Four yearly review of modern awards - [2016] FWCFB 6836

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, 22 SEPTEMBER 2016

4 yearly review of modern awards - common issue - annual leave - timing of taking of leave -
Maritime Industry awards - insertion of model terms. 

1. Introduction

[1] This decision finalises a number of outstanding matters in relation to the variation of
annual leave terms in modern awards. It should be read in conjunction with previous 
decisions issued on 11 June 20151 (the June 2015 decision), 15 September 20152 (the
September 2015 decision), 23 May 20163 (the May 2016 decision) and 24 June 20164 (the
June 2016 decision).

[2] The outstanding issues we deal with in this decision fall into two categories:

(i) whether the excessive model term should be included in certain modern awards and 
whether particular existing terms that provide for the taking of annual leave should be 
retained; and

(ii) the annual leave provisions in a number of awards in the Maritime industry.

2. Timing of taking annual leave

[3] The June 2016 decision finalised the excessive leave model term. One of the issues to 
be determined in the present proceedings is whether that excessive leave model term should 
be inserted into some 20 modern awards which contain existing provisions which require 
accrued annual leave to be taken within a certain period of time. In its written submission of 
7 December 2015, Ai Group submitted that these existing award terms ‘appear to have been 
crafted to prevent an excessive accrual of paid annual leave; or would at least have that 
effect’.5 At that time Ai Group submitted that these terms should be retained, thereby 
eliminating the need to insert the model excessive leave term.6

[2016] FWCFB 6836

DECISION


E AUSTRALIA FairWork Commission




 



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[4] The 20 modern awards identified by Ai Group fall into two categories:

(i) 13 modern awards that currently include a term which requires annual leave to be 
taken within 18 months of accrual:

 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; 

 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 that contain terms which are, in effect, substantially similar to 
those which provide for accrued leave to be taken within a specified period of time:

 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. 

[5] For completeness we note that Ai Group identified a third category – airline industry 
awards – which, because of the particular employment arrangements in that industry, ‘may 
not be amenable to insertion of the model excessive leave term’.7 The two awards in this 
category are the Air Pilots Award 2010 (clause 2.74) and the Aircraft Cabin Crew Award 
2010 (clause 25.5). In the May 2016 decision8 we decided to defer our consideration of the 
insertion of the excessive leave model term into those two modern awards in order to give Ai 
Group and other interested parties an opportunity to make further relevant inquiries. This 
matter will be the subject of further proceedings later this year.

[6] Each of the 20 modern awards set out above (at paragraph [4]) were the subject of a 
conference before Hampton C on 1 July 2016. The outcome of that conference9 was 
summarised in a Statement issued on 8 July 201610 as follows:








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• In each of the modern awards, the relevant Unions confirmed that they are seeking 
the insertion of the model excessive leave term as determined by the Full Bench.

• The insertion of the model excessive leave term would necessitate the replacement of 
(or substantial alteration to) the existing provisions dealing with the taking of annual 
leave.

• The employer organisations participating in the conference expressed concerns that 
the present provisions do more than deal with excessive leave and their removal may 
also have consequences that are not appropriate given the circumstances of the 
industries involved. The employer organisations with an interest in the Black Coal 
Mining Industry Award 2010 confirmed their intention to oppose the adoption of the 
excessive leave model term.

• There would appear to be some tension between the existing provisions, which 
generally refer to leave being taken within a period referenced to the accrual of the 
entitlement or an entitlement becoming due, and the National Employment Standards 
which are based upon the concept of annual leave accruing progressively. 

• It is appropriate to enable the employer organisations to further consult their 
members and confirm whether they intend to resist the adoption of the model term 
and/or seek an alternative provision and to provide the basis upon which these modern 
awards require a provision other than the model term. 

• All persons and organisations with an interest in these modern awards should be 
afforded an opportunity to make a contribution before the issues are determined by the 
Full Bench.

[7] On 8 July 2016 Directions11 were issued directing the employer organisations with an 
interest in these 20 modern awards to confirm whether they opposed the insertion of the 
model excessive leave term in the relevant modern awards. Directions were also issued 
concerning the filing of written submissions.

[8] No interested party objected to the insertion of the model term in the 18 modern 
awards set out below:

Ambulance and Patient Transport Industry Award 2010;
Architects Award 2010;
Asphalt Industry Award 2010;
Broadcasting and Recorded Entertainment Award 2010;
Cement and Lime Award 2010;
Gardening and Landscaping Services Award 2010;
Gas Industry Award 2010;
Horse and Greyhound Training Award 2010;
Mobile Crane Hiring Award 2010;
Nursery Award 2010;
Nurses Award 2010;12

Premixed Concrete Award 2010;
Quarrying Award 2010;
Racing Clubs Events Award 2010;
Racing Industry Ground Maintenance Award 2010;
Security Services Industry Award 2010;








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Silviculture Award 2010;
Sporting Organisations Award 2010.

[9] In a Statement13 issued on 8 September 2016, we said that absent any submissions to 
the contrary at the hearing to be held on 13 September 2016, the Full Bench would vary the 
18 modern awards set out above to insert the excessive leave model term. No contrary 
submissions were made at the hearing on 13 September 2016 and we propose to give effect to 
the view expressed in our earlier Statement and vary these awards.

[10] The basis for the variation of these 18 modern awards is that we have concluded that 
the existing terms which require annual leave to be taken within a specified period of time 
after accrual do not provide a fair and relevant minimum safety net of terms and conditions of 
employment and, accordingly, do not satisfy the modern awards objective.  Further, we are 
satisfied that the variation of these 18 modern awards to delete the existing terms relating to 
the taking of annual leave within a specified period and to insert the model excessive leave 
term is necessary to ensure that each of these awards achieves the modern awards objective.  

[11] We rely on the findings set out in the June 2015 decision14 and the observations made 
in the May 2016 decision.15 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 will promote flexible 
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 Fair Work Act 2009 (Cth) (the FW Act).

[12] We note that the model term to be inserted into the Nurses Award 2010 will require 
modification given the quantum of annual leave specified in clause 31.1 of that award. As 
foreshadowed in the May 2016 decision16, the model term to be inserted in the Nurses Award 
2010 will be amended to provide for a definition of excessive leave accrual of 10 weeks or 
12 weeks’ if applicable, as follows:

An employee has an excessive leave accrual if the employee has accrued more than 
10 weeks’ paid annual leave (or 12 weeks’ paid annual leave for a shiftworker, as 
defined by clause 31.1(b)).

[13] Draft variation determinations will be published shortly and interested parties will 
have 7 days within which to comment.

[14] The two modern awards which were the subject of continuing objections are the Black 
Coal Mining Industry Award 2010 (the BCMI Award) and the Aquaculture Award 2010 (the 
Aquaculture Award). Before turning to the specific submissions advanced in respect of these 
modern awards we propose to set out the provisions of the FW Act which relate to annual 
leave.

[15] The modern awards objective, in s.134, provides that modern awards, together with 
the NES, are intended to provide a fair and relevant minimum safety net of terms and 
conditions of employment. The NES are minimum standards that apply to the employment of 
national system employees and are set out in Part 2-2 of the Act, Division 6 of which (ss.86–
94) deals with annual leave. 








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[16] Part 2-1 of the Act provides that the NES cannot be excluded by modern awards or 
enterprise agreements. Section 55 deals with the interaction between the NES and a modern 
award or enterprise agreement:

“55 Interaction between the National Employment Standards and a modern award 
or enterprise agreement

National Employment Standards must not be excluded

(1) A modern award or enterprise agreement must not exclude the National Employment 
Standards or any provision of the National Employment Standards.

Terms expressly permitted by Part 2–2 or regulations may be included

(2) A modern award or enterprise agreement may include any terms that the award or 
agreement is expressly permitted to include:

(a) by a provision of Part 2–2 (which deals with the National Employment 
Standards); or

(b) by regulations made for the purposes of section 127.

Note: In determining what is permitted to be included in a modern award or enterprise agreement by 
a provision referred to in paragraph (a), any regulations made for the purpose of section 127 that 
expressly prohibit certain terms must be taken into account.

(3) The National Employment Standards have effect subject to terms included in a 
modern award or enterprise agreement as referred to in subsection (2).

Note: See also the note to section 63 (which deals with the effect of averaging arrangements).

Ancillary and supplementary terms may be included

(4) A modern award or enterprise agreement may also include the following kinds of 
terms:

(a) terms that are ancillary or incidental to the operation of an entitlement of an 
employee under the National Employment Standards;

(b) terms that supplement the National Employment Standards;

but only to the extent that the effect of those terms is not detrimental to an employee in any 
respect, when compared to the National Employment Standards.

Note 1: Ancillary or incidental terms permitted by paragraph (a) include (for example) terms:

(a) under which, instead of taking paid annual leave at the rate of pay required by section 90, 
an employee may take twice as much leave at half that rate of pay; or

(b) that specify when payment under section 90 for paid annual leave must be made.

Note 2: Supplementary terms permitted by paragraph (b) include (for example) terms:

(a) that increase the amount of paid annual leave to which an employee is entitled beyond the 
number of weeks that applies under section 87; or








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(b) that provide for an employee to be paid for taking a period of paid annual leave or 
paid/personal carer’s leave at a rate of pay that is higher than the employee’s base rate of pay 
(which is the rate required by sections 90 and 99).

Note 3: Terms that would not be permitted by paragraph (a) or (b) include (for example) terms 
requiring an employee to give more notice of the taking of unpaid parental leave than is required by 
section 74.

Enterprise agreements may include terms that have the same effect as provisions of the 
National Employment Standards

(5) An enterprise agreement may include terms that have the same (or substantially the 
same) effect as provisions of the National Employment Standards, whether or not ancillary or 
supplementary terms are included as referred to in subsection (4).

Effect of terms that give an employee the same entitlement as under the National Employment 
Standards

(6) To avoid doubt, if a modern award includes terms permitted by subsection (4), or an 
enterprise agreement includes terms permitted by subsection (4) or (5), then, to the extent that 
the terms give an employee an entitlement (the award or agreement entitlement) that is the 
same as an entitlement (the NES entitlement) of the employee under the National 
Employment Standards:

(a) those terms operate in parallel with the employee’s NES entitlement, but not 
so as to give the employee a double benefit; and

(b) the provisions of the National Employment Standards relating to the NES 
entitlement apply, as a minimum standard, to the award or agreement entitlement.

Note: For example, if the award or agreement entitlement is to 6 weeks of paid annual leave per year, 
the provisions of the National Employment Standards relating to the accrual and taking of paid annual 
leave will apply, as a minimum standard, to 4 weeks of that leave.

Terms permitted by subsection (4) or (5) do not contravene subsection (1)

(7) To the extent that a term of a modern award or enterprise agreement is permitted by 
subsection (4) or (5), the term does not contravene subsection (1).

