1
Fair Work Act 2009
s.156 - 4 yearly review of modern awards
4 yearly review of modern awards – Plain language
(AM2016/15)
JUSTICE ROSS, PRESIDENT MELBOURNE, 15 JULY 2016
4 yearly review of modern awards – Plain language drafting
1. Introduction
[1] Further to the Statements issued on 6 May 20161 and 10 May 20162, the Fair Work
Commission (the Commission) intends to undertake further plain language re-drafting of
modern awards as part of the 4 yearly review of modern awards (the Review).
[2] The Commission has undertaken a Plain language modern award pilot (the Pilot) to
produce a plain language draft of the Pharmacy Industry Award 2010 (Pharmacy Industry
Award). Further, the Commission has adopted a plain language drafting approach to new
provisions developed as part of the Review, in particular the preparation of plain language
model terms in respect of:
Annual leave in advance
Cashing out of annual leave
Excessive annual leave accruals3
Time off instead of payment for overtime4
[3] A Full Bench has been constituted to oversee the Commission’s plain language
projects and the process has been assigned a matter number—AM2016/15. A webpage has
been established on the Commission’s website to consolidate all materials related to plain
language modern awards. Award-specific materials will also be posted to relevant award stage
webpages.
[4] This statement outlines how the Commission plans to consult on the plain language
drafts generated from the Pilot and the Commission’s plans for further plain language re-
drafting to occur as part of the Review.
[2016] FWC 4756
STATEMENT
E AUSTRALIA FairWork Commission
https://www.fwc.gov.au/awards-and-agreements/modern-award-reviews/4-yearly-review/am201615-plain-language-re-drafting
[2016] FWC 4756
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2. Components of the plain language modern awards project
[5] During the re-drafting of the Pharmacy Industry Award, the Commission has been
mindful of the need to treat award-specific terms in a different way to general terms which
have broader application across modern awards. The Statement of 29 October 20155 specified
the clauses of the Pharmacy Industry Award that were treated as award-specific (referred to as
Part A) and those of general application (referred to as Part B). The Part B provisions can be
further categorised as follows:
Common provisions are a range of clauses and notes that have been generated
during the Review and inserted into most exposure drafts such as machinery type
provisions and simple leave provisions. Examples of common provisions include
but are not limited to:
the National Employment Standards and this award;
the Facilitative provisions framework; and
Personal/carer’s leave and compassionate leave (where such a clause does not
have any award-specific content).
Standard provisions that have arisen from previous test cases and are generally
replicated in the same form across most awards. The standard provisions are:
Award flexibility;
Consultation;
Dispute resolution;
Termination of employment; and
Redundancy.
[6] Paragraphs [7] to [34] outlines how the Commission will finalise the plain language
re-drafting of the Pharmacy Industry Award; the redrafting of the common and standard
provisions set out above; and the plain language review of four additional modern awards.
(i) Plain language draft Pharmacy Industry Award—award-specific provisions
[7] A report from the Pilot published on 21 April 2016 attached a plain language draft of
the Pharmacy Industry Award. This draft comprised plain language versions of the terms in
the body of the award, excluding some standard clauses, plus two schedules to the award that
were categorised as ‘award-specific’. The Part A and Part B clauses were treated differently
during the Pilot. Part A clauses were subject to consultation with interested persons and user-
testing with Community Pharmacy employers and employees. Part B provisions have not yet
been the subject of consultation and are discussed further at paragraphs [12] to [19].
[8] Following the publication of the report from the Pilot, a conference was held on
27 April 2016 with organisations with an interest in the Pharmacy Industry Award
(AM2014/209). Amended Directions were issued on 16 May 2016 inviting interested persons
to comment on the plain language draft clauses published in the report. Parties were also
given the option to comment on clauses that are common to other modern awards and
http://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014209-dirs-270416.pdf
https://www.fwc.gov.au/sites/awardsmodernfouryr/AM2014209-report-plainlanguage-FWC-210416.pdf
https://www.fwc.gov.au/sites/awardsmodernfouryr/2015fwc7467.pdf
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exposure drafts that were published with the report from the Pilot. Parties were also directed
to identify any substantive issues relating to the Pharmacy Industry Award that remain to be
resolved.
[9] The parties to AM2014/209 elected to comment only on the award-specific clauses of
the Pharmacy Industry Award and not on the plain language draft clauses that are common to
other awards as part of AM2014/209. It was generally agreed that the common clauses should
be subject to broader consultation.
[10] A conference was held on 8 June 2016 to consider the process for finalising the plain
language draft Pharmacy Industry Award. Interested parties agreed to a process to deal with
all Pharmacy Industry Award technical and drafting issues, including publication of a revised
exposure draft in July 2016; written submissions on the revised exposure draft; a conference
with all interested parties; and then referral of the plain language exposure draft to the Plain
Language Full Bench for determination.
