Banyule City Council v Australian Municipal, Administrative, Clerical and Services Union
[2010] FWA 4520
•22 JUNE 2010
[2010] FWA 4520 |
|
DECISION |
Fair Work (Transitional Provisions and Consequential Amendments) Act 2009
Schedule 3, Item 26 - Application to resolve an issue between a transitional instrument and the National Employment Standard
Banyule City Council
v
Australian Municipal, Administrative, Clerical and Services Union; Australian Nursing Federation
(AG2009/22320)
DEPUTY PRESIDENT HAMILTON | MELBOURNE, 22 JUNE 2010 |
25 per cent loading in lieu of annual leave and sick leave and other entitlements – National Employment Standards provide entitlements to annual leave, personal/carer’s leave and other entitlements – Application to vary agreement to resolve uncertainty or difficulty
[1] On 21 December 2009 Banyule City Council filed an application under item 26(1) of Part 5, Division 1, Schedule 3 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Transitional Act). The application sought to amend item 1.2, Schedule 9 of the Banyule City Council Enterprise Agreement 2005 (‘the Agreement’) to resolve an alleged uncertainty or difficulty relating to the interaction between the agreement and the National Employment Standards by deleting the second sentence of the clause:
‘No more than 37 hours per week. For existing part-time BLFM staff employed prior to 31 October 2008, a 25% loading in lieu of payment for sick leave, annual leave and public holidays is payable only for the life of this Agreement.’
[2] Schedule 9 applies to employees in the Banyule Leisure Facility Management Unit, except the Service Unit Coordinator.
[3] On 23 February 2010 Banyule forwarded an amended application which related to Schedules 13 and 14, which also referred to loadings in lieu of annual leave and sick leave or public holidays. A copy of the amended application is attached as Attachment 1. The amended application broadened the remedy sought to other parts of the agreement, on similar grounds.
[4] The introduction of the National Employment Standards (NES) with the Fair Work Act 2009 (Cth.) provided part-time employees with certain personal/carer’s leave and annual leave entitlements. These entitlements apply notwithstanding the provisions of the agreement. Some of the relevant provisions of the Standards are set out in Attachment 2.
[5] The matter was conciliated and no agreement was reached. On 4 March 2010 I heard the matter. The Australian Nursing Federation were notified but did not attend. Written submissions and witness statements were filed by Banyule City Council and the Australian Municipal, Administrative, Clerical and Services Union (ASU), and witnesses were not called for cross examination. The witness statements were tendered and accepted by both sides.
Submissions of the Council
[6] In summary, the Council submits that employees may or may not receive both the benefits of payments in lieu of certain leave entitlements, yet also receive under the new NES provisions those leave entitlements. There is an uncertainty or difficulty as to what the position is when the provisions of the agreement are read alongside the National Employment Standards.
[7] The Council’s concern related to the paragraph under the heading “part time staff” in item 1.2, Schedule 9 of the Agreement and how this paragraph would interact with the NES which came into operation on 1 January 2010. Council submitted that the NES provide minimum terms and conditions of employment, including provisions relating to annual leave, personal leave and public holidays. Where these entitlements are also provided for under the Agreement, a potential conflict arises between the Agreement and the NES provisions.
[8] Council relied on the application of the “no detriment test” in Clause 23 of Division 1, Part 5 of the Transitional Act and submitted that the “no detriment test” applies when both the Agreement and NES contain minimum conditions of employment in relation to the same entitlement. Council further submitted that the provision of the Agreement purports to remove certain part time employee’s their entitlement to annual leave, personal leave and public holidays and replace it with payment of loading. The Council thus submitted that this provision would fail the no detriment test and therefore would cease to operate on 1 January 2010 1.
[9] The Council seek an order that Fair Work Australia amend the Agreement to make the instrument operate effectively with the NES 2 or alternatively, delete or amend the provisions that render uncertain the interaction between the NES and the Agreement3.