Note: A term of a modern award has no effect to the extent that it contravenes this section (see 
section 56). An enterprise agreement that includes a term that contravenes this section must not be 
approved (see section 186) and a term of an enterprise agreement has no effect to the extent that it 
contravenes this section (see section 56).”

[17] A term of a modern award or enterprise agreement has no effect to the extent that it 
contravenes s.55 of the FW Act.

[18] Relevantly, for the purpose of s.55(2), Part 2-2 provides that a modern award is 
expressly permitted to include terms: 

 providing for the cashing out of annual leave (ss.93(1) and (2));
 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 
(s.93(3)); and

 otherwise dealing with the taking of paid annual leave (s.93(4)).








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[19] We return to the terms of s.93 shortly.

[20] Section 87 deals with the entitlement to annual leave.  Subsections 87(1) and (2) are 
relevant for present purposes and they state:

Amount of annual leave

(1) For each year of service with his or her employer, an employee is entitled to:

(a) 4 weeks of paid annual leave; or

(b) 5 weeks of paid annual leave, if:

(i) a modern award applies to the employee and defines or describes the employee 
as a shiftworker for the purposes of the National Employment Standards; or

(ii) an enterprise agreement applies to the employee and defines or describes the 
employee as a shiftworker for the purposes of the National Employment Standards; 
or

(iii) the employee qualifies for the shiftworker annual leave entitlement under 
subsection (3) (this relates to award/agreement free employees).

Note: Section 196 affects whether the FWC may approve an enterprise agreement 
covering an employee, if the employee is covered by a modern award that is in operation 
and defines or describes the employee as a shiftworker for the purposes of the National 
Employment Standards.

Accrual of leave

(2) An employee’s entitlement to paid annual leave accrues progressively during a year of 
service according to the employee’s ordinary hours of work, and accumulates from year to 
year.

Note: If an employee’s employment ends during what would otherwise have been a 
year of service, the employee accrues paid annual leave up to when the employment ends.

[21] Subsection 87(1) provides that employees are entitled to a period of paid annual leave 
(4 or 5 weeks depending on whether or not they are a ‘shiftworker’) for ‘each completed year 
of service’.  Importantly, however, an employee does not need to complete a year of service 
before they accrue an entitlement to paid annual leave.  So much is clear from s.87(2), which 
provides that an employee’s entitlement to paid annual leave ‘accrues progressively during a 
year of service according to the employee’s ordinary hours of work’.  This has implications 
for the annual leave terms in the BCMI Award and the Aquaculture Award and we will return 
to this issue later.

[22] The FW Act does not require an employee to take their accrued paid annual leave 
within any particular timeframe. Section 88, which deals with the taking of annual leave, 
states:

“88 Taking paid annual leave

(1) Paid annual leave may be taken for a period agreed between an employee and his or 
her employer.

(2) The employer must not unreasonably refuse to agree to a request by the employee to 
take paid annual leave.”








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[23] Sections 93 and 139(1) are relevant insofar as they deal with the terms which may be 
included in a modern award.

[24] Subsections 93(3) and (4) are particularly relevant to our consideration of the matters 
presently before us and provide as follows:

“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)

[25] Section 139(1)(h) provides that a modern award may include terms about any of the 
following matters: 

“(h) leave, leave loadings and arrangements for taking leave.” (emphasis added)

[26] Subject to the requirement to take leave being reasonable, it seems to us that 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 Act. We are fortified in this conclusion by the terms of the 
Explanatory Memorandum to the Fair Work Bill 2008 which states:

“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.”17

[27] As to s.93(4), the words “otherwise dealing with the taking of annual leave” refer to a 
term for dealing with the taking of annual leave other than a term of the type contemplated by 
s.93(3). The relevant extract from the Explanatory Memorandum provides as follows:

“Subclause 93(4) enables an award or agreement to include other terms about the taking of paid 
annual leave – e.g., the taking of paid annual leave in advance of accrual.”18

[28] It seems to us that ss.93(3) and (4) provide the jurisdictional basis for the insertion of 
terms in modern awards which deal with excessive paid annual leave accruals. 

[29] We also note that different arrangements apply in relation to award/agreement free 
employees in ss.94(5) and (6) but these provisions are not relevant for present purposes.

[30] 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 








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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: 

‘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.’19

[31] The Full Bench decision in Australian Federation of Air Pilots v HNZ Australia Pty 
Ltd20 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’.21

[32] 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.

[33] We now turn to the particular provisions and submissions in respect of the two specific 
awards under consideration.

Black Coal Mining Industry Award 2010

[34] Clause 25 of the BCMI Award deals with annual leave.  Subclauses 25.3, 25.4 and 
25.10 are relevant for present purposes.  Subclause 25.3 deals with the accrual of annual leave 
and provides as follows:

25.3 Accrual of annual leave 

Employees, other than casual employees, accrue annual leave at the following rate:

For employees who would be entitled 
to annual leave of: 

Hours of annual leave for each 
completed week of employment: 

175 hours (5 weeks) 3.3654 

210 hours (6 weeks) 4.0385 

[35] Clause 25.4 deals with the taking of annual leave, it states:

25.4 When annual leave can be taken

(a) An employee with an annual leave entitlement, who wishes to take all or part of that 
entitlement will, unless otherwise agreed between the employee and the employer, give the 
employer at least 28 days’ notice in writing of the amount of leave to be taken. The employer 








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will grant that leave unless, in the employer’s opinion, the operations of the mine will be 
affected.

(b) Unless otherwise agreed, annual leave will be taken within 12 months of the date the 
employee received the annual leave entitlement.

(c) The employer may direct an employee to take all or part of an annual leave entitlement 
provided at least 28 days’ notice in writing is given to the employee.

[36] Subclause 25.10 deals with the taking of annual leave during the shutdown of all or 
part of an employer’s operations, it provides as follows:

25.10 Shutdown 
(a) An employer that shuts down all or any part of its operation must give employees at 
least 28 days’ notice of the shutdown or such shorter period as agreed between the 
employer and the employees affected. 

(b) Employees directly affected by the shutdown who have an entitlement to annual 
leave may take all or part of that entitlement during the shutdown period. 

(c) Employees who are directly affected by the shutdown and who are not yet entitled to 
sufficient annual leave may, during the shutdown period, take any annual leave accrued 
in accordance with clause 25.8. 

[37] The Coal Mining Industry Employer Group (CMIEG), representing a group of 
employers in the black coal mining industry, oppose the insertion of the excessive leave 
model term into the BCMI Award and submits that current clauses 25.4 and 25.10 adequately 
deal with the matter of excessive annual leave and should be retained.22  CMIEG relies on 
submissions and materials filed on 26 October 2015, 21 December 2015, 8 February 2016, 29 
July 2016 and 26 August 2016.

[38] In its submission of 26 October 2015 the CMIEG sets out the reasons why it contends 
that the model excessive leave term should not be inserted into the BCMI Award. The reasons 
advanced may be summarised as follows:

(i) Clause 25.4 operates satisfactorily and provides a ‘fair balance of rights of both 
the employee and the employer to cause the taking of annual leave’.

(ii) Including the model term is unnecessary, would cause confusion if not give 
rise to conflicting rights and obligations concerning the taking of annual leave.

(iii) There is no excessive accrued leave problem to be fixed by the variation of the 
BCMI Award to insert the model term.

(iv) Black coal mines generally operate on a continuous 24 hour 7 days per week 
basis and the rostering of employees takes account of entitlements to take 
annual leave.  

(v) Current clauses 25.4 and 25.10 meet the practical operational needs of the 
mines at which they apply and the removal of either clause would cause 
practical problems for employers and employees in a number of operational 
circumstances.

(vi) Employees covered by the BCMI Award can be distinguished from employees 
covered by most other modern awards by the fact that they are entitled to five 






https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201447-sub-cmieg-260816.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201447-sub-cmieg-290716.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201447-sub-cmieg-290716.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/common/am201447-sub-cmieg-080216.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/common/am201447-sub-cmieg-211215.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/common/am201447-sub-cmieg-261015.pdf


[2016] FWCFB 6836

11

or six weeks annual leave (clause 25.2) and long service leave at the rate of 
13 weeks for each 8 years of service (Coal Mining Industry (Long Service 
Leave) Administration Act 1992 (Cth).  Employees who wish to ‘save up’ 
leave are able to utilise their comparatively generous long service leave 
entitlement for that purpose.

(vii) There is a high incidence of enterprise agreements in the black coal mining, 
industry and, to the extent that there are concerns that the provisions of the 
BCMI Award may not be appropriate or sufficient in dealing with the taking of 
leave, those concerns can be addressed by an enterprise agreement.

[39] The CMIEG’s earlier submission in respect of clause 25.4(b) (see (i) in paragraph [38] 
above) was modified during the course of oral argument at the hearing on 13 September 2016.  
We deal later with CMIEG’s submissions on this issue.

[40] The Construction, Forestry, Mining and Energy Union, Mining and Energy Division 
(the CFMEU) submits that the excessive leave model term should be inserted in the BCMI 
Award, subject to varying the definition of excessive leave having regard to the level of 
annual leave entitlements under the award.23

[41] The Commission issued a Background Paper on 8 July 2016 setting out some data on 
the amount of annual leave taken by employees in various industries, including mining.  Table 
9 in the Background Paper is relevant for present purposes and is set out below. The table 
presents data on non-casual employees in the Mining industry. Relative to all industries:

 the proportion that took a period of paid annual leave was relatively similar to the 
average across all years from 2010 to 2012, while a lower proportion took a period 
of paid annual leave in 2013 and a higher proportion in 2014; and

 the average number of paid annual leave days was lower across each year, except 
in 2013.   

Table 9:  Use 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








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Source: HILDA survey, Waves 10–14.

[42] CMIEG makes the following submission in respect of the information in Table 1. 

‘(a) The information in the Background Paper provides data concerning the “mining Industry” 
and is not limited to the “black coal mining industry”. It is apparent that the ANZIC1 mining 
division encompasses coal mining (including brown coal mining), oil and gas extraction, metal 
ore mining and services to mining. The information in the Background Paper concerns the 
proportion of employees taking annual leave in the mining industry in particular years, rather 
than the accrued but untaken annual leave of those employees which is the relevant issue. In 
any event, the information demonstrates that the proportion of employees who took annual 
leave in the mining industry in each year was relatively similar across each year from 2010 to 
2012, and was close to the "all industries" figure in each of those years.

