4 yearly review of modern awards—Plain language—Shutdown provisions - [2022] FWCFB 161

[2022] FWCFB 161

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)

Vice President hatcher
DEPUTY PRESIDENT ASBURY
COMMISSIONER HUNT

SYDNEY, 25 August 2022

4 yearly review of modern awards – plain language – shutdown provisions.

DECISION OF VICE PRESIDENT HATCHER AND DEPUTY PRESIDENT ASBURY

Background

During the annual leave common issue proceedings conducted as part of the 4 yearly review of modern awards, an issue arose in relation to the Black Coal Mining Award 2010 (Black Coal Award) regarding annual leave shutdown. This triggered a wider review of annual leave shutdown clauses in modern awards generally in the circumstances described below.

In decisions issued on 11 June 2015[1] (June 2015 decision) and 15 September 2015[2] (September 2015 decision), the Annual Leave Full Bench determined model clauses in respect of taking excessive annual leave, the cashing out of annual leave, electronic funds transfer and paid annual leave, and granting annual leave in advance. In the June 2015 decision, the Annual Leave Full Bench also considered a model “close-down” clause proposed by a group of employer parties to be placed into 65 modern awards. This proposed clause had three features of present relevance:

· it would apply to the close-down of an enterprise, or part of it, for the purpose of allowing paid annual leave to all or a majority of employees in the enterprise or part of it;

· subject to the provision of notice, it would require employees to take paid annual leave for the full period of closing where they have sufficient accrued annual leave to do so; and

· where employees had insufficient or no accrued annual leave to cover the full period of the closing, they would be required to take leave without pay for the relevant period.[3]

The Full Bench was not persuaded to grant the employers’ claim for three reasons:

(1)Section 93(3) of the Fair Work Act 2009 (FW Act) empowers award terms requiring an employee to take paid annual leave only if the requirement was reasonable. The Full Bench was not satisfied that the clause was reasonable because of the breadth of its expression; in particular, there was no restriction on the number of times a close-down can occur in a 12-month period, no restriction on the duration of the close-down, and the four-week notice period was not reasonable given the breadth of the provision.

(2)While it was desirable that provisions dealing with the taking of annual leave be uniform across modern awards, close-down provision were an exception to this general proposition and warranted consideration on an award-by-award basis.

(3)The employer proponents of the claim had not established a merit case sufficient to warrant granting the claim.[4]

The Full Bench left open the capacity for parties to seek variations of individual modern awards to vary an existing shutdown provision or to insert an appropriate provision.[5]

In a decision issued on 22 September 2016[6] (September 2016 decision), the Annual Leave Full Bench dealt with the issue of whether the excessive leave model term should be included in the Black Coal Award. This was opposed by the Coal Mining Industry Employer Group (CMIEG). The Full Bench decided that the broad right for an employer to direct the taking of annual leave without other considerations and requirements, as was the case in clause 25.4(c) of the Black Coal Award (as at 22 September 2016), was not consistent with s 93(3) of the FW Act.[7] Therefore it was not a term that could be included in a modern award.[8] The Full Bench determined to delete clause 25.4 of the Black Coal Award in its entirety and replace it with the excessive leave model term it had earlier determined, subject to one modification which is not presently relevant.[9] The Full Bench recognised that this variation might have a consequential effect on the operation of the annual leave shutdown clause then contained in clause 25.10 of the Black Coal Award, in that there might be a question as to whether an employee could be directed to take annual leave during a shutdown. In a draft variation determination published in conjunction with the September 2016 decision, the Full Bench proposed a modification to clause 25.10 to address this issue and invited interested parties to comment upon this.[10]

In response to the draft variation determination for the Black Coal Award, the CMIEG proposed a new shutdown clause to replace the existing clause 25.10. Under its proposed clause, an employer could require an employee to take annual leave during the period of the shutdown, subject to the capacity of the employee to elect to take leave without pay during the period of the shutdown. Employees who were not yet entitled to sufficient annual leave to cover the shutdown could elect to take annual leave in advance or could otherwise be placed onto unpaid leave.[11]

This proposed clause, which was opposed by the Construction, Forestry, Mining and Energy Union, as it then was (CFMMEU), and the Australian Manufacturing Workers’ Union (AMWU), was considered by the Annual Leave Full Bench in a decision issued on 27 March 2017[12] (March 2017 decision). The Full Bench observed that a provision permitting different arrangements for annual leave during a period of shutdown or close-down may be consistent with the statutory framework, depending on its terms. It considered that there was some merit in the CMIEG proposal, but concluded that it was capable of being applied in a manner inconsistent with s 93(3) of the FW Act and therefore it would be appropriate to impose some limitations upon the scope of the provision.[13] The Full Bench stated the provisional view that a revised shutdown provision should be inserted into the Back Coal Award in the following terms:

“25.10 Shutdown

(a) Clause 25.10 applies if an employer intends to shutdown all or part of its operation for a particular period (temporary shutdown period); and wishes to require affected employees to take leave during that period.

(b) The employer must give the affected employees one month’s written notice of a temporary shutdown period.

(c) The employer must give immediate written notice of a temporary shutdown period to any employee who is engaged after the notice is given under paragraph (b) and who will be affected by that period.

(d) The following applies to any affected employee during a temporary shutdown period:

(i)if the employee has accrued an entitlement to paid annual leave the employee may elect to take some or all of the leave during the temporary shutdown period and may also elect to take unpaid leave to cover any part of the temporary shutdown period;

(ii)if the employee does not elect to take paid annual leave or unpaid leave to cover the whole of the temporary shutdown period, then the employer may direct the employee to take a period of accrued paid annual leave or unpaid leave to cover the whole of the temporary shutdown period;

(iii)if the employee has not accrued an entitlement to any paid annual leave, the employer may direct the employee to take leave without pay to cover the whole of the temporary shutdown period.

(e) A direction by the employer under clause 25.10(d)(ii):

(i)must be in writing; and

(ii)must be reasonable.

(f) The employee must take paid annual leave or unpaid annual leave in accordance with a direction under clause 25.10(d)(ii)

(g) In determining the amount of paid annual leave to which an employee has accrued an entitlement, any period of paid annual leave taken in advance by the employee, in accordance with an agreement under clause 25.9, to which an entitlement has not been accrued is to be taken into account.

(h) When an employer shuts down all or part of its operation under this provision, clauses 25.4 to 25.6 do not apply to employees directly affected by the shutdown and this clause will apply.”

The Full Bench also said:

“[39] As observed by the CFMEU, this is the first occasion on which we have given detailed consideration to the need for a stand down term to be consistent with s.93(3) of the FW Act. It is for that reason that we have only expressed a provisional view in respect of this issue. We also acknowledge that the adoption of the provisional views expressed is likely to have implications for existing shutdown terms in other modern awards. There are some 81 modern awards which presently contain shutdown (or closedown provisions). The relevant provisions are set in Attachment A and we note that there are a variety of approaches including some modern awards where the provisions operate more narrowly than the clause under consideration here. We propose to invite submissions from the parties interested in the Black Coal Award and those interested in the other 80 modern awards which contain shutdown provisions.”

Interested parties were invited to provide submissions in response to the provisional view. A number of submissions were subsequently received, including from the CMIEG, the CFMMEU, the AMWU and the Australian Industry Group (Ai Group). Relevantly for the present proceedings, the submissions of the CFMMEU and the AMWU both contended, among other things, that the capacity of an employer to direct the taking of leave without pay in proposed clauses 25.10(d)(ii) and (iii) amounted to a right to stand down the employee and, as such, was not permitted to be included in a modern award. The AMWU in particular submitted that stand down was not included in the list of matters permitted to be the subject of award terms in s 139 of the FW Act, and stand down was specifically dealt with in s 524 of the FW Act.

The Annual Leave Full Bench conducted a hearing on 5 May 2017 to receive further submissions concerning the provisional views expressed in the March 2017 decision. In a Statement[14] issued by the President on 15 May 2017 it was noted that, at the hearing, parties were directed to file submissions “clarifying their position with respect to the inclusion of a power to direct employees to take unpaid annual leave”. The Statement further noted that the CMIEG had filed a revised proposed shutdown clause. This revised proposal omitted any capacity for the employer to require an employee to take unpaid annual leave during a shutdown. The Statement invited interested parties to make submissions in response to the CMIEG proposal. However, after the CFMMEU stated its opposition to the proposal, the CMIEG withdrew it and the parties reverted to their original positions in respect of the provisional views stated in the March 2017 decision.

Directions were issued on 4 August 2017 to finalise the matter, including by way of the receipt of evidence and the listing of a hearing on 9 October 2017. The parties were also directed to consider a revised draft of clause 25.10 which, relevantly, omitted any capacity for the employer to direct an employee to take leave without pay but retained an entitlement for the employee to elect to take leave without pay instead of taking annual leave during a shutdown period.

Submissions from the CMIEG, the CFMMEU and the AMWU were received in response. The CMIEG proposed a further draft clause 25.10 which relevantly provided that an employer could direct an employee to take annual leave during a shutdown and, where the employee has an insufficient annual leave accrual, the employee would be taken to be on leave without pay for the relevant period. In response, both the CFMMEU and the AMWU submitted that it remained the case that a provision of this nature deeming the employee to be on leave without pay amounted to a stand down, which was not permitted by the FW Act to be included in a modern award. The unions accepted that an employee could elect to take leave without pay during a shutdown, but the CFMMEU in particular submitted that any such leave without pay should count as service. Both unions also opposed the inclusion in the Black Coal Award of a provision under which employees could be required to take annual leave during a shutdown subject only to a constraint of reasonableness.

In a decision issued on 19 October 2017[15] (October 2017 decision) the Annual Leave Full Bench finalised the form of the revised shutdown clause to be included in the Black Coal Award. It determined, subject to one modification, to adopt the revised 4 August 2017 proposal. In respect of the capacity to direct the taking of accrued paid annual leave during a shutdown, the Full Bench determined that the revised clause met the reasonableness requirement of s 93(3) in that:

“(i) The term only applies to temporary shutdowns.

(ii) The employer must give affected employees 28 days’ written notice of a temporary shutdown period.

(iii) The power to direct an employee to take a period of accrued paid annual leave only arises if the employee does not elect to take paid annual leave or leave without pay to cover the whole of the temporary shutdown period.

