[2019] FWCFB 5146

FAIR WORK COMMISSION

DECISION

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
DEPUTY PRESIDENT GOSTENCNIK
DEPUTY PRESIDENT CLANCY
COMMISSIONER LEE
COMMISSIONER HUNT

MELBOURNE, 26 JULY 2019

4 yearly review of modern awards – common issue – payment of wages – payments on termination – outstanding awards.

[1] The ‘payment of wages’ terms in modern awards are being dealt with as a common issue in the 4 yearly review.

[2] In a Decision 1 issued on 17 July 2018 (the July 2018 decision), we finalised the payment of wages on termination of employment model term and expressed the provisional view that the 86 modern awards which were silent in respect of the time period within which termination payments are to be made should be varied to include the model term. The model term is set out below:

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 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

[3] In a Decision 3 issued on 15 August 2018 (the August 2018 decision), we confirmed the provisional view in relation to 83 of the 86 awards that are currently silent in respect of the time period within which termination payments are to be made. Three4 of the 86 modern awards had been the subject of award-specific submissions and we decided not to vary the awards at that time. In a further Statement5 issued on 1 October 2018, it was indicated that final determinations would not be made in relation to a further three of the 86 modern awards6 until further decision of the Full Bench. This therefore left six of the 86 awards that are currently silent to be further dealt with.

[4] When the August 2018 decision was issued, 36 awards contained a payment of wages on termination term. Conferences were held on 1 and 2 August 2018 in order to ascertain the views of interested parties in relation to the following issues:

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

(ii) if varying awards to insert the model term was opposed, any award-specific amendments proposed by the parties.

[5] At these conferences, the insertion of the model term was not opposed in 8 awards. 7 The August 2018 decision expressed the provisional view that these awards should be varied to include the model term and further, that the Market and Social Research Award 2010 should be varied to include the model term, subject to the retention of the first sentence of clause 19.5 as a separate entitlement. This left 27 awards containing a payment of wages on termination term to be dealt with.

[6] This Decision deals with the combined total of 33 modern awards (comprising those referred to in [3] and [5] above), that remain outstanding. These awards are set out in Attachment 1.

[7] Directions were issued in Statements published on 21 August 2018 8 and 1 October 2018.9 Submissions were received in relation to the 33 outstanding awards from the following parties:

• Aurizon, Australian Rail Track Corporation, Brookfield Rail Pty Ltd, Metro Trains Melbourne, Sydney Trains and V/Line Passenger Pty Ltd (the Rail Employers)

• Australian Business Industrial and the NSW Business Chamber (ABI 7 September 2018; ABI 21 September 2018)

• The Australian Industry Group (Ai Group 23 August 2018; Ai Group 29 August 2018; Ai Group 7 September 2018; Ai Group 17 September 2018; Ai Group 18 September 2018; Ai Group 21 September 2018 and Ai Group 21 September 2018)

• The Australian Manufacturing Workers’ Union (AMWU 7 September 2018; AMWU 21 September 2018)

• The Australian Meat Industry Council (AMIC)

• The Australian Nursing and Midwifery Federation (ANMF)

• The Australian Workers’ Union (AWU)

• CFMMEU-Construction and General Division (CFMMEU-C&G)

• CFMMEU-Manufacturing Division (CFMMEU – Manufacturing)

• CFMMEU-Maritime Union of Australia Division (CFMMEU-MUA)

• CFMMEU-Mining and Energy Division (CFMMEU-M&E)

• Electrical Trades Union of Australia (CEPU)

• Health Services Union (HSU)

• Housing Industry Association (HIA)

• Master Builders Australia (MBA)

• Motor Trades Organisations (MTO)

• National Farmers’ Federation (NFF 5 September 2018; NFF 19 September 2018)

• National Road Transport Association (NatRoad 7 September 2018; NatRoad 20 September 2018 and NatRoad 21 September 2018)

• The Pharmacy Guild of Australia (the Pharmacy Guild)

• Transport Workers’ Union of Australia (TWU)

• United Voice (UV)

[8] It is convenient to sort the 33 outstanding awards into three categories:

(i) those 7 modern awards in respect of which interested parties have filed agreed amendments to the model term;

(ii) those 17 modern awards in relation to which an application has been made to insert the model term by one or more interested parties but the application is opposed; and

(iii) the remaining 9 modern awards with other award specific issues.

[9] We deal with each group of awards below.

(i) Agreed amendments

[10] Interested parties have filed agreed amendments in relation to the following 7 modern awards:

• Aluminium Industry Award 2010;

• Horticulture Industry Award 2010;

• Hospitality Industry Award 2010;

• Pastoral Industry Award 2010;

• Registered and Licenced Clubs Award 2010;

• Restaurant Industry Award 2010;

• Wine Industry Award 2010.