(b) The data which has been provided by the CMIEG on 21 December 2015 (Annexure 1 of its 
submissions) is particular to the black coal mining industry, deals with accrued but untaken 
annual leave (rather than leave taken) which is the relevant issue, and is recent in time (being 
from 2015). The data provided by the CMIEG should be preferred to the information 
contained in the Background Paper.’24

[43] We accept that data in the Background Paper concerns the ‘mining industry’ and is not 
limited to the ‘black coal mining industry’, whereas the data referred to in paragraph (b) of the 
above submission (attached as Annexure 1 to CMIEG’s submission of 21 December 2015) is 
information is based on data provided by 12 employers in the black coal mining industry. 

[44] The BCMI Award provides for 6 weeks’ annual leave per annum for continuous 
shiftworkers and 5 weeks for other employees. The CMIEG data shows the numbers of 
employees with leave accruals in five bands: 0–5, 5–10, 10–15, 15–20 and 20 plus weeks and 
what the number of employees in each band represent as a percentage of all employees.

[45] The table below is an extract from Annexure 1 to the CMIEG’s submission of 
21 December 2015 and sets out the annual leave accruals as at December 2015 for the 
employees of 12 employers in the black coal mining industry:

Weeks of Accrued Annual 
Leave

No. of Employees % of Employees

0 to 5 11,199 54%
5 to 10 6,655 32%
10 to 15 2,025 10%
15 to 20 636 3%

20+ 325 2%

Total 20,850 100%

[46] The CMIEG submits that the data supports its contention that accrual of annual leave 
is not at a level that is problematic in the industry.

[47] Two points may be made about the CMIEG data. The first concerns the extent of 
excessive leave accruals shown by this data.








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[48] In this regard the model term defines ‘excessive leave accrual’ as more than 8 weeks’ 
paid annual leave or 10 weeks’ paid annual leave in the case of a ‘shiftworker’ (as defined in 
the modern award for the purposes of the additional week of annual leave provided for in the 
NES).  The 8 week threshold reflects 2 years of accrued paid annual leave for most employees 
and is consistent with s.236(6) of the former Workplace Relations Act 1996 and with the 
majority of current modern award clauses which contain excessive leave provisions.

[49] Applying the same general approach to the BCMI Award, employees in black coal 
mining could be said to have an excessive leave accrual if:

 in the case of continuous shiftworkers, they had accrued more than 12 weeks’ paid 
annual leave; or

 in the case of other employees, they had accrued more than 10 weeks’ paid annual 
leave.

[50] The data provided by CMIEG does not differentiate between continuous shift work 
employees and other employees.  Nor does the data identify the number of employees with 
more than 12 weeks’ accrued paid annual leave – it provides data in five bands, one of which 
is 10–15 weeks’ accrued annual leave.

[51] If it is assumed that most of the employees represented in the data are continuous 
shiftworkers entitled to six weeks’ paid annual leave per year25 and a mid point is selected for 
the 10 to 15 weeks’ band range, then the data shows that some 1,973 employees employed by 
these 12 black coal mining industry employers (or about 9.5% of the employees) had an 
‘excessive leave accrual’ within the meaning of the model term.

[52] Contrary to the submission advanced by the CMIEG we think that such a level of 
‘excessive’ paid annual leave accruals is problematic and supports an inference that a 
significant proportion of these employees are not taking a reasonable portion of their paid 
annual leave.  In the June 2015 decision26 the Full Bench canvassed the evidence on the 
impact of not taking accrued annual leave, and by implication, the impact of excessive 
accruals of paid annual leave.  The Full Bench27 concluded that the evidence supported the 
following findings:

‘(i) Not taking a reasonable portion of leave can give rise to a serious threat to the health 
and safety of the employees concerned.

(ii) Excessive annual leave accruals are a significant issue for employers. Such accruals 
represent a significant financial liability and can give rise to cash flow problems (particularly 
for small businesses) when paid out on termination.

(iii) The taking of accrued paid annual leave can have mutual benefits for employees and 
employers:

(a) Taking paid annual leave provides employees with a period of rest and 
recovery from work and has significant positive implications for employee health and 
wellbeing. As well as providing an opportunity for rest and recovery, taking paid 
annual leave also provides employees with the time and opportunity to attend to their 
family and other commitments and to engage in social, community and personal 
interests.








[2016] FWCFB 6836

14

(b) While the evidence on whether taking paid leave improves productivity 
appears to be somewhat mixed and inconclusive, there is evidence that absenteeism is 
reduced after a period of leave and of a strong correlation between workplace stress 
and anxiety and not taking leave breaks. A period of paid leave is also likely to reduce 
fatigue at work and improve workplace health and safety.’

[53] We note the CMIEG submission that there is a cohort of employees in black coal 
mining who attach themselves to a particular mine and that it might be expected that over the 
course of time a residual amount of their annual leave entitlement will accrue each year and 
build up over time, despite the fact that they take the vast majority of their entitlement each 
year.28 No evidence was advanced in support of this assertion and the size of the cohort 
referred to by the CMIEG is unknown, but the general proposition advanced was uncontested 
and on that basis we accept that there are some employees in black coal mining in the 
category referred to by the CMIEG.  But even so, these employees are not taking their full 
paid leave entitlement each year and they do have excessive leave accruals.  Further, the fact 
the level of paid annual leave entitlements in this award is higher than that provided in the 
NES and in modern awards generally is beside the point.  It has plainly been thought 
necessary to prescribe a higher entitlement in this award, no doubt to provide employees 
covered by the award with a longer period of rest and recovery, given the nature of the work 
undertaken.  No party in the present proceedings is contending that the level of paid annual 
leave entitlement be reduced.

[54] The second observation to be made about the data is that the level of excessive leave 
accruals has occurred in a context where the existing award provisions provide employers in 
this industry with a power to direct employees to take all or part of an annual leave 
entitlement on the provision of 28 days’ notice in writing (see clauses 25.4(c) and 25.10(a)). 
The extent of existing excessive leave accruals suggests that these existing award terms are 
not working.  During the course of oral argument counsel for the CMIEG accepted that this 
‘may be the case … but the solution may not be the model term’.29  

[55] We now turn to the terms of the existing provisions in the BCMI Award which are said 
to address the issue of excessive paid annual leave accruals. We turn first to clause 25.4(b) 
which provides that ‘annual leave will be taken within 12 months of the date the employee 
received the annual leave entitlement’, unless otherwise agreed.  

[56] It will be recalled that the entitlement to paid annual leave in the NES is not dependent 
upon the completion of a particular period of service, rather that entitlement accrues 
progressively during a year of service according to the employees ordinary hours of work.  
So, for example, an employee whose ordinary hours of work are 38 hours per week accrues an 
entitlement to about 2.92 hours paid annual leave for each week of completed service.  As the 
entitlement accrues progressively throughout the year a provision such as clause 25.4(a) is 
simply impractical.  This is so because a requirement to take annual leave ‘within 12 months 
of the date the employee received the annual leave entitlement’ may mean that an employee 
could be required to take a period of accrued paid leave each week as further leave is accrued. 

[57] As counsel for the CMIEG acknowledged during the course of oral argument, clause 
25.4(b) appears to be a vestige of predecessor awards that provided for annual leave 
entitlements to be credited on the anniversary date of the commencement of an employee’s 
employment.30 Clause 25.4(b) is a term which may have been appropriate in times past when 








[2016] FWCFB 6836

15

the entitlement to any paid annual leave was dependent upon the completion of 12 months’ 
service, but in the context of the NES it is an anachronism. 

[58] The CMIEG and the CFMEU both acknowledged that given the progressive accrual of 
paid annual leave provided in the NES, clause 25.4(b) could not be retained in its current 
form.

[59] The CMIEG submitted that the subclause required ‘significant redrafting’ so as to 
provide that an employee should not accrue an annual leave entitlement equivalent to two 
years’ of accrued leave.  In the context of this award such a provision would mean that 
employees should not accrue more than 10 or 12 weeks’ paid annual leave.  If it were possible 
to draft such a clause then that was the CMIEG’s ‘preferred approach’.31 The CMIEG 
acknowledged that a redrafted clause in the terms described may be characterised as 
‘aspirational’, giving rise to the criticism that it has no real work to do.  The CMIEG 
acknowledged that the alternatives open to the Commission in respect of clause 25.4(b) were 
to redraft it in the terms proposed or delete it.

[60] The CFMEU also acknowledged that clause 25.4(b) was problematic and that the 
options were either to vary it to make it consistent with the NES, or delete it.  The CFMEU 
was content with either course and advanced the same submission in respect of the entirety of 
clause 25.4.32

[61] The modern awards objective is to ‘ensure that modern awards, together with the NES, 
provide a fair and relevant minimum safety net of terms and conditions’.  Clause 25.4(b) is 
neither fair nor relevant and should be deleted from the BCMI Award. It is a vestige of past 
methods of annual leave accrual and does not sit conformably with the NES. Further, we see 
very little utility in varying clause 25.4(b) in the manner proposed by the CMIEG.  An award 
clause in the terms proposed would be rightly seen as merely aspirational and would have 
little or no work to do.  In our view the most appropriate course is to simply delete clause 
25.4(b).

[62] We now turn to subclause 25.4(c) which provides that the employer ‘may direct an 
employee to take all or part’ of their annual leave entitlement on the giving of 28 days’ notice 
in writing.

[63] As mentioned earlier, s.93(3) provides the jurisdictional basis for a modern award term 
requiring an employee to take paid annual leave in particular circumstances.  Clause 25.4(c) 
of the BCMI Award is such a term and no party contended otherwise.  Importantly, this type 
of term is subject to the legislative direction that any such requirement to take paid annual 
leave ‘is reasonable’ and the assessment of whether such a requirement is ‘reasonable’ within 
the meaning of s.93(3) is not viewed solely through the perspective of the employer.

[64] The CMIEG submits that it could be inferred that in exercising any rights under a 
modern award a party would act reasonably in doing so, even in the absence of express words 
to that effect.33 In the alternative, it submits that some additional words could be added to the 
end of the subclause such as: ‘and the direction to the employee is reasonable’.  The CMIEG 
submits that with the addition of these words subclause 25.4(c) would meet the requirements 
of s.93(3) and that in the event of a dispute as to whether a direction was reasonable the 
employee concerned could utilise the dispute settlement process in the award.  








[2016] FWCFB 6836

16

[65] The CMIEG’s first point would require the importation of a general obligation to act 
reasonably when exercising an award right.  Reference was made to the implied good faith 
obligations in respect of exercising rights under commercial contracts, in support of the 
proposition advanced.

