[2016] FWCFB 3177
The attached document replaces the document previously issued with the above code on
23 May 2016.
The number of awards to be varied has been corrected in paragraphs 293, 299, 300, 302, 304
and Attachment 6.
In Attachment 6, notes have been corrected for the following awards to show that these have
been referred to AM2015/6:
MA000077 Educational Services (Teachers) Award 2010
MA000006 Higher Education Industry—Academic Staff—Award 2010
MA000007 Higher Education Industry—General Staff—Award 2010
Miriam Henry
Associate to Justice Ross
Dated 25 May 2016
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 MAY 2016
4 yearly review of modern awards - annual leave common issue - insertion of model terms into
particular modern awards - excessive annual leave - cashing out of annual leave - granting
leave in advance - EFT and paid annual leave - plain language redrafts of certain model terms.
CONTENTS
Page Paragraph
1. Introduction 4 [1]
2. The Legislative Context 5 [9]
3. The June and September decisions 9 [27]
(i) Cashing out of annual leave 9 [28]
(ii) EFT and paid annual leave 10 [34]
(iii) Leave in advance 11 [39]
(iv) Excessive annual leave 12 [43]
4. The Process 13 [50]
5. The Plain Language Re-drafts of certain Model Terms 14 [57]
6. The Submissions 18 [79]
6.1 General Submissions 18 [81]
(i) The transitional issue 18 [83]
(ii) The existing flexibility issue 19 [89]
(iii) The taking of leave issue 27 [122]
[2016] FWCFB 3177
DECISION
AUSTRALIA FairWork Commission
[2016] FWCFB 3177
2
Page Paragraph
6.2 Award-specific submissions 29 [128]
(i) Agriculture group 29 [128]
(ii) Black Coal Mining Industry Award 2010 36 [165]
(iii) Health group 39 [180]
(iv) Hospitality group 43 [201]
(v) Maritime group 50 [231]
(vi) Passenger Vehicle Transportation Award 2010 51 [239]
(vii) Resources group 56 [263]
(viii) Security Services Industry Award 2010 61 [290]
6.3 Enterprise Awards 61 [291]
7. Conclusion and Next Steps 62 [292]
(i) Cashing out of annual leave 62 [293]
(ii) EFT and paid annual leave 62 [295]
(iii) Leave in advance 63 [299]
(iv) Excessive annual leave 63 [302]
Attachments:
1. List of Submissions 70
2. Comparative table and Agreement templates 73
3. Annotated version of the May 2016 plain language template
agreements
86
4. Plain language re-drafts of the annual leave model 87
5. List of awards that Ai Group submit should not be varied to
insert the model excessive leave term
89
6. Awards into which various provisions are to be inserted 91
[2016] FWCFB 3177
3
ABBREVIATIONS
ABI Australian Business Industrial
ABS Australian Bureau of Statistics
ACCI Australian Chamber of Commerce and Industry
ACTU Australian Council of Trade Unions
Ai Group Australian Industry Group
AIRC Australian Industrial Relations Commission
AMMA Australian Mines and Metals Association
AMWU “Automotive, Food, Metals, Engineering, Printing and Kindred
Industries Union” known as the Australian Manufacturing Workers’
Union (AMWU)
APTIA Australian Public Transport Industrial Association
ASMOF Australian Salaried Medical Officers Federation
AWALI 2010 Australian Work and Life Index 2010
AWU The Australian Workers’ Union
CAI Clubs Australia Industrial
CFMEU Construction, Forestry, Mining and Energy Union
CFMEU (M&E) Construction, Forestry, Mining and Energy Union (Mining and
Energy Division)
CMIEG Coal Mining Industry Employer Group
Commission Fair Work Commission
EFT Electronic Funds Transfer
Employer Group Group of employers listed at Attachment A to the June 2015 decision
FW Act Fair Work Act 2009 (Cth)
HILDA Household, Income and Labour Dynamics in Australia survey
June 2015 decision 4 yearly review of modern awards—Annual leave decision – 11 June
2015 [2015] FWCFB 3406
MIAL Maritime Industry Association Ltd
NAPSA Notional Agreement Preserving State Award
NES National Employment Standards
RCA Restaurant and Catering Australia
Review 4 yearly review of modern awards under s.156 of the Fair Work Act
2009
SDA Shop, Distributive and Allied Employees Association
September 2015 decision 4 yearly review of modern awards—Annual leave decision –
15 September 2015 [2015] FWCFB 5771
TAI 2002 The Australia Institute Survey, 2002
TCFUA Textile, Clothing and Footwear Union of Australia
Transitional Review Transitional (or 2 year) review of modern awards under Item 6 of
Schedule 5 to the Fair Work (Transitional Provisions and
Consequential Amendments) Act 2009
WR Act Workplace Relations Act 1996 (Cth)
https://www.fwc.gov.au/documents/decisionssigned/html/2015FWCFB5771.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2015FWCFB3406.htm
[2016] FWCFB 3177
4
1. Introduction
[1] This decision deals with the variation of modern awards in relation to a number of
matters regarding paid annual leave and is issued as part of the first 4 yearly review of modern
awards (the Review). The Review includes a Common issues stage and following a period of
consultation it was decided that certain annual leave provisions in modern awards would be
dealt with as a ‘common issue’, namely:
(i) cashing out annual leave;
(ii) excessive annual leave;
(iii) annual close-down;
(iv) granting annual leave in advance;
(v) purchased leave;
(vi) payment of annual leave entitlements on termination; and
(vii) EFT and paid annual leave.
[2] Claims were made by interested parties relating to each of the matters outlined above
and the 4 Yearly Review of Modern Awards – Annual Leave decision1 (the June 2015
decision) determined some matters and expressed provisional views in relation to a number of
other matters. Directions were issued2 in relation to the filing of written submissions and a
further oral hearing was held on 7 August 2015. A subsequent decision3 (the September 2015
decision) dealt with the wording of the provisional model term in relation to excessive leave
and with the model terms in relation to the cashing out of annual leave and granting leave in
advance.
[3] In the June and September 2015 decisions the Fair Work Commission (the
Commission) determined model clauses in respect of ‘excessive annual leave’; ‘cashing out of
annual leave’; ‘electronic funds transfer and paid annual leave’; and ‘granting leave in
advance’. In the June 2015 decision the Commission rejected the Employer Group’s claim4
which sought to insert an annual close-down term into a number of modern awards, on the
basis that the proponents of the claim had not established a merit case sufficient to warrant
granting the claim. The Commission left open the capacity for interested parties to apply to
vary a particular modern award, to either vary an existing close-down provision or to insert an
appropriate provision, during the Award stage of the Review.5 We deal later with the outcome
of the June and September 2015 decisions.
[4] There was no support for the development of a model term dealing with ‘purchased
leave’ and the Commission decided not to take any further steps in relation to that issue. Any
proposal in respect of purchased leave will be dealt with on an award by award basis, during
the Award stage of the Review.6
[5] Finally, the Australian Council of Trade Unions (ACTU) had sought to vary 118
modern awards in relation to the payment of annual leave entitlements on termination, to
provide that an employer must pay an employee the amount that would have been payable to
the employee had the employee taken that period of leave. The Employer Group opposed the
ACTU’s claim.
[6] The merit of the ACTU’s claim turns on the proper construction of s.90(2) of the Fair
Work Act 2009 (Cth) (the FW Act) and that issue was subsequently the subject of a decision
by the Full Court of the Federal Court in Centennial Northern Mining Services Pty Ltd v
[2016] FWCFB 3177
5
Construction, Forestry, Mining and Energy Union.7 There was also a Bill before the
Parliament – the Fair Work Amendment (Remaining 2014 Measures) Bill 2015 – which was
relevant to the determination of the ACTU’s claim. Part 1 of Schedule 1 of the Bill dealt with
the payment of annual leave on termination and seeks to amend s.90(2). As a consequence of
these developments the ACTU’s claim has been adjourned pending legislative developments.
The ACTU has not sought specific directions or hearing dates in relation to its claim, at this
time.8
[7] The June and September 2015 decisions finalised the provisions of various model
terms. The next phase of the proceedings – and the focus of this decision – deals with whether
it is appropriate to vary particular modern awards to insert the model terms. All interested
parties were provided with an opportunity to make submissions and adduce evidence in
relation to whether the various model terms should now be inserted into particular modern
awards. We deal later with the process adopted and the submissions received.
[8] Section 5 of this decision deals with some redrafting of three of the model terms. The
changes proposed are intended to make these terms easier to understand; they are not intended
to change the substantive effect of any of the model terms.
2. The Legislative context
[9] We propose to make some brief observations about the legislative context for the
Review. We note that these issues are canvassed in more detail in the 4 Yearly Review of
Modern Awards: Preliminary Jurisdictional Issues decision9; we adopt and apply that
decision.
[10] Section 156 of the FW Act provides that the Commission must conduct a 4 yearly
review of modern awards as soon as practicable after 1 January 2014. Subsection 156(2) deals
with what must be done in the Review:
‘(2) In a 4 yearly review of modern awards, the FWC:
(a) must review all modern awards; and
(b) may make:
(i) one or more determinations varying modern awards; and
(ii) one or more modern awards; and
(iii) one or more determinations revoking modern awards.
(c) must not review, or make a determination to vary, a default fund term of a modern
award.
Note 1: Special criteria apply to changing coverage of modern awards or revoking modern
awards (see sections 163 and 164).
Note 2: For reviews of default fund terms of modern awards, see Division 4A.’
[11] Subsection 156(5) provides that in a Review each modern award must be reviewed in
its own right, however, this does not prevent the Commission from reviewing two or more
modern awards at the same time.
[12] We accept that the requirement in s.156(5) to review each modern award ‘in its own
right’, is to ensure that the Review is conducted ‘by reference to the particular terms and the
[2016] FWCFB 3177
6
particular operation of each particular award rather than by a global assessment based upon
generally applicable considerations’.10 However, while the review of each modern award must
focus on the particular terms and operation of the particular award, this does not mean that the
review of a modern award is to be confined to a single holistic assessment of all of its terms.11
In these proceedings we are considering whether particular modern awards achieve the
modern awards objective in relation to the manner in which they deal (or do not deal) with
certain matters relating to paid annual leave.
[13] The ‘scope’ of the Review was considered in the Preliminary Jurisdictional Issues
Decision12 and the following extracts from that decision are particularly relevant for present
purposes:
‘[19] The Review is broader in scope than the Transitional Review of modern awards
completed in 2013 (the Transitional Review). …
[20] In their submission dated 20 February 2014, Ai Group submitted that even though the
Review is broader in scope than the Transitional Review:
“…where a party seeks a variation to a modern award in the 4 Yearly Review and the
substance of the variation sought has already been dealt with in the Part 10A Process
or in the Modern Awards Review 2012, the applicant should be required to show that
there are cogent reasons for departing from the previous decision.”13
[21] Both the Australian Chamber of Commerce and Industry (ACCI) and Australian
Business Industrial (ABI) challenged Ai Group’s submission, submitting that the FW Act does
not provide any legislative basis for the adoption of a test such as that proposed by Ai Group.
…
[22] ABI generally accepted that submissions in support of award variations should be
founded on merit based arguments that address the relevant legislative provisions, but
contended that the procedure adopted by the Commission should reflect the nature of the
issues involved. In some cases this approach may require a formal hearing with the
presentation of evidence sufficient to move the Commission to exercise its discretion to vary a
modern award. This is likely to be the case where a major change is sought to be made to a
modern award and the proposal is contested. In other cases a formal hearing or evidence may
not be necessary. …
[23] The Commission is obliged to ensure that modern awards, together with the NES,
provide a fair and relevant minimum safety net taking into account, among other things, the
need to ensure a ‘stable’ modern award system (s.134(1)(g)). The need for a ‘stable’ modern
award system suggests that a party seeking to vary a modern award in the context of the
Review must advance a merit argument in support of the proposed variation. The extent of
such an argument will depend on the circumstances. We agree with ABI’s submission that
some proposed changes may be self evident and can be determined with little formality.
However, where a significant change is proposed it must be supported by a submission which
addresses the relevant legislative provisions and be accompanied by probative evidence
properly directed to demonstrating the facts supporting the proposed variation.
[24] In conducting the Review the Commission will also have regard to the historical
context applicable to each modern award. Awards made as a result of the award modernisation
process conducted by the former Australian Industrial Relations Commission (the AIRC)
under Part 10A of the Workplace Relations Act 1996 (Cth) were deemed to be modern awards
for the purposes of the FW Act (see Item 4 of Schedule 5 of the Transitional Act). Implicit in
this is a legislative acceptance that at the time they were made the modern awards now being
[2016] FWCFB 3177
7
reviewed were consistent with the modern awards objective. The considerations specified in
the legislative test applied by the AIRC in the Part 10A process is, in a number of important
respects, identical or similar to the modern awards objective in s.134 of the FW Act.14 In the
Review the Commission will proceed on the basis that prima facie the modern award being
reviewed achieved the modern awards objective at the time that it was made.’15
[14] The short points to be drawn from the above extract are that in the Review:
(i) the Commission will proceed on the basis that prima facie the modern award being
reviewed achieved the modern awards objective at the time it was made; and
(ii) variations to modern awards should be founded on merit based arguments that
address the relevant legislative provisions, accompanied by probative evidence
directed to what are said to be the facts in support of a particular claim. The extent of
the argument and material required will depend on the circumstances.
[15] It is also important to appreciate the context in which the observations set out at
paragraphs [13] and [14] above were made. The Full Bench was there dealing with
submissions about what a party seeking to vary a modern award in the Review should be
required to demonstrate. It should not be inferred from the quoted passage that in conducting
the Review the Commission is confined to only dealing with variation applications made by
interested parties. The FW Act charges the Commission with the responsibility of acting on
its own motion to review all modern awards; it is not dependent upon the applications of
interested parties in performing that statutory function.
[16] We now turn to the relevance of the ‘modern awards objective’ to the Review.
[17] The modern awards objective applies to the performance or exercise of the
Commission’s modern award powers, which are defined to include the Commission’s
functions or powers under Part 2-3 of the FW Act. The Review function is set out in s.156,
which is in Part 2-3 and so will involve the performance or exercise of the Commission’s
modern award powers. It follows that the modern awards objective applies to the Review.
[18] The modern awards objective is set out in s.134 of the FW Act. It states:
‘134 The modern awards objective
What is the modern awards objective?
(1) The FWC 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:
(a) relative living standards and the needs of the low paid; and
(b) the need to encourage collective bargaining; and
(c) the need to promote social inclusion through increased workforce participation;
and
(d) the need to promote flexible modern work practices and the efficient and
productive performance of work; and
(da) the need to provide additional remuneration for:
(i) employees working overtime; or
(ii) employees working unsocial, irregular or unpredictable hours; or
(iii) employees working on weekends or public holidays; or
[2016] FWCFB 3177
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(iv) employees working shifts; and
(e) the principle of equal remuneration for work of equal or comparable value; and
(f) the likely impact of any exercise of modern award powers on business, including
on productivity, employment costs and the regulatory burden; and
(g) the need to ensure a simple, easy to understand, stable and sustainable modern
award system for Australia that avoids unnecessary overlap of modern awards; and
(h) the likely impact of any exercise of modern award powers on employment growth,
inflation and the sustainability, performance and competitiveness of the national
economy.
This is the modern awards objective.
When does the modern awards objective apply?
(2) The modern awards objective applies to the performance or exercise of the FWC’s modern
award powers, which are:
(a) the FWC’s functions or powers under this Part; and
(b) the FWC’s functions or powers under Part 2-6, so far as they relate to modern
award minimum wages.
Note: The FWC must also take into account the objects of this Act and any other applicable
provisions. For example, if the FWC is setting, varying or revoking modern award minimum
wages, the minimum wages objective also applies (see section 284).’
[19] The modern awards objective is directed at ensuring that modern awards, together
with the NES, provide a ‘fair and relevant minimum safety net of terms and conditions’ taking
into account the particular considerations identified in paragraphs 134(1)(a) to (h) (the s.134
considerations). The objective is very broadly expressed.16 No particular primacy is attached
to any of the s.134 considerations and not all of the matters identified will necessarily be
relevant in the context of a particular proposal to vary a modern award.
[20] The obligation to take into account the s.134 considerations means that each of these
matters, insofar as they are relevant, must be treated as a matter of significance in the decision
making process.17
[21] While the Commission must take into account the s.134 considerations, the relevant
question is whether the modern award, together with the NES, provides a fair and relevant
minimum safety net of terms and conditions. Further, it is not necessary to make a finding that
the modern award under review has failed to satisfy at least one of the s.134(1)
considerations.18 As the Full Federal Court said in National Retail Association v Fair Work
Commission:
‘It is apparent from the terms of s.134(1) that the factors listed in (a)–(h) are broad
considerations which the FWC must take into account in considering whether a modern award
meets the objective set by s.134(1), that is to say, whether it provides a fair and relevant
minimum safety net of terms and conditions. The listed factors do not, in themselves, pose any
questions or set any standard against which a modern award could be evaluated. Many of them
are broad social objectives. What, for example, was the finding called for in relation to the
first factor (‘relative living standards and the needs of the low paid’)? Furthermore, it was
common ground that some of the factors were inapplicable to the SDA’s claim?’19
[2016] FWCFB 3177
9
[22] There is a degree of tension between some of the s.134 considerations. The
Commission’s task is to balance the various considerations and ensure that modern awards
provide a fair and relevant minimum safety net of terms and conditions.
[23] Section 138 of the FW Act is also relevant, it emphasises the importance of the
modern awards objective in these terms:
‘A modern award may include terms that it is permitted to include, and must include terms
that it is required to include, only to the extent necessary to achieve the modern awards
objective and (to the extent applicable) the minimum wages objective.’
[24] Section 138 provides that terms only be included in a modern award ‘to the extent
necessary to achieve the modern awards objective’. To comply with s.138 the terms included
in modern awards must be ‘necessary to achieve the modern awards objective’.
[25] What is ‘necessary’ in a particular case is a value judgment taking into account the
s.134 considerations, to the extent that they are relevant having regard to the submissions and
evidence directed to those considerations.20
[26] We now turn to the June and September decisions, which provide the context for this
phase of these proceedings.
3. The June and September decisions
[27] The June and September decisions determined model terms in relation to the cashing
out of annual leave; EFT and paid leave; leave in advance and excessive leave accruals. We
refer to these model terms as the September 2015 model terms. We propose to briefly set out
what has been decided in respect of each of these model terms.
(i) Cashing out of annual leave
[28] The claim advanced by the Employer Group sought to insert the following clause into
120 modern awards:
‘Cashing out of annual leave
With the agreement of the employer, an employee may cash out an amount of accrued paid
annual leave provided that:
(a) the employee retains at least four (4) weeks of accrued annual leave
immediately after the agreed amount is cashed out;
(b) each cashing out of a particular amount of accrued paid annual leave must be
agreed by a separate agreement in writing; and
(c) the employee must be paid the full amount that would have been payable had
the employee taken the leave at the time that it is cashed out.’21
[29] The Employer Group standard clause reflected the requirements of s.93(2) of the FW
Act.22 The union parties opposed the insertion of cashing out provisions in modern awards.
[30] The Full Bench noted that under previous legislative regimes, predecessor bodies to
the Commission consistently rejected proposals for the cashing out of annual leave on the
[2016] FWCFB 3177
10
basis that they undermined the purpose of annual leave. However, the FW Act now makes
specific provision for the cashing out of annual leave (at ss.92–94). Based on the evidence,
the Full Bench observed that provisions permitting the cashing out of annual leave are a
relatively common feature of enterprise agreements approved by the Commission, and that
while most of these terms simply reflect the requirements in s.93, a significant proportion
contain additional safeguards. The Full Bench stated that while the safeguards provided in
s.93(2) set out the minimum requirements of such a term, they do not constitute a code and
modern awards may also include terms that supplement the NES.23
[31] The Full Bench granted the Employer Group’s claim in relation to cashing out of
annual leave, subject to the incorporation of four additional safeguards as follows:
a maximum of two weeks’ paid annual leave can be cashed out in any 12 month
period (in the case of part-time employees, this is based on the employee’s weekly
ordinary hours);
specific requirements relating to record keeping and the content of any agreement
relating to cashing out accrued annual leave;
if the employee is under 18 years of age, the agreement to cash out a particular
amount of accrued paid annual leave must be signed by the employee’s parent or
guardian; and
notes are inserted at the end of the model term drawing attention to the general
protections in Part 3-1 of the FW Act against undue employer influence and
misrepresentation in relation to rights under the clause.24
[32] The Full Bench also decided that the variation of all modern awards to incorporate the
model term would ensure that each modern award provides a fair and relevant minimum
safety net; is necessary to achieve the modern awards objective; and is consistent with the
objects of the FW Act.25
[33] In the September 2015 proceedings a number of organisations sought to vary the
cashing out model term in a number of respects. Each of the proposed variations were
rejected.26
(ii) EFT and paid annual leave
[34] The Employer Group sought to vary 51 modern awards, which currently require the
employer to pay an employee for annual leave prior to the employee taking the leave. The
effect of the proposed variation is that when employees are paid by electronic funds transfer
(EFT) they may be paid in accordance with their usual pay cycle while on paid annual leave,
rather than being paid prior to commencing their period of annual leave. The union parties
opposed the Employer Group claim.27
[35] The Employer Group sought to insert the following clause into 51 modern awards:
‘Electronic Transfer Payment of Annual Leave
Despite anything else in this clause, an employee paid by electronic funds transfer (EFT) may
be paid in accordance with their usual pay cycle while on paid annual leave.’28
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[36] The Employer Group’s claim did not seek to change the status quo (i.e. payment for
leave being made in advance of taking the leave) in respect of employees who are paid by
cash or cheque.
[37] In the June 2015 decision the Full Bench granted the Employer Group claim and was
satisfied that the variation will ensure modern awards will provide a fair and relevant
minimum safety net, taking into account the particular considerations set out in paragraphs
134(1)(a) to (h) of the FW Act. The Full Bench rejected the argument that s.90 requires
annual leave to be paid in advance and was satisfied that the proposed clause is an ancillary or
incidental term within the meaning of s.55(4) of the FW Act.29
[38] The Full Bench noted that the existing award provisions which require annual leave to
be paid prior to taking leave do not appear to have been the subject of any detailed arbitral
consideration. In considering whether such a requirement is still relevant in contemporary
circumstances, the Full Bench relied on evidence that a substantial majority of respondents
pay their employees by EFT and data showing a trend away from cash based transactions
towards either credit card usage or direct transfer and BPAY methods.30
(iii) Granting leave in advance
[39] The Employer Group sought to vary 48 modern awards to include a provision
allowing for the taking of annual leave in advance of an entitlement to such leave accruing, by
agreement between an employer and employee. The claimed provision also allowed an
employer to make a deduction from monies payable to an employee on termination of
employment where an employee ceases employment before accruing the leave taken in
advance.
[40] In the June 2015 decision the Full Bench was persuaded that an award term which
facilitates agreements to take leave in advance will operate in a mutually beneficial manner
and was appropriate. Such a term would allow an employee, with the agreement of their
employer, to take paid annual leave at a time when they may not otherwise be able to do so
and will align the entitlements of modern award covered employees with those of
award/agreement free employees. The main differences between the model term determined
by the Full Bench and the Employer Group claim are the requirements regarding the content
and form of any agreement to provide leave in advance and the employer’s obligation to keep
such agreements as an employee record (as in subclause 1.1 of the model term).31
[41] The Employer Group claim was directed at 48 modern awards and in the June 2015
decision the Full Bench was satisfied that the variation of those modern awards to incorporate
the model term was necessary to meet the modern awards objective. The Full Bench also
expressed the provisional view that it was necessary to vary all modern awards to insert the
model term, in order to achieve the modern awards objective.32
[42] In the September 2015 proceedings a number of employer organisations sought a
variation to the model term to delete clause 1.1(c) of the proposed model term that relates to
retaining a record. The Full Bench rejected the proposed variations, noting that it was
‘satisfied that in the context of such a substantive change to the modern award system, and
given the uncertain application of Regulation 3.36, it is necessary to include subclause 1.1(c)
in the model term’.33
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(iv) Excessive annual leave
[43] The Employer Group sought to insert the following ‘excessive annual leave’ clause
into 70 modern awards:
‘Excessive Annual Leave
Despite anything else in this clause, an employer may direct an employee to take paid
annual leave if:
(a) the employee has accrued at least six (6) weeks of annual leave;
(b) the employer gives the employee four (4) weeks’ notice to take the annual
leave; and
(c) the employee retains at least four (4) weeks of accrued annual leave after the
direction is given by the employer.’34
[44] The proposed clause was sought to be inserted into 39 modern awards that did not
presently contain a provision dealing with excessive annual leave (see Attachment D to the
June 2015 decision) and into 31 other modern awards to replace the existing excessive leave
clause in those awards (see Attachment E to the June 2015 decision).
[45] The June 2015 decision deals with the relevant historical and legislative context noting
that prior to the commencement of the National Employment Standards (NES) and modern
awards, ‘federal and State legislation and awards commonly provided employers with a right
to direct employees to take annual leave’.35 The Full Bench noted that the evidence before it
‘clearly establishes that most employees accrue a portion of their paid annual leave
entitlement and that a significant proportion of employees have six weeks or more of such
accrued leave’.36 The evidence tendered by the Employer Group in support of their claim was
in the form of the Employer Survey and various reports and academic articles relating to paid
leave and why employees do not utilise their leave entitlements.
[46] The Full Bench expressed the provisional view that a variation of modern awards to
incorporate the model term was necessary to achieve the modern awards objective. The Full
Bench also observed that ‘greater consistency in the provisions governing the taking of annual
leave will make the safety net simpler and easier to understand’ and on that basis formed the
provisional view that a model term dealing with excessive leave should be inserted into all
modern awards.37
[47] The Full Bench redrafted the Employer Group’s proposed clause to create a
provisional model term. Consistent with the Employer Group’s claim the provisional model
terms incorporated the employer’s right to direct an employee to take their excessive annual
leave, but also made provision for the circumstance where an employee accrues excessive
paid annual leave but no employer direction is made. The provisional model term provided an
avenue for an employee to exercise control over the time at which their leave is to be taken,
subject to a number of limitations. The differences between the Employer Group’s proposed
clause and the provisional model term are discussed at paragraphs [170]–[213] of the June
2015 decision.
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13
[48] The terms of the provisional model term were the focal point of the September 2015
proceedings. The September 2015 decision made a number of variations to the provisional
term:
(i) the definition of shiftworker for the purpose of the excessive leave model term is
to be the same as the definition in the relevant modern award;38
(ii) subclause 1.2(a) was varied to delete the words ‘request a meeting’ and to insert
the words ‘seek to confer’ where the previous words appeared;39
(iii) the words ‘The direction must state that it is a direction given under subclause
1.2(b) of this award’, were deleted from subclauses 1.2(b) and 1.2(c)40
(iv) the words ‘The employer is not to take the direction into account in deciding
whether to agree to such a requirement’, were deleted from subclause 1.2(b);41
(v) a transitional provision was inserted so that subclause 1.2(c) commences operation
12 months after the commencement of subclauses 1.2(a) and (b);42
(vi) subclause 1.2(c) was varied to provide that the maximum period of paid annual
leave that may be the subject of a notice by an employee in any 12 month period
will be four weeks’ leave if the employee is not a shiftworker and five weeks’
leave if the employee is a shiftworker;43 and
(vii) subclause 1.2(d) was deleted and a note inserted drawing attention to the dispute
settlement clause in the modern award.44
[49] Before turning to the submissions in the present proceedings, it is necessary to first say
something about the process we have adopted.
