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

4 yearly review of modern awards - common issue - award flexibility - time off in lieu of payment for overtime.

[1] The purpose of this statement is to inform interested parties as to the matters which will be dealt with during the Award Flexibility hearing on 10 December 2015 and how the Full Bench proposes to deal with the remaining issues.

[2] On 16 July 2015 a decision was issued 1 (the July decision) setting out a provisional model term regarding time off in lieu of payment for overtime (TOIL). After providing interested parties with a further opportunity to be heard, the model TOIL term was finalised in a decision issued 6 October 20152 (the October decision).

[3] Directions 3 were issued on 6 October 2015 stating that draft determinations would be published on the Fair Work Commission website for comment. The draft determination dealt with the proposed variation of the 113 modern awards listed in Attachment F to the July decision (the Directions) to include the model TOIL term. Draft determinations4 were published on the Fair Work Commission website on 16 October 2015.

[4] In accordance with the Directions a number of parties filed submissions and submissions in reply. Attachment A contains a list of the submissions received.

[5] The submissions filed fall into two broad categories: general submissions and award specific submissions. General submissions were made by the Australian Industry Group (Ai Group) and Australian Business Industrial and the New South Wales Chamber (jointly ABI) and a number of submissions were filed in reply to the Ai Group and ABI submissions, by the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU), AMWU—Vehicle Division, The Australian Workers’ Union (AWU) and the Textile, Clothing and Footwear Union of Australia (TCFUA).

[6] Award specific submissions were made in relation to a number of modern awards. These submissions can be grouped into four broad categories.

(i) Resource Industry modern awards

The Australian Mines and Metals Association (AMMA) made submissions in respect of the following resource industry awards:

●Hydrocarbons Industry (Upstream) Award 2010



●Mining Industry Award 2010



●Oil Refining and Manufacturing Award 2010



●Salt Industry Award 2010



(ii) Maritime modern awards

The Australian Mines and Metals Association (AMMA) and Maritime Industry Australia Limited (MIA) made submissions in respect of the following maritime industry awards:

● Marine Towage Award 2010;

● Ports, Harbours and Enclosed Water Vessels Award 2010;

● Professional Diving Industry (Industrial) Award 2010; and

● Dredging Industry Award 2010;

[We note that AMMA also made submissions in relation to the Maritime Offshore Oil and Gas Award 2010 and Seagoing Industry Award 2010. These awards were not included in Attachment F to the July decision and absent any submission to the contrary it is not intended that they be varied to include the model TOIL provision.]

(iii) Higher Education Industry—General Staff—Award 2010

The Group of Eight Universities made submissions in relation to the Higher Education Industry—General Staff—Award 2010.

(iv) Other

● Horticulture Award 2010
 
● Live Performance Award 2010

● Medical Practitioners Award 2010

● Pastoral Award 2010

● Social, Community, Home Care and Disability Services Award 2010

[7] The awards set out at (i), (ii) and (iii) in paragraph [6] above will not be the subject of the 10 December proceedings. We propose to deal with those awards in the following way:

(i) The Resources and Maritime awards (set out at (i) and (ii) in paragraph [6]) will be referred to Deputy President Kovacic for conference. The purpose of such conferences is to facilitate discussion between the parties to identify common positions and provide more clarity around any issues in contention.

(ii) The Higher Education Industry—General Staff—Award 2010 will be referred to the Full Bench that has been constituted to deal with the substantive claims in the education sector in AM2015/6, consistent with the approach the Commission took in dealing with the Annual leave common issue.

[8] In view of the process set down in paragraph [7] there is no need for the parties who have made award specific submissions in relation to the resources modern awards (see [6](i)), the maritime modern awards (see [6](ii)) and the Higher Education Industry – General Staff – Award 2010, to attend the hearing on 10 December 2015.

[9] Submissions in relation to ‘other awards’ in paragraph [6](iv), and the general submissions referred to in paragraph [5], will be dealt with at the Full Bench hearing on Thursday, 10 December 2015. At the hearing parties will be given an opportunity to make oral submissions in relation to the general submissions filed and about ‘other’ awards set out at paragraph [6](iv) above. A proposed schedule for those proceedings is at Attachment B.

PRESIDENT

Attachment A—List of submissions

Attachment B—Proposed schedule for Hearing

This matter is listed before the Full Bench at 9.30 am on Thursday 10 December 2015.

This submissions will be dealt with in accordance with the following schedule:

 1   [2015] FWCFB 4466

 2   [2015] FWCFB 6847

 3   Directions 6 October 2015.

 4   Schedule of draft determinations, 16 October 2015.

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