[11] Draft directions will be issued when the revised exposure draft is published setting out
a process and timetable for finalising the plain language draft Pharmacy Industry Award. The
indicative timetable set out at Attachment A provides an overview of the proposed timings for
consultation.
(ii) Plain language draft standard clauses
[12] The Commission will shortly commence a consultation process on plain language
draft clauses that appear in most or all awards, referred to as standard clauses. The clauses
listed in paragraph [5] are standard clauses and will be dealt with by the Plain Language Full
Bench.
[13] Plain language re-drafts of the standard clauses will be published shortly. An
information note will accompany the plain language re-drafts to identify the modern awards
that contain the model terms and the awards that contain different or additional provisions to
the model terms. The indicative timetable at Attachment A outlines the proposed consultation
process.
[14] The Commission intends to invite written submissions and submissions in reply from
interested parties on the plain language draft standard terms. Written submissions will be
summarised and a conference will be held with interested persons. Further consultation
processes may be established by the Full Bench as required. Qualitative research and testing
with award users may be required to assist drafters to refine and revise drafts following
consultation with interested persons.
[15] Following a decision on the model terms, plain language standard clauses will be
inserted into exposure drafts as they are periodically revised during the Award stage of the
Review.
[16] Where an award contains a provision that differs from the standard term or contains
allied provisions (e.g. a dispute resolution training term), these terms may be dealt with by the
Plain Language Full Bench or through the Award stage proceedings for the relevant awards
following a decision on the plain language model terms.
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(iii) Plain language clauses of the Pharmacy Industry Award—common provisions
[17] The clauses of the Pharmacy Industry Award that are common to other awards and
exposure drafts were published with the report on the Pilot. These provisions will be the
subject of a broader consultation process.
[18] The Commission intends to invite comments from interested persons on the plain
language draft common clauses following the conclusion of consultation on the plain
language standard clauses (see paragraph [14]). Information about the exposure drafts in
which these clauses appear will be published at the time when submissions are invited.
Consultation on the common clauses will not commence until 2017.
[19] The clauses that are common to other awards may be subject to qualitative research
and testing with award users to assist drafters to refine and revise drafts as part of the
consultation process.
(iv) National Training Wage Schedule and other Schedules
[20] A Statement issued on 6 July 20166 about the National Training Wage Schedule
indicated that this Schedule may be the subject of plain language re-drafting (see paragraph 9
of that Statement).
[21] Consultation on a plain language draft of the National Training Wage Schedule will
occur following a decision on the proposal to standardise the Schedule.
[22] The Plain Language Full Bench may consider plain language drafting of further
schedules (e.g. the School-based apprentices schedule) and establish consultation processes so
that all interested persons are given the opportunity to comment on any proposed changes to
the Schedules.
(v) Four modern awards selected for plain language re-drafting
[23] A Statement was issued on 6 May 2016 proposing that the Commission commence a
process to re-draft a further four modern awards in plain language. The selected awards are:
Clerks—Private Sector Award 2010 (AM2014/219)
General Retail Industry Award 2010 (AM2014/270)
Hospitality Industry (General) Award 2010 (AM2014/272)
Restaurant Industry Award 2010 (AM2014/284)
[24] The selection of awards for plain language re-drafting considered levels of award
reliance, particularly among small businesses (those with fewer than 20 employees) which are
less likely to have dedicated internal human resources support to assist with the interpretation
of awards. It is further considered that the re-drafting of these particular awards will have the
potential to be of most benefit to employers and employees.
https://www.fwc.gov.au/awards-and-agreements/modern-award-reviews/4-yearly-review/award-stage/award-review-documents/MA000119?m=AM2014/284
https://www.fwc.gov.au/awards-and-agreements/modern-award-reviews/4-yearly-review/award-stage/award-review-documents/MA000009?m=AM2014/272
https://www.fwc.gov.au/awards-and-agreements/modern-award-reviews/4-yearly-review/award-stage/award-review-documents/MA000004?m=AM2014/270
https://www.fwc.gov.au/awards-and-agreements/modern-award-reviews/4-yearly-review/award-stage/award-review-documents/MA000002?m=AM2014/219
https://www.fwc.gov.au/decisionssigned/html/2016FWC2837.htm
https://www.fwc.gov.au/decisionssigned/html/2016FWC4495.htm
https://www.fwc.gov.au/sites/awardsmodernfouryr/AM2014209-report-plainlanguage-FWC-210416.pdf
[2016] FWC 4756
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[25] Interested persons were invited to comment on the selection of the four modern
awards selected for plain language re-drafting by 20 May 2016. Submissions were received
from six interested parties and one individual.7
[26] The submissions received did not object to the selection of these four awards. Detailed
comments focused on the process for consulting with interested persons. The interested union
parties proposed a process of dealing with the plain language exposure drafts sequentially and
also sought greater explanation of amendments made through the plain language re-drafting
process.
