STATEMENT

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

4 yearly review of modern awards – Plain language
(AM2016/15)

4 yearly review of modern awards – Plain language drafting

1. Introduction

[1] Further to the Statements issued on 6 May 2016 1 and 10 May 20162, the Fair Work Commission (the Commission) intends to undertake further plain language re-drafting of modern awards as part of the 4 yearly review of modern awards (the Review).

[2] The Commission has undertaken a Plain language modern award pilot (the Pilot) to produce a plain language draft of the Pharmacy Industry Award 2010 (Pharmacy Industry Award). Further, the Commission has adopted a plain language drafting approach to new provisions developed as part of the Review, in particular the preparation of plain language model terms in respect of:

● Annual leave in advance

● Cashing out of annual leave

● Excessive annual leave accruals 3

● Time off instead of payment for overtime 4

[3] A Full Bench has been constituted to oversee the Commission’s plain language projects and the process has been assigned a matter number—AM2016/15. A webpage has been established on the Commission’s website to consolidate all materials related to plain language modern awards. Award-specific materials will also be posted to relevant award stage webpages.

[4] This statement outlines how the Commission plans to consult on the plain language drafts generated from the Pilot and the Commission’s plans for further plain language re-drafting to occur as part of the Review.

2. Components of the plain language modern awards project

[5] During the re-drafting of the Pharmacy Industry Award, the Commission has been mindful of the need to treat award-specific terms in a different way to general terms which have broader application across modern awards. The Statement of 29 October 2015 5 specified the clauses of the Pharmacy Industry Award that were treated as award-specific (referred to as Part A) and those of general application (referred to as Part B). The Part B provisions can be further categorised as follows:

● Common provisions are a range of clauses and notes that have been generated during the Review and inserted into most exposure drafts such as machinery type provisions and simple leave provisions. Examples of common provisions include but are not limited to:

• the National Employment Standards and this award;



• the Facilitative provisions framework; and



• Personal/carer’s leave and compassionate leave (where such a clause does not have any award-specific content).

● Standard provisions that have arisen from previous test cases and are generally replicated in the same form across most awards. The standard provisions are:

• Award flexibility;



• Consultation;



• Dispute resolution;



• Termination of employment; and



• Redundancy.

[6] Paragraphs [7] to [34] outlines how the Commission will finalise the plain language re-drafting of the Pharmacy Industry Award; the redrafting of the common and standard provisions set out above; and the plain language review of four additional modern awards.

(i) Plain language draft Pharmacy Industry Award—award-specific provisions

[7] A report from the Pilot published on 21 April 2016 attached a plain language draft of the Pharmacy Industry Award. This draft comprised plain language versions of the terms in the body of the award, excluding some standard clauses, plus two schedules to the award that were categorised as ‘award-specific’. The Part A and Part B clauses were treated differently during the Pilot. Part A clauses were subject to consultation with interested persons and user-testing with Community Pharmacy employers and employees. Part B provisions have not yet been the subject of consultation and are discussed further at paragraphs [12] to [19].

[8] Following the publication of the report from the Pilot, a conference was held on 27 April 2016 with organisations with an interest in the Pharmacy Industry Award (AM2014/209). Amended Directions were issued on 16 May 2016 inviting interested persons to comment on the plain language draft clauses published in the report. Parties were also given the option to comment on clauses that are common to other modern awards and exposure drafts that were published with the report from the Pilot. Parties were also directed to identify any substantive issues relating to the Pharmacy Industry Award that remain to be resolved.

[9] The parties to AM2014/209 elected to comment only on the award-specific clauses of the Pharmacy Industry Award and not on the plain language draft clauses that are common to other awards as part of AM2014/209. It was generally agreed that the common clauses should be subject to broader consultation.

[10] A conference was held on 8 June 2016 to consider the process for finalising the plain language draft Pharmacy Industry Award. Interested parties agreed to a process to deal with all Pharmacy Industry Award technical and drafting issues, including publication of a revised exposure draft in July 2016; written submissions on the revised exposure draft; a conference with all interested parties; and then referral of the plain language exposure draft to the Plain Language Full Bench for determination.

[11] Draft directions will be issued when the revised exposure draft is published setting out a process and timetable for finalising the plain language draft Pharmacy Industry Award. The indicative timetable set out at Attachment A provides an overview of the proposed timings for consultation.

