[2020] FWCFB 1131

The attached document replaces the document previously issued with the above code on 20 May 2020.

Table of contents amended

Appearances corrected by deleting ‘Ms R Bhatt for the Australian Industry Group with Mr L. Izzo: and replacing this with ‘Ms R Bhatt for Australian Group, Mr L Izzo for Australian Business Industrial and NSW Business Chamber’.

Associate to Justice Ross, President

Dated 21 May 2020

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

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

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

Abbreviations

1. Background

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

[2] In the December 2016 decision¹, we confirmed our provisional view that each modern award should provide for the payment of wages and other amounts owing to an employee on termination of employment and that such a term should prescribe the timeframe within which such termination payments are to be made.² 

[3] In a decision issued on 17 July 2018 (the July 2018 decision) we finalised the payment of wages on termination of employment model term.³ The model term provides as follows:

X (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 the 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 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 required minimum period of notice or “has paid” to the employee payment instead of giving them 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.⁴

[4] The model term was subsequently inserted (in some cases with minor modifications) in the 86 modern awards which were silent in respect of the time period within which termination payments are to be made.⁵

[5] The remaining 36 modern awards contained terms which provided for the payment of wages and other amounts on the termination of employment. There is considerable variation in the manner in which these modern awards deal with termination payments. For example, the time period within which termination payments are to be made varies from the day of termination to 3 days after termination; 10 of the 36 modern awards provide for termination payments to be sent by post or registered post; 6 provide for termination payments to be ‘forwarded’ to the former employee, but do not specify the means by which such payments are to be made. The terms of these 36 modern awards also vary in the manner in which they refer to the amounts owing to an employee whose employment has been terminated, including making reference to ‘all money due’,⁶ ‘monies’,⁷ ‘all wages and other monies’⁸ and ‘all wages and holiday pay’.⁹

[6] We have varied 15 of the 36 modern awards with an existing termination payment term to insert the model term or a variant of it. In a number of these awards we have adopted a “hybrid approach” whereby the model term was inserted with appropriate amendments to reflect the current terms of the award. For example: On 17 September 2018, Ai Group filed draft determinations for the Horticulture Industry Award 2010 (Horticulture Award). The variations proposed arose out of discussions between Ai Group, the AWU, the National Farmers’ Federation (NFF) and the South Australian Wine Industry Association (SA WIA). A marked up version of the proposed variation to the Horticulture Award is set out below (notes have not been reproduced as no changes were 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.

(c) The amounts described at clause 19.3(a)(ii) must be paid to the employee:

(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.’

[7] Draft determinations in the same terms were subsequently filed for the Wine Industry Award 2010 and the Pastoral Award 2010. In support of the draft determinations Ai Group submitted 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.

[8] Similarly, in the Restaurant Industry Award 2010�the Hospitality Industry Award 2010 and the Registered and Licensed Clubs Award 2010, the parties agreed to variations to the model term to accommodate the existing terms in these awards. 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.

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 (c) 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.’

[9] To recap, of the 36 modern awards containing a termination payment term, 15 have been varied to insert the model term (or a variant of it) and of the remaining 21 modern awards, four have outstanding award specific issues and the other 17 modern awards are the subject of applications to vary, to insert the model term.

[10] We turn first to the four modern awards with outstanding award specific issues.

2. Outstanding Award Specific Issues

[11] The four remaining modern awards with award-specific issues are:

•  Nurses Award 2010;

•  Timber Industry Award 2010;

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

•  Waste Management Award 2010.

Nurses Award 2010

[12] Clause 18.3 of the Nurses Award provides:

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

[13] The current term differs from the model term in three main respects:

•  it only deals with cases where the employment ends at the initiative of the employer by the giving of notice, whereas the model term deals with all cases involving termination of employment (including summary dismissal and resignation);

•  it provides for the payment of ‘all wages and other monies owing to the employee’ whereas the model term speaks of wages and ‘other amounts due to the employee under [the] award and the NES’; and

•  it does not prescribe a period of time within which termination payments are to be made.

[14] The ANMF observes that the Nurses Award, as it currently stands, creates an enforceable entitlement to payment of all monies owing, whether by virtue of the award, the NES or another instrument and that if the model term were to be adopted, the enforceable award entitlement to payment on termination would be confined to wages payable under the award and all other amounts that are due under the award and the NES.¹⁰

[15] The ANMF proposed the following amendment to the model term, which seeks to retain the more favourable entitlements which are currently in the Nurses Award 2010 (Nurses Award):¹¹

‘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.’

[16] The ANMF’s proposed amendments were supported by the HSU and United Voice (now the UWU).¹²

[17] In a decision issued on 26 July 2019 (the July 2019 decision)¹³ we directed that any submission opposing the variation proposed by the ANMF were to be filed by 21 August 2019.

[18] The Private Hospital Industry Employer Association (PHIEA) filed a submission in the following terms:¹⁴

‘PHIEA agrees with the ANMF that the current entitlements in the Nurses Award 2010 regarding payment on termination of employment are more favourable than the model term, and therefore would have no objection if the model term were to be amended in the Nurses Award as proposed by the ANMF and noted above in paragraph [48] of the Full Bench Decision of 26 July 2019.’ 

[19] Ai Group filed a submission¹⁵ opposing the variations sought and submitted that the ANMF’s amendments required the payment of over-award amounts and that employers and employees should be free to determine arrangements governing the payment for any element of an individual’s wages that exceeds entitlements set by the modern award. It submitted that there are many legitimate reasons why over-award payments may not be provided until a point in time beyond 7 days from the date of termination and that it is not necessary for a minimum safety net of terms and conditions to regulate such matters.

[20] Ai Group relied on an extract from a decision of the Plain Language Full Bench in support of its position:

‘The ANMF’s proposal ‘may have the consequence of overriding private contractual arrangements by which such payments are made, in circumstances where [the Commission has] no knowledge as to the terms of such arrangements’. The Commission decided to draft the Model Clause to apply only to entitlements arising from the safety net for this very reason. There is no cogent reason to depart from that decision in the context of the Nurses Award.’16

[21] In a decision issued on 23 August 2019 (the August 2019 decision)¹⁷ we directed parties to file submissions in reply by 25 September 2019 and advised that this matter will be determined on the papers unless an interested party requests an oral hearing. No party requested an oral hearing.

[22] The ANMF was the only party to file a submission in reply and noted that the extract quoted by Ai Group from the 13 June 2018 decision of the Plain Language Full Bench¹⁸ is not the full quote and submitted that it is clear that the Full Bench was directing its attention to the discrete issue of authorising deductions from over-award payments.¹⁹

[23] The extract relied on by Ai Group was from a decision of the Plain Language Full Bench dealing with the standard ‘Termination of Employment’ clause in modern awards, in particular clause E.1(c), which provides:

‘(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 that the employee would have been paid in respect of the period of notice not given.’

[24] In a Statement²⁰ issued on 21 August 2017 the Plain Language Full Bench raised two issues in relation to clause E.1(c), as follows:

1. whether clause E.1(c), either wholly or insofar as it deals with NES entitlements, is a type of provision which may validly be included in a modern award under the relevant provisions of the FW Act, including but not confined to ss.55, 118, 139 and 142; and

2. to the extent that the Commission has the power to include a provision of the nature of clause E.1(c) in a modern award, whether as a matter as of merit such a provision is necessary to achieve the modern awards objective in accordance with the requirement in s.138.

[25] In its decision of 13 June 2018²¹ the Plain Language Full Bench determined, among other things, the issues associated with clause E.1(c). In particular the Full Bench decided that there was a sufficient relationship between clause E.1(c) and the permitted term such that clause E.1(c) is ‘incidental to’ clause E.1(a), within the meaning of s.142(1)(a) and that a term such as clause E.1(c) is essential for the purpose of making a term such as clause E.1(a) operate in a practical way.

[26] The Full Bench then went on to consider whether clause E.1(c) is a term which the Commission is prohibited from including in a modern award. No party contested the proposition that clause E.1(c) cannot permissibly authorise deductions from NES entitlements, but the parties differed as to how this issue was to be dealt with in the standard term.

[27] The passage in the decision which is relied on by Ai Group in the present proceedings occurs in the following context:

‘[63] Ai Group does not concede that it is ‘necessary or desirable’ to amend clause E.1(c) to confine the scope of the capacity to make a deduction to ‘wages due to the employee’, but goes on to submit: ‘However, we understand the reasons why the Commission has reached this provisional view.’ In the course of oral argument Ai Group submitted that it neither opposed nor supported limiting the right to deduct to ‘wages due to the employee’.

[64] ABI acknowledges that as currently drafted clause E.1(c) could well conflict with NES obligations regarding payments on termination, in particular s.90(2) which deals with annual leave payments on termination. On that basis ABI agreed with our provisional view that the scope of the capacity to make a deduction under clause E.1(c) be limited to ‘wages due to the employee’.

[65] The ACTU goes further and submits that clause E.1(c) should be limited not only to deductions from ‘wages due to the employee’, but rather ‘wages due to the employee under this award’ (emphasis added). The effect of the additional words is to confine the scope of the power to make deductions such that it not apply to over award payments. ABI and Ai Group oppose the additional words proposed by the ACTU.

[66] Ai Group submits that the ACTU’s additional words ‘are unnecessary’ and would ‘lead to a lot of complications’. ABI submits that the ACTU’s proposal draws an ‘artificial distinction’ between award wages and over award payments and that a term in the form proposed by the ACTU would be:

‘practically burdensome for an employer who may have to undertake complex payroll calculations to work out an employee’s entitlements under the relevant award, in circumstances where they are already dealing with the inconvenience caused by the employee failing to provide the requisite degree of notice’

[67] We agree with the ACTU’s formulation and will amend clause E.1(c) such that it only authorises deductions from ‘wages due to the employee under this award’. It seems to us that authorising deductions from over award payments may have the consequence of overriding private contractual arrangements by which such payments are made, in circumstances where we have no knowledge as to the terms of such arrangements. Further, the complexity argument advanced by ABI and Ai Group is unpersuasive. As will become apparent, we propose to further limit the capacity to make deductions; to one weeks’ wages. Such a limitation will make it simple for an employer to determine the amount that may be deducted in the event that an employee does not give the requisite notice.’²² [footnotes omitted]

[28] We acknowledge that, as a general proposition, there is some force in Ai Group’s contention that the terms of a modern award should not seek to regulate over-award payments. That argument would be particularly persuasive in the context of the variation of a modern award to insert a new entitlement. But that is not the case here. As we have mentioned the ANMF are simply seeking to retain an existing award entitlement.

[29] It is clear from the context that the decision of the Plain Language Full Bench is confined to the discrete issue of whether an award term should authorise deductions from over-award payments.

[30] Ai Group also noted that in framing the model term we had relied on the extract from the Plain Language Full Bench decisions in confining the scope of the model term to payments due under the award and the NES:

‘The Commission decided to draft the Model Clause to apply only to entitlements arising from the safety net for this very reason. There is no cogent reason to depart from that decision in the context of the Nurses Award.’23

[31] In respect of this statement, the ANMF submit that we unambiguously addressed the question of changes to modern award clauses with respect to payment of wages in the July 2018 decision – determining that a case by case approach is required.

[32] We agree with the ANMF. We have made it clear that each modern award is to be reviewed in its own right; a variation must be justified on its merits and that it was not appropriate to proceed from the prima facie position that existing entitlements in respect of payments on termination should be replaced by the model term.

[33] The balance of Ai Group’s argument can be distilled in two points:

•  employers and employees should be free to determine arrangements governing the payment of any element of an individual’s wage that exceeds entitlements set by the award; and

•  there are ‘many legitimate reasons why over-award payments may not be provided until a point in time beyond 7 days from the date of termination’.

[34] Neither of these arguments is persuasive. As to the first, employers and employees can depart from the award term by entering into an IFA or an enterprise agreement.

[35] As to the second point, the submission put lacks particularity. We accept that in the context of a particular award there may well be ‘legitimate reasons’ why an over-award payment may not be paid until a point in time later than 7 days from the date of termination. Commission payments are a case in point, as we shall discuss shortly in the context of the Vehicle Manufacturing, Repair Services and Retail Award 2010. But Ai Group has failed to advance any reason why, in the context of the Nurses Award, an over-award payment may not be paid until a point in time later than 7 days after termination.

[36] Indeed, the scenario advanced by Ai Group seems counter-intuitive. It is much more likely that an employer will make all termination payments (award wages, NES and over-award) at the same time. To do otherwise would be administratively burdensome and may necessitate an additional payroll run.

[37] Further, no evidence, or cogent argument, has been advanced by Ai Group which points to any problems associated with the current award requirement entitlement.

[38] It is also relevant that the principal employer organisation, the Private Hospital Industry Employer Associations, raised no objection to the variation of the model term in the manner proposed by the ANMF.

[39] We agree with the ANMF’s proposed amendments to the model term and will vary the Nurses Award accordingly. The ANMF’s amendments simply seek to retain more favourable entitlements which are currently in the Nurses Award.

[40] In all the circumstances we are satisfied that the amendments proposed by the ANMF are appropriate.

[41] A draft variation determination will be published shortly, interested parties will have 7 days to comment. If no comments are received, we will proceed to issue a final determination in the same terms as the draft.

Timber Industry Award 2010

[42] On 21 September 2018, 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. Ai Group further advised that the discussions had not resulted in an agreed position between the parties as to the ‘industry specific elements of the clause that should be retained if the model term is inserted into the award.’²⁴

[43] [42] 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.²⁵

[44] The AMWU and CFMMEU also submitted that they seek the retention of the following elements of the clause if the model term is inserted into the Timber Award:

•  distinct periods for payment of wages on termination dependent on whether termination takes place following notice, is a result of redundancy, or for some other reason;

•  the time periods for payment of wages on termination prescribed by the existing clause;

•  the requirement for payment at the usual place of employment; and

•  the retention of the phrase ‘any monies legally due’ that presents in the existing clause.

[45] A conference of interested parties was held on 23 August 2019. The transcript of that conference is available here. The parties are continuing to engage in discussions in order to narrow the issues in dispute, although no submissions have been received.

[46] Parties are directed to finalise these discussions and file a joint report by Friday 26 June 2020.

Vehicle Manufacturing, Repair, Services and Retail Award 2010

[47] Submissions in relation to the insertion of the model term into the Vehicle Award have been filed by:

•  Ai Group

•  AMWU

•  MTO

[48] The Motor Trades Organisations²⁶ (MTO) are seeking to vary the Vehicle Manufacturing, Repair, Services and Retail Award 2010 (the Vehicle Award) to insert a modified form of the model term.

[49] At a Mention hearing on 12 March 2020, the MTO and the AMWU indicated that they did not wish to make any further submissions or adduce any further evidence in support of their respective positions; nor did they seek an oral hearing. Both parties were content for the contested issues to be determined on the papers.

[50] In the Report of the Mention, the President noted that there were other organisations with an interest in the Vehicle Award, including Ai Group and the Shop, Distributive and Allied Employees Association (SDA) and issued the following directions:

1. If any other interested party wishes to make a submission in respect to the proposed insertion of the model payment on termination into the Vehicle Award, they should file a submission by no later than 4pm on Friday 27 March 2020.

2. If a party wishes to reply to any submissions filed pursuant to Direction 1, they should file that reply submission by no later than 4pm on Friday 7 April 2020.

3. Any party seeking an oral hearing in respect of the Vehicle Award payment of wages matter must file a request by no later than 4pm on Friday 7 April 2020. Absent such a request, the issues in dispute will be determined on the papers.

4. The Ai Group, the AMWU and the Motor Trades Organisations are asked to review the summary of their submissions at Attachment A and advise the Commission if they have any additions or corrections to make to the summary by no later than 4pm on Friday 27 March 2020.

[51] The following submissions were filed in response to those directions:

•  Ai Group – 27 March 2020 Submission – in relation to the Vehicle Award

•  AMWU – 24 March 2020 - Correspondence – nothing further to add - in relation to the Vehicle Award

•  MTO – 26 March 2020 - Correspondence – nothing further to add, rely on previous submission - in relation to the Vehicle Award

[52] The submissions of the respective parties are summarised at Attachment A to the Report of the Mention.²⁷ The parties have confirmed the accuracy of that summary and hence we need not repeat that summary here.

[53] Suffice to note that the MTO submitted that the above amendments have been discussed with the AMWU and the SDA and that there is broad agreement on these changes. Ai Group supports the variations proposed by the MTO. No submission was received from the SDA.

[54] The MTO proposes the following amendments to the model term:²⁸

‘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 but excluding commission payments under clause 44.9 of the award where such payments may become payable at a later date in relation to a person employed to perform vehicle sales related duties.

(iii) The commission payment referred to in clause 44.9 (vi) is to be made payable within 14 days of the delivery of the vehicle

(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.

(c) An employer may deduct from monies due to an employee under paragraph (a) such amount as is authorised in writing by the employee for a lawful purpose specified in the authority.

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.’

[55] The MTO’s proposed amendment to clause X(a)(ii) of the model term excludes commission payments from amounts to be paid to an employee on termination, in relation to employees engaged in vehicle sales duties. The MTO submits that commission payments may not crystallise for two or three months after the employee’s employment has terminated as commissions are paid on the delivery of the vehicle to a customer. ²⁹ The MTO also notes that in some cases vehicles have to be ordered as the dealership may not have the stock readily available and a vehicle may need to be imported from overseas, which can create considerable delays in the delivery of the vehicle and consequently the sale of the vehicle may not be finalised at the time of termination.³⁰

[56] The MTO also submits that there is some ambiguity in clause 44.9(vi) of the Vehicle Award as to when commission payments are to be paid to an ex-employee when the delivery of the vehicle occurs within three months of the termination of their employment. ³¹ MTO’s proposed new clause X(a)(iii) is an attempt to clarify the position by stipulating a 14-day period of payment that is consistent with the period of payment in existing provisions of the Vehicle Award in clause 44.9(vii).³² The MTO submitted that there have been no issues raised by any party in the past in relation to the 14-day period of payment and consequently there is no reason to amend it. ³³

[57] The MTO also sought to retain the current clause 24.4(b) of the Vehicle Award which appears as clause X(c) of their amended model clause.³⁴ The MTO acknowledged that clause X(b) of the model clause allows employers to make deductions from monies due to an employee on termination for such amounts authorised by this award or the Fair Work Act 2009 (Cth) (the Act).³⁵

[58] The proposed clause X(c) allows for the deduction of any residual monies owed by an employee to an employer at the point of the employee’s termination of employment. The MTO submits that motor trade businesses frequently grant requests for personal loans from their employees, book automotive parts and expenses on monthly accounts and even purchase second hand vehicles or other goods, usually at trade or internal prices.³⁶ Employers are said to accede to such requests where they have the capacity to carry short term debt and that employees save on interest otherwise incurred. These arrangements are said to build mutual respect, staff retention and job satisfaction.³⁷ The MTO note that this practice is relatively common and unique to the industry. On this basis it is submitted that the proposed new clause X(c) should be approved as part of the model term in this award.³⁸

[59] The MTO also submits that the proposed subclause is consistent with s. 324(1)(a) of the Act on the basis that the deduction is authorised in writing by the employee and is principally for the employee’s benefit.³⁹

[60] In its submission of 25 September 2019, the AMWU argues that it would be appropriate to make a number of amendments to the model term to keep the provision in line with the current conditions contained in clause 24.4 of the Vehicle Award (which are said to be consistent with common practice within the automotive industry).⁴⁰ The AMWU sought to rely on the proposed amendments to the model clause as set out in its submission dated 7 September 2019, as follows:

‘X. Payment on termination of employment

(a) The employer must pay an employee no later than 2 business 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) Where a person principally employed to perform vehicle sales related duties is entitled to commission payments at a later date than the date of termination, those payments will be payable within 7 days of becoming applicable.

(c) Where an employee abandons his or her employment or the employee’s employment is terminated without notice for serious and wilful misconduct the employer may pay the employee the wages and other amounts due set out in paragraph (a) within 7 business days of the termination.

(d) 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.

(e) An employer may deduct from monies due to an employee such amount as is authorised in writing by the employee for a lawful purpose specified in the authority.’

