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Fair Work Act 2009
s.156 - 4 yearly review of modern awards
4 yearly review of modern awards—Abandonment of employment
(AM2016/35)
JUSTICE ROSS, PRESIDENT MELBOURNE, 1 FEBRUARY 2017
4 yearly review of modern awards – abandonment of employment.
[1] Section 156 of the Fair Work Act 2009 (Cth) (FW Act) requires the Commission to
review all modern awards every 4 years (the Review). This Statement deals with the review of
the ‘abandonment of employment’ terms in a number of modern awards.
[2] Division 3 of Part 2-3 of the FW Act deals with the terms of modern awards that may
or must be included in modern awards, and the terms that must not be included in modern
awards. In particular, s.136 sets out what can and cannot be included in a modern award.
[3] In a decision issued on 13 January 2017 a Full Bench dealing with the appeal in
Boguslaw Bienias, v Iplex Pipelines Australia Pty Limited1 (Iplex) decided (at [49]–[58]) that
clause 21 in the Manufacturing and Associated Industries Occupations Award 2010 (the
Manufacturing Award), if read as effecting an automatic termination of employment in
specified circumstances, is not a term that is either a permitted or required in a modern award
and pursuant to s.137 of the FW Act is therefore of no effect. Clause 21 of the Manufacturing
Award deals with ‘abandonment of employment’ and provides as follows:
21. Abandonment of employment
21.1 The absence of an employee from work for a continuous period exceeding three
working days without the consent of the employer and without notification to the
employer is prima facie evidence that the employee has abandoned their employment.
21.2 If within a period of 14 days from their last attendance at work or the date of their last
absence in respect of which notification has been given or consent has been granted an
employee has not established to the satisfaction of their employer that they were
absent for reasonable cause, the employee is deemed to have abandoned their
employment.
21.3 Termination of employment by abandonment in accordance with clause 21—
Abandonment of employment operates as from the date of the last attendance at work
or the last day’s absence in respect of which consent was granted, or the date of the
1 [2017] FWCFB 38
[2017] FWC 669
STATEMENT
E AUSTRALIA FairWork Commission
https://www.fwc.gov.au/documents/decisionssigned/html/2017fwcfb38.htm
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last absence in respect of which notification was given to the employer, whichever is
the later.
[4] Five other modern awards contain similar provisions to that set out above. A list of
those awards and the relevant abandonment of employment provisions is at Attachment A.
[5] The review of abandonment of employment terms in the awards in Attachment A and
in the Manufacturing Award will be referred to the Full Bench that dealt with the appeal in
Iplex for review. The Full Bench will issue directions in due course.
PRESIDENT
Printed by authority of the Commonwealth Government Printer
Price code C, PR589886
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ATTACHMENT A—List of awards containing abandonment of employment
terms
Abandonment of employment terms are found in the following modern awards2
Award Extract
Business EQUIPMENT
AWARD 2010 [MA000021]
17. Abandonment of employment
17.1 The absence of an employee from work for a continuous
period exceeding two working days without the consent
of the employer and without notification to the employer
will be prima facie evidence that the employee has
abandoned the employment.
17.2 Provided that if within a period of seven days from the
employee’s last attendance at work or the date of the
employee’s last absence in respect of which notification
has been given or consent has been granted, an employee
has not established to the satisfaction of the employer
that the employee is absent for reasonable cause, the
employee will be deemed to have abandoned the
employment.
17.3 Termination of employment by abandonment in
accordance with this clause will operate as from the date
of the last attendance at work or the last day’s absence in
respect of which consent was granted, or the date of the
last absence in respect of which notification was given to
the employer, whichever is the later.
Contract Call Centres
Award 2010 [MA000023]
16. Abandonment of employment
16.1 The absence of an employee from work for a continuous
period exceeding three working days without the consent
of the employer and without notification to the employer
will be prima facie evidence that the employee has
abandoned the employment.
16.2 Provided that if within a period of 14 days from the
employee’s last attendance at work or the date of the
employee’s last absence in respect of which notification
has been given, or consent has been granted, an employee
has not established to the satisfaction of the employer
that the employee is absent for reasonable cause, the
employee will be deemed to have abandoned the
employment.
16.3 Termination of employment by abandonment in
accordance with this clause will operate as from the date
of the last attendance at work or the last day’s absence in
respect of which consent was granted, or the date of the
last absence in respect of which notification was given to
2 Abandonment of employment terms are also found in five modern enterprise awards
https://www.fwc.gov.au/documents/documents/modern_awards/award/ma000023/default.htm
https://www.fwc.gov.au/documents/documents/modern_awards/award/ma000021/default.htm
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Award Extract
the employer, whichever is the later.
Graphic Arts, Printing and
Publishing Award 2010
[MA000026]
14. Abandonment of employment
14.1 The absence of an employee from work for a continuous
period exceeding three working days without the consent
of the employer and without notification to the employer
may be evidence that the employee has abandoned their
employment.
14.2 If within a period of 14 days from the last attendance at
work or date of the last absence in respect of which
notification has been given or consent has been granted,
an employee has not established to the satisfaction of
their employer that the employee was absent for a
reasonable cause, the employee is deemed to have
abandoned their employment.
14.3 Termination of employment by abandonment in
accordance with this clause will operate as from the date
of the last attendance at work, or the last day’s absence
for which consent was granted, or the date of the last
absence in respect of which notification was given to the
employer, whichever is later.
Manufacturing and
Associated Industries and
Occupations Award 2010
[MA000010]
21. Abandonment of employment
21.1 The absence of an employee from work for a continuous
period exceeding three working days without the consent
of the employer and without notification to the employer
is prima facie evidence that the employee has abandoned
their employment.
21.2 If within a period of 14 days from their last attendance at
work or the date of their last absence in respect of which
notification has been given or consent has been granted
an employee has not established to the satisfaction of
their employer that they were absent for reasonable
cause, the employee is deemed to have abandoned their
employment.
21.3 Termination of employment by abandonment in
accordance with clause 21—Abandonment of
employment operates as from the date of the last
attendance at work or the last day’s absence in respect of
which consent was granted, or the date of the last absence
in respect of which notification was given to the
employer, whichever is the later.
https://www.fwc.gov.au/documents/documents/modern_awards/award/ma000010/default.htm
https://www.fwc.gov.au/documents/documents/modern_awards/award/ma000026/default.htm
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Award Extract
Nursery Award 2010
[MA000033]
11. Abandonment of employment
11.1 The absence of an employee from work for a continuous
period exceeding three working days without the consent
of the employer and without notification to the employer
is evidence that the employee has abandoned their
employment.
11.2 If within a period of 14 days from their last attendance at
work or the date of their last absence in respect of which
notification has been given or consent has been granted
an employee has not established to the satisfaction of
their employer that they were absent for reasonable
cause, the employee is deemed to have abandoned their
employment.
11.3 Termination of employment by abandonment in
accordance with this clause operates as from the date of
the last attendance at work or the last day’s absence in
respect of which consent was granted, or the date of the
last absence in respect of which notification was given to
the employer, whichever is the latter.
Wool Storage, Sampling
and Testing Award 2010
[MA000044]
10.5 Abandonment of employment
An employee who is absent from work for a continuous
period exceeding three working days without the consent
of the employer and without reasonable excuse will be
deemed to have abandoned their employment. The
termination of employment will be deemed to have taken
effect from the employee’s last attendance or the last day
on which the employee notified the employer of the
reason for the absence.
https://www.fwc.gov.au/documents/documents/modern_awards/award/ma000044/default.htm
https://www.fwc.gov.au/documents/documents/modern_awards/award/ma000033/default.htm
