Goodstart Early Learning Limited

[2012] FWA 2408

[2012] FWA 2408

FAIR WORK AUSTRALIA

REASONS FOR DECISION

Fair Work Act 2009
s.185— Application for approval of a single-enterprise agreement

Goodstart Early Learning Limited
(AG2012/3846)

GOODSTART EARLY LEARNING ENTERPRISE AGREEMENT 2012

Children’s services
COMMISSIONER HAMPTON	ADELAIDE, 10 APRIL 2012

Enterprise Agreement - whether apparent tension between agreement provision and NES would prevent approval - undertakings proposed only if required - whether the absence of annual leave loading on payments made upon termination contravenes the NES - s.90 considered - not presently convinced that provision in contravention of the NES - undertaking not required on annual leave provision - agreement approved.

BACKGROUND

[1] This matter concerns an application for approval of an enterprise agreement pursuant to s.185 of the Fair Work Act 2009 (the Act). The application has been made by Goodstart Early Learning Limited (the employer) and the agreement is the Goodstart Early Learning Enterprise Agreement 2012.

[2] The agreement will apply to almost 16,000 employees engaged by the employer at its 656 child care centres around Australia. The nature of those activities is such that the Children’s Services Award 2010 and the Education Services (Teachers) Award 2010 cover their employment.

[3] United Voice, the Independent Education Union of Australia (the IEU) and the Australian Education Union (AEU) are employee bargaining representatives for the agreement. All have supported the approval application and are now covered by the agreement.

[4] A hearing to consider the application was conducted on 20 March 2012 and in the lead up to the hearing, the parties were advised that amongst other matters, two particular issues were to be considered. Firstly, the confirmation of wage rates that were to form part of the agreement and secondly, the annual leave arrangements. The wages issue was dealt with by way of an undertaking that will be briefly canvassed later in this decision.

[5] There were no other concerns arising from the raft of statutory approval requirements and save for the two identified issues, it was clear to me that the application should be granted. Without detracting from all of the other approval requirements I note in particular, that the employee approval process was particularly comprehensive and led to a genuine agreement. This took place in the context of multiple work sites, different transitional provisions involving some of those locations, and a very large number of employees. The process adopted by the employer and the unions is to be commended. The agreement also met the Better Off Overall Test prescribed by s.193 of the Act.

[6] The annual leave issue arose due to the fact that whilst an annual leave loading was provided by the agreement in relation to leave that was taken, clause 36.4 of the agreement did not provide for the payment of that loading on annual leave paid out on termination. The question raised by Fair Work Australia was whether this was consistent with the National Employment Standards (the NES) provided by s.90 of the Act and related provisions.

[7] This issue was flagged in the employer’s declaration accompanying the application and this indicated that whilst it would be willing to provide an undertaking in relation to the annual leave issue, it would only do so if Fair Work Australia formally determined that such was required. The employer contended that the agreement provision was not inconsistent with the NES provisions and set out a comprehensive submission to that end. The IEU, who appeared in the hearing, did not make a submission on the annual leave issue.

[8] The AEU and United Voice did not seek to be heard on the annual leave matter, or more generally, beyond their position as set out in their respective Form F18s. 1

[9] Having considered the matter, on 28 March 2012 I advised the parties that an undertaking in relation to the annual leave issue would not be required on this occasion. I subsequently accepted an undertaking as proposed in relation to the wages issue and approved the agreement. I also advised that I may subsequently provide reasons for my decision, which I now do.

THE ANNUAL LEAVE ISSUE

[10] Without detailing all of the statutory enterprise agreement approval requirements touching upon this application, the following are apposite for present purposes.

[11] The general requirements are established in part by s.186 of the Act which relevantly provides as follows:

“186 When FWA must approve an enterprise agreement—general requirements

Basic rule

(1) If an application for the approval of an enterprise agreement is made under section 185, FWA must approve the agreement under this section if the requirements set out in this section and section 187 are met.

Note: FWA may approve an enterprise agreement under this section with undertakings (see section 190).”

(2) FWA must be satisfied that:

(a) if the agreement is not a greenfields agreement—the agreement has been genuinely agreed to by the employees covered by the agreement; and

(b) if the agreement is a multi-enterprise agreement:

(i) the agreement has been genuinely agreed to by each employer covered by the agreement; and

(ii) no person coerced, or threatened to coerce, any of the employers to make the agreement; and

(c) the terms of the agreement do not contravene section 55 (which deals with the interaction between the National Employment Standards and enterprise agreements etc.); and

(d) the agreement passes the better off overall test.

