MA000122  PR588751

The attached document replaces the document previously issued with the above code on 20 December 2016.

The award code is corrected throughout

Clauses 21.3(e) to (m) are renumbered as 21.3(a) to (i) in item 4.

On behalf of the President, Justice Ross

Dated 22 December 2016

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

4 yearly review of modern awards—Annual leave
(AM2014/47)

SEAGOING INDUSTRY AWARD 2010
[MA000122]

4 yearly review of modern awards - annual leave common issue.

A. Further to the Full Bench decision issued by the Fair Work Commission on 19 December 2016 1, the above award is varied as follows:

1. By renaming clause 20.4—Leave in advance as clause 20.4—Leave in advance: employer direction.

2. By numbering the sentence in clause 21 as clause 21.1.

3. By inserting clause 21.2 as follows:

21.2 Annual leave in advance

(a) An employer and employee may agree in writing to the employee taking a period of paid annual leave before the employee has accrued an entitlement to the leave.

(b) An agreement must:

(i) state the amount of leave to be taken in advance and the date on which leave is to commence; and

(ii) be signed by the employer and employee and, if the employee is under 18 years of age, by the employee’s parent or guardian.

Note: An example of the type of agreement required by clause 21.2 is set out at Schedule D. There is no requirement to use the form of agreement set out at Schedule D.

(c) The employer must keep a copy of any agreement under clause 21.2 as an employee record.

(d) If, on the termination of the employee’s employment, the employee has not accrued an entitlement to all of a period of paid annual leave already taken in accordance with an agreement under clause 21.2, the employer may deduct from any money due to the employee on termination an amount equal to the amount that was paid to the employee in respect of any part of the period of annual leave taken in advance to which an entitlement has not been accrued.

4. By inserting clause 21.3 as follows:

21.3 Cashing out of annual leave

(a) Paid annual leave must not be cashed out except in accordance with an agreement under clause 21.3.

(b) Each cashing out of a particular amount of paid annual leave must be the subject of a separate agreement under clause 21.3.

(c) An employer and an employee may agree in writing to the cashing out of a particular amount of accrued paid annual leave by the employee.

(d) An agreement under clause 21.3 must state:

(i) the amount of leave to be cashed out and the payment to be made to the employee for it; and

(ii) the date on which the payment is to be made.

(e) An agreement under clause 21.3 must be signed by the employer and employee and, if the employee is under 18 years of age, by the employee’s parent or guardian.

(f) The payment must not be less than the amount that would have been payable had the employee taken the leave at the time the payment is made.

(g) An agreement must not result in the employee’s remaining accrued entitlement to paid annual leave being less than 4 weeks.

(h) The maximum amount of accrued paid annual leave that may be cashed out in any period of 12 months is 2 weeks.

(i) The employer must keep a copy of any agreement under clause 21.3 as an employee record.

Note 1: Under section 344 of the Fair Work Act, an employer must not exert undue influence or undue pressure on an employee to make, or not make, an agreement under clause 21.3.
Note 2: Under section 345(1) of the Fair Work Act, a person must not knowingly or recklessly make a false or misleading representation about the workplace rights of another person under clause 21.3.
Note 3: An example of the type of agreement required by clause 21.3 is set out at Schedule E. There is no requirement to use the form of agreement set out at Schedule E.

5. By inserting Schedule D—Agreement to Take Annual Leave in Advance as follows:

AGREEMENT TO TAKE ANNUAL LEAVE IN ADVANCE

Name of employee: _____________________________________________

Name of employer: _____________________________________________

The employer and employee agree that the employee will take a period of paid annual leave before the employee has accrued an entitlement to the leave:

The amount of leave to be taken in advance is: ____ hours/days

The leave in advance will commence on: ___/___/20___

Signature of employee: ________________________________________

Date signed: ___/___/20___

Name of employer representative: ________________________________________

Signature of employer representative: ________________________________________

Date signed: ___/___/20___

6. By inserting Schedule E—Agreement to Cash Out Annual Leave as follows:

AGREEMENT TO CASH OUT ANNUAL LEAVE

Name of employee: _____________________________________________

Name of employer: _____________________________________________

The employer and employee agree to the employee cashing out a particular amount of the employee’s accrued paid annual leave:

The amount of leave to be cashed out is: ____ hours/days

The payment to be made to the employee for the leave is: $_______ subject to deduction of income tax/after deduction of income tax (strike out where not applicable)

The payment will be made to the employee on: ___/___/20___

Signature of employee: ________________________________________

Date signed: ___/___/20___

Name of employer representative: ________________________________________

Signature of employer representative: ________________________________________

Date signed: ___/___/20___

7. By updating the table of contents and cross-references accordingly.

B. This determination comes into operation from 20 December 2016. In accordance with s.165(3) of the Fair Work Act 2009 these items do not take effect until the start of the first full pay period that starts on or after 20 December 2016.

PRESIDENT

 1   [2016] FWCFB 9074

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