[11] We propose to deal with each of the agreed amendments in turn.

Aluminium Industry Award 2010

[12] In a submission dated 23 August 2018 Ai Group set out a proposed variation to the model term to be inserted into the Aluminium Industry Award 2010 (Aluminium Award). 10 The proposed variation is agreed with the AWU.

[13] A marked up version of the clause showing the proposed variations from the model term is set out below (notes have not been reproduced as no changes are proposed to the notes):

‘17.3 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~~ by the next regular pay day in accordance with clause 17.2:

(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.’

[14] The Aluminium Award currently provides that wages must be paid on a weekly or fortnightly basis (at clause 17.1(a)) or, by agreement between the employer and the majority of employees in the relevant enterprise, three weekly, four weekly or monthly (at clause 17.1(b)). Further, clause 17.3 currently provides:

‘17.3 Payment of wages on termination of employment

On termination of employment, wages due to an employee must be paid on the day of termination or paid to the employee by the next regular pay day in accordance with clause 17.2.’

[15] In the July 2018 decision, we rejected ABI’s proposal to vary the model term to allow for termination payments to be made in accordance with the employee’s normal pay cycle. We said:

‘[35] ABI seeks a variation to the time period within which termination payments are to be made; it contends that such payments should be made in accordance with each employee’s pay cycle. The AHA and NatRoad advance a submission in similar terms. In support of its proposal ABI submits that:

‘employees subject to monthly or fortnightly payment arrangements are aware of, and accustomed to, when they are going to be paid. In these circumstances there is no prejudice caused to the employee, nor any additional ‘wait’ associated with this process compared to any other pay cycle.’

[36] We are not prepared to adopt the position advanced by ABI and others. If termination payments were to be made in accordance with each employee’s pay cycle then it is conceivable that some employees may have to wait for up to a month before they receive their termination entitlements. As we observed in our December 2016 decision:

‘Such a delay may impact on the capacity for employees whose employment has been terminated to access Newstart or other social security benefits.’’

[16] As noted in our decision of 17 July 2018 11 the parties in the common issues proceedings generally acknowledge the benefits of uniformity in award terms dealing with the payment of wages and that consistency is desirable. Further:

‘while it is generally acknowledge that consistency is desirable, there is also broad support for the proposition that an award by award approach is warranted and that regard should be had to the existing terms of the award, their historical context and the circumstances pertaining to the relevant industry.’ 12

[17] The proposed variation deleted the existing expression ‘On termination of employment, wages due to an employee must be paid on the day of termination.’ We do not regard the deletion of this part of the term to be problematic, simply because it does not provide any legal minimum requirement; because the clause goes on to state ‘or … by the next regular pay day’ (emphasis added). Read as a whole the practical effect of the existing term is to the requirement that wages due on termination be paid ‘by the next regular pay cycle.’

[18] Ai Group’s submission in support of the proposed clause advances no merit argument in support of the proposal, other than noting that the proposal arose out of ‘productive discussions’ with the AWU.

[19] The fact that two parties with an interest in this award have agreed on the form of a proposed variation is of some relevance, but is far from decisive. To properly consider the variation proposed we would require further submissions which address the merit of the proposal, including:

• the circumstances pertaining to the relevant industry (such as, the number and size of the enterprises covered by the award; and the extent of enterprise agreement coverage and the manner in which those agreements deal with termination payments);

• whether the existing term has given rise to any practical difficulties; and

• whether there are any practical impediments to the employers covered by the award making termination payments within 7 days (and, if so, what are those impediments).

[20] In the event that Ai Group and the AWU wish to press the proposed variation they are to file written submissions (and any evidence relied upon) addressing the merits of their proposal (including the matters set out above) by no later than 4:00 pm on 21 August 2019. This matter will be determined on the papers unless an interested party requests an oral hearing by 4:00 pm on 21 August 2019.

Horticulture Industry Award 2010, Pastoral Industry Award 2010 and Wine Industry Award 2010

[21] On 17 September 2018, Ai Group filed draft determinations for Horticulture Industry Award 2010 (Horticulture Award) and Wine Industry Award 2010 (Wine Award). 13 The variations proposed in the draft determinations had arisen out of discussions between Ai Group, the AWU, the National Farmers’ Federation (NFF) and the South Australian Wine Industry Association (SA WIA). On 19 September 2018, the NFF confirmed that the same amendments to the Pastoral Industry Award 2010 (Pastoral Award) had been agreed with the AWU.14

[22] A marked up version of the proposed variation to the Horticulture Award is set out below (notes have not been reproduced as no changes are proposed to the notes):

‘19.3 Payment on termination of employment

(a) If the employment of an employee terminates, Tthe employer must pay an employee the following amounts in accordance with this clause ~~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 amounts described at clause 19.3(a)(i) must be paid to the employee:

(i) By cash or cheque on the day of termination or forwarded to the employee by post on the next working day; or

(ii) By electronic funds transfer no later than 7 days after the day on which the employee’s employment terminates.