(iv) A direction to take a period of accrued paid leave must be in writing and must be reasonable.”[16]

The Full Bench also rejected the CMIEG proposal in respect of employees being “taken to be” on leave without pay if they did not have sufficient accrued annual leave to cover the period of the shutdown. The Full Bench accepted, without giving any reasons, that the CMIEG’s proposed provision was capable of falling within the scope of s 139(1)(h) as being a matter about “leave”.[17] However, it rejected the proposition on the merits, determining that it was not apparent why it was necessary, in order to meet the modern awards objective, to insert such a term in the Black Coal Award, and it rejected the proposition that the absence of such a provision would render a shutdown clause nugatory.[18] The Full Bench declined to deal with the issue raised by the CFMMEU as to whether any leave without pay should count as service, saying:

“[67] We are not satisfied that it is appropriate to deal with the issue of service at this time. The issue raised may have implications in the review of all shutdown terms in modern awards. It is appropriate that it be considered in the context of a broader review of shutdown terms.”

The Black Coal Award was ultimately varied in accordance with the October 2017 decision on 9 November 2017.[19]

In a Statement[20] issued on 9 November 2017, 81 identified modern awards containing shutdown provisions, and the continuity of service issue referred to in the October 2017 decision, were referred to the Plain Language Full Bench for determination of the final form of a shutdown clause in each award.

The Plain Language Full Bench issued a Statement on 28 February 2019[21] (February 2019 statement) containing, in Attachment C, an updated list of modern awards (not including the Black Coal Award) containing shutdown provisions. These awards were, at the date of the February 2019 statement, 2010 awards. As at the date of this decision all these awards except for the Children’s Services Award 2010 (Children’s Award) have been consolidated as 2020 awards and we refer to them as such in this decision unless stated otherwise. Attachment A to this decision sets out a further updated list of the 78 modern awards (excluding the Children’s Award, which is dealt with separately in chapter 6 of our decision) that currently contain shutdown provisions.

In the February 2019 statement, the Plain Language Full Bench asked interested parties to make submissions on the following matters:

1.Whether the modern awards that currently contain shutdown provisions should be varied to include the following model term:

XX.XX Shutdown

(a)Clause XX.XX applies if an employer intends to shut down all or part of its operation for a particular period (temporary shutdown period) and wishes to require affected employees to take leave during that period.

(b)The employer must give the affected employees 28 days’ written notice of a temporary shutdown period, or any shorter period agreed between them and the employer.

(c)The employer must give written notice of a temporary shutdown period to any employee who is engaged after the notice is given under clause XX.XX(b) and who will be affected by that period, as soon as reasonably practicable after the employee is engaged.

(d)The following applies to any affected employee during a temporary shutdown period:

(i) the employee may elect to cover the temporary shutdown period by doing one, or a combination of 2 or more, of the following:

·taking paid annual leave if the employee has accrued an entitlement to such leave;
·taking leave without pay;
·taking annual leave in advance in accordance with an agreement under clause XX.XX;

(ii) if the employee does not make an election under clause XX.XX(d)(i) that covers the whole of the temporary shutdown period, then the employer may direct the employee to take a period of paid annual leave to which the employee has accrued an entitlement.

(e)A direction by the employer under clause XX.XX(d)(ii):

(i) must be in writing; and

(ii) must be reasonable.

(f)The employee must take paid annual leave in accordance with a direction under clause XX.XX(d)(ii).

(g)In determining the amount of paid annual leave to which an employee has accrued an entitlement, any period of paid annual leave taken in advance by the employee, in accordance with an agreement under clause XX.XX, to which an entitlement has not been accrued, is to be taken into account.

(h)If a temporary shutdown period includes a day or part-day that is a public holiday and would have been a working day for the employee had the employee not been on leave in accordance with clause XX.XX, then the employee is taken not to be on leave on that day or part-day.

(i)Clauses XX.XX to XX.XX do not apply to a period of annual leave that an employee is required to take during a temporary shutdown period in accordance with clause XX.XX.

2.Any award-specific variations that should be made; and

3.Whether unpaid leave taken during a shutdown period counts as service.

It may be noted the proposed model term reproduces the shutdown provision inserted in the Black Coal Award by the Annual Leave Full Bench (except for some introductory words in what is now clause 24.9(a) of the 2020 version of the Black Coal Award). The Full Bench stated in the February 2019 statement that the above matters would be decided on the papers unless any party requested a formal hearing. No such requests were received.

Submissions were received from:

· Australian Business Industrial & New South Wales Business Chamber (ABI);[22]
· Australian Manufacturing Workers’ Union (AMWU);[23]
· Australian Hotels Association (AHA);[24]
· Australian Workers’ Union (AWU);[25]
· Australian Industry Group (Ai Group);[26]
· Australasian Meat Industry Employees Union (AMIEU);[27]
· Construction, Forestry, Maritime, Mining and Energy Union – Mining and Energy Division (CFMMEU – M&E);[28]
· Construction, Forestry, Maritime, Mining and Energy Union – Manufacturing Division (CFMMEU – MD);[29]
· Construction, Forestry, Maritime, Mining and Energy Union – Construction and General Division (CFMMEU – C&G);[30]
· Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU);[31]
· CPSU, the Community and Public Sector Union (CPSU);[32]
· Flight Attendants’ Association of Australia (FAAA).[33]
· Housing Industry Association (HIA);[34]
· Master Builders Australia (MBA);[35] and
· United Voice (now the United Workers Union) (UWU).[36]

Submissions in reply were received from:

· Ai Group;[37]
· AMIEU;[38] and
· CFMMEU – C&G.[39]

This decision deals with the outstanding matters in respect of shutdown terms. The Full Bench was reconstituted on 6 July 2022 for the purpose of finalising the shutdown provisions in the awards identified in the February 2019 statement.

We propose to first set out the legislative framework and the history of shutdown provisions before we turn to the submissions made in respect of the three questions in [18] above.

The legislative framework

Section 93(3) of the FW Act prescribes the circumstances in which an employee may be required to take annual leave as follows:

(3) A modern award or enterprise agreement may include terms requiring an employee, or allowing for an employee to be required, to take paid annual leave in particular circumstances, but only if the requirement is reasonable.

The Explanatory Memorandum to the Fair Work Bill 2008 provides guidance regarding the intention of subclause 93(3) of the Bill and what factors may be considered when determining if a requirement is “reasonable”:

“Subclause 93(3) permits terms to be included in an award or agreement that require an employee, or that enable an employer to require or direct an employee, to take paid annual leave in particular circumstances, but only if the requirement is reasonable. This may include the employer requiring an employee to take a period of annual leave to reduce the employee’s excessive level of accrual or if the employer decides to shut down the workplace over the Christmas/New Year period.

In assessing the reasonableness of a requirement or direction under this subclause it is envisaged that the following are all relevant considerations:

· the needs of both the employee and the employer’s business;
· any agreed arrangement with the employee;
· the custom and practice in the business;
· the timing of the requirement or direction to take leave; and
· the reasonableness of the period of notice given to the employee to take leave.”[40]

In relation to the continuity of service issue, “service” and “continuous service” are defined in s 22 of the FW Act in the following way:

22 Meanings of service and continuous service

General meaning

(1)A period of service by a national system employee with his or her national system employer is a period during which the employee is employed by the employer, but does not include any period (an excluded period) that does not count as service because of subsection (2).

(2)The following periods do not count as service:

(a)any period of unauthorised absence;

(b)any period of unpaid leave or unpaid authorised absence, other than:

(i) a period of absence under Division 8 of Part 2-2 (which deals with community service leave); or

(ii) a period of stand down under Part 3-5, under an enterprise agreement that applies to the employee, or under the employee’s contract of employment; or

(iii) a period of leave or absence of a kind prescribed by the regulations;

(c)any other period of a kind prescribed by the regulations.

(3)An excluded period does not break a national system employee's continuous service with his or her national system employer, but does not count towards the length of the employee’s continuous service.

Meaning for Divisions 4 and 5, and Subdivision A of Division 11, of Part 2-2

(4)For the purposes of Divisions 4 and 5, and Subdivision A of Division 11, of Part 2-2:

(a)a period of service by a national system employee with his or her national system employer is a period during which the employee is employed by the employer, but does not include:

(i) any period of unauthorised absence; or

(ii) any other period of a kind prescribed by the regulations; and

(b)a period referred to in subparagraph (a)(i) or (ii) does not break a national system employee’s continuous service with his or her national system employer, but does not count towards the length of the employee’s continuous service; and

(c)subsections (1), (2) and (3) do not apply.

Note: Divisions 4 and 5, and Subdivision A of Division 11, of Part 2-2 deal, respectively, with requests for flexible working arrangements, parental leave and related entitlements, and notice of termination or payment in lieu of notice.

(4A) Regulations made for the purposes of subparagraph (4)(a)(ii) may prescribe different kinds of periods for the purposes of different provisions to which subsection (4) applies. If they do so, paragraph (4)(b) applies accordingly.

Section 136(1) of the FW Act deals with what terms may or must be included in modern awards as follows:

136 What can be included in modern awards

Terms that may or must be included

(1)A modern award must only include terms that are permitted or required by:

(a)Subdivision B (which deals with terms that may be included in modern awards); or

(b)Subdivision C (which deals with terms that must be included in modern awards); or

(c)section 55 (which deals with interaction between the National Employment Standards and a modern award or enterprise agreement); or

(d)Part 2-2 (which deals with the National Employment Standards).

Note 1: Subsection 55(4) permits inclusion of terms that are ancillary or incidental to, or that supplement, the National Employment Standards.

Note 2: Part 2-2 includes a number of provisions permitting inclusion of terms about particular matters.

In respect of s 136(1)(a), s 139(1)(a) provides:

139 Terms that may be included in modern awards--general

(1)A modern award may include terms about any of the following matters:

(a)minimum wages (including wage rates for junior employees, employees with a disability and employees to whom training arrangements apply), and:

(i) skill-based classifications and career structures; and
(ii) incentive-based payments, piece rates and bonuses;

(b)type of employment, such as full-time employment, casual employment, regular part-time employment and shift work, and the facilitation of flexible working arrangements, particularly for employees with family responsibilities;

(c)arrangements for when work is performed, including hours of work, rostering, notice periods, rest breaks and variations to working hours;

(d)overtime rates;

(e)penalty rates, including for any of the following:

(i)     employees working unsocial, irregular or unpredictable hours;
(ii)     employees working on weekends or public holidays;
(iii)    shift workers;

(f)annualised wage arrangements that:

(i)     have regard to the patterns of work in an occupation, industry or enterprise; and
(ii)     provide an alternative to the separate payment of wages and other monetary entitlements; and
(iii)    include appropriate safeguards to ensure that individual employees are not disadvantaged;

(g)allowances, including for any of the following:

(i)     expenses incurred in the course of employment;
(ii)     responsibilities or skills that are not taken into account in rates of pay;
(iii)    disabilities associated with the performance of particular tasks or work in particular conditions or locations;

(h)leave, leave loadings and arrangements for taking leave;

(i)superannuation;

(j)procedures for consultation, representation and dispute settlement.

