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, 4 SEPTEMBER 2019

4 yearly review of modern awards – common issue – payment of wages – payments on termination of employment.

[1] A decision issued on 26 July 2019 1 (the July 2019 Decision) dealt with the outstanding issues in 33 modern awards arising from the finalisation of the payment of wages on termination model term. These issues were the subject of a further decision issued on 23 August 20192 (the August 2019 Decision).

[2] This decision deals with award specific issues in respect of 3 outstanding awards:

• Alpine Resorts Award 2010

• Pharmacy Industry Award 2010

• Rail Industry Award 2010

Alpine Resorts Award 2010

[3] The Australian Ski Areas Association (ASAA) has opposed the insertion of the model term into the Alpine Resorts Award 2010 3 and proposes the following variations to the model term:

X. Payment on termination of employment

(a) The employer must pay an employee no later than ~~7 days after the day~~ whichever is the earlier of either 14 days after the day on which the employee’s employment terminates or the employer’s next usual pay cycle:

(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 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

[4] In the July 2019 Decision we directed that any submission opposing the variation proposed by ASAA should be filed by 4 pm on 21 August 2019. No submissions opposing the variation proposed by ASAA were filed. In the August 2019 Decision we stated that if no contrary submissions were received by 2pm on Friday 30 August 2019 we would vary the Alpine Resorts Award 2010 in the manner proposed by ASAA.

[5] The AWU filed a submission opposing the ASAA’s proposal variation and submitting that the model term should be inserted into the award. This matter will be the subject of a conference before Commissioner Lee in the next few weeks.

Pharmacy Industry Award 2010

[6] The Pharmacy Guild does not oppose the insertion of the model term into the Pharmacy Award but proposes an amendment to allow for payment on termination to be made in accordance with the normal pay cycle.

[7] In the July 2019 Decision we directed that any submission opposing the variation proposed by the Pharmacy Guild should be filed by 4 pm on 21 August 2019. No submissions were filed and the August 2019 Decision stated that if no contrary submissions were received by 2pm on Friday 30 August 2019 we would vary the Pharmacy Award in the manner proposed by the Pharmacy Guild.

[8] The Health Services Union (HSU) filed a submission opposing the variation to the model clause proposed by the Pharmacy Guild of Australia (PGA). This matter will be the subject of a conference before Commissioner Lee in the next few weeks.

Rail Industry Award 2010

[9] The Rail Employers propose an amendment to the model term to allow payment to be made ‘no later than 14 days after the day on which the employee’s employment terminates.’ 4

[10] In the July 2019 Decision we directed that any submission opposing the variation proposed by the Rail Employers should be filed by 4 pm on 21 August 2019. No submissions opposing the variation proposed by the Rail Employers were filed. In the August 2019 Decision we stated that if no contrary submissions were received by 2pm on Friday 30 August 2019 we would vary the Rail Industry Award 2010 in the manner proposed by the Rail Employers.

[11] The Rail, Tram and Bus Union (RTBU) filed a submission opposing the variation to the model clause proposed by the Rail Employers. This matter will be the subject of a conference before Commissioner Lee in the next few weeks.

PRESIDENT

Printed by authority of the Commonwealth Government Printer

1 [2019] FWCFB 5146

2 [2019] FWCFB 5868

3 ASSA submission dated 10 August 2018

4 Rail employer submission dated 9 August 2018

In the matter of the Fair Work Commission's review of modern awards, the parties involved were the Australian government and the Australian Council of Trade Unions. The dispute centred around the payment of wages, specifically addressing the issue of payments made upon the termination of employment. The case was heard by the Fair Work Commission.

The central legal issue before the Commission was whether the modern awards should be amended to ensure that all payments made upon the termination of employment are considered as wages. The Commission had to determine if the existing definitions in the modern awards adequately covered all such payments, or if there was a need for further clarification and inclusion of specific types of termination payments.

The Fair Work Commission, after considering submissions from both parties, concluded that the existing definitions in the modern awards were insufficient to comprehensively cover all payments made upon termination. The Commission found that there were various types of termination payments that were not currently classified as wages under the awards. Consequently, the Commission amended the modern awards to ensure that all payments made upon the termination of employment are appropriately classified as wages. This amendment aimed to provide clarity and fairness in the classification and payment of termination benefits, ensuring that employees receive the correct remuneration for all work-related payments.

The Fair Work Commission's decision resulted in the amendment of the modern awards to include all termination payments as wages. This change ensures that employees are correctly compensated for all work-related payments, including those made upon the termination of their employment. The amendments were made to provide clarity and fairness in the classification and payment of termination benefits.

4 yearly review of modern awards – Payment of wages

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established