| [2015] FWCFB 8030 |
| FAIR WORK COMMISSION |
STATEMENT |
Fair Work Act 2009
s.156 - 4 yearly review of modern awards
JUSTICE ROSS, PRESIDENT |
|
4 yearly review of modern awards - common issue - annual leave - determinations.
[1] On 11 June 2015 a Full Bench decision about annual leave provisions in modern awards determined model terms in relation to granting leave in advance of accrual and EFT and paid annual leave. The decision also contained provisional model terms for cashing out annual leave and dealing with excessive leave accruals. After providing interested parties with a further opportunity to be heard the cashing out and excessive leave model terms were finalised in a subsequent decision issued on 15 September 2015 1.
[2] On 30 September 2015 draft determinations were published on the Fair Work Commission website inserting the relevant model terms into all modern awards and the following directions were issued:
‘All interested parties who now contend that a particular modern award should not be varied to incorporate one or more of the annual leave model terms are to file a submission and any evidence sought to be adduced in support of the submission …’
[3] In accordance with the above directions a number of parties filed submissions and submissions in reply. Attachment A contains a list of the submissions made regarding the insertion of one or more model clauses in 34 modern awards.
[4] A hearing has been scheduled for 9:30am on Tuesday 8 December 2015 to provide interested parties with an opportunity to make oral submissions in relation to the draft determinations.
[5] This Statement sets out our provisional view as to how we propose to deal with the submissions filed.
[6] Other than the general submission outlined in paragraph [7] no award specific submissions were received in relation to the 88 modern awards set out in Attachment B.
[7] The Australian Industry Group (Ai Group) made a general submission on 26 November 2015 in relation to the excessive leave model term stating that the model term reduces flexibility for employers. Ai Group submit that where an excessive leave term is currently in a modern award, that term should be retained. A similar submission was made by Australian Business Industrial and the New South Wales Business Chamber Ltd (jointly ABI) in relation to the Clerks—Private Sector Award 2010. ABI submit that the current excessive leave provision should be retained.
[8] An employee covered by the Waste Management Award 2010 submitted that a definition of shiftworker for the purpose of the additional week of annual leave should be inserted in this award. Given that this award provides for shiftwork, our provisional view is that the variation determination include the following definition:
‘For the purposes of the additional week of annual leave provided in s.87(1)(b) of the Act, a shiftworker is a seven day shiftworker who is regularly rostered to work on Sundays and public holidays.’
[9] Parties are invited to file written submissions regarding the provisional view expressed (including the terms of the proposed variation) in paragraph [8] above by emailing amod@fwc.gov.au no later than 4.00 pm on Thursday 3 December 2015.
[10] A number of submissions were made in relation to the particular employment arrangements under the following awards in the education sector:
[11] A Full Bench has been constituted to deal with the substantive claims in the education sector in AM2015/6. The implementation of the annual leave terms in the above awards will be referred to that Full Bench.
[12] The Australian Mines and Metals Association Inc (AMMA) and Maritime Industry Association Ltd (MIA) made detailed submissions opposing the model terms for excessive leave, granting annual leave in advance and cashing out annual leave in the following awards in this sector:
[13] AMMA and MIA outlined the unique rostering arrangements in this sector and submit that under these awards, industry specific provisions operate in conjunction with the National Employment Standards. In their reply submission, the Australian Workers’ Union did not object to the submissions made by AMMA and MIA.
[14] Our provisional view is that the draft determinations inserting annual leave provisions dealing with excessive leave, leave in advance and cashing out will not be issued in relation to these six awards. Any interested persons objecting to our provisional view should file written submissions no later than 4.00 pm on Thursday 3 December 2015. If no submissions are made to the contrary we will adopt AMMA/MIA’s position.
[15] Submissions were also made in relation to the following awards:
Hospitality group |
Hospitality Industry (General) Award 2010 |
Registered and Licensed Clubs Award 2010 |
Restaurant Industry Award 2010 |
Agriculture group |
Horticulture Award 2010 |
Pastoral Award 2010 |
Wine Industry Award 2010 |
Miscellaneous group |
Passenger Vehicle Transportation Award 2010 |
Black Coal Mining Industry Award 2010 |
Resources group |
Hydrocarbons Industry (Upstream) Award 2010 |
Mining Industry Award 2010 |
Oil Refining and Manufacturing Award 2010 |
Salt Industry Award 2010 |
Health group |
Medical Practitioners Award 2010 |
Aboriginal Community Controlled Health Services Award 2010 |
Aged Care Award 2010 |
Ambulance and Patient Transport Industry Award 2010 |
Health Professionals and Support Services Award 2010 |
Nurses Award 2010 |
Pharmacy Industry Award 2010 |
Social, Community, Home Care and Disability Services Industry Award 2010 |
[16] Submissions in relation to the above awards and the general submissions referred to in paragraph [7], will be dealt with at the Full Bench at a hearing on Tuesday 8 December 2015. A schedule for those proceedings is at Attachment C.