Section 524(1) of the FW Act deals with circumstances in which an employer can stand down employees, and s 524(3) provides that the employer is not required to pay the employee for a period of stand down authorised by s 524(1). Section 524(2) provides:

(2)However, an employer may not stand down an employee under subsection (1) during a period in which the employee cannot usefully be employed because of a circumstance referred to in that subsection if:

(a)an enterprise agreement, or a contract of employment, applies to the employer and the employee; and

(b)the agreement or contract provides for the employer to stand down the employee during that period if the employee cannot usefully be employed during that period because of that circumstance.

Note 1: If an employer may not stand down an employee under subsection (1), the employer may be able to stand down the employee in accordance with the enterprise agreement or the contract of employment.

Note 2: An enterprise agreement or a contract of employment may also include terms that impose additional requirements that an employer must meet before standing down an employee (for example requirements relating to consultation or notice).

Section 156 of the FW Act previously dealt with the conduct of 4 yearly reviews of modern awards. Section 156 was repealed by the Fair Work Amendment (Repeal of 4 Yearly Reviews and Other Measures) Act 2018 (Cth) effective retrospectively from 1 January 2018, but cl 26 of Sch 1 to the Act (which was added by the amending Act) requires the Commission to continue to apply s 156 to the current 4 yearly review as if it had not been repealed. Accordingly, for present purposes, s 156 must be applied as if it remains in force.

Section 156(2) provides that the Commission must review all modern awards and may, among other things, make determinations varying modern awards. In this context, “review” has its ordinary and natural meaning of “survey, inspect, re-examine or look back upon”.[41] The discretion in s 156(2)(b)(i) to make determinations varying modern awards in a 4 yearly review, is expressed in general, unqualified, terms.

If a power to decide is conferred by a statute and the context (including the subject matter to be decided) provides no positive indication of the considerations by reference to which a decision is to be made, a general discretion confined only by the subject matter, scope and purposes of the legislation will ordinarily be implied.[42] However, a number of provisions of the FW Act which are relevant to the 4 yearly review operate to constrain the breadth of the discretion in s 156(2)(b)(i). In particular, the review function in Part 2-3 of the FW Act involves the performance or exercise of the Commission’s “modern award powers” (see s 134(2)(a)). It follows that the “modern awards objective” in s 134 applies to the 4 yearly review.

Section 138 (achieving the modern awards objective) and a range of other provisions of the FW Act are also relevant to the 4 yearly review: s 3 (object of the Act); s 55 (interaction with the National Employment Standards (NES)); Part 2-2 (the NES); s 135 (special provisions relating to modern award minimum wages); Division 3 (terms of modern awards) and Division 6 (general provisions relating to modern award powers) of Part 2-3; s 284 (the minimum wages objective); s 577 (performance of functions etc by the Commission); s 578 (matters the Commission must take into account in performing functions etc); and Division 3 of Part 5-1 (conduct of matters before the Commission).

The modern awards objective is in s 134 of the FW Act:

134 The modern awards objective

What is the modern awards objective?

(1)The FWC must ensure that modern awards, together with the National Employment Standards, provide a fair and relevant minimum safety net of terms and conditions, taking into account:

(a)relative living standards and the needs of the low paid; and

(b)the need to encourage collective bargaining; and

(c)the need to promote social inclusion through increased workforce participation; and

(d)the need to promote flexible modern work practices and the efficient and productive performance of work; and

(da)the need to provide additional remuneration for:

(i) employees working overtime; or

(ii) employees working unsocial, irregular or unpredictable hours; or

(iii) employees working on weekends or public holidays; or

(iv) employees working shifts; and

(e)the principle of equal remuneration for work of equal or comparable value; and

(f)the likely impact of any exercise of modern award powers on business, including on productivity, employment costs and the regulatory burden; and

(g)the need to ensure a simple, easy to understand, stable and sustainable modern award system for Australia that avoids unnecessary overlap of modern awards; and

(h)the likely impact of any exercise of modern award powers on employment growth, inflation and the sustainability, performance and competitiveness of the national economy.

This is the modern awards objective.

When does the modern awards objective apply?

(2)The modern awards objective applies to the performance or exercise of the FWC’s modern award powers, which are:

(a)the FWC’s functions or powers under this Part; and

(b)the FWC’s functions or powers under Part 2‑6, so far as they relate to modern award minimum wages.

Note: The FWC must also take into account the objects of this Act and any other applicable provisions. For example, if the FWC is setting, varying or revoking modern award minimum wages, the minimum wages objective also applies (see section 284).

The modern awards objective is to “ensure that modern awards, together with the NES, provide a fair and relevant minimum safety net of terms and conditions”, taking into account the particular considerations identified in ss 134(1)(a)-(h) of the FW Act (the s 134 considerations).

The modern awards objective is very broadly expressed.[43] It is a composite expression which requires that modern awards, together with the NES, provide “a fair and relevant minimum safety net of terms and conditions”, taking into account s 134 considerations.[44] “Fairness” in this context is to be assessed from the perspective of the employees and employers covered by the modern award in question.[45]

The obligation to take into account the s 134 considerations means that each of these matters, insofar as they are relevant, must be treated as a matter of significance in the decision-making process.[46] No particular primacy is attached to any of the s 134 considerations[47] and not all of the matters identified will necessarily be relevant in the context of a particular proposal to vary a modern award.

It is not necessary to make a finding that the modern award fails to satisfy one or more of the s 134 considerations as a prerequisite to the variation of a modern award.[48] Generally speaking, the s 134 considerations do not set a particular standard against which a modern award can be evaluated; many of them may be characterised as broad social objectives.[49] In giving effect to the modern awards objective the Commission is performing an evaluative function taking into account the matters in ss 134(1)(a)-(h) of the FW Act and assessing the qualities of the safety net by reference to the statutory criteria of fairness and relevance.

Further, the matters which may be taken into account are not confined to the s 134 considerations. As the Full Court of the Federal Court observed in Shop, Distributive and Allied Employees Association v The Australian Industry Group:[50]

“What must be recognised, however, is that the duty of ensuring that modern awards, together with the National Employment Standards, provide a fair and relevant minimum safety net of terms and conditions itself involves an evaluative exercise. While the considerations in s 134(a)-(h) inform the evaluation of what might constitute a ‘fair and relevant minimum safety net of terms and conditions’, they do not necessarily exhaust the matters which the FWC might properly consider to be relevant to that standard, of a fair and relevant minimum safety net of terms and conditions, in the particular circumstances of a review. The range of such matters ‘must be determined by implication from the subject matter, scope and purpose of the’ Fair Work Act (Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24 at 39-40).”[51]

Section 138 of the FW Act emphasises the importance of the modern awards objective:

138 Achieving the modern awards objective

A modern award may include terms that it is permitted to include, and must include terms that it is required to include, only to the extent necessary to achieve the modern awards objective and (to the extent applicable) the minimum wages objective.

What is “necessary” to achieve the modern awards objective in a particular case is a value judgment, taking into account the s 134 considerations to the extent that they are relevant having regard to the context, including the circumstances pertaining to the particular modern award, the terms of any proposed variation and the submissions and evidence.[52]

In Shop, Distributive and Allied Employees Association v National Retail Association (No 2)[53] the Federal Court (Tracey J) considered what it meant for the Commission to be satisfied that making a determination varying a modern award (outside a 4 yearly review) was “necessary to achieve the modern awards objective” for the purposes of s 157(1) as follows:

“The statutory foundation for the exercise of FWA’s power to vary modern awards is to be found in s 157(1) of the Act. The power is discretionary in nature. Its exercise is conditioned upon FWA being satisfied that the variation is ‘necessary’ in order ‘to achieve the modern awards objective’. That objective is very broadly expressed: FWA must ‘provide a fair and relevant minimum safety net of terms and conditions’ which govern employment in various industries. In determining appropriate terms and conditions regard must be had to matters such as the promotion of social inclusion through increased workforce participation and the need to promote flexible working practices.
…
The question under this ground then becomes whether there was material before the Vice President upon which he could reasonably be satisfied that a variation to the Award was necessary, at the time at which it was made, in order to achieve the statutory objective.
…
In reaching my conclusion on this ground I have not overlooked the SDA’s subsidiary contention that a distinction must be drawn between that which is necessary and that which is desirable. That which is necessary must be done. That which is desirable does not carry the same imperative for action. Whilst this distinction may be accepted it must also be acknowledged that reasonable minds may differ as to whether particular action is necessary or merely desirable. It was open to the Vice President to form the opinion that a variation was necessary.”[54]

The above observation, in particular the distinction between that which is “necessary” and that which is merely “desirable” is apposite to s 138, including the observation that reasonable minds may differ as to whether a particular award term or proposed variation is necessary, as opposed to merely desirable. What is “necessary” to achieve the modern awards objective in a particular case is a value judgment, taking into account the s 134 considerations to the extent that they are relevant having regard to the context, including the circumstances pertaining to the particular modern award, the terms of any proposed variation and the submissions and evidence.[55]

In the 4 Yearly Review of Modern Awards—Penalty Rates (Hospitality and Retail Sectors) Decision[56] the Full Bench summarised the general propositions applying to the Commission’s task in the 4 yearly review, as follows:

“1. The Commission’s task in the Review is to determine whether a particular modern award achieves the modern awards objective. If a modern award is not achieving the modern awards objective then it is to be varied such that it only includes terms that are ‘necessary to achieve the modern awards objective’ (s.138). In such circumstances regard may be had to the terms of any proposed variation, but the focal point of the Commission’s consideration is upon the terms of the modern award, as varied.

2. Variations to modern awards must be justified on their merits. The extent of the merit argument required will depend on the circumstances. Some proposed changes are obvious as a matter of industrial merit and in such circumstances it is unnecessary to advance probative evidence in support of the proposed variation. Significant changes where merit is reasonably contestable should be supported by an analysis of the relevant legislative provisions and, where feasible, probative evidence.

3. In conducting the Review it is appropriate that the Commission take into account previous decisions relevant to any contested issue. For example, the Commission will proceed on the basis that prima facie the modern award being reviewed achieved the modern awards objective at the time it was made. The particular context in which those decisions were made will also need to be considered.