Submission of the ASU
[10] The Australian Services Union (ASU) submitted that there is no detriment to the employees under the Agreement compared to the entitlements under the NES and that there is no uncertainty or difficulty between the Agreement and the NES that requires resolution.
[11] Both parties produced written submissions and gave witness statements. Matthew Tibb gave a witness statement for the Council and Elizabeth Dance and Elaine Noble provided witness statements for the ASU.
[12] I have had regard to the all the submissions and evidence in order to determine if the provision of the Agreement passes the no detriment test and/or whether the Agreement should be varied for the purpose of removing ambiguity or uncertainty.
Item 26(1) of Part 5, Division 1, Schedule 3
[13] The remedy which the Council seeks is under item 26 of Part 5, Division 1, of Schedule 3 of the Transitional Act. This provision sets out the procedure to be followed when resolving difficulties about the application of rules governing the interaction between an agreement and the National Employment Standards. It states:
‘(1) on application by a person covered by a transitional instrument, FWA may make a determination varying the transitional instrument:
(a) to resolve an uncertainty or difficulty relating to the interaction between the instrument and the NES; or
(b) to make the instrument operate effectively with the NES
[1] The Explanatory Memorandum states in relation to this item:
‘Item 26 – Resolving difficulties about application of this Division
89. This item enables a person covered by a transitional instrument to apply to FWA to resolve any difficulties about the application of the rules about the interaction between transitional instruments and the NES set out in this Division.
90. Under this item, FWA may vary the instrument to resolve uncertainty or difficulty relating to the interaction between the instrument and the NES, or to make the instrument operate effectively with the NES.
91. Any variation of the instrument operates from the day specified in the determination (which may be a day before the determination is made).’
Authorities
[1] The old s.170MD(6) of the Workplace Relations Act 1996 provided:
‘(6) The Commission may, on application by any person bound by a certified agreement, by order vary a certified agreement:
- (a) for the purpose of removing ambiguity or uncertainty; or
(b) for the purpose of including, omitting or varying a term ( however expressed) that authorises an employer to stand-down an employee’
[1] There are differences between the wording of s.170MD(6) and the provisions of Item 26 of Part 5 of Schedule 3, but the reference to ‘uncertainty’ is common to both, while one uses the term ‘ambiguity’ not found in the other, which uses the term ‘difficulty’. The parties agreed that authorities relating to s.170MD(6) were relevant 4. It may be, given the broad references to a ‘difficulty’, and to making the agreement operate effectively with the NES, that the power under Item 26 is broader than that under s.170MD(6), which required the demonstration of more than a difficulty or a need to make the agreement operate effectively. It required an actual problem of interpretation arising from the text of the agreement. This approach would appear to be supported by the broadness of the description of the item in the Explanatory Memorandum.
[2] In CFMEU v Capricorn Coal Management Pty Ltd 5, a Full Bench of this Tribunal examined the term and operation of s 170MD(6) and made the following observations:
10. We should refer to the decision of Justice Munro7. In it he dealt with a number of issues but one being a s.170MD(6) application to vary a certified agreement. In relation to the power of the Commission to do so His Honour commented:
"29. It is manifest that the power to vary the agreement in this instance is dependent upon there being an "ambiguity or uncertainty" in the Agreement. Moreover, the power in section 170MD(6) is to be used "for the purpose of removing" the ambiguity so identified.... In other words, the power must be exercised to remove any ambiguity. It may not appropriately be used to re-write an agreement to install something that was not inherent to the agreement when it was made.
30. The identification of whether or not a provision in an instrument can be said to contain an "ambiguity" requires a judgement to be made of whether, on its proper construction, the wording of the relevant provision is susceptible to more than one meaning. Essentially, the task requires that the words used in the provision be construed in their context, including where appropriate the relevant parts of the "parent" award with which a complementary provision is to be read. ..."