[66] It may be accepted that some courts have held that there is a duty of good faith in the 
performance of employment contracts reflecting the obligation found in commercial contracts, 
while other courts have held no such duty is implied.34  We note in this context that in 
Commonwealth Bank of Australia v Barker35 the plurality left open the question whether there 
is a general obligation to act in good faith in the performance of contracts and the related 
questions whether contractual powers and discretions may be limited by good faith and 
rationality requirements analogous to those applicable in the sphere of public law.36 As 
observed by Irving in ‘The Contract of Employment’ the law in this area is ‘currently in a 
state of flux’.37

[67] In any event it is not immediately obvious how the debate on implied contractual 
terms assists in the interpretation of the terms of a modern award.  The general approach to 
the construction of instruments such as modern awards was set out in the judgement of French 
J, as he then was, in City of Wanneroo v Australian Municipal, Administrative, Clerical and 
Services Union:38

‘The construction of an award, like that of a statute, begins with a consideration of the 
ordinary meaning of its words.  As with the task of statutory construction regard must be paid 
to the context and purpose of the provision or expression being construed.  Context may 
appear from the text of the instrument taken as a whole, its arrangement and the place in it of 
the provision under construction. It is not confined to the words of the relevant Act or 
instrument surrounding the expression to be construed. It may extend to “...the entire 
document of which it is a part or to other documents with which there is an association”. It 
may also include “... ideas that gave rise to an expression in a document from which it has 
been taken” - Short v FW Hercus Pty Ltd (1993) 40 FCR 511 at 518 (Burchett J); Australian 
Municipal, Clerical and Services Union v Treasurer of the Commonwealth of Australia [1998] 
FCA 249; (1998) 80 IR 345 (Marshall J).”

[68] To this we add the oft-quoted observations of Madgwick J in Kucks v CSR Limited,39

that a narrow pedantic approach to interpretation should be avoided, a search of the evident 
purpose is permissible and meanings which avoid inconvenience or injustice may reasonably 
be strained for, but:

‘. . . the task remains one of interpreting a document produced by another or others. A court is 
not free to give effect to some interiorly derived notion of what would be fair or just, 
regardless of what has been written into the award. Deciding what an existing award means is 
a process quite different from deciding, as an arbitral body does, what might fairly be put into 
an award. So, for example, ordinary or well-understood words are in general to be accorded 
their ordinary or usual meaning.’40

[69] The observation of Madgwick J in Kucks tells against the general proposition put by 
the CMIEG in these proceedings and we were not referred to any authority in support of the 
proposition advanced.  Further, as a contextual point, various terms of the BCMI Award 
expressly condition the exercise of particular award rights.  For example, clause 12.1(a) 
provides that an employee ‘must perform work as reasonably required by the employer’ 
(emphasis added).  The express conditions on the exercise of certain award rights also tells 








[2016] FWCFB 6836

17

against the implication of such conditions elsewhere in the award.  On the basis of the limited 
argument put we are not persuaded by the CMIEG’s primary submission.

[70] In support of its alternate proposition the CMIEG relied on the following observation 
in the September 2015 decision:

‘It seems to us that two different approaches might be taken in crafting an award term to deal 
with requirements to take leave in a way that satisfies s.93(3).

The first and perhaps most obvious approach would be to expressly require in the award term 
itself that any employer direction to take leave must be reasonable, taking into account all 
relevant considerations, including those identified in the Explanatory Memorandum...’41

[71] The above observation needs to be placed in context.  Importantly, the Full Bench 
went on to say:

‘… However, that approach would give rise to significant uncertainty and potential 
disputation, as the status of any employer direction would be open to challenge on the basis 
that the individual needs and circumstances of the employee had not properly been considered 
and that the direction was not reasonable. 

The better approach, it seems to us, is the one adopted in the provisional model term. The 
model term establishes a number of procedural requirements for any direction to take leave 
(that the parties first seek to confer, that the direction be in writing etc.) and broad constraints 
on the quantum and timing of the directed leave. These procedural requirements and 
constraints go some way to ensuring that any direction to an employee to take excessive 
accrued leave will be reasonable in terms of s.93(3), but they will not necessarily ensure 
proper consideration of the individual needs and circumstances of the employee so far as the 
timing of the directed leave is concerned. In order to address that issue, the model term 
enables the employee to make a subsequent request to take some or all of the leave covered by 
the direction at a different time or times (and the employer may not unreasonably refuse such a 
request). This approach provides greater certainty than the alternative approach outlined above 
as it minimises the scope for disputes as to the reasonableness of the direction. This is because, 
pursuant to the model term, the employee must comply with a direction to take excessive 
accrued leave meeting the requisite procedural requirements and constraints unless:

 the employee makes a subsequent request for leave;

 that request is agreed to by the employer; and

 taking both the directed leave and the agreed leave would at any time reduce the 
employee’s accrued leave balance below six weeks (taking into account any other 
leave that is also to be taken). 

Under the terms of the provisional model term, 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, and 
if that leave is agreed 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. Giving primacy to the right of an employee to request to take 
accrued annual leave (and not to have that request unreasonably refused by the employer) over 
the right of an employer to direct that leave be taken, provides a means of ensuring that the 
personal needs and circumstances of the employee are taken into account. ...’42

[72] Similarly, in the context of the BCMI Award the adoption of the approach proposed by 
the CMIEG would give rise to significant uncertainty and potential disputation.  The status of 
any employer direction would be open to challenge on the basis that the individual needs and 








[2016] FWCFB 6836

18

circumstances of the employee had not properly been considered and that the direction was 
not reasonable.  Nor would utilising the dispute resolution term in the BCMI Award (clause 9) 
necessarily provide a mechanism for conclusively determining such disputes.  The 
Commission may only deal with a dispute by arbitration if expressly authorised to do so (see 
ss.595 and 739) and clause 9.3 of the BCMI Award contains no such express authorisation.  
Subclause 9.3 simply says:

‘The parties may agree on the process to be utilised by the Fair Work Commission including 
mediation, conciliation and consent arbitration.’

[73] It is apparent from a comparison of clause 25.4(c) with the model term that the 
existing award term differs from the model term in a number of respects, in particular:

(i) The existing award term does not provide a mechanism, subject to appropriate 
limitations, for employees to ultimately require that their employer give them a 
period of paid annual leave. It makes no provision for the circumstance where an 
employee accrues excessive paid annual leave but no employer direction is made.

(ii) The existing award term 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.’43

We note that clause 25.6 provides that absent agreement annual leave is to be 
‘given and taken in not more than three periods, one of which must be at least 
three weeks’ duration’.  The intended interaction between clauses 25.4(c) and 25.6 
is unclear.

(iii) The existing award term provides that an employer can direct an employee to take 
a period of accrued paid annual leave by giving the employee 28 days’ notice in 
writing. The model term requires that employees be given 8 weeks’ notice of the 
commencement of employer directed leave. The provision of 8 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 existing award term 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 6 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.’44








[2016] FWCFB 6836

19

Further, the existing award term provides that an employer may direct an employer 
take ‘all or part of an annual leave entitlement’. The model term 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.

(v) The existing term does not require an employer to enter into any dialogue with an 
employee before directing them to take part of their annual leave. 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.

[74] The above comparison reinforces the deficiencies in the existing award term.

[75] In support of the retention of clause 25.4(c) the CMIEG also submits that the utility of 
the clause extends beyond the management of excessive leave accruals:

‘There are a number of practical operational exigencies affecting black coal mines that are met 
by the current clauses 25.4 and 25.10 of the BCMI Award.

Some examples of these are as follows:

(a) Geological or geotechnical circumstances may require that one or more sections of a mine 
cease operation for a period. As a result, if coal is not being produced, part of the mining 
workforce and the employees operating the coal handling and preparation plant at the mine 
may have no useful work for a period. In these circumstances, the employer or the employee 
may sensibly see the taking of annual leave as the best course. The alternative of standing 
down employees without pay may be available but would be onerous and reasonably avoided 
by the granting and taking of annual leave.

(b) There have been instances where mines have had to stop because of a underground 
longwall shearing machine being put out of action by being buried due to the collapse of the 
strata in the coal seam. This is another circumstance in which the taking of leave in 
accordance with clause 25.4 of the BCMI Award, at the instance of the employee or employer, 
is reasonable and practicable while the longwall shearing machine is recovered.

(c) Market considerations including the cyclical nature of black coal markets, may cause a 
mine operator to choose to shut down all or part of an operation for a period. A prime recent 
example of this was the shutting down of a number of Glencore group mines for a three week 
period in December 2014 and January 2015, due to oversupply of coal in the market. Such 
action can be distinctly beneficial to employees, in so far as it may mitigate the need for an 
employer to reduce workforce numbers through retrenchment.

(d) Another circumstance that can arise is that the product coal stockpile at a mine reaches full 
capacity, and the extraction of coal therefore needs to be stopped or slowed. In these 
circumstances, an employee or employer may exercise rights under clause 25.4 (or clause 
25.10).

In each example situation, clauses 25.4 and 25.10 meet the reasonable needs of employees and 
employers in the black coal mining industry. Inclusion of the model term and removal of 
either clause 25.4 or 25.10, would be less beneficial. These terms of the BCMI Award are 
already "mutually beneficial" (see June 2015 decision [2015] FWCFB 3406 at [214]; 
September 2015 decision [2015] FWCFB 5771 at [175]).’45 (footnotes omitted)








[2016] FWCFB 6836

20

[76] We make two points in relation to this aspect of the CMIEG’s submission. First, we 
acknowledge that clause 25.4(c) could be utilised in the circumstances described – but that 
misses the point.  Clause 25.4(c) is a term allowing for an employee to be required to take 
annual leave.  The power to include such a term in a modern award is s.93(3), which provides 
that the requirement to take paid annual leave must be ‘reasonable’.  An award term whereby 
an employee can be directed to take all of part of their accrued paid annual leave on the 
provision of 28 days’ notice in writing without other considerations and requirements is not 
‘reasonable’ within the meaning of s.93(3).

[77] The second point is that the circumstances identified in the CMIEG’s submission 
could also be addressed by utilising clause 25.10 of the BCMI Award and we note the 
uncontested assertion by the CFMEU’s advocate that in such circumstances:

‘the parties get together, they sit down and they sort it out.  That’s what has happened in the 
past.  That is what happened when Glencore, I think last year, shut down for a week.  
Presumably, that is what will happen in the future.’46

[78] It would also be open to the parties to address these issues in enterprise bargaining and  
we note the following submission contained in the CMIEG’s written submission of 
26 October 2015, at paragraph 37:

‘There is a high incidence of enterprise agreements in the black coal mining industry and, to 
the extent that there are concerns that the provisions of the BCMI Award are not appropriate or 
sufficient in dealing with the taking of leave, those concerns can be addressed by an enterprise 
agreement.’

[79] We would make a similar observation – to the extent that a particular employer or 
enterprise is concerned that the award as varied will not provide sufficient flexibility to 
address the range of unforeseen events identified by the CMIEG, those concerns can be 
addressed by an enterprise agreement.