(ii) Plain language draft standard clauses

[12] The Commission will shortly commence a consultation process on plain language draft clauses that appear in most or all awards, referred to as standard clauses. The clauses listed in paragraph [5] are standard clauses and will be dealt with by the Plain Language Full Bench.

[13] Plain language re-drafts of the standard clauses will be published shortly. An information note will accompany the plain language re-drafts to identify the modern awards that contain the model terms and the awards that contain different or additional provisions to the model terms. The indicative timetable at Attachment A outlines the proposed consultation process.

[14] The Commission intends to invite written submissions and submissions in reply from interested parties on the plain language draft standard terms. Written submissions will be summarised and a conference will be held with interested persons. Further consultation processes may be established by the Full Bench as required. Qualitative research and testing with award users may be required to assist drafters to refine and revise drafts following consultation with interested persons.

[15] Following a decision on the model terms, plain language standard clauses will be inserted into exposure drafts as they are periodically revised during the Award stage of the Review.

[16] Where an award contains a provision that differs from the standard term or contains allied provisions (e.g. a dispute resolution training term), these terms may be dealt with by the Plain Language Full Bench or through the Award stage proceedings for the relevant awards following a decision on the plain language model terms.

(iii) Plain language clauses of the Pharmacy Industry Award—common provisions

[17] The clauses of the Pharmacy Industry Award that are common to other awards and exposure drafts were published with the report on the Pilot. These provisions will be the subject of a broader consultation process.

[18] The Commission intends to invite comments from interested persons on the plain language draft common clauses following the conclusion of consultation on the plain language standard clauses (see paragraph [14]). Information about the exposure drafts in which these clauses appear will be published at the time when submissions are invited. Consultation on the common clauses will not commence until 2017.

[19] The clauses that are common to other awards may be subject to qualitative research and testing with award users to assist drafters to refine and revise drafts as part of the consultation process.

(iv) National Training Wage Schedule and other Schedules

[20] A Statement issued on 6 July 2016 6 about the National Training Wage Schedule indicated that this Schedule may be the subject of plain language re-drafting (see paragraph 9 of that Statement).

[21] Consultation on a plain language draft of the National Training Wage Schedule will occur following a decision on the proposal to standardise the Schedule.

[22] The Plain Language Full Bench may consider plain language drafting of further schedules (e.g. the School-based apprentices schedule) and establish consultation processes so that all interested persons are given the opportunity to comment on any proposed changes to the Schedules.

(v) Four modern awards selected for plain language re-drafting

[23] A Statement was issued on 6 May 2016 proposing that the Commission commence a process to re-draft a further four modern awards in plain language. The selected awards are:

● Clerks—Private Sector Award 2010 (AM2014/219)
● General Retail Industry Award 2010 (AM2014/270)
● Hospitality Industry (General) Award 2010 (AM2014/272)
● Restaurant Industry Award 2010 (AM2014/284)

[24] The selection of awards for plain language re-drafting considered levels of award reliance, particularly among small businesses (those with fewer than 20 employees) which are less likely to have dedicated internal human resources support to assist with the interpretation of awards. It is further considered that the re-drafting of these particular awards will have the potential to be of most benefit to employers and employees.

[25] Interested persons were invited to comment on the selection of the four modern awards selected for plain language re-drafting by 20 May 2016. Submissions were received from six interested parties and one individual. 7

[26] The submissions received did not object to the selection of these four awards. Detailed comments focused on the process for consulting with interested persons. The interested union parties proposed a process of dealing with the plain language exposure drafts sequentially and also sought greater explanation of amendments made through the plain language re-drafting process.

[27] The four awards will be dealt with sequentially, although as a matter of efficiency and to promote the plain language objective of consistency, it may be appropriate to deal with the Hospitality Industry (General) Award 2010 and the Restaurant Industry Award 2010 exposure drafts together.

[28] The Clerks–Private Sector Award 2010 (Clerks Award) will be the first of the four selected awards to be subject to plain language re-drafting.

[29] An exposure draft for the Clerks Award was first published on 18 December 2015. In a conference before Deputy President Clancy, the technical and drafting issues were categorised and parties agreed on a number of changes to the December 2015 exposure draft. 8 The exposure draft will be amended accordingly and re-published on the Commission’s website. Interested persons will have the opportunity to comment on the revised exposure draft insofar as it reflects the Report to the Full Bench. Following any comments received from interested persons, the revised exposure draft will form the basis of the plain language re-drafting process.

