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, 27 MARCH 2017
4 yearly review of modern awards - common issue - annual leave – timing of taking leave -
shutdown provision – Black Coal Mining Industry Award 2010.
1. Introduction
[1] This decision deals with a number of outstanding matters in relation to the variation of
annual leave terms in the Black Coal Mining Industry Award 2010 (the Black Coal Award). It
arises in the context of a review of annual leave provisions in modern awards more generally
and 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), 24 June 20164 (the June 2016 decision), 22 September 20165 (the September
2016 decision) and 19 December 20166 (the December 2016 decision).
[2] The outstanding issues concern the finalisation of the Determination varying the Black
Coal Award, in particular:
the form of shutdown provision to be included as part of the annual leave
arrangements; and
some minor editorial issues that arise from a draft determination issued by the Fair
Work Commission.
[3] The editorial issues are uncontroversial and we will deal with those later.
[4] The Construction, Forestry, Mining and Energy Union, Mining and Energy Division
(CFMEU), the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries
Union” known as the Australian Manufacturing Workers’ Union (AMWU) and The
Association of Professional Engineers, Scientists and Managers, Australia (APESMA)
(collectively, the Unions) oppose an amendment to the shutdown provision now being
proposed by the Coal Mining Industry Employer Group (CMIEG).
[5] Following a conference of the parties conducted by Commissioner Hampton on
25 November 2016, the Full Bench provided a further opportunity for interested parties to
[2017] FWCFB 959
DECISION
E AUSTRALIA FairWork Commission
[2017] FWCFB 959
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make additional submissions.7 The CMIEG, CFMEU and AMWU made additional
submissions consistent with the positions advanced at the November conference. We propose
to now express some provisional views in relation to this matter based upon the submissions
and material now before the Commission.
2. The history to the ‘shutdown issue’
[6] In the June 2015 decision and the September 2015 decision the Commission
determined model clauses in respect of ‘excessive annual leave’; ‘cashing out of annual
leave’; ‘electronic funds transfer and paid annual leave’; and ‘granting leave in advance’. In
the June 2015 decision the Commission rejected the Employer Group’s claim8 which sought
to insert a standard annual close-down term into a large number of modern awards, on the
basis that the proponents of the claim had not established a merit case sufficient to warrant
granting the claim. Relevantly for present purposes, the Commission was not satisfied that the
proposed model term was ‘reasonable’ in the sense contemplated by s.93(3). The Commission
left open the capacity for interested parties to apply to vary a particular modern award, to
either vary an existing close-down provision or to insert an appropriate provision, during the
Award stage of the Review.9
[7] In the September 2016 decision, the Commission dealt with an objection from the
CMIEG to the insertion of the model excessive leave provision into the Black Coal Award.
[8] Clause 25 of the Black Coal Award deals with annual leave. The relevant provisions at
the time of the September 2016 decision were subclauses 25.3, 25.4 and 25.10. Subclause
25.3 dealt with the accrual of annual leave and provided 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’
[9] Clause 25.4 dealt with the taking of annual leave, it stated:
‘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 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.’
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[10] Subclause 25.10 dealt with the taking of annual leave during the shutdown of all or
part of an employer’s operations; it provided 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.’
[11] In the September 2016 decision, we considered the terms of the Black Coal Award, the
context of the model provisions and our earlier findings which led to the adoption of those
model terms. We found, in effect, that the broad right for the employer to direct the taking of
annual leave under clause 25.4(c), without more, was not consistent with s.93(3) of the Fair
Work Act 2009 (Cth) (the FW Act). As a result, we decided to remove clause 25.4 and insert
the model excess leave provision.
[12] As a result, the draft determination issued by the Commission included the new model
excessive leave provision and, in effect, noted the additional provision for shutdown in clause
25.10 (which was to be re-numbered) but left the existing shutdown provision in its original
form.
3. The shutdown provision now proposed by the CMIEG
[13] The CMIEG have proposed the following revised shutdown clause (with variations
marked-up):
‘25.10 Shutdown
(a) When an employer shuts down all or part of its operation, clauses 25.4 and
25.6 do not apply to employees directly affected by the shutdown and this
clause will apply.
(b) 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.
(c) Subject to (d), employees directly affected by the shutdown who have an
entitlement to annual leave may be required by the employer to take a period of
paid annual leave during the period of the shutdown.
(d) Employees who are directly affected by the shutdown:
(i) may elect to take all or only part of that the employee's entitlement to
annual leave during the shutdown period, with the balance of the
shutdown period being unpaid leave; or
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(ii) Employees who are directly affected by the shutdown and who are not
yet entitled to sufficient annual leave may, during the shutdown period,
elect to take any annual leave in advance accrued in accordance with
clause 25.9 25.8, or otherwise be placed onto unpaid leave.’10
[14] In support of that proposal, the CMIEG contend11 that:
The deletion of clause 25.4 in its entirety has led to uncertainty about the operation
of clause 25.10 concerning shutdowns.
In the case of a shutdown, employers covered by the Black Coal Award would rely
upon the operation of both clauses 25.10 and 25.4(c) to direct employees to take
annual leave for the period of the shutdown, in order to avoid possible disputation.
The deletion of clause 25.4(c) makes unclear the ability of the employer to require,
or direct, the taking of paid annual leave during the period of a shutdown. While a
construction is available that an employer who ‘shuts down or all or any part of its
operation’ and gives notice to its employees of 28 days of that shutdown, is
consequently giving those employees notice of the requirement to take annual
leave, it is desirable that this requirement to take leave be made express in the
clause.
The amendments are necessary to ensure that the construction of clause 25, as a
whole, is clear and operates in the manner intended once the existing clause 25.4 is
removed and the new clauses 25.4, 25.5 and 25.6 are inserted into the Black Coal
Award.
The amendment also makes express what is otherwise implicit in that clause, that
employees who do not ‘elect’ to take annual leave that is accrued, or if they have
insufficient leave accrued to take annual leave in advance, would otherwise be on
unpaid leave.
It is orthodox for shutdown clauses to expressly provide for the requirement of
employees affected by a shutdown to take annual leave accrued, or in advance, or
otherwise be on unpaid leave. For example, modern awards in comparable
industries to the black coal mining industry provide shutdown clauses that include
an ability for the employer to "direct" or "require" the taking of annual leave (see
clause 23.6, Mining Industry Award 2010; clause 19.7, Coal Export Terminals
Award 2010; and clause 29.4, Quarrying Award 2010).
Such a clause is also consistent with section 93(3) of the FW Act, which permits
the inclusion in modern awards of terms that require an employee, or allow for an
employee to be required to take paid leave in particular circumstances, but only if
the requirement is reasonable. It is trite that requiring employees to take annual
leave for a period of a shutdown is reasonable. In that regard, the circumstance of a
shutdown is included in the ‘Note’ to section 94(5), as an example of an instance in
which an employer requiring an award/agreement free employee to take a period of
paid leave would be reasonable.
The amendment to clause 25.10 will make the clause ‘simple’ and ‘easy to
understand’ in accordance with the modern awards objective (section 134(1)(g),
FW Act) and the amendment would lessen the likelihood of disputation between
parties covered by the award, in instances of shutdowns.
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The CMIEG notes that in its December 2016 decision, the Full Bench decided to
include a shutdown clause in the Aquaculture Industry Award 2010 (the
Aquaculture Award) and 17 other modern awards, that includes a requirement for
employees to take annual leave upon notice by an employer. By parity of the
reasoning in respect of the amendments made to the shutdown clause considered by
the Full Bench in respect of those awards, the CMIEG submits that the
amendments it proposed are appropriate and necessary to be made to clause 25.10
of the Black Coal Award.
[15] In the alternative, the CMIEG indicated that it would ‘be content’ for the form of
provision contained in the shutdown clause recently inserted into the Aquaculture Award to
be inserted in the Black Coal Award.12 The terms of that provision are as follows:
‘23.3 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.
(a) Where an employee has been given notice pursuant to clause 23.3 and the employee has:
(i) accrued sufficient annual leave to cover the full period of closing, the
employee must take paid annual leave for the full period of closing;
(ii) insufficient accrued annual leave to cover the full period of closing, the
employee must take paid annual leave to the full amount accrued and leave
without pay for the remaining period of the closing; or
(iii) no accrued annual leave, the employee must take leave without pay for the
full period of closing.
(b) Public holidays that fall within the period of close down will be paid as provided for
in this award and will not count as a day of annual leave or leave without pay.’13
4. The position of the Unions
[16] The CFMEU and AMWU oppose the proposed shutdown clause. The CFMEU
contends14 that the CMIEG proposal to vary the shutdown clause in the Black Coal Award
should be rejected because:
it is inconsistent with the Full Bench’s decision dealing with the excessive leave
model term (see [2016] FWCFB 6838 at [76]) and seeks to give employers covered
by the Black Coal Award – through the mechanism of broadening their entitlement
during a shutdown – with a power which has just been removed by the
Commission; and
the CMIEG proposal is inconsistent with the ‘reasonableness’ requirement in
s.93(3) of the FW Act.
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[17] In terms of the impact of the NES, the CFMEU contends15 that:
section 93(3) of the FW Act contemplates a focus upon the individual
circumstances of the employee and a consideration as to whether the direction to
take annual leave in those circumstances is reasonable;
the note in s.94(5) does not form part of the FW Act and does not mean that a
shutdown will, by definition, be reasonable; and
although a number of modern awards contained shutdown (or close-down)
provisions, the Commission had not considered these in the context of the need for
consistency with the NES.
[18] The AMWU also opposes the proposed provision and contends that it would be
inconsistent with earlier decisions of the Full Bench and with the NES. In particular, the
AMWU submits16 that:
the model excessive leave term contains procedural requirements and broad
constraints on the quantum and timing of directed leave that are important in terms
of the requirement that any capacity for leave to be directed must be reasonable;
the proposed shutdown clause does not meet the reasonableness test criteria set by
the Full Bench; and
the note in s.94(5) illustrates a circumstance where a direction to take leave may be
reasonable and confirms that the reasonableness test under s.93(3) applies.
[19] The AMWU also relied upon the September 2016 decision in removing the existing
clause 25.4(c) and what it saw as confirmation that circumstances, such as the need for a mine
operation to cease, could be dealt with through negotiations or the terms of an enterprise
agreement. In that regard, the AMWU contends that the shutdown clause being proposed by
the CMIEG would add to confusion and discourage the parties from negotiating when
unforeseen circumstances arise.17
5. Consideration
[20] The existing shutdown clause (clause 25.10, see [10] above) provides that employees
must be given a period of notice (at least 28 days or an agreed shorter period) of the shutdown
and that an employee who is directly affected may take accrued annual leave or leave in
advance. However, with the removal of the general right to direct the taking of annual leave
under the former clause 25.4(c), there appears to be no capacity to direct that annual leave be
taken during a shutdown period, other than potentially in relation to excessive leave.
[21] In general terms, the shutdown provisions that are contained within the annual leave
arrangements found in many modern awards are intended to permit annual leave to be
managed at such times. Against that background, it is appropriate to consider the concerns
raised by the Unions.