11. It does not seem to us that His Honour said that one must identify a word or words as constituting the ambiguity or uncertainty and only in these circumstances would s.170MD(6) be properly invoked. In the case before him he considered several provisions in the agreement and the way they operated together with the relevant award. Nor do we consider Commissioner Hodder so confined himself. It was the CFMEU which had identified the three clauses we have earlier referred to. Before the Commission and this Full Bench it conceded that none of those clauses are in themselves ambiguous. It contended however that the combined effect of those clauses gives rise to the ambiguity or uncertainty. Even though it is not necessary for us to finally decide the issue about what variation may have been appropriately ordered if an ambiguity or uncertainty was found the relief that was sought is not to remove any ambiguity from subclauses 12.2, 17.2 or clause 49 but to introduce a new clause in the terms earlier outlined.
12. We accept the CFMEU submission that s.170MD(6)(a) is not confined to the identification of a word or words of a clause which give rise to an ambiguity or uncertainty. We might refer to this as the "narrow" approach. A combination of clauses may have that affect. The Commission member nonetheless must still identify the ambiguity or uncertainty. Logically one needs to do that so as to be able to remove it. Here the CFMEU could not satisfy Commissioner Hodder that there was an ambiguity or uncertainty in the Agreement in either the narrow or wider sense. Each identified subclause was clear as was any combination of them read together. Even if this had not been the case another clause, clause 13, dealt directly with the manner in which the relevant internal vacancies would be filled and the presence of that clause was a further reason why Commissioner Hodder was correct in his finding there was no ambiguity or uncertainty.
13. The CFMEU also submitted that the Commissioner failed to properly apply the approach of a Full Bench in Public Transport Corporation of Victoria and Australian Rail, Tram and Bus Industry Union and others (Print M2454). That case was decided under the provisions of the then Industrial Relations Act. One of the issues before the Full Bench concerned an application to vary a certified agreement under the then provisions of s.170MK(1)(e) and s.113 (2). The power to vary was one for the purpose of "removing ambiguity or uncertainty". Commissioner Hodder reproduced an extract from the Full Bench decision in which the role of the Commission was described to be one of first determining whether or not an ambiguity or uncertainty existed and then to consider whether it was desirable to vary the agreement for the purposes of removing the ambiguity or uncertainty. The Full Bench said the first part of that process involved an objective assessment as to whether or not an ambiguity or uncertainty exists. They went on to comment that "the Commission would generally err on the side of finding an ambiguity or uncertainty in circumstances where there are rival contentions advanced before it and an arguable case can be made out for more than one contention". The CFMEU submitted that Commissioner Hodder had misapplied that approach. We disagree. Consistent with that decision he correctly set out the task he faced. In the circumstances before him he was not able, objectively, to identify an ambiguity or uncertainty. He did not accept that it was enough for the CFMEU to assert, as it did, that the ambiguity or uncertainty "is that the parties have got different views about what the clauses mean and were intended to mean...."
14. In the company's written submissions before the Commissioner and before us it was accepted that the approach outlined by the Full Bench above was appropriate. The Commission will err on the side of finding an ambiguity or uncertainty only where there are rival contentions advanced and an arguable case is made out for more than one contention. Clause 13 of the agreement which was reproduced in the Commissioner's decision compromises the CFMEU contention as being reasonably arguable. That clause deals with the topic of recruitment. It provides that selection and recruitment of employees is to be conducted in accordance with the procedure that is set out as an appendix to the agreement. That appendix was the subject of some submissions before us. We find that there is nothing in the appendix to warrant it being limited, as the CFMEU argued, to new employees. It refers to a procedure which has been agreed by the parties to be applied to the selection and recruitment of employees at Central Colliery. We accept the submissions of the company that it is equally applicable in its terms to new employees as to existing employees being promoted or transferred. In these circumstances we are of the view that there was no case made out in support of the contention of the CFMEU that there was an ambiguity or uncertainty.'
[3] These observations have been repeatedly applied in s 170MD(6) matters 6, and appear to be the generally accepted approach to that provisions.
