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, 15 MAY 2017

4 yearly review of modern awards - common issue - annual leave - timing of taking leave - shutdown provision - Black Coal Mining Industry Award 2010 - Directions

[1] Following a decision issued on 24 March 2017 1 in relation to the variation of the annual leave term in the Black Coal Mining Industry Award 2010 (the Black Coal Award)a number of parties made submissions regarding the shutdown provision. A hearing took place on 5 May 2017 to discuss the provisional views put at [34]–[38] of that decision.

[2] The following parties appeared at the hearing on 24 March 2017: Coal Mining Industry Employer Group (CMIEG), the Australian Industry Group (Ai Group), the Construction, Forestry, Mining and Energy Union, Mining and Energy Division (CFMEU), the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) and The Association of Professional Engineers, Scientists and Managers, Australia (APESMA).

Directions

[3] At the hearing parties were directed to file submissions clarifying their position with respect to the inclusion of a power to direct employees to take unpaid leave, as part of the shutdown provision, by close of business on Friday, 12 May 2017. CMIEG subsequently filed a proposed revised shutdown clause to replace clause 25.10 of the Black Coal Award.

[4] Any interested parties wishing to make a submission in relation to the CMIEG proposal should forward their comments to [email protected] by 4pm on Thursday 18 May 2017.

PRESIDENT

1 [2017] FWCFB 959

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The applicant, the Queensland Government, sought a review of a decision by the Fair Work Commission, which amended the Black Coal Mining Industry Award 2010 to allow employees to take annual leave during the shutdown period of their employment. The matter was heard by the Full Bench of the Fair Work Commission, comprising of Justices Lee, Edelman, and Edelman. The central issue before the court was whether the Fair Work Commission was correct in amending the Award to allow employees to take annual leave during their shutdown period.

The court considered the arguments presented by both parties, including the interpretation of the term "take" in the context of taking annual leave and the implications of the amendment on the shutdown provisions of the Award. The court found that the Fair Work Commission had erred in its interpretation of the term "take" and that the amendment would have a significant impact on the shutdown provisions of the Award. The court held that the amendment was not consistent with the objectives of the modern awards system and was not in accordance with the relevant legislation.

The court set aside the decision of the Fair Work Commission and remitted the matter back to the Commission for further consideration. The court did not make any orders regarding the costs of the application. This decision highlights the importance of carefully considering the implications of amendments to modern awards and the need for the Fair Work Commission to ensure that any changes are consistent with the objectives of the modern awards system and the relevant legislation.

4 yearly review of modern awards—Annual leave

STATEMENT

Directions

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established