1
Fair Work Act 2009
s.156 - 4 yearly review of modern awards
4 yearly review of modern awards – Annual leave
(AM2014/47)
JUSTICE ROSS, PRESIDENT
DEPUTY PRESIDENT KOVACIC
COMMISSIONER HAMPTON MELBOURNE, 23 NOVEMBER 2015
4 yearly review of modern awards - common issue - annual leave - determinations.
[1] On 11 June 2015 a Full Bench decision about annual leave provisions in modern
awards determined model terms in relation to granting leave in advance of accrual and EFT
and paid annual leave. The decision also contained provisional model terms for cashing out
annual leave and dealing with excessive leave accruals. After providing interested parties with
a further opportunity to be heard the cashing out and excessive leave model terms were
finalised in a subsequent decision issued on 15 September 20151.
[2] On 30 September 2015 draft determinations were published on the Fair Work
Commission website inserting the relevant model terms into all modern awards and the
following directions were issued:
‘All interested parties who now contend that a particular modern award should not be
varied to incorporate one or more of the annual leave model terms are to file a
submission and any evidence sought to be adduced in support of the submission …’
[3] In accordance with the above directions a number of parties filed submissions and
submissions in reply. Attachment A contains a list of the submissions made regarding the
insertion of one or more model clauses in 34 modern awards.
[4] A hearing has been scheduled for 9:30am on Tuesday 8 December 2015 to provide
interested parties with an opportunity to make oral submissions in relation to the draft
determinations.
[5] This Statement sets out our provisional view as to how we propose to deal with the
submissions filed.
1 [2015] FWCFB 5771
[2015] FWCFB 8030
STATEMENT
E AUSTRALIA FairWork Commission
http://www.fwc.gov.au/decisionssigned/html/2015fwcfb5771.htm
https://www.fwc.gov.au/sites/awardsmodernfouryr/common/AM201447-directions-150915.pdf
https://www.fwc.gov.au/sites/awardsmodernfouryr/common/AM201447-schedule-AL2-revised-draft-determinations-October-2015.pdf
[2015] FWCFB 8030
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[6] Other than the general submission outlined in paragraph [7] no award specific
submissions were received in relation to the 88 modern awards set out in Attachment B.
[7] The Australian Industry Group (Ai Group) made a general submission on
26 November 2015 in relation to the excessive leave model term stating that the model term
reduces flexibility for employers. Ai Group submit that where an excessive leave term is
currently in a modern award, that term should be retained. A similar submission was made by
Australian Business Industrial and the New South Wales Business Chamber Ltd (jointly ABI)
in relation to the Clerks—Private Sector Award 2010. ABI submit that the current excessive
leave provision should be retained.
[8] An employee covered by the Waste Management Award 2010 submitted that a
definition of shiftworker for the purpose of the additional week of annual leave should be
inserted in this award. Given that this award provides for shiftwork, our provisional view is
that the variation determination include the following definition:
‘For the purposes of the additional week of annual leave provided in s.87(1)(b) of the
Act, a shiftworker is a seven day shiftworker who is regularly rostered to work on
Sundays and public holidays.’
[9] Parties are invited to file written submissions regarding the provisional view expressed
(including the terms of the proposed variation) in paragraph [8] above by emailing
amod@fwc.gov.au no later than 4.00 pm on Thursday 3 December 2015.
[10] A number of submissions were made in relation to the particular employment
arrangements under the following awards in the education sector:
Educational Services (Teachers) Award 2010
Higher Education Industry—Academic Staff—Award 2010
Higher Education Industry—General Staff—Award 2010
[11] A Full Bench has been constituted to deal with the substantive claims in the education
sector in AM2015/6. The implementation of the annual leave terms in the above awards will
be referred to that Full Bench.
[12] The Australian Mines and Metals Association Inc (AMMA) and Maritime Industry
Association Ltd (MIA) made detailed submissions opposing the model terms for excessive
leave, granting annual leave in advance and cashing out annual leave in the following awards
in this sector:
Dredging Industry Award 2010
Marine Towage Award 2010
Maritime Offshore Oil and Gas Award 2010
Ports, Harbours and Enclosed Water Vessels Award 2010
Professional Diving Industry (Industrial) Award 2010
Seagoing Industry Award 2010
[13] AMMA and MIA outlined the unique rostering arrangements in this sector and submit
that under these awards, industry specific provisions operate in conjunction with the National
https://www.fwc.gov.au/awards-and-agreements/modern-award-reviews/4-yearly-review/award-stage/award-review-documents/MA000006?m=AM2014/229
mailto:amod@fwc.gov.au
http://www.fwc.gov.au/documents/sites/awardsmodernfouryr/common/MA0000043-AL2-draft-determination-amended.pdf
[2015] FWCFB 8030
3
Employment Standards. In their reply submission, the Australian Workers’ Union did not
object to the submissions made by AMMA and MIA.