[22] In essence, the Unions raise two principal concerns about the CMIEG proposal. First,
that a provision permitting the employer to direct the taking of leave is not reasonable, and is
contrary to the NES requirements of s.93(3) of the FW Act. Second, the proposal would, in
effect, reintroduce the power for the employer to direct the taking of leave, which the
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Commission itself had removed by inserting the model excessive leave provision in lieu of
clause 25.4(c).
[23] Sections 93 and 94 of the FW Act provide as follows:
‘93 Modern awards and enterprise agreements may include terms relating to cashing
out and taking paid annual leave
Terms about cashing out paid annual leave
(1) A modern award or enterprise agreement may include terms providing for the cashing
out of paid annual leave by an employee.
(2) The terms must require that:
(a) paid annual leave must not be cashed out if the cashing out would result in the
employee’s remaining accrued entitlement to paid annual leave being less than
4 weeks; and
(b) each cashing out of a particular amount of paid annual leave must be by a
separate agreement in writing between the employer and the employee; and
(c) the employee must be paid at least the full amount that would have been
payable to the employee had the employee taken the leave that the employee
has forgone.
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.
94 Cashing out and taking paid annual leave for award/agreement free employees
Agreements to cash out paid annual leave
(1) An employer and an award/agreement free employee may agree to the employee
cashing out a particular amount of the employee’s accrued paid annual leave.
(2) The employer and the employee must not agree to the employee cashing out an
amount of paid annual leave if the agreement would result in the employee’s
remaining accrued entitlement to paid annual leave being less than 4 weeks.
(3) Each agreement to cash out a particular amount of paid annual leave must be a
separate agreement in writing.
(4) The employer must pay the employee at least the full amount that would have been
payable to the employee had the employee taken the leave that the employee has
forgone.
Requirements to take paid annual leave
(5) An employer may require an award/agreement free employee to take a period of paid
annual leave, but only if the requirement is reasonable.
Note: A requirement to take paid annual leave may be reasonable if, for example:
(a) the employee has accrued an excessive amount of paid annual leave; or
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(b) the employer’s enterprise is being shut down for a period (for example,
between Christmas and New Year).
Agreements about taking paid annual leave
(6) An employer and an award/agreement free employee may agree on when and how
paid annual leave may be taken by the employee.
Note: Matters that could be agreed include, for example, the following:
(a) that paid annual leave may be taken in advance of accrual;
(b) that paid annual leave must be taken within a fixed period of time after it is
accrued;
(c) the form of application for paid annual leave;
(d) that a specified period of notice must be given before taking paid annual
leave.’
[24] In the June 2015 decision the Commission dealt with the Employer Groups’ claim for
a standard shutdown or closedown provision to be inserted into a range of modern awards.
The Commission said (at [347]–[350]):
‘At present, 81 modern awards contain provisions for close-down and 41 modern awards do
not.
The Act does not contain a specific provision in relation to “shut downs” or “close-downs”,
but s.93(3) provides that a close-down provision may be included in modern awards and
enterprise agreements; it reads:
“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.”
The Explanatory Memorandum to the Fair Work Bill 2008 makes it clear that the subsection
was intended to encompass close-down provisions. One of the examples provided in the
Explanatory Memorandum was a term which enabled an employer to require an employee to
take a period of leave in circumstances where the employer decided to “shut down the
workplace over the Christmas/New Year period” (see paragraph [91] above). We return to
s.93(3) shortly.
We also note that s.139(1)(h) provides that a modern award may include terms about “leave,
leave loadings and arrangements for taking leave”.’
[25] And later; (at [370]–[374]):
‘We are not persuaded to grant the Employer Group’s claim for three reasons.
First, while we accept that a close-down provision may be included in modern awards, it is
clear from the terms of s.93(3) that an award provision requiring an employee to take paid
annual leave in such circumstances is only permitted “if the requirement is reasonable”. We
are not satisfied that the model term proposed is “reasonable” in the sense contemplated by
s.93(3).
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The model term is very broadly expressed and is capable of being applied in a manner not
contemplated in the type of annual close-down provisions traditionally provided in awards, in
particular:
(i) there is no restriction on the number of times a close-down can occur in a 12
month period; and
(ii) there is no restriction on the duration of the close-down—it could be for a
single day, a week or a number of weeks.
Further, given the breadth of the model term we are not persuaded that a four week notice
period is reasonable.
Second, while we generally agree with the proposition that it is desirable that provisions
dealing with the taking of annual leave be uniform across modern awards, it seems to us that
close-down provisions are an exception to this general proposition and warrant consideration
on an award-by-award basis.’
[26] Importantly for present purposes, the Full Bench did not conclude that close-down (or
shutdown) provisions were not contemplated by the scheme of the FW Act. Rather, it
considered that they should be considered in the particular context of each modern award and
be included where appropriate having regard to the circumstances pertaining to that award and
the relevant statutory considerations.
[27] In our September 2015 decision (at [95]), we explained the basis for the model
excessive leave provision in the following terms:
‘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).’18
[28] The September 2016 decision also dealt directly with the annual leave provisions of
the Black Coal Award. As outlined earlier, in deciding to insert the model excessive annual
leave term, and to remove the existing clause 25.4, we observed that the broad right for the
employer to direct the taking of annual leave, without other considerations and requirements,
was not consistent with s.93(3) of the FW Act. We also considered that the CMIEG proposal
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at the time, to leave clause 25.4 in place with access to the relevant dispute resolution
procedure, was not appropriate. The basis for those conclusions is set out at [61] – [86], as
follows:
‘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).
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.
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.
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. 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.
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.
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. We note in this context that in
Commonwealth Bank of Australia v Barker 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. As observed
by Irving in ‘The Contract of Employment’ the law in this area is ‘currently in a state of flux’.
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:
‘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
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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).’
To this we add the oft-quoted observations of Madgwick J in Kucks v CSR Limited, 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.’
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
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.
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...’
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
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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. ...’
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
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.’
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:
[2017] FWCFB 959
13
‘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.’
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.’
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.
The above comparison reinforces the deficiencies in the existing award term.
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
[2017] FWCFB 959
14
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]).’
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).
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.’
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.’
[2017] FWCFB 959
15
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.
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.
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.
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.
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.
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 decision and the matters to
which we have referred in this decision.
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…’
[2017] FWCFB 959
16
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. 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.’ (endnotes omitted)
[29] As the above extract from the September 2016 decision makes clear, a general
provision that permits the employers under the Black Coal Award to direct that annual leave
be taken on notice, without other considerations and requirements, is not consistent with the
scheme of the FW Act and with s.93(3) in particular. However, a term permitting different
arrangements for annual leave during a period of shutdown or close-down may be consistent
with statutory framework, depending on the terms of such a provision.
[30] In that light, we turn to the second objection raised by the Unions. We accept that the
present shutdown provisions in the Black Coal Award do not directly provide a right for an
employer to direct that annual leave be taken. However, prior to the insertion of the model
clauses the provision had operated in conjunction with clause 25.4, which gave such a right
simply by the giving of notice. The context in which the shutdown clause operated prior to the
impending insertion of the model excessive leave provision has now changed significantly.
[31] In our view, the terms of clause 25.10, when considered in the context of the Black
Coal Award as varied, means that in the event of a shutdown, where the employer had given
notice, employees could take all or part of their annual leave entitlement, or if there is not a
sufficient entitlement to cover the shutdown period they could (by agreement with the
employer) take leave in advance under clause 25.9. However there does not appear to be any
capacity for the employer to direct that annual leave be taken during the shutdown and no
capacity for employees to be placed on leave without pay – save that notice to take annual
leave could be given by the employer in circumstances where the requirements of the model
excessive leave provision have been met.
[32] There is significant potential for uncertainty and inconsistency arising from the present
provisions in the context of the model annual leave terms. While there is capacity for some
flexibility through the pursuit of enterprise agreements,19 the shutdown clause should be clear
and serve its evident purpose. For this reason, and having regard to how the shutdown clause
operated prior to the impending insertion of the model excessive leave provision, we consider
that there is some merit in the proposal now advanced by the CMIEG.
[33] However we also accept that there is merit in the concerns by the Unions and that the
provision as proposed by the CMIEG is capable of being applied in a manner which is
inconsistent with s 93(3) of the FW Act. The imposition of some limitations upon the scope of
the provision is appropriate.
[34] We have reached the provisional view that a revised shutdown provision be inserted
into the Black Coal Award in the following terms:
[2017] FWCFB 959
17
‘25.10 Shutdown
(a) Clause 25.10 applies if an employer intends to shutdown all or part of its operation for
a particular period (temporary shutdown period); and wishes to require affected
employees to take leave during that period.
(b) The employer must give the affected employees one month’s written notice of a
temporary shutdown period.
(c) The employer must give immediate written notice of a temporary shutdown period to
any employee who is engaged after the notice is given under paragraph (b) and who
will be affected by that period.
(d) The following applies to any affected employee during a temporary shutdown period:
(i) if the employee has accrued an entitlement to paid annual leave the employee
may elect to take some or all of the leave during the temporary shutdown
period and may also elect to take unpaid leave to cover any part of the
temporary shutdown period;
(ii) if the employee does not elect to take paid annual leave or unpaid leave to
cover the whole of the temporary shutdown period, then the employer may
direct the employee to take a period of accrued paid annual leave or unpaid
leave to cover the whole of the temporary shutdown period;
(iii) if the employee has not accrued an entitlement to any paid annual leave, the
employer may direct the employee to take leave without pay to cover the
whole of the temporary shutdown period.
(e) A direction by the employer under clause 25.10(d)(ii):
(i) must be in writing; and
(ii) must be reasonable.
(f) The employee must take paid annual leave or unpaid annual leave in accordance with
a direction under clause 25.10(d)(ii)
(g) In determining the amount of paid annual leave to which an employee has accrued an
entitlement, any period of paid annual leave taken in advance by the employee, in
accordance with an agreement under clause 25.9, to which an entitlement has not been
accrued is to be taken into account.
(h) When an employer shuts down all or part of its operation under this provision, clauses
25.4 to 25.6 do not apply to employees directly affected by the shutdown and this
clause will apply.’
[35] The proposed revised shutdown provision is consistent with the position put by the
CMIEG earlier in these proceedings. As noted in the September 2016 decision (see [28]
above), the CMIEG had submitted that the addition of the words ‘and the direction to the
employee is reasonable’ to clause 25.4(c) would meet the requirements of s.93(3) and in the
event of a dispute about the reasonableness of a direction the employee concerned would
utilise the dispute settlement procedure in the award. We rejected the CMIEG submission at
that time as it was advanced as an alternative to the excessive leave model term and we
concluded that the model term provided a more appropriate means of ensuring that any
directions to take excessive accrued leave will be reasonable in terms of s.93(3). Different
[2017] FWCFB 959
18
considerations apply in the present context. We are considering the terms of a shutdown
provision and, importantly, a term which does not include any substantive constraints on the
quantum and timing of the directed leave. In these circumstances it may be appropriate that
any direction to take accrued paid annual leave, or unpaid leave, be subject to the requirement
that such a direction be reasonable.
