[2020] FWCFB 1131

FAIR WORK COMMISSION

DECISION

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

4 yearly review of modern awards—Payment of wages
(AM2016/8)

JUSTICE ROSS, PRESIDENT
DEPUTY PRESIDENT GOSTENCNIK
DEPUTY PRESIDENT CLANCY
COMMISSIONER LEE
COMMISSIONER HUNT

MELBOURNE, 20 MAY 2020

4 yearly review of modern awards – common issue – payment of wages – payments on termination model term – outstanding modern awards.

Chapters		Paragraph
1	Background	[1]
2	Outstanding Award Specific Issues	[11]
Nurses Award 2010	[12]
Timber Industry Award 2010	[42]
Vehicle Manufacturing, Repair, Services and Retail Award 2010	[47]
Waste Management Award 2010	[94]
3	The Variation Applications - General
3.1 Procedural matters	[105]
3.2 General submissions	[118]
3.2.1 ABI and Ai Group	[119]
3.2.2 AMWU and CFMMEU (C&G) submissions (i) AMWU (ii) CFMMEU (C&G)	[125] [136]
3.2.3 ABI and Ai Group reply submissions (i) ABI (ii) Ai Group	[166] [178]
3.3 Observations about the general submissions	[182]
4	The Specific Applications	[202]
4.1 Aged Care Award 2010	[202]
4.2 Black Coal Mining Industry Award 2010	[211]
4.3 Building and Construction General On-site Award 2010	[225]
4.4 Business Equipment Award 2010 and Electrical, Electronic and Communications Contracting Award 2010	[243]
4.5 Dry Cleaning and Laundry Industry Award 2010	[252]
4.6 Graphic Arts, Printing and Publishing Award 2010	[262]
4.7 Manufacturing Awards • Food, Beverage and Tobacco Manufacturing Award 2010 • Manufacturing and Associated Industries and Occupations Award 2010	[284]
4.8 Meat Industry Award 2010	[298]
4.9 Mobile Crane Hiring Award 2010	[320]
4.10 Passenger Vehicle Transportation Award	[328]
4.11 Plumbing and Fire Sprinklers Award 2010	[344]
4.12 Seafood Processing Award 2010	[361]
4.13 Supported Employment Services Award 2010	[373]
4.14 Transport Awards Road Transport and Distribution Award 2010 Transport (Long Distance Operations) Award 2010	[384]
5	Summary and Next Steps	[402]
6	Conclusion	[427]

Abbreviations

ABI	Australian Business Industrial representing the Australian Childcare Alliance Inc and the New South Wales Business Chamber Limited
ACTU	Australian Council of Trade Unions
Ai Group	Australian Industry Group
AMIEU	Australasian Meat Industry Employees Union
AMWU	Australian Manufacturing Workers’ Union
ANMF	Australian Nursing and Midwifery Federation
AWU	Australian Workers’ Union
CEPU	Communications, Electrical and Plumbing Union of Australia
CFMMEU	Construction Forestry Maritime Mining Energy Union
CFMMEU – (C & G)	Construction Forestry Maritime Mining Energy Union – Construction and General Division
CFMMEU – (Manufacturing)	Construction Forestry Maritime Mining Energy Union – Manufacturing Division
CFMMEU – (M & E)	Construction Forestry Maritime Mining Energy Union – Mining and Energy Division
HIA	Housing Industry Association
HSU	Health Services Union
IFA	Individual Flexibility Arrangement
MBA	Master Builders Australia
MTA SA	Motor Trades Association – South Australia
MTO	Motor Trades Organisations
NatRoad	National Road Transport Association
NES	National Employment Standards
PHIEA	Private Hospital Industry Employer Association
SDA	Shop, Distributive and Allied Employees Association
TWU	Transport Workers’ Union
UWU	United Workers’ Union
VACC	Victorian Automobile Chamber of Commerce

1. Background

[1] The ‘payment of wages’ terms in modern awards are being dealt with as a common issue in the 4 yearly review of modern awards.

[2] In the December 2016 decision¹, we confirmed our provisional view that each modern award should provide for the payment of wages and other amounts owing to an employee on termination of employment and that such a term should prescribe the timeframe within which such termination payments are to be made.²

[3] In a decision issued on 17 July 2018 (the July 2018 decision) we finalised the payment of wages on termination of employment model term.³ The model term provides as follows:

X (a) The employer must pay an employee no later than 7 days after the day on which the employee’s employment terminates:

(i) The employee’s wages under this award for any complete or incomplete pay period up to the end of the day of termination: and

(ii) All other amounts that are due to the employee under the award and the NES.

(b) The requirement to pay wages and other amounts under paragraph (a) is subject to further order of the Commission and the employer making deductions authorised by this award or Act.

Note 1: Section 117(2) of the Act provides that an employer must not terminate an employee’s employment unless the employer has given the required minimum period of notice or “has paid” to the employee payment instead of giving them notice.

Note 2: Paragraph (b) allows the Commission to make an order delaying the requirement to make a payment under clause X. For example, the Commission could make an order delaying the requirement to pay redundancy pay if an employer makes an application under section 120 of the Act for the Commission to reduce the amount of redundancy pay an employee is entitled to under the NES.

Note 3: State and Territory long service leave laws or long service leave entitlements under s.113 of the Act, may require an employer to pay an employee for accrued long service leave on the day on which the employee’s employment terminates or shortly after.⁴

[4] The model term was subsequently inserted (in some cases with minor modifications) in the 86 modern awards which were silent in respect of the time period within which termination payments are to be made.⁵

[5] The remaining 36 modern awards contained terms which provided for the payment of wages and other amounts on the termination of employment. There is considerable variation in the manner in which these modern awards deal with termination payments. For example, the time period within which termination payments are to be made varies from the day of termination to 3 days after termination; 10 of the 36 modern awards provide for termination payments to be sent by post or registered post; 6 provide for termination payments to be ‘forwarded’ to the former employee, but do not specify the means by which such payments are to be made. The terms of these 36 modern awards also vary in the manner in which they refer to the amounts owing to an employee whose employment has been terminated, including making reference to ‘all money due’,⁶ ‘monies’,⁷ ‘all wages and other monies’⁸ and ‘all wages and holiday pay’.⁹

[6] We have varied 15 of the 36 modern awards with an existing termination payment term to insert the model term or a variant of it. In a number of these awards we have adopted a “hybrid approach” whereby the model term was inserted with appropriate amendments to reflect the current terms of the award. For example: On 17 September 2018, Ai Group filed draft determinations for the Horticulture Industry Award 2010 (Horticulture Award). The variations proposed arose out of discussions between Ai Group, the AWU, the National Farmers’ Federation (NFF) and the South Australian Wine Industry Association (SA WIA). A marked up version of the proposed variation to the Horticulture Award is set out below (notes have not been reproduced as no changes were proposed to the notes):

‘19.3 Payment on termination of employment

(a) If the employment of an employee terminates, Tthe employer must pay an employee the following amounts in accordance with this clause ~~no later than 7 days after the day on which the employee’s employment terminates~~:

(i) the employee’s wages under this award for any complete or incomplete pay period up to the end of the day of the termination; and

(ii) all other amounts that are due to the employee under this award and the NES.

(b) The amounts described at clause 19.3(a)(i) must be paid to the employee:

(i) By cash or cheque on the day of termination or forwarded to the employee by post on the next working day; or

(ii) By electronic funds transfer no later than 7 days after the day on which the employee’s employment terminates.

(c) The amounts described at clause 19.3(a)(ii) must be paid to the employee:

(i) By cash or cheque on the day of termination or forwarded to the employee by post as soon as reasonably practicable and by no later than 7 days after the day on which the employee’s employment terminates; or

(ii) By electronic funds transfer by no later than 7 days after the day on which the employee’s employment terminates.

(d) The requirement to pay wages and other amounts under ~~paragraph (a)~~ clause 19.3 is subject to further order of the Commission and the employer making deductions authorised by this award or the Act.’

[7] Draft determinations in the same terms were subsequently filed for the Wine Industry Award 2010 and the Pastoral Award 2010. In support of the draft determinations Ai Group submitted that the proposed amendments:

• broadly adopt the structure and substance of the model term determined by the Commission;

• create a new obligation to pay NES entitlements and award amounts other than wages within a specified timeframe; and

• provide specifically for circumstances in which employees are paid by cash or cheque.

[8] Similarly, in the Restaurant Industry Award 2010¸the Hospitality Industry Award 2010 and the Registered and Licensed Clubs Award 2010, the parties agreed to variations to the model term to accommodate the existing terms in these awards. The agreed variation to each of the three awards is set out below, variations to the model term are shown in red:

‘(a) Subject to clause (b), the employer must pay an employee no later than 7 days after the day on which the employee’s employment terminates:

(i) the employee’s wages under this award for any complete or incomplete pay period up to the end of the day of termination; and

(ii) all other amounts that are due to the employee under this award and the NES.

(b) Where a casual employee is paid at the end of each engagement pursuant to clause XX of this Award, and that employee’s employment is terminated, the employer must pay the employee their wages due under the award at the end of their last engagement.

(c) The requirement to pay wages and other amounts under paragraph (a) is subject to further order of the Commission and the employer making deductions authorised by this award or the Act.

Note 1: Section 117(2) of the Act provides that an employer must not terminate an employee’s employment unless the employer has given the employee the required minimum period of notice or “has paid” to the employee payment instead of giving notice.

Note 2: Paragraph (c) allows the Commission to make an order delaying the requirement to make a payment under clause X. For example, the Commission could make an order delaying the requirement to pay redundancy pay if an employer makes an application under section 120 of the Act for the Commission to reduce the amount of redundancy pay an employee is entitled to under the NES.

[9] To recap, of the 36 modern awards containing a termination payment term, 15 have been varied to insert the model term (or a variant of it) and of the remaining 21 modern awards, four have outstanding award specific issues and the other 17 modern awards are the subject of applications to vary, to insert the model term.

[10] We turn first to the four modern awards with outstanding award specific issues.

2. Outstanding Award Specific Issues

[11] The four remaining modern awards with award-specific issues are:

• Nurses Award 2010;

• Timber Industry Award 2010;

• Vehicle Manufacturing, Repair, Services and Retail Award 2010; and

• Waste Management Award 2010.

Nurses Award 2010

[12] Clause 18.3 of the Nurses Award provides:

‘When notice of termination of employment has been given by an employer, payment of all wages and other monies owing to an employee will be made to the employee.’

[13] The current term differs from the model term in three main respects:

• it only deals with cases where the employment ends at the initiative of the employer by the giving of notice, whereas the model term deals with all cases involving termination of employment (including summary dismissal and resignation);

• it provides for the payment of ‘all wages and other monies owing to the employee’ whereas the model term speaks of wages and ‘other amounts due to the employee under [the] award and the NES’; and

• it does not prescribe a period of time within which termination payments are to be made.