[61] The AWMU’s proposed amendment to clause X(a) requires that the employer pay the employee within 2 business days of termination, rather than ‘within 7 days after the day on which the employee’s employment terminates’ as is required under the model term.⁴¹ The AMWU submitted that this amendment is consistent with the current payment of wages on termination clause within the Vehicle Award⁴² as well as reflecting current practice. The AMWU noted that it was not aware of any evidence presented to the contrary and that ‘without a cogent and evidence-based reason for departing from the well-functioning status quo arrangements under the Vehicle Award’, the AMWU submits that these employees should not suffer a detriment.⁴³

[62] Additionally, the AMWU submits that the current practice of payment within 2 business days has caused no issues for employers, and is suitably qualified by the exceptions set out in clause X(c) which grants employers up to 7 days in circumstances where they may not be prepared to pay employees within the 2 business day time frame.⁴⁴ Further, the current conditions under the Vehicle Award are more advantageous than the model term, particularly for employees whose employment is terminated and who may face the adverse consequences of unemployment. These employees currently have the benefit of being paid expeditiously. ⁴⁵

[63] The AMWU submitted that it broadly supports the MTO’s position to amend the model clause to address the the issue of commission payments for persons engaged in vehicle sales related duties, which may become payable after termination under clause 44.9(vi) of the Vehicle Award. However, the AMWU submitted that any clause that deals with an exception for commission payments for a vehicle salesperson whose employment is terminated prior to the delivery of a vehicle, should still specify a timeframe within which such a commission must be paid (that is, from the date of delivery of the vehicle, where it is delivered within three months of the termination). The AMWU’s position is that the timeframe should reflect the 7-day timeframe provided in the model term.⁴⁶

[64] The AMWU notes that clause 44.9(vi) of the Vehicle Award provides that commissions are payable within 14 days of termination for vehicles already delivered at the time of termination but submits that the 14-day timeframe is inappropriate in the context of a commission payment that becomes due within 3-months after termination because the vehicle for which a commission is payable may not be delivered for a period of up to 3-months after termination, well beyond the period of 14-days after termination that is contemplated by clause 44.9(vi). On this basis, the AMWU submit that commission payments, once they become due after the date of termination, should be payable within a 7-day period. ⁴⁷

[65] The AMWU’s proposed new clause X(c) provides an exception to the requirement to pay wages within 2 days of termination in circumstances where an employee abandons their employment or the employee’s employment is terminated without notice for serious and wilful misconduct. In such cases, the employer has up to 7 days to pay the employee their entitlements under proposed X(c).⁴⁸

[66] There are two points of difference between the AMWU and the MTO.

[67] First, the AMWU seeks termination payments be made no later than 2 business days after the day on which the employees’ employment terminates, subject to certain exceptions:

•  persons principally employed to perform vehicle sales related duties entitled to commission payments will have those payments made within 7 days of becoming applicable; and

•  where an employee abandons their employment or is summarily dismissed, payment is to be made within 7 days.

[68] The MTO seeks that termination payments be made within 7 days, except for commission payments.

[69] We note that clause 24.4 of the Vehicle Award provides as follows:

‘Payment of wages on termination

(a) Upon termination of the employment, the employer will pay wages due to an employee:

(i) on the day of such termination;

(ii) by forwarding such wages to the employee on the next working day; or

(iii) at the employer’s place of business on a stated day not later than seven days after such termination. If the employer requires the employee to visit such place of business to collect wages then, in addition to the amount of moneys due, the employer will pay the employee an additional four hours’ ordinary pay.

Except that where an employee abandons his or her employment or the employee’s employment is terminated without notice for serious and wilful misconduct the employer will pay the wages due to the employee within two business days (not including a Saturday, Sunday or public holiday) of the termination.

(b) An employer may deduct from monies due to an employee such amount as is authorised in writing by the employee for a lawful purpose specified in the authority.’

[70] Subclauses 24.4(a)(i), (ii) and (iii) are expressed as alternatives and are subject to the exceptions dealing with the abandonment of employment and summary dismissal (in such cases payment is to be made within 2 business days).

[71] We do not propose to adopt the AMWU’s proposal. Prescribing different time periods within which termination payments are to be made, depending on the form of the termination, is apt to confuse and may lead to disputation. Nor is such a proposal consistent with the ‘need to ensure a simple, easy to understand… modern award system’ (s.134(1)(g)). We will adopt the 7-day standard proposed by the MTO and consistent with the model term.

[72] Clause 44.9 of the Vehicle Award provides:

‘44.9 Payment of commission

(a) Payment of commission, if any, to a vehicle salesperson may be negotiated between the salesperson and their employer subject to the following provisions:

(i) the basis on which commission will be paid will be committed to writing and a copy given to a vehicle salesperson within 21 days of them commencing employment and such basis will not be altered except by mutual consent or by a week’s notice in writing from the employer to a salesperson;

(ii) an employer will comply with clause 44.9(a)(i) within 21 days of such date;

(iii) an employer will within 21 days after the last day of each month furnish a vehicle salesperson with all relevant particulars of vehicles delivered and commission earned during the preceding month and thereupon such commission or any balance thereof will be payable;

(iv) commission will be deemed to accrue upon the delivery of a vehicle to the customer;

(v) where a sale is effected as a result of the efforts of two or more vehicle salespersons, the commission payable in respect of such sale will be divided between them in such proportion as they may mutually agree;

(vi) where the employment of a vehicle salesperson terminates prior to the delivery of a vehicle for which they would otherwise be entitled to commission, provided the vehicle is delivered within three months of the termination they will be paid two thirds of the commission they would otherwise have received;

(vii) where the employment of a vehicle salesperson terminates, the commission to which the vehicle salesperson is entitled in respect of vehicles which have already been delivered will be paid to them within 14 days of such termination; and

(viii) any sum payable under an agreement made pursuant to this subclause will be deemed to be payable under this award.’

[73] The MTO proposal is as follows:

‘(iii) The Commission payment referred to in clause 44.9(vi) is to be made payable within 14 days of the delivery of the vehicle.’

[74] The AMWU proposal is as follows:

‘(b) Where a person principally employed to perform vehicle sales related duties is entitled to commission payments at a later date than the date of termination, those payments will be payable within 7 days of becoming applicable.’

[75] We prefer the 7-day period proposed by the AMWU.

[76] Although clause 44.9(vii) provides for commission payments in respect of vehicles that have already been delivered within 14 days of the termination, that time period only applies where the vehicle has already been delivered. Further, a 14-day period is inconsistent with the model term. In our view a 7-day period is appropriate in all circumstances.

[77] There is one final matter. The amendments proposed by both the MTO and the AMWU authorise deductions from termination payments. The MTO proposal is in the following terms:

‘An employer may deduct from monies due to an employee under paragraph (a) such amount as is authorised in writing by the employee for a lawful purpose specified in the authority.’

[78] The proposed term is similar to current clause 24.4(b). We note that it is common ground that a feature of the industry covered by the award is that employers loan employees sums of money from time to time. The proposed term is intended to facilitate the recovery of monies loaned to an employee.

[79] Section 136(2)(a) provides that a modern award must not include terms that contravene Subdivision D of Division 3 of Part 2-3 (ss.150-1655A). Section 151 is relevant for present purposes.

[80] Section 151 provides:

‘Terms about payments and deductions for benefit of employer etc.

A modern award must not include a term that has no effect because of:

(a) subsection 326(1) (which deals with unreasonable deductions for the benefit of an employer); or

(b) subsection 326(3) (which deals with unreasonable requirements to spend or pay an amount); or

(c) subsection 326(4) (which deals with deductions or payments in relation to employees under 18).’

[81] The Explanatory Memorandum provides a guide as to the purpose of s.151:

‘587. Clause 151 prohibits a modern award from including a term that is of no effect because:

•  the term includes unreasonable payments and deductions for the benefit of an employer (subclause 326(1)); or

•  the term relates to unreasonable requirements in relation to how employees spend their wages or other amounts (subclause 326(3)).

588. Although such terms are of no effect, this clause ensures that such terms are not included in awards, as their inclusion (even though inoperative) could be confusing and create uncertainty.’

[82] Paragraphs 151(a) and (c), which refer to various subsections in s.326, are particularly relevant.

[83] Section 326 is in Division 2 – Payment of Wages in Pt 2-9 of the Act (ss.323-327). Section 323 provides, relevantly for present purposes:

‘323 Method and frequency of payment

(1) An employer must pay an employee amounts payable to the employee in relation to the performance of work:

(a) in full (except as provided by section 324); and

(b) in money by one, or a combination, of the methods referred to in subsection (2); and

(c) at least monthly.

Note 1: This subsection is a civil remedy provision (see Part 4-1).

Note 2: Amounts referred to in this subsection include the following if they become payable during a relevant period:

(a) incentive-based payments and bonuses;

(b) loadings;

(c) monetary allowances;

(d) overtime or penalty rates;

(e) leave payments.’

[84] Section 324 deals with ‘permitted deductions’, the relevant part states:

‘(1) An employer may deduct an amount from an amount payable to an employee in accordance with subsection 323(1) if:

…

(a) the deduction is authorised by or under a modern award or an FWC order;

…

Note 2: Certain terms of modern awards, enterprise agreements and contracts of employment relating to deductions have no effect (see section 326). A deduction made in accordance with such a term will not be authorised for the purposes of this section.’

[85] Section 326 provides that certain terms have no effect:

‘Unreasonable deductions for benefit of employer

(1) A term of a modern award, an enterprise agreement or a contract of employment has no effect to the extent that the term permits, or has the effect of permitting, an employer to deduct an amount from an amount that is payable to an employee in relation to the performance of work, if the deduction is:

(a) directly or indirectly for the benefit of the employer or a party related to the employer; and

(b) unreasonable in the circumstances.

(2) The regulations may prescribe circumstances in which a deduction referred to in subsection (1) is or is not reasonable.

Unreasonable requirements to spend or pay an amount

(3) A term of a modern award, an enterprise agreement or a contract of employment has no effect to the extent that the term:

(a) permits, or has the effect of permitting, an employer to make a requirement that would contravene subsection 325(1); or

(b) directly or indirectly requires an employee to spend or pay an amount, if the requirement would contravene subsection 325(1) if it had been made by an employer.

Deductions or payments in relation to employees under 18

(4) A term of a modern award, an enterprise agreement or a contract of employment has no effect to the extent that the term:

(a) permits, or has the effect of permitting, an employer to deduct an amount from an amount that is payable to an employee in relation to the performance of work; or

(b) requires, or has the effect of requiring, an employee to make a payment to an employer or another person;

if the employee is under 18 and the deduction or payment is not agreed to in writing by a parent or guardian of the employee.’

[86] As set out earlier, s.151 relevantly provides that a modern award must not include a term which has no effect because of ss. 326(1) and (4).

[87] It seems to us that the terms proposed by the MTO and AMWU are terms that permit ‘an employer to deduct an amount from an amount that is payable to an employee in relation to the performance of work’ and such a deduction is ‘directly or indirectly for the benefit of the employer’.

[88] The central question is whether such a deduction is ‘unreasonable in the circumstances’ within the meaning of s.326(1)(c)(ii). This expression was considered by Bromberg J in Australian Education Union v State of Victoria (Department of Education and Early Childhood Development) 49 (AEU).

[89] In the course of his judgment in AEU, Bromberg J made a number of general observations about the proper construction of s.326. In particular, His Honour concluded that whether a deduction is ‘unreasonable in the circumstances’ is a question of fact and degree dependent upon the relevant surrounding circumstances and then proceeded to identify a number of considerations that are likely to be relevant (though not exhaustive). These considerations appear at [177] – [182] of the judgment and those which are relevant in the present context may be summarised as follows:

1. Consideration must commence from the premise that the ultimate purpose of the scheme is to protect employees from practices that have the effect of denying them the benefit of the remuneration they have earned and are thus entitled to fully enjoy.

2. The extent to which the employer or its related party has benefited will likely be relevant. It will be relevant to assess whether the employee has been taken advantage of in some way, with the result that part of the benefit of his or her remuneration has been lost to the employer. A benefit to the employer is not, of itself, a reason for finding that a deduction was unreasonable. There is nothing wrong in an employer gaining a benefit, but, if that benefit is gained at the expense of the employee, that would tend to indicate unreasonableness. It is the possibility of an unreasonable transfer of the benefit from its intended recipient—the employee—to the employer, which is fastened upon by s.326(1)(c).

3. The phrase ‘in the circumstances’ is of wide import and a broad approach is to be taken to the extent of the circumstances which are considered.

[90] To address these issues we propose to add the following sentence to clause X(c) in the MTO draft:

‘Any such deduction must not be unreasonable in the circumstances.’

[91] We note that this formulation is consistent with the standard “Termination of Employment” term in modern awards.

[92] The amendment we propose to make is in the following terms:

‘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) Where a person principally employed to perform vehicle sales related duties is entitled to commission payments at a later date than the date of termination, those payments will be payable within 7 days of becoming applicable.

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

(d) An employer may deduct from monies due to an employee under clause X (a) such amount as is authorised in writing by the employee for a lawful purpose specified in the authority. Any such deduction must not be unreasonable in the circumstances.

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: Clause X(c) 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.’

[93] A draft variation determination will be published shortly. We note that the Full Bench in AM2020/17 has issued a final variation determination varying the Vehicle Manufacturing, Repair, Services and Retail Award 2010. The award will become the Vehicle Repair, Services and Retail Award 2020 on 29 May 2020 and the draft determination we issue will be in relation to the new 2020 award. Interested parties will have 7 days to comment. If no comments are received, we will proceed to issue a final determination in the same terms as the draft.

Waste Management Award 2010

[94] Clause 24.3 in the Waste Management Award 2010 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.’

[95] We note that the 2010 Award has been replaced by the 2020 Award, effective 30 April 2020. Clause 17.3 is the comparable provision in the 2020 Award and it is in substantially same terms as clause 24.3 of the 2010 Award.

[96] The words ‘as soon as possible’ do not provide a time period for payment on termination and the parties with an interest in this award were asked to engage in discussions to see if an agreed position could be reached.

[97] 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. ⁵⁰ The AMWU, AWU and TWU all oppose the insertion of the model clause.⁵¹

[98] In the July 2019 decision the Full Bench directed all interested parties to file submissions in support of their respective positions by 21 August 2019. Any submissions filed were to 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).

[99] Ai Group filed a submission in which it contended that the Waste Management Award should be amended to include the model term and to clarify that clauses 24.1 and 24.2 operate subject to clause 24.3.⁵² Clauses 24.1 and 24.2 of the 2010 Award are now clauses 17.1 and 17.2 of the 2020 Award which provide as follows:

‘17.1 All earnings, including overtime, must be paid in the employer’s time on a day to be fixed by the employer. Once fixed, the day must not be altered more than once in 3 months.

17.2 All earnings, including overtime, must be paid within 3 days of the end of the week in which they accrue.’

[100] In the August 2019 decision, the Full Bench directed parties wishing to file submissions in reply to do so by 25 September 2019 and advised that this matter will be determined on the papers unless an interested party requests an oral hearing. ⁵³ No party requested an oral hearing.

[101] In its reply submission, ABI supported the inclusion of the model term into the Waste Management Award.⁵⁴ ABI submitted that the current clause in the Waste Management Award is impractical and vague in its operation, rendering it inconsistent with the modern awards objective. ABI also submitted that there is significant uncertainty as to what might constitute a period which is ‘as soon as possible’ and what factors are to be considered regarding whether a payment could possibly have been made earlier. ⁵⁵

[102] We agree with ABI that the current provision is vague and creates uncertainty about the period for payment on termination. We have decided that the award should be varied to include a modified version of the model term.

[103] We propose retaining the current expression ‘all money due’. The varied clause 17.3 will read:

(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 the award and the NES.

(b) The requirement to pay wages and other amounts under clause 17.3 (a) is subject to further order of the Commission and the employer making deductions authorised by this award or 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 required minimum period of notice or “has paid” to the employee payment instead of giving them notice.

Note 2: Clause 17.3(b) allows the Commission to make an order delaying the re requirement to make a payment under clause 17.3. 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.

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.⁵⁶

[104] We will also clarify that clauses 17.1 and 17.2 operate subject to clause 17.3 We will publish a draft variation determination shortly. Interested parties will have 7 days to comment. If no comments are received, we will proceed to issue a final determination in the same terms as the draft.

3. The Variation Applications – General

3.1 Procedural matters

[105] Applications have been made by Ai Group, ABI and NatRoad to insert the model term in the following 17 modern awards:

•  Aged Care Award 2010

•  Black Coal Mining Industry Award 2010

•  Building and Construction General On-site Award 2010

•  Business Equipment Award 2010

•  Dry Cleaning and Laundry Industry Award 2020

•  Electrical, Electronic and Communications Contracting Award 2010

•  Food, Beverage and Tobacco Manufacturing Award 2010

•  Graphic Arts, Printing and Publishing Award 2010

•  Manufacturing and Associated Industries and Occupations Award 2010

•  Meat Industry Award 2020

•  Mobile Crane Hiring Award 2010

•  Passenger Vehicle Transportation Award 2020

•  Plumbing and Fire Sprinklers Award 2010

•  Road Transport and Distribution Award 2020

•  Road Transport (Long Distance Operations) Award 2020

•  Seafood Processing Award 2020

•  Supported Employment Services Award 2010

[106] In the July 2019 decision, we noted that parties had not yet had the opportunity to make submissions and adduce evidence in relation to these applications and accordingly, the applicants were invited to file submissions and any evidence in support of the applications by 4pm on 21 August 2019. In accordance with these directions, submissions were received from:

•  ABI⁵⁷

•  Ai Group⁵⁸

•  HIA⁵⁹

•  NatRoad⁶⁰

[107] In the August 2019 decision,⁶¹ interested parties were invited to file submissions and evidence in reply by 4pm on 25 September 2019. The following submissions were received:

•  AMWU⁶²

•  CEPU⁶³

•  CFMMEU (C & G)⁶⁴

•  CFMMEU (Manufacturing)⁶⁵

•  CFMMEU (M & E)⁶⁶

•  Master Builders Australia⁶⁷

•  Master Plumbers Australia⁶⁸

[108] In the August 2019 decision, the Full Bench said that a Mention would be listed in due course.

[109] A Mention held on Thursday 12 March 2020 was attended by:

•  ABI

•  Ai Group

•  AMWU

•  AWU

•  CEPU

•  CFMMEU (C & G)

•  CFMMEU (Manufacturing)

•  CFMMEU (M & E)

•  HIA

•  MBA

•  MTA SA

•  NATROAD

•  VACC

[110] A copy of the transcript of the Mention is here. A Report of the Mention was published on 13 March 2020.

[111] All parties confirmed that the list of submissions set out above was accurate and most parties indicated that they did not wish to make any further submissions or adduce any further evidence.

[112] The AWU, on behalf of the AMIEU, submitted that the application to vary the Meat Industry Award 2020 was opposed. The AMIEU subsequently confirmed its opposition in correspondence, stating that:

‘the AMIEU remains opposed to the model clause being inserted into the Meat Industry Award 2010 as that award already properly deals with those issues, as submitted by Mr S Crawford on behalf of the Union at today’s hearing.’

[113] HIA raised that it has a claim in relation to the frequency of payment of wages in the Building and Construction Award 2010 (Building On-site Award) which remains outstanding.

[114] In the Report of the Mention, HIA was directed to confer with the other parties with an interest in the Building On-Site Award with a view to reaching an agreed position on the way forward. The HIA subsequently filed draft directions and the Commission issued the following directions on 22 April 2020:

‘1. All parties supporting HIAs application shall file comprehensive written submissions and any witness statements or documentary material on which the party seeks to rely on by 5.00pm Wednesday 13 May 2020.

2. Any interested party which wishes to adduce evidence and/or make submissions in reply to any of the evidence and submissions filed in accordance with direction (1) shall file such evidence and/or submissions in the Commission by 5.00pm Wednesday 17 June 2020.

3. All submissions and evidence shall be sent to [email protected]

4. A mention will be scheduled for the end of June 2020.

5. Liberty to apply.

Note: All parties must file new submissions in accordance with the above directions (parties may refer to previous submissions and rely on them, but absent a submission in accordance with these directions we will not be having regarding to any previous submissions).’

[115] While no party at the Mention sought an oral hearing, a number wished to reserve their position in relation to whether they wished to cross-examine any of the witnesses in respect of their evidence.

[116] The Report of the Mention directed that any party seeking an oral hearing in respect of these applications to vary file a request by no later than 4pm on Friday 7 April 2020. Absent such a request, all applications to vary would be dealt with on the papers. No party requested an oral hearing and nor was there any request to cross-examine any of the witnesses.

