4 yearly review of modern awards – Payment of wages

[2018] FWC 6034

[2018] FWC 3064

FAIR WORK COMMISSION

STATEMENT

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 MELBOURNE, 1 OCTOBER 2018

4 yearly review of modern awards – payment of wages.

[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 (the Review). A common issue is a proposal for significant variation or change across the award system, such as an application or proposal seeking to change a common or core provision in most, if not all, modern awards. 1

[2] In a Decision issued on 17 July 2018, the Full Bench finalised the payment of wages on termination of employment model term 2 and expressed the provisional view that 86 modern awards which are currently silent in respect of the time period within which termination payments are to be made should be varied to include the model term. In a Decision on 15 August 2018 (the August 2018 decision), the Full Bench confirmed that provisional view in relation to 83 of the 86 awards3. Three of the 86 modern awards had been the subject of award specific submissions:

•  the Australian Ski Areas Association opposes the insertion of the model term in its current form in the Alpine Resorts Award 2010;

•  the Pharmacy Guild of Australia submits that consideration should be given to altering the model clause for the Pharmacy Industry Award 2010;

•  the Rail Employers submit that the period for payment be increased from 7 days to 14 days in the Rail Industry Award 2010

[3] In the August 2018 decision the Full Bench decided not to vary the Alpine Resorts Award 2010, the Pharmacy Industry Award 2010 or the Rail Industry Award 2010 at that time.

[4] As to the remaining 36 modern awards, a series of short conferences were held on 1 and 2 August 2018 in order to ascertain the view of interested parties in relation to the following issues:

(i) whether there is any opposition to inserting the model term into the particular awards which is the subject of the conference; and

(ii) if varying awards to insert the model term is opposed, then what award-specific amendments are proposed by the parties. 

[5] Arising out of the conferences the insertion of the model term was not opposed in the following awards:

•  Asphalt Industry Award 2010;

•  Horse and Greyhound Training Award 2010;

•  Nursery Award 2010;

•  Pharmaceutical Industry Award 2010;

•  Professional Diving Industry (Industrial) Award 2010;

•  Professional Diving Industry (Recreational) Award 2010;

•  Silviculture Award 2010; and

•  Storage Services and Wholesale Award 2010.

[6] In relation to the Market and Social Research Award 2010, Ai Group proposed that the first sentence in clause 19.5 of that award be retained and that the balance of the clause be replaced by the model term. No party opposed the course proposed.

[7] Further, the AWU and Ai Group agreed upon an amended version of the model term to be inserted into the Aluminium Industry Award 2010. 

[8] Draft variation determinations were issued to insert the model term in the 83 modern awards referred to at [2] and the 8 awards set out [5] above. In relation to the Market and Social Research Award 2010 the variation retained the first sentence of clause 19.5 as a separate entitlement and replaced the balance of the clause with the model term. 4

[9] A Statement issued on 21 August 2018 5 (the 21 August 2018 Statement) confirmed that a draft determination would also be published for the Children’s Services Award 2010.

[10] To date, draft variation determinations have been issued in relation to 92 modern awards. A Statement and draft determinations 6 were issued on 24 August 2018. 7 Interested parties were invited to make submissions about the draft determinations by 7 September 2018.

[11] In the 21 August 2018 Statement, award specific directions were given in relation to 8 modern awards:

•  Aluminium Industry Award 2010;

•  Horticulture Award 2010;

•  Wine Industry Award 2010;

•  Pastoral Award 2010;

•  Timber Industry Award 2010;

•  Children’s Services Award 2010;

•  Restaurant Industry Award;

•  Waste Management Award 2010.

[12] As a result of the steps taken above the following 22 modern awards remain outstanding:

•  Aged Care Award 2010;

•  Alpine Resorts 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 2010;

•  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 2010;

•  Mobile Crane Hiring Award 2010;

•  Nurses Award 2010;

•  Passenger Vehicle Transportation Award 2010;

•  Pharmacy Industry Award 2010;

•  Plumbing and Fire Sprinklers Award 2010;

•  Rail Industry Award 2010;

•  Road Transport and Distribution Award 2010;

•  Road Transport (Long Distance Operations) Award 2010;

•  Seafood Processing Award 2010;

•  Supported Employment Services Award 2010;

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

[13] In the 21 August Statement, the following directions were issued in relation to the 22 awards above:

•  Interested parties are directed to confirm whether they oppose the variation of these awards to include the model term by 4pm on 7 September 2018.

•  Any party wishing to press for the variation of one of the awards to insert the model term must file an application by 4 pm on Friday 21 September 2018.

•  Interested parties are encouraged to engage in discussions and report back to the Commission as part of this submission process.

