leave loading • Probation • Shift work • Recall to duty • Higher duties • Superannuation • Overtime • Wages.

Where an employee accepts a change from being non-packaged to a salary package, the package will include such value for those provisions that the packaged salary paid over a year would be sufficient to cover what the employee would have been entitled to if all the provisions exempted had actually applied. Any person who is offered a salary package of up to $70,172 and is not already packaged will be given the option of accepting such a package without risk to the position/promotion offered. Where an employee, other than a Customer Service Manager, earns more than $44,086 per annum and is not packaged, such

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AWARD NAPSA OR PRE-REFORM AWARD

CLAUSE EXEMPTION*

employee will be exempt from the provisions of the award as set out in 6.4. Provided however, that where such employee is required to work on a weekend and is not in a ‘sales oriented’ position (as defined in 6.5 below), they will receive the appropriate weekend loadings for all time so worked. Any person employed by St. George in a ‘sales oriented’ position who is not packaged shall be excluded from: • Hours of work • Overtime • Shift work • Recall to duty • Weekend work • Meal allowance • Stand-by/call back • Meal breaks

Sales oriented positions shall include Personal Banker (Retail Bank), Business Development Manager and Lending Manager and such other positions which may be agreed between the FSU and St. George from time to time.

39. Standard Chartered Bank Award 1999

Pre-reform award

Clause 4 The award does not apply to support staff employees whose total wage and remuneration package is in excess of $723.00 per week (ie, $37,596 per annum) (or, if employed part-time or as a casual, in excess of $19.03 per hour).

40. Superpartners Award 2002

Pre-reform award

Clause 6.2

Employees at Grade 6 level (ie, earning $36,566 per annum) and above will be excluded from the hours of work, overtime and salary review provisions contained in this award.

41. Unisys Payment Services Limited Award 2000

Pre-reform award

Clause 4 The award does not apply to support staff employees in receipt of an actual yearly wage of $38,285.00 or more (or, if employed part-time an actual hourly wage of $19.38 or more).

42. United Credit Union Award 2001

Pre-reform award

Clause 9 Overtime does not apply to employees above grade 5 (ie, $35,166 per annum).

43. Western Australian Credit Unions Award 2001

Pre-reform award

Clause 11.1.3

Employees who earn in excess of $40,900 are exempt from: • Terms of engagement • Hours of work • Overtime • Public holidays • Higher grade pay • Travelling expenses.

44. Westpac Employees'

Pre-reform award

8.7.1, 8.7.2

There are two options for remuneration packaging contained in the award.

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AWARD NAPSA OR PRE-REFORM AWARD

CLAUSE EXEMPTION*

Award 2002 • Westpac may offer employees a "package one" remuneration package under which the employee will be exempt from award provisions dealing with time away, breaks between the work of one day and the next, meal allowance, stand-by allowance, overtime, part time extra hours, shift work, payment for public holidays and travelling time allowance. The package value will be set at no less than one dollar below the minimum salary of the "M1" grade ($48,311 per annum) as agreed between Westpac and the FSU.

• Westpac may offer employees in roles graded A2 ($38,719 per annum) or equivalent or above a "package two" remuneration package under which the employee will be exempt from award provisions dealing with time away, part time extra hours, breaks between the work of one day and the next, meal allowance, stand-by allowance and overtime. The package value is the greater of the grade minimum salary plus 15% or the employee's current salary plus 15%.

* Please note that the amounts referred to in this column may not have been indexed. Pre-reform awards or NAPSAs without an exemption provision:

AWARD NAPSA OR PRE-REFORM AWARD

1. B&E Ltd Award 2005 Pre-reform award 2. Bank of Queensland Agents Award 2004 Pre-reform award 3. Bendigo Bank Award 1999 Pre-reform award 4. Casual Officers (Adecco) Award 2001 Pre-reform award 5. Clerical and Administrative Employees (Health Insurance

Industry) Award 2001 Pre-reform award

6. Clerks' (Credit and Finance Establishments) Award NAPSA 7. Colonial Retail Network Multi-Site Franchise Interim Award

2000 Pre-reform award

8. CONNECT Credit Union Award 2004 Pre-reform award 9. Credit Union Employees (SA) Award NAPSA

10. GE Money Award 2004 Pre-reform award 11. Insurance Award (TAS) NAPSA 12. Insurance Employees (Clerical Indoor Staff, RACQ and RACQ-

GIO) Award 1999 Pre-reform award

13. Insurance Officers (Motor Accident Insurance Board) Award 1998

Pre-reform award

14. IPA Temporary Processing Award 2005 Pre-reform award

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15. Medibank Private Limited Award 2004 Pre-reform award 16. Medical Benefits Fund of Australia Limited Award 2002 Pre-reform award 17. Note Printing Australia Award 2000, The Pre-reform award 18. Permanent Building Societies (Administrative and Clerical

Officers) Award 1975 NAPSA

19. Public Accountants Award NAPSA 20. R.A.A. Insurance Superannuation Award 1988 NAPSA 21. Ready Plan Australia Pty Limited Agreement 1992 Pre-reform award 22. Reserve Bank of Australia Maintenance Staff Award 2001 Pre-reform award 23. Ross Human Directions Temporary Employees Award 2005 Pre-reform award 24. State Trustees Limited Award 2001 Pre-reform award 25. Suncorp Award - State 2003 Pre-reform award 26. Swiss Re Life & Health Australia Superannuation Award 1996 Pre-reform award 27. Trust Company Award 2001 Pre-reform award 28. Trustee Industry Award 1999 Pre-reform award 29. Victorian WorkCover Authority Award 2002 Pre-reform award

The following pre-reform awards are included in the Commission’s indicative industry list however, due to their limited scope (only dealing with temporary hires, training or superannuation), they are not relevant to the consideration of the Exemption provision:

AWARD NAPSA OR PRE-REFORM AWARD

1. AM Corporation Superannuation Award 1989 Pre-reform award 2. Banking, Insurance and Financial Services Industry

Temporary Hiring Award 2000 Pre-reform award

3. FAI Superannuation Award 1988 Pre-reform award 4. Finance and Insurance Industry Sector - Minimum Wage

Order - Victoria 1997 Pre-reform award

5. Finance Traineeship Award 1998 Pre-reform award 6. G.L. Phillips and Company Superannuation Award 1991 Pre-reform award 7. Insurance Employees (Wesfarmers Limited) Superannuation

Award 1990 Pre-reform award

8. Insurance Industry Superannuation (Combined Insurance Company of Australia) Award 1996

Pre-reform award

9. Insurance Industry Superannuation (Fifth) Award 1988 Pre-reform award 10. Insurance Industry Superannuation (First) Award 1987 Pre-reform award 11. Insurance Industry Superannuation (Fourth) Award 1988 Pre-reform award 12. Insurance Industry Superannuation (Third) Award 1988 Pre-reform award 13. Labour Union Insurance and Superannuation Employees

Award 2002 Pre-reform award

14. MGICA Superannuation Award 1988 Pre-reform award 15. National Mutual Trustees Limited Superannuation Award 1998 Pre-reform award 16. RACV Insurance Superannuation Award 1988 Pre-reform award 17. Trustee Companies Employee Superannuation Award 1989 Pre-reform award 18. Westpac Life Staff Superannuation Award 1990 Pre-reform award