Note 1: For when an enterprise agreement has been genuinely agreed to by employees, see section 188.

Note 2: FWA may approve an enterprise agreement that does not pass the better off overall test if approval would not be contrary to the public interest (see section 189).

Note 3: The terms of an enterprise agreement may supplement the National Employment Standards (see paragraph 55(4)(b)).

[12] The provisions dealing with the relationship between the NES, modern awards and enterprise agreements are relevantly set out in ss.55 and 56 of the Act as follows:

“55--Interaction between the National Employment Standards and a modern award or enterprise agreement

National Employment Standards must not be excluded

(1) A modern award or enterprise agreement must not exclude the National Employment Standards or any provision of the National Employment Standards.

Terms expressly permitted by Part 2-2 or regulations may be included

(2) A modern award or enterprise agreement may include any terms that the award or agreement is expressly permitted to include:

(a) by a provision of Part 2-2 (which deals with the National Employment Standards); or

(b) by regulations made for the purposes of section 127.

Note: In determining what is permitted to be included in a modern award or enterprise agreement by a provision referred to in paragraph (a), any regulations made for the purpose of section 127 that expressly prohibit certain terms must be taken into account.

(3) The National Employment Standards have effect subject to terms included in a modern award or enterprise agreement as referred to in subsection (2).

Note: See also the note to section 63 (which deals with the effect of averaging arrangements).

Ancillary and supplementary terms may be included

(4) A modern award or enterprise agreement may also include the following kinds of terms:

(a) terms that are ancillary or incidental to the operation of an entitlement of an employee under the National Employment Standards;

(b) terms that supplement the National Employment Standards;

but only to the extent that the effect of those terms is not detrimental to an employee in any respect, when compared to the National Employment Standards.

Note 1: Ancillary or incidental terms permitted by paragraph (a) include (for example) terms:

(a) under which, instead of taking paid annual leave at the rate of pay required by section 90, an employee may take twice as much leave at half that rate of pay; or

(b) that specify when payment under section 90 for paid annual leave must be made.

Note 2: Supplementary terms permitted by paragraph (b) include (for example) terms:

(a) that increase the amount of paid annual leave to which an employee is entitled beyond the number of weeks that applies under section 87; or

(b) that provide for an employee to be paid for taking a period of paid annual leave or paid/personal carer’s leave at a rate of pay that is higher than the employee’s base rate of pay (which is the rate required by sections 90 and 99).

Note 3: Terms that would not be permitted by paragraph (a) or (b) include (for example) terms requiring an employee to give more notice of the taking of unpaid parental leave than is required by section 74.

Enterprise agreements may include terms that have the same effect as provisions of the National Employment Standards

(5) An enterprise agreement may include terms that have the same (or substantially the same) effect as provisions of the National Employment Standards, whether or not ancillary or supplementary terms are included as referred to in subsection (4).

Effect of terms that give an employee the same entitlement as under the National Employment Standards

(6) To avoid doubt, if a modern award includes terms permitted by subsection (4), or an enterprise agreement includes terms permitted by subsection (4) or (5), then, to the extent that the terms give an employee an entitlement (the award or agreement entitlement) that is the same as an entitlement (the NES entitlement) of the employee under the National Employment Standards:

(a) those terms operate in parallel with the employee’s NES entitlement, but not so as to give the employee a double benefit; and

(b) the provisions of the National Employment Standards relating to the NES entitlement apply, as a minimum standard, to the award or agreement entitlement.

Note: For example, if the award or agreement entitlement is to 6 weeks of paid annual leave per year, the provisions of the National Employment Standards relating to the accrual and taking of paid annual leave will apply, as a minimum standard, to 4 weeks of that leave.

Terms permitted by subsection (4) or (5) do not contravene subsection (1)

(7) To the extent that a term of a modern award or enterprise agreement is permitted by subsection (4) or (5), the term does not contravene subsection (1).

Note: A term of a modern award has no effect to the extent that it contravenes this section (see section 56). An enterprise agreement that includes a term that contravenes this section must not be approved (see section 186) and a term of an enterprise agreement has no effect to the extent that it contravenes this section (see section 56).

