| [2017] FWCFB 3745 |
| FAIR WORK COMMISSION |
STATEMENT |
Fair Work Act 2009
s.156 - 4 yearly review of modern awards
JUSTICE ROSS, PRESIDENT |
MELBOURNE, 20 JULY 2017 |
4 yearly review of modern awards – plain language – standard clauses
[1] This statement provides an update about the plain language re-drafting of standard clauses following a series conference held before Commissioner Hunt.
[2] In a Statement issued by the Full Bench on 15 July 2016 1 a number of clauses were identified as ‘standard clauses’ to be re-drafted as part of the Plain language re-drafting common issue.2 The standard clauses subject of re-drafting are:
A. Award flexibility;
B. Consultation about major workplace change;
C. Consultation about changes to rosters or hours of work;
D. Dispute resolution;
E. Termination of employment;
F. Redundancy;
G. Transfer to low paid job on redundancy; and
H. Employee leaving during redundancy notice period.
[3] Draft standard clauses were published on 9 August 2016 3 and submissions were invited.
[4] Submissions were received from the following parties:
[5] Interested parties had further opportunity to comment on the clauses at a series of conferences held before Commissioner Hunt on 23 November 2016 (the November conference), 23 January 2017 (the January conference) and 11 April 2017 (the April conference). The plain language expert, who drafted the standard clauses, attended the conference on 23 January 2017. All the clauses listed in paragraph [2] were discussed, except clause B. Clause B was discussed during the April conference only.
[6] After the January conference the draft standard clauses were updated to reflect the outcome of discussions at that conference. The revised standard clauses were re-published as Attachment B to a Statement issued on 27 March 2017. 4
[7] The revised standard clauses, as set out in this statement, reflect the outcome of the April conference. The standard clauses have been amended to incorporate the agreed positions of interested parties. The agreed positions are tracked in red text.
[8] This statement discusses the revised standard clauses that reflect the outcome of the April conference. There remain a number of issues in contention between the parties. We will deal with the issues in contention on a clause by clause basis and provide the expert’s comments in relation to the revised standard clauses.
Clause A—Award flexibility (renamed Individual flexibility arrangements)
[9] The award flexibility clause was inserted into all modern awards as a result of the award modernisation process in 2008. The award modernisation full bench identified that an award flexibility clause was a priority and published a model award flexibility clause as attachment C to a decision 5 in June 2008. The model clause was varied in a decision6 of December 2008. Modern awards which included the award flexibility clause came into effect on 1 January 2010. The award flexibility clause was varied on 12 March 20107 and as part of the Transitional review.8
[10] The plain language re-draft of clause A—Individual flexibility arrangements was discussed at the November, January and April conferences. The revised standard clause A is set out below.
[11] As mentioned above, changes agreed between the parties as a result of the April conference are in red.
A. Individual flexibility arrangements
(a) arrangements for when work is performed; or (b) overtime rates; or
NOTE: Arrangements for when work is performed include such matters as hours of work, rostering arrangements and breaks. A.2 An agreement must be one that is genuinely made by the employer and the individual employee without coercion or duress.
(b) if the employer is aware that the employee has, or should reasonably be aware that the employee may have, limited understanding of written English, take reasonable steps (including providing a translation in an appropriate language) to ensure that the employee understands the proposal. A.7 An agreement must result in the employee being better off overall at the time the agreement is made than if the agreement had not been made.
(a) state the names of the employer and the employee; and
(e) state the date the agreement is to start.
(a) in writing; and
A.10 Except as provided in clause A.9, an agreement must not require the approval or consent of a person other than the employer and the employee.
(a) at any time, by written agreement between the employer and the employee; or
A.14 The period of notice required under clause A.13 is reduced to a period of not more than 28 days if an agreement made under this clause does not meet a requirement set out both in section 144(4) of the Act and in clause A.
|
[12] There are 6 outstanding contested issues in relation to clause A:
(i) Note at A.1
(ii) Word ‘only’ in A.4
(iii) Deletion of clauses A.5 and A.6
(iv) Amalgamation of clauses A.7 to A.9
(v) Note at A.8(d)
(vi) Inclusion of A.14 as a note or clause
(i) Note at A.1
[13] Ai Group submit that the note under clause A.1 is unnecessary. 9 Further, if the note includes hyperlinks to the clauses mentioned in the note, such as hours of work, hyperlinks may be problematic because sometimes provisions relating to hours of work may appear in more than one clause. Ai Group also submits that the note may be problematic in a standard clause because clause titles are likely to vary in different awards.10 For example, not all awards would include a ‘rostering arrangements’ clause.
[14] We are of the provisional view that the note should be deleted. Removing the note will resolve the issue of referring to multiple clauses containing relevant provisions and hyperlinking issues where clauses differ between awards. It will also allow for greater consistency in standard clauses across all modern awards. Hyperlinked notes will be included in annotated versions of the award only.
(ii) Word ‘only’ in A.4
[15] In respect of clause A.4, ACCI submit that the word ‘only’ be removed so that A.4 more accurately reflects s.144(1) of the Fair Work Act 2009 (the Act).
[16] Clause A.4 is as follows:
‘An agreement may only be made in order to meet the genuine needs of the employer and the employee.’ (emphasis added)
[17] Section 144 of the Act is as follows:
Flexibility terms must be included
(1) A modern award must include a term (a flexibility term) enabling an employee and his or her employer to agree on an arrangement (an individual flexibility arrangement) varying the effect of the award in relation to the employee and the employer, in order to meet the genuine needs of the employee and employer.
Effect of individual flexibility arrangements
(2) If an employee and employer agree to an individual flexibility arrangement under a flexibility term in a modern award:
(a) the modern award has effect in relation to the employee and the employer as if it were varied by the flexibility arrangement; and
(b) the arrangement is taken, for the purposes of this Act, to be a term of the modern award.
(3) To avoid doubt, the individual flexibility arrangement does not change the effect the modern award has in relation to the employer and any other employee.
Requirements for flexibility terms
(4) The flexibility term must:
(a) identify the terms of the modern award the effect of which may be varied by an individual flexibility arrangement; and
(b) require that the employee and the employer genuinely agree to any individual flexibility arrangement; and
(c) require the employer to ensure that any individual flexibility arrangement must result in the employee being better off overall than the employee would have been if no individual flexibility arrangement were agreed to; and
(d) set out how any flexibility arrangement may be terminated by the employee or the employer; and
(e) require the employer to ensure that any individual flexibility arrangement must be in writing and signed:
(i) in all cases—by the employee and the employer; and
(ii) if the employee is under 18—by a parent or guardian of the employee; and
(f) require the employer to ensure that a copy of any individual flexibility arrangement must be given to the employee.