4. The Process
[50] As we have mentioned, the June and September 2015 decisions determined model
terms in relation to:
(i) cashing out of annual leave;
(ii) electronic funds transfer and paid annual leave;
(iii) granting annual leave in advance; and
(iv) excessive annual leave.
[51] The September 2015 decision45 made it clear that the content of the model terms had
now been settled and that interested parties would be given an opportunity to make
submissions and adduce evidence as to whether the various model terms should be inserted
into particular modern awards.
[52] 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
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evidence sought to be adduced in support of the submission and any evidence sought to be
adduced in support of the submission on or before 4.00 pm on Monday 26 October 2015.
Note: To be clear, all interested parties must file fresh submissions. The Full Bench will not
have regard to submissions already filed in respect of this issue as those submissions were
made before the terms of the various model terms were finalised.’
[53] In accordance with the above directions a number of parties filed submissions and
submissions in reply. Attachment 1 contains a list of the submissions made regarding the
insertion of one or more model clauses in various modern awards.
[54] In a Statement46 issued on 23 November 2015 (the November Statement) we set out
some provisional views as to how we proposed to deal with the submissions filed. We invited
parties to file written submissions regarding the provisional written views expressed. We dealt
with those submissions in a Statement47 issued on 4 December 2015 (the December
Statement).
[55] Paragraph [8] of the November Statement noted that an employee covered by the
Waste Management Award 2010 had submitted that a definition of shiftworker for the
purpose of the additional week of annual leave should be inserted in this award. Given that the
award provides for shiftwork we expressed the provisional view 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.’
[56] Parties were invited to file written submissions regarding the provisional view
expressed (including the terms of the proposed variation). Submissions were filed by the
Australian Industry Group (Ai Group)48, supported by the Waste Contractors and Recyclers
Association of NSW49, contending this issue should be dealt with during the Award stage on
the basis that a similar application made by the Transport Workers’ Union of Australia is
currently being dealt with in the Award stage in AM2014/216. In the December Statement50
we agreed with the proposal by Ai Group and accordingly the employee’s submission will be
referred to the Award stage for consideration.
5. The Plain Language Re-drafts of certain Model Terms
[57] The modern awards objective requires the Commission to take into account ‘the need
to ensure a simple, easy to understand, stable and sustainable modern award system for
Australia that avoids unnecessary overlap of modern awards’ (see s.134(1)(g)) (emphasis
added).
[58] Since the commencement of the Review, the Commission has undertaken a number of
steps to reduce the complexity of modern awards including:
the release of the Commission’s ‘Guide to Award Stage’ in June 2014. This Guide
states that modern awards should ‘avoid technical jargon and use simple language
while ensuring provisions are precise and legally enforceable’51; and
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15
a Pilot to produce a plain language exposure draft based on the Pharmacy Industry
Award 2010 (the Pilot).
[59] As the September 2015 model terms have not yet been incorporated into modern
awards, the Full Bench has reviewed the model terms to ensure that they are expressed in
plain language. The plain language model terms have been restructured to make the clauses
more straightforward for employers and employees to understand and use. The language is
simpler and clearer and uses commonly understood words rather than jargon or archaic words.
Importantly, the substantive legal effect of the model terms has not been changed.
[60] In general, the plain language re-drafts of the model terms:
use short familiar words (such as ‘instead of’ rather than ‘in lieu of’), and leave out
unnecessary words;
use short sentences;
use ‘on’ instead of ‘upon’;
avoid having more than five lines of unbroken text;
avoid use of archaic words such as ‘notwithstanding’;
avoid use of ‘such’ as in ‘such leave’; and
write numbers as figures and not as words.
[61] Some particular aspects of the annual leave plain language re-drafts are discussed
below.
[62] As we have mentioned, the September 2015 annual leave model terms deal with
excessive annual leave accruals; taking annual leave in advance of accrual; cashing out of
annual leave; and EFT and paid annual leave. Some minor modifications have been made to
the ‘annual leave in advance’ and the ‘cashing out of annual leave’ model terms, consistent
with the general observations set out above. The associated template agreements have also
been redrafted to reflect the amendments to these model terms. No changes are proposed to
the EFT and paid annual leave term.
[63] The excessive annual leave model term contains provisions about the taking of paid
annual leave, additional to the National Employment Standards (NES), which provide ways of
dealing with the accrual of excessive paid annual leave.
[64] The September 2015 model excessive annual leave term has been split into three
separate subclauses. This restructuring and the use of subheadings is intended to help
employers and employees navigate the clause.
[65] The September 2015 model term included a note that a dispute about the operation of
the clause could be dealt with under the award’s dispute resolution clause. This note has been
omitted from the plain language re-draft as:
it has no substantive effect; and
if it was to be retained, a similar note should potentially be inserted in other award
terms for consistency, which would increase the length of the award.
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[66] The genesis of the note in the September 2015 model term lies in the June 2015
provisional model term. Clause 1.2(d) of the provisional model term provided:
Clause 1.2(d) Dispute resolution
Without limiting the dispute resolution clause of this award, an employer or an
employee may refer the following matters to the Fair Work Commission under
the dispute resolution clause:
(i) a dispute about whether the employer or employee has requested a meeting
and genuinely tried to reach agreement under subclause 1.2(a);
(ii) a dispute about whether the employer has unreasonably refused to agree to
a request by the employee to take paid annual leave; and
(iii) a dispute about whether a direction to take leave complies with subclause
1.2(b) or whether a notice requiring leave to be granted complies with
subclause 1.2(c).
[67] During the September 2015 proceedings ACCI, Ai Group and a number of other
employer organisations submitted that subclause 1.2(d) of the provisional model term was
unnecessary because the dispute resolution clauses in all 122 modern awards allow an
employee to raise a dispute about any matter ‘arising under the award’. In the course of oral
argument the ACTU submitted that when introducing a change to the award system it made
sense to explain how the new provision was to operate within the context of the award. On
that basis the ACTU supported the retention of subclause 1.2(d), but acknowledged that there
were alternate ways of directing attention to the dispute settlement clause in the relevant
award, such as a note to that affect.52
[68] The September 2015 Full Bench adopted the ACTU’s suggestion:
‘The June 2015 decision indicated that as subclause 1.2(a) required discussion between the
employer and employee, it was not necessary for there to be further discussions under the
terms of the award dispute resolution clause before a dispute could be referred to the
Commission under subclause 1.2(d). However, on reflection we are not persuaded that it is
necessary to include a detailed dispute resolution provision in the model term.
Given that the model term is a substantive change to the modern award system it is appropriate
that attention be directed to the dispute settlement clause in the award. A note to this effect
will be inserted at the commencement of the model term.’53
[69] We have given further consideration to the inclusion of a note directing attention to the
dispute settlement term in the award. We acknowledge that the introduction of the model term
into modern awards is a significant change. The Commission proposes to publish an
information note on the annual leave model terms when the various variation determinations
come into effect. The information note will explain how the model terms operate and how
they relate to other provisions in a modern award. In such circumstances it is unnecessary to
include the note in the model term itself.
[70] The September 2015 model term includes a definition of ‘shiftworker’. This has been
omitted from the plain language re-draft as it was unnecessary, as explained below.
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[71] Section 87(1)(b)(i) of the FW Act provides that an employee is entitled to five weeks
of paid annual leave if a modern award applies to the employee and defines or describes the
employee as a shiftworker for the purposes of the NES. It follows that a separate definition of
‘shiftworker’ is not required in the excessive annual leave accruals term, as either the award
concerned will already contain a definition, or it will not, in which case there will be no
entitlement to an additional quantum of leave.
[72] Accordingly, where the excessive leave accruals model term is to be inserted into a
particular modern award which does not define or describe employees as shiftworkers for the
purposes of s.87(1)(b)(i) of the FW Act, all references to ‘shiftworker’ in the model term will
be removed. For example:
(a) An employee has an excessive leave accrual if the employee has accrued more
than 8 weeks’ paid annual (or 10 weeks’ paid annual leave for a shiftworker, as
defined by clause 29.2).
[73] The September 2015 model term provides that:
A direction by an employer must not result at any time in the employee’s remaining
accrued entitlement to paid annual leave being less than six weeks, taking into
account all other paid annual leave arrangements: subclause 1.2(b)(ii);
An employee to whom a direction has been given may make a request to take paid
annual leave as if the direction had not been given: subclause 1.2(b)(iii);
If leave is agreed after a direction is issued and the direction would then result in the
employee’s remaining accrued entitlement to paid annual leave at any time being
less than six weeks, the direction will be deemed to have been withdrawn: subclause
1.2(b)(iv);
an employee must take paid annual leave in accordance with a direction complying
with this subclause: subclause 1.2(b)(v).
[74] In contrast, the plain language re-draft in Attachment 2 at clause 29.7 provides that:
A direction by the employer is of no effect if it would result at any time in the
employee’s remaining accrued entitlement to paid annual leave being less than
6 weeks, when any other paid leave arrangements are taken into account: subclause
29.7(b)(i);
An employee to whom a direction has been given may request to take a period of
paid annual leave as if the direction had not been given: subclause 29.7(d);
An employee must take paid annual leave in accordance with a direction given by
the employer that is in effect: subclause 29.7(c);
Paid annual leave arising from a request by the employee may result in the direction
ceasing to have effect: Note 1 to subclause 29.7(d).
[75] The plain language re-draft has the same substantive effect as the September 2015
model term, but avoids the use of the complex legal concept of ‘deemed withdrawal’, which
may not readily be understood.
[2016] FWCFB 3177
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[76] Attachment 2 is a comparative document which compares the September 2015 annual
leave model terms with the May 2016 plain language model terms. The May 2016 plain
language model terms are referred to as the ‘revised model terms’, in this decision.
[77] An annotated version of the May 2016 plain language template model terms is set out
at Attachment 3.
[78] The revised model terms and the associated template agreements are set out at
Attachment 4.
[79] We now turn to consider the submissions filed.
6. The Submissions
[80] The submissions received fall into two broad categories – general and award specific.
We deal first with what we have categorised as the general submissions.
6.1 General Submissions
[81] Ai Group has made a general submission in response to the Commission’s provisional
view that the excessive leave model term be inserted into all modern awards.54 There are three
aspects to the Ai Group’s submission:
(i) the transitional arrangements in relation to clause 1.2(c) of the model term (the
transitional issue);
(ii) the contention that 55 modern awards, set out at Attachment 5 (see paragraph [10]
of Ai Group’s Further Submission of 7 December 2015) should not be varied to insert
the model term on the basis that they currently contain an excessive annual leave
clause which affords greater flexibility (the ‘existing flexibility issue’); and
(iii) the contention that 22 modern awards which currently contain a provision which
requires the taking of annual leave within a specified period after accrual should not be
varied to insert the model term (the ‘taking of leave issue’).
[82] We propose to deal with each of these aspects of the Ai Group’s submission in turn.
(i) The transitional issue
[83] As we have previously noted the model term provides employers with the right to
direct an employee to take ‘excessive annual leave’ and also makes provision for the
circumstance where an employee accrues excessive annual leave but no employer direction is
made. In such circumstances clause 1.2(c) of the model term provides an avenue for an
employee to exercise control over the time at which that leave is to be taken.
[84] In the proceedings following the June 2015 decision a number of submissions were
advanced in relation to clause 1.2(c) of the model term. Clause 1.2(c) sets out the
circumstances in which an employee may require their employer to grant them a period of
paid annual leave. Relevantly for present purposes, Ai Group advanced the proposition that
clause 1.2(c) not commence until 12 months after the commencement of the balance of the
[2016] FWCFB 3177
19
clause, in order to address situations where a significant proportion of an employer’s
workforce currently has excessive leave accruals.
[85] In the September 2015 decision the Commission concluded that the transitional
arrangement proposed by Ai Group had merit:
‘We acknowledge that a provision such as subclause 1.2(c) is a significant change to the
modern award system and it is appropriate that employers are provided with some lead time to
adjust. Subclause 1.2(c) will commence operation 12 months after the commencement of
subclauses 1.2(a) and (b).’55
[86] The short point advanced by Ai Group in the present proceedings is that neither the
final form of the excessive leave model term nor the draft determinations contain the
transitional arrangement contemplated in the September 2015 decision. Ai Group submits that
consistent with the above passage from the September 2015 decision subclause 1.2(c) of the
model term should be amended to insert a new subclause (i), in the following terms:
‘(i) Clause 1.2(c) comes into operation from [insert date 12 months after the commencement
of clauses 1.2(a) and (b)]’
[87] As we decided in the September 2015 decision, any variation determination inserting
the model excessive leave term into a modern award will provide that subclause 1.2(c)
commences operation 12 months after the commencement of subclauses 1.2(a) and (b). The
transitional subclause proposed by Ai Group will be inserted into each variation
determination.
[88] The purpose of the transitional subclause is to delay the commencement of subclause
1.2(c) and hence it will cease to have any purpose after subclause 1.2(c) commences.
Accordingly, any variation determination inserting the model excessive leave term will
provide for the deletion of the transitional subclause after 12 months. Such a proposal was
generally agreed during the course of the proceedings on 7 December 2015.56
(ii) The existing flexibility issue
[89] Ai Group submits that where an excessive leave provision is currently in a modern
award, that provision should be retained where it affords greater flexibility.57 On this basis Ai
Group submits that 55 modern awards should not be varied to insert the model excessive
annual leave term as these awards currently contain an excessive leave clause that provides
‘greater flexibility’ than the model term. Ai Group’s submission is encapsulated at paragraph
9 of its Further Submission of 7 December 2015:
‘…existing flexibilities should not be removed from awards that presently contain excessive
leave provisions. Rather, the model clause regarded as the minimum level of flexibility that
employers should have access to with regard to excessive leave accruals. Thus, where there is
a pre-existing approach in an award that presently affords greater flexibility, a more restrictive
provision should not be inserted.’
[90] The 55 modern awards which are the subject of this aspect of Ai Group’s submission
are set out at Attachment 5. Of those 55 modern awards, 31 were the subject of the Employer
Group’s excessive leave claim (marked with an * in Attachment 5).
[2016] FWCFB 3177
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[91] A number of the 55 modern awards which are identified in Ai Group’s general
submission are also the subject of award specific submissions by other employer
organisations (these awards are shaded in Attachment 5). We deal later with the award
specific submissions in relation to the following awards:
Horticulture Award 2010
Pastoral Award 2010 see [128]–[164]
Wine Industry Award 2010
Hospitality Industry (General) Award 2010
Registered and Licensed Clubs Award 2010 see [201]–[230]
Restaurant Industry Award 2010
Passenger Vehicle Transportation Award 2010 see [239]–[262]
Hydrocarbons Industry (Upstream) Award 2010
Mining Industry Award 2010
see [263]–[289]
Oil Refining and Manufacturing Award 2010
Salt Industry Award 2010
[92] In addition to these 11 modern awards, the Nursery Award 2010 is addressed as part of
the third aspect of Ai Group’s general submission and Ai Group has sought a further
opportunity to make submissions directed at the particular circumstances relevant to the
Aircraft Cabin Crew Award 2010.
[93] The excessive leave clause in the Textile, Clothing, Footwear and Associated
Industries Award 2010 (the TCF Award) also warrants separate consideration. In a decision58
published on 11 May 2015 a Full Bench of the Commission dealt with various substantive
issues which had arisen in the review of the TCF Award. One of those issues concerned the
variation of clause 41.4 of that award, which deals with the circumstances in which an
employer can direct an employee to take a period of accrued annual leave. The Textile,
Clothing and Footwear Union of Australia (TCFUA) and The Australian Workers’ Union
(AWU) supported a proposed variation of clause 41.4 and this course was not opposed by any
other party. The Full Bench decided to make the proposed variation, for the following
reasons:
‘[147] We are satisfied that the variation proposed complies with the modern awards content
requirements of the Act, being part of a term about arrangements for taking leave (s.139(h) of
the Act).
[148] The addition of safeguards in relation to the right of an employer to direct the taking of
excessive accrued annual leave arising from the variation, involves the maintenance of a
minimum of four weeks accrual and a right to an employee to suggest an alternate basis of
taking the period of annual leave directed (subject to a capacity of the employer to refuse,
unless the refusal is unreasonable). The safeguards better protect the benefit of the leave to
employees and have regard to the needs of the employees, better accommodate employees
taking accrued annual leave at a time that suits their personal circumstances, including family
commitments and better promotes the purpose of recovery, rest and recreation and are
consistent with those parts of the modern awards objective in ss.134(1)(a) and (c) of the Act
and may enhance the productivity of employees when they return to work from leave. Whilst
the variations introduce some safeguards which may raise issues in respect of s.134(1)(f) of
the Act, the safeguards are not unreasonable and employers remain able to manage excessive
[2016] FWCFB 3177
21
accrual of annual leave. Overall, we are satisfied that the variation is necessary to achieve the
modern awards objective, having regard to the reasonableness requirement within s.93(3) of
the Act.’59
[94] The TCF Award Full Bench decision was handed down before the June 2015 decision
which expressed the provisional view that all modern awards should be varied to insert the
excessive leave model term. Clause 41.4 of the TCF Award, as varied, is not in the same
terms as the model term.
[95] Given that the excessive accrued leave term in the TCF Award has been the subject of
recent consideration by a Full Bench in the context of the Review proceedings in relation to
that award, we do not propose to vary clause 41.4 of the TCF Award at this time. We will
relist this issue for further consideration later this year.
[96] Taking into account the matters referred to at paragraphs [90]–[94], that leaves 41
modern awards which Ai Group contends should not be varied to insert the excessive leave
model term. Each of these awards currently contains an award provision which allows an
employer to direct an employee to take a period of accrued annual leave. The relevant
provisions in these 41 modern awards fall into three broad categories:
Category A
[97] Thirteen modern awards60 provide that upon giving at least four weeks’ notice to the
employee, an employer may require an employee to take an unspecified amount of accrued
annual leave in circumstances where the employee has more than eight weeks’ accrued leave.
The Alpine Resorts Award 2010 contains a similar provision, except that it operates where the
employee has more than 30 days’ accrued leave.
Category B
[98] Twenty-four modern awards adopt the same basic provision as in Category A (i.e.
employer direction with four weeks’ notice when the employee has more than eight weeks’
accrued leave) but contain additional safeguards:
Twenty-one modern awards provide that the amount of leave an employee can be
directed to take is no more than one quarter of the employee’s accrued leave.61
Three modern awards provide that the employee must retain a balance of at least
8 weeks’ accrued leave.62
[99] It should be noted that 19 of these 24 awards also contain a requirement that the
employer must have discussed the issue of excessive leave or genuinely tried to reach
agreement with the employee before the employer can require the employee to take annual
leave.
Category C
[100] The remaining three modern awards contain unique provisions:
Clause 24.3 of the Cemetery Industry Award 2010 states:
[2016] FWCFB 3177
22
‘An employee must take a period of annual leave when directed by the employer to do so
during a period when the employer’s operations are closed or partially closed or the employee
has at least 18 months of annual leave accrued.’ (emphasis added)
Clause 26.5 of the Pharmaceutical Industry Award 2010 states:
‘Notwithstanding s.88 of the Act, if an employer has genuinely tried to reach agreement with
an employee as to the timing of taking annual leave, the employer can require the employee to
take annual leave by giving not less than four weeks’ notice of the time when such leave is to
be taken if:
(a) at the time the direction is given, the employee has 12 weeks or more of annual leave
accrued; and
(b) the amount of annual leave the employee is directed to take is less than or equal to a third
of the amount of leave accrued.’
Clause 25.2 of the Real Estate Industry Award 2010 states:
‘(a) The employer and employee may agree when and for what period the employee is to take
the employee’s accrued annual leave, having regard to the personal circumstances of the
employee and the operational requirements of the employer. Provided that the employer must
not unreasonably refuse to agree to a request by the employee to take accrued annual leave.
(b) Annual leave should be taken by the employee in the employee’s anniversary year in
which the entitlement accrues, except if agreed otherwise.
(c) The employer may require the employee to take any portion of annual leave that has
accrued in excess of four weeks. In such circumstances the employer must give the employee
at least four weeks’ notice of the requirement to take the excess period of accrued annual
leave.
(d) If the employer has a business shut-down (which may include a partial shut-down) during
the year, the employer may require the employee to take any or all accrued annual leave
during the period of the shut-down.
(e) In the event that the employee has insufficient accrued annual leave for the period of the
shut-down, the employee may be granted annual leave in advance by the employer.’ (emphasis
added)
[101] Ai Group’s submission focusses on the maintenance of what it refers to as the
‘existing flexibilities’ in the current award provisions dealing with excessive paid annual
leave accruals. To be clear, the ‘flexibilities’ to which Ai Group refers relate to the capacity of
an employer to direct an employee to take accrued paid annual leave. Understandably enough,
Ai Group’s submission is concerned with the effect upon employers of replacing the existing
clauses with the model term. But it is important that the issue raised by Ai Group be seen in
its broader context. Three points are relevant in this regard.
[102] First, ss.93(3) and (4) of the FW Act provide the jurisdictional basis for the insertion
of terms in modern awards which deal with excessive paid annual leave accruals. These
subsections provide as follows:
[2016] FWCFB 3177
23
‘Terms about requirements to take paid annual leave
(3) A modern award or enterprise agreement may include terms requiring an employee, or
allowing for an employee to be required, to take paid annual leave in particular circumstances,
but only if the requirement is reasonable.
Terms about taking paid annual leave
(4) A modern award or enterprise agreement may include terms otherwise dealing with
the taking of paid annual leave.’ (emphasis added)
[103] A modern award term which provides that an employee can be required to take a
period of annual leave to reduce the employee’s excessive level of accrued paid annual leave
is a term of the type contemplated by s.93(3) of the FW Act. Importantly, this type of term is
subject to the legislative direction that any such requirement to take leave ‘is reasonable’. The
Explanatory Memorandum to the Fair Work Bill 2008 provides some guidance as to
subclause 93(3) of the assessment of what is reasonable in this context, it states:
‘381. Subclause 93(3) permits terms to be included in an award or agreement that require an
employee, or that enable an employer to require or direct an employee, to take paid annual
leave in particular circumstances, but only if the requirement is reasonable. This may include
the employer requiring an employee to take a period of annual leave to reduce the employee’s
excessive level of accrual or if the employer decides to shut down the workplace over the
Christmas/New Year period.
382. In assessing the reasonableness of a requirement or direction under this subclause it is
envisaged that the following are all relevant considerations:
the needs of both the employee and the employer’s business;
any agreed arrangement with the employee;
the custom and practice in the business;
the timing of the requirement or direction to take leave; and
the reasonableness of the period of notice given to the employee to take leave.’
[104] The Full Bench decision in Australian Federation of Air Pilots v HNZ Australia Pty
Ltd63 observed that in assessing the reasonableness of any employer requirement to take leave,
‘all relevant considerations needed to be taken into account including those which are set out
in paragraph [382] of the Explanatory Memorandum to the Fair Work Bill 2008’.64
[105] Plainly, the assessment of whether a requirement to take paid annual leave is
‘reasonable’ within the meaning of s.93(3) is not viewed solely through the perspective of the
employer.
[106] As to s.93(4), it provides that a modern award may include terms ‘otherwise dealing
with the taking of paid annual leave’. The expression ‘otherwise dealing with’ is an
expression of broad import. As the Full Bench decided in the September 2015 decision,
subclause 1.2(c) of the model term is an award term which is expressly permitted by s.93(4)
and accordingly it may be included in a modern award (see s.55(2)(a)).65
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[107] The second contextual consideration is that these proceedings form part of the Review.
Section 156 of the FW Act imposes an obligation on the Commission to review all modern
awards and each modern award must be reviewed in its own right.
[108] There is a degree of tension between some of the s.134 considerations and the
Commission’s task is to balance these considerations and ensure that modern awards, together
with the NES, provide a fair and relevant safety net of terms and conditions (see paragraph
[19]).
[109] In performing this task the Commission must take into account the likely impact of
any exercise of modern award powers on business (s.134(1)(f)), but that is not the sole
relevant consideration. It should be constantly borne in mind that the legislative direction is
that the Commission must ensure that modern awards, together with the NES provide ‘a fair
and relevant minimum safety set of terms and conditions’. Fairness is to be assessed from the
perspective of both employers and employees.66
[110] The final general contextual consideration is the findings made by the Commission in
the June 2015 decision, on the basis of the evidence adduced (primarily by the Employer
Group). These findings as summarised in the September 2015 decision at paragraphs [133]
and [137], underpin the decision to redraft the Employer Group claim and to formulate the
provisional model term. Relevant for present purposes is the finding concerning the reasons
why employees do not fully utilise their accrued annual leave. At paragraph 144 of the June
2015 decision the Full Bench stated:
‘The above data suggest that a significant barrier to the use of leave entitlements by employees
is work pressures, with 43.9 per cent of employees in the AWALI survey being either too busy
at work (30.7 per cent) or unable to take leave at a time that suited them (13.2 per cent). This
suggests that employers are not creating workplaces that allow for employees to use their
entitlements.’
[111] This finding is important because it provides the foundation for that part of the model
term which provides, subject to certain limitations, employees with the ability to issue a
notice to their employer requiring that a period of paid leave be granted.
[112] Having regard to these general contextual considerations we now turn to Ai Group’s
submission that the existing excessive leave provisions in the 41 modern awards mentioned
above should not be varied to insert the excessive leave model term. Ai Group seeks to retain
the existing provisions allowing an employer to direct an employee to take a period of paid
annual leave, unencumbered by a number of the safeguards which are contained in the revised
excessive leave model term.
[113] It is apparent from an examination of the existing clauses in these awards that they
differ from the revised model term in a number of respects, in particular:
(i) None of the 41 modern awards provide a mechanism, subject to appropriate
limitations, for employees to require that their employer give them a period of paid
annual leave. These modern awards make no provision for the circumstance where
an employee accrues excessive paid annual leave but no employer direction is
made.
[2016] FWCFB 3177
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(ii) None of the 41 modern awards provide that an employer direction to take a period
of paid annual leave be in writing. Such a procedural safeguard assists in ensuring
that the employee is aware of his or her obligations to comply with the direction
and of the limitations on such a direction.
(iii) None of the 41 awards contains a requirement that the minimum length of any
period of employer directed paid annual leave be one week. Such a provision
would avoid the circumstance where an employee may be required to take their
paid annual leave in a series of single days or small clusters of single days –
thereby denying the employee the benefits associated with taking a longer period
of leave. As the Full Bench said in the September 2015 decision:
‘It is desirable that some minimum period of leave be prescribed in circumstances
where the employee concerned has an excessive leave accrual and may not have had
the benefit of any paid annual leave for a period of more than two years.’67
(iv) 40 of the 41 modern awards provide that an employer can direct an employee to
take a period of accrued paid annual leave by giving the employee four weeks’
notice. The remaining modern award – the Cemetery Award 2010 – makes no
provision as to notice. The model term requires that employees be given eight
weeks’ notice of the commencement of employer directed leave. The provision of
eight weeks’ notice ensures that the employee has a reasonable amount of time to
make arrangements for activities during the leave period and/or to coordinate their
leave with family members.