[14] Our provisional view is that the draft determinations inserting annual leave provisions
dealing with excessive leave, leave in advance and cashing out will not be issued in relation to
these six awards. Any interested persons objecting to our provisional view should file written
submissions no later than 4.00 pm on Thursday 3 December 2015. If no submissions are
made to the contrary we will adopt AMMA/MIA’s position.
[15] Submissions were also made in relation to the following awards:
Hospitality group
Hospitality Industry (General) Award 2010
Registered and Licensed Clubs Award 2010
Restaurant Industry Award 2010
Agriculture group
Horticulture Award 2010
Pastoral Award 2010
Wine Industry Award 2010
Miscellaneous group
Passenger Vehicle Transportation Award 2010
Black Coal Mining Industry Award 2010
Resources group
Hydrocarbons Industry (Upstream) Award 2010
Mining Industry Award 2010
Oil Refining and Manufacturing Award 2010
Salt Industry Award 2010
Health group
Medical Practitioners Award 2010
Aboriginal Community Controlled Health Services Award 2010
Aged Care Award 2010
Ambulance and Patient Transport Industry Award 2010
Health Professionals and Support Services Award 2010
Nurses Award 2010
Pharmacy Industry Award 2010
Social, Community, Home Care and Disability Services Industry Award 2010
[16] Submissions in relation to the above awards and the general submissions referred to in
paragraph [7], will be dealt with at the Full Bench at a hearing on Tuesday 8 December
2015. A schedule for those proceedings is at Attachment C.
PRESIDENT
[2015] FWCFB 8030
4
ATTACHMENT A—LIST OF SUBMISSIONS
Organisation Document Date
Australian Public Transport
Industrial Association
Submission - draft determination - Passenger
Vehicle Transportation Award 2010
13/07/2015
Australian Higher Education
Industrial Association
Submission - draft determination - Education
sector
13/07/2015
D. Kruse and others Submission - draft determination - Waste
Management Award 2010
21/10/2015
Clubs Australia Industrial Submission - draft determination - Registered
and Licensed Clubs Award 2010
26/10/2015
Australian Industry Group Submission - draft determination - multiple
modern awards
26/10/2015
CFMEU - Mining and
Energy Division
Submission - draft determination - Black Coal
Mining Industry Award 2010
26/10/2015
Coal Mining Industry
Employer Group
Submission - draft determination - Black Coal
Mining Industry Award 2010
26/10/2015
Associations of Independent
Schools
Submission - draft determination - Educational
Services (Teachers) Award 2010
26/10/2015
Restaurant & Catering
Australia
Submission - draft determination - Restaurant
Industry and Hospitality Industry (General)
awards
26/10/2015
Australian Hotels
Association
Submission - draft determination - Hospitality
award
26/10/2015
National Farmers' Federation Submission - draft determinations -
Horticulture, Pastoral and Wine industry
awards
26/10/2015
Australian Mines and Metals
Association and Maritime
Industry Australia
Submission - draft determinations - Maritime
sector
26/10/2015
Group of Eight Universities Submission - draft determinations - Education
sector
26/10/2015
Australian Mines and Metals
Association
Submission - draft determination - Resources
sector
26/10/2015
Independent Education
Union
Submission - draft determination - Educational
Services (Teachers) Award 2010
26/10/2015
Australian Salaried Medical
Officers' Federation
Submission - draft determination - Medical
Practitioners Award 2010
26/10/2015
Australian Business
Industrial and NSW Business
Chamber
Submission - draft determination - Clerks—
Private Sector Award 2010 and others
27/10/2015
Australian Chamber of Correspondence 29/10/2015
https://www.fwc.gov.au/sites/awardsmodernfouryr/common/AM201447-corr-ACCI-291015.pdf
