| [2018] FWCFB 6439 |
| FAIR WORK COMMISSION |
STATEMENT |
Fair Work Act 2009
s.156—4 yearly review of modern awards
4 yearly review of modern awards—Plain Language—Standard Clauses
(AM2016/15)
JUSTICE ROSS, PRESIDENT |
BRISBANE, 24 OCTOBER 2018 |
4 yearly review of modern awards –– Plain language – standard clauses – clause H.
[1] This Statement deals with the draft determinations published in relation to plain language standard clauses.
[2] The Commission published a Statement on 24 August 2018 1 confirming the provisional view expressed in a Decision issued on 14 August 2018,2 that modern awards set out at Attachment A should be varied to replace existing standard modern award terms with the plain language standard clauses:
A. Award flexibility
B. Consultation about major workplace change
C. Consultation about changes to rosters or hours of work
D. Dispute resolution
E. Termination of employment
F. Redundancy
G. Transfer to lower paid job on redundancy
H. Employee leaving during the redundancy notice period.
[3] A schedule of draft determinations was published on 24 August 2018 (revised on 7 September 2018) 3 and comments were invited in relation to the draft determinations. The Statement dated 1 October 20184 dealt with an issue in raised by the ACTU and the CFMMEU—Mining and Energy Division (the CFMMEU) in relation to clause G. Submissions opposing the insertion of certain model terms were received in respect of five modern awards. Thirteen other modern awards have various award specific issues which require further consideration. We return to these 18 awards later.
[4] In respect of the remaining 104 modern awards set out at Attachment A, the only submission dealing with a substantive issue 5 was received from the CFMMEU.6 This submission was supported by the AMWU in its submission dated 20 September 2018. The CFMMEU raised two general issues relating to the structure of standard clause H in the following awards:
• Textile, Clothing, Footwear and Associated Industries Award 2010
• Dry Cleaning and Laundry Industry Award 2010
• Manufacturing and Associated Industries and Occupations Award 2010; and
• Timber Industry Award 2010.
[5] The issues raised are that:
(i) the reference to clause H in clause H.2 is incorrect as clause H does not contain any ‘benefits and payments’; and
(ii) the placement of clause H.4—Job search entitlement under clause H may cause confusion.
[6] Standard clause H provides:
‘H. Employee leaving during redundancy notice period
H.1 An employee given notice of termination in circumstances of redundancy may terminate their employment during the period of the notice prescribed by s.117(3) of the Act.
H.2 The employee is entitled to receive the benefits and payments they would have received under clause H of this award or under Subdivisions B and C of Division 11 of Part 2-2 of the Act had they remained in employment until the expiry of the notice.
H.3 However, the employee is not entitled to be paid for any part of the period of notice remaining after the employee ceased to be employed.
H.4 Job search entitlement
(a) Where an employer has given notice of termination to an employee in circumstances of redundancy, the employee must be allowed time off without loss of pay of up to one day each week of the minimum period of the notice prescribed by s.117(3) of the Act for the purpose of seeking other employment.
(b) If an employee is allowed time off without loss of pay of more than one day under paragraph (a), the employee must, at the request of the employer, produce proof of attendance at an interview.
(c) A statutory declaration is sufficient for the purpose of paragraph (b).
(d) An employee who fails to produce proof when required under paragraph (b) is not entitled to be paid for the time off.
(e) This entitlement applies instead of clause E.2.’
[7] The draft determination in respect of the Dry Cleaning and Laundry Industry Award 2010 (the Dry Cleaning Award) illustrates the issues raised by the CFMMEU. Paragraph 7 of that draft determination would delete clause 12.3 of the Dry Cleaning Award and replace it with the following:
12.3 Employee leaving during redundancy notice period
(a) An employee given notice of termination in circumstances of redundancy may terminate their employment during the period of the notice prescribed by s.117(3) of the Act.
(b) The employee is entitled to receive the benefits and payments they would have received under clause 12.3 of this award or under Subdivisions B and C of Division 11 of Part 2-2 of the Act had they remained in employment until the expiry of the notice.
(c) However, the employee is not entitled to be paid for any part of the period of notice remaining after the employee ceased to be employed.
