4 yearly review of modern awards—Annual leave
[2016] FWCFB 3177
•23 MAY 2016
[2016] FWCFB 3177
The attached document replaces the document previously issued with the above code on 23 May 2016.
The number of awards to be varied has been corrected in paragraphs 293, 299, 300, 302, 304 and Attachment 6.
In Attachment 6, notes have been corrected for the following awards to show that these have been referred to AM2015/6:
| MA000077 | Educational Services (Teachers) Award 2010 |
| MA000006 | Higher Education Industry—Academic Staff—Award 2010 |
| MA000007 | Higher Education Industry—General Staff—Award 2010 |
Miriam Henry
Associate to Justice Ross
Dated 25 May 2016
| [2016] FWCFB 3177 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.156 - 4 yearly review of modern awards
| JUSTICE ROSS, PRESIDENT DEPUTY PRESIDENT KOVACIC COMMISSIONER HAMPTON | MELBOURNE, 23 MAY 2016 |
4 yearly review of modern awards - annual leave common issue - insertion of model terms into particular modern awards - excessive annual leave - cashing out of annual leave - granting leave in advance - EFT and paid annual leave - plain language redrafts of certain model terms.
CONTENTS
| Page | Paragraph | |
| 1. Introduction | 4 | [1] |
| 2. The Legislative Context | 5 | [9] |
| 3. The June and September decisions | 9 | [27] |
| (i) Cashing out of annual leave | 9 | [28] |
| (ii) EFT and paid annual leave | 10 | [34] |
| (iii) Leave in advance | 11 | [39] |
| (iv) Excessive annual leave | 12 | [43] |
| 4. The Process | 13 | [50] |
| 5. The Plain Language Re-drafts of certain Model Terms | 14 | [57] |
| 6. The Submissions | 18 | [79] |
| 6.1 General Submissions | 18 | [81] |
| (i) The transitional issue | 18 | [83] |
| (ii) The existing flexibility issue | 19 | [89] |
| (iii) The taking of leave issue | 27 | [122] |
| 6.2 Award-specific submissions | 29 | [128] |
| (i) Agriculture group | 29 | [128] |
| (ii) Black Coal Mining Industry Award 2010 | 36 | [165] |
| (iii) Health group | 39 | [180] |
| (iv) Hospitality group | 43 | [201] |
| (v) Maritime group | 50 | [231] |
| (vi) Passenger Vehicle Transportation Award 2010 | 51 | [239] |
| (vii) Resources group | 56 | [263] |
| (viii) Security Services Industry Award 2010 | 61 | [290] |
| 6.3 Enterprise Awards | 61 | [291] |
| 7. Conclusion and Next Steps | 62 | [292] |
| (i) Cashing out of annual leave | 62 | [293] |
| (ii) EFT and paid annual leave | 62 | [295] |
| (iii) Leave in advance | 63 | [299] |
| (iv) Excessive annual leave | 63 | [302] |
| Attachments: | ||
| 1. List of Submissions | 70 | |
| 2. Comparative table and Agreement templates | 73 | |
| 3. Annotated version of the May 2016 plain language template agreements | 86 | |
| 4. Plain language re-drafts of the annual leave model | 87 | |
| 5. List of awards that Ai Group submit should not be varied to insert the model excessive leave term | 89 | |
| 6. Awards into which various provisions are to be inserted | 91 |
ABBREVIATIONS
| ABI | Australian Business Industrial |
| ABS | Australian Bureau of Statistics |
| ACCI | Australian Chamber of Commerce and Industry |
| ACTU | Australian Council of Trade Unions |
| Ai Group | Australian Industry Group |
| AIRC | Australian Industrial Relations Commission |
| AMMA | Australian Mines and Metals Association |
| AMWU | “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) |
| APTIA | Australian Public Transport Industrial Association |
| ASMOF | Australian Salaried Medical Officers Federation |
| AWALI 2010 | Australian Work and Life Index 2010 |
| AWU | The Australian Workers’ Union |
| CAI | Clubs Australia Industrial |
| CFMEU | Construction, Forestry, Mining and Energy Union |
| CFMEU (M&E) | Construction, Forestry, Mining and Energy Union (Mining and Energy Division) |
| CMIEG | Coal Mining Industry Employer Group |
| Commission | Fair Work Commission |
| EFT | Electronic Funds Transfer |
| Employer Group | Group of employers listed at Attachment A to the June 2015 decision |
| FW Act | Fair Work Act 2009 (Cth) |
| HILDA | Household, Income and Labour Dynamics in Australia survey |
| June 2015 decision | 4 yearly review of modern awards—Annual leave decision – 11 June 2015 [2015] FWCFB 3406 |
| MIAL | Maritime Industry Association Ltd |
| NAPSA | Notional Agreement Preserving State Award |
| NES | National Employment Standards |
| RCA | Restaurant and Catering Australia |
| Review | 4 yearly review of modern awards under s.156 of the Fair Work Act 2009 |
| SDA | Shop, Distributive and Allied Employees Association |
| September 2015 decision | 4 yearly review of modern awards—Annual leave decision – 15 September 2015 [2015] FWCFB 5771 |
| TAI 2002 | The Australia Institute Survey, 2002 |
| TCFUA | Textile, Clothing and Footwear Union of Australia |
| Transitional Review | Transitional (or 2 year) review of modern awards under Item 6 of Schedule 5 to the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 |
| WR Act | Workplace Relations Act 1996 (Cth) |
1. Introduction
[1] This decision deals with the variation of modern awards in relation to a number of matters regarding paid annual leave and is issued as part of the first 4 yearly review of modern awards (the Review). The Review includes a Common issues stage and following a period of consultation it was decided that certain annual leave provisions in modern awards would be dealt with as a ‘common issue’, namely:
(i) cashing out annual leave;
(ii) excessive annual leave;
(iii) annual close-down;
(iv) granting annual leave in advance;
(v) purchased leave;
(vi) payment of annual leave entitlements on termination; and
(vii) EFT and paid annual leave.
[2] Claims were made by interested parties relating to each of the matters outlined above and the 4 Yearly Review of Modern Awards – Annual Leave decision 1 (the June 2015 decision) determined some matters and expressed provisional views in relation to a number of other matters. Directions were issued2 in relation to the filing of written submissions and a further oral hearing was held on 7 August 2015. A subsequent decision3 (the September 2015 decision) dealt with the wording of the provisional model term in relation to excessive leave and with the model terms in relation to the cashing out of annual leave and granting leave in advance.
[3] In the June and September 2015 decisions the Fair Work Commission (the Commission) determined model clauses in respect of ‘excessive annual leave’; ‘cashing out of annual leave’; ‘electronic funds transfer and paid annual leave’; and ‘granting leave in advance’. In the June 2015 decision the Commission rejected the Employer Group’s claim 4 which sought to insert an annual close-down term into a number of modern awards, on the basis that the proponents of the claim had not established a merit case sufficient to warrant granting the claim. The Commission left open the capacity for interested parties to apply to vary a particular modern award, to either vary an existing close-down provision or to insert an appropriate provision, during the Award stage of the Review.5 We deal later with the outcome of the June and September 2015 decisions.
[4] There was no support for the development of a model term dealing with ‘purchased leave’ and the Commission decided not to take any further steps in relation to that issue. Any proposal in respect of purchased leave will be dealt with on an award by award basis, during the Award stage of the Review. 6
[5] Finally, the Australian Council of Trade Unions (ACTU) had sought to vary 118 modern awards in relation to the payment of annual leave entitlements on termination, to provide that an employer must pay an employee the amount that would have been payable to the employee had the employee taken that period of leave. The Employer Group opposed the ACTU’s claim.
[6] The merit of the ACTU’s claim turns on the proper construction of s.90(2) of the Fair Work Act 2009 (Cth) (the FW Act) and that issue was subsequently the subject of a decision by the Full Court of the Federal Court in Centennial Northern Mining Services Pty Ltd v Construction, Forestry, Mining and Energy Union. 7 There was also a Bill before the Parliament – the Fair Work Amendment (Remaining 2014 Measures) Bill 2015 – which was relevant to the determination of the ACTU’s claim. Part 1 of Schedule 1 of the Bill dealt with the payment of annual leave on termination and seeks to amend s.90(2). As a consequence of these developments the ACTU’s claim has been adjourned pending legislative developments. The ACTU has not sought specific directions or hearing dates in relation to its claim, at this time.8
[7] The June and September 2015 decisions finalised the provisions of various model terms. The next phase of the proceedings – and the focus of this decision – deals with whether it is appropriate to vary particular modern awards to insert the model terms. All interested parties were provided with an opportunity to make submissions and adduce evidence in relation to whether the various model terms should now be inserted into particular modern awards. We deal later with the process adopted and the submissions received.
[8] Section 5 of this decision deals with some redrafting of three of the model terms. The changes proposed are intended to make these terms easier to understand; they are not intended to change the substantive effect of any of the model terms.
2. The Legislative context
[9] We propose to make some brief observations about the legislative context for the Review. We note that these issues are canvassed in more detail in the 4 Yearly Review of Modern Awards: Preliminary Jurisdictional Issues decision9; we adopt and apply that decision.
[10] Section 156 of the FW Act provides that the Commission must conduct a 4 yearly review of modern awards as soon as practicable after 1 January 2014. Subsection 156(2) deals with what must be done in the Review:
‘(2) In a 4 yearly review of modern awards, the FWC:
(a) must review all modern awards; and
(b) may make:(i) one or more determinations varying modern awards; and
(ii) one or more modern awards; and
(iii) one or more determinations revoking modern awards.(c) must not review, or make a determination to vary, a default fund term of a modern award.
Note 1: Special criteria apply to changing coverage of modern awards or revoking modern awards (see sections 163 and 164).
Note 2: For reviews of default fund terms of modern awards, see Division 4A.’
[11] Subsection 156(5) provides that in a Review each modern award must be reviewed in its own right, however, this does not prevent the Commission from reviewing two or more modern awards at the same time.
[12] We accept that the requirement in s.156(5) to review each modern award ‘in its own right’, is to ensure that the Review is conducted ‘by reference to the particular terms and the particular operation of each particular award rather than by a global assessment based upon generally applicable considerations’. 10 However, while the review of each modern award must focus on the particular terms and operation of the particular award, this does not mean that the review of a modern award is to be confined to a single holistic assessment of all of its terms.11 In these proceedings we are considering whether particular modern awards achieve the modern awards objective in relation to the manner in which they deal (or do not deal) with certain matters relating to paid annual leave.
[13] The ‘scope’ of the Review was considered in the Preliminary Jurisdictional Issues Decision 12 and the following extracts from that decision are particularly relevant for present purposes:
‘[19] The Review is broader in scope than the Transitional Review of modern awards completed in 2013 (the Transitional Review). …
[20] In their submission dated 20 February 2014, Ai Group submitted that even though the Review is broader in scope than the Transitional Review:
“…where a party seeks a variation to a modern award in the 4 Yearly Review and the substance of the variation sought has already been dealt with in the Part 10A Process or in the Modern Awards Review 2012, the applicant should be required to show that there are cogent reasons for departing from the previous decision.”13
[21] Both the Australian Chamber of Commerce and Industry (ACCI) and Australian Business Industrial (ABI) challenged Ai Group’s submission, submitting that the FW Act does not provide any legislative basis for the adoption of a test such as that proposed by Ai Group. …
[22] ABI generally accepted that submissions in support of award variations should be founded on merit based arguments that address the relevant legislative provisions, but contended that the procedure adopted by the Commission should reflect the nature of the issues involved. In some cases this approach may require a formal hearing with the presentation of evidence sufficient to move the Commission to exercise its discretion to vary a modern award. This is likely to be the case where a major change is sought to be made to a modern award and the proposal is contested. In other cases a formal hearing or evidence may not be necessary. …
[23] The Commission is obliged to ensure that modern awards, together with the NES, provide a fair and relevant minimum safety net taking into account, among other things, the need to ensure a ‘stable’ modern award system (s.134(1)(g)). The need for a ‘stable’ modern award system suggests that a party seeking to vary a modern award in the context of the Review must advance a merit argument in support of the proposed variation. The extent of such an argument will depend on the circumstances. We agree with ABI’s submission that some proposed changes may be self evident and can be determined with little formality. However, where a significant change is proposed it must be supported by a submission which addresses the relevant legislative provisions and be accompanied by probative evidence properly directed to demonstrating the facts supporting the proposed variation.
[24] In conducting the Review the Commission will also have regard to the historical context applicable to each modern award. Awards made as a result of the award modernisation process conducted by the former Australian Industrial Relations Commission (the AIRC) under Part 10A of the Workplace Relations Act 1996 (Cth) were deemed to be modern awards for the purposes of the FW Act (see Item 4 of Schedule 5 of the Transitional Act). Implicit in this is a legislative acceptance that at the time they were made the modern awards now being reviewed were consistent with the modern awards objective. The considerations specified in the legislative test applied by the AIRC in the Part 10A process is, in a number of important respects, identical or similar to the modern awards objective in s.134 of the FW Act.14 In the Review the Commission will proceed on the basis that prima facie the modern award being reviewed achieved the modern awards objective at the time that it was made.’ 15
[14] The short points to be drawn from the above extract are that in the Review:
(i) the Commission will proceed on the basis that prima facie the modern award being reviewed achieved the modern awards objective at the time it was made; and
(ii) variations to modern awards should be founded on merit based arguments that address the relevant legislative provisions, accompanied by probative evidence directed to what are said to be the facts in support of a particular claim. The extent of the argument and material required will depend on the circumstances.
[15] It is also important to appreciate the context in which the observations set out at paragraphs [13] and [14] above were made. The Full Bench was there dealing with submissions about what a party seeking to vary a modern award in the Review should be required to demonstrate. It should not be inferred from the quoted passage that in conducting the Review the Commission is confined to only dealing with variation applications made by interested parties. The FW Act charges the Commission with the responsibility of acting on its own motion to review all modern awards; it is not dependent upon the applications of interested parties in performing that statutory function.