[14] The ANMF observes that the Nurses Award, as it currently stands, creates an enforceable entitlement to payment of all monies owing, whether by virtue of the award, the NES or another instrument and that if the model term were to be adopted, the enforceable award entitlement to payment on termination would be confined to wages payable under the award and all other amounts that are due under the award and the NES.¹⁰

[15] The ANMF proposed the following amendment to the model term, which seeks to retain the more favourable entitlements which are currently in the Nurses Award 2010 (Nurses Award):¹¹

‘X Payment on termination of employment

(a) The employer must pay an employee no later than 7 days after the day on which the employee’s employment terminates:

(i) the employee’s wages ~~under this award~~ owing for any complete or incomplete pay period up to the end of the day of termination; and

(ii) all other amounts that are due to the employee, including under this award and the NES.

(b) The requirement to pay wages and other amounts under paragraph (a) is subject to further order of the Commission and the employer making deductions authorised by this award or the Act.’

[16] The ANMF’s proposed amendments were supported by the HSU and United Voice (now the UWU).¹²

[17] In a decision issued on 26 July 2019 (the July 2019 decision)¹³ we directed that any submission opposing the variation proposed by the ANMF were to be filed by 21 August 2019.

[18] The Private Hospital Industry Employer Association (PHIEA) filed a submission in the following terms:¹⁴

‘PHIEA agrees with the ANMF that the current entitlements in the Nurses Award 2010 regarding payment on termination of employment are more favourable than the model term, and therefore would have no objection if the model term were to be amended in the Nurses Award as proposed by the ANMF and noted above in paragraph [48] of the Full Bench Decision of 26 July 2019.’

[19] Ai Group filed a submission¹⁵ opposing the variations sought and submitted that the ANMF’s amendments required the payment of over-award amounts and that employers and employees should be free to determine arrangements governing the payment for any element of an individual’s wages that exceeds entitlements set by the modern award. It submitted that there are many legitimate reasons why over-award payments may not be provided until a point in time beyond 7 days from the date of termination and that it is not necessary for a minimum safety net of terms and conditions to regulate such matters.

[20] Ai Group relied on an extract from a decision of the Plain Language Full Bench in support of its position:

‘The ANMF’s proposal ‘may have the consequence of overriding private contractual arrangements by which such payments are made, in circumstances where [the Commission has] no knowledge as to the terms of such arrangements’. The Commission decided to draft the Model Clause to apply only to entitlements arising from the safety net for this very reason. There is no cogent reason to depart from that decision in the context of the Nurses Award.’16

[21] In a decision issued on 23 August 2019 (the August 2019 decision)¹⁷ we directed parties to file submissions in reply by 25 September 2019 and advised that this matter will be determined on the papers unless an interested party requests an oral hearing. No party requested an oral hearing.

[22] The ANMF was the only party to file a submission in reply and noted that the extract quoted by Ai Group from the 13 June 2018 decision of the Plain Language Full Bench¹⁸ is not the full quote and submitted that it is clear that the Full Bench was directing its attention to the discrete issue of authorising deductions from over-award payments.¹⁹

[23] The extract relied on by Ai Group was from a decision of the Plain Language Full Bench dealing with the standard ‘Termination of Employment’ clause in modern awards, in particular clause E.1(c), which provides:

‘(c) If an employee fails to give the period of notice required under paragraph (a), the employer may deduct from any money due to the employee on termination (under this award or the NES) an amount that the employee would have been paid in respect of the period of notice not given.’

[24] In a Statement²⁰ issued on 21 August 2017 the Plain Language Full Bench raised two issues in relation to clause E.1(c), as follows:

1. whether clause E.1(c), either wholly or insofar as it deals with NES entitlements, is a type of provision which may validly be included in a modern award under the relevant provisions of the FW Act, including but not confined to ss.55, 118, 139 and 142; and

2. to the extent that the Commission has the power to include a provision of the nature of clause E.1(c) in a modern award, whether as a matter as of merit such a provision is necessary to achieve the modern awards objective in accordance with the requirement in s.138.

[25] In its decision of 13 June 2018²¹ the Plain Language Full Bench determined, among other things, the issues associated with clause E.1(c). In particular the Full Bench decided that there was a sufficient relationship between clause E.1(c) and the permitted term such that clause E.1(c) is ‘incidental to’ clause E.1(a), within the meaning of s.142(1)(a) and that a term such as clause E.1(c) is essential for the purpose of making a term such as clause E.1(a) operate in a practical way.

[26] The Full Bench then went on to consider whether clause E.1(c) is a term which the Commission is prohibited from including in a modern award. No party contested the proposition that clause E.1(c) cannot permissibly authorise deductions from NES entitlements, but the parties differed as to how this issue was to be dealt with in the standard term.

[27] The passage in the decision which is relied on by Ai Group in the present proceedings occurs in the following context:

‘[63] Ai Group does not concede that it is ‘necessary or desirable’ to amend clause E.1(c) to confine the scope of the capacity to make a deduction to ‘wages due to the employee’, but goes on to submit: ‘However, we understand the reasons why the Commission has reached this provisional view.’ In the course of oral argument Ai Group submitted that it neither opposed nor supported limiting the right to deduct to ‘wages due to the employee’.

[64] ABI acknowledges that as currently drafted clause E.1(c) could well conflict with NES obligations regarding payments on termination, in particular s.90(2) which deals with annual leave payments on termination. On that basis ABI agreed with our provisional view that the scope of the capacity to make a deduction under clause E.1(c) be limited to ‘wages due to the employee’.

[65] The ACTU goes further and submits that clause E.1(c) should be limited not only to deductions from ‘wages due to the employee’, but rather ‘wages due to the employee under this award’ (emphasis added). The effect of the additional words is to confine the scope of the power to make deductions such that it not apply to over award payments. ABI and Ai Group oppose the additional words proposed by the ACTU.

[66] Ai Group submits that the ACTU’s additional words ‘are unnecessary’ and would ‘lead to a lot of complications’. ABI submits that the ACTU’s proposal draws an ‘artificial distinction’ between award wages and over award payments and that a term in the form proposed by the ACTU would be:

‘practically burdensome for an employer who may have to undertake complex payroll calculations to work out an employee’s entitlements under the relevant award, in circumstances where they are already dealing with the inconvenience caused by the employee failing to provide the requisite degree of notice’

[67] We agree with the ACTU’s formulation and will amend clause E.1(c) such that it only authorises deductions from ‘wages due to the employee under this award’. It seems to us that authorising deductions from over award payments may have the consequence of overriding private contractual arrangements by which such payments are made, in circumstances where we have no knowledge as to the terms of such arrangements. Further, the complexity argument advanced by ABI and Ai Group is unpersuasive. As will become apparent, we propose to further limit the capacity to make deductions; to one weeks’ wages. Such a limitation will make it simple for an employer to determine the amount that may be deducted in the event that an employee does not give the requisite notice.’²² [footnotes omitted]

[28] We acknowledge that, as a general proposition, there is some force in Ai Group’s contention that the terms of a modern award should not seek to regulate over-award payments. That argument would be particularly persuasive in the context of the variation of a modern award to insert a new entitlement. But that is not the case here. As we have mentioned the ANMF are simply seeking to retain an existing award entitlement.

[29] It is clear from the context that the decision of the Plain Language Full Bench is confined to the discrete issue of whether an award term should authorise deductions from over-award payments.

[30] Ai Group also noted that in framing the model term we had relied on the extract from the Plain Language Full Bench decisions in confining the scope of the model term to payments due under the award and the NES:

‘The Commission decided to draft the Model Clause to apply only to entitlements arising from the safety net for this very reason. There is no cogent reason to depart from that decision in the context of the Nurses Award.’23

[31] In respect of this statement, the ANMF submit that we unambiguously addressed the question of changes to modern award clauses with respect to payment of wages in the July 2018 decision – determining that a case by case approach is required.

[32] We agree with the ANMF. We have made it clear that each modern award is to be reviewed in its own right; a variation must be justified on its merits and that it was not appropriate to proceed from the prima facie position that existing entitlements in respect of payments on termination should be replaced by the model term.

[33] The balance of Ai Group’s argument can be distilled in two points:

• employers and employees should be free to determine arrangements governing the payment of any element of an individual’s wage that exceeds entitlements set by the award; and

• there are ‘many legitimate reasons why over-award payments may not be provided until a point in time beyond 7 days from the date of termination’.

[34] Neither of these arguments is persuasive. As to the first, employers and employees can depart from the award term by entering into an IFA or an enterprise agreement.

[35] As to the second point, the submission put lacks particularity. We accept that in the context of a particular award there may well be ‘legitimate reasons’ why an over-award payment may not be paid until a point in time later than 7 days from the date of termination. Commission payments are a case in point, as we shall discuss shortly in the context of the Vehicle Manufacturing, Repair Services and Retail Award 2010. But Ai Group has failed to advance any reason why, in the context of the Nurses Award, an over-award payment may not be paid until a point in time later than 7 days after termination.

[36] Indeed, the scenario advanced by Ai Group seems counter-intuitive. It is much more likely that an employer will make all termination payments (award wages, NES and over-award) at the same time. To do otherwise would be administratively burdensome and may necessitate an additional payroll run.

[37] Further, no evidence, or cogent argument, has been advanced by Ai Group which points to any problems associated with the current award requirement entitlement.

[38] It is also relevant that the principal employer organisation, the Private Hospital Industry Employer Associations, raised no objection to the variation of the model term in the manner proposed by the ANMF.

[39] We agree with the ANMF’s proposed amendments to the model term and will vary the Nurses Award accordingly. The ANMF’s amendments simply seek to retain more favourable entitlements which are currently in the Nurses Award.

[40] In all the circumstances we are satisfied that the amendments proposed by the ANMF are appropriate.

[41] A draft variation determination will be published shortly, interested parties will have 7 days to comment. If no comments are received, we will proceed to issue a final determination in the same terms as the draft.

Timber Industry Award 2010

[42] On 21 September 2018, Ai Group advised that it had been involved in discussions with the CFMMEU and the AMWU and had consulted with ABI with regard to payment of wages provisions in the Timber Award. Ai Group further advised that the discussions had not resulted in an agreed position between the parties as to the ‘industry specific elements of the clause that should be retained if the model term is inserted into the award.’²⁴

[43] [42] The AMWU and CFMMEU confirmed that Ai Group’s submission provided an accurate reflection of the constructive discussions that had taken place, and that discussions would continue.²⁵

[44] The AMWU and CFMMEU also submitted that they seek the retention of the following elements of the clause if the model term is inserted into the Timber Award:

• distinct periods for payment of wages on termination dependent on whether termination takes place following notice, is a result of redundancy, or for some other reason;

• the time periods for payment of wages on termination prescribed by the existing clause;

• the requirement for payment at the usual place of employment; and

• the retention of the phrase ‘any monies legally due’ that presents in the existing clause.

[45] A conference of interested parties was held on 23 August 2019. The transcript of that conference is available here. The parties are continuing to engage in discussions in order to narrow the issues in dispute, although no submissions have been received.

[46] Parties are directed to finalise these discussions and file a joint report by Friday 26 June 2020.

Vehicle Manufacturing, Repair, Services and Retail Award 2010

[47] Submissions in relation to the insertion of the model term into the Vehicle Award have been filed by:

• Ai Group

• AMWU

• MTO

[48] The Motor Trades Organisations²⁶ (MTO) are seeking to vary the Vehicle Manufacturing, Repair, Services and Retail Award 2010 (the Vehicle Award) to insert a modified form of the model term.