[117] Since the publication of the Report of the Mention on 12 March 2020, the following submissions have been filed:

•  ABI – 19 April 2020 – Submission – in relation to the Aged Care Award, Business Equipment Award, Supported Employment Services Award, Dry Cleaning and Laundry Award, Plumbing and Fire Sprinklers Award, Meat Industry Award, Passenger Vehicle Transportation Award, Road Transport and Distribution Award, Road Transport (Long Distance Operations) Award, Food and Beverage Award, Graphic Arts Award, Manufacturing Award and the Waste Management Award.

•  AMIEU – 12 March 2020 - Submission – opposing insertion of model term - in relation to the Meat Award

•  Ai Group – 19 April 2020 – Submission – in relation to the Aged Care Award, Black Coal Award, Building Onsite Award, Business Equipment Award, Electrical Contracting Award, Food and Beverage Award, Manufacturing Award, Meat Award, Mobile Crane Award, Plumbing Award, Road Transport (Long Distance Operations) Award and the Seafood Processing Award

•  Ai Group – 27 March 2020 Submission – in relation to the Vehicle Award

•  AMWU – 24 March 2020 - Correspondence – nothing further to add - in relation to the Vehicle Award

•  CFMMEU – C & G – 23 March 2020 - Submission - in relation to the Building Onsite Award

•  Health Services Union – 17 April 2020 – Submission – in relation to the Aged Care Award and the Supported Employment Services Award

•  Housing Industry Association – 20 March 2020 - Submission - in relation to the Building and Construction Award

•  Motor Trades Organisations – 10 March 2020 - Submission in relation to the Vehicle Award

3.2 General submissions

[118] This section summarises the general submissions in respect of the variation determinations and makes some observations and findings in respect of those submissions.

3.2.1 ABI and Ai Group submissions

[119] ABI seeks to insert the model term into the following 12 modern awards:

•  Aged Care Award;

•  Business Equipment Award 2010;

•  Dry Cleaning and Laundry Industry Award 2020;

•  Food, Beverage and Tobacco manufacturing Award 2010;

•  Graphic Arts, Printing and Publishing Award 2010;

•  Manufacturing and Associated Industries and Occupations Award 2010;

•  Meat Industry Award 2020;

•  Plumbing and Fire Sprinklers Award 2010;

•  Passenger Vehicle Transportation Award 2010;

•  Road Transport and Distribution Award 2020;

•  Road Transport (Long Distance Operations) Award 2020; and

•  Supported Employment Services Award 2010.

[120] ABI contends that the existing terms which require termination payments to be processed immediately; on the day of termination; at the end of the formal notice period; the next working day or ‘forthwith, are impractical and inconsistent with the modern awards objective’. Five reasons are advanced in support of this contention.

1. The growth in EFT transactions has changed the way employees receive termination payments.

ABI contends that there has been ‘an overall increase in the reliance on EFT transactions as a means of processing wage payments by employers [and] over the past two decades, there has been a marked increase in EFT payroll payments and a marked decrease in the usage of cheques by employers as a means of paying employee wages.⁶⁹

‘Unlike when employees were once paid in cash or by cheque and needed to physically pick up their wages and would have to wait around to receive their payments, electronic funds transfer mean that employees can receive their entitlements with minimal effort (other than having a bank account) and there is no detriment to employees receiving their payments when the correct payment can be made as soon as practicable, with 7 days’⁷⁰

2. The provisions apply to all terminations, including those which arise summarily. In some cases, such as summary dismissal, ‘payroll departments are provided with minimal timeframes within which to process a termination payment, award provisions requiring termination payments to be made on the day of termination may be impossible to comply with’⁷¹. ABI submits that if an award provision is impossible to comply with it is inconsistent with the establishment of a ‘fair and relevant safety net’, as required by s 134(1).

3. Employers can have difficulty promptly obtaining wage information necessary to process payments immediately;

‘When employers process termination payments, payroll departments obviously require up-to-date information regarding hours worked by the employee prior to the termination.

Payroll also requires accurate leave accrual data. Processing payments without this type of critical information would likely expose an employer to problematic underpayment and overpayment scenarios. Overpayments might be particularly

Accurate time keeping records relating to hours of work are not necessarily readily at hand for payroll officers. Rather, payroll departments often require employee hours to be entered into a timekeeping system and approved by the relevant supervisors before payments can be processed.

The difficulty in immediately obtaining accurate timekeeping records reinforces the notion that the existing award provisions regarding termination payments are inconsistent with the establishment of a ‘fair and relevant minimum safety net’’.⁷²

4. Employers sometimes need time to make funds available for payments and it should not be assumed that employers have substantial cash flow to make termination payment on notice:

‘Businesses of all sizes may need to transfer funds from other accounts in order to process a termination payment. This is particularly the case where a long serving employee is due substantial termination entitlements such as long service leave.

The cash-flow problem associated with making payments immediately and without prior notice reinforces the notion that the existing award provisions regarding termination payments are inconsistent with the establishment of a “fair and relevant minimum safety net”, for the reasons previously outlined at 5.7 above’⁷³

5. Processing termination payments manually in order to comply with award provisions takes time and imposes an administrative cost on employers:

‘This is because the processing of a termination payment outside of an ordinary pay cycle requires a manual transaction to take place. A specific officer would need to collate the relevant timesheet records for the employee in question and then process a specific transaction for the relevant employee. This takes time which is additional to the time spent on automatic pay runs that proceed through an ordinary pay cycle.

The additional time associated with manually processing termination payments, in order to ensure award compliance, results in an inefficient work process - which is inconsistent with section 134(1)(d) of the FW Act (which seeks to promote the efficient and productive performance of work).’⁷⁴

[121] Ai Group has filed an application to vary the following 14 modern awards:⁷⁵

•  Aged Care Award 2010;

•  Black Coal Mining Industry Award 2010;

•  Building and Construction General On-site Award 2010;

•  Business Equipment Award 2020;

•  Electrical, Electronic and Communications Contracting Award 2010;

•  Food, Beverage and Tobacco Manufacturing Award 2010;

•  Graphic Arts, Printing and Publishing Award 2010;

•  Manufacturing and Associated Industries and Occupations Award 2010;

•  Meat Industry Award 2020;

•  Mobile Crane Hiring Award 2010;

•  Plumbing and Fire Sprinklers Award 2010;

•  Road Transport and Distribution Award 2020;

•  Road Transport (Long Distance Operations) Award 2020; and

•  Seafood Processing Award 2020.

[122] Ai Group notes that in the awards it seeks to vary:

‘there is significant diversity in the way in which these provisions regulate the payment of wages on termination. This includes the awards treatment of the amounts that fall due under the relevant provisions, the time period within which payment is to be made and the method by which such payment must be made’.76

[123] Ai Group advances eleven broad lines of argument in support of its contention that the insertion of the model term in the awards which are the subject of its application is necessary to ensure that those awards achieve the modern awards objective, as set out below:

1. The current provisions are unfair to employers in that:

•  they mandate the payment of ‘potentially significant sums of money … within a very limited time period’;

•  they impose additional costs on employees due to the need to administer an additional pay run;

•  employers are required to make the payment with little or no notice where an employee resigns without providing notice; In such circumstances the employer is ‘not able to plan or pre-arrange for the payment that must be made’.

2. The current provisions may be unfair to employees in circumstances where they do not regulate the payment of amounts other than wages.

3. The current provisions do not strike a fair balance between the interests of employers and employees.

4. The current provisions do not constitute a ‘relevant’ safety net (within the meaning of s.134(1)), in that ‘they are antiquated and fail to take into account modern payroll systems and the prevalence of payment by EFT’.

5. If left unvaried the awards which are the subject of Ai Group’s claim would be ‘out of step with the 86 awards that have been varied to include the Model Clause.

6. Many of the awards which are the subject of Ai Group’s application contemplate that termination payments may be sent to the employee by post. Australia Post terms and conditions prohibit sending cash in excess of $200 by post. Consequently, posting termination payments in cash will not constitute a viable alternative.

7. The insertion of the model term will not detract from the maintenance of relative living standards and the needs of the low paid.

8. The variations proposed would ‘not undermine’ the need to encourage enterprise bargaining.

9. The variations proposed are ‘consistent with the need to promote flexible modern work practices and are likely to have a positive impact on business’.

10. The variations proposed are consistent with the need to ensure a simple easy to understand modern award system.

11. The variations proposed are ‘unlikely to have an adverse impact on employment growth, inflation or the sustainability, performance and competitiveness of the national economy.

3.2.2 AMWU and CFMMEU (C & G) submissions

[124] The AMWU and the CFMMEU (C & G) both made comprehensive submissions directed at a number of modern awards.

(i) The AMWU submissions

[125] The AMWU’s submission concerns the following awards:

•  Manufacturing and Associated Industries and Occupations Award 2010

•  Graphic Arts and Printing Award 2010

•  Building Construction General On-site Award 2010

•  Food Beverage and Tobacco Award 2010

[126] The AMWU submits that the applications should be dismissed as:

‘The variations are not necessary for the relevant awards to achieve the modern awards objectives. There has been no evidence in support of the basis of the claim, no merits-based case, leave alone any probative evidence to demonstrate why the proposed variation is necessary in order to achieve the modern award objective.

The proposed variations fail to provide industry specific circumstances that warrant the change, no evidence about difficulties with the existing award provisions, or the practical improvements or otherwise of the variations sought.’⁷⁷

[127] The AMWU contends that the timeframes set out in the awards for the payment of termination monies “have been complied to without difficulty and will continue to do so”.⁷⁸ The AMWU submits that this is so due to “the evolution in payroll practices currently used by employers in payroll administration and in compliance with the Australian Taxation Office (ATO) for reporting employee payment”.⁷⁹

[128] At [17]-[23] of its submissions the AMWU describes “Single Touch Payroll” (STP) which automatically provides payroll and superannuation data to the ATO when the payroll is processed. STP has been a regulatory requirement since 1 July 2019.

[129] The AMWU also refers to the impact of the proposed variations on employees including potential delays in accessing Newstart (see [27]-[30]). We note that we addressed a similar submission in our decision of 1 December 2016⁸⁰ and concluded as follows:

‘We think an appropriate balance between the various consideration is for the model term to provide that all unpaid wages and all other amounts due to an employee under the modern award and the NES are to be paid ‘no later than 7 days after the employee’s last day of employment.’81

[130] The AMWU filed a witness statement by Mr Warren Soos, AMWU’s National Operations Coordinator. In his current role Mr Soos oversees the payroll activities for the AMWU’s 240 employees. Mr Soos notes that employee details and their entitlements are now generally held on dedicated payroll packages. Mr Soos also states:

‘It has been my experience that manual calculations through an established template for termination payments take about 20 minutes to do for a single employee and payments can generally be made within 24 hours. The payment can be made outside of the general pay quite cycle easily. It involves no more administrative work than that would be required for paying an invoice on the same day.

Preceda provides the data for the entitlements due, and the bank transfer is made via NAB Connect. Any payments that are made outside of the usual payment cycle do incur a minimal charge, but so do most transactions in commercial banking.

Payment between financial institutions used to take between 2-3 days. Now a payroll payment made from the AMWU bank account will arrive in the employee’s bank account in the same day. This is what happens with my own pay from the AMWU…

It has been my experience that the rise of electronic banking, and payroll software has dramatically decreased the administrative tasks a payroll officer must undertake when calculating employee entitlements, whether end of payment or otherwise.’⁸²

[131] Mr Soos was not required for cross examination.

[132] In response to the evidence of Mr Soos, Ai Group submits:

‘The AMWU has filed a witness statement from its own payroll officer. The statement goes no further than to describe the payroll practices of the union. It says nothing of the experience of employers covered by the relevant awards, using different payroll systems, different banking systems or of the application of the extant provisions to a range of different types of terminations.

The evidence is of limited if any probative value and should be afforded very little weight.’⁸³

[133] We reject Ai Group’s submission that the evidence is of little probative value and should be afforded little weight. Moreover, Ai Group did not lead any evidence about employer experience and differences it describes in its submission or about how the matters described might impact on the timeliness of payments made to employees on termination of employment.

[134] As to Ai Group’s contention that the evidence says ‘nothing of the experience of employers covered by the relevant awards’, that may be so, but it is the best evidence available to us in circumstances where Ai Group has chosen to lead no evidence. We accept Mr Soos’ evidence and note that it supports the submissions advanced by the AMWU.

[135] We note the AMWU’s submission regarding the impact of a change in the timeframe for the payment of termination payments. 84 We have dealt with this argument previously and took it into account in our formulation of the model term.

(ii) The CFMMEU (C & G) submissions

[136] The CFMMEU (C & G) submission is directed at the following awards:

•  Building and Construction General On-site Award 2010;

•  Manufacturing and Associated Industries and Occupations Award 2010; and

•  Mobile Crane Hiring Award 2010.

[137] Similar to the position advanced by the AMWU, the CFMMEU (C & G) submits that the applications should be dismissed:

‘as the applicants have failed to provide a sufficient merit based argument to justify the removal of existing provisions in specific awards. Indeed when looked at more closely many of the arguments in support are clearly lacking in merit.’85

[138] The CFMMEU (C & G) notes that there is no evidence from employers in the building and construction industry that they have not been able to meet the payment on termination timeframe requirements set out in the relevant awards.

[139] We note that the CFMMEU (C & G) referred to the July 2019 decision in which, it submits, we had identified the matters to be addressed in submissions in support of a variation to an existing termination payment term, including:

•  the circumstances pertaining to the relevant industry (such as the number and size of the enterprises covered by the award, 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).

[140] The CFMMEU (C & G) has taken our observations out of context. The relevant part of the July 2019 decision was dealing with a proposed variation to the model term to be inserted into the Aluminium Industry Award 2010 which had been agreed by Ai Group and the AWU.

[141] 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.’

[142] The Aluminium Award provided 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 provided:

‘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.’

[143] 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’.’

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

[145] At [19] of the July 2019 decision we said:

‘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).’

[146] In so deciding it was not our intention to prescribe the matters to be addressed in support of any variation to a termination payment in a modern award. The remarks were confined to the particular variation proposed to the Aluminium Industry Award 2010.

[147] Attached at Appendix A to the CFMMEU (C & G) submissions is a witness statement from Hemal Patel, a Chartered Accountant who is familiar with modern payroll systems.

[148] Mr Patel is a chartered accountant and the Finance Manager for the CFMMEU (C & G) National Office of the Qld/NT Branch of the union. He has over 8 years’ experience in analysing payroll systems including 5 years auditing payroll systems. At [4]-[9] of his statement, Mr Patel says:

‘In my experience there has been a major shift in payroll systems from manual paper based systems to cloud-based computer systems. The modern payroll systems used today have removed much of the administrative burden on companies and the use of smart phone apps associated with the cloud-based systems enable employees to update and review timesheets, wages paid and leave entitlements. This information is now provided in real-time, including annual leave accruals, and can be accessed 24 hours a day.

The introduction of the New Payments Platform in February 2018 has meant that payments between financial institutions can now be made at the click of a button and the funds accessed almost immediately by the recipient.

Changes in federal legislation now require all employers to report to the Australian Taxation Office through Single Touch Payroll. This requires employers to report their employees’ payroll information, such as salaries and wages, pay as you go (PAYG) withholding and super information to the ATO each time the employer pays them. Employers using Single Touch Payroll are no longer required to issue group certificates as this information is now stored electronically by the ATO and can be accessed by employees through the MyGov website.

Employers are also required to make superannuation payments through SuperStream. SuperStream is the way businesses must pay employee superannuation guarantee contributions to super funds. With SuperStream money and data are sent electronically in a standard format between employers, funds, service providers and the ATO.

In my experience the shift to electronic banking and computer based payroll systems has removed the administrative burden on employers who previously used paper based and spreadsheet payroll systems. It is now far simpler and quicker to make payments to employees including out of pay cycle payments.

In my experience the use of modern payroll systems and online tools provided by the ATO and FWO have simplified the calculation of redundancy entitlements and the tax to be deducted.’

[149] Mr Patel was not required for cross examination. We accept his evidence and note that it supports the submissions advanced by the CFMMEU (C & G).

[150] The various payroll systems described in Mr Patel’s statement are referred to in more detail in the CFMMEU (C& G) submission. The accuracy of that descriptive material has not been challenged by any other party and we set it out below.

[151] SuperStream legislation was passed in 2012 and came into effect for small businesses midway through 2015.⁸⁶ According to the ATO website:

‘SuperStream is the way businesses must pay employee superannuation guarantee contributions to super funds. With SuperStream money and data are sent electronically in a standard format.

It must be used by:

•  Employers

•  self-managed super funds

•  APRA-regulated funds

SuperStream transmits money and information consistently across the super system – between employers, funds, service providers and the ATO. The data is linked to the payment by a unique payment reference number.

This means:

•  employers can make all their contributions in a single transaction, even if they're going to multiple super funds

•  contributions and rollovers can be processed faster, more efficiently and with fewer errors

•  people can be more reliably linked to their super, reducing lost accounts and unclaimed monies.

All employers should be SuperStream compliant.’⁸⁷

[152] The introduction of SuperStream has significantly reduced the time taken by employers to pay superannuation to different funds. According to the ATO website:

‘Under SuperStream, employers are required to make super contributions electronically in a standard format. A significant benefit is the reduced time and cost it takes for employers to meet their super obligations.

Thousands of small employers have already made the change to SuperStream. Many employers now using SuperStream have reported they are experiencing significant benefits.

Accountant Peter Shonhan of Kennas Chartered Accountants said the move to SuperStream has cut down time spent on paying super considerably.

“We upgraded our payroll software and have been recommending our employer clients to do the same. What previously took around a day per month now takes less than an hour. The time savings are pretty high and allows us to focus on other parts of the business,” said Mr Shonhan.

“SuperStream changes are much like the move to internet banking. There are a few steps to set things up, but, after that, making super contributions is so much easier and faster than before. We couldn’t imagine going back to our old methods,” he said.

Philip Hind, ATO National Program Manager, Data Standards and E-Commerce (SuperStream), said SuperStream is delivering real benefits for business.

“SuperStream is making super contributions super simple. For employers, it is cutting red tape by making all super payments electronic and introducing a standard way to pay contributions.”

“Previously, it has been time consuming for employers who had to make multiple super contributions to numerous funds with many also using cheques to make payments.

“For many employers paying super took hours. Under SuperStream, employers need now make just one electronic transaction covering all employees – and this can considerably cut the time it takes to make super contributions.’⁸⁸

[153] The Single Touch Payroll System was introduced by the Federal Government in 2016 and applied to employers with 20 or more employees who were required to start reporting from 1 July 2018. Legislation has been passed to extend Single Touch Payroll (STP) reporting to include all small employers (those with fewer than 20 employees) from 1 July 2019.

[154] The ATO provides information for employers on the Single Touch Payroll system.⁸⁹ According to the ATO, the rules of reporting through Single Touch Payroll are the following:

‘Each time you send us your Single Touch Payroll (STP) report it will include minimum reporting requirements in order for you to meet your STP obligations.

Your updated software will capture the data we require. We have outlined these requirements below.

You are required to report a pay event to the ATO on or before the pay day. The pay day is either the payment date stipulated in the electronic transaction to your financial institution or, if you did not stipulate a date for payment, the date you intend to make the payment into your employee's bank account.

If you include out-of-cycle payments in your regular pay event, report the date of your regular pay day.

The report must include, at a minimum, each employee with an amount subject to withholding paid in that regular pay cycle. The report may include information for other employees.

You must report the year-to-date values of gross salary or wages, allowances or other payments (as relevant), deductions and PAYG withholding for each employee included in that pay event.

…….

You must report year-to-date employer super liability or ordinary time earnings (OTE) amounts for each employee in that pay event.

If you pay above the minimum super guarantee (SG) liability, report this higher amount if you can't separately identify these in your payroll solution.

Where you cannot report super liability you must report the year-to-date OTE amount.

You can report both OTE and employer superannuation liability if your payroll solution allows.

We will compare the amounts you report with information we receive from super funds. If we identify your contributions vary significantly from the liability reported, we will contact you.

……..

You may lodge multiple pay event files for the same day. Your system will generate a time stamp which is used to identify the latest record for each employee to ensure the employee’s myGov display recognises the latest record.’⁹⁰

[155] The ATO provides information on free and low-cost available payroll software programs which meet the requirements of the ATO.⁹¹ The service providers include the major payroll software companies including MYOB and Zero.