4. The particular context may be a cogent reason for not following a previous Full Bench decision, for example:

·the legislative context which pertained at that time may be materially different from the Fair Work Act 2009 (Cth);

·the extent to which the relevant issue was contested and, in particular, the extent of the evidence and submissions put in the previous proceeding will bear on the weight to be accorded to the previous decision; or

·the extent of the previous Full Bench’s consideration of the contested issue. The absence of detailed reasons in a previous decision may be a factor in considering the weight to be accorded to the decision.”[57]

Where an interested party applies for a variation to a modern award as part of the 4 yearly review, the proper approach to the assessment of that application was described by a Full Court of the Federal Court in CFMEU v Anglo American Metallurgical Coal Pty Ltd as follows:[58]

“[28] The terms of s 156(2)(a) require the Commission to review all modern awards every four years. That is the task upon which the Commission was engaged. The statutory task is, in this context, not limited to focusing upon any posited variation as necessary to achieve the modern awards objective, as it is under s 157(1)(a). Rather, it is a review of the modern award as a whole. The review is at large, to ensure that the modern awards objective is being met: that the award, together with the National Employment Standards, provides a fair and relevant minimum safety net of terms and conditions. This is to be achieved by s 138 – terms may and must be included only to the extent necessary to achieve such an objective.

[29] Viewing the statutory task in this way reveals that it is not necessary for the Commission to conclude that the award, or a term of it as it currently stands, does not meet the modern award objective. Rather, it is necessary for the Commission to review the award and, by reference to the matters in s 134(1) and any other consideration consistent with the purpose of the objective, come to an evaluative judgment about the objective and what terms should be included only to the extent necessary to achieve the objective of a fair and relevant minimum safety net.”

In the same decision the Full Court also said: “...the task was not to address a jurisdictional fact about the need for change, but to review the award and evaluate whether the posited terms with a variation met the objective.”[59]

We will adopt these principles in this decision.

The history of shutdown provisions

There is a long history of shutdown provisions being included in awards prior to the commencement of the FW Act. Such provisions were usually included in awards to facilitate the taking of annual leave entitlements. For example, clause 21 of the Metal Trades Award 1952[60] contained the following provision relating to annual shutdowns:

Annual Close Down

(m)Where an employer closes down his plant, or a section or sections thereof, for the purposes of allowing annual leave to all or the bulk of the employees in the plant, or section or sections concerned, the following provisions shall apply:—

(i)He may by giving not less than one month’s notice of his intention so to do stand off for the duration of the close down all employees in the plant or section or sections concerned, and allow to those who are not then qualified for two full weeks’ leave paid leave on a proportionate basis of one-sixth of a week’s leave for each completed month of continuous service.

(ii)An employee who has then qualified for two full weeks’ leave, and has also completed a further month or more of continuous service shall be allowed his leave, and shall subject to sub-clause (f) hereof also be paid one-sixth of a week’s wages in respect of each completed month of continuous service performed since the close of his last twelve-monthly qualifying period.

(iii)The next twelve-monthly qualifying period for each employee affected by such close down shall commence from the day on which the plant, or section or sections concerned is reopened for work. Provided that all time during which an employee is stood off without pay for the purposes of this sub-clause shall be deemed to be time of service in the next twelve-monthly qualifying period.

(iv)If in the first year of his service with an employer an employee is allowed proportionate annual leave under paragraph (i) hereof, and subsequently within such year lawfully leaves his employment or his employment is terminated by the employer through no fault of the employee, he shall be entitled to the benefit of sub-clause (1) of this clause subject to adjustment for any proportionate leave which he may have been allowed as aforesaid.

Three observations may be made about the above provision: first, the provision is concerned only with shutdowns for the purpose of allowing annual leave; second, insofar as an employee does not have a sufficient accrued annual leave entitlement, the employee is “stood off without pay”; and, third, the period the employee is “stood off” is deemed to be part of the employee’s service for the next twelve month qualifying period for annual leave. These three features remained in clause 7.1.12 of the Metal, Engineering and Associated Industries Award 1998[61] as it was immediately before the commencement of the FW Act.

Another example of a pre-modernisation award provision concerning shutdowns is clause 32.9 of the National Building and Construction Industry Award 2000,[62] which provided:

32.9 Annual close down

32.9.1 Notwithstanding anything contained in this award an employer giving any leave in conjunction with the Christmas - New Year holidays may, at the employer’s option, either:

32.9.1(a) stand off without pay during the period of leave any employee who has not yet qualified under 32.1 hereof, or

32.9.1(b) stand off for the period of leave any employee who has not qualified under 32.1 hereof and pay the employee (up to the period of leave then given) at a rate of one-twelfth of an ordinary week’s wages in respect of each 38 hours’ continuous service (excluding overtime).

32.9.2 Provided that where an employer at their option decides to close down their establishment at the Christmas - New Year period for the purpose of giving the whole of the annual leave due to all, or the majority of their employees then qualified for such leave, the employer shall give at least two months’ notice to their employees of their intention so to do.

The above provision has the first two of the three characteristics of the provision in the two metal industry awards identified above, but not the third. Clause 32.3 of the National Building and Construction Industry Award 2000 provided for employers to allow employees to take leave prior to their right to take leave accruing, and a formula for employees who had worked for 12 months in the industry with a number of different employers, to be paid a pro rata amount for leave based on each completed five working days of continuous service with the current employer.

A third pre-modernisation example is clause 29.11 of The Coal Mining Industry (Production and Engineering) Consolidated Award 1997,[63] which is solely concerned with the taking of annual leave during, and notice to be provided for, shutdowns:

29.11 Shutdown

29.11.1An employer who shuts down all or any part of its operation must give employees at least 28 days[’] notice of the shutdown or such shorter period as agreed between the employer and the affected employees.

29.11.2Employees directly affected by the shutdown who have annual leave credits may take all or part of those credits during the shutdown period.

29.11.3Employees directly affected by the shutdown who are not yet entitled to annual leave, may take leave during the shutdown period calculated using the formula in 29.9.

Clause 29.9 of The Coal Mining Industry (Production and Engineering) Consolidated Award 1997 provided a formula for calculating the amount of paid leave to which an employee with less than a full year’s entitlement to leave or who had not reached an anniversary of employment, was entitled. Clause 29.10 of that award also provided for an employer to allow employees to take annual leave before it was credited. Clearly, these provisions dealt with paid annual leave. The award did not provide for employees to be stood aside without pay if they did not have sufficient paid leave accrued to cover the period of the shutdown.

A minority of pre-modernisation awards containing shutdown clauses stated that such provisions were for the purpose of allowing the closedown of the employer’s business or operations during specified holiday periods or to meet the employer’s operational requirements, rather than simply to facilitate the taking of annual leave. A number of pre-modernisation awards containing shutdown clauses referred to employees taking leave without pay, rather than being “stood off” or “stood down” if they did not have sufficient accrued paid annual leave entitlements to cover the period of a shutdown.

Statutory shutdown provisions were introduced in the Workplace Relations Amendment (Work Choices) Act 2005 (Cth) (Work Choices Act), but only in connection with the taking of annual leave. The Australian Fair Pay and Conditions Standard established by the Work Choices Act gave an employer the right to direct employees to take leave during a shutdown for the whole, or part, of its business. These provisions, set out below, only applied to annual leave that was credited to employees and employees were required to take at least that amount of annual leave during a period an employer shut down a business:

92H Rules about taking annual leave

Shut downs

(5) An employee must take an amount of annual leave during a particular period if:

(a) the employee is directed to do so by the employee’s employer because, during that period, the employer shuts down the business, or any part of the business, in which the employee works; and

(b) at least that amount of annual leave is credited to the employee.[64]

As a result of amendments made to the Workplace Relations Act 1996 subsequent to the Work Choices Act, the then-Australian Industrial Relations Commission (AIRC) was required to conduct an award modernisation process and, in the course of this process, the AIRC Full Bench gave consideration to existing annual leave provisions relating to shutdowns. In a decision issued on 19 December 2008,[65] the Full Bench considered annual leave generally and said:

“[95]As we noted in our statement of 12 September 2008, it has not been possible to develop a single model clause for annual leave. While some parties have sought greater uniformity in the area, there is a wide range of differing provisions in the awards and NAPSAs that we are dealing with. In many cases the provisions are more generous to employees than the provisions of the NES. Areas in which this can be observed are the quantum of holiday pay, leave loading and the definition of shift worker. In considering what should be included in the modern award on each of these matters we have attempted to identify or formulate a standard entitlement in the area covered by the modern award rather than preserving a range of differing entitlements. This involves a degree of rationalisation at the award level only and will not result in standard provisions across all awards.”

As part of this consideration, the Full Bench said in relation to shutdowns:

“[97] The provisions in awards and NAPSAs governing annual close-downs vary significantly. It is preferable that we do not alter provisions which have been specifically developed for particular industries. We have adopted the approach of attempting to identify an industry standard in each case. This means there may be some variation in the close-down provisions.”

Notwithstanding the above statement, shutdown provisions in the modern awards created during the award modernisation process did change in a relevantly significant respect in particular industries compared to the predecessor awards. References in the pre-existing clauses to employees being stood down or stood off during annual closedowns where they did not have sufficient annual leave accrued were in most cases removed and replaced with references to the employee taking unpaid leave. This can be seen, for example, in clause 34.7(c) of the Manufacturing and Associated Industries and Occupations Award 2020 (Manufacturing Award)[66] and clause 31.3(a) of the Building and Construction General On-Site Award 2020 (Building Award).[67] In the former case, the provision that the period of the shutdown counts as service was retained.[68] However, there are some cases where (presumably due to an oversight), reference to employees being stood down or stood off remains – for example, clause 25.8(d) of the Meat Industry Award 2020 (Meat Award) and clause 24.6(a)(iv) of the Mobile Crane Hiring Award 2020 (Mobile Crane Award).

These alterations appear to have been made because, while s 139(1)(h) of the FW Act authorises the Commission to include in modern awards terms about leave and arrangements for taking leave, the FW Act does not authorise award terms about the stand down of employees – a matter to which we will return later in this decision. It is also notable that clause 31.3 of the Building Award limits the operation of annual close down provisions to the Christmas/New Year holidays, thereby limiting the ability for an employer to direct an employee to take unpaid leave. Further, clause 31.4 of the Building Award provides for annual leave to be taken in advance by agreement and sets out mutual rights and obligations in this regard. In contrast, the Clerks—Private Sector Award 2020 simply provides that an employer could require an employee to take annual leave as part of a close-down of its operations, by giving at least 4 weeks’ notice, and makes no reference to a direction being given for employees to take unpaid leave.[69]

Submissions

4.1 Submissions on whether all modern awards that currently contain shutdown provisions should be varied to include the model term

The following parties filed general submissions regarding insertion of the model term in all modern awards that currently contain a shutdown provision[70] (listed at Attachment A to this decision):

· ABI;
· Ai Group;
· AMIEU;
· CFMMEU – C&G;
· CFMMEU – MD; and
· United Voice (as it then was, now UWU).

