Fair Work Act 2009
s.156 - 4 yearly review of modern awards

4 yearly review of modern awards - common issue - transitional provisions.

[1] The matters before the Full Bench concern transitional provisions relating to accident pay, district allowances and redundancy which were inserted into most modern awards by the Award Modernisation Full Bench in the Award Modernisation Decision 2008 [2008] AIRCFB 1000. The transitional provisions were expressed to operate for a period until 31 December 2014 (the sunset provision), during which time the parties would have the opportunity to give consideration to the future award regulation of those matters.

[2] As part of the four yearly review of awards, a background paper was prepared and distributed to parties and a series of conferences were convened by the President of the Fair Work Commission (the Commission) regarding the Transitional Provisions Common Issues. Several parties made applications in relation to the transitional provisions in awards. Applications were made by the Australian Council of Trade Unions (ACTU) to delete the sunset provision in the model transitional provisions which were inserted into most modern awards relating to accident pay and district allowances. The Construction Forestry Mining and Energy Union, Mining and Energy Division (CFMEU) applied to delete the sunset provision in the non-model accident pay provision which was inserted into the Black Coal Mining Industry Award 2010. The Australian Industry Group (AiG) applied to delete the transitional provisions relating to accident pay, district allowances applying in Western Australia and the Northern Territory, and redundancy from all applicable awards.

[3] A timetable was established for the filing of submissions and evidence in relation to the Transitional Provisions Common Issues. Written outlines of submissions together with evidence and other material were filed by interested parties, mainly in September 2014, and on 29 to 31 October 2014 the Full Bench heard submissions from the parties.

[4] Given the operative periods for the transitional provisions in modern awards, we consider that it is appropriate for the Full Bench to announce our decision, at least in relation to some of the matters before us, as early as possible.

[5] We have decided not to grant the ACTU application to delete the sunset provisions in the transitional Accident Pay and District Allowance provisions in modern awards. We do not consider that the case has been made out for the continuation of those transitional provisions having regard to the basis on which they were inserted by the Award Modernisation Full Bench in 2008 and to the submissions and material presented in the proceedings before us.

[6] In particular we note that no party has sought the inclusion in modern awards of a national standard on accident pay to apply to all award covered employees, as was anticipated by the Award Modernisation Decision 2008. 1 We also note that no substantive case has been advanced such that the allowances applying in Western Australia and the Northern Territory “should be a permanent feature of the awards and, if so, the basis for their fixation and adjustment.”2 We also refer to the requirement that the Commission have regard, in considering the ACTU application, to the modern awards objective in section 134 and the requirements of sections 139 and 154 of the Fair Work Act 2009.

[7] In relation to the CFMEU application regarding the Black Coal Mining Industry Award 2010, we have decided to delete clause 18.8 of that Award with effect from 31 December 2014. In this regard, we consider that the accident pay provision in the Award provides a clear national standard for the particular industry as described in the Award Modernisation Decision 2008. 3

[8] In relation to the AiG application to delete transitional arrangements relating to redundancy in modern awards, we have decided to vary the relevant awards with effect from 1 January 2015. In this regard, we note that the transitional redundancy provisions will by their terms cease to operate on 31 December 2014 and that no party has opposed the removal of these provisions from awards.

[9] We will publish the reasons for this decision, and our decision on the other applications relating to the Transitional Provisions Common Issues which were dealt with in the proceedings, in due course.

SENIOR DEPUTY PRESIDENT

 1   [2008] AIRCFB 1000 at [87].

 2   Ibid at [81].

 3   Ibid at [88].

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