[156] According to the MYOB website⁹² their MYOB Essentials software can do the following for employers:

•  Easily meet your Single Touch Payroll (STP) obligations

•  Automatically calculate tax and superannuation

•  Update automatically every time tax law changes

•  Doing payroll for a few employees is the same effort as 20 or more

•  Let your employees fill out timesheets and see payslips on their mobiles

•  Run detailed reports on past pay runs, YTD activity, and more.

[157] Zero has a low-cost product that that performs similar functions and which can:

‘Eliminate manual calculations and errors

Our Payroll software automatically calculates pay and tax rates, leave entitlements, helping you pay employees the right amount, every time.

Track working hours with built-in timesheets

Record employee hours and have them seamlessly appear in pay runs for automated calculation and payment.

Employees can self-service

Reduce the payroll load by giving your employees the power to apply for leave, submit timesheets and view their payslips anywhere, any time with the XeroMe mobile app (iOS and Android).’⁹³

[158] For larger companies more sophisticated programs are available some of which are tailored for the building and construction industry. One such provider listed on the ATO website is the Construction Industry Solutions Limited (COINS) which has a case study on its website of a large civil construction company which reduced its’s payroll processing time from 30 hours to 8 hours per week, and dropped the outstanding timesheet rate by 95 per cent.⁹⁴

[159] The other significant development affecting payments on termination is the introduction of the New Payments Platform. According to the Reserve Bank:

‘Launched in February 2018, the New Payments Platform (NPP) is open access infrastructure for fast payments in Australia. The NPP was developed via industry collaboration to enable households, businesses and government agencies to make simply addressed payments, with near real-time funds availability to the recipient, on a 24/7 basis.’95

[160] A significant component of the New Payment Platform is the Fast Settlement Service which:

‘enables final and irrevocable settlement of individual NPP transactions in real time. Leveraging the approach employed by some stock exchanges, the FSS employs in-memory processing to enable fast settlement-processing times, with a median settlement-processing time since launch of around 50 milliseconds.’96

[161] CFMMEU (C & G) submits that the introduction of the technological changes referred to above, and the requirement that they now be used by all employers, mean that the time and administrative imposts claimed by the employer parties, of making payments on termination on the day of termination or very soon after, are illusionary.⁹⁷

[162] CFMMEU (C & G) contends that modern payroll systems and financial payments system mean that:

•  timesheets can be filled in on smart phones and approved by supervisors almost instantaneously

•  employers have readily available up to date annual leave accruals

•  employers have easy access to year to date payments for leave and superannuation payments

•  redundancy entitlements can be calculated quickly by the payroll software

•  calculation of withholding tax can be done at the press of a button

•  payments between the employers account and an employee’s account can be done in almost real time

•  one off payments to an employee, out of the normal pay cycle, can be done quickly and efficiently in a matter of minutes

[163] It is contended that these changes mean that it is now much easier for employers to make payments on termination within the existing timeframes specified in the awards, and that there is no justification for those timeframes to be increased.

[164] As to Ai Group’s observation that there is a limit of $200 in cash that can be sent by post, the CFMMEU (C & G) submits that, while this is technically correct, the awards do not say that the termination payments must be sent in cash. They say that the wages or monies owed must be sent to the employee by post. In this regard, Australia Post provides electronic domestic money transfers.

3.2.3 ABI and Ai Group reply submissions

[165] ABI and Ai Group filed reply submissions.

(i) ABI reply submissions

[166] ABI submits that, broadly speaking, the union submissions advance two key contentions:

•  the employer organisations have failed to advance any evidence to support the proposed variations; and

•  the arrival of new payment technologies means that the making of payments on the day of termination or very soon after is both possible and practical.

[167] In response to the first contention ABI submits that it is incorrect to assert that no evidence has been filed and points to material filed by ABI on 20 September 2016 ‘demonstrating the dramatic decline in the use of cheque payments and a corresponding increase in the use of electronic funds transfer (EFT) as a means of making payments’.⁹⁸

[168] The material to which ABI refers is a report by the Australian Payments Clearing Association (APCA), the self-regulatory body established by the financial payments industry. The APCA keeps statistics on the daily and monthly EFT and cheque transactions by Australian financial institutions. The APCA statistics identify all EFT transactions (not just those from employers to employees). ABI submits that “they nevertheless are helpful in identifying a substantial increase in Australia’s dependency on EFT payments at the expense of cheque payments”.⁹⁹

[169] The APCA statistics are set out in ABI’s submissions of 20 September 2016 at [5.3] as follows:

Year	Direct credits transfers per day (in millions)	Cheque use per day (in millions)
1994	1.6	3.7
2004	3.2	2.2
2014	5.3	0.7
2015	5.8	0.6
2016	6.7	N/A

[170] ABI submits:

‘In light of the above statistics, and from its own experience, the Commission is able to infer that there has been an overall increase in the reliance on EFT transactions as a means of processing wage payments by employers. That is, the Commission is able to infer that, over the past two decades, there has been a marked increase in EFT payroll payments and a marked decrease in the usage of cheques by employers as a means of paying employee wages.’100

[171] A more recent report by the APCA, “Australian Payments Network Milestones Report: The Digital Economy, Ninth Report, June 2018” confirms the trends evidence in the above table and notes, at page 5:

‘Cash

As cards and digital payments become increasingly popular, consumers are using cash less frequently.

•  In 2017, the number of ATM withdrawals dropped by 5.9% to 610.1 million – down to 1.7 million withdrawals a day. ATM withdrawals have fallen 25% since 2012.

•  The value of ATM withdrawals dropped 2.1% in 2017 to $132.6 billion, and by 11.1% since 2012.

Early indications suggest that Australians are using ATMs belonging to other banks more often, following the removal of fees to non-customers from September 2017. In January 2018, 46% of all withdrawals were made at ATMs belonging to other banks, compared to 41% in January 2017. Future Digital Economy Reports will monitor changes over time.

Cheques

Australians continue to abandon cheques at a rapid rate.

•  Cheque use plummeted by 19.7% in 2017 to 89.7 million. Since 2012, cheque use has dropped 60.0%.

•  The overall value of cheques dropped by 3.8% in 2017, and by 8% since 2012.’

[172] ABI submits that to the extent that evidence has not been filed in relation to other matters that are the subject of the submissions, some of these matters are “self-evident”.

[173] ABI provides the following examples of such “self evident” matters (at [3.4]):

‘(a) The notion that employers may not have received all timesheets pertaining to all working hours in the week or weeks preceding the termination of an employee is an automatic and inevitable consequence associated with an employee’s departure. This has been addressed in ABI and NSWBC’s previous submissions101. Briefly the self-evident nature of this issue is supported by the fact that:

(i) employers obviously have processes in place to collect working hours data on a periodic basis in order to process payroll;

(ii) where an employee departs from their employment, the departure interrupts this normal reporting arrangement; and

(iii) in some cases, it will simply be impossible to know the hours an employee has worked on the day of termination. For instance:

A. one cannot know an employee’s working hours for their last day of work until that day has actually been worked; and

B. in the case of summary terminations, the unexpected nature of these types of terminations makes it unlikely that employees will have entered the appropriate time recording information required in all cases.

(b) The notion that time may be involved in collating an employee’s final working hours and processing their accruals for the purposes of calculating payment is also not able to be contested. It is notorious that employers engage payroll specialists for the purposes of calculating such payments. It must inevitably follow that time and cost can be associated with processing payments, particularly when they might arise outside of the ordinary cycle of an employer’s payment practices.

(c) Thirdly, it should be self-evident that some level of time and consideration is required when considering how to tax various termination payments. Termination payments can be subject to a variety of differing tax treatments, including:

(i) tax free treatment for Eligible Termination Payments if part of the payment relates to before1 July 1983;¹⁰²

(ii) tax free treatment for parts of redundancy payments and early retirements;¹⁰³

(iii) concessional tax treatment for Eligible Termination Payments that relate to after 1 July 1983;¹⁰⁴

(iv) applying caps to Eligible Termination Payments, beyond which concessional tax treatment ceases to apply;¹⁰⁵

(v) applying caps to redundancy and retirement payments, beyond which concessional tax treatment ceases to apply;¹⁰⁶ and

(vi) normal marginal tax treatment for other termination payments, including accrued leave.¹⁰⁷

All of these matters need to be navigated by payroll officers as part of the calculation of a termination payment. Indeed, the ATO publishes a checklist which outlines the variety of activities required of a payroll officer on termination of an employee’s employment. The checklist, available at https://www.ato.gov.au//business/your-workers/employee---checklist/#Employeeleaves demonstrates that a number of activities do need to be completed in order to process the relevant payments.’

[174] ABI submits that the culmination of these matters:

‘makes it self-evident that, upon ceasing an employee’s employment, an employer cannot simply ‘snap its finger’ and immediately process a payment.

A fair and reasonable time needs to be afforded to the employer to arrange its affairs to process the relevant payment.’¹⁰⁸

[175] ABI contends that affording a payment timeframe of 7 days after termination ‘appropriately balances (at an industry-wide level) the type of self-evident matters outlined above with the legitimate employee need and expectation to be paid for their work promptly.’

[176] As to the unions’ contention that the arrival of new payment technologies means that employers should now be able to process payments almost immediately, ABI submits:

‘There can be no doubt that processing of payments can be streamlined through the use of technology.

However, these matters do not dispel or override the concerns raised…’¹⁰⁹

[177] ABI refers to three matters in support of its position:

(i) Timesheets:

No evidence has been filed by the unions to demonstrate that employers universally have automatic timesheet recording systems in place that rely on the seamless use of smart phones; and

The ‘experience’ of ABI (as both an employer and a representative of other employers) is that the recording of time through automated smart phone software is available, but not commonplace. ABI itself does not utilise such software and continue to process pay for employees engaged by the hour through the use of paper format or word document timesheets. These still need to be completed, authorised by the relevant manager and then submitted to payroll for processing.

(ii) Taxation amounts:

ABI accepts that some software can automatically calculate tax once the appropriate categorisation for a payment is identified. However, payroll officers still must identify the correct categorisation for particular payments, by reference to ATO or accountant advice, before processing the payment.

(iii) Processing of payments in a matter of minutes:

ABI accepts there is very limited evidence of the typical processing time required to release funds from bank accounts and transfer them into the accounts of employees.

ABI notes that three witness statements have been filed by the unions (the statements of Warren Soos, Hemal Patel and Mark Watson) which indicate that those three employees appear to have relatively instantaneous access to the funds of their employers. ABI contends that this evidence ‘goes only so far as to confirm the individual experience of the three relevant employees’ and ABI ‘do not accept that this is necessarily universally the experience of all employers.’

(ii) Ai Group reply submission

[178] In its reply submissions of 19 April 2020 Ai Group contends that:

‘None of the unions’ submissions raise matters that fundamentally undermine our August 2019 Submission; nor do they raise any matters of merit or fact specific to the relevant awards and the industries in which they operate that might suggest that a payment on termination clause that deviates from the Model Clause is warranted.’110

[179] Ai Group submits that the absence of evidence filed in support of its claims should not result in their dismissal:

‘The absence of evidence filed in support of the Ai Group Claim should not result in its dismissal. Our claim is advanced on the basis of various matters that are of obvious merit and logic, as well as decisions very recently made by the Commission regarding many of the matters that are in issue in these proceedings. Those decisions culminated in the development of the Model Clause and its insertion in the majority of modern awards. The absence of evidence is not, in those circumstances, fatal to the grant of the claim, as appears to be asserted by the AMWU.’111

[180] As to the AMWU’s reliance on the implementation of the STP scheme Ai Group submits:

‘The AMWU’s submissions rely on the implementation of the Single Touch Payroll (STP) scheme. As we understand it, the STP simply results in certain information being provided to the Australian Taxation Office each time an employer pays its employees and has resulted in an employer no longer having to produce an annual payment summary for each employee.

It is not clear to us how STP addresses the difficulties associated with administering payment on termination in accordance with the extant provisions contained in the Manufacturing Award, FBT Award, Graphic Arts Award or Building Award. Despite the implementation of the STP, it is for an employer to identify an employee’s entitlements on termination, ensure that those entitlements are correctly calculated and to administer and process that payment to the employee.

Specifically, it remains the case that:

(a) The requirement to pay potentially large sums of money within an extremely limited period of time may pose challenges associated with an employer’s cash flow.

(b) Employers may incur additional costs and a greater regulatory burden associated with administering a separate payment on termination.

(c) Depending upon the circumstances of the termination, employers may have limited opportunity to seek legal advice about an employee’s entitlements before they are required to make the payment.

Accordingly, the various grounds we have advanced in support of the Ai Group Claim remain apposite, notwithstanding the implementation of STP.’¹¹²

[181] In reply to the CFMMEU (C & G) submissions, Ai Group advanced the same points it made in response to the AMWU’s submissions. At [39] and [43] Ai Group submits:

‘39. The union’s submissions rely on the implementation of various technological developments concerning payroll processes. This includes STP. We refer to and rely on the submissions made earlier in response to similar arguments made by the AMWU in this regard…

43. The union’s evidence relates to its argument that as a result of recent developments in payroll processes, there has been a reduction in the administrative burden associated with payroll processes. We have dealt with this submission above.’

3.3 Observations about the general submissions

[182] In a Statement¹¹³ issued on 14 October 2016 (the October 2016 Statement) we expressed some provisional views in respect of this issue, which may be summarised as follows:

1. Each modern award should provide for the payment of wages and other amounts owing to an employee on termination of employment, to ensure that employers and employees are aware of their obligations and entitlements.

2. There is some utility in a common ‘payment on termination’ provision across all modern awards.

3. The default term for the payment of wages and other amounts due on termination of employment should be:

Payment on termination of employment

The employer must pay all amounts that are due to an employee under this award and the NES when the employee’s employment ends:

(a) within 7 days after the employee’s last day of employment; or

(b) on the next normal pay day.

4. There does not appear to be a sound rationale for retaining the current provisions that require payment of wages on termination within a short period after termination (such as one or two days, or ‘forthwith’) and the existing provisions in respect of payments on termination should be replaced by the default term.

[183] In the July 2018 decision¹¹⁴ we abandoned the provisional view set out point 4 above and said at ([156]):

‘The review of the remaining 36 modern awards will proceed on an award by award basis and any variation will have to be justified on its merits. We do not think it appropriate to proceed from the prima facie position that existing entitlements in respect of payments on termination should be replaced with the model term.’

[184] We would also observe that in seeking to vary a modern award, Applicants ordinarily need to adduce probative evidence properly directed to demonstrating the facts supporting the proposed variation. In the context of the Review, this evidentiary requirement was addressed in 4 Yearly Review of Modern Awards - Preliminary Jurisdictional Issues Decision¹¹⁵ as follows:

‘The need for a ‘stable’ modern award system suggests that a party seeking to vary a modern award in the context of the Review must advance a merit argument in support of the proposed variation. The extent of such an argument will depend on the circumstances. Some proposed changes may be self-evident and can be determined with little formality. However, where a significant change is proposed it must be supported by a submission which addresses the relevant legislative provisions and be accompanied by probative evidence properly directed to demonstrating the facts supporting the proposed variation.’ (emphasis added)

[185] ABI contends, in essence, that it is ‘self evident’ that when an employee’s employment ceases ‘an employer cannot simply ‘snap its finger’ and immediately process a termination payment’. We accept ABI’s contention. But, as we observe below, acceptance of that proposition does not carry the ABI and Ai Group applications the required distance.

[186] As a general proposition we accept that a fair and reasonable time period must be permitted to process termination payments. But, as ABI concedes, what is fair and reasonable in every specific context ‘will obviously differ’. Two relevant context issues are the current terms of the award and the different means by which employment may be terminated.

[187] As to the second matter, an employee’s employment may be terminated in a number of ways: by mutual agreement; at the initiation of the employer (e.g. depending on the terms of the employment contract, by giving the required notice, making a payment in lieu of notice or by summarily dismissing the employee), or it may be initiated by the employee resigning. An employment contract may also be terminated by operation of law, independently of the parties – for example, by frustration.¹¹⁶ The means by which a contract of employment is terminated determines the time at which the employment ends. A valid notice of termination operates according to its terms and brings the contract to an end when the notice expires.¹¹⁷ Where a contract permits termination by payment in lieu of notice the contract will end upon such payment being made.¹¹⁸

[188] As we said in our decision¹¹⁹ of 1 December 2016, in cases of summary dismissal and where an employee resigns their employment without giving notice it may plainly take some time to calculate accrued leave payments. In cases of redundancy the applicable taxation arrangements may depend upon the circumstances and employers (particularly small businesses) may have to obtain advice externally before processing termination payments. We also accepted that on the available data, many terminations are not initiated by the employer so that the timing of the termination of employment is not within the employer’s control.

[189] We also accept that there is likely to be a cost associated with making termination payments outside the ordinary pay cycle at the workplace. There may also be a time cost associated with obtaining immediate information about the time worked in the pay period in which termination occurred. Some employers may also be charged an additional cost for ‘out of cycle’ EFT transactions. We accept that some employers are likely to face such costs, but given the paucity of evidence directed at this issue we are not persuaded that any such costs are likely to be significant.

[190] On the basis of the APCA data relied on by ABI we also accept that an inference may be drawn that there has been an overall increase in the reliance on EFT transactions as a means of processing wage payments by employers and a marked decrease in the usage of cheques and cash by employers as a means of paying employee wages. We draw that inference.

[191] Further, based on the evidence led by the AMWU and the CFMMEU (C & G), and the concession made by ABI, we also accept that the processing of termination payments can be streamlined through the use of technology.

[192] The above observations lead us to three general propositions:

1. Where the time period within which termination payments are to be made is vague and uncertain (such as for example, payments are to be made ‘as soon as possible’ or ‘forthwith’) the award should be varied to provide that payments are to be made ‘no later than 7 days after the day on which the employee’s employment terminates’, consistent with the model term.

2. Existing terms that require termination payments to be made ‘immediately’ or on the day of termination, with no alternative means available are impracticable and invite scrutiny.

3. In contested applications to replace an existing term which provides that termination payments are to be made within a shorter timeframe than that specified in the model term (but not ‘immediately’) should be supported by probative evidence that the existing term is impractical or operates unfairly to the employers and employees covered by the relevant award. Different considerations apply to uncontested applications. While the Commission must still be satisfied that the variation is necessary to achieve the modern awards objective, it will more readily accept any uncontested assertions made in support of the application.

[193] We would also observe that, for the reasons we have given in respect to the variation of the Nurses Award (see [12] – [40]) if an existing term provides for the payment of ‘all wages and other monies owing to an employee,’ or a similar expression which is more beneficial than the model term, then in the event that the term is varied to insert the model term the more beneficial provision will be retained.

[194] We now turn to some of the specific points advanced by Ai Group.

[195] As noted at [122] (point 5) above, one of the arguments advanced by Ai Group in support of its contention that the insertion of the model term in the awards which are the subject of its application is necessary to ensure that those awards achieve the modern awards objective is:

‘If left unvaried the awards which are the subject of Ai Group’s claim would be ‘out of step within the 86 award that have been varied to include the Model Clause.’

[196] We accept that if left unvaried the awards the subject of Ai Group’s application would have a different termination term to that in the 86 modern awards that have been varied to include the model term. While uniformity across modern awards is a desirable objective; it does not, of itself, necessitate the variation of the awards which are the subject of Ai Group’s application.

[197] We accept Ai Group’s submission that the variations proposed would not discourage or undermine collective bargaining; but s 134(1)(b) speaks of the need to ‘encourage collective bargaining’. The proposed variations may be said to decrease the incentive for employers to bargain; but it is also likely that employee and employer decision making about whether or not to bargain is influenced by a complex mix of factors. We are not persuaded that the proposed variations would ‘encourage collective bargaining’. It follows that this consideration weighs against the variations proposed.

[198] We also accept, as a general proposition, that the variations proposed are ‘consistent with the need to promote flexible modern work practices and are likely to have a positive impact on business’. Further, we also accept, again as a general proposition, that the variations proposed are consistent with the need to ensure a simple easy to understand modern award system. Whether these general observations hold true in the context of a particular award depends upon the terms of the current termination payment clause.

[199] We also accept that granting the variations proposed is not likely to have any appreciable impact on ‘employment growth, inflation and the sustainability, performance and competitiveness of the national economy. On that basis s 134(1)(b) is not relevant to our consideration of these applications.

[200] We would also observe that the considerations in s 134(1)(c), (da), (e) and (h) are not relevant in the present context.

[201] We now turn to consider each of the applications to vary, award by award. In doing so we will take account of the general propositions we have set out earlier, but we accept that each modern award is to be reviewed in its own right.