(i) By cash or cheque on the day of termination or forwarded to the employee by post as soon as reasonably practicable and by no later than 7 days after the day on which the employee’s employment terminates; or

(ii) By electronic funds transfer by no later than 7 days after the day on which the employee’s employment terminates.

(d) The requirement to pay wages and other amounts under ~~paragraph (a)~~ clause 19.3 is subject to further order of the Commission and the employer making deductions authorised by this award or the Act.’

Note 2: Paragraph (d) allows the Commission to make an order delaying the requirement to make a payment under clause 19.3. 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.

[23] Draft determinations in the same terms have been filed for the Wine and Pastoral Awards. Ai Group submit that the proposed amendments:

• broadly adopt the structure and substance of the model term determined by the Commission;

• create a new obligation to pay NES entitlements and award amounts other than wages within a specified timeframe; and

• provide specifically for circumstances in which employees are paid by cash or cheque.

[24] The existing payment of wages terms in Horticulture, Wine and Pastoral Awards (clauses 19.3, 26 and 16 respectively) are in substantially the same terms, but we note that the Horticulture and Pastoral Awards both currently provide for payment of wages by cash, cheque and EFT, whereas the Wine Award only provides for payment of wages by cash or EFT.

[25] The proposed variations are broadly consistent with the objective of the model term, that is to ensure that employees receive their termination payments in a timely way. However, given that the Wine Award currently only provides for payment by cash or EFT the variation in respect of that award should be amended, in the terms set out below.

‘19.3 Payment on termination of employment

(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 amounts described at clause 19.3(a)(i) must be paid to the employee:

(i) By cash on the day of termination; or

(ii) By electronic funds transfer no later than 7 days after the day on which the employee’s employment terminates.

(i) By cash on the day of termination; or

(ii) By electronic funds transfer by no later than 7 days after the day on which the employee’s employment terminates.

[26] It is our provisional view that the Horticultural and Pastoral Awards be varied in the terms expressed in [22] above and that the Wine Award be varied in the terms set out at [25] above. Any party opposed to our provisional view is to file a submission in support of its position by 4pm 21 August 2019. This matter will be determined on the papers unless any interested party requests an oral hearing by 4pm 21 August 2019.

Hospitality Industry Award 2010, Registered and Licenced Clubs Award 2010 and Restaurant Industry Award

[27] United Voice has raised a concern about the interaction between the model term and clause 13.4 in the Restaurant Industry Award 2010 (Restaurant Award), which requires that ‘a casual employee must be paid at the termination of each engagement, but may agree to be paid weekly or fortnightly.’ It was also noted that similar provisions currently exist in the Hospitality Industry Award 2010 (Hospitality Award) and Registered and Licenced Clubs Award 2010 (Clubs Award).

[28] Interested parties were directed to hold discussions with the aim of reaching an agreed position about the insertion of the model term and interaction with the current provision. On 7 September 2018, ABI submitted a variation to the model term to address United Voice’s concern 15 which is supported by United Voice16, the Australian Hotels Association, the Restaurant & Catering Industry Association and Clubs Australia.17 The agreed variation to each of the three awards is set out below, variations to the model term are shown in red:

(a) Subject to clause (b), 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 termination; and

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

(b) Where a casual employee is paid at the end of each engagement pursuant to clause XX of this Award, and that employee’s employment is terminated, the employer must pay the employee their wages due under the award at the end of their last engagement.

(c) 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.

[29] We are satisfied that the variations proposed are consistent with the model term and address the issue raised by United Voice. It is our provisional view that each of the three awards should be varied in the terms outlined above. Draft determinations will be issued shortly and interested parties will have 14 days to comment.

(ii) Applications to vary

[30] As outlined in [8](ii) above, we have received applications to insert the model term in the following 17 modern awards:

• Aged Care Award 2010 (Ai Group and ABI)

• Black Coal Mining Industry Award 2010 (Ai Group)

• Building and Construction General On-site Award 2010 (Ai Group supported by HIA)

• Business Equipment Award 2010 (Ai Group and ABI)

• Dry Cleaning and Laundry Industry Award 2010 (ABI)

• Electrical, Electronic and Communications Contracting Award 2010 (Ai Group)

• Food, Beverage and Tobacco Manufacturing Award 2010 (Ai Group and ABI)

• Graphic Arts, Printing and Publishing Award 2010 (Ai Group and ABI)

• Manufacturing and Associated Industries and Occupations Award 2010 (Ai Group and ABI)

• Meat Industry Award 2010 (Ai Group and ABI)

• Mobile Crane Hiring Award 2010 (Ai Group)

• Passenger Vehicle Transportation Award 2010 (ABI)

• Plumbing and Fire Sprinklers Award 2010 (Ai Group and ABI)

• Road Transport and Distribution Award 2010 (Ai Group, ABI and NatRoad)

• Road Transport (Long Distance Operations) Award 2010 (Ai Group, ABI and NatRoad)

• Seafood Processing Award 2010 (Ai Group)

• Supported Employment Services Award 2010 (ABI)

[31] The existing payment on termination terms in each of these awards that would be deleted are set out at Attachment 2.