Decision
[4] Banyule submitted that the monetary value of paid annual leave, paid sick leave and paid public holidays, is less than the monetary value of the 25 per cent loading for each employee provided by clause 2.1, and other clauses. However, it said that the non-monetary value of annual leave, sick leave and public holidays has also to be taken into account, and these include health, recuperation, leisure, family and social factors. These non-monetary values are well established in Commission decisions. Banyule concluded that the substitution of leave for a monetary loading constitutes a detriment to employees when compared with their entitlement to a period of paid leave under the National Employment standards 7. Item 23 Item 23, Part 5, Division 1, of Schedule 3 of the Transitional Act prevents the provision of an agreement operating if it is ‘detrimental to an employee, in any respect, when compared to an entitlement of the employee under the National Employment Standards …’
[5] It further submitted that clause 2.1 and the other similar provisions are ‘cashing out’ provisions which arguably do not meet the requirements of ss.93 and 101 of the Fair Work Act 2009, and that therefore the agreement is taken to include the terms that meet these requirements by operation of Item 24 of Part 5, Division 1, of Schedule 3. This is a difficulty 8.
[6] The ASU submitted 9 that clause 2.1 and similar provisions does not fail the ‘no detriment’ test in Item 23, Part 5, Division 1, of Schedule 3 of the Transitional Act. On a dollar to dollar basis there is no detriment to employees. However, the clear effect of the application would be to reduce a benefit to which employees were entitled. On the non-monetary value of leave, the ASU submitted that the case law referred to ‘all relates to the cashing out of annual leave. On the ASU’s reading of these cases, they all relate to full-time, full year employees and do not apply to the circumstances of the overwhelming majority of employees covered by the relevant agreement clauses.’10 It submitted that the removal of the loading would be detrimental to the employees who receive it. It is a significant loading and designed in part to compensate particular employees for their particular working patterns, providing a 40 week employee with an additional 10 weeks pay per year, bringing total pay to 50 weeks per annum, close to the total earnings of a full year employee. To remove this would significantly disadvantage employees, and to do so in the name of ‘no detriment’ to employees is absurd11.
[7] The ASU submits that the payments referred to in this application are allowances, and that, for example:
‘The allowance system is a practical means by which the NES entitlements of this group of employees can be met in a manner which suits the operational needs of the employers and the work and family balance needs of the employees.’ 12
[8] The ASU explained these submissions further in their oral submissions, noting for example the type of work that is engaged in 13.
[9] After proceedings, the Full Bench decision in AMWU v. OneSteel Wire Pty Ltd 14was handed down. Written submissions in relation to this decision were provided by the parties on 9 June 2010, and I have had regard to those submissions. The ASU sought to argue that the decision has no direct relevance to the present matter and is distinguishable, while also accepting that there were ‘some principles’ which are of assistance. It distinguished the decision on the grounds that the present matter was initiated with respect to the ‘no detriment’ rule in item 23 of Schedule 3, and that the merit issue in each is different.
[10] However, this present matter, as with the matter under appeal, concerns an application under Item 26 of Schedule 3, and that provision is in any event the provision of the Schedule which provides for applications to be made with respect to matters dealt with in the Schedule. It is true that most of the submissions of the applicant concerned the issue of ‘no detriment’, but they also dealt with the issue of whether or not there was an uncertainty or difficulty.
[11] Firstly, in AMWU v. OneSteel Wire Pty Ltd 15the Full Bench said at paragraphs 13 to 17:
“The circumstances of this case concern the interaction between entitlements that arise under the NES and the transitional instruments. For the first time statutory public holiday entitlements are contained in the federal statute and can potentially impose obligations which are different to those arising from awards and enterprise agreements. The effect of this interaction in the circumstances of this matter is that employees who have an entitlement to eleven public holidays under the instruments – more than provided for in the NES – may receive an entitlement to a twelfth public holiday.
“In our view this situation can be described as a difficulty in the nature of an unanticipated consequence. The instruments were formulated on the basis that they would exhaustively deal with public holiday entitlements. They left no room for the observance of State gazetted additional holidays unless the parties use the additional day for that purpose. The terms of the instruments have operated in that way for some years. The enactment of the NES has operated to increase the actual entitlements under the instruments, even though those entitlements are in excess of the minimum entitlements of the NES.