(5) Except as required by subparagraph (4)(e)(ii), the flexibility term must not require that any individual flexibility arrangement agreed to by an employer and employee under the term must be approved, or consented to, by another person.’
[18] The ACCI submission was not opposed by Ai Group, SDA, and ABI and NSWBC.
[19] The AMWU and HSU opposed the deletion of the word ‘only’. The HSU submitted that while s.144(1) of the Act does not use the word ‘only’, it does use the word ‘must’ which implies that the clause must only be used in the circumstances mentioned in the clause. The HSU submits that clause A.4 does not go beyond the terms of the Act. 11
[20] The TCFUA submit that in 2012 the Full Bench considered research relating to individual flexibility terms and discovered that there was widespread non-compliance with the term. The TCFUA submit that for compliance, it would be helpful to include the word ‘only’ to clarify that the term can only be used in the circumstances mentioned. 12
[21] During the award modernisation proceedings in 2008 it was common ground between parties that agreement should be a genuine one and should be in writing. 13 The following term was proposed in the model clause at attachment C of the decision14 in June 2008 and became award flexibility clause X.2 in all modern awards:
‘X.2. The employer and the individual employee must have genuinely made the agreement without coercion or duress.’
[22] In 2013, a second sentence was added to clause X.2 after the sentence above as follows:
‘X.2 The employer and the individual employee must have genuinely made the agreement without coercion or duress. An agreement under this clause can only be entered into after the individual employee has commenced employment with the employer.’ 15 (emphasis added)
[23] In respect of addition the additional sentence to clause X.2 above the Full Bench noted:
‘[2] In addition to these variations one further variation was adopted in order to improve the level of compliance with the requirements of the model flexibility term. The evidence suggested that a significant proportion of IFAs were entered into before the individual employee has commenced employment, contrary to the intent of the model flexibility term and the Act. To address that issue we decided to insert the following words in the model flexibility term:
“An agreement under this clause can only be entered into after the individual employee has commenced employment with the employer”.’ 16
[24] It would appear that the compliance issues referred to by the TCFUA relate to the second sentence of clause X.2, which are reflected in the proposed A.2.
[25] It seems to us that the issue raised by ACCI may be addressed by some restructuring of the clause. In this regard we note that clause A.4 of the proposed award flexibility clause is awkwardly placed. Clause A.4 is based on s.144(1) of the Act and pertains to the purpose for making an individual flexibility arrangement. It would seem more appropriate to include this provision closer to the beginning of clause A.
[26] It is our provisional view that clause A be amended to more accurately align clause A with s.144 of the Act as follows:
‘A. Individual flexibility arrangements
A.1 Despite anything else in this award, an employer and an individual employee may agree to vary the application of the terms of this award relating to any of the following in order to meet the genuine needs of the employee and the employer:
(a) arrangements for when work is performed; or
(b) overtime rates; or
(c) penalty rates; or
(d) allowances; or
(e) annual leave loading.
NOTE: Arrangements for when work is performed include such matters as hours of work, rostering arrangements and breaks.
A.2 An agreement must be one that is genuinely made by the employer and the individual employee without coercion or duress.
A.3 An agreement may only be made after the individual employee has commenced employment with the employer.
A.4 An agreement may only be made in order to meet the genuine needs of the employer and the employee.’
[27] Interested parties are invited to make submissions on the proposed amendment of clause A.1 and proposed deletion of clause A.4 by 4.00 pm on Wednesday 9 August 2017.
(iii) Deletion of clauses A.5 and A.6
[28] Parties at the November conference discussed ACCI’s submission that clauses A.5 and A.6 should be deleted. ACCI was not in attendance at the November conference. Parties discussed ACCI’s submission that the inclusion of a description about the agreement making process is unnecessary and is not a legislative requirement. 17
[29] The proposed clause A.5 states:
‘A.5 Either the employer or the employee may initiate the making of an agreement.’
[30] Parties at the November conference agreed that there is no equivalent term to clause A.5 in the current clause and that clause A.5 appeared to be intended to assist the lay person about who could initiate agreement. Views were sought about whether parties regarded proposed clause A.5 helpful. 18
[31] Parties at the November conference were ambivalent as to the inclusion of clause A.5. 19 Our provisional view is that clause A.5 is not necessary in order to meet the modern awards objective and should be deleted.
[32] The proposed clause A.6 is as follows:
‘A.6 An employer who wishes to initiate the making of an agreement must:
(a) give the employee a written proposal; and
(b) if the employer is aware that the employee has, or should reasonably be aware that the employee may have, limited understanding of written English, take reasonable steps (including providing a translation in an appropriate language) to ensure that the employee understands the proposal.’
[33] Clause X.7 is the equivalent term in the current provision and is as follows:
‘X.7 An employer seeking to enter into an agreement must provide a written proposal to the employee. Where the employee’s understanding of written English is limited the employer must take measures, including translation into an appropriate language, to ensure the employee understands the proposal.’
[34] The SDA supports the retention of clause A.6 on the basis that removing it would be a substantive change. 20 While Ai Group initially supported the deletion of clause A.6, Ai Group indicated it would give further consideration to the issue.21 Commissioner Hunt indicated that, subject to the parties’ consideration, clause A.6 probably should be retained.22
[35] We agree with the provisional view expressed by Commissioner Hunt in the November conference that clause A.6 should be retained. Proposed clause A.6 is a re-drafted version of clause X.7 of current modern awards. Clause X.7 was included in the model award flexibility clause by a decision in December 2008. 23 The relevant paragraphs of that decision are as follows:
‘[38] We have, however, made one addition to the model clause. The new subclause deals with situations in which an employer wishes to enter an individual flexibility agreement. In such situations the employer will be required to provide a written proposal to the employee. The employer will also be required to take measures to ensure the employee understands the proposal. The provision reads:
“An employer seeking to enter into an agreement must provide a written proposal to the employee. Where the employee’s understanding of written English is limited the employer must take measures, including translation into an appropriate language, to ensure the employee understands the proposal.”
[39] We have noted the proposal in the Fair Work Bill that individual flexibility terms in awards must require the employer to ensure that any individual flexibility arrangement must result in the employee being better off overall than the employee would otherwise have been. Should the Fair Work Bill be enacted in that form the model clause may require alteration to reflect that requirement.’
[36] Clause X.7 is included in all modern awards and the clause has not been varied since it was incorporated into the award flexibility term in December 2008. Clause X.7 is an important part of the safety net included in all modern awards. Clause X.7 met the modern awards objective in 2010 and there is nothing presently before us that persuades us to depart from that view.
[37] If ACCI, Ai Group or any other party wish to pursue deletion of clause A.6 they should file submissions in support of their position by 4.00 pm on Wednesday 9 August 2017.