[36] As we have previously concluded, an award term that simply allows an employer to
(upon the giving of a specified period of notice) direct an employee to take a period of
accrued annual leave is not ‘reasonable’ in the sense contemplated by s.93(3). Such a
provision does not require any consideration of the needs of the employee who would be
subject to such a direction. As the Explanatory Memorandum to what is now s.93(3) states:
‘381. Subclause 93(3) permits terms to be included in an award or agreement that require an
employee, or that enable an employer to require or direct an employee, to take paid annual
leave in particular circumstances, but only if the requirement is reasonable. This may include
the employer requiring an employee to take a period of annual leave to reduce the employee’s
excessive level of accrual or if the employer decides to shut down the workplace over the
Christmas/New Year period.
382. In assessing the reasonableness of a requirement or direction under this subclause it is
envisaged that the following are all relevant considerations:
the needs of both the employee and the employer’s business;
any agreed arrangement with the employee;
the custom and practice in the business;
the timing of the requirement or direction to take leave; and
the reasonableness of the period of notice given to the employee to take leave.’20
[37] While the needs of the employer’s business is a relevant consideration favouring the
reasonableness of a request to take leave during a shutdown (or closedown) period, it is
apparent that the assessment of the reasonableness of such a requirement also requires a
consideration of the impact of any such requirement on the affected employees. As the Full
Bench in Australian Federation of Air Pilots v HNZ Australia Pty Ltd21 observed, in assessing
the reasonableness of such a requirement, ‘all relevant considerations need to be taken into
account including those which are set out in paragraph [382] of the Explanatory
Memorandum’.22
[38] In that light, our provisional view is that there are two means by which a shutdown
term may be framed such as to ensure compliance with s.93(3). Such a term may either
include a range of procedural and substantive safeguards (eg as is the case with the excessive
leave model term), or it may simply require that any direction to take leave be reasonable. As
is evident from the provisional shutdown term set out above (at [35]), our provisional view is
that the latter approach is preferable. It recognises that shutdown terms have been a feature of
award regulation for a long time and it results in a term which is simple and easy to
understand.
[2017] FWCFB 959
19
[39] As observed by the CFMEU, this is the first occasion on which we have given detailed
consideration to the need for a stand down term to be consistent with s.93(3) of the FW Act. It
is for that reason that we have only expressed a provisional view in respect of this issue. We
also acknowledge that the adoption of the provisional views expressed is likely to have
implications for existing shutdown terms in other modern awards. There are some 81 modern
awards which presently contain shutdown (or closedown provisions). The relevant provisions
are set in Attachment A and we note that there are a variety of approaches including some
modern awards where the provisions operate more narrowly than the clause under
consideration here. We propose to invite submissions from the parties interested in the Black
Coal Award and those interested in the other 80 modern awards which contain shutdown
provisions.
6. Next Steps
[40] Interested parties are invited to file written submissions in relation to the provisional
views set out above at [34]–[38]). Such submissions should be forwarded to
amod@fwc.gov.au by 4pm on Tuesday 11 April 2017. Written submissions in reply are to
be filed by 4pm on Wednesday 26 April 2017. A short oral hearing will be held at 9.30am
on Friday 5 May 2017 in Sydney.
[41] As outlined earlier in this decision, a number of editorial changes to the draft
determination have been agreed by the parties. These are set out in the original submissions23
of the CMIEG and concern the consistent reference to both hours and weeks of annual leave
in the definition of excess leave. We agree with the proposed changes.
[42] We consider that the revised annual leave arrangements to apply under the Black Coal
Award should operate together. As a result, we will await the finalisation of the shutdown
provision prior to issuing a final Determination varying the award.
PRESIDENT
Appearances:
T Sebbens and A Morris for the Coal Mining Industry Employer Group.
A Rivvett for The Association of Professional Engineers, Scientists and Managers, Australia.
A Thomas and G South for the Construction, Forestry, Mining and Energy Union.
M Nguyen and H Arginella for the “Automotive, Food, Metals, Engineering, Printing and
Kindred Industries Union” known as the Australian Manufacturing Workers’ Union
(AMWU).
mailto:amod@fwc.gov.au
[2017] FWCFB 959
20
Hearing details (conference before Hampton C):
2016.
Sydney;
25 November.
Final written submissions:
CMIEG: 30 January 2017
CFMEU and AMWU: 31 January 2017
Printed by authority of the Commonwealth Government Printer
Price code C, PR590307
1 [2015] FWCFB 3406.
2 [2015] FWCFB 5771.
3 [2016] FWCFB 3177.
4 [2016] FWCFB 3953.
5 [2016] FWCFB 6836.
6 [2016] FWCFB 9074.
7 Ibid at [30].
8 [2015] FWCFB 3406 at [381].
9 Ibid at [382].
10 CMIEG written submissions dated 21 October 2016.
11 CMIEG written submissions dated 30 January 2017.
12 Ibid at 16.
13 The background to this variation is discussed in [2016] FWCFB 6836 at para [120] and the final form confirmed in [2016]
FWCFB 9074 at [19] – [24].
14 CFMEU written submissions dated 31 January 2017 at 3 – 17.
15 Ibid at 14 – 22.
16 AMWU written submissions filed 31 January 2017.
17 Ibid at 15.
18 [2015] FWCFB 5771.
19 [2016] FWCFB 6836 at [79].
20 [2015] FWCFB 3406 AT [91]
21 [2015] FWCFB 3124
22 Ibid at para [25]; also see the June 2015 decision at [197] and [207]
23 CMIEG written submission dated 21 October 2016.
21
ATTACHMENT A
81 modern awards containing close down provisions
Award ID Award title Current close-down provision
MA000115 Aboriginal Community
Controlled Health
Services Award 2010
26.3 Close-down
An employer may require an employee to take annual leave as part of a
close-down of its operations by giving at least four weeks’ notice.
MA000047 Aircraft Cabin Crew
Award 2010
25.4 Requirement to take leave notwithstanding terms of the NES
An employer may require an employee to take annual leave by giving at least
four weeks’ notice in the following circumstances:
(a) as part of a close-down of its operations; or
(b) where more than eight weeks’ leave is accrued the employer may direct
an employee member to take 25% of the accrued leave.
MA000048 Airline Operations—
Ground Staff Award
2010
34.9 An employer may apply a system of annual close-down with respect to
all or the bulk of employees in a plant or section thereof in which case at
least three months’ notice will be given.
MA000092 Alpine Resorts Award
2010
26.3 Close-down
An employer may require an employee to take annual leave by giving at least
four weeks’ notice as part of a close-down of its operations.
MA000060 Aluminium Industry
Award 2010
22.5 Taking of annual leave during shut-downs
An employer may direct an employee to take paid annual leave during all or
part of a period where the employer shuts down the business or part of the
business where the employee works provided the employer gives not less
than four weeks’ notice of intention to do so. If an employee does not have
sufficient accrued annual leave for the period of the shut down, then the
employee may be required to take leave without pay for the balance of the
period.
MA000098 Ambulance and
Patient Transport
Industry Award 2010
30.12 Annual close-down
Where an employer temporarily closes an enterprise or reduces the
operations of the enterprise to allow annual leave to all or a majority of
employees in the enterprise or part concerned, the following provisions
apply:
(a) the employer must give one month’s notice in writing of the proposed
close-down;
(b) an employee who has accrued sufficient leave to cover the close-down
period will be given leave and will be paid for that leave in accordance with
clauses 30.3 and 30.4 of this award; and
(c) an employee who has not accrued sufficient leave to cover part or all of
the close-down, is allowed paid leave for the period for which they have
accrued sufficient leave and given unpaid leave for the remainder of the
close-down.
http://www.fwc.gov.au/documents/modern_awards/award/MA000098/default.htm
http://www.fwc.gov.au/documents/modern_awards/award/MA000060/default.htm
http://www.fwc.gov.au/documents/modern_awards/award/MA000092/default.htm
http://www.fwc.gov.au/documents/modern_awards/award/MA000048/default.htm
http://www.fwc.gov.au/documents/modern_awards/award/MA000047/default.htm
http://www.fwc.gov.au/documents/modern_awards/award/MA000115/default.htm
[2017] FWCFB 959
22
Award ID Award title Current close-down provision
MA000118 Animal Care and
Veterinary Services
Award 2010
26.5 Requirement to take leave notwithstanding terms of the NES
An employer may require an employee to take annual leave by giving at least
four weeks’ notice where such leave is required as part of a close-down of its
operations.
MA000114 Aquaculture Industry
Award 2010
23.3 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.
(a) Where an employee has been given notice pursuant to clause 23.3 and the
employee has:
(i) accrued sufficient annual leave to cover the full period of closing, the
employee must take paid annual leave for the full period of closing;
(ii) insufficient accrued annual leave to cover the full period of closing,
the employee must take paid annual leave to the full amount accrued
and leave without pay for the remaining period of the closing; or
(iii) no accrued annual leave, the employee must take leave without pay
for the full period of closing.
(b) Public holidays that fall within the period of close down will be paid as
provided for in this award and will not count as a day of annual leave or leave
without pay.
https://www.fwc.gov.au/documents/documents/modern_awards/award/ma000114/ma000114-29.htm#P509_52157
http://www.fwc.gov.au/documents/modern_awards/award/MA000114/default.htm
http://www.fwc.gov.au/documents/modern_awards/award/MA000118/default.htm
[2017] FWCFB 959
23
Award ID Award title Current close-down provision
MA000054 Asphalt Industry
Award 2010
25.4 Close-down
(a) Where an employer intends temporarily to close (or reduce to nucleus)
during the Christmas/New Year period 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.
(b) In the case of any employee employed after notice has been given, notice
must be given to that employee on the date they are offered employment.
(c) Where an employee has been given notice pursuant to
clauses 25.4(a) or (b) and the employee has:
(i) accrued sufficient annual leave to cover the full period of closing, the
employee must take paid annual leave for the full period of closing;
(ii) insufficient accrued annual leave to cover the full period of closing, the
employee must take paid annual leave to the full amount accrued and leave
without pay for the remaining period of the closing; or
(iii) no accrued annual leave, the employee must take leave without pay
for the full period of closing.
(d) Public holidays that fall within the period of close down will be paid as
provided for in this award and will not count as a day of annual leave or
leave without pay.
