| [2016] FWCFB 6442 |
| FAIR WORK COMMISSION |
STATEMENT |
Fair Work Act 2009
s.156 - 4 yearly review of modern awards
(AM2014/47)
JUSTICE ROSS, PRESIDENT |
|
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, the Full Bench 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.
[2] Further to the May 2016 decision, a number of 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.
[3] On 8 July 2016, a Statement was issued with Directions (the 8 July Statement) 2 in respect of the ‘Maritime Industry Awards’ and Specified Modern Awards requiring that leave be taken within a specified period.
[4] Submissions regarding the Maritime Awards were received with respect to Directions 1 and 2 of the 8 July Statement. The Full Bench will determine whether these modern awards are to be varied based upon the materials before the Commission, in accordance with Direction 4.
Specified Modern Awards requiring that leave be taken within a specified period
[5] In the May 2016 decision, the Full Bench identified 20 modern awards that contained provisions requiring that leave be taken within a specific period. 3 These awards were the subject of a conference before Commissioner Hampton on 1 July 2016.
[6] The 8 July Statement directed parties and interested persons to file submissions if they opposed the insertion of the model excessive leave annual leave term in any of these awards. Submissions filed in accordance with Direction 5 opposing the insertion of the model term were received for the following awards only:
Black Coal Mining Industry Award 2010 | Coal Mining Industry Employer Group | Submissions – 29 July 2016 and 26 August 2016 |
Aquaculture Industry Award 2010 | New South Wales Farmers’ Industrial Association | Submissions – 29 July 2016 and 26 August 2016 |
[7] In accordance with Direction 7 of the 8 July Statement, any other party with an interest in any of the modern awards concerned is to file in the Fair Work Commission a response to the relevant proposals on or before 4:00 pm on Friday, 9 September 2016.
[8] No submissions have been received in relation to the 18 modern awards set out below:
Ambulance and Patient Transport Industry Award 2010;
Architects Award 2010;
Asphalt Industry Award 2010;
Broadcasting and Recorded Entertainment Award 2010;
Cement and Lime Award 2010;
Gardening and Landscaping Services Award 2010;
Gas Industry Award 2010;
Horse and Greyhound Training Award 2010;
Mobile Crane Hiring Award 2010;
Nursery Award 2010;
Nurses Award 2010; 4
Premixed Concrete Award 2010;
Quarrying Award 2010;
Racing Clubs Events Award 2010;
Racing Industry Ground Maintenance Award 2010;
Security Services Industry Award 2010;
Silviculture Award 2010;
Sporting Organisations Award 2010.
[9] Parties with an interest in the 18 awards listed above are not required to attend the Full Bench hearing on 13 September 2016 unless they wish to oppose the insertion of the excessive leave model term into these awards. Absent any submission at the hearing to the contrary, the Full Bench intends to insert the model term in these awards.
PRESIDENT
<Price code A, PR585186>
3 [2016] FWCFB 3177 at [123].
4 The model term to be inserted into the Nurses Award 2010 will require modification given the quantum of annual leave specified in cl 31.1.
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- AGLC
- 4 yearly review of modern awards – Annual leave [2016] FWCFB 6442
- Case
- [2016] FWCFB 6442
- Decision Date
CaseChat Overview and Summary
The primary legal issue before the Commission was whether the current provisions governing annual leave in the Maritime Industry Awards adequately addressed the issue of excessive leave. Specifically, the Commission needed to determine if the existing provisions were sufficient or if amendments were necessary to provide clearer guidance and prevent the accumulation of excessive annual leave. Additionally, the Commission considered the implications of any proposed changes on the rights and obligations of employers and employees within the maritime industry.
In its decision, the Commission carefully examined the existing provisions and the practical implications of any potential amendments. The Commission noted that while some awards had already been updated to address excessive leave, others still contained provisions that could lead to the accumulation of excessive leave. The Commission concluded that, to maintain consistency and fairness across the awards, it was necessary to finalise the provisions regarding excessive leave in the remaining awards. The Commission implemented amendments to ensure that all awards clearly define and limit the accrual of annual leave, thereby preventing the potential for excessive leave. The changes were designed to provide clarity and promote a fair and balanced approach to annual leave entitlements in the maritime industry.
The Commission's final orders included specific amendments to the Maritime Industry Awards to address the issue of excessive leave. These amendments clarified the maximum annual leave entitlements and introduced mechanisms to manage and limit the accrual of annual leave beyond the specified limits. The Commission's decision aimed to provide certainty and consistency across the awards, ensuring that all employers and employees in the maritime industry are subject to the same clear and fair rules regarding annual leave.
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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