https://www.fwc.gov.au/sites/awardsmodernfouryr/common/AM201447-sub-ABI-271015.pdf
https://www.fwc.gov.au/sites/awardsmodernfouryr/common/AM201447-sub-ABI-271015.pdf
https://www.fwc.gov.au/sites/awardsmodernfouryr/common/AM201447-sub-ASMOF-261015.pdf
https://www.fwc.gov.au/sites/awardsmodernfouryr/common/AM201447-sub-ASMOF-261015.pdf
https://www.fwc.gov.au/sites/awardsmodernfouryr/common/AM201447-sub-IEU-261015.pdf
https://www.fwc.gov.au/sites/awardsmodernfouryr/common/AM201447-sub-IEU-261015.pdf
https://www.fwc.gov.au/sites/awardsmodernfouryr/common/AM201447-sub-AMMA2-261015.pdf
https://www.fwc.gov.au/sites/awardsmodernfouryr/common/AM201447-sub-AMMA2-261015.pdf
https://www.fwc.gov.au/sites/awardsmodernfouryr/common/AM201447-sub-8Unis-261015.pdf
https://www.fwc.gov.au/sites/awardsmodernfouryr/common/AM201447-sub-8Unis-261015.pdf
https://www.fwc.gov.au/sites/awardsmodernfouryr/common/AM201447-sub-AMMA-261015.pdf
https://www.fwc.gov.au/sites/awardsmodernfouryr/common/AM201447-sub-AMMA-261015.pdf
https://www.fwc.gov.au/sites/awardsmodernfouryr/common/AM201447-sub-NFF-261015.pdf
https://www.fwc.gov.au/sites/awardsmodernfouryr/common/AM201447-sub-NFF-261015.pdf
https://www.fwc.gov.au/sites/awardsmodernfouryr/common/AM201447-sub-NFF-261015.pdf
https://www.fwc.gov.au/sites/awardsmodernfouryr/common/AM201447-sub-AHA-261015.pdf
https://www.fwc.gov.au/sites/awardsmodernfouryr/common/AM201447-sub-AHA-261015.pdf
https://www.fwc.gov.au/sites/awardsmodernfouryr/common/AM201447-sub-RCI-261015.pdf
https://www.fwc.gov.au/sites/awardsmodernfouryr/common/AM201447-sub-RCI-261015.pdf
https://www.fwc.gov.au/sites/awardsmodernfouryr/common/AM201447-sub-RCI-261015.pdf
https://www.fwc.gov.au/sites/awardsmodernfouryr/common/AM201447-sub-AIS-261015.pdf
https://www.fwc.gov.au/sites/awardsmodernfouryr/common/AM201447-sub-AIS-261015.pdf
https://www.fwc.gov.au/sites/awardsmodernfouryr/common/AM201447-sub-CMIEG-261015.pdf
https://www.fwc.gov.au/sites/awardsmodernfouryr/common/AM201447-sub-CMIEG-261015.pdf
https://www.fwc.gov.au/sites/awardsmodernfouryr/common/AM201447-sub-CFMEU-ME-261015.pdf
https://www.fwc.gov.au/sites/awardsmodernfouryr/common/AM201447-sub-CFMEU-ME-261015.pdf
https://www.fwc.gov.au/sites/awardsmodernfouryr/common/AM201447-sub-AiG-261015.pdf
https://www.fwc.gov.au/sites/awardsmodernfouryr/common/AM201447-sub-AiG-261015.pdf
https://www.fwc.gov.au/sites/awardsmodernfouryr/common/AM201447-sub-CAI-261015.pdf
https://www.fwc.gov.au/sites/awardsmodernfouryr/common/AM201447-sub-CAI-261015.pdf
https://www.fwc.gov.au/sites/awardsmodernfouryr/common/AM201447-sub-DKruseandors-211015.pdf
https://www.fwc.gov.au/sites/awardsmodernfouryr/common/AM201447-sub-DKruseandors-211015.pdf
https://www.fwc.gov.au/sites/awardsmodernfouryr/common/AM201447-sub-AHEI-130715.pdf
https://www.fwc.gov.au/sites/awardsmodernfouryr/common/AM201447-sub-AHEI-130715.pdf
https://www.fwc.gov.au/sites/awardsmodernfouryr/common/AM201447-sub2-APTIA-130715.pdf
https://www.fwc.gov.au/sites/awardsmodernfouryr/common/AM201447-sub2-APTIA-130715.pdf
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Organisation Document Date
Commerce and Industry
Health Services Union Submission in reply - Health sector 02/11/2015
Coal Mining Industry
Employer Group
Submissions in reply - Black Coal Mining
Industry Award 2010
11/11/2015
The Australian Workers'
Union
Submissions in reply - multiple modern awards 11/11/2015
CFMEU - Construction and
General Division
Submissions in reply - Building and
Construction General On-site Award 2010 and
others
11/11/2015
CFMEU - Mining and
Energy Division
Submissions in reply - Black Coal Mining
Industry Award 2010
11/11/2015
Australian Industry Group Submission in reply - multiple modern awards 11/11/2015
