4 yearly review of modern awards – Plain language re-drafting – Fitness Industry Award 2010

[2019] FWCFB 1047

[2019] FWCFB 1047

FAIR WORK COMMISSION

STATEMENT

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

4 yearly review of modern awards – Plain language re-drafting – Fitness Industry Award 2010
(AM2016/15, AM2014/227)

JUSTICE ROSS, PRESIDENT
VICE PRESIDENT HATCHER
COMMISSIONER HUNT MELBOURNE, 28 FEBRUARY 2019

4 yearly review of modern awards – plain language re-drafting – Fitness Industry Award 2010.

[1] This Statement concerns an outstanding claim relating to the Job search entitlement clauses (clauses 14.2 and 14.3, previously clause 14.3) of the Fitness Industry Award 2010 (Fitness Award). The Fitness Award was varied on 2 November 2018 to incorporate the standard ‘Termination of employment’ clause following the finalisation of standard clauses by the plain language Full Bench. 1

The Claim

[2] During award stage proceedings, the Australian Swim Schools Association (ASSA) submitted that clause 14.3 of the Fitness Award is ambiguous to the extent that it is unclear if the entitlement applies to casual employees. 2 The ASSA submitted the ambiguity may be resolved by varying the clause to clearly state if the entitlement applies or does not apply to casual employees.

[3] In a Decision 3 issued on 30 October 2017 (October 2017 decision), a Full Bench dealt with a number of technical and drafting issues relating to the Group 3 Awards, including the Fitness Award. The Full Bench noted that clause 14.3 is part of the ‘termination of employment’ provisions which state that notice of termination is provided for in the National Employment Standards. The National Employment Standards (NES) explicitly state that the rights and obligations concerning notice of termination do not apply to casual employees. However, job search entitlement is not an NES entitlement.

[4] Clauses 14.2 and 14.3 of the Fitness Award provide:

‘14.2 Job search entitlement

Where an employer has given notice of termination to an employee, the employee must be allowed time off without loss of pay of up to one day for the purpose of seeking other employment.

14.3 The time off under clause 14.2 is to be taken at times that are convenient to the employee after consultation with the employer.’

[5] In the October 2017 decision the Full Bench noted that termination of employment provisions were being considered as part of the standard clauses review in the plain language re-drafting project. 4 To avoid any drafting inconsistencies, the Full Bench referred the claim to the Plain Language Full Bench for further consideration.

Standard Clauses

[6] In a Decision 5 issued on 18 July 2018 the Plain Language Full Bench finalised Standard Clause E — Termination of Employment and expressed the provisional view that all modern awards should be varied to insert the clause to achieve the modern awards objective. In a Statement6 issued on 1 October 2018 the Commission confirmed the majority of modern awards, including the Fitness Award, would be varied to incorporate Standard Clause E.

[7] The full Termination of employment standard clause that has been inserted in the Fitness Award is set out at Attachment A.

Next steps

[8] The ASSA is to advise if it presses its claim as outlined at paragraph [2] by 4.00pm, Friday 15 March 2019.

[9] Should the ASSA press its claim, the matter will be listed for Mention and/or Directions.

[10] All material is to be sent to [email protected].

PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR705054>

ATTACHMENT A

14. Termination of employment

Note: The NES sets out requirements for notice of termination by an employer. See ss.117 and 123 of the Act.

14.1 Notice of termination by an employee

(a) This clause applies to all employees except those identified in ss.123(1) and 123(3) of the Act.

(b) An employee must give the employer notice of termination in accordance with Table 1—Period of notice of at least the period specified in column 2 according to the period of continuous service of the employee specified in column 1.

Table 1—Period of notice

Column 1 Employee’s period of continuous service with the employer at the end of the day the notice is given	Column 2 Period of notice
Not more than 1 year	1 week
More than 1 year but not more than 3 years	2 weeks
More than 3 years but not more than 5 years	3 weeks
More than 5 years	4 weeks

Note: The notice of termination required to be given by an employee is the same as that required of an employer except that the employee does not have to give additional notice based on the age of the employee.

(c) In paragraph(b) continuous service has the same meaning as in s.117 of the Act.

(d) If an employee who is at least 18 years old does not give the period of notice required under paragraph (b), then the employer may deduct from wages due to the employee under this award an amount that is no more than one week’s wages for the employee.

(e) If the employer has agreed to a shorter period of notice than that required under paragraph (b), then no deduction can be made under paragraph (d).

(f) Any deduction made under paragraph (d) must not be unreasonable in the circumstances.

14.2 Job search entitlement

Where an employer has given notice of termination to an employee, the employee must be allowed time off without loss of pay of up to one day for the purpose of seeking other employment.

14.3 The time off under clause 14.2 is to be taken at times that are convenient to the employee after consultation with the employer.

 1   PR610260

 2   ASSA Submission, 4 August 2016.

 3   [2017] FWCFB 5536.

 4   [2017] FWCFB 5536.

 5   [2018] FWCFB 4177.

 6   [2018] FWC 6091.