[16] We now turn to the relevance of the ‘modern awards objective’ to the Review.
[17] The modern awards objective applies to the performance or exercise of the Commission’s modern award powers, which are defined to include the Commission’s functions or powers under Part 2-3 of the FW Act. The Review function is set out in s.156, which is in Part 2-3 and so will involve the performance or exercise of the Commission’s modern award powers. It follows that the modern awards objective applies to the Review.
[18] The modern awards objective is set out in s.134 of the FW Act. It states:
‘134 The modern awards objective
What is the modern awards objective?
(1) The FWC must ensure that modern awards, together with the National Employment Standards, provide a fair and relevant minimum safety net of terms and conditions, taking into account:(a) relative living standards and the needs of the low paid; and
(b) the need to encourage collective bargaining; and
(c) the need to promote social inclusion through increased workforce participation; and
(d) the need to promote flexible modern work practices and the efficient and productive performance of work; and
(da) the need to provide additional remuneration for:(i) employees working overtime; or
(ii) employees working unsocial, irregular or unpredictable hours; or
(iii) employees working on weekends or public holidays; or
(iv) employees working shifts; and(e) the principle of equal remuneration for work of equal or comparable value; and
(f) the likely impact of any exercise of modern award powers on business, including on productivity, employment costs and the regulatory burden; and
(g) the need to ensure a simple, easy to understand, stable and sustainable modern award system for Australia that avoids unnecessary overlap of modern awards; and
(h) the likely impact of any exercise of modern award powers on employment growth, inflation and the sustainability, performance and competitiveness of the national economy.
This is the modern awards objective.
When does the modern awards objective apply?
(2) The modern awards objective applies to the performance or exercise of the FWC’s modern award powers, which are:(a) the FWC’s functions or powers under this Part; and
(b) the FWC’s functions or powers under Part 2-6, so far as they relate to modern award minimum wages.
Note: The FWC must also take into account the objects of this Act and any other applicable provisions. For example, if the FWC is setting, varying or revoking modern award minimum wages, the minimum wages objective also applies (see section 284).’
[19] The modern awards objective is directed at ensuring that modern awards, together with the NES, provide a ‘fair and relevant minimum safety net of terms and conditions’ taking into account the particular considerations identified in paragraphs 134(1)(a) to (h) (the s.134 considerations). The objective is very broadly expressed. 16 No particular primacy is attached to any of the s.134 considerations and not all of the matters identified will necessarily be relevant in the context of a particular proposal to vary a modern award.
[20] The obligation to take into account the s.134 considerations means that each of these matters, insofar as they are relevant, must be treated as a matter of significance in the decision making process. 17
[21] While the Commission must take into account the s.134 considerations, the relevant question is whether the modern award, together with the NES, provides a fair and relevant minimum safety net of terms and conditions. Further, it is not necessary to make a finding that the modern award under review has failed to satisfy at least one of the s.134(1) considerations. 18 As the Full Federal Court said in National Retail Association v Fair Work Commission:
‘It is apparent from the terms of s.134(1) that the factors listed in (a)–(h) are broad considerations which the FWC must take into account in considering whether a modern award meets the objective set by s.134(1), that is to say, whether it provides a fair and relevant minimum safety net of terms and conditions. The listed factors do not, in themselves, pose any questions or set any standard against which a modern award could be evaluated. Many of them are broad social objectives. What, for example, was the finding called for in relation to the first factor (‘relative living standards and the needs of the low paid’)? Furthermore, it was common ground that some of the factors were inapplicable to the SDA’s claim?’ 19
[22] There is a degree of tension between some of the s.134 considerations. The Commission’s task is to balance the various considerations and ensure that modern awards provide a fair and relevant minimum safety net of terms and conditions.
[23] Section 138 of the FW Act is also relevant, it emphasises the importance of the modern awards objective in these terms:
‘A modern award may include terms that it is permitted to include, and must include terms that it is required to include, only to the extent necessary to achieve the modern awards objective and (to the extent applicable) the minimum wages objective.’
[24] Section 138 provides that terms only be included in a modern award ‘to the extent necessary to achieve the modern awards objective’. To comply with s.138 the terms included in modern awards must be ‘necessary to achieve the modern awards objective’.
[25] What is ‘necessary’ in a particular case is a value judgment taking into account the s.134 considerations, to the extent that they are relevant having regard to the submissions and evidence directed to those considerations. 20
[26] We now turn to the June and September decisions, which provide the context for this phase of these proceedings.
3. The June and September decisions
[27] The June and September decisions determined model terms in relation to the cashing out of annual leave; EFT and paid leave; leave in advance and excessive leave accruals. We refer to these model terms as the September 2015 model terms. We propose to briefly set out what has been decided in respect of each of these model terms.
(i) Cashing out of annual leave
[28] The claim advanced by the Employer Group sought to insert the following clause into 120 modern awards:
‘Cashing out of annual leave
With the agreement of the employer, an employee may cash out an amount of accrued paid annual leave provided that:(a) the employee retains at least four (4) weeks of accrued annual leave immediately after the agreed amount is cashed out;
(b) each cashing out of a particular amount of accrued paid annual leave must be agreed by a separate agreement in writing; and
(c) the employee must be paid the full amount that would have been payable had the employee taken the leave at the time that it is cashed out.’21
[29] The Employer Group standard clause reflected the requirements of s.93(2) of the FW Act. 22 The union parties opposed the insertion of cashing out provisions in modern awards.
[30] The Full Bench noted that under previous legislative regimes, predecessor bodies to the Commission consistently rejected proposals for the cashing out of annual leave on the basis that they undermined the purpose of annual leave. However, the FW Act now makes specific provision for the cashing out of annual leave (at ss.92–94). Based on the evidence, the Full Bench observed that provisions permitting the cashing out of annual leave are a relatively common feature of enterprise agreements approved by the Commission, and that while most of these terms simply reflect the requirements in s.93, a significant proportion contain additional safeguards. The Full Bench stated that while the safeguards provided in s.93(2) set out the minimum requirements of such a term, they do not constitute a code and modern awards may also include terms that supplement the NES. 23
[31] The Full Bench granted the Employer Group’s claim in relation to cashing out of annual leave, subject to the incorporation of four additional safeguards as follows:
● a maximum of two weeks’ paid annual leave can be cashed out in any 12 month period (in the case of part-time employees, this is based on the employee’s weekly ordinary hours);
● specific requirements relating to record keeping and the content of any agreement relating to cashing out accrued annual leave;
● if the employee is under 18 years of age, the agreement to cash out a particular amount of accrued paid annual leave must be signed by the employee’s parent or guardian; and
● notes are inserted at the end of the model term drawing attention to the general protections in Part 3-1 of the FW Act against undue employer influence and misrepresentation in relation to rights under the clause.24
[32] The Full Bench also decided that the variation of all modern awards to incorporate the model term would ensure that each modern award provides a fair and relevant minimum safety net; is necessary to achieve the modern awards objective; and is consistent with the objects of the FW Act. 25
[33] In the September 2015 proceedings a number of organisations sought to vary the cashing out model term in a number of respects. Each of the proposed variations were rejected. 26
(ii) EFT and paid annual leave
[34] The Employer Group sought to vary 51 modern awards, which currently require the employer to pay an employee for annual leave prior to the employee taking the leave. The effect of the proposed variation is that when employees are paid by electronic funds transfer (EFT) they may be paid in accordance with their usual pay cycle while on paid annual leave, rather than being paid prior to commencing their period of annual leave. The union parties opposed the Employer Group claim. 27
[35] The Employer Group sought to insert the following clause into 51 modern awards:
‘Electronic Transfer Payment of Annual Leave
Despite anything else in this clause, an employee paid by electronic funds transfer (EFT) may be paid in accordance with their usual pay cycle while on paid annual leave.’ 28
[36] The Employer Group’s claim did not seek to change the status quo (i.e. payment for leave being made in advance of taking the leave) in respect of employees who are paid by cash or cheque.
[37] In the June 2015 decision the Full Bench granted the Employer Group claim and was satisfied that the variation will ensure modern awards will provide a fair and relevant minimum safety net, taking into account the particular considerations set out in paragraphs 134(1)(a) to (h) of the FW Act. The Full Bench rejected the argument that s.90 requires annual leave to be paid in advance and was satisfied that the proposed clause is an ancillary or incidental term within the meaning of s.55(4) of the FW Act. 29
[38] The Full Bench noted that the existing award provisions which require annual leave to be paid prior to taking leave do not appear to have been the subject of any detailed arbitral consideration. In considering whether such a requirement is still relevant in contemporary circumstances, the Full Bench relied on evidence that a substantial majority of respondents pay their employees by EFT and data showing a trend away from cash based transactions towards either credit card usage or direct transfer and BPAY methods. 30
(iii) Granting leave in advance
[39] The Employer Group sought to vary 48 modern awards to include a provision allowing for the taking of annual leave in advance of an entitlement to such leave accruing, by agreement between an employer and employee. The claimed provision also allowed an employer to make a deduction from monies payable to an employee on termination of employment where an employee ceases employment before accruing the leave taken in advance.
[40] In the June 2015 decision the Full Bench was persuaded that an award term which facilitates agreements to take leave in advance will operate in a mutually beneficial manner and was appropriate. Such a term would allow an employee, with the agreement of their employer, to take paid annual leave at a time when they may not otherwise be able to do so and will align the entitlements of modern award covered employees with those of award/agreement free employees. The main differences between the model term determined by the Full Bench and the Employer Group claim are the requirements regarding the content and form of any agreement to provide leave in advance and the employer’s obligation to keep such agreements as an employee record (as in subclause 1.1 of the model term). 31
[41] The Employer Group claim was directed at 48 modern awards and in the June 2015 decision the Full Bench was satisfied that the variation of those modern awards to incorporate the model term was necessary to meet the modern awards objective. The Full Bench also expressed the provisional view that it was necessary to vary all modern awards to insert the model term, in order to achieve the modern awards objective. 32
[42] In the September 2015 proceedings a number of employer organisations sought a variation to the model term to delete clause 1.1(c) of the proposed model term that relates to retaining a record. The Full Bench rejected the proposed variations, noting that it was ‘satisfied that in the context of such a substantive change to the modern award system, and given the uncertain application of Regulation 3.36, it is necessary to include subclause 1.1(c) in the model term’. 33
(iv) Excessive annual leave
[43] The Employer Group sought to insert the following ‘excessive annual leave’ clause into 70 modern awards:
‘Excessive Annual Leave
Despite anything else in this clause, an employer may direct an employee to take paid annual leave if:
(a) the employee has accrued at least six (6) weeks of annual leave;
(b) the employer gives the employee four (4) weeks’ notice to take the annual leave; and
(c) the employee retains at least four (4) weeks of accrued annual leave after the direction is given by the employer.’34
[44] The proposed clause was sought to be inserted into 39 modern awards that did not presently contain a provision dealing with excessive annual leave (see Attachment D to the June 2015 decision) and into 31 other modern awards to replace the existing excessive leave clause in those awards (see Attachment E to the June 2015 decision).
[45] The June 2015 decision deals with the relevant historical and legislative context noting that prior to the commencement of the National Employment Standards (NES) and modern awards, ‘federal and State legislation and awards commonly provided employers with a right to direct employees to take annual leave’. 35 The Full Bench noted that the evidence before it ‘clearly establishes that most employees accrue a portion of their paid annual leave entitlement and that a significant proportion of employees have six weeks or more of such accrued leave’.36 The evidence tendered by the Employer Group in support of their claim was in the form of the Employer Survey and various reports and academic articles relating to paid leave and why employees do not utilise their leave entitlements.
[46] The Full Bench expressed the provisional view that a variation of modern awards to incorporate the model term was necessary to achieve the modern awards objective. The Full Bench also observed that ‘greater consistency in the provisions governing the taking of annual leave will make the safety net simpler and easier to understand’ and on that basis formed the provisional view that a model term dealing with excessive leave should be inserted into all modern awards. 37
[47] The Full Bench redrafted the Employer Group’s proposed clause to create a provisional model term. Consistent with the Employer Group’s claim the provisional model terms incorporated the employer’s right to direct an employee to take their excessive annual leave, but also made provision for the circumstance where an employee accrues excessive paid annual leave but no employer direction is made. The provisional model term provided an avenue for an employee to exercise control over the time at which their leave is to be taken, subject to a number of limitations. The differences between the Employer Group’s proposed clause and the provisional model term are discussed at paragraphs [170]–[213] of the June 2015 decision.
[48] The terms of the provisional model term were the focal point of the September 2015 proceedings. The September 2015 decision made a number of variations to the provisional term:
(i) the definition of shiftworker for the purpose of the excessive leave model term is to be the same as the definition in the relevant modern award;
38
(ii) subclause 1.2(a) was varied to delete the words ‘request a meeting’ and to insert the words ‘seek to confer’ where the previous words appeared;39
(iii) the words ‘The direction must state that it is a direction given under subclause 1.2(b) of this award’, were deleted from subclauses 1.2(b) and 1.2(c)40
(iv) the words ‘The employer is not to take the direction into account in deciding whether to agree to such a requirement’, were deleted from subclause 1.2(b);41
(v) a transitional provision was inserted so that subclause 1.2(c) commences operation 12 months after the commencement of subclauses 1.2(a) and (b);42
(vi) subclause 1.2(c) was varied to provide that the maximum period of paid annual leave that may be the subject of a notice by an employee in any 12 month period will be four weeks’ leave if the employee is not a shiftworker and five weeks’ leave if the employee is a shiftworker;43 and
(vii) subclause 1.2(d) was deleted and a note inserted drawing attention to the dispute settlement clause in the modern award.44
[49] Before turning to the submissions in the present proceedings, it is necessary to first say something about the process we have adopted.