[49] At a Mention hearing on 12 March 2020, the MTO and the AMWU indicated that they did not wish to make any further submissions or adduce any further evidence in support of their respective positions; nor did they seek an oral hearing. Both parties were content for the contested issues to be determined on the papers.

[50] In the Report of the Mention, the President noted that there were other organisations with an interest in the Vehicle Award, including Ai Group and the Shop, Distributive and Allied Employees Association (SDA) and issued the following directions:

1. If any other interested party wishes to make a submission in respect to the proposed insertion of the model payment on termination into the Vehicle Award, they should file a submission by no later than 4pm on Friday 27 March 2020.

2. If a party wishes to reply to any submissions filed pursuant to Direction 1, they should file that reply submission by no later than 4pm on Friday 7 April 2020.

3. Any party seeking an oral hearing in respect of the Vehicle Award payment of wages matter must file a request by no later than 4pm on Friday 7 April 2020. Absent such a request, the issues in dispute will be determined on the papers.

4. The Ai Group, the AMWU and the Motor Trades Organisations are asked to review the summary of their submissions at Attachment A and advise the Commission if they have any additions or corrections to make to the summary by no later than 4pm on Friday 27 March 2020.

[51] The following submissions were filed in response to those directions:

• Ai Group – 27 March 2020 Submission – in relation to the Vehicle Award

• AMWU – 24 March 2020 - Correspondence – nothing further to add - in relation to the Vehicle Award

• MTO – 26 March 2020 - Correspondence – nothing further to add, rely on previous submission - in relation to the Vehicle Award

[52] The submissions of the respective parties are summarised at Attachment A to the Report of the Mention.²⁷ The parties have confirmed the accuracy of that summary and hence we need not repeat that summary here.

[53] Suffice to note that the MTO submitted that the above amendments have been discussed with the AMWU and the SDA and that there is broad agreement on these changes. Ai Group supports the variations proposed by the MTO. No submission was received from the SDA.

[54] The MTO proposes the following amendments to the model term:²⁸

‘X. Payment on termination of employment

(a) The employer must pay an employee no later than 7 days after the day on which the employee’s employment terminates:

(i) the employee’s wages under this award for any complete or incomplete pay period up to the end of the day of termination; and

(ii) all other amounts that are due to the employee under this award and the NES but excluding commission payments under clause 44.9 of the award where such payments may become payable at a later date in relation to a person employed to perform vehicle sales related duties.

(iii) The commission payment referred to in clause 44.9 (vi) is to be made payable within 14 days of the delivery of the vehicle

(b) The requirement to pay wages and other amounts under paragraph (a) is subject to further order of the Commission and the employer making deductions authorised by this award or the Act.

(c) An employer may deduct from monies due to an employee under paragraph (a) such amount as is authorised in writing by the employee for a lawful purpose specified in the authority.

[55] The MTO’s proposed amendment to clause X(a)(ii) of the model term excludes commission payments from amounts to be paid to an employee on termination, in relation to employees engaged in vehicle sales duties. The MTO submits that commission payments may not crystallise for two or three months after the employee’s employment has terminated as commissions are paid on the delivery of the vehicle to a customer.²⁹ The MTO also notes that in some cases vehicles have to be ordered as the dealership may not have the stock readily available and a vehicle may need to be imported from overseas, which can create considerable delays in the delivery of the vehicle and consequently the sale of the vehicle may not be finalised at the time of termination.³⁰

[56] The MTO also submits that there is some ambiguity in clause 44.9(vi) of the Vehicle Award as to when commission payments are to be paid to an ex-employee when the delivery of the vehicle occurs within three months of the termination of their employment.³¹ MTO’s proposed new clause X(a)(iii) is an attempt to clarify the position by stipulating a 14-day period of payment that is consistent with the period of payment in existing provisions of the Vehicle Award in clause 44.9(vii).³² The MTO submitted that there have been no issues raised by any party in the past in relation to the 14-day period of payment and consequently there is no reason to amend it.³³

[57] The MTO also sought to retain the current clause 24.4(b) of the Vehicle Award which appears as clause X(c) of their amended model clause.³⁴ The MTO acknowledged that clause X(b) of the model clause allows employers to make deductions from monies due to an employee on termination for such amounts authorised by this award or the Fair Work Act 2009 (Cth) (the Act).³⁵

[58] The proposed clause X(c) allows for the deduction of any residual monies owed by an employee to an employer at the point of the employee’s termination of employment. The MTO submits that motor trade businesses frequently grant requests for personal loans from their employees, book automotive parts and expenses on monthly accounts and even purchase second hand vehicles or other goods, usually at trade or internal prices.³⁶ Employers are said to accede to such requests where they have the capacity to carry short term debt and that employees save on interest otherwise incurred. These arrangements are said to build mutual respect, staff retention and job satisfaction.³⁷ The MTO note that this practice is relatively common and unique to the industry. On this basis it is submitted that the proposed new clause X(c) should be approved as part of the model term in this award.³⁸

[59] The MTO also submits that the proposed subclause is consistent with s. 324(1)(a) of the Act on the basis that the deduction is authorised in writing by the employee and is principally for the employee’s benefit.³⁹

[60] In its submission of 25 September 2019, the AMWU argues that it would be appropriate to make a number of amendments to the model term to keep the provision in line with the current conditions contained in clause 24.4 of the Vehicle Award (which are said to be consistent with common practice within the automotive industry).⁴⁰ The AMWU sought to rely on the proposed amendments to the model clause as set out in its submission dated 7 September 2019, as follows:

‘X. Payment on termination of employment

(a) The employer must pay an employee no later than 2 business days after the day on which the employee’s employment terminates:

(i) the employee’s wages under this award for any complete or incomplete pay period up to the end of the day of the termination; and

(ii) all other amounts that are due to the employee under this award and the NES.

(b) Where a person principally employed to perform vehicle sales related duties is entitled to commission payments at a later date than the date of termination, those payments will be payable within 7 days of becoming applicable.

(c) Where an employee abandons his or her employment or the employee’s employment is terminated without notice for serious and wilful misconduct the employer may pay the employee the wages and other amounts due set out in paragraph (a) within 7 business days of the termination.

(d) The requirement to pay wages and other amounts under paragraph (a) is subject to further order of the Commission and the employer making deductions authorised by this award or the Act.

(e) An employer may deduct from monies due to an employee such amount as is authorised in writing by the employee for a lawful purpose specified in the authority.’

[61] The AWMU’s proposed amendment to clause X(a) requires that the employer pay the employee within 2 business days of termination, rather than ‘within 7 days after the day on which the employee’s employment terminates’ as is required under the model term.⁴¹ The AMWU submitted that this amendment is consistent with the current payment of wages on termination clause within the Vehicle Award⁴² as well as reflecting current practice. The AMWU noted that it was not aware of any evidence presented to the contrary and that ‘without a cogent and evidence-based reason for departing from the well-functioning status quo arrangements under the Vehicle Award’, the AMWU submits that these employees should not suffer a detriment.⁴³

[62] Additionally, the AMWU submits that the current practice of payment within 2 business days has caused no issues for employers, and is suitably qualified by the exceptions set out in clause X(c) which grants employers up to 7 days in circumstances where they may not be prepared to pay employees within the 2 business day time frame.⁴⁴ Further, the current conditions under the Vehicle Award are more advantageous than the model term, particularly for employees whose employment is terminated and who may face the adverse consequences of unemployment. These employees currently have the benefit of being paid expeditiously.⁴⁵

[63] The AMWU submitted that it broadly supports the MTO’s position to amend the model clause to address the the issue of commission payments for persons engaged in vehicle sales related duties, which may become payable after termination under clause 44.9(vi) of the Vehicle Award. However, the AMWU submitted that any clause that deals with an exception for commission payments for a vehicle salesperson whose employment is terminated prior to the delivery of a vehicle, should still specify a timeframe within which such a commission must be paid (that is, from the date of delivery of the vehicle, where it is delivered within three months of the termination). The AMWU’s position is that the timeframe should reflect the 7-day timeframe provided in the model term.⁴⁶

[64] The AMWU notes that clause 44.9(vi) of the Vehicle Award provides that commissions are payable within 14 days of termination for vehicles already delivered at the time of termination but submits that the 14-day timeframe is inappropriate in the context of a commission payment that becomes due within 3-months after termination because the vehicle for which a commission is payable may not be delivered for a period of up to 3-months after termination, well beyond the period of 14-days after termination that is contemplated by clause 44.9(vi). On this basis, the AMWU submit that commission payments, once they become due after the date of termination, should be payable within a 7-day period.⁴⁷

[65] The AMWU’s proposed new clause X(c) provides an exception to the requirement to pay wages within 2 days of termination in circumstances where an employee abandons their employment or the employee’s employment is terminated without notice for serious and wilful misconduct. In such cases, the employer has up to 7 days to pay the employee their entitlements under proposed X(c).⁴⁸

[66] There are two points of difference between the AMWU and the MTO.

[67] First, the AMWU seeks termination payments be made no later than 2 business days after the day on which the employees’ employment terminates, subject to certain exceptions:

• persons principally employed to perform vehicle sales related duties entitled to commission payments will have those payments made within 7 days of becoming applicable; and

• where an employee abandons their employment or is summarily dismissed, payment is to be made within 7 days.

[68] The MTO seeks that termination payments be made within 7 days, except for commission payments.

[69] We note that clause 24.4 of the Vehicle Award provides as follows:

‘Payment of wages on termination

(a) Upon termination of the employment, the employer will pay wages due to an employee:

(i) on the day of such termination;

(ii) by forwarding such wages to the employee on the next working day; or

(iii) at the employer’s place of business on a stated day not later than seven days after such termination. If the employer requires the employee to visit such place of business to collect wages then, in addition to the amount of moneys due, the employer will pay the employee an additional four hours’ ordinary pay.

Except that where an employee abandons his or her employment or the employee’s employment is terminated without notice for serious and wilful misconduct the employer will pay the wages due to the employee within two business days (not including a Saturday, Sunday or public holiday) of the termination.

(b) An employer may deduct from monies due to an employee such amount as is authorised in writing by the employee for a lawful purpose specified in the authority.’

[70] Subclauses 24.4(a)(i), (ii) and (iii) are expressed as alternatives and are subject to the exceptions dealing with the abandonment of employment and summary dismissal (in such cases payment is to be made within 2 business days).

[71] We do not propose to adopt the AMWU’s proposal. Prescribing different time periods within which termination payments are to be made, depending on the form of the termination, is apt to confuse and may lead to disputation. Nor is such a proposal consistent with the ‘need to ensure a simple, easy to understand… modern award system’ (s.134(1)(g)). We will adopt the 7-day standard proposed by the MTO and consistent with the model term.