[32] Each of these applications is opposed.

[33] Parties have not yet had the opportunity to make submissions and adduce evidence in relation to these applications. Accordingly, the applicants are invited to file submissions and any evidence in support of the applications by 4 pm on 21 August 2019. Submissions and evidence in reply should be filed by 4pm on 25 September 2019. A Mention and Conference in respect of these applications will be listed on Friday 23 August 2019.

(iii) Other award specific issues

[34] The remaining 9 modern awards referred to in [8](iii) above are:

• Alpine Resorts Award 2010

• Children’s Services Award 2010

• Joinery and Building Trades Award 2010

• Nurses Award 2010

• Pharmacy Industry Award 2010

• Rail Industry Award 2010

• Timber Industry Award 2010

• Vehicle Manufacturing, Repair, Services and Retail Award 2010 18

• Waste Management Award 2010

Alpine Resorts Award 2010

[35] On 10 August 2018, the Australian Ski Areas Association (ASAA) made a submission opposing the insertion of the model term into the Alpine Resorts Award 2010 (Alpine Award) 19 and proposed the following variations to the model term:

X. Payment on termination of employment

(a) The employer must pay an employee no later than ~~7 days after the day~~ whichever is the earlier of either 14 days after the day on which the employee’s employment terminates or the employer’s next usual pay cycle:

(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

[36] ASAA submit that this variation is necessary due to the unique nature of the alpine resorts industry. ASAA submit that the majority of employees in the industry are engaged on a seasonal basis and that ‘it is common for hundreds of staff to finish their employment within a 3 to 4 week period at the end of the snowsports season.’ 20 Further, the snowsports season may be extended or reduced by several weeks at short notice which means that the resorts require greater flexibility to make termination payments.

[37] The nature of the alpine resorts industry was recently considered by a Full Bench in the Alpine Resorts Award 2010 – substantive issues concerning coverage decision. 21 In that decision the Full Bench made findings which relevantly include:

(3) Alpine resorts covered by the Alpine Award have highly seasonal businesses which are heavily weather dependent and earn most of their revenue during the winter months…

….

(6) Alpine resorts employ large numbers of additional casual employees during the winter snow season to meet the peak demand of that period….

[38] Any submission opposing the variation proposed by ASAA should be filed by 4 pm on 21 August 2019. Submissions in reply should be filed by 4pm on 25 September 2019. This matter will be determined on the papers unless an interested party requests an oral hearing by 4pm on 21 August 2019.

Children’s Services Award 2010

[39] Clause 19.3 of the Children’s Services Award 2010 provides:

‘Where an employee lawfully leaves their employment they will be paid all moneys due at the time of leaving by cash, cheque or electronic funds transfer. Alternatively, the employee may be paid on the next working day where this is reasonable.’

[40] During the course of the conference held in August 2018 the parties discussed whether the above clause permits the deduction of wages on termination in circumstances where an employee does not leave their employment ‘lawfully’. It was proposed that clause 19.3 be deleted and the model term inserted. Parties involved in the relevant conference did not oppose this course of action, but in order to allow other interested parties an opportunity to consider the proposed variation, a draft determination was published on 24 August 2018. 22

[41] In the 21 August 2018 Statement interested parties were given 14 days to comment following the publication of the draft determination. As no comments have been received, the final determination will now be published.

Joinery and Building Trades Award 2010

[42] A draft determination inserting the model term into the Joinery and Building Trades Award 2010 (Joinery Award) was issued on 24 August 2018. HIA do not oppose the insertion of the model term. 23

[43] MBA propose the following amendments to the model term:

26.4 Payment on termination of employment

(a) Where notice is given as required by clause 16 of this Award, 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 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.

[44] In the July 2018 decision 24, we rejected MBA’s proposal to include the words ‘subject to notice being provided’ at the commencement of paragraph (a):

[73] Further, we do not support the inclusion of the words ‘subject to notice being provided’ at the commencement of paragraph (a) of the MBA’s proposed model term. The intention of this proviso is not immediately apparent. However, we think it likely that the intent of the MBA’s proviso is to relieve an employer of the requirement to pay termination payments within the specified period in the event that the employee resigns their employment and does not give the requisite notice of termination.

