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

4 yearly review of modern awards - common issue – annual leave – Maritime Industry Awards – finalisation of excessive leave provisions in remaining awards.

[1] On 23 May 2016 we issued a decision (the May 2016 decision) 1 dealing with, among other things, the insertion of the model terms relating to excessive leave; annual leave in advance and cashing out of annual leave into various modern awards. Arising from that decision, a number of modern awards have been the subject of proceedings before the Commission directed at finalising whether these awards should be varied to include some or all of the model terms.

[2] These directions concern two different groupings of modern awards as set out below.

The ‘Maritime Industry Awards’

[3] The ‘Maritime Industry Awards’ are the:

• Dredging Industry Award 2010;
• Marine Towage Award 2010;
• Maritime Offshore Oil and Gas Award 2010;
• Ports, Harbours and Enclosed Water Vessels Award 2010;
• Professional Diving Industry (Industrial) Award 2010; and
• Seagoing Industry Award 2010.

[4] The Australian Mines and Metals Association (AMMA) and the Maritime Industry Australia Ltd (MIAL) oppose the insertion of the model terms into the Maritime Awards. The Maritime Union of Australia (MUA) supports that position.

[5] The May 2016 decision sets out some of the broader background to the present matter at paragraphs [231]–[235]. Relevantly paragraphs [233]–[238] state:

“[233] We dealt with this issue in the December Statement, noting ‘No submissions were received in relation to this issue. Accordingly, at this time we do not propose to vary the six modern awards set out at paragraph [4] above in respect of the model terms referred to earlier. Any interested party may seek to vary one or more of these modern awards during the 4 yearly review to include these model terms. We will deal with any such application should it be made.’ 2

[234] On reflection, we have decided to give further consideration to the view expressed in the December Statement, for the reasons set out below.

[235] As mentioned earlier, the Employer Group sought to insert a standard ‘cashing out of paid annual leave’ term in 120 modern awards – including all of the Maritime Awards. The Employer Group submission in the June 2015 proceeding was advanced on the basis that the variations would ensure that the awards subject to the claim achieved the modern awards objective. Implicit in such a submission is the proposition that those awards did not meet the modern awards objective.

[236] Similarly, four of the Maritime Awards (Dredging Industry Award 2010; Maritime Offshore Oil and Gas Award 2010; Professional Diving Industry (Industrial) Award 2010; and Seagoing Industry Award 2010) (see Attachment H to the June 2015 decision) were among the modern awards which were the subject of the Employer Group claim to insert a standard leave in advance term. Further, three of the Maritime Awards (Dredging Industry Award 2010; Maritime Offshore Oil and Gas Award 2010; and Professional Diving Industry (Industrial) Award 2010) were among the modern awards which were the subject of the Employer Group claim to insert a standard excessive leave term (see Attachment D to the June 2015 decision).

[237] AMMA is a member of the Employer Group. It is difficult to reconcile AMMA’s opposition to the insertion of the cashing out, leave in advance and excessive leave model terms in those awards which were the subject of the Employer Group claims, with its previous submission (as part of the Employer Group) that these awards be varied to include standard terms dealing with these issues.

[238] We are conscious that we have previously indicated that the Maritime Awards would not be varied to insert the three model terms to which we have referred. For the reasons given we have decided to give further consideration to whether these awards should be varied to insert these revised model terms. We propose to list this issue for further hearing on 1 July 2016. The purpose of the hearing is to provide AMMA/MIAL and any other interested parties to make submissions and adduce evidence directed to the question of whether or not the Maritime Awards should be varied to insert the revised excessive leave; annual leave in advance and cashing out of annual leave model terms. Directions in relation to that hearing will be issued shortly.” 3

[6] Directions and a Background Paper 4 were issued by the Commission in advance of the hearing scheduled for 1 July 2016. At that hearing, we granted an adjournment to enable AMMA, MIAL and the MUA (and any other interested persons) to provide further evidence and submissions in support of their position that the model terms should not be inserted into the Maritime Industry Awards.

Specified Modern Awards requiring that leave be taken within a specified period

[7] In the May 2016 decision, we also identified 20 modern awards that contained provisions requiring that leave be taken within a specific period. 5 Ai Group, and others, contended that the provisions in these awards relating to the taking of annual leave ‘appear to have been crafted to prevent an excessive accrual of paid annual leave; or would at least have that effect’.6

[8] The 20 modern awards fall into two sub-categories as follows:

(i) 13 modern awards which currently include a term which requires annual leave to be taken within 18 months of accrual:

• Aquaculture Industry Award 2010 – clause 23.4;
• Asphalt Industry Award 2010 – clause 25.5;
• Broadcasting and Recorded Entertainment Award 2010 – clause 23.6;
• Cement and Lime Award 2010 – clause 24.5;
• Gardening and Landscaping Services Award 2010 – clause 24.4;
• Gas Industry Award 2010 – clause 25.4;
• Horse and Greyhound Training Award 2010 – clause 23.4;
• Premixed Concrete Award 2010 – clause 24.5;
• Quarrying Award 2010 – clause 29.5;
• Racing Clubs Events Award 2010 – clause 30.4;
• Racing Industry Ground Maintenance Award 2010 – clause 24.3;
• Silviculture Award 2010 – clause 29.4; and
• Sporting Organisations Award 2010 – clause 25.4.