[80] We have considered the submissions advanced by the CMIEG but we have decided to 
delete clause 25.4(c) and to insert the model excessive leave term.

[81] We conclude our consideration of clause 25.4 by turning to subclause 25.4(a), which 
provides that on giving the requisite notice an employee request to take a period of paid 
annual leave will be granted ‘unless in the employer’s opinion the operations of the mine will 
be affected’.  The CMIEG characterised clause 25.4 in general terms as providing a ‘fair 
balance of rights of both the employee and the employer to cause the taking of annual leave’ 
(see above at [38]).  We take this submission to mean that clause 25.4(a) is the part of clause 
25.4 which provides employees with rights to take annual leave.

[82] To the extent that clause 25.4 as a whole reflects a balance between the rights of 
employers and employees the deletion of two of the elements of the term (clauses 25.4(b) and 
(c)) is a factor favouring the deletion of clause 25.4(a).  Further, the CFMEU pointed to 
circumstances where the right conferred by clause 25.4(a) had not operated effectively (from 
their perspective) in practice and was ambivalent as to whether the terms of clause 25.4 were 
varied conformably with the NES or simply deleted.  We also note that s.88(2) will continue 
to apply to employee requests to take paid annual leave, despite the deletion of clause 25.4(a).  
In all the circumstances we have decided to delete clause 25.4(a), we are not satisfied that the 
term is necessary to achieve the modern awards objective.








[2016] FWCFB 6836

21

[83] On the basis of the matters set out above we have concluded that the excessive leave 
term in the BCMI Award (i.e. clause 25.4(b) and (c)) does not provide a fair and relevant 
minimum safety net of terms and conditions of employment. On that basis the term does not 
meet 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 existing award term provides 
that an employee may be required to take paid annual leave in particular circumstances and, 
having considered the terms of clause 25.4(c) that requirement is not reasonable. As that term 
in the BCMI Award does not meet the requirements of s.93(3) it follows it is not a term which 
may be included in a modern award. As to clause 25.4(a), we are not satisfied that it is 
necessary to meet the modern awards objective.

[84] We have concluded that clause 25.4 should be deleted in its entirety and that the award 
should be varied to insert the revised excessive leave model term, subject to a modification to 
the definition of ‘excessive leave’ having regard to the level of annual leave entitlements 
under the award. We rely on the findings set out in the September 2015 decision47 and the 
matters to which we have referred in this decision.

[85] In concluding, we note that one of the issues raised by the CMIEG – in the event we 
decided to insert the model term in the BCMI Award – concerned the interaction between the 
model term and clause 25.10 ‘shutdown’. Counsel for the CMIEG referred to this issue during 
the course of oral argument, as follows:

‘… there might also be a question that arises if the excessive leave clause was to be inserted 
whether or not the provision in 25.10 shutdown was to be read in a particular way, that is, 
whether or not there ought to be catered for an interaction of, if an employee had, for example, 
given a direction they wished to take leave under the excessive leave clause, was that to be 
superseded in some way if the employer gave a direction about a shutdown…’48

[86] While not conceding that there was an interaction issue between clause 25.10 and the 
model term, the CFMEU acknowledged that any potential problem could be addressed by the 
insertion of some introductory words in clause 25.10 to make it clear that the shutdown term 
operates despite the terms of the excessive leave term.49  We propose to add some 
introductory words to clause 25.10 to make it clear that the shutdown term operates 
independently of the excessive leave term.  Interested parties will have an opportunity to 
comment on the draft variation determination.

Aquaculture Award 2010

[87] Clause 23.4 of the Aquaculture Industry Award 2010 provides that annual leave is to 
be taken within 18 months of accrual. It states:

23.4 Annual leave is to be taken within 18 months of the entitlement accruing. For the 
purpose of ensuring accrued annual leave is taken within that period, and in the 
absence of agreement as provided for in s.88 of the Act, an employer may require an 
employee to take a period of annual leave from a particular date provided the 
employee is given at least 28 days’ notice.








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[88] Clause 23.3 of the Aquaculture Award is also relevant, it provides that employees may 
be directed to take annual leave where an employer ‘intends temporarily to close (or reduce 
the nucleus) the place of employment or a section of it’.  Clause 23.3 states:

‘Where an employer intends temporarily to close (or reduce to nucleus) the place of 
employment or a section of it for the purpose, amongst others, of allowing annual leave to the 
employees concerned or a majority of them, the employer may give those employees one 
month’s notice in writing of an intention to apply the provisions of this clause. In the case of 
any employee engaged after notice has been given, notice must be given to that employee on 
the date of their engagement.’

[89] The NSW Farmers (Industrial) Association (NSW Farmers), which represents the 
interests of oyster producers in NSW, opposes the insertion of the model excessive leave term 
in the Aquaculture Award and seeks the retention of the existing award provision, clause 23.4.  
In the event that their primary submission is rejected and the Commission decides to insert the 
model term into the award then NSW Farmers seeks a variation to the model term which 
would add the following words to the end of clause 1.5(e):

‘except if the period of annual leave being requested falls within high season as advised by the 
employer previously.’

[90] The NSW Farmers’ submission of 26 August 2016 sets out some background 
information on the Australian oyster industry.  There are around 814 licence holders that 
make up the industry, largely located in NSW, South Australia and Tasmania, and they are 
primarily ‘family owned, owner operated small businesses’.  The particular features of oyster 
farming are referred to at paragraphs 21–23 of the NSW Farmers’ submission:

‘Oyster farming is a labour intensive and seasonal operation. Oyster growth is relative to water 
temperatures. Growers will handle oysters more when they are actively growing during 
summer. The demand for oysters is also seasonal, with the month leading up to Christmas and 
around Easter being the busiest.

It is during the Christmas and Easter holiday seasons that oyster farming is generally at its 
peak and oyster farming businesses require all employees to be available during these times to 
maximise capacity of production and fulfill (sic) sales demand.

The busiest period for oyster farming operation covers a popular holiday season and it is 
attractive for employees to take annual leave during this period. It is crucial for employers in 
the industry to retain the ability to refuse an annual leave application during their high season, 
even if the employee has accrued excessive leave.’

[91] NSW Farmers submit that clause 23.4 ‘sufficiently deals with the issue of excessive 
leave by discouraging annual leave accrual of more than 6 weeks’, while providing the ability 
for the employer and employee to agree to leave being taken at a later date if the employee 
wishes to take a longer holiday.

[92] It is also submitted that there is a ‘clear alignment’ between the operation of clauses 
23.4 and 23.3, in that the two provisions require the same minimum notice period for an 
employer direction to take accrued annual leave.  As to clause 23.3, it is submitted that the 
inclusion of the model excessive leave term would create practical difficulties in its 
interaction with the operation of clause 23.3 which would not be consistent with the provision 
of an award system that is simple and easy to understand (s.134(1)(g)).  NSW Farmers 








[2016] FWCFB 6836

23

provide the following example50 of the difficulties that it submits would be caused by the 
interaction between clause 23.3 and the model term:

‘… in a shut down situation, an employer is required to give a minimum of one month notice. 
However if one of the employees in the operation being shut down has more than 8 weeks 
accrued annual leave, it is open for argument that a minimum of 8 weeks notice is triggered 
when the excessive leave model provision should not be affecting the mechanics of a shut 
down provision set out in the award.’

[93] NSW Farmers tendered three witnesses statements in support of their position: Mr 
Bruce Zippel51; Mr Tony Troup52 and Mr Jonathan Poke53.

[94] Mr Zipple has been involved in oyster farming for 27 years and is based in South 
Australia.  At paragraphs 4–6 of his statement Mr Zipple says:

‘4. Oyster farming is typically a small to medium family focussed business. Usually employing 
between 1 to 10 employees. Turnover usually less than $1 million for average sized business.

5. Oyster farming requires the continual handling of oysters from small sizes. Oysters are 
usually sold from about 18 months to 2.5 years for Pacific oysters or up to double that for 
Sydney Rock oysters. Growers will work their oysters more when they are actively growing in 
warmer months and all oyster farming states work hard to prepare their oysters for the 
difficulties of winter. Growers will work hard at differing times of the year to prepare stock 
for the heavy selling times.

6. It is understood that in excess of 25% of total annual oyster production is normally sold in 
the month leading up to Christmas. For some growers it can be as high as 50% as it is such a 
high demand time of the year. It is common for employers to insist that all staff are available 
for this very busy time of year.’

[95] Mr Troup has been involved in oyster farming for 36 years and is based in NSW, his 
business currently employs two permanent employees.  At paragraphs 4–9 of his statement 
Mr Troup says:

‘4. Oyster production varies slightly throughout NSW but generally the peak periods for sales 
are Easter and Christmas. There are other busy periods for growers depending on their type of 
operation. For example, catching slats are put out in the early months of the year and timing of 
this can be critical for some growers.

5. In my own operation, down times in an oyster operation are during the winter months when 
oysters are not being sold and growth is slow so there is little grading to be done. During this 
period we catch up on maintenance and have some time off.

6. The summer months are the busiest period for our business. It is during this period when 
there is high sales volume to market and we have good growth so there is much grading to do 
to so oysters don’t get overstocked and start to die. The months around Christmas and Easter 
are particularly busy.

7. We only have a small team of employees and every member of staff counts. If there is an 
employee who takes leave during the busy period it will impact on our operation and the 
business profitability. Oyster growing is a seasonal operation and oysters can only be sold 
when they are in condition. We may miss opportunities to sell our oysters while they are still 








[2016] FWCFB 6836

24

in condition and if we get behind in the grading then oysters can become overstocked and 
fouled with nuisance organisms creating much more work or even death of stock.

8. We don’t currently have any employee with annual leave accrual of more than 8 weeks at 
the moment, however in the past we did.

9. We try to avoid having to direct employees to take leave, and instead use the ability to 
convince employees to not take time off at inappropriate times.’

[96] Mr Poke has been involved in oyster farming for 37 years and is based in Tasmania, 
his business currently employs 22 permanent employees.  At paragraphs 3–9 of his statement 
Mr Poke says:

‘3. Oyster farming is a very labour intensive operation. Oyster growth is relative to water 
temperatures so the majority of labour required for grading and rehousing is in the period from 
September through to June.

4. Oyster farming is very much dependent on weather condition and market demands. In 
periods where we have had storm damage or high sale volumes to deliver we may work some 
12 hour shifts if necessary.

5. The highest volume of sales of oysters for consumption through the fresh fish market is 
from October through until May. The period of lowest labour requirements or our down time 
is from July through to September each year. 

6. All staff members are required from the start of November through until the end of April. 
No leave is available during this period. Special consideration is given for extenuating 
circumstances.

