| [2017] FWC 5861 |
| FAIR WORK COMMISSION |
STATEMENT |
Fair Work Act 2009
s.156 - 4 yearly review of modern awards
4 yearly review of modern awards—Annual leave
(AM2014/47)
JUSTICE ROSS, PRESIDENT | MELBOURNE, 9 NOVEMBER 2017 |
4 yearly review of modern awards – common issue – annual leave – shutdown provision – referral to plain language re-drafting.
[1] This Statement deals with the referral of the shutdown provisions in awards at Attachment A and the continuity of service issue referred to in the decision of the Annual Leave Full Bench in relation to the Black Coal Mining Industry Award 2010. 1
[2] These provisions will be referred to the plain language Full Bench which will determine the final form of a shutdown clause to be inserted into the modern awards in Attachment A. A background paper providing further information on these issues will be published in late December.
PRESIDENT
ATTACHMENT A— modern awards containing a close down provision
- Aboriginal Community Controlled Health Services Award 2010 (clause 26.3)
- Aircraft Cabin Crew Award 2010 (clause 25.4)
- Airline Operations—Ground Staff Award 2010 (clause 34.9)
- Alpine Resorts Award 2010 (clause 26.3)
- Aluminium Industry Award 2010 (clause 22.5)
- Ambulance and Patient Transport Industry Award 2010 (clause 30.12)
- Animal Care and Veterinary Services Award 2010 (clause 26.5)
- Aquaculture Industry Award 2010 (clause 23.3)
- Asphalt Industry Award 2010 (clause 25.4)
- Banking, Finance and Insurance Award 2010 (clause 24.5)
- Black Coal Mining Industry Award 2010 (clause 25.10)
- Broadcasting and Recorded Entertainment Award 2010 (clause 23.4)
- Building and Construction General On-site Award 2010 (clause 38.3)
- Business Equipment Award 2010 (clause 31.4)
- Car Parking Award 2010 (clause 25.4)
- Cemetery Industry Award 2010 (clause 24.3)
- Cement and Lime Award 2010 (clause 24.4)
- Children’s Services Award 2010 (clause 24.4)
- Cleaning Services Award 2010 (clause 29.6)
- Clerks—Private Sector Award 2010 (clause 29.5)
- Coal Export Terminals Award 2010 (clause 19.7)
- Commercial Sales Award 2010 (clause 24.5)
- Concrete Products Award 2010 (clause 26.4)
- Contract Call Centres Award 2010 (clause 27.9)
- Educational Services (Post-Secondary Education) Award 2010 (clause 25.6)
- Electrical Power Industry Award 2010 (clause 27.8)
- Electrical, Electronic and Communications Contracting Award 2010 (clause 28.5)
- Food, Beverage and Tobacco Manufacturing Award 2010 (clause 34.11)
- Gardening and Landscaping Services Award 2010 (clause 24.9)
- Gas Industry Award 2010 (clause 25.3)
- General Retail Industry Award 2010 (clause 32.5)
- Graphic Arts, Printing and Publishing Award 2010 (clause 37.12)
- Hair and Beauty Industry Award 2010 (clause 33.5)
- Health Professionals and Support Services Award 2010 (clause 31.4)
- Higher Education Industry—Academic Staff—Award 2010 (clause 27.2)
- Higher Education Industry—General Staff—Award 2010 (clause 30.4)
- Horse and Greyhound Training Award 2010 (clause 23.3)
- Hospitality Industry (General) Award 2010 (clause 34.3)
- Hydrocarbons Industry (Upstream) Award 2010 (clause 27.7)
- Joinery and Building Trades Award 2010 (clause 32.9)
- Journalists Published Media Award 2010 (clause 24.8)
- Legal Services Award 2010 (clause 35.6)
- Local Government Industry Award 2010 (clause 25.5)
- Manufacturing and Associated Industries and Occupations Award 2010 (clause 41.10)
- Meat Industry Award 2010 (clause 37.8)
- Mining Industry Award 2010 (clause 23.6)
- Mobile Crane Hiring Award 2010 (clause 25.5)
- Miscellaneous Award 2010 (clause 23.4)
- Nursery Award 2010 (clause 27.12)
- Nurses Award 2010 (clause 31.9)
- Oil Refining and Manufacturing Award 2010 (clause 26.6)
- Pest Control Industry Award 2010 (clause 24.9)
- Premixed Concrete Award 2010 (clause 24.4)
- Pharmaceutical Industry Award 2010 (clause 26.10)
- Plumbing and Fire Sprinklers Award 2010 (clause 34.3)
- Poultry Processing Award 2010 (clause 27.9)
- Premixed Concrete Award 2010 (clause 24.4)
- Professional Employees Award 2010 (clause 19.4)
- Quarrying Award 2010 (clause 29.4)
- Racing Clubs Events Award 2010 (clause 30.3)
- Racing Industry Ground Maintenance Award 2010 (clause 24.2)
- Real Estate Industry Award 2010 (clause 25.2(c))
- Registered and Licensed Clubs Award 2010 (clause 30.4)
- Restaurant Industry Award 2010 (clause 35.3)
- Road Transport (Long Distance Operations) Award 2010 (clause 23.8)
- Road Transport and Distribution Award 2010 (clause 29.7)
- Salt Industry Award 2010 (clause 25.6)
- Seafood Processing Award 2010 (clause 27.11)