ABI

ABI opposes the insertion of the model term in the awards that currently contain shutdown provisions and invites the Commission to conclude:

·shutdown provisions have been common in the industrial relations sphere for a significant period of time;

·the existing shutdown provisions are based on broad industrial standards that applied in various industries prior to 2009;

·when awards were modernised in 2010 and the current awards created, the shutdown provisions in each of the awards satisfied the modern awards objective; and

·the current shutdown provisions are regularly used by businesses.

ABI submits that substantive changes should only be made to the existing shutdown provisions where there is a cogent basis to do so, as expressed by the Full Bench in the June 2015 decision.[71] It contends that the model term differs from the existing shutdown provisions in material respects:

(1)None of the existing shutdown provisions require an employer’s direction to an employee pursuant to a shutdown to be “reasonable”, whereas the model term does – which amounts to a substantive change.

(2)The model term allows an employee to elect to take unpaid leave during a shutdown even if they have paid annual leave accrued. This would increase the regulatory burden on employers by removing a legitimate way that they are able to reduce the liabilities associated with accrued annual leave.

(3)The model term requires employers to implement new procedures that are not simple or easy to implement.

(4)Currently, 14 awards do not require employers to give a minimum notice period before implementing a shutdown. The model term does contain that requirement and therefore this is a substantive change. ABI does not object to the inclusion of a minimum notice period in the model term provided it remains at 28 days.

(5)Currently, 55 awards do not require employers to give a written direction to employees prior to implementing a shutdown. The model term contains this requirement, which amounts to a substantive change. However ABI does not oppose the model term being inserted subject to the minimum notice period remaining at 28 days.

(6)Currently, 52 awards allow employers to direct employees take a period of unpaid leave during a shutdown period, which is an essential clause because it gives employers the ability to actually shut down their business. ABI submits that if this ability were removed, it would result in practical and financial difficulties for employers. This part of the model term is inconsistent with that part of the modern awards objective in ss 134(1)(f) and (g) of the FW Act.

Should we be minded to insert the model term, ABI submits that it should be amended in two respects. First, ABI submits that the provisions that enable an employee to elect to take a period of unpaid leave should be removed or varied so that employees cannot choose to take unpaid leave instead of accrued annual leave, or if a period of election is given, it should be limited to seven days. Following those seven days, employers should be able to direct an employee take accrued leave where no election has occurred. Second, ABI submits that existing provisions in awards which give employers the ability to direct employees to take unpaid leave should be retained.

Ai Group

The Ai Group opposes the variation of those awards in which it has an interest to insert the model term. It submits the model term would reduce or remove the ability of employers to direct an employee to take paid or unpaid leave during a shutdown, undermine employers’ ability to implement a shutdown and/or the benefits associated with it, and the model term would impose practical and administrative burdens on employers.

Ai Group proposes an alternative model term, which is set out below (proposed changes marked up):

“XX.XX Shutdown

(a)Clause XX.XX applies if an employer intends to shutdown all or part of its operation for a particular period (temporary shutdown period) and wishes to require affected employees to take leave during that period.

(b)The employer must give the affected employees 28 days’ written notice of a temporary shutdown period, or any shorter period agreed between them and the employer.

(c)The employer must give written notice of a temporary shutdown period to any employee who is engaged after the notice is given under paragraph (b) and who will be affected by that period, as soon as reasonable practicable after the employee is engaged.

(d)The following applies to any affected employee during a temporary shutdown period:

(i)the employer may direct the employee to take a period of paid annual leave to which the employee has accrued an entitlement.

(ii)~~(i)~~ subject to the agreement of the employer, the employee may elect to cover the temporary shutdown period by doing one, or a combination of 2 or more, of the following:

·taking paid annual leave if the employee has accrued an entitlement to such leave;

·taking leave without pay;
·taking annual leave in advance in accordance with an agreement under clause XX.XX;

(iii)~~(ii)~~ if the employee does not make an election under subparagraph (i) that covers the whole of the temporary shutdown period, and the employee does not have sufficient accrued entitlement to paid annual leave to cover the entire duration of the temporary shutdown (or it would not be reasonable to direct the employee to take such leave), ~~then~~ the employer may direct the employee to take a period of ~~paid annual leave to which the employee has accrued an entitlement~~ leave without pay that is necessary to cover the period of the shutdown that would not otherwise be covered by their taking of paid annual leave.

(e)A direction by the employer under clause XX.XX(d)(ii):

(i)must be in writing; and

(ii)must be reasonable.

(f)The employee must take paid annual leave or unpaid leave in accordance with a direction under clause XX.XX(d)(ii).

(g)In determining the amount of paid annual leave to which an employee has accrued an entitlement, any period of paid annual leave taken in advance by the employee, in accordance with an agreement under clause XX.XX, to which an entitlement has not been accrued is to be taken into account.

(h)If a temporary shutdown period includes a day or part-day that is a public holiday and would have been a working day for the employee had the employee not been on leave in accordance with clause XX.XX, the employee is taken not to be on leave on that day or part-day.

(i)Clauses XX.XX to XX.XX do not apply to a period of annual leave that an employee is required to take during a temporary shutdown period in accordance with clause XX.XX.”

The Ai Group submits that many of the current shutdown provisions in the awards at Attachment A are drafted in a way that imply they will be used only to enable a “significant proportion” of a business’ employees to take annual leave. The right to direct employees to take annual leave during a shutdown is “essential” for employers, to allow them to reduce leave liability and manage employee absences, especially in operations which require large amounts of employees to attend to ensure efficient or productive performance of work. The Ai Group submits that awards currently providing for a shutdown period “for the purposes of allowing leave to employees” should not be varied in such a way that removes this employer right.

The Ai Group also submits that the model term does not give an employer the right to direct an employee to take unpaid leave during a shutdown period, which is not consistent with the current shutdown provisions in many awards. This would undermine the benefit of a shutdown and is a “major deficiency”. Where an award does not give an employer this right, the employer may be forced to pay full-time or part-time employees who did not have enough leave accrued for the entire shutdown period. The Ai Group submits this may expose employers to additional costs. The Ai Group submits that the model term should be amended to give employers this right, or the model term should not be inserted into any award that currently provides this right.

The Ai Group submits that the model term only gives an employer the right to direct an employee to take annual leave after the employee has been afforded the opportunity to elect to take other types of leave (paid annual leave, leave without pay and annual leave in advance). The Ai Group submits that this is a substantive change and would overturn the standard practice in many industries. The Ai Group also submits that, in the majority of circumstances, it is likely that employees would prefer to take paid leave rather than unpaid leave. The Ai Group contends that many existing awards do not impose this election requirement on employers and if adopted, the requirement would impose a substantial and significant administrative burden on employers. The Ai Group submits that this change would involve developing a system for obtaining and processing employee preferences which is particularly burdensome for large or geographically diverse employers.

The Ai Group submits that the model term should be amended to give employers the ability to make a direction to its workforce to take annual or unpaid leave for all or part of a shutdown period. This direction should not be subject to employee choice to take unpaid leave in circumstances where they have paid annual leave accrued. The Ai Group acknowledges that this direction should be subject to mechanisms that ensure the direction is reasonable. The Ai Group also accepts that the requirement a direction be reasonable negates the need for additional complex rules relating to shutdowns and aligns with s 93(3) of the FW Act which provides:

“(3) A modern award or enterprise agreement may include terms requiring an employee, or allowing for an employee to be required, to take paid annual leave in particular circumstances, but only if the requirement is reasonable.”

The Ai Group submits that the model term does not impose a timeframe within which an employee can make an election to take paid annual leave, leave without pay and annual leave in advance during a shutdown. The Ai Group contends that this would cause a delay for an employer in implementing a shutdown and create uncertainty as to when a direction under subclause (e) can be made. The Ai Group submits that if the Commission decides to adopt the part of the model term that gives employees the opportunity to elect the type of leave they take during a shutdown, the term should be amended to include a time limit on the making of that election.

AMIEU

The AMIEU submits that where shutdown provisions contain provisions that are tailored to an industry or go beyond the model term, they should be retained.

CFMMEU – C&G

The CFMMEU – C&G opposes the insertion of the model term into awards currently containing shutdown provisions, for the following reasons:

(1)The existing shutdown provisions are tailored to the ways various industries operate and provide better entitlements than the model clause. For example, the Building Award and the Joinery and Building Trades Award 2020 (Joinery Award) both limit the operation of the shutdown provision to the Christmas-New Year period and require greater notice periods from the employer (e.g. 2 months’ notice) of any such close down.

(2)The shutdown provisions have been in force for many years and are well understood by the parties, and should not be altered without evidence or substantive reasoning.

CFMMEU – MD

The CFMMEU – MD opposes the model term being inserted in the awards that currently contain annual leave shutdown provisions. The CFMMEU– MD submits that existing shutdown provisions have historically been developed to address particular patterns of work or production and reflect industry practice, and each provision needs to be considered in context of other annual leave terms within a specific award.

The CFMMEU – MD submits that the existing provisions often contain more beneficial terms than those in the model term and that as a general principle, the plain language re-drafting process is not intended to alter existing substantive provisions.

UWU

The UWU opposes the insertion of the model term in the awards that currently contain shutdown provisions. It submits that a term that allows an employer to direct an employee to take unpaid leave as part of a shutdown may not be permitted under the FW Act.

The UWU submits that, in the alternative, if the Commission determines that such a term is permitted, the model term does not contain a number of employee protections that are currently provided for in a number of modern awards. It refers to clause 21.4(c) of the Cleaning Services Award 2020, which limits a shutdown period to 4 weeks and clause 21.4(f) which provides that an employee may be redeployed to another site for the shutdown period, clause 24.4(b) of the Children’s Award which limits a shutdown period to 4 weeks over “Christmas vacation”; and clauses 25.11(d) and (e) of the Food, Beverage and Tobacco Manufacturing Award 2020 (FBTM Award) which restricts the number of shutdowns to one or two separate periods per year and provides that “any leave taken” as a result of a shutdown counts as service.

The UWU submits that subclause (h) of the proposed model term should be re-drafted to expressly provide that the employee would be taken to be on paid public holiday leave on any day or part-day that is a public holiday during the shutdown period as follows (proposed changes marked up):

“(h) If a temporary shutdown period includes a day or part-day that is a public holiday and would have been a working day for the employee had the employee not been on leave in accordance with clause XX.XX, the employee ~~is taken not to be on leave on that day or part-day.~~ will be paid as provided for in this award and the employee is taken not to be on annual leave or leave without pay on that day or part-day.”