(d) Job search entitlement
(i) Where an employer has given notice of termination to an employee in circumstances of redundancy, the employee must be allowed time off without loss of pay of up to one day for each week of the minimum period of the notice prescribed by s.117(3) of the Act for the purpose of seeking other employment.
(ii) If an employee is allowed time off without loss of pay of more than one day under paragraph (i), the employee must, at the request of the employer, produce proof of attendance at an interview.
(iii) A statutory declaration is sufficient for the purpose of paragraph (ii).
(iv) An employee who fails to produce proof when required under paragraph (ii) is not entitled to be paid for the time off.
(v) This entitlement applies instead of clause 11.2.
[8] As to the placement of standard clause H (proposed clause 12.3) in the Dry Cleaning Award, the CFMMEU submits that the draft determination has the unintended consequence of limiting the entitlement in clause 12.3(b) (standard clause H.2) to the benefits and payments they would have received under clause 12.3 (standard clause H) of the award. The primary source of substantive redundancy pay entitlements are found in clauses 12.1 to 12.2 of the Dry Cleaning Award and hence in its current formulation the draft determination would not include those award entitlements or any benefits under clause 12 generally. The CFMMEU submits that the most straightforward way to address the unintended consequence is to amend the draft determination to refer to ‘clause 12 of this award’. 7
[9] The second issue concerns proposed standard clause H.4 (clause 12.3(d) in the Dry Cleaning Award). The CFMMEU submits that the subject matter of proposed subclauses 12.3(a), (b) and (c) is limited to circumstances where an employee leaves during the redundancy notice period; whereas the subject matter of subclause 12.3(d) is about a job search entitlement generally and is not limited to the circumstances canvassed in subclauses 12.3(a) to (c).
[10] The CFMMEU submits that the placement of proposed clause 12.3(d) does not reflect the subject matter of proposed clause 12.3 as a whole and may be confusing to readers of the award. It proposes that clause 12.3(d) of the draft determination be renumbered as clause 12.4, with its own subheading.
[11] The issues raised by the CFMMEU also affect the proposed insertion of standard clause H into all other modern awards.
[12] We propose to give to further consideration to the structure of the redundancy standard clauses F-H.
Next Steps
[13] A Statement issued on 1 October 2018 8 indicated at paragraph [10] that final variation determinations for the plain language standard clauses would be issued and would take effect on 1 November 2018. Given the issues raised by the CFMMEU, we propose to issue final variation determinations in relation to standard clauses A-E to take effect on 1 November 2018.
[14] A Statement will be issued shortly with further steps in relation to standard clauses F-H.
[15] As mentioned earlier, there are some 18 modern awards which are yet to be finalised and this includes the four awards that were the subject of the CFMMEU’s submission. A list of these awards is set out at Attachment B. We will issue a Statement shortly setting out the next steps in relation to these awards.
PRESIDENT
Printed by authority of the Commonwealth Government Printer
<PR701530>
ATTACHMENT A
Aboriginal Community Controlled Health Services Award 2010
Aged Care Award 2010
Aircraft Cabin Crew Award 2010
Airline Operations-Ground Staff Award 2010
Airport Employees Award 2010
Alpine Resorts Award 2010
Aluminium Industry Award 2010
Ambulance and Patient Transport Industry Award 2010
Amusement, Events and Recreation Award 2010
Aquaculture Industry Award 2010
Asphalt Industry Award 2010
Banking, Finance and Insurance Award 2010
Book Industry Award 2010
Broadcasting, Recorded Entertainment and Cinemas Award 2010
Business Equipment Award 2010
Car Parking Award 2010
Cement and Lime Award 2010
Cemetery Industry Award 2010
Children's Services Award 2010
Cleaning Services Award 2010
