4 yearly review of modern awards—Plain language—Shutdown provisions
[2023] FWCFB 53
•14 MARCH 2023
| [2023] FWCFB 53 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.156—4 yearly review of modern awards
4 yearly review of modern awards—Plain language—Shutdown provisions
(AM2016/15)
| JUSTICE HATCHER, PRESIDENT DEPUTY PRESIDENT ASBURY COMMISSIONER HUNT | SYDNEY, 14 MARCH 2023 |
4 yearly review of modern awards — plain language — shutdown provisions — Black Coal Mining Industry Award 2020.
Background
On 28 February 2019, a differently-constituted Full Bench dealing with plain language re-drafting issues in the 4 yearly review of modern awards published a statement[1] (February 2019 statement) in which it proposed a model annual leave shutdown provision and established a timetable for submissions in response.[2] This followed an earlier decision made by a different Full Bench on 19 October 2017[3] (October 2017 decision) concerning the annual leave shutdown provision in what is now the Black Coal Mining Industry Award 2020 (Black Coal Award). The October 2017 decision varied the 2010 version of the Black Coal Award to replace the existing provision with a new provision. The proposed clause in the February 2019 statement was closely modelled on the new clause placed in the Black Coal Award by the October 2017 decision.
The matter then went into hiatus for some time because of the exigencies of the COVID‑19 pandemic. On 25 August 2022, the Full Bench as currently constituted issued a decision[4] (August 2022 decision) in which, by majority, it expressed the provisional view that 79 awards should be varied to include a proposed model clause pertaining to the taking of annual leave during shutdowns. This model clause modified the proposed clause in the February 2019 statement to take into account matters raised by parties in their submissions in response to the statement. Draft determinations reflecting the provisional view were subsequently published for comment, and parties then filed submissions in response to the provisional view and the draft determinations. In a further decision issued on 22 December 2022[5] (December 2022 decision), the Full Bench determined, by majority, to vary the subject awards to include the proposed model clause, but with some further modifications. Seventy-eight draft determinations were subsequently published.
On 23 January 2023, the presiding member issued a statement[6] in this matter noting that, due to an administrative oversight, a draft determination for the variation of the Black Coal Award to give effect to the provisional view in the August 2022 decision was not published following that decision. As stated in that 2023 Statement, “no submission was filed pertaining to the Black Coal Award, presumably because of the failure to publish a draft determination for this award” and therefore, “[i]t remains necessary for the Full Bench to finalise the position for the Black Coal Award”.[7] Interested parties were invited to file submissions concerning whether clause 24.9 of the Black Coal Award should be varied to reflect the model clause set out in paragraph [82] of the December 2022 decision. A draft determination was attached to the Statement. Submissions were due by 13 February 2023.
Submission – CFMMEU Mining and Energy Division
The CFMMEU Mining and Energy Division (MEU) was the only party to file a submission.[8] The MEU submits that that clause 24.9 of the Black Coal Award should not be varied to reflect the model clause set out in paragraph [82] of the December 2022 decision. The MEU submits that clause 24.9 had been finalised in the October 2017 decision and referred to paragraph [79] of that decision as making it clear the decision intended to finalise the matter as it related to the Black Coal Award. While the MEU accepts that the intention of the Commission was always that the terms of the shutdown provision in the Black Coal Award could be affected by the general review of shutdown provisions, it submits that the Full Bench findings were made following the hearing of evidence and submissions specific to the Black Coal Award, and therefore should not be lightly disturbed.
The MEU further submits that the model clause would disadvantage employees in terms of their entitlements under current clause 24.9 in that employees would not be able to elect to take unpaid leave during a notified shutdown, that it could potentially lead to a period of notice for the shutdown that is shorter than 28 days for employees who do not agree to it, and that it would result in the deletion of current clause 24.9(h), which clarifies the position where a public holiday which would have been a working day falls within a shutdown period.
The MEU also requests that, depending on the outcome of their submissions raised above, we consider inserting an ancillary provision expressly confirming that any period of unpaid leave is to count for the purposes of service. It submits that this matter was reserved for future consideration in the October 2017 decision[9] but that, given the Full Bench findings in the August 2022 decision that other modern awards will not be varied to insert an entitlement to unpaid leave, this leaves only the Black Coal Award to be considered in relation to the existing entitlement to unpaid leave.