“The NES are intended to be minimum standards which cannot be displaced. They may override terms of other instruments to ensure those minimum standards are met. In the circumstances of this case they would have the unintended effect of increasing more beneficial entitlements. This result interferes with the way the instruments have operated and were intended to operate.
“The jurisdictional prerequisite of a ‘difficulty’ is a broad one. So much is clear from the scheme of the provisions and the parliamentary debates leading to their enactment. In our view, the circumstances clearly give rise to a difficulty which may be resolved by a determination varying a transitional instrument under item 26 of Schedule 3 to the Transitional Act.
“The analysis above also makes it clear that the determinations were justifiable to make the instruments operate effectively with the NES given their previous operation, the clear intention of the provisions and the effect of the interaction with the NES.
“In our view Justice Boulton had jurisdiction to make the determinations. The grounds of appeal regarding jurisdiction must fail.”
[12] The OneSteel Wire decision is applicable to this present matter with respect to the issue of an uncertainty or difficulty, notwithstanding the various differences between the two matters. In this present matter the National Employment Standards may operate to provide an entitlement to annual leave and personal/carer’s leave in each of Schedules 9, 13 and 14, although the employees receive a loading ‘in lieu’ of annual leave and sick leave and in some cases other entitlements. In my view this is a difficulty in the nature of an unanticipated consequence. There is therefore an uncertainty or difficulty within Item 26, as there was in OneSteel Wire, and there are grounds for making an order with respect to Schedules 9, 13 and 14 to resolve the uncertainty or difficulty.
[13] Secondly, the agreement was made before the National Employment Standards came into effect. The Standards have changed the legal environment in which the agreement was made, particularly by substantially limiting the ability of employers and unions to remove annual and sick leave entitlements, and by providing for such entitlements even where payments of the kind here are made ‘in lieu’ of those entitlements. There is a need to make the agreement operate effectively with the Standards. Again, there are grounds for making an order with respect to Schedules 9, 13 and 14.
[14] Thirdly, as submitted by Banyule 16 it is clear that some cashing out of annual leave and sick leave entitlements is authorised by ss.93 and 101 of the Fair Work Act 2009, notwithstanding the extensive submissions of the ASU17. This cashing out is available to instruments such as the agreement. I do not agree with the ASU submission that there is no cashing out but instead an allowance, and that employees in fact take leave. The instrument does purport to cash out by providing payments ‘in lieu’ of these entitlements. In attempting to cash out the provisions do not meet the requirements of ss.93 and 101 in various respects. For example the requirements of s.93 are not met because there is no residue of four (4) weeks annual leave left, nor is an agreement in writing required. The requirements of s.101 are not met because a residue of fifteen (15) days leave is not left.
[15] Because the agreement contains terms which cash out paid annual leave and sick leave, and do not meet the requirements of ss.93 or 101 of the Act, by operation of Item 24 ‘the instrument is taken to include terms that include the requirements’. In my view what those requirements are and how they operate is of some uncertainty, and there is a difficulty in the interaction between the provisions of the National Employment Standards and clause 1.2 of Schedule 9 of the agreement. There is a need to make the agreement operate effectively with those Standards, and to make an order with respect to Schedules 9, 13 and 14.
