STATEMENT

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

4 yearly review of modern awards—Family & Domestic Violence Leave Clause and Other Matters
(AM2015/1 and others)

JUSTICE ROSS, PRESIDENT

MELBOURNE, 18 APRIL 2017

4 yearly review of modern awards – Family & Domestic Violence Leave Clause – Arrangements for other matters.

[1] On 27 February 2017 Vice President Watson published his decision in this matter. The Vice President’s resignation from the Fair Work Commission took effect on 28 February 2017. At the time of Vice President Watson’s resignation, the other two members of the relevant Full Bench (Deputy President Gooley and Commissioner Spencer) had not published their decisions and they sought my advice as to whether they may proceed to finalise and publish a decision in the matter, having regard to s. 622 of the Fair Work Act 2009 (Cth). On 27 March 2017 I published a Statement 1 directing interested parties to address several questions including the proper construction of s. 622.

[2] A number of parties filed written submissions and appeared at a hearing on 4 April 2017. 2 At that hearing I noted that the former Vice President had been the presiding Member of a number of other Full Bench matters. I indicated that I would issue a further statement setting out the other matters that were before Full Benches in which the former Vice President was the presiding Member and which had not been completed prior to his resignation. The purpose of this Statement is to set out the relevant details relating to those 10 matters and to provide interested parties with an opportunity to comment on the appropriate course of action. A list of the 10 matters is provided at Attachment A of this Statement.

[3] Interested parties to the matters listed at Attachment A are to file submissions by 4:00 pm Friday 5 May 2017 indicating whether they continue to pursue their claims and whether the Full Bench should be reconstituted in the respective matter. Submissions should include comment on how the respective matter should proceed. All material should be sent to amod@fwc.gov.au.

[4] Interested parties may review the submissions provided in relation to the finalisation of the Family & Domestic Violence Leave matter and the transcript of the 4 April 2017 hearing. 3

[5] I will consider the submissions received and then issue a further Statement indicating the course of action to be adopted for each matter.