(iv) Amalgamation of clauses A.7 to A.9
[38] ACCI also proposed to consolidate clauses A.7 to A.9. Proposed clauses A.7 to A.9 state:
‘A.7 An agreement must result in the employee being better off overall at the time the agreement is made than if the agreement had not been made.
A.8 An agreement must do all of the following:
(a) state the names of the employer and the employee; and
(b) identify the award term, or award terms, the application of which is to be varied; and
(c) set out how the application of the award term, or each award term, is varied; and
(d) set out how the agreement results in the employee being better off overall at the time the agreement is made than if the agreement had not been made; and
(e) state the date the agreement is to start.
A.9 An agreement must be:
(a) in writing; and
(b) signed by the employer and the employee and, if the employee is under 18 years of age, by the employee’s parent or guardian.’
[39] ACCI proposed to consolidate A.7 to A.9 as follows:
‘A.X An agreement must:
(a) result in the employee being better off overall on its making than if the agreement had not been made ;
(b) state the names of the employer and the employee;
(c) identify the award terms to be varied;
(d) set out how the award term, or each term, is varied;
(e) set out how the award term, or each term, is varied,
(f) state the date on which the agreement is to start;
(g) be signed by the employer and the employee and, if the employee is under 18 years of age, by the employee’s parent or guardian.’ 24
[40] ACCI submit that their proposal removes the requirement in proposed clause A.8(d) to “show how the agreement results in the employee being better off overall on its making than if the agreement had not been made”. ACCI submits that is not a requirement set out in s.144 of the Act and adds prescription and complexity to the provision and agreements made pursuant to it. ACCI further submit that if clause A.8(d) is to remain, the words “show how” should be replaced with “state”. 25
[41] The ACCI submission is based on the original plain language re-draft of clause A.8(d) (previously A.6(d)) published on the Commission’s website on 9 August 2016. 26 The 9 August 2016 version of clause A.8(d) adopted the words “show how” as follows:
‘A.6 An agreement must do each of the following:
(a) state the names of the employer and the employee;
(b) identify the award term or terms to be varied;
(c) set out how the award term, or each term, is varied;
(d) show how the agreement results in the employee being better off overall on its making than if the agreement had not been made;
(e) state the date on which the agreement is to start.’ (emphasis added)
[42] We note that clause A.8(d) has been updated to reflect an amendment proposed by Ai Group and agreed to by parties at the November conference. The words “show how” were replaced with “set out how” resulting from discussions during the November conference 27 and as set out at [38] above. We propose to adopt the terminology “set out how” as agreed in the November conference and to amend clause A.8(d) to replace the words “set out” with “state”. The word “state” is more consistent with other paragraphs in clause A.8.
[43] ACCI should advise the Commission about whether it intends to pursue its proposal to consolidate clauses A.7 to A.9 by 4.00 pm on Wednesday 9 August 2017. Any party wishing to make submissions to the proposed amendment of clause A.8(d) should be made by 4.00 pm on Wednesday 9 August 2017.
(v) Note at A.8(d)
[44] Clause A.8 states:
‘A.8 An agreement must do all of the following:
(a) state the names of the employer and the employee; and
(b) identify the award term, or award terms, the application of which is to be varied; and
(c) set out how the application of the award term, or each award term, is varied; and
(d) set out how the agreement results in the employee being better off overall at the time the agreement is made than if the agreement had not been made; and
(e) state the date the agreement is to start.’
[45] In the expert’s drafting comments in a comparison of the Plain language draft standard clauses published on 9 August 2016 the expert suggested that a note or definition about “better off overall” would be beneficial. 28 The wording suggested was based on wording used on the Fair Work Ombudsman’s website at that time as follows:
‘It is the employer’s responsibility to ensure that the employee is better off overall than if there was no IFA. The employer’s ‘better off overall’ assessment will usually involve comparing the employee’s financial benefits under the IFA with the financial benefits under the applicable award or enterprise agreement. The employee’s personal circumstances and any non-financial benefits which are significant to the employee can also be considered.’
[46] A note has never been included in any iteration of the Plain language draft standard clauses. However, the possibility of including a note was discussed at the November conference.
[47] All parties opposed inclusion of a note explaining the better off overall test in the terms of the Fair Work Ombudsman definition as suggested in the drafting comments published with the draft standard clauses of 9 August 2016. 29 The proposed note raises questions about why non-financial benefits in enterprise agreements have to be significant to the employee and what “significant” means. The issue surrounding whether non-financial and non-monetary benefits can included in agreements is strongly contested by the parties.
[48] Given the views of the parties we have concluded that a note should not be included under clause A.8(d).
(vi) Inclusion of A.14 as a note or clause
[49] Parties have also raised concerns in relation to clause A.14. Proposed clause A.14 is based on the wording of a note that appears under clause X.8(b) of the current clause. There are conflicting views among the parties about whether this note should be converted to a clause. Proposed clause A.14 is as follows:
‘A.14 The period of notice required under clause A.13 is reduced to a period of not more than 28 days if an agreement made under this clause does not meet a requirement set out both in section 144(4) of the Act and in clause A.’
[50] The note under the current clause X.8(b) is as follows:
‘NOTE: If any of the requirements of s.144(4), which are reflected in the requirements of this clause, are not met then the agreement may be terminated by either the employee or the employer, giving written notice of not more than 28 days (see s.145 of the Act).’
[51] Ai Group submits that clause A.14 should be a note rather than a new award derived obligation 30 and also submits that proposed clause A.14 includes additional requirements that do not arise directly from s.144(4) of the Act which has the effect of giving either party a greater right to terminate with only 28 days’ notice.31
[52] Ai Group submits that the note references the fact that if there is a failure to comply with the requirements of s.144(4) of the Act the agreement can be terminated within 28 days’ notice under s.145(4) of the Act. It contends that the new draft says that you can terminate with 28 days’ notice if there is failure to comply with s.144(4) of the Act or clause A. Ai Group notes that under the Act, there is no requirement to state the names of the employer and employee, 32 nor is there a requirement to set out how the award term is varied or the date on which the agreement is to start.33 Ai Group submit that it would be inappropriate for non-compliance with one of these issues to give rise to a right to terminate an agreement in a much shorter period of time than would otherwise be the case.34 Ai Group contend that this is a substantive change and that the clause should be limited in scope to the requirements of s.144(4) of the Act.