MA000019 Banking, Finance and
Insurance Award 2010
24.5 Close-down
An employer may require an employee to take annual leave as part of a close-
down of its operations, by giving at least four weeks’ notice
MA000001 Black Coal Mining
Industry Award 2010
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 25.9.
http://www.fwc.gov.au/documents/modern_awards/award/MA000001/default.htm
http://www.fwc.gov.au/documents/modern_awards/award/MA000019/default.htm
http://www.fwc.gov.au/documents/modern_awards/award/MA000054/default.htm
[2017] FWCFB 959
24
Award ID Award title Current close-down provision
MA000091 Broadcasting and
Recorded
Entertainment Award
2010
23.4 Notwithstanding the NES, an employer may close down an enterprise or
part of it for the purpose of allowing annual leave to all or the majority of the
employees in the enterprise or part concerned, provided that:
(a) the employer gives not less than four weeks’ notice in writing of intention
to do so;
(b) an employee who has accrued sufficient leave to cover the period of the
close-down is allowed leave and is also paid for that leave at the appropriate
wage in accordance with Part 4—Minimum Wages and Related Matters;
(c) an employee who has not accrued sufficient leave to cover part or all of
the close-down, is allowed paid leave for the period for which they have
accrued sufficient leave and given unpaid leave for the remainder of the
close-down;
(d) any leave taken by an employee as a result of a close-down pursuant to
this clause also counts as service by the employee with their employer;
(e) the employer may only close down the enterprise or part of it pursuant to
this clause for one or two separate periods in a year;
(f) if the employer closes down the enterprise or part of it pursuant to this
clause in two separate periods, one of the periods must be at least 14
consecutive days including non-working days; and
(g) the employer and the majority of employees concerned may agree to the
enterprise or part of it being closed down pursuant to this clause for three
separate periods in a year provided that one of the periods is at least 14 days
including non-working days.
MA000020 Building and
Construction General
On-site Award 2010
38.3 Annual close down
(a) An employer may direct an employee to take paid annual leave during all
or part of a period in conjunction with the Christmas/New Year holidays,
where the employer shuts down the business, part of the business, or a site
where the employee works. If an employee does not have sufficient accrued
annual leave for the period of the shutdown, then the employee may be
required to take leave without pay for the balance of the shutdown period for
which leave is not accrued.
(b) Where an employer decides to utilise the provisions of clause 38.3(a) in
respect of the Christmas/New Year period for the purpose of giving the whole
of the annual leave due to all or the majority of their employees then qualified
for such leave, the employer must give at least two months’ notice to the
affected employees.
MA000021 Business Equipment
Award 2010
31.4 Close-down
An employer may require an employee to take annual leave as part of a close-
down of its operations, by giving at least four weeks’ notice.
http://www.fwc.gov.au/documents/modern_awards/award/MA000021/default.htm
http://www.fwc.gov.au/documents/modern_awards/award/MA000020/default.htm
https://www.fwc.gov.au/documents/documents/modern_awards/award/ma000091/ma000091-17.htm#P361_33501
http://www.fwc.gov.au/documents/modern_awards/award/MA000091/default.htm
[2017] FWCFB 959
25
Award ID Award title Current close-down provision
MA000095 Car Parking Award
2010
25.4 Annual close-down
(a) Where an employer intends temporarily to close (or reduce to nucleus) the
establishment or a section for the purpose, among 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.
(b) In the case of any employee employed after notice has been given, notice
must be given to that employee on the date they are offered employment.
(c) Where an employee has been given notice pursuant to
clauses 25.4(a) or (b) and the employee has:
(i) accrued sufficient annual leave to cover the full period of closing, the
employee must take paid annual leave for the full period of closing;
(ii) insufficient accrued annual leave to cover the full period of closing,
the employee must take paid annual leave to the full amount accrued and
leave without pay for the remaining period of the closing; or
(iii) no accrued annual leave, the employee must take leave without pay
for the full period of closing.
(d) Public holidays that fall within the period of close down will be paid as
provided for in this award and will not count as a day of annual leave or leave
without pay.
http://www.fwc.gov.au/documents/modern_awards/award/MA000095/default.htm
[2017] FWCFB 959
26
Award ID Award title Current close-down provision
MA000055 Cement and Lime
Award 2010
24.4 Close-down
(a) Where an employer intends temporarily to close (or reduce to nucleus) the
enterprise, operation or a section of the operation 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.
(b) In the case of any employee employed after notice has been given, notice
must be given to that employee on the date they are offered employment.
(c) Where an employee has been given notice pursuant to
clauses 24.4(a) or (b) and the employee has:
(i) accrued sufficient annual leave to cover the full period of closing, the
employee must take paid annual leave for the full period of closing;
(ii) insufficient accrued annual leave to cover the full period of closing, the
employee must take paid annual leave to the full amount accrued and leave
without pay for the remaining period of the closing; or
(iii) no accrued annual leave, the employee must take leave without pay
for the full period of closing.
(d) Public holidays that fall within the period of close down will be paid as
provided for in this award and will not count as a day of annual leave or leave
without pay.
MA000070 Cemetery Industry
Award 2010
24.3 An employee must take a period of annual leave when directed by the
employer to do so during a period when the employer’s operations are closed
or partially closed.
MA000120 Children’s Services
Award 2010
24.4 Taking annual leave
(a) Where a workplace is closed during a vacation period, other than
Christmas vacation, and no work is available, an employee will be paid the
ordinary rate of pay during such a period.
(b) During the Christmas vacation only, an employee may be directed to take
annual leave. An employee without sufficient accrued leave to maintain their
ordinary rate of pay during the vacation period may be required to take leave
without pay for a maximum of four weeks.
(c) Notwithstanding clause 24.4(a) in establishments which operate for more
than 48 weeks per year, an employer may require an employee to take annual
leave by giving at least four weeks’ notice as part of a close-down of its
operations.
http://www.fwc.gov.au/documents/modern_awards/award/MA000120/default.htm
http://www.fwc.gov.au/documents/modern_awards/award/MA000070/default.htm
http://www.fwc.gov.au/documents/modern_awards/award/MA000055/default.htm
[2017] FWCFB 959
27
Award ID Award title Current close-down provision
MA000022 Cleaning Services
Award 2010
29.6 Annual close-down
Where the client of an employer in the contract cleaning industry intends
temporarily to close or reduce to a nucleus the establishment or a section
thereof for the purposes of allowing annual leave to that client employer’s
employees the following provisions may apply:
(a) The employer may give in writing to such employees one month’s notice
(or in the case of an employee engaged after the giving of such notice, on
engagement) of their intention to apply the provisions of this clause.
(b) Where an employee has been given notice pursuant to clause 29.6(a) and
the employee has:
(i) accrued sufficient annual leave to cover the full period of closing, the
employee must take paid annual leave for the full period of closing;
(ii) insufficient accrued annual leave to cover the full period of closing,
the employee must take paid annual leave to the full amount accrued and
leave without pay for the remaining period of the closing; or
(iii) no accrued annual leave, the employee must take leave without pay
for the full period of closing.
(c) Where practicable an employee with insufficient or no accrued annual
leave will be employed at another of the employer’s sites for the period that
would otherwise be a period of leave without pay.
(d) The close-down period will be limited to four weeks, plus any public
holidays that fall during the period of the close down.
(e) Public holidays that fall within the period of close-down will be paid as
provided for in this award and will not count as a day of annual leave or leave
without pay.
(f) In this clause date of closing in relation to each employee means the first
day of the employees annual leave pursuant to this clause.
MA000002 Clerks—Private Sector
Award 2010
29.5 Close-down
An employer may require an employee to take annual leave as part of a close-
down of its operations, by giving at least four weeks’ notice.
MA000045 Coal Export Terminals
Award 2010
19.7 Taking of annual leave during shut downs
An employer may direct an employee to take paid annual leave during all or
part of a period where the employer shuts down the business or part of the
business where the employee works. If an employee does not have sufficient
accrued annual leave for the period, then the employee may be required to
take leave without pay. A minimum of four weeks notice will be given for a
shutdown under this clause.
http://www.fwc.gov.au/documents/modern_awards/award/MA000045/default.htm
http://www.fwc.gov.au/documents/modern_awards/award/MA000002/default.htm
http://www.fwc.gov.au/documents/modern_awards/award/MA000022/default.htm
[2017] FWCFB 959
28
Award ID Award title Current close-down provision
MA000083 Commercial Sales
Award 2010
24.5 Close-down
An employer may require an employee to take annual leave by giving at least
four weeks’ notice as part of a close-down of its operations.
MA000056 Concrete Products
Award 2010
26.4 Close-down
(a) Where an employer intends temporarily to close (or reduce to nucleus) for
the purpose, amongst others, of allowing annual leave to the employees
concerned or a majority of them, the employer must give those employees
one month’s notice in writing of an intention to apply the provisions of this
clause.
(b) In the case of any employee employed after notice has been given, notice
must be given to that employee on the date they are offered employment.
(c) Where an employee has been given notice pursuant to
clauses 26.4(a) or (b) and the employee has:
(i) accrued sufficient annual leave to cover the full period of closing, the
employee must take paid annual leave for the full period of closing;
(ii) insufficient accrued annual leave to cover the full period of closing, the
employee must take paid annual leave to the full amount accrued and leave
without pay for the remaining period of the closing; or
(iii) no accrued annual leave, the employee must take leave without pay for
the full period of closing.
(d) Public holidays that fall within the period of close down will be paid as
provided for in this award and will not count as a day of annual leave or leave
without pay.
http://www.fwc.gov.au/documents/modern_awards/award/MA000056/default.htm
http://www.fwc.gov.au/documents/modern_awards/award/MA000083/default.htm
[2017] FWCFB 959
29
Award ID Award title Current close-down provision
MA000023 Contract Call Centre
Award 2010
27.9 Annual close-down
Notwithstanding s.88 of the Act, an employer may close down an
establishment or section or sections, for the purpose of allowing annual leave
to all or the majority of the employees concerned, provided that:
(a) the employer gives at least one month’s notice to the affected employees.
The notice must advise employees of the commencement date and duration of
the close-down;
(b) an employer may close down for one or two periods;
(c) an employer and the majority of employees concerned may agree to close
down for more than two periods;
(d) an employee who has accrued sufficient leave to cover the period of the
close-down, is allowed leave and also paid for that leave at the appropriate
wage in accordance with clauses 27.3 and 27.4; and
(e) an employee who has not accrued sufficient leave to cover part or all of
the close-down, is allowed paid leave for the period for which they have
accrued sufficient leave and given unpaid leave for the remainder of the
close-down.
MA000075 Educational Services
(Post-Secondary
Education) Award
2010
25.5 Annual close-down
An employer may specify up to two close-down periods each year, during
which the employer will be closing down its operations. For these periods an
employer may require an employee to take annual leave subject to the
requirement that the employee is given notice as soon as practicable of the
employer’s intention to close down.
MA000077 Educational Services
(Teachers) Award
2010
21.2 An employee in a school, preschool or kindergarten must take annual
leave during non-term weeks. Leave must generally be taken, in the case of
an employee whose employment with the employer is continuing into the
next school or preschool year, in the four-week period immediately following
the final term week of the current school or preschool year, unless otherwise
agreed with the employer.