[72] Clause 44.9 of the Vehicle Award provides:

‘44.9 Payment of commission

(a) Payment of commission, if any, to a vehicle salesperson may be negotiated between the salesperson and their employer subject to the following provisions:

(i) the basis on which commission will be paid will be committed to writing and a copy given to a vehicle salesperson within 21 days of them commencing employment and such basis will not be altered except by mutual consent or by a week’s notice in writing from the employer to a salesperson;

(ii) an employer will comply with clause 44.9(a)(i) within 21 days of such date;

(iii) an employer will within 21 days after the last day of each month furnish a vehicle salesperson with all relevant particulars of vehicles delivered and commission earned during the preceding month and thereupon such commission or any balance thereof will be payable;

(iv) commission will be deemed to accrue upon the delivery of a vehicle to the customer;

(v) where a sale is effected as a result of the efforts of two or more vehicle salespersons, the commission payable in respect of such sale will be divided between them in such proportion as they may mutually agree;

(vi) where the employment of a vehicle salesperson terminates prior to the delivery of a vehicle for which they would otherwise be entitled to commission, provided the vehicle is delivered within three months of the termination they will be paid two thirds of the commission they would otherwise have received;

(vii) where the employment of a vehicle salesperson terminates, the commission to which the vehicle salesperson is entitled in respect of vehicles which have already been delivered will be paid to them within 14 days of such termination; and

(viii) any sum payable under an agreement made pursuant to this subclause will be deemed to be payable under this award.’

[73] The MTO proposal is as follows:

‘(iii) The Commission payment referred to in clause 44.9(vi) is to be made payable within 14 days of the delivery of the vehicle.’

[74] The AMWU proposal is as follows:

‘(b) Where a person principally employed to perform vehicle sales related duties is entitled to commission payments at a later date than the date of termination, those payments will be payable within 7 days of becoming applicable.’

[75] We prefer the 7-day period proposed by the AMWU.

[76] Although clause 44.9(vii) provides for commission payments in respect of vehicles that have already been delivered within 14 days of the termination, that time period only applies where the vehicle has already been delivered. Further, a 14-day period is inconsistent with the model term. In our view a 7-day period is appropriate in all circumstances.

[77] There is one final matter. The amendments proposed by both the MTO and the AMWU authorise deductions from termination payments. The MTO proposal is in the following terms:

‘An employer may deduct from monies due to an employee under paragraph (a) such amount as is authorised in writing by the employee for a lawful purpose specified in the authority.’

[78] The proposed term is similar to current clause 24.4(b). We note that it is common ground that a feature of the industry covered by the award is that employers loan employees sums of money from time to time. The proposed term is intended to facilitate the recovery of monies loaned to an employee.

[79] Section 136(2)(a) provides that a modern award must not include terms that contravene Subdivision D of Division 3 of Part 2-3 (ss.150-1655A). Section 151 is relevant for present purposes.

[80] Section 151 provides:

‘Terms about payments and deductions for benefit of employer etc.

A modern award must not include a term that has no effect because of:

(a) subsection 326(1) (which deals with unreasonable deductions for the benefit of an employer); or

(b) subsection 326(3) (which deals with unreasonable requirements to spend or pay an amount); or

(c) subsection 326(4) (which deals with deductions or payments in relation to employees under 18).’

[81] The Explanatory Memorandum provides a guide as to the purpose of s.151:

‘587. Clause 151 prohibits a modern award from including a term that is of no effect because:

• the term includes unreasonable payments and deductions for the benefit of an employer (subclause 326(1)); or

• the term relates to unreasonable requirements in relation to how employees spend their wages or other amounts (subclause 326(3)).

588. Although such terms are of no effect, this clause ensures that such terms are not included in awards, as their inclusion (even though inoperative) could be confusing and create uncertainty.’

[82] Paragraphs 151(a) and (c), which refer to various subsections in s.326, are particularly relevant.

[83] Section 326 is in Division 2 – Payment of Wages in Pt 2-9 of the Act (ss.323-327). Section 323 provides, relevantly for present purposes:

‘323 Method and frequency of payment

(1) An employer must pay an employee amounts payable to the employee in relation to the performance of work:

(a) in full (except as provided by section 324); and

(b) in money by one, or a combination, of the methods referred to in subsection (2); and

(c) at least monthly.

Note 1: This subsection is a civil remedy provision (see Part 4-1).

Note 2: Amounts referred to in this subsection include the following if they become payable during a relevant period:

(a) incentive-based payments and bonuses;

(b) loadings;

(c) monetary allowances;

(d) overtime or penalty rates;

(e) leave payments.’

[84] Section 324 deals with ‘permitted deductions’, the relevant part states:

‘(1) An employer may deduct an amount from an amount payable to an employee in accordance with subsection 323(1) if:

…

(a) the deduction is authorised by or under a modern award or an FWC order;

…

Note 2: Certain terms of modern awards, enterprise agreements and contracts of employment relating to deductions have no effect (see section 326). A deduction made in accordance with such a term will not be authorised for the purposes of this section.’

[85] Section 326 provides that certain terms have no effect:

‘Unreasonable deductions for benefit of employer

(1) A term of a modern award, an enterprise agreement or a contract of employment has no effect to the extent that the term permits, or has the effect of permitting, an employer to deduct an amount from an amount that is payable to an employee in relation to the performance of work, if the deduction is:

(a) directly or indirectly for the benefit of the employer or a party related to the employer; and

(b) unreasonable in the circumstances.

(2) The regulations may prescribe circumstances in which a deduction referred to in subsection (1) is or is not reasonable.

Unreasonable requirements to spend or pay an amount

(3) A term of a modern award, an enterprise agreement or a contract of employment has no effect to the extent that the term:

(a) permits, or has the effect of permitting, an employer to make a requirement that would contravene subsection 325(1); or

(b) directly or indirectly requires an employee to spend or pay an amount, if the requirement would contravene subsection 325(1) if it had been made by an employer.

Deductions or payments in relation to employees under 18

(4) A term of a modern award, an enterprise agreement or a contract of employment has no effect to the extent that the term:

(a) permits, or has the effect of permitting, an employer to deduct an amount from an amount that is payable to an employee in relation to the performance of work; or

(b) requires, or has the effect of requiring, an employee to make a payment to an employer or another person;

if the employee is under 18 and the deduction or payment is not agreed to in writing by a parent or guardian of the employee.’

[86] As set out earlier, s.151 relevantly provides that a modern award must not include a term which has no effect because of ss. 326(1) and (4).

[87] It seems to us that the terms proposed by the MTO and AMWU are terms that permit ‘an employer to deduct an amount from an amount that is payable to an employee in relation to the performance of work’ and such a deduction is ‘directly or indirectly for the benefit of the employer’.

[88] The central question is whether such a deduction is ‘unreasonable in the circumstances’ within the meaning of s.326(1)(c)(ii). This expression was considered by Bromberg J in Australian Education Union v State of Victoria (Department of Education and Early Childhood Development) 49 (AEU).

[89] In the course of his judgment in AEU, Bromberg J made a number of general observations about the proper construction of s.326. In particular, His Honour concluded that whether a deduction is ‘unreasonable in the circumstances’ is a question of fact and degree dependent upon the relevant surrounding circumstances and then proceeded to identify a number of considerations that are likely to be relevant (though not exhaustive). These considerations appear at [177] – [182] of the judgment and those which are relevant in the present context may be summarised as follows:

1. Consideration must commence from the premise that the ultimate purpose of the scheme is to protect employees from practices that have the effect of denying them the benefit of the remuneration they have earned and are thus entitled to fully enjoy.

2. The extent to which the employer or its related party has benefited will likely be relevant. It will be relevant to assess whether the employee has been taken advantage of in some way, with the result that part of the benefit of his or her remuneration has been lost to the employer. A benefit to the employer is not, of itself, a reason for finding that a deduction was unreasonable. There is nothing wrong in an employer gaining a benefit, but, if that benefit is gained at the expense of the employee, that would tend to indicate unreasonableness. It is the possibility of an unreasonable transfer of the benefit from its intended recipient—the employee—to the employer, which is fastened upon by s.326(1)(c).

3. The phrase ‘in the circumstances’ is of wide import and a broad approach is to be taken to the extent of the circumstances which are considered.

[90] To address these issues we propose to add the following sentence to clause X(c) in the MTO draft:

‘Any such deduction must not be unreasonable in the circumstances.’

[91] We note that this formulation is consistent with the standard “Termination of Employment” term in modern awards.

[92] The amendment we propose to make is in the following terms:

‘X. Payment on termination of employment

(a) The employer must pay an employee no later than 7 days after the day on which the employee’s employment terminates:

(i) the employee’s wages under this award for any complete or incomplete pay period up to the end of the day of termination; and

(ii) all other amounts that are due to the employee under this award and the NES

(c) The requirement to pay wages and other amounts under clause X (a) is subject to further order of the Commission and the employer making deductions authorised by this award or the Act.

(d) An employer may deduct from monies due to an employee under clause X (a) such amount as is authorised in writing by the employee for a lawful purpose specified in the authority. Any such deduction must not be unreasonable in the circumstances.

Note 2: Clause X(c) allows the Commission to make an order delaying the requirement to make a payment under clause X. For example, the Commission could make an order delaying the requirement to pay redundancy pay if an employer makes an application under section 120 of the Act for the Commission to reduce the amount of redundancy pay an employee is entitled to under the NES.

[93] A draft variation determination will be published shortly. We note that the Full Bench in AM2020/17 has issued a final variation determination varying the Vehicle Manufacturing, Repair, Services and Retail Award 2010. The award will become the Vehicle Repair, Services and Retail Award 2020 on 29 May 2020 and the draft determination we issue will be in relation to the new 2020 award. Interested parties will have 7 days to comment. If no comments are received, we will proceed to issue a final determination in the same terms as the draft.

Waste Management Award 2010

[94] Clause 24.3 in the Waste Management Award 2010 provides that:

‘Despite anything contained in this clause, the employer must pay to an employee who leaves or is dismissed all money due to the employee as soon as possible.’

[95] We note that the 2010 Award has been replaced by the 2020 Award, effective 30 April 2020. Clause 17.3 is the comparable provision in the 2020 Award and it is in substantially same terms as clause 24.3 of the 2010 Award.

[96] The words ‘as soon as possible’ do not provide a time period for payment on termination and the parties with an interest in this award were asked to engage in discussions to see if an agreed position could be reached.

[97] In its submission of 7 September 2018, Ai Group noted that it had engaged in discussions with various unions, primarily the TWU, but reported that these discussions had not resulted in an agreed position.⁵⁰ The AMWU, AWU and TWU all oppose the insertion of the model clause.⁵¹

[98] In the July 2019 decision the Full Bench directed all interested parties to file submissions in support of their respective positions by 21 August 2019. Any submissions filed were to address the meaning of the expression ‘as soon as possible’ in the Waste Management Award and why the insertion of the model term is opposed (or supported).

[99] Ai Group filed a submission in which it contended that the Waste Management Award should be amended to include the model term and to clarify that clauses 24.1 and 24.2 operate subject to clause 24.3.⁵² Clauses 24.1 and 24.2 of the 2010 Award are now clauses 17.1 and 17.2 of the 2020 Award which provide as follows:

‘17.1 All earnings, including overtime, must be paid in the employer’s time on a day to be fixed by the employer. Once fixed, the day must not be altered more than once in 3 months.

17.2 All earnings, including overtime, must be paid within 3 days of the end of the week in which they accrue.’

[100] In the August 2019 decision, the Full Bench directed parties wishing to file submissions in reply to do so by 25 September 2019 and advised that this matter will be determined on the papers unless an interested party requests an oral hearing.⁵³ No party requested an oral hearing.