7. If employees were to take leave during our high growth and sales periods and our stock is 
not graded on schedule, it can be ruined and be unsaleable.

8. We don't have any award covered employees who currently have more than 6 weeks of 
accrued annual leave.

9. The way we approach the issue is that every May or June we advise employees that leave is 
to be taken between particular period, usually from the start of July to the end of September, 
and they can complete a leave request form to take their leave between these dates. They are 
advised that there can be no more than 50% of the production staff on leave at any one time 
and it is first in has priority. We allow them to take leave in 2 blocks if they wish.’

[97] It is apparent from the evidence of Messrs Zipple, Troup and Poke that labour 
requirements in oyster farming fluctuate throughout the year, as is commonly the case in 
primary production enterprises.  In oyster farming the peak demand period for labour is in the 
warmer months, between November and April.  Depending on the location of the business 
and the market it services, the periods around Christmas and Easter can be particularly busy.  
None of the three witnesses reported any current award covered employee with more than 
8 weeks’ accrued annual leave, though Mr Troup notes ‘that in the past we did’.  

[98] We turn first to the terms of the existing provisions in the Aquaculture Award which 
are said to sufficiently deal with the issue of excessive leave accruals.  As we have mentioned, 
clause 23.4 provides that annual leave is to be taken ‘within 18 months of the entitlement 
accruing’.  To ensure that annual leave is taken within 18 months of accrual, clause 23.4 








[2016] FWCFB 6836

25

provides that an employer may require an employee to take ‘a period of annual leave from a 
particular date’ provided the employee is given ‘at least 28 days’ notice’.

[99] In the course of oral argument the NSW Farmers’ advocate explained that the purpose 
of clause 23.4 was ‘to act as an instigator to have discussions with employees and to know 
that the ability is there if it is needed; however, it’s more to commence the discussion with 
employees, to encourage employees to take annual leave during the low season’.54 It seems 
that leave issues are presently managed through direct discussions between the employer and 
employees55 and such a collaborative approach for the taking of leave ensures sufficient 
labour during peak periods.

[100] We accept what is said about how clause 23.4 may operate in practice – at least in 
respect of oyster growing – but the fact remains that clause 23.4 suffers from the same 
deficiencies we identified earlier in respect of clause 25.4(b) and (c) of the BCMI Award, 
namely:

 As the NES provides that the entitlement to paid annual leave accrues progressively 
throughout the year a provision such as clause 23.4 is simply impractical.  A request 
to take annual leave ‘within 18 months’ of the entitlement accruing’ may mean that 
an employee could be required to take a period of accrued paid annual leave each 
week.

 The jurisdictional basis for that part of clause 23.4 that allows an employer to direct 
an employee to take paid annual leave, upon giving at least 28 days’ notice, is 
s.93(3), which provides that any such requirement must be ‘reasonable’.  The 
assessment of whether such a requirement is ‘reasonable’ within the meaning of 
s.93(3) is not viewed solely from the perspective of the employer.  In this regard we 
note that clause 23.4 differs from the model term in a number of respects, including 
those set out earlier at paragraph [73], in respect of clause 25.4(c) of the BCMI
Award.

[101] On the basis of the matters set out above we have concluded that the excessive leave 
term in the Aquaculture Award (i.e. clause 23.4) does not provide a fair and relevant 
minimum safety net of terms and conditions of employment. On that basis the term does not 
meet 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 existing award term provides 
that an employee may be required to take paid annual leave in particular circumstances and, 
having considered the terms of clause 23.4, that requirement is not reasonable. As that term in 
the Aquaculture Award does not meet the requirements of s.93(3) it follows it is not a term 
which may be included in a modern award.

[102] We now turn to consider whether the model excessive leave term should be inserted 
into the Aquaculture Award.

[103] We are not aware of any survey data on the usage or accrual of paid annual leave 
which specifically relates to employees covered by the Aquaculture Award.  Table 1 in the 
May 2016 decision56 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, as shown below.








[2016] FWCFB 6836

26

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: HILDA survey, Waves 10–14

[104] 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.

[105] 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.

[106] At an earlier stage of these proceedings Ai Group, ACCI and other employer bodies 
relied on a joint employer survey conducted in May 2014 about matters relating to annual 
leave (the Employer Survey).57 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 of
accrued annual leave.58 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.59 The 
respondents to the Employer Survey included those from the ANZSIC industry division 
‘Agriculture, forestry and fishing’.60

[107] Further, as we have mentioned, one of the three witnesses in these proceedings stated 
that in the past his business had employed an award covered employee with more than 
8 weeks’ accrued annual leave. 

[108] Taken as a whole the evidence supports the finding that excessive leave accruals are 
likely to be an issue for at least some employers and employees covered by this award. It is 
also relevant to note that a significant proportion of employers covered by the Aquaculture
Award are small businesses.  The employer evidence before the Commission in the June 2015 
proceedings indicated 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 








[2016] FWCFB 6836

27

termination. On the material before us, we are satisfied that it is necessary to insert a term into 
the Aquaculture Award to deal with excessive annual leave accruals.  

[109] As we have mentioned, in the event the Commission decided to insert an excessive 
leave term into the Aquaculture Award then NSW Farmers seeks a variation to the model 
term which would add the following words at the end of clause 1.5(c):

‘except if the period of annual leave being requested falls within high season as 
advised by the employer previously.’

[110] The June 2016 decision61 finalised the plain language version of the excessive leave 
model term.  The final version of the model term is set out at Attachment C to that decision.  
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 1.5 
provides an avenue for an employee to exercise control over the time at which the leave is to 
be taken.  It is this aspect of the model term which NSW Farmers seeks to vary, in respect of 
this award.  Clause 1.5, with the proposed variation highlighted, provides as follows:

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 annual 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 annual
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

(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.








[2016] FWCFB 6836

28

(e) The employer must grant paid annual leave requested by a notice under paragraph (a)
except if the period of annual leave being requested falls within high season as advised 
by the employer previously.

[111] During the course of oral argument the NSW Farmers’ representative highlighted that 
‘the main concern for the industry is really the risk of not being fully staffed during the high 
season’.62 This risk is said to arise in circumstances where you reach the point that employees 
are able to require the employer to approve their leave – under clause 1.5 of the model term. 

[112] In considering the submission put it needs to be understood that under the model term 
an employee’s right to require that a period of paid annual leave be granted is subject to a 
number of limitations, including:

(i) the employee must have had an excessive leave accrual (i.e. 8 weeks’ for most 
employees63) for more than 6 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 8 weeks’ notice of the commencement of 
leave; and

(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 4 weeks’ leave.

[113] To these limitations we would add three additional considerations.

[114] First, in the event of a dispute about the taking of annual leave then either party may 
elect to have that matter referred to the Commission pursuant to the dispute resolution clause 
in the award.

[115] Second, as clarified in the May 2016 decision,64 any variation determination inserting 
the model excessive leave term into a modern award will provide that the clause 1.5 of the 
model term will commence operation 12 months after the commencement of the balance of 
the model term.  This is intended to provide employers with some additional time to address 
existing excessive leave balances before the provisions which permit employees to exercise 
greater control over the time they may take leave.

[116] Third, the arrangement for the taking of leave in at least the oyster farming sector 
covered by this award have been characterised by discussion and collaboration.  There is no 
reason to believe that such a cooperative approach to the time at which leave is taken will not 
continue. In that regard, we note that the annual leave provisions as varied will continue to 
rely upon the provision of s.88 of the Act.  That is, in general terms, paid annual leave may be 
taken as agreed between the employee and his or her employer, and the employer must not 
unreasonably refuse an employee request.  The circumstances of a small business in a highly 
seasonal industry would, amongst other considerations, be relevant to the assessment of an 
employee request for leave.








[2016] FWCFB 6836

29

[117] 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.  It 
seems to us that the issues identified by NSW Farmers – seasonality, fluctuating business 
demands and a high proportion of small business operators – are also characteristics of a 
number of other award covered sectors (including the Agriculture Awards dealt with in the 
May 2016 decision65). On the material before us we are not persuaded that the model term 
should be modified in the manner proposed by NSW Farmers.

[118] In the event that the insertion of the model term does in fact give rise to particular 
practical difficulties then a subsequent application may be made to vary the award to address 
such difficulties at that time.

[119] We are satisfied that the variation of the Aquaculture Award to delete existing clause 
23.4 and to insert the model excessive leave term is necessary to ensure that the award meets 
the modern awards objective.  We rely on the findings set out in the June 2015 decision66 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. 67

[120] We raise one final matter in concluding.  As we have mentioned, clause 23.3 of the 
Aquaculture Award provides a means by which employers may direct employees to take a 
period of paid annual leave during a partial or full closedown of the employer’s business. It 
appears that the provision is not widely utilised in practice.  One reason for the limited use of 
the clause may be the manner in which it is drafted.  We propose to redraft clause 23.3 – in 
plain language and to make it clear that it operates where seasonal factors reduce labour 
requirements – in order to make the provision more accessible for small business operators.

[121] The variation to clause 23.3 will be included as part of the draft variation 
determination giving effect to our decision and interested parties will have an opportunity to 
comment.

3. Maritime awards 

[122] An issue arising from the May 2016 decision is whether the six modern awards in the 
Maritime industry (the Maritime Industry Awards) should be varied to include some or all of 
the model annual leave terms. The Maritime Industry Awards are as follows:

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.








[2016] FWCFB 6836

30

[123] A Background Paper and directions68 were issued by the Commission prior to the 
hearing on 1 July 2016. At the hearing, MIAL, AMMA and the MUA were granted an 
adjournment to provide further submissions and evidence in support of their position. The 
parties were requested to provide a consolidated submission, replacing earlier submissions, 
addressing the issues set out in paragraphs [233]–[238] of the May 2016 decision69. Therefore, 
we do not propose to consider, in detail, any earlier submissions in this decision. 

[124] On 8 July 2016 a Statement and directions70 were issued setting out timeframes for the 
submissions. The Statement also provided that the matter would be finalised on the basis of 
submissions filed, without a further hearing. AMMA and MIAL filed a joint submission on 12 
August 2016 (the AMMA/MIAL joint submission).  The MUA filed a separate submission on 
the same day.

[125] The AMMA/MIAL joint submission deals with the six Maritime awards in three 
categories, as follows:

(i) The Marine Towage Award 2010; the Maritime Offshore Oil and Gas Award
2010; and the Seagoing Industry Award 2010: the insertion of each of the 
model terms is opposed in respect of each of these awards.

(ii) The Professional Diving Industry (Industrial) Award 2010: the insertion of the 
model terms is partly opposed.

(iii) The Dredging Industry Award 2010 and the Ports, Harbours and Enclosed 
Water Vessels Award 201071: AMMA/MIAL do not oppose the insertion of the 
model terms in these awards.