(ii) 7 modern awards which contain terms which, in effect, provide for accrued leave to be taken within a specified period of time; albeit, with different time periods and surrounding provisions and processes:

• Ambulance and Patient Transport Industry Award 2010 – clause 30.8;
• Architects Award 2010 – clause 20.2;
• Black Coal Mining Industry Award 2010 – clause 25.4;
• Mobile Crane Hiring Award 2010 – clause 25.2(a);
• Nursery Award 2010 – clause 27.8(a);
• Nurses Award 2010 – clause 31.2; and
• Security Services Industry Award 2010 – clause 24.3.

[9] All of the above modern awards were the subject of a conference before Hampton C on 1 July 2016. Arising from the conference, 7 the following observations may be made:

• In each of the modern awards, the relevant Unions confirmed that they are seeking the insertion of the model excessive leave term as determined by the Full Bench.
• The insertion of the model excessive leave term would necessitate the replacement of (or substantial alteration to) the existing provisions dealing with the taking of annual leave.
• The Employer Organisations participating in the conference expressed concerns that the present provisions do more than deal with excessive leave and their removal may also have consequences that are not appropriate given the circumstances of the industries involved;
• There would appear to be some tension between the existing provisions, which generally refer to leave being taken within a period referenced to the accrual of the entitlement or an entitlement becoming due, and the National Employment Standards which are based upon the concept of annual leave accruing progressively 8.
• It is appropriate to enable the Employer Organisations to further consult their members and confirm whether they intend to resist the adoption of the model term and/or seek an alternative provision and to provide the basis upon which these modern awards require a provision other than the model term.
• All persons and organisations with an interest in these modern awards should be afforded an opportunity to make a contribution before the issues are determined by the Full Bench.

[10] It is also appropriate to note that the Employer Organisations with an interest in the Black Coal Mining Industry Award 2010 have confirmed their intention to oppose the adoption of the excessive leave model term and have already provided submissions and materials to the Commission in support of that position.

Maritime Industry Awards

1. On or before 4.00pm on Friday, 12 August 2016, AMMA, MIAL and the MUA are to file in the Fair Work Commission any further evidence and submissions in support of their position that the model annual leave terms should not be inserted into the Maritime Industry Awards.

2. On or before 4.00pm on Friday, 19 August 2016, any interested party is to file in the Fair Work Commission any evidence and submissions in response to the above.

3. All materials should be sent to amod@fwc.gov.au.

4. Subject to any contrary direction, the Full Bench will determine whether these modern awards are to be varied based upon the materials then before the Commission.

Specified Modern Awards requiring that leave be taken within a specified period

5. On or before 4.00pm on Friday, 29 July 2016, the Employer Organisations with an interest in these awards are to file in the Fair Work Commission an outline of position confirming whether they intend to oppose the insertion of the model excessive leave term in the relevant modern awards and/or seek a variation to the existing award provisions. Any submission contending for a variation is to outline the precise terms proposed.

6. On or before 4.00pm on Friday, 26 August 2016, any interested party seeking to oppose the insertion of the model excessive annual leave term in the relevant modern awards and/or seeking a variation to the existing award provisions are to file their submissions and any additional evidence in support of that position.

7. On or before 4.00pm on Friday 9 September 2016, other parties with an interest in any of the modern awards concerned are to file in the Fair Work Commission a response to the relevant proposals and provide any additional evidence and submissions in support of their position.

8. All materials should be sent to amod@fwc.gov.au.

9. The above matters will be listed for hearing in Sydney before the Full Bench on Tuesday, 13 September 2016.

PRESIDENT

 1   [2016] FWCFB 3177.

 2   [2015] FWCFB 8408 at [6].

 3   [2016] FWCFB 3177 at [233] – [238].

 4   [2016] FWCFB 4332 – issued on 28 June 2016.

 5   [2016] FWCFB 3177 at [123].

 6   Ibid at [122].

 7   Transcript of the conference is available on the Commission’s website.

 8   Section 87 of the Fair Work Act 2009.

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