Reply Submissions

CFMMEU – C&G

CFMMEU – C&G submits there is “a consensus of opinion” amongst employer parties that the model term should not be inserted in the awards with existing shutdown provisions and notes this is consistent with its own submissions.

Ai Group

In response to union submissions contending existing provisions that are beneficial to employees should be retained, the Ai Group submits that “cherry picking” in this way detracts from the benefits of a model term and would be unfair to employers. It contends that a number of union parties have proposed to retain a number of entitlements that are not currently provided in existing awards.

4.2 Submissions on whether any award-specific variations should be made

We now turn to the award-specific submissions.

(a) AWU

The AWU has an interest in a large number of awards.[72] It does not oppose the variation of those awards to incorporate the model term, but submits that award-specific variations should be made to the model term to account for clauses in modern awards that currently contain express limitations on when shutdown provisions can be applied. AWU submits the awards that appear to fall into this category are:

· Airline Operations–Ground Staff Award 2020
· Asphalt Industry Award 2020
· FBTM Award
· Gardening and Landscaping Services Award 2020
· Manufacturing Award
· Pharmaceutical Industry Award 2020
· Plumbing and Fire Sprinklers Award 2020
· Seafood Processing Award 2020 (Seafood Award)
· Timber Industry Award 2020 (Timber Award)
· Vehicle Repair, Services and Retail Award 2020
· Wine Industry Award 2020

(b) AMWU

The AMWU does not oppose variation of the awards set out at Attachment A to incorporate the model term, provided “existing safeguards” in those awards are maintained. The AMWU submits that those safeguards are provisions for longer notice periods than those in the model term and provisions stating that leave taken by an employee during a shutdown counts as service, as contained in the following awards:

·Airline Operations-Ground Staff Award 2020
·Building Award
·FBTM Award
·Graphic Arts, Printing and Publishing Award 2020
·Manufacturing Award
·Oil Refining and Manufacturing Award 2020
·Seafood Award
·Sugar Industry Award 2020
·Vehicle Repair, Services and Retail Award 2020

The Ai Group submits that under clause 27.11(a) of the Seafood Processing Award 2010[73] an employer may close down an enterprise or part of an enterprise for the purposes of allowing annual leave to all or the majority of employees, if 4 weeks’ notice is given. It disagrees with the AMWU’s submission that one month’s notice is required and it seeks to retain the 4 weeks’ notice provision.

(d) CFMMEU – MD

The CFMMEU – MD states that it has an interest in the Joinery Award, the Manufacturing Award, the Timber Award, and the Textile, Clothing, Footwear and Associated Industries Award 2020 (Textile Award).

The CFMMEU – MD opposes the model term being inserted in the Joinery, Manufacturing, Timber and Textile Awards. The basis of the objection is:

(1)The current provisions reflect the practices developed in each industry and address particular patterns of work;

(2)The current provisions must be considered in the context of other annual leave provisions within an award;

(3)The current provisions contain more beneficial provisions than the model term; and

(4)The plain language re-drafting process is not intended to make substantive changes to existing award entitlements.

The CFMMEU – MD submits that the shutdown provisions in each of these awards contain more beneficial provisions than the model term. Using the Textile Award[74] as an example, it identifies the following differences:

(1)the award requires an employer to give at least three months’ notice of its intention to shut down (compared to 28 days’ notice under the model term);

(2)the award requires all or a bulk of employees of a plant or section be subject to the shutdown (compared to “a part” under the model term);

(3)the award restricts the amount of leave that can be taken pursuant to a shutdown period to one year of NES accrual;

(4)the interaction of clauses 41.3 and 41.7[75] of the award means an employer may implement a shutdown but there are restrictions on the maximum length and number of periods of annual leave, which means employers cannot use shutdown provisions in a manner that is unfair to employees;

(5)the award provides that unpaid leave taken during a shutdown period counts as continuous service, whereas the model term is silent on the issue of continuity of service.

The CFMMEU – MD submits that the Manufacturing Award and the Timber Award also contain more beneficial provisions, being the purpose of a shutdown, service, a restriction on the number of shutdowns that may be implemented within a 12 month period, minimum shutdown periods, and facilitative provisions that allow for the shutdown provisions to be varied by agreement. In relation to the Joinery Award, the CFMMEU – MD supports and adopts the submissions of the CFMMEU – C&G.

(e) MBA

The MBA states that it has an interest in the Building Award and the Joinery Award. MBA opposes the inclusion of the model term in these awards. The basis of MBA’s opposition is:

(1)It has had no feedback that its members do not understand the existing shutdown provisions or that the provisions are working inefficiently; and

(2)The Commission has no material before it which requires the inclusion of the model term in these awards.

(f) HIA

The HIA states that it has an interest in the Building Award and the Joinery Award and opposes the inclusion of the model term in those awards. It submits that no party has expressed the need for change in the shutdown provisions and that the provisions are well understood, meaning there is no need to insert the model term.

(g) CEPU

The CEPU states that it has an interest in the Electrical Power Industry Award 2020 (the Electrical Power Award) and the Electrical, Electronic and Communications Contracting Award 2020 (the Electrical Contracting Award). The CEPU supports the following submissions:

(1)CFMMEU – M&E submissions dated 22 March 2019;

(2)AWU submissions dated 25 March 2019; and

(3)AMWU submissions dated 27 March 2019.

The CEPU does not oppose the model clause being included in the Electrical Power Award because, currently, it does not make sufficient provision for shutdown.

The CEPU does oppose the model clause being inserted into the Electrical Contracting Award. The CEPU states that the model clause would leave those covered by the award worse off than the current shutdown provision. The basis of the CEPU’s objection is the model clause has:

·a shorter notice period of 28 days’ written notice by the employer;

·a broad spectrum when the shutdown can occur (i.e. not specific to Christmas-New Year Period);

·no provision for identifying that unpaid leave taken during shut down does not break service of an employee; and

·no definition of a shutdown to cap the duration of shutdown period.

(h) FAAA

The FAAA has an interest in the Aircraft Cabin Crew Award 2020.

The FAAA does not agree that the model term should be included in modern awards with shutdown provisions and submits that award-reliant employees will be at a disadvantage in terms of bargaining power and thus be exploited by an employer into having no choice but to take leave without pay.

The FAAA submits this amounts to “standing down an employee” which is not permitted by s 139 of the FW Act and adopts the position of the AMWU (in the AMWU’s submissions of 11 April 2017 and 3 October 2017) on the relationship between a term allowing an employer to “direct unpaid leave” and a term “directing stand down”.

The FAAA also places emphasis on the need for “bargaining position” to be considered when providing options for an agreement between employer and employee.

If the Commission determines that the model term should be included, the FAAA highlights a flaw in subclause (d)(i) of the model term. It submits that the model clause is unclear as to what would happen if an employee refuses to elect any option available for the shutdown period. A scenario whereby the employee wishes to work but the employer refuses to allow this could arise. The FAAA submits this may lead to tension between employee and employer and the employee seeking an underpayment order to resolve the issue, which is unfair on the employee.

The FAAA submits the model term should be amended to allow the employee to attend work and be paid during the shutdown period, or if the employer is unable to provide work, the employee be paid the ordinary rate.

CPSU

The CPSU does not oppose variation of the Broadcasting, Recorded Entertainment and Cinemas Award 2020, the Contract Call Centres Award 2020, the Miscellaneous Award 2020 and the Telecommunications Services Award 2020 to incorporate the model term, subject to the retention of any current provisions that are more beneficial than the model term and that are tailored to a particular industry. It supports the submissions of the CFMMEU – M&E.

(j) CFMMEU – M&E

The CFMMEU – M&E supports the variation of the Mining Industry Award 2020 (Mining Award) and the Coal Export Terminals Award 2020 (Coal Export Award) to insert the model term.

(k) AHA

The AHA has an interest in the Hospitality Industry (General) Award 2020 (the Hospitality Award) and does not oppose the model term being inserted in awards containing annual leave shutdown provisions, including the Hospitality Award. The AHA submits:

(1)Sub-paragraph (i) refers to “directions to take excessive leave in accordance with clause 34.7[76] of the Hospitality Award.”

(2)Section 22 of the FW Act clearly defines the meaning of service and continuous service and it is evident “that unpaid leave, whether taken at the request of the employee or as a result of a close-down at the initiative of the employer, does not count as service.”

(l) AMIEU

The AMIEU submits the model term would address a number of issues with the shutdown provisions in the Meat Award but it requires amendments to retain the particular conditions of the current clause. Clause 25.8 of the Meat Award provides for shutdowns and is set out as follows:[77]

“25.8 Annual close-down

(a)Where an employer closes down a plant or a section of a plant for the purpose of allowing annual leave to all or the bulk of the employees in the plant or sections concerned, the employer should, where possible, give the employees concerned not less than three months’ notice of the employer’s intention to stand down for the duration of the close-down all employees in the plant or sections concerned.

In the situation where an employer decides to shutdown a business for two weeks or so over the Christmas period to allow for rest and recreation and where supplies to their business might be limited due to other businesses engaging in a shutdown, employees who have recently joined the business and who do not have sufficient annual leave accrual should be directed to either take a limited amount of annual leave in advance or take leave without pay.

Section 134 of the Act describes the modern award objective. It includes the following:

“(1) The FWC must ensure that modern awards, together with the National Employment Standards, provide a fair and relevant minimum safety net of terms and conditions, taking into account:
…..
…..
(f) the likely impact of any exercise of modern award powers on business, including on productivity, employment costs and the regulatory burden; and

……
……”

In my view, if the Majority Decision provisional term is ultimately adopted and inserted into modern awards, the effect will be that employees without a sufficient annual leave accrual during a shutdown will, if they elect against taking annual leave in advance or leave without pay, be paid wages by the employer. For modern awards where an employer has been permitted to require an employee to take unpaid leave, the proposed change, if adopted, is a direct cost to the employer not earlier experienced.

Employees with longer service and a leave accrual to cover the whole period of the shutdown might be understandably disturbed to learn that a new employee without sufficient leave to cover the period is entitled to wages paid by the employer. For the same absence, longer-serving employees who might have requested annual leave at other times in the year and been refused on account of requiring leave to cover an expected shutdown period, will need to fund that shutdown period from their accrued leave, while new employees are paid wages by the employer.

It is not uncommon in the building industry, for example, for a shutdown to occur for two-to-three weeks over late December/early January. Outside of public holidays, the working days required to fund the whole shutdown period might be up to say, 10 days. A new employee might only have around five days’ annual leave accrual at the commencement of the shutdown period. In my view, the employer should not be required to pay the new employee wages for the balance of the shutdown period for which they do not have accrued leave.

