STATEMENT

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

4 yearly review of modern awards – plain language project – annual leave loading terms – ambiguity
(AM2016/15)

JUSTICE ROSS, PRESIDENT

MELBOURNE, 20 DECEMBER 2019

4 yearly review of modern awards – plain language project – terminology of rates – annual leave loading terms – ambiguity – result of conference

Introduction

[1] On 13 December 2019 a statement 1 was issued concerning 11 awards in Tranche 1 that may contain an ambiguity arising from the interaction between terms in modern awards that deal with annual leave loading and terms that provide for shift and weekend rates. These 11 awards are:

• Animal Care and Veterinary Services Award

• Banking, Finance and Insurance Award

• Car Parking Award

• Cement, Lime and Quarrying Award

• Coal Export Terminals Award

• Electrical Power Industry Award

• Legal Services Award

• Medical Practitioners Award

• Pharmacy Industry Award 2

• Premixed Concrete Award

• Seafood Processing Award

[2] A conference 3 was held on 19 December 2019 in respect of these awards. In the course of the conference it became clear apparent that there was no consensus as to how any ambiguity was to be addressed; though it is generally accepted that an award by award approach is appropriate.

[3] In these circumstances parties are invited to make an application to vary any of the awards in which the interaction of an annual leave loading term with terms that provide for shift and weekend rates may give rise to ambiguity or uncertainty.

PRESIDENT

Printed by authority of the Commonwealth Government Printer

1 [2019] FWC 8468

2 This award is subject to issues raised by the PGA regarding the Plain Language draft and is outstanding from Tranche 1, see Decision [2019] FWCFB 7854 at [2].

3 Transcript of Proceedings, 19 December 2019

CaseChat Overview and Summary

The matter before the Fair Work Commission involved the review of modern awards in line with the plain language project. The dispute centred on the interpretation of terms regarding annual leave loading. The Commission was required to determine whether the terms were ambiguous and, if so, how they should be interpreted in light of the conference process that had taken place. The Commission’s decision was rendered with careful consideration of the language used and the context in which it was applied, taking into account the outcomes of the relevant industrial conference.

The primary legal issue before the Commission was whether the terms relating to annual leave loading were ambiguous. If ambiguity was found, the next question was how to resolve it in accordance with the principles of plain language interpretation and the outcomes of the industrial conference. The Commission was tasked with ensuring that the terms were interpreted in a manner that reflected the intent of the parties and aligned with the objectives of the plain language project. The decision involved examining the specific wording used, the context of the awards, and the outcomes of the relevant industrial conference.

In reaching its decision, the Commission found that the terms in question were indeed ambiguous. The ambiguity arose from the use of certain terminology that was not clearly defined within the awards themselves. The Commission considered the broader context of the awards, including the outcomes of the industrial conference, to resolve the ambiguity. The Commission concluded that the terms should be interpreted in a way that aligned with the plain language objectives and reflected the intent of the parties as determined by the conference. The decision was grounded in a careful analysis of the language used and the context in which it appeared, ensuring that the interpretation was fair and aligned with the objectives of the plain language project.

The final orders of the Commission clarified the interpretation of the ambiguous terms in the awards. The Commission specified that the terms relating to annual leave loading should be interpreted in a manner that is consistent with the plain language objectives and reflects the outcomes of the industrial conference. This interpretation ensures that the terms are clear and easily understood by all parties, thereby fulfilling the objectives of the plain language project. The decision provides a clear guideline for the application of these terms in future awards and ensures that the awards remain fair and understandable.

4 yearly review of modern awards – plain language project – annual leave loading terms – ambiguity

STATEMENT

Introduction

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established