4 yearly review of modern awards–Payment of wages

[2020] FWCFB 4483

[2020] FWCFB 4483

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, 26 AUGUST 2020

4 yearly review of modern awards – common issue – payment of wages on termination – draft variation determination – Aged Care Award 2010.

[1] On 10 July 2020 a Statement was issued 1 (the 10 July Statement) stating that a number of conferences would be convened in respect of the following awards:

•  Aged Care Award 2010;

•  Building and Construction General On-site Award 2010;

•  Business Equipment Award 2020;

•  Electrical, Electronic and Communications Contracting Award 2010;

•  Graphic Arts, Printing and Publishing Award 2010;

•  Food, Beverage and Tobacco Manufacturing Award 2010; and

•  Manufacturing and Associated Industries and Occupations Award 2020.

[2] A conference for the Aged Care Award 2010 was held on 8 July 2020, attended by Ai Group, ABI and the Health Services Union (HSU). 2

[3] The Aged Care Award 2010 provides that wages may be paid by cash or electronic funds transfer. In relation to termination payments clause 17.3 provides as follows:

17.3 Termination

When notice of termination of employment has been given by an employee or an employee’s services have been terminated by an employer, payment of all wages and other moneys owing to an employee will be made to the employee by no later than the last day of the formal notice period.

[4] ABI and Ai Group sought to replace the current clause 17.3 with the model term.

[5] In a decision 3 issued on 20 May 2020, the parties were directed to confer on the form of a draft variation having regard to views expressed at [209] of that decision. In correspondence of 7 July 2020, Ai Group provided a draft determination which reflected the outcome of discussions between the parties (Ai Group, ABI and the HSU). A copy of the draft determination is at Attachment A.

[6] In the 10 July Statement we expressed the provisional view that the Aged Care Award be varied as proposed by the parties. We indicated that if no comments were received by 17 July 2020, we would proceed to issue a final determination the terms sought. No such comments were received. Accordingly, we will now issue a final variation determination in the terms proposed by the parties.

PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR722119>

ATTACHMENT A

MA000018 [insert print number]

DRAFT DETERMINATION

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 SYDNEY, [INSERT DATE]

4 yearly review of modern awards – payment of wages common issue – payment on termination of employment – Aged Care Award 2010.

A. Further to the Full Bench decision issued by the Fair Work Commission on XX Month 2020 [[2020] FWCFB XXXX], the above award is varied as follows:

1. By deleting clause 17.3 and inserting the following:

17.3 Payment on termination of employment

(a) When notice of termination of employment has been given by an employee in accordance with clause 11.1, or an employee’s services have been terminated by an employer who has provided them with notice in accordance with the NES, payment of all wages and other monies owing to an employee will be made to the employee by no later than the last day of the formal notice period.

(b) In all other circumstances, the employer must pay all wages and other monies owing to an employee by no later than 7 days after the day on which the employee’s employment terminates.

(c) The requirement to pay wages and other amounts under clauses 17.3(a) and (b) 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 required minimum period of notice or “has paid” to the employee payment instead of giving them notice.

Note 2: Clause 17.3(c) allows the Commission to make an order delaying the requirement to make a payment under clause 17.3(a) or 17.3(b). 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

2. Updating the table of contents and cross-references accordingly.

B. This determination comes into operation from [insert date]. In accordance with s.165(3) of the Fair Work Act 2009 this determination does not take effect in relation to a particular employee until the start of the employee’s first full pay period that starts on or after [insert date].

PRESIDENT

Printed by authority of the Commonwealth Government Printer

 1   [2020] FWCFB 3614

 2   The United Workers Union did not attend the Conference but supports the HSU position.

 3   [2020] FWCFB 1131