(v) 15 of the 41 modern awards do not place any limitation on the amount of accrued
paid annual leave that an employer may direct an employee to take. The model
term provides that an employer direction must not result in the employees’
remaining accrued entitlement to paid annual leave being less than six weeks. As
the Full Bench said in the June 2015 decision:
‘Maintenance of a six week minimum is consistent with s.236(6) of the former WR Act
and with the majority of current modern award clauses which limit the amount of
accrued paid annual leave that an employer can direct an employee to take. It also
accommodates the circumstance of an employee seeking to accrue leave so that he or
she can take a reasonable extended holiday.’68
(vi) 15 of the 41 modern awards do not require an employer to enter into any dialogue
with an employee before directing them to take part of their annual leave. In these
awards the employer is under no obligation to discuss the issue of excessive annual
leave accrual with the employee or to seek to reach an agreement with the
employee about the time when such leave will be taken. The model term includes
such a provision on the basis that it is plainly preferable that these matters be
resolved by agreement between the employer and employee, without the need for a
direction.
(vii) The Alpine Resorts Award 2010 provides a 30 days’ accrued leave threshold to
‘trigger’ the right of an employer to direct an employee to take paid annual leave.
The model terms provides that a direction can only be made where an employee
has accrued 8 weeks’ paid annual leave. The adoption of a lower threshold unfairly
limits the capacity for employees to accrue leave for a later, longer, holiday.
[114] On the basis of the matters set out above we have concluded that the excessive leave
terms in these 41 modern awards do not provide a fair and relevant minimum safety net of
terms and conditions of employment. On that basis the terms do not meet the modern awards
[2016] FWCFB 3177
26
objective. We are also satisfied that these existing excessive leave terms do not meet the
requirements of s.93(3) of the FW Act. These award terms provide that an employee may be
required to take paid annual leave in particular circumstances and, having considered the
terms of each of these provisions, that requirement is not reasonable. As the existing
excessive leave terms in these awards do not meet the requirements of s.93(3) it follows that
they are not terms which may be included in a modern award.
[115] We have concluded that the excessive leave terms in these 41 modern awards should
be deleted and that these modern awards should be varied to insert the revised excessive leave
model term. We rely on the findings set out in the June 2015 decision.69
[116] As we noted earlier, a number of the modern awards which Ai Group contends should
not be varied were in fact the subject of the Employer Group’s excessive leave claim. Indeed,
in the June 2015 proceedings Ai Group supported varying the existing excessive leave terms
in 25 of the 41 modern awards which are the subject of present consideration. Implicit in Ai
Group’s submission at that time was the proposition that the existing excessive leave terms in
these awards did not meet the modern awards objective. It is plainly difficult to reconcile Ai
Group’s position in the June 2015 proceedings with its current contention that the excessive
leave terms in these 25 modern awards should not be varied.
[117] None of these 41 modern awards make provision for the circumstance where an
employee accrues excessive paid annual leave but no employer direction is made. The same
observation may be made in respect of the Employer Group’s proposed excessive leave term
which was rejected by the Commission in the June 2015 decision. The Employer Group’s
proposed term sought to replicate previous mechanisms to address excessive leave accruals.
Such mechanisms have had, at best, limited success in the past in addressing the issues
associated with excessive annual leave accruals. The claim did not address a significant factor
in the excessive accrual of annual leave – where work pressure prevents an employee from
taking all of their paid annual leave. It was on that basis that the Commission concluded that
granting the Employer Group claim would not be sufficient to address the problems of
excessive accrued paid annual leave and went on to formulate the model term. The problem
that the model term is seeking to address is the accrual of excessive annual leave and the
negative impacts this may have on employees and employers. The FW Act does not require
that this problem only be addressed by way of employer directions to take leave.
[118] The revised model term provides that an employee’s right to require that a period of
paid annual leave is granted is subject to a number of limitations, including:
(i) the employee must have had an excessive leave accrual (i.e. eight weeks’ for most
employees70) for more than six months;
(ii) the employee must seek to confer with the employer and genuinely try to agree on
steps that will be taken to reduce or eliminate the employee’s excessive leave
accrual;
(iii) the employee may only give a direction in circumstances where the employer has
not given a direction that will eliminate the employee’s excessive leave accrual;
(iv) the employer must be given at least eight weeks’ notice of the commencement of
leave; and
[2016] FWCFB 3177
27
(v) for most employees the maximum period of paid annual leave that may be the
subject of a notice by an employee in any 12 month period will be four weeks’
leave.
[119] The revised model term facilitates the making of mutually beneficial arrangements
between an employer and employee and provides an effective mechanism to address
excessive annual leave accruals. It provides an employer with a reasonable opportunity to deal
with an employee’s excessive leave accrual before the employee is able to issue a notice
requiring that a period of paid annual leave be granted. The various safeguards incorporated
into the revised model term seek to protect the interests of both employees and employers and
the revised model term satisfies the requirements of s.93(3) of the FW Act.
[120] When leave is taken so as to reduce or eliminate excessive leave accruals, employees
benefit from a period of rest and recovery from work, which has significant positive
implications for employee health and wellbeing. Reducing fatigue at work and improving
workplace health and safety also benefits employers. The evidence before the Commission in
the June 2015 proceedings indicates that absenteeism is also reduced after a period of leave.
In addition, there was employer evidence that excessive leave accruals represent a significant
financial liability and can give rise to cash flow problems (particularly for small businesses)
when paid out on termination.
[121] As to the matters in s.134(1)(a)–(h), insofar as they are relevant, we are satisfied that
the insertion of the revised model term in these awards will promote flexible modern work
practices and the efficient and productive performance of work (s.134(1)(d)) and will assist
business in managing excessive leave accruals (s.134(1)(f)). We are satisfied that the variation
of these 41 modern awards to delete the existing excessive leave terms and to insert the
revised excessive leave model term is necessary to ensure that each of these modern awards
meets the modern awards objective. We are also satisfied that such variations are consistent
with the objects of the FW Act.71
(iii) The taking of leave issue
[122] Ai Group submits that there are 22 modern awards which contain provisions relating
to the taking of annual leave which ‘appear to have been crafted to prevent an excessive
accrual of paid annual leave; or would at least have that effect’.72
[123] The 22 modern awards identified by Ai Group fall into three categories:
(i) 13 modern awards currently include a term which requires annual leave to be taken
within 18 months of accrual. Such a provision appears in the following modern
awards:
Aquaculture Industry Award 2010 – clause 23.4;
Asphalt Industry Award 2010 – clause 25.5;
Broadcasting and Recorded Entertainment Award 2010 – clause 23.6;
Cement and Lime Award 2010 – clause 24.5;
Gardening and Landscaping Services Award 2010 – clause 24.4;
Gas Industry Award 2010 – clause 25.4;
[2016] FWCFB 3177
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Horse and Greyhound Training Award 2010 – clause 23.4;
Premixed Concrete Award 2010 – clause 24.5;
Quarrying Award 2010 – clause 29.5;
Racing Clubs Events Award 2010 – clause 30.4;
Racing Industry Ground Maintenance Award 2010 – clause 24.3;
Silviculture Award 2010 – clause 29.4;
Sporting Organisations Award 2010 – clause 25.4.
(ii) 7 modern awards contain terms which are, in effect, substantially similar to those
which provide for accrued leave to be taken within a specified period of time (referred
to as category B in Ai Group’s Further submission). These modern awards are:
Ambulance and Patient Transport Industry Award 2010 – clause 30.8;
Architects Award 2010 – clause 20.2;
Black Coal Mining Industry Award 2010 – clause 25.4;
Mobile Crane Hiring Award 2010 – clause 25.2(a);
Nursery Award 2010 – clause 27.8(a);
Nurses Award 2010 – clause 31.2;
Security Services Industry Award 2010 – clause 24.3.
(iii) Ai Group contends that the particular employment arrangements in the airline
industry ‘may not be amenable to the model excessive leave cause’73 The two modern
awards which are the subject of this submission are:
Air Pilots Award 2010 – clause 27.4; and
Aircraft Cabin Crew Award 2010 – clause 25.5.
[124] In relation to the category (i) and (ii) awards Ai Group proposes that the Commission
convene a conference to enable the interested parties to canvass their respective positions. We
agree to the course proposed and Commissioner Hampton will convene a conference in the
coming weeks.
[125] As to the two modern awards in category (iii), Ai Group submits that a determination
as to whether these awards should be varied to include the excessive leave model clause ‘be
deferred until the Award stage of the review’.74 The two awards are in Group 4 of the Award
stage of the Review. In support of this proposition Ai Group submits that such a deferral:
‘…would provide us with an opportunity to make further relevant enquiries in order to assess
whether the insertion of the model excessive leave provision in the … awards would in fact be
problematic.’75
[126] We are content to defer our consideration of the insertion of the excessive leave model
term into these two modern awards in order to give Ai Group and other interested parties an
opportunity to make further relevant inquiries. The matter will remain before this Full Bench
and will be the subject of further proceedings in the second half of this year.
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29
[127] We now turn to deal with the award specific submissions.
6.2 Award specific submissions
(i) Agriculture group
[128] The National Farmers’ Federation (NFF) opposes the insertion of the model terms
dealing with excessive leave and leave in advance into the Horticulture Award 2010, Pastoral
Award 2010 and Wine Industry Award 2010 (collectively, the Agriculture Awards). The
submission is advanced on the basis that these awards already contain provisions dealing with
the matters which are the subject of the model terms.
[129] In each of the Agriculture Awards the provision in relation to ‘excessive leave’ is in
the same terms, that is:
‘Notwithstanding s.88 of the Act, if an employer has genuinely tried to reach agreement with an
employee as to the timing of taking annual leave, the employer can require the employee to
take annual leave by giving not less than four weeks’ notice of the time when such leave is to
be taken if:
(a) at the time the direction is given, the employee has eight weeks or more of annual leave
accrued; and
(b) the amount of annual leave the employee is directed to take is less than or equal to a
quarter of the amount of leave accrued.’76
[130] As to ‘leave in advance’, the provision in each of these awards is also in the same
terms, that is:
‘By agreement between an employer and an employee a period of annual leave may be taken
in advance of the entitlement accruing. Provided that if leave is taken in advance and the
employment terminates before the entitlement has accrued, the employer may make a
corresponding deduction from any money due to the employee on termination.’77
[131] It is convenient to deal first with the leave in advance issue.
[132] The Employer Group’s claim sought a provision in substantially the same terms as the
existing clauses in the Agriculture Awards. As we have mentioned, the main differences
between the revised model term and the Employer Group’s claim are the requirements
regarding the content and form of any agreement to provide leave in advance and the
employer’s obligation to keep such agreements as an employee record. In the June 2015
decision the Full Bench noted that: ‘These requirements are consistent with an employer’s
existing obligations under Regulation 3.36 of the Fair Work Regulations 2009’.78
[133] The submissions in the September 2015 proceedings were directed at subclause 1.1(c)
of the provisional model term. ACCI submitted that on the whole it had no significant
concerns with the form of the model term but that it could be enhanced by removing
subclause 1.1(c) on the basis that record keeping requirements regarding leave are already set
out in Regulation 3.36. Submissions to similar effect were advanced by a number of other
[2016] FWCFB 3177
30
employer organisations.79 In the September 2015 decision the Full Bench rejected ACCI’s
submission and finalised the model term.80
[134] There are two limbs to the NFF’s submission in these proceedings. The first is that no
claim was made to vary the leave in advance provisions in the Agriculture Awards.
[135] A number of the submissions in the present proceedings, including the submission
advanced by the NFF, make the point that no claim was made to vary the particular award to
include the type of model term which we have determined.81 To the extent it is submitted that
the Commission can only, or should only, proceed to vary an award in response to a claim by
an interested party, such a submission is misconceived. We make three points in this regard.
[136] First, s.156 imposes an obligation on the Commission to review all modern awards
and each modern award must be reviewed in its own right. The Review is conducted on the
Commission’s own motion and is not dependent upon an application of a specified party. In
that sense the Review may be contrasted with other powers and functions conferred on the
Commission by the FW Act, which can only be exercised or performed on the application of a
specified party (e.g. see the approval and variation of enterprise agreements: ss.186(1) and
211(3); majority support determinations: s.243(1); and equal remuneration orders: s.302(3)).
[137] Second, the nature of modern awards under the FW Act is quite different from the
awards made under previous legislative regimes.82 In times past awards were made in
settlement of industrial disputes and the respondent parties to such awards were the parties to
the relevant industrial dispute. Modern awards perform a very different function to that
performed by awards of the past.
[138] Modern awards are not made to prevent or settle industrial disputes between particular
parties. Rather, the purpose of modern awards, together with the National Employment
Standards and national minimum wage orders, is to provide a safety net of fair, relevant and
enforceable minimum terms and conditions of employment for national system employees
(see ss.3(b) and 43(1)). The Commission may make, vary or revoke a modern award in a
4 yearly review (such as the Review), or if it is satisfied that making, varying or revoking a
modern award outside the system of 4 yearly reviews is necessary to achieve the modern
awards objective (s.157).
[139] Third, there are no named respondents to modern awards. Modern awards apply to, or
cover, certain persons, organisations and entities (see ss.47 and 48), but these persons,
organisations and entities are not ‘respondents’ to the modern award in the sense that there
were named respondents to awards in the past. The nature of this shift is made clear by s.158
which sets out who may apply for the making of a determination making, varying or revoking
a modern award. Under previous legislative regimes the named respondents to a particular
award would automatically have the requisite standing to make such applications; that is no
longer the case.83
[140] The fact that no claim has been made to vary the leave in advance clause in the
Agriculture Awards is of little consequence and is certainly not an impediment to varying the
awards to insert the leave in advance model term. All interested parties were informed of the
Commission’s provisional view – namely that it was necessary to vary all modern awards to
insert the model term in order to achieve the modern awards objective – and were provided
with an opportunity to advance a contrary view. 84
[2016] FWCFB 3177
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[141] The second limb of the NFF’s submission concerns the operative effect of the model
term. At paragraphs 24–26 of its written submissions the NFF submits:
‘24. The key difference between the term set out in paragraph 21 and the proposed model term
is that the right to deduct overpayment of annual leave from an employee's final pay will now
be contingent on there being a written and signed agreement between the employer and
employee in place before the period of leave in advance was taken.
25. In our submission, this is an impractical approach to the administration of leave
arrangements in agriculture sector. The current terms are simple and easy to understand, and
adequately deal with the situation where an employee takes more annual leave than they have
accrued. There is no evidence that the existing terms are not meeting the modem awards
objective.
26. In the absence of any persuasive evidence to the contrary, the presumption that the existing
annual leave terms met the modem awards objective at the time they were made should not be
displaced.’85
[142] The NFF submits that if the model term means that deductions may only be made from
termination payments in circumstances where there is a written agreement to take leave in
advance (in accordance with subclause 1.1 of the model term), then the model term is ‘an
impractical approach to the administration of leave arrangements in the agricultural sector’.
Central to the NFF’s concern is that absent a written agreement providing for the taking of
paid annual leave in advance an employer will not be able to deduct an amount, equal to the
difference between the amount of the employee’s accrued leave and the leave taken in
advance, from any monies due to the employee on termination.
[143] We agree that the revised model term operates in the manner described. So much is
clear from the opening words of subclause 1.1(d) of the model term: ‘This subclause applies if
an employee takes a period of paid annual leave in advance under an agreement made in
accordance with this clause’ (emphasis added). But it is not clear to us why such a provision
constitutes ‘an impractical approach to the administration of leave arrangements’. Other than
making that bald assertion, the NFF provided little amplification of the point and advanced no
evidence in support of its contention. During the course of oral argument the NFF confined its
submissions to the following observation:
‘Because if that is the case (i.e. if the model term has the meaning we have set out, at [139]
above, for many people the capacity to deduct leave termination will be negated because there
will be a fluid arrangement about the taking of leave periodically and agreements will be
reached periodically. But if they are not signed as a matter of sort of technicality before the
leave period is taken in advanced, that means then it cannot be deducted.’86
[144] It seems to us that a requirement that there be an agreement in writing to take leave in
advance before an employer can make any related deduction from a termination payment, is
entirely reasonable. We note that absent such a provision there may be no requirement to keep
an employee record of any leave taken in advance.87 By ensuring that such arrangements are
reduced to writing, the model term may prevent subsequent disputes about deductions from
termination payments. The existing clauses in the Agriculture Awards are deficient in that
they do not provide that agreements to take leave in advance are to be in writing and nor do
they provide that such agreements are to be retained as employee records.
[2016] FWCFB 3177
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[145] We are satisfied that the variation of the Agriculture Awards to delete the existing
leave in advance terms and to insert the revised model term is necessary to meet the modern
awards objective. The provision allows employees to take paid annual leave at a time when
they may be faced with circumstances obliging them to take a period of leave, but where they
have no accrued entitlement to such leave. The requirement that any such agreement be in
writing, be signed and be retained as an employee record, ensures certainty as to the terms of
such agreements and may prevent subsequent disputes about deductions from termination
payments. As to the matters in s.134(1)(a)–(h), insofar as they are relevant, we are satisfied
that the insertion of the model term in these awards assists low paid employees by providing
them with enhanced access to paid leave (s.134(1)(a)); promotes flexible modern work
practices (s.134(1)(d)) and is simple and easy to understand (s.134(1)(g)).
[146] We now turn to the NFF’s submissions regarding the variation of the Agricultural
Awards to insert the excessive leave model term.
[147] In its submissions in the present proceedings the NFF says:
‘15. Research tendered in the proceedings by Skinner and Pocock was relied on by the
Commission in explaining the reasons for a proposed model excessive leave term for all
modern awards. In our submission, that research cannot be relied upon to demonstrate the
experience of either employers or employees in the agriculture sector. Firstly, the research
relies on the account of employees alone (not employers). Secondly, the findings in Section 7
of the research report dealing with the taking of leave are not made by reference to the
industry in which the employee works, and expressly exclude part-time, casual and self-
employed persons.
16. The agriculture, forestry and fishing sector employs approximately 323,000 employees,
including owner managers (174,800) and non-managerial employees (148,300) (Attachment
A).
17. Labour needs change regularly, depending on seasonal conditions, weather events and
fluctuating commodity prices. As the table at Attachment A shows, approximately
54 per cent of persons employed in the sector are self-employed. Of the remaining
46 per cent:
a. part-time employees account for 10 per cent; and
b. only 24 per cent have paid leave entitlements.
18. At best, this means that a small but undisclosed proportion of less than a quarter of
employed persons in the sector are represented in the data used by Skinner and Pocock in
connection with holidays and work-life interference. The research is of limited relevance to
the agriculture sector and is not a sound basis for inferring that there are problems with the
taking of annual leave in the sector.
19. In the absence of persuasive evidence to the contrary, the presumption that the existing
annual leave terms met the modem awards objective at the time they were made should not be
displaced.’
[148] As mentioned earlier, the Employer Group sought to insert a standard ‘excessive
annual leave’ model term in 70 modern awards, including 31 modern awards which already
contained provisions regarding excessive leave (the existing clause group). In support of its
claim the Employer Group tendered the results of a joint employer survey about matters
[2016] FWCFB 3177
33
relating to annual leave (the Employer Survey) and a number of research papers, including the
paper by Skinner and Pocock, 88 to which the NFF refers.
[149] It is important to appreciate that the NFF is a member of the Employer Group and that
the Agriculture Awards were among the 31 awards in the existing clause group which were
the subject of the Employer Group claim. In its written submission of 20 June 2014 the NFF
supported the variation of the existing excessive leave clauses in the Pastoral Award 2010
and the Horticulture Award 2010, to insert the Employer Group’s clause.89
[150] The NFF’s submission of 20 June 2014 was advanced on the basis that the variations
proposed were necessary to ensure that the two awards achieved the modern awards objective.
Implicit in such a submission is the proposition that the current excessive leave clauses in
these awards did not meet the modern awards objective. Further, in the same submission the
NFF supported the variation of the excessive leave clauses in these two awards in order ‘to
ensure that as far as possible, annual leave terms in modern awards provide nationally
uniform terms and conditions’.90
[151] It is difficult to reconcile the NFF’s position in the present proceedings with its
previous submissions. The NFF was part of the Employer Group which tendered and relied
upon the Skinner and Pocock research. At that time there was no suggestion that the research
could not be relied upon in relation to any particular sector. Further, the NFF now submits
that the existing excessive leave clauses meet the modern awards objective, having previously
submitted, at least by necessary implication, that they did not.
[152] The NFF’s position is inconsistent with its previous position and lacks merit.
[153] The NFF contends that the article by Skinner and Pocock cannot be relied upon in
relation to these awards as the article is not representative of those working within the
agricultural sector.
[154] The Skinner and Pocock paper examined, among other things, the utilisation of paid
leave and the reasons why employees did not utilise their full paid entitlement. It presents data
which is a subset of the Australian Work and Life Index 2010 (AWALI 2010) survey. The
AWALI 2010 survey is a national stratified random survey of 2803 Australian workers
conducted using computer assisted telephone interviews over four weekends in March and
April 2010. The survey asked questions about the use of paid annual leave in 2009. The
authors’ study replicates and extends a study conducted by The Australia Institute in 2002
(TAI 2002) on Australian’s uptake of paid leave. The AWALI collects industry data by
ANZSIC industry division includes the Agriculture, forestry and fishing decision.91 The
Skinner and Pocock findings are also consistent with three other research papers tendered
during the course of the proceedings.92
[155] As we have mentioned, Ai Group, ACCI and other employer bodies conducted a joint
employer survey in May 2014 about matters relating to annual leave (the Employer Survey).93
The Employer Survey provided a basis for the finding made in the June 2015 decision that a
significant proportion of employees have six weeks or more accrued annual leave.94 The data
from the Employer Survey showed that some 2552 employers (about 68 per cent of all
responses) had at least one employee with an accrued paid annual leave balance of six weeks
or more. Of these employers, 683 reported that over 20 per cent of their employees had
accrued paid annual leave balances of six weeks or more.95 The respondents to the Employer
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34
Survey included those from the ANZSIC industry division ‘Agriculture, forestry and
fishing’.96
[156] The essence of the NFF’s contention is that the existing excessive leave term meets the
modern awards objective. Implicit in this contention is the proposition that the existing
provisions are effective in dealing with the issue of excessive paid annual leave accruals. On
the basis of the material presently before us, we are not satisfied that this is so.
[157] One of the research papers which was consistent with the Skinner and Pocock findings
is the paper by Wooden and Warren.97 The Wooden and Warren paper relies on Household,
Income and Labour Dynamics in Australia (HILDA) Survey data.98 Wooden and Warren
reported on the extent of usage of paid annual leave in Australia using new data collected in
Wave 5 of the HILDA survey, and concluded that the majority of employees do not take their
full annual leave entitlement each year.99 The HILDA survey collects data by ANZSIC
industry, including the Agriculture, forestry and fishing industry.100
[158] Table 1 below uses HILDA survey data and shows the usage of paid annual leave by
non-casual employees in the Agriculture, forestry and fishing industry compared with all
industries between 2010 and 2014.
Table 1: Usage of paid annual leave by non-casual employees in Agriculture, forestry and
fishing, 2010–2014
Agriculture,
forestry and
fishing
All
industries
2010
Taken a period of paid annual leave (%) 53.8 80.6
Average leave days taken by those who took leave (no.) 14.9 18.4
2011
Taken a period of paid annual leave (%) 39.5 79.8
Average leave days taken by those who took leave (no.) 17.1 18.1
2012
Taken a period of paid annual leave (%) 67.4 79.8
Average leave days taken by those who took leave (no.) 13.6 18.2
2013
Taken a period of paid annual leave (%) 62.4 81.3
Average leave days taken by those who took leave (no.) 13.0 18.1
2014
Taken a period of paid annual leave (%) 56.6 82.2
Average leave days taken by those who took leave (no.) 13.1 18.0
Source: Household, Income and Labour Dynamics in Australia Survey, Waves 10–14.101
[159] While the data fluctuates over the period, it consistently shows that relative to ‘all
industries’, a lower proportion of non-casual employees in Agriculture, forestry and fishing
took a period of paid annual leave over the previous 12 months and a lower average number
of paid annual leave days was taken by those who took paid leave.
[160] Hence, in each year over the period 2010–2014 a significant proportion of non-casual
employees in the agriculture, forestry and fishing sector did not take any paid annual leave.
Further, of those who did take paid annual leave, the average leave days taken was less than
the annual accrued entitlement for full-time employees and less than the average leave taken
for all industries. We infer from this data that, contrary to the NFF’s contention, there is an
issue with excessive annual leave accruals in this sector.
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[161] The NFF also seeks to rely on the Australian Bureau of Statistics (ABS) data at
Attachment A to its written submission in support of the proposition that the Agriculture
Awards should not be varied to insert the excessive leave model term. This data does not
support the NFF’s contention. It simply shows that a substantial number of persons in the
agriculture, forestry and fishing sector are self-employed. Self-employed persons are not
covered by the Agriculture Awards. For example, the Pastoral Award 2010 applies to
‘employers throughout Australia in the pastoral industry and their employees in the
classifications set out in [the] award’.
[162] The excessive leave terms in the Agriculture Awards set out at paragraph [129] above
differ from the revised model term in a number of respects, including:
(i) They do not provide a mechanism, subject to appropriate limitations, for
employees to require their employer to give them a period of paid annual leave.
These modern awards make no provision for the circumstance where an employee
accrues excessive paid annual leave but no employer direction is made.
(ii) They provide that an employer can direct an employee to take a period of accrued
paid annual leave by giving the employee four weeks’ notice. The model term
requires that employees be given eight weeks’ notice of the commencement of
employer directed leave. The provision of eight weeks’ notice ensures that the
employee has a reasonable amount of time to make arrangements for activities
during the leave period and/or to coordinate their leave with family members.
(iii) They do not contain a requirement that the minimum length of any period of
employer directed paid annual leave be one week. Such a provision would avoid
the circumstance where an employee may be required to take their paid annual
leave in a series of single days or small clusters of single days – thereby denying
the employee the benefits associated with taking a longer period of leave. As the
Full Bench said in the September 2015 decision:
‘It is desirable that some minimum period of leave be prescribed in circumstances
where the employee concerned has an excessive leave accrual and may not have had
the benefit of any paid annual leave for a period of more than two years.’102
(iv) They do not provide that an employer direction to take a period of paid annual
leave be in writing. Such a procedural safeguard assists in ensuring that the
employee is aware of his or her obligations to comply with the direction and of the
limitations on such a direction.
[163] Based on the matters set out above we have reached the provisional view that the
excessive leave terms in the Agriculture Awards do not provide a fair and relevant minimum
safety net of terms and conditions of employment and therefore the existing terms do not
satisfy the modern awards objective. We have also reached the provisional view that these
existing excessive leave terms do not meet the requirements of s.93(3) of the FW Act. The
basis of this provisional view is that the existing award terms provide that an employee may
be required to take paid annual leave in particular circumstances and, having considered the
terms of each of these provisions, our provisional view is that that requirement is not
reasonable.
[164] Interested parties will have until 5pm (AEST) on 1 June 2016 to notify the
Commission (at amod@fwc.gov.au) if they wish to contest the Full Bench’s provisional
mailto:amod@fwc.gov.au
[2016] FWCFB 3177
36
views in respect of this issue. If any expressions of interest are received we will issue
directions for the filing of further submissions and evidence. If no expressions of interest are
received by the specified date we will vary the Agriculture Awards to insert the revised
excessive annual leave accruals model term.
(ii) Black Coal Mining Industry Award 2010
[165] The Coal Mining Industry Employer Group (CMIEG) supports the variation of the
Black Coal Mining Industry Award 2010 to incorporate the annual leave model terms, except
for the excessive leave model term. This award is one of the awards which has been referred
to a conference as part of the process sought by Ai Group. Accordingly, at this time, we do
not propose to deal with the question of whether the excessive leave model term should be
inserted into this award. We will revisit this issue after the conference process.
[166] The Construction, Forestry, Mining and Energy Union (Mining and Energy Division)
(CFMEU (M&E)) submits that the award should not be varied to insert the EFT and paid
annual leave model term. The essence of the union’s submission is that the current clause 25.8
meets the modern awards objective and in such circumstances there is no reason to insert the
model term.
[167] Clause 25.8 of the award deals with payment for annual leave:
‘25.8 When payment will be made for annual leave
An employee will be paid for a period of annual leave in accordance with the employee’s
normal pay period(s), unless an employee requests that payment of the entire period of annual
leave be made prior to the employee commencing leave.’
[168] The union submits that clause 25.8 is a fair and relevant minimum provision which
‘provides a reasonable balance between the interests of the employers and employees’.103 As
to the matters specified in s.134(1) the union submits that clause 25.8 provides a flexible work
practice (s.134(1)(d)), is not likely to impose a regulatory burden on business (s.134(1)(f))
and is simple and easy to understand (s.134(1)(g)). As to the proposition that the current
provision is fair and reasonable, the union submits:
‘It is submitted that it is inherently fair and reasonable that where an award makes provision
for payment by electronic funds transfer that by request an employee may seek to be, and be,
paid in advance. It is reasonable to conclude that an employee who takes the necessary
administrative action under the Award to be paid in advance has a valid reason for doing so. It
is submitted that employees to whom the method of payment makes no difference are unlikely
to seek payment in advance.’104
[169] It is common ground that the terms and conditions of employment of employees
covered by the award are largely regulated by enterprise agreements.105 The union provided
some information concerning the incidence of provisions dealing with the payment of annual
leave in 106 coal industry enterprise agreements.106 Of those 106 agreements:
61 excluded the operation of the award and did not make any provision for the
payment of annual leave;
[2016] FWCFB 3177
37
37 provide for payment in advance, in one way or another (13 refer to the award;
15 refer to payment as per the normal cycle unless requested otherwise; 8 refer to
payment as per the normal cycle unless otherwise agreed and 1 agreement provided
for payment in advance unless other arrangements are made); and
8 provide for payment on a weekly or fortnightly basis or as per the normal pay
arrangements at the mine.
[170] The union submits that an analysis of the agreement data supports its contention that
the award should not be varied to insert the EFT and paid annual leave term. In this regard the
union submits:
‘9.1 Less than 10% of the enterprise agreements provide for a method of payment at odds
with the Award. If we take into account the 8 agreements that provide for payment in advance
by agreement rather than request, the percentage increases to 15%.
9.2 Some 35% of enterprise agreements provide for a method of payment that explicitly
provides for payment other than on the basis of the usual pay period.
9.3 Whilst the majority of enterprise agreements are silent on the issue, they do not
prevent the same method of payment as it provided in the Award.
9.4 The fact that less than 10% of the enterprise agreements considered provide a method
of payment that does not allow for payment in advance suggests that the current Award
provision is not seen as a problem to be circumvented by enterprise agreements.’107
[171] Ai Group and CMIEG submit that there is no reason to distinguish the circumstances
of the Black Coal Mining Industry Award 2010 and the black coal industry from other modern
awards and other industries especially in circumstances where there is no factual material
supporting the contention.108 Ai Group contends that the retention of the current provision
would result in greater regulatory burden on businesses than the model term.109
[172] We note at the outset that this award was one of the 51 modern awards which were the
subject of the Employer Group claim in relation to EFT and paid annual leave. Further, in the
June 2015 proceedings the CMIEG filed a submission in support of Ai Group’s claim to vary
this award to provide employers with the right to pay annual leave as part of the employer’s
normal pay cycle, rather than in advance of leave being taken. The CFMEU (M&E) made no
submissions in those proceedings.
[173] The essence of the union’s submissions is that clause 25.8 currently provides a right
for an employee to be paid for a period of annual leave prior to commencing leave, upon
request, and that right should not be taken away.110 The union was unable to identify how
often the right in clause 25.8 was exercised in practice.111 For our part we doubt that the
award provision is utilised much in practice.
[174] As we have mentioned, the terms and conditions of the employees covered by the
award are largely regulated by enterprise agreements. We earlier set out some information
regarding the incidence of provisions dealing with the payment of annual leave in 106 coal
industry agreements (see paragraph [169]). We do not agree with the union’s characterisation
of this data. It seems to us that the data shows that only 28 out of 106 agreements (about 26%)
provided for payment in advance in the terms provided in clause 25.8. The balance of the
agreements (or the vast majority of them) either make no provision in respect of the payment
of annual leave (and exclude the operation of the award) or expressly provide that payment is
[2016] FWCFB 3177
38
to be made in accordance with the normal pay cycle at the time. We acknowledge that eight
agreements refer to payment in accordance with the normal pay cycle unless otherwise agreed
and one agreement provides for payment in advance unless other arrangements are made. A
proper analysis of the 106 agreements does not support the contention that the current award
provision is ‘not seen as a problem to be circumvented by enterprise agreements’. To the
contrary, the majority of agreements exclude the operation of clause 25.8.
[175] Nor do we agree with the union’s characterisation of clause 25.8 as ‘fair and
reasonable’. The union’s characterisation is based on the proposition that an employee who
takes the step of requesting to be paid in advance has a valid reason for doing so. Clause 25.8
imposes no such requirement. An employee who wishes to be paid in advance need merely
submit a request to that effect, there is no requirement to state the reason for the request, much
less provide a ‘valid reason’.
[176] Contrary to the union’s submissions, the variation of the award to incorporate the
model term will ensure that the award, together with the NES, provides a fair and relevant
minimum safety net of terms and conditions. In so deciding we have taken into account the
s.134 considerations, insofar as they are relevant, and we are satisfied that such a variation is
necessary to achieve the modern awards objective.
[177] The variation of the award to insert the model term will ensure that the award is
relevant to the needs of the modern workplace and will promote flexible work practices,
consistent with s.134(1)(d). We are also satisfied that such a variation will reduce
employment costs and the regulatory burden on business (s.134(1)(f)). In this context we note
the CMIEG’s submissions that ‘there is considerable administrative cost to employers in the
black coal mining industry involved in making such special payments for pre-payment of
annual leave’.112
[178] In its submission of 26 October 2015 the union drew attention to the fact that the draft
variation determination did not seek to disturb clause 25.8, and submitted:
‘As such we read the inclusion of a new subclause 25.12 as providing that although an
employee may seek to be paid in advance pursuant to subclause 25.8, an employee, pursuant
to subclause 25.12, is under no legal obligation to do so in circumstances where electronic
funds transfer is the method of payment. On the other hand, under the existing BCMI Award
provision the employer would be obligated to pay in advance upon request by an employee.’113
[179] Clause 16.5 of the award provides that wages are to be paid by cheque or electronic
funds transfer. Consistent with the Employer Group claim, the model term does not seek to
change the status quo (such as in clause 25.8), in respect of employees who are paid by cash
or cheque.114 To avoid any confusion between the operation of the model term and clause 25.8
we propose to vary clause 25.8, as follows:
‘25.8 When payment will be made for annual leave for employees paid by cheque.
An employee who is usually paid by cheque will be paid for a period of annual leave
in accordance with the employee’s normal pay period(s), unless an employee requests
that payment of the entire period of annual leave be made prior to the employee
commencing leave.’
[2016] FWCFB 3177
39
(iii) Health group
[180] The submissions received were directed at the following modern awards:
Aboriginal Community Controlled Health Services Award 2010
Aged Care Award 2010
Ambulance and Patient Transport Award 2010
Health Professionals and Support Services Award 2010
Medical Practitioners Award 2010
Nurses Award 2010
Pharmacy Industry Award 2010
Social, Community, Home Care and Disability Services Industry Award 2010
[181] The Health Services Union’s (HSU) submission was made in respect of each of these
modern awards and was directed at two aspects of subclause 1.2(c) of the excessive leave
model term. The first concerns when an employee may give written notice to their employer
that they wish to take a period or periods of paid annual leave. Subclause 1.2(c)(i) of the
model term provides that such written notice may be given ‘if an employee has had an
excessive annual leave accrual for more than six months and the employer has not given a
direction under subclause 1.2(b) that will eliminate the employee’s excessive leave
accrual’.115 Subclause 1.2(c)(iv) provides that the employer must grant the employee paid
annual leave in accordance with such a notice.
[182] The HSU submits that employees should be able to trigger access to excessive leave at
the same time as an employer is able to require an employee to take leave. We have taken the
HSU as seeking a variation to subclause 1.2(c)(i) of the model term, in the terms set out
below:
(c) Employee may require that leave be granted
(i) This subclause applies if an employee has had an excessive leave
accrual. for more than six months and the employer has not given a
direction under subclause 1.2(b) that will eliminate the employee’s
excessive leave accrual.
[183] The second variation sought by the HSU concerns the restriction on the quantum of
leave which may be the subject of an employee’s written notice under subclause 1.2(c).
Subclause 1.2(c)(iii) of the model term provides as follows:
The maximum amount of leave that an employee can give notice of under this
subclause is: 4 weeks’ leave in any 12 month period if the employee is not a
shiftworker, and five weeks’ leave in any 12 month period if the employee is a
shiftworker.
[184] The HSU submits that an employee should be able to give written notice to take such
an amount of paid leave as is necessary in order to reduce their accrued annual leave
entitlement to six weeks. In other words, it is proposed that the current cap in subsection
[2016] FWCFB 3177
40
1.2(c)(iii) be removed and that the only limitation on the period of leave which may be
specified in an employee’s notice would be that after taking such leave they retain an
entitlement to six weeks’ accrued annual leave.
[185] No evidence was advanced in support of the variations proposed and in the course of
oral argument the HSU conceded that the issues it raised were put as issues of principle or
general merit, rather than issues which turned on the circumstances pertaining to the particular
awards.116
[186] The variations proposed by the HSU were opposed by Ai Group and the Pharmacy
Guild of Australia.
[187] As we have mentioned, the June 2015 decision sets out a model excessive annual
leave term which reflected the Commission’s provisional view as to the type of term which
may be suitable for insertion into modern awards. Interested parties were provided with an
opportunity to make further submissions in relation to the terms of the provisional model
term. Among the 42 submissions received, the “Automotive, Food, Metals, Engineering,
Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’
Union (AMWU) submitted that the provisional model term to varied to provide as follows:
(i) to give employees the power to direct in the first instance, once an excessive
amount of leave has accrued;
(ii) to give the employer the power to direct 6 months after an excessive amount of
leave has accrued; and
(iii) to remove the limit on the amount of leave an employee can direct.
[188] In the September 2015 decision the Commission considered, and rejected, the
variations proposed by AMWU. The Commission said:
‘We do not propose to make the changes sought by the AMWU. In our view the management of
excessive annual leave accruals should remain primarily an employer responsibility. Under the
model term and employee’s right to issue a notice in relation to the taking of annual leave only
arises where they have had an excessive leave accrual for more than six months and their
employer has not issued a direction to reduce or eliminate their excessive leave accrual. In our
view this sequencing of rights is an appropriate response to the issue of excessive annual leave
accruals and appropriately balances the interest of employers and employees.’117
[189] The imposition of a limitation on the amount of leave that could be the subject of an
employee notice under subclause 1.2(c) was also canvassed during the course of the
proceedings which led to the September 2015 decision.118 The Commission decided to cap
the amount of leave which could be the subject of an employee notice, as follows:
‘We are also satisfied that limiting the period of annual leave which may be the subject of a
notice under subclause 1.2(c) will assist in ameliorating any adverse effects on business. We
will amend the model term such that the maximum period of paid annual leave that may be the
subject of a notice by an employee in any 12 month period will be four weeks’ leave if the
employee is not a shiftworker and five weeks’ leave if the employee is a shiftworker. If an
employee could not take paid annual leave except by giving a notice under subclause 1.2(c),
this would at least allow the employee to take their yearly leave accrual so that their excessive
leave accrual does not continue to grow from year to year.’
[2016] FWCFB 3177
41
[190] It is apparent from the above extracts from the September 2015 decision that the
general issues raised by the HSU have already been considered, and determined, in that
decision. In these circumstances, and absent any submission based on the circumstances
pertaining to a particular modern award, we do not propose to vary the model term in the
manner sought.
[191] The HSU submission also drew attention to the quantum of leave provided by the
Nurses Award 2010 and contended that the higher leave entitlement exacerbated the impact of
the issues raised in its general submission.
[192] Clause 31.3 of the Nurses Award 2010 provides that an employee who is not a
shiftworker is entitled to 5 weeks’ paid annual leave for each year of service and shiftworkers
are entitled to 6 weeks’ paid leave. The Nurses Award 2010 is one of the modern awards
which are to be the subject of further consideration following the conference referred to at
paragraph [124] of this decision. However we would observe that the higher level of paid
annual leave entitlement provided by this award would warrant some modification to the
provisions of the model term in the event that the award was varied to insert the model term.
[193] The Australian Salaried Medical Officers Federation (ASMOF) sought a variation to
the excessive leave term to be inserted into the Medical Practitioners Award 2010. ASMOF
submitted that the excessive leave accumulation of annual leave amongst salaried medical
practitioners in the public health system is a significant issue and that there are particular
sectorial and occupational distinctions which necessitate certain variations to the excessive
leave model term. The variations sought concern subclause 1.2(a) of the model term which
provides as follows:
‘1.2 Eliminating excessive leave accruals
(a) Dealing with excessive leave accruals by agreement
Before an employer can direct that leave be taken under subclause 1.2(b) or an employee can
give notice under subclause 1.2(c), the employer or employee must seek to confer and must
genuinely try to agree upon steps that will be taken to reduce or eliminate the employee’s
excessive leave accrual.’
[194] ASMOF states that many of its members report being ‘too busy’ to take annual leave
when it falls due and submits as follows:
‘The taking of leave by doctors necessitates an intense period of preparation, with the
cancellation or handing over to colleagues of the running of clinics, surgical tests, attendance
at meetings, managerial duties, teaching and supervision of junior staff and so on.
Most hospital departments do not maintain sufficient staff to enable doctors to take their full
complement of annual leave entitlement when it falls due.
In those cases where there is no one to do a doctor’s work while they are on leave, the doctor
faces a huge backlog and long working hours when they return. Many members also report to
the Federation that they continue to perform some work functions, such as taking calls from
patients and other hospital staff, whilst they are on leave.’119
[2016] FWCFB 3177
42
[195] It is on this basis that ASMOF submits that the draft determination in respect of the
Medical Practitioners Award 2010 should be varied to provide that in any discussions which
precede a direction to take leave, the employer will have genuine regard to the employee’s
workload and will use their best endeavours to make arrangements for adequate and suitable
relief staffing during any period or periods of annual leave taken by the employee.
[196] ASMOF also submitted that doctors in training faced a particular set of circumstances
which made it difficult to take annual leave and that ‘granting an employer the ability to direct
a doctor in training to take annual leave may present a real risk to the ability of that doctor to
progress through either prevocational or specialist training in an orderly fashion’. 120 On that
basis ASMOF submits that the draft variation be varied to provide that in any discussion
preceding a direction to take leave, where the employee concerned is a doctor in training, the
employer will give genuine consideration to the capacity of the doctor to meet the training
requirements of the relevant College or other regulatory body.
[197] The HSU supported the variations sought by the ASMOF.
[198] During the course of the hearing on 8 December 2015 we indicated that as no
employer interests had made any submission in relation to ASMOF’s proposal we would give
consideration to the proposal and if minded, on a provisional basis, to adopt it, or a variant of
it, we would publish a draft variation determination and provide interested parties with an
opportunity to comment on the variation proposed.
[199] ASMOF’s proposed variation has two elements. The first seeks to ensure that certain
matters are discussed and given genuine consideration before any direction is given to an
employee to take leave. The second element is more substantive. It would require an
employer to ‘use their best endeavours to make arrangements for adequate and suitable relief
staffing during any period or periods of annual leave taken by the employee’. In our view the
second element of ASMOF’s proposal may have broader implications in the context of this
award and would be more appropriately dealt with in the Award stage of the review of this
award. As to the first matter our provisional view is that the draft determination be varied as
follows:
1.4 Excessive leave accruals: direction by employer that leave be taken
(a) If an employer has genuinely tried to reach agreement with an employee under
clause 1.3(b) but agreement is not reached (including because the employee
refuses to confer), the employer may direct the employee in writing to take one
or more periods of paid annual leave. Any discussions should take into account
the employee’s workload, the availability of suitable relief staff, and in the case
of a doctor in training, the doctor’s training requirements. (emphasis added)
[200] Interested parties will have until 5.00pm (AEST) 1 June 2016 to notify the
Commission (at amod@fwc.gov.au) if they wish to contest the Full Bench’s provisional
views in respect of this issue. If any expressions of interest are received we will issue
directions for the filing of further submissions and evidence. If no expressions of interest are
received by the specified date we will vary the Medical Practitioners Award 2010 to insert the
term as amended in paragraph [199].
mailto:amod@fwc.gov.au
[2016] FWCFB 3177
43
(iv) Hospitality group
[201] Various employer organisations oppose the insertion of the excessive leave model
term into the Hospitality Industry (General) Award 2010, Registered and Licensed Clubs
Award 2010, and Restaurant Industry Award 2010 (collectively, the Hospitality Awards).
These submissions are advanced on the basis that the awards already contain provisions
dealing with excessive leave and that such terms are consistent with the modern awards
objective. In each of the Hospitality Awards the provision in relation to excessive leave is in
the same terms, that is:
‘An employer may require an employee to take annual leave by giving at least four weeks’
notice in the following circumstances:
(a) as part of a close-down of its operations; or
(b) where more than eight weeks’ leave is accrued.’121
[202] The excessive leave terms in the Hospitality Awards differ from the revised model
term in a number of respects, including:
(i) The existing excessive leave terms do not provide a mechanism, subject to
appropriate limitations, for employees to require their employer to give them a
period of paid annual leave. These modern awards make no provision for the
circumstance where an employee accrues excessive paid annual leave but no
employer direction is made.
(ii) The terms in the Hospitality Awards do not place any limitation on the amount of
accrued paid annual leave that an employer may direct an employee to take. The
model term provides that an employer direction must not result in the employees’
remaining accrued entitlement to paid annual leave being less than six weeks. As
the Full Bench said in the June 2015 decision:
‘Maintenance of a six week minimum is consistent with s.236(6) of the former WR Act
and with the majority of current modern award clauses which limit the amount of
accrued paid annual leave that an employer can direct an employee to take. It also
accommodates the circumstance of an employee seeking to accrue leave so that he or
she can take a reasonable extended holiday.’122
(iii) Each of the existing terms provides that an employer can direct an employee to
take a period of accrued paid annual leave by giving the employee four weeks’
notice. The model term requires that employees be given eight weeks’ notice of
the commencement of employer directed leave. The provision of eight weeks’
notice ensures that the employee has a reasonable amount of time to make
arrangements for activities during the leave period and/or to coordinate their leave
with family members.
(iv) The Hospitality Awards do not require an employer to enter into any dialogue with
an employee before directing them to take part of their annual leave. In these
awards the employer is under no obligation to discuss the issue of excessive
annual leave accrual with the employee or to seek to reach an agreement with the
employee about the time when such leave will be taken. The model term includes
such a provision on the basis that it is plainly preferable that these matters be
[2016] FWCFB 3177
44
resolved by agreement between the employer and employee, without the need for a
direction.
(v) The Hospitality Awards do not contain a requirement that the minimum length of
any period of employer directed paid annual leave be one week. Such a provision
would avoid the circumstance where an employee may be required to take their
paid annual leave in a series of single days or small clusters of single days –
thereby denying the employee the benefits associated with taking a longer period
of leave. As the Full Bench said in the September 2015 decision:
‘It is desirable that some minimum period of leave be prescribed in circumstances
where the employee concerned has an excessive leave accrual and may not have had
the benefit of any paid annual leave for a period of more than two years.’123
(vi) The existing leave terms do not provide that an employer direction to take a period
of paid annual leave be in writing. Such a procedural safeguard assists in ensuring
that the employee is aware of his or her obligations to comply with the direction
and of the limitations on such a direction.
[203] The Australian Hotels Association (AHA) opposes the excessive leave model term
being inserted into the Hospitality Industry (General) Award 2010 submitting that the current
provision in the award was the subject of consideration in the award modernisation process; is
consistent with the modern awards objective, has not been the subject of contention in
proceedings and works well within the industry. They contend that the model term is more
complex than the current provision and small businesses will be impacted by the greater
administrative and regulatory processes required.124
[204] The AHA also submits:
‘The inclusion of the model term in modern awards beyond those 70 modern awards sought by
the Employer Group for this aspect of the proceedings will deny a fair hearing for interested
persons who may have otherwise participated in this aspect of the proceedings.’125
[205] There is no substance to the proposition that the insertion of the revised model term
into the Hospitality Awards would deny interested persons a fair hearing. The basis of AHA’s
proposition is that the Hospitality Awards were not part of the cohort of 70 modern awards
which were the subject of the Employer Group’s excessive leave claim.
[206] We accept that the Hospitality Awards were not the subject of the Employer Group’s
excessive leave claim. But as mentioned earlier (see paragraphs [134]–[140]) the fact that no
claim has been made to vary the excessive leave clauses in certain awards is no impediment to
the insertion of the model term. Contrary to the AHA’s contention, in the June 2015 decision
all interested parties were informed of the Full Bench’s provisional view, namely that it was
necessary to vary all modern awards to insert the model term in order to achieve the modern
awards objective, and they were provided with an opportunity to advance a contrary view.126
Further, the September 2015 decision also makes it clear that parties were put on notice
regarding the proposition that the model term be inserted into all modern awards. At
paragraphs [173] and [213] of that decision the Commission said:
‘[173] Subject to what may be put about the circumstances pertaining to a particular modern
award our general view is that the variation of modern awards to incorporate the model term is
necessary to ensure that each modern award provides a fair and relevant minimum safety net,
[2016] FWCFB 3177
45
taking into account the s.134 considerations (insofar as they are relevant) and would also be
consistent with the objects of the Act. …
[213] We have now finalised the terms of the various model terms. The next phase of these
proceedings will deal with the insertion of the model terms into modern awards. We propose
to provide all interested parties with an opportunity to make submissions and adduce evidence
in relation to whether the various model terms we have determined should now be inserted
into particular modern awards. Directions in relation to the next phase of these proceedings
will be issued shortly. The matter will be listed for further hearing before the Full Bench at
9.30 am on 23 November 2015 in Sydney.’
[207] It is plain from the June and September 2015 decisions that the Commission had not
reached a concluded view as to the insertion of the excessive leave model term into particular
modern awards – including the Hospitality Awards – and that interested parties were invited
to make submissions and to adduce evidence in respect of this issue. A number of interested
parties, including the AHA accepted that invitation. We have considered all of those
submissions on their merits and have had regard to the particular terms and circumstances
pertaining to each modern award. In some instances we have acceded to submissions that the
model term not be inserted into a particular modern award, and, in others we have not. The
AHA has been afforded a fair hearing in respect of this issue.
[208] We deal later with the AHA’s contention that the existing provision is ‘working well
in the industry’, but it is convenient to now deal with the AHA’s submission that the existing
excessive leave clause was considered in the award modernisation process and accordingly it
should not be varied.
[209] This issue was the subject of a further submission by the AHA, dated 24 December
2015. We have considered that submission and the documents to which it refers. We are not
persuaded that that issue of excessive paid annual leave accruals was the subject of particular
consideration by the Award Modernisation Full Bench at the time it created the Hospitality
Industry (General) Award 2010.
[210] There is nothing in the submissions made, the transcript of the relevant proceedings or
in the decision of the Award Modernisation Full Bench which would lead us to conclude that
this issue was the subject of detailed consideration during the Part 10A process.
[211] In its decision of 19 December 2008 the Award Modernisation Full Bench made a
decision dealing with the making of priority modern awards – which included the Hospitality
Awards and the Mining Industry Award (which we deal with later). In the course of that
decision the Full Bench made the following observations about annual leave:
‘As we noted in our statement of 12 September 2008, it has not been possible to develop a
single model clause for annual leave. While some parties have sought greater uniformity in the
area, there is a wide range of differing provisions in the awards and NAPSAs that we are
dealing with. In many cases the provisions are more generous to employees than the
provisions of the NES. Areas in which this can be observed are the quantum of holiday pay,
leave loading and the definition of shift worker. In considering what should be included in the
modern award on each of these matters we have attempted to identify or formulate a standard
entitlement in the area covered by the modern award rather than preserving a range of
differing entitlements. This involves a degree of rationalisation at the award level only and
will not result in standard provisions across all awards.
[2016] FWCFB 3177
46
There are also some issues concerning the time of taking leave. The time of taking leave is
referred to in para.33 of the consolidated request and s 36(1)(b) of the NES. Section 36(1)(b)
reads:
‘36 Modern awards may include certain kinds of provisions
(1) A modern award may include provisions of any of the following kinds:
…
(b) provisions requiring an employee (or allowing for an employee to be required) to
take paid annual leave in particular circumstances;...’
The provisions in awards and NAPSAs governing annual close-downs vary significantly. It is
preferable that we do not alter provisions which have been specifically developed for
particular industries. We have adopted the approach of attempting to identify an industry
standard in each case. This means there may be some variation in the close-down provisions.
One issue that has arisen repeatedly, and is provided for in the NES, is the right of an
employer to require that an employee take arrears of annual leave. We think that an employer
should have the ability to reduce annual leave liability by compelling employees to take
annual leave provided appropriate notice is given. While there may be different approaches to
this question, in each of the awards there will be some provision which will give the employer
the ability to take action to reduce arrears.’127
[212] The Award Modernisation Request was varied on 18 December 2008 (including in
respect of annual leave) but that variation was not referred to in the 19 December 2008
decision of the Award Modernisation Full Bench. A subsequent decision issued on 3 April
2009, did address the variation to the Award Modernisation Request, insofar as it related to
annual leave, in the following terms:
‘We turn now to the annual leave issue. The National Employment Standards (NES) deal,
among other things, with the manner in which annual leave is to be taken. They provide that
leave is to be taken at a time which is agreed between the employer and the employee. Despite
that provision, the consolidated request allows the Commission to make a modern award
which, in some circumstances, permits an employer to compel an employee to take annual
leave. The relevant provision is in cl.33 of the consolidated request. We set out the provision
as it stands following the 18 December 2008 amendment:
“33 The NES provides that particular types of provisions are able to be included in
modern awards even though they might otherwise be inconsistent with the NES. The
Commission may include provisions dealing with these issues in a modern award. The
NES allows, but does not require, modern awards to include terms that:
“…
require employees, or allow employees to be required, to take paid
annual leave, but only if the requirement is reasonable;
… …”
Although the structure of the provision has altered, it is the last few words of the provision,
“but only if the requirement is reasonable,” which require attention. Some of the priority
modern awards made on 19 December 2008 permit an employer to require an employee to
take annual leave in specified circumstances. The circumstances are mainly of two kinds. The
first kind deals with annual close down. The second kind deals with excessive accumulations
[2016] FWCFB 3177
47
of annual leave. A number of the exposure drafts for the Stage 2 modern awards also contain
such provisions.