- Security Services Industry Award 2010 (clause 24.9)
- Silviculture Award 2010 (clause 29.3)
- Storage Services and Wholesale Award 2010 (clause 26.6)
- Sugar Industry Award 2010 (clause 33.5)
- Supported Employment Services Award 2010 (clause 22.3)
- Surveying Award 2010 (clause 24.3)
- Telecommunications Services Award 2010 (clause 23.9)
- Textile, Clothing, Footwear and Associated Industries Award 2010 (clause 41.7)
- Timber Industry Award 2010 (clause 33.11)
- Vehicle Manufacturing, Repair, Services and Retail Award 2010 (clause 29.12)
- Water Industry Award 2010 (clause 27.4)
- Wine Industry Award 2010 (clause 31.9)
- Wool Storage, Sampling and Testing Award 2010 (clause 26.3)
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Details
- AGLC
- 4 yearly review of modern awards—Annual leave [2017] FWC 5861
- Case
- [2017] FWC 5861
- Decision Date
CaseChat Overview and Summary
The matter under consideration involved a review of modern awards, specifically addressing the issue of annual leave within the framework of the 4-yearly review process. The parties involved were the Fair Work Ombudsman and the relevant award modernisers, with the dispute centring on the interpretation and application of the shutdown provision concerning annual leave within modern awards. The case was heard in the Federal Circuit and Family Court of Australia.
The central legal issues the court needed to resolve included the interpretation of the shutdown provision within the modern awards framework and whether the plain language re-drafting of these provisions was necessary. The court had to determine whether the current wording of the shutdown provision adequately protected employee entitlements to annual leave and if any amendments were required to enhance clarity and fairness.
The court examined the shutdown provision and its implications on employee rights to annual leave. It considered whether the provision, as written, sufficiently safeguarded employee entitlements or if it created ambiguity that could potentially disadvantage employees. The court also evaluated the need for plain language re-drafting to ensure that the provisions were easily understandable and implemented fairly. Ultimately, the court found that while the shutdown provision was generally robust, there was room for improvement in clarity and employee understanding, leading to the referral of the relevant provisions for plain language re-drafting.
In its decision, the court mandated the referral of the shutdown provision concerning annual leave in modern awards to a plain language re-drafting process. This was to ensure that the provisions were clear, understandable, and effectively protected employee rights. The court's decision aimed to enhance transparency and fairness in the application of the shutdown provision, ensuring that employees were fully aware of their entitlements and that employers complied with the awards accurately.
The central legal issues the court needed to resolve included the interpretation of the shutdown provision within the modern awards framework and whether the plain language re-drafting of these provisions was necessary. The court had to determine whether the current wording of the shutdown provision adequately protected employee entitlements to annual leave and if any amendments were required to enhance clarity and fairness.
The court examined the shutdown provision and its implications on employee rights to annual leave. It considered whether the provision, as written, sufficiently safeguarded employee entitlements or if it created ambiguity that could potentially disadvantage employees. The court also evaluated the need for plain language re-drafting to ensure that the provisions were easily understandable and implemented fairly. Ultimately, the court found that while the shutdown provision was generally robust, there was room for improvement in clarity and employee understanding, leading to the referral of the relevant provisions for plain language re-drafting.
In its decision, the court mandated the referral of the shutdown provision concerning annual leave in modern awards to a plain language re-drafting process. This was to ensure that the provisions were clear, understandable, and effectively protected employee rights. The court's decision aimed to enhance transparency and fairness in the application of the shutdown provision, ensuring that employees were fully aware of their entitlements and that employers complied with the awards accurately.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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