MA000088 Electrical Power
Industry Award 2010
27.8 Taking of annual leave during shut-down
An employer may direct an employee to take paid annual leave during all or
part of a period where the employer shuts down the business or part of the
business where the employee works. If an employee does not have sufficient
accrued annual leave for the period of the shut-down then the employee may
be required to take leave without pay.
http://www.fwc.gov.au/documents/modern_awards/award/MA000088/default.htm
http://www.fwc.gov.au/documents/modern_awards/award/MA000077/default.htm
http://www.fwc.gov.au/documents/modern_awards/award/MA000075/default.htm
http://www.fwc.gov.au/documents/modern_awards/award/MA000023/default.htm
[2017] FWCFB 959
30
Award ID Award title Current close-down provision
MA000025 Electrical, Electronic
and Communications
Contracting Award
2010
28.5 Taking of annual leave during close-downs etc.
(a) An employer may, by two months’ notice in writing, declare that the
establishment, project or business will observe a complete Christmas–New
Year close-down. An employee will, provided that the employee has been
employed continuously for one week or more, be entitled to leave on a pro
rata basis for each week of continuous service and such an employee may be
stood down for the duration of the close-down period, provided that any such
employee must be paid for all public holidays occurring during the close-
down period.
(b) Employees will be entitled to be paid for public holidays during the close-
down.
(c) Unpaid leave taken does not break service of an employee and is not
an excepted period as per the NES.
(d) An employee who has been employed continuously for one week or more
will be entitled to leave on a pro rata basis for each week of continuous
service and such an employee may be stood down for the duration of the
close-down period, provided that any such employee must be paid for all
public holidays occurring during the close-down period.
(e) Close-down means a period of not less than two consecutive weeks and
not more than four consecutive weeks, inclusive of public holidays.
http://www.fwc.gov.au/documents/modern_awards/award/MA000025/default.htm
[2017] FWCFB 959
31
Award ID Award title Current close-down provision
MA000073 Food, Beverage and
Tobacco
Manufacturing Award
2010
34.11 Annual close-down
Notwithstanding s.88 of the Act and clause 34.6, an employer may close
down an enterprise or part of it for the purpose of allowing annual leave to all
or the majority of the employees in the enterprise or part concerned, provided
that:
(a) the employer gives not less than four weeks’ notice of intention to do so;
and
(b) an employee who has accrued sufficient leave to cover the period of the
close-down, is allowed leave and also paid for that leave at the appropriate
wage in accordance with clauses 34.4 and 34.5; and
(c) an employee who has not accrued sufficient leave to cover part or all of
the close-down, is allowed paid leave for the period for which they have
accrued sufficient leave and given unpaid leave for the remainder of the
close-down; and
(d) any leave taken by an employee as a result of a close-down pursuant to
clause 34.11 also counts as service by the employee with their employer; and
(e) the employer may only close down the enterprise or part of it pursuant to
clause 34.11 for one or two separate periods in a year; and
(f) if the employer closes down the enterprise or part of it pursuant to
clause 34.11 in two separate periods, one of the periods must be for a period
of at least 14 consecutive days including non-working days; and
(g) the employer and the majority of employees concerned may agree to the
enterprise or part of it being closed down pursuant to clause 34.11 for three
separate periods in a year provided that one of the periods is a period of at
least 14 days including non-working days; and
(h) the employer may close down the enterprise or part of it for a period of at
least 14 days including non-working days and allow the balance of any
annual leave to be taken in one continuous period in accordance with a roster.
http://www.fwc.gov.au/documents/modern_awards/award/MA000073/default.htm
[2017] FWCFB 959
32
Award ID Award title Current close-down provision
MA000101 Gardening and
Landscaping Services
Award 2010
24.9 Annual close-down
(a) Where an employer intends temporarily to close (or reduce to nucleus) the
place of employment or a section of it for the purpose, among 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.
(b) Where an employee has been given notice pursuant to clause 24.9(a) and
the employee has:
(i) accrued sufficient annual leave to cover the full period of closing, the
employee must take paid annual leave for the full period of closing;
(ii) insufficient accrued annual leave to cover the full period of closing,
the employee must take paid annual leave to the full amount accrued and
leave without pay for the remaining period of the closing; or
(iii) no accrued annual leave, the employee must take leave without pay
for the full period of closing.
(c) Public holidays that fall within the period of close down will be paid as
provided for in this award and will not count as a day of annual leave or leave
without pay.
http://www.fwc.gov.au/documents/modern_awards/award/MA000101/default.htm
[2017] FWCFB 959
33
Award ID Award title Current close-down provision
MA000061 Gas Industry Award
2010
25.3 Taking of annual leave during shut-down
(a) 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 must 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.
(b) Where an employee has been given notice pursuant to clause 25.3(a) and
the employee has:
(i) accrued sufficient annual leave to cover the full period of closing, the
employee must take paid annual leave for the full period of closing;
(ii) insufficient accrued annual leave to cover the full period of closing,
the employee must take paid annual leave to the full amount accrued
and leave without pay for the remaining period of the closing; or
(iii) no accrued annual leave, the employee must take leave without pay
for the full period of closing.
(c) Public holidays that fall within the period of close down will be paid as
provided for in this award and will not count as a day of annual leave or leave
without pay
MA000004 General Retail
Industry Award 2010
32.5 Close-down
An employer may require an employee to take annual leave as part of a close-
down of its operations, by giving at least four weeks’ notice.
http://www.fwc.gov.au/documents/modern_awards/award/MA000004/default.htm
http://www.fwc.gov.au/documents/modern_awards/award/MA000061/default.htm
[2017] FWCFB 959
34
Award ID Award title Current close-down provision
MA000026 Graphic Arts, Printing
and Publishing Award
2010
37.12 Annual close-down
Notwithstanding the NES and clause 37.8, an employer may close-down an
enterprise or part of it for the purpose of allowing annual leave to all or the
majority of the employees in the enterprise or part concerned, provided that:
(a) the employer gives not less than four weeks’ notice of intention to do so;
(b) an employee who has accrued sufficient leave to cover the period of the
close-down is allowed leave and is also paid for that leave at the appropriate
wage in accordance with clauses 37.5 and 37.7;
(c) an employee who has not accrued sufficient leave to cover part or all of
the close-down, is allowed paid leave for the period for which they have
accrued sufficient leave and given unpaid leave for the remainder of the
close-down.
(d) any leave taken by an employee as a result of a close-down pursuant to
clause 37.12 also counts as service by the employee with their employer;
(e) the employer may only close down the enterprise or part of it pursuant to
clause 37.12 for one or two separate periods in a year;
(f) if the employer closes down the enterprise or part of it pursuant to
clause 37.12 in two separate periods, one of the periods must be for a period
of at least 14 consecutive days including non-working days;
(g) the employer and the majority of employees concerned may agree to the
enterprise or part of it being closed down pursuant to clause 37.12 for three
separate periods in a year provided that one of the periods is a period of at
least 14 days including non-working days; and
(h) the employer may close down the enterprise or part of it for a period of at
least 14 days including non-working days and allow the balance of any
annual leave to be taken in one continuous period in accordance with a roster.
MA000005 Hair and Beauty
Industry Award 2010
33.5 Requirement to take leave notwithstanding terms of the NES
An employer may require an employee to take annual leave by giving at least
four weeks’ notice as part of a close-down of its operations.
MA000027 Health Professionals
and Support Services
Award 2010
31.4 Close down periods—dental and medical practices
Where an employer temporarily closes a dental or medical practice, an
employee may be directed to take paid annual leave during part or all of this
period provided such direction is reasonable. Where an employee does not
have sufficient accrued annual leave for this period, they may be required to
take annual leave in advance where such requirement is reasonable.
http://www.fwc.gov.au/documents/modern_awards/award/MA000027/default.htm
http://www.fwc.gov.au/documents/modern_awards/award/MA000005/default.htm
http://www.fwc.gov.au/documents/modern_awards/award/MA000026/default.htm
[2017] FWCFB 959
35
Award ID Award title Current close-down provision
MA000007 Higher Education
Industry—General
Staff—Award 2010
30.4 Close down
(a) Christmas/New Year close down
Employees may be required to take annual leave during a period of
Christmas/New Year close down, for days other than public holidays
(including any substituted days) falling during that period. Employees with
insufficient accrued annual leave will take leave without pay.
(b) Seasonal stand down of residential colleges staff
Employees engaged in domestic work in, or in connection with, residential
colleges may be stood down without pay during official term breaks,
semester breaks and the Christmas/Summer vacation, provided that:
(i) an employee will be given as much notice as practicable of the start
and finish of any stand down period; notice must be at least one week and
be in writing. Once notice is given, the stand down period must not be
varied unless by mutual consent between the employer and the employee;
(ii) an employee may take accrued annual leave or long service leave
during term breaks, semester breaks and the Christmas/Summer vacation;
(iii) all periods of stand down must count for the purpose of accrual of
sick leave, annual leave and long service leave;
(iv) if appropriate work is available for an employee during any period of
stand down, the existing employee will be offered such employment
(whether on a full-time or casual basis) before any additional employee is
employed; the employee who has been stood down may refuse an offer of
employment without prejudice to their normal employment relationship;
(v) for the purpose of this clause appropriate work will mean such work
as is available that is capable of being performed by the employee.
Remuneration for such work will be at the rate of pay applicable to the
work being performed; and
(vi) no employee will have their employment terminated on the grounds
of work not being available due to a term break, semester break or
Christmas/Summer vacation.
(c) This clause does not confer any right to stand down any employee
employed before 1 January 2010 who was not subject to a stand down
provision in an award before 1 January 2010.
MA000008 Horse and Greyhound
Training Award 2010
23.3 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.
http://www.fwc.gov.au/documents/modern_awards/award/MA000008/default.htm
http://www.fwc.gov.au/documents/modern_awards/award/MA000007/default.htm
[2017] FWCFB 959
36
Award ID Award title Current close-down provision
MA000009 Hospitality Industry
(General) Award 2010
34.3 Close-down
An employer may require an employee to take annual leave by giving at least
four weeks’ notice as part of a close-down of its operations.
MA000062 Hydrocarbons
Industry (Upstream)
Award 2010
27.7 Taking of annual leave during shut-downs or lay-ups
(a) An employer may direct an employee to take paid annual leave during all
or part of a period where the employer shuts down the business or part of the
business where the employee works. If an employee does not have sufficient
accrued annual leave for the period of the shut-down, then the employee may
be required to take leave without pay.
(b) Where it is necessary for a drilling rig to lay up for repairs, survey or
maintenance or where the rig cannot be usefully employed for any cause
beyond the employer’s control, the employer may require an employee to
take accrued annual leave by giving not less than one week’s notice (or where
agreed, leave in advance).