4. The Process
[50] As we have mentioned, the June and September 2015 decisions determined model terms in relation to:
(i) cashing out of annual leave;
(ii) electronic funds transfer and paid annual leave;
(iii) granting annual leave in advance; and
(iv) excessive annual leave.
[51] The September 2015 decision 45 made it clear that the content of the model terms had now been settled and that interested parties would be given an opportunity to make submissions and adduce evidence as to whether the various model terms should be inserted into particular modern awards.
[52] On 30 September 2015 draft determinations were published on the Fair Work Commission website inserting the relevant model terms into all modern awards and the following directions were issued:
‘All interested parties who now contend that a particular modern award should not be varied to incorporate one or more of the annual leave model terms are to file a submission and any evidence sought to be adduced in support of the submission and any evidence sought to be adduced in support of the submission on or before 4.00 pm on Monday 26 October 2015.
Note: To be clear, all interested parties must file fresh submissions. The Full Bench will not have regard to submissions already filed in respect of this issue as those submissions were made before the terms of the various model terms were finalised.’
[53] In accordance with the above directions a number of parties filed submissions and submissions in reply. Attachment 1 contains a list of the submissions made regarding the insertion of one or more model clauses in various modern awards.
[54] In a Statement 46 issued on 23 November 2015 (the November Statement) we set out some provisional views as to how we proposed to deal with the submissions filed. We invited parties to file written submissions regarding the provisional written views expressed. We dealt with those submissions in a Statement47 issued on 4 December 2015 (the December Statement).
[55] Paragraph [8] of the November Statement noted that an employee covered by the Waste Management Award 2010 had submitted that a definition of shiftworker for the purpose of the additional week of annual leave should be inserted in this award. Given that the award provides for shiftwork we expressed the provisional view that the variation determination include the following definition:
‘For the purposes of the additional week of annual leave provided in s.87(1)(b) of the Act, a shiftworker is a seven day shiftworker who is regularly rostered to work on Sundays and public holidays.’
[56] Parties were invited to file written submissions regarding the provisional view expressed (including the terms of the proposed variation). Submissions were filed by the Australian Industry Group (Ai Group) 48, supported by the Waste Contractors and Recyclers Association of NSW49, contending this issue should be dealt with during the Award stage on the basis that a similar application made by the Transport Workers’ Union of Australia is currently being dealt with in the Award stage in AM2014/216. In the December Statement50 we agreed with the proposal by Ai Group and accordingly the employee’s submission will be referred to the Award stage for consideration.
5. The Plain Language Re-drafts of certain Model Terms
[57] The modern awards objective requires the Commission to take into account ‘the need to ensure a simple, easy to understand, stable and sustainable modern award system for Australia that avoids unnecessary overlap of modern awards’ (see s.134(1)(g)) (emphasis added).
[58] Since the commencement of the Review, the Commission has undertaken a number of steps to reduce the complexity of modern awards including:
● the release of the Commission’s ‘Guide to Award Stage’ in June 2014. This Guide states that modern awards should ‘avoid technical jargon and use simple language while ensuring provisions are precise and legally enforceable’
51; and
● a Pilot to produce a plain language exposure draft based on the Pharmacy Industry Award 2010 (the Pilot).
[59] As the September 2015 model terms have not yet been incorporated into modern awards, the Full Bench has reviewed the model terms to ensure that they are expressed in plain language. The plain language model terms have been restructured to make the clauses more straightforward for employers and employees to understand and use. The language is simpler and clearer and uses commonly understood words rather than jargon or archaic words. Importantly, the substantive legal effect of the model terms has not been changed.
[60] In general, the plain language re-drafts of the model terms:
● use short familiar words (such as ‘instead of’ rather than ‘in lieu of’), and leave out unnecessary words;
● use short sentences;
● use ‘on’ instead of ‘upon’;
● avoid having more than five lines of unbroken text;
● avoid use of archaic words such as ‘notwithstanding’;
● avoid use of ‘such’ as in ‘such leave’; and
● write numbers as figures and not as words.
[61] Some particular aspects of the annual leave plain language re-drafts are discussed below.
[62] As we have mentioned, the September 2015 annual leave model terms deal with excessive annual leave accruals; taking annual leave in advance of accrual; cashing out of annual leave; and EFT and paid annual leave. Some minor modifications have been made to the ‘annual leave in advance’ and the ‘cashing out of annual leave’ model terms, consistent with the general observations set out above. The associated template agreements have also been redrafted to reflect the amendments to these model terms. No changes are proposed to the EFT and paid annual leave term.
[63] The excessive annual leave model term contains provisions about the taking of paid annual leave, additional to the National Employment Standards (NES), which provide ways of dealing with the accrual of excessive paid annual leave.
[64] The September 2015 model excessive annual leave term has been split into three separate subclauses. This restructuring and the use of subheadings is intended to help employers and employees navigate the clause.
[65] The September 2015 model term included a note that a dispute about the operation of the clause could be dealt with under the award’s dispute resolution clause. This note has been omitted from the plain language re-draft as:
it has no substantive effect; and
if it was to be retained, a similar note should potentially be inserted in other award terms for consistency, which would increase the length of the award.
[66] The genesis of the note in the September 2015 model term lies in the June 2015 provisional model term. Clause 1.2(d) of the provisional model term provided:
Clause 1.2(d) Dispute resolution
Without limiting the dispute resolution clause of this award, an employer or an employee may refer the following matters to the Fair Work Commission under the dispute resolution clause:
(i) a dispute about whether the employer or employee has requested a meeting and genuinely tried to reach agreement under subclause 1.2(a);
(ii) a dispute about whether the employer has unreasonably refused to agree to a request by the employee to take paid annual leave; and
(iii) a dispute about whether a direction to take leave complies with subclause 1.2(b) or whether a notice requiring leave to be granted complies with subclause 1.2(c).
[67] During the September 2015 proceedings ACCI, Ai Group and a number of other employer organisations submitted that subclause 1.2(d) of the provisional model term was unnecessary because the dispute resolution clauses in all 122 modern awards allow an employee to raise a dispute about any matter ‘arising under the award’. In the course of oral argument the ACTU submitted that when introducing a change to the award system it made sense to explain how the new provision was to operate within the context of the award. On that basis the ACTU supported the retention of subclause 1.2(d), but acknowledged that there were alternate ways of directing attention to the dispute settlement clause in the relevant award, such as a note to that affect. 52
[68] The September 2015 Full Bench adopted the ACTU’s suggestion:
‘The June 2015 decision indicated that as subclause 1.2(a) required discussion between the employer and employee, it was not necessary for there to be further discussions under the terms of the award dispute resolution clause before a dispute could be referred to the Commission under subclause 1.2(d). However, on reflection we are not persuaded that it is necessary to include a detailed dispute resolution provision in the model term.
Given that the model term is a substantive change to the modern award system it is appropriate that attention be directed to the dispute settlement clause in the award. A note to this effect will be inserted at the commencement of the model term.’ 53
[69] We have given further consideration to the inclusion of a note directing attention to the dispute settlement term in the award. We acknowledge that the introduction of the model term into modern awards is a significant change. The Commission proposes to publish an information note on the annual leave model terms when the various variation determinations come into effect. The information note will explain how the model terms operate and how they relate to other provisions in a modern award. In such circumstances it is unnecessary to include the note in the model term itself.
[70] The September 2015 model term includes a definition of ‘shiftworker’. This has been omitted from the plain language re-draft as it was unnecessary, as explained below.
[71] Section 87(1)(b)(i) of the FW Act provides that an employee is entitled to five weeks of paid annual leave if a modern award applies to the employee and defines or describes the employee as a shiftworker for the purposes of the NES. It follows that a separate definition of ‘shiftworker’ is not required in the excessive annual leave accruals term, as either the award concerned will already contain a definition, or it will not, in which case there will be no entitlement to an additional quantum of leave.
[72] Accordingly, where the excessive leave accruals model term is to be inserted into a particular modern award which does not define or describe employees as shiftworkers for the purposes of s.87(1)(b)(i) of the FW Act, all references to ‘shiftworker’ in the model term will be removed. For example:
(a) An employee has an excessive leave accrual if the employee has accrued more than 8 weeks’ paid annual
(or 10 weeks’ paid annual leave for a shiftworker, as defined by clause 29.2).
[73] The September 2015 model term provides that:
A direction by an employer must not result at any time in the employee’s remaining accrued entitlement to paid annual leave being less than six weeks, taking into account all other paid annual leave arrangements: subclause 1.2(b)(ii);
An employee to whom a direction has been given may make a request to take paid annual leave as if the direction had not been given: subclause 1.2(b)(iii);
If leave is agreed after a direction is issued and the direction would then result in the employee’s remaining accrued entitlement to paid annual leave at any time being less than six weeks, the direction will be deemed to have been withdrawn: subclause 1.2(b)(iv);
an employee must take paid annual leave in accordance with a direction complying with this subclause: subclause 1.2(b)(v).
[74] In contrast, the plain language re-draft in Attachment 2 at clause 29.7 provides that:
A direction by the employer is of no effect if it would result at any time in the employee’s remaining accrued entitlement to paid annual leave being less than 6 weeks, when any other paid leave arrangements are taken into account: subclause 29.7(b)(i);
An employee to whom a direction has been given may request to take a period of paid annual leave as if the direction had not been given: subclause 29.7(d);
An employee must take paid annual leave in accordance with a direction given by the employer that is in effect: subclause 29.7(c);
Paid annual leave arising from a request by the employee may result in the direction ceasing to have effect: Note 1 to subclause 29.7(d).
[75] The plain language re-draft has the same substantive effect as the September 2015 model term, but avoids the use of the complex legal concept of ‘deemed withdrawal’, which may not readily be understood.
[76] Attachment 2 is a comparative document which compares the September 2015 annual leave model terms with the May 2016 plain language model terms. The May 2016 plain language model terms are referred to as the ‘revised model terms’, in this decision.
[77] An annotated version of the May 2016 plain language template model terms is set out at Attachment 3.
[78] The revised model terms and the associated template agreements are set out at Attachment 4.
[79] We now turn to consider the submissions filed.
6. The Submissions
[80] The submissions received fall into two broad categories – general and award specific. We deal first with what we have categorised as the general submissions.
6.1 General Submissions
[81] Ai Group has made a general submission in response to the Commission’s provisional view that the excessive leave model term be inserted into all modern awards. 54 There are three aspects to the Ai Group’s submission:
(i) the transitional arrangements in relation to clause 1.2(c) of the model term (the transitional issue);
(ii) the contention that 55 modern awards, set out at Attachment 5 (see paragraph [10] of Ai Group’s Further Submission of 7 December 2015) should not be varied to insert the model term on the basis that they currently contain an excessive annual leave clause which affords greater flexibility (the ‘existing flexibility issue’); and
(iii) the contention that 22 modern awards which currently contain a provision which requires the taking of annual leave within a specified period after accrual should not be varied to insert the model term (the ‘taking of leave issue’).
[82] We propose to deal with each of these aspects of the Ai Group’s submission in turn.
(i) The transitional issue
[83] As we have previously noted the model term provides employers with the right to direct an employee to take ‘excessive annual leave’ and also makes provision for the circumstance where an employee accrues excessive annual leave but no employer direction is made. In such circumstances clause 1.2(c) of the model term provides an avenue for an employee to exercise control over the time at which that leave is to be taken.
[84] In the proceedings following the June 2015 decision a number of submissions were advanced in relation to clause 1.2(c) of the model term. Clause 1.2(c) sets out the circumstances in which an employee may require their employer to grant them a period of paid annual leave. Relevantly for present purposes, Ai Group advanced the proposition that clause 1.2(c) not commence until 12 months after the commencement of the balance of the clause, in order to address situations where a significant proportion of an employer’s workforce currently has excessive leave accruals.
[85] In the September 2015 decision the Commission concluded that the transitional arrangement proposed by Ai Group had merit:
‘We acknowledge that a provision such as subclause 1.2(c) is a significant change to the modern award system and it is appropriate that employers are provided with some lead time to adjust. Subclause 1.2(c) will commence operation 12 months after the commencement of subclauses 1.2(a) and (b).’ 55
[86] The short point advanced by Ai Group in the present proceedings is that neither the final form of the excessive leave model term nor the draft determinations contain the transitional arrangement contemplated in the September 2015 decision. Ai Group submits that consistent with the above passage from the September 2015 decision subclause 1.2(c) of the model term should be amended to insert a new subclause (i), in the following terms:
‘(i) Clause 1.2(c) comes into operation from [insert date 12 months after the commencement of clauses 1.2(a) and (b)]’
[87] As we decided in the September 2015 decision, any variation determination inserting the model excessive leave term into a modern award will provide that subclause 1.2(c) commences operation 12 months after the commencement of subclauses 1.2(a) and (b). The transitional subclause proposed by Ai Group will be inserted into each variation determination.
[88] The purpose of the transitional subclause is to delay the commencement of subclause 1.2(c) and hence it will cease to have any purpose after subclause 1.2(c) commences. Accordingly, any variation determination inserting the model excessive leave term will provide for the deletion of the transitional subclause after 12 months. Such a proposal was generally agreed during the course of the proceedings on 8 December 2015. 56
(ii) The existing flexibility issue
[89] Ai Group submits that where an excessive leave provision is currently in a modern award, that provision should be retained where it affords greater flexibility. 57 On this basis Ai Group submits that 55 modern awards should not be varied to insert the model excessive annual leave term as these awards currently contain an excessive leave clause that provides ‘greater flexibility’ than the model term. Ai Group’s submission is encapsulated at paragraph 9 of its Further Submission of 7 December 2015:
‘…existing flexibilities should not be removed from awards that presently contain excessive leave provisions. Rather, the model clause regarded as the minimum level of flexibility that employers should have access to with regard to excessive leave accruals. Thus, where there is a pre-existing approach in an award that presently affords greater flexibility, a more restrictive provision should not be inserted.’