AMWU - Vehicle Division Submissions in reply - Vehicle Manufacturing,
Repair, Services and Retail Award 2010
13/11/2015
AMWU Submissions in reply - multiple modern awards 13/11/2015
APESMA - Collieries' Staff
Division
Submission in reply - Black Coal Mining
Industry Award 2010
13/11/2015
Textile, Clothing and
Footwear Union of Australia
Submissions in reply - Textile and Dry
Cleaning awards
13/11/2015
https://www.fwc.gov.au/sites/awardsmodernfouryr/common/AM201447-sub-TCFUA-131115.pdf
https://www.fwc.gov.au/sites/awardsmodernfouryr/common/AM201447-sub-TCFUA-131115.pdf
https://www.fwc.gov.au/sites/awardsmodernfouryr/common/AM201447-sub-APESMA-CSD-131115.pdf
https://www.fwc.gov.au/sites/awardsmodernfouryr/common/AM201447-sub-APESMA-CSD-131115.pdf
https://www.fwc.gov.au/sites/awardsmodernfouryr/common/AM201447-sub-AMWU-131115.pdf
https://www.fwc.gov.au/sites/awardsmodernfouryr/common/AM201447-sub-amwuvd-131115.pdf
https://www.fwc.gov.au/sites/awardsmodernfouryr/common/AM201447-sub-amwuvd-131115.pdf
https://www.fwc.gov.au/sites/awardsmodernfouryr/common/AM201447-sub-AiG-111115.pdf
https://www.fwc.gov.au/sites/awardsmodernfouryr/common/AM201447-sub-CFMEU-ME-111115.pdf
https://www.fwc.gov.au/sites/awardsmodernfouryr/common/AM201447-sub-CFMEU-ME-111115.pdf
https://www.fwc.gov.au/sites/awardsmodernfouryr/common/AM201447-sub-CFMEU-CG-111115.pdf
https://www.fwc.gov.au/sites/awardsmodernfouryr/common/AM201447-sub-CFMEU-CG-111115.pdf
https://www.fwc.gov.au/sites/awardsmodernfouryr/common/AM201447-sub-CFMEU-CG-111115.pdf
https://www.fwc.gov.au/sites/awardsmodernfouryr/common/AM201447-sub-AWU-111115.pdf
https://www.fwc.gov.au/sites/awardsmodernfouryr/common/AM201447-sub-CMIEG-111115.pdf
https://www.fwc.gov.au/sites/awardsmodernfouryr/common/AM201447-sub-CMIEG-111115.pdf
https://www.fwc.gov.au/sites/awardsmodernfouryr/AM201447-sub-HSU-021115.pdf
[2015] FWCFB 8030
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ATTACHMENT B—LIST OF AWARDS WITH NO SUBMISSIONS
Award code Award title
MA000046 Air Pilots Award 2010
MA000047 Aircraft Cabin Crew Award 2010
MA000048 Airline Operations—Ground Staff Award 2010
MA000049 Airport Employees Award 2010
MA000092 Alpine Resorts Award 2010
MA000060 Aluminium Industry Award 2010
MA000080 Amusement, Events and Recreation Award 2010
MA000118 Animal Care and Veterinary Services Award 2010
MA000114 Aquaculture Industry Award 2010
MA000079 Architects Award 2010
MA000054 Asphalt Industry Award 2010
MA000019 Banking, Finance and Insurance Award 2010
MA000078 Book Industry Award 2010
MA000091 Broadcasting and Recorded Entertainment Award 2010
MA000021 Business Equipment Award 2010
MA000095 Car Parking Award 2010
MA000055 Cement and Lime Award 2010
MA000070 Cemetery Industry Award 2010
MA000120 Children’s Services Award 2010
MA000022 Cleaning Services Award 2010
MA000045 Coal Export Terminals Award 2010
MA000083 Commercial Sales Award 2010
MA000056 Concrete Products Award 2010
MA000023 Contract Call Centre Award 2010
MA000110 Corrections and Detention (Private Sector) Award 2010
MA000024 Cotton Ginning Award 2010
MA000075 Educational Services (Post-Secondary Education) Award 2010
MA000076 Educational Services (Schools) General Staff Award 2010
MA000088 Electrical Power Industry Award 2010
MA000025 Electrical, Electronic and Communications Contracting Award 2010
MA000003 Fast Food Industry Award 2010
MA000111 Fire Fighting Industry Award 2010
MA000094 Fitness Industry Award 2010
MA000073 Food, Beverage and Tobacco Manufacturing Award 2010
MA000105 Funeral Industry Award 2010
MA000101 Gardening and Landscaping Services Award 2010
MA000061 Gas Industry Award 2010
MA000004 General Retail Industry Award 2010
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Award code Award title
MA000026 Graphic Arts, Printing and Publishing Award 2010