[101] In its reply submission, ABI supported the inclusion of the model term into the Waste Management Award.⁵⁴ ABI submitted that the current clause in the Waste Management Award is impractical and vague in its operation, rendering it inconsistent with the modern awards objective. ABI also submitted that there is significant uncertainty as to what might constitute a period which is ‘as soon as possible’ and what factors are to be considered regarding whether a payment could possibly have been made earlier.⁵⁵

[102] We agree with ABI that the current provision is vague and creates uncertainty about the period for payment on termination. We have decided that the award should be varied to include a modified version of the model term.

[103] We propose retaining the current expression ‘all money due’. The varied clause 17.3 will read:

(a) The employer must pay an employee no later than 7 days after the day on which the employee’s employment terminates:

(i) The employee’s wages under this award for any complete or incomplete pay period up to the end of the day of termination: and

(ii) All other amounts that are due to the employee under the award and the NES.

(b) The requirement to pay wages and other amounts under clause 17.3 (a) is subject to further order of the Commission and the employer making deductions authorised by this award or Act.

Note 2: Clause 17.3(b) allows the Commission to make an order delaying the re requirement to make a payment under clause 17.3. For example, the Commission could make an order delaying the requirement to pay redundancy pay if an employer makes an application under section 120 of the Act for the Commission to reduce the amount of redundancy pay an employee is entitled to under the NES.

[104] We will also clarify that clauses 17.1 and 17.2 operate subject to clause 17.3 We will publish a draft variation determination shortly. Interested parties will have 7 days to comment. If no comments are received, we will proceed to issue a final determination in the same terms as the draft.

3. The Variation Applications – General

3.1 Procedural matters

[105] Applications have been made by Ai Group, ABI and NatRoad to insert the model term in the following 17 modern awards:

• Aged Care Award 2010

• Black Coal Mining Industry Award 2010

• Building and Construction General On-site Award 2010

• Business Equipment Award 2010

• Dry Cleaning and Laundry Industry Award 2020

• Electrical, Electronic and Communications Contracting Award 2010

• Food, Beverage and Tobacco Manufacturing Award 2010

• Graphic Arts, Printing and Publishing Award 2010

• Manufacturing and Associated Industries and Occupations Award 2010

• Meat Industry Award 2020

• Mobile Crane Hiring Award 2010

• Passenger Vehicle Transportation Award 2020

• Plumbing and Fire Sprinklers Award 2010

• Road Transport and Distribution Award 2020

• Road Transport (Long Distance Operations) Award 2020

• Seafood Processing Award 2020

• Supported Employment Services Award 2010

[106] In the July 2019 decision, we noted that parties had not yet had the opportunity to make submissions and adduce evidence in relation to these applications and accordingly, the applicants were invited to file submissions and any evidence in support of the applications by 4pm on 21 August 2019. In accordance with these directions, submissions were received from:

• ABI⁵⁷

• Ai Group⁵⁸

• HIA⁵⁹

• NatRoad⁶⁰

[107] In the August 2019 decision,⁶¹ interested parties were invited to file submissions and evidence in reply by 4pm on 25 September 2019. The following submissions were received:

• AMWU⁶²

• CEPU⁶³

• CFMMEU (C & G)⁶⁴

• CFMMEU (Manufacturing)⁶⁵

• CFMMEU (M & E)⁶⁶

• Master Builders Australia⁶⁷

• Master Plumbers Australia⁶⁸

[108] In the August 2019 decision, the Full Bench said that a Mention would be listed in due course.

[109] A Mention held on Thursday 12 March 2020 was attended by:

• ABI

• Ai Group

• AMWU

• AWU

• CEPU

• CFMMEU (C & G)

• CFMMEU (Manufacturing)

• CFMMEU (M & E)

• HIA

• MBA

• MTA SA

• NATROAD

• VACC

[110] A copy of the transcript of the Mention is here. A Report of the Mention was published on 13 March 2020.

[111] All parties confirmed that the list of submissions set out above was accurate and most parties indicated that they did not wish to make any further submissions or adduce any further evidence.

[112] The AWU, on behalf of the AMIEU, submitted that the application to vary the Meat Industry Award 2020 was opposed. The AMIEU subsequently confirmed its opposition in correspondence, stating that:

‘the AMIEU remains opposed to the model clause being inserted into the Meat Industry Award 2010 as that award already properly deals with those issues, as submitted by Mr S Crawford on behalf of the Union at today’s hearing.’

[113] HIA raised that it has a claim in relation to the frequency of payment of wages in the Building and Construction Award 2010 (Building On-site Award) which remains outstanding.

[114] In the Report of the Mention, HIA was directed to confer with the other parties with an interest in the Building On-Site Award with a view to reaching an agreed position on the way forward. The HIA subsequently filed draft directions and the Commission issued the following directions on 22 April 2020:

‘1. All parties supporting HIAs application shall file comprehensive written submissions and any witness statements or documentary material on which the party seeks to rely on by 5.00pm Wednesday 13 May 2020.

2. Any interested party which wishes to adduce evidence and/or make submissions in reply to any of the evidence and submissions filed in accordance with direction (1) shall file such evidence and/or submissions in the Commission by 5.00pm Wednesday 17 June 2020.

3. All submissions and evidence shall be sent to [email protected]

4. A mention will be scheduled for the end of June 2020.

5. Liberty to apply.

Note: All parties must file new submissions in accordance with the above directions (parties may refer to previous submissions and rely on them, but absent a submission in accordance with these directions we will not be having regarding to any previous submissions).’

[115] While no party at the Mention sought an oral hearing, a number wished to reserve their position in relation to whether they wished to cross-examine any of the witnesses in respect of their evidence.

[116] The Report of the Mention directed that any party seeking an oral hearing in respect of these applications to vary file a request by no later than 4pm on Friday 7 April 2020. Absent such a request, all applications to vary would be dealt with on the papers. No party requested an oral hearing and nor was there any request to cross-examine any of the witnesses.

[117] Since the publication of the Report of the Mention on 12 March 2020, the following submissions have been filed:

• ABI – 19 April 2020 – Submission – in relation to the Aged Care Award, Business Equipment Award, Supported Employment Services Award, Dry Cleaning and Laundry Award, Plumbing and Fire Sprinklers Award, Meat Industry Award, Passenger Vehicle Transportation Award, Road Transport and Distribution Award, Road Transport (Long Distance Operations) Award, Food and Beverage Award, Graphic Arts Award, Manufacturing Award and the Waste Management Award.

• AMIEU – 12 March 2020 - Submission – opposing insertion of model term - in relation to the Meat Award

• Ai Group – 19 April 2020 – Submission – in relation to the Aged Care Award, Black Coal Award, Building Onsite Award, Business Equipment Award, Electrical Contracting Award, Food and Beverage Award, Manufacturing Award, Meat Award, Mobile Crane Award, Plumbing Award, Road Transport (Long Distance Operations) Award and the Seafood Processing Award

• Ai Group – 27 March 2020 Submission – in relation to the Vehicle Award

• AMWU – 24 March 2020 - Correspondence – nothing further to add - in relation to the Vehicle Award

• CFMMEU – C & G – 23 March 2020 - Submission - in relation to the Building Onsite Award

• Health Services Union – 17 April 2020 – Submission – in relation to the Aged Care Award and the Supported Employment Services Award

• Housing Industry Association – 20 March 2020 - Submission - in relation to the Building and Construction Award

• Motor Trades Organisations – 10 March 2020 - Submission in relation to the Vehicle Award

3.2 General submissions

[118] This section summarises the general submissions in respect of the variation determinations and makes some observations and findings in respect of those submissions.

3.2.1 ABI and Ai Group submissions

[119] ABI seeks to insert the model term into the following 12 modern awards:

• Aged Care Award;

• Business Equipment Award 2010;

• Dry Cleaning and Laundry Industry Award 2020;

• Food, Beverage and Tobacco manufacturing Award 2010;

• Graphic Arts, Printing and Publishing Award 2010;

• Manufacturing and Associated Industries and Occupations Award 2010;

• Meat Industry Award 2020;

• Plumbing and Fire Sprinklers Award 2010;

• Passenger Vehicle Transportation Award 2010;

• Road Transport and Distribution Award 2020;

• Road Transport (Long Distance Operations) Award 2020; and

• Supported Employment Services Award 2010.

[120] ABI contends that the existing terms which require termination payments to be processed immediately; on the day of termination; at the end of the formal notice period; the next working day or ‘forthwith, are impractical and inconsistent with the modern awards objective’. Five reasons are advanced in support of this contention.

1. The growth in EFT transactions has changed the way employees receive termination payments.

ABI contends that there has been ‘an overall increase in the reliance on EFT transactions as a means of processing wage payments by employers [and] over the past two decades, there has been a marked increase in EFT payroll payments and a marked decrease in the usage of cheques by employers as a means of paying employee wages.⁶⁹

‘Unlike when employees were once paid in cash or by cheque and needed to physically pick up their wages and would have to wait around to receive their payments, electronic funds transfer mean that employees can receive their entitlements with minimal effort (other than having a bank account) and there is no detriment to employees receiving their payments when the correct payment can be made as soon as practicable, with 7 days’⁷⁰

2. The provisions apply to all terminations, including those which arise summarily. In some cases, such as summary dismissal, ‘payroll departments are provided with minimal timeframes within which to process a termination payment, award provisions requiring termination payments to be made on the day of termination may be impossible to comply with’⁷¹. ABI submits that if an award provision is impossible to comply with it is inconsistent with the establishment of a ‘fair and relevant safety net’, as required by s 134(1).

3. Employers can have difficulty promptly obtaining wage information necessary to process payments immediately;

‘When employers process termination payments, payroll departments obviously require up-to-date information regarding hours worked by the employee prior to the termination.

Payroll also requires accurate leave accrual data. Processing payments without this type of critical information would likely expose an employer to problematic underpayment and overpayment scenarios. Overpayments might be particularly

Accurate time keeping records relating to hours of work are not necessarily readily at hand for payroll officers. Rather, payroll departments often require employee hours to be entered into a timekeeping system and approved by the relevant supervisors before payments can be processed.

The difficulty in immediately obtaining accurate timekeeping records reinforces the notion that the existing award provisions regarding termination payments are inconsistent with the establishment of a ‘fair and relevant minimum safety net’’.⁷²

4. Employers sometimes need time to make funds available for payments and it should not be assumed that employers have substantial cash flow to make termination payment on notice:

‘Businesses of all sizes may need to transfer funds from other accounts in order to process a termination payment. This is particularly the case where a long serving employee is due substantial termination entitlements such as long service leave.

The cash-flow problem associated with making payments immediately and without prior notice reinforces the notion that the existing award provisions regarding termination payments are inconsistent with the establishment of a “fair and relevant minimum safety net”, for the reasons previously outlined at 5.7 above’⁷³

5. Processing termination payments manually in order to comply with award provisions takes time and imposes an administrative cost on employers:

‘This is because the processing of a termination payment outside of an ordinary pay cycle requires a manual transaction to take place. A specific officer would need to collate the relevant timesheet records for the employee in question and then process a specific transaction for the relevant employee. This takes time which is additional to the time spent on automatic pay runs that proceed through an ordinary pay cycle.