4. The Specific Applications

4.1 Aged Care Award 2010

[202] The Aged Care Award 2010 provides that wages may be paid by cash or electronic funds transfer. In relation to termination payments clause 17.3 provides as follows:

‘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.’

[203] ABI and Ai Group seek to replace the current clause 17.3 with the model term.

[204] The HSU opposes the claims and contends that the current term ‘provides greater entitlements than the model term and should … be retained’. The basis for this contention is that the current term requires payment of ‘all wages and other moneys owing’ whereas the model term only provides for the payment of ‘wages and other amounts due under the award and the NES’.

[205] As mentioned earlier, contested applications in which an existing term such as clause 16.7 is sought to be replaced by the model term should be supported by probative evidence demonstrating that the existing term is impractical and operates unfairly to the employers and employees covered by the award. No such evidence was adduced by Ai Group in support of its application. We are not persuaded that it is necessary that the award be varied in the manner proposed by Ai Group to ensure that the award achieves the modern awards objective.

[206] We reject Ai Group’s application to vary the Aged Care Award.

[207] While not a model of clarity it appears that the time period specified in the current clause 17.3 only applies in circumstances where an employees’ employment is terminated by the giving of notice of termination. As acknowledged by the HSU the current term does not apply to cases of summary dismissal and payment in lieu of notice; nor does it appear to apply in circumstances where an employee resigns without providing the requisite notice.

[208] The HSU acknowledges that the current term is silent on the timing of termination payments in the case of summary dismissal and payment in lieu of notice and proposes a ‘limited variation’ to clause 17.3, by adding the following paragraph:

‘In all other circumstances, the employer must pay an employee no later than 7 days after the day on which the employee’s employment terminates all wages and other moneys owing to an employee.’

[209] In our view where the scope of a current termination payment term is sought to be extended, either to a broader class of termination or in respect of a broader range of termination entitlements, then the 7 day period in the model term should apply to the areas to which the clause is extended. Other elements of the current term can remain. In that regard we would propose to retain the entitlement to be paid ‘all wages and other moneys owing’ on termination for the reasons given in respect of the Nurses Award.

[210] The parties are directed to confer on the form of a draft variation having regard to views expressed above. A conference will be convened in due course.

4.2 Black Coal Mining Industry Award 2010

[211] The relevant terms of the current award are as follows:

‘13.4 Payments on termination

In the case of termination of employment, and in addition to any other amounts payable pursuant to this award to an employee on termination, the employee must be paid in accordance with this clause.

(a) Accrued annual leave

The employee must be paid for all annual leave entitlements, and annual leave accrued in accordance with clause 25.3, at the employee’s base rate of pay.

(b) Accrued personal/carer’s leave

(i) An employee whose employment is terminated:

•  by retrenchment;

•  by retirement at or after age 60;

•  by the employer because of ill health; or

•  by death;

must, if the employee has 70 or more hours of untaken personal leave entitlement, be paid for that entitlement at the employee’s base rate of pay.

(ii) When an employer terminates the employment of an employee during a period of absence on paid personal leave, the employee must be paid until the employee has no further accumulation of personal leave or until the employee is fit for duty, whichever occurs first.

…

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.

[212] Ai Group seeks to delete clause 16.7 and replace it with the model term. In support of its application Ai Group notes that the current clause:

•  Deals only with wages. It is not clear that the clause creates an obligation to pay all amounts prescribed by the award; but it does create an obligation to pay over-award amounts and does not deal with NES entitlements. To this extent, the current clause is potentially unclear, unfair and does not fill the ‘regulatory gap’ identified by the Commission.

•  Requires payment on the day of termination, regardless of the means by which payment is made. In the alternate it permits payment by post within 72 hours of termination. This is unfair to employers and it does not reflect or enable modern work practices. The clause creates additional employment costs and a regulatory burden.

[213] Ai Group also submits that the clause would apply even where the employee’s employment is terminated without notice, by the employee or employer. This is said to compound the unfairness and adverse impact on business.

[214] The CFMMEU (M & E) opposes the claim. It is not necessary for us to set out the detail of the submissions advanced; we simply note that the union submits that:

‘The AIG Claim is made on the basis that the proposed variation will resolve the impracticability and administrative costs associated with the current provision. In accordance with the Full Bench’s decision in [2018] FWCFB 3566, at [156], there is no prima facie position that supports replacing the existing term with the model term, and any variation must be justified on its merits. In making this claim, AIG has failed to particularise or substantiate its claims of either impracticability or administrative costs. Similarly, there has been no attempt to address the ease with which the current provision is currently met when compared with how that provision operated historically, with the use of paper payroll systems.

The CFMMEU M&E submits that, for the reasons set out above and in the Earlier Submissions, in circumstances where AIG have failed to provide a sufficient merit basis to warrant the variation of the existing provisions, the application to vary the BCMI Award should be dismissed. 120

[215] The CFMMEU (C&G) relies on a witness statement by Mr Mark Watson, the Finance Manager of the Mining and Energy Division of the CFMMEU. At [1] of his statement Mr Watson says:

‘I have been working in the area of finance and accounts since 1993. I have over 26 years’ experience in working with, analysing and overseeing payroll systems for a wide variety of entities. I have worked with organisations of every size, from small family businesses to large listed corporations.’

[216] Mr Watson’s statement details the changes in payroll management over time and states:

‘In the last 26 years, payroll has changed significantly, as employers have moved away from paper to digital systems such MYOB, Xero and others. I am not aware of any employer that would operate in the black coal mining industry who would still be using a manual paper-based system. I would be surprised if there were any.

…

In the case of an employee being made redundant, or where their employment is terminated without the required notice, these are situations which an employer is required to plan for where the timing is in the control of the employer. In my view, planning for the payment of wages and entitlements owed is part of that end of employment planning and there is no impracticality or additional cost associated with having to pay out what is owed at the time of termination, rather than a week later in circumstances where that date is known in advance. The capacity to determine these amounts has also been simplified through the advances in digital payroll systems.

In any event, my experience has been that an employer will be keen to finalise all aspects of the employment at the earliest opportunity. Even where there hasn’t been a requirement to pay out outstanding wages and entitlements, I know that many employers will endeavour to make these payments on the final day of employment or shortly after to finalise the employment relationship.

I understand there is currently an application before the Fair Work Commission to extend the period an employer has to pay an employee their wages at the termination of their employment under, relevantly, the Black Coal Mining Industry Award 2010. In my view, technology has eliminated impracticality or administrative burden attached to a requirement to pay an employee what they are owed at the termination of their employment, or within a short time frame afterwards. It is simpler and faster now than it has ever been to manage payroll systems, including the payment of funds due to an employee at the end of employment.’ 121

[217] Ai Group advances the following submission in respect of Mr Watson’s evidence:

‘The union’s evidence relates to its argument that as a result of recent developments in payroll processes, there has been a reduction in the administrative burden associated with payroll processes. We have dealt with this submission above.’ 122

[218] We reject Ai Group’s characterisation of Mr Watson’s evidence; it is plainly not confined to the reduction in the administrative burden associated with payroll processes. As is evident from the part of Mr Watson’s statement extracted above, his evidence relates to the practices of employers who operate in the black coal mining industry. We accept Mr Watson’s evidence and note it supports the submission advanced by the CFMMEU (C & G).

[219] In its reply submission, Ai Group:

•  rejects the union’s proposition that there is no ‘regulatory gap’, because clause 16.7 only requires payment of ‘wages due to an employee’ and says nothing about accrued leave entitlements and clause 13.4 is silent on the timeframe within which outstanding leave entitlements must be paid. Nor does the award or the Act expressly regulate when redundancy payments are to be paid;

•  submits that there is no inconsistency between clause 16.6 and the model term and:

‘In any event, any perceived inconsistency between clause 16.6 and the Model Clause should not be fatal to the insertion of the Model Clause. The issue can be simply addressed by making clear that the Model Clause applies notwithstanding clause 16.6.’

•  addresses the union’s submission that where an employee’s employment is terminated at the initiative of the employer, the employer can determine the date of termination such that any practical difficulties arising from the application of the current clause are alleviated. Ai Group contends that this submission should not be accepted and submits:

‘The union’s submission ignores the practical realities of the circumstances in which the employment relationship often comes to an end. Any suggestion that employers should be able to align the termination date of an employee’s employment with the operation of the extant clause 16.7 of the Black Coal Award in a manner that minimises the cost and practical difficulties flowing from its operation demonstrates a complete disregard for the many and varying factors that determine when an employee’s employment is terminated and the often dynamic situations that lead to a termination, as a result of which it is entirely impracticable to ‘plan’ the employee’s termination in a way that moderates the impact of clause 16.7 of the award. This is to say nothing of circumstances in which an employee’s employment is terminated due to serious misconduct, with immediate effect.’ 123

[220] As mentioned earlier, contested applications in which an existing term such as clause 16.7 is sought to be replaced by the model term should be supported by probative evidence demonstrating that the existing term is impractical and operates unfairly to the employers and employees covered by the award. No such evidence was adduced by Ai Group in support of its application and the evidence adduced by the CFMMEU (M & E) tells against the necessity for the variation sought. We are not persuaded that it is necessary that the award be varied in the manner proposed by Ai Group to ensure that the award achieves the modern awards objective.

[221] We reject Ai Group’s application to vary the Black Coal Mining Industry Award.

[222] The CFMEU (M & E) advances an alternate variation. The current clause 16.7 of that award provides that upon termination of employment, wages due to an employee will be paid on the day of termination or forwarded by post within 72 hours, to the last address notified by the employee. The CFMEU proposed variation adds the following words to the existing term:

‘Provided that where payment is normally made by electronic funds transfer (EFT), the wages due to an employee may be transferred into the employee’s account within 72 hours of the termination of employment.’ 124

[223] Ai Group submits that the draft determination filed by the union ‘does not address the many concerns raised by Ai Group regarding the extant provisions. It retains many of the problematic elements of the current provisions’. 125 We accept that this is so, but as we have noted Ai Group has adduced no evidence in support of its concerns regarding the extant provision.

[224] As mentioned earlier, there has been an overall increase in the reliance on EFT transactions as a means of processing wage payments by employers and a marked decrease in the use of cheques and cash to make such payments. In these circumstances we are satisfied that the variation proposed by the CFMMEU (M & E) is necessary to ensure that this award achieves the modern awards objective. We will vary the award in the terms proposed by the CFMMEU (M & E).

4.3 Building and Construction General On-site Award 2010

[225] The relevant provision in the Building On-site Award provides as follows:

‘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).’

[226] Ai Group seeks to delete clause 31.4 and replace it with the model term.

[227] Ai Group contends that to the extent that the existing term require the payment of over-award amounts, ‘this is unfair to employers and inconsistent with the purpose of a minimum safety net’. Ai Group also contends that it is unfair to require that termination payments be made within two working days after the termination of the employee’s employment; it does not reflect or enable contemporary work practices and creates additional employment costs and a regulatory burden.

[228] We note that Ai Group withdraws paragraph 41(a)(ii) of its August 2019 submissions, dealing with the application of s.120, regarding the Building On-site Award.

[229] The HIA filed a submission in support of Ai Group’s application to insert the model term into the Building and Construction On-site Award 2010.

[230] The HIA supports Ai Group’s application and the insertion of the model term into the award. HIA submits this view is undeniably relevant to the Ai Group application. It is HIA’s position the current Building On-site Award payment of wages on termination clause is not fairly balanced and, it is accordingly appropriate to vary the Building Onsite Award to ensure the achievement of the modern awards objective. 126

[231] As to the impracticality of the current term, HIA submits:

‘In the case of the Onsite Award, where notice is given, the employee must be paid at the time of termination of employment, or where impracticable two working days from the time of termination. These time frames are manifestly inappropriate.

In the residential building industry, many employers, particularly small business, rely upon book-keepers or external providers to provide payroll processing and assistance. This would also include advice as to owing entitlements generally under the Awards from industry associations such as HIA, or advice from the Fair Work Ombudsman.

Often it is not known up until the day of termination what payments may be owing to an employee (e.g.- applicable allowances, overtime, etc.). The complicated nature of the application of allowances within the Onsite Award, coupled with accruals owed on termination (accrued RDO’s, Annual leave, and Long Service Leave), require appropriate time in order to accurately calculate owing termination payments.

The current Onsite Award payment of wages on termination clause, requires that an employer do such calculations, and potentially carry out an out of cycle pay run, for the terminating employee on or within two days of termination.

This expectation is unreasonable. Not only is it time limiting, it has the potential to attract additional costs to business.

HIA submits the current time limitations in the Onsite Award payment of wages on termination clause is unnecessarily burdensome, particularly for small business. The insertion of the model term is warranted to appropriately balance the needs of employers and employees.’ 127

[232] The CFMMEU (C & G) opposes the insertion of the model term. We have summarised the CFMMEU (C & G) submission and evidence earlier (see [134] – [161] above). In relation to this award the CFMMEU (C & G) submits that the current term must be read in the context of daily hire, which is the predominant form of engagement under the Building On-site Award.

[233] Clause 11 of the Building On-site Award provides as follows:

‘11. Daily hire employees

A daily hire employee means a tradesperson or labourer engaged subject to the following provisions:

11.1 One day’s notice of termination of employment will be given on either side or one day’s pay will be paid or forfeited.

11.2 Notice given at or before the usual starting time of any ordinary working day will expire at the completion of that day’s work.

11.3 A tradesperson will be allowed one hour prior to termination to gather, clean, sharpen, pack and transport tools.

11.4 Nothing in this clause will affect the right of an employer to dismiss an employee without notice for misconduct or refusing duty.

[234] Reading the current term in the context of daily hire employment, and taking into account the history of the award clause, the CFMMEU (C&G) submits that:

‘It is clear that the payment of all monies on termination of employment applied to situations where notice was given or not given and one days pay paid or forfeited (i.e. payment in lieu of notice). As abandonment of employment still requires notice of termination to be given by an employer the remaining situation not covered would be summary dismissal (which is a decision to terminate made by an employer). In terms of making the award simple and easy to understand it seems somewhat inappropriate to have a different term for the payment on termination of all monies owed just for the summary dismissal of employees.’  128

[235] We note that neither Ai Group nor the HIA address the circumstances of daily hire employment.

[236] As mentioned earlier, contested applications in which an existing term such as clause 31.4 is sought to be replaced by the model term should be supported by probative evidence demonstrating that the existing term is impractical and operates unfairly to the employers and employees covered by the award. No such evidence was adduced by Ai Group (or the HIA) in support of its application and therefore we are not persuaded that it is necessary that the award be varied in the manner proposed by Ai Group to ensure that the award achieves the modern awards objective.

[237] We reject Ai Group’s application to vary the Building On-Site Award.

[238] As we have noted in an earlier decision, the current termination payment term in the Building Onsite Award does not address all of the circumstances in which termination payments may be required:

‘Some of the existing terms do not cover all of the circumstances resulting in termination of employment. For example, clause 31.4 of the Building and Construction General On-Site Award 2010 provides:

‘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).’

Clause 31.4 does not make provision for termination without notice, abandonment or payment in lieu of notice.’ 129

[239] The CFMMEU (C&G) submits that there is merit, consistent with the objective of the model term, in modifying the model term to accommodate the existing award provisions and proposes that the Building On-site Award be varied in accordance with the draft clause set out in Appendix B of its submission (see below).

‘31.4 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 termination; and

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

(b) The amounts described at clause 31.4(a) must be paid to the employee at the time of termination of employment, provided that where this is not practicable, the employer will have two working days to send monies due to an employee by registered post or, where the employee is paid by EFT, transfer the monies into the employee’s account.

(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.

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.

[240] We do not propose to make the variation proposed. The proposed amendment appears to seek to expand both the class of termination payments to be subject to the clause (to include all other amounts due to the employee under the award and the NES) and the circumstances to which the clause applies. As to the latter point, the current term only applies to termination by notice and the CFMMEU (C & G) proposed variation would extend the term to termination without notice.

[241] In our view where the scope of a current termination payment term is extended in the manner proposed the 7-day period in the model term should apply to the areas to which the clause is extended. Hence, in this instance, in circumstances of summary dismissal a 7-day payment period would apply. Similarly, a 7-day payment period would apply to NES payments and ‘other amounts due’ under the award.

[242] These issues require further examination. A conference of interested parties will be convened shortly.

4.4 Business Equipment Award 2010 and Electrical, Electronic and Communications Contracting Award 2010

[243] The termination payment provisions in these two awards are similar and it is convenient to deal with them together.

[244] We note that the Business Equipment Award 2010 will be replaced by the 2020 Award, effective 18 June. Clause 25 of the 2010 Award will become clause 15 in the 2020 Award and is in the same terms. The relevant term in the Business Equipment Award 2010 provides as follows:

‘25. Payment of wages

25.1 Wages must be paid weekly, fortnightly, four-weekly, half-monthly, monthly or in accordance with existing practices, by cash or by cheque or to the credit of the employee’s account in a bank or other recognised financial institution, or in any agreed combination of the foregoing.

25.2 Wages must be paid, either:

(a) according to the average number of ordinary hours worked per pay period; or

(b) by agreement with either the majority of employees or with an individual employee according to the actual ordinary hours worked each pay period.

25.3 Where wages are paid in cash, such payment must be made during normal working hours.

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.’ (emphasis added)

[245] The relevant term in the Electrical Contracting Award 2010 provides as follows:

‘22.2 Method of payment

(a) Wages must be paid by cash, cheque or electronic funds transfer into the employee’s bank or other recognised financial institution account.

(b) In the case of an employee paid by cheque, if the employee requires it, the employer is to have a facility available during ordinary hours for the employee to cash the cheque.

22.3 Payment of wages on termination of employment

(a) 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. (emphasis added).

(b) Where an employee is paid under a rostered day off system and has accrued a credit towards a rostered day off such credit must be taken into account in calculating wages due on termination.’

[246] ABI and Ai Group seek to delete clause 25.4 from the Business Equipment Award and clause 22.3 from the Electrical Contracting Award and insert the model term instead. ABI relies on its general submissions. Ai Group advances the following submission in respect of these awards:

(a) Deals only with wages. Arguably it does not create an obligation to pay other amounts prescribed by the award but does create an obligation to pay over-award amounts. Further, it does not deal with NES entitlements. To this extent, the current clause is potentially unclear, unfair and does not fill the “regulatory gap” identified by the Commission.

(b) Requires payment on the day of termination, regardless of the means by which payment is made. In the alternate it permits payment by post to be forwarded on the next working day. For the reasons articulated above this is unfair to employers and it does not reflect or enable modern work practices. Further, the clause creates additional employment costs and a regulatory burden.

(c) The clause would apply even where the employee’s employment is terminated without notice by the employee or employer. This compounds the unfairness and adverse impact on business.

[247] The CEPU opposes the applications to vary these awards and submits that no evidence is provided in support of the proposed variations and the Commission cannot be satisfied there is merit to the applications. In particular, the CEPU notes that the employer groups have not provided any evidence of employers not being able to make the payment of wages within the timeframe in the relevant industries.

[248] In relation to Ai Group’s concern about the limitation on the amount of cash that can be made via post 130 the CEPU notes that the relevant modern awards all contemplate other methods such as providing a cheque or bank transfer.131 On this basis the CEPU contends that any amounts exceeding $200132 can be paid via an alternate method.

[249] The difficulty with the CEPU’s response is that the current clauses provide that in circumstances where termination payments are not paid on the day of termination they must be forwarded by post the next working day. It seems to us that in this context ‘forwarded by post’ means to send cash or a cheque ‘by post’.

[250] As mentioned earlier, there has been an overall increase in the reliance on EFT transactions as a means of processing wage payments by employers and a marked decrease in the use of cheques and cash to make such payments. In these circumstances it seems to us that the termination payment clauses in these awards require amendment to add the following:

‘Provided that where payment is normally made by electronic funds transfer all monies due to an employee may be transferred into the employee’s account on the next working day’.

[251] A conference of interested parties will be convened shortly to discuss this issue.

4.5 Dry Cleaning and Laundry Industry Award 2020

[252] The Dry Cleaning and Laundry Industry Award provides that wages may be paid by cash cheque or electronic funds transfer. Clause 19.3 deals with termination payments, as follows:

‘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.’

[253] ABI seeks to vary clause 19 by deleting clause 19.3 and inserting the model payment on termination clause in its place. 133

[254] We note that the 2010 Award has been replaced by the 2020 Award, effective 30 April 2020. The clause numbers remain the same and clause 19 is in the same terms as in the 2010 award.