[53] NFF support the position of Ai Group and submit that clause A.14 goes beyond the current note and s.144(4) of the Act. 35 Ai Group’s position is opposed by the AMWU.36
[54] During the November conference Commissioner Hunt suggested parties give further consideration of the wording of the clause. 37
[55] We will deal first with whether the contents of proposed clause A.14 should be a note or a clause. The note under current clause X.8(b) was inserted during the transitional review of modern awards in 2013 and was intended to simply alert the reader to the termination provisions in s.145(4) of the Act. 38
[56] We acknowledge that including the content of the note under clause X.8(b) of the current term makes proposed clause A.14 an operative term. However, the proposed clause A.14 does not confer any substantive rights or impose any obligations on parties. Clause A.14 creates a termination provision which may be utilised in particular circumstances intended to reflect those captured by s.145(4) of the Act. Where the provision resides, in the Act or in modern awards or both, is a technical distinction which is of little practical consequence. There is no prohibition on duplicating statutory requirements in modern awards terms.
[57] We now turn to Ai Group’s second concern, namely whether clause A.14 gives rise to additional requirements to those in s.144(4) of the Act.
[58] Sections 144(4) and (5) of the Act provide:
‘Requirements for flexibility terms
(4) The flexibility term must:
(a) identify the terms of the modern award the effect of which may be varied by an individual flexibility arrangement; and
(b) require that the employee and the employer genuinely agree to any individual flexibility arrangement; and
(c) require the employer to ensure that any individual flexibility arrangement must result in the employee being better off overall than the employee would have been if no individual flexibility arrangement were agreed to; and
(d) set out how any flexibility arrangement may be terminated by the employee or the employer; and
(e) require the employer to ensure that any individual flexibility arrangement must be in writing and signed:
(i) in all cases—by the employee and the employer; and
(ii) if the employee is under 18—by a parent or guardian of the employee; and
(f) require the employer to ensure that a copy of any individual flexibility arrangement must be given to the employee.
(5) Except as required by subparagraph (4)(e)(ii), the flexibility term must not require that any individual flexibility arrangement agreed to by an employer and employee under the term must be approved, or consented to, by another person.’
[59] Section 145(4) imports a termination provision into an award flexibility term which is in addition to any other means of termination of an individual flexibility arrangement that the flexibility term provides. Section 145 provides:
‘145 Effect of individual flexibility arrangement that does not meet requirements of flexibility term
Application of this section
(1) This section applies if:
(a) an employee and employer agree to an arrangement that purports to be an individual flexibility arrangement under a flexibility term in a modern award; and
(b) the arrangement does not meet a requirement set out in section 144.
Note: A failure to meet such a requirement may be a contravention of a provision of Part 3-1 (which deals with general protections).
Arrangement has effect as if it were an individual flexibility arrangement
(2) The arrangement has effect as if it were an individual flexibility arrangement.
Employer contravenes flexibility term in specified circumstances
(3) If subsection 144(4) requires the employer to ensure that the arrangement meets the requirement, the employer contravenes the flexibility term of the award.
Flexibility arrangement may be terminated by agreement or notice
(4) The flexibility term is taken to provide (in addition to any other means of termination of the arrangement that the term provides) that the arrangement can be terminated:
(a) by either the employee, or the employer, giving written notice of not more than 28 days; or
(b) by the employee and the employer at any time if they agree, in writing, to the termination.’
[60] The requirements of s.144(4) of the Act apply to flexibility terms in modern awards, not to individual flexibility arrangements made under a flexibility term. Section 144(5) provides that a flexibility term must not require that any individual flexibility agreement agreed to by an employer and employee under the flexibility term must be approved, or consented to, by another person. Section 145 deals with the situation where an individual flexibility agreement does not meet a requirement of s.144.
[61] We accept that there are some differences in language between the current note under the current clause X.8(b) and proposed clause A.14. The note says “If any of the requirements of sections 144(4), which are reflected in the requirements of this clause…” The note reads as an observation rather than imposing a condition that the requirements must be found in both s.144(4) of the Act and the current award flexibility clause in order to enliven s.145(4) of the Act.
[62] The circumstances in which termination arrangements in s.145(4) operate are not free from doubt and we have formed the provisional view that proposed clause A.14 be deleted and a note inserted into the clause, in the following terms:
‘Note: If an employer and employee agree to an arrangement that purports to be an individual flexibility arrangement under this award term and the arrangement does not meet a requirement set out in s. 144 then the employee or the employer may terminate the arrangement by giving written notice of not more than 28 days (see s.145 of the Act)’.
[63] Parties are invited to make further submissions in relation to the wording of the proposed note by 4.00 pm on Wednesday 9 August 2017.
Clause B—Consultation about major workplace change
[64] The Consultation about major workplace change clause was inserted into all modern awards as a result of the award modernisation process in 2008. In a decision 39 of September 2008 the award modernisation Full Bench decided to impose an award obligation upon employers to notify employees and their representatives of significant workplace change and to discuss change. In a decision40 of December 2008, the Full Bench noted that a clause in almost identical terms had appeared in most of the Commission’s award for many years and no issue of substance had been raised concerning its operation during that period.
[65] The plain language re-draft of clause B—Consultation about major workplace change was discussed at the April conference. The revised standard clause B—Consultation about major workplace change reflects the agreed position of the interested parties following that conference (in red) and is as follows:
B. Consultation about major workplace change
(a) give notice of the changes to all employees who may be affected by them and their representatives (if any); and
(iii) measures to avoid or reduce the adverse effects of the changes on employees; and (c) commence discussions as soon as practicable after a definite decision has been made. B.2 For the purposes of the discussion under clause B.1(b), the employer must give in writing to the affected employees and their representatives (if any) all relevant information about the changes including:
(c) any other matters likely to affect employees. B.3 Clause B.2 does not require an employer to disclose any confidential information if its disclosure would be contrary to the employer’s interests.
(b) major changes in the composition, operation or size of the employer’s workforce or in the skills required; or (c) loss of, or reduction in, job or promotion opportunities; or
(f) the need for employees to be retrained or transferred to other work or locations; or (g) job restructuring.
|
[66] The expert did not attend the April conference but provided comments on the parties’ consent position. The expert has raised two concerns with the parties agreed position:
(i) Clause B.1
(ii) Clause B.5 and deletion of clause B.6
(i) Clause B.1
[67] In respect of B.1, the expert noted that there is no need to refer to when to begin a discussion if the requirement is that you discuss as soon as practicable. The following amendment to clause B.1 is proposed:
‘Consultation about major workplace change
B.1 If an employer makes a definite decision to make a major change in production, program, organisation, structure or technology excluding a change in any such matter that is provided by for by the award (relevant change) that is are likely to have a significant effects on employees, the employer must as soon as practicable after making that decision:
(a) give notice of the relevant change changes to all employees who may be affected by it them and their representatives (if any); and
(b) discuss with affected employees and their representatives (if any):
(i) the introduction of the changes; and
(ii) their likely effect on employees; and
(iii) measures to avoid or reduce the adverse effects of the changes on employees; and
(c) commence discussions.as soon as practicable after a definite decision has been made.’