[90] The 55 modern awards which are the subject of this aspect of Ai Group’s submission are set out at Attachment 5. Of those 55 modern awards, 31 were the subject of the Employer Group’s excessive leave claim (marked with an * in Attachment 5).
[91] A number of the 55 modern awards which are identified in Ai Group’s general submission are also the subject of award specific submissions by other employer organisations (these awards are shaded in Attachment 5). We deal later with the award specific submissions in relation to the following awards:
| Horticulture Award 2010 | |
| Pastoral Award 2010 | see [128]–[164] |
| Wine Industry Award 2010 | |
| Hospitality Industry (General) Award 2010 | |
| Registered and Licensed Clubs Award 2010 | see [201]–[230] |
| Restaurant Industry Award 2010 | |
| Passenger Vehicle Transportation Award 2010 | see [239]–[262] |
| Hydrocarbons Industry (Upstream) Award 2010 | |
| Mining Industry Award 2010 | see [263]–[289] |
| Oil Refining and Manufacturing Award 2010 | |
| Salt Industry Award 2010 |
[92] In addition to these 11 modern awards, the Nursery Award 2010 is addressed as part of the third aspect of Ai Group’s general submission and Ai Group has sought a further opportunity to make submissions directed at the particular circumstances relevant to the Aircraft Cabin Crew Award 2010.
[93] The excessive leave clause in the Textile, Clothing, Footwear and Associated Industries Award 2010 (the TCF Award) also warrants separate consideration. In a decision 58 published on 11 May 2015 a Full Bench of the Commission dealt with various substantive issues which had arisen in the review of the TCF Award. One of those issues concerned the variation of clause 41.4 of that award, which deals with the circumstances in which an employer can direct an employee to take a period of accrued annual leave. The Textile, Clothing and Footwear Union of Australia (TCFUA) and The Australian Workers’ Union (AWU) supported a proposed variation of clause 41.4 and this course was not opposed by any other party. The Full Bench decided to make the proposed variation, for the following reasons:
‘[147] We are satisfied that the variation proposed complies with the modern awards content requirements of the Act, being part of a term about arrangements for taking leave (s.139(h) of the Act).
[148]The addition of safeguards in relation to the right of an employer to direct the taking of excessive accrued annual leave arising from the variation, involves the maintenance of a minimum of four weeks accrual and a right to an employee to suggest an alternate basis of taking the period of annual leave directed (subject to a capacity of the employer to refuse, unless the refusal is unreasonable). The safeguards better protect the benefit of the leave to employees and have regard to the needs of the employees, better accommodate employees taking accrued annual leave at a time that suits their personal circumstances, including family commitments and better promotes the purpose of recovery, rest and recreation and are consistent with those parts of the modern awards objective in ss.134(1)(a) and (c) of the Act and may enhance the productivity of employees when they return to work from leave. Whilst the variations introduce some safeguards which may raise issues in respect of s.134(1)(f) of the Act, the safeguards are not unreasonable and employers remain able to manage excessive accrual of annual leave. Overall, we are satisfied that the variation is necessary to achieve the modern awards objective, having regard to the reasonableness requirement within s.93(3) of the Act.’ 59
[94] The TCF Award Full Bench decision was handed down before the June 2015 decision which expressed the provisional view that all modern awards should be varied to insert the excessive leave model term. Clause 41.4 of the TCF Award, as varied, is not in the same terms as the model term.
[95] Given that the excessive accrued leave term in the TCF Award has been the subject of recent consideration by a Full Bench in the context of the Review proceedings in relation to that award, we do not propose to vary clause 41.4 of the TCF Award at this time. We will relist this issue for further consideration later this year.
[96] Taking into account the matters referred to at paragraphs [90]–[94], that leaves 41 modern awards which Ai Group contends should not be varied to insert the excessive leave model term. Each of these awards currently contains an award provision which allows an employer to direct an employee to take a period of accrued annual leave. The relevant provisions in these 41 modern awards fall into three broad categories:
Category A
[97] Thirteen modern awards 60 provide that upon giving at least four weeks’ notice to the employee, an employer may require an employee to take an unspecified amount of accrued annual leave in circumstances where the employee has more than eight weeks’ accrued leave. The Alpine Resorts Award 2010 contains a similar provision, except that it operates where the employee has more than 30 days’ accrued leave.
Category B
[98] Twenty-four modern awards adopt the same basic provision as in Category A (i.e. employer direction with four weeks’ notice when the employee has more than eight weeks’ accrued leave) but contain additional safeguards:
● Twenty-one modern awards provide that the amount of leave an employee can be directed to take is no more than one quarter of the employee’s accrued leave.
61
● Three modern awards provide that the employee must retain a balance of at least 8 weeks’ accrued leave.62
[99] It should be noted that 19 of these 24 awards also contain a requirement that the employer must have discussed the issue of excessive leave or genuinely tried to reach agreement with the employee before the employer can require the employee to take annual leave.
Category C
[100] The remaining three modern awards contain unique provisions:
Clause 24.3 of the Cemetery Industry Award 2010 states:
‘An employee must take a period of annual leave when directed by the employer to do so during a period when the employer’s operations are closed or partially closed or the employee has at least 18 months of annual leave accrued.’ (emphasis added)
Clause 26.5 of the Pharmaceutical Industry Award 2010 states:
‘Notwithstanding s.88 of the Act, if an employer has genuinely tried to reach agreement with an employee as to the timing of taking annual leave, the employer can require the employee to take annual leave by giving not less than four weeks’ notice of the time when such leave is to be taken if:
(a) at the time the direction is given, the employee has 12 weeks or more of annual leave accrued; and
(b) the amount of annual leave the employee is directed to take is less than or equal to a third of the amount of leave accrued.’
Clause 25.2 of the Real Estate Industry Award 2010 states:
‘(a) The employer and employee may agree when and for what period the employee is to take the employee’s accrued annual leave, having regard to the personal circumstances of the employee and the operational requirements of the employer. Provided that the employer must not unreasonably refuse to agree to a request by the employee to take accrued annual leave.
(b) Annual leave should be taken by the employee in the employee’s anniversary year in which the entitlement accrues, except if agreed otherwise.
(c) The employer may require the employee to take any portion of annual leave that has accrued in excess of four weeks. In such circumstances the employer must give the employee at least four weeks’ notice of the requirement to take the excess period of accrued annual leave.
(d) If the employer has a business shut-down (which may include a partial shut-down) during the year, the employer may require the employee to take any or all accrued annual leave during the period of the shut-down.
(e) In the event that the employee has insufficient accrued annual leave for the period of the shut-down, the employee may be granted annual leave in advance by the employer.’ (emphasis added)
[101] Ai Group’s submission focusses on the maintenance of what it refers to as the ‘existing flexibilities’ in the current award provisions dealing with excessive paid annual leave accruals. To be clear, the ‘flexibilities’ to which Ai Group refers relate to the capacity of an employer to direct an employee to take accrued paid annual leave. Understandably enough, Ai Group’s submission is concerned with the effect upon employers of replacing the existing clauses with the model term. But it is important that the issue raised by Ai Group be seen in its broader context. Three points are relevant in this regard.
[102] First, ss.93(3) and (4) of the FW Act provide the jurisdictional basis for the insertion of terms in modern awards which deal with excessive paid annual leave accruals. These subsections provide as follows:
‘Terms about requirements to take paid annual leave
(3) A modern award or enterprise agreement may include terms requiring an employee, or allowing for an employee to be required, to take paid annual leave in particular circumstances, but only if the requirement is reasonable.
Terms about taking paid annual leave
(4) A modern award or enterprise agreement may include terms otherwise dealing with the taking of paid annual leave.’ (emphasis added)
[103] A modern award term which provides that an employee can be required to take a period of annual leave to reduce the employee’s excessive level of accrued paid annual leave is a term of the type contemplated by s.93(3) of the FW Act. Importantly, this type of term is subject to the legislative direction that any such requirement to take leave ‘is reasonable’. The Explanatory Memorandum to the Fair Work Bill 2008 provides some guidance as to subclause 93(3) of the assessment of what is reasonable in this context, it states:
‘381. Subclause 93(3) permits terms to be included in an award or agreement that require an employee, or that enable an employer to require or direct an employee, to take paid annual leave in particular circumstances, but only if the requirement is reasonable. This may include the employer requiring an employee to take a period of annual leave to reduce the employee’s excessive level of accrual or if the employer decides to shut down the workplace over the Christmas/New Year period.
382. In assessing the reasonableness of a requirement or direction under this subclause it is envisaged that the following are all relevant considerations:
the needs of both the employee and the employer’s business;
any agreed arrangement with the employee;
the custom and practice in the business;
the timing of the requirement or direction to take leave; and
the reasonableness of the period of notice given to the employee to take leave.’
[104] The Full Bench decision in Australian Federation of Air Pilots v HNZ Australia Pty Ltd 63 observed that in assessing the reasonableness of any employer requirement to take leave, ‘all relevant considerations needed to be taken into account including those which are set out in paragraph [382] of the Explanatory Memorandum to the Fair Work Bill 2008’.64
[105] Plainly, the assessment of whether a requirement to take paid annual leave is ‘reasonable’ within the meaning of s.93(3) is not viewed solely through the perspective of the employer.
[106] As to s.93(4), it provides that a modern award may include terms ‘otherwise dealing with the taking of paid annual leave’. The expression ‘otherwise dealing with’ is an expression of broad import. As the Full Bench decided in the September 2015 decision, subclause 1.2(c) of the model term is an award term which is expressly permitted by s.93(4) and accordingly it may be included in a modern award (see s.55(2)(a)). 65
[107] The second contextual consideration is that these proceedings form part of the Review. Section 156 of the FW Act imposes an obligation on the Commission to review all modern awards and each modern award must be reviewed in its own right.
[108] There is a degree of tension between some of the s.134 considerations and the Commission’s task is to balance these considerations and ensure that modern awards, together with the NES, provide a fair and relevant safety net of terms and conditions (see paragraph [19]).
[109] In performing this task the Commission must take into account the likely impact of any exercise of modern award powers on business (s.134(1)(f)), but that is not the sole relevant consideration. It should be constantly borne in mind that the legislative direction is that the Commission must ensure that modern awards, together with the NES provide ‘a fair and relevant minimum safety set of terms and conditions’. Fairness is to be assessed from the perspective of both employers and employees. 66
[110] The final general contextual consideration is the findings made by the Commission in the June 2015 decision, on the basis of the evidence adduced (primarily by the Employer Group). These findings as summarised in the September 2015 decision at paragraphs [133] and [137], underpin the decision to redraft the Employer Group claim and to formulate the provisional model term. Relevant for present purposes is the finding concerning the reasons why employees do not fully utilise their accrued annual leave. At paragraph 144 of the June 2015 decision the Full Bench stated:
‘The above data suggest that a significant barrier to the use of leave entitlements by employees is work pressures, with 43.9 per cent of employees in the AWALI survey being either too busy at work (30.7 per cent) or unable to take leave at a time that suited them (13.2 per cent). This suggests that employers are not creating workplaces that allow for employees to use their entitlements.’
[111] This finding is important because it provides the foundation for that part of the model term which provides, subject to certain limitations, employees with the ability to issue a notice to their employer requiring that a period of paid leave be granted.
[112] Having regard to these general contextual considerations we now turn to Ai Group’s submission that the existing excessive leave provisions in the 41 modern awards mentioned above should not be varied to insert the excessive leave model term. Ai Group seeks to retain the existing provisions allowing an employer to direct an employee to take a period of paid annual leave, unencumbered by a number of the safeguards which are contained in the revised excessive leave model term.
[113] It is apparent from an examination of the existing clauses in these awards that they differ from the revised model term in a number of respects, in particular:
(i) None of the 41 modern awards provide a mechanism, subject to appropriate limitations, for employees to require that their employer give them a period of paid annual leave. These modern awards make no provision for the circumstance where an employee accrues excessive paid annual leave but no employer direction is made.
(ii) None of the 41 modern awards provide that an employer direction to take a period of paid annual leave be in writing. Such a procedural safeguard assists in ensuring that the employee is aware of his or her obligations to comply with the direction and of the limitations on such a direction.
(iii) None of the 41 awards contains a requirement that the minimum length of any period of employer directed paid annual leave be one week. Such a provision would avoid the circumstance where an employee may be required to take their paid annual leave in a series of single days or small clusters of single days – thereby denying the employee the benefits associated with taking a longer period of leave. As the Full Bench said in the September 2015 decision:‘It is desirable that some minimum period of leave be prescribed in circumstances where the employee concerned has an excessive leave accrual and may not have had the benefit of any paid annual leave for a period of more than two years.’ 67
(iv) 40of the 41 modern awards provide that an employer can direct an employee to take a period of accrued paid annual leave by giving the employee four weeks’ notice. The remaining modern award – the Cemetery Award 2010 – makes no provision as to notice. The model term requires that employees be given eight weeks’ notice of the commencement of employer directed leave. The provision of eight weeks’ notice ensures that the employee has a reasonable amount of time to make arrangements for activities during the leave period and/or to coordinate their leave with family members.
(v) 15 of the 41 modern awards do not place any limitation on the amount of accrued paid annual leave that an employer may direct an employee to take. The model term provides that an employer direction must not result in the employees’ remaining accrued entitlement to paid annual leave being less than six weeks. As the Full Bench said in the June 2015 decision:‘Maintenance of a six week minimum is consistent with s.236(6) of the former WR Act and with the majority of current modern award clauses which limit the amount of accrued paid annual leave that an employer can direct an employee to take. It also accommodates the circumstance of an employee seeking to accrue leave so that he or she can take a reasonable extended holiday.’ 68
(vi) 15 of the 41 modern awards do not require an employer to enter into any dialogue with an employee before directing them to take part of their annual leave. In these awards the employer is under no obligation to discuss the issue of excessive annual leave accrual with the employee or to seek to reach an agreement with the employee about the time when such leave will be taken. The model term includes such a provision on the basis that it is plainly preferable that these matters be resolved by agreement between the employer and employee, without the need for a direction.
