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

4 yearly review of modern awards - common issue - annual leave – Maritime Industry Awards.

[1] On 23 May 2016 we issued a decision (the May 2016 decision) 1 dealing with, among other things, the insertion of the model terms relating to excessive leave; annual leave in advance and cashing out of annual leave into the ‘Maritime Industry Awards’. The ‘Maritime Industry Awards’ are the Dredging Industry Award 2010; Marine Towage Award 2010; Maritime Offshore Oil and Gas Award 2010; Ports, Harbours and Enclosed Water Vessels Award 2010; Professional Diving Industry (Industrial) Award 2010 and Seagoing Industry Award 2010.

[2] The Australian Mines and Metal Association (AMMA) and the Maritime Industry Australia Ltd. (MIAL) opposed the insertion of these model terms into the Maritime Awards.

[3] The May 2016 decision sets out the background at paragraphs [231]–[235]. Relevantly paragraph [233]–[238] state:

“[233] We dealt with this issue in the December Statement, noting

‘No submissions were received in relation to this issue. Accordingly, at this time we do not propose to vary the six modern awards set out at paragraph [4] above in respect of the model terms referred to earlier. Any interested party may seek to vary one or more of these modern awards during the 4 yearly review to include these model terms. We will deal with any such application should it be made.’²

[234] On reflection, we have decided to give further consideration to the view expressed in the December Statement, for the reasons set out below.

[235] As mentioned earlier, the Employer Group sought to insert a standard ‘cashing out of paid annual leave’ term in 120 modern awards – including all of the Maritime Awards. The Employer Group submission in the June 2015 proceeding was advanced on the basis that the variations would ensure that the awards subject to the claim achieved the modern awards objective. Implicit in such a submission is the proposition that those awards did not meet the modern awards objective.

[236] Similarly, four of the Maritime Awards (Dredging Industry Award 2010; Maritime Offshore Oil and Gas Award 2010; Professional Diving Industry (Industrial) Award 2010; and Seagoing Industry Award 2010) (see Attachment H to the June 2015 decision) were among the modern awards which were the subject of the Employer Group claim to insert a standard leave in advance term. Further, three of the Maritime Awards (Dredging Industry Award 2010; Maritime Offshore Oil and Gas Award 2010; and Professional Diving Industry (Industrial) Award 2010) were among the modern awards which were the subject of the Employer Group claim to insert a standard excessive leave term (see Attachment D to the June 2015 decision).

[237] AMMA is a member of the Employer Group. It is difficult to reconcile AMMA’s opposition to the insertion of the cashing out, leave in advance and excessive leave model terms in those awards which were the subject of the Employer Group claims, with its previous submission (as part of the Employer Group) that these awards be varied to include standard terms dealing with these issues.

[238] We are conscious that we have previously indicated that the Maritime Awards would not be varied to insert the three model terms to which we have referred. For the reasons given we have decided to give further consideration to whether these awards should be varied to insert these revised model terms. We propose to list this issue for further hearing on 1 July 2016. The purpose of the hearing is to provide AMMA/MIAL and any other interested parties to make submissions and adduce evidence directed to the question of whether or not the Maritime Awards should be varied to insert the revised excessive leave; annual leave in advance and cashing out of annual leave model terms. Directions in relation to that hearing will be issued shortly.” 3

[4] Directions were issued requiring any submissions to be filed by 4.00 pm Wednesday, 29 June 2016, with a hearing to be held at 10.00 am on Friday, 1 July 2016 (the ‘July hearing’). The Commission also published a background paper relating to the matter which was the subject of the July hearing. A copy of the background paper is attached to this statement.

[5] By letter dated 29 June 2016, AMMA and MIAL have requested that the scheduled hearing be adjourned and listed before a member of the Full Bench for conference.

[6] We propose to hear the AMMA/MIAL adjournment application at 11.30 am (AEST) on Friday, 1 July 2016, in Sydney. A video link will be provided to Perth as requested by AMMA. Any other requests for video link are to be forwarded to [email protected] by 4.00 pm today (Thursday 30 June 2016).

[7] The hearing previously listed for 10.00 am, 1 July 2016, will now be heard at 11.30 am (AEST). The AMMA/MIAL adjournment application will be heard first and the substantive hearing will only proceed if the adjournment application is unsuccessful. The matter relating to the Security Services Industry Award 2010 will proceed at 9.30 am as previously advised.

[8] Any questions regarding the process to be adopted are to be made to [email protected].