MA000029 Joinery and Building
Trades Award 2010
32.9 Annual close-down
Notwithstanding s.88 of the Act and clause 32.5, an employer may close
down an enterprise or part of it during the Christmas–New Year period for
the purpose of giving the whole of the annual leave owing to all or the
majority of the employees in the enterprise or part concerned, provided that:
(a) the employer gives not less than two months’ notice of intention to do so;
(b) an employee who has accrued sufficient leave to cover the period of the
close-down is allowed leave and also paid for that leave at the appropriate
wage in accordance with clauses 32.2 and 32.3;
(c) an employee who has not accrued sufficient leave to cover part or all of
the close-down is allowed paid leave for the period for which they have
accrued sufficient leave and given unpaid leave for the remainder of the
close-down; and
(d) any leave taken by an employee as a result of a close-down pursuant to
clause 32.9 also counts as service by the employee with their employer.
http://www.fwc.gov.au/documents/modern_awards/award/MA000029/default.htm
http://www.fwc.gov.au/documents/modern_awards/award/MA000062/default.htm
http://www.fwc.gov.au/documents/modern_awards/award/MA000009/default.htm
[2017] FWCFB 959
37
Award ID Award title Current close-down provision
MA000067 Journalists Published
Media Award 2010
24.8 Annual close-down
Notwithstanding the NES, an employer may close down an enterprise or part
of it for the purpose of allowing annual leave to all or the majority of the
employees in the enterprise or part concerned, provided that:
(a) the employer gives not less than four weeks’ notice of intention to do so;
(b) an employee who has accrued sufficient leave to cover the period of the
close-down is allowed leave and is also paid for that leave at the appropriate
wage;
(c) an employee who has not accrued sufficient leave to cover part or all of
the close-down, is allowed paid leave for the period for which they have
accrued sufficient leave and given unpaid leave for the remainder of the
close-down;
(d) any leave taken by an employee as a result of a close-down pursuant to
this clause also counts as service by the employee with their employer;
(e) the employer may only close down the enterprise or part of it pursuant to
this clause for one or two separate periods in a year; and
(f) if the employer closes down the enterprise or part of it pursuant to this
clause in two separate periods, one of the periods must be for a period of at
least 14 consecutive days including non-working days.
MA000112 Local Government
Industry Award 2010
25.5 Annual close-down
An employer may require an employee to take annual leave as part of a close-
down of its operations by giving at least four weeks’ notice.
http://www.fwc.gov.au/documents/modern_awards/award/MA000112/default.htm
http://www.fwc.gov.au/documents/modern_awards/award/MA000067/default.htm
[2017] FWCFB 959
38
Award ID Award title Current close-down provision
MA000010 Manufacturing and
Associated Industries
and Occupations
Award 2010
41.10 Annual close down
Notwithstanding s.88 of the Act and clause 41.6, an employer may close
down an enterprise or part of it for the purpose of allowing annual leave to all
or the majority of the employees in the enterprise or part concerned, provided
that:
(a) the employer gives not less than four weeks notice of intention to do so;
and
(b) an employee who has accrued sufficient leave to cover the period of the
close down, is allowed leave and also paid for that leave at the appropriate
wage in accordance with clauses 41.4 and 41.5; and
(c) an employee who has not accrued sufficient leave to cover part or all of
the close down, is allowed paid leave for the period for which they have
accrued sufficient leave and given unpaid leave for the remainder of the
closedown; and
(d) any leave taken by an employee as a result of a close down pursuant to
clause 41.10 also counts as service by the employee with their employer; and
(e) the employer may only close down the enterprise or part of it pursuant to
clause 41.10 for one or two separate periods in a year; and
(f) if the employer closes down the enterprise or part of it pursuant to clause
41.10 in two separate periods, one of the periods must be for a period of at
least 14 consecutive days including non-working days; and
(g) the employer and the majority of employees concerned may agree to the
enterprise or part of it being closed down pursuant to clause 41.10 for three
separate periods in a year provided that one of the periods is a period of at
least 14 days including non-working days; and
(h) the employer may close down the enterprise or part of it for a period of at
least 14 days including non-working days and allow the balance of any
annual leave to be taken in one continuous period in accordance with a roster.
http://www.fwc.gov.au/documents/modern_awards/award/MA000010/default.htm
[2017] FWCFB 959
39
Award ID Award title Current close-down provision
MA000059 Meat Industry Award
2010
37.8 Annual close-down
(a) Where an employer closes down a plant or a sections of a plant for the
purpose of allowing annual leave to all or the bulk of the employees in the
plant or sections concerned, the employer should, where possible, give the
employees concerned not less than three months’ notice of the employer’s
intention to stand down for the duration of the close-down all employees in
the plant or sections concerned.
(b) For those employees who have not qualified for annual leave in
accordance with clause 37—Annual leave, paid leave on a proportionate
basis at the appropriate rate of wage and loading prescribed by clauses 37.3
and 37.5 will be granted.
(c) An employee who has then qualified for annual leave in accordance with
clauses 37.1 or 37.2 and has also completed a further month or more of
continuous service will be allowed leave and will also be paid leave on a
proportionate basis for the period worked since the close of the employee’s
last 12 monthly qualifying period.
(d) The next 12 month qualifying period for each employee affected by the
close-down will commence from the day on which the plant or section
concerned is reopened for work. Provided that all time during which an
employee is stood off without pay for the purposes of this clause will be
deemed to be time of service in the next 12 monthly qualifying period.
(e) If in the first year of service with an employer an employee is allowed
proportionate annual leave under clause 37.8(b), and subsequently within
such year leaves employment or employment is terminated by the employer
through no fault of the employee, the employee will be entitled to the benefit
of clause 37.6 subject to the adjustment for any proportionate leave which
may have been allowed.
MA000011 Mining Industry
Award 2010
23.6 Taking of annual leave during shut downs
An employer may direct an employee to take paid annual leave during all or
part of a period where the employer shuts down the business or part of the
business where the employee works. If an employee does not have sufficient
accrued annual leave for the period of the shut down, then the employee may
be required to take leave without pay.
http://www.fwc.gov.au/documents/modern_awards/award/MA000011/default.htm
http://www.fwc.gov.au/documents/modern_awards/award/MA000059/default.htm
[2017] FWCFB 959
40
Award ID Award title Current close-down provision
MA000104 Miscellaneous Award
2010
23.4 Annual close down
(a) 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 must 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.
(b) Where an employee has been given notice pursuant to clause 23.4(a) and
the employee has:
(i) accrued sufficient annual leave to cover the full period of closing, the
employee must take paid annual leave for the full period of closing;
(ii) insufficient accrued annual leave to cover the full period of closing,
the employee must take paid annual leave to the full amount accrued and
leave without pay for the remaining period of the closing; or
(iii) no accrued annual leave, the employee must take leave without pay
for the full period of closing.
(c) Public holidays that fall within the period of close down will be paid as
provided for in this award and will not count as a day of annual leave or leave
without pay.
http://www.fwc.gov.au/documents/modern_awards/award/MA000104/default.htm
[2017] FWCFB 959
41
Award ID Award title Current close-down provision
MA000032 Mobile Crane Hiring
Award 2010
25.5 Annual close-down
(a) Where an employer closes down the depot or a section thereof, for the
purposes of allowing annual leave to all or the bulk of employees in the depot
or section concerned:
(i) The employer will give not less than four weeks notice of the close-
down.
(ii) An employer may stand off for the duration of the close-down all
employees in the depot, or section concerned, and allow to those who are
not then qualified for a full entitlement to annual leave paid leave on a
proportionate basis.
(iii) An employee who has qualified for a full entitlement to annual leave
will be allowed paid leave.
(iv) All time during which an employee is stood off without pay for the
purposes of this subclause will be deemed to be time of service for the
purpose of annual leave accrual.
(v) An employer may close down the depot for one or two separate
periods for the purpose of granting annual leave in accordance with this
subclause. If the employer closes down the depot in two separate periods,
one of those periods will be for a period of at least 21 consecutive days
including non-working days.
(vi) Where the majority of the employees in the depot or section
concerned agree, the employer may close down the depot in accordance
with this subclause in two separate periods either of which is of at least
21 consecutive days including non-working days, or in three separate
periods. In such cases the employer will advise the employees concerned
of the proposed dates of each close-down before asking them for their
agreement.
25.6 Part close-down and part rostered leave
(a) An employer may close down the depot, or a section thereof, for a period
of at least 21 consecutive days including non-working days and grant the
balance of the annual leave due to an employee in one continuous period in
accordance with a roster.
(b) An employer may close down the depot, or a section thereof for a period
of less than 21 consecutive days including non-working days and allow the
balance of the annual leave due to an employee in one or two continuous
periods either of which may be in accordance with a roster. In such a case the
granting and taking of annual leave will be subject to the agreement of the
employer and the majority of employees in the depot, or a section thereof,
and before asking the employees concerned for their agreement the employer
will advise them of the proposed date of the close-down or close-downs and
the details of the annual leave roster.
http://www.fwc.gov.au/documents/modern_awards/award/MA000032/default.htm
[2017] FWCFB 959
42
Award ID Award title Current close-down provision
MA000033 Nursery Award 2010 27.11 Time of taking leave
The employer may require annual leave to be taken during periods of
business close-down or when the business cannot open due to restrictions
on opening hours due to State or Federal legislation. The employer may
also require leave to be taken at certain times of the year because of
particular seasonal requirements.
MA000034 Nurses Award 2010 31.9 Close down periods—medical practices
Where an employer temporarily closes a medical practice, an employee may
be directed to take paid annual leave during part or all of this period. Where
an employee does not have sufficient accrued annual leave for this period,
they may be required to take annual leave in advance.
MA000072 Oil Refining and
Manufacturing Award
2010
26.6 Taking of annual leave during shut-downs
An employer may direct an employee to take paid annual leave during all or
part of a period where the employer shuts down the business or part of the
business where the employee works. If an employee does not have sufficient
accrued annual leave for the period of the shut-down, then the employee may
be required to take leave without pay.
MA000097 Pest Control Industry
Award 2010
24.9 Close-down
(a) Where an employer intends temporarily to close (or reduce to nucleus) the
place of employment or a section of it for the purpose, among 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.
(b) 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.
(c) Where an employee has been given notice pursuant to clauses 24.9(a) or
(b) and the employee has:
(i) accrued sufficient annual leave to cover the full period of closing, the
employee must take paid annual leave for the full period of closing;
(ii) insufficient accrued annual leave to cover the full period of closing,
the employee must take paid annual leave to the full amount accrued and
leave without pay for the remaining period of the closing; or
(iii) no accrued annual leave, the employee must take leave without pay
for the full period of closing.
(d) Public holidays that fall within the period of close down will be paid as
provided for in this award and will not count as a day of annual leave or
leave without pay.
http://www.fwc.gov.au/documents/modern_awards/award/MA000097/default.htm
http://www.fwc.gov.au/documents/modern_awards/award/MA000072/default.htm
http://www.fwc.gov.au/documents/modern_awards/award/MA000034/default.htm
http://www.fwc.gov.au/documents/modern_awards/award/MA000033/default.htm
[2017] FWCFB 959
43
Award ID Award title Current close-down provision
MA000069 Pharmaceutical
Industry Award 2010
26.10 Annual close-down
Notwithstanding s.88 of the Act and clause 26.6, an employer may close
down an enterprise or part of it for the purpose of allowing annual leave to all
or the majority of the employees in the enterprise or part concerned, provided
that:
(a) the employer gives not less than four weeks’ notice of intention to do so;
and
(b) an employee who has accrued sufficient leave to cover the period of the
close-down is allowed leave and also paid for that leave at the appropriate
wage in accordance with clauses 26.2 and 26.5; and
(c) an employee who has not accrued sufficient leave to cover part or all of
the close-down is allowed paid annual leave for the period for which they
have accrued sufficient annual leave and given unpaid leave for the remainder
of the close-down; and
(d) any leave taken by an employee as a result of a close-down pursuant to
clause 26.9 also counts as service by the employee with their employer; and
(e) the employer may only close down the enterprise or part of it pursuant to
clause 26.9 for one period in a year.