[45] We are not persuaded to depart from our earlier decision and the MBA’s proposed amendment to the model term in the Joinery award is rejected. A final determination inserting the model term into the Joinery Award will be issued shortly.

Nurses Award 2010

[46] The ANMF raised an issue about the current entitlements in the Nurses Award 2010 (Nurses Award) being more favourable than the model term. Clause 18.3 of the Nurses Award 2010 provides as follows:

‘When notice of termination of employment has been given by an employee or an employee’s services have been terminated by the employer, payment of all wages and other monies owing to an employee will be made to the employee.’

[47] The award currently provides for ‘payment of all wages and other moneys owing to an employee’ and the ANMF submits that this is a more favourable entitlement than the model term. The ANMF propose the following amendments to the model term to address their concerns:

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~~ owing for any complete or incomplete pay period up to the end of the day of termination; and

(ii) all other amounts that are due to the employee, including 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.

[48] The proposed amendments are supported by HSU and UV.

[49] Any submission opposing the variation proposed by the ANMF should be filed by 4 pm on 21 August 2019. Submissions in reply should be filed by 4pm on 25 September 2019. This matter will be determined on the papers unless an interested party requests an oral hearing by 4pm on 21 August 2019.

Pharmacy Industry Award 2010

[50] The Pharmacy Guild does not oppose the insertion of the model term into the Pharmacy Industry Award 2010 (the Pharmacy Award) but proposes an amendment to allow for payment on termination to be made in accordance with the normal pay cycle. The Pharmacy Guild acknowledges that we rejected a proposal to make this amendment to the model term but submits that because the Pharmacy Award only allows for payment on a weekly or fortnightly cycle, employees would not have to wait an unreasonable amount of time to receive their payment.

[51] In addition, the Pharmacy Guild submit that a large percentage of businesses in the Pharmacy Industry are small businesses who do not have dedicated bookkeeping staff and engage contractors for a set number of hours to perform a payroll function. They submit that the cost of having to make termination payments out of the normal pay cycle will be much higher for these smaller businesses.

[52] Any submission opposing the variation proposed by the Pharmacy Guild should be filed by 4 pm on 21 August 2019. Submissions in reply should be filed by 4pm on 25 September 2019. This matter will be determined on the papers unless an interested party requests an oral hearing by 4pm on 21 August 2019.

Rail Industry Award 2010

[53] The Rail Employers propose an amendment to the model term to allow payment to be made ‘no later than 14 days after the day on which the employee’s employment terminates.’ 25

[54] The Rail Employers submit that the model clause ‘does not in all circumstances provide sufficient time to allow the Rail Employers to pay sums due and, as a result, fails to address the impracticability inherent in such a clause for the Rail Employers’. They further submit that many rail employers operate on a fortnightly pay cycle but that despite this, sums due and payable to employees on termination are typically paid within a period of 7 days. The Rail Employers submit that a 14 day limit would more appropriately acknowledge the practical limitations that may arise and, by extension, this would represent a more appropriate balance. The Rail employers submit that the practical limitations faced in these circumstances include; that the payroll systems used by a number of employers are not automated and require manual input which may take more than 14 days and that the nature of an employee’s termination may require the execution of documents which may prolong the period of payment beyond 7 days.

[55] Any submission opposing the variation proposed by the Rail Employers should be filed by 4 pm on 21 August 2019. Submissions in reply should be filed by 4pm on 25 September 2019. This matter will be determined on the papers unless an interested party requests an oral hearing by 4pm on 21 August 2019.

Timber Industry Award 2010

[56] During the conference process, an issue arose regarding the interpretation of the current payment of wages provisions in the Timber Industry Award 2010 (Timber Award) and it was decided that this issue will be dealt with by the Plain Language Full Bench as a separate process. However, parties were encouraged to discuss whether there are any industry specific elements of the clause that should be retained in the event that that model term is inserted into this award, and directed to report back to the Commission in September 2018.

[57] On 21 September 2018, the Ai Group advised that it had been involved in discussions with the CFMMEU and the AMWU, and had consulted with ABI with regard to payment of wages provisions in the Timber Award, but that the discussions had not resulted in an agreed positions between the parties as to the ‘industry specific elements of the clause that should be retained in the event that the model term is inserted into the award.’ 26

[58] Ai Group noted that the parties had also been engaged in productive discussions concerning the payment of wages on termination provisions in the Timber Award more broadly, to determine whether there is any common ground between them as to an appropriate variation. At the time of making the submission, these discussions had not been exhausted, and the parties intended on continuing discussions with the aim of narrowing the scope of difference between the relevant organisations. 27

[59] The AMWU and CFMMEU confirmed that Ai Group’s submission provided an accurate reflection of the constructive discussions that had taken place, and that discussions would continue. 28

[60] In its submission of 28 September 2018, the HIA noted its continuing interest in the Timber Award and confirmed that it does not oppose insertion of the model clause in that award. 29

[61] A conference of interested parties will be held on 23 August 2019 prior to listing the matter for hearing and determination.