Further, if employees throughout a year understand that if they do not have enough accrued leave to cover all of the shutdown period, and if they elect against taking annual leave in advance or unpaid leave, they will become entitled to wages in any event, it is possible employees may request annual leave at greater frequency and increased days at other times of the year. If a request for annual leave is refused by an employer on account of requiring the employee to have sufficient leave accrual to cover a proposed shutdown, disputation is more likely.

For all of these reasons, respectfully I am not in agreement with the Majority Decision provisional term because I do not consider appropriate regard has been had for s 134(f) of the Act and the potential impact this may have on employers for not only new employees without sufficient leave accrual, but for existing employees who might wish to utilise their leave more freely throughout the year, and put into dispute where leave requests are refused by the employer.

If the Majority Decision provisional term is ultimately inserted into modern awards, such term will then be used to determine the better off overall test (BOOT) when employers and employees make an enterprise agreement and require approval of the Commission to approve the enterprise agreement. If, at an enterprise level employees may be directed to take unpaid leave if they do not have sufficient leave accrual during a shutdown, or they are directed to take annual leave in advance, this will then be examined by the Commission against an award without such provisions. There is risk that such a term in an enterprise agreement may not satisfy the BOOT.

While I am satisfied that there is no prohibition within the Act, permitting an employer to require an employee to take leave without pay for a period within a shutdown for which they do not have sufficient leave accrued, I consider that the bulk of the impact with respect to a new employee’s employment can be mitigated by requiring the new employee to take up to one week of paid annual leave in advance. The requirement must, of course, be reasonable, as required by s 93(3) of the Act.

My provisional view is that the proposed model clause be modified so that, in an award which requires no adaptation, it will provide as follows:

“XX.XX Direction to take annual leave during shutdown

(a) Clause XX.XX applies if an employer:

(i) intends to shut down all or part of its operation for a particular period (temporary shutdown period); and

(ii) wishes to require affected employees to take paid annual leave during that period.

(b) The employer must give the affected employees 28 days’ written notice of a temporary shutdown period, or any shorter period agreed between them and the employer.

(c) The employer must give written notice of a temporary shutdown period to any employee who is engaged after the notice is given under clause XX.XX(b) and who will be affected by that period, as soon as reasonably practicable after the employee is engaged.

(d) The following applies to any affected employee during a temporary shutdown period:

(i)The employee may elect to cover the temporary shutdown period by taking paid annual leave if the employee has accrued an entitlement to such leave.
(ii)If the employee does not have sufficient accrued annual leave to cover part or all of the temporary shutdown period, the employee may elect to cover the shortfall by:
·taking leave without pay;
·taking annual leave in advance in accordance with an agreement under clause XX.XX;

(ii) if the employee does not make an election under clause XX.XX(d)(i) and (ii) that covers the whole of the temporary shutdown period, then the employer may direct the employee to take a period of paid annual leave to which the employee has accrued an entitlement.

(e) A direction by the employer under clause XX.XX(d):

(i) must be in writing; and

(ii) must be reasonable.

(f) The employee must take paid annual leave in accordance with a direction under clause XX.XX(d).

(g) An employee in their first twelve months of service (calculated on the first day of the temporary shutdown period) who has not accrued an entitlement to cover all of the temporary shutdown period may be directed by the employer to take annual leave in advance up to a maximum of one week. Such direction by the employer:

(i) must be in writing; and

(ii) must be reasonable.

(h) The employee must take paid annual leave in advance in accordance with a direction under clause XX.XX(g).

(i) In determining the amount of paid annual leave to which an employee has accrued an entitlement, any period of paid annual leave taken in advance by the employee, in accordance with an agreement under clause XX.XX, to which an entitlement has not been accrued, is to be taken into account.”

In my view, the effect of inserting subclauses (g) and (h) will result in employers having confidence to employ new employees in the months leading up to a proposed shutdown. Without a provision as proposed, employers may baulk at employing new employees, weighing up how they will pay for the period of time when they do not require the new employee to attend for work, at the same time as they are likely to be experiencing an impact to the business on account of the shutdown.

To conclude, I am satisfied there is power to insert the terms proposed by me and having regard to the likely impact on business, including on productivity and employment costs, it is appropriate to do so. I would seek the views of the parties as proposed by the majority.

With respect to the UWU’s claim to vary the Children’s Services Award 2010, for the same reasons above I propose the model term at [223] above.

VICE PRESIDENT

Attachment A

Aboriginal and Torres Strait Islander Health Workers and Practitioners and Aboriginal Community Controlled Health Services Award 2020 (clause 22.3)
Aircraft Cabin Crew Award 2020 (clause 19.4)
Airline Operations–Ground Staff Award 2020 (clause 22.6)
Alpine Resorts Award 2020 (clause 25.3)
Aluminium Industry Award 2020 (clause 22.4)
Ambulance and Patient Transport Industry Award 2020 (clause 22.7)
Animal Care and Veterinary Services Award 2020 (clause 22.5)
Aquaculture Industry Award 2020 (clause 22.9)
Asphalt Industry Award 2020 (clause 21.8)
Banking, Finance and Insurance Award 2020 (clause 22.5)
Black Coal Mining Industry Award 2020 (clause 24.9)
Broadcasting and Recorded Entertainment Award 2020 (clause 18.6)
Building and Construction General On-site Award 2020 (clause 31.3)
Business Equipment Award 2020 (clause 23.5)
Car Parking Award 2020 (clause 24.6)
Cemetery Industry Award 2020 (clause 19.3)
Cement, Lime and Quarrying Award 2020 (clause 22.8)
Cleaning Services Award 2020 (clause 21.4)
Clerks—Private Sector Award 2020 (clause 32.5)
Coal Export Terminals Award 2020 (clause 20.7)
Commercial Sales Award 2020 (clause 20.6)
Concrete Products Award 2020 (clause 22.6)
Contract Call Centres Award 2020 (clause 22.10)
Educational Services (Post-Secondary Education) Award 2020 (clause 22.5)
Electrical Power Industry Award 2020 (clause 21.8)
Electrical, Electronic and Communications Contracting Award 2020 (clause 21.5)
Fitness Industry Award 2020 (clause 21.3)
Food, Beverage and Tobacco Manufacturing Award 2020 (clause 25.11)
Gardening and Landscaping Services Award 2020 (clause 20.9)
Gas Industry Award 2020 (clause 20.7)
General Retail Industry Award 2020 (clause 28.4)
Graphic Arts, Printing and Publishing Award 2020 (clause 31.12)
Hair and Beauty Industry Award 2020 (clause 24.3)
Health Professionals and Support Services Award 2020 (clause 26.5)
Higher Education Industry—General Staff—Award 2020 (clause 24.4)
Horse and Greyhound Training Award 2020 (clause 18.6)
Hospitality Industry (General) Award 2020 (clause 30.4)
Hydrocarbons Industry (Upstream) Award 2020 (clause 25.7)
Joinery and Building Trades Award 2020 (clause 27.9)
Journalists Published Media Award 2020 (clause 20.8)
Legal Services Award 2020 (clause 22.7)
Local Government Industry Award 2020 (clause 23.5)
Manufacturing and Associated Industries and Occupations Award 2020 (clause 34.7)
Meat Industry Award 2020 (clause 25.8)
Mining Industry Award 2020 (clause 22.7)
Mobile Crane Hiring Award 2020 (clause 24.6)
Miscellaneous Award 2020 (clause 21.4)
Nursery Award 2020 (clause 22.12)
Nurses Award 2020 (clause 22.7)
Oil Refining and Manufacturing Award 2020 (clause 24.6)
Pest Control Industry Award 2020 (clause 23.9)
Pharmaceutical Industry Award 2020 (clause 21.5)
Plumbing and Fire Sprinklers Award 2020 (clause 24.4)
Poultry Processing Award 2020 (clause 21.5)
Premixed Concrete Award 2020 (clause 22.8)
Professional Employees Award 2020 (clause 18.4)
Racing Clubs Events Award 2020 (clause 23.5)
Racing Industry Ground Maintenance Award 2020 (clause 21.5)
Real Estate Industry Award 2020 (clause 20.5(a))
Registered and Licensed Clubs Award 2020 (clause 25.4)
Restaurant Industry Award 2020 (clause 25.4)
Road Transport (Long Distance Operations) Award 2020 (clause 20.4)
Road Transport and Distribution Award 2020 (clause 24.9)
Salt Industry Award 2020 (clause 23.10)
Seafood Processing Award 2020 (clause 21.11)
Security Services Industry Award 2020 (clause 21.4)
Silviculture Award 2020 (clause 22.5)
Storage Services and Wholesale Award 2020 (clause 24.5)
Sugar Industry Award 2020 (clause 31.5)
Supported Employment Services Award 2020 (clause 32.3)
Surveying Award 2020 (clause 22.7)
Telecommunications Services Award 2020 (clause 22.9)
Textile, Clothing, Footwear and Associated Industries Award 2020 (clause 32.6)
Timber Industry Award 2020 (clause 28.10)
Vehicle Repair, Services and Retail Award 2020 (clause 29.6)
Water Industry Award 2020 (clause 22.4)
Wine Industry Award 2020 (clause 24.9)
Wool Storage, Sampling and Testing Award 2020 (clause 23.5)

[1] [2015] FWCFB 3406

[2] [2015] FWCFB 5771

[3] [2015] FWCFB 3406 at [336]

[4] Ibid at [370]-[381]

[5] Ibid at [382]

[6] [2016] FWCFB 6836

[7] Ibid at [83]

[8] Ibid

[9] Ibid at [84]

[10] Ibid at [85]-[86]; draft variation determination

[11] [2017] FWCFB 959 at [13]

[12] Ibid

[13] Ibid at [29]-[33]

[14] [2017] FWC 2662

[15] [2017] FWCFB 5394

[16] Ibid at [29]

[17] Ibid at [32]; we note that the reference in the decision to s 139(1)(b) is a typographical error.

