[2016] FWCFB 4525


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

4 yearly review of modern awards – taking of annual leave.



4 yearly review of modern awards - common issue – annual leave – Maritime Industry Awards – finalisation of excessive leave provisions in remaining awards.

[1] On 23 May 2016 we issued a decision (the May 2016 decision) 1 dealing with, among other things, the insertion of the model terms relating to excessive leave; annual leave in advance and cashing out of annual leave into various modern awards. Arising from that decision, a number of modern awards have been the subject of proceedings before the Commission directed at finalising whether these awards should be varied to include some or all of the model terms.

[2] These directions concern two different groupings of modern awards as set out below.

The ‘Maritime Industry Awards’

[3] The ‘Maritime Industry Awards’ are the:

[4] The Australian Mines and Metals Association (AMMA) and the Maritime Industry Australia Ltd (MIAL) oppose the insertion of the model terms into the Maritime Awards. The Maritime Union of Australia (MUA) supports that position.

[5] The May 2016 decision sets out some of the broader background to the present matter at paragraphs [231]–[235]. Relevantly paragraphs [233]–[238] state:

[6] Directions and a Background Paper 4 were issued by the Commission in advance of the hearing scheduled for 1 July 2016. At that hearing, we granted an adjournment to enable AMMA, MIAL and the MUA (and any other interested persons) to provide further evidence and submissions in support of their position that the model terms should not be inserted into the Maritime Industry Awards.

Specified Modern Awards requiring that leave be taken within a specified period

[7] In the May 2016 decision, we also identified 20 modern awards that contained provisions requiring that leave be taken within a specific period. 5 Ai Group, and others, contended that the provisions in these awards relating to the taking of annual leave ‘appear to have been crafted to prevent an excessive accrual of paid annual leave; or would at least have that effect’.6

[8] The 20 modern awards fall into two sub-categories as follows:

[9] All of the above modern awards were the subject of a conference before Hampton C on 1 July 2016. Arising from the conference, 7 the following observations may be made:

[10] It is also appropriate to note that the Employer Organisations with an interest in the Black Coal Mining Industry Award 2010 have confirmed their intention to oppose the adoption of the excessive leave model term and have already provided submissions and materials to the Commission in support of that position.

Maritime Industry Awards

Specified Modern Awards requiring that leave be taken within a specified period


 1   [2016] FWCFB 3177.

 2   [2015] FWCFB 8408 at [6].

 3   [2016] FWCFB 3177 at [233] – [238].

 4   [2016] FWCFB 4332 – issued on 28 June 2016.

 5   [2016] FWCFB 3177 at [123].

 6   Ibid at [122].

 7   Transcript of the conference is available on the Commission’s website.

 8   Section 87 of the Fair Work Act 2009.

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