PRESIDENT

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ATTACHMENT A – BACKGROUND PAPER

FAIR WORK COMMISSION

BACKGROUND PAPER

Fair Work Act 2009

s.156—4 yearly review of modern awards

4 Yearly Review of modern awards—Annual leave common issue—Data on paid annual leave for Maritime awards

(AM2014/47)

MELBOURNE, 28 JUNE 2016

Note: This is a background document only. It has been prepared by the Commission research area and does not represent the concluded views of the Commission on any issue.

Contents

Background 2

Use of annual leave 3

Background

[1] The May 2016 decision outlined that the Maritime awards would be given further consideration and the issue would be listed for hearing on Friday 1 July 2016. 4

[2] The purpose of this background paper is to provide information on the amount of paid annual leave taken by employees covered by the Maritime awards.

The Maritime awards are represented by the following modern awards:

● Dredging Industry Award 2010
● Marine Towage Award 2010
● Maritime Offshore Oil and Gas Award 2010
● Ports, Harbours and Enclosed Water Vessels Awards 2010
● Professional Diving Industry (Industrial) Award 2010
● Seagoing Industry Award 2010

[3] The modern awards are ‘mapped’ to Australian and New Zealand Standard Industrial Classification (ANZSIC) 5 divisions where these modern awards have primary or relevant coverage based on the Commission’s research that mapped modern awards with ANZSIC.6

[4] Data are obtained from the Household, Income and Labour Dynamics in Australia (HILDA) survey which asked respondents if they had taken any paid annual leave and the amount of paid annual leave in the preceding 12 months.

[5] The data presented in this background paper are the proportion of non-casual employees that took a period of paid annual leave and the average number of days for those that had taken paid annual leave.

Use of annual leave

[6] Table 1 shows the Maritime awards and the corresponding ANZSIC division to which they have been ‘mapped’. The HILDA survey does not present ANZSIC at the lowest level (4-digit) and are instead presented at the 1-digit level.

Table 1: Maritime awards and ANZSIC divisions

Note: The Ports, Harbours and Enclosed Water Vessels Awards 2010 was mapped to both Mining and Transport, postal and warehousing as it involves petroleum exploration and water freight/passenger transport. The Professional Diving Industry (Industrial) Award 2010 was mapped to both Mining and Construction as it involves petroleum exploration and heavy and civil engineering construction.

Source: Fair Work Commission, Spreadsheets with ANZSIC classes & mapped modern awards, 2014.

[7] The below data analysis provides information on the industries identified that employ workers covered by the Maritime awards. Table 2 shows the proportion of non-casual employees that took paid annual leave in the preceding 12 months and the average number of days of paid annual leave that was taken in the Mining industry compared with all industries across each year from 2010 to 2014. Relative to all industries, that data shows that among non-casual employees in Mining:

● the proportion that took a period of paid annual leave was relatively similar to the average across all years from 2010 to 2012, while a lower proportion took a period of paid annual leave in 2013 and a higher proportion in 2014; and
● the average number of paid annual leave days was lower than across all industries, except in 2013.

Table 2: Use of paid annual leave by non-casual employees in Mining, 2010–2014

Source: HILDA survey, Waves 10–14.

[8] Table 3 shows the proportion of non-casual employees that took paid annual leave in the preceding 12 months and the average number of days of paid annual leave that was taken in the Transport, postal and warehousing industry compared with all industries across each year from 2010 to 2014. Relative to all industries over the period, the data shows that among non-casual employees in Transport, postal and warehousing:

● the proportion that took a period of paid annual leave over the previous 12 months was lower from 2010 to 2013 and higher in 2014; and
● the average number of paid annual leave days was higher in 2010, 2011 and 2013, and lower in 2012 and 2014.

Table 3: Use of paid annual leave by non-casual employees in Transport, postal and warehousing, 2010–2014

Source: HILDA Survey, Waves 10–14.

[9] Table 4 shows the proportion of non-casual employees that took paid annual leave in the preceding 12 months and the average number of days of paid annual leave that was taken in the Construction industry compared with all industries across each year from 2010 to 2014. Relative to all industries over the period, that data shows that among non-casual employees in Construction:

● the proportion that took a period of paid annual leave over the previous 12 months was lower across each year; and
● the average number of paid annual leave days was lower across each year.

Table 4: Use of paid annual leave by non-casual employees in Construction, 2010–2014

Source: HILDA Survey, Waves 10–14.

 1   [2016] FWCFB 3177

²     [2015] FWCFB 8408 at [6]

 3   [2016] FWCFB 3177 at [233] – [238]

 4   [2016] FWCFB 3177 at para. 238.

 5  Australian Bureau of Statistics, Australian and New Zealand Standard Industrial Classification (ANZSIC), 2006 (Revision 1.0), Catalogue No. 1292.0.

 6   Fair Work Commission, Spreadsheets with ANZSIC classes & mapped modern awards, 2014.