MA000036 Plumbing and Fire
Sprinklers Award 2010
34.3 Annual close-down
(a) An employer giving any leave in conjunction with the Christmas and New
Year holidays may either:
(i) stand off without pay during the period of leave any employee who
has not yet qualified under the NES for the full period of leave; or
(ii) stand off for the period of leave any employee who has not qualified
for the full period of leave under the NES and pay them to the extent that
the employee has qualified for paid leave under the NES.
(b) Where an employer decides to close down their establishment at the
Christmas and New Year period for the purpose of giving the whole of the
annual leave due to all, or the majority of their employees qualified for such
leave, the employer will give at least two months notice to their employees of
their intention so to do.
http://www.fwc.gov.au/documents/modern_awards/award/MA000036/default.htm
http://www.fwc.gov.au/documents/modern_awards/award/MA000069/default.htm
[2017] FWCFB 959
44
Award ID Award title Current close-down provision
MA000074 Poultry Processing
Award 2010
27.9 Annual close-down
Notwithstanding s.88 of the Act and clause 27.5 an employer may close down
an enterprise or part of it during any period of pre-planned maintenance or
the installation of machinery, provided that:
(a) the employer gives not less than one month’s notice of the intention to do
so; and
(b) the close-down occurs on not more than one occasion per year, unless
otherwise agreed between an employer and the majority of employees
concerned; and
(c) an employee who has accrued sufficient annual leave to cover the period
of the close-down is allowed annual leave and also paid for that leave at the
appropriate wage in accordance with clauses 27.3 and 27.4; and
(d) an employee who has not accrued sufficient annual leave to cover part or
all of the close-down is allowed paid annual leave for the period for which
they have accrued sufficient leave, and given unpaid leave for the remainder
of the close-down; and
(e) any annual leave taken by an employee as a result of a close-down
pursuant to clause 27.8 also counts as service by the employee with their
employer.
http://www.fwc.gov.au/documents/modern_awards/award/MA000074/default.htm
[2017] FWCFB 959
45
Award ID Award title Current close-down provision
MA000057 Premixed Concrete
Award 2010
24.4 Close-down
(a) Where an employer intends temporarily to close (or reduce to nucleus) 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.
(b) In the case of any employee employed after notice has been given, notice
must be given to that employee on the date they are offered employment.
(c) Where an employee has been given notice pursuant to clauses 24.4(a) or
(b) and the employee has:
(i) accrued sufficient annual leave to cover the full period of closing, the
employee must take paid annual leave for the full period of closing;
(ii) insufficient accrued annual leave to cover the full period of closing,
the employee must take paid annual leave to the full amount accrued
and leave without pay for the remaining period of the closing; or
(iii) no accrued annual leave, the employee must take leave without pay
for the full period of closing.
(d) Public holidays that fall within the period of close down will be paid as
provided for in this award and will not count as a day of annual leave or leave
without pay.
MA000065 Professional
Employees Award
2010
19.4 Annual close-down
Where an employer closes down the enterprise, or a section or sections
thereof, for the purposes of allowing annual leave to all or the majority of
employees in the enterprise, section, or sections concerned, the same
conditions which apply to the other employees of the enterprise, section or
sections may also apply to employees covered by this award.
MA000037 Quarrying Award
2010
29.4 Close-down
(a) Where an employer intends temporarily to close (or reduce to nucleus) the
quarry, operation or a section of the quarry or operation 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.
(b) In the case of any employee employed after notice has been given, notice
must be given to that employee on the date they are offered employment.
http://www.fwc.gov.au/documents/modern_awards/award/MA000037/default.htm
http://www.fwc.gov.au/documents/modern_awards/award/MA000065/default.htm
http://www.fwc.gov.au/documents/modern_awards/award/MA000057/default.htm
[2017] FWCFB 959
46
Award ID Award title Current close-down provision
MA000013 Racing Clubs Events
Award 2010
30.3 Temporary close-down
(a) 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.
(b) Where an employee has been given notice pursuant to clause 30.3(a) and
the employee has:
(i) accrued sufficient annual leave to cover the full period of closing, the
employee must take paid annual leave for the full period of closing;
(ii) insufficient accrued annual leave to cover the full period of closing,
the employee must take paid annual leave to the full amount accrued
and leave without pay for the remaining period of the closing; or
(iii) no accrued annual leave, the employee must take leave without pay
for the full period of closing.
(c) Public holidays that fall within the period of close down will be paid as
provided for in this award and will not count as a day of annual leave or leave
without pay.
http://www.fwc.gov.au/documents/modern_awards/award/MA000013/default.htm
[2017] FWCFB 959
47
Award ID Award title Current close-down provision
MA000014 Racing Industry
Ground Maintenance
Award 2010
24.2 Close-down
(a) 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.
(b) Where an employee has been given notice pursuant to clause 24.2(a) and
the employee has:
(i) accrued sufficient annual leave to cover the full period of closing, the
employee must take paid annual leave for the full period of closing;
(ii) insufficient accrued annual leave to cover the full period of closing,
the employee must take paid annual leave to the full amount accrued
and leave without pay for the remaining period of the closing; or
(iii) no accrued annual leave, the employee must take leave without pay
for the full period of closing.
(c) Public holidays that fall within the period of close down will be paid as
provided for in this award and will not count as a day of annual leave or leave
without pay.
MA000106 Real Estate Industry
Award 2010
25.2 Taking leave
(a) The employer and employee may agree when and for what period the
employee is to take the employee’s accrued annual leave, having regard to
the personal circumstances of the employee and the operational requirements
of the employer. Provided that the employer must not unreasonably refuse to
agree to a request by the employee to take accrued annual leave.
(b) Annual leave should be taken by the employee in the employee’s
anniversary year in which the entitlement accrues, except if agreed otherwise.
(c) If the employer has a business shut-down (which may include a partial
shut-down) during the year, the employer may require the employee to take
any or all accrued annual leave during the period of the shut-down.
(d) In the event that the employee has insufficient accrued annual leave for
the period of the shut-down, the employee may be granted annual leave in
advance by the employer.
MA000058 Registered and
Licensed Clubs Award
2010
30.4 Close-down
An employer may require an employee to take annual leave as part of a close-
down of its operations, by giving at least four weeks’ notice.
http://www.fwc.gov.au/documents/modern_awards/award/MA000058/default.htm
http://www.fwc.gov.au/documents/modern_awards/award/MA000106/default.htm
http://www.fwc.gov.au/documents/modern_awards/award/MA000014/default.htm
[2017] FWCFB 959
48
Award ID Award title Current close-down provision
MA000119 Restaurant Industry
Award 2010
35.3 Close-down
An employer may require an employee to take annual leave as part of a close-
down of its operations, by giving at least four weeks’ notice.
MA000039 Road Transport (Long
Distance Operations)
Award 2010
23.8 Annual close-down
An employer may close down an enterprise or part of it for the purpose of
allowing annual leave to all or the majority of the employees in the enterprise
or part concerned, provided that:
(a) the employer gives not less than one month’s notice of its intention to do
so;
(b) an employee who has accrued sufficient leave to cover the period of the
close-down is allowed leave and also paid for that leave at the appropriate
wage;
(c) an employee who has not accrued sufficient leave to cover part or all of
the close-down, is allowed paid leave for the period for which they have
accrued sufficient leave and given unpaid leave for the remainder of the
close-down; and
(d) any leave taken by an employee as a result of a close-down pursuant to
this clause also counts as service by the employee with their employer.
MA000038 Road Transport and
Distribution Award
2010
29.7 Annual close-down
An employer may close down an enterprise or part of the enterprise for the
purpose of allowing annual leave to all or the majority of the employees in
the enterprise or part concerned, provided that:
(a) the employer gives not less than one month’s notice of its intention to do
so;
(b) an employee who has accrued sufficient leave to cover the period of the
close down, is allowed leave and also paid for that leave at the appropriate
wage;
(c) an employee who has not accrued sufficient leave to cover part or all of
the close down, is allowed paid leave for the period for which they have
accrued sufficient leave and given unpaid leave for the remainder of the
close-down; and
(d) any leave taken by an employee as a result of a close down pursuant to
this clause also counts as service by the employee with their employer.
http://www.fwc.gov.au/documents/modern_awards/award/MA000038/default.htm
http://www.fwc.gov.au/documents/modern_awards/award/MA000039/default.htm
http://www.fwc.gov.au/documents/modern_awards/award/MA000119/default.htm
[2017] FWCFB 959
49
Award ID Award title Current close-down provision
MA000107 Salt Industry Award
2010
25.6 Taking of annual leave during shut-downs
An employer may direct an employee to take paid annual leave during all or
part of a period where the employer shuts down the business or part of the
business where the employee works. If an employee does not have sufficient
accrued annual leave for the period of the shut-down, then the employee may
be required to take leave without pay.
MA000068 Seafood Processing
Award 2010
27.11 Annual close-down
Notwithstanding s.88 of the Act and clause 27.6, an employer may close
down an enterprise or part of it for the purpose of allowing annual leave to all
or the majority of the employees in the enterprise or part concerned, provided
that:
(a) the employer gives not less than four weeks’ notice of intention to do so;
and
(b) an employee who has accrued sufficient leave to cover the period of the
close-down, is allowed leave and also paid for that leave at the appropriate
wage in accordance with clauses 27.4 and 27.5; and
(c) an employee who has not accrued sufficient leave to cover part or all of
the close-down, is allowed paid leave for the period for which they have
accrued sufficient leave and given unpaid leave for the remainder of the
close-down; and
(d) any leave taken by an employee as a result of a close-down pursuant to
clause 27.10(a) also counts as service by the employee with their employer;
and
(e) the employer may only close down the enterprise or part of it pursuant to
clause 27.10(a) for one or two separate periods in a year; and
(f) if the employer closes down the enterprise or part of it pursuant to clause
27.10(a) in two separate periods, one of the periods must be for a period of at
least 14 consecutive days including non-working days; and
(g) the employer and the majority of employees concerned may agree to the
enterprise or part of it being closed down pursuant to clause 27.10(a) for three
separate periods in a year provided that one of the periods is a period of at
least 14 days including non-working days; and
(h) the employer may close down the enterprise or part of it for a period of at
least 14 days including non-working days and allow the balance of any
annual leave to be taken in one continuous period in accordance with a roster.
http://www.fwc.gov.au/documents/modern_awards/award/MA000068/default.htm
http://www.fwc.gov.au/documents/modern_awards/award/MA000107/default.htm
[2017] FWCFB 959
50
Award ID Award title Current close-down provision
MA000016 Security Services
Industry Award 2010
24.9 Annual close down
(a) 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 must 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.