Waste Management Award 2010

[62] Clause 24.3 in the Waste Management Award 2010 (Waste Management Award) currently provides that: ‘Despite anything contained in this clause, the employer must pay to an employee who leaves or is dismissed all money due to the employee as soon as possible.’

[63] As the words ‘as soon as possible’ do not provide a time period for payment on termination, parties were asked to engage in discussions to see if an agreed position could be reached.

[64] In its submission of 7 September 2018, Ai Group noted that it had engaged in discussions with various unions, primarily the TWU, but reported that these discussions had not resulted in an agreed position. 30 The AMWU, AWU and TWU all oppose insertion of the model clause.31

[65] As no agreed position has been reached, all interested parties are directed to file submissions in support of their respective position by 4 pm on 21 August 2019. Submissions in reply are to be filed by 4pm on 25 September 2019. Submissions should address the meaning of the expression ‘as soon as possible’ in the Waste Management Award and why the insertion of the model term is opposed (or supported). The application will be determined on the papers unless an interested party requests an oral hearing by 4pm on 21 August 2019.

Next steps

[66] Final determinations varying the Children’s Services Award 2010 and the Joinery and Building Trades Award 2010 will shortly be issued in accordance with [41] and [45].

[67] As outlined in [29] above, draft determinations will be issued for the Hospitality Industry Award 2010, Registered and Licenced Clubs Award 2010 and Restaurant Industry Award. Interested parties will have 14 days to comment.

[68] Notices of Listing will be published on the Commission’s website for the Mentions and Conferences foreshadowed in [33] and [61] above.

[69] Submissions should be filed in accordance with paragraphs [20], [26], [33], [38], [49], [52], [55] and [65] of this decision. All submissions should be sent to [email protected] and will be published on the Commission’s website.

PRESIDENT

Printed by authority of the Commonwealth Government Printer

PR710650

Attachment 1

1. Aged Care Award 2010;

2. Alpine Resorts Award 2010;

3. Aluminium Industry Award 2010;

4. Black Coal Mining Industry Award 2010;

5. Building and Construction General On-site Award 2010;

6. Business Equipment Award 2010;

7. Children’s Services Award 2010;

8. Dry Cleaning and Laundry Industry Award 2010;

9. Electrical, Electronic and Communications Contracting Award 2010;

10. Food, Beverage and Tobacco Manufacturing Award 2010;

11. Graphic Arts, Printing and Publishing Award 2010;

12. Horticulture Award 2010;

13. Hospitality Industry Award 2010;

14. Joinery and Building Trades Award 2010;

15. Manufacturing and Associated Industries and Occupations Award 2010;

16. Meat Industry Award 2010;

17. Mobile Crane Hiring Award 2010;

18. Nurses Award 2010;

19. Passenger Vehicle Transportation Award 2010;

20. Pastoral Award 2010;

21. Pharmacy Industry Award 2010;

22. Plumbing and Fire Sprinklers Award 2010;

23. Rail Industry Award 2010;

24. Registered and Licenced Clubs Award 2010;

25. Restaurant Industry Award;

26. Road Transport and Distribution Award 2010;

27. Road Transport (Long Distance Operations) Award 2010;

28. Seafood Processing Award 2010;

29. Timber Industry Award 2010;

30. Supported Employment Services Award 2010;

31. Vehicle Manufacturing, Repair, Services and Retail Award 2010;

32. Waste Management Award 2010;

33. Wine Industry Award 2010.

Attachment 2

Aged Care Award 2010 (Ai Group and ABI)

ABI

1. By deleting the following clause:

17.3 Termination When notice of termination of employment has been given by an employee or an employee's services have been terminated by an employer, payment of all wages and other moneys owing to an employee will be made to the employee by no later than the last day of the formal notice period.

2. By inserting the following clause:

17.3 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 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 this clause. For example, the Commission could make an order delaying the requirement to pay redundancy pay if an employer makes an application under s.120 of the Act for the Commission to reduce the amount of redundancy pay an employee is entitled to under the NES.

3. By updating the table of contents and cross-references accordingly.

Ai Group

1. Deleting clause 17.3 and inserting in lieu:

17.3 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 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.

2. Updating the table of contents and cross-references accordingly.

Black Coal Mining Industry Award 2010 (Ai Group)

1. By deleting clause the following clause:

16.7 Upon termination of employment, wages due to an employee will be paid on the day of such termination or forwarded by post, within 72 hours, to the last address notified in writing by the employee.

2. And inserting in lieu:

16.7 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 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.