[126] The Maritime Union of Australia (MUA) also filed a submission on 12 August 201672

in which it did not oppose the insertion of any of the annual leave model terms into the 
Maritime Industry Awards.

[127] As noted above, there is no longer any opposition to the insertion of the excessive 
leave, leave in advance and cashing out model terms into the Dredging Industry Award 2010
and the Ports, Harbours and Enclosed Water Vessels Award 2010.  We propose to vary these 
two awards to insert the three model terms.

[128] We are satisfied that the variation of these two awards to insert the model terms is 
necessary to ensure that these awards achieve the modern awards objective.  We rely on the 
findings set out in the June 2015 decision73 and the September 2015 decision.  As to the 
matters in s.134(1)(a)–(h), insofar as they are relevant, we are satisfied that:

 the insertion of the excessive leave model term in these awards will promote flexible 
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));

 the insertion of the cashing out model term in these awards will promote flexible 
work practices (s.134(1)(d)), reduce employment costs and the regulatory burden on 
business (s.134(1)(f)); and

 the insertion of the leave in advance model term in these awards is consistent with 
the considerations in s.134(1)(a), (c), (d), (f) and (g).74








[2016] FWCFB 6836

31

[129] There is one further matter in relation to the Ports, Harbours and Enclosed Water 
Vessels Award 2010.  Clause 22.4 of that award contains the following provision in relation to 
the requirement to take leave:

Requirement to take annual leave

[22.4 varied by PR994513 from 01Jan10]

Annual leave must be taken within six months of the entitlement accruing. An employer may 
require an employee to take a period of annual leave provided the employee is given at least 
14 days’ notice.

[130] For the reasons we have expressed for deleting clause 25.4(b) and (c) of the BCMI 
Award, we have formed the provisional view that clause 22.4 of the Ports Harbours and 
Enclosed Water Vessels Award 2010 should also be deleted.

[131] We now turn to the three awards in category (i) above (at [125]).

[132] In the Seagoing Industry Award 2010, clause 20.1 provides, broadly speaking, that an 
employee is entitled to 0.926 days’ leave for each day of duty on a vessel (or travelling to or 
from a vessel).  This ‘leave factor’ is intended to incorporate the following:

(a) leave with pay for weekends and public holidays worked;
(b) annual leave with pay of five weeks per year;
(c) personal/carer’s leave;
(d) compassionate leave; and
(e) a 35 working week.

[133] Clause 20.3 deals with the ‘taking of leave’:

Taking of leave

The taking of leave will, as far as practicable, be correlated with the running of the vessel in 
which the employee is engaged. The period of leave granted will approximate as closely as 
possible both to the actual amount of leave due to the employee and to the date and time when 
the employee can most conveniently return to duty.

[134] Clause 20.4 deals with ‘leave in advance’, it states:

Leave in advance

(a) Where an employee’s leave has expired, an employer may require an employee to take up 
to 14 days of leave in advance. An employee will not be required to take more than 14 days of 
leave in advance unless:

(i) there has been prior consent by the employee; or

(ii) a swing cycle agreement applying to the employee provides otherwise.

(b) The giving and taking of leave will be arranged having regard to:

(i) avoidance of delays to a vessel’s schedule, the voyaging pattern of the 
employee’s regular vessel and exigencies of the employer’s service;

(ii) the need to correct imbalances in leave and duty periods;

(iii) the employee’s home port;






http://www.fwc.gov.au/awardsandorders/html/PR994513.htm


[2016] FWCFB 6836

32

(iv) the need to reduce costs of travel; and

(v) whether the employee has a right to accumulate leave under clause 20.5.

(c) Unless otherwise agreed between the employer and the employee, the leave to which an 
employee is entitled under this clause will be granted by the employer and taken by the 
employee not later than eight months after it has commenced to accrue.

[135] The Maritime  Offshore Oil and Gas Award 2010 and the Marine Towage Award 2010
also contain ‘leave factor’ provisions, though differently expressed.75

[136] Clause 19.3 of the Maritime Offshore Oil and Gas Award 2010 also deals with the 
taking of leave, it states:

Taking of leave

(a) Any extended period of time off (i.e. outside of the normal swing) is to be taken at a 
mutually agreed time, having regard to the operational necessity of ensuring that only part of 
the permanent crew members in each department on the vessel take such time off at any one 
time, to ensure the continued operational efficiency of the vessel.

(b) When proceeding on an extended period of time off, it will be the responsibility of the 
employee to ensure that they have sufficient entitlements due to enable them to draw 
continuous pay up to the day of the regular crew change when they are due to rejoin the 
vessel.

(c) The extent to which time off granted is more or less than that due will be debited or 
credited to the employee as less or additional time off to be granted; provided that the 
employee may not be required to take more than seven days of leave in advance.

[137] Clause 19.2(d) of that award is also relevant, it states:

The maximum time off an employee may accrue under this clause is 105 days. Unless 
agreement has been reached between the employee and employer, an employee will be 
required to take time off to ensure that the maximum of 105 days is not exceeded. Provided 
that where an employee who is scheduled on the basis of four weeks on, four weeks off, the 
maximum accrual will be 84 days.

[138] Clause 23.4 of the Marine Towage Award 2010 deals with the taking of leave from 
duty:

23.4 Employers will consult with their employees and prepare a roster providing for the 
taking of leave from duty. Where practicable, the roster should provide for predictability to the 
taking of 140 days of leave from duty in each year (or the proportion of the employee’s 
entitlement to rostered leave days in a year that 140 bears to 168).

[139] The AMMA/MIAL joint submission asserts that the existing award terms give 
employers ‘the necessary flexibility to manage rosters by working in sync with the ‘swing 
system’ eg four or five weeks on duty followed by four or five weeks off duty’ and that 
‘annual leave cannot be accommodated for employees during the on duty period’.

[140] It seems to us that the operation of the swing system in these awards is likely to 
minimise excessive paid annual leave accruals and on that basis we do not propose to vary 
these awards to insert the excessive leave model term. We now turn to the question of whether 
these awards are varied to insert the cashing out and leave in advance model terms.








[2016] FWCFB 6836

33

[141] None of these awards presently provide for the cashing out of annual leave.  The 
AMMA/MIAL joint submission opposes the insertion of the cashing out model term 
essentially on the basis that employer would need to individually calculate each of the 
components of the accrued leave factor every time that an employee wanted to cash out a 
period of annual leave and this would be ‘an unduly complex administrative burden on 
employers’.  Two observations may be made in response to the submission put.

[142] First, earlier in these proceedings 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 proceedings 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.

[143] AMMA is a member of the Employer Group. It is difficult to reconcile AMMA’s 
opposition to the insert of the cashing out model term 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. Further, 
during the course of the proceedings on 1 July 201676 AMMA was expressly asked to address 
this issue in submissions to be filed by 12 August 2016 but the AMMA/MIAL joint 
submission does not address this issue at all.

[144] The second point is that the cashing out model term is a facilitative provision – it 
facilitates the making of an agreement between an employer and employee to cash out a 
particular amount of accrued paid annual leave by the employee.  There is no obligation on 
the employer to enter into such an agreement.  Given the facilitative nature of this model term 
the ‘administrative burden’ argument is overstated.  If the model term was inserted into these 
awards it would be a matter for an employer to weigh the benefits of agreeing to a cashing out 
request against any administrative difficulties.  Absent the insertion of the model term 
employees and employers would be denied the opportunity of considering the option of 
cashing out an amount of accrued paid leave.

[145] Our provisional view is that these three awards should be varied to insert the cashing 
out model term.

[146] Similar considerations arise in respect of the leave in advance model term.  The 
Maritime Offshore Oil and Gas Award 2010 was among the modern awards which were the 
subject of the Employer Group claim to insert a standard leave in advance term and the model 
term is a facilitative provision.  There is no obligation on the employer to provide ‘leave in 
advance’.

[147] We note that clause 20.4 of the Seagoing Industry Award 2010 deals, in part, with 
‘leave in advance’.  However, the existing term deals with the circumstances where an 
employer may require an employee to take leave in advance.  The model leave in advance 
term is directed at the circumstances where the employer and employee ‘agree in writing to 
the employee taking a period of paid annual leave before the employee has accrued an 
entitlement to the leave’.








[2016] FWCFB 6836

34

[148] Our provisional view is that these three awards should be varied to insert the leave in 
advance model term and that clause 20.4 of the Seagoing Industry Award 2010 should be 
retitled ‘leave in advance: employer direction’.

[149] We now turn to the last of the Maritime Awards – the Professional Diving (Industrial) 
Industry Award 2010.  This award provides different entitlements for inshore and offshore 
during operations.  In respect of offshore diving it is submitted that the award effectively 
contains a ‘leave factor’ of one paid day off duty for each on-duty day.  Subclauses 22.1 and 
22.2 state:

22.1 Leave accrual

For each on-duty day worked employees, other than casual employees, will receive one paid 
off-duty leave day.

22.2 Rosters

The employer will establish a regularly recurring roster of equal on-duty and off-duty 
periods for each work site. The on-duty and off-duty periods will each be of 14 days’ 
duration, provided that other equal periods may be worked by agreement between the parties.

[150] The leave provisions in respect of inshore divers are those provided in the NES (see 
clause 25.1).

[151] The AMMA/MIAL joint submission does not oppose the variation of the award to 
insert the annual leave model terms in respect of inshore divers, but does oppose the 
application of those model terms to offshore divers.

[152] We do not propose to deal now with whether the excessive leave model term should 
be inserted into this award.  It seems to us that there are a number of drafting issues with 
clause 22 which need to be addressed before this matter can be determined.  For example, 
what are the matters which are intended to be compensated for by the ‘leave factor’ in clause 
22.1?  We will return to the excessive leave model term issue once this award has been 
reviewed in the award stage of the Review.

[153] As to the cashing out and leave in advance model terms, our provisional view is that 
the Professional Diving (Industrial) Industry Award 2010 should be varied to insert these 
model terms and they should not distinguish between inshore and offshore divers.  As we 
have mentioned, these model terms are facilitative only and, further, differentiating between 
inshore and offshore divers in the way proposed in the AMMA/MIAL joint submission would 
add an unnecessary level of complexity to the award.

3. Next steps

[154] The 18 modern awards set out at paragraph [8] will be varied to delete the existing 
provisions dealing with the taking of annual leave within a specified period and to insert the 
excessive leave model term.  Draft variation determinations will be issued shortly and 
interested parties will have 7 days within which to comment.

[155] The BCMI Award will be varied in the manner set out a paragraphs [84]–[86] of this 
decision.  A draft variation determination will be issued shortly and interested parties will 
have 28 days within which to comment.