It was not suggested that any provision, either in the modern awards already made or in the
exposure drafts, allowed an unreasonable requirement to take leave or should be altered as a
result of the 18 December 2008 amendment. In particular it was not suggested that any of the
provisions should be altered to include a general requirement for reasonableness in relation to
the exercise of the rights given to employers. In the circumstances we have decided not to alter
any of the existing modern award provisions and we have included similar provisions in a
number of the Stage 2 modern awards.’128
[213] It is apparent from the above quote that while a provision in the same terms as now
appears in s.93(3) of the FW Act was alluded to by the Award Modernisation Full Bench, it
was not the subject of any submissions or detailed consideration in the Part 10A process.
[214] Restaurant and Catering Australia (RCA) also support the retention of the existing
excessive leave provision in the Hospitality Industry (General) Award 2010 and oppose the
insertion of the model term.
[215] RCA also opposes the variation of the Restaurant Industry Award 2010 to insert the
model term. It submits that the model term is overly complex and that it would replace a
simply and easily understood provision which is achieving the modern awards objective.
RCA also contends that there are industry specific reasons which justify the retention of the
existing provision:
‘The hospitality industry has high levels of literacy and numeracy problems and the existing
clause has been understood with the Association reviewing very few enquiries about its
application in the workplace …
Staffing levels fluctuate constantly in the hospitality industry and therefore rostering beyond
four weeks can be difficult to administer for small business employers and this is particularly
so in businesses with seasonal operations.’129
[216] During the course of oral argument the RCA expressed particular concern about the
requirement in the model term for an employee to be given eight weeks’ notice of a
requirement to take a period of accrued paid annual leave:
‘We have found that the four weeks' notice period has worked well in the industry, however
we are concerned that by moving it to eight weeks it may have the effect that by the time that
it comes to those employees to actually take their leave, because of skill shortages and
unavailability of particular staff, it may then be cancelled and so it creates those issues on a
rostering basis for the industry.
Pretty much, the industry operates on a fortnightly roster, so the four weeks' notice works well.
The difficulty is once you get into the issue of eight weeks it does create operational problems.
So we're putting that out to the Bench as our grounds which we believe are particular to this
industry.
We also note that there is evidence from the Fair Work Ombudsman that the industry has low
levels of compliance with award provisions and we're conscious that although we do our best
as an employer organisation to educate and inform our members, there is a high number of
operators in this industry not members of employer associations and it may have that impact
[2016] FWCFB 3177
48
that there is again not an understanding of what the provisions are, so it encourages,
potentially, for non-compliance to occur.
In response to the United Voice submissions that were filed last night, I just want to hand up
to the Bench some information from Service Skills Australia which I don't think will be too
controversial because United Voice sits on that organisation.’130
[217] The document relied on by RCA (Exhibit RCA 1) states:
‘Skilled labour shortages are evident in both major and niche occupations, but are disruptive in
every instance. The most severe shortages in the service industries are found among chefs and
cooks, which have now been in shortage continuously for over a decade …
… literacy and numeracy skills in both retail trade and accommodation and food services are
below the all-industry average.’
[218] RCA submitted that Exhibit RCA 1 supported its contention ‘about managing rosters
and making sure that you actually have people on the ground at the given time’.131 We note
here that, contrary to RCA’s submissions, it does not appear to us that Exhibit RCA 1 says
anything in support of the proposition that the provision of eight weeks’ notice would create
difficulties for the management of rosters in the hospitality industry. We return to this later.
[219] Clubs Australia Industrial (CAI) contends that the model excessive leave term should
not be inserted into the Registered and Licensed Clubs Award 2010 as this award already
contains a provision for excessive leave management. CAI asserts that the insertion of the
model term would not be consistent with the modern awards objective as it is likely to create
confusion amongst the industry.132 During the course of oral argument CAI also submitted
that in the event that an employer unreasonably refused to grant an employee’s request to take
a period of paid annual leave then the employee could activate the dispute resolution
procedure in the award.
[220] Clause 9 of the Registered and Licensed Clubs Award 2010 deals with dispute
resolution. We agree that an employee could refer a dispute about access to paid annual leave
to the Commission under clause 9.2. But the Commission’s power to deal with the dispute is
limited by the terms of clause 9. Subclause 9.4 states:
‘Where the matter in dispute remains unresolved, the Fair Work Commission may exercise
any method of dispute resolution permitted by the Act that it considers appropriate to ensure
the settlement of the dispute.’
[221] Subclause 9.3 states:
‘The parties may agree on the process to be utilised by the Fair Work Commission including
mediation, conciliation and consent arbitration.’
[222] It follows that under this modern award the Commission can only deal with a dispute
about access to paid annual leave by arbitration, if the parties to the dispute consent (see
ss. 595(3) and 739).
[223] The AHA, RCA and CAI each contend that the existing excessive leave provisions in
the Hospitality Awards meet the modern awards objective. Implicit in this contention is the
[2016] FWCFB 3177
49
proposition that the existing provisions are effective in dealing with the issue of excessive
paid annual leave accruals. Or as the AHA puts it, the existing clause ‘works well within the
industry’. On the basis of the material presently before us we are not satisfied that this is so.
[224] Table 2 shows the usage of paid annual leave by non-casual employees in the ANZSIC
Accommodation and food services division compared with all industries between 2010 and
2014.
Table 2: Usage of paid annual leave by non-casual employees in Accommodation and
food services, 2010–2014
Accommodation
and food services
All
industries
2010
Taken a period of paid annual leave (%) 56.1 80.6
Average leave days taken by those who took leave (no.) 14.3 18.4
2011
Taken a period of paid annual leave (%) 60.8 79.8
Average leave days taken by those who took leave (no.) 13.5 18.1
2012
Taken a period of paid annual leave (%) 59.8 79.8
Average leave days taken by those who took leave (no.) 20.4 18.2
2013
Taken a period of paid annual leave (%) 59.0 81.3
Average leave days taken by those who took leave (no.) 14.3 18.1
2014
Taken a period of paid annual leave (%) 56.2 82.2
Average leave days taken by those who took leave (no.) 13.0 18.0
Source: Household, Income and Labour Dynamics in Australia Survey, Waves 10–14.133
[225] Table 2 shows that, relative to ‘All industries’, a lower proportion of non-casual
employees in accommodation and food services took a period of paid annual leave over the
previous 12 months. It also shows that a lower average number of paid annual leave days was
taken by those who took paid leave (except in 2012).
[226] Hence in each year over the period 2010–2014 a significant proportion of non-casual
employees in the accommodation and food services sector did not take any paid annual leave.
Further, of those who did take paid annual leave, the average leave days taken was less than
the annual accrued entitlement for full-time employees and less than the average leave taken
for all industries (except in 2012). We infer from this data that, contrary to the contentions
advanced by the AHA, RCA and CAI, there is an issue with excessive annual leave accruals
in this sector.
[227] Based on the matters set out above we have reached the provisional view that, save for
two matters we shall mention shortly, the excessive leave terms in the Hospitality Awards do
not provide a fair and relevant minimum safety net of terms and conditions, and therefore the
existing terms do not satisfy the modern awards objective. We have also reached the
provisional view that these existing excessive leave terms do not meet the requirements of
s.93(3) of the FW Act. The basis for this provisional view is that the existing award terms
provide that an employee may be required to take paid annual leave in particular
circumstances and, having considered the terms of each of these provisions, our provisional
view is that that requirement is not reasonable.
[228] The first reservation to the provisionally expressed views above concerns the
requirement in the model term that an employee be given 8 weeks’ notice of employer
[2016] FWCFB 3177
50
directed leave. It has been contended that such a requirement would create practical
difficulties given the rostering arrangements in the hospitality industry. As yet no evidence
has been advanced in support of this proposition. We propose to provide a further opportunity
for interested parties to make submissions and adduce evidence in respect of this issue.
However it should be noted that the current provision of eight weeks’ notice in the model
term applies to both employer directed leave and employee directed leave. It would seem to
follow that a variation in one would apply to the other.
[229] The second reservation relates to that part of the existing excessive leave terms in the
Hospitality Awards which provide that ‘An employer may require an employee to take annual
leave by giving at least four weeks’ notice … as part of a close down of its operations’. In our
view employers covered by the Hospitality Awards should retain the capacity to direct
employees to take annual leave as part of a close down of their operations. The content of
such a clause will be given further consideration during the Award stage of the Review.
[230] Interested parties will have until 5.00pm (AEST) 1 June 2016 to notify the
Commission (at amod@fwc.gov.au) if they wish to contest the Full Bench’s provisional
views in respect of this issue. If any expressions of interest are received we will issue
directions for the filing of further submissions and evidence. If no expressions of interest are
received by the specified date we will vary the Hospitality Awards to insert the excessive
annual leave model term.
(v) Maritime group
[231] The Australian Mines and Metals Association (AMMA) and the Maritime Industry
Association Ltd (MIAL) opposed the insertion of the model terms relating to excessive leave,
annual leave in advance and cashing out of annual leave in the following awards: 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; and Seagoing Industry Award 2010 (collectively, the
Maritime Awards).
[232] In the November Statement we expressed a provisional view 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 the Maritime Awards. Interested
persons objecting to that provisional view were invited to file a written submission no later
than 4.00 pm on Thursday 3 December 2015. We also stated that if no submissions were
made to the contrary we would adopt AMMA/MIAL’s position.
[233] We dealt with this issue in the December Statement, noting
‘No submissions were received in relation to this issue. Accordingly, at this time we do not
propose to vary the six modern awards set out at paragraph [4] above in respect of the model
terms referred to earlier. Any interested party may seek to vary one or more of these modern
awards during the 4 yearly review to include these model terms. We will deal with any such
application should it be made.’134
[234] On reflection, we have decided to give further consideration to the view expressed in
the December Statement, for the reasons set out below.
mailto:amod@fwc.gov.au
[2016] FWCFB 3177
51
[235] As mentioned earlier, the Employer Group sought to insert a standard ‘cashing out of
paid annual leave’ term in 120 modern awards – including all of the Maritime Awards. The
Employer Group submission in the June 2015 proceeding was advanced on the basis that the
variations would ensure that the awards subject to the claim achieved the modern awards
objective. Implicit in such a submission is the proposition that those awards did not meet the
modern awards objective.
[236] Similarly, four of the Maritime Awards (Dredging Industry Award 2010; Maritime
Offshore Oil and Gas Award 2010; Professional Diving Industry (Industrial) Award 2010;
and Seagoing Industry Award 2010) (see Attachment H to the June 2015 decision) were
among the modern awards which were the subject of the Employer Group claim to insert a
standard leave in advance term. Further, three of the Maritime Awards (Dredging Industry
Award 2010; Maritime Offshore Oil and Gas Award 2010; and Professional Diving Industry
(Industrial) Award 2010) were among the modern awards which were the subject of the
Employer Group claim to insert a standard excessive leave term (see Attachment D to the
June 2015 decision).
[237] AMMA is a member of the Employer Group. It is difficult to reconcile AMMA’s
opposition to the insertion of the cashing out, leave in advance and excessive leave model
terms in those awards which were the subject of the Employer Group claims, with its previous
submission (as part of the Employer Group) that these awards be varied to include standard
terms dealing with these issues.
[238] We are conscious that we have previously indicated that the Maritime Awards would
not be varied to insert the three model terms to which we have referred. For the reasons given
we have decided to give further consideration to whether these awards should be varied to
insert these revised model terms. We propose to list this issue for further hearing on 1 July
2016. The purpose of the hearing is to provide AMMA/MIAL and any other interested parties
to make submissions and adduce evidence directed to the question of whether or not the
Maritime Awards should be varied to insert the revised excessive leave; annual leave in
advance and cashing out of annual leave model terms. Directions in relation to that hearing
will be issued shortly.
(vi) Passenger Vehicle Transportation Award 2010
[239] The Australian Public Transport Industrial Association (APTIA) opposes the insertion
of the excessive accrued paid leave and leave in advance model terms into the Passenger
Vehicle Transportation Award 2010 (the PVT Award). This submission is advanced on the
basis that the PVT Award already contains provisions dealing with these matters.
[240] Clause 24.4 of the PVT Award deals with leave in advance:
‘By agreement between an employer and an employee a period of annual leave may be taken
in advance of the entitlement accruing. Provided that if leave is taken in advance and the
employment terminates before the entitlement has accrued the employer may make a
corresponding deduction from any money due to the employee on termination.’
[241] Clause 24.5 of the PVT Award deals with ‘excessive’ paid annual leave accruals:
‘An employer may direct an employee to take paid annual leave if the employee has accrued
more than eight weeks’ paid annual leave, and the employer and employee are unable to reach
[2016] FWCFB 3177
52
agreement on the taking of the leave. An employer must give an employee at least 28 days’
notice prior to the date the employee is required to commence the leave.’
[242] It is convenient to deal first with the leave in advance issue.
[243] The main differences between clause 24.4 of the PVT Award and the revised model
term are the requirements regarding the content and form of any agreement to provide leave in
advance and the employer’s obligation to keep such agreements as an employee record.
[244] At paragraphs 4.1 to 4.3 of its written submission APTIA advances the following
submission in support of its contention that the existing clause 24.4 be retained, and model
term not be inserted:
‘4.1 The PVTA currently has a provision which allows for the taking of annual leave in
advance. The view which APTIA takes is that the proposed template clause should be in line
with the current award provision and that in circumstances where a modern award has an
existing mechanism then no change should occur especially when neither the employer or
employee representatives were party to the substantive annual leave applications before the
Fair Work Commission.
4.2 It is a suggestion however in circumstances where the Commission is mindful to
incorporate into all modern awards a new template clause that such leave agreements be
limited to no more than the statutory notice period to which an employee would be entitled to
under the National Employment Standards on termination or to the extent to which an
employee has contingent employee entitlements on termination or resignation.
4.3 What is needed to be avoided is a circumstance where an employer cannot readily recover
from an employee the amount of the advance annual leave payments on termination or
resignation.’
[245] The point raised in paragraph 4.1 of the APTIA’s submission is similar to the
submissions advanced by the NFF and AHA. We deal with the AHA and NFF submissions
elsewhere in this decision (see paragraphs [134]–[140] and [204]–[206]) and for the reasons
there given we are not persuaded that there is any substance to the point advanced by APTIA.
[246] We acknowledge that the PVT Award was not the subject of the Employer Group’s
claim to insert a leave in advance term in certain modern awards. But the fact that no claim
has been made to vary the relevant term in the PVT Award (i.e. clause 24.5) is of little
consequence and is certainly not an impediment to varying the PVT Award to insert the leave
in advance model term. All interested parties were informed of the Commission’s provisional
view – namely that it is necessary to vary all modern awards to insert the model term in order
to achieve the modern awards objective – and were provided with an opportunity to advance a
contrary view. 135
[247] As to the point made in paragraph 4.2 of the APTIA’s submission we are not
persuaded it is necessary, or desirable, to insert any such limitation in the term to be inserted
into the PVT Award. The model term is facilitative in nature. It only permits the taking of a
period of paid annual leave before the employee has accrued an entitlement to that leave (i.e.
leave in advance) by agreement between the employer and employee.
[248] The point made in paragraph 4.3 of the APTIA’s submission is addressed in the model
term.
[2016] FWCFB 3177
53
[249] The existing clause in the PVT Award is deficient in that it does not provide that
agreements to take leave in advance are to be in writing and nor does it provide that such
agreements are to be retained as employee records. As we have mentioned, a requirement that
there be an agreement in writing to take leave in advance before an employer can make any
related deduction from a termination payment, is entirely reasonable. By ensuring that such
arrangements are reduced to writing the model term may prevent subsequent disputes about
deductions from termination payments.
[250] We are satisfied that the variation of the PVT Award to incorporate the revised leave
in advance model term is necessary to meet the modern awards objective. The provision
allows employees to take paid annual leave at a time when they may be faced with
circumstances obliging them to take a period of leave, but where they have no accrued
entitlement to such leave. The requirement that any such agreement be in writing, be signed
and be retained as an employee record, ensures certainty as to the terms of such agreements
and may prevent subsequent disputes about deductions from termination payments. As to the
matters in s.134(1)(a)–(h), insofar as they are relevant, we are satisfied that the insertion of
the model term in these awards assists low paid employees by providing them with enhanced
access to paid leave (s.134(1)(a)); promotes flexible modern work practices (s.134(1)(d)) and
is simple and easy to understand (s.134(1)(g)).
[251] We now turn to the APTIA’s submissions regarding the variation of the PVT Award to
insert the excessive leave model term.
[252] The excessive leave term in the PVT Award differs from the revised model term in a
number of respects, including:
(i) It does not provide a mechanism, subject to appropriate limitations, for
employees to require their employer to give them a period of paid annual leave.
The award makes no provision for the circumstance where an employee
accrues excessive paid annual leave but no employer direction is made.
(ii) It does not place any limitation on the amount of accrued paid annual leave that
an employer may direct an employee to take. The model term provides that an
employer direction must not result in the employees’ remaining accrued
entitlement to paid annual leave being less than six weeks. As the Full Bench
said in the June 2015 decision:
‘Maintenance of a six week minimum is consistent with s.236(6) of the former
WR Act and with the majority of current modern award clauses which limit
the amount of accrued paid annual leave that an employer can direct an
employee to take. It also accommodates the circumstance of an employee
seeking to accrue leave so that he or she can take a reasonable extended
holiday.’136
(iii) It provides that an employer can direct an employee to take a period of accrued
paid annual leave by giving the 28 days’ notice. The model term requires that
employees be given eight weeks’ notice of the commencement of employer
directed leave. The provision of eight weeks’ notice ensures that the employee
has a reasonable amount of time to make arrangements for activities during the
leave period and/or to coordinate their leave with family members.
[2016] FWCFB 3177
54
(iv) It does not contain a requirement that the minimum length of any period of
employer directed paid annual leave be one week. Such a provision would
avoid the circumstance where an employee may be required to take their paid
annual leave in a series of single days or small clusters of single days – thereby
denying the employee the benefits associated with taking a longer period of
leave. As the Full Bench said in the September 2015 decision:
‘It is desirable that some minimum period of leave be prescribed in
circumstances where the employee concerned has an excessive leave accrual
and may not have had the benefit of any paid annual leave for a period of
more than two years.’137
(v) It does not provide that an employer direction to take a period of paid annual leave
be in writing. Such a procedural safeguard assists in ensuring that the employee is
aware of his or her obligations to comply with the direction and of the limitations
on such a direction.
[253] At paragraphs 2.1–2.4 of its written submission APTIA advances its submission in
support of its contention that the existing clause 24.5 be retained and the model term not be
inserted:
‘2.1 The PVTA has an existing excessive leave clause and APTIA considers that there should
be no change to the current clause.
2.2 The model template seeks to expand what has been in practice for some time in the
industry.
2.3 The draft template seeks to impose another dispute resolution mechanism which is not
required.
2.4 Employers need to be able to control when annual leave is taken and it should not, in
APTIA’s submission, be delegated to an employee just because an employer hasn’t decided to
insist on a reduction of leave. The business requirements need to come first.’
[254] We accept what is put at paragraph 2.1 and 2.2 of the APTIA’s submission, but for the
reasons given above we are not persuaded that these submissions warrant the retention of
clause 24.5 of the PVT Award.
[255] The point raised at paragraph 2.3 of the APTIA’s submission was addressed in the
September 2015 decision in which the Full Bench was persuaded that it was not necessary to
include a detailed dispute resolution provision in the model term.138
[256] The point raised at paragraph 2.4, in essence, opposes that aspect of the model term
whereby an employee can, in effect, determine when they take a period of paid annual leave,
subject to appropriate limitations.
[257] In the September 2015 proceedings ACCI, Ai Group and a number of other employer
organisations submitted that the excessive leave model term be amended to remove the
capacity for employees to effectively direct the taking of paid annual leave. The essence of
the arguments put was that an award term giving an employee the right to determine when he
or she takes paid annual leave would have an adverse impact on business and may impair the
efficient and productive performance of work. The Full Bench was not persuaded to accede to
the employer’s submission:
[2016] FWCFB 3177
55
‘In short, the Employer Group claim sought to replicate previous mechanisms to address
excessive leave accruals. Such mechanisms have had, at best, limited success in the past in
addressing the issues associated with excessive annual leave accruals. The claim did not
address a significant factor in the excessive accrual of annual leave – where work pressure
prevents an employee from taking all of their paid annual leave. It was on this basis that the
Commission concluded that granting the claim would not be sufficient to address the problems
of excessive accrued paid annual leave and went on to formulate the provisional model term.
Nothing put in the present proceedings has persuaded us to depart from the view expressed in
the June 2015 decision that the model term should make provision for the circumstance where
an employee accrues excessive paid annual leave but no employer direction is made. The
problem that the model term is seeking to address is the accrual of excessive annual leave and
the negative impacts this may have on employees and employers. The Act does not require
that this problem only be addressed by way of employer directions to take leave.’139
[258] The Full Bench went on to vary the excessive leave model term in a number of
respects in order to address the concerns raised by the employer parties, in particular:
a transitional arrangement would be inserted to provide that the provision dealing
with an employee’s capacity to give notice to their employer in relation to the
taking of accrued paid annual leave not commence until 12 months after the
commencement of the balance of the model term; and
a maximum period of four weeks’ paid annual leave may be the subject of a notice
by the employee in any 12 month period.
[259] We are not persuaded that the point advanced at paragraph 2.4 of the APTIA’s
submission warrants the retention of clause 24.5 (as opposed to inserting the model term).
[260] As we have mentioned the revised model term provides that an employee’s right to
require that a period of paid annual leave is granted, is subject to a number of limitations.
These limitations ensure that the management of excessive leave primarily remains an
employer responsibility. Under the revised model term an employee’s right to issue a notice
in relation to the taking of annual leave only arises where they have had an excessive leave
accrual for more than six months and their employer has not issued a direction to reduce or
eliminate their excessive leave accrual. The sequencing of rights inherent in the model term
appropriately balances the interests of employers and employees.
[261] Based on the matters set out above we have concluded that the excessive leave term in
the PVT Award does not provide a fair and relevant minimum safety net of terms and
conditions of employment. On that basis the term does not satisfy the modern awards
objective. We are also satisfied that the existing excessive leave term does not meet the
requirements of s.93(3) of the FW Act. The award term provides that an employee may be
required to take paid annual leave in particular circumstances and, having considered each of
the terms of this particular provision, that requirement is not reasonable. As the existing
excessive leave terms in this award does not meet the requirements of s.93(3) it follows that it
is not a term which may be included in a modern award.
[262] We are satisfied that the variation of the PVT Award to delete the existing excessive
leave term and to insert the revised excessive leave model term is necessary to ensure that the
[2016] FWCFB 3177
56
award meets the modern awards objective. We rely on the findings set out in the June 2015
decision140 and the observations we have made above. As to the matters in s.134(1)(a)–(h),
insofar as they are relevant, we are satisfied that the insertion of the model term in this award
will promote flexible modern work practices and the efficient and productive performance of
work (s.134(1)(d)) and will assist business in managing excessive leave accruals (s.134(1)(f)).
We are also satisfied that such variations are consistent with the objects of the FW Act. 141
(vii) Resources group
[263] AMMA opposes the insertion of the model terms dealing with excessive leave and
leave in advance into the Hydrocarbons Industry (Upstream) Award 2010, Mining Industry
Award 2010, Oil Refining and Manufacturing Award 2010, and Salt Industry Award 2010
(collectively, the Resource Sector Awards). The submission is advanced on the basis that
these awards already contain provisions dealing with the matters which are the subject of the
model terms and that the current provisions should not be varied without probative evidence
to demonstrate that they are no longer meeting the modern awards objective.
[264] Should the Commission decide to insert the excessive leave model term AMMA
contends that this should be tailored to ensure it does not unnecessarily impose new
obligations on employers and restrictions where there are currently none under the modern
award.
[265] The AWU opposes AMMA’s submissions stating that it has not been adequately
shown that the relevant industries will be negatively impacted by a consistent approach to
reducing excessive leave.142
[266] As to the leave in advance issue, AMMA submits that the additional requirement in
the model term for a separate written signed agreement is unnecessary as the existing
provisions have operated efficiently without such a requirement.
[267] AMMA also submits that the existing annual leave clauses in the Resources Sector
Awards were ‘subject of extensive submissions and consideration during the Part 10A award
modernisation process, including through the exposure draft process’. In its ‘Further
Submissions’ filed on 15 December 2015 AMMA provided what it submitted were the ‘most
relevant and cogent materials which were considered during the Part 10A process’.
[268] Contrary to AMMA’s submission, there is nothing in the submissions made, the
transcript of the relevant proceedings or in the decision of the Award Modernisation Full
Bench which would lead us to conclude that the existing provisions with respect to excessive
leave and leave in advance in the Resource Sector Awards were the subject of detailed
consideration during the Part 10A process.
[269] At paragraph 8 of its ‘Further Submissions’ AMMA advances the following
submissions:
‘It is also relevant to consider the context of the subsequent two year Transitional review
which followed the award modernisation process. As a result of item 6 of Schedule 5 of the
Fair Work (Transitional Provisions and Consequential Amendments) Act 2009, the FWC was
required to undertake a Transitional review of modern awards as soon as practicable after the
second anniversary of their commencement. The resource sector modern awards were the
subject of that review. At the completion of that Transitional review in 2013, the extant leave
[2016] FWCFB 3177
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provisions in the resource sector modern awards – the subject of these common issue
proceedings - were deemed to be meeting the modern awards objective set out in s.134 of the
Act because the Commission’s statutory obligation under the Schedule 5 Transitional Review
process was to “consider whether each modern award achieves the modern awards objective
set out in s.134 of the Fair Work Act 2009 (the FW Act) and is operating effectively without
anomalies or technical problems arising from the award modernisation process” (Appeal by
Restaurant and Catering Association of Victoria, [2014] FWCFB 1996, 14 May 2014, at [2]).’
[270] We do not find this submission persuasive and make two points in this regard.
[271] First, the Transitional Review was an application based process.143 No applications
were made in relation to the annual leave provisions in the Resource Sector Awards and
accordingly these provisions received no consideration in the Transitional Review.
[272] Second, AMMA’s submission seems to proceed on the basis that as the annual leave
provisions in the Resource Sector Awards were not the subject of any variation in the
Transitional Review it is to be assumed that the Commission found (either directly or by
implication) that these provisions met the modern awards objective. This is fallacious – there
was simply no consideration of these provisions in the Transitional Review.
[273] The fact that a particular modern award provision was not considered or amended
during the Transitional Review provides no impediment to the variation of that provision
during the Review. If AMMA’s position were accepted then the practical effect would be to
render the Review largely nugatory.
[274] In each of the Resource Sector Awards the provision in relation to ‘excessive leave’ is
in the same terms, that is:
‘An employer may direct an employee to take paid annual leave if the employee has accrued
more than eight weeks or, in the case of a continuous shiftworker, 10 weeks paid annual leave,
and the employer and employee are unable to reach agreement on the taking of the leave. An
employer must give an employee at least 28 days’ notice prior to the date the employee is
requested to commence the leave.’144
[275] As to the ‘leave in advance’, the provision in each of the awards is also in the same
terms:
‘(a) An employee may agree with their employer to take annual leave in advance of an
entitlement accruing under the NES. Where this occurs, the employee’s leave balance will be
reduced by an amount equivalent to the leave taken in advance as the employee’s entitlement
to paid annual leave accrues.