Clerks—Private Sector Award 2010
Coal Export Terminals Award 2010
Commercial Sales Award 2010
Concrete Products Award 2010
Contract Call Centres Award 2010
Corrections and Detention (Private Sector) Award 2010
Cotton Ginning Award 2010
Educational Services (Post-Secondary Education) Award 2010
Educational Services (Schools) General Staff Award 2010
Electrical Power Industry Award 2010
Electrical, Electronic and Communications Contracting Award 2010
Fast Food Industry Award 2010
Fire Fighting Industry Award 2010
Fitness Industry Award 2010
Food, Beverage and Tobacco Manufacturing Award 2010
Funeral Industry Award 2010
Gardening and Landscaping Services Award 2010
Gas Industry Award 2010
General Retail Industry Award 2010
Graphic Arts, Printing and Publishing Award 2010
Hair and Beauty Industry Award 2010
Health Professionals and Support Services Award 2010
Higher Education Industry-Academic Staff-Award 2010
Higher Education Industry-General Staff-Award 2010
Horse and Greyhound Training Award 2010
Horticulture Award 2010
Hospitality Industry (General) Award 2010
Hydrocarbons Field Geologists Award 2010
Hydrocarbons Industry (Upstream) Award 2010
Journalists Published Media Award 2010
Labour Market Assistance Industry Award 2010
Legal Services Award 2010
Live Performance Award 2010
Local Government Industry Award 2010
Marine Tourism and Charter Vessels Award 2010
Maritime Offshore Oil and Gas Award 2010
Market and Social Research Award 2010
Meat Industry Award 2010
Medical Practitioners Award 2010
Mining Industry Award 2010
Miscellaneous Award 2010
Nursery Award 2010
Nurses Award 2010
Oil Refining and Manufacturing Award 2010
Passenger Vehicle Transportation Award 2010
Pastoral Award 2010
Pest Control Industry Award 2010
Pharmaceutical Industry Award 2010
Pharmacy Industry Award 2010
Port Authorities Award 2010
Ports, Harbours and Enclosed Water Vessels Award 2010
Poultry Processing Award 2010
Premixed Concrete Award 2010
Professional Diving Industry (Industrial) Award 2010
Professional Diving Industry (Recreational) Award 2010
Quarrying Award 2010
Racing Clubs Events Award 2010
Racing Industry Ground Maintenance Award 2010
Rail Industry Award 2010
Registered and Licensed Clubs Award 2010
Restaurant Industry Award 2010
Road Transport (Long Distance Operations) Award 2010
Road Transport and Distribution Award 2010
Salt Industry Award 2010
Seafood Processing Award 2010
Seagoing Industry Award 2010
Security Services Industry Award 2010
Silviculture Award 2010
Social, Community, Home Care and Disability Services Industry Award 2010
Sporting Organisations Award 2010
State Government Agencies Award 2010
Stevedoring Industry Award 2010
Storage Services and Wholesale Award 2010
Sugar Industry Award 2010
Supported Employment Services Award 2010
Surveying Award 2010
Telecommunications Services Award 2010
Transport (Cash in Transit) Award 2010
Travelling Shows Award 2010
Vehicle Manufacturing, Repair, Services and Retail Award 2010
Waste Management Award 2010
Water Industry Award 2010
Wine Industry Award 2010
Wool Storage, Sampling and Testing Award 2010
ATTACHMENT B
Air Pilots Award 2010
Animal Care and Veterinary Services Award 2010
Architects Award 2010
Black Coal Mining Industry Award 2010
Building and Construction General On-site Award 2010
Dredging Industry Award 2010
Dry Cleaning and Laundry Industry Award 2010
Educational Services (Teachers) Award 2010
Joinery and Building Trades Award 2010
Mannequins and Models Award 2010
Manufacturing and Associated Industries and Occupations Award 2010
Marine Towage Award 2010
Mobile Crane Hiring Award 2010
Plumbing and Fire Sprinklers Award 2010
Professional Employees Award 2010
Real Estate Industry Award 2010
Textile, Clothing, Footwear and Associated Industries Award 2010
Timber Industry Award 2010
3 Schedule of draft determinations - revised.
5 The Ai Group made a submission relating to typographical errors in two draft determinations.
6 CFMMEU submissions, 19 September 2018 – paragraphs 44, 48 – 60, 63 – 71, 79 – 89, 93 – 103.
7 CFMMEU submissions, 19 September 2018 – paragraphs 51 – 54.