[2018] FWC 4206

The attached document replaces the document previously issued with the above code on 17 July 2018.

Dates added to ‘Day 1’ and ‘Day 2’ in Attachment A.

Casey Sutton

Associate to Justice Ross

Dated 18 July 2018.

[2018] FWC 4206

FAIR WORK COMMISSION

STATEMENT

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

4 yearly review of modern awards – Payment of wages
(AM2016/8)

JUSTICE ROSS, PRESIDENT

SYDNEY, 17 JULY 2018

4 yearly review of modern awards – payment of wages common issue – payments on termination model term – scheduling of conferences.

[1] On 16 July 2018, a Full Bench issued a decision 1 finalising the payment on termination of employment model term (the July 2018 Decision). The decision expressed the provisional view that it is necessary to vary 86 modern awards which are currently silent in respect of the time period within which termination payments are to be made, to insert the model ‘Payment on termination of employment’ term as follows:

X. Payment on termination of employment

(a) The employer must pay an employee no later than 7 days after the day on which the employee’s employment terminates:

(i) the employee’s wages under this award for any complete or incomplete pay period up to the end of the day of the termination; and

(ii) all other amounts that are due to the employee under this award and the NES.

(b) The requirement to pay wages and other amounts under paragraph (a) is subject to further order of the Commission and the employer making deductions authorised by this award or the Act.

Note 1: Section 117(2) of the Act provides that an employer must not terminate an employee’s employment unless the employer has given the employee the required minimum period of notice or “has paid” to the employee payment instead of giving notice.

Note 2: Paragraph (b) allows the Commission to make an order delaying the requirement to make a payment under clause X. For example, the Commission could make an order delaying the requirement to pay redundancy pay if an employer makes an application under section 120 of the Act for the Commission to reduce the amount of redundancy pay an employee is entitled to under the NES.

Note 3: State and Territory long service leave laws or long service leave entitlements under s.113 of the Act, may require an employer to pay an employee for accrued long service leave on the day on which the employee’s employment terminates or shortly after.

[2] The July 2018 decision also dealt with the 36 modern awards which currently contain terms which provide for the payment of wages and other amounts owing to an employee on the termination of their employment. The review of these existing provisions is to proceed on an award by award basis and any variation will need to be justified on its merits.

[3] The July 2018 decision noted that a series of conferences would be held to ascertain the views of interested parties about any variation to the existing payment on termination terms. The purpose of this statement is to schedule those conferences.

[4] A schedule of conferences is attached to this Statement at Attachment A. The groupings of awards were selected to try and deal with the awards efficiently having regard to the principal parties likely to be involved.

[5] The purpose of the short conferences is to ascertain the views of interested parties in relation to the following issues:

(i) whether there is any opposition to inserting the model term into the particular awards which is the subject of the conference; and

(ii) if varying awards to insert the model term is opposed, then what award-specific amendments are proposed by the parties.

[6] Parties are encouraged to have discussions before the conferences with a view to proposing agreed amendments or narrowing any award specific issues.

[7] Notices of listing for the conferences will be issued shortly.

PRESIDENT

Attachment A

Day 1 – Sydney (Wednesday 1 August 2018)

Morning 9:00 - 11:00

Horticulture Award 2010 [MA000028]

Nursery Award 2010 [MA000033]

Pastoral Award 2010 [MA000035]

Silviculture Award 2010 [MA000040]

Asphalt Industry Award 2010 [MA000054]

Market and Social Research Award 2010 [MA000030]

Business Equipment Award 2010 [MA000021]