[30] Exposure drafts have not yet been published for the remaining three awards chosen for plain language re-drafting which are in Group 4. In order to reduce the burden on parties and to avoid any confusion, the plain language exposure drafts will be the only drafts prepared for these awards.

[31] The selected awards will be re-drafted by Commission staff under the guidance of a plain language drafting expert. Initial drafts may be subject to qualitative research and user-testing to assist drafters to understand how provisions are used and how drafts are interpreted by award users. Any testing conducted will assess how well the structure/layout, composition and language meet the needs of award users to inform decisions on these matters. Qualitative research and user-testing may also be used to help drafters refine and revise drafts following consultation with interested persons.

[32] Background research used to inform development of plain language drafts will be published for information and comment with the plain language draft. Drafter comments will accompany the plain language re-draft to explain the changes made. These comments will be set out in a comparison table that displays the current award/exposure draft and the re-draft.

[33] The indicative timetable at Attachment A outlines the proposed process for consultation with interested persons via written submissions and a conference. The Commission invites comments on the proposed process and timings.

[34] Further consultation processes may be established by the Full Bench as required.

[35] The number of modern awards to be selected for plain language re-drafting will be dependent on the resources available to the Commission.

3. Guidelines for plain language drafting of modern awards

[36] Initial guidelines for plain language re-drafting were developed as part of the Pilot. The guidelines have taken account of plain language drafting principles and practical insights into the needs of employers and employees generated from the user-testing conducted as part of the Pilot. The guidelines developed during the Pilot are summarised in Attachment A to the report on the Pilot.

[37] The guidelines will be a reference for further plain language re-drafting undertaken as part of the Review. The guidelines will be expanded and refined as more awards and provisions are re-drafted and feedback is received from a broader range of award users and interested persons.

[38] The guidelines will be published for comment from interested persons before the end of 2016, following consultation on the standard clauses and further plain language re-drafting of award-specific clauses.

4. Changes to exposure draft structure

[39] The Statement issued 10 May 2016 announced the Commission’s intention to apply the exposure draft structure proposed from the Pilot to Group 4 exposure drafts that were due to be published from July 2016 onwards.

[40] The structure that has been adopted for the Group 4 exposure drafts is intended to be applied to Group 1–3 exposure drafts as part of the Review. The structural changes to exposure drafts will be applied after all technical and drafting issues with current exposure drafts have been resolved.

5. Next steps for plain language modern awards

[41] Interested persons are invited to comment on the proposed process and indicative timetable summarised in this Statement.

[42] Written comments should be sent to [email protected] by 4.00 pm on Friday 29 July 2016.

[43] Statements or directions will be issued for each component of the Plain language modern awards project in due course.

PRESIDENT

Attachment A—Plain language modern awards indicative timetable

The process and timings depicted in this attachment are limited to consultation to be undertaken before any determinative processes by the Plain language Full Bench.

Further consultation processes may be required.

Pharmacy Industry Award only

Plain language draft Pharmacy Industry Award (see paragraphs [7]–[11])

Note: Draft directions will be issued with the revised exposure draft 9

All awards

Plain language draft standard clauses (see paragraphs [12]–[16])

All awards

Plain language draft common clauses (see paragraphs [17]–[19])

Four modern awards selected for plain language re-drafting

Clerks—Private Sector Award 2010

Hospitality Industry (General) Award 2010 and Restaurant Industry Award 2010

General Retail Industry Award 2010

w/c = week commencing

Note: Hearing dates to determine any outstanding issues will be published once the indicative schedule has been finalised.

Parties are asked to comment on this draft timetable. Comments should be forwarded to [email protected] by 4.00 pm on Friday 29 July 2016.

 1   [2016] FWC 2837

 2   [2016] FWC 2924

 3   [2016] FWCFB 3177; [2016] FWCFB 3953

 4   [2015] FWCFB 2602; [2016] FWCFB 4258   

 5   [2015] FWC 7467

 6   [2016] FWC4495

 7   Shop Distributive and Allied Employees’ Association submission, 20 May 2016;

Australian Business Industrial and NSW Business Chamber submissions, 19 May 2016;

Master Grocers' Australia submission, 20 May 2016;

Australian Council of Trade Unions submission, 20 May 2016;

Health Services Union submission, 20 May 2016;

Business SA correspondence, 30 May 2016;

Mr I McSporran submission, 14 May 2016.

 8   See Report to the Full Bench, 3 June 2016

 9   Transcript, 8 June 2016 at PN 1565

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