[255] The CFMMEU (Manufacturing) submits that if the change proposed was made it ‘would represent a significant diminution to the current safety net of award terms and conditions for low paid employees in the dry cleaning and laundry industry’.

[256] The CFMMEU (Manufacturing) submits that ABI’s contention that ‘there is no detriment to employees receiving their payments when the correct payment can be made as soon as practicable, within 7 days’ is ‘simply incorrect’:

‘For low paid, award dependent workers in the dry cleaning and laundry industry, any additional delay in receiving their termination wages and entitlements is clearly and objectively, detrimental. It potentially impacts on workers’ capacity to pay for food, bills, utilities, rent or mortgage payments at the time these needs, and liabilities arise. Failure to make payments for bills, rent or mortgage on time, can adversely affect an employee’s credit rating and effect their eligibility for loans in the future.

Delays in termination payments may also affect an employee’s capacity to access Centrelink benefits and payments, entrenching the negative impact of loss of employment and the regularity of wages.’ 134

[257] We note that the current term does not specify a time period within which termination payments are to be made where an employee is summarily dismissed. As to this deficiency the CFMMEU submits:

‘In circumstances of termination by notice by the employer or the employee, it is entirely within the discretion of the employer whether it requires the employee to work out their notice.

In our submission, the circumstances of serious misconduct also does not materially change the position above. In the experience of the former TCFUA and the CFMMEU – MD, cases of serious misconduct are very rare in the dry cleaning and laundry industry. There is no evidence before the Commission as to the extent of terminations in the dry cleaning and laundry industry resulting from an allegation of serious misconduct.

Further, in the handful of terminations for serious misconduct in the dry cleaning and laundry industry, in the union’s experience these are often contested by the terminated employee resulting in an unfair dismissal to be filed in the Commission.

Even where such terminations occur, the employer retains the discretion as to when to implement the dismissal. For example, typically an employer when considering terminating an employee for serious misconduct will have undertaken an investigation into the allegation/s and potentially have stood down the employee whilst the investigation is in process. An employee can potentially be stood down with pay for a number of days or even weeks whilst the employer determines whether the termination for serious misconduct proceeds, and if so, when it is to be implemented.

We submit that in all cases, the timing of the decision to terminate an employee is solely within the remit of the employer, including in cases of serious misconduct. As such, the arrangements for the calculation and payment of wages and/or entitlements on termination should always be able to be made on the day of termination.’ 135

[258] As mentioned earlier, contested applications in which an existing term such as clause 16.7 is sought to be replaced by the model term should be supported by probative evidence demonstrating that the existing term is impractical and operates unfairly to the employers and employees covered by the award.

[259] ABI has not adduced any evidence in support of its application to vary this award. It has advanced a general case in order to achieve a standardised outcome across multiple awards; no cogent basis has been made out for the variation of this award. Further, the application has been vigorously opposed by the CFMMEU (Manufacturing) and in the course of its submission the union made several assertions which have not been challenged by ABI in its reply submission (see [257] above).

[260] We reject ABI’s application to vary the Dry Cleaning and Laundry Industry Award.

[261] This issue can be revisited if any party wishes to file a s.157 application which advances an alternate proposal.

4.6 Graphic Arts, Printing and Publishing Award 2010

[262] The Graphic Arts Award provides that wages may be paid in cash, cheque or by electronic funds transfer, at the employer’s discretion. In relation to termination payments clause 28.5 provides as follows:

‘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.’

[263] ABI and AI Group seek to vary the award by deleting clause 28.5 and inserting the model term. ABI has advanced a general case in support of varying multiple awards to replace existing payment termination terms with the model term.

[264] Ai Group identifies the following deficiencies in the current clause:

•  It requires payment on the day of termination, except where the employee is terminated without notice. This is said to be unfair to employers and it does not reflect or enable modern work practices. It is submitted that the current clause creates additional employment costs and a regulatory burden.

•  It requires payment by the end of the next business day where the employee is dismissed without notice. In respect of this aspect of the clause, Ai Group submits:

‘Whilst the clause provides slightly greater latitude in the context of terminations without notice than those that are effected with notice, the submissions earlier made about the unfairness to employers, the need to reflect or enable modern work practices and the additional employment costs and regulatory burden remain apposite given the limited period of time within which payment must be made.’

•  It requires the payment of ‘all monies’:

(i) To the extent that this includes over-award amounts, this is unfair to employers and inconsistent with the purpose of a minimum safety net.

(ii) To the extent that it requires the payment of redundancy pay on the day of termination, this is unfair to employers to the extent that it requires payment before an employer can consider and / or seek advice as to whether an application pursuant to s.120 of the Act should be made and if so, to in fact make such an application and have it determined.

[265] We note that the payment on termination clause was considered by the Commission in the context of the two year Transitional Review. 136 However, as submitted by Ai Group, the change advanced by ABI at that time was substantively different to that which is now sought. Clause 28.5, as it then applied, was in the following terms:

‘If an employee’s employment is terminated during the course of a week, the employee will at termination of their employment be paid all monies due to them. Where an employee is dismissed without notice all monies due are to be forwarded to the employee by post or electronic funds transfer within 24 hours of the termination.’

[266] ABI’s claim was for that clause to be deleted and replaced with the following:

‘Upon termination of the employment, the employer will pay wages due to an employee as soon as is reasonably practicable, however no later than the employee’s next usual pay day.

(b) The Commission’s decision was made in a different legislative context. As has been observed by the Commission on many occasions, the two year review proceeded on a narrower basis than the considerations arising in the 4 yearly review of modern awards.’ (Emphasis added)

[267] Ai Group contends that given the difference between the two claims the Commission is not ‘constrained’ by the earlier decision.

[268] The decision 137 to which Ai Group refers was made by Senor Deputy President Hamberger in the context of the transitional review. At [17] of his decision the Senior Deputy President summarised ABI’s submission, as follows:

‘ABI submitted that the existing provision for the payment of wages on termination is outdated and has a detrimental impact on business. In particular, the term creates an administrative and financial burden by requiring the processing of payments outside of the business’s normal pay run; small businesses may not have staff available each day to assist in the calculation and processing of termination payments; the processing of a termination payment by electronic funds transfer is likely to result in the payment not being available to the employee until the next working day, resulting in a technical breach of the Award; processing termination payments is likely to involve external banking deadlines that are outside of the employer's control; and it is impracticable for an employer to finalise accurate calculations on the day of termination in some circumstances (such as where employment ends without prior notice). The proposed variation would still ensure that any unnecessary and unjustified delay of termination payments by an employer would be in breach of the Award.’

[269] It is notable that the other employer organisation in those proceedings the Printing Industry Association of Australia (PIAA) did not oppose ABI’s variation but did propose an alternative in the event that ABI’s proposal was not accepted. The PIAA’s alternative proposal was as follows:

‘If an employee’s employment is terminated during the course of a week, the employee will at termination of their employment be paid all monies due to them. Where an employee is dismissed without notice all monies due are to be forwarded to the employee by post or electronic funds transfer by the end of the next business day following the termination.’ 138

[270] The AMWU opposed the proposed variations.

[271] The Senior Deputy President granted ABI’s claim in relation to the frequency of payment of wages, to provide that employees could be paid weekly or fortnightly as determined by their employer or monthly if mutually agreed. In relation to the termination payments claim, the Senior Deputy President rejected ABI’s claim and varied the award in the manner proposed by the PIAA, stating:

‘The case for varying the provision dealing with payment on termination is less compelling. I note, for example, that the current clause is very similar to that in the manufacturing award. It would however be appropriate to make the minor change proposed by the PIAA, in recognition of the difficulties that may arise if an employee is terminated without notice on or just before a weekend. The clause will be varied so that it reads:

“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.”’ 139

[272] An appeal from the Senior Deputy President’s decision was dismissed.¹⁴⁰

[273] As the Full Bench noted in the 4 yearly review of modern awards preliminary jurisdictional decision,  141 the Commission has adopted the following propositions regarding the scope of the 4 yearly review:

(i) The Review is broader in scope than the Transitional Review of modern awards completed in 2013.

(ii) In conducting the Review the Commission will have regard to the historical context applicable to each modern award.

(iii) The Commission will proceed on the basis that prima facie the modern award being reviewed achieved the modern awards objective at the time it was made.

(iv) Variations to modern awards should be founded on merit based arguments. The extent of the argument and material required will depend on the circumstances.

[274] We agree with Ai Group that we are not ‘constrained’ by Senior Deputy President Hamberger’s decision. It was a decision of a single member in the context of the Transitional Review, and that review was narrower in scope than the current 4 yearly review. However, the Senior Deputy President’s decision forms part of the broader context to our consideration of the claims in the present proceeding.

[275] The AMWU opposes the ABI and Ai Group applications. We have summarised the AMWU submission earlier and need not repeat it here.

[276] The AMWU proposes the draft determination below which it submits ‘better reflects the current entitlements in the award’. 142 The AMWU’s draft determination seeks to replace clause 28.5 with the following (Notes omitted):

‘28.5 Payment on termination of employment

(a) The employer must pay an employee the following amounts in accordance with this clause:

(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 28.5 (a) must be paid to the employee:

(i) on the day of termination; or

(ii) By electronic funds transfer the next working day after the day on which the employee’s employment terminates.

(c) When an employee is dismissed without notice, the amounts described in 28.5(a) are to be forwarded to the employee electronic funds transfer by the end of the next working day.

(d) The requirement to pay wages and other amounts under clause 34.3 is subject to further order of the Commission and the employer making deductions authorised by this award or the Act.’

[277] In reply, Ai Group submits that the AMWU’s proposed variation does not address ‘the many concerns raised by Ai Group regarding the extant provision’ and that the proposal advanced ‘would only exacerbate our concerns’. 143 Further, Ai Group submits:

‘The AMWU’s proposals seek to ‘have the best of both worlds’ by closing any regulatory gap left by the current provisions in respect of the timeframe within which certain payments must be made, without consideration for the need to ensure that the provisions strike an appropriate balance between the interests of employees and employers. The Model Clause better achieves that balance and should therefore be adopted instead of the union’s proposals.’

[278] We agree, in part, with Ai Group’s observation about the AMWU’s proposed variation. The proposed amendment seeks to expand the class of termination payments (to include all amounts due under the NES). As we decided in relation to the Building On-Site Award, where the scope of a current termination of payment term is extended in the manner proposed by the AMWU, the 7 day period in the model term should apply to the areas to which the clause is extended.

[279] As to the ABI and Ai Group claims, we acknowledge that the applicants have failed to advance probative evidence demonstrating that the existing term is impractical and operates unfairly to the employers and employees covered by the award. That said, we have earlier adopted the following general proposition:

‘Existing terms that require termination payments to be made ‘immediately’ or on the day of termination, with no alternative means available are impracticable and invite scrutiny.’

[280] This is such a case. The existing requirement that all monies due to an employee must be paid ‘on the day of termination’ is unreasonable (save where an employee is dismissed without notice). As we have mentioned earlier, we accept that a fair and reasonable time period must be permitted to process termination payments. What is ‘fair and reasonable’ depends on the context, which includes the current terms of the award and the different means by which employment may be terminated.

[281] The current clause would require payment on the day of termination in circumstances where the employer has no control over the timing of the termination, for example where an employee resigns.

[282] It is our provisional view that the current clause be varied and that an appropriate balance between the competing considerations would be as follows:

1. The following amounts must be paid by the end of the next business day after the day on which the employee’s employment terminates:

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

•  all other monies due to the employee under the award.

2. The following amounts must be paid no later than 7 days after the day on which the employee’s employment terminates:

•  all amounts due to the employee under the NES.

[283] The parties are directed to confer on the form of a draft variation having regard to views expressed above. A conference will be convened in due course.

4.7 Manufacturing Awards

[284] It is convenient to deal with the two Manufacturing Awards together, namely the Food, Beverage and Tobacco Manufacturing Award 2010 (the FBT Award) and the Manufacturing and Associated Industries and Occupations Award 2010 (the Manufacturing Award) because the termination payment provisions are substantially the same.

[285] These two awards both provide that wages may be paid in cash, by cheque or by electronic funds transfer. In relation to termination payments, clause 28.3 of the FBT Award and clause 34.3 of the Manufacturing Award are in the similar terms. The Manufacturing Awards provide:

‘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.’ (Emphasis added)

[286] We note that the Manufacturing and Associated Industries and Occupations Award 2010 will be replaced by the 2020 Award, effective 29 May 2020. Clause 27.3 is the comparable provision in the 2020 Award and it is in the same terms as clause 34.3 of the 2010 Award.

[287] The relevant clause in the FBT Award (clause 28.3) is in the same terms as the Manufacturing Award, save that there is an absence of prescription as to the method by which payment may be forwarded to the working day following the termination date. Clause 28.3 provides:

‘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.

[288] ABI and Ai Group seek to vary these awards by deleting the payment on termination clauses and inserting the model terms. ABI has advanced a general case in support of varying multiple awards by relacing existing termination payment terms with the model term.

[289] Ai Group relies on the submissions made in relation to the Business Equipment Award as the current terms in the two Manufacturing Awards are in relevantly similar terms.

[290] The AMWU (and other unions) oppose the ABI and Ai Group applications. We have summarised the AMWU submission earlier and we need not repeat it here.

[291] The AMWU proposes draft determinations in respect of these awards which ‘retain the existing entitlements’. Curiously, despite the similarities in the current terms, the AMWU appears to propose different variations in respect of each award.

[292] In relation to the FBT Award the AMWU proposes a variation in the following terms:

‘28.3 Payment on termination of employment

(a) The employer must pay an employee the following amounts in accordance with this clause:

(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 28.3 (a) must be paid to the employee:

(i) on the day of termination; or

(ii) By electronic funds transfer the next working day after the day on which the employee’s employment terminates.

(c) The requirement to pay wages and other amounts under clause 28.3 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 (d) allows the Commission to make an order delaying the requirement to make a payment under clause 26.3. 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.

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.’

[293] In respect of the Manufacturing Award, the AMWU proposes the following terms:

‘34.3 Payment on termination of employment

(a) The employer must pay an employee the following amounts in accordance with this clause:

(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 34.3 (a) (i) must be paid to the employee:

(i) on the day of termination; or

(ii) By electronic funds transfer the next working day after the day on which the employee’s employment terminates.

(c) The amounts described at clause 34.3(a)(ii) must be paid to the employee:

(i) on the day of termination; or

(ii) forwarded 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 clause 34.3 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 (d) allows the Commission to make an order delaying the requirement to make a payment under clause 26.3. 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.

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.

[294] We assume that the omission of paragraph 34.3(c) from the draft determination for the FBT Award was simply an error.

[295] While these proposed variations do not suffer from the same vice we have identified in respect of the AMWU’s proposed variation of the Graphic Arts Award, we are not persuaded to vary the awards in the manner proposed.

[296] It is our provisional view that the current clauses be varied and that an appropriate balance between the competing considerations would be as follows:

1. The following amounts must be paid by the end of the next business day after the day on which the employee’s employment terminates:

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

•  all other monies due to the employee under the award.

2. The following amounts must be paid no later than 7 days after the day on which the employee’s employment terminates:

•  all amounts due to the employee under the NES.

[297] The parties are directed to confer on the form of a draft variation having regard to views expressed above. A conference will be convened in due course.

4.8 Meat Industry Award 2020

[298] The current clause in the Meat Industry Award provides:

‘29. Payment of wages

29.1 Wages will be paid on a regular weekly basis or in a manner agreed between the employer and employee. If there is no agreement, payment must be made on the usual pay day each week Monday to Thursday.

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’. (emphasis added)

[299] We note that the 2010 Award has been replaced by the 2020 Award, effective 30 April 2020. Clause 17 is the comparable provision in the 2020 Award and it is in the same terms as clause 29.

[300] ABI and Ai Group seek to delete clause 29.2 and insert the model term.

[301] ABI’s application to vary this award was filed on 21 September 2018. The draft determination was published on the Commission’s website. In the August 2019 decision 144 we directed that submissions and evidence in reply to ABI’s applications were to be filed by 4pm on 25 September 2019. A Statement145 published on 5 March 2020 noted that no reply submissions had been filed in respect of this award. At a Mention Hearing on 12 March 2020 the AWU, on behalf of the AMIEU, submitted that the application to vary the Meat Industry Award was opposed.

[302] On 12 March 2020, the AMIEU sent an email to the President’s chambers stating that the AMIEU is ‘opposed to the model clause being inserted into the Meat Industry Award 2010 as the award already properly deals with those issues’.

[303] Two things may be said about the AMIEU’s correspondence.

[304] First, beyond a belated statement of opposition, the AMIEU has failed to engage with any of the arguments advanced by ABI and Ai Group in support of their proposed variation.

[305] Second, the assertion that the current clause ‘already properly deals with those issues’ is manifestly not correct. The current term is deficient in that it makes no provision for the payment of any NES entitlements (such as paid annual leave) on termination.

[306] We would also observe that for all practical purposes the current clause requires that ‘wages due’ be paid on the day of termination. As Ai Group submits:

‘To the extent that the clause…allows payment to be forwarded to the next day at the employee’s option; this does not provide the employer an effective flexibility or the certainty afforded by the Model Clause as to when payment must be made. There is, as such, no incentive for an employee to elect to be paid the day after termination. It is unclear whether that element of the clause in fact has any material work to do.’ 146

[307] We agree with Ai Group. The exception to the requirement to pay wages due on the day of termination will have little work to do in practice.

[308] As we mentioned earlier, (at [189]);

‘Where the time period within which termination payments are to be made is vague and uncertain (such as for example, payments are to be made ‘as soon as possible’ or ‘forthwith’) the award should be varied to provide that payments are to be made ‘no later than 7 days after the day on which the employee’s employment terminates’, consistent with the model term.’

[309] This is such a case.

[310] As we also observed earlier, in the case of uncontested applications we will more readily accept any uncontested assertions made in support of the application. In this instance the application is opposed but the AMIEU has made no effort to engage with the issues and has not contested the assertions advanced by ABI and Ai Group in support of their applications.

[311] We turn first to the s.134 considerations.

[312] A threshold of two-thirds of median full-time wages provides ‘a suitable and operational benchmark for identifying who is low paid,’ 147 within the meaning of s.134(1)(a).

[313] The most recent data for median earnings is for August 2019 from the ABS Characteristics of Employment (CoE) survey. Data on median earnings are also available from the Survey of Employee Earnings and Hours (EEH) for May 2018. On the basis of the data from the CoE survey for August 2019, two-thirds of median weekly earnings for full-time employees is $920.00. Data on median weekly full-time earnings are also available from the EEH survey for May 2018, and two-thirds of median earnings is equal to $973.33.

[314] Using the two-thirds of median full-time wages as the benchmark, the award reliant employees covered by this award are ‘low paid’ within the meaning of s.134(1)(a).

[315] We accept that the variation of the award in the manner proposed may result in low paid employees receiving termination payments later than they would under the current award. This is a consideration that weights against the variation proposed. However, the variation will ensure that such employees receive their NES entitlements in a timely manner.

[316] The variation proposed would not discourage or undermine collective bargaining; but s 134(1)(b) speaks of the need to ‘encourage collective bargaining’. The proposed variation may be said to decrease the incentive for employers to bargain; but it is also likely that employee and employer decision making about whether or not to bargain is influenced by a complex mix of factors. We are not persuaded that the proposed variation would ‘encourage collective bargaining’. It follows that this consideration weighs against the variation proposed.

[317] We accept that the variation proposed is consistent with the need to promote flexible modern work practices and is likely to have a positive impact on business. Further, we also accept that the variation proposed is consistent with the need to ensure a simple easy to understand modern award system (s.134(1)(d), (f) and (g)).

[318] We accept the submissions advanced by ABI and Ai Group in respect of the variation of this award and will grant the variation sought. We are satisfied that the variation is necessary to achieve the modern awards objective. In reaching that conclusion we have had regard to the considerations in s.134(1)(a)-(h). The considerations in s.134(1)(c), (da), (e) and (h) are not relevant in the present context.

[319] A draft variation determination will be published shortly and interested parties will have 7 days to comment. If no comments are received we will proceed to issue a final determination in the same terms as the draft.

4.9 Mobile Crane Hiring Award 2010

[320] The relevant provision in the Mobile Crane Hiring Award provides as follows:

‘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.