[27] The four awards will be dealt with sequentially, although as a matter of efficiency and
to promote the plain language objective of consistency, it may be appropriate to deal with the
Hospitality Industry (General) Award 2010 and the Restaurant Industry Award 2010
exposure drafts together.
[28] The Clerks–Private Sector Award 2010 (Clerks Award) will be the first of the four
selected awards to be subject to plain language re-drafting.
[29] An exposure draft for the Clerks Award was first published on 18 December 2015. In
a conference before Deputy President Clancy, the technical and drafting issues were
categorised and parties agreed on a number of changes to the December 2015 exposure draft.8
The exposure draft will be amended accordingly and re-published on the Commission’s
website. Interested persons will have the opportunity to comment on the revised exposure
draft insofar as it reflects the Report to the Full Bench. Following any comments received
from interested persons, the revised exposure draft will form the basis of the plain language
re-drafting process.
[30] Exposure drafts have not yet been published for the remaining three awards chosen for
plain language re-drafting which are in Group 4. In order to reduce the burden on parties and
to avoid any confusion, the plain language exposure drafts will be the only drafts prepared for
these awards.
[31] The selected awards will be re-drafted by Commission staff under the guidance of a
plain language drafting expert. Initial drafts may be subject to qualitative research and user-
testing to assist drafters to understand how provisions are used and how drafts are interpreted
by award users. Any testing conducted will assess how well the structure/layout, composition
and language meet the needs of award users to inform decisions on these matters. Qualitative
research and user-testing may also be used to help drafters refine and revise drafts following
consultation with interested persons.
[32] Background research used to inform development of plain language drafts will be
published for information and comment with the plain language draft. Drafter comments will
accompany the plain language re-draft to explain the changes made. These comments will be
set out in a comparison table that displays the current award/exposure draft and the re-draft.
[33] The indicative timetable at Attachment A outlines the proposed process for
consultation with interested persons via written submissions and a conference. The
Commission invites comments on the proposed process and timings.
[34] Further consultation processes may be established by the Full Bench as required.
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[35] The number of modern awards to be selected for plain language re-drafting will be
dependent on the resources available to the Commission.
3. Guidelines for plain language drafting of modern awards
[36] Initial guidelines for plain language re-drafting were developed as part of the Pilot.
The guidelines have taken account of plain language drafting principles and practical insights
into the needs of employers and employees generated from the user-testing conducted as part
of the Pilot. The guidelines developed during the Pilot are summarised in Attachment A to the
report on the Pilot.
[37] The guidelines will be a reference for further plain language re-drafting undertaken as
part of the Review. The guidelines will be expanded and refined as more awards and
provisions are re-drafted and feedback is received from a broader range of award users and
interested persons.
[38] The guidelines will be published for comment from interested persons before the end
of 2016, following consultation on the standard clauses and further plain language re-drafting
of award-specific clauses.
4. Changes to exposure draft structure
[39] The Statement issued 10 May 2016 announced the Commission’s intention to apply
the exposure draft structure proposed from the Pilot to Group 4 exposure drafts that were due
to be published from July 2016 onwards.
[40] The structure that has been adopted for the Group 4 exposure drafts is intended to be
applied to Group 1–3 exposure drafts as part of the Review. The structural changes to
exposure drafts will be applied after all technical and drafting issues with current exposure
drafts have been resolved.
5. Next steps for plain language modern awards
[41] Interested persons are invited to comment on the proposed process and indicative
timetable summarised in this Statement.
[42] Written comments should be sent to amod@fwc.gov.au by 4.00 pm on Friday 29 July
2016.
[43] Statements or directions will be issued for each component of the Plain language
modern awards project in due course.
PRESIDENT
mailto:amod@fwc.gov.au
https://www.fwc.gov.au/decisionssigned/html/2016FWC2924.htm
https://www.fwc.gov.au/sites/awardsmodernfouryr/AM2014209-report-plainlanguage-FWC-210416.pdf
[2016] FWC 4756
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Printed by authority of the Commonwealth Government Printer
Price code C, PR582837
1 [2016] FWC 2837
2 [2016] FWC 2924
3 [2016] FWCFB 3177; [2016] FWCFB 3953
4 [2015] FWCFB 2602; [2016] FWCFB 4258
5 [2015] FWC 7467
6 [2016] FWC4495
7 Shop Distributive and Allied Employees’ Association submission, 20 May 2016;
Australian Business Industrial and NSW Business Chamber submissions, 19 May 2016;
Master Grocers' Australia submission, 20 May 2016;
Australian Council of Trade Unions submission, 20 May 2016;
Health Services Union submission, 20 May 2016;
Business SA correspondence, 30 May 2016;
Mr I McSporran submission, 14 May 2016.