(b) The employer may deduct from the employee’s termination payments, leave taken in
advance where the entitlement to that leave has not accrued as at the date of termination.’145
[276] It is convenient to deal first with the excessive leave issue.
[277] The excessive leave terms in the Resource Sector Awards differ from the revised
model term in a number of respects, including:
(i) The terms in the Resource Sector Awards do not place any limitation on the
amount of accrued paid annual leave that an employer may direct an employee to
[2016] FWCFB 3177
58
take. The model term provides that an employer direction must not result in the
employees’ remaining accrued entitlement to paid annual leave being less than six
weeks. As the Full Bench said in the June 2015 decision:
‘Maintenance of a six week minimum is consistent with s.236(6) of the former WR
Act and with the majority of current modern award clauses which limit the amount of
accrued paid annual leave that an employer can direct an employee to take. It also
accommodates the circumstance of an employee seeking to accrue leave so that he or
she can take a reasonable extended holiday.’146
(ii) The existing excessive leave terms do not provide a mechanism for employees to
require their employer to give them a period of paid annual leave. These modern
awards make no provision for the circumstance where an employee accrues
excessive paid annual leave but no employer direction is made.
(iii) Each of the existing terms provides that an employer can direct an employee to
take a period of accrued paid annual leave by giving the employee four weeks’
notice. The excessive leave model term requires that an employer direction to take
a period of paid annual leave provide the employee with eight weeks’ notice of the
commencement of the directed leave. The provision of eight weeks’ notice ensures
that the employee has a reasonable amount of time to make arrangements for
activities during the leave period and/or to coordinate their leave with family
members.
(iv) The Resource Sector Awards do not require an employer to enter into any dialogue
with an employee before directing them to take part of their annual leave. In these
awards the employer is under no obligation to discuss the issue of excessive
annual leave accrual with the employee or to seek to reach an agreement with the
employee about the time when such leave will be taken. The model term includes
such a provision on the basis that it is plainly preferable that these matters be
resolved by agreement between the employer and employee, without the need for a
direction.
(v) The existing leave terms do not provide that an employer direction to take a period
of paid annual leave be in writing. Such a procedural safeguard assists in ensuring
that the employee is aware of his or her obligations to comply with the direction
and of the limitations on such a direction.
(vi) The Resource Sector Awards do not place any limitation on the amount of accrued
paid annual leave that an employer may direct an employee to take. The model
term provides that an employer direction must not result in the employees’
remaining accrued entitlement to paid annual leave being less than six weeks. As
the Full Bench said in the June 2015 decision:
‘Maintenance of a six week minimum is consistent with s.236(6) of the former WR Act
and with the majority of current modern award clauses which limit the amount of
accrued paid annual leave that an employer can direct an employee to take. It also
accommodates the circumstance of an employee seeking to accrue leave so that he or
she can take a reasonable extended holiday.’147
[278] AMMA contends that the existing excessive leave provisions in the Resource Sector
Awards meet the modern awards objective. Implicit in this contention is the proposition that
the existing provisions are effective in dealing with the issue of excessive paid annual leave
accruals. On the basis of the material presently before us, we are not satisfied that this is so.
[2016] FWCFB 3177
59
[279] Table 3 shows the Resource Sector Awards and their relevant ANZSIC industry
divisions.
Table 3: Resource awards and ANZSIC industry divisions
Modern award Relevant ANZSIC industry division
Hydrocarbons Industry (Upstream) Award 2010 Mining
Mining Industry Modern Award 2010 Mining
Oil Refining and Manufacturing Award 2010 Manufacturing
Salt Industry Award 2010 Mining and Manufacturing148
[280] Table 4 shows the usage of paid annual leave by non-casual employees in the Mining
industry compared with all industries between 2010 and 2014. Relative to all industries over
the period, it shows that among non-casual employees in Mining:
a similar proportion took a period of paid annual leave over the previous 12 months
in 2010–2012, a lower proportion in 2013 and a higher proportion in 2014; and
a lower average number of paid annual leave days was taken by those who took
paid leave (except in 2013).149
Table 4: Usage of paid annual leave by non-casual employees in Mining, 2010–2014
Mining All industries
2010
Taken a period of paid annual leave (%) 79.1 80.6
Average leave days taken by those who took leave (no.) 14.9 18.4
2011
Taken a period of paid annual leave (%) 79.8 79.8
Average leave days taken by those who took leave (no.) 15.0 18.1
2012
Taken a period of paid annual leave (%) 79.1 79.8
Average leave days taken by those who took leave (no.) 15.2 18.2
2013
Taken a period of paid annual leave (%) 76.2 81.3
Average leave days taken by those who took leave (no.) 18.3 18.1
2014
Taken a period of paid annual leave (%) 86.3 82.2
Average leave days taken by those who took leave (no.) 16.7 18.0
Source: Household, Income and Labour Dynamics in Australia Survey, Waves 10–14.
[281] Table 5 shows the usage of paid annual leave by non-casual employees in the
Manufacturing industry compared with all industries between 2010 and 2014. Relative to all
industries over the period, it shows that among non-casual employees in Mining:
a similar proportion took a period of paid annual leave over the previous 12 months
in 2010 and 2011, and a higher proportion in 2013–2014; and
a lower average number of paid annual leave days was taken by those who took
paid leave.150
[2016] FWCFB 3177
60
Table 5: Usage of paid annual leave by non-casual employees in Manufacturing, 2010–
2014
Manufacturing All industries
2010
Taken a period of paid annual leave (%) 78.6 80.6
Average leave days taken by those who took leave (no.) 15.1 18.4
2011
Taken a period of paid annual leave (%) 79.3 79.8
Average leave days taken by those who took leave (no.) 15.5 18.1
2012
Taken a period of paid annual leave (%) 81.0 79.8
Average leave days taken by those who took leave (no.) 15.4 18.2
2013
Taken a period of paid annual leave (%) 86.6 81.3
Average leave days taken by those who took leave (no.) 15.7 18.1
2014
Taken a period of paid annual leave (%) 86.6 82.2
Average leave days taken by those who took leave (no.) 15.8 18.0
Source: Household, Income and Labour Dynamics in Australia Survey, Waves 10–14.
[282] Hence in each year over the period 2010–2014 a significant proportion of non-casual
employees in the ANZSIC industry divisions relevant to the coverage of the Resource Sector
Awards did not take any paid annual leave. Further, of those who did take paid annual leave,
the average leave days taken was less than the annual accrued entitlement for full-time
employees and less than the average leave taken for all industries. We infer from this data
that, contrary to the AMMA’s contention, there is an issue with excessive annual leave
accruals in respect of the Resource Sector Awards.
[283] Based on the matters set out above we have reached the provisional view that the
excessive leave terms in the Resource Sector Awards do not provide a fair and relevant
minimum safety net of terms and conditions of employment and therefore the terms do not
satisfy the modern awards objective. We have also reached the provisional view that these
existing excessive leave terms do not meet the requirements of s.93(3) of the FW Act. The
basis of this provisional view is that the award terms provide that an employee may be
required to take paid annual leave in particular circumstances and, having considered the
terms of each of these provisions, our provisional view is that that requirement is not
reasonable.
[284] Interested parties will have until 5pm (AEST) on 1 June 2016 to notify the
Commission (at amod@fwc.gov.au) if they wish to contest the Full Bench’s provisional
views in respect of this issue. If any expressions of interest are received we will issue
directions for the filing of further submissions on evidence. If no expressions of interest are
received by the specified date we will vary the Resource Sector Awards to insert the excessive
annual leave accruals model term. We acknowledge that the model term will need to be
tailored to the circumstances pertaining to these awards. In particular, the definition of
‘excessive leave’ will need to be adjusted where the quantum of annual leave accrued by
employees covered by these awards is greater than that provided in the NES.
[285] We now turn to the leave in advance issue.
[286] The Employer Group’s claim sought a provision in substantially the same terms as the
existing clauses in the Resource Sector Awards. As we have mentioned, the main differences
between the model term and the Employer Group’s claim are the requirements regarding the
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[2016] FWCFB 3177
61
content and form of any agreement to provide leave in advance (subclause 1.1(a)) and the
employer’s obligation to keep such agreements as an employee record (subclause 1.1(c)). In
the June 2015 decision the Full Bench noted that: ‘These requirements are consistent with an
employer’s existing obligations under Regulation 3.36 of the Fair Work Regulations 2009’.151
[287] The submissions in the September 2015 proceedings were directed at subclause 1.1(c)
of the model term. ACCI submitted that on the whole it had no significant concerns with the
form of the model term but that it could be enhanced by removing subclause 1.1(c) on the
basis that record keeping requirements regarding leave are already set out in Regulation 3.36.
Submissions to similar effect were advanced by a number of other employer organisations.152
In the September 2015 decision the Full Bench rejected ACCI’s submission.153
[288] It seems to us that a requirement that there be an agreement in writing to take leave in
advance before an employer can make any related deduction from a termination payment, is
entirely reasonable. We note that absent such a provision there may be no requirement to keep
an employee record of any leave taken in advance.154 By ensuring that such arrangements are
reduced to writing the model term may prevent subsequent disputes about deductions from
termination payments. The existing clauses in the Resource Sector Awards are deficient in
that they do not provide that agreements to take leave in advance are to be in writing and nor
do they provide that such agreements are to be retained as employee records.
[289] We are satisfied that the variation of the Resource Sector Awards to incorporate the
leave in advance model term is necessary to meet the modern awards objective. The provision
allows employees to take paid annual leave at a time when they may be faced with
circumstances obliging them to take a period of leave, but where they have no accrued
entitlement to such leave. The requirement that any such agreement be in writing, be signed
and be retained as an employee record, ensures certainty as to the terms of such agreements
and may prevent subsequent disputes about deductions from termination payments. As to the
matters in s.134(1)(a)–(h), insofar as they are relevant, we are satisfied that the insertion of
the model term in these awards assists low paid employees by providing them with enhanced
access to paid leave (s.134(1)(a)); promotes flexible modern work practices (s.134(1)(d)) and
is simple and easy to understand (s.134(1)(g)).
(viii) Security Services Industry Award 2010
[290] MSS Security made submissions regarding the insertion of the cashing out model term
into the Security Services Industry Award 2010.155 MSS Security sought to change the
wording of two aspects of the draft variation determination (clauses 24.11(b)(i) and
24.11(b)(ii)). To ensure that all interested parties have an opportunity to comment on the MSS
Security proposal we propose to list this issue for a further hearing on 1 July 2016.
6.3 Enterprise awards
[291] In the June 2015 decision the Full Bench156 invited parties to modern enterprise
awards to make submissions in accordance with the directions issued as to how this decision
should apply to each modern enterprise award. No submissions have been received in relation
to modern enterprise awards. We propose to give further consideration to the variation of
modern enterprise awards, later this year.
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7. Conclusion and Next Steps
[292] For the reasons set out earlier we propose to vary a number of modern awards to insert
various annual leave model terms.
(i) Cashing out of annual leave
[293] The revised cashing out model term will be inserted into 112 modern awards for the
reasons given in the June 2015 decision157. We are satisfied that the variation of these 112
modern awards to incorporate the revised cashing out model term is necessary to ensure that
each of these modern awards provides a fair and relevant minimum safety net, taking into
account the s.134 considerations (insofar as they are relevant). We are also satisfied that such
variations are consistent with the objects of the FW Act. The 112 modern awards to be varied
are identified in Attachment 6. Draft variation determinations will be published shortly and
interested parties will have 7 days to comment. The opportunity to comment only relates to
the plain language revisions to the model term and the template agreement. It is not an
opportunity to re-agitate the merits of whether particular modern awards should be varied to
incorporate a model term dealing with the cashing out of paid annual leave.
[294] We have decided to give further consideration to whether the six Maritime modern
awards should be varied to insert the revised model cashing out term for the reasons given at
paragraphs [231]–[238] above. We also propose to give further consideration to the form of
the cashing out term to be inserted into the Security Services Industry Award 2010. These
matters will be listed for further hearing on 1 July 2016.
(ii) EFT and paid annual leave
[295] The 51 modern awards which currently require the employer to pay an employee for
annual leave prior to the employee taking the leave will be varied to insert the EFT and paid
annual leave model term, for the reasons given in the June 2015 decision. The effect of the
variation is that when employees are paid by electronic funds transfer they may be paid in
accordance with their usual pay cycle while on paid annual leave. The variations will not
change the status quo (i.e. payment for leave being made in advance of taking the leave) in
respect of employees who are paid by cash or cheque.
[296] We are satisfied that the variation of these 51 modern awards in the manner described
is necessary to ensure that each of these modern awards provides a fair and relevant minimum
safety net, taking into account the s.134 considerations (insofar as they are relevant). We are
also satisfied that such variations are consistent with the objects of the FW Act. We rely on
the reasons given in the June 2015 decision (see [2015] FWCFB 3406 at [436]–[457]).
[297] For the reasons given at paragraphs [165]–[179] we will vary the Black Coal Mining
Industry Award 2010 to insert the model EFT and paid annual leave model term. To avoid
any confusion between the operation of the model term and clause 25.8 of the modern award
we will also vary clause 25.8 in the manner described at paragraph [179] above.
[298] The 51 modern awards to be varied are identified in Attachment 6.
[2016] FWCFB 3177
63
(iii) Leave in advance
[299] The revised leave in advance model term will be inserted into 113 modern awards. We
are satisfied that the variation of these 113 modern awards will ensure that each of these
modern awards meets the modern awards objective. We rely on the reasons given in the June
2015 decision (at [411]–[415]). We are satisfied that the variation of these 113 modern awards
in the manner described is necessary to ensure that each of these modern awards provides a
fair and relevant minimum safety net, taking into account the s.134 considerations (insofar as
they are relevant). We are also satisfied that such variations are consistent with the objects of
the FW Act.
[300] The 113 modern awards to be varied are identified in Attachment 6. Draft variation
determinations will be published shortly and interested parties will have 7 days to comment.
The opportunity to comment only relates to the plain language revisions to the model term
and the template agreement. It is not an opportunity to re-agitate the merits of whether
particular modern awards should be varied to incorporate a model term dealing with the
taking of paid annual leave in advance of accrual.
[301] The six Maritime Awards will be listed for a further hearing on 1 July 2016 for the
reasons given at paragraphs [231]–[238] above.
(iv) Excessive annual leave
[302] Some 80 modern awards will be varied to insert the revised excessive annual leave
model term. These 80 modern awards are identified in Attachment 6. We are satisfied that the
variation of these modern awards will ensure that they meet the modern awards objective. We
rely on the reasons set out above at paragraphs [89]–[120] and the reasons given in the June
2015 decision (at [87]–[219]) and in the September 2015 decision (at [42]–[178]). We are
satisfied that the variation of these 80 modern awards in the manner described is necessary to
ensure that each of these modern awards provides a fair and relevant minimum safety net,
taking into account the s.134 considerations (insofar as they are relevant). We are also
satisfied that such variations are consistent with the objects of the FW Act.
[303] The transitional subclause proposed by Ai Group will be inserted into each variation
determination (see paragraphs [83]–[88] above).
[304] Six of the 80 modern awards to be varied to insert the revised excessive annual leave
model term provide a paid annual leave entitlement for some or all non-shiftworkers that is
higher than the standard 4 weeks’ paid annual leave per annum.158 In some of these awards
the definition of ‘excessive’ will be modified to reflect the higher level of annual leave
accrual.159
[305] The model term to be inserted into the Medical Practitioners Award 2010 will be
varied as set out at paragraph [199] above.
[306] Draft variation determinations will be published shortly and interested parties will
have 7 days to comment. As a general proposition the opportunity to comment only relates to
the plain language revisions to the model term. The exception to this general proposition
relates to those modern awards mentioned in paragraphs [304] and [305] above. In respect of
those modern awards, interested parties are invited to comment on the modifications made to
[2016] FWCFB 3177
64
the variation determinations to reflect the higher level of annual leave accrual or, in the case
of the Medical Practitioners Award 2010, the circumstances pertaining to the particular
modern award.
[307] Further consideration will be given to whether the remaining 39 modern awards
should be varied to insert the revised excessive annual leave term, as follows:
The Textile, Clothing, Footwear and Associated Industries Award 2010 will be
relisted for further consideration later this year, for the reasons set out at paragraphs
[93]–[95].
The 20 modern awards which contain provisions requiring paid annual leave to be
taken within a specified time after accrual (see paragraph [123](i) and (ii)), will be
the subject of a conference before Commissioner Hampton in the coming weeks (see
paragraphs [123]–[124]).
The Air Pilots Award 2010 and the Aircraft Cabin Crew Award 2010 will be
considered in the second half of this year in order to give Ai Group and other
interested parties an opportunity to make further relevant inquiries (see paragraphs
[125]–[126]).
The six Maritime Awards will be listed for a further hearing on 1 July 2016.
In relation to the 3 Agriculture Awards and the 3 Hospitality Awards, interested
parties will have until 5pm (AEST) on 1 June 2016 to notify the Commission (at
amod@fwc.gov.au) if they wish to contest the Full Bench’s provisional views in
respect of this issue. If expressions of interest are received we will issue directions
for the filing of further submissions and evidence. If no expressions of interest are
received by 5pm on 1 June 2016 we will vary the Agriculture and Hospitality
Awards to insert the revised excessive leave model term.
In relation to the Medical Practitioners Award 2010, interested parties will have
until 5pm (AEST) on 1 June 2016 to notify the Commission (at amod@fwc.gov.au)
if they wish to contest the Full Bench’s provisional views in respect of this issue. If
expressions of interest are received we will issue directions for the filing of further
submissions and evidence. If no expressions of interest are received by 5pm on
1 June 2016 we will vary the Medical Practitioners Award 2010 to insert the revised
excessive leave model term.
In relation to the 4 Resource Sector Awards, interested parties will have until 5pm
(AEST) on 1 June 2016 to notify the Commission (at amod@fwc.gov.au) if they
wish to contest the Commission’s provisional views in respect of this issue. If any
expressions of interest are received we will issue directions for the filing of further
submissions on evidence. If no expressions of interest are received by 5pm on 1 June
we will vary the Resource Sector Awards to insert the revised excessive leave model
term. We acknowledge that the model term will need to be tailored to the
circumstances pertaining to these awards. In particular, the definition of ‘excessive
leave’ will need to be adjusted where the quantum of annual leave accrued by
employees covered by these awards is greater than that provided in the NES.
mailto:amod@fwc.gov.au
mailto:amod@fwc.gov.au
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[2016] FWCFB 3177
65
PRESIDENT
Printed by authority of the Commonwealth Government Printer
Price code O, PR580542
[2016] FWCFB 3177
66
Appearances:
B Ferguson for the Australian Industry Group.
S Crawford for The Australian Workers’ Union.
A Moussa for the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries
Union” known as the Australian Manufacturing Workers’ Union (AMWU)—Vehicle
Division.
M Nguyen for the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries
Union” known as the Australian Manufacturing Workers’ Union (AMWU).
S Maxwell for the Construction, Forestry, Mining and Energy Union—Construction and
General Division.
M Thomas for the Construction, Forestry, Mining and Energy Union—Mining and Energy
Division.
J Arndt for the Australian Chamber of Commerce and Industry and the Pharmacy Guild of
Australia.
T Evans for the Accommodation Association of Australia.
M Adler for the Housing Industry Association.
V Wiles for the Textile, Clothing and Footwear Union of Australia.
R Sostarko for Master Builders Australia Limited.
G Parkes for Restaurant & Catering Australia.
J Cooney for the Australian Municipal, Administrative, Clerical and Services Union.
A McCarthy for the Australian Nursing and Midwifery Federation.
Hearing details:
2015.
Sydney, Melbourne, Canberra, Brisbane (video hearing).
December 8.
Further written submissions
2016.
February 22.
[2016] FWCFB 3177
67
1 [2015] FWCFB 3406
2 Directions, 11 June 2015, AM2014/47 – Annual leave
3 [2015] FWCFB 5771
4 The Employer Group is the list of employers at Attachment A to the June 2015 decision who, along with Ai Group and
ACCI presented a common position in respect of proposed variations to annual leave – see [8] of June 2015 decision
5 [2015] FWCFB 3406 at [308]–[382]
6 September 2015 decision [2015] FWCFB 5771 at [202]
7 [2015] FCAFC 100
8 See ACTU correspondence, 31 August 2015
9 [2014] FWCFB 1788
10 National Retail Association v Fair Work Commission [2014] FCAFC 118 at [85] although the Court’s observations were
directed at the expression ‘in its own right’ in Item 6(2A) of Schedule 5 of the Fair Work (Transitional Provisions and
Consequential Amendments) Act 2009 (Cth) they are apposite to s.153(5).
11 National Retail Association v Fair Work Commission [2014] FCAFC 118 at [118]. While the Full Federal Court was
considering the meaning of the Item 6(2A) of Schedule 5 of the Fair Work (Transitional Provisions and Consequential
Amendments) Act 2009 (Cth) the observations are also apposite to s.156(5) of the FW Act, which is in substantially the
same terms
12 [2014] FWCFB 1788
13 Ai Group submission, 20 February 2014 at para. 4.6, also see paras 4.2 to 4.5
14 See Modern Awards Review 2012 [2012] FWAFB 5600 at [82] to [85]
15 Ibid at [19]–[24]
16 See Shop, Distributive and Allied Employees Association v National Retail Association (No 2) (2012) 205 FCR 227 at [35]
per Tracey J
17 Friends of Hichinbrook Society Inc v Minister for Environment (No 3) (1997) 77 FCR 153; Australian Competition and
Consumer Commission v Leelee Pty Ltd [1999] FCA 1121; Edwards v Giudice [1999] FCA 1836; National Retail
Association v Fair Work Commission [2014] FCAFC 118
18 National Retail Association v Fair Work Commission [2014] FCAFC 118 at [110]
19 Ibid at para. 109 albeit the Court was considering a different statutory context, the observation at [110] is applicable to the
Commission’s task in the Review
20 See generally, : Shop, Distributive and Allied Employees Association v National Retail Association (No.2) (2012) 205 FCR
227
21 Ai Group correspondence, 21 May 2014; ACCI correspondence, 21 May 2014
22 [2015] FWCFB 3406 at [220]
23 Ibid at [222]–[240]
24 Ibid at [255]–[264]
25 Ibid at [264]–[267]
26 [2015] FWCFB 5771 at [179]–[191]
27 [2015] FWCFB 3406 at [430]–[434]
28 Ibid at [431]
29 Ibid at [443]–[457]
30 Ibid at [436]–[442]
31 Ibid at [411]–[413]
32 Ibid at [415]
33 Insert references to relevant paragraph in September 2015 decision
34 Ai Group correspondence, 21 May 2014; ACCI correspondence, 21 May 2014
35 [2015] FWCFB 3406 at [76]
36 Ibid at [100]
37 Ibid at [149]–[169]
38 [2015] FWCFB 5771 at [51]
[2016] FWCFB 3177
68
39 Ibid at [59]–[62]
40 Ibid at [64]–[66]
41 Ibid at [83]–[96]
42 Ibid at [146]–[148]
43 Ibid at [146]–[149]
44 Ibid at [150]–[156]
45 [2015] FWCFB 8030
46 [2015] FWCFB 8030
47 [2015] FWCFB 8408
48 Ai Group submission, 30 November 2015
49 Waste Contractors and Recyclers Association of NSW, submission 1 December 2015
50 [2015] FWCFB 8408 at [31]
51 4 yearly review - Guide to Award Stage, 16 June 2014, see paras 30 and 32
52 Transcript 7 August 2015 at paras 467–475
53 [2015] FWCFB 5771 at paras [155]–[156]
54 Ai Group submission – excessive leave, 7 December 2015
55 [2015] FWCFB 5771 at [148]
56 Transcript at paras 695–703
57 Ai Group submission, 26 October 2015
58 [2015] FWCFB 2831
59 Ibid at [147]–[148]
60 Aboriginal Community Controlled Health Services Award 2010 [MA000115] – cl.26.3; Airline Operations—Ground Staff
Award 2010 [MA000048] – cl.34.6; Banking, Finance and Insurance Award 2010 [MA000019] – cl.24.5; Business
Equipment Award 2010 [MA000021] – cl.31.4; Clerks—Private Sector Award 2010 [MA000002] – cl.29.5; Commercial
Sales Award 2010 [MA000083] – cl.24.5; General Retail Industry Award 2010 [MA000004] – cl.32.5; Legal Services
Award 2010 [MA000116] – cl.35.6; Local Government Industry Award 2010 [MA000112] – cl.25.5; Port Authorities
Award 2010 [MA000051] – cl.22.5; Rail Industry Award 2010 [MA000015] – cl.23.5; Sugar Industry Award 2010
[MA000087]–cl.33.5 and Supported Employment Services Award 2010 [MA000103] – cl.22.3.
61 Airport Employees Award 2010 [MA000049] – cl.31.5; Car Parking Award 2010 [MA000095] – cl.25.5; Coal Export
Terminals Award 2010 [MA000045] – cl.19.7; Concrete Products Award 2010 [MA000056] – cl.26.5; Contract Call
Centres Award 2010 [MA000023] – cl.27.5; Electrical, Electronic and Communications Contracting Award 2010
[MA000025] – cl.28.5; Electrical Power Industry Award 2010 [MA000088] – cl.28.5; Food, Beverage and Tobacco
Manufacturing Award 2010 [MA000073] – cl.34.7; Graphic Arts, Printing and Publishing Award 2010 [MA000026] –
cl.37.7; Joinery and Building Trades Award 2010 [MA000029] – cl.32.5; Manufacturing and Associated Industries and
Occupations Award 2010 [MA000010] – cl.41.6; Marine Tourism and Charter Vessels Award 2010 [MA000093] –
cl.23.4; Pest Control Industry Award 2010 [MA000097] – cl.24.4; Poultry Processing Award 2010 [MA000074] –
cl.27.5; Road Transport and Distribution Award 2010 [MA000038] – cl.29.4; Road Transport (Long Distance
Operations) Award 2010 [MA000039] – cl.23.3; Seafood Processing Award 2010 [MA000068] – cl.27.6;
Telecommunications Services Award 2010 [MA000041] – cl.23.4; Timber Industry Award 2010 [MA000071]–cl.33.6;
Transport (Cash in Transit) Award 2010 [MA000042] – cl.29.5; Vehicle Manufacturing, Repair, Services and Retail
Award 2010 [MA000089] – cl.29.4
62 Aluminium Industry Award 2010 [MA000060] – cl.22.6; Water Industry Award 2010 [MA000113] – cl.27.4; and Wool
Storage, Sampling and Testing Award 2010 [MA000044] – cl.26.4
63 [2015] FWCFB 3124
64 Ibid at [25]
65 [2015] FWCFB 5771 at [128]
66 Re Shop, Distributive and Allied Employees’ Association (2003) 135 IR 1 at [11] (per Giudice J) and [24] (per Watson SDP
and Raffaelli C)
67 [2015] FWCFB 5771 at [71]
68 [2015] FWCFB 3406 at [200]
69 See [2015] FWCFB 5771 at [134]–[138]
[2016] FWCFB 3177
69
70 The threshold amount for shiftworkers is 10 weeks
71 By providing workplace relations laws that are fair to working Australians and are flexible for businesses (s.3(a)); ensuring
a guaranteed safety net of fair, relevant and enforceable minimum terms and conditions through the NES and modern awards
(s.3(b)); assisting employees to balance their work and family responsibilities by providing for flexible working arrangements
(s.3(d)); and acknowledging the special circumstances of small and medium-sized businesses (s.3(g)). In respect of s.3(g), as
relatively few employees employed in small businesses are covered by a collective agreement, a modern award variation of
the type proposed would ensure that all such businesses have capacity to deal with excessive leave accruals
72 Ai Group further submission, 7 December 2015 at para. 13
73 Ai Group further submission, 7 December 2015 at para. 72
74 Ibid at para. 75
75 Ibid
76 See Clause 25.7, Horticultural Award 2010; Clause 23.5, Pastoral Award 2010 and Clause 31.5, Wine Industry Award
2010
77 See Clause 25.8, Horticultural Award 2010; Clause 23.6, Pastoral Award 2010 and Clause 31.6, Wine Industry Award
2010
78 [2015] FWCFB 3406 at [413]
79 Accommodation Association of Australia and another Submission, 14 July 2015; Australian Business Industrial and the
NSW Business Chamber Submission, 13 July 2015; Australian Chamber of Commerce and Industry Submission, 13 July
2015; Australian Hotels Association Submission, 13 July 2015; and Master Plumbers Association of NSW Submission,
17 July 2015
80 [2015] FWCFB 5771 at [196]–[197] and [213]
81 For example, the NFF does not support the variation of the Horticultural Award 2010, the Pastoral Award 2010 or the
Wine Industry Award 2010 to include the model term dealing with leave in advance. At paragraph 22 of its submissions
in support of its position the NFF states: ‘No claim was made to vary the leave in advance terms currently contained in
the Pastoral Award, the Horticultural Award or the Wine Award.’