[68] The expert also suggests that a more efficient approach would be to define the term ‘relevant change’ in clause B.1 as meaning ‘a change in production, program, organisation, structure or technology excluding a change in any such matter that is provided for by the award’. This will enable clause B.1 to refer to an employer making a definite decision to make a relevant change that is likely to have a significant effect on employees and clause B.5 could then define ‘significant effect’.
[69] Parties are invited to comment on the proposed amendment to clause B.1 by 4.00 pm on Wednesday 9 August 2017.
(ii) Clause B.5 and deletion of clause B.6
[70] The expert noted that the proposed clause B.6 is a deeming provision, focussing on the effect of a change rather than a direct limitation on the kind of changes covered by the clause, and that it would be preferable to provide for a limitation on the coverage of the clause at the beginning of that clause. The original approach was to focus on the nature of the change and not on its effect on employees.
[71] The expert proposed the following amendments to clauses B.5 and B.6, as a result of amendment to clause B.1, in order to overcome the inclusion of a deeming provision consistent with the Plain Language Guidelines:
‘B.5 In clause B:
significant effects, on employees, includes any of the following:
(a) termination of employment; or
(b) major changes in the composition, operation or size of the employer’s workforce or in the skills required; or
(c) loss of, or reduction in, job or promotion opportunities; or
(d) loss of, or reduction in, job tenure; or
(e) alteration of hours of work; or
(f) the need for employees to be retrained or transferred to other work or locations; or
(g) job restructuring.
B.6 Where this award makes provision for alteration of any of the matters defined at B.5, such alteration is taken not to have significant effect.’
[72] Parties are invited to comment on the proposed amendments to clauses B.5 and B.6 by 4.00 pm on Wednesday 9 August 2017.
Clause C—Consultation about changes to the rosters or hours of work
[73] The consultation about changes to rosters or hours of work clause was inserted into all modern awards as result of the Fair Work Amendment Act 2013 which amended the Fair Work Act 2009 by inserting a new provision s.145A. Section 145A provides that all modern awards must include a term requiring employers to consult employees about a change to their regular roster or ordinary hours of work. The wording of the new consultation clause was noted at paragraph 107 of the decision 41 issued on 23 December 2013 and modern awards were varied on the same day to include the clause.
[74] The plain language re-draft of clause C was discussed at the January and April conferences. The revised standard clause C is as follows:
C. Consultation about changes to rosters or hours of work
(a) provide to the employees and representatives mentioned in clause C.2 information about the proposed change (for example, information about the nature of the change and when it is to begin); and
C.4 The employer must consider any views given under clause C.3(b).
|
[75] One issue remains outstanding in relation to clause C, namely the wording of clause C.3(b).
[76] Ai Group submits that proposed clause C.3(b) now requires an employer to invite an employee to give their views about the impact of the proposed change on any affected employee and that this means the employer must invite an employee to express their views about the impact on the family and caring responsibilities of another employee. Ai Group submits that this is not the intended effect of the current clause. Rather, the current intention is for the employees to provide views about the impact of the proposed change on them and accordingly the words “affected employees” should not be included. 42
[77] Ai Group acknowledged that the purpose of including the words “affected employees” was to have regard to the fact that representatives were also invited to express views and undertook to give the issue further consideration. 43
[78] The expert has reviewed clause C.3(b) and has suggested the following amendment:
‘(b) invite the employees them to give their views about the impact of the proposed change on them affected employees (including any impact on their family or caring responsibilities) and also invite their representative (if any) to give their views about that impact.’
[79] Parties are invited to comment on the proposed amendment by 4.00 pm on Wednesday 9 August 2017.
Clause D—Dispute resolution
[80] The dispute resolution clause was inserted into modern awards as a result of the award modernisation process in 2008. In a decision 44 in September 2008 the Full Bench decided to include a clause intended to be simple, to emphasise the importance of resolution at the workplace, to encourage parties to agree on a process that would suit them if the dispute reached the Commission and to provide the Commission with the discretion and power to ensure settlement of the dispute. The clause was finalised in a decision45 in December 2008. The Full Bench noted that the operation of the clause was not intended to be confined to issues concerning one employee only and that if the dispute affects a group of employee, for the purposes of the procedure, each member of the group may be represented by the same representative.
[81] The plain language re-draft of clause D—Dispute resolution was discussed during the January and April conferences. The revised standard clause D—Dispute resolution is as follows:
D. Dispute resolution
(a) work must continue in accordance with this award and the Act; and
D.9 Clause D.8 is subject to any applicable work health and safety legislation. |
[82] As mentioned above, changes agreed between the parties as a result of the April conference are in red.
[83] There are two outstanding issues that arise in relation to clause D:
(i) Terminology – “party/parties” or “employer/employee” in clauses D.2, D.3, D.4, D.5 and D.7
(ii) The Word process in clause D.7
(i) Terminology: ‘party/parties’ or ‘employer/employee’ in clauses D.2, D.3, D.4, D.5 and D.7
[84] Ai Group has raised a concern in relation to the terms “party/parties to the dispute” in clauses D.2, D.3, D.4, D.5 and D.7. The current clause uses the terms “employer” and “employee”. Ai Group opposes the references to an “employer or employee” being replaced by the words “party/parties to the dispute” if there is any risk that the words could be read to mean anything broader than an employer or an employee, for example, if those words are interpreted to include a union that is representing its members. The concern was raised in the context of a suggestion that clause D.7 either could or should extend to unions. Ai Group submit that the words “party/parties to the dispute” should be replaced with employer and employee to avoid introducing ambiguity into the clause. 46
[85] The TCFUA oppose the position of Ai Group and submit that Ai Group proposal would narrow the application of the dispute resolution procedure. 47 The TCFUA also expressed concern that the change in terminology may limit the union’s ability to bring a dispute to the Commission in the union’s own name and sought the opportunity to look into the clause further.48
[86] During the April conference Commissioner Hunt expressed a preference for using the terms “an employer or an employee” 49
[87] The expert has reviewed the submissions of the parties and proposes the following amendments (as marked in red) to clause D:
‘D. Dispute resolution
D.1 Clause D sets out the procedures to be followed if a dispute arises between an employer and one or more than one employee about a matter under this award or in relation to the NES.
D.2 The employer and the employee or employees concerned parties to the dispute must first try to resolve the dispute at the workplace through discussion between the employee or employees concerned and the relevant supervisor.
D.3 If the dispute is not resolved through discussion as mentioned in clause D.2, the employer and the employee or employees concerned parties to the dispute must then try to resolve it in a timely manner at the workplace through discussion between the employee or employees concerned and more senior levels of management, as appropriate.
