STATEMENT

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

4 yearly review of modern awards—Abandonment of employment
(AM2016/35)

JUSTICE ROSS, PRESIDENT

MELBOURNE, 1 FEBRUARY 2017

4 yearly review of modern awards – abandonment of employment.

[1] Section 156 of the Fair Work Act 2009 (Cth) (FW Act) requires the Commission to review all modern awards every 4 years (the Review). This Statement deals with the review of the ‘abandonment of employment’ terms in a number of modern awards.

[2] Division 3 of Part 2-3 of the FW Act deals with the terms of modern awards that may or must be included in modern awards, and the terms that must not be included in modern awards. In particular, s.136 sets out what can and cannot be included in a modern award.

[3] In a decision issued on 13 January 2017 a Full Bench dealing with the appeal in Boguslaw Bienias, v Iplex Pipelines Australia Pty Limited 1 (Iplex) decided (at [49]–[58]) that clause 21 in the Manufacturing and Associated Industries Occupations Award 2010 (the Manufacturing Award), if read as effecting an automatic termination of employment in specified circumstances, is not a term that is either a permitted or required in a modern award and pursuant to s.137 of the FW Act is therefore of no effect. Clause 21 of the Manufacturing Award deals with ‘abandonment of employment’ and provides as follows:

21. Abandonment of employment

21.1 The absence of an employee from work for a continuous period exceeding three working days without the consent of the employer and without notification to the employer is prima facie evidence that the employee has abandoned their employment.

21.2 If within a period of 14 days from their last attendance at work or the date of their last absence in respect of which notification has been given or consent has been granted an employee has not established to the satisfaction of their employer that they were absent for reasonable cause, the employee is deemed to have abandoned their employment.

21.3 Termination of employment by abandonment in accordance with clause 21—Abandonment of employment operates as from the date of the last attendance at work or the last day’s absence in respect of which consent was granted, or the date of the last absence in respect of which notification was given to the employer, whichever is the later.

[4] Five other modern awards contain similar provisions to that set out above. A list of those awards and the relevant abandonment of employment provisions is at Attachment A.

[5] The review of abandonment of employment terms in the awards in Attachment A and in the Manufacturing Award will be referred to the Full Bench that dealt with the appeal in Iplex for review. The Full Bench will issue directions in due course.

PRESIDENT

ATTACHMENT A—List of awards containing abandonment of employment terms

Abandonment of employment terms are found in the following modern awards 2

Award	Extract
Business EQUIPMENT AWARD 2010 [MA000021]	17. Abandonment of employment 17.1 The absence of an employee from work for a continuous period exceeding two working days without the consent of the employer and without notification to the employer will be prima facie evidence that the employee has abandoned the employment. 17.2 Provided that if within a period of seven days from the employee’s last attendance at work or the date of the employee’s last absence in respect of which notification has been given or consent has been granted, an employee has not established to the satisfaction of the employer that the employee is absent for reasonable cause, the employee will be deemed to have abandoned the employment. 17.3 Termination of employment by abandonment in accordance with this clause will operate as from the date of the last attendance at work or the last day’s absence in respect of which consent was granted, or the date of the last absence in respect of which notification was given to the employer, whichever is the later.
Contract Call Centres Award 2010 [MA000023]	16. Abandonment of employment 16.1 The absence of an employee from work for a continuous period exceeding three working days without the consent of the employer and without notification to the employer will be prima facie evidence that the employee has abandoned the employment. 16.2 Provided that if within a period of 14 days from the employee’s last attendance at work or the date of the employee’s last absence in respect of which notification has been given, or consent has been granted, an employee has not established to the satisfaction of the employer that the employee is absent for reasonable cause, the employee will be deemed to have abandoned the employment. 16.3 Termination of employment by abandonment in accordance with this clause will operate as from the date of the last attendance at work or the last day’s absence in respect of which consent was granted, or the date of the last absence in respect of which notification was given to the employer, whichever is the later.
Graphic Arts, Printing and Publishing Award 2010 [MA000026]	14. Abandonment of employment 14.1 The absence of an employee from work for a continuous period exceeding three working days without the consent of the employer and without notification to the employer may be evidence that the employee has abandoned their employment. 14.2 If within a period of 14 days from the last attendance at work or date of the last absence in respect of which notification has been given or consent has been granted, an employee has not established to the satisfaction of their employer that the employee was absent for a reasonable cause, the employee is deemed to have abandoned their employment. 14.3 Termination of employment by abandonment in accordance with this clause will operate as from the date of the last attendance at work, or the last day’s absence for which consent was granted, or the date of the last absence in respect of which notification was given to the employer, whichever is later.
Manufacturing and Associated Industries and Occupations Award 2010 [MA000010]	21. Abandonment of employment 21.1 The absence of an employee from work for a continuous period exceeding three working days without the consent of the employer and without notification to the employer is prima facie evidence that the employee has abandoned their employment. 21.2 If within a period of 14 days from their last attendance at work or the date of their last absence in respect of which notification has been given or consent has been granted an employee has not established to the satisfaction of their employer that they were absent for reasonable cause, the employee is deemed to have abandoned their employment. 21.3 Termination of employment by abandonment in accordance with clause 21—Abandonment of employment operates as from the date of the last attendance at work or the last day’s absence in respect of which consent was granted, or the date of the last absence in respect of which notification was given to the employer, whichever is the later.
Nursery Award 2010 [MA000033]	11. Abandonment of employment 11.1 The absence of an employee from work for a continuous period exceeding three working days without the consent of the employer and without notification to the employer is evidence that the employee has abandoned their employment. 11.2 If within a period of 14 days from their last attendance at work or the date of their last absence in respect of which notification has been given or consent has been granted an employee has not established to the satisfaction of their employer that they were absent for reasonable cause, the employee is deemed to have abandoned their employment. 11.3 Termination of employment by abandonment in accordance with this clause operates as from the date of the last attendance at work or the last day’s absence in respect of which consent was granted, or the date of the last absence in respect of which notification was given to the employer, whichever is the latter.
Wool Storage, Sampling and Testing Award 2010 [MA000044]	10.5 Abandonment of employment An employee who is absent from work for a continuous period exceeding three working days without the consent of the employer and without reasonable excuse will be deemed to have abandoned their employment. The termination of employment will be deemed to have taken effect from the employee’s last attendance or the last day on which the employee notified the employer of the reason for the absence.

1 [2017] FWCFB 38

2 Abandonment of employment terms are also found in five modern enterprise awards

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