Consideration
As the history of this matter outlined above demonstrates, the model clause established by the December 2022 decision represents an evolution of the model clause originally proposed in the February 2019 statement, which was in turn virtually identical to what is now clause 24.9 of the Black Coal Award. There are three differences of substance between clause 24.9 of the Black Coal Award the final model clause, which we will deal with in turn.
The first is that clause 24.9(b) of the Black Coal Award provides for 28 days’ written notice of a shutdown period “or any shorter period agreed between them and the employer”, while clause XX.XX(b) refers to “any shorter period agreed between the employer and the majority of relevant employees”. The wording in clause 24.9(b) was contained in the versions of the model clause contained in the February 2019 statement and the August 2022 decision, but was altered by the December 2022 decision to include the reference to a majority of employees because this was identified by the Manufacturing Division of the CFMMEU as being inconsistent with clause 34.7 of the Manufacturing and Associated Industries and Occupations Award 2020.[10] There is nothing before us to suggest that the difference between the two versions is of any significance in the black coal mining industry, and therefore we do not consider it to be necessary to alter clause 24.9(b) of the Black Coal Award in terms of the model clause to achieve the modern awards objective.
The second difference is the one of most significance. Clause 24.9(d)(i) of the Black Coal Award provides that, upon being notified of an annual shutdown period, an employee may elect to take, among other things, annual leave without pay. This option may be exercised even if the employee has accrued annual leave available to be taken. The model clause in the February 2019 statement contained an equivalent provision. However, this was modified in the August 2022 decision because of submissions made by a number of employer groups that such a right of election would vitiate the purpose of a shutdown that occurs in order for accrued annual leave to be taken and might be inappropriate in the absence of any general National Employment Standards (NES) or award entitlement to take leave without pay.[11] In the final model clause as established by the December 2022 decision, the capacity of the employee to take leave without pay is confined to the circumstance where the employee does not have sufficient accrued annual leave to cover the period of the shutdown and requires employer agreement. However, the conclusions in the August 2022 decision and the December 2022 decision were reached in the context of the development of a model clause to apply generally across awards which contain annual leave shutdown clauses. The terms of what is now clause 24.9 was developed specifically by a Full Bench for the black coal mining industry with the benefit of evidence about shutdowns in that industry. The clause has been in place for over five years now, and there is no submission from any employer in that industry that the right of election in clause 24.9(d)(i) has operated to defeat the purpose of shutdowns or is otherwise inappropriate for the industry. We therefore conclude that it is not necessary to alter it in terms of the model clause.
The third difference is that the model clause does not contain an equivalent to clause 24.9(h). This was not included in the model clause because it merely repeats the effect of s 89(1) of the Fair Work Act 2009 (Cth) (FW Act) and was therefore considered unnecessary.[12] However, there is no inherent difficulty with the provision as it exists in the Black Coal Award, and we do not see any necessity now to remove it.
Clause 24.9 of the Black Coal Award is otherwise in substantially the same terms as the model term. Having regard to the above matters, we do not consider for the purpose of s 138 of the FW Act that it is necessary to vary clause 24.9 of the Black Coal Award in terms of the model clause or otherwise in order to achieve the modern awards objective.
We decline the MEU’s request for us to add an ancillary provision to “confirm” that unpaid leave taken pursuant to clause 24.9(d)(i) constitutes “service”. Consistent with the majority’s observations in paragraph [145] of the August 2022 decision, such unpaid leave would not count as service for the purpose of the NES entitlements to annual leave, personal/carer’s leave and redundancy pay by virtue of s 22(2)(b) of the FW Act. As stated in that paragraph, an award provision which provides that a period of leave does count as service only has effect with respect to these NES entitlements if it can be characterised as a provision which supplements the NES and is accordingly authorised by s 55(4)(b). We would not make a provision of this nature on our own initiative. The MEU will need to make an award variation application under s 158 of the FW Act if it wishes to pursue this issue further.
PRESIDENT
[1] [2019] FWCFB 1255
[2] Ibid at [77]-[86]
[3] [2017] FWCFB 5394
[4] [2022] FWCFB 161
[5] [2022] FWCFB 246
[6] [2023] FWC 190
[7] Ibid at [5]
[8] CFMMEU Mining and Energy Division submission, 13 February 2023
[9] [2017] FWCFB 5394 at [67]
[10] [2022] FWCFB 246 at [41]-[42], [77]-[78]
[11] [2022] FWCFB 161 at [149]
[12] Ibid at [157]
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