82 National Retail Association v Fair Work Commission [2014] FCAFC 118 at [18]
83 The Australian Industry Group re Manufacturing and Associated Industries and Occupations Award 2012 [2012] FWA
2556
84 [2015] FWCFB 3406 at [415]
85 NFF submission, 26 October 2015
86 Transcript at para 1081
87 [2015] FWCFB 5771 at [196]
88 Skinner, N. Pocock, B. (2013). ‘Paid annual leave in Australia: Who gets it, who takes it and implications for work-life
interference’, Journal of Industrial Relations, 55(5), 681-698
89 The NFF submission makes no mention of the Wine Industry Award 2010
90 NFF submission, 20 June 2014 at para 33
91 See The Australian Work and Life Index 2010 ‘How much should we work? Working hours, holidays and working life: the
participation challenge’ which shows that the 2010 data collection includes employees from the Agriculture, forestry and
fishing industry at p. 59
92 AMWU submission, 13 July 2015 at [27]–[28]
93 Ai Group submission and witness statements, 20 June 2014, Witness statement of Mr Ben Waugh, Attachment A
94 [2015] FWCFB 3406 at [116]
95 Ai Group submission and witness statements, 20 June 2014, Witness statement of Mr Ben Waugh, Attachment E at p. 25
96 Witness Statement of Ben Waugh, 20 June 2014
97 Wooden M and Warren D (2008), ‘Paid annual leave and working hours: Evidence from the HLDA survey’, (2008)
Journal of Industrial Relations 50(4)
98 Ibid
99 Ibid
100 See HILDA User Manual, Release 14, pp. 42–45
101 Unlike Wooden and Warren (2008), this analysis is not restricted to full-time employees who have been with their current
employer for at least one year. However, in 2014, the average tenure for non-casual employees with their current employer
[2016] FWCFB 3177
70
in Agriculture, forestry and fishing (7.8 years) is similar to all industries (7.4 years). In addition, there is a higher proportion
of full-time employees in Agriculture, forestry and fishing (90 per cent) compared with all industries (78.7 per cent).
102 [2015] FWCFB 5771 at [71]
103 CFMEU (M&E) submission, 26 October 2015 at para 9.6
104 Ibid at para 9.3
105 Transcript at paras 1249–1250
106 CFMEU (M&E) submissions, 21 December 2015 and 22 February 2016
107 CFMEU (M&E) submission, 22 February 2016 at paras 9.1– 9.4
108 Australian Industry Group submission in reply, 11 November 2015, Coal Mining Industry Employer Group submissions
in reply, 11 November 2015
109 Australian Industry Group submission in reply, 11 November 2015
110 Transcript at paras 1243–1244
111 Ibid at paras 1245–1246
112 CMIEG submission, 11 November 2015 at para 3(c)
113 CFMEU (M&E) submission, 26 October 2015 at para 6
114 June 2015 decision [2015] FWCFB 3406 at [432]
115 Note: subclause 1.2(c)(ii) provides that such notice may only be given if agreement is not reached under subclause 1.2(a),
which provides that before an employee can give notice of leave to be granted under subclause 1..2(c) the employee
‘must seek to confer and must genuinely try to agree upon steps that will be taken to reduce or eliminate the employee’s
excessive leave accrual’
116 Transcript at paras 1331–1336
117 [2015] FWCFB 5771 at [162]
118 [2015] FWCFB 5771 at [146]
119 ASMOF submission, 26 October 2015 at paras 6–8
120 Ibid at paragraph 17
121 See clause 34.3 of the Hospitality Industry (General) Award 2010; clause 30.4 of the Registered and Licensed Clubs
Award 2010; and clause 35.3 of the Restaurant Industry Award 2010
122 [2015] FWCFB 3406 at [200]
123 [2015] FWCFB 5771 at [71]
124 Australian Hotels Association submission, 26 October 2015
125 Ibid at para. 1(e) on p. 2
126 [2015] FWCFB 3406 at [415]
127 (2008) 177 IR 364 at [95]–[98]. Note the Full Bench also dealt with the issue of cashing out of annual leave, at paras 99–
100, but that is not relevant for present purposes
128 [2009] AIRCFB 345 at paragraphs [16]–[18]
129 Restaurant and Catering Australia submission, 26 October 2015 at paras 14 and 16
130 Transcript at paras 1013–1016
131 Transcript at paras 1023–1025
132 Clubs Australia Industrial submission, 26 October 2015
133 Note that unlike Wooden and Warren (2008), this analysis is not restricted to full-time employees who have been with
their current employer for at least one year. In 2014, the average tenure for non-casual employees with their current
employer in Accommodation and food services (4.2 years) is lower than all industries (7.4 years). In addition, there is a
lower proportion of full-time employees in Accommodation and food services (66.5 per cent) compared with all
industries (78.7 per cent).
134 [2015] FWCFB 8408 at [6]
135 [2015] FWCFB 3406 at [415]
136 Ibid at [200]
137 [2015] FWCFB 5771 at [71]
138 Ibid at [151]–[156]
[2016] FWCFB 3177
71
139 Ibid at [139]–[140]
140 See [2015] FWCFB 5771 at [134]–[138]
141 By providing workplace relations laws that are fair to working Australians and are flexible for businesses (s.3(a));
ensuring a guaranteed safety net of fair, relevant and enforceable minimum terms and conditions through the NES and
modern awards (s.3(b)); assisting employees to balance their work and family responsibilities by providing for flexible
working arrangements (s.3(d)); and acknowledging the special circumstances of small and medium-sized businesses (s.3(g)).
In respect of s.3(g), as relatively few employees employed in small businesses are covered by a collective agreement, a
modern award variation of the type proposed would ensure that all such businesses have capacity to deal with excessive leave
accruals.
142 Australian Workers’ Union submission in reply, 2 November 2015
143 [2011] FWA 7975
144 Clause 27.7 Hydrocarbons Industry (Upstream) Award 2010; clause 23.6 Mining Industry Modern Award 2010; clause
26.6 Oil Refining and Manufacturing Award 2010; and clause 25.6 Salt Industry Award 2010
145 Clause 27.9 Hydrocarbons Industry (Upstream) Award 2010; clause 23.8 Mining Industry Modern Award 2010; clause
26.8 Oil Refining and Manufacturing Award 2010; and clause 25.8 Salt Industry Award 2010
146 [2015] FWCFB 3406 at [200]
147 [2015] FWCFB 3406 at [200]
148 The Salt Industry Award 2010 is relevant to both Mining and Manufacturing as the award covers extracting and gathering
of salt, as well as the manufacturing and refining of salt
149 Note that unlike Wooden and Warren (2008), this analysis is not restricted to full-time employees who have been with
their current employer for at least one year. HILDA data show that in 2014, the average tenure for non-casual employees
with their current employer in Mining (6.4 years) is lower than for all industries (7.4 years). In addition, there is a higher
proportion of full-time employees in Mining (96.9 per cent) compared with all industries (78.7 per cent).
150 HILDA data show that in 2014, the average tenure for non-casual employees with their current employer in
Manufacturing (8 years) is slightly higher than for all industries (7.4 years). In addition, there is a higher proportion of
full-time employees in Manufacturing (94.1 per cent) compared with all industries (78.7 per cent).
151 [2015] FWCFB 3406 at [413]
152 Accommodation Association of Australia and another Submission, 14 July 2015; Australian Business Industrial and the
NSW Business Chamber Submission, 13 July 2015; Australian Chamber of Commerce and Industry Submission, 13 July
2015; Australian Hotels Association Submission, 13 July 2015; and Master Plumbers Association of NSW Submission,
17 July 2015
153 [2015] FWCFB 5771 at [196]–[197] and [213]
154 [2015] FWCFB 5771 at [196]
155 MSS Security correspondence, 23 November 2015 and submission, 30 January 2016
156 [2015] FWCFB 3406 at [476]
157 See [2015] FWCFB 3406 at [255]–[335]; note that three Educational awards have been referred to a Full Bench in
AM2015/6 (see {2015] FWCFB 8030)
158 Air Pilots Award 2010 [MA0000046] – cl.27; Business Equipment Award 2010 [MA000021] – cl.31; Fire Fighting
Industry Award 2010 [MA000111] – cl.28; Graphic Arts, Printing and Publishing Award 2010 [MA000026] – cl.31;
Journalists Published Media Award 2010 [MA000067] – cl.24 and Plumbing and Fire Sprinklers Award 2010
[MA000036] – cl.34
159 We do not propose to modify the definition of excessive accrued annual leave in three of these awards because the
provision of leave in excess of the 4 week standard is only made available to some employees. The awards in which the
definition will not be adjusted are: Business Equipment Award 2010; Graphic Arts, Printing and Publishing Award 2010
and Plumbing and Fire Sprinklers Award 2010
[2016] FWCFB 3177
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Attachment 1—List of Submissions
This attachment lists all submissions received following the Directions issued on 30
September 2015
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
Submission - draft determination - Clerks—
Private Sector Award 2010 and others
27/10/2015
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
[2016] FWCFB 3177
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Organisation Document Date
Chamber
Australian Chamber of
Commerce and Industry
Correspondence 29/10/2015
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
MSS Security Correspondence - Security Services Industry
Award 2010
23/11/2015
Australian Industry Group Submission – draft determination – Waste
Management Award 2010
30/11/2015
Waste Contractors and
Recyclers Association of
NSW
Submission – draft determination – Waste
Management Award 2010
01/12/2015
Allianz - Global Assistance Submission – Banking, Finance and Insurance
Award 2010
02/12/2015
Australian Services Union Submissions in reply – Clerks Private Sector
Award 2010
03/12/2015
Australian Industry Group Questions on notice 07/12/2015
Australian Industry Group Submission – excessive leave – questions on
notice
07/12/2015
United Voice Submissions in reply – multiple modern awards 07/12/2015
Australian Mines and Metals
Association
Submissions – questions on notice 15/12/2015
CFMEU – Mining and
Energy Division
Submissions – annual leave payment 21/12/2015
http://www.fwc.gov.au/documents/sites/awardsmodernfouryr/common/AM201447-sub-CFMEU-211215.pdf
http://www.fwc.gov.au/documents/sites/awardsmodernfouryr/common/AM201447-sub-AMMA-151215.pdf
http://www.fwc.gov.au/documents/sites/awardsmodernfouryr/common/AM201447-sub-UV-071215.pdf
http://www.fwc.gov.au/documents/sites/awardsmodernfouryr/AM201447-sub-AiG-071215.pdf
http://www.fwc.gov.au/documents/sites/awardsmodernfouryr/AM201447-sub-AiG-071215.pdf
http://www.fwc.gov.au/documents/sites/awardsmodernfouryr/common/AM201447-questions-on-notice-aigroup-071215.pdf
http://www.fwc.gov.au/documents/sites/awardsmodernfouryr/common/AM201447-sub-asu-031215.pdf
http://www.fwc.gov.au/documents/sites/awardsmodernfouryr/common/AM201447-sub-asu-031215.pdf
http://www.fwc.gov.au/documents/sites/awardsmodernfouryr/common/AM201447-sub-Allianz-021215.pdf
http://www.fwc.gov.au/documents/sites/awardsmodernfouryr/common/AM201447-sub-Allianz-021215.pdf
http://www.fwc.gov.au/documents/sites/awardsmodernfouryr/common/AM201447-sub-WCRA-011215.pdf
http://www.fwc.gov.au/documents/sites/awardsmodernfouryr/common/AM201447-sub-WCRA-011215.pdf
http://www.fwc.gov.au/documents/sites/awardsmodernfouryr/common/AM201447-sub-AiG-301115.pdf
http://www.fwc.gov.au/documents/sites/awardsmodernfouryr/common/AM201447-sub-AiG-301115.pdf
https://www.fwc.gov.au/sites/awardsmodernfouryr/common/AM201447-corr-MSS-231115.pdf
https://www.fwc.gov.au/sites/awardsmodernfouryr/common/AM201447-corr-MSS-231115.pdf
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
https://www.fwc.gov.au/sites/awardsmodernfouryr/common/AM201447-corr-ACCI-291015.pdf
[2016] FWCFB 3177
74
Organisation Document Date
Coal Mining Industry
Employer Group
Submissions – excessive leave 21/12/2015
Australian Hotels
Association
Correspondence – excessive leave 24/12/2015
CFMEU – Mining and
Energy Division
Submissions – excessive leave 29/01/2016
MSS Security Submission – amended – Security Services
Industry Award 2010
30/01/2016
Australian Security Industry
Association
Submission – Security Services Industry
Award 2010
31/01/2016
Coal Mining Industry
Employer Group
Submission in reply – excessive leave 08/02/2016
CFMEU – Mining and
Energy Division
Submission in reply – excessive leave 19/02/2016
CFMEU – Mining and
Energy Division
Submission – model clause on EFT payment ` 22/02/2016
http://www.fwc.gov.au/documents/sites/awardsmodernfouryr/common/AM201447-sub-CFMEU-220216.pdf
http://www.fwc.gov.au/documents/sites/awardsmodernfouryr/common/AM201447-sub-CFMEU-190216.pdf
http://www.fwc.gov.au/documents/sites/awardsmodernfouryr/common/AM201447-sub-CMIEG-080216.pdf
http://www.fwc.gov.au/documents/sites/awardsmodernfouryr/common/AM201447-sub-ASIAL-010216.pdf
http://www.fwc.gov.au/documents/sites/awardsmodernfouryr/common/AM201447-sub-ASIAL-010216.pdf
http://www.fwc.gov.au/documents/sites/awardsmodernfouryr/common/AM201447-sub-MSSSecurity-300116.pdf
http://www.fwc.gov.au/documents/sites/awardsmodernfouryr/common/AM201447-sub-MSSSecurity-300116.pdf
http://www.fwc.gov.au/documents/sites/awardsmodernfouryr/common/AM201447-corr-CFMEU-290116.pdf
http://www.fwc.gov.au/documents/sites/awardsmodernfouryr/common/AM201447-corr-aha-241215.pdf
http://www.fwc.gov.au/documents/sites/awardsmodernfouryr/common/AM201447-sub-CMIEG-211215.pdf
[2016] FWCFB 3177
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Attachment 2—Annual leave – Annual leave model terms
The model term—15 September 2015 decision
[[2015] FWCFB 5771]
May 2016 plain language model terms
Excessive Annual Leave Accruals (extract from paragraph [172])
The model term sets out the excessive leave accrual provisions under
the following subclause and paragraph headings:
1.2 Eliminating excessive leave accruals
(a) Dealing with excessive leave accruals by agreement
(b) Employer may direct that leave be taken
(c) Employee may require that leave be granted
Excessive Annual Leave Accruals
The plain language draft sets out the excessive leave accrual provisions under the
following subclause headings:
29.6 Excessive leave accruals: general provision
29.7 Excessive leave accruals: direction by employer that leave be taken
29.8 Excessive leave accruals: request by employee for leave
Note: the plain language drafting guidelines do not allow for paragraph headings.
The model term—Excessive Annual Leave Accruals
Note: A dispute in relation to the operation of this clause may be dealt with in
accordance with the dispute resolution clause of this award [insert clause number]
This note does not appear in most recent plain language draft.
(Earlier versions included the following:
NOTE: A dispute under clause 29.6 may be dealt with in accordance with [insert
clause number]—Dispute resolution.)
1. Excessive Annual Leave Accruals
This clause contains provisions additional to the NES about taking paid annual
leave, to deal with excessive paid annual leave accruals.
29.6 Excessive leave accruals: general provision
NOTE: Clauses 29.6 to 29.8, contain provisions, additional to the National
Employment Standards, about the taking of paid annual leave as a way of dealing
with the accrual of excessive paid annual leave. See Part 2.2, Division 6 of the Fair
Work Act.
1.1 Definitions
Shiftworker means [insert definition]
Definition not replicated – definition of shiftworker moved to clause 29.2 in plain
language version.
https://www.fwc.gov.au/documents/decisionssigned/html/2015FWCFB5771.htm
[2016] FWCFB 3177
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The model term—15 September 2015 decision
[[2015] FWCFB 5771]
May 2016 plain language model terms
An employee has an excessive leave accrual if:
(a) the employee is not a shiftworker and has accrued more than eight
weeks’ paid annual leave; or
(b) the employee is a shiftworker and has accrued more than 10 weeks’
paid annual leave.
(a) An employee has an excessive leave accrual if the employee has
accrued more than 8 weeks’ paid annual leave (or 10 weeks’ paid
annual leave for a shiftworker, as defined by clause 29.2).
1.2 Eliminating excessive leave accruals
(a) Dealing with excessive leave accruals by agreement
Before an employer can direct that leave be taken under subclause
1.2(b) or an employee can give notice of leave to be granted under
subclause 1.2(c), the employer or employee must seek to confer and
must genuinely try to agree upon steps that will be taken to reduce or
eliminate the employee’s excessive leave accrual.
(b) If an employee has an excessive leave accrual, the employer or the
employee may seek to confer with the other and genuinely try to
reach agreement on how to reduce or eliminate the excessive leave
accrual.
See further paragraphs 29.7(a) and 29.8(a) below.
The plain language version has some additional introductory
paragraphs:
(c) Clause 29.7 sets out how an employer may direct an employee who
has an excessive leave accrual to take paid annual leave.
(d) Clause 29.8 sets out how an employee who has an excessive leave
accrual may require an employer to grant paid annual leave
requested by the employee.
(b) Employer may direct that leave be taken
(i) This subclause applies if an employee has an excessive leave
accrual
(ii) If agreement is not reached under subclause 1.2(a), the
employer may give a written direction to the employee to
take a period or periods of paid annual leave. Such a direction
must not:
29.7 Excessive leave accruals: direction by employer that leave be taken
(a) If an employer has genuinely tried to reach agreement with an
employee under clause 29.6(b) but agreement is not reached
(including because the employee refuses to confer), the employer
may direct the employee in writing to take one or more periods
of paid annual leave.
(b) However, a direction by the employer under paragraph (a):
result in the employee’s remaining accrued entitlement (i) is of no effect if it would result at any time in the
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to paid annual leave at any time being less than six
weeks (taking into account all other paid annual leave
that has been agreed, that the employee has been directed
to take or that the employee has given notice of under
subclause 1.2(c));
employee’s remaining accrued entitlement to paid annual
leave being less than 6 weeks when any other paid leave
arrangements (whether made under clause 29.6, 29.7 or
29.8 or otherwise agreed by the employer and employee)
are taken into account; and
require the employee to take any period of leave of less
than one week;
(ii) must not require the employee to take any period of paid
annual leave of less than one week; and
require the employee to take any period of leave
commencing less than eight weeks after the day the
direction is given to the employee;
require the employee to take any period of leave
commencing more than 12 months after the day the
direction is given to the employee; or
(iii) must not require the employee to take a period of paid
annual leave beginning less than 8 weeks, or more than 12
months, after the direction is given; and
be inconsistent with any leave arrangement agreed
between the employer and employee.
(iv) must not be inconsistent with any leave arrangement
agreed by the employer and employee.
(iii) An employee to whom a direction has been given under this
subclause may make a request to take paid annual leave as if
the direction had not been given
Paragraph 29.7(c) is shifted to the next page for comparative purposes.
(d) An employee to whom a direction has been given under
paragraph (a) may request to take a period of paid annual leave
as if the direction had not been given.
Note: The NES state that the employer must not
unreasonably refuse to agree to a request by the employee to
take paid annual leave.
Notes for clause 29.7 appear below 29.7(d):
NOTE 1: Paid annual leave arising from a request mentioned in paragraph (d) may
result in the direction ceasing to have effect. See clause 29.7(b)(i).
NOTE 2: Under section 88(2) of the Fair Work Act, the employer must not
unreasonably refuse to agree to a request by the employee to take paid annual
leave.
(iv) If leave is agreed after a direction is issued and the direction
would then result in the employee’s remaining accrued
This is already addressed under Clause 29.7(b)(i) above, which is replicated here
for comparative purposes:
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entitlement to paid annual leave at any time being less than
six weeks, the direction will be deemed to have been
withdrawn.
(v) is of no effect if it would result at any time in the
employee’s remaining accrued entitlement to paid annual
leave being less than 6 weeks when any other paid leave
arrangements (whether made under clause 29.6, 29.7 or
29.8 or otherwise agreed by the employer and employee)
are taken into account;
(v) The employee must take paid annual leave in accordance
with a direction complying with this subclause.
(c) The employee must take paid annual leave in accordance with a
direction under paragraph (a) that is in effect.
(c) Employee may require that leave be granted
(i) This subclause applies if an employee has had an excessive
leave accrual for more than six months and the employer has
not given a direction under subclause 1.2(b) that will
eliminate the employee’s excessive leave accrual.
(ii) If agreement is not reached under subclause 1.2(a), the
employee may give a written notice to the employer that the
employee wishes to take a period or periods of paid annual
leave. Such a notice must not:
29.8 Excessive leave accruals: request by employee for leave
(a) If an employee has genuinely tried to reach agreement with an
employer under clause 29.6(b) but agreement is not reached
(including because the employer refuses to confer), the employee
may give a written notice to the employer requesting to take one
or more periods of paid annual leave.
(b) However, an employee may only give a notice to the employer
under paragraph (a) if:
(i) the employee has had an excessive leave accrual for more
than 6 months at the time of giving the notice; and
(ii) the employee has not been given a direction under clause
29.7(a) that, when any other paid leave arrangements
(whether made under clause 29.6, 29.7 or 29.8 or
otherwise agreed by the employer and employee) are
taken into account, would eliminate the employee’s
excessive leave accrual.
(c) A notice given by an employee under paragraph (a) must not:
result in the employee’s remaining accrued entitlement
to paid annual leave at any time being less than six
weeks (taking into account all other paid annual leave
(i) if granted, result in the employee’s remaining accrued
entitlement to paid annual leave being at any time less
than 6 weeks when any other paid leave arrangements
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that has been agreed, that the employee has been directed
to take or that the employee has given notice of under
this subclause);
(whether made under clause 29.6, 29.7 or 29.8 or
otherwise agreed by the employer and employee) are
taken into account; or
provide for the employee to take any period of leave of
less than one week;
(ii) provide for the employee to take any period of paid
annual leave of less than one week; or
provide for the employee to take any period of leave
commencing less than eight weeks after the day the
notice is given to the employer;
provide for the employee to take any period of leave
commencing more than 12 months after the day the
notice is given to the employer; or
(iii) provide for the employee to take a period of paid annual
leave beginning less than 8 weeks, or more than 12
months, after the notice is given; or
be inconsistent with any leave arrangement agreed
between the employer and employee.
(iv) be inconsistent with any leave arrangement agreed by the
employer and employee.
(iii) The maximum amount of leave that an employee can give
notice of under this subclause is: four weeks’ leave in any 12
month period if the employee is not a shiftworker, and five
weeks’ leave in any 12 month period if the employee is a
shiftworker.
(d) An employee is not entitled to request by a notice under
paragraph (a) more than 4 weeks’ paid annual leave (or 5 weeks’
paid annual leave for a shiftworker, as defined by clause 29.2) in
any period of 12 months.
(iv) The employer must grant the employee paid annual leave in
accordance with a notice complying with this subclause.
(e) The employer must grant paid annual leave requested by a notice
under paragraph (a).
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Annual leave in advance
Extract from paragraph [23]
Annual leave in advance
1.
1.1 An employer and employee may agree to the employee taking a period of
paid annual leave in advance of the employee accruing an entitlement to
such leave provided that the agreement meets the following requirements:
29.4 Annual leave in advance
(a) An employee and employer may agree in writing to the
employee taking a period of paid annual leave before the
employee has accrued an entitlement to the leave.
(b) An agreement must:
(a) it is in writing and signed by the employee and employer; (ii) be signed by the employee and employer.
(b) it states the amount of leave to be taken in advance and the date
on which the leave is to commence; and
(i) state the amount of leave to be taken and when it is to be
taken; and
(c) it is retained as an employee record. (c) The employer must keep a copy of any agreement under clause
29.4 as an employee record.
1.2 This subclause applies if an employee takes a period of paid annual leave
in advance pursuant to an agreement made in accordance with clause 1.1.
If the employee’s employment is terminated before they have accrued all
of the entitlement to paid annual leave which they have taken then the
employer may deduct an amount equal to the difference between the
employee’s accrued annual leave entitlement and the leave taken in
advance, from any monies due to the employee on termination.
(d) If, on the termination of the employee’s employment, the
employee has not accrued an entitlement to a period of paid
annual leave already taken in accordance with an agreement
under clause 29.4, the employer may deduct from any money due
to the employee on the termination an amount equal to the
amount already paid to the employee in respect of that annual
leave taken.
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Cashing Out of Annual Leave
Extract from paragraph [16]
Cashing out of annual leave
1.
1.1 Paid annual leave must not be cashed out except in accordance with this
clause.
29.9 Cashing out of annual leave
(a) Paid annual leave must not be cashed out except in accordance
with an agreement under clause 29.9.
1.2 An employer and an employee may agree to the employee cashing out a
particular amount of the employee’s accrued paid annual leave provided
that the following requirements are met:
(a) each cashing out of a particular amount of accrued paid annual
leave must be by a separate agreement between the employer
and the employee which must:
(b) Each cashing out of a particular amount of paid annual leave
must be the subject of a separate agreement under clause 29.9.
(c) An employer and an employee may agree in writing to the
cashing out of a particular amount of accrued paid annual leave
by the employee.
(d) An agreement under clause 29.9 must state:
(i) be in writing and retained as an employee record; Paragraph (i) is replicated here for comparative purposes:
(i) The employer must keep a copy of any agreement under clause
29.9 as an employee record.
(ii) state the amount of accrued leave to be cashed out and
the payment to be made to the employee;
(i) the amount of leave to be cashed out and the payment to
be made to the employee for it; and
(iii) state the date on which the payment is to be made, and (ii) when the payment is to be made.