D.4 If the dispute is unable to be resolved at the workplace and all appropriate steps have been taken under clauses D.2 and D.3, the employer or the employees concerned or any one or more of the employees concerned, party to the dispute may refer it to the Fair Work Commission.
D.5 The parties to the proceeding in the Fair Work Commission may agree on the process to be followed by the Fair Work Commission in dealing with the dispute, including mediation, conciliation and consent arbitration.
D.6 If the dispute remains unresolved, the Fair Work Commission may use any method of dispute resolution that it is permitted by the Act to use and that it considers appropriate for resolving the dispute.
D.7 An employer or an employee party to the dispute may appoint a person, organisation or association to support or represent them in any discussion or process under clause D.
…...’
[88] Parties are invited to comment on the proposed amendment to Clause D by 4.00 pm on Wednesday 9 August 2017.
(ii) Word ‘process’ in clause D.7
[89] During the April conference some concern was expressed about inclusion of the additional word “process” at D.7. 50
[90] The expert has observed that the reference to ‘process’ in clause D.7 relates to the process agreed upon in clause D.5.
[91] Parties are invited to comment on the word “process” in clause D.7 by 4.00 pm on Wednesday 9 August 2017.
E. Termination of employment
[92] The termination of employment clause was inserted into all modern awards as a result of the award modernisation process in 2008. In a decision 51 in September 2008 the Full Bench decided to include a clause which supplemented the NES by including provisions for notice by employees and a job search leave entitlement. The clause was finalised in December 200852 and a new term was included dealing with the withholding of monies by the employer should the employee fail to give the required notice of termination.
[93] The plain language re-draft of clause E—Termination of employment was discussed at the January and April conferences. The revised standard clause E—Termination of employment reflecting the agreed position of the interested parties (in red) is as follows:
Part X—Termination of employment and Redundancy
(a) An employee must give the employer written notice of termination in accordance with Table X—Period of notice of at least the period specified in column 2 according to the period of continuous service of the employee specified in column 1.
E.2 Job search entitlement Where an employer has given notice of termination to an employee, the employee must be allowed time off without loss of pay of up to one day for the purpose of seeking other employment. E.3 The time off under clause E.2 is to be taken at times that are convenient to the employee after consultation with the employer. |
[94] The expert has reviewed the consent position of the parties and has raised a drafting concern regarding the inconsistency between clause E.1(c) and the explanation in column 1 of the table.
[95] The expert has reviewed the consent position of the parties and notes that the explanation proposed by interested parties for column 1 in E.1(c) is incorrect. He noted that the intent is to give the employer the option of not making a full deduction. The expert proposes that the following wording of E.1(c) be retained:
‘(c) If an employee fails to give the period of notice required under paragraph (a), the employer may deduct from any money due to the employee on termination (under this award or the NES), an amount not exceeding the amount that the employee would have been paid in respect of the period of notice not given.’
[96] Parties are invited to comment on the proposed amendment to Clause E by 4.00 pm on Wednesday 9 August 2017.
F. Redundancy
[97] The redundancy clause was inserted into all modern awards as a result of the award modernisation process in 2008. 53 The redundancy clause was finalised in a decision54 in December 2008.
[98] The revised standard clause F—Redundancy reflects the agreed position of the interested parties is as follows:
F. Redundancy
|
[99] There are no outstanding issues in relation to Clause F—Redundancy.
G. Transfer to lower paid job on redundancy
[100] The clause regarding transfer to a lower paid job on redundancy was inserted into all modern awards as a result of the award modernisation process as a term in the redundancy provisions. In a decision 55 in September 2008 the Full Bench set out a draft model provision dealing with redundancy which contained provisions dealing with transfers to lower paid duties. The clause was finalised in December 200856 .
[101] The plain language re-draft of clause G—Transfer to lower paid job on redundancy was discussed at the January and April conferences. The revised standard clause G—Transfer to lower paid job on redundancy is as follows:
G. Transfer to lower paid job on redundancy
(a) no longer requires the duties being performed by an employee in a role (the first role) to be performed by anyone; and
G.2 The employer may: (a) give the employee notice of the transfer of the same length as the employee would be entitled to under section 117 of the Act as if it were a notice of termination given by the employer; or
G.3 If the employer acts as mentioned in paragraph G.2(b), the employee is entitled to a payment of an amount equal to the difference between the ordinary rate of pay of the employee in the first role and the ordinary rate of pay of the employee in the second role for the period for which notice was not given. |
[102] As mentioned above, changes agreed between the parties as a result of the April conference are in red.
[103] The equivalent current clause is as follows:
‘X.2 Transfer to lower paid duties
Where an employee is transferred to lower paid duties by reason of redundancy, the same period of notice must be given as the employee would have been entitled to if the employment had been terminated and the employer may, at the employer’s option, make payment instead of an amount equal to the difference between the former ordinary time rate of pay and the ordinary time rate of pay for the number of weeks of notice still owing.’
[104] There are 3 outstanding issues in relation to clause G:
(i) Change in terminology from “duties” to “job” in clause G.1
(ii) Proposed amendment to wording of clause G.2
(iii) “Ordinary rate of pay” in clause G.3
(i) Change in terminology from ‘duties’ to ‘job’ in clause G.1
[105] Ai Group raised concerns in relation the change in application of clause G.1 with the change in terminology from “duties” to “job” in clause G.1 which occurred after the January conference. The change Ai Group refers to is as follows:
‘G.1 Clause G applies if the employer:
(a) no longer requires the job (the old job) duties being performed by an employee in a role (the first role) to be performed by anyone; and
(b) wishes decides to transfer the employee to a new job role (the second role) (the new job) at a lower classification and lower hourly ordinary rate of pay.’ 57
[106] Ai Group submit that this clause used to apply when an employee was transferred to lower paid duties by reason of redundancy and that under the new drafting the application is narrower. 58
[107] Ai Group seek to align the circumstances of when this clause would apply with the definition of redundancy by introducing provision relating to where it might apply, or not apply, and where it occurs due to the ordinary, customary turnover of labour. Ai Group have not proposed alternative wording but referred to s.119(1) of the Act and seek wording that more closely mirrors the Act. 59
[108] Section 119(1) of the Act is as follows:
Entitlement to redundancy pay
(1) An employee is entitled to be paid redundancy pay by the employer if the employee’s employment is terminated:
(a) at the employer’s initiative because the employer no longer requires the job done by the employee to be done by anyone, except where this is due to the ordinary and customary turnover of labour; or
(b) because of the insolvency or bankruptcy of the employer.’