19.6 Casual employees

Where a casual employee is engaged for a work period which includes the designated pay day, wages will be paid in accordance with such arrangements. This will not affect the employee’s status as a casual. If a casual is engaged on a daily basis, then the payment will be made on a daily basis unless otherwise mutually agreed.’

[321] Ai Group seeks to replace the current clause with the model term. We have already summarised Ai Group’s general submissions. In relation to this particular award Ai Group notes that ‘clause 19.5 is in broadly similar terms to clause 25.4 of the Business Equipment Award’ and it relies on its submissions made in respect of that award.

[322] We have earlier summarised the CFMMEU (C&G) submission and evidence earlier (see [134] – [161 above). In relation to this particular award the CFMMEU (C & G) acknowledges that the existing payment on termination provision in the Mobile Crane Award only refers to wages, and in line with the recent changes determined by the Full Bench for the Wine Award in [2019] FWCFB 5868 (see paragraph [9]), accepts that for the other monies owed the 7 day period may be appropriate.

Appendix C – Modified Model Term for the Mobile Crane Hiring Award 2010

19.5 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 19.5(a)(i) must be paid to the employee:

(i) on the day of termination; or

(ii) forwarded by electronic transfer or post on the next working day.

(c) The amounts described at clause 19.5(a)(ii) must be paid to the employee:

(i) on the day of termination; or

(ii) forwarded 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 19.5(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 (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.

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.

[323] Ai Group submits that the draft determination filed by the union ‘does not address the many concerns raised by Ai Group regarding the exact provisions’ and retains ‘the problematic elements of the current provisions’. 148 We accept that this is so, but, as we have noted, Ai Group has adduced no evidence in support of its concerns regarding the extant. Further, the CFMMEU (C & G) has led evidence supporting its submissions, which we have accepted.

[324] As mentioned earlier, contested applications in which an existing term such as clause 16.7 is sought to be replaced by the model term should be supported by probative evidence demonstrating that the existing term is impractical and operates unfairly to the employers and employees covered by the award. No such evidence was adduced by Ai Group in support of its application and the evidence adduced by the CFMMEU (C&G) tells against the necessity for the variation sought. We are not persuaded that it is necessary that the award be varied in the manner proposed by Ai Group to ensure that the award achieves the modern awards objective.

[325] We reject Ai Group’s application to vary the Mobile Crane Hiring Award.

[326] The variation proposed by the CFMMEU (C & G) in respect of this award does not suffer from the same problem we have identified in relation to its proposed variation of the Building On-site Award. Rather, it simply seeks to extend the payments to be made on termination and provides 7 days in which these payments can be made by EFT. For the reasons we have given in respect of the adoption of the model term and its insertion in those awards which were silent in respect of the time period within which termination payments are to be made, we are satisfied that the variation proposed by the CFMMEU (C & G) is necessary to ensure that this award achieves the modern awards objective. We will vary the award in the terms proposed by the CFMMEU (C & G).

[327] A draft variation determination will be issued shortly, interested parties will have 7 days to comment. If no comments are received, we will proceed to issue a final determination in the same terms as the draft.

4.10 Passenger Vehicle Transportation Award 2020

[328] The current relevant term in the Passenger Vehicle Transportation Award 2020 is as follows:

‘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.’

[329] We note that the 2010 Award has been replaced by the 2010 Award, effective 8 April 2020. The wording of the clause remains the same, however the clause is now numbered clause 16.3.

[330] In correspondence dated 7 September 2018 the TWU stated that it ‘has an interest’ in this award. But the TWU has filed nothing since.

[331] ABI seeks to vary this award by deleting clause 19.3 and inserting the model term. ABI filed its application to vary this award on 21 September 2018. The draft determination was published on the Commission’s website. In the August 2019 decision  149 we directed that submissions and evidence in reply to ABI’s applications were to be filed by 4pm on 25 September 2019. A Statement150 published on 5 March 2020 noted that no reply submissions had been filed in respect of this award.

[332] In short, no party has opposed the variation of this award.

[333] As we observed earlier, in the case of uncontested applications we will more readily accept any uncontested assertions made in support of the application.

[334] We turn first to the s.134 considerations.

[335] A threshold of two-thirds of median full-time wages provides ‘a suitable and operational benchmark for identifying who is low paid,’ 151 within the meaning of s.134(1)(a).

[336] The most recent data for median earnings is for August 2019 from the ABS Characteristics of Employment (CoE) survey. Data on median earnings are also available from the Survey of Employee Earnings and Hours (EEH) for May 2018. On the basis of the data from the CoE survey for August 2019, two-thirds of median weekly earnings for full-time employees is $920.00. Data on median weekly full-time earnings are also available from the EEH survey for May 2018, and two-thirds of median earnings is equal to $973.33.

[337] Using the two-thirds of median full-time wages as the benchmark, employees paid at Grades 1 – 5 covered by this award are ‘low paid’ within the meaning of s.134(1)(a).

[338] We accept that the variation proposed may result in employees receiving termination payments later than they would under the current award; 2 working days as opposed to 7 days. This is a consideration that tells against the variation.

[339] The variation proposed would not discourage or undermine collective bargaining; but s 134(1)(b) speaks of the need to ‘encourage collective bargaining’. The proposed variation may be said to decrease the incentive for employers to bargain; but it is also likely that employee and employer decision making about whether or not to bargain is influenced by a complex mix of factors. We are not persuaded that the proposed variation would ‘encourage collective bargaining’. It follows that this consideration weighs against the variation proposed.

[340] The variation proposed is consistent with the need to ‘promote flexible modern work practices’ and is likely to have a positive impact on business. We also accept that the variations proposed are consistent with the need to ensure a simple easy to understand modern award system (s.134(1)(d), (f) and (g)).

[341] The considerations in s.134(1)(c), (da), (e) and (h) are not relevant in the present context.

[342] As we observed earlier, in the case of uncontested applications we will more readily accept any uncontested assertions made in support of the application. We accept the submissions advanced by ABI in respect of the variation of this award and will grant the variation sought. We are satisfied that the variation is necessary to achieve the modern awards objective. In reaching that conclusion we have had regard to the considerations in s.134(1)(a)-(h).

[343] A draft variation determination will be published shortly. Interested parties will have 7 days to comment. If no comments are received, we will proceed to issue a final determination in the same terms as the draft.

4.11 Plumbing and Fire Sprinklers Award 2010

[344] The relevant clause in the Plumbing and Fire Sprinklers Award provides:

‘27. Payment of wages

27.1 All wages, allowances and other monies must be paid in cash or by cheque, bank cheque, bank or similar transfer, or any combination of these. An employee paid by other than cash will be allowed reasonable time as agreed between the employer and the employee, to attend the branch of their bank nearest the workplace to cash such cheques or draw upon the accounts during working hours. Payments must be paid and available to the employee not later than the cessation of ordinary hours of work on Thursday of each working week.

27.2 Where, on any pay day, work ceases for the day because of inclement weather an employee must be paid all wages, allowances and other monies due to the employee without undue delay.

27.3 Where an employee is paid by cash or cheque and the employee is kept waiting for their wages on pay day for more than a quarter of an hour after the usual time of ceasing work, the employee must be paid at overtime rates after that quarter hour for the duration spent waiting at the workplace for payment, with a minimum payment of a quarter of an hour.

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.’

[345] ABI and Ai Group seek to vary the Award to delete clause 27.4 and insert the model term.

[346] Master Plumbers does not oppose the application but opposes the inclusion of the second sentence in Note 2 on the basis that the proposed words would have no work to do. We agree with the Master Plumbers submission in this regard.

[347] Clause 18 - Industry Specific Redundancy Scheme of the Plumbing and Fire Sprinklers Award is an industry specific redundancy scheme, within the meaning of s 123(4)(b). Section 123(4)(b) of the Act provides that Subdivision B -Redundancy Pay would not apply to "an employee to whom an industry - specific redundancy scheme in a modern award applies".

[348] As there is an argument to say that s 120 is in subdivision B it does not have any application to clause 18, because the redundancy payments are derived from clause 18 and not s 119 of the Act.

[349] The CEPU’s submission of 25 August 2019 notes that it ‘has an interest’ in the Plumbing and Fire Sprinklers Award but states (at [7]) that its submissions are limited to the Electrical Contracting Award and the Business Equipment Award.

[350] In short, no party opposed the variation.

[351] As we observed earlier, in the case of uncontested applications we will more readily accept any uncontested assertions made in support of the application. We turn first to the s.134 considerations.

[352] A threshold of two-thirds of median full-time wages provides ‘a suitable and operational benchmark for identifying who is low paid,’ 152 within the meaning of s.134(1)(a).

[353] The most recent data for median earnings is for August 2019 from the ABS Characteristics of Employment (CoE) survey. Data on median earnings are also available from the Survey of Employee Earnings and Hours (EEH) for May 2018. On the basis of the data from the CoE survey for August 2019, two-thirds of median weekly earnings for full-time employees is $920.00. Data on median weekly full-time earnings are also available from the EEH survey for May 2018, and two-thirds of median earnings is equal to $973.33.

[354] Using the two-thirds of median full-time wages as the benchmark, most of the award reliant employees covered by this award are ‘low paid’ within the meaning of s.134(1)(a).

[355] We accept that the variation of the award in the manner proposed may result in low paid employees receiving termination payments later than they would under the current award. This is a consideration that weighs against the variation proposed. However, delay is not substantial; – 2 working days versus 7 days.

[356] The variation proposed would not discourage or undermine collective bargaining; but s 134(1)(b) speaks of the need to ‘encourage collective bargaining’. The proposed variation may be said to decrease the incentive for employers to bargain; but it is also likely that employee and employer decision making about whether or not to bargain is influenced by a complex mix of factors. We are not persuaded that the proposed variation would ‘encourage collective bargaining’. It follows that this consideration weighs against the variation proposed.

[357] We accept that the variation proposed is consistent with the need to promote flexible modern work practices and are likely to have a positive impact on business. Further, we also accept that the variation proposed is consistent with the need to ensure a simple easy to understand modern award system (s.134(1)(d), (f) and (g)).

[358] The considerations in s.134(1)(c), (da), (e) and (h) are not relevant in the present context.

[359] We accept the submissions advanced by ABI and Ai Group in respect of the variation of this award and will grant the variation sought. We are satisfied that, subject to the amendment of Note 2, the variation is necessary to achieve the modern awards objective. In reaching that conclusion we have had regard to the considerations in s.134(1)(a)-(h).

[360] A draft variation determination will be published shortly. Interested parties will have 7 days to comment. If no comments are received, we will proceed to issue a final determination in the same terms as the draft.

4.12 Seafood Processing Award 2020

[361] The Seafood Processing Award provides that wages may be paid by cash, cheque or electronic funds transfer. Clause 21.3 deals with the timing of termination payments:

‘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.’

[362] We note that the 2010 Award has been replaced by the 2020 Award, effective 8 April 2020. Clause 16.4 is the comparable provision in the 2020 Award and it is in the same terms as clause 21.3 of the 2010 Award.

[363] Ai Group seeks to vary the Award by deleting clause 21.3 and inserting the model term.

[364] No party opposed the variation of this award. As we observed earlier, in the case of uncontested applications we will more readily accept any uncontested assertions made in support of the application. We turn first to the s.134 considerations.

[365] A threshold of two-thirds of median full-time wages provides ‘a suitable and operational benchmark for identifying who is low paid,’ 153 within the meaning of s.134(1)(a).

[366] The most recent data for median earnings is for August 2019 from the ABS Characteristics of Employment (CoE) survey. Data on median earnings are also available from the Survey of Employee Earnings and Hours (EEH) for May 2018. On the basis of the data from the CoE survey for August 2019, two-thirds of median weekly earnings for full-time employees is $920.00. Data on median weekly full-time earnings are also available from the EEH survey for May 2018, and two-thirds of median earnings is equal to $973.33.

[367] Using the two-thirds of median full-time wages as the benchmark, the award reliant employees covered by this award are ‘low paid’ within the meaning of s.134(1)(a). We accept that the variation of the award in the manner proposed may result in low paid employees receiving termination payments later than they would under the current award. However, the delay is not substantial; 48 hours versus 7 days. Further, the current term does not prescribe any time period for the payment of NES entitlements due on termination and the insertion of the model clause will rectify this deficiency.

[368] We accept that the proposed variation would not discourage or undermine collective bargaining; but s 134(1)(b) speaks of the need to ‘encourage collective bargaining’. The proposed variations may be said to decrease the incentive for employers to bargain; but it is also likely that employee and employer decision making about whether or not to bargain is influenced by a complex mix of factors. We are not persuaded that the proposed variations would ‘encourage collective bargaining’. It follows that this consideration weighs against the variations proposed.

[369] We accept that the variation proposed is consistent with the need to promote flexible modern work practices and likely to have a positive impact on business. Further, we also accept that the variation proposed is consistent with the need to ensure a simple easy to understand modern award system (s.134(1)(d), (f ) and (g)).

[370] The considerations in s.134(1)(c), (da), (e) and (h) are not relevant in the present context.

[371] We accept the submissions advanced by Ai Group in respect of the variation of this award and will grant the variation sought. We are satisfied that the variation is necessary to achieve the modern awards objective. In reaching that conclusion we have had regard to the considerations in s.134(1)(a)-(h).

[372] A draft variation determination will be published shortly and interested parties will have 7 days to comment. If no comments are received, we will proceed to issue a final determination in the same terms as the draft.

4.13 Supported Employment Services Award 2010

[373] The current payment of wages clause in this award (clause 18) provides that wages may be paid in cash, by cheque or by electronic funds transfer at the employer’s discretion. Clauses 18.4 and 18.5 deal with termination payments, as follows:

‘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.

18.5 Where an employee lawfully leaves their employment they will be paid all monies due at the time of leaving. Payment may be made by cash, cheque or electronic funds transfer at the discretion of the employer.’

[374] ABI’s application seeks to delete clause 18.4 and insert the model term. It is unclear why ABI has not sought to delete clause 18.5. ABI relies on its general submissions referred to earlier and does not advance any award specific submissions.

[375] The HSU opposes ABI’s application and submits:

‘It is uncontroversial that this award covers vulnerable employees, particularly many employees with intellectual disabilities. Additionally, most of these employees are low paid, as they are paid a supported wage in accordance with a wage assessment tool, at rates below the standard minimum wage. The current term is appropriate in these unique circumstances.’ 154

[376] There is considerable force in the point advanced by the HSU.

[377] Clause 4.1 of the award provides that it covers employers throughout Australia who operate ‘supported employment services’ and their employees working in the classifications listed in Schedule B of the award. The expression ‘supported employment services’ is defined in clause 3.1 to mean “a service as defined in section 7 of the Disability Services Act 1986 (Cth)”. Section 7 of the Disability Services Act 1986 contains the following definition:

‘supported employment services’ means services to support the paid employment of persons with disabilities, being persons:

(a)  for whom competitive employment at or above the relevant award wage is unlikely; and

(b)  who, because of their disabilities, need substantial ongoing support to obtain or retain paid employment.

[378] Supported employment services were in past times referred to as ‘sheltered workshops’ or “business services” but their contemporary appellation is ‘Australian Disability Enterprises’ (ADEs). ADEs employ non-disabled persons who are covered by the SES Award, but consistent with their purpose the large majority of employees of ADEs are disabled persons. 155

[379] In recognition of the vulnerable nature of the employees covered by this award a Full Bench recently varied the award to insert clause 9A as follows:

‘9A. Rights at Work for Supported Employees

9A.1 When dealing with employment matters affecting supported employees the employer shall take all reasonable steps to provide such employees with the information they require to exercise their employment rights.

9A.2 Such reasonable steps will include but are not limited to the following.

•  Providing information to supported employees of their right to be a member of the union and be represented in the workplace by a union representative.

•  Providing information in relation to seeking information and or assistance from the Fair Work Ombudsman.

•  Providing information to a supported employee about their right to have their nominee, guardian, carer, parent or other family member, advocate or union assist them in making decisions about employment matters.

9A.3 In addition to those matters listed in clause 9A.2 the employer shall take reasonable steps to provide the opportunity to the supported employee to have their nominee, guardian, carer, parent or other family member, advocate or union involved in, or consulted or act as the employee’s representative in employment matters that affect or may affect the supported employee’s interests.

9A.4 Such matters shall include but not be limited to:

•  consultation about significant workplace change under clause 8;

•  consultation about changes to rosters or hours of work under clause 8A;

•  any dispute under clause 9 or other grievance;

•  wage assessments under clause 14.4(a) and Schedule D;

•  any disciplinary matter; and

•  performance appraisals.’

[380] In deciding to vary the award to insert clause 9A the Full Bench said:

‘[384] We are wholly persuaded that the SES Award should be varied to include a clause concerning “Rights at Work for Supported Employees”, as proposed by Our Voice. The evidence makes clear that disabled employees working in ADEs are a vulnerable group, and are likely to require information, representation, consultation and assistance concerning workplace decisions which affect their interests to an extent that is far greater than for non-disabled employees. It is equally clear that it is necessary for such employees’ parents, family members, carers, guardians, nominees, advocates or union, as relevant, to be involved. No interested party opposed the provision, and we consider that it is necessary to include it in the SES Award in order to meet the modern awards objective.’ 156

[381] We too acknowledge that a majority of employees covered by the award are vulnerable employees, many with intellectual disabilities. Further, the vast majority of these employees are ‘low paid’ within the meaning of s 134(1)((a). For these reasons an application which would have the effect of reducing existing entitlements requires scrutiny.

[382] As mentioned earlier, contested applications in which an existing term such as clauses 18.4 and 18.5 is sought to be replaced by the model term should be supported by probative evidence demonstrating that the existing term is impractical and operates unfairly to the employers and employees covered by the award. No such evidence was adduced ABI in support of its application. We are not persuaded that it is necessary that the award be varied in the manner proposed by ABI to ensure that the award achieves the modern awards objective. That said, we have earlier adopted the following general proposition:

‘Existing terms that require termination payments to be made ‘immediately’ or on the day of termination, with no alternative means available are impracticable and invite scrutiny.’

[383] The parties are directed to confer on the form of an alternate draft variation. The Commission is available to facilitate those discussions on request. In the event that the parties (either jointly or individually) wish to pursue a variation they are to file a s.157 application.

4.14 The Transport Awards

[384] ABI, Ai Group and NatRoad seek to vary the Road Transport and Distribution Award 2010 and the Road Transport (Long Distance Operations) Award 2010 (collectively, the ‘Transport Awards’). Each of these awards has been varied and is now a new 2020 award.

[385] Each of the Transport Awards permits payment by electronic funds transfer. The current termination payment terms are slightly different in each award.

[386] The current relevant term in the Road Transport and Distribution Award 2020 is as follows:

‘18.4 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.’

[387] The current relevant term in the Road Transport (Long Distance Operations) Award 2020 is as follows:

‘17.3 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.’

[388] We have already set out the general submissions advanced by ABI and Ai Group.

[389] In support of its application NatRoad submits that:

‘18. The operation of the current provisions is unfair to employers. It mandates the payment of a potentially significant sum and requires an employer to make arrangements to meet this financial obligation within a very limited period of time contemporaneously with the termination of an employee’s employment. The additional costs incurred, and regulatory burden borne by an employer due to the need to administer an additional pay run pursuant to the current clauses is also unfair. This much is ascertainable from the evidence of Allan Thornley filed with these submissions.

19. The termination of an employment relationship may also be brought about by an employee’s decision to resign. It is not fair that an employer is required to make the relevant payment with little or no notice. Where an employee terminates the employment relationship without any prior notice or indication of his or her intention to do so, an employer is presently put to the task of making arrangements to make final payments to that employee within a very limited period of time, irrespective of the method of payment utilised. Self-evidently, this is not a fair or reasonable outcome for employers given that they are not able to plan or pre-arrange for the payment that must be made.

20. The complexity involved in calculating a terminating employee’s full entitlements correctly is not a task to be done in haste. Typically, an SME does not have a dedicated payroll person with many undertaking this function as but one of many items to be undertaken to keep the business running. Many small employers that are affected by the Transport Awards are also drivers during business hours. Accordingly, the variation meets the modern award objective set out in s134(1)(d).

28. The rationale underpinning the relevant award terms as presently crafted can be understood in their historical context, whereby a significant proportion of employees were paid by cash. If such an employee were to be paid outstanding money due in the next pay cycle, the employee would need to attend the workplace to collect this payment, which admittedly puts the employee to some inconvenience.