56--Terms of a modern award or enterprise agreement contravening section 55 have no effect

A term of a modern award or enterprise agreement has no effect to the extent that it contravenes section 55.

[13] It is therefore clear to me that, subject to any undertakings that might remove the concerns, Fair Work Australia is not permitted to approve an enterprise agreement if the Tribunal determines that its terms would contravene the interaction rules associated with the NES. That is, the terms of an enterprise agreement may duplicate, beneficially supplement and provide ancillary provisions to the NES, and may also deal with certain NES related matters that are expressly delegated 2 to enterprise agreements (and awards). However, an approvable agreement cannot include terms that Fair Work Australia considers would contravene these interaction rules for the NES. I also interpose that as a result of s.56 of the Act, should the NES be subsequently found to operate in a manner that means the agreement provision does contravene that operation, the agreement term would have no effect.

[14] In this case, the immediate issue involves a consideration of the annual leave provisions of the agreement and the NES, and the operation of the Act in that context.

[15] Clause 36 of the agreement provides as follows:

“36. Annual Leave

36.1 Except as varied by this Agreement, full-time and part-time Employees are entitled to Annual Leave in accordance with the provisions of the Fair Work Act 2009 (Cth), that is an Employee is entitled to accrue an amount of paid Annual Leave of 4 weeks for each completed year of continuous service.

36.2 Annual leave accrues progressively throughout the year and accumulates from year to year.

36.3 Paid annual leave may be taken for a period agreed between an Employee and the Company. Applications for Annual Leave will not be unreasonably refused.

36.4 Annual Leave is paid at the ordinary rate applicable to the Employee at the time of taking leave, plus a 17.5% loading. Unused Annual Leave entitlements are paid out on termination however loading is not paid on leave paid out on termination.

36.5 An Employee may be directed by the Company to take a period of Annual Leave in the following circumstances:

(a) During the Christmas vacation;

(b) If the Centre closes down;

(c) If the Employee has an accrual of more than 6 weeks’ leave.

In the case of (b) and (c) the Company will provide the Employee with 4 weeks notice of the requirement to take leave.

36.6 The taking of Annual Leave is subject to the Company Annual Leave policy.

36.7 This clause does not apply to casual Employees.”

[16] Section 90 of the Act, which forms part of the NES, provides as follows in relation to the payment of annual leave:

“90 Payment for annual leave

(1) If, in accordance with this Division, an employee takes a period of paid annual leave, the employer must pay the employee at the employee’s base rate of pay for the employee’s ordinary hours of work in the period.

(2) If, when the employment of an employee ends, the employee has a period of untaken paid annual leave, the employer must pay the employee the amount that would have been payable to the employee had the employee taken that period of leave.”

[17] Ms McIntosh, who appeared for the applicant, contended that s.90(2) of the Act had to be considered in the context of the entire provision and in particular s.90(1) which applied to leave “in accordance with this Division”. This, it was said, meant that ss.(2) applied to leave that was being granted or paid for in accordance with the NES and as there was no leave loading provided by ss.(1), no such obligation extended to leave paid out on termination.

[18] This approach was said by the employer to be reinforced by the fact that the term “paid annual leave” was used in both subsections of s.90 of the Act. That term was defined in s.12 of the Act in the following way:

“paid annual leave means paid annual leave to which a national system employee is entitled under section 87.”

[19] I interpose that s.87 of the Act establishes the basic annual leave entitlement as part of the NES.

[20] In relation to s.55 of the Act, the applicant contended that where an enterprise agreement provided for annual leave arrangements, these operated in parallel, with the NES operating as a minimum in its own right.

[21] It was also contended that the legislation did not intend any award or agreement-based leave loading to form part of the minimum standards and cited the relevant Explanatory Memorandum 3 for support. That memorandum4 indicated that the NES was intended to provide the same coverage and quantum of leave as the earlier Australian Fair Pay and Conditions Standard (the AFPC standard), which did not contain leave loading. This, it was said, was reinforced by the fact that some of the modern awards established by the Australian Industrial Relations Commission and Fair Work Australia did not provide for annual leave loading to be paid upon termination (even where a loading was payable on leave taken), and enterprise agreements had been approved by the Tribunal which had the same arrangements, including the present agreement applying to these parties.5

[22] Ms McIntosh confirmed that the applicant would provide an undertaking in relation to clause 36.4 of the agreement, but only if Fair Work Australia determined that such was required.