[109] Ai Group submit that the Act talks about a job, rather than duties, which may be a broader concept. 60
[110] Ai Group further submit that the current clause applies where the employee is transferred to lower paid duties by reason of redundancy, and the words ‘by reason of redundancy’ have been taken out of the re-drafted clause. They say that the way clause G defines redundancy is not appropriate and is inconsistent with the Act. 61 Ai Group submit:
‘We wouldn't necessarily be opposed to some greater definition around what is the meaning of redundancy for the purpose of the award, but the one that's been proffered is inappropriate, in our view. It is a common problem that people don't know quite what is meant by the term, redundancy, and industrial instruments, and it can have different meanings in different agreements or in awards. We have a thought that aligning it to the Act was probably aligning it to the underlying test case standard and appropriate, but I think the ACTU has a view that within different awards, the meaning "redundancy" may mean different things…’ 62
[111] The ACTU submit that the definition in the Act is a definition for the purposes of entitlement to redundancy pay and that:
‘There’s been some litigation about this, including there with that MUA case recently, which has resulted in everybody who is made voluntarily redundant wanting to be made forcibly redundant because of the different tax treatment of it. But it serves to illustrate the point that what redundancy means in a particular context is variable, and so we wouldn't want to constrain the definition of redundancy to those circumstances.” 63
…
…the issue we took with the wording in the previous iteration of the model clause was that we said it should be altered to not apply where the job was no longer required to be done by anyone because of the ordinary and customary turnover of labour. So that’s an exception to what is a redundancy under the Act and under the old test case, sort of standard. We said look, if you’re going to define in the structure of the clause what is a redundancy, so when this would apply, do it in a way that is consistent with the Act, and our submission, and I appreciate this is contested, was that that is consistent with the origins of these award clauses, and I might note that if you looked in the modern awards now there's a clause titled, “Redundancy”, and it says redundancy pay is provided for in the NES, and then it uses the term, redundancy, in the transfer to lower paid duties provision in that clause. So it does suggest some consistency, but I accept that's probably just a product of the way these awards have evolved. I think the difficulty is we just oppose, and the ACTU and Ai Group are going to be completely opposed in the approach that should be taken. We think the definition of redundancy, or the definition where this clause applies, should mirror the Act, if you will.’ 64
[112] The parties indicated that they would give further consideration to this issue and report back to the Commission.
[113] Parties should provide submissions in relation to Clause G.1 by 4.00 pm on Wednesday 9 August 2017.
(ii) Proposed amendment to wording of clause G.2
[114] The expert suggested the following revised wording for clause G.2(a) in order to create a reference to minimum period as in s.117 of the FW Act:
‘G.2 The employer may:
(a) give the employee notice of the transfer of at least the same length as the employee would be entitled to under section 117 of the Act as if it were a notice of termination given by the employer; or’
[115] Parties are invited to provide submissions in relation to the proposed amendment Clause G.2 by 4.00 pm on Wednesday 9 August 2017.
(iii) ‘Ordinary rate of pay’ in clause G.3
[116] Ai Group also raised issues in relation to the reference to “ordinary rate of pay” in clause G.3. Clause G.3 is as follows:
‘G.3 If the employer acts as mentioned in paragraph G.2(b), the employee is entitled to a payment of an amount equal to the difference between the ordinary rate of pay of the employee in the first role and the ordinary rate of pay of the employee in the second role for the period for which notice was not given.’
[117] Ai Group submit that the meaning of “ordinary rate of pay” is unclear and suggest it should be substituted for “ordinary hourly rate of pay” which will be a defined term under the modern awards. Ai Group is concerned that if the reference to ordinary rate of pay is retained, it may suggest that it includes other amounts that might be payable during ordinary hours, such as shift allowances or penalty rates on public holidays and that this would not be the proper intent of these clauses. Ai Group submits that:
‘it was never intended to pick up all those other sorts of payments, and indeed, if it were it would be extremely problematic in trying to work out how and which amounts to apply, because of course during the period of notice, if you will, the employee may sometimes be a shift worker and sometimes not; it just couldn't work.’ 65
[118] The following discussion took place during the April conference in relation to the term “ordinary rate of pay”:
‘…in the exposure draft process of significant contest between the parties, because there was, for example the Manufacturing Award, a proposal from a Full Bench that (indistinct) constituted to replace that with the words, “applicable rate of pay”, and that’s unearthed a great dispute between Ai Group and other employers and certain unions, because some parties contend that this wording should capture shift allowances and so forth. The wording of this clause is - - -
MR CLARKE: And it should.
MR FERGUSON: The wording of this clause is an issue that is in dispute between the parties and I think - Ms Bhatt will correct me again if I’m wrong - the decision was made that this would be dealt with by the plain English drafting Full Bench, so it is a matter for this Full Bench to decide. I apologise for that. But it is ludicrous to think that you’ve got to somehow work out the shift allowances that might apply during the period of the notice, because of course that could change, and the employer could change that. No one has been able to explain to me, and there’s been discussions between the parties, how that could possibly work in practice. I don’t want to ventilate it here, but we’re suggesting we could push for the ordinary hourly rate, which is just the classification rate, and on one view consistent with the old redundancy case. We’re saying we would accept ordinary hourly rate, which would include all-purpose allowances.’ 66
[119] The relevant clause of the Manufacturing and Associated Industries and Occupations Award 2010 (the Manufacturing Award) is 23.3 which provides as follows:
‘23.3 Transfer to lower paid duties
Where an employee is transferred to lower paid duties by reason of redundancy the same period of notice must be given as the employee would have been entitled to if the employment had been terminated and the employer may, at the employer’s option, make payment instead of an amount equal to the difference between the former ordinary time rate of pay and the new ordinary time rate of pay for the number of weeks of notice still owing..’ (emphasis added).
[120] In paragraph [45] of the Group 1 Decision 67 the issue of the term ‘ordinary time rate of pay’ appearing in clause 23.3 of the Manufacturing award (clause 39.3 of the Manufacturing award exposure draft) was referred to the plain language re-drafting common issue:
‘Clause 39.3 – Transfer to lower paid duties (renumbered clause 40.3) will be retained in the form it was in prior to the October 2015 decision. We note that the parties have reserved their positions on this clause and will raise those in the process of making submissions with respect to the clause as part of the plain language re-drafting of standard clauses in AM2016/15.’
[121] Parties should refer to the submissions of the parties in this issue in the manufacturing award:
[122] Parties should provide further submissions in relation to Clause G.3 and the term “ordinary rate of pay” by 4.00 pm on Wednesday 9 August 2017.
H. Employee leaving during redundancy notice period
[123] The clause regarding employees leaving during a redundancy notice period was inserted into all modern awards as a result of the award modernisation process as a term in the redundancy provisions.
[124] Clause H—Employee leaving during redundancy notice period was discussed at the January and April conferences. The revised standard clause H—Employee leaving during redundancy notice period is as follows.
H. Employee leaving during redundancy notice period
(a) Where an employer has given notice of termination to an employee in circumstances of redundancy, the employee must be allowed |
[125] As mentioned above, changes agreed between the parties as a result of the April conference are in red.
