[2015] FWCFB 8030
FAIR WORK COMMISSION

STATEMENT



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, 23 NOVEMBER 2015

4 yearly review of modern awards - common issue - annual leave - determinations.

[1] On 11 June 2015 a Full Bench decision about annual leave provisions in modern awards determined model terms in relation to granting leave in advance of accrual and EFT and paid annual leave. The decision also contained provisional model terms for cashing out annual leave and dealing with excessive leave accruals. After providing interested parties with a further opportunity to be heard the cashing out and excessive leave model terms were finalised in a subsequent decision issued on 15 September 2015 1.

[2] On 30 September 2015 draft determinations were published on the Fair Work Commission website inserting the relevant model terms into all modern awards and the following directions were issued:

[3] In accordance with the above directions a number of parties filed submissions and submissions in reply. Attachment A contains a list of the submissions made regarding the insertion of one or more model clauses in 34 modern awards.

[4] A hearing has been scheduled for 9:30am on Tuesday 8 December 2015 to provide interested parties with an opportunity to make oral submissions in relation to the draft determinations.

[5] This Statement sets out our provisional view as to how we propose to deal with the submissions filed.

[6] Other than the general submission outlined in paragraph [7] no award specific submissions were received in relation to the 88 modern awards set out in Attachment B.

[7] The Australian Industry Group (Ai Group) made a general submission on 26 November 2015 in relation to the excessive leave model term stating that the model term reduces flexibility for employers. Ai Group submit that where an excessive leave term is currently in a modern award, that term should be retained. A similar submission was made by Australian Business Industrial and the New South Wales Business Chamber Ltd (jointly ABI) in relation to the Clerks—Private Sector Award 2010. ABI submit that the current excessive leave provision should be retained.

[8] An employee covered by the Waste Management Award 2010 submitted that a definition of shiftworker for the purpose of the additional week of annual leave should be inserted in this award. Given that this award provides for shiftwork, our provisional view is that the variation determination include the following definition:

[9] Parties are invited to file written submissions regarding the provisional view expressed (including the terms of the proposed variation) in paragraph [8] above by emailing [email protected] no later than 4.00 pm on Thursday 3 December 2015.

[10] A number of submissions were made in relation to the particular employment arrangements under the following awards in the education sector:

[11] A Full Bench has been constituted to deal with the substantive claims in the education sector in AM2015/6. The implementation of the annual leave terms in the above awards will be referred to that Full Bench.

[12] The Australian Mines and Metals Association Inc (AMMA) and Maritime Industry Association Ltd (MIA) made detailed submissions opposing the model terms for excessive leave, granting annual leave in advance and cashing out annual leave in the following awards in this sector:

[13] AMMA and MIA outlined the unique rostering arrangements in this sector and submit that under these awards, industry specific provisions operate in conjunction with the National Employment Standards. In their reply submission, the Australian Workers’ Union did not object to the submissions made by AMMA and MIA.

[14] Our provisional view is that the draft determinations inserting annual leave provisions dealing with excessive leave, leave in advance and cashing out will not be issued in relation to these six awards. Any interested persons objecting to our provisional view should file written submissions no later than 4.00 pm on Thursday 3 December 2015. If no submissions are made to the contrary we will adopt AMMA/MIA’s position.

[15] Submissions were also made in relation to the following awards:

Hospitality group

    Hospitality Industry (General) Award 2010

    Registered and Licensed Clubs Award 2010

    Restaurant Industry Award 2010

 

Agriculture group

    Horticulture Award 2010

    Pastoral Award 2010

    Wine Industry Award 2010

 

Miscellaneous group

    Passenger Vehicle Transportation Award 2010

    Black Coal Mining Industry Award 2010

 

Resources group

    Hydrocarbons Industry (Upstream) Award 2010

    Mining Industry Award 2010

    Oil Refining and Manufacturing Award 2010

    Salt Industry Award 2010

 

Health group

    Medical Practitioners Award 2010

    Aboriginal Community Controlled Health Services Award 2010

    Aged Care Award 2010

    Ambulance and Patient Transport Industry Award 2010

    Health Professionals and Support Services Award 2010

    Nurses Award 2010

    Pharmacy Industry Award 2010

    Social, Community, Home Care and Disability Services Industry Award 2010

[16] Submissions in relation to the above awards and the general submissions referred to in paragraph [7], will be dealt with at the Full Bench at a hearing on Tuesday 8 December 2015. A schedule for those proceedings is at Attachment C.