[23] As outlined above, the IEU and the other unions covered by the agreement did not seek to make submissions on the matter.

[24] In the course of the hearing I made an indirect reference to some legal advice that the Fair Work Ombudsman (FWO) had publicly cited concerning the operation of s.90(2) of the Act. I subsequently made arrangements to obtain, and provide a copy of that advice 6 to the parties, and sought further submissions.

[25] The FWO advice is to the effect that s.90(2) means that where annual leave loading is payable for leave taken pursuant to an award, enterprise agreement or contract, that loading will also be payable as a minimum standard on accrued leave paid out on termination of employment. The basis of that advice is that that is the clear application of the words “the amount that would have been payable to the employee had the employee taken that period of leave” as set out in the provision, and there was no basis to apply the concept of base rate of pay or any other limitation given the clear words of the Act.

[26] The advice also confirms that the NES provision would, pursuant to s.55 of the Act, override any inconsistent provision of an award or enterprise agreement. This aspect is not directly in contention here.

[27] The employer subsequently confirmed its position that an undertaking was not required and made further written submissions to that end.

[28] Rather unhelpfully, none of the relevant unions subsequently made any submissions on the matter.

[29] McHugh, Gummow, Kirby and Hayne JJ (Brennan CJ dissenting) said in Project Blue Sky Inc v. Australian Broadcasting Authority (1998) 194 CLR 355 at 381 and 385:

“The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute. The meaning of the provision must be determined ‘by reference to the language of the instrument viewed as a whole’. In Commissioner for Railways (NSW) v. Agalanios, Dixon CJ pointed out that ‘the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed’. Thus, the process of construction must always begin by examining the context of the provision that is being construed.

…

If s.122(1) and (2) were given their grammatical meaning, without regard to the provisions of s.160, they would authorise the making of standards which were inconsistent with Australia’s obligations under international conventions or under its agreements with foreign countries. However, the express words of s.122(4) and the mandatory direction in s.160 show that the grammatical meaning of s.122(1) and (2) is not the legal meaning of those sub-sections. When s.122 is read with s.160, the legal meaning of s.122 is that the ABA must determine standards relating to the Australian content of programs but only to the extent that those standards are consistent with the directions in s.160. If, by reason of an obligation under a convention or agreement with a foreign country, it is impossible to make an Australian content standard that is consistent with that obligation, the ABA is precluded by s.160 from making the standard, notwithstanding the literal command of s.12291) and (2).’ [Footnotes omitted]”

[30] In Cooper Brookes (Wollongong) Pty Ltd v. Federal Commissioner of Taxation 7 Mason and Wilson JJ commented:8

“The fundamental object of statutory construction in every case is to ascertain the legislative intention by reference to the language of the instrument viewed as a whole. But in performing that task the courts look to the operation of the statute according to its terms and to legitimate aids to construction.

The rules, as D. C. Pearce says in Statutory Interpretation, p. 14, are no more than rules of common sense, designed to achieve this object. They are not rules of law. If the judge applies the literal rule it is because it gives emphasis to the factor which in the particular case he thinks is decisive. When he considers that the statute admits of no reasonable alternative construction it is because (a) the language is intractable or (b) although the language is not intractable, the operation of the statute, read literally, is not such as to indicate that it could not have been intended by the legislature.

On the other hand, when the judge labels the operation of the statute as “absurd”, “extraordinary”, “capricious”, “irrational” or “obscure” he assigns a ground for concluding that the legislature could not have intended such an operation and that an alternative interpretation must be preferred. But the propriety of departing from the literal interpretation is not confined to situations described by these labels. It extends to any situation in which for good reason the operation of the statute on a literal reading does not conform to the legislative intent as ascertained from the provisions of the statute, including the policy which may be discerned from those provisions.

Quite obviously questions of degree arise. If the choice is between two strongly competing interpretations, as we have said, the advantage may lie with that which produces the fairer and more convenient operation so long as it conforms to the legislative intention. If, however, one interpretation has a powerful advantage in ordinary meaning and grammatical sense, it will only be displaced if its operation is perceived to be unintended.”