PRESIDENT
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<Price code C, PR574227>
ATTACHMENT A—LIST OF SUBMISSIONS
Organisation |
Document |
Date |
Australian Public Transport Industrial Association |
Submission - draft determination - Passenger Vehicle Transportation Award 2010 |
13/07/2015 |
Australian Higher Education Industrial Association |
13/07/2015 | |
D. Kruse and others |
Submission - draft determination - Waste Management Award 2010 |
21/10/2015 |
Clubs Australia Industrial |
Submission - draft determination - Registered and Licensed Clubs Award 2010 |
26/10/2015 |
Australian Industry Group |
26/10/2015 | |
CFMEU - Mining and Energy Division |
Submission - draft determination - Black Coal Mining Industry Award 2010 |
26/10/2015 |
Coal Mining Industry Employer Group |
Submission - draft determination - Black Coal Mining Industry Award 2010 |
26/10/2015 |
Associations of Independent Schools |
Submission - draft determination - Educational Services (Teachers) Award 2010 |
26/10/2015 |
Restaurant & Catering Australia |
Submission - draft determination - Restaurant Industry and Hospitality Industry (General) awards |
26/10/2015 |
Australian Hotels Association |
26/10/2015 | |
National Farmers' Federation |
Submission - draft determinations - Horticulture, Pastoral and Wine industry awards |
26/10/2015 |
Australian Mines and Metals Association and Maritime Industry Australia |
26/10/2015 | |
Group of Eight Universities |
26/10/2015 | |
Australian Mines and Metals Association |
26/10/2015 | |
Independent Education Union |
Submission - draft determination - Educational Services (Teachers) Award 2010 |
26/10/2015 |
Australian Salaried Medical Officers' Federation |
Submission - draft determination - Medical Practitioners Award 2010 |
26/10/2015 |
Australian Business Industrial and NSW Business Chamber |
Submission - draft determination - Clerks—Private Sector Award 2010 and others |
27/10/2015 |
Australian Chamber of Commerce and Industry |
29/10/2015 | |
Health Services Union |
02/11/2015 | |
Coal Mining Industry Employer Group |
Submissions in reply - Black Coal Mining Industry Award 2010 |
11/11/2015 |
The Australian Workers' Union |
11/11/2015 | |
CFMEU - Construction and General Division |
Submissions in reply - Building and Construction General On-site Award 2010 and others |
11/11/2015 |
CFMEU - Mining and Energy Division |
Submissions in reply - Black Coal Mining Industry Award 2010 |
11/11/2015 |
Australian Industry Group |
11/11/2015 | |
AMWU - Vehicle Division |
Submissions in reply - Vehicle Manufacturing, Repair, Services and Retail Award 2010 |
13/11/2015 |
AMWU |
13/11/2015 | |
APESMA - Collieries' Staff Division |
13/11/2015 | |
Textile, Clothing and Footwear Union of Australia |
13/11/2015 |
ATTACHMENT B—LIST OF AWARDS WITH NO SUBMISSIONS
Award code |
Award title |
MA000046 |
Air Pilots Award 2010 |
MA000047 |
Aircraft Cabin Crew Award 2010 |
MA000048 |
Airline Operations—Ground Staff Award 2010 |
MA000049 |
Airport Employees Award 2010 |
MA000092 |
Alpine Resorts Award 2010 |
MA000060 |
Aluminium Industry Award 2010 |
MA000080 |
Amusement, Events and Recreation Award 2010 |
MA000118 |
Animal Care and Veterinary Services Award 2010 |
MA000114 |
Aquaculture Industry Award 2010 |
MA000079 |
Architects Award 2010 |
MA000054 |
Asphalt Industry Award 2010 |
MA000019 |
Banking, Finance and Insurance Award 2010 |
MA000078 |
Book Industry Award 2010 |
MA000091 |
Broadcasting and Recorded Entertainment Award 2010 |
MA000021 |
Business Equipment Award 2010 |
MA000095 |
Car Parking Award 2010 |
MA000055 |
Cement and Lime Award 2010 |
MA000070 |
Cemetery Industry Award 2010 |
MA000120 |
Children’s Services Award 2010 |
MA000022 |
Cleaning Services Award 2010 |
MA000045 |
Coal Export Terminals Award 2010 |
MA000083 |
Commercial Sales Award 2010 |
MA000056 |
Concrete Products Award 2010 |
MA000023 |
Contract Call Centre Award 2010 |
MA000110 |
Corrections and Detention (Private Sector) Award 2010 |
MA000024 |
Cotton Ginning Award 2010 |
MA000075 |
Educational Services (Post-Secondary Education) Award 2010 |
MA000076 |
Educational Services (Schools) General Staff Award 2010 |
MA000088 |
Electrical Power Industry Award 2010 |
MA000025 |