[126] There are 2 contested issues in relation to clause H:
(i) Meaning of clause H.2
(ii) Period of notice in H.4
(i) Meaning of clause H.2
[127] Ai Group raised an issue in relation to clause H.2. After the January conference clause H.2 was updated as follows:
‘H.2 The employee is entitled to receive the benefits and payments they would have received under this award or the National Employment Standards had they remained in employment until the expiry of the notice.’ 68
[128] Ai Group submit that wording now states that the employee is entitled to receive the benefits and payments they would have received under the award or the NES had they remained in employment until the expiry of the notice. Ai Group submit that the intention was not to enable an employee to terminate during the redundancy notice period without giving the required period of notice that the award otherwise requires and then to remove an employer’s ability to withhold moneys from that employee. Ai Group submit that all this clause should protect is the amount of redundancy pay that the employee would get.69 If the employee doesn’t give the requisite period of notice, an amount could be deducted from their severance pay but their redundancy pay would be preserved. 70
[129] The ACTU described the way the provision worked as follows:
‘if somebody said all right, you’re going to be made redundant and I'm giving you five weeks’ notice, you know, because that's how long you've been here, and guess what, in three weeks' time you click over to being an employee who’s served for nine years instead of eight years, so you get more redundancy pay. So if the worker wants to leave early because they’ve got another job or for whatever reason, you still calculate their redundancy pay as if he had stayed there for eight years so that he doesn’t lose those extra - and I say that’s what this bit about had they, you know, received the payments they received under this clause, you know, going back to the time when the clause actually said how much redundancy pay you get, as if you’d remained in employment till the expiry of the notice. So you were going to stay on for the full x weeks of the severance pay period, then you would have clicked over to being an eight or nine-year employee so you've got to get the bigger package. So you still get the bigger package, even though you put your hand up to go early, but the consequence of putting your hand up to go early is that you can’t insist on well I’m only working two weeks out of the notice period so you have to pay me the other three. The boss says well no, I’m not going to pay you the other three, that’s it; and in that situation, because the employer is in no way obliged to make a payment in lieu of notice, they lose their rights to deduct from that payment.’ 71
[130] Ai Group differ in in their view about how the clause operates. Ai Group submit that another clause entitles the employer to deduct an amount for the difference between the notice given and the notice worked from whatever is payable to the employee under the award or the NES, apart from redundancy pay. 72
[131] The submissions of Ai Group are opposed by the SDA. 73
[132] It became clear in the April conference that the issue raised in relation to clause H.2 remains highly contentious. Parties should provide further submissions in relation to clause H.2 by 4.00 pm on Wednesday 9 August 2017.
(ii) Period of notice in H.4
[133] Ai Group raised a concern about whether the reference to the period of notice in clause H.4(a) is a reference to the period of notice of termination. 74 Clause H.3 was amended as follows after the January conference:
H.3 However, the employee is not entitled to be paid for any part of the period of notice remaining after the employee ceased to be employed.
H.3 The requirement for the employer to pay the employee at the full rate of pay for the hours the employee would have worked had the employee continued to be employed until the end of the minimum period of notice is not affected by the early termination of employment by the employee.
NOTE: See section 18 of the Fair Work Act for the meaning of “full rate of pay”.” 75
[134] Ai Group submit that period of notice referred to in H.3 should be the period of notice of termination that someone is entitled to under s.117 of the Act under s.117.
[135] Parties should provide further submissions in relation to Clause H.3 by 4.00 pm on Wednesday 9 August 2017.
Next Steps
[136] This Statement provides an update about the status of standard clauses. A number of provisional views have been expressed in relation to some issues and a number of contentious issues have been identified and submissions have been invited from interested parties.
[137] Parties are invited to makes submissions regarding whether the outstanding issues have been accurately characterised in this Statement. Submissions in respect of the issues in accordance with paragraphs [27], [37], [43], [63], [69], [72], [79], [88], [[91], [96], [113], [115], [122], [132] and [135] of the Statement are invited. Submissions are also invited in respect of provisional views expressed and any residual issues.
[138] Submissions should be filed by no later than 4.00 pm on Wednesday 9 August 2017.
[139] The matter will be set down for hearing in Sydney at 9:30am on 21 August 2017.
PRESIDENT
1 [2016] FWC 4756 at [36]-[37]
3 Standard clauses – plain language drafts and comparison table
9 PN2768 of transcript of 11 April 2017 conference
10 Ibid
11 PN416-417 of transcript of 23 November 2016 conference
12 Ibid at PN 418
14 Ibid, attachment C
15 [2013] FWCFB 8859 at [2]
16 Ibid
17 Ibid at PN420-431
18 Ibid at PN443-446
19 Ibid at PN446-463
20 Ibid at PN473
21 Ibid at PN475
22 Ibid at PN484
24 ACCI submission 29 September 2016, page 3
25 Ibid, pages 3 – 4
26 Plain language draft standard clauses, 9 August 2017 at page 2
27 PN536 to 544 of transcript of 23 November 2016 conference
28 Plain language draft standard clauses, 9 August 2017 at page 3
29 PN586 of transcript of 23 November 2016 conference; Plain language draft standard clauses, 9 August 2016
30 Ibid at PN868
31 PN847 of transcript of 23 November 2016 conference
32 Ibid at PN854
33 Ibid at PN858
34 Ibid at PN859
35 Ibid at PN872
36 Ibid at PN883
37 Ibid at PN880
38 [2013] FWCFB 2170 at [188]
42 PN2793 of transcript of 11 April 2017 conference
43 Ibid at PN2802-2805
46 PN2810 to 2814 of transcript of 11 April 2017 conference
47 Ibid at PN2815
48 Ibid at PN2825 to 2826
49 Ibid at PN2830 to 2868
50 Ibid at PN2830 to 2868
57 Attachment B of [2017] FWCFB 1638
58 PN2915 of transcript of 11 April 2017 conference
59 Ibid at PN2916 to 2917
60 Ibid at PN2919
61 Ibid at PN2923 to 2925
62 Ibid at PN2925
63 Ibid at PN2943
64 Ibid at PN2946
65 Ibid at PN2967
66 Ibid at PN2969 to 2971
67 [2017] FWCFB 3177 at [45]
68 Attachment B of [2017] FWCFB 1638
69 PN3028 of transcript of 11 April 2017 conference
70 Ibid at PN3038 to 3038
71 Ibid at PN3049
72 Ibid at PN3050 to 3055
73 Ibid at PN3062
74 Ibid at PN3070-3089
75 Attachment B of [2017] FWCFB 1638
Printed by authority of the Commonwealth Government Printer
<Price code G, PR594604>