(vii) The Alpine Resorts Award 2010 provides a 30 days’ accrued leave threshold to ‘trigger’ the right of an employer to direct an employee to take paid annual leave. The model terms provides that a direction can only be made where an employee has accrued 8 weeks’ paid annual leave. The adoption of a lower threshold unfairly limits the capacity for employees to accrue leave for a later, longer, holiday.
[114] On the basis of the matters set out above we have concluded that the excessive leave terms in these 41 modern awards do not provide a fair and relevant minimum safety net of terms and conditions of employment. On that basis the terms do not meet the modern awards objective. We are also satisfied that these existing excessive leave terms do not meet the requirements of s.93(3) of the FW Act. These award terms provide that an employee may be required to take paid annual leave in particular circumstances and, having considered the terms of each of these provisions, that requirement is not reasonable. As the existing excessive leave terms in these awards do not meet the requirements of s.93(3) it follows that they are not terms which may be included in a modern award.
[115] We have concluded that the excessive leave terms in these 41 modern awards should be deleted and that these modern awards should be varied to insert the revised excessive leave model term. We rely on the findings set out in the June 2015 decision. 69
[116] As we noted earlier, a number of the modern awards which Ai Group contends should not be varied were in fact the subject of the Employer Group’s excessive leave claim. Indeed, in the June 2015 proceedings Ai Group supported varying the existing excessive leave terms in 25 of the 41 modern awards which are the subject of present consideration. Implicit in Ai Group’s submission at that time was the proposition that the existing excessive leave terms in these awards did not meet the modern awards objective. It is plainly difficult to reconcile Ai Group’s position in the June 2015 proceedings with its current contention that the excessive leave terms in these 25 modern awards should not be varied.
[117] None of these 41 modern awards make provision for the circumstance where an employee accrues excessive paid annual leave but no employer direction is made. The same observation may be made in respect of the Employer Group’s proposed excessive leave term which was rejected by the Commission in the June 2015 decision. The Employer Group’s proposed term sought to replicate previous mechanisms to address excessive leave accruals. Such mechanisms have had, at best, limited success in the past in addressing the issues associated with excessive annual leave accruals. The claim did not address a significant factor in the excessive accrual of annual leave – where work pressure prevents an employee from taking all of their paid annual leave. It was on that basis that the Commission concluded that granting the Employer Group claim would not be sufficient to address the problems of excessive accrued paid annual leave and went on to formulate the model term. The problem that the model term is seeking to address is the accrual of excessive annual leave and the negative impacts this may have on employees and employers. The FW Act does not require that this problem only be addressed by way of employer directions to take leave.
[118] The revised model term provides that an employee’s right to require that a period of paid annual leave is granted is subject to a number of limitations, including:
(i) the employee must have had an excessive leave accrual (i.e. eight weeks’ for most employees 70) for more than six months;
(ii) the employee must seek to confer with the employer and genuinely try to agree on steps that will be taken to reduce or eliminate the employee’s excessive leave accrual;
(iii) the employee may only give a direction in circumstances where the employer has not given a direction that will eliminate the employee’s excessive leave accrual;
(iv) the employer must be given at least eight weeks’ notice of the commencement of leave; and
(v) for most employees the maximum period of paid annual leave that may be the subject of a notice by an employee in any 12 month period will be four weeks’ leave.
[119] The revised model term facilitates the making of mutually beneficial arrangements between an employer and employee and provides an effective mechanism to address excessive annual leave accruals. It provides an employer with a reasonable opportunity to deal with an employee’s excessive leave accrual before the employee is able to issue a notice requiring that a period of paid annual leave be granted. The various safeguards incorporated into the revised model term seek to protect the interests of both employees and employers and the revised model term satisfies the requirements of s.93(3) of the FW Act.
[120] When leave is taken so as to reduce or eliminate excessive leave accruals, employees benefit from a period of rest and recovery from work, which has significant positive implications for employee health and wellbeing. Reducing fatigue at work and improving workplace health and safety also benefits employers. The evidence before the Commission in the June 2015 proceedings indicates that absenteeism is also reduced after a period of leave. In addition, there was employer evidence that excessive leave accruals represent a significant financial liability and can give rise to cash flow problems (particularly for small businesses) when paid out on termination.
[121] As to the matters in s.134(1)(a)–(h), insofar as they are relevant, we are satisfied that the insertion of the revised model term in these awards will promote flexible modern work practices and the efficient and productive performance of work (s.134(1)(d)) and will assist business in managing excessive leave accruals (s.134(1)(f)). We are satisfied that the variation of these 41 modern awards to delete the existing excessive leave terms and to insert the revised excessive leave model term is necessary to ensure that each of these modern awards meets the modern awards objective. We are also satisfied that such variations are consistent with the objects of the FW Act. 71
(iii) The taking of leave issue
[122] Ai Group submits that there are 22 modern awards which contain provisions relating to the taking of annual leave which ‘appear to have been crafted to prevent an excessive accrual of paid annual leave; or would at least have that effect’. 72
[123] The 22 modern awards identified by Ai Group fall into three categories:
(i) 13 modern awards currently include a term which requires annual leave to be taken within 18 months of accrual. Such a provision appears in the following modern awards:
● 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;
● Sporting Organisations Award 2010 – clause 25.4.(ii) 7 modern awards contain terms which are, in effect, substantially similar to those which provide for accrued leave to be taken within a specified period of time (referred to as category B in Ai Group’s Further submission). These modern awards are:
● 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;
● Security Services Industry Award 2010 – clause 24.3.(iii) Ai Group contends that the particular employment arrangements in the airline industry ‘may not be amenable to the model excessive leave cause’ 73 The two modern awards which are the subject of this submission are:
● Air Pilots Award 2010 – clause 27.4; and
● Aircraft Cabin Crew Award 2010 – clause 25.5.
[124] In relation to the category (i) and (ii) awards Ai Group proposes that the Commission convene a conference to enable the interested parties to canvass their respective positions. We agree to the course proposed and Commissioner Hampton will convene a conference in the coming weeks.
[125] As to the two modern awards in category (iii), Ai Group submits that a determination as to whether these awards should be varied to include the excessive leave model clause ‘be deferred until the Award stage of the review’. 74 The two awards are in Group 4 of the Award stage of the Review. In support of this proposition Ai Group submits that such a deferral:
‘…would provide us with an opportunity to make further relevant enquiries in order to assess whether the insertion of the model excessive leave provision in the … awards would in fact be problematic.’ 75
[126] We are content to defer our consideration of the insertion of the excessive leave model term into these two modern awards in order to give Ai Group and other interested parties an opportunity to make further relevant inquiries. The matter will remain before this Full Bench and will be the subject of further proceedings in the second half of this year.
[127] We now turn to deal with the award specific submissions.
6.2 Award specific submissions
(i) Agriculture group
[128] The National Farmers’ Federation (NFF) opposes the insertion of the model terms dealing with excessive leave and leave in advance into the Horticulture Award 2010, Pastoral Award 2010 and Wine Industry Award 2010 (collectively, the Agriculture Awards). The submission is advanced on the basis thatthese awards already contain provisions dealing with the matters which are the subject of the model terms.
[129] In each of the Agriculture Awards the provision in relation to ‘excessive leave’ is in the same terms, that is:
‘Notwithstanding s.88 of the Act, if an employer has genuinely tried to reach agreement with an employee as to the timing of taking annual leave, the employer can require the employee to take annual leave by giving not less than four weeks’ notice of the time when such leave is to be taken if:
(a) at the time the direction is given, the employee has eight weeks or more of annual leave accrued; and
(b) the amount of annual leave the employee is directed to take is less than or equal to a quarter of the amount of leave accrued.’ 76
[130] As to ‘leave in advance’, the provision in each of these awards is also in the same terms, that is:
‘By agreement between an employer and an employee a period of annual leave may be taken in advance of the entitlement accruing. Provided that if leave is taken in advance and the employment terminates before the entitlement has accrued, the employer may make a corresponding deduction from any money due to the employee on termination.’ 77
1.1 Definitions
Shiftworker means [insert definition]
(a) An employee has an excessive leave accrual if the employee is not a shiftworker and has accrued more than eight 8 weeks’ paid annual leave; or (or 10 weeks’ paid annual leave for a shiftworker, as defined by clause 1.x).
(b) the employee is a shiftworker and has accrued more than 10 weeks’ paid annual leave
(b) If an employee has an excessive leave accrual, the employer or the employee may seek to confer with the other and genuinely try to reach agreement on how to reduce or eliminate the excessive leave accrual.
(c) Clause 1.4 sets out how an employer may direct an employee who has an excessive leave accrual to take paid annual leave.
(d) Clause 1.5 sets out how an employee who has an excessive leave accrual may require an employer to grant paid annual leave requested by the employee.
1.2 Eliminating excessive leave accruals
(a) Dealing with excessive leave accruals by agreement
Before an employer can direct that leave be taken under subclause 1.2(b) or an employee can give notice of leave to be granted under subclause 1.2(c), the employer or employee must seek to confer and must genuinely try to agree upon steps that will be taken to reduce or eliminate the employee’s excessive leave accrual.
(b) Employer may direct that leave be taken
(i) This subclause applies if an employee has an excessive leave accrual.
1.4 Excessive leave accruals: direction by employer that leave be taken
If agreement is not reached under subclause 1.2(a), the employer may give a written direction to the employee to take a period or periods of paid annual leave.
(a) If an employer has genuinely tried to reach agreement with an employee under clause 29.6(b) but agreement is not reached (including because the employee refuses to confer), the employer may direct the employee in writing to take one or more periods of paid annual leave.
Such a direction must not:
result in the employee’s remaining accrued entitlement to paid annual leave at any time being less than six weeks (taking into account all other paid annual leave that has been agreed, that the employee has been directed to take or that the employee has given notice of under subclause 1.2(c));
(b) However, a direction by the employer under paragraph (a):
(i) is of no effect if it would result at any time in the employee’s remaining accrued entitlement to paid annual leave being less than 6 weeks when any other paid leave arrangements (whether made under clause 1.3, 1.4 or 1.5 or otherwise agreed by the employer and employee) are taken into account; and
(ii) must not require the employee to take any period of paid annual leave of less than one week;
(iii) must not require the employee to take any period of paid annual leave commencing beginning less than eight 8 weeks or more than 12 months after the day the direction is given to the employee;
require the employee to take any period of leave commencing more than 12 months after the day the direction is given to the employee; or
(iv) must not be inconsistent with any leave arrangement agreed between the employer and employee.
(c) The employee must take paid annual leave in accordance with a direction under paragraph (a) that is in effect.
(d) An employee to whom a direction has been given under this subclause paragraph (a) may make a request to take a period of paid annual leave as if the direction had not been given.
NOTE 1: Paid annual leave arising from a request mentioned in paragraph (d) may result in the direction ceasing to have effect. See clause 1.4(b)(i).
NOTE 2: The NES state that Under section 88(2) of the Fair Work Act, the employer must not unreasonably refuse to agree to a request by the employee to take paid annual leave.
(iv) If leave is agreed after a direction is issued and the direction would then result in the employee’s remaining accrued entitlement to paid annual leave at any time being less than six weeks, the direction will be deemed to have been withdrawn.
(v) The employee must take paid annual leave in accordance with a direction complying with this subclause.
(c) Employee may require that leave be granted
1.5 Excessive leave accruals: request by employee for leave
(i) This subclause applies if an employee has had an excessive leave accrual for more than six months and the employer has not given a direction under subclause 1.2(b) that will eliminate the employee’s excessive leave accrual.
If agreement is not reached If an employee has genuinely tried to reach agreement with an employer under subclause 1.3(b), but agreement is not reached (including because the employer refuses to confer), the employee may give a written notice to the employer that the employee wishes requesting to take a period or one or more periods of paid annual leave.
(b) However, an employee may only give a notice to the employer under paragraph (a) if:
(i) the employee has had an excessive leave accrual for more than 6 months at the time of giving the notice; and
(ii) the employee has not been given a direction under clause 1.4(a) that, when any other paid leave arrangements (whether made under clause 1.3, 1.4 or 1.5 or otherwise agreed by the employer and employee) are taken into account, would eliminate the employee’s excessive leave accrual.
(c) Such a notice A notice given by an employee under paragraph (a) must not:
(i) if granted, result in the employee’s remaining accrued entitlement to paid annual leave being at any time less than six 6 weeks (taking when any other paid leave arrangements (whether made under clause 1.3, 1.4 or 1.5 or otherwise agreed by the employer and employee) are taken into account all other paid annual leave that has been agreed, that the employee has been directed to take or that the employee has given notice of under this subclause); or
(ii) provide for the employee to take any period of paid annual leave of less than one week;
(iii) provide for the employee to take any period of paid annual leave commencing beginning less than eight 8 weeks or more than 12 months after the day the notice is given to the employee; or
provide for the employee to take any period of leave commencing more than 12 months after the day the notice is given to the employer; or
(iv) be inconsistent with any leave arrangement agreed between the employer and employee.
(d) The maximum amount of leave that an employee can give notice of under this subclause is: four An employee is not entitled to request by a notice under paragraph (a) more than 4 weeks’ paid annual leave in any 12 month period if the employee is not a shiftworker, and ( or 5 five weeks’ paid annual leave for a shiftworker, as defined by clause 1.x) if the employee is a shiftworker in any period of 12 months period.
(e) The employer must grant the employee paid annual leave in accordance with requested by a notice under paragraph (a) complying with this subclause.
Attachment 4—Plain language re-drafts of the annual leave model terms
1.1 Annual leave in advance
(a) An employer and employee may agree in writing to the employee taking a period of paid annual leave before the employee has accrued an entitlement to the leave.