[14] Submissions and applications to vary were received in response to these directions. Additionally, submissions were also received in relation to the following awards:

•  Joinery and Building Trades Award 2010;

•  Hospitality Industry (General) Award 2010;

•  Registered and Licensed Clubs Award 2010

[15] Final determinations will not be issued in relation to these three awards at this time.

[16] The 89 awards listed at Attachment A will now be varied to include the model term. Final variation determinations will be issued and will take effect on 1 November 2018. Any typographical errors in the draft determinations that were raised in the submissions will be corrected.

Outstanding matters

[17] As set out above, 33 awards remain outstanding. These are:

•  The 22 awards set out at paragraph [12];

•  The 8 awards set out at paragraph [11]; and

•  The 3 awards set out at paragraph [14].

[18] The Full Bench will issue a decision in relation to the 33 outstanding awards in due course.

PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR700863>

ATTACHMENT A

Aboriginal Community Controlled Health Services Award 2010

Air Pilots Award 2010

Aircraft Cabin Crew Award 2010

Airline Operations-Ground Staff Award 2010

Airport Employees Award 2010

Ambulance and Patient Transport Industry Award 2010

Amusement, Events and Recreation Award 2010

Animal Care and Veterinary Services Award 2010

Aquaculture Industry Award 2010

Architects Award 2010

Asphalt Industry Award 2010

Banking, Finance and Insurance Award 2010

Book Industry Award 2010

Broadcasting, Recorded Entertainment and Cinemas Award 2010

Car Parking Award 2010

Cement and Lime Award 2010

Cemetery Industry Award 2010

Cleaning Services Award 2010

Clerks—Private Sector Award 2010

Coal Export Terminals Award 2010

Commercial Sales Award 2010

Concrete Products Award 2010

Contract Call Centres Award 2010

Corrections and Detention (Private Sector) Award 2010

Cotton Ginning Award 2010

Dredging Industry Award 2010

Educational Services (Post-Secondary Education) Award 2010

Educational Services (Schools) General Staff Award 2010

Educational Services (Teachers) Award 2010

Electrical Power Industry Award 2010

Fast Food Industry Award 2010

Fire Fighting Industry Award 2010

Fitness Industry Award 2010

Funeral Industry Award 2010

Gardening and Landscaping Services Award 2010

Gas Industry Award 2010

General Retail Industry Award 2010

Hair and Beauty Industry Award 2010

Health Professionals and Support Services Award 2010

Higher Education Industry-Academic Staff-Award 2010

Higher Education Industry-General Staff-Award 2010

Horse and Greyhound Training Award 2010

Hydrocarbons Field Geologists Award 2010

Hydrocarbons Industry (Upstream) Award 2010

Journalists Published Media Award 2010

Labour Market Assistance Industry Award 2010

Legal Services Award 2010

Live Performance Award 2010

Local Government Industry Award 2010

Mannequins and Models Award 2010

Marine Tourism and Charter Vessels Award 2010

Marine Towage Award 2010

Maritime Offshore Oil and Gas Award 2010

Market and Social Research Award 2010

Medical Practitioners Award 2010

Mining Industry Award 2010

Miscellaneous Award 2010

Nursery Award 2010

Oil Refining and Manufacturing Award 2010

Pest Control Industry Award 2010

Pharmaceutical Industry Award 2010

Port Authorities Award 2010

Ports, Harbours and Enclosed Water Vessels Award 2010

Poultry Processing Award 2010

Premixed Concrete Award 2010

Professional Diving Industry (Industrial) Award 2010

Professional Diving Industry (Recreational) Award 2010

Professional Employees Award 2010

Quarrying Award 2010

Racing Clubs Events Award 2010

Racing Industry Ground Maintenance Award 2010

Real Estate Industry Award 2010

Salt Industry Award 2010

Seagoing Industry Award 2010

Security Services Industry Award 2010

Silviculture Award 2010

Social, Community, Home Care and Disability Services Industry Award 2010

Sporting Organisations Award 2010

State Government Agencies Award 2010

Stevedoring Industry Award 2010

Storage Services and Wholesale Award 2010

Sugar Industry Award 2010

Surveying Award 2010

Telecommunications Services Award 2010

Textile, Clothing, Footwear and Associated Industries Award 2010

Transport (Cash in Transit) Award 2010

Travelling Shows Award 2010

Water Industry Award 2010

Wool Storage, Sampling and Testing Award 2010

 1   [2018] FWCFB 4935

 2   [2018] FWCFB 3566

 3   [2018] FWCFB 4735

 4   [2018] FWCFB 4735

 5   [2018] FWC 4935

 6   Schedule of draft determinations - payment on termination of employment, 24 August 2018

 7   [2018] FWC 4976 at [6]