[16] Finally, are the clauses terms of a transitional instrument that are detrimental to an employee as referred to in Item 23? In my view while the monetary amounts of the loading are less than the entitlements, I also have to have regard to the non-monetary aspects of the entitlements, notwithstanding the submissions of the ASU relating to the particular nature of this work. It has always been the case that leave is not a matter of monetary value alone. When annual leave became some form of general entitlement in 1935, the Court referred extensively to the non-monetary benefits to an employee constituted by an employee recuperating:
“Unless an industry is finding difficulty in maintaining itself, in my opinion the institution of paid annual leave is a very desirable boon for employees. Although at first it might cause some increase in labor cost, this probably would not be commensurate with the shortening of the working year and ultimately might be virtually balanced by increased vigour and zeal of employees. The publication already referred to - Holidays with Pay – at p. 82 has the following passage – “It would undoubtedly be a fallacy, even from a purely economic point of view, to regard paid holidays as a burden to the employer for which he receives no return. On the contrary, he obtains a very real return by finding his employees fresh and eager for work when they return from their holidays. He reaps an advantage in higher output, fewer spoilt goods, less absence, less sickness and fewer accidents. It is of course difficult to reckon these advantages in figures, but that they are nevertheless real is shown by the testimony of many employers who have themselves spontaneously introduced annual holidays with pay”. 18
[17] Similar comments are made in nearly all relevant and recent decisions of arbitral tribunals, including for example BHP Coal v. Australian Collieries Staff Association 19.
[18] As Banyule submitted, part-time employees are entitled to paid annual leave and personal/carer’s leave, and the same approach should be taken with respect to the non-monetary aspects of that leave. The fact of the unusual pattern of work of employees in this case does not mean that non-monetary aspects are of no importance.
[19] However, on the submissions before me I am unable to conclude that a 25 per cent loading in lieu of such entitlements means that the relevant provisions in the agreement are not ‘at least as beneficial’ to an employee as the corresponding entitlement in the National Employment Standards, as submitted by Banyule 20. I am unable on the material before me to find that those provisions are therefore of no effect by operation of Item 23, and that an amendment is required by Item 26.
[20] It is well established that a 25 per cent loading can in some cases compensate for the lack of annual leave, personal/carer’s leave, and public holidays entitlements. A 25 per cent loading was adopted to compensate school based trainees for the lack of these entitlements under modern awards:
‘A trainee undertaking a school-based traineeship may, with the agreement of the trainee, be paid an additional loading of 25% on all ordinary hours worked instead of paid annual leave, paid personal/carer’s leave and paid absence on public holidays, provided that where the trainee works on a public holiday then the public holiday provisions of this award apply.’ 21
[21] A casual employee is paid 25 per cent to compensation for the lack of such entitlements under modern awards:
‘A casual employee is one engaged and paid as such. A casual employee for working ordinary time must be paid an hourly rate calculated on the basis of one thirty-eighth of the minimum weekly wage prescribed in clause ... for the work being performed plus a casual loading of 25%. The loading constitutes part of the casual employee’s all purpose rate.’ 22
[22] The casual loading of 25 per cent was established as the benchmark for casual loadings for award and agreement free employees in the recent Annual Wage Review 2009-10 23.
Remedy
[23] The ASU submitted that instead of issuing a remedy now that I provide the parties with the opportunity to put further submissions in writing on the question of remedy. The possibility of agreement on the remedy was discussed. The council did not oppose that procedural submission 24, which in the circumstances seems to me to be a sensible one.
[24] There is merit in the submission, and I will adopt it. I will not at this stage issue directions for further submissions. I will issue directions if requested to do so by the council or by the ASU. I am available to engage in conciliation if that would be of assistance. I note that there are a range of measures that can be taken, including transitional provisions, given the low paid nature of these employees.
DEPUTY PRESIDENT
Appearances:
R Jackson, solicitor, with H Lawless of the Banyule City Council for the applicant.
K Harvey and I Grattan of the Australian Municipal, Administrative, Clerical and Services Union for the respondent.
Hearing details:
2010
Melbourne
March 4
Final written submissions:
9 June 2010
Attachment 1 - Revised Banyule Application
Attachment 2 - Extracts from the National Standards
86 Division applies to employees other than casual employees
This Division applies to employees, other than casual employees.
87 Entitlement to annual leave
Amount of leave
(1) For each year of service with his or her employer, an employee is entitled to:
(a) 4 weeks of paid annual leave; or
(b) 5 weeks of paid annual leave, if:
(i) a modern award applies to the employee and defines or describes the employee as a shiftworker for the purposes of the National Employment Standards; or
(ii) an enterprise agreement applies to the employee and defines or describes the employee as a shiftworker for the purposes of the National Employment Standards; or
(iii) the employee qualifies for the shiftworker annual leave entitlement under subsection (3) (this relates to award/agreement free employees).