PRESIDENT

	Matter	Full Bench	Legislation	Applicant/ Proponent	Status
1	AM2015/2 – Family Friendly Work Arrangements	Watson VP, Gooley DP, Spencer C	Fair Work Act 2009 s.156 – Four yearly review of modern awards	Australian Council of Trade Unions	A telephone Mention was conducted by Watson VP on 21 December 2016 Amended Directions were issued on 22 December 2016.
2	AM2016/5 – Ports, Harbours And Enclosed Water Vessels Award 2010 Seagoing Industry Award 2010 Marine Towage Award 2010	Watson VP, Drake SDP, Cambridge C	Fair Work Act 2009 s.156 – Four yearly review of modern awards	The Australian Institute of Marine and Power Engineers The Australian Maritime Officers’ Union The Maritime Union of Australia	Decision issued by Full Bench 24 February 2017 Determinations to be finalised.
3	AM2014/190 – Transitional Provisions – Accident Pay	Watson VP, Kovacic DP, Bull DP	Fair Work Act 2009 s.156 – Four yearly review of modern awards	Coal Mining Industry Employer Group	The Full Bench’s decision on 18 August 2015 to insert substantive accident pay provisions into a number of modern awards was followed by a jurisdictional decision confirming that a variation to the cap on accident pay could be considered as part of the Review. Following the jurisdictional decision on 17 October 2016, the Coal Mining Industry Employer Group’s claim to reduce the cap on accident pay in the Black Coal Mining Industry Award 2010 is on-going. Vice President Watson issued amended directions on 30 January 2017 varying the submission dates and indicating a hearing date of 24 July 2017. To date, parties have complied with those directions and the submissions have been published on the website.
4	AM2014/190 – Transitional Provisions – District Allowances	Watson VP, Kovacic DP, Bull DP	Fair Work Act 2009 s.156 – Four yearly review of modern awards	Shop, Distributive and Allied Employees Association (SDA)	In the Full Bench’s decision of 11 February 2015 to retain the Broken Hill allowance in a number of modern awards, it was noted at [64]: [64] In so deciding, we note that some of the unions in the proceedings have made application for the inclusion of nationally applicable remote allowance provisions in modern awards and that the SDA has indicated its support for these claims. It may therefore be appropriate for the parties to the awards to revisit the Broken Hill allowance having regard to the outcome of such claims. Directions were issued on 7 April 2016 On 12 April 2016 the SDA filed a submission in support of the claim to include a location allowance in the Pharmacy Industry Award 2010, General Retail Industry Award 2010, Hair and Beauty Industry Award 2010, Fast Food Industry Award 2010 and Vehicle Manufacturing, Repair, Services and Retail Award 2010. The SDA’s submission set out two draft model clauses for the payment of a location allowance; one is based on geodesic distance from a capital city and the other would provide a prescriptive list of remote locations. Submissions in reply were provided by interested employer parties opposed to the location allowance claim. These included the Pharmacy Guild of Australia, Australian Business Industrial and the NSW Business Chamber, the Australian Industry Group, the Australian Retailers Association, Business SA, the Chamber of Commerce and Industry WA and Master Grocers Australia and Liquor Retailers Australia. No further action has been taken.
5	AM2013/30 and AM2014/286 – Supported Employment Services Award 2010	Watson VP, Booth DP, Cambridge C	Fair Work Act 2009 s.156 – Four yearly review of modern awards s.160 – Application to vary a modern award	United Voice Health Services Union	Booth DP has been conducting conferences about these matters.
6	AM2013/33—Application to terminate the Medical Scientists, Pharmacists and Psychologists (Public Sector - Victoria) Award 2003 [AT830467]	Watson VP, Smith DP, Lee C	Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 Sch. 6A, Item 5 - Application to terminate a State reference public sector transitional award	Victorian Hospitals' Industrial Association	Correspondence was sent to parties on 28 October 2016 seeking an update on the status of the matter. No response has been received.
7	AM2013/43—Application to modernise the: Medical Scientists, Pharmacists and Psychologists (Public Sector - Victoria) Award 2003 [AT830467] Health and Allied Services - Public Sector - Victoria Consolidated Award 1998 [AT783945] Health Professional Services - Public Sector - Victoria Award 2003 [AT827096]	Watson VP, Smith DP, Lee C	Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 Sch. 6A, Item 4 - Application to make a State reference public sector modern award	Health Services Union	Correspondence was sent to parties on 28 October 2016 seeking an update on the status of the matter. No response has been received.
8	AM2013/34—Application to terminate the Health and Allied Services - Public Sector - Victoria Consolidated Award 1998 [AT783945]	Watson VP, Smith DP, Lee C	Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 Sch. 6A, Item 5 - Application to terminate a State reference public sector transitional award	Victorian Hospitals' Industrial Association	Correspondence was sent to parties on 28 October 2016 seeking an update on the status of the matter. No response has been received.
9	AM2013/36—Application to terminate the Hospital Specialists and Medical Administrators Award 2002 CRV [AT816036]	Watson VP, Smith DP, Lee C	Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 Sch. 6A, Item 5 - Application to terminate a State reference public sector transitional award	Victorian Hospitals' Industrial Association	Correspondence was sent to parties on 28 October 2016 seeking an update on the status of the matter. A response was received on 7 November 2016 stating the applicant would provide further material by 11 November 2016. No further correspondence has been received.
10	AM2013/37—Application to terminate the Health Professional Services - Public Sector - Victoria Award 2003 [AT827096]	Watson VP, Smith DP, Lee C	Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 Sch. 6A, Item 5 - Application to terminate a State reference public sector transitional award	Victorian Hospitals' Industrial Association	Correspondence was sent to parties on 28 October 2016 seeking an update on the status of the matter. No response has been received.

1 [2017] FWC 1733

2 Transcript – 4 April 2017

3 AM2015/1 – Family and Domestic Violence Leave

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