(b) An agreement must:
(i) state the amount of leave to be taken in advance and when it is to be taken; and
(ii) be signed by the employer and employee.
(c) The employer must keep a copy of any agreement under clause 1.1 as an employee record.
(d) If, on the termination of the employee’s employment, the employee has not accrued an entitlement to a period of paid annual leave already taken in accordance with an agreement under clause 1.1, the employer may deduct from any money due to the employee on termination an amount equal to the amount already paid to the employee in respect of that annual leave taken.
1.2 Cashing out of annual leave
(a) Paid annual leave must not be cashed out except in accordance with an agreement under clause 1.2.
(b) Each cashing out of a particular amount of paid annual leave must be the subject of a separate agreement under clause 1.2.
(c) An employer and an employee may agree in writing to the cashing out of a particular amount of accrued paid annual leave by the employee.
(d) An agreement under clause 1.2 must state:
(i) the amount of leave to be cashed out and the payment to be made to the employee for it; and
(ii) when the payment is to be made.
(e) An agreement under clause 1.2 must be signed by the employer and employee and, if the employee is under 18 years of age, by the employee’s parent or guardian.
(f) The payment must not be less than the amount that would have been payable had the employee taken the leave at the time the payment is made.
(g) An agreement must not result in the employee’s remaining accrued entitlement to paid annual leave being less than 4 weeks.
(h) The maximum amount of accrued paid annual leave that may be cashed out in any period of 12 months is 2 weeks.
(i) The employer must keep a copy of any agreement under clause 1.2 as an employee record.
Note 1: Under section 344 of the Act, an employer must not exert undue influence or undue pressure on an employee to make, or not make, an agreement under clause 1.2.
Note 2: Under section 345(1) of the Act, a person must not knowingly or recklessly make a false or misleading representation about the workplace rights of another person under clause 1.2.
1.3 Excessive leave accruals: general provision
NOTE: Clauses 1.3 to 1.5 contain provisions, additional to the National Employment Standards, about the taking of paid annual leave as a way of dealing with the accrual of excessive paid annual leave. See Part 2.2, Division 6 of the Fair Work Act.
(a) An employee has an excessive leave accrual if the employee has accrued more than 8 weeks’ paid annual leave (or 10 weeks’ paid annual leave for a shiftworker, as defined by clause 1.x).
(b) If an employee has an excessive leave accrual, the employer or the employee may seek to confer with the other and genuinely try to reach agreement on how to reduce or eliminate the excessive leave accrual.
(c) Clause 1.4 sets out how an employer may direct an employee who has an excessive leave accrual to take paid annual leave.
(d) Clause 1.5 sets out how an employee who has an excessive leave accrual may require an employer to grant paid annual leave requested by the employee.
1.4 Excessive leave accruals: direction by employer that leave be taken
(a) If an employer has genuinely tried to reach agreement with an employee under clause 1.3(b) but agreement is not reached (including because the employee refuses to confer), the employer may direct the employee in writing to take one or more periods of paid annual leave.
(b) However, a direction by the employer under paragraph (a):
(i) is of no effect if it would result at any time in the employee’s remaining accrued entitlement to paid annual leave being less than 6 weeks when any other paid leave arrangements (whether made under clause 1.3, 1.4 or 1.5 or otherwise agreed by the employer and employee) are taken into account; and
(ii) must not require the employee to take any period of paid annual leave of less than one week; and
(iii) must not require the employee to take a period of paid annual leave beginning less than 8 weeks, or more than 12 months, after the direction is given; and
(iv) must not be inconsistent with any leave arrangement agreed by the employer and employee.
(c) The employee must take paid annual leave in accordance with a direction under paragraph (a) that is in effect.
(d) An employee to whom a direction has been given under paragraph (a) may request to take a period of paid annual leave as if the direction had not been given.
NOTE 1: Paid annual leave arising from a request mentioned in paragraph (d) may result in the direction ceasing to have effect. See clause 1.4(b)(i).
NOTE 2: Under section 88(2) of the Fair Work Act, the employer must not unreasonably refuse to agree to a request by the employee to take paid annual leave.
1.5 Excessive leave accruals: request by employee for leave
(a) If an employee has genuinely tried to reach agreement with an employer under clause 1.3(b) but agreement is not reached (including because the employer refuses to confer), the employee may give a written notice to the employer requesting to take one or more periods of paid annual leave.
(b) However, an employee may only give a notice to the employer under paragraph (a) if:
(i) the employee has had an excessive leave accrual for more than 6 months at the time of giving the notice; and
(ii) the employee has not been given a direction under clause 1.4(a) that, when any other paid leave arrangements (whether made under clause 1.3, 1.4 or 1.5 or otherwise agreed by the employer and employee) are taken into account, would eliminate the employee’s excessive leave accrual.
(c) A notice given by an employee under paragraph (a) must not:
(i) if granted, result in the employee’s remaining accrued entitlement to paid annual leave being at any time less than 6 weeks when any other paid leave arrangements (whether made under clause 1.3, 1.4 or 1.5 or otherwise agreed by the employer and employee) are taken into account; or
(ii) provide for the employee to take any period of paid annual leave of less than one week; or
(iii) provide for the employee to take a period of paid annual leave beginning less than 8 weeks, or more than 12 months, after the notice is given; or
(iv) be inconsistent with any leave arrangement agreed by the employer and employee.
(d) An employee is not entitled to request by a notice under paragraph (a) more than 4 weeks’ paid annual leave (or 5 weeks’ paid annual leave for a shiftworker, as defined by clause 1.x) in any period of 12 months.
(e) The employer must grant paid annual leave requested by a notice under paragraph (a).
AGREEMENT TO CASH OUT ANNUAL LEAVE
Name of employee: _____________________________________________
Name of employer: _____________________________________________
The employer and employee agree to the employee cashing out a particular amount of the employee’s accrued paid annual leave:
The amount of leave to be cashed out is: ____ hours/days
The payment to be made to the employee for the leave is: $_______ subject to deduction of income tax/after deduction of income tax (strike out where not applicable)
The payment will be made to the employee on: ___/___/20___
Signature of employee: ________________________________________
Date signed: ___/___/20___
Name of employer
representative: ________________________________________
Signature of employer
representative: ________________________________________
Date signed: ___/___/20___
| Include if the employee is under 18 years of age: Name of parent/guardian: ________________________________________ Signature of parent/guardian: ________________________________________ Date signed: ___/___/20___ |
AGREEMENT TO ANNUAL LEAVE IN ADVANCE
Name of employee: _____________________________________________
Name of employer: _____________________________________________
The employer and employee agree that the employee will take a period of paid annual leave before the employee has accrued an entitlement to the leave:
The amount of leave to be taken in advance is: ____ hours/days
The leave will commence on: ___/___/20___
Signature of employee: ________________________________________
Date signed: ___/___/20___
Name of employer
representative: ________________________________________
Signature of employer
representative: ________________________________________
Date signed: ___/___/20___
| [If the employee is under 18 years of age - include:] I agree that: if, on termination of the employee’s employment, the employee has not accrued an entitlement to a period of paid annual leave already taken under this agreement, then the employer may deduct from any money due to the employee on termination an amount equal to the amount already paid to the employee in respect of that annual leave taken. Name of parent/guardian: ________________________________________ Signature of parent/guardian: ________________________________________ Date signed: ___/___/20___ |
Attachment 5—List of awards that Ai Group submit should not be varied to insert the model excessive leave term
(see paragraph [10] of Ai Group’s Further Submission of 7 December 2015)
| Award title | |
| 1. | Aboriginal Community Controlled Health Services Award 2010 |
| *2. | Aircraft Cabin Crew Award 2010 |
| 3. | Airline Operations—Ground Staff Award 2010 |
| *4. | Airport Employees Award 2010 |
| 5. | Alpine Resorts Award 2010 |
| *6. | Aluminium Industry Award 2010 |
| 7. | Banking, Finance and Insurance Award 2010 |
| *8. | Business Equipment Award 2010 |
| *9. | Car Parking Award 2010 |
| *10. | Cemetery Industry Award 2010 |
| 11. | Clerks—Private Sector Award 2010 |
| *12. | Coal Export Terminals Award 2010 |
| 13. | Commercial Sales Award 2010 |
| *14. | Concrete Products Award 2010 |
| *15. | Contract Call Centres Award 2010 |
| 16. | Electrical Power Industry Award 2010 |
| *17. | Electrical, Electronic and Communications Contracting Award 2010 |
| *18. | Food, Beverage and Tobacco Manufacturing Award 2010 |
| 19. | General Retail Industry Award 2010 |
| *20. | Graphic Arts, Printing and Publishing Award 2010 |
| *21. | Horticulture Award 2010 |
| 22. | Hospitality Industry (General) Award 2010 |
| 23. | Hydrocarbons Industry (Upstream) Award 2010 |
| *24. | Joinery and Building Trades Award 2010 |
| 25. | Legal Services Award 2010 |
| 26. | Local Government Industry Award 2010 |
| *27. | Manufacturing and Associated Industries and Occupations Award 2010 |
| *28. | Marine Tourism and Charter Vessels Award 2010 |
| 29. | Mining Industry Award 2010; |
| *30. | Nursery Award 2010 |
| *31. | Oil Refining and Manufacturing Award 2010 |
| 32. | Passenger Vehicle Transportation Award 2010 |
| *33. | Pastoral Award 2010 |
| *34. | Pest Control Industry Award 2010 |
| *35. | Pharmaceutical Industry Award 2010 |
| 36. | Port Authorities Award 2010 |
| *37. | Poultry Processing Award 2010 |
| 38. | Rail Industry Award 2010 |
| 39. | Real Estate Industry Award 2010 |
| 40. | Registered and Licensed Clubs Award 2010 |
| 41. | Restaurant Industry Award 2010 |
| *42. | Road Transport (Long Distance Operations) Award 2010 |
| *43. | Road Transport and Distribution Award 2010 |
| 44. | Salt Industry Award 2010 |
| *45. | Seafood Processing Award 2010 |
| 46. | Sugar Industry Award 2010 |
| 47. | Supported Employment Services Award 2010 |
| *48. | Telecommunications Services Award 2010 |
| 49. | Textile, Clothing, Footwear and Associated Industries Award 2010 |
| *50. | Timber Industry Award 2010 |
| *51. | Transport (Cash in Transit) Award 2010 |
| *52. | Vehicle Manufacturing, Repair, Services and Retail Award 2010 |
| *53. | Water Industry Award 2010 |
| *54. | Wine Industry Award 2010 |
| 55. | Wool Storage, Sampling and Testing Award 2010 |
| * | Modern awards the Employer Group proposes to be varied to include the new subclause relating to excessive annual leave. |
| These awards are the subject of award specific submissions by employer organisations other than Ai Group. |
Attachment 6—Awards into which various provisions are to be inserted
| Code | Award title | Cashing out | Leave in advance | EFT | Excessive leave |
| MA000115 | Aboriginal Community Controlled Health Services Award 2010 | ✓ | ✓ | ✓ | |
| MA000018 | Aged Care Award 2010 | ✓ | ✓ | ✓ | |
| MA000046 | Air Pilots Award 2010 | ✓ | ✓ | ✓ | Def |
| MA000047 | Aircraft Cabin Crew Award 2010 | ✓ | ✓ | ✓ | Def |
| MA000048 | Airline Operations—Ground Staff Award 2010 | ✓ | ✓ | ✓ | ✓ |
| MA000049 | Airport Employees Award 2010 | ✓ | ✓ | ✓ | ✓ |
| MA000092 | Alpine Resorts Award 2010 | ✓ | ✓ | ✓ | |
| MA000060 | Aluminium Industry Award 2010 | ✓ | ✓ | ✓ | |
| MA000098 | Ambulance and Patient Transport Industry Award 2010 | ✓ | ✓ | ✓ | Conf |