Note: Section 196 affects whether FWA may approve an enterprise agreement covering an employee, if the employee is covered by a modern award that is in operation and defines or describes the employee as a shiftworker for the purposes of the National Employment Standards.
Accrual of leave
(2) An employee’s entitlement to paid annual leave accrues progressively during a year of service according to the employee’s ordinary hours of work, and accumulates from year to year.
Note: If an employee’s employment ends during what would otherwise have been a year of service, the employee accrues paid annual leave up to when the employment ends.
Award/agreement free employees who qualify for the shiftworker entitlement
(3) An award/agreement free employee qualifies for the shiftworker annual leave entitlement if:
(a) the employee:
(i) is employed in an enterprise in which shifts are continuously rostered 24 hours a day for 7 days a week; and
(ii) is regularly rostered to work those shifts; and
(iii) regularly works on Sundays and public holidays; or
(b) the employee is in a class of employees prescribed by the regulations as shiftworkers for the purposes of the National Employment Standards.
(4) However, an employee referred to in subsection (3) does not qualify for the shiftworker annual leave entitlement if the employee is in a class of employees prescribed by the regulations as not being qualified for that entitlement.
(5) Without limiting the way in which a class may be described for the purposes of paragraph (3)(b) or subsection (4), the class may be described by reference to one or more of the following:
(a) a particular industry or part of an industry;
(b) a particular kind of work;
(c) a particular type of employment.
95 Subdivision applies to employees other than casual employees
This Subdivision applies to employees, other than casual employees.
96 Entitlement to paid personal/carer’s leave
Amount of leave
(1) For each year of service with his or her employer, an employee is entitled to 10 days of paid personal/carer’s leave.
Accrual of leave
(2) An employee’s entitlement to paid personal/carer’s leave accrues progressively during a year of service according to the employee’s ordinary hours of work, and accumulates from year to year
The Transitional Act provides in Schedule 3:
Part 5—Transitional instruments and the FW Act
Division 1—Interaction between transitional instruments and the National Employment Standards
23 The no detriment rule
(1) To the extent that a term of a transitional instrument is detrimental to an employee, in any respect, when compared to an entitlement of the employee under the National Employment Standards, the term of the transitional instrument is of no effect.
Note 1: A term of a transitional instrument that provides an entitlement that is at least as beneficial to an employee as a corresponding entitlement of the employee under the National Employment Standards will continue to have effect.
Note 2: Division 3 (which contains other general provisions about how the FW Act applies in relation to transitional instruments) is also relevant to how the National Employment Standards apply in relation to employees to whom transitional instruments apply.
Note 3: References to the National Employment Standards include a reference to the extended parental leave provisions and the extended notice of termination provisions (see sections 746 and 761 of the FW Act).
(1A) If there is a dispute about the application of this item which must be resolved by FWA in accordance with item 26, FWA may compare the entitlements which are in dispute:
(a) on a ‘line-by-line’ basis, comparing individual terms; or
(b) on a ‘like-by-like’ basis, comparing entitlements according to particular subject areas; or
(c) using any combination of the above approaches FWA sees fit.
(2) Subitem (1) does not affect a term of a transitional instrument that is permitted by a provision of the National Employment Standards as it has effect under item 24.
(3) The regulations may make provisions that apply to determining, for the purpose of this item, whether terms of a transitional instrument are, or are not, detrimental in any respect when compared to entitlements under the National Employment Standards.