3. Updating the table of contents and cross-references accordingly.

Building and Construction General On-site Award 2010 (Ai Group supported by HIA)

1. By deleting the following clause:

31.4 When notice is given, all monies due to the employee must be paid at the time of termination of employment. Where this is not practicable, the employer will have two working days to send monies due to the employee by registered post (or where paid by EFT the monies are transferred into the employee’s account).

2. And inserting in lieu:

31.4 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 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.

3. Updating the table of contents and cross-references accordingly.

Business Equipment Award 2010 (Ai Group and ABI)

Ai Group

1. By deleting the following clause:

25.4 Upon termination of employment, the wages due to an employee must be paid on the day of such termination or forwarded by post on the next working day.

2. And inserting in lieu:

25.4 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 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.

3. Updating the table of contents and cross-references accordingly.

ABI

1. By deleting the following clause:

• Upon termination of employment, the wages due to an employee must be paid on the day of such termination or forwarded by post on the next working day.

2. By inserting the following clause :

25.4 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 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.

Dry Cleaning and Laundry Industry Award 2010 (ABI)

1. By deleting the following clause:

19.3 Termination When notice of termination of employment has been given by an employee or an employee's services have been terminated by an employer, payment of all wages and other money owing to an employee will be made to the employee by no later than the last day of the formal notice period.

2. By inserting the following clause:

19.3 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 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 3: State and Territory long service leave laws or long service leave entitlements under s.l13 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.

3. By updating the table of contents and cross-references accordingly.

Electrical, Electronic and Communications Contracting Award 2010 (Ai Group)

1. Renumbering Clause 22.3(b) as clause 22.4.

2. Deleting clause 22.3(a) and inserting in lieu:

22.3 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 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.

3. Renumbering clauses 22.4 and 22.5 as 22.5 and 22.6 respectively.

4. Updating the table of contents and cross-references accordingly

Food, Beverage and Tobacco Manufacturing Award 2010 (Ai Group and ABI)

Ai Group

1. Deleting clause 28.3:

28.3 Payment of wages on termination of employment. On termination of employment, wages due to an employee must be paid on the day of termination or forwarded to the employee on the next working day.

2. And inserting in lieu:

28.3 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 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.

3. Updating the table of contents and cross-references accordingly.

ABI

1. By deleting the following clause:

2. By inserting the following clause:

28.3 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 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.

3. By updating the table of contents and cross-references accordingly.

Graphic Arts, Printing and Publishing Award 2010 (Ai Group and ABI)

Ai Group

1. Deleting clause 28.5:

28.5 Payment on termination. On termination of employment, all monies due to an employee must be paid on the day of termination. When an employee is dismissed without notice all monies are to be forwarded to the employee by post or electronic funds transfer by the end of the next business day following the termination.

2. And inserting in lieu:

28.5 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 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.

3. Updating the table of contents and cross-references accordingly.

ABI

1. By deleting the following clause:

2. By inserting the following clause:

28.5 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 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.

Manufacturing and Associated Industries and Occupations Award 2010 (Ai Group and ABI)

Ai Group

1. Deleting clause 34.3:

34.3 Payment of wages on termination of employment

On termination of employment, wages due to an employee must be paid on the day of termination or forwarded to the employee by post on the next working day.

2. And inserting in lieu:

34.3 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 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.

ABI

1. By deleting the following clause:

34.3 Payment of wages on termination of employment

On termination of employment, wages due to an employee must be paid on the day of termination or forwarded to the employee by post on the next working day.

2. By inserting the following clause:

34.3 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 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.

Meat Industry Award 2010 (Ai Group and ABI)

Ai Group

1. Deleting clause 29.2

29.2 Upon termination of employment, any wages due to an employee will be paid on the day of such termination or, at the employee’s option, forwarded to them on the next working day.

2. And inserting in lieu:

29.2 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 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 2: Paragraph (b) allows the Commission to make an order delaying the requirement to make a payment under this clause. For example, the Commission

ABI

1. By deleting the following clause:

29.2 Upon termination of employment, any wages due to an employee will be paid on the day of such termination or, at the employee’s option, forwarded to them on the next working day.

2. By inserting the following clause:

29.2 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 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.

Mobile Crane Hiring Award 2010 (Ai Group)

1. Deleting clause 19.5:

19.5 Termination of employment

Upon termination of employment, wages due will be paid on the day of such termination or forwarded by electronic transfer or post on the next working day.

2. And inserting in lieu:

19.5 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 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.

Passenger Vehicle Transportation Award 2010 (ABI)

1. By deleting the following clause:

19.3 Notwithstanding anything contained in this clause, the employer must pay to an employee who leaves or is dismissed all moneys due to the employee within two working days.

