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Fair Work Act 2009
s.156 - 4 yearly review of modern awards
4 yearly review of modern awards – Plain language re-drafting – Fitness
Industry Award 2010
(AM2016/15, AM2014/227)
JUSTICE ROSS, PRESIDENT
VICE PRESIDENT HATCHER
COMMISSIONER HUNT MELBOURNE, 28 FEBRUARY 2019
4 yearly review of modern awards – plain language re-drafting – Fitness Industry Award
2010.
[1] This Statement concerns an outstanding claim relating to the Job search entitlement
clauses (clauses 14.2 and 14.3, previously clause 14.3) of the Fitness Industry Award 2010
(Fitness Award). The Fitness Award was varied on 2 November 2018 to incorporate the
standard ‘Termination of employment’ clause following the finalisation of standard clauses by
the plain language Full Bench.1
The Claim
[2] During award stage proceedings, the Australian Swim Schools Association (ASSA)
submitted that clause 14.3 of the Fitness Award is ambiguous to the extent that it is unclear if
the entitlement applies to casual employees.2 The ASSA submitted the ambiguity may be
resolved by varying the clause to clearly state if the entitlement applies or does not apply to
casual employees.
[3] In a Decision3 issued on 30 October 2017 (October 2017 decision), a Full Bench dealt
with a number of technical and drafting issues relating to the Group 3 Awards, including the
Fitness Award. The Full Bench noted that clause 14.3 is part of the ‘termination of
employment’ provisions which state that notice of termination is provided for in the National
Employment Standards. The National Employment Standards (NES) explicitly state that the
rights and obligations concerning notice of termination do not apply to casual employees.
However, job search entitlement is not an NES entitlement.
[4] Clauses 14.2 and 14.3 of the Fitness Award provide:
1 PR610260
2 ASSA Submission, 4 August 2016.
3 [2017] FWCFB 5536.
[2019] FWCFB 1047
STATEMENT
E AUSTRALIA FairWork Commission
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014227-sub-assa-040816.pdf
[2019] FWCFB 1047
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‘14.2 Job search entitlement
Where an employer has given notice of termination to an employee, the employee
must be allowed time off without loss of pay of up to one day for the purpose of
seeking other employment.
14.3 The time off under clause 14.2 is to be taken at times that are convenient to the
employee after consultation with the employer.’
[5] In the October 2017 decision the Full Bench noted that termination of employment
provisions were being considered as part of the standard clauses review in the plain language
re-drafting project.4 To avoid any drafting inconsistencies, the Full Bench referred the claim
to the Plain Language Full Bench for further consideration.
Standard Clauses
[6] In a Decision5 issued on 18 July 2018 the Plain Language Full Bench finalised
Standard Clause E — Termination of Employment and expressed the provisional view that all
modern awards should be varied to insert the clause to achieve the modern awards objective.
In a Statement6 issued on 1 October 2018 the Commission confirmed the majority of modern
awards, including the Fitness Award, would be varied to incorporate Standard Clause E.
[7] The full Termination of employment standard clause that has been inserted in the
Fitness Award is set out at Attachment A.
Next steps
[8] The ASSA is to advise if it presses its claim as outlined at paragraph [2] by 4.00pm,
Friday 15 March 2019.
[9] Should the ASSA press its claim, the matter will be listed for Mention and/or
Directions.
[10] All material is to be sent to amod@fwc.gov.au.
PRESIDENT
Printed by authority of the Commonwealth Government Printer
PR705054
4 [2017] FWCFB 5536.
5 [2018] FWCFB 4177.
6 [2018] FWC 6091.
[2019] FWCFB 1047
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ATTACHMENT A
14. Termination of employment
Note: The NES sets out requirements for notice of termination by an employer. See ss.117 and 123 of
the Act.
14.1 Notice of termination by an employee
(a) This clause applies to all employees except those identified in ss.123(1) and 123(3) of
the Act.
(b) An employee must give the employer notice of termination in accordance with Table
1—Period of notice of at least the period specified in column 2 according to the period
of continuous service of the employee specified in column 1.
Table 1—Period of notice
Column 1
Employee’s period of continuous service with the employer
at the end of the day the notice is given
Column 2
Period of notice
Not more than 1 year 1 week
More than 1 year but not more than 3 years 2 weeks
More than 3 years but not more than 5 years 3 weeks
More than 5 years 4 weeks
Note: The notice of termination required to be given by an employee is the same as
that required of an employer except that the employee does not have to give additional
notice based on the age of the employee.
(c) In paragraph (b) continuous service has the same meaning as in s.117 of the Act.
(d) If an employee who is at least 18 years old does not give the period of notice required
under paragraph (b), then the employer may deduct from wages due to the employee
under this award an amount that is no more than one week’s wages for the employee.
(e) If the employer has agreed to a shorter period of notice than that required under
paragraph (b), then no deduction can be made under paragraph (d).
(f) Any deduction made under paragraph (d) must not be unreasonable in the
circumstances.
14.2 Job search entitlement
Where an employer has given notice of termination to an employee, the employee must be
allowed time off without loss of pay of up to one day for the purpose of seeking other
employment.
14.3 The time off under clause 14.2 is to be taken at times that are convenient to the employee
after consultation with the employer.
http://www.legislation.gov.au/Series/C2009A00028
http://www.legislation.gov.au/Series/C2009A00028
http://www.legislation.gov.au/Series/C2009A00028
http://www.legislation.gov.au/Series/C2009A00028