| MA000080 | Amusement, Events and Recreation Award 2010 | ✓ | ✓ | ✓ | |
| MA000118 | Animal Care and Veterinary Services Award 2010 | ✓ | ✓ | ✓ | |
| MA000114 | Aquaculture Industry Award 2010 | ✓ | ✓ | ✓ | Conf |
| MA000079 | Architects Award 2010 | ✓ | ✓ | Conf | |
| MA000054 | Asphalt Industry Award 2010 | ✓ | ✓ | ✓ | Conf |
| MA000019 | Banking, Finance and Insurance Award 2010 | ✓ | ✓ | ✓ | |
| MA000001 | Black Coal Mining Industry Award 2010 | ✓ | ✓ | ✓ | Conf |
| MA000078 | Book Industry Award 2010 | ✓ | ✓ | ✓ | |
| MA000091 | Broadcasting and Recorded Entertainment Award 2010 | ✓ | ✓ | ✓ | Conf |
| MA000020 | Building and Construction General On-site Award 2010 | ✓ | ✓ | ✓ | ✓ |
| MA000021 | Business Equipment Award 2010 | ✓ | ✓ | ✓ | |
| MA000095 | Car Parking Award 2010 | ✓ | ✓ | ✓ | ✓ |
| MA000055 | Cement and Lime Award 2010 | ✓ | ✓ | ✓ | Conf |
| MA000070 | Cemetery Industry Award 2010 | ✓ | ✓ | ✓ | |
| MA000120 | Children’s Services Award 2010 | ✓ | ✓ | ✓ | |
| MA000022 | Cleaning Services Award 2010 | ✓ | ✓ | ✓ | |
| MA000002 | Clerks—Private Sector Award 2010 | ✓ | ✓ | ✓ | |
| MA000045 | Coal Export Terminals Award 2010 | ✓ | ✓ | ✓ | ✓ |
| MA000083 | Commercial Sales Award 2010 | ✓ | ✓ | ✓ | |
| MA000056 | Concrete Products Award 2010 | ✓ | ✓ | ✓ | ✓ |
| MA000023 | Contract Call Centre Award 2010 | ✓ | ✓ | ✓ | ✓ |
| MA000110 | Corrections and Detention (Private Sector) Award 2010 | ✓ | ✓ | ✓ | |
| MA000024 | Cotton Ginning Award 2010 | ✓ | ✓ | ✓ | |
| MA000085 | Dredging Industry Award 2010 | FH | FH | FH | |
| MA000096 | Dry Cleaning and Laundry Industry Award 2010 | ✓ | ✓ | ✓ | |
| MA000075 | Educational Services (Post-Secondary Education) Award 2010 | ✓ | ✓ | ✓ | |
| MA000076 | Educational Services (Schools) General Staff Award 2010 | ✓ | ✓ | ✓ | |
| MA000077 | Educational Services (Teachers) Award 2010 | FB | FB | FB | |
| MA000088 | Electrical Power Industry Award 2010 | ✓ | ✓ | ✓ | |
| MA000025 | Electrical, Electronic and Communications Contracting Award 2010 | ✓ | ✓ | ✓ | ✓ |
| MA000003 | Fast Food Industry Award 2010 | ✓ | ✓ | ✓ | |
| MA000111 | Fire Fighting Industry Award 2010 | ✓ | ✓ | ✓ | |
| MA000094 | Fitness Industry Award 2010 | ✓ | ✓ | ✓ | |
| MA000073 | Food, Beverage and Tobacco Manufacturing Award 2010 | ✓ | ✓ | ✓ | ✓ |
| MA000105 | Funeral Industry Award 2010 | ✓ | ✓ | ✓ | |
| MA000101 | Gardening and Landscaping Services Award 2010 | ✓ | ✓ | ✓ | Conf |
| MA000061 | Gas Industry Award 2010 | ✓ | ✓ | Conf | |
| MA000004 | General Retail Industry Award 2010 | ✓ | ✓ | ✓ | |
| MA000026 | Graphic Arts, Printing and Publishing Award 2010 | ✓ | ✓ | ✓ | ✓ |
| MA000005 | Hair and Beauty Industry Award 2010 | ✓ | ✓ | ✓ | |
| MA000027 | Health Professionals and Support Services Award 2010 | ✓ | ✓ | ✓ | |
| MA000006 | Higher Education Industry—Academic Staff—Award 2010 | FB | FB | FB | |
| MA000007 | Higher Education Industry—General Staff—Award 2010 | FB | FB | FB | |
| MA000008 | Horse and Greyhound Training Award 2010 | ✓ | ✓ | ✓ | Conf |
| MA000028 | Horticulture Award 2010 | ✓ | ✓ | ✓ | PV |
| MA000009 | Hospitality Industry (General) Award 2010 | ✓ | ✓ | PV | |
| MA000064 | Hydrocarbons Field Geologists Award 2010 | ✓ | ✓ | ✓ | |
| MA000062 | Hydrocarbons Industry (Upstream) Award 2010 | ✓ | ✓ | ✓ | PV |
| MA000029 | Joinery and Building Trades Award 2010 | ✓ | ✓ | ✓ | ✓ |
| MA000067 | Journalists Published Media Award 2010 | ✓ | ✓ | ✓ | |
| MA000099 | Labour Market Assistance Industry Award 2010 | ✓ | ✓ | ✓ | |
| MA000116 | Legal Services Award 2010 | ✓ | ✓ | ✓ | ✓ |
| MA000081 | Live Performance Award 2010 | ✓ | ✓ | ✓ | ✓ |
| MA000112 | Local Government Industry Award 2010 | ✓ | ✓ | ✓ | |
| MA000117 | Mannequins and Models Award 2010 | ✓ | ✓ | ✓ | |
| MA000010 | Manufacturing and Associated Industries and Occupations Award 2010 | ✓ | ✓ | ✓ | ✓ |
| MA000093 | Marine Tourism and Charter Vessels Award 2010 | ✓ | ✓ | ✓ | |
| MA000050 | Marine Towage Award 2010 | FH | FH | FH | |
| MA000086 | Maritime Offshore Oil and Gas Award 2010 | FH | FH | FH | |
| MA000030 | Market and Social Research Award 2010 | ✓ | ✓ | ✓ | ✓ |
| MA000059 | Meat Industry Award 2010 | ✓ | ✓ | ✓ | ✓ |
| MA000031 | Medical Practitioners Award 2010 | ✓ | ✓ | ✓ | |
| MA000011 | Mining Industry Award 2010 | ✓ | ✓ | ✓ | PV |
| MA000104 | Miscellaneous Award 2010 | ✓ | ✓ | ✓ | |
| MA000032 | Mobile Crane Hiring Award 2010 | ✓ | ✓ | Conf | |
| MA000033 | Nursery Award 2010 | ✓ | ✓ | ✓ | Conf |
| MA000034 | Nurses Award 2010 | ✓ | ✓ | ✓ | Conf |
| MA000072 | Oil Refining and Manufacturing Award 2010 | ✓ | ✓ | ✓ | PV |
| MA000063 | Passenger Vehicle Transportation Award 2010 | ✓ | ✓ | ✓ | |
| MA000035 | Pastoral Award 2010 | ✓ | ✓ | ✓ | PV |
| MA000097 | Pest Control Industry Award 2010 | ✓ | ✓ | ✓ | ✓ |
| MA000069 | Pharmaceutical Industry Award 2010 | ✓ | ✓ | ✓ | ✓ |
| MA000012 | Pharmacy Industry Award 2010 | ✓ | ✓ | ✓ | |
| MA000036 | Plumbing and Fire Sprinklers Award 2010 | ✓ | ✓ | ✓ | |
| MA000051 | Port Authorities Award 2010 | ✓ | ✓ | ✓ | |
| MA000052 | Ports, Harbours and Enclosed Water Vessels Award 2010 | FH | FH | FH | |
| MA000074 | Poultry Processing Award 2010 | ✓ | ✓ | ✓ | |
| MA000057 | Premixed Concrete Award 2010 | ✓ | ✓ | ✓ | Conf |
| MA000108 | Professional Diving Industry (Industrial) Award 2010 | FH | FH | ✓ | FH |
| MA000109 | Professional Diving Industry (Recreational) Award 2010 | ✓ | ✓ | ✓ | |
| MA000065 | Professional Employees Award 2010 | ✓ | ✓ | ✓ | |
| MA000037 | Quarrying Award 2010 | ✓ | ✓ | ✓ | Conf |
| MA000013 | Racing Clubs Events Award 2010 | ✓ | ✓ | ✓ | Conf |
| MA000014 | Racing Industry Ground Maintenance Award 2010 | ✓ | ✓ | ✓ | Conf |
| MA000015 | Rail Industry Award 2010 | ✓ | ✓ | ✓ | |
| MA000106 | Real Estate Industry Award 2010 | ✓ | ✓ | ✓ | ✓ |
| MA000058 | Registered and Licensed Clubs Award 2010 | ✓ | ✓ | PV | |
| MA000119 | Restaurant Industry Award 2010 | ✓ | ✓ | PV | |
| MA000039 | Road Transport (Long Distance Operations) Award 2010 | ✓ | ✓ | ✓ | ✓ |
| MA000038 | Road Transport and Distribution Award 2010 | ✓ | ✓ | ✓ | |
| MA000107 | Salt Industry Award 2010 | ✓ | ✓ | ✓ | PV |
| MA000068 | Seafood Processing Award 2010 | ✓ | ✓ | ✓ | ✓ |
| MA000122 | Seagoing Industry Award 2010 | FH | FH | FH | |
| MA000016 | Security Services Industry Award 2010 | FH | ✓ | ✓ | Conf |
| MA000040 | Silviculture Award 2010 | ✓ | ✓ | ✓ | Conf |
| MA000100 | Social, Community, Home Care and Disability Services Industry Award 2010 | ✓ | ✓ | ✓ | |
| MA000082 | Sporting Organisations Award 2010 | ✓ | ✓ | Conf | |
| MA000121 | State Government Agencies Award 2010 | ✓ | ✓ | ✓ | |
| MA000053 | Stevedoring Industry Award 2010 | ✓ | ✓ | ✓ | |
| MA000084 | Storage Services and Wholesale Award 2010 | ✓ | ✓ | ✓ | ✓ |
| MA000087 | Sugar Industry Award 2010 | ✓ | ✓ | ✓ | |
| MA000103 | Supported Employment Services Award 2010 | ✓ | ✓ | ✓ | |
| MA000066 | Surveying Award 2010 | ✓ | ✓ | ✓ | |
| MA000041 | Telecommunications Services Award 2010 | ✓ | ✓ | ✓ | ✓ |
| MA000017 | Textile, Clothing, Footwear and Associated Industries Award 2010 | ✓ | ✓ | FH | |
| MA000071 | Timber Industry Award 2010 | ✓ | ✓ | ✓ | ✓ |
| MA000042 | Transport (Cash in Transit) Award 2010 | ✓ | ✓ | ✓ | ✓ |
| MA000102 | Travelling Shows Award 2010 | ✓ | ✓ | ✓ | |
| MA000089 | Vehicle Manufacturing, Repair, Services and Retail Award 2010 | ✓ | ✓ | ✓ | ✓ |
| MA000043 | Waste Management Award 2010 | ✓ | ✓ | ✓ | |
| MA000113 | Water Industry Award 2010 | ✓ | ✓ | ✓ | |
| MA000090 | Wine Industry Award 2010 | ✓ | ✓ | PV | |
| MA000044 | Wool Storage, Sampling and Testing Award 2010 | ✓ | ✓ | ✓ | |
| 112 | 113 | 51 | 80 |
FB The annual leave provisions in these awards have been referred to the Full Bench dealing with other substantive issues in AM2015/6 (see Statement of 23 November 2015 [2015] FWCFB 8030)
FH A further hearing in respect of these awards will be held on 1 July 2016.
PV Provisional views have been expressed in respect of these awards and interested parties have been provided with an opportunity to comment. If any expressions of interest are received, directions will be issued for the filing of further submissions and evidence. If no expressions of interest are received by the specified date the awards will be varied to insert the excessive annual leave accruals model term.
Conf: A conference is to be held in respect of these awards (see paragraph [123]) of the decision.
Def: The insertion of the excessive leave model term in these 2 awards will be deferred until the second half of this year, see paragraphs [124]–[125] of the decision.
1 [2015] FWCFB 3406
2 Directions, 11 June 2015, AM2014/47 – Annual leave
3 [2015] FWCFB 5771
4 The Employer Group is the list of employers at Attachment A to the June 2015 decision who, along with Ai Group and ACCI presented a common position in respect of proposed variations to annual leave – see [8] of June 2015 decision
5 [2015] FWCFB 3406 at [308]–[382]
6 September 2015 decision [2015] FWCFB 5771 at [202]
7 [2015] FCAFC 100
8 See ACTU correspondence, 31 August 2015
9 [2014] FWCFB 1788
10 National Retail Association v Fair Work Commission [2014] FCAFC 118 at [85] although the Court’s observations were directed at the expression ‘in its own right’ in Item 6(2A) of Schedule 5 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth) they are apposite to s.153(5).
11 National Retail Association v Fair Work Commission [2014] FCAFC 118 at [118]. While the Full Federal Court was considering the meaning of the Item 6(2A) of Schedule 5 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth) the observations are also apposite to s.156(5) of the FW Act, which is in substantially the same terms
12 [2014] FWCFB 1788
13 Ai Group submission, 20 February 2014 at para. 4.6, also see paras 4.2 to 4.5
14 See Modern Awards Review 2012 [2012] FWAFB 5600 at [82] to [85]
15 Ibid at [19]–[24]
16 See Shop, Distributive and Allied Employees Association v National Retail Association (No 2) (2012) 205 FCR 227 at [35] per Tracey J
17 Friends of Hichinbrook Society Inc v Minister for Environment (No 3) (1997) 77 FCR 153; Australian Competition and Consumer Commission v Leelee Pty Ltd [1999] FCA 1121; Edwards v Giudice [1999] FCA 1836; National Retail Association v Fair Work Commission [2014] FCAFC 118
18 National Retail Association v Fair Work Commission [2014] FCAFC 118 at [110]
19 Ibid at para. 109 albeit the Court was considering a different statutory context, the observation at [110] is applicable to the Commission’s task in the Review
20 See generally, : Shop, Distributive and Allied Employees Association v National Retail Association (No.2) (2012) 205 FCR 227
21 Ai Group correspondence, 21 May 2014; ACCI correspondence, 21 May 2014
22 [2015] FWCFB 3406 at [220]
23 Ibid at [222]–[240]
24 Ibid at [255]–[264]
25 Ibid at [264]–[267]
26 [2015] FWCFB 5771 at [179]–[191]
27 [2015] FWCFB 3406 at [430]–[434]
28 Ibid at [431]
29 Ibid at [443]–[457]
30 Ibid at [436]–[442]
31 Ibid at [411]–[413]
32 Ibid at [415]
33 Insert references to relevant paragraph in September 2015 decision
34 Ai Group correspondence, 21 May 2014; ACCI correspondence, 21 May 2014
35 [2015] FWCFB 3406 at [76]
36 Ibid at [100]
37 Ibid at [149]–[169]
38 [2015] FWCFB 5771 at [51]
39 Ibid at [59]–[62]
40 Ibid at [64]–[66]
41 Ibid at [83]–[96]
42 Ibid at [146]–[148]
43 Ibid at [146]–[149]
44 Ibid at [150]–[156]
45 [2015] FWCFB 8030
46 [2015] FWCFB 8030
47 [2015] FWCFB 8408
48 Ai Group submission, 30 November 2015
49 Waste Contractors and Recyclers Association of NSW, submission 1 December 2015
50 [2015] FWCFB 8408 at [31]
51 4 yearly review - Guide to Award Stage, 16 June 2014, see paras 30 and 32
52 Transcript 7 August 2015 at paras 467–475
53 [2015] FWCFB 5771 at paras [155]–[156]
54 Ai Group submission – excessive leave, 7 December 2015
55 [2015] FWCFB 5771 at [148]
56 Transcript at paras 695–703
57 Ai Group submission, 26 October 2015
58 [2015] FWCFB 2831
59 Ibid at [147]–[148]
60 Aboriginal Community Controlled Health Services Award 2010 [MA000115] – cl.26.3; Airline Operations—Ground Staff Award 2010 [MA000048] – cl.34.6; Banking, Finance and Insurance Award 2010 [MA000019] – cl.24.5; Business Equipment Award 2010 [MA000021] – cl.31.4; Clerks—Private Sector Award 2010 [MA000002] – cl.29.5; Commercial Sales Award 2010 [MA000083] – cl.24.5; General Retail Industry Award 2010 [MA000004] – cl.32.5; Legal Services Award 2010 [MA000116] – cl.35.6; Local Government Industry Award 2010 [MA000112] – cl.25.5; Port Authorities Award 2010 [MA000051] – cl.22.5; Rail Industry Award 2010 [MA000015] – cl.23.5; Sugar Industry Award 2010 [MA000087]–cl.33.5 and Supported Employment Services Award 2010 [MA000103] – cl.22.3.
