4 yearly review of modern awards – Payment of Wages – Plain Language – Standard Clauses

[2018] FWC 4976

[2018] FWC 4976

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 – Plain Language   – Standard Clauses

(AM2016/8 & AM2016/15)

JUSTICE ROSS, PRESIDENT MELBOURNE, 24 AUGUST 2018

4 yearly review of modern awards –– payment of wages – payments on termination – Plain language – standard clauses – draft determinations.

1. This Statement deals with the draft determinations to be published in two separate matters – Plain language standard clauses and Payment of wages on termination of employment.

AM2016/8 – Payment of wages

1. In a Decision[1] issued on 17 July 2018 (the July Decision) a Full Bench expressed the provisional view that 86 modern awards that were silent in respect of the time period within which termination payments are to be made should be varied to insert the payments on termination model term. A further Decision[2] issued 15 August 2018 (the August Decision) confirmed the provisional view in relation to 83 of these 86 modern awards.

1. The August Decision expressed the provisional view that the following awards should also be varied to include the model term:

·   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.[3]

1. The August Decision also expressed the provisional view that the Market and Social Research Award 2010 should be varied to include the model term but that the variation will retain the first sentence of clause 19.5 as a separate entitlement.

2. A Statement issued on 21 August 2018[4] confirmed that a draft determination will also be published for the Children’s Services Award 2010.

1. Draft determinations in relation to each of these awards will be published on the Commission’s website today. Any comments in relation to the drafts must be filed by 4 pm on Friday 7 September 2018.

Plain language – Standard clauses

1. In a Decision issued on 14 August 2018[5] the Plain Language Full Bench expressed the provisional view that all modern awards should be varied to replace existing modern award terms with the plain language standard clauses:

A. Award flexibility

B. Consultation about major workplace change

C. Consultation about changes to rosters or hours of work

D. Dispute resolution

E. Termination of employment

F. Redundancy

G. Transfer to lower paid job on redundancy

H. Employee leaving during the redundancy notice period.

1. Draft determinations in relation to each of these awards will be published on the Commission’s website today. Any comments in relation to the drafts must be filed by 4 pm on Friday 7 September 2018.

Award specific issues

1. A number of awards appear to have award specific issues that require further consideration before draft determinations are issued.

1. The following awards include award specific notice periods for termination of employment by an employee which would be removed if standard clause E. Termination of employment was inserted:

·   Air Pilots Award 2010 at clause 12.2;

·   Animal Care and Veterinary Services Award 2010 at 11.3;

·   Architects Award 2010 at clause 12.2;

·   Black Coal Mining Industry Award 2010 at clause 13.2;

·   Educational Services (Teachers) Award 2010 at clause 11.4;

·   Marine Towage Award 2010 at clause 11.6;

·   Professional Employees Award 2010 at clause 12.2.

1. We note that clause 11.3 of the Animal Care and Veterinary Services Award 2010 and clause 12.2 of the Professional Employees Award 2010 may be inconsistent with the NES and we invite submissions in relation to that issue.

1. The following awards have industry specific redundancy terms:

·   Air Pilots Award 2010;

·   Black Coal Mining Industry Award 2010;

·   Building and Construction General On-site Award 2010;

·   Dredging Industry Award 2010;

·   Joinery and Building Trades Award 2010;

·   Mannequins and Models Award 2010;

·   Plumbing and Fire Sprinklers Award 2010;

·   Mobile Crane Hiring Award 2010.

1. The industry specific redundancy schemes in the Building and Construction General On-site Award 2010, the Joinery and Building Trades Award 2010 and the Plumbing and Fire Sprinklers Award 2010 are currently being considered by a separate Full Bench in AM2016/23. Accordingly, draft determinations for the standard clauses matter will not be issued until that matter has concluded

1. Interested parties are invited to make submissions about whether any of the industry specific elements of these terms should be retained. Submissions must be filed by 4pm on 7 September 2018. Parties are encouraged to have discussions and file joint proposals.

1. Liberty to apply.

PRESIDENT

<PR620189>

[1] [2018] FWCFB 3566.

[2] [2018] FWCFB 4735

[3] AWU submission, 10 August 2018.

[4] [2018] FWC 4935

[5] [2018] FWCFB 4704

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