[2016] FWC 3520
FAIR WORK COMMISSION

STATEMENT


Fair Work Act 2009

s.156 - 4 yearly review of modern awards

4 yearly review of modern awards—Annualised salaries
(AM2014/239 and AM2016/13)

Agricultural industry

JUSTICE ROSS, PRESIDENT

MELBOURNE, 31 MAY 2016

4 yearly review of modern awards - award stage - annualised salary - Pastoral Award 2010 - common issue.

Introduction

[1] On 24 December 2015, a Full Bench issued a decision 1 (the December 2015 decision) dealing with a number of proposed variations to the Pastoral Award 2010 (Pastoral Award), as part of the Award stage of the 4 yearly review of modern awards (the Review). One of the matters dealt with in the December 2015 decision was a variation sought by the National Farmers’ Federation (NFF)2 to insert an annualised salary term into the Pastoral Award.

[2] This Statement deals with a broader review of annualised salary terms in modern awards.

Background

[3] Section 139 (1)(f) provides that a modern award may include annualised salary terms that:

[4] In the December 2015 decision3 the Full Bench indicated that it was satisfied that the term proposed by the NFF for insertion into the Pastoral Award met the requirements of sections (i) and (ii), but that there was a need to give further consideration to the requirements of section 139(1)(f)(iii) of the Act.

[5] As part of the Review the NFF has also indicated that it intends to apply to vary the Horticulture Award 2010 to insert an annualised salary clause. 4 In addition, the South Australian Wine Industry Association Incorporated has advised that it will seek the inclusion of an annualised salary clause in the Wine Industry Award 20105.

[6] Applications have also been made to vary existing annualised salary clauses in four other modern awards, :

[7] The issues raised in these applications include:

[8] Of the 122 modern awards, 19 contain an annualised salary term and the safeguards in those terms vary. A list of the 19 awards with annualised salary terms is set out at Attachment B. As indicated in the December 2015 decision, in those awards that contain an annualised salary term, it was usually the case that similar provisions formed part of the relevant pre-reform instruments and, as a consequence, the form and content of such terms was not the subject of much debate during the award modernisation process.

[9] During the Transitional Review in 2012 the ASU made applications to delete annualised salary clauses in two modern awards. Those applications were dismissed on the basis that no cogent reasons had been advanced for the changes sought and that a thorough re-examination of issues covered within the award modernisation process did not fall within the scope of the Transitional Review.

[10] However, the 4 yearly modern awards review is broader in scope than the Transitional Review and provides an opportunity to comprehensively review such terms. 15

Conclusion and next steps

[11] In light of the above, I am satisfied that a broader review of all annualised salary terms is required.

[12] I note that in the December 2015 decision the Full Bench proposed to give further consideration to this issue in relation to the Pastoral Award and stated at [170] :

[13] However, in order to ensure consistent decision making and that all relevant issues in relation to annualised salary arrangements are canvassed, I have determined that the NFF’s application to vary the Pastoral Award and the applications set out above (at [5][6], see Attachment A) and existing annualised salary terms in modern awards (Attachment B) will be referred to a separately constituted Full Bench (see Attachment C) for review and determination.

[14] It should not be assumed that the referral of these matters to a Full Bench will result in a standard annualised salary term to be included in all awards. The content of particular clauses will be a matter for the Full Bench.

[15] The Full Bench will issue directions in due course.

PRESIDENT

ATTACHMENT A — Submissions received by the Commission in relation to annualised salary clauses

Award

Party seeking variation

Claim

link to submission

Pastoral Award 2010

National Farmers’ Federation

Seek to insert an annualised salary provision

Sub-02/03/15

Clerks—Private Sector Award 2010

Australian Services Union

Propose deleting current clause 17 and inserting a new clause.

Sub-02/03/15

Contract Call Centres Award 2010

Australian Services Union

Seeks to vary clause 18.5 to include NES entitlement for annualised salaries.

Sub-12/11/2015 and Sub-02/03/15

Horticulture Award 2010

National Farmers’ Federation

Seek to insert an annualised salary provision

Sub-13/03/15

Wine Industry Award 2010

South Australian Wine Industry Association

Seek to insert an annualised salary provision

Sub - 2/3/2015

Hospitality Industry (General) Award 2010

United Voice

Seeks to vary clause 27.1

Sub-12/11/15 and Sub-02/03/15

Restaurant Industry Award 2010

United Voice

Seeks to vary clause 28

Sub-12/11/15

Registered and Licenced Clubs Award 2010

United Voice

Seeks to vary Clause 17.3

Sub-12/11/15

Restaurant Industry Award 2010

Restaurant and Catering Industrial

Seek an alteration to clause 28.1(a) to expressly state annualised salaries include absorption of the annual leave loading prescribed in clause 35.2(b).

Sub-02/03/15

ATTACHMENT B — Existing annualised salary clauses in modern awards

    Number

            Award

    Clause

    1

    Banking, Finance and Insurance Award 2010

    14

    2

    Broadcasting and Recorded Entertainment Award 2010

    44

    3

    Clerks-Private Sector Award 2010

    17

    4

    Contract Call Centres Award 2010

    18

    5

    Hospitality Industry (General) Award 2010

    27

    6

    Hydrocarbons Industry (Upstream) Award 2010

    20

    7

    Legal Services Award 2010

    30

    8

    Local Government Industry Award 2010

    14

    9

    Manufacturing and Associated Industries and Occupations Award 2010

    24

    10

    Marine Towage Award 2010

    13

    11

    Mining Industry Award 2010

    17

    12

    Oil Refining and Manufacturing Award 2010

    20

    13

    Pharmacy Industry Award 2010

    27

    14

    Rail Industry Award 2010

    18

    15

    Restaurant Industry Award 2010

    28

    16

    Salt Industry Award 2010

    18

    17

    Telecommunications Services Award 2010

    15

    18

    Water Industry Award 2010

    14

    19

    Wool Storage, Sampling and Testing Award 2010

    19

ATTACHMENT C — Full Bench Memorandum

MEMORANDUM

AM2016/13 and AM2014/239

4 YEARLY REVIEW OF MODERN AWARDS - Annualised salary - Pastoral Award 2010 - common issue

Fair Work Act 2009

s.156 - 4 yearly review of modern awards

4 yearly review of modern awards

Pursuant to ss.618 and 582 a Full Bench comprised of Vice President Hatcher, Deputy President Dean and Commissioner Saunders will deal with the above matter to review and determine –

Justice Ross

President

31 May 2016

Copy to:

Vice President Hatcher

Deputy President Dean

Commissioner Saunders

Copy for information to:

AMOD

 1   [2015] FWCFB 8810.

 2   NFF submission, 13 March 2015 at paragraph 4.

 3   [2015] FWCFB 8810 at [170]

 4   NFF submission, 13 March 2015 at paragraphs 4 and 5.

 5   South Australian Wine Industry Association Incorporated submission, 2 March 2015.

 6   United Voice submission 12 November 2015

 7   United Voice submission 12 November 2015

 8   Restaurant and Catering Industrial submission 2 March 2015

 9   United Voice submission 2 March 2015

 10   United Voice submission 2 March 2015

 11   United Voice submission 2 March 2015

 12   Australian Services Union submission 2 March 2015

 13   Australian Services Union submission 2 March 2015

 14   Australian Services Union submission 2 March 2015

 15   [2015] FWCFB 8810 at [156].

Printed by authority of the Commonwealth Government Printer

<Price code C, PR581021, MA000035>