PRESIDENT

Printed by authority of the Commonwealth Government Printer

<Price code C, PR574227>

ATTACHMENT A—LIST OF SUBMISSIONS

Organisation

Document

Date

Australian Public Transport Industrial Association

Submission - draft determination - Passenger Vehicle Transportation Award 2010

13/07/2015

Australian Higher Education Industrial Association

Submission - draft determination - Education sector

13/07/2015

D. Kruse and others

Submission - draft determination - Waste Management Award 2010

21/10/2015

Clubs Australia Industrial

Submission - draft determination - Registered and Licensed Clubs Award 2010

26/10/2015

Australian Industry Group

Submission - draft determination - multiple modern awards

26/10/2015

CFMEU - Mining and Energy Division

Submission - draft determination - Black Coal Mining Industry Award 2010

26/10/2015

Coal Mining Industry Employer Group

Submission - draft determination - Black Coal Mining Industry Award 2010

26/10/2015

Associations of Independent Schools

Submission - draft determination - Educational Services (Teachers) Award 2010

26/10/2015

Restaurant & Catering Australia

Submission - draft determination - Restaurant Industry and Hospitality Industry (General) awards

26/10/2015

Australian Hotels Association

Submission - draft determination - Hospitality award

26/10/2015

National Farmers' Federation

Submission - draft determinations - Horticulture, Pastoral and Wine industry awards

26/10/2015

Australian Mines and Metals Association and Maritime Industry Australia

Submission - draft determinations - Maritime sector

26/10/2015

Group of Eight Universities

Submission - draft determinations - Education sector

26/10/2015

Australian Mines and Metals Association

Submission - draft determination - Resources sector

26/10/2015

Independent Education Union

Submission - draft determination - Educational Services (Teachers) Award 2010

26/10/2015

Australian Salaried Medical Officers' Federation

Submission - draft determination - Medical Practitioners Award 2010

26/10/2015

Australian Business Industrial and NSW Business Chamber

Submission - draft determination - Clerks—Private Sector Award 2010 and others

27/10/2015

Australian Chamber of Commerce and Industry

Correspondence

29/10/2015

Health Services Union

Submission in reply - Health sector

02/11/2015

Coal Mining Industry Employer Group

Submissions in reply - Black Coal Mining Industry Award 2010

11/11/2015

The Australian Workers' Union

Submissions in reply - multiple modern awards

11/11/2015

CFMEU - Construction and General Division

Submissions in reply - Building and Construction General On-site Award 2010 and others

11/11/2015

CFMEU - Mining and Energy Division

Submissions in reply - Black Coal Mining Industry Award 2010

11/11/2015

Australian Industry Group

Submission in reply - multiple modern awards

11/11/2015

AMWU - Vehicle Division

Submissions in reply - Vehicle Manufacturing, Repair, Services and Retail Award 2010