The additional time associated with manually processing termination payments, in order to ensure award compliance, results in an inefficient work process - which is inconsistent with section 134(1)(d) of the FW Act (which seeks to promote the efficient and productive performance of work).’⁷⁴

[121] Ai Group has filed an application to vary the following 14 modern awards:⁷⁵

• Aged Care Award 2010;

• Black Coal Mining Industry Award 2010;

• Building and Construction General On-site Award 2010;

• Business Equipment Award 2020;

• Electrical, Electronic and Communications Contracting Award 2010;

• Food, Beverage and Tobacco Manufacturing Award 2010;

• Graphic Arts, Printing and Publishing Award 2010;

• Manufacturing and Associated Industries and Occupations Award 2010;

• Meat Industry Award 2020;

• Mobile Crane Hiring Award 2010;

• Plumbing and Fire Sprinklers Award 2010;

• Road Transport and Distribution Award 2020;

• Road Transport (Long Distance Operations) Award 2020; and

• Seafood Processing Award 2020.

[122] Ai Group notes that in the awards it seeks to vary:

‘there is significant diversity in the way in which these provisions regulate the payment of wages on termination. This includes the awards treatment of the amounts that fall due under the relevant provisions, the time period within which payment is to be made and the method by which such payment must be made’.76

[123] Ai Group advances eleven broad lines of argument in support of its contention that the insertion of the model term in the awards which are the subject of its application is necessary to ensure that those awards achieve the modern awards objective, as set out below:

1. The current provisions are unfair to employers in that:

• they mandate the payment of ‘potentially significant sums of money … within a very limited time period’;

• they impose additional costs on employees due to the need to administer an additional pay run;

• employers are required to make the payment with little or no notice where an employee resigns without providing notice; In such circumstances the employer is ‘not able to plan or pre-arrange for the payment that must be made’.

2. The current provisions may be unfair to employees in circumstances where they do not regulate the payment of amounts other than wages.

3. The current provisions do not strike a fair balance between the interests of employers and employees.

4. The current provisions do not constitute a ‘relevant’ safety net (within the meaning of s.134(1)), in that ‘they are antiquated and fail to take into account modern payroll systems and the prevalence of payment by EFT’.

5. If left unvaried the awards which are the subject of Ai Group’s claim would be ‘out of step with the 86 awards that have been varied to include the Model Clause.

6. Many of the awards which are the subject of Ai Group’s application contemplate that termination payments may be sent to the employee by post. Australia Post terms and conditions prohibit sending cash in excess of $200 by post. Consequently, posting termination payments in cash will not constitute a viable alternative.

7. The insertion of the model term will not detract from the maintenance of relative living standards and the needs of the low paid.

8. The variations proposed would ‘not undermine’ the need to encourage enterprise bargaining.

9. The variations proposed are ‘consistent with the need to promote flexible modern work practices and are likely to have a positive impact on business’.

10. The variations proposed are consistent with the need to ensure a simple easy to understand modern award system.

11. The variations proposed are ‘unlikely to have an adverse impact on employment growth, inflation or the sustainability, performance and competitiveness of the national economy.

3.2.2 AMWU and CFMMEU (C & G) submissions

[124] The AMWU and the CFMMEU (C & G) both made comprehensive submissions directed at a number of modern awards.

(i) The AMWU submissions

[125] The AMWU’s submission concerns the following awards:

• Manufacturing and Associated Industries and Occupations Award 2010

• Graphic Arts and Printing Award 2010

• Building Construction General On-site Award 2010

• Food Beverage and Tobacco Award 2010

[126] The AMWU submits that the applications should be dismissed as:

‘The variations are not necessary for the relevant awards to achieve the modern awards objectives. There has been no evidence in support of the basis of the claim, no merits-based case, leave alone any probative evidence to demonstrate why the proposed variation is necessary in order to achieve the modern award objective.

The proposed variations fail to provide industry specific circumstances that warrant the change, no evidence about difficulties with the existing award provisions, or the practical improvements or otherwise of the variations sought.’⁷⁷

[127] The AMWU contends that the timeframes set out in the awards for the payment of termination monies “have been complied to without difficulty and will continue to do so”.⁷⁸ The AMWU submits that this is so due to “the evolution in payroll practices currently used by employers in payroll administration and in compliance with the Australian Taxation Office (ATO) for reporting employee payment”.⁷⁹

[128] At [17]-[23] of its submissions the AMWU describes “Single Touch Payroll” (STP) which automatically provides payroll and superannuation data to the ATO when the payroll is processed. STP has been a regulatory requirement since 1 July 2019.

[129] The AMWU also refers to the impact of the proposed variations on employees including potential delays in accessing Newstart (see [27]-[30]). We note that we addressed a similar submission in our decision of 1 December 2016⁸⁰ and concluded as follows:

‘We think an appropriate balance between the various consideration is for the model term to provide that all unpaid wages and all other amounts due to an employee under the modern award and the NES are to be paid ‘no later than 7 days after the employee’s last day of employment.’81

[130] The AMWU filed a witness statement by Mr Warren Soos, AMWU’s National Operations Coordinator. In his current role Mr Soos oversees the payroll activities for the AMWU’s 240 employees. Mr Soos notes that employee details and their entitlements are now generally held on dedicated payroll packages. Mr Soos also states:

‘It has been my experience that manual calculations through an established template for termination payments take about 20 minutes to do for a single employee and payments can generally be made within 24 hours. The payment can be made outside of the general pay quite cycle easily. It involves no more administrative work than that would be required for paying an invoice on the same day.

Preceda provides the data for the entitlements due, and the bank transfer is made via NAB Connect. Any payments that are made outside of the usual payment cycle do incur a minimal charge, but so do most transactions in commercial banking.

Payment between financial institutions used to take between 2-3 days. Now a payroll payment made from the AMWU bank account will arrive in the employee’s bank account in the same day. This is what happens with my own pay from the AMWU…

It has been my experience that the rise of electronic banking, and payroll software has dramatically decreased the administrative tasks a payroll officer must undertake when calculating employee entitlements, whether end of payment or otherwise.’⁸²

[131] Mr Soos was not required for cross examination.

[132] In response to the evidence of Mr Soos, Ai Group submits:

‘The AMWU has filed a witness statement from its own payroll officer. The statement goes no further than to describe the payroll practices of the union. It says nothing of the experience of employers covered by the relevant awards, using different payroll systems, different banking systems or of the application of the extant provisions to a range of different types of terminations.

The evidence is of limited if any probative value and should be afforded very little weight.’⁸³

[133] We reject Ai Group’s submission that the evidence is of little probative value and should be afforded little weight. Moreover, Ai Group did not lead any evidence about employer experience and differences it describes in its submission or about how the matters described might impact on the timeliness of payments made to employees on termination of employment.

[134] As to Ai Group’s contention that the evidence says ‘nothing of the experience of employers covered by the relevant awards’, that may be so, but it is the best evidence available to us in circumstances where Ai Group has chosen to lead no evidence. We accept Mr Soos’ evidence and note that it supports the submissions advanced by the AMWU.

[135] We note the AMWU’s submission regarding the impact of a change in the timeframe for the payment of termination payments. 84 We have dealt with this argument previously and took it into account in our formulation of the model term.

(ii) The CFMMEU (C & G) submissions

[136] The CFMMEU (C & G) submission is directed at the following awards:

[372] A draft variation determination will be published shortly and interested parties will have 7 days to comment. If no comments are received, we will proceed to issue a final determination in the same terms as the draft.

4.13 Supported Employment Services Award 2010

[373] The current payment of wages clause in this award (clause 18) provides that wages may be paid in cash, by cheque or by electronic funds transfer at the employer’s discretion. Clauses 18.4 and 18.5 deal with termination payments, as follows:

‘18.4 Where an employee is discharged from employment the employee will be paid immediately for all wages, overtime, pro rata payment for annual leave, annual leave loading or any remuneration due. Payment may be made by cash, cheque or electronic funds transfer at the discretion of the employer.

18.5 Where an employee lawfully leaves their employment they will be paid all monies due at the time of leaving. Payment may be made by cash, cheque or electronic funds transfer at the discretion of the employer.’

[374] ABI’s application seeks to delete clause 18.4 and insert the model term. It is unclear why ABI has not sought to delete clause 18.5. ABI relies on its general submissions referred to earlier and does not advance any award specific submissions.

[375] The HSU opposes ABI’s application and submits:

‘It is uncontroversial that this award covers vulnerable employees, particularly many employees with intellectual disabilities. Additionally, most of these employees are low paid, as they are paid a supported wage in accordance with a wage assessment tool, at rates below the standard minimum wage. The current term is appropriate in these unique circumstances.’ 154

[376] There is considerable force in the point advanced by the HSU.

[377] Clause 4.1 of the award provides that it covers employers throughout Australia who operate ‘supported employment services’ and their employees working in the classifications listed in Schedule B of the award. The expression ‘supported employment services’ is defined in clause 3.1 to mean “a service as defined in section 7 of the Disability Services Act 1986 (Cth)”. Section 7 of the Disability Services Act 1986 contains the following definition:

‘supported employment services’ means services to support the paid employment of persons with disabilities, being persons:

(a) for whom competitive employment at or above the relevant award wage is unlikely; and

(b) who, because of their disabilities, need substantial ongoing support to obtain or retain paid employment.

[378] Supported employment services were in past times referred to as ‘sheltered workshops’ or “business services” but their contemporary appellation is ‘Australian Disability Enterprises’ (ADEs). ADEs employ non-disabled persons who are covered by the SES Award, but consistent with their purpose the large majority of employees of ADEs are disabled persons. 155

[379] In recognition of the vulnerable nature of the employees covered by this award a Full Bench recently varied the award to insert clause 9A as follows:

‘9A. Rights at Work for Supported Employees

9A.1 When dealing with employment matters affecting supported employees the employer shall take all reasonable steps to provide such employees with the information they require to exercise their employment rights.

9A.2 Such reasonable steps will include but are not limited to the following.

• Providing information to supported employees of their right to be a member of the union and be represented in the workplace by a union representative.

• Providing information in relation to seeking information and or assistance from the Fair Work Ombudsman.

• Providing information to a supported employee about their right to have their nominee, guardian, carer, parent or other family member, advocate or union assist them in making decisions about employment matters.

9A.3 In addition to those matters listed in clause 9A.2 the employer shall take reasonable steps to provide the opportunity to the supported employee to have their nominee, guardian, carer, parent or other family member, advocate or union involved in, or consulted or act as the employee’s representative in employment matters that affect or may affect the supported employee’s interests.

9A.4 Such matters shall include but not be limited to:

• consultation about significant workplace change under clause 8;

• consultation about changes to rosters or hours of work under clause 8A;

• any dispute under clause 9 or other grievance;

• wage assessments under clause 14.4(a) and Schedule D;

• any disciplinary matter; and

• performance appraisals.’