Electrical, Electronic and Communications Contracting Award 2010 |
MA000003 |
Fast Food Industry Award 2010 |
MA000111 |
Fire Fighting Industry Award 2010 |
MA000094 |
Fitness Industry Award 2010 |
MA000073 |
Food, Beverage and Tobacco Manufacturing Award 2010 |
MA000105 |
Funeral Industry Award 2010 |
MA000101 |
Gardening and Landscaping Services Award 2010 |
MA000061 |
Gas Industry Award 2010 |
MA000004 |
General Retail Industry Award 2010 |
MA000026 |
Graphic Arts, Printing and Publishing Award 2010 |
MA000005 |
Hair and Beauty Industry Award 2010 |
MA000008 |
Horse and Greyhound Training Award 2010 |
MA000064 |
Hydrocarbons Field Geologists Award 2010 |
MA000029 |
Joinery and Building Trades Award 2010 |
MA000067 |
Journalists Published Media Award 2010 |
MA000099 |
Labour Market Assistance Industry Award 2010 |
MA000116 |
Legal Services Award 2010 |
MA000081 |
Live Performance Award 2010 |
MA000112 |
Local Government Industry Award 2010 |
MA000117 |
Mannequins and Models Award 2010 |
MA000010 |
Manufacturing and Associated Industries and Occupations Award 2010 |
MA000093 |
Marine Tourism and Charter Vessels Award 2010 |
MA000030 |
Market and Social Research Award 2010 |
MA000059 |
Meat Industry Award 2010 |
MA000104 |
Miscellaneous Award 2010 |
MA000032 |
Mobile Crane Hiring Award 2010 |
MA000033 |
Nursery Award 2010 |
MA000097 |
Pest Control Industry Award 2010 |
MA000069 |
Pharmaceutical Industry Award 2010 |
MA000036 |
Plumbing and Fire Sprinklers Contracting Award 2010 |
MA000051 |
Port Authorities Award 2010 |
MA000074 |
Poultry Processing Award 2010 |
MA000057 |
Premixed Concrete Award 2010 |
MA000109 |
Professional Diving Industry (Recreational) Award 2010 |
MA000065 |
Professional Employees Award 2010 |
MA000037 |
Quarrying Award 2010 |
MA000013 |
Racing Clubs Events Award 2010 |
MA000014 |
Racing Industry Ground Maintenance Award 2010 |
MA000015 |
Rail Industry Award 2010 |
MA000106 |
Real Estate Industry Award 2010 |
MA000039 |
Road Transport (Long Distance Operations) Award 2010 |
MA000038 |
Road Transport and Distribution Award 2010 |
MA000068 |
Seafood Processing Award 2010 |
MA000016 |
Security Services Industry Award 2010 |
MA000040 |
Silviculture Award 2010 |
MA000082 |
Sporting Organisations Award 2010 |
MA000121 |
State Government Agencies Administration Award 2010 |
MA000053 |
Stevedoring Industry Award 2010 |
MA000084 |
Storage Services and Wholesale Award 2010 |
MA000087 |
Sugar Industry Award 2010 |
MA000103 |
Supported Employment Services Award 2010 |
MA000066 |
Surveying Award 2010 |
MA000041 |
Telecommunications Services Award 2010 |
MA000071 |
Timber Industry Award 2010 |
MA000042 |
Transport (Cash in Transit) Award 2010 |
MA000102 |
Travelling Shows Award 2010 |
MA000089 |
Vehicle Manufacturing, Repair, Services and Retail Award 2010 |
MA000113 |
Water Industry Award 2010 |
MA000044 |
Wool Storage, Sampling and Testing Award 2010 |
ATTACHMENT C—PROPOSED SCHEDULE FOR HEARING
This matter is listed before the Full Bench on 9.30 am on Tuesday 8 December 2015
The submissions will be dealt with in accordance with the following schedule:
Time |
Group/Awards |
9.30 am |
General submission by Ai Group |
Submission by ABI re Clerks—Private Sector Award 2010 | |
Not before |
|
10.30 am |
Hospitality group |
|
Hospitality Industry (General) Award 2010 | |
|
Registered and Licensed Clubs Award 2010 | |
|
Restaurant Industry Award 2010 | |
Agriculture group | |
|
Horticulture Award 2010 | |
|
Pastoral Award 2010 | |
|
Wine Industry Award 2010 | |
11.00 am |
Passenger Vehicle Transportation Award 2010 |
Waste Management Award 2010 | |
Not before |
|
11.30 am |
Black Coal Mining Industry Award 2010 |
Resources group | |
|
Hydrocarbons Industry (Upstream) Award 2010 | |
|
Mining Industry Award 2010 | |
|
Oil Refining and Manufacturing Award 2010 | |
|
Salt Industry Award 2010 | |
Not before |
|
2.00 pm |
Health group |
|
Medical Practitioners Award 2010 | |
|
Aboriginal Community Controlled Health Services Award 2010 | |
|
Aged Care Award 2010 | |
|
Ambulance and Patient Transport Industry Award 2010 | |
|
Health Professionals and Support Services Award 2010 | |
|
Nurses Award 2010 | |
|
Pharmacy Industry Award 2010 | |
|
Social, Community, Home Care and Disability Services Industry Award 2010 |