(b) Where an employee has been given notice pursuant to clause 24.9(a) and
the employee has:
(i) accrued sufficient annual leave to cover the full period of closing, the
employee must take paid annual leave for the full period of closing;
(ii) insufficient accrued annual leave to cover the full period of closing,
the employee must take paid annual leave to the full amount accrued
and leave without pay for the remaining period of the closing; or
(iii) no accrued annual leave, the employee must take leave without pay
for the full period of closing.
(c) Public holidays that fall within the period of close down will be paid as
provided for in this award and will not count as a day of annual leave or leave
without pay.
MA000040 Silviculture Award
2010
29.3 Shut-down
(a) 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.
http://www.fwc.gov.au/documents/modern_awards/award/MA000040/default.htm
http://www.fwc.gov.au/documents/modern_awards/award/MA000016/default.htm
[2017] FWCFB 959
51
Award ID Award title Current close-down provision
MA000084 Storage Services and
Wholesale Award
2010
26.6 Annual close down
Where an employer intends temporarily to close (or reduce to nucleus) any
establishment or a section thereof for the purpose of allowing annual leave to
the employees concerned or a majority of them, the employer may give one
month’s notice in writing to such employees (or, in the case of any employee
engaged after giving of such notice, notice on the date of the employee’s
engagement) that the employer elects to apply the provisions of this clause;
and thereupon:
(a) any employee who at the date of closing is entitled to annual leave for the
period of the closure will be given annual leave for the period of the closure;
(b) any employee who at the date of closing is not entitled to annual leave
will be given leave without pay from the date of closure, together with pay
for any period for which the employee is entitled to payment; and
(c) the next 12 monthly qualifying period of employment for every such
employee will commence from the date of closing.
In this clause date of closing in relation to each employee means the first day
of annual leave or leave pursuant to this clause.
MA000087 Sugar Industry Award
2010
33.5 Close-down
An employer may require an employee to take annual leave as part of a close-
down of its operations, by giving at least four weeks’ notice.
MA000103 Supported
Employment Services
Award 2010
22.3 Close-down
An employer may require an employee to take annual leave as part of a close-
down of its operations, by giving at least four weeks’ notice.
http://www.fwc.gov.au/documents/modern_awards/award/MA000103/default.htm
http://www.fwc.gov.au/documents/modern_awards/award/MA000087/default.htm
http://www.fwc.gov.au/documents/modern_awards/award/MA000084/default.htm
[2017] FWCFB 959
52
Award ID Award title Current close-down provision
MA000066 Surveying Award 2010 24.3 Annual leave close-down
(a) Where an employer intends temporarily to close (or reduce to nucleus)
their establishment or a section of it for the purposes, among other things, of
allowing annual leave to the employees concerned or a majority of them, they
may give in writing to such employees one month’s notice (or, in the case of
any employee engaged after giving of such notice, notice on the date of the
employee’s engagement) that the employer elects to apply the provisions of
this clause.
(b) Where an employee has been given notice pursuant to clause 24.3(a) and
the employee has:
(i) accrued sufficient annual leave to cover the full period of closing,
the employee must take paid annual leave for the full period of
closing;
(ii) insufficient accrued annual leave to cover the full period of
closing, the employee must take paid annual leave to the full amount
accrued and leave without pay for the remaining period of the closing;
or
(iii) no accrued annual leave, the employee must take leave without
pay for the full period of closing.
(c) Public holidays that fall within the period of close down will be paid as
provided for in this award and will not count as a day of annual leave or leave
without pay.
MA000041 Telecommunications
Services Award 2010
23.9 Annual close-down
(a) An employer may close down an enterprise or part of it for the purpose of
allowing annual leave to all or the majority of the employees in the enterprise
or part concerned, provided that the employer gives at least one month’s
notice to the affected employees. The notice will advise employees of the
commencement date and duration of the close-down.
(b) An employer may close down for one or two periods. Where there is
agreement between the employer and the majority of employees concerned,
an employer may close down for more than two periods.
(c) An employee who has accrued sufficient leave to cover the period of the
close-down, is allowed leave and also paid for that leave at the appropriate
wage in accordance with clause 14—Classifications and minimum wage
rates. An employee who has not accrued sufficient leave to cover part or all
of the close-down is allowed paid leave for the period for which they have
accrued sufficient leave and given unpaid leave for the remainder of the
close-down.
http://www.fwc.gov.au/documents/modern_awards/award/MA000041/default.htm
http://www.fwc.gov.au/documents/modern_awards/award/MA000066/default.htm
[2017] FWCFB 959
53
Award ID Award title Current close-down provision
MA000017 Textile, Clothing,
Footwear and
Associated Industries
Award 2010
41.5 Close-down
(a) An employer may close-down the plant, or a section or sections of it, in
order to allow all or the bulk of employees their annual leave.
(b) The employer must give all affected employees at least three months
notice of the intention to close the plant or section(s).
(c) The employer may stand off all employees in the plant or section(s)
affected by the close-down.
(d) Any employee who has not qualified for a full entitlement to annual leave
must be paid annual leave on a proportionate basis for 2.923 hours for each
completed week of continuous service, provided that the employee has at
least one months’ continuous service.
(e) Any employee who has qualified for a full entitlement to annual leave in
accordance with the NES must be paid 2.923 hours for each completed week
of continuous service performed in excess of 12 months’ continuous service,
in addition to being allowed their annual leave.
(f) The employer and a majority of employees may agree to extend the period
of close-down by no more than two days, and all employees stood down
without pay, provided that agreement is in accordance with clause 8.3.
(g) Any period during which an employee is stood off without pay will count
as service in calculating 12 months’ continuous service.
http://www.fwc.gov.au/documents/modern_awards/award/MA000017/default.htm
[2017] FWCFB 959
54
Award ID Award title Current close-down provision
MA000071 Timber Industry
Award 2010
33.11 Annual close-down
Notwithstanding s.88 of the Act and clauses 33.7 to 33.9, an employer may
close down an enterprise or part of it for the purpose of allowing annual leave
to all or the majority of the employees in the enterprise or part concerned,
provided that:
(a) the employer gives not less than four weeks’ notice of intention to do so;
(b) an employee who has accrued sufficient leave to cover the period of the
close-down, is allowed leave and also paid for that leave at the appropriate
wage in accordance with clauses 33.4 and 33.6;
(c) an employee who has not accrued sufficient leave to cover part or all of
the close-down, is allowed paid leave for the period for which they have
accrued sufficient leave and given unpaid leave for the remainder of the
close-down;
(d) any leave taken by an employee as a result of a close-down pursuant to
clause 33.10 also counts as service by the employee with their employer;
(e) the employer may only close down the enterprise or part of it pursuant to
clause 33.10 for one or two separate periods in a year;
(f) if the employer closes down the enterprise or part of it pursuant to clause
33.10 in two separate periods, one of the periods must be for a period of at
least 14 consecutive days including non-working days;
(g) the employer and the majority of employees concerned may agree to the
enterprise or part of it being closed down pursuant to clause 33.10 for three
separate periods in a year provided that one of the periods is a period of at
least 14 days including non-working days; and
(h) the employer may close down the enterprise or part of it for a period of at
least 14 days including non-working days and allow the balance of any
annual leave to be taken in one continuous period in accordance with a roster.
http://www.fwc.gov.au/documents/modern_awards/award/MA000071/default.htm
[2017] FWCFB 959
55
Award ID Award title Current close-down provision
MA000089 Vehicle
Manufacturing,
Repair, Services and
Retail Award 2010
29.12 Annual close-down
Where an employer closes down a plant, or a section or sections thereof, for
the purpose of allowing annual leave to all or the bulk of the employees in the
workplace or section or sections concerned, the following provisions apply:
(a) An employer may by giving not less than four weeks’ notice of their
intention to do so, stand off for the duration of the close-down all employees
in the workplace or section or sections concerned. In such event the employer
may allow to those who are not qualified for the full entitlement to annual
leave for the total close-down period paid leave up to the total amount of
leave accrued as at the commencement of the close-down. Such leave will be
at the appropriate rate of wage as prescribed in clause 29.9. The balance of
the close-down for which the employee does not have sufficient accrued
leave to cover such period will be leave without pay.
(b) An employee who has accrued enough leave for the close-down period
must be allowed the leave, and be paid at the appropriate wage rate in clause
29.9.
(c) An employer may close-down for one or two separate periods for the
purpose of granting annual leave in accordance with this subclause. If the
employer closes down in two separate periods one of those periods must be
for a period of at least 21 consecutive days.
(d) Provided that where the majority of the employees in the workplace or
section or sections concerned agree, the employer may close down in
accordance with this subclause in two separate periods neither of which is of
at least 21 consecutive days or in three separate periods. In such cases the
employer must advise the employees concerned of the proposed dates of each
close-down before asking them for their agreement.
MA000113 Water Industry Award
2010
27.4 Annual close-down
An employer may require an employee to take annual leave by giving at least
four weeks’ notice as part of a close-down of its operations.
http://www.fwc.gov.au/documents/modern_awards/award/MA000113/default.htm
http://www.fwc.gov.au/documents/modern_awards/award/MA000089/default.htm
[2017] FWCFB 959
56
Award ID Award title Current close-down provision
MA000090 Wine Industry Award
2010
31.9 Annual close down
Notwithstanding s.88 of the Act and clause 31.5 an employer may close down
an enterprise or part of it for the purpose of allowing annual leave to all or the
majority of the employees in the relevant workplace or the section or sections
of it, provided that:
(a) the employer gives not less than four weeks’ notice of the intention to do
so; and
(b) an employee who has accrued sufficient leave to cover the period of the
close down, is allowed leave and also paid for that leave at the appropriate
rate in accordance with s.90(1) of the Act and clause 31.4; and
(c) an employee who has not accrued sufficient leave to cover part or all of
the close down, is allowed paid annual leave for the period for which they
have accrued sufficient annual leave and given untaken accrued rostered days
off, time off instead of unpaid accrued overtime or unpaid leave for the
remainder of the closedown; and
(d) any leave taken by an employee as a result of a close down pursuant to
clause 31.8 also counts as service by the employee with their employer; and
(e) the employer may only close down the relevant workplace or the section
or sections of it pursuant to clause 31.8 for one or two separate periods in a
year; and
(f) if the employer closes down the relevant workplace or the section or
sections of it pursuant to clause 31.8 in two separate periods, one of the
periods must be for a period of at least 14 consecutive days including non-
working days; and
(g) the employer may close down the relevant workplace or the section or
sections of it for a period of at least 14 days including non-working days and
allow the balance of any annual leave to be taken in one continuous period in
accordance with a roster.
MA000044 Wool Storage,
Sampling and Testing
Award 2010
26.3 Taking of annual leave during shut downs etc.
An employer may direct an employee to take paid annual leave during all or
part of a period where the employer shuts down the business or part of the
business where the employee works. If an employee does not have sufficient
accrued annual leave for the period of the shut down, then the employee may
be required to take leave without pay.
http://www.fwc.gov.au/documents/modern_awards/award/MA000044/default.htm
http://www.fwc.gov.au/documents/modern_awards/award/MA000090/default.htm
57