24 Provisions of the NES that allow instruments to contain particular kinds of terms
(1) The following provisions of the National Employment Standards have effect, on and after the FW (safety net provisions) commencement day, as if a reference to a modern award or an enterprise agreement included a reference to a transitional instrument:
(a) section 63 (which allows terms dealing with averaging of hours of work);
(b) section 93 (which allows terms dealing with cashing out and taking paid annual leave);
(c) section 101 (which allows terms dealing with cashing out paid personal/carer’s leave);
(d) subsection 107(5) (which allows terms dealing with evidence requirements for paid personal/carer’s leave etc.);
(e) subsection 115(3) (which allows terms dealing with substitution of public holidays);
(f) section 118 (which allows terms dealing with an employee giving notice to terminate his or her employment);
(g) subsections 121(2) and (3) (which allow terms specifying situations in which the redundancy pay entitlement under section 119 does not apply);
(h) section 126 (which allows terms providing for school-based apprentices and trainees to be paid loadings in lieu).
(2) If:
(a) a transitional instrument includes terms referred to in subsection (1) of section 93 or 101 of the National Employment Standards; but
(b) the terms do not include the requirements referred to in subsection (2) of that section;
the instrument is taken to include terms that include the requirements.
25 Shiftworker annual leave entitlement
(1) If:
(a) a transitional instrument applies to an employee; and
(b) the employee is a shift worker as defined in section 228 of the WR Act;
the employee is taken to qualify for the shiftworker annual leave entitlement for the purposes of section 87 of the FW Act.
(2) This item has effect subject to subsection 87(4) of the FW Act.
26 Resolving difficulties about application of this Division
(1) On application by a person coveredby a transitional instrument, FWA may make a determination varying the transitional instrument:
(a) to resolve an uncertainty or difficulty relating to the interaction between the instrument and the National Employment Standards; or
(b) to make the instrument operate effectively with the National Employment Standards.
(2) A variation of a transitional instrument operates from the day specified in the determination, which may be a day before the determination is made.
27 Division does not affect transitional instruments before NES commencement
This Division (including determinations under item 26) does not affect the operation of a transitional instrument at any time before the FW (safety net provisions) commencement day.
1 Pursuant to item 23, part 5 of Schedule 3 of the Transitional Act which provides that (1) to the extent that a term of a transitional instrument is detrimental to an employees, in respect, when compared to an entitlement of the employee under the NES, the term of the transitional instrument is of no effect.
2 Pursuant to Item 26, Part 5 of Schedule 3 (1)(b)
3 Pursuant to Item 26, Part 5 of Schedule 3 (1)(a)
4 PN362-363; PN368-371
5 Harrison SDP, Drake DP, Larkin C., Print R2431, 25 February 1999, CFMEU v Capricorn Coal Management Pty Ltd.
6 eg. Print R6050 at paragraph 9-12 per Watson SDP; print R2876 at p.3 per Whelan C; Print PR910248 at paragraphs 24-25 per Lacy SDP; Print PR903843 at paragraph per Williams SDP; Print T2518 at paragraph 7-8 per Ross VP.
7 Exhibit B1, paragraphs 18-27
8 Exhibit B1, paragraphs 44-48
9 Exhibit A1, Submissions of the Australian Services Union, paragraphs 1-20; PN220
10 Exhibit A1, Submissions of the ASU, paragraphs 13-21
11 Exhibit A1, Submissions of the ASU, paragraphs 22-35
12 Exhibit A1, Submissions of the ASU, paragraph 80
13 PN287-293
14 [2010] FWAFB 4017, Watson VP, Hamberger SDP, Harrison C, 3 June 2010
15 [2010] FWAFB 4017, Watson VP, Hamberger SDP, Harrison C, 3 June 2010
16 Applicant’s Submissions, paragraphs 44-48
17 ASU Submissions, paragraphs 62-75
18 The Printing and Allied Traders Employees Federation of Australia v The Printing Industry Employees Union of Australia (Commercial Printing Judgement). (1936) 36 CAR 738A
19 (1998) 88 IR 429 at 439, 440
20 Exhibit B1, Submissions of Banyule, paragraph 16.1
21 Clause D.6.1 of Schedule C to Modern Awards
22 Clause 14 of the Manufacturing and Associated Industries and Occupations Award 2010
23 [2010] FWAFB 4000 at 87
24 PN30-46
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