MA000005 Hair and Beauty Industry Award 2010
MA000008 Horse and Greyhound Training Award 2010
MA000064 Hydrocarbons Field Geologists Award 2010
MA000029 Joinery and Building Trades Award 2010
MA000067 Journalists Published Media Award 2010
MA000099 Labour Market Assistance Industry Award 2010
MA000116 Legal Services Award 2010
MA000081 Live Performance Award 2010
MA000112 Local Government Industry Award 2010
MA000117 Mannequins and Models Award 2010
MA000010 Manufacturing and Associated Industries and Occupations Award 2010
MA000093 Marine Tourism and Charter Vessels Award 2010
MA000030 Market and Social Research Award 2010
MA000059 Meat Industry Award 2010
MA000104 Miscellaneous Award 2010
MA000032 Mobile Crane Hiring Award 2010
MA000033 Nursery Award 2010
MA000097 Pest Control Industry Award 2010
MA000069 Pharmaceutical Industry Award 2010
MA000036 Plumbing and Fire Sprinklers Contracting Award 2010
MA000051 Port Authorities Award 2010
MA000074 Poultry Processing Award 2010
MA000057 Premixed Concrete Award 2010
MA000109 Professional Diving Industry (Recreational) Award 2010
MA000065 Professional Employees Award 2010
MA000037 Quarrying Award 2010
MA000013 Racing Clubs Events Award 2010
MA000014 Racing Industry Ground Maintenance Award 2010
MA000015 Rail Industry Award 2010
MA000106 Real Estate Industry Award 2010
MA000039 Road Transport (Long Distance Operations) Award 2010
MA000038 Road Transport and Distribution Award 2010
MA000068 Seafood Processing Award 2010
MA000016 Security Services Industry Award 2010
MA000040 Silviculture Award 2010
MA000082 Sporting Organisations Award 2010
MA000121 State Government Agencies Administration Award 2010
MA000053 Stevedoring Industry Award 2010
[2015] FWCFB 8030
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Award code Award title
MA000084 Storage Services and Wholesale Award 2010
MA000087 Sugar Industry Award 2010
MA000103 Supported Employment Services Award 2010
MA000066 Surveying Award 2010
MA000041 Telecommunications Services Award 2010
MA000071 Timber Industry Award 2010
MA000042 Transport (Cash in Transit) Award 2010
MA000102 Travelling Shows Award 2010
MA000089 Vehicle Manufacturing, Repair, Services and Retail Award 2010
MA000113 Water Industry Award 2010
MA000044 Wool Storage, Sampling and Testing Award 2010
[2015] FWCFB 8030
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ATTACHMENT C—PROPOSED SCHEDULE FOR HEARING
This matter is listed before the Full Bench on 9.30 am on Tuesday 8 December 2015
The submissions will be dealt with in accordance with the following schedule:
Time Group/Awards
9.30 am General submission by Ai Group
Submission by ABI re Clerks—Private Sector Award 2010
Not before
10.30 am Hospitality group
Hospitality Industry (General) Award 2010
Registered and Licensed Clubs Award 2010
Restaurant Industry Award 2010
Agriculture group
Horticulture Award 2010
Pastoral Award 2010
Wine Industry Award 2010
11.00 am Passenger Vehicle Transportation Award 2010
Waste Management Award 2010
Not before
11.30 am Black Coal Mining Industry Award 2010
Resources group
Hydrocarbons Industry (Upstream) Award 2010
Mining Industry Award 2010
Oil Refining and Manufacturing Award 2010
Salt Industry Award 2010
Not before
2.00 pm Health group
Medical Practitioners Award 2010
Aboriginal Community Controlled Health Services Award 2010
Aged Care Award 2010
Ambulance and Patient Transport Industry Award 2010
Health Professionals and Support Services Award 2010
Nurses Award 2010
Pharmacy Industry Award 2010
Social, Community, Home Care and Disability Services Industry Award 2010
Printed by authority of the Commonwealth Government Printer
Price code C, PR574227
https://www.fwc.gov.au/sites/awardsmodernfouryr/common/NOL-081215-47.pdf