[380] In deciding to vary the award to insert clause 9A the Full Bench said:

‘[384] We are wholly persuaded that the SES Award should be varied to include a clause concerning “Rights at Work for Supported Employees”, as proposed by Our Voice. The evidence makes clear that disabled employees working in ADEs are a vulnerable group, and are likely to require information, representation, consultation and assistance concerning workplace decisions which affect their interests to an extent that is far greater than for non-disabled employees. It is equally clear that it is necessary for such employees’ parents, family members, carers, guardians, nominees, advocates or union, as relevant, to be involved. No interested party opposed the provision, and we consider that it is necessary to include it in the SES Award in order to meet the modern awards objective.’ 156

[381] We too acknowledge that a majority of employees covered by the award are vulnerable employees, many with intellectual disabilities. Further, the vast majority of these employees are ‘low paid’ within the meaning of s 134(1)((a). For these reasons an application which would have the effect of reducing existing entitlements requires scrutiny.

[382] As mentioned earlier, contested applications in which an existing term such as clauses 18.4 and 18.5 is sought to be replaced by the model term should be supported by probative evidence demonstrating that the existing term is impractical and operates unfairly to the employers and employees covered by the award. No such evidence was adduced ABI in support of its application. We are not persuaded that it is necessary that the award be varied in the manner proposed by ABI to ensure that the award achieves the modern awards objective. That said, we have earlier adopted the following general proposition:

‘Existing terms that require termination payments to be made ‘immediately’ or on the day of termination, with no alternative means available are impracticable and invite scrutiny.’

[383] The parties are directed to confer on the form of an alternate draft variation. The Commission is available to facilitate those discussions on request. In the event that the parties (either jointly or individually) wish to pursue a variation they are to file a s.157 application.

4.14 The Transport Awards

[384] ABI, Ai Group and NatRoad seek to vary the Road Transport and Distribution Award 2010 and the Road Transport (Long Distance Operations) Award 2010 (collectively, the ‘Transport Awards’). Each of these awards has been varied and is now a new 2020 award.

[385] Each of the Transport Awards permits payment by electronic funds transfer. The current termination payment terms are slightly different in each award.

[386] The current relevant term in the Road Transport and Distribution Award 2020 is as follows:

‘18.4 Notwithstanding anything contained in this clause, the employer must pay to an employee who leaves or is dismissed all moneys due to the employee forthwith.’

[387] The current relevant term in the Road Transport (Long Distance Operations) Award 2020 is as follows:

‘17.3 Notwithstanding anything contained in this clause, the employer must pay to an employee who leaves or is dismissed all money due to the employee immediately.’

[388] We have already set out the general submissions advanced by ABI and Ai Group.

[389] In support of its application NatRoad submits that:

‘18. The operation of the current provisions is unfair to employers. It mandates the payment of a potentially significant sum and requires an employer to make arrangements to meet this financial obligation within a very limited period of time contemporaneously with the termination of an employee’s employment. The additional costs incurred, and regulatory burden borne by an employer due to the need to administer an additional pay run pursuant to the current clauses is also unfair. This much is ascertainable from the evidence of Allan Thornley filed with these submissions.

19. The termination of an employment relationship may also be brought about by an employee’s decision to resign. It is not fair that an employer is required to make the relevant payment with little or no notice. Where an employee terminates the employment relationship without any prior notice or indication of his or her intention to do so, an employer is presently put to the task of making arrangements to make final payments to that employee within a very limited period of time, irrespective of the method of payment utilised. Self-evidently, this is not a fair or reasonable outcome for employers given that they are not able to plan or pre-arrange for the payment that must be made.

20. The complexity involved in calculating a terminating employee’s full entitlements correctly is not a task to be done in haste. Typically, an SME does not have a dedicated payroll person with many undertaking this function as but one of many items to be undertaken to keep the business running. Many small employers that are affected by the Transport Awards are also drivers during business hours. Accordingly, the variation meets the modern award objective set out in s134(1)(d).

28. The rationale underpinning the relevant award terms as presently crafted can be understood in their historical context, whereby a significant proportion of employees were paid by cash. If such an employee were to be paid outstanding money due in the next pay cycle, the employee would need to attend the workplace to collect this payment, which admittedly puts the employee to some inconvenience.

29. With the adoption of payment by EFT, that rationale becomes far less relevant. Payment can be made by an employer via EFT on termination in the same way that wages would ordinarily be paid. EFT allows employees to access their funds at banks, other financial institutions, ATMs and online at any time. Once payment is made, the funds could be accessed by the employee within a very short period of time, if not immediately.

30. The variation proposed will remedy the archaic and inappropriate effect of the existing provision. These Applications provide a timely opportunity to modernise award terms to create fairness. The model term should be adopted as it better reflects contemporary payroll practices and the decreasing relevance of cash payments made to an employee whilst they are physically at the workplace: see the evidence of Allan Thornley.’ 157

[390] In support of its application NatRoad filed a witness statement of Mr Allan Thornley the managing director of Shawes Darwin Transport Pty Limited. Mr Thornley was not required for cross examination. We accept his evidence and note that it supports the submission advanced by NatRoad.

[391] In correspondence dated 7 September 2018 the TWU stated that it ‘has an interest’ in this award but has filed nothing since.

[392] ABI seeks to vary the transport awards by deleting clauses 18.4 and 17.3 (outlined above) and inserting the model term. As we observed earlier, in the case of uncontested applications we will more readily accept any uncontested assertions made in support of the application. We turn first to the s.134 considerations.

[393] We are satisfied that NatRoad has established a merit case in support of its application and we will vary the awards in the manner proposed. The requirement to pay termination payments ‘forthwith’ is vague and uncertain; and a requirement to pay ‘immediately’ is both ambiguous and impractical.

[394] A threshold of two-thirds of median full-time wages provides ‘a suitable and operational benchmark for identifying who is low paid,’ 158 within the meaning of s.134(1)(a).

[395] The most recent data for median earnings is for August 2019 from the ABS Characteristics of Employment (CoE) survey. Data on median earnings are also available from the Survey of Employee Earnings and Hours (EEH) for May 2018. On the basis of the data from the CoE survey for August 2019, two-thirds of median weekly earnings for full-time employees is $920.00. Data on median weekly full-time earnings are also available from the EEH survey for May 2018, and two-thirds of median earnings is equal to $973.33.

[396] Using the two-thirds of median full-time wages as the benchmark, the vast majority of award reliant employees covered by these awards are ‘low paid’ within the meaning of s.134(1)(a).

[397] We accept that the variations proposed may result in employees receiving termination payments later than they would under the current award; 2 working days as opposed to 7 days. This is a consideration that tells against the variation however the delay is not substantial

[398] The variations proposed would not discourage or undermine collective bargaining; but s 134(1)(b) speaks of the need to ‘encourage collective bargaining’. The proposed variations may be said to decrease the incentive for employers to bargain; but it is also likely that employee and employer decision making about whether or not to bargain is influenced by a complex mix of factors. We are not persuaded that the proposed variations would ‘encourage collective bargaining’. It follows that this consideration weighs against the variation proposed.

[399] The variations proposed are ‘consistent with the need to promote flexible modern work practices and are likely to have a positive impact on business’. We also accept that the variations proposed are consistent with the need to ensure a simple easy to understand modern award system (s.134(1)(d), (f) and (g)).

[400] We accept the submissions advanced by ABI, Ai Group and NatRoad in respect of the variation of these awards and will grant the variations sought. We are satisfied that the variations are necessary to achieve the modern awards objective. In reaching that conclusion we have had regard to the considerations in s.134(1)(a)-(h). The considerations in s.134(1)(c), (da), (e) and (h) are not relevant in the present context.

[401] Draft variation determinations will be issued shortly and interested parties will have 7 days to comment. If no comments are received we will proceed to issue a final determination in the same terms as the draft.

5. Summary and Next Steps

[402] Our decision in respect of each of the awards we have dealt with and the next steps to be taken, are summarised below.

Aged Care Award 2010

[403] The parties are directed to confer on the form of a draft variation having regard to views expressed at [204] – [208]. A conference will be convened in due course.

Black Coal Mining Industry Award 2010

[404] We have rejected Ai Group’s application to vary the Black Coal Mining Industry Award and are satisfied that the variation proposed by the CFMMEU (M&E) is necessary to ensure that the award achieves the modern awards objective and will vary the award in the terms proposed. A draft variation determination will be issued shortly and interested parties will have 7 days to comment. If no comments are received, we will proceed to issue a final determination in the same terms as the draft.

Business Equipment Award 2010 and Electrical, Electronic and Communications Contracting Award 2010

[405] The current termination payment terms in these awards are deficient. A conference of interested parties will be convened shortly to discuss this issue.

Building and Construction General On-site Award 2010

[406] We have rejected Ai Group’s application to vary the Building On-Site Award. Nor do we propose to make the variation proposed by the CFMMEU (C&G).

[407] We have expressed the view that where the scope of a current termination of payment term is extended in the manner proposed by the CFMMEU (C&G), the 7-day period in the model term should apply to the areas to which the clause is extended.

[408] We have noted that these issues require further examination. A conference of interested parties will be convened shortly.

Dry Cleaning and Laundry Industry Award 2020

[409] We have rejected ABI’s application to vary the Dry Cleaning and Laundry Industry Award. This issue can be revisited if any party wishes to file a s.157 application which advances an alternate proposal.

Graphic Arts, Printing and Publishing Award 2010

[410] We have expressed the provisional view that the current clause be varied and that an appropriate balance between the competing considerations would be as follows:

1. The following amounts must be paid by the end of the next business day after the day on which the employee’s employment terminates:

• wages for any complete or incomplete pay period up to the end of the day of termination; and

• all other monies due to the employee under the award.

2. The following amounts must be paid no later than 7 days after the day on which the employee’s employment terminates:

• all amounts due to the employee under the NES.

[411] The parties have been directed to confer on the form of a draft variation having regard to views expressed above. A conference will be convened in due course.

Manufacturing Awards (the FBT Award and the Manufacturing Award)

[412] We have expressed the provisional view that the current clauses be varied and that an appropriate balance between the competing considerations would be as follows:

1. The following amounts must be paid by the end of the next business day after the day on which the employee’s employment terminates:

• wages for any complete or incomplete pay period up to the end of the day of termination; and

• all other monies due to the employee under the award.

2. The following amounts must be paid no later than 7 days after the day on which the employee’s employment terminates:

• all amounts due to the employee under the NES.

[413] The parties have been directed to confer on the form of a draft variation having regard to views expressed above. A conference will be convened in due course.

Meat Industry Award 2010

[414] We have accepted the submissions advanced by ABI and Ai Group in respect of the variation of this award and will grant the variation sought. A draft variation determination will be published shortly and interested parties will have 7 days to comment. If no comments are received we will proceed to issue a final determination in the same terms as the draft.

Mobile Crane Hiring Award 2010

[415] We have rejected Ai Group’s application to vary this award.

[416] We are satisfied that the variation proposed by the CFMMEU (C & G) is necessary to ensure that this award achieves the modern awards objective and will vary the award in the terms it proposes. A draft variation determination will be issued shortly and interested parties will have 7 days to comment. If no comments are received, we will proceed to issue a final determination in the same terms as the draft.

Nurses Award 2010

[417] We are satisfied that the amendments proposed by the ANMF to the model term are appropriate. A draft variation determination will be published shortly and interested parties will have 7 days to comment. If no comments are received, we will proceed to issue a final determination in the same terms as the draft.