[31] Further, the general rules of statutory construction require that the Tribunal endeavour to give some effect to all provisions of an Act and this means that where one interpretation will render a section ineffectual while another would give it a field of operation, the latter alternative should be adopted, particularly if it produces a more reasonable result. 9

[32] It is evident from the scheme of the Act that the relevant elements of the NES are intended to be minimum standards that will apply to all national system employees. The interaction rules as discussed earlier also form an important part of the context of the statute.

[33] At a general level, the language of the Act itself suggests that the payment for annual leave as part of the NES may be different in the case of leave paid upon termination. That is, s.90(1) refers specifically to the base rate and this could readily have been repeated in ss.(2). However, an alternative expression, “the amount that would have been payable to the employee had the employee taken that period of leave” has been used and this leads to the presumption that a different payment may be required as a minimum standard in that event.

[34] Applying that approach, this would mean that the NES for annual leave actually taken does not require a leave loading, however if a loading is applicable for other reasons, the NES requires that it be included as part of any payout of the accrued leave on termination. This is perhaps not the obvious outcome given the scheme of the Act but is it such that the literal and initial meaning of the provision could not have been intended?

[35] To the extent that the explanatory memorandum may be considered to assist with the construction of the Act, the reference back to the former APCS is more consistent with the view that annual leave loading was not to apply as part of the NES. However, the reference to “coverage and quantum” is not explicit and the provisions of the memorandum specifically dealing with what is now s.90(2) 10 refer only to the direct language used by the provision.

[36] There is of course some tension with the concept of the NES in effect providing as a minimum standard for a more generous payment for the leave paid out on termination than when leave is actually taken. However, the concept that annual leave loading could form part of the NES where it was otherwise payable on leave is arguably not so problematic that it could not have been intended by the Act. That is, it is feasible that the NES intends that employees are not disadvantaged by the fact that they were unable to take the entitlement as actual leave.

[37] What then is the significance of s.90(1) applying to leave “taken in accordance with this Division” and does this impact upon s.90(2) of the Act? The employer contends that this phrase conditions both subsections and as a result, where the leave is actually taken in accordance with the terms of another instrument (in this case the enterprise agreement) it is not actually being taken in accordance with the NES and the minimum provisions don’t apply.

[38] The relevant expression (taken in accordance with this Division) is used in many other elements of the NES 11 and its impact needs to be carefully considered to avoid undermining the role of the NES within the Act; that is, to act as a genuine minimum standard across the system. The impact of s.55 and s.56 of the Act, which in effect requires the terms of the enterprise agreement to be read subject to the more beneficial operation of the NES, also needs to be considered.

[39] On each other occasion where that expression is used, the relevant NES refers to the base rate and I am inclined to the view that this is intended to reinforce that the minimum standards rely upon the concept of the base rate, whereas leave taken under other instruments may have additional benefits. However, the particular expression in question, and reference to the base rate, are not used in s.90(2) and this is arguably more consistent with an intention for the annual leave payment on termination provision to operate on a different basis.

[40] However, as contended by Ms McIntosh for the employer, I do accept that there is some significance in the fact that s.90 refers to “paid annual leave” and this has a particular definition which suggests that the leave that is being contemplated by s.90(2) is leave that the employee concerned is entitled to under the NES itself.

[41] The approach contended by the employer would mean that, amongst other requirements, an approvable agreement must at least match the stated annual leave entitlements set out in s.87 and s.90(1) of the Act and ensure that untaken annual leave is to be paid out on termination in order to comply with the NES. Further, the agreement may supplement and extend that entitlement, as in the case of this agreement in terms of the leave being paid at higher rates than required by s.90(1). However, the annual leave loading would not form part of the minimum standard for present purposes as the leave being contemplated in s.90(2) is the annual leave (directly) provided by s.87 of the Act.

[42] I have also considered the fact that an equivalent definition for paid leave appears in s.12 in relation to other leave elements of the NES. This does not in my view necessarily contradict the approach contended in this case and is consistent with the scheme of the Act whereby the NES operates as a minimum standard but does not prevent more beneficial terms, including payments in excess of the base rate, being applied under other instruments contemplated by the Act.