8 See Report to the Full Bench, 3 June 2016
https://www.fwc.gov.au/sites/awardsmodernfouryr/am2014219-report-030616.pdf
http://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am20141-sub-mcsporran-270516.pdf
http://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am20141-corr-plain-busssa-300516.pdf
http://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am20141-sub-hsu-200516.pdf
https://www.fwc.gov.au/sites/awardsmodernfouryr/am20141-sub-actu-200516.pdf
http://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am20141-sub-mga-200516.pdf
http://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014219andors-corr-abi-190516.pdf
http://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am20141-sub-sda-190516.pdf
https://www.fwc.gov.au/decisionssigned/html/2016FWC4495.htm
https://www.fwc.gov.au/sites/awardsmodernfouryr/2015fwc7467.pdf
https://www.fwc.gov.au/documents/decisionssigned/html/2016FWCFB4258.htm
https://www.fwc.gov.au/decisionssigned/html/2016FWCFB2602.htm
https://www.fwc.gov.au/decisionssigned/html/2016FWCFB3953.htm
https://www.fwc.gov.au/decisionssigned/html/2016FWCFB3177.htm
https://www.fwc.gov.au/decisionssigned/html/2016FWC2924.htm
https://www.fwc.gov.au/decisionssigned/html/2016FWC2837.htm
[2016] FWC 4756
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Attachment A—Plain language modern awards indicative timetable
The process and timings depicted in this attachment are limited to consultation to be
undertaken before any determinative processes by the Plain language Full Bench.
Further consultation processes may be required.
Pharmacy Industry Award only
Plain language draft Pharmacy Industry Award (see paragraphs [7]–[11])
Date
Revised exposure draft (with plain language award-specific
clauses) published for comment
w/c 18 July 2016
Deadline for submissions on award-specific clauses 26 August 2016
Submissions summarised and published w/c 29 August 2016
Conference w/c 19 September 2016
Note: Draft directions will be issued with the revised exposure draft1
All awards
Plain language draft standard clauses (see paragraphs [12]–[16])
Date
Plain language draft standard clauses published for comment w/c 25 July 2016
Deadline for submissions 9 September 2016
Submissions on standard clauses summarised and published w/c 12 September 2016
Deadline for reply submissions on plain language draft standard
clauses
w/c 14 October 2016
Reply submissions summarised and published w/c 17 October 2016
Conference w/c 31 October 2016
All awards
Plain language draft common clauses (see paragraphs [17]–[19])
Date
Plain language draft common clauses published for comment Not before March 2017
Deadline for submissions (allow 6–8 weeks) TBC
Submissions on common clauses summarised and published TBC
Reply submissions on plain language draft common clauses TBC
Deadline for reply submissions (allow 4–6 weeks) TBC
Reply submissions summarised and published TBC
Conference TBC
1 Transcript, 8 June 2016 at PN 1565
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/20160608_am2014209.htm
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Four modern awards selected for plain language re-drafting
Clerks—Private Sector Award 2010
Date
Revised Clerks—Private Sector Award 2010 exposure draft and
summary of submissions published for comment
15 July 2016
Deadline for comments on revised exposure draft 29 July 2016
Exposure draft confirmed for plain language re-drafting and
published for information
w/c 1 August 2016
Plain language re-draft of award-specific clauses published for
comment
w/c 26 September 2016
Deadline for submissions 11 November 2016
Submissions on award-specific clauses summarised and published w/c 14 November 2016
Conference w/c 21 November 2016
Hospitality Industry (General) Award 2010 and Restaurant Industry Award 2010
Date
Plain language re-draft of award-specific clauses published for
comment
w/c 28 November 2016
Deadline for submissions 20 January 2017
Submissions on award-specific clauses summarised and published w/c 23 January 2017
Conference w/c 6 February 2017
General Retail Industry Award 2010
Date
Plain language re-draft of award-specific clauses published for
comment
w/c 13 February 2017
Deadline for submissions 24 March 2016
Submissions on award-specific clauses summarised and published w/c 27 March 2017
Conference w/c 3 April 2017
w/c = week commencing
Note: Hearing dates to determine any outstanding issues will be published once the
indicative schedule has been finalised.
Parties are asked to comment on this draft timetable. Comments should be forwarded to
amod@fwc.gov.au by 4.00 pm on Friday 29 July 2016.
mailto:amod@fwc.gov.au