[18] Ibid at [33]-[62]

[19] Ibid at [76]; PR597595

[20] [2017] FWC 5861

[21] [2019] FWCFB 1255

[22] Submission, ABI & NSWBC, 1 April 2019

[23] Submission, AMWU, 27 March 2019

[24] Submission, AHA, 22 March 2019

[25] Submission, AWU, 25 March 2019

[26] Submission, Ai Group, 22 March 2019

[27] Submission, AMIEU, 22 March 2019

[28] Submission, CFMMEU – M&E, 22 March 2019

[29] Submission, CFMMEU – MD, 8 April 2019

[30] Submission, CFMMEU – C&G, 2 April 2019

[31] Submission, CEPU, 28 March 2019

[32] Submission, CPSU, 29 March 2019

[33] Submission, FAAA, 3 May 2019

[34] Submission, HIA, 22 March 2019

[35] Submission, MBA, 22 March 2019

[36] Submission, United Voice, 4 April 2019

[37] Submission in Reply, Ai Group, 18 April 2019

[38] Submission in Reply, AMIEU, 17 May 2019

[39] Submission in Reply, CFMMEU – C&G, 17 April 2019

[40] Fair Work Bill 2008: Explanatory Memorandum at [381]-[382]

[41] Shop, Distributive and Allied Employees Association v The Australian Industry Group [2017] FCAFC 161, 253 FCR 401 at [38]

[42] O’Sullivan v Farrer (1989) 168 CLR 210 at [216] per Mason CJ, Brennan, Dawson and Gaudron JJ

[43] Shop, Distributive and Allied Employees Association v National Retail Association (No 2) [2012] FCA 480, 205 FCR 227 at [35]

[44] 4 Yearly Review of Modern Awards—Penalty Rates (Hospitality and Retail Sectors) Decision [2017] FWCFB 1001, 256 IR 1 at [128]; Shop, Distributive and Allied Employees Association v The Australian Industry Group [2017] FCAFC 161, 253 FCR 401 at [41]-[44]

[45] [2018] FWCFB 3500 at [21]-[24]

[46] Edwards v Giudice (1999) 94 FCR 561 at [5]; Australian Competition and Consumer Commission v Leelee Pty Ltd [1999] FCA 1121 at [81]-[84]; National Retail Association v Fair Work Commission (2014) 225 FCR 154 at [56]

[47] Shop, Distributive and Allied Employees Association v The Australian Industry Group [2017] FCAFC 161, 253 FCR 401 at [33]

[48] National Retail Association v Fair Work Commission (2014) 225 FCR 154 at [105]-[106]

[49] Ibid at [109]-[110]; though the Court was considering a different statutory context, this observation is applicable to the Commission’s task in the Review.

[50] [2017] FCAFC 161, 253 FCR 401 at [161]

[51] Ibid at [48]

[52] See generally: Shop, Distributive and Allied Employees Association v National Retail Association (No 2) [2012] FCA 480, 205 FCR 227

[53] Ibid

[54] Ibid at [35]-[37] and [46]

[55] Ibid

[56] [2017] FWCFB 1001, 256 IR 1 at [269]

[57] Ibid at [269]

[58] CFMEU v Anglo American Metallurgical Coal Pty Ltd [2017] FCAFC 123, 252 FCR 337

[59] Ibid at [46]

[60] [1952] CthArbRp 11, 73 CAR 324 at 446

[61] AP789529CRV

[62] AP790741CRV

[63] AP774609

[64] Workplace Relations Act 1996 (Cth) s 236(5)

[65] [2008] AIRCFB 1000

[66] Previously clause 41.8(c) of the Manufacturing and Associated Industries and Occupations Award 2010

[67] Previously clause 38.3(a) of the Building and Construction General On-Site Award 2010

[68] Previously clause 41.8(d), now clause 34.7(d)

[69] Clerks—Private Sector Award 2020 clause 32.5

[70] Other than the Black Coal Mining Industry Award 2020

[71] [2015] FWCFB 3406 at [382]

[72] Airline Operations–Ground Staff Award 2020, Alpine Resorts Award 2020, Aluminium Industry Award 2020, Aquaculture Industry Award 2020, Asphalt Industry Award 2020, Building and Construction General On-site Award 2020, Cemetery Industry Award 2020, Cement, Lime and Quarrying Award 2020, Cleaning Services Award 2020, Concrete Products Award 2020, Electrical Power Industry Award 2020, Food, Beverage and Tobacco Manufacturing Award 2020, Gardening and Landscaping Services Award 2020, Gas Industry Award 2020, General Retail Industry Award 2020, Hair and Beauty Industry Award 2010, Health Professionals and Support Services Award 2020, Horse and Greyhound Training Award 2020, Hospitality Industry (General) Award 2020, Hydrocarbons Industry (Upstream) Award 2020, Manufacturing and Associated Industries and Occupations Award 2020, Mining Industry Award 2020, Miscellaneous Award 2020, Nursery Award 2020, Oil Refining and Manufacturing Award 2020, Pest Control Industry Award 2020, Pharmaceutical Industry Award 2020, Plumbing and Fire Sprinklers Award 2020, Premixed Concrete Award 2020, Racing Clubs Events Award 2020, Racing Industry Ground Maintenance Award 2020, Registered and Licensed Clubs Award 2020, Restaurant Industry Award 2020, Salt Industry Award 2020, Seafood Processing Award 2020, Security Services Industry Award 2020, Silviculture Award 2020, Storage Services and Wholesale Award 2020, Sugar Industry Award 2020, Timber Industry Award 2020, Vehicle Repair, Services and Retail Award 2020, Water Industry Award 2020, Wine Industry Award 2010 and Wool Storage, Sampling and Testing Award 2020.

[73] Clause 27.11(a) of the Seafood Processing Award 2010 appears as clause 21.11(a) of the Seafood Processing Award 2020, which operated from 4 February 2020.

[74] The submission refers to the 2010 version of the award, current at that time. The Textile, Clothing, Footwear and Associated Industries Award 2020 has since become operative, but the wording of the equivalent clauses is the same in the current version.

[75] Clauses 32.2 and 32.6 in the Textile, Clothing, Footwear and Associated Industries Award 2020

[76] Clause 34.8 in the Hospitality Industry (General) Award 2010

[77] Clause 25.8 is in the same terms as clause 37.8 of the 2010 Award.

[78] Submission, ABI & NSWBC, 1 April 2019

[79] Submission, Ai Group, 22 March 2019

[80] Submission, AMWU, 27 March 2019

[81] Submission, AWU, 25 March 2019

[82] Submission, CFMMEU–C&G, 2 April 2019; Submission in Reply, CFMMEU – C&G, 17 April 2019

[83] Submission, CFMMEU – MD, 8 April 2019

[84] Submission, CFMMEU – M&E, 22 March 2019

[85] Submission, CPSU, 29 March 2019

[86] Submission, FAAA, 3 May 2019

[87] Submission, HIA, 22 March 2019

[88] Submission, United Voice, 4 April 2019

[89] Curro and Another v Beyond Productions Pty Ltd (1993) 30 NSWLR 337

[90] Food, Beverage and Tobacco Manufacturing Award 2020; Manufacturing and Associated Industries and Occupations Award 2020; Pharmaceutical Industry Award 2020; Seafood Processing Award 2020; Timber Industry Award 2020; and Wine Industry Award 2020

[91] Submission in Reply, MBA, 24 April 2019

[92] Submission in Reply, CFMMEU – C&G, 17 April 2019

[93] Submission in Reply, Ai Group, 18 April 2019

[94] Submission, AMIEU, 17 May 2019

[95] Automatic Fire Sprinklers Pty Ltd v Watson [1946] HCA 25; (1946) 72 CLR 435 at 450 (per Latham CJ), 465 (per Dixon J)

[96] Byrne v Australian Airlines Ltd (1995) 185 CLR 410 at 428

[97] Fair Work Bill 2008: Explanatory Memorandum at [381]

[98] [2017] FWCFB 5394 at [61]-[62]

[99] NES entitlements to unpaid leave in Pt 2-2 of the Act are only for specific purposes: parental and maternity leave (Div 5); unpaid carer’s leave (Div 7, Subdiv B); and family and domestic violence leave (Div 7, Subdiv CA).

[100] [2020] FWCFB 3011 at [446]-[459]

[101] Draft determination, United Voice, 7 November 2018; Submission, JAG, 9 November 2018; Submission, United Voice, 15 March 2019; Revised draft determination, United Voice, 15 March 2019; Submission in reply, ACA, ABI, NSWBC, NOSHSA, JAG, 16 April 2019; Submission in reply, Australian Federation of Employers & Industries, 16 April 2019; Submission, United Voice, 29 May 2019; Submission, ACA, ABI, NSWBC, NOSHSA, JAG, 29 May 2019; Submission, Australian Federation of Employers & Industries, 31 May 2019; Submission, United Voice, 9 July 2019; Submission, Australian Federation of Employers & Industries, 10 July 2019.

[102] Witness Statement of Katy Paton, 14 March 2019, Exhibit 21

[103] Transcript, 7 May 2019 at PN2378

[104] Transcript, 7 May 2019 at PN2381-PN2386

[105] Amended Witness Statement of Pamela Avril Maclean, 13 March 2019, Exhibit 25

[106] Transcript, 7 May 2019 at PN2550-PN2554

[107] Witness Statement of Ann Marie Chemello, 1 March 2019, Exhibit 27

[108] Transcript, 7 May 2019, at PN2738-PN2744

[109] Amended Witness Statement of Karthiga Viknarasah, 11 April 2019, Exhibit 13

[110] Amended Witness Statement of Jae Dean Fraser, 15 April 2019, Exhibit 18

[111] Transcript, 7 May 2019, at PN1877-PN1883

[112] Amended Witness Statement of Kristen McPhail, 12 April 2019, Exhibit 28

[113] Transcript, 7 May 2019, at PN3120-PN3125

[114] Amended Witness Statement of Kylie Brannelly, 15 April 2019, Exhibit 34

[115] Transcript, 8 May 2019 at PN3504-PN3505

[116] Transcript, 8 May 2019 at PN3506

[117] Amended Witness Statement of Sarah Elizabeth Tullberg, 9 April 2019, Exhibit 35

[118] Transcript, 8 May 2019 at PN3728-PN3734

[119] Amended Witness Statement of Kerry Joseph Mahony, 11 April 2019, Exhibit 38

[120] Transcript, 8 May 2019 at PN3983-PN3987

[121] Amended Witness Statement of Nicole Louise Llewellyn, 9 April 2019, Exhibit 39

[122] Transcript, 9 May 2019 at PN4335

[123] Transcript, 9 May 2019 at PN4336

[124] Witness Statement of Alexandra Hands, 12 March 2019, Exhibit 43

[125] Transcript, 9 May 2019, at PN4795-PN4797

[126] Transcript, 9 May 2019, at PN4798

[127] Submission, United Voice, 29 May 2019

[128] Submission in reply, ACA, ABI and NSWBC, 29 May 2019

[129] Submission, AFEI, 2 June 2019

[130] [2017] FWCFB 5394

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