29. With the adoption of payment by EFT, that rationale becomes far less relevant. Payment can be made by an employer via EFT on termination in the same way that wages would ordinarily be paid. EFT allows employees to access their funds at banks, other financial institutions, ATMs and online at any time. Once payment is made, the funds could be accessed by the employee within a very short period of time, if not immediately.

30. The variation proposed will remedy the archaic and inappropriate effect of the existing provision. These Applications provide a timely opportunity to modernise award terms to create fairness. The model term should be adopted as it better reflects contemporary payroll practices and the decreasing relevance of cash payments made to an employee whilst they are physically at the workplace: see the evidence of Allan Thornley.’ 157

[390] In support of its application NatRoad filed a witness statement of Mr Allan Thornley the managing director of Shawes Darwin Transport Pty Limited. Mr Thornley was not required for cross examination. We accept his evidence and note that it supports the submission advanced by NatRoad.

[391] In correspondence dated 7 September 2018 the TWU stated that it ‘has an interest’ in this award but has filed nothing since.

[392] ABI seeks to vary the transport awards by deleting clauses 18.4 and 17.3 (outlined above) and inserting the model term. As we observed earlier, in the case of uncontested applications we will more readily accept any uncontested assertions made in support of the application. We turn first to the s.134 considerations.

[393] We are satisfied that NatRoad has established a merit case in support of its application and we will vary the awards in the manner proposed. The requirement to pay termination payments ‘forthwith’ is vague and uncertain; and a requirement to pay ‘immediately’ is both ambiguous and impractical.

[394] A threshold of two-thirds of median full-time wages provides ‘a suitable and operational benchmark for identifying who is low paid,’ 158 within the meaning of s.134(1)(a).

[395] The most recent data for median earnings is for August 2019 from the ABS Characteristics of Employment (CoE) survey. Data on median earnings are also available from the Survey of Employee Earnings and Hours (EEH) for May 2018. On the basis of the data from the CoE survey for August 2019, two-thirds of median weekly earnings for full-time employees is $920.00. Data on median weekly full-time earnings are also available from the EEH survey for May 2018, and two-thirds of median earnings is equal to $973.33.

[396] Using the two-thirds of median full-time wages as the benchmark, the vast majority of award reliant employees covered by these awards are ‘low paid’ within the meaning of s.134(1)(a).

[397] We accept that the variations proposed may result in employees receiving termination payments later than they would under the current award; 2 working days as opposed to 7 days. This is a consideration that tells against the variation however the delay is not substantial

[398] The variations proposed would not discourage or undermine collective bargaining; but s 134(1)(b) speaks of the need to ‘encourage collective bargaining’. The proposed variations may be said to decrease the incentive for employers to bargain; but it is also likely that employee and employer decision making about whether or not to bargain is influenced by a complex mix of factors. We are not persuaded that the proposed variations would ‘encourage collective bargaining’. It follows that this consideration weighs against the variation proposed.

[399] The variations proposed are ‘consistent with the need to promote flexible modern work practices and are likely to have a positive impact on business’. We also accept that the variations proposed are consistent with the need to ensure a simple easy to understand modern award system (s.134(1)(d), (f) and (g)).

[400] We accept the submissions advanced by ABI, Ai Group and NatRoad in respect of the variation of these awards and will grant the variations sought. We are satisfied that the variations are necessary to achieve the modern awards objective. In reaching that conclusion we have had regard to the considerations in s.134(1)(a)-(h). The considerations in s.134(1)(c), (da), (e) and (h) are not relevant in the present context.

[401] Draft variation determinations will be issued shortly and interested parties will have 7 days to comment. If no comments are received we will proceed to issue a final determination in the same terms as the draft.

5. Summary and Next Steps

[402] Our decision in respect of each of the awards we have dealt with and the next steps to be taken, are summarised below.

Aged Care Award 2010

[403] The parties are directed to confer on the form of a draft variation having regard to views expressed at [204] – [208]. A conference will be convened in due course.

Black Coal Mining Industry Award 2010

[404] We have rejected Ai Group’s application to vary the Black Coal Mining Industry Award and are satisfied that the variation proposed by the CFMMEU (M&E) is necessary to ensure that the award achieves the modern awards objective and will vary the award in the terms proposed. A draft variation determination will be issued shortly and interested parties will have 7 days to comment. If no comments are received, we will proceed to issue a final determination in the same terms as the draft.

Business Equipment Award 2010 and Electrical, Electronic and Communications Contracting Award 2010

[405] The current termination payment terms in these awards are deficient. A conference of interested parties will be convened shortly to discuss this issue.

Building and Construction General On-site Award 2010

[406] We have rejected Ai Group’s application to vary the Building On-Site Award. Nor do we propose to make the variation proposed by the CFMMEU (C&G).

[407] We have expressed the view that where the scope of a current termination of payment term is extended in the manner proposed by the CFMMEU (C&G), the 7-day period in the model term should apply to the areas to which the clause is extended.

[408] We have noted that these issues require further examination. A conference of interested parties will be convened shortly.

Dry Cleaning and Laundry Industry Award 2020

[409] We have rejected ABI’s application to vary the Dry Cleaning and Laundry Industry Award. This issue can be revisited if any party wishes to file a s.157 application which advances an alternate proposal.

Graphic Arts, Printing and Publishing Award 2010

[410] We have expressed the provisional view that the current clause be varied and that an appropriate balance between the competing considerations would be as follows:

1. The following amounts must be paid by the end of the next business day after the day on which the employee’s employment terminates:

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

•  all other monies due to the employee under the award.

2. The following amounts must be paid no later than 7 days after the day on which the employee’s employment terminates:

•  all amounts due to the employee under the NES.

[411] The parties have been directed to confer on the form of a draft variation having regard to views expressed above. A conference will be convened in due course.

Manufacturing Awards (the FBT Award and the Manufacturing Award)

[412] We have expressed the provisional view that the current clauses be varied and that an appropriate balance between the competing considerations would be as follows:

1. The following amounts must be paid by the end of the next business day after the day on which the employee’s employment terminates:

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

•  all other monies due to the employee under the award.

2. The following amounts must be paid no later than 7 days after the day on which the employee’s employment terminates:

•  all amounts due to the employee under the NES.

[413] The parties have been directed to confer on the form of a draft variation having regard to views expressed above. A conference will be convened in due course.

Meat Industry Award 2010

[414] We have accepted the submissions advanced by ABI and Ai Group in respect of the variation of this award and will grant the variation sought. A draft variation determination will be published shortly and interested parties will have 7 days to comment. If no comments are received we will proceed to issue a final determination in the same terms as the draft.

Mobile Crane Hiring Award 2010

[415] We have rejected Ai Group’s application to vary this award.

[416] We are satisfied that the variation proposed by the CFMMEU (C & G) is necessary to ensure that this award achieves the modern awards objective and will vary the award in the terms it proposes. A draft variation determination will be issued shortly and interested parties will have 7 days to comment. If no comments are received, we will proceed to issue a final determination in the same terms as the draft.

Nurses Award 2010

[417] We are satisfied that the amendments proposed by the ANMF to the model term are appropriate. A draft variation determination will be published shortly and interested parties will have 7 days to comment. If no comments are received, we will proceed to issue a final determination in the same terms as the draft.

Passenger Vehicle Transportation Award 2020

[418] We have accepted the submissions advanced by ABI in respect of the variation of this award and will grant the variation sought. A draft variation determination will be published shortly and interested parties will have 7 days to comment. If no comments are received, we will proceed to issue a final determination in the same terms as the draft.

Plumbing and Fire Sprinklers Award 2010

[419] We accept the submissions advanced by ABI and Ai Group in respect of the variation of this award and will grant the variation sought (subject to the amendment of Note 2).

[420] A draft variation determination will be published shortly and interested parties will have 7 days to comment. If no comments are received, we will proceed to issue a final determination in the same terms as the draft.

Seafood Processing Award 2020

[421] We accept the submissions advanced by Ai Group in respect of the variation of this award and will grant the variation sought. A draft variation determination will be published shortly and interested parties will have 7 days to comment. If no comments are received, we will proceed to issue a final determination in the same terms as the draft.

Supported Employment Services Award 2010

[422] We have rejected ABI’s application to vary this award. The parties have been directed to confer on the form of an alternate draft variation. The Commission is available to facilitate those discussions on request. In the event that the parties (either jointly or separately) wish to pursue a variation they are to file a s.157 application.

Timber Industry Award 2010

[423] The parties are continuing to engage in discussions in order to narrow the issues in dispute although no submissions have been received. The parties are directed to finalise these discussions and file a joint report by 4pm on Friday 26 June 2020.

Transport Awards (Road Transport and Distribution Award 2020 and Transport (Long Distance Operations) Award 2020)

[424] We accept the submissions advanced by ABI, Ai Group and NatRoad in respect of the variation of these awards and will grant the variations sought. Draft variation determinations will be issued shortly and interested parties will have 7 days to comment. If no comments are received, we will proceed to issue a final determination in the same terms as the draft.

Vehicle Manufacturing, Repair, Services and Retail Award 2010

[425] We propose to vary the award in the terms set out at [91]. A draft variation determination will be published shortly and interested parties will have 7 days to comment. If no comments are received, we will proceed to issue a final determination in the same terms as the draft.

Waste Management Award 2010

[426] We propose to vary the award in the terms set out at [102] and [103]. A draft variation determination will be published shortly and interested parties will have 7 days to comment. If no comments are received, we will proceed to issue a final determination in the same terms as the draft.

6. Conclusion

[427] This decision concludes the termination payment aspect of the payment of wages common issue. Save for the conferences to be convened in respect of the outstanding issues in the Building On-Site Award; Business Equipment Award; Electrical, Electronic and Communications Contracting Award; Graphic Arts Award; the Manufacturing Awards and the Timber Industry Award.

[428] A Statement will be published in June 2020 dealing with the remaining matter in the payment of wages common issue – the timing of the payment of wages.

PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR717164>

Hearing

2020.
12 March.
Sydney

Appearances

Mr S Maxwell for the CFMMEU, Construction and General Division.
Ms B Wiles  for the CFMMEU Manufacturing Division.
Ms Sarlos for the from CFMMEU (M & E)
Mr W Chesterman for VACC the Motor Trades Associations of New South Wales, Queensland and Western Australia.
Ms Y Abousleiman for the CEPU.
Ms A Devasia for the AMWU with Ms L. Lettau
Ms R Bhatt for the Australian Industry Group.
Mr L. Izzo for Australian Business Industrial and NSW Business Chamber
Mr M Sheehan for the Motor Trade Association of SA
Ms R Sostarko for Master Builders Australia
Mr D Johns for the National Road Transport Association (t/as NAVRO)
Ms L Regan, Housing Industry Association
Mr S Crawford, Australian Workers’ Union

1 [2016] FWCFB 8463

2 Ibid at [86]

3 [2018] FWCFB 3566.

4 Ibid at[119].

5 See [2018] FCFB 3566, [2018] FWCFB 4735

6 See the Waste Management Award 2010 at clause 24.3

7 See the Plumbing and Fire Sprinklers Award 2010 at clause 27.4

8 See the Nurses Award 2010 at clause 18.

9 See the Horse and Greyhound Training Award 2010 at clause 18.1

10 Ibid at page 1.

11 ANMF submission, 7 September 2018 at pages 3-4.

12 Ibid.

13 [2019] FWCFB 5146

14 PHIEA submission, 16 August 2019 at p.3.

15 Ai Group submission, 21 August 2019 at para 68.

16 Ai Group Submission 21 August 2019 at para. 69.

17 [2019] FWFB 5868 at 34.

18 [2018] FWCFB 3009.

19 ANMF submission, 25 September 2019 at p.1

20 [2017] FWCFB 4355

21 [2018] FWCFB 3009

22 [2018] FWCFB 3009 at [63] – [67]

23 Ai Group submission, 21 August 2019 at [69].

24 Ai Group submission, 21 September 2018 at page 1.

25 AMWU (with CFMMEU) submission, 21 September 2018.

26 Victorian Automobile Chamber of Commerce; Motor Traders Association of NSW; Motor Traders Association of SA and Motor Traders Association of WA

27 PR717456.

28 MTO submission, 24 September 2019 at para [14].

29 Ibid at para 15(i)(c).

30 Ibid at para 15(i)(c).

31 Ibid at para 15(ii)(a).

32 Ibid at para 15(ii)(b).

33 Ibid at para 15(ii)(c).

34 Ibid at para 15(iii)(a).

35 Ibid at para 15(iii)(b).

36 Ibid at para 15(iii)(d).

37 Ibid at para 15(iii)(e).

38 Ibid at para 15(iii)(f).

39 Ibid at para 15(iii)(g).

40 AMWU submission, 25 September 2019 at para 9.

41 Ibid at para 11.

42 See clause 24.4(a) of the Vehicle Manufacturing, Repair, Services and Retail Award 2010

43 Ibid at para 14.

44 Ibid at para 13.

45 Ibid at para 14.

46 Ibid at paras 21-22.

47 Ibid at paras 23-24.

48 Ibid at para 25.

 49   [2015] FCA 1196.

50 Ai Group submission 7 September 2018, para 13.

51 AMWU submission 7 September 2018, paras 2-3; AWU submission 10 September 2018; TWU submission 7 September 2018.

52 Ai Group submission, 21 August 2019 at [70] – [80].

53 [2019] FWFB 5868 at 34.

54 ABI submission, 26 August 2019.

55 Ibid at para 2.2.

56 Ibid.

57 ABI submission, 21 August 2019

58 Ai Group submission, 21 August 2019

59 HIA submission, 21 August 2019

60 NatRoad submission and witness statement, 21 August 2019

61 [2019] FWCFB 5868

62 AMWU submission, 25 September 2019

63 CEPU submission, 25 September 2019

64 CFMMEU –Construction submission, 25 September 2019

65 CFMMEU–Manufacturing submission, 30 September 2019

66 CFMMEU–Mining submission, 25 September 2019

67 MBA submission, 25 September 2019

68 MPA submission, 25 September 2019

69 ABI submissions 21 August 2019 at 6.4

70 Ibid at 6.5

71 Ibid at 6.9

72 Ibid at 6.11 – 6.14

73 Ibid at 6.16 – 6.17

74 Ibid at 6.19 – 6.20

75 Ai Group submission, 20 September 2018.

76 Ai Group Submission 21 August 2019 at [6]

77 AMWU Submissions 26 September 2019 at [11]-[12].

78 Ibid at [16].

79 Ibid at [16].

80 [2016] FWCFB 8463 at [94]-[99].

81 Ibid at [99].

82 Warren Soos Statement [8]-[10] and [15]

83 Ibid at [23]-[24].

 84   Ai Group submission 23 September 2019 at [26] – [30]

85 CFMMEU (C & G) Submissions 25 September 2019 at [16].

86 https://www.canstar.com.au/superannuation/superstream-guide/

87 https://www.ato.gov.au/Super/SuperStream/

88 https://www.ato.gov.au/Media-centre/Media-releases/SuperStream-starts-for-small-employers---ATO-urges-employers-to-get-ready/

89 See https://www.ato.gov.au/Business/Single-Touch-Payroll/In-detail/Single-Touch-Payroll-employer-reporting-guidelines/

90 https://www.ato.gov.au/Business/Single-Touch-Payroll/In-detail/Single-Touch-Payroll-employer-reporting-guidelines/?anchor=Guidanceforpayeventreporting#Guidanceforpayeventreporting

91 https://api.gov.au/productregister/

92 https://www.myob.com/au/accounting-software/essentials

93 https://www.xero.com/au/pricing/plan-details/#payroll-only

94 https://www.coins-global.com/apac/blog/case-study-coins-and-timefiler-transform-diona-s-payroll-and-timesheet-process/bp456/

95 https://www.rba.gov.au/payments-and-infrastructure/new-payments-platform/

96 https://www.rba.gov.au/publications/bulletin/2018/sep/the-new-payments-platform-and-fast-settlement-service.html

97 CFMMEU C & G submission, 25 September 2019 at para 41.

98 ABI Reply Submissions 19 April 2020 at 3.1.

99 ABI Submissions 20 September 2016 at 5.3.

100 Ibid at 5.4.

101 https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am20168-sub-abi-200916-amended.pdf; https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am20168-sub-abinswbc-210819.pdf

102 https://www.ato.gov.au/Business/Your-workers/In-detail/Taxation-of-termination-payments/?page=5#Tax_free_component_of_ETPs

103 https://www.ato.gov.au/Business/Your-workers/In-detail/Taxation-of-termination-payments/?page=4#Redundancy_and_early_retirement

104 https://www.ato.gov.au/Rates/Schedule-11---Tax-table-for-employment-termination-payments/?page=4#Working_out_the_withholding_amount

105 https://www.ato.gov.au/Business/Your-workers/In-detail/Taxation-of-termination-payments/?anchor=Employmentterminationpaymentcaps#Employmentterminationpaymentcaps

106 https://www.ato.gov.au/Individuals/Working/Working-as-an-employee/Leaving-your-job/Redundancy-payments/

107 https://www.ato.gov.au/Business/Your-workers/In-detail/Taxation-of-termination-payments/?anchor=Accruedleave#Accruedleave

108 ABI Submissions 19 April 2020 at [3.5]-[3.6]

109 ABI Submissions 19 April 2020 at 4.3-4.4.

110 Ai Group Submissions 19 April at [11]."

111 Ibid at [16].

112 Ibid at [17]-[20].

113 [2016] FWCFB 7455

114 [2018] FWCFB 3566

115 [2014] FWCFB 1788 at [60]

116 Codelfa Construction Pty Ltd v State Rail Authority of NSW (1982) 149 CLR 337

117 Birrell v Australian National Airlines Commission [1984] 9 IR 101

118 See generally GJ McCarry (1986), ‘Termination of Employment Contracts by Notice’, 60 ALJ 78, pp 78 – 86

119 [2016] FWCFB 8463 at [90]

 120   CFMMEU (M&E) submission 25 September 2019 at paras. 52-54

 121   Mark Watson Statement 25 September 2019 at paras. 5 and 16-18

 122   Ai Group submission 19 April 2020 at para. 58

 123   Ai Group submission 19 April 2020 at para. 53

 124   CFMEU (Mining and Energy Division) submission 20 September 2016

 125   Ai Group submission 19 April 2020 at para. 59

 126   HIA submission at para 2.1.2.

 127   HIA submission at paras 2.2.2 – 2.2.6 and 2.2.8.

 128   CFMMEU (C&G) Reply submission 25 September 2019 at para. 50

 129   [2016] FWCFB 3177 at paras [60] and [61].

 130   See [27]-[29] Ai Group’s submission.

 131   See clause 25.1 of the Business Equipment Award 2010 & clause 22.2 of the Electrical, Electronic and Communications Contracting Award 2010.

 132   Ai Group’s position is that cash exceeding $200 in value cannot be sent by post. See [27] of Ai Groups submissions.

 133   See ABI & NSWBC Draft Determination for the Dry Cleaning and Laundry Industry Award 2010 – Annexure D to ABI&NSWBC Application (filed 21 September 2018)

 134   CFMMEU – Manufacturing – Reply submission 30 September 2019 at paras. 36-37

 135   CFMMEU – Manufacturing – Reply submission 30 September 2019 at paras. 43-47.

 136   Re Australian Business Industrial [2012] FWC 8726; upheld on appeal, AMWU v Australian Business Industrial [2013] FWCFB 580

 137   [2012] FWA 8726

 138   [2012] FWA 8726 at [18]

 139   [2012] FWA 8726 at [27]

140 [2013] FWCFB 580

 141   [2014] FWCFB 1788 at [19]–[24] (the Preliminary Jurisdictional Issues Decision)

 142   AMWU submission 25 September 2019 at [33]

 143   Ai Group submission 19 April 2020 at [25] – [26]

 144   [2019] FWCFB 5868

 145   [2020] FWCFB 1205

 146   Ai Group submission 21 August 2019 at [56].

 147   [2017] FWCFB 1001 at [166]

 148   Ai Group Reply submission, 19 April at 2020 [25] and [59].

 149   [2019] FWCFB 5868

 150   [2020] FWCFB 1205

 151   [2017] FWCFB 1001 at [166]

 152   [2017] FWCFB 1001 at [166]

 153   [2017] FWCFB 1001 at [166]

 154   HSU submission, 17 April 2020, paragraph [6]

 155   [2019] FWCFB 8179 at [9] – [10]

 156   Ibid, at [384]

 157   NatRoad submission, 21 August 2019, at [18] – [20] and [28] – [30].

 158   [2017] FWCFB 1001 at [166]