Passenger Vehicle Transportation Award 2020

[418] We have accepted the submissions advanced by ABI in respect of the variation of this award and will grant the variation sought. A draft variation determination will be published shortly and interested parties will have 7 days to comment. If no comments are received, we will proceed to issue a final determination in the same terms as the draft.

Plumbing and Fire Sprinklers Award 2010

[419] We accept the submissions advanced by ABI and Ai Group in respect of the variation of this award and will grant the variation sought (subject to the amendment of Note 2).

[420] A draft variation determination will be published shortly and interested parties will have 7 days to comment. If no comments are received, we will proceed to issue a final determination in the same terms as the draft.

Seafood Processing Award 2020

[421] We accept the submissions advanced by Ai Group in respect of the variation of this award and will grant the variation sought. A draft variation determination will be published shortly and interested parties will have 7 days to comment. If no comments are received, we will proceed to issue a final determination in the same terms as the draft.

Supported Employment Services Award 2010

[422] We have rejected ABI’s application to vary this award. The parties have been directed to confer on the form of an alternate draft variation. The Commission is available to facilitate those discussions on request. In the event that the parties (either jointly or separately) wish to pursue a variation they are to file a s.157 application.

Timber Industry Award 2010

[423] The parties are continuing to engage in discussions in order to narrow the issues in dispute although no submissions have been received. The parties are directed to finalise these discussions and file a joint report by 4pm on Friday 26 June 2020.

Transport Awards (Road Transport and Distribution Award 2020 and Transport (Long Distance Operations) Award 2020)

[424] We accept the submissions advanced by ABI, Ai Group and NatRoad in respect of the variation of these awards and will grant the variations sought. Draft variation determinations will be issued shortly and interested parties will have 7 days to comment. If no comments are received, we will proceed to issue a final determination in the same terms as the draft.

Vehicle Manufacturing, Repair, Services and Retail Award 2010

[425] We propose to vary the award in the terms set out at [91]. A draft variation determination will be published shortly and interested parties will have 7 days to comment. If no comments are received, we will proceed to issue a final determination in the same terms as the draft.

Waste Management Award 2010

[426] We propose to vary the award in the terms set out at [102] and [103]. A draft variation determination will be published shortly and interested parties will have 7 days to comment. If no comments are received, we will proceed to issue a final determination in the same terms as the draft.

6. Conclusion

[427] This decision concludes the termination payment aspect of the payment of wages common issue. Save for the conferences to be convened in respect of the outstanding issues in the Building On-Site Award; Business Equipment Award; Electrical, Electronic and Communications Contracting Award; Graphic Arts Award; the Manufacturing Awards and the Timber Industry Award.

[428] A Statement will be published in June 2020 dealing with the remaining matter in the payment of wages common issue – the timing of the payment of wages.

PRESIDENT

Printed by authority of the Commonwealth Government Printer

Hearing

2020.
12 March.
Sydney

Appearances

Mr S Maxwell for the CFMMEU, Construction and General Division.
Ms B Wiles for the CFMMEU Manufacturing Division.
Ms Sarlos for the from CFMMEU (M & E)
Mr W Chesterman for VACC the Motor Trades Associations of New South Wales, Queensland and Western Australia.
Ms Y Abousleiman for the CEPU.
Ms A Devasia for the AMWU with Ms L. Lettau
Ms R Bhatt for the Australian Industry Group with Mr L. Izzo
Mr M Sheehan for the Motor Trade Association of SA
Ms R Sostarko for Master Builders Australia
Mr D Johns for the National Road Transport Association (t/as NAVRO)
Ms L Regan, Housing Industry Association
Mr S Crawford, Australian Workers’ Union

1 [2016] FWCFB 8463

2 Ibid at [86]

3 [2018] FWCFB 3566.

4 Ibid at[119].

5 See [2018] FCFB 3566, [2018] FWCFB 4735

6 See the Waste Management Award 2010 at clause 24.3

7 See the Plumbing and Fire Sprinklers Award 2010 at clause 27.4

8 See the Nurses Award 2010 at clause 18.

9 See the Horse and Greyhound Training Award 2010 at clause 18.1

10 Ibid at page 1.

11 ANMF submission, 7 September 2018 at pages 3-4.

12 Ibid.

13 [2019] FWCFB 5146

14 PHIEA submission, 16 August 2019 at p.3.

15 Ai Group submission, 21 August 2019 at para 68.

16 Ai Group Submission 21 August 2019 at para. 69.

17 [2019] FWFB 5868 at 34.

18 [2018] FWCFB 3009.

19 ANMF submission, 25 September 2019 at p.1

20 [2017] FWCFB 4355

21 [2018] FWCFB 3009

22 [2018] FWCFB 3009 at [63] – [67]

23 Ai Group submission, 21 August 2019 at [69].

24 Ai Group submission, 21 September 2018 at page 1.

25 AMWU (with CFMMEU) submission, 21 September 2018.

26 Victorian Automobile Chamber of Commerce; Motor Traders Association of NSW; Motor Traders Association of SA and Motor Traders Association of WA

27 PR717456.

28 MTO submission, 24 September 2019 at para [14].

29 Ibid at para 15(i)(c).

30 Ibid at para 15(i)(c).

31 Ibid at para 15(ii)(a).

32 Ibid at para 15(ii)(b).

33 Ibid at para 15(ii)(c).

34 Ibid at para 15(iii)(a).

35 Ibid at para 15(iii)(b).

36 Ibid at para 15(iii)(d).

37 Ibid at para 15(iii)(e).

38 Ibid at para 15(iii)(f).

39 Ibid at para 15(iii)(g).

40 AMWU submission, 25 September 2019 at para 9.

41 Ibid at para 11.

42 See clause 24.4(a) of the Vehicle Manufacturing, Repair, Services and Retail Award 2010

43 Ibid at para 14.

44 Ibid at para 13.

45 Ibid at para 14.

46 Ibid at paras 21-22.

47 Ibid at paras 23-24.

48 Ibid at para 25.

49 [2015] FCA 1196.

50 Ai Group submission 7 September 2018, para 13.

51 AMWU submission 7 September 2018, paras 2-3; AWU submission 10 September 2018; TWU submission 7 September 2018.

52 Ai Group submission, 21 August 2019 at [70] – [80].

53 [2019] FWFB 5868 at 34.

54 ABI submission, 26 August 2019.

55 Ibid at para 2.2.

56 Ibid.

57 ABI submission, 21 August 2019

58 Ai Group submission, 21 August 2019

59 HIA submission, 21 August 2019

60 NatRoad submission and witness statement, 21 August 2019

61 [2019] FWCFB 5868

62 AMWU submission, 25 September 2019

63 CEPU submission, 25 September 2019

64 CFMMEU –Construction submission, 25 September 2019

65 CFMMEU–Manufacturing submission, 30 September 2019

66 CFMMEU–Mining submission, 25 September 2019

67 MBA submission, 25 September 2019

68 MPA submission, 25 September 2019

69 ABI submissions 21 August 2019 at 6.4

70 Ibid at 6.5

71 Ibid at 6.9

72 Ibid at 6.11 – 6.14

73 Ibid at 6.16 – 6.17

74 Ibid at 6.19 – 6.20

75 Ai Group submission, 20 September 2018.

76 Ai Group Submission 21 August 2019 at [6]

77 AMWU Submissions 26 September 2019 at [11]-[12].

78 Ibid at [16].

79 Ibid at [16].

80 [2016] FWCFB 8463 at [94]-[99].

81 Ibid at [99].

82 Warren Soos Statement [8]-[10] and [15]

83 Ibid at [23]-[24].

84 Ai Group submission 23 September 2019 at [26] – [30]

85 CFMMEU (C & G) Submissions 25 September 2019 at [16].

89 See

97 CFMMEU C & G submission, 25 September 2019 at para 41.

98 ABI Reply Submissions 19 April 2020 at 3.1.

99 ABI Submissions 20 September 2016 at 5.3.

100 Ibid at 5.4.

101

102

103

104

105

106

107

108 ABI Submissions 19 April 2020 at [3.5]-[3.6]

109 ABI Submissions 19 April 2020 at 4.3-4.4.

110 Ai Group Submissions 19 April at [11]."

111 Ibid at [16].

112 Ibid at [17]-[20].

113 [2016] FWCFB 7455

114 [2018] FWCFB 3566

115 [2014] FWCFB 1788 at [60]

116 Codelfa Construction Pty Ltd v State Rail Authority of NSW (1982) 149 CLR 337

117 Birrell v Australian National Airlines Commission [1984] 9 IR 101

118 See generally GJ McCarry (1986), ‘Termination of Employment Contracts by Notice’, 60 ALJ 78, pp 78 – 86

119 [2016] FWCFB 8463 at [90]

120 CFMMEU (M&E) submission 25 September 2019 at paras. 52-54

121 Mark Watson Statement 25 September 2019 at paras. 5 and 16-18

122 Ai Group submission 19 April 2020 at para. 58

123 Ai Group submission 19 April 2020 at para. 53

124 CFMEU (Mining and Energy Division) submission 20 September 2016

125 Ai Group submission 19 April 2020 at para. 59

126 HIA submission at para 2.1.2.

127 HIA submission at paras 2.2.2 – 2.2.6 and 2.2.8.

128 CFMMEU (C&G) Reply submission 25 September 2019 at para. 50

129 [2016] FWCFB 3177 at paras [60] and [61].

130 See [27]-[29] Ai Group’s submission.

131 See clause 25.1 of the Business Equipment Award 2010 & clause 22.2 of the Electrical, Electronic and Communications Contracting Award 2010.

132 Ai Group’s position is that cash exceeding $200 in value cannot be sent by post. See [27] of Ai Groups submissions.

133 See ABI & NSWBC Draft Determination for the Dry Cleaning and Laundry Industry Award 2010 – Annexure D to ABI&NSWBC Application (filed 21 September 2018)

134 CFMMEU – Manufacturing – Reply submission 30 September 2019 at paras. 36-37

135 CFMMEU – Manufacturing – Reply submission 30 September 2019 at paras. 43-47.

136 Re Australian Business Industrial[2012] FWC 8726; upheld on appeal, AMWU v Australian Business Industrial[2013] FWCFB 580

137 [2012] FWA 8726

138 [2012] FWA 8726 at [18]

139 [2012] FWA 8726 at [27]

140 [2013] FWCFB 580

141 [2014] FWCFB 1788 at [19]–[24] (the Preliminary Jurisdictional Issues Decision)

142 AMWU submission 25 September 2019 at [33]

143 Ai Group submission 19 April 2020 at [25] – [26]

144 [2019] FWCFB 5868

145 [2020] FWCFB 1205

146 Ai Group submission 21 August 2019 at [56].

147 [2017] FWCFB 1001 at [166]

148 Ai Group Reply submission, 19 April at 2020 [25] and [59].

149 [2019] FWCFB 5868

150 [2020] FWCFB 1205

151 [2017] FWCFB 1001 at [166]

152 [2017] FWCFB 1001 at [166]

153 [2017] FWCFB 1001 at [166]

154 HSU submission, 17 April 2020, paragraph [6]

155 [2019] FWCFB 8179 at [9] – [10]

156 Ibid, at [384]

157 NatRoad submission, 21 August 2019, at [18] – [20] and [28] – [30].

158 [2017] FWCFB 1001 at [166]