2. By inserting the following clause:

19.3 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 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 2: Paragraph (b) allows the Commission to make an order delaying the requirement to make a payment under this clause. For example, the Commission could make an order delaying the requirement to pay redundancy pay if an employer makes an application under s.l20 of the Act for the Commission to reduce the amount of redundancy pay an employee is entitled to under the NES.

Plumbing and Fire Sprinklers Award 2010 (Ai Group and ABI)

Ai Group

1. Deleting clause 27.4

27.4 When notice is given in accordance with clause 17—Termination of employment, monies due to the employee must be paid at the time of termination. Where this is not practicable monies will be sent by registered post or, if the employee is normally paid by electronic funds transfer, transferred into the employee’s account within two working days.

2. And inserting in lieu:

27.4 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 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.

ABI

1. Deleting clause 27.4

2. By inserting the following clause:

27.4 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 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.

Road Transport and Distribution Award 2010 (Ai Group, ABI and NatRoad)

Ai Group

1. Deleting clause 20.3:

20.3 Notwithstanding anything contained in this clause, the employer must pay to an employee who leaves or is dismissed all moneys due to the employee forthwith.

2. And inserting in lieu:

20.3 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 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.

ABI

1. By deleting the following clause:

20.3 Notwithstanding anything contained in this clause, the employer must pay to an employee who leaves or is dismissed all moneys due to the employee forthwith.

2. By inserting the following clause:

20.3 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 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.

NatRoad

1. Deleting the existing clause 20.3 in its entirety:

20.3 Notwithstanding anything contained in this clause, the employer must pay to an employee who leaves or is dismissed all moneys due to the employee forthwith.

2. Renumber clause 20.4 as 20.3 and insert a new clause 20.4 with the following:

20.4 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 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 2: Paragraph (b) allows the Commission to make an order delaying the requirement to make a payment under clause 20.4. 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.

Road Transport (Long Distance Operations) Award 2010 (Ai Group, ABI and NatRoad)

Ai Group

1. Deleting clause 18.3:

18.3 Notwithstanding anything contained in this clause, the employer must pay to an employee who leaves or is dismissed all money due to the employee immediately.

2. And inserting in lieu:

18.3 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 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.

ABI

1. By deleting the following clause:

18.3 Notwithstanding anything contained in this clause, the employer must pay to an employee who leaves or is dismissed all money due to the employee immediately.

2. By inserting the following clause:

18.3 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 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.

NatRoad

1. Delete the existing clause 18.3 in its entirety:

18.3 Notwithstanding anything contained in this clause, the employer must pay to an employee who leaves or is dismissed all money due to the employee immediately.

2. Renumber clause 18.4 as 18.3 and insert a new clause 18.4 with the following:

18.4 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 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.

Seafood Processing Award 2010 (Ai Group)

1. Deleting clause 21.3:

21.3 Payment of wages on termination of employment

On termination of employment, wages due to an employee must be paid on the day of termination or forwarded to the employee within 48 hours.

2. And inserting in lieu:

21.3 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 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.

Supported Employment Services Award 2010 (ABI)

1. By deleting the following clause:

18.4 Where an employee is discharged from employment the employee will be paid immediately for all wages, overtime, pro rata payment for annual leave, annual leave loading or any remuneration due. Payment may be made by cash, cheque or electronic funds transfer at the discretion of the employer.

2. By inserting the following clause:

18.4 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 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 2: Paragraph (b) allows the Commission to make an order delaying the requirement to make a payment under this clause. For example, the Commission could make an order delaying the requirement to pay redundancy pay if an employer makes an application under s.l20 of the Act for the Commission to reduce the amount of redundancy pay an employee is entitled to under the NES.

1 [2018] FWCFB 3566.

2 [2018] FWCFB 3566 at [119].

3 [2018] FWCFB 4735.

4 Alpine Resorts Award 2010, Pharmacy Industry Award and 2010 Rail Industry Award 2010

5 [2018] FWC 3064.

6 Hospitality Industry (General) Award 2010, Joinery and Building Trades Award 2010 and Registered and Licensed Clubs Award 2010.

7 Asphalt Industry Award 2010, Horse and Greyhound Training Award 2010, Nursery Award 2010, Pharmaceutical Industry Award 2010, Professional Diving Industry (Industrial) Award 2010, Professional Diving Industry (Recreational) Award 2010, Silviculture Award 2010 and the Storage Services and Wholesale Award 2010.

8 [2018] FWC 4935

9 [2018] FWC 3064

10 Ai Group submission, 23 August 2018

11 [2018] FWCFB 3566

12 Ibid at [7]-[8]

13 Ai Group submission dated 17 September 2018.

14 NFF correspondence dated 19 September 2018.

15 ABI submission 7 September 2018, para 2.2.

16 United Voice submission 10 September 2018, para 9.

17 Ibid, para 2.3.

18 A Statement in respect of this award will be issued shortly.

19 ASSA submission dated 10 August 2018.