[43] In an ideal scenario, this issue would be comprehensively resolved and I would accept that leaving some uncertainty between the approach apparently adopted by the FWO and that as will apparently operate under this agreement (and other enterprise agreements and some modern awards) is undesirable. However, this matter has not involved full argument and it is not therefore appropriate that I attempt to decisively determine the matter.

[44] The immediate question is whether I am certain that the agreement provision is in contravention of s.55. I accept that the alternative position is strongly arguable and that ultimately Fair Work Australia 12 or a Court of competent jurisdiction will decisively determine the matter. However, for the moment I am not convinced that the agreement provision is in contravention of s.55 of the Act and on that basis an undertaking was not required.

THE WAGES ISSUE

[45] The agreement provides for wage increases based upon existing rates 13 but did not contain the actual wages due under the instrument. This approach was adopted as the agreement applies to various worksites in different states and somewhat different arrangements have been agreed in order to recognise the fact that the existing wages do vary. The employer did provide to Fair Work Australia a comprehensive table that set out all of the wages rates intended to apply.

[46] I advised the parties that I would require an undertaking that would provide confirmation of the actual wages to become payable under the agreement. This was necessary in my view both to ensure compliance with the Better Off Overall Test set out in s.193 of the Act, and some other relevant approval requirements. Further, some confirmation was desirable to facilitate appropriate compliance and enforcement.

[47] The employer subsequently provided the following undertakings to Fair Work Australia:

“1. The wage rates provided to Fair Work Australia in the approval proceedings with respect to AG2012/3846 are the relevant ‘base hourly wage rates’ for the purposes of clause 24.2 and 24.5 and will be rates to which increases are applied in accordance with clause 24.6.

2. The wage rates provided to Fair Work Australia in the approval proceedings with respect to AG2012/3846 will upon request to the Employer, be made available to an Employee covered by the Agreement, the Fair Work Ombudsman and/or a party to the Agreement including United Voice, the Independent Education Union of Australia (NSW/ACT Branch) and the Australian Education Union (AEU Vic).”

[48] Having heard from the unions to be covered by the agreement as bargaining representatives, I was satisfied that the undertakings on the wages issue met my concerns, would not lead to any financial disadvantage to employees and did not substantially change the agreement. On that basis, I accepted them pursuant to s.190 of the Act and as a result, the undertakings attached to the agreement as approved are taken to be a term of the agreement.

CONCLUSIONS

[49] Having considered all other aspects of the application I was satisfied that each of the requirements of ss.186, 187 and 188 of the Act as are relevant to the application for approval had been met.

[50] The Agreement was approved in a decision 14 issued under the Act and in accordance with s.54 operated from 4 April 2012. The nominal expiry date of the Agreement is 27 March 2015.

COMMISSIONER

Appearances:

Z McIntosh and B Lindsay of Livingstones with M Nobelen and C White for Goodstart Early Learning Limited.

V Heron for the Independent Education Union of Australia.

Hearing details:

2012
Adelaide, Brisbane, Sydney (by Phone)
March 20.

Final written submissions:
2012
March 27.

 1   The Form F18s (Declaration Of Employee Organisation In Relation To An Application For Approval Of Enterprise Agreement) filed in this matter by the unions supported the application and the employer’s declaration and did not specifically address the annual leave issue.

 2   Such as the cashing out of annual leave (s.93).

 3   Explanatory Memorandum to the Fair Work Bill 2008.

 4   Pages x and xvii as part of the regulatory analysis.

 5   ABC Learning Centres and LHMU Enterprise Agreement 2009 approved on 23 February 2010.

 6   Memorandum of Advice to the FWO by Jeffrey Phillips SC dated 17 December 2010.

 7 (1981) 147 CLR 297.

 8   at pp 320-1

 9   See generally Pearce & Geddes, Statutory Constructions in Australia, 4th edition, at [2.17] and the discussion in Charlton v Eastern Australian Airlines Pty Limited AIRC PR972773, 7 July 2006 per Lawler VP, Blain DP and Gay C.

 10   Para 372.

 11   Section 99 in relation to personal/carers leave, s.106 in relation to compassionate leave, s.111 in relation to jury service, s.116 in relation to public holidays all use the expression “in accordance with this Division.

 12   A number of recent applications to amend the annual leave provisions of some of the modern awards will require this issue to be considered.

 13   The existing wages rates are in the main established by existing approved collective agreements.

 14   [2012] FWAA 2620  PR521742.

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