(iv) be signed by the employer and employee and, if the
employee is under 18 years of age, the employee’s
parent or guardian;
(e) An agreement under clause 29.9 must be signed by the employer
and employee and, if the employee is under 18 years of age, by
the employee’s parent or guardian.
(b) the employee must be paid at least the full amount that would
have been payable to the employee had the employee taken the
leave at the time that it is cashed out;
(f) The payment must not be less than the amount that would have
been payable had the employee taken the leave at the time the
payment is made.
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(c) paid annual leave must not be cashed out if the cashing out
would result in the employee’s remaining accrued entitlement to
paid annual leave being less than four weeks; and
(g) An agreement must not result in the employee’s remaining
accrued entitlement to paid annual leave being less than 4 weeks.
(d) employees may not cash out more than two weeks’ accrued
annual leave in any 12 month period.
(h) The maximum amount of accrued paid annual leave that may be
cashed out in any period of 12 months is 2 weeks.
Note 1: Under s.344 of the Fair Work Act 2009, an employer must not exert undue
influence or undue pressure on an employee to make an agreement to cash out paid
annual leave under this award clause.
NOTE 1: Under section 344 of the Fair Work Act, an employer must not exert
undue influence or undue pressure on an employee to make, or not make, an
agreement under clause 29.9.
Note 2: Under s.345 of the Fair Work Act 2009, a person must not knowingly or
recklessly make a false or misleading representation about an employee’s
workplace rights under this award clause.
NOTE 2: Under section 345(1) of the Fair Work Act, a person must not knowingly
or recklessly make a false or misleading representation about the workplace rights
of another person under clause 29.9.
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Attachment 3—Annotated version of the May 2016 plain language
terms
This attachment identifies changes to the model terms from the September 2015 model terms
(Note minor changes including numbering and formatting have not been marked)
1.1 Annual leave in advance
(a) An employer and employee may agree in writing to the employee taking a
period of paid annual leave in advance of the employee accruing before the
employee has accrued an entitlement to such the leave.
(b) provided that the agreement meets the following requirements An agreement must:
(i) state the amount of leave to be taken in advance and the date on which
the leave is to commence and when it is to be taken; and
(ii) it is in writing and be signed by the employere and employeer.
(c) it is retained as an employee record The employer must keep a copy of any
agreement under clause 1.1(b) as an employee record.
(d) This subclause applies if an employee takes a period of paid annual leave in
advance pursuant to an agreement made in accordance with clause 1.1. If, the
employee’s employment is terminated before they have accrued all of the
entitlement to paid on the termination of the employee’s employment, the
employee has not accrued an entitlement to a period of paid annual leave which
they have already taken in accordance with an agreement under clause 1.1, then
the employer may deduct from any money due to the employee on termination
an amount equal to the difference between the employee’s accrued annual
leave entitlement and the leave taken in advance, from any monies due to the
employee on termination the amount already paid to the employee in respect of
that period annual leave taken.
1.2 Cashing out of annual leave
(a) Paid annual leave must not be cashed out except in accordance with this clause
an agreement under clause 1.2.
(b) Each cashing out of a particular amount of accrued paid annual leave must be
by a the subject of a separate agreement between the employer and employee
under clause 1.2.
(c) An employer and an employee may agree in writing to the employee cashing
out of a particular amount of the employee’s accrued paid annual leave by the
employee provided the following requirements are met:.
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(d) An agreement under clause 1.2 must state:
(i) state the amount of accrued leave to be cashed out and the payment to be
made to the employee for it; and
(ii) state the date on which when the payment is to be made; and
(e) An agreement under clause 1.2 must be signed by the employer and employee
and, if the employee is under 18 years of age, by the employee’s parent or
guardian.
(f) the employee must be paid at least The payment must not be less than the full
amount that would have been payable to the employee had the employee taken
the leave at the time the payment is cashed out made.
(g) paid annual leave must not be cashed out if the cashing out would An
agreement must not result in the employee’s remaining accrued entitlement to
paid annual leave being less than four 4 weeks.
(h) employees must not cash out more than two weeks’ accrued annual leave in
any 12 month period The maximum amount of accrued paid annual leave that
may be cashed out in any period of 12 months is 2 weeks.
(i) The employer must keep a copy of any agreement under clause 1.2 as an
employee record.
Note 1: Under section 344 of the Act, an employer must not exert undue influence or
undue pressure on an employee to make, or not make, an agreement to cash out paid
annual leave under this award clause under clause 1.2.
Note 2: Under section 345(1) of the Act, a person must not knowingly or recklessly
make a false or misleading representation about an employee’s workplace rights
under this award clause the workplace rights of another person under clause 1.2.
1.3 Excessive Annual Leave Accruals: general provisions
Note: A dispute in relation to the operation of this clause may be dealt with in
accordance with the dispute resolution clause of this award [insert clause number]
1. Excessive Annual Leave Accruals
This Clauses 1.3 to 1.5 contain provisions additional to the NES National Employment
Standards, about the taking of paid annual leave, to as a way of dealing with the
accrual of excessive paid annual leave accruals. See Part 2.2, Division 6 of the Fair
Work Act.
1.1 Definitions
Shiftworker means [insert definition]
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(a) An employee has an excessive leave accrual if the employee is not a
shiftworker and has accrued more than eight 8 weeks’ paid annual leave; or (or
10 weeks’ paid annual leave for a shiftworker, as defined by clause 1.x).
(b) the employee is a shiftworker and has accrued more than 10 weeks’ paid
annual leave
(b) If an employee has an excessive leave accrual, the employer or the employee
may seek to confer with the other and genuinely try to reach agreement on how
to reduce or eliminate the excessive leave accrual.
(c) Clause 1.4 sets out how an employer may direct an employee who has an
excessive leave accrual to take paid annual leave.
(d) Clause 1.5 sets out how an employee who has an excessive leave accrual may
require an employer to grant paid annual leave requested by the employee.
1.2 Eliminating excessive leave accruals
(a) Dealing with excessive leave accruals by agreement
Before an employer can direct that leave be taken under subclause 1.2(b) or an
employee can give notice of leave to be granted under subclause 1.2(c), the
employer or employee must seek to confer and must genuinely try to agree
upon steps that will be taken to reduce or eliminate the employee’s excessive
leave accrual.
(b) Employer may direct that leave be taken
(i) This subclause applies if an employee has an excessive leave
accrual.
1.4 Excessive leave accruals: direction by employer that leave be taken
If agreement is not reached under subclause 1.2(a), the employer may
give a written direction to the employee to take a period or periods of
paid annual leave.
(a) If an employer has genuinely tried to reach agreement with an employee under
clause 29.6(b) but agreement is not reached (including because the employee
refuses to confer), the employer may direct the employee in writing to take one
or more periods of paid annual leave.
Such a direction must not:
result in the employee’s remaining accrued entitlement to paid annual
leave at any time being less than six weeks (taking into account all other
paid annual leave that has been agreed, that the employee has been
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directed to take or that the employee has given notice of under subclause
1.2(c));
(b) However, a direction by the employer under paragraph (a):
(i) is of no effect if it would result at any time in the employee’s remaining
accrued entitlement to paid annual leave being less than 6 weeks when
any other paid leave arrangements (whether made under clause 1.3, 1.4
or 1.5 or otherwise agreed by the employer and employee) are taken into
account; and
(ii) must not require the employee to take any period of paid annual leave of
less than one week;
(iii) must not require the employee to take any period of paid annual leave
commencing beginning less than eight 8 weeks or more than 12 months
after the day the direction is given to the employee;
require the employee to take any period of leave
commencing more than 12 months after the day the
direction is given to the employee; or
(iv) must not be inconsistent with any leave arrangement agreed between the
employer and employee.
(c) The employee must take paid annual leave in accordance with a direction under
paragraph (a) that is in effect.
(d) An employee to whom a direction has been given under this subclause
paragraph (a) may make a request to take a period of paid annual leave as if the
direction had not been given.
NOTE 1: Paid annual leave arising from a request mentioned in paragraph (d) may result in
the direction ceasing to have effect. See clause 1.4(b)(i).
NOTE 2: The NES state that Under section 88(2) of the Fair Work Act, the employer must
not unreasonably refuse to agree to a request by the employee to take paid annual leave.
(iv) If leave is agreed after a direction is issued and the direction would then
result in the employee’s remaining accrued entitlement to paid annual
leave at any time being less than six weeks, the direction will be deemed
to have been withdrawn.
(v) The employee must take paid annual leave in accordance with a direction
complying with this subclause.
(c) Employee may require that leave be granted
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1.5 Excessive leave accruals: request by employee for leave
(i) This subclause applies if an employee has had an excessive leave accrual for
more than six months and the employer has not given a direction under
subclause 1.2(b) that will eliminate the employee’s excessive leave accrual.
If agreement is not reached If an employee has genuinely tried to reach agreement
with an employer under subclause 1.3(b), but agreement is not reached (including
because the employer refuses to confer), the employee may give a written notice to the
employer that the employee wishes requesting to take a period or one or more periods
of paid annual leave.
(b) However, an employee may only give a notice to the employer under
paragraph (a) if:
(i) the employee has had an excessive leave accrual for more than 6 months
at the time of giving the notice; and
(ii) the employee has not been given a direction under clause 1.4(a) that,
when any other paid leave arrangements (whether made under clause 1.3,
1.4 or 1.5 or otherwise agreed by the employer and employee) are taken
into account, would eliminate the employee’s excessive leave accrual.
(c) Such a notice A notice given by an employee under paragraph (a) must not:
(i) if granted, result in the employee’s remaining accrued entitlement to paid
annual leave being at any time less than six 6 weeks (taking when any
other paid leave arrangements (whether made under clause 1.3, 1.4 or 1.5
or otherwise agreed by the employer and employee) are taken into
account all other paid annual leave that has been agreed, that the
employee has been directed to take or that the employee has given notice
of under this subclause); or
(ii) provide for the employee to take any period of paid annual leave of less
than one week;
(iii) provide for the employee to take any period of paid annual leave
commencing beginning less than eight 8 weeks or more than 12 months
after the day the notice is given to the employee; or
provide for the employee to take any period of leave
commencing more than 12 months after the day the notice
is given to the employer; or
(iv) be inconsistent with any leave arrangement agreed between the employer
and employee.
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(d) The maximum amount of leave that an employee can give notice of under this
subclause is: four An employee is not entitled to request by a notice under
paragraph (a) more than 4 weeks’ paid annual leave in any 12 month period if
the employee is not a shiftworker, and ( or 5 five weeks’ paid annual leave for
a shiftworker, as defined by clause 1.x) if the employee is a shiftworker in any
period of 12 months period.
(e) The employer must grant the employee paid annual leave in accordance with
requested by a notice under paragraph (a) complying with this subclause.
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Attachment 4—Plain language re-drafts of the annual leave model
terms
1.1 Annual leave in advance
(a) An employer and employee may agree in writing to the employee taking a
period of paid annual leave before the employee has accrued an entitlement to
the leave.
(b) An agreement must:
(i) state the amount of leave to be taken in advance and when it is to be
taken; and
(ii) be signed by the employer and employee.
(c) The employer must keep a copy of any agreement under clause 1.1 as an
employee record.
(d) If, on the termination of the employee’s employment, the employee has not
accrued an entitlement to a period of paid annual leave already taken in
accordance with an agreement under clause 1.1, the employer may deduct from
any money due to the employee on termination an amount equal to the amount
already paid to the employee in respect of that annual leave taken.
1.2 Cashing out of annual leave
(a) Paid annual leave must not be cashed out except in accordance with an
agreement under clause 1.2.
(b) Each cashing out of a particular amount of paid annual leave must be the
subject of a separate agreement under clause 1.2.
(c) An employer and an employee may agree in writing to the cashing out of a
particular amount of accrued paid annual leave by the employee.
(d) An agreement under clause 1.2 must state:
(i) the amount of leave to be cashed out and the payment to be made to the
employee for it; and
(ii) when the payment is to be made.
(e) An agreement under clause 1.2 must be signed by the employer and employee
and, if the employee is under 18 years of age, by the employee’s parent or
guardian.
(f) The payment must not be less than the amount that would have been payable
had the employee taken the leave at the time the payment is made.
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(g) An agreement must not result in the employee’s remaining accrued entitlement
to paid annual leave being less than 4 weeks.
(h) The maximum amount of accrued paid annual leave that may be cashed out in
any period of 12 months is 2 weeks.
(i) The employer must keep a copy of any agreement under clause 1.2 as an
employee record.
Note 1: Under section 344 of the Act, an employer must not exert undue influence or
undue pressure on an employee to make, or not make, an agreement under clause 1.2.
Note 2: Under section 345(1) of the Act, a person must not knowingly or recklessly
make a false or misleading representation about the workplace rights of another
person under clause 1.2.
1.3 Excessive leave accruals: general provision
NOTE: Clauses 1.3 to 1.5 contain provisions, additional to the National Employment
Standards, about the taking of paid annual leave as a way of dealing with the
accrual of excessive paid annual leave. See Part 2.2, Division 6 of the Fair
Work Act.
(a) An employee has an excessive leave accrual if the employee has accrued more
than 8 weeks’ paid annual leave (or 10 weeks’ paid annual leave for a
shiftworker, as defined by clause 1.x).
(b) If an employee has an excessive leave accrual, the employer or the employee
may seek to confer with the other and genuinely try to reach agreement on how
to reduce or eliminate the excessive leave accrual.
(c) Clause 1.4 sets out how an employer may direct an employee who has an
excessive leave accrual to take paid annual leave.
(d) Clause 1.5 sets out how an employee who has an excessive leave accrual may
require an employer to grant paid annual leave requested by the employee.
1.4 Excessive leave accruals: direction by employer that leave be taken
(a) If an employer has genuinely tried to reach agreement with an employee under
clause 1.3(b) but agreement is not reached (including because the employee
refuses to confer), the employer may direct the employee in writing to take one
or more periods of paid annual leave.
(b) However, a direction by the employer under paragraph (a):
(i) is of no effect if it would result at any time in the employee’s remaining
accrued entitlement to paid annual leave being less than 6 weeks when
any other paid leave arrangements (whether made under clause 1.3, 1.4
or 1.5 or otherwise agreed by the employer and employee) are taken into
account; and
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(ii) must not require the employee to take any period of paid annual leave of
less than one week; and
(iii) must not require the employee to take a period of paid annual leave
beginning less than 8 weeks, or more than 12 months, after the direction
is given; and
(iv) must not be inconsistent with any leave arrangement agreed by the
employer and employee.
(c) The employee must take paid annual leave in accordance with a direction under
paragraph (a) that is in effect.
(d) An employee to whom a direction has been given under paragraph (a) may
request to take a period of paid annual leave as if the direction had not been
given.
NOTE 1: Paid annual leave arising from a request mentioned in paragraph (d) may result in
the direction ceasing to have effect. See clause 1.4(b)(i).
NOTE 2: Under section 88(2) of the Fair Work Act, the employer must not unreasonably
refuse to agree to a request by the employee to take paid annual leave.
1.5 Excessive leave accruals: request by employee for leave
(a) If an employee has genuinely tried to reach agreement with an employer under
clause 1.3(b) but agreement is not reached (including because the employer
refuses to confer), the employee may give a written notice to the employer
requesting to take one or more periods of paid annual leave.
(b) However, an employee may only give a notice to the employer under
paragraph (a) if:
(i) the employee has had an excessive leave accrual for more than 6 months
at the time of giving the notice; and
(ii) the employee has not been given a direction under clause 1.4(a) that,
when any other paid leave arrangements (whether made under clause 1.3,
1.4 or 1.5 or otherwise agreed by the employer and employee) are taken
into account, would eliminate the employee’s excessive leave accrual.
(c) A notice given by an employee under paragraph (a) must not:
(i) if granted, result in the employee’s remaining accrued entitlement to paid
annual leave being at any time less than 6 weeks when any other paid
leave arrangements (whether made under clause 1.3, 1.4 or 1.5 or
otherwise agreed by the employer and employee) are taken into account;
or
(ii) provide for the employee to take any period of paid annual leave of less
than one week; or
(iii) provide for the employee to take a period of paid annual leave beginning
less than 8 weeks, or more than 12 months, after the notice is given; or
[2016] FWCFB 3177
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(iv) be inconsistent with any leave arrangement agreed by the employer and
employee.
(d) An employee is not entitled to request by a notice under paragraph (a) more
than 4 weeks’ paid annual leave (or 5 weeks’ paid annual leave for a
shiftworker, as defined by clause 1.x) in any period of 12 months.
(e) The employer must grant paid annual leave requested by a notice under
paragraph (a).
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AGREEMENT TO CASH OUT ANNUAL LEAVE
Name of employee: _____________________________________________
Name of employer: _____________________________________________
The employer and employee agree to the employee cashing out a particular amount of
the employee’s accrued paid annual leave:
The amount of leave to be cashed out is: ____ hours/days
The payment to be made to the employee for the leave is: $_______ subject to deduction of
income tax/after deduction of income tax (strike out where not applicable)
The payment will be made to the employee on: ___/___/20___
Signature of employee: ________________________________________
Date signed: ___/___/20___
Name of employer
representative: ________________________________________
Signature of employer
representative: ________________________________________
Date signed: ___/___/20___
Include if the employee is under 18 years of age:
Name of parent/guardian: ________________________________________
Signature of parent/guardian: ________________________________________
Date signed: ___/___/20___
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AGREEMENT TO ANNUAL LEAVE IN ADVANCE
Name of employee: _____________________________________________
Name of employer: _____________________________________________
The employer and employee agree that the employee will take a period of paid annual
leave before the employee has accrued an entitlement to the leave:
The amount of leave to be taken in advance is: ____ hours/days
The leave will commence on: ___/___/20___
Signature of employee: ________________________________________
Date signed: ___/___/20___
Name of employer
representative: ________________________________________
Signature of employer
representative: ________________________________________
Date signed: ___/___/20___
[If the employee is under 18 years of age - include:]
I agree that:
if, on termination of the employee’s employment, the employee has not accrued an
entitlement to a period of paid annual leave already taken under this agreement,
then the employer may deduct from any money due to the employee on termination
an amount equal to the amount already paid to the employee in respect of that
annual leave taken.
Name of parent/guardian: ________________________________________
Signature of parent/guardian: ________________________________________
Date signed: ___/___/20___
[2016] FWCFB 3177
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Attachment 5—List of awards that Ai Group submit should not
be varied to insert the model excessive leave term
(see paragraph [10] of Ai Group’s Further Submission of 7 December 2015)
Award title
1. Aboriginal Community Controlled Health Services Award 2010
*2. Aircraft Cabin Crew Award 2010
3. Airline Operations—Ground Staff Award 2010
*4. Airport Employees Award 2010
5. Alpine Resorts Award 2010
*6. Aluminium Industry Award 2010
7. Banking, Finance and Insurance Award 2010
*8. Business Equipment Award 2010
*9. Car Parking Award 2010
*10. Cemetery Industry Award 2010
11. Clerks—Private Sector Award 2010
*12. Coal Export Terminals Award 2010
13. Commercial Sales Award 2010
*14. Concrete Products Award 2010
*15. Contract Call Centres Award 2010
16. Electrical Power Industry Award 2010
*17. Electrical, Electronic and Communications Contracting Award 2010
*18. Food, Beverage and Tobacco Manufacturing Award 2010
19. General Retail Industry Award 2010
*20. Graphic Arts, Printing and Publishing Award 2010
*21. Horticulture Award 2010
22. Hospitality Industry (General) Award 2010
23. Hydrocarbons Industry (Upstream) Award 2010
*24. Joinery and Building Trades Award 2010
25. Legal Services Award 2010
26. Local Government Industry Award 2010
*27. Manufacturing and Associated Industries and Occupations Award 2010
*28. Marine Tourism and Charter Vessels Award 2010
29. Mining Industry Award 2010;
*30. Nursery Award 2010
*31. Oil Refining and Manufacturing Award 2010
32. Passenger Vehicle Transportation Award 2010
*33. Pastoral Award 2010
*34. Pest Control Industry Award 2010
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Award title
*35. Pharmaceutical Industry Award 2010
36. Port Authorities Award 2010
*37. Poultry Processing Award 2010
38. Rail Industry Award 2010
39. Real Estate Industry Award 2010
40. Registered and Licensed Clubs Award 2010
41. Restaurant Industry Award 2010
*42. Road Transport (Long Distance Operations) Award 2010
*43. Road Transport and Distribution Award 2010
44. Salt Industry Award 2010
*45. Seafood Processing Award 2010
46. Sugar Industry Award 2010
47. Supported Employment Services Award 2010
*48. Telecommunications Services Award 2010
49. Textile, Clothing, Footwear and Associated Industries Award 2010
*50. Timber Industry Award 2010
*51. Transport (Cash in Transit) Award 2010
*52. Vehicle Manufacturing, Repair, Services and Retail Award 2010
*53. Water Industry Award 2010
*54. Wine Industry Award 2010
55. Wool Storage, Sampling and Testing Award 2010
* Modern awards the Employer Group proposes to be varied to include the new subclause relating
to excessive annual leave.
These awards are the subject of award specific submissions by employer organisations other
than Ai Group.
[2016] FWCFB 3177
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Attachment 6—Awards into which various provisions are to be inserted
Code Award title Cashing
out
Leave in
advance
EFT Excessive
leave
MA000115 Aboriginal Community Controlled Health Services
Award 2010
MA000018 Aged Care Award 2010
MA000046 Air Pilots Award 2010 Def
MA000047 Aircraft Cabin Crew Award 2010 Def
MA000048 Airline Operations—Ground Staff Award 2010
MA000049 Airport Employees Award 2010
MA000092 Alpine Resorts Award 2010
MA000060 Aluminium Industry Award 2010
MA000098 Ambulance and Patient Transport Industry Award
2010
Conf
MA000080 Amusement, Events and Recreation Award 2010
MA000118 Animal Care and Veterinary Services Award 2010
MA000114 Aquaculture Industry Award 2010 Conf
MA000079 Architects Award 2010 Conf
MA000054 Asphalt Industry Award 2010 Conf
MA000019 Banking, Finance and Insurance Award 2010
MA000001 Black Coal Mining Industry Award 2010 Conf
MA000078 Book Industry Award 2010
MA000091 Broadcasting and Recorded Entertainment Award
2010
Conf
MA000020 Building and Construction General On-site Award
2010
MA000021 Business Equipment Award 2010
MA000095 Car Parking Award 2010
MA000055 Cement and Lime Award 2010 Conf
MA000070 Cemetery Industry Award 2010
MA000120 Children’s Services Award 2010
MA000022 Cleaning Services Award 2010
MA000002 Clerks—Private Sector 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
MA000085 Dredging Industry Award 2010 FH FH FH
MA000096 Dry Cleaning and Laundry Industry Award 2010
MA000075 Educational Services (Post-Secondary Education)
Award 2010
MA000076 Educational Services (Schools) General Staff Award
2010
MA000077 Educational Services (Teachers) Award 2010 FB FB FB
MA000088 Electrical Power Industry Award 2010
MA000025 Electrical, Electronic and Communications
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Code Award title Cashing
out
Leave in
advance
EFT Excessive
leave
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 Conf
MA000061 Gas Industry Award 2010 Conf
MA000004 General Retail Industry Award 2010
MA000026 Graphic Arts, Printing and Publishing Award 2010
MA000005 Hair and Beauty Industry Award 2010
MA000027 Health Professionals and Support Services Award
2010
MA000006 Higher Education Industry—Academic Staff—Award
2010
FB FB FB
MA000007 Higher Education Industry—General Staff—Award
2010
FB FB FB
MA000008 Horse and Greyhound Training Award 2010 Conf
MA000028 Horticulture Award 2010 PV
MA000009 Hospitality Industry (General) Award 2010 PV
MA000064 Hydrocarbons Field Geologists Award 2010
MA000062 Hydrocarbons Industry (Upstream) Award 2010 PV
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
MA000050 Marine Towage Award 2010 FH FH FH
MA000086 Maritime Offshore Oil and Gas Award 2010 FH FH FH
MA000030 Market and Social Research Award 2010
MA000059 Meat Industry Award 2010
MA000031 Medical Practitioners Award 2010
MA000011 Mining Industry Award 2010 PV
MA000104 Miscellaneous Award 2010
MA000032 Mobile Crane Hiring Award 2010 Conf
MA000033 Nursery Award 2010 Conf
MA000034 Nurses Award 2010 Conf
MA000072 Oil Refining and Manufacturing Award 2010 PV
MA000063 Passenger Vehicle Transportation Award 2010
MA000035 Pastoral Award 2010 PV
MA000097 Pest Control Industry Award 2010
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Code Award title Cashing
out
Leave in
advance
EFT Excessive
leave
MA000069 Pharmaceutical Industry Award 2010
MA000012 Pharmacy Industry Award 2010
MA000036 Plumbing and Fire Sprinklers Award 2010
MA000051 Port Authorities Award 2010
MA000052 Ports, Harbours and Enclosed Water Vessels Award
2010
FH FH FH
MA000074 Poultry Processing Award 2010
MA000057 Premixed Concrete Award 2010 Conf
MA000108 Professional Diving Industry (Industrial) Award 2010 FH FH FH
MA000109 Professional Diving Industry (Recreational) Award
2010
MA000065 Professional Employees Award 2010
MA000037 Quarrying Award 2010 Conf
MA000013 Racing Clubs Events Award 2010 Conf
MA000014 Racing Industry Ground Maintenance Award 2010 Conf
MA000015 Rail Industry Award 2010
MA000106 Real Estate Industry Award 2010
MA000058 Registered and Licensed Clubs Award 2010 PV
MA000119 Restaurant Industry Award 2010 PV
MA000039 Road Transport (Long Distance Operations) Award
2010
MA000038 Road Transport and Distribution Award 2010
MA000107 Salt Industry Award 2010 PV
MA000068 Seafood Processing Award 2010
MA000122 Seagoing Industry Award 2010 FH FH FH
MA000016 Security Services Industry Award 2010 FH Conf
MA000040 Silviculture Award 2010 Conf
MA000100 Social, Community, Home Care and Disability
Services Industry Award 2010
MA000082 Sporting Organisations Award 2010 Conf
MA000121 State Government Agencies Award 2010
MA000053 Stevedoring Industry Award 2010
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
MA000017 Textile, Clothing, Footwear and Associated Industries
Award 2010
FH
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
MA000043 Waste Management Award 2010
MA000113 Water Industry Award 2010
MA000090 Wine Industry Award 2010 PV
MA000044 Wool Storage, Sampling and Testing Award 2010
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Code Award title Cashing
out
Leave in
advance
EFT Excessive
leave
112 113 51 80
FB The annual leave provisions in these awards have been referred to the Full Bench dealing with
other substantive issues in AM2015/6 (see Statement of 23 November 2015 [2015] FWCFB
8030)
FH A further hearing in respect of these awards will be held on 1 July 2016.
PV Provisional views have been expressed in respect of these awards and interested parties have
been provided with an opportunity to comment. If any expressions of interest are received,
directions will be issued for the filing of further submissions and evidence. If no expressions
of interest are received by the specified date the awards will be varied to insert the excessive
annual leave accruals model term.
Conf: A conference is to be held in respect of these awards (see paragraph [123]) of the decision.
Def: The insertion of the excessive leave model term in these 2 awards will be deferred until the
second half of this year, see paragraphs [124]–[125] of the decision.