61 Airport Employees Award 2010 [MA000049] – cl.31.5; Car Parking Award 2010 [MA000095] – cl.25.5; Coal Export Terminals Award 2010 [MA000045] – cl.19.7; Concrete Products Award 2010 [MA000056] – cl.26.5; Contract Call Centres Award 2010 [MA000023] – cl.27.5; Electrical, Electronic and Communications Contracting Award 2010 [MA000025] – cl.28.5; Electrical Power Industry Award 2010 [MA000088] – cl.28.5; Food, Beverage and Tobacco Manufacturing Award 2010 [MA000073] – cl.34.7; Graphic Arts, Printing and Publishing Award 2010 [MA000026] – cl.37.7; Joinery and Building Trades Award 2010 [MA000029] – cl.32.5; Manufacturing and Associated Industries and Occupations Award 2010 [MA000010] – cl.41.6; Marine Tourism and Charter Vessels Award 2010 [MA000093] – cl.23.4; Pest Control Industry Award 2010 [MA000097] – cl.24.4; Poultry Processing Award 2010 [MA000074] – cl.27.5; Road Transport and Distribution Award 2010 [MA000038] – cl.29.4; Road Transport (Long Distance Operations) Award 2010 [MA000039] – cl.23.3; Seafood Processing Award 2010 [MA000068] – cl.27.6; Telecommunications Services Award 2010 [MA000041] – cl.23.4; Timber Industry Award 2010 [MA000071]–cl.33.6; Transport (Cash in Transit) Award 2010 [MA000042] – cl.29.5; Vehicle Manufacturing, Repair, Services and Retail Award 2010 [MA000089] – cl.29.4
62 Aluminium Industry Award 2010 [MA000060] – cl.22.6; Water Industry Award 2010 [MA000113] – cl.27.4; and Wool Storage, Sampling and Testing Award 2010 [MA000044] – cl.26.4
63 [2015] FWCFB 3124
64 Ibid at [25]
65 [2015] FWCFB 5771 at [128]
66 Re Shop, Distributive and Allied Employees’ Association (2003) 135 IR 1 at [11] (per Giudice J) and [24] (per Watson SDP and Raffaelli C)
67 [2015] FWCFB 5771 at [71]
68 [2015] FWCFB 3406 at [200]
69 See [2015] FWCFB 5771 at [134]–[138]
70 The threshold amount for shiftworkers is 10 weeks
71 By providing workplace relations laws that are fair to working Australians and are flexible for businesses (s.3(a)); ensuring a guaranteed safety net of fair, relevant and enforceable minimum terms and conditions through the NES and modern awards (s.3(b)); assisting employees to balance their work and family responsibilities by providing for flexible working arrangements (s.3(d)); and acknowledging the special circumstances of small and medium-sized businesses (s.3(g)). In respect of s.3(g), as relatively few employees employed in small businesses are covered by a collective agreement, a modern award variation of the type proposed would ensure that all such businesses have capacity to deal with excessive leave accruals
72 Ai Group further submission, 7 December 2015 at para. 13
73 Ai Group further submission, 7 December 2015 at para. 72
74 Ibid at para. 75
75 Ibid
76 See Clause 25.7, Horticultural Award 2010; Clause 23.5, Pastoral Award 2010 and Clause 31.5, Wine Industry Award 2010
77 See Clause 25.8, Horticultural Award 2010; Clause 23.6, Pastoral Award 2010 and Clause 31.6, Wine Industry Award 2010
78 [2015] FWCFB 3406 at [413]
79 Accommodation Association of Australia and another Submission, 14 July 2015; Australian Business Industrial and the NSW Business Chamber Submission, 13 July 2015; Australian Chamber of Commerce and Industry Submission, 13 July 2015; Australian Hotels Association Submission, 13 July 2015; and Master Plumbers Association of NSW Submission, 17 July 2015
80 [2015] FWCFB 5771 at [196]–[197] and [213]
81 For example, the NFF does not support the variation of the Horticultural Award 2010, the Pastoral Award 2010 or the Wine Industry Award 2010 to include the model term dealing with leave in advance. At paragraph 22 of its submissions in support of its position the NFF states: ‘No claim was made to vary the leave in advance terms currently contained in the Pastoral Award, the Horticultural Award or the Wine Award.’
82 National Retail Association v Fair Work Commission [2014] FCAFC 118 at [18]
83 The Australian Industry Group re Manufacturing and Associated Industries and Occupations Award 2012 [2012] FWA 2556
84 [2015] FWCFB 3406 at [415]
85 NFF submission, 26 October 2015
86 Transcript at para 1081
87 [2015] FWCFB 5771 at [196]
88 Skinner, N. Pocock, B. (2013). ‘Paid annual leave in Australia: Who gets it, who takes it and implications for work-life interference’, Journal of Industrial Relations, 55(5), 681-698
89 The NFF submission makes no mention of the Wine Industry Award 2010
90 NFF submission, 20 June 2014 at para 33
91 See The Australian Work and Life Index 2010 ‘How much should we work? Working hours, holidays and working life: the participation challenge’ which shows that the 2010 data collection includes employees from the Agriculture, forestry and fishing industry at p. 59
92 AMWU submission, 13 July 2015 at [27]–[28]
93 Ai Group submission and witness statements, 20 June 2014, Witness statement of Mr Ben Waugh, Attachment A
94 [2015] FWCFB 3406 at [116]
95 Ai Group submission and witness statements, 20 June 2014, Witness statement of Mr Ben Waugh, Attachment E at p. 25
96 Witness Statement of Ben Waugh, 20 June 2014
97 Wooden M and Warren D (2008), ‘Paid annual leave and working hours: Evidence from the HLDA survey’, (2008) Journal of Industrial Relations 50(4)
98 Ibid
99 Ibid
100 See HILDA User Manual, Release 14, pp. 42–45
101 Unlike Wooden and Warren (2008), this analysis is not restricted to full-time employees who have been with their current employer for at least one year. However, in 2014, the average tenure for non-casual employees with their current employer in Agriculture, forestry and fishing (7.8 years) is similar to all industries (7.4 years). In addition, there is a higher proportion of full-time employees in Agriculture, forestry and fishing (90 per cent) compared with all industries (78.7 per cent).
102 [2015] FWCFB 5771 at [71]
103 CFMEU (M&E) submission, 26 October 2015 at para 9.6
104 Ibid at para 9.3
105 Transcript at paras 1249–1250
106 CFMEU (M&E) submissions, 21 December 2015 and 22 February 2016
107 CFMEU (M&E) submission, 22 February 2016 at paras 9.1– 9.4
108 Australian Industry Group submission in reply, 11 November 2015, Coal Mining Industry Employer Group submissions in reply, 11 November 2015
109 Australian Industry Group submission in reply, 11 November 2015
110 Transcript at paras 1243–1244
111 Ibid at paras 1245–1246
112 CMIEG submission, 11 November 2015 at para 3(c)
113 CFMEU (M&E) submission, 26 October 2015 at para 6
114 June 2015 decision [2015] FWCFB 3406 at [432]
115 Note: subclause 1.2(c)(ii) provides that such notice may only be given if agreement is not reached under subclause 1.2(a), which provides that before an employee can give notice of leave to be granted under subclause 1..2(c) the employee ‘must seek to confer and must genuinely try to agree upon steps that will be taken to reduce or eliminate the employee’s excessive leave accrual’
116 Transcript at paras 1331–1336
117 [2015] FWCFB 5771 at [162]
118 [2015] FWCFB 5771 at [146]
119 ASMOF submission, 26 October 2015 at paras 6–8
120 Ibid at paragraph 17
121 See clause 34.3 of the Hospitality Industry (General) Award 2010; clause 30.4 of the Registered and Licensed Clubs Award 2010; and clause 35.3 of the Restaurant Industry Award 2010
122 [2015] FWCFB 3406 at [200]
123 [2015] FWCFB 5771 at [71]
124 Australian Hotels Association submission, 26 October 2015
125 Ibid at para. 1(e) on p. 2
126 [2015] FWCFB 3406 at [415]
127 (2008) 177 IR 364 at [95]–[98]. Note the Full Bench also dealt with the issue of cashing out of annual leave, at paras 99–100, but that is not relevant for present purposes
128 [2009] AIRCFB 345 at paragraphs [16]–[18]
129 Restaurant and Catering Australia submission, 26 October 2015 at paras 14 and 16
130 Transcript at paras 1013–1016
131 Transcript at paras 1023–1025
132 Clubs Australia Industrial submission, 26 October 2015
133 Note that unlike Wooden and Warren (2008), this analysis is not restricted to full-time employees who have been with their current employer for at least one year. In 2014, the average tenure for non-casual employees with their current employer in Accommodation and food services (4.2 years) is lower than all industries (7.4 years). In addition, there is a lower proportion of full-time employees in Accommodation and food services (66.5 per cent) compared with all industries (78.7 per cent).
134 [2015] FWCFB 8408 at [6]
135 [2015] FWCFB 3406 at [415]
136 Ibid at [200]
137 [2015] FWCFB 5771 at [71]
138 Ibid at [151]–[156]
139 Ibid at [139]–[140]
140 See [2015] FWCFB 5771 at [134]–[138]
141 By providing workplace relations laws that are fair to working Australians and are flexible for businesses (s.3(a)); ensuring a guaranteed safety net of fair, relevant and enforceable minimum terms and conditions through the NES and modern awards (s.3(b)); assisting employees to balance their work and family responsibilities by providing for flexible working arrangements (s.3(d)); and acknowledging the special circumstances of small and medium-sized businesses (s.3(g)). In respect of s.3(g), as relatively few employees employed in small businesses are covered by a collective agreement, a modern award variation of the type proposed would ensure that all such businesses have capacity to deal with excessive leave accruals.
142 Australian Workers’ Union submission in reply, 2 November 2015
143 [2011] FWA 7975
144 Clause 27.7 Hydrocarbons Industry (Upstream) Award 2010;clause 23.6 Mining Industry Modern Award 2010; clause 26.6 Oil Refining and Manufacturing Award 2010;and clause 25.6 Salt Industry Award 2010
145 Clause 27.9 Hydrocarbons Industry (Upstream) Award 2010;clause 23.8 Mining Industry Modern Award 2010; clause 26.8 Oil Refining and Manufacturing Award 2010;and clause 25.8 Salt Industry Award 2010
146 [2015] FWCFB 3406 at [200]
147 [2015] FWCFB 3406 at [200]
148 The Salt Industry Award 2010 is relevant to both Mining and Manufacturing as the award covers extracting and gathering of salt, as well as the manufacturing and refining of salt
149 Note that unlike Wooden and Warren (2008), this analysis is not restricted to full-time employees who have been with their current employer for at least one year. HILDA data show that in 2014, the average tenure for non-casual employees with their current employer in Mining (6.4 years) is lower than for all industries (7.4 years). In addition, there is a higher proportion of full-time employees in Mining (96.9 per cent) compared with all industries (78.7 per cent).
150 HILDA data show that in 2014, the average tenure for non-casual employees with their current employer in Manufacturing (8 years) is slightly higher than for all industries (7.4 years). In addition, there is a higher proportion of full-time employees in Manufacturing (94.1 per cent) compared with all industries (78.7 per cent).
151 [2015] FWCFB 3406 at [413]
152 Accommodation Association of Australia and another Submission, 14 July 2015; Australian Business Industrial and the NSW Business Chamber Submission, 13 July 2015; Australian Chamber of Commerce and Industry Submission, 13 July 2015; Australian Hotels Association Submission, 13 July 2015; and Master Plumbers Association of NSW Submission, 17 July 2015
153 [2015] FWCFB 5771 at [196]–[197] and [213]
154 [2015] FWCFB 5771 at [196]
155 MSS Security correspondence, 23 November 2015 and submission, 30 January 2016
156 [2015] FWCFB 3406 at [476]
157 See [2015] FWCFB 3406 at [255]–[335]; note that three Educational awards have been referred to a Full Bench in AM2015/6 (see [2015] FWCFB 8030)
158 Air Pilots Award 2010 [MA0000046] – cl.27; Business Equipment Award 2010 [MA000021] – cl.31; Fire Fighting Industry Award 2010 [MA000111] – cl.28; Graphic Arts, Printing and Publishing Award 2010 [MA000026] – cl.31; Journalists Published Media Award 2010 [MA000067] – cl.24 and Plumbing and Fire Sprinklers Award 2010 [MA000036] – cl.34
159 We do not propose to modify the definition of excessive accrued annual leave in three of these awards because the provision of leave in excess of the 4 week standard is only made available to some employees. The awards in which the definition will not be adjusted are: Business Equipment Award 2010; Graphic Arts, Printing and Publishing Award 2010 and Plumbing and Fire Sprinklers Award 2010
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