| [2018] FWC 1501 |
| FAIR WORK COMMISSION |
STATEMENT |
Fair Work Act 2009
s.156 - 4 yearly review of modern awards
4 yearly review of modern awards – Plain language re-drafting
(AM2016/15)
JUSTICE ROSS, PRESIDENT |
MELBOURNE, 15 MARCH 2018 |
Substitution of public holidays by majority agreement – alleged NES inconsistencies –referral to Plain Language Full Bench
[1] In the course of the review of the Group 3 Awards the National Tertiary Education Union (the NTEU) submitted that clauses in various higher education awards were inconsistent with the NES. 1 The clauses in question provide for the substitution of public holidays. Clause 20.2 of the Post-Secondary Award exposure draft is such a term, it states:
‘20.2 Substitution of public holidays by agreement
By agreement between the employer and the majority of employees in an enterprise another day may be substituted for a public holiday.’ [Emphasis added]
[2] Clause 29.2 of the current Educational Services (Post-Secondary Education) Award 2010 is in identical terms.
[3] The NTEU submit that the words ‘the majority of employees in an enterprise’ should be replaced with the words ‘an employee’ to ensure that the term is consistent with s.115(3) of the Fair Work Act 2009 (Cth). Section 115(3) states:
‘s.115 Meaning of public holiday
. . .
(3) A modern award or enterprise agreement may include terms providing for an employer and employee to agree on the substitution of a day or part-day for a day or part-day that would otherwise be a public holiday because of subsection (1) or (2)’ [Emphasis added]
[4] The Australian Higher Education Industrial Association and Business SA agreed with the NTEU.
[5] ABI took a different view and submitted that the relevant clauses were not inconsistent with the NES.
[6] The issue raised by the NTEU has implications for a number of other modern awards which are not Group 3 Awards. On that basis the Group 3 Full Bench concluded:
‘As the determination of the issue in the context of this award may have implications for other awards we do not propose to deal with the issue in this decision. This issue will be the subject of a Statement by the President shortly.’ 2
[7] As noted above, s.115(3) of the Act states that a modern award may include terms providing for ‘an employer and an employee’ to agree on the substitution of a day or part-day for a day or part-day that would otherwise be a public holiday.
[8] The issue in question is whether an award term which permits public holidays substitution by agreement between an employer and a majority of employees excludes the NES or any provision of the NES, within the meaning of s.55(1).
[9] Of the 122 modern awards, 78 contain clauses which permit the substitution of public holiday by agreement with the majority of employees. These 78 modern awards are listed at Attachment A. A further 5 modern awards permit the substitution of public holidays by an employer, these are listed at Attachment B. In addition, the Sporting Organisations Award 2010 does not specify whether agreement is with an employee or a majority of employees.
[10] Given the general nature of the issue raised, I am satisfied that a broader review of all awards containing a term which provides for the substitution of public holidays by either majority agreement, or unilaterally by an employer, is required. Accordingly, substitution clauses in the awards listed in Attachments A and B, together with the Sporting Organisations Award 2010 are referred to the Plain Language Full Bench for review.
[11] The Plain Language Full Bench will issue directions in due course.
PRESIDENT
<PR601135>
Aboriginal Community Controlled Health Services Award 2010
Airline Operations—Ground Staff Award 2010
Airport Employees Award 2010
Alpine Resorts Award 2010
Aluminium Industry Award 2010
Ambulance and Patient Transport Industry Award 2010
Aquaculture Industry Award 2010
Architects Award 2010
Asphalt Industry Award 2010
Banking, Finance and Insurance Award 2010
Black Coal Mining Industry Award 2010
Broadcasting and Recorded Entertainment Award 2010
Building and Construction General On-site Award 2010
Business Equipment Award 2010
Car Parking Award 2010
Cement and Lime Award 2010
Children’s Services Award 2010
Cleaning Services Award 2010
Clerks—Private Sector Award 2010
Commercial Sales Award 2010
Concrete Products Award 2010
Contract Call Centre Award 2010
Educational Services (Post-Secondary Education) Award 2010
Educational Services (Schools) General Staff Award 2010
Electrical Power Industry Award 2010
Electrical, Electronic and Communications Contracting Award 2010
Fast Food Industry Award 2010
Food, Beverage and Tobacco Manufacturing Award 2010
Gardening and Landscaping Services Award 2010
General Retail Industry Award 2010
Graphic Arts, Printing and Publishing Award 2010
Hair and Beauty Industry Award 2010
Health Professionals and Support Services Award 2010
Horse and Greyhound Training Award 2010
Horticulture Award 2010
Hospitality Industry (General) Award 2010
Hydrocarbons Industry (Upstream) Award 2010
Joinery and Building Trades Award 2010
Journalists Published Media Award 2010
Labour Market Assistance Industry Award 2010
Live Performance Award 2010
Mannequins and Models Award 2010
Manufacturing and Associated Industries and Occupations Award 2010
Meat Industry Award 2010
Mining Industry Award 2010
Miscellaneous Award 2010
Mobile Crane Hiring Award 2010
Nursery Award 2010
Nurses Award 2010
Oil Refining and Manufacturing Award 2010
Pastoral Award 2010
Pest Control Industry Award 2010
Pharmaceutical Industry Award 2010
Pharmacy Industry Award 2010
Plumbing and Fire Sprinklers Award 2010
Poultry Processing Award 2010
Premixed Concrete Award 2010
Professional Employees Award 2010
Quarrying Award 2010
Racing Clubs Events Award 2010
Racing Industry Ground Maintenance Award 2010
Registered and Licensed Clubs Award 2010
Restaurant Industry Award 2010
Road Transport (Long Distance Operations) Award 2010
Road Transport and Distribution Award 2010
Salt Industry Award 2010
Seafood Processing Award 2010
Security Services Industry Award 2010
Storage Services and Wholesale Award 2010
Surveying Award 2010
Telecommunications Services Award 2010
Textile, Clothing, Footwear and Associated Industries Award 2010
Timber Industry Award 2010
Transport (Cash in Transit) Award 2010
Vehicle Manufacturing, Repair, Services and Retail Award 2010
Waste Management Award 2010
Wine Industry Award 2010
Wool Storage, Sampling and Testing Award 2010
Educational Services (Teachers) Award 2010
Health Professionals and Support Services Award 2010
Higher Education Industry—Academic Staff—Award 2010
Higher Education Industry—General Staff—Award 2010
Horse and Greyhound Training Award 2010
1 NTEU submission, 8 June 2016
2 [2018] FWCFB 1405 at [37].
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