13/11/2015

AMWU

Submissions in reply - multiple modern awards

13/11/2015

APESMA - Collieries' Staff Division

Submission in reply - Black Coal Mining Industry Award 2010

13/11/2015

Textile, Clothing and Footwear Union of Australia

Submissions in reply - Textile and Dry Cleaning awards

13/11/2015

ATTACHMENT B—LIST OF AWARDS WITH NO SUBMISSIONS

Award code

Award title

MA000046

Air Pilots Award 2010

MA000047

Aircraft Cabin Crew Award 2010

MA000048

Airline Operations—Ground Staff Award 2010

MA000049

Airport Employees Award 2010

MA000092

Alpine Resorts Award 2010

MA000060

Aluminium Industry Award 2010

MA000080

Amusement, Events and Recreation Award 2010

MA000118

Animal Care and Veterinary Services Award 2010

MA000114

Aquaculture Industry Award 2010

MA000079

Architects Award 2010

MA000054

Asphalt Industry Award 2010

MA000019

Banking, Finance and Insurance Award 2010

MA000078

Book Industry Award 2010

MA000091

Broadcasting and Recorded Entertainment Award 2010

MA000021

Business Equipment Award 2010

MA000095

Car Parking Award 2010

MA000055

Cement and Lime Award 2010

MA000070

Cemetery Industry Award 2010

MA000120

Children’s Services Award 2010

MA000022

Cleaning Services Award 2010

MA000045

Coal Export Terminals Award 2010

MA000083

Commercial Sales Award 2010

MA000056

Concrete Products Award 2010

MA000023

Contract Call Centre Award 2010

MA000110

Corrections and Detention (Private Sector) Award 2010

MA000024

Cotton Ginning Award 2010

MA000075

Educational Services (Post-Secondary Education) Award 2010

MA000076

Educational Services (Schools) General Staff Award 2010

MA000088

Electrical Power Industry Award 2010

MA000025

Electrical, Electronic and Communications Contracting Award 2010

MA000003

Fast Food Industry Award 2010

MA000111

Fire Fighting Industry Award 2010

MA000094

Fitness Industry Award 2010

MA000073

Food, Beverage and Tobacco Manufacturing Award 2010

MA000105

Funeral Industry Award 2010

MA000101

Gardening and Landscaping Services Award 2010

MA000061

Gas Industry Award 2010

MA000004

General Retail Industry Award 2010

MA000026

Graphic Arts, Printing and Publishing Award 2010

MA000005

Hair and Beauty Industry Award 2010

MA000008

Horse and Greyhound Training Award 2010

MA000064

Hydrocarbons Field Geologists Award 2010

MA000029

Joinery and Building Trades Award 2010

MA000067

Journalists Published Media Award 2010

MA000099

Labour Market Assistance Industry Award 2010

MA000116

Legal Services Award 2010

MA000081

Live Performance Award 2010

MA000112

Local Government Industry Award 2010

MA000117

Mannequins and Models Award 2010

MA000010

Manufacturing and Associated Industries and Occupations Award 2010

MA000093

Marine Tourism and Charter Vessels Award 2010

MA000030

Market and Social Research Award 2010

MA000059

Meat Industry Award 2010

MA000104

Miscellaneous Award 2010

MA000032

Mobile Crane Hiring Award 2010

MA000033

Nursery Award 2010

MA000097

Pest Control Industry Award 2010

MA000069

Pharmaceutical Industry Award 2010

MA000036

Plumbing and Fire Sprinklers Contracting Award 2010

MA000051

Port Authorities Award 2010

MA000074

Poultry Processing Award 2010

MA000057

Premixed Concrete Award 2010

MA000109

Professional Diving Industry (Recreational) Award 2010

MA000065

Professional Employees Award 2010

MA000037

Quarrying Award 2010

MA000013

Racing Clubs Events Award 2010

MA000014

Racing Industry Ground Maintenance Award 2010

MA000015

Rail Industry Award 2010

MA000106

Real Estate Industry Award 2010

MA000039

Road Transport (Long Distance Operations) Award 2010

MA000038

Road Transport and Distribution Award 2010

MA000068

Seafood Processing Award 2010

MA000016

Security Services Industry Award 2010

MA000040

Silviculture Award 2010

MA000082

Sporting Organisations Award 2010

MA000121

State Government Agencies Administration Award 2010

MA000053

Stevedoring Industry Award 2010

MA000084

Storage Services and Wholesale Award 2010

MA000087

Sugar Industry Award 2010

MA000103

Supported Employment Services Award 2010

MA000066

Surveying Award 2010

MA000041

Telecommunications Services Award 2010

MA000071

Timber Industry Award 2010

MA000042

Transport (Cash in Transit) Award 2010

MA000102

Travelling Shows Award 2010

MA000089

Vehicle Manufacturing, Repair, Services and Retail Award 2010

MA000113

Water Industry Award 2010

MA000044

Wool Storage, Sampling and Testing Award 2010

ATTACHMENT C—PROPOSED SCHEDULE FOR HEARING

This matter is listed before the Full Bench on 9.30 am on Tuesday 8 December 2015

The submissions will be dealt with in accordance with the following schedule:

Time

Group/Awards

   

9.30 am

General submission by Ai Group

 

Submission by ABI re Clerks—Private Sector Award 2010

   

Not before

 

10.30 am

Hospitality group

 

Hospitality Industry (General) Award 2010

 

Registered and Licensed Clubs Award 2010

 

Restaurant Industry Award 2010

   
 

Agriculture group

 

Horticulture Award 2010

 

Pastoral Award 2010

 

Wine Industry Award 2010

   

11.00 am

Passenger Vehicle Transportation Award 2010

 

Waste Management Award 2010

   

Not before

 

11.30 am

Black Coal Mining Industry Award 2010

   
 

Resources group

 

Hydrocarbons Industry (Upstream) Award 2010

 

Mining Industry Award 2010

 

Oil Refining and Manufacturing Award 2010

 

Salt Industry Award 2010

   

Not before

 

2.00 pm

Health group

 

Medical Practitioners Award 2010

 

Aboriginal Community Controlled Health Services Award 2010

 

Aged Care Award 2010

 

Ambulance and Patient Transport Industry Award 2010

 

Health Professionals and Support Services Award 2010

 

Nurses Award 2010

 

Pharmacy Industry Award 2010

 

Social, Community, Home Care and Disability Services Industry Award 2010

 1   [2015] FWCFB 5771