[2016] FWCFB 6836

35

[156] The Aquaculture Award will be varied in the manner set out at paragraphs [119]–[121]
of this decision.  A draft variation determination will be issued shortly and interested parties 
will have 28 days within which to comment.

[157] The Dredging Industry Award 2010 and the Ports, Harbours and Enclosed Water 
Vessels Award 2010 will be varied to insert the excessive leave, leave in advance and cashing 
out model terms.  Draft variation determinations will be issued shortly and interested parties 
will have 7 days within which to comment.

[158] As to the other Maritime Industry Awards, interested parties will have until 5.00pm 
(AEST) Friday 7 October 2016 to notify the Commission (at amod@fwc.gov.au) if they wish 
to contest the Full Bench’s provisional views in respect of the deletion of clause 22.4 of the 
Ports, Harbours and Enclosed Water Vessels Award 2010 (see paragraph [130] above) and 
the variation of the Marine Towage Award 2010; the Maritime Offshore Oil and Gas Award 
2010; the Professional Diving (Industrial) Industry Award 2010; and the Seagoing Industry 
Award 2010 to insert the cashing out and leave in advance model terms (see paragraphs [145], 
[148] and [153]. If any person notifies the Commission by the specified date that they wish to 
contest the Full Bench’s provisional view in respect to one or more of these awards then we 
will issue further directions for the hearing and determination of the issue.  If no notifications 
are received by the specified date we will vary these awards in accordance with the 
provisional views set out above.

[159] Finally, as mentioned in the May 2016 decision,77 the insertion of the excessive leave 
model term in the Air Pilots Award 2010; the Aircraft Cabin Crew Award 2010 and the 
Textile, Clothing, Footwear and Associated Industries Award 2010 will be the subject of 
further consideration later this year.  Directions in respect of these awards will be issued in the 
coming weeks.

PRESIDENT

Appearances:

P Sebbens for Coal Mining Industry Employer Group
G Kusuma for New South Wales Farmers Industrial Association
A Thomas for Construction, Forestry, Mining and Energy Union - Mining and Energy 
Division
T Pacey for Professionals Australia Collieries Division
S Crawford for Australian Workers’ Union
S Barklamb for Australian Mines and Metals Association






mailto:amod@fwc.gov.au


[2016] FWCFB 6836

36

Hearing details:

2016.

Sydney, Melbourne (video hearing):

September 13.

Printed by authority of the Commonwealth Government Printer

Price code G, PR585700
                                               

1 [2015] FWCFB 3406
2 [2016] FWCFB 5771
3 [2016] FWCFB 3177
4 [2016] FWCFB 3953
5 Ai Group further submission, 7 December 2015 at para 13
6 Ibid at para 15
7 Ibid at para 73
8 [2016] FWCFB 3177at para [126]
9 Transcript – 1 July 2016
10 [2016] FWCFB 4525 at para [9]
11 Ibid
12 The model term to be inserted into the Nurses Award 2010 will require modification given the quantum of annual leave 

specified in cl 31.1
13 [2016] FWCFB 6442
14 See [2015] FWCFB 3406 at paras [116] and [138] 
15 See [2016] FWCFB 3177 at paras [89]–[117]
16 [2016] FWCFB 3177 at para [192]
17 At para [381]
18 Ibid at para [383]
19 Ibid at para [382]
20 [2015] FWCFB 3124
21 Ibid at para [25]
22 In the case of clause 25.4(b) CMIEG conceded during the course of oral argument that this subclause required ‘significant 

redrafting’, see Transcript 13 September 2016 at para [56].  AMMA generally supported the CMIEG’s submissions.
23 Professionals Australia, Collieries Division supported the CFMEU’s submissions
24 CMIEG submission dated 26 August 2016 at para [6(b)]
25 See Transcript 13 September 2016 at paras [194]–[196]
26 [2015] FWCFB 3406 at paras [117]-[137]
27 Ibid at para [138]
28 Transcript 13 September 2016 at para [101]
29 Transcript 13 September 2016 at para [143]
30 Transcript 13 September 2016 at paras [35]–[37]
31 Transcript 13 September 2016 at para [56]
32 Transcript 13 September 2016at paras [183]–[185]
33 Transcript 13 September 2016 at para [67]
34 Compare Downe v Sydney West Area Health Service (No 2) (2008) 71 NSWLR 633 at paras [320]–[328] and Walker v 

Citigroup Global Markets Pty Ltd (2005) 226 ALR 114 at paras [203]–[204]
35 (2014) 253 CLR 169 at paras 195-196






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https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/130916_am201447.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/130916_am201447.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/130916_am201447.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/130916_am201447.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/130916_am201447.pdf
https://www.fwc.gov.au/documents/decisionssigned/html/2015fwcfb3406.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2015fwcfb3406.htm
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/130916_am201447.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201447-sub-cmieg-260816.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/130916_am201447.pdf
https://www.fwc.gov.au/documents/decisionssigned/html/2015fwcfb3124.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2015fwcfb3124.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2016fwcfb3177.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2016fwcfb3177.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2015fwcfb3406.htm
https://www.fwc.gov.au/documents/documents/awardmod/decs/2016fwcfb6442.pdf
https://www.fwc.gov.au/documents/decisionssigned/html/2016fwcfb4525.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2016fwcfb4525.htm
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/20160701am201447conf.pdf
https://www.fwc.gov.au/documents/decisionssigned/html/2016fwcfb3177.htm
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201447-sub-aig-071215.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201447-sub-aig-071215.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201447-sub-aig-071215.pdf
https://www.fwc.gov.au/documents/decisionssigned/html/2016fwcfb3953.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2016fwcfb3177.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2015fwcfb5771.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2015fwcfb3406.htm


[2016] FWCFB 6836

37

                                                                                                                                                  

36 See for example Paterson (2009) ‘Implied Fetters on the Exercise of Discretionary Contractual Powers’, Monash 
University Law Review, Vol. 35, No. 45 at pp. 59–73

37 Irving M (2012) ‘The Contract of Employment’, Lexis Nexis Butterworths at [8.28]; also see Regulski v Victoria [2015] 
FCA 206 at para [219]

38 (2006) 153 IR 426 at para 438
39 (1966) 66 IR 182
40 Ibid at para 184
41 [2016] FWCFB 5771 at paras [93]–[94]
42 [2016] FWCFB 5771 at paras [94]–[96]
43 [2016] FWCFB 5771at para [71]
44 [2015] FWCFB 3406 at para [200]
45 CMIEG submission 26 October 2015 at paras [26]–[28]
46 Transcript 13 September 2016 at para [210]
47 [2016] FWCFB 5771at paras [134]–[138]
48 Transcript 13 September 2016 at para [116]
49 Transcript 13 September 2016at paras [199]–[208]
50 At para [17] of the NSW Farmers’ submission of 26 August 2016
51 Exhibit NSW Farmers 1
52 Exhibit NSW Farmers 2
53 Exhibit NSW Farmers 3
54 Transcript 13 September 2016 at para [235]
55 Ibid at paras [283]–[284]
56 [2016] FWCFB 3177 at para [158]
57 Ai Group submission and witness statements 20 June 2014, Witness statement of Mr Ben Waugh, Attachment A
58 [2015] FWCFB 3406 at para [116]
59 Ai Group submission and witness statements, 20 June 2014, Witness statement of Mr Ben Waugh, Attachment E at p. 25
60 Witness Statement of Mr Ben Waugh, 20 June 2014
61 [2016] FWCFB 3953
62 Transcript 13 September 2016 at para 248
63 The threshold amount for shiftworkers is 10 weeks
64 [2016] FWCFB 3177 at [83]–[88]
65 [2016] FWCFB 3177 at [128]–[164]
66 See [2015] FWCFB 5771 at [134]–[138]
67 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.  
68 [2016] FWCFB 4332
69 Transcript 1 July 2016 at paras 57–64
70 [2016] FWCFB 4525
71 Ibid at para 9
72 Submission 12 August 2016
73 [2015] FWCFB 3406
74 See June 2015 decision [2015] FWCFB 3406 at para [414]






https://www.fwc.gov.au/documents/decisionssigned/html/2015fwcfb3406.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2015fwcfb3406.htm
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201447-sub-mua-120816.pdf
https://www.fwc.gov.au/documents/decisionssigned/html/2016fwcfb4525.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2016fwcfb4525.htm
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/common/20160701_am201447.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2016fwcfb4332.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2015fwcfb5771.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2016fwcfb3177.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2016fwcfb3177.htm
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/130916_am201447.pdf
https://www.fwc.gov.au/documents/decisionssigned/html/2016fwcfb3953.htm
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/common/am201447-sub-aig-230614.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/common/am201447-sub-aig-230614.pdf
https://www.fwc.gov.au/documents/decisionssigned/html/2015fwcfb3406.htm
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/common/am201447-sub-aig-230614.pdf
https://www.fwc.gov.au/documents/decisionssigned/html/2016fwcfb3177.htm
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/130916_am201447.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/130916_am201447.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201447-sub-nswfia-260816.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201447-sub-nswfia-260816.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201447-sub-nswfia-260816.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201447-sub-nswfia-260816.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/130916_am201447.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/130916_am201447.pdf
https://www.fwc.gov.au/documents/decisionssigned/html/2015fwcfb5771.htm
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/130916_am201447.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/common/am201447-sub-cmieg-261015.pdf
https://www.fwc.gov.au/documents/decisionssigned/html/2015fwcfb3406.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2015fwcfb5771.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2015fwcfb5771.htm
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75 The ‘leave factor’ in the Maritime Offshore Oil and Gas Award 2010 is 1.153 days’ leave for each day of duty (or 
travelling to or from a vessel or place of work) – see clause 19.1(a) and is intended to incorporate:

 Leave with pay for weekends and public holidays worked;

 Annual leave with pay of five weeks per year;

 Personal/carer’s leave; and

 Time spent travelling in off duty time (clause 19.2(a)).  

The ‘leave factor’ in the Marine Towage Award 2010 is set out in clause 23.2:

(a) A permanent full-time employee will be entitled to 168 days free of duty in each year, or to proportionate leave for 

any continuous service of less than a year. 

(b) A part-time employee’s entitlement to days free of duty will be determined in accordance with clause 10.2. 

(c) The leave prescribed in clause 23.2(a) above includes: 

(i) 104 days of leave, being instead of weekends; 

(ii) five weeks of paid annual leave for shiftworkers under the NES. Employees under this award are considered 

to be shiftworkers for the purposes of the NES;

(iii) public holiday entitlements under the NES; and 

(iv) an additional 28 days’ leave, to give effect to a 35 hour week.
76 Transcript 1 July 2016 at paras [57]–[86]
77 [2016] FWCFB 3177 at [93]–[95] and [123]–[126]






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39

Cases cited by this decision: