| [2018] FWCFB 7447 |
| FAIR WORK COMMISSION |
DECISION |
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 |
MELBOURNE, 11 DECEMBER 2018 |
4 yearly review of modern awards –– Plain language – standard clauses – Redundancy clauses – Award specific matters.
Background
[1] This Decision sets out the next steps for the two remaining issues in the plain language standard clauses matter. The first issue was set out in a Statement dated 24 October 2018 1 (the 24 October statement) and concerns standard clauses F–H, which deal with redundancy. The second issue is the 18 awards with award-specific issues that require separate consideration.
[2] The Commission published a Statement on 24 August 2018 2 (the August 2018 statement) confirming the provisional view expressed in a Decision issued on 14 August 2018,3 (the August 2018 decision) that all modern awards should be varied to replace existing standard modern award terms with the following plain language standard clauses:
A. Individual flexibility arrangements
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 duties 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 4 and further revised on 2 October 2018)5 and comments were invited on the draft determinations. A Statement dated 1 October 20186 dealt with an issue raised by the ACTU and the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) Manufacturing Division in relation to a drafting error in clause G of the draft determinations. Submissions opposing the insertion of certain plain language standard clauses were received in respect of 5 modern awards.7 Thirteen other modern awards have various award-specific issues that require further consideration.8
[4] In respect of the remaining 104 modern awards, the CFMMEU made the only submission raising substantive issues. 9 The CFMMEU raised 2 general issues relating to the structure of standard clause H. These issues 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.
[5] The issues raised by the CFMMEU and the unintended consequences of the drafting of standard clause H were noted in the 24 October statement. While the CFMMEU only raised these issues in respect of 4 awards 10 they affect the proposed insertion of standard clause H into all modern awards.
[6] In the 24 October 2018 statement we proposed to give to further consideration to the structure of the plain language standard redundancy clauses F–H. In addition to the 2 issues raised by the CFMMEU, we considered that the following issues also need to be addressed:
• whether standard clauses F, G and H should be rolled back into a single clause; and
• whether standard clause F should be in the form of a note rather than a substantive award provision.
[7] In relation to the first issue, the previous decisions have dealt with the plain language redundancy provisions in 3 separate clauses (standard clauses F, G and H). However, redundancy provisions currently appear in a single clause in 121 modern awards. 11
[8] The issues identified by the CFMMEU raise a question as to whether separation of the redundancy provisions into 3 separate clauses makes the provisions more complicated or creates cross-referencing difficulties. The Plain Language Guidelines note that:
‘2.2 The aim of plain language drafting is to make an award as simple and easy to understand as possible, without taking away from precision or omitting necessary information or unintentionally changing the legal effect of the award.
2.3 Awards that are not simple and easy to understand can cost money by creating the need for employers and employees to seek professional advice.’
[9] Currently, the 100 modern awards that are listed in Attachment A include the same redundancy provisions (save for numbering). For example, the redundancy provisions in the Aboriginal Community Controlled Health Services Award 2010 are as follows:
‘12. Redundancy
12.1 Redundancy pay is provided for in the NES.
12.2 Transfer to lower paid duties
Where an employee is transferred to lower paid duties by reason of redundancy, the same period of notice must be given as the employee would have been entitled to if the employment had been terminated and the employer may, at the employer’s option, make payment instead of an amount equal to the difference between the former ordinary time rate of pay and the ordinary time rate of pay for the number of weeks of notice still owing.
12.3 Employee leaving during notice period
An employee given notice of termination in circumstances of redundancy may terminate their employment during the period of notice. The employee is entitled to receive the benefits and payments they would have received under this clause had they remained in employment until the expiry of the notice, but is not entitled to payment instead of notice.
12.4 Job search entitlement
(a) An employee given notice of termination in circumstances of redundancy must be allowed up to one day’s time off without loss of pay during each week of notice for the purpose of seeking other employment.
(b) If the employee has been allowed paid leave for more than one day during the notice period for the purpose of seeking other employment, the employee must, at the request of the employer, produce proof of attendance at an interview or they will not be entitled to payment for the time absent. For this purpose a statutory declaration is sufficient.
(c) This entitlement applies instead of clause 11.3.’
[10] Our provisional view is that the plain language standard redundancy provisions should be restructured as a single clause. Consistent with other decisions in relation to NES entitlements and the Plain Language Guidelines, 12 standard clause F will be converted to a note. In addition, some minor changes have been made to the wording of the clause in the interests of consistency and clarity.
[11] The resulting plain language standard redundancy clause (with the minor wording changes marked-up) is set out below:
F. Redundancy
NOTE: Redundancy pay is provided for in the NES. See sections 119–123 of the Act.
F.1 Transfer to lower paid duties on redundancy
(a) Clause F.1 applies if, because of redundancy, an employee is transferred to new duties to which a lower ordinary rate of pay applies is applicable.
(b) The employer may:
(i) give the employee notice of the transfer of at least the same length as the employee would be entitled to under section 117 of the Act as if it were a notice of termination given by the employer; or
(ii) transfer the employee to the new duties without giving notice of transfer or before the expiry of a notice of transfer, provided that the employer pays the employee as set out in paragraph (c).
(c) If the employer acts as mentioned in paragraph (b)(ii), the employee is entitled to a payment of an amount equal to the difference between the ordinary rate of pay of the employee (inclusive of all-purpose allowances, shift rates allowances and penalty rates applicable to ordinary hours) for the hours of work the employee would have worked in the first role, and the ordinary rate of pay (also inclusive of all-purpose allowances, shift rates allowances and penalty rates applicable to ordinary hours) of the employee in the second role for the period for which notice was not given.
F.2. Employee leaving during redundancy notice period
(a) An employee given notice of termination in circumstances of redundancy may terminate their employment during the minimum period of the notice prescribed by section 117(3) of the Act.
(b) The employee is entitled to receive the benefits and payments they would have received under clause F of this award or under Subdivisions B and C of Division 11 of Part 2-2 sections 119–123 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.
F.3 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 section 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.
[12] Our provisional view is that the restructured plain language standard redundancy clause will be inserted into the 100 awards listed in Attachment A.
[13] Of the remaining 22 modern awards, 21 have redundancy provisions. These 21 awards can be divided into 3 separate categories:
Category 1:
Awards with an industry-specific redundancy scheme.
Category 2:
Awards with an industry-specific redundancy element that supplements the NES (such as providing an entitlement to redundancy pay for employees of small businesses).
Category 3:
Awards with other variations from the standard redundancy provisions.
[14] The first category relates to awards with an industry-specific redundancy scheme.
[15] An ‘industry-specific redundancy scheme’ is defined in s.12 of the Fair Work Act 2009 (Cth) (the FW Act) to mean:
‘redundancy or termination payment arrangements in a modern award that are described in the award as an industry-specific redundancy scheme.’
[16] Section 141 of the FW Act authorises the inclusion of industry-specific redundancy schemes in modern awards. Section 141 provides:
‘141 Industry-specific redundancy schemes
When can a modern award include an industry-specific redundancy scheme?
(1) A modern award may include an industry-specific redundancy scheme if the scheme was included in the award:
(a) in the award modernisation process; or
(b) in accordance with subsection (2).
Note: An employee to whom an industry-specific redundancy scheme in a modern award applies is not entitled to the redundancy entitlements in Subdivision B of Division 11 of Part 2-2.
Coverage of industry-specific redundancy schemes must not be extended
(2) If:
(a) a modern award includes an industry-specific redundancy scheme; and
(b) the FWC is making or varying another modern award under Division 4 or 5 so that it (rather than the modern award referred to in paragraph (a)) will cover some or all of the classes of employees who are covered by the scheme;
the FWC may include the scheme in that other modern award. However, the FWC must not extend the coverage of the scheme to classes of employees that it did not previously cover.
Varying industry-specific redundancy schemes
(3) The FWC may only vary an industry-specific redundancy scheme in a modern award under Division 4 or 5:
(a) by varying the amount of any redundancy payment in the scheme; or
(b) in accordance with a provision of Subdivision B of Division 5 (which deals with varying modern awards in some limited situations).
(4) In varying an industry-specific redundancy scheme as referred to in subsection (3), the FWC:
(a) must not extend the coverage of the scheme to classes of employees that it did not previously cover; and
(b) must retain the industry-specific character of the scheme.
Omitting industry-specific redundancy schemes
(5) The FWC may vary a modern award under Division 4 or 5 by omitting an industry-specific redundancy scheme from the award.
[17] Pursuant to s.141(3)(b) above, the Commission may vary an industry-specific redundancy scheme under s.160 to remove an ambiguity or uncertainty or to correct an error.
[18] The following 6 awards include industry-specific redundancy schemes:
• Black Coal Mining Industry Award 2010
• Building and Construction General On-site Award 2010
• Dredging Industry Award 2010
• Higher Education—Academic Staff—Award 2010
• Mobile Crane Hiring Award 2010
• Plumbing and Fire Sprinklers Award 2010.
[19] We note that the industry-specific redundancy schemes in the Building and Construction General On-site Award 2010 (Building Award) and the Plumbing and Fire Sprinklers Award 2010 (Plumbing Award) were recently considered by the Construction Full Bench in the Award Stage of the Review and that no changes were made to these provisions. 13 In that matter, the Housing Industry Association (HIA) sought to remove the industry-specific redundancy scheme in the Building Award, or in the alternative, to amend the definition of redundancy. A similar claim was made by the Master Plumbers Group (MPG) in relation to the Plumbing Award. The Full Bench rejected these claims and concluded:
‘[83] As was found to be the case in the Transitional Review, we consider that the cases advanced by the HIA, the MBA and the CCF amount to little more than a re-agitation of the issues heard and determined by the Award Modernisation Full Bench. No cogent reasons have been advanced to depart from the conclusions reached by the Full Bench, and the evidence has not demonstrated any relevant change in circumstances. We do not consider that any variation to clause 17 is necessary in order for the Building Award to meet the modern awards objective, or that the variations proposed by the claimants would necessarily achieve the objective. The claims to vary clause 17 of the Building Award are therefore rejected.
[84] With respect to the Plumbing Award, we consider the same conclusions apply for the same reasons, and the MPG claims are rejected.’ 14
[20] Our provisional view is that the industry-specific redundancy schemes in the Black Coal Mining Industry Award 2010 (Black Coal Award), the Building Award, the Dredging Industry Award 2010, the Mobile Crane Hiring Award 2010 and the Plumbing Award should be retained rather than being replaced by the plain language standard redundancy clause.
[21] The wording of the industry-specific redundancy schemes in the Building Award and the Plumbing Award does raise one technical issue which was not put to the Construction Full Bench. These industry-specific redundancy schemes include similar provisions in relation to ‘redundancy pay schemes’ at clauses 17.4 and 18.4 respectively. Clause 18.4 of the Plumbing Award is as follows:
‘18.4 Redundancy pay schemes
(a) Where an employer terminates the employment of an employee and the employer incurs a redundancy pay obligation to the employee under this clause, some or all of the benefit the employee receives from a redundancy pay fund may be set off against the employer’s redundancy pay obligation under this clause, subject to the following conditions.
(b) If the employee receives a benefit from the redundancy pay fund, the employer may set off any proportion of the benefit which is attributable to the employer’s contribution to the fund against its redundancy pay obligation under this clause. If the proportion so calculated is equal to or greater than the employer’s redundancy pay obligation under this clause the obligation will be fully satisfied.
(c) If the employee does not receive a benefit from the redundancy pay scheme, contributions made by an employer on behalf of an employee to the scheme will, to the extent of those contributions, be set off against the liability of the employer under this clause and payments to the employee will be made in accordance with the rules of the redundancy pay scheme fund or any agreement relating thereto. If the contribution is equal to or greater than the employer’s redundancy pay obligation under this clause the obligation will be fully satisfied.
(d) The redundancy pay scheme must be an Approved Worker Entitlement Fund under the Fringe Benefits Tax Regulations 1992.’
[22] Clause 18.4(d) refers to the Fringe Benefits Tax Regulations 1992. These Regulations included a list of prescribed approved worker entitlement funds at Schedule 3. The Regulations were replaced by the Fringe Benefits Tax Assessment Regulations 2018 15 on 1 October 2018.16 In addition, references to ‘approved worker entitlement funds’ were removed from the Regulations in 2013.
[23] Materials from the ATO 17 indicate that as at 29 June 2018 these funds are still in existence and operate as in clauses 18.4(b) and 18.4(c) of the Plumbers Award. The term ‘approved worker entitlement funds’ is defined in the Fringe Benefits Tax Assessment Act 1986 (Cth) at s.58PB.
[24] Parties are asked to consider whether the reference to the ‘Fringe Benefits Tax Regulations 1992’ in clause 18.4(d) of the Plumbers Award, and the corresponding reference in clause 17.4(c) of the Building Award, should be replaced with a reference to the ‘Fringe Benefits Tax Assessment Act 1986’. Submissions on this point are due by 4.00 pm on 21 December 2018.
[25] The Higher Education—Academic Staff—Award 2010 (Academic Staff Award) includes both the standard award redundancy provision set out at [9] above (at clause 16) and an industry-specific redundancy scheme (at clause 17). Clause 17 applies to any institution that was bound by the Universities and Post Compulsory Academic Conditions Award 1999 as at 12 September 2008. Clause 17 was considered by the 4 yearly review of modern awards–Education group Full Bench in a decision dated 20 February 2018. 18 In that matter, the Full Bench rejected an application from the Australian Higher Education Industrial Association seeking to remove clause 17. A variation was made to clause 17.6.19
[26] Our provisional view is that clause 16 of the Academic Staff Award should be replaced by the plain language standard redundancy clause and that clause 17 will not be varied. However, we are conscious that retaining the reference to the coverage of the predecessor award may create practical problems for employers and employees bound by the award, as it is not readily available. There are at least two potential solutions to this issue. The first would be to provide a link to the predecessor award in the modern award and the second would be to set out the list of institutions bound by the predecessor award as a schedule to the modern award. Interested parties are invited to comment on the preferred means of addressing this issue, by 4.00 pm on Friday 25 January 2019. Submissions in reply are to be filed by 4.00 pm on Friday 8 February 2019.
[27] The second category relates to awards with industry-specific redundancy elements that supplement the NES, such as by providing an entitlement to redundancy pay for employees of small businesses. The two awards in this category are:
• Air Pilots Award 2010
• Aircraft Cabin Crew Award 2010
• Cleaning Services Award 2010
• Educational Services (Teachers) Award 2010
• Electrical, Electronic and Communications Contracting Award 2010
• Joinery and Building Trades Award 2010
• Mannequins and Models Award 2010
• Manufacturing and Associated Industries and Occupations Award 2010
• Security Services Industry Award 2010
• Sugar Industry Award 2010
• Textile, Clothing, Footwear and Associated Industries Award 2010
• Timber Industry Award 2010.
[28] Our provisional view is that awards with an industry-specific element that supplements the NES should be amended to include the plain language standard redundancy clause, but with adaptations as necessary to retain the substance of the industry-specific elements. The note at the beginning of the redundancy clause in these awards may also be amended so as to refer to the industry-specific elements.
[29] We note that the background to the industry specific redundancy clauses in the Mannequins and Models Award 2010 and the Sugar Industry Award 2010 require further consideration. We will publish a statement in respect of these awards in January 2019.
[30] As an example, the Air Pilots Award 2010 (Air Pilots Award) currently contains two different notice entitlements for employees at clause 13.2:
‘13.2 Transfer to lower paid duties
(a) Employees engaged in aerial operations and helicopter operations
Where an employee is transferred to lower paid duties by reason of redundancy, the same period of notice must be given as the employee would have been entitled to if the employment had been terminated and the employer may, at the employer’s option, make payment instead of an amount equal to the difference between the former ordinary time rate of pay and the ordinary time rate of pay for the number of weeks of notice still owing.
(b) All other employees
Where an employee is transferred to lower paid duties by reason of redundancy, the pilot will be given the following minimum notice or paid at the existing salary rate for the notice specified below.
Period of service |
Minimum notice |
Under 1 year continuous service |
3 weeks |
Over 1 year but under 3 years continuous service |
6 weeks |
Over 3 years continuous service |
8 weeks’ |
[31] The industry-specific adaptation of the standard redundancy provisions that we propose to insert into the Air Pilots Award is set out below:
13. Redundancy
Note: Redundancy pay is provided for in the NES. See sections 119-123 of the Act..
13.1 Transfer to lower paid duties on redundancy for employees engaged in aerial application operations or helicopter operations
(a) Clause 13.1 applies to an employee engaged in aerial application operations or helicopter operations who, because of redundancy, is transferred to new duties to which a lower ordinary rate of pay applies.
(b) The employer may:
(i) give the employee notice of the transfer of at least the same length as the employee would be entitled to under section 117 of the Act as if it were a notice of termination given by the employer; or
(ii) transfer the employee to the new duties without giving notice of transfer or before the expiry of a notice of transfer, provided that the employer pays the employee as set out in paragraph (c).
(c) If the employer acts as mentioned in paragraph (b)(ii), the employee is entitled to a payment of an amount equal to the difference between the ordinary rate of pay of the employee (inclusive of all-purpose allowances and penalty rates applicable to ordinary hours) for the hours of work the employee would have worked in the first role, and the ordinary rate of pay (also inclusive of all-purpose allowances and penalty rates applicable to ordinary hours) of the employee in the second role for the period for which notice was not given.
13.2. Transfer to lower paid duties on redundancy for all other employees
(a) Clause 13.2 applies to an employee who is not engaged in aerial application operations or helicopter operations and who, because of redundancy, is transferred to new duties to which a lower ordinary rate of pay applies.
(b) In clause 13.2 period of notice means the period specified in column 2 of Table 1—Notice of transfer to lower paid duties according to the period of continuous service of the employee specified in column 1.
Table 1—Notice of transfer to lower paid duties
Column 1
|
Column 2
|
Not more than 1 year |
3 weeks |
More than 1 year but not more than 3 years |
6 weeks |
More than 3 years |
8 weeks |
(c) In paragraph (b) continuous service has the same meaning as in section 117 of the Act.
(d) The employer may:
(i) give the employee notice of the transfer of at least the length of the period of notice; or
(ii) transfer the employee to the new duties without giving notice of transfer, provided that the employer pays the employee as set out in paragraph (e).
(e) If the employer acts as mentioned in paragraph (d)(ii), the employee is entitled to be paid at the existing salary rate for the period of notice.
13.3. Employee leaving during redundancy notice period
(a) An employee given notice of termination in circumstances of redundancy may terminate their employment during the minimum period of notice prescribed by section 117(3) of the Act.
(b) The employee is entitled to receive the benefits and payments they would have received under clause 13 or under sections 119–123 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.
13.4 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 notice prescribed by section 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 12.2.
[32] Some further award-specific issues in the Electrical, Electronic and Communications Contracting Award 2010 (EECC Award), the Manufacturing and Associated Industries and Occupations Award 2010 (Manufacturing Award) and the Timber Industry Award 2010 (Timber Award) are considered below.
Electrical, Electronic and Communications Contracting Award 2010
[33] The EECC Award contains a provision in relation to ‘redundancy pay schemes’ at clause 15.7. This clause is similar to clause 18.4 of the Plumbers Award (set out at [21] above) and raises the same issue regarding the reference in the clause to the ‘Fringe Benefits Tax Regulations 1992’.
[34] Parties are asked to consider whether the reference in clause 15.7(d) of the EECC Award to the ‘Fringe Benefits Tax Regulations 1992’ should be replaced with reference to the ‘Fringe Benefits Tax Assessment Act 1986’. Submissions on this point are due by 4.00 pm on 21 December 2018.
Timber Industry Award 2010 and Manufacturing and Associated Industries and Occupations Award 2010
[35] A review of the redundancy provisions in the Timber Award raises two issues. The first issue relates to the application of clause 15.7 and the second issue relates to the operation of clause 15.8. These clauses are as follows:
‘15.7 Small employer
(a) For the purposes of this clause small employer means an employer to whom the NES does not apply because of the provisions of s.121(1)(b) of the Act.
(b) Despite the terms of s.121(1)(b) of the Act, the remaining provisions of Subdivisions B and C of Division 11 of the NES apply in relation to an employee of a small employer who performs any of the work within the scope of this award which immediately prior to 1 January 2010 was in clause 6 of the Timber and Allied Industries Award 1999, or clause 6 of the Furnishing Industry National Award 2003 except that the amount of redundancy pay to which such an employee is entitled must be calculated in accordance with the following table:
Employee’s period of continuous service with the employer on termination |
Redundancy pay period |
Less than 1 year |
Nil |
At least 1 year but less than 2 years |
4 weeks |
At least 2 years but less than 3 years |
6 weeks |
At least 3 years but less than 4 years |
7 weeks |
At least 4 years and over |
8 weeks |
15.8 Such provisions do not apply to weekly piecework employees.’
[36] Clause 15.7 of the Timber Award supplements the NES by providing redundancy pay for some employees of a ‘small employer’. Pursuant to clause 15.7(b) this redundancy pay entitlement applies to:
‘an employee … who performs any work within the scope of [the Timber Award] which immediately prior to 1 January 2010 was in clause 6 of the Timber and Allied Industries Award 1999, or clause 6 of the Furnishing Industry National Award 2003’.
[37] Clause 6 of each of the two predecessor pre-modern awards was the coverage clause. The coverage clauses of the Timber Award and the two predecessor awards are set out in the table at Attachment B.
[38] Comparing the types of work covered by the Timber Award and by the two predecessor awards, it appears that all of the types of work within the scope of the Timber Award were also covered by one or both of the two predecessor awards, with the exception of the work described in Timber Award clause 4.1(f)—Pulp and paper sector.
[39] In addition to limiting coverage according to the types of work covered, the coverage clauses of the two predecessor awards limited the application of the awards to specified States and Territories, whereas the Timber Award covers employers throughout Australia (in Attachment B see respectively the preamble to clause 6 of the Furnishing Industry National Award 2003, clause 6.1 of the Timber and Allied Industries Award 1999 and clause 4.1 of the Timber Award).
[40] Our provisional view is that Timber Award clause 15—Redundancy, should be replaced by the plain language standard redundancy clause together with a new redundancy pay provision, clause 15.4—Redundancy pay for employee of small business employer, as set out at [43] below. The proposed new redundancy pay provision has been drafted on the basis that clause 15.7(b) of the Timber Award limits the application of ‘small employer’ redundancy pay according to the types of work covered by the two predecessor awards, but not also according to the geographic application of the two predecessor awards. Accordingly, the proposed new provision applies to ‘small business employers’ throughout Australia.
[41] If, contrary to our provisional view, clause 15.7(b) of the Timber Award does limit the application of ‘small employer’ redundancy pay also on a geographic basis, clause 15.7(b) would be a ‘State-based difference term’ that is now prohibited by s.154 of the FW Act. Were that the case, the potential options would be either to entirely remove the ‘small employer’ redundancy pay provision from the Timber Award or to omit the geographic limitations from the provision so that (like proposed new clause 15.4) it applies throughout Australia.
[42] In relation to the second issue, the operation of clause 15.8 of the Timber Award, it is not entirely clear whether the exclusion in clause 15.8 is directed just to clause 15.7—Small employer, or to all of clause 15—Redundancy. In any case, clause 15.8 appears to be otiose given the exclusion of pieceworkers from various award provisions (including clause 15) under clause 12.5(d) of the award and we propose to omit it from the new redundancy provision.
[43] The new ‘small business employer’ redundancy pay provision we propose to insert into the Timber Award is set out below:
15.4 Redundancy pay for employee of small business employer
(a) Clause 15.4 applies to an employee of a small business employer except for an employee who:
(i) only performs work within clause 4.2(f)—Pulp and paper sector of this award; or
(ii) is excluded from redundancy pay under the NES by section 121(1)(a), section 123(1) or section 123(4)(a) of the Act.
(b) In paragraph (a) an employee is an employee of a small business employer if, immediately before the time the employee’s employment is terminated, or at the time when the employee is given notice of termination as described in section 117(1) of the Act (whichever happens first), the employer is a small business employer as defined by section 23 of the Act.
(c) Subject to paragraphs (f) and (g), an employee is entitled to be paid redundancy pay by the employer if the employee’s employment is terminated:
(i) at the employer’s initiative because the employer no longer requires the job done by the employee to be done by anyone, except where this is due to the ordinary and customary turnover of labour; or
(ii) because of the insolvency or bankruptcy of the employer.
(d) The amount of the redundancy pay in paragraph (c) equals the total amount payable to the employee for the redundancy pay period specified in column 2 of Table 2—Redundancy pay period according to the period of continuous service of the employee specified in column 1, worked out at the employee’s base rate of pay for his or her ordinary hours of work.
Table 2—Redundancy pay period
Column 1 |
Column 2 |
Less than 1 year |
Nil |
At least 1 year but less than 2 years |
4 weeks |
At least 2 years but less than 3 years |
6 weeks |
At least 3 years but less than 4 years |
7 weeks |
At least 4 years and over |
8 weeks |
(e) In paragraph (d) continuous service has the same meaning as in section 119 of the Act.
(f) The terms of section 120 of the Act apply as if section 120 referred to ‘paragraph (c)’ rather than ‘section 119’.
NOTE: Under section 120 of the Act the Fair Work Commission can determine that the amount of redundancy pay under the NES is to be reduced if the employer obtains other acceptable employment for the employee or cannot pay that amount. Paragraph (f) applies these arrangements also to redundancy pay under clause 15.4.
(g) The terms of section 122 of the Act apply as if section 122 referred to ‘clause 15.4’ rather than ‘this Subdivision’ and to ‘paragraph (c)’ rather than ‘section 119’.
NOTE: Under section 122 of the Act transfer of employment situations can affect the obligation to pay redundancy pay under the NES and the Fair Work Commission can make orders affecting redundancy pay. Paragraph (g) applies these arrangements also to redundancy pay under clause 15.4.
[44] If any interested party opposes our provisional view at [40] above, they should lodge a submission explaining their objection. If any party wishes to contend that clause 15.7(b) of the Timber Award does limit the application of ‘small employer’ redundancy pay on a geographic basis, they should also address the issue of how clause 15.7 of the Timber Award should now be dealt with having regard to the prohibition of ‘State-based difference terms’ in s.154 of the FW Act. Submissions on these points are due by 4.00 pm on 21 December 2018.
[45] Clause 23.2 of the Manufacturing Award is a ‘small furnishing employer’ redundancy pay provision similar to clause 15.7 of the Timber Award. Clause 23.2 is set out below:
‘23.2 Small furnishing employer
(a) For the purposes of clause 23.2(b), small employer means an employer to whom Subdivision B of Division 11 of the NES does not apply because of the provisions of s.121(1)(b) of the Act.
(b) Despite the terms of s.121(1)(b) of the Act, the remaining provisions of Subdivisions B and C of Division 11 of the NES apply in relation to an employee of a small employer who performs any of the work within the Manufacturing and Associated Industries and Occupations which immediately prior to 1 January 2010 was in clauses 6.1 to 6.6 of the Furnishing Industry National Award 2003, except that the amount of redundancy pay to which such an employee is entitled must be calculated in accordance with the following table:
Employee’s period of continuous service with the employer on termination |
Redundancy pay period |
Less than 1 year |
Nil |
At least 1 year but less than 2 years |
4 weeks pay |
At least 2 years but less than 3 years |
6 weeks pay |
At least 3 years but less than 4 years |
7 weeks pay |
At least 4 years and over |
8 weeks pay’ |
[46] Our provisional view is that Manufacturing Award clause 23—Redundancy, should be replaced by the plain language standard redundancy clause together with a new redundancy pay provision, clause 23.4—Redundancy pay for employee of furnishing small business employer, as set out at [49] below. As the description of the types of work to which the present redundancy pay provision applies (as per clause 23.2(b) above) is not as amenable to simplification as the corresponding provision in the Timber Award, the present description is reproduced in the new redundancy pay provision. We later invite submissions as to how the current description of the types of work to which the present redundancy pay provision applies may be simplified.
[47] Similarly to the new clause proposed for the Timber Award, the proposed new redundancy pay clause has been drafted on the basis that clause 23.2(b) of the Manufacturing Award limits the application of ‘small furnishing employer’ redundancy pay according to the types of work covered by the Furnishing Industry National Award 2003, but not also according to the geographic application of the predecessor pre-modern award. We note in that respect that clause 23.2(b) refers only to clauses 6.1 to 6.6 of the predecessor award and not also to the preamble to the coverage clause (see Attachment B).
[48] If, contrary to our provisional view, clause 23.2(b) of the Manufacturing Award does limit the application of ‘small furnishing employer’ redundancy pay also on a geographic basis, then (as with the corresponding provision of the Timber Award) the potential options would be either to entirely remove the ‘small furnishing employer’ redundancy pay provision from the award or to omit the geographic limitations.
[49] The new ‘furnishing small business employer’ redundancy pay provision we propose to insert into the Manufacturing Award is set out below:
23.4 Redundancy pay for employee of furnishing small business employer
(a) Clause 23.4 applies to an employee of a small business employer who performs any of the work within the Manufacturing and Associated Industries and Occupations which, immediately prior to 1 January 2010, was in clauses 6.1 to 6.6 of the Furnishing Industry National Award 2003, except for an employee who is excluded from redundancy pay under the NES by section 121(1)(a), section 123(1) or section 123(4)(a) of the Act.
(b) In paragraph (a) an employee is an employee of a small business employer if, immediately before the time the employee’s employment is terminated, or at the time when the employee is given notice of termination as described in section 117(1) of the Act (whichever happens first), the employer is a small business employer as defined by section 23 of the Act.
(c) Subject to paragraphs (f) and (g), an employee is entitled to be paid redundancy pay by the employer if the employee’s employment is terminated:
(i) at the employer’s initiative because the employer no longer requires the job done by the employee to be done by anyone, except where this is due to the ordinary and customary turnover of labour; or
(ii) because of the insolvency or bankruptcy of the employer.
(d) The amount of the redundancy pay in paragraph (c) equals the total amount payable to the employee for the redundancy pay period specified in column 2 of Table 2—Redundancy pay period according to the period of continuous service of the employee specified in column 1, worked out at the employee’s base rate of pay for his or her ordinary hours of work.
Table 2—Redundancy pay period
Column 1
|
Column 2
|
Less than 1 year |
Nil |
At least 1 year but less than 2 years |
4 weeks |
At least 2 years but less than 3 years |
6 weeks |
At least 3 years but less than 4 years |
7 weeks |
At least 4 years and over |
8 weeks |
(e) In paragraph (d) continuous service has the same meaning as in section 119 of the Act.
(f) The terms of section 120 of the Act apply as if section 120 referred to ‘paragraph (c)’ rather than ‘section 119’.
NOTE: Under section 120 of the Act the Fair Work Commission can determine that the amount of redundancy pay under the NES is to be reduced if the employer obtains other acceptable employment for the employee or cannot pay that amount. Paragraph (f) applies these arrangements also to redundancy pay under clause 23.4.
(g) The terms of section 122 of the Act apply as if section 122 referred to ‘clause 23.4’ rather than ‘this Subdivision’ and to ‘paragraph (c)’ rather than ‘section 119’.
NOTE: Under section 122 of the Act transfer of employment situations can affect the obligation to pay redundancy pay under the NES and the Fair Work Commission can make orders affecting redundancy pay. Paragraph (g) applies these arrangements also to redundancy pay under clause 23.4.
[50] If any interested party opposes our provisional view at [46] above, they should lodge a submission explaining their objection. If any party wishes to contend that clause 23.2(b) of the Manufacturing Award does limit the application of ‘small furnishing employer’ redundancy pay on a geographic basis, they should also address the issue of how clause 23.2 of the Manufacturing Award should now be dealt with having regard to the prohibition of ‘State-based difference terms’ in s.154 of the FW Act. Parties are also invited to make submissions as to how the current description of the types of work to which the present redundancy pay provision applies may be simplified. Submissions on these points are due by 4.00 pm on 25 January 2019. Submissions in reply are to be filed by 4.00 pm on Friday 8 February 2019.
3. Awards with other variations from the standard redundancy provision
[51] The final category of awards is those with other variations from the standard redundancy provisions. The awards in this category are:
• Coal Export Terminals Award 2010
• Higher Education Industry—General Staff Award 2010
• Maritime Offshore Oil and Gas Award 2010
• Seagoing Industry Award 2010.
[52] The redundancy provisions in the Maritime Offshore Oil and Gas Award 2010 and the Seagoing Industry Award 2010 do not currently include a job search entitlement. Our provisional view is that this entitlement should not be included in these 2 awards. The awards will be varied to include only the plain language standard redundancy clause note and sub-clauses F.1 and F.2. The plain language standard redundancy clause is set out at [11] above.
[53] The redundancy provisions in the Coal Export Terminals Award 2010 do not currently include a provision dealing with transfer to lower paid duties on redundancy. Our provisional view is that this should not be included in the award. The award will be varied to include only the plain language standard redundancy clause note and sub-clauses F.2 and F.3.
[54] The Higher Education Industry—General Staff Award 2010 (General Staff Award) is the only award that does not currently include any redundancy provision. The General Staff Award was included in the priority stage of the Award Modernisation process conducted by the Australian Industrial Relations Commission under Part 10A of the Workplace Relations Act 1996 (Cth). The Award Modernisation Decision 200820 which created the General Staff award did not specifically deal with redundancy in the award and did not include any redundancy provisions in the award. Of the 30 pre-reform awards, NAPSAs, and pre-reform enterprise awards that were relevant to the General Staff award, 27 contained redundancy provisions.
[55] Our provisional view is that the General Staff Award should be varied to include the plain language standard redundancy clause.
[56] We previously identified 18 awards with award-specific issues requiring further consideration. These awards are:
• 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.
[57] Of those 18, the following awards only had award-specific issues in relation to redundancy:
• Building and Construction General On-site Award 2010
• Dredging Industry Award 2010
• Joinery and Building Trades Award 2010
• Mannequins and Models Award 2010
• Manufacturing and Associated Industries and Occupations Award 2010
• Mobile Crane Hiring Award 2010
• Plumbing and Fire Sprinklers Award 2010.
[58] Our provisional view in relation to the redundancy provisions to be inserted into the above awards is set out at [20] and [28] above.
[59] The Dry Cleaning and Laundry Industry Award 2010 (the Dry Cleaning Award) was included in the 18 awards with issues requiring further consideration because it was one of the awards included in the CFMMEU submission of 19 September 2018. However, the Dry Cleaning Award is one of the 100 awards referred to at [9] above and does not include any other award-specific issues.
[60] The following awards include award-specific notice periods for termination of employment by an employee (at the specified clauses) that would be removed if standard clause E—Termination of employment was inserted:
• Air Pilots Award 2010 at clause 12.7
• Animal Care and Veterinary Services Award 2010 at clause 11.3
• Architects Award 2010 at clause 12.2
• Black Coal Mining Industry Award 2010 at clause 13.2
• Educational Services (Teachers) Award 2010 at clause 11.4
• Marine Towage Award 2010 at clause 11.6
• Professional Employees Award 2010 at clause 12.2.
Air Pilots Award 2010
[61] In a submission dated 25 September 2018 21 the Australian Federation of Air Pilots (AFAP) raised award-specific issues in relation to two of the plain language standard clauses proposed to be inserted into the Air Pilots Award. The first related to the industry-specific redundancy provisions at clause 13.2(b). We dealt with this at [31] above.
[62] The second issue relates to standard clause E—Termination of Employment. The AFAP submit that Air Pilots Award clauses 12.5—Qualification on termination and 12.6—Accrued days off, provide long standing industry-specific entitlements and should be retained. The AFAP did not make any submission about clause 12.2 (which deals with notice of termination by an employer) or clause 12.7 (which deals with notice of termination by an employee). No other submissions were received in relation to this award.
[63] Clause 12.5 provides:
‘12.5 Qualification on termination
A pilot is entitled to be trained or reimbursed the cost of training to maintain the level required at the commencement of employment, this includes a licence/rating required at the time of termination.’
[64] The AFAP submits that clause 12.5:
‘provides the pilot with the opportunity to immediately restart their career at effectively the same level as when they first started with the employer, with all the necessary licences, ratings and/or endorsements revalidated.
The deletion of that provision in the Award would suddenly require pilots in the future to revalidate their previous licences, ratings and/or endorsements at their own cost.
Such a change would be in stark contrast to a long established, and well known industry standard that has been in existence for at least several decades.’
[65] Clause 12.6 provides:
‘12.6 Accrued days off
Where, at the point of termination, a pilot has accrued under this clause an entitlement to a day or days off, the pilot will receive payment instead of such day or days at the normal rate of salary.’
[66] The AFAP submit that ‘the retention of this clause in essential, to give clear guidance to both pilots and their employers about the correct process for dealing with accrued days off a pilot has at the time of the cessation of employment.’
[67] Our provisional view is that the award-specific clauses 12.5 and 12.6 should be retained in the award on the basis that each provides a long standing entitlement and no party has sought to contest their retention on merit or jurisdictional grounds.
[68] Clause 12.2 of the Air Pilots Award provides:
‘12.2 Notice of termination by an employer
(a) A pilot with less than one year’s continuous service is entitled to two weeks’ notice, payment instead of notice or a combination of both.
(b) A pilot with more than one year’s continuous service is entitled to four weeks’ notice, payment instead of notice or a combination of both.’
[69] While the notice of termination required by clause 12.2 is generally greater than or the same as that required under s.117 of the FW Act, it will be less than the notice required under s.117 in circumstances where the employee concerned has more than 5 years’ continuous service and is over 45 years old at the end of the day notice is given. This issue also arises in relation to notice of termination provisions in the Animal Care and Veterinary Services Award 2010 (Animal Care Award) and the Professional Employees Award 2010 (Professional Employees Award) and is discussed at length at [79]–[93] below.
[70] As with clauses 12.5 and 12.6, clause 12.2 provides a long standing minimum entitlement and no party has sought to contest its retention. Our provisional view is that the notice entitlement under clause 12.2 of the Air Pilots Award should be maintained as a minimum entitlement, but the clause should be redrafted so as not to exclude the NES in circumstances where employees are entitled to 5 weeks’ notice under the NES. Accordingly, we propose to redraft clause 12.2 to read as follows:
12.2 Notice of termination or payment instead of notice by the employer
(a) Clause 12.2 applies to all employees except those identified in sections 123(1) and 123(3) of the Act.
(b) The employer must give an employee notice of termination of employment or payment instead of notice as required under sections 117(1) and 117(2) of the Act, except that the minimum period of notice is to be the period specified in column 2 of Table 2—Period of notice according to the period of continuous service of the employee specified in column 1.
Column 1 |
Column 2 |
Not more than 1 year |
2 weeks |
More than 1 year but not more than 5 years |
4 weeks |
More than 5 years |
4 weeks, or
|
12.2 In clause 12 continuous service has the same meaning as in section 117 of the Act.
[71] Clause 12.7 of the Air Pilots Award provides:
‘12.7 Notice of termination by an employee
(a) A pilot with less than one year’s continuous service is required to give two weeks notice.
(b) A pilot with more than one year’s continuous service is required to give four weeks notice.’
[72] No party has sought to contest the retention of clause 12.7 of the Air Pilots Award.
[73] The plain language standard termination of employment clause is as follows:
‘E. Termination of employment
NOTE: The NES sets out requirements for notice of termination by an employer. See sections 117 and 123 of the Act.
E.1 Notice of termination by an employee
(a) This clause applies to all employees except those identified in sections 123(1) and 123(3) of the Act.
(b) An employee must give the employer notice of termination in accordance with Table X—Period of notice of at least the period specified in column 2 according to the period of continuous service of the employee specified in column 1.
Table X—Period of notice
Column 1 |
Column 2 |
Not more than 1 year |
1 week |
More than 1 year but not more than 3 years |
2 weeks |
More than 3 years but not more than 5 years |
3 weeks |
More than 5 years |
4 weeks |
NOTE: The notice of termination required to be given by an employee is the same as that required of an employer except that the employee does not have to give additional notice based on the age of the employee.
(c) In paragraph (b) continuous service has the same meaning as in section 117 of the Act.
(d) If an employee who is at least 18 years old does not give the period of notice required under paragraph (b), then the employer may deduct from wages due to the employee under this award an amount that is no more than one week’s wages for the employee.
(e) If the employer has agreed to a shorter period of notice than that required under paragraph (b), then no deduction can be made under paragraph (d).
(f) Any deduction made under paragraph (d) must not be unreasonable in the circumstances.
E.2 Job search entitlement
Where an employer has given notice of termination to an employee, the employee must be allowed time off without loss of pay of up to one day for the purpose of seeking other employment.
E.3 The time off under clause 12.3 is to be taken at times that are convenient to the employee after consultation with the employer.’
[74] Clause 12.7 of the Air Pilots Award departs from standard clause E.1 in a number of respects, including:
(i) the scope of the clause;
(ii) the period of notice required; and
(iii) there is no provision for any deduction from wages if the employee fails to give the prescribed notice.
[75] As to matter (i), the scope of the clause, clause 12.7 of the Air Pilots Award is a permitted term by s.136(1)(d) and s.118 of the FW Act. Section 118 is in Division 11 of Part 2–2 and s.123 limits the scope of that Division. In a decision issued on 13 June 2018 22 (June 2018 decision) we decided that it was necessary to make specific reference to s.123 in clause E.1(a) on the basis that:
‘The scope of the award clause should be confined to the extent of our jurisdiction. Further, the insertion of a reference will clarify the application of the substantive provision and make it easier to understand.’ 23
[76] As to matters (ii) and (iii), we do not propose to change the award provision in the absence of an application to do so.
[77] Our provisional view is that the scope of clause 12.7 of the Air Pilots Award must be confined as above and that the clause should be redrafted to read as follows:
12.7 Notice of termination by an employee
(a) Clause 12.7 applies to all employees except those identified in sections 123(1) and 123(3) of the Act.
(b) An employee must give the employer notice of termination in accordance with Table 2—Period of notice of at least the period specified in column 2 according to the period of continuous service of the employee specified in column 1.
Column 1 |
Column 2 |
Not more than 1 year |
2 weeks |
More than 1 year |
4 weeks |
[78] Finally in respect of clause 12 of the Air Pilots Award, in addition to retaining clauses 12.5 and 12.6 and redrafting clauses 12.2 and 12.7 as discussed above, we propose to retain clause 12.4—Payments on termination of employment and clause 12.3—Job search entitlement, convert clause 12.1 into an appropriate note and to reorder and renumber these clauses. Minor amendments to the existing provisions will also be made in the interests of consistent wording. As with the other provisional views in this decision, draft award variation determinations will be published shortly.
Animal Care and Veterinary Services Award 2010, Architects Award 2010 and Professional Employees Award 2010
[79] In the August 2018 statement we noted that the Animal Care Award and the Professional Employees Award contain notice provisions that may be inconsistent with the NES and we sought submissions in relation to that issue.
[80] Clauses 11.2 and 11.3 of the Animal Care Award provide:
‘11.2 Instead of the notice period provided for in s.117(3) of the Act, in order to terminate the employment of a veterinary surgeon the employer must give the employee one month’s notice.
11.3 Notice of termination by an employee
The notice of termination required to be given by an employee is the same as that required of an employer except that there is no requirement on the employee to give additional notice based on the age of the employee concerned. If an employee fails to give the required notice the employer may withhold from any monies due to the employee on termination under this award or the NES, an amount not exceeding the amount the employee would have been paid under this award in respect of the period of notice required by this clause less any period of notice actually given by the employee.’
[81] Clauses 12.2 and 12.3 of the Professional Employees Award are in similar terms. They provide:
‘12.2 Instead of s.117(3)(a) of the Act, in order to terminate the employment of an employee the employer must give the employee one month’s notice.
12.3 Notice of termination by an employee
The notice of termination required to be given by an employee is the same as that required of an employer except that there is no requirement on the employee to give additional notice based on the age of the employee concerned. If an employee fails to give the required notice the employer may withhold from any monies due to the employee on termination under this award or the NES, an amount not exceeding the amount the employee would have been paid under this award in respect of the period of notice required by this clause less any period of notice actually given by the employee.’
[82] Clauses 12.1 and 12.2 of the Architects Award 2010 (the Architects Award) are also in similar terms, with the notable exception of the underlined words in clause 12.1:
‘12.1 Notice of termination is provided for in the NES. Instead of s.117(3) of the Act, in order to terminate the employment of an employee the employer must give the employee one month’s notice except where the NES provides a longer period of notice.
12.2 Notice of termination by an employee
The notice of termination required to be given by an employee is one month. If an employee fails to give the required notice the employer may withhold from the employee any monies due to the employee on termination under this award or the NES, an amount not exceeding the amount the employee would have been paid under this award in respect of the period of notice required by this clause less any period of notice actually given by the employee.’ [emphasis added]
[83] Submissions were received from:
• Australian Business Industrial and NSW Business Chamber (ABI) 24 in relation to the Animal Care Award and the Professional Employees Award;
• Australian Industry Group (Ai Group) 25 in respect of the Professional Employees Award; and
• Association of Professional Engineers, Scientists and Managers, Australia (APESMA) 26 in relation to the Animal Care Award and the Professional Employees Award.
[84] ABI submits:
‘that the intention of providing 1 months’ notice to professional employees and veterinary surgeon’s is a professional entitlement that reflects industry standard. If an employee has completed 5 years continuous service and is over 45 years of age, they should also be entitled to an additional week of notice. However, we submit that employees with less than 5 years continuous service should not receive the additional week (in addition to a 1 month entitlement to notice).’
[85] ABI proposes an amendment to clause 11.2 of the Animal Care Award and clause 12.2 of the Professional Employees Award based on the similar provision in the Architects Award (i.e. clause 12.1 set out at [82] above).
[86] Ai Group submits the award-specific notice provisions should be retained but in a redrafted form to avoid any inconsistency with the NES and that any draft determination should:
• require an employee to provide no less than one month’s notice of termination; and
• require that an employer, for the purposes of s.117, give no less than one month’s notice.
[87] APESMA contends that it is a long-established practice that a month’s notice of termination is the minimum standard for professional employees and that it is not uncommon for contracts of employment to stipulate a longer period. 27
[88] Section 117 of the FW Act sets out the NES requirement for notice of termination or payment in lieu. The minimum period of notice is worked out by applying s.117(3), which provides:
‘(3) Work out the minimum period of notice as follows:
(a) first, work out the period using the following table:
Period | ||
Employee’s period of continuous service with the employer at the end of the day the notice is given |
Period | |
1 |
Not more than 1 year |
1 week |
2 |
More than 1 year but not more than 3 years |
2 weeks |
3 |
More than 3 years but not more than 5 years |
3 weeks |
4 |
More than 5 years |
4 weeks |
(b) Then increase the period by 1 week if the employee is over 45 years old and has completed at least 2 years of continuous service with the employer at the end of the day the notice is given.’
[89] A modern award may include terms that supplement the NES, but only to the extent that the effect of those terms is not detrimental to an employee in any respect, when compared to the NES (s.55(4)(b)).
[90] Subsection 55(1) provides that a modern award must not exclude the NES, or any provision of the NES. A term of a modern award has no effect to the extent that it contravenes s.55 (s.56).
[91] As discussed in Canavan Building Pty Ltd, 28 it is not necessary that an exclusion for the purpose of s.55(1) be in express terms:
‘Section 55(1) of the Act relevantly provides that an enterprise agreement “must not exclude” the NES or any provision thereof. It is not necessary that an exclusion for the purpose of s.55(1) must be constituted by a provision in the agreement ousting the operation of an NES provision in express terms. On the ordinary meaning of the language used in s.55(1), we consider that if the provisions of an agreement would in their operation result in an outcome whereby employees do not receive (in full or at all) a benefit provided for by the NES, that constitutes a prohibited exclusion of the NES. That was the approach taken by the Full Bench in Hull-Moody. The correctness of that approach is also confirmed by the Explanatory Memorandum for the Fair Work Bill 2009 as follows:
“209. This prohibition extends both to statements that purport to exclude the operation of the NES or a part of it, and to provisions that purport to provide lesser entitlements than those provided by the NES. For example, a clause in an enterprise agreement that purported to provide three weeks' annual leave would be contrary to subclause 55(1). Such a clause would be inoperative”’ 29
[92] In requiring only one month’s notice of termination by the employer these award terms exclude part of the NES, in that their operation results in an outcome whereby employees do not receive the full benefit provided by the NES. Under the NES an employee over 45 years of age with more than 5 years’ continuous service is entitled to 5 weeks’ notice; as opposed to the one month’s notice provided by the award terms.
[93] We accept that the provision of one month’s notice in each of these awards is a long standing entitlement that arises from the professional nature of the employment in each of the industries and on that basis should be maintained as a minimum entitlement. However, as presently framed the provisions exclude the NES in circumstances where employees are entitled to 5 weeks’ notice under the NES.
[94] Our provisional view is that the termination of employment provisions of the Professional Employees Award should be replaced with the amended version of the plain language standard clause set out below:
12. Termination of employment
NOTE: Sections 117 and 123 of the Act set out requirements for notice of termination by an employer under the NES. Clause 12.1 requires an employer to give a greater minimum period of notice than that generally required under the NES.
12.1 Notice of termination or payment instead of notice by the employer
(a) Clause 12.1 applies to all employees except those identified in sections 123(1) and 123(3) of the Act.
(b) The employer must give an employee notice of termination of employment or payment instead of notice as required under sections 117(1) and 117(2) of the Act, except that the minimum period of notice is:
(i) one month; or
(ii) 5 weeks if the employee is over 45 years old and has completed more than 5 years of continuous service with the employer at the end of the day the notice is given.
(c) In paragraph (b) continuous service has the same meaning as in section 117 of the Act.
12.2 Notice of termination by an employee
(a) Clause 12.2 applies to all employees except those identified in sections 123(1) and 123(3) of the Act.
(b) An employee must give the employer at least one month’s notice of termination of employment.
(c) If an employee who is at least 18 years old does not give the period of notice required under paragraph (b), then the employer may deduct from wages due to the employee under this award an amount that is no more than one week’s wages for the employee.
(d) If the employer has agreed to a shorter period of notice than that required under paragraph (b), then no deduction can be made under paragraph (c).
(e) Any deduction made under paragraph (c) must not be unreasonable in the circumstances.
12.3 Job search entitlement
(a) Where an employer has given notice of termination to an employee, the employee must be allowed time off without loss of pay of up to one day for the purpose of seeking other employment.
(b) The time off under clause 12.3 is to be taken at times that are convenient to the employee after consultation with the employer.
[95] Our provisional view is that the termination of employment provisions of the Animal Care Award and Architects Award should also be replaced with the amended version of the plain language standard clause above (with the necessary renumbering).
Black Coal Mining Industry Award 2010
[96] There are 2 outstanding issues in relation to the Black Coal Award. We have already dealt with the first issue — whether the industry-specific redundancy scheme should be retained (see [20] above). The second issue relates to the termination of employment provisions of the award.
[97] The CFMMEU contends that 2 termination of employment clauses in the Black Coal Award, clauses 13.2 and 13.4, should be retained. 30 Clause 13.2 provides:
‘13.2 Termination by an employee
An employee must give one week’s notice to terminate employment, or forfeit to the employer one week’s pay instead of giving notice.’
[98] The CFMMEU seeks to retain clause 13.2 on the basis that:
• it is more beneficial for employees covered by the Black Coal Award than the plain language standard clause;
• it contains industry-specific entitlements of long standing;
• the plain language drafting process was not intended to unintentionally change the legal effect of the award; and
• there is no evidence to support a change to the current provision and no application has been made to vary it.
[99] The plain language standard termination of employment clause is set out at [73] above.
[100] Clause 13.2 of the Black Coal Award departs the standard clause E.1 in a number of respects, including:
(i) the scope of the clause;
(ii) the period of notice required;
(iii) there is no exclusion of employees under 18 years of age from the capacity of the employer to make a deduction from wages;
(iv) there is no prohibition of deductions in circumstances where an employer has agreed to accept less than the required period of notice; and
(v) there is no qualification that any deduction made pursuant to the clause must not be unreasonable in the circumstances.
[101] As to matter (i), the permitted scope of an employee notice clause was discussed in relation to the Air Pilots Award at [75]–[77] above. Our provisional view is that the scope of the clause 13.2 of the Black Coal Award must be confined in the same manner as paragraph E.1(a) of the plain language standard termination of employment clause.
[102] As to matter (ii), the period of notice required, we do not propose to change the award term in the absence of an application to do so.
[103] As to matters (iii)–(v), the rationale for the exclusion of employees under 18 in paragraph E.1(d) of the standard clause and for the insertion of paragraphs E.1(e) and (f) into the standard clause, is explained in a decision issued on 18 October 2017 31 (October 2017 decision) and the June 2018 decision. These elements of the standard term address potential non-compliance with ss.151(a) and (c) of the FW Act. In essence, the exclusion of employees under 18 in paragraph E.1(d) ensures that any deduction from wages under paragraph E.1(d) is not inconsistent with s.326(4) (which requires the written agreement of a parent or guardian to an employer deduction from an amount payable to an employee under 18) and paragraphs E.1(e) and (f) ensure that any deduction from wages is not ‘unreasonable in the circumstances’ within the meaning of s.326(1)(b).
[104] Returning to matter (iii), it may be that the exclusion of employees under 18 years of age has no utility in the Black Coal Award because of the age profile of the employees to whom the award applies. If that assumption is incorrect then that issue may be revisited.
[105] In relation to matters (iv) and (v), our provisional view is that the protections against unreasonable deductions in paragraphs E.1(e) and (f) of the standard clause need to be reflected in clause 13.2 of the Black Coal Award.
[106] Accordingly, our provisional view is that clause 13.2 of the Black Coal Award should be redrafted so that it reads as follows:
13.2 Notice of termination by an employee
(a) Clause 13.2 applies to all employees except those identified in sections 123(1) and 123(3) of the Act.
(b) An employee must give the employer at least one week’s notice of termination of employment.
(c) If an employee does not give the period of notice required under paragraph (b), then the employer may deduct from wages due to the employee under this award an amount that is no more than one week’s wages for the employee.
(d) If the employer has agreed to a shorter period of notice than that required under paragraph (b), then no deduction can be made under paragraph (c).
(e) Any deduction made under paragraph (c) must not be unreasonable in the circumstances.
[107] The CFMMEU further submits that clause 13.4—Notice of termination—redundancy of the Black Coal Award should also be retained. Clause 13.4 is set out below:
‘13.4 Notice of termination—redundancy
Where termination occurs due to redundancy as defined in clause 14.2 the employee whose employment is terminated is entitled to a minimum of 4 weeks’ notice of termination.’
[108] In only providing 4 weeks’ notice of termination due to redundancy, clause 13.4 excludes part of the NES in that the operation of the award term results in an outcome whereby employees do not receive the full benefit of the NES. Under the NES an employee over 45 years of age with more than 5 years’ continuous service is entitled to 5 weeks’ notice; as opposed to the 4 weeks’ notice in clause 13.4. As presently framed clause 13.4 excludes the NES in circumstances where employees are entitled to 5 weeks’ notice under the NES. Our provisional view is that clause 13.4 should be redrafted so that it reads as follows:
13.4 Notice of termination by an employer—redundancy
(a) Where termination occurs due to redundancy as defined in clause 14.2 the employer must give the employee notice of termination of employment or payment instead of notice as required under sections 117(1) and 117(2) of the Act, except that the minimum period of notice is:
(i) 4 weeks; or
(ii) 5 weeks, if the employee is over 45 years old and has completed more than 5 years of continuous service with the employer at the end of the day the notice is given.
(b) In paragraph (a) continuous service has the same meaning as in section 117 of the Act.
[109] The termination of employment provision of the Black Coal Award does not currently include a job search entitlement and our provisional view is that this entitlement should not be added to the termination clause.
[110] Finally in relation to clause 13 of the Black Coal Award, in addition to redrafting clauses 13.2 and 13.4 of the award as above, we propose to retain clauses 13.3—Termination by employer and 13.5—Payments on termination, to convert clause 13.1 into an appropriate note and to reorder and renumber these clauses. Minor amendments to the existing provisions will also be made in the interests of consistent wording.
Educational Services (Teachers) Award 2010
[111] The August 2018 decision identified an award-specific issue in relation to the termination of employment clause in the Educational Services (Teachers) Award 2010 (Teachers Award). We did not receive any submissions about the Teachers Award.
[112] Clause 11 of the Teachers Award is set out below:
‘11. Termination of employment
11.1 Notice of termination is provided for in the NES. This clause of the award provides industry-specific detail and supplements the NES that deals with termination of employment.
11.2 Notice of termination by an employer—schools
Subject to clause, 12.5, the employment of an employee (other than a casual employee) will not be terminated without at least seven term weeks’ notice (inclusive of the notice required under the NES), the payment of seven weeks’ salary instead of notice or part notice and part payment instead of notice provided that the total weeks’ notice and weeks’ payment instead equal seven.
11.3 Notice of termination by an employer—other than schools
The employment of an employee (other than a casual employee) will not be terminated without at least four weeks’ notice (inclusive of the notice required under the NES), or four preschool term weeks in the case of a preschool employee, or the payment of four weeks’ salary instead of notice. If the employee is over 45 years of age and has completed at least two years of service the NES notice period will apply.
11.4 Notice of termination by an employee
The notice of termination required to be given by an employee is the same as that required of an employer.
11.5 If an employee fails to give the notice specified in clauses 11.2 or 11.3 the employer may withhold from any monies due to the employee on termination under this award or the NES, an amount not exceeding the amount the employee would have been paid under this award in respect of the period of notice required by this clause less any period of notice actually given by the employee.
Where an employer has given notice of termination to an employee, an employee must be allowed up to one day’s time off without loss of pay for the purpose of seeking other employment. The time off is to be taken at times that are convenient to the employee after consultation with the employer.
11.7 Exclusions
Employees who are excluded from coverage of the notice of termination provisions in the NES are also excluded from coverage of the notice of termination provisions in this award.
11.8 Statement of service
Upon the termination of employment of an employee (other than a casual employee) the employer will provide upon the request of the employee, a statement of service setting out the commencement and cessation dates of employment.
11.9 Termination of casual employment—early childhood teachers
On termination of casual employment, the employer will indicate on the employee’s service card the length of service with the employer. Upon request a casual employee will also be given a statement setting out the number of days of duty worked by the employee during the period of the engagement.’
[113] The plain language standard termination of employment clause is set out at [73] above. Clause 11.5 of the Teachers Award departs from the standard clause in a number of respects, including the following:
(i) there is no exclusion of employees under 18 years of age from the capacity of the employer to make a deduction from wages;
(ii) there is no prohibition of deductions in circumstances where an employer has agreed to accept less than the required period of notice;
(iii) the amount that may be deducted from monies due to the employee is not ‘capped’ at one week’s wages; and
(iv) there is no qualification that any deduction made pursuant to the clause must not be unreasonable in the circumstances.
[114] As to matter (i), it may be that the exclusion of employees under 18 years of age has no utility in this award because of the age profile of the employees to whom the award applies. If that assumption is incorrect then the issue may be revisited.
[115] As to matters (ii) to (iv), the rationale for the other elements of the standard term was explained in the June 2018 decision and and the October 2017 decision. These elements of the standard clause were inserted to ensure that a deduction of an amount from monies owed to an employee was not ‘unreasonable in the circumstances’, within the meaning of s.326(1)(b). For the same reason these protections need to be reflected in clause 11.5 of the Teachers Award.
[116] Our provisional view is that clauses 11.4 and 11.5 of the Teachers Award should be re-drafted to read as follows:
11. Notice of termination by an employee
(a) The notice of termination required to be given by an employee is the same as that required of the employee’s employer under clause 11.2 or 11.3.
(b) If an employee does not give the period of notice required under paragraph (a), then the employer may deduct from wages due to the employee under this award an amount that is no more than one week’s wages for the employee.
(c) If the employer has agreed to a shorter period of notice than that required under paragraph (a), then no deduction can be made under paragraph (b).
(d) Any deduction under paragraph (b) must not be unreasonable in the circumstances.
[117] Consistent with the Plain Language Guidelines, clauses 11.2, 11.3 and 11.9 of the Teachers Award should be redrafted with application clauses (rather than their application being indicated by the clause headings). Our provisional view is that these clauses should be redrafted to read as follows:
11.2 Notice of termination by an employer—schools
(a) Clause 11.2 applies to an employee employed in a school.
(b) Subject to clause 12.5, the employment of an employee (other than a casual employee) will not be terminated without at least 7 term weeks’ notice (inclusive of the notice required under the NES), the payment of 7 weeks’ salary instead of notice, or part notice and part payment instead of notice provided that the total weeks’ notice and weeks’ payment instead equal 7.
11.3 Notice of termination by an employer—other than schools
(a) Clause 11.3 applies to an employee who is not employed in a school.
(b) The employment of an employee (other than a casual employee) will not be terminated without at least 4 weeks’ notice (inclusive of the notice required under the NES), or 4 preschool term weeks in the case of a preschool employee, or the payment of 4 weeks’ salary instead of notice. If the employee is over 45 years of age and has completed at least 2 years of service, the NES notice period will apply.
11.9 Termination of casual employment by an employer—early childhood teachers
(a) Clause 11.9 applies to a casual early childhood teacher.
(b) On termination of casual employment, the employer will indicate on the employee’s service card the length of service with the employer. Upon request a casual employee will also be given a statement setting out the number of days of duty worked by the employee during the period of the engagement.
[118] Finally in relation to clause 11 of the Teachers Award, in addition to redrafting clauses 11.4, 11.5, 11.2, 11.3 and 11.9 as above, we propose to replace clause 11.6—Job search entitlement with standard clauses E.2 and E.3, to retain clauses 11.7—Exclusions and 11.8—Statement of service, to convert clause 11.1 into an appropriate note and to reorder and renumber these clauses.
Marine Towage Award 2010
[119] Clause 11.6 of the Marine Towage Award 2010 (Towage Award) deals with notice of termination by permanent employees, as follows:
‘11.6 Notice of termination—permanent employees
(a) An employee may terminate their employment by giving the employer the following notice in writing:
(i) in the case of officers, two week’s notice; or
(ii) in the case of ratings, one week’s notice.
(b) If an employee fails to give the required notice, the employer may withhold money due to the employee an amount not exceeding the amount the employee would have been paid under this award in respect of the period of notice required by this clause less any period of notice actually given by the employee.’
[120] The plain language standard termination of employment clause is set out at [73]–[99] above. Clause 11.6 departs from the standard clause in a number of respects, including the following:
(i) the scope of the clause;
(ii) the period of notice required;
(iii) there is no exclusion of employees under 18 years of age from the capacity of the employer to make a deduction from wages;
(iv) there is no prohibition of deductions in circumstances where an employer has agreed to accept less than the required period of notice;
(v) the amount that may be deducted from monies due to the employee is not ‘capped’ at one week’s pay; and
(vi) there is no qualification that any deduction made pursuant to the clause must not be unreasonable in the circumstances.
[121] As to matter (i), the scope of the clause, clause 11.6 is a term permitted by s.136(1)(d) and s.118 of the Act. For the reasons given earlier (see [75]–[77] above), the scope of the clause needs to be confined to the extent of our jurisdiction. A provision similar to clause E.1(a) of the standard clause needs to be inserted into the Towage Award.
[122] As to matter (ii), the period of notice required, we would not propose to change the award term in the absence of an application to do so.
[123] As to matter (iii), it may be that the exclusion of employees under 18 years of age has no utility in this award because of the age profile of the employees to whom the award applies. If that assumption is incorrect then that issue may be revisited.
[124] As to matters (iv) to (vi), the rationale for the other elements of the standard term was explained in the October 2017 decision and the June 2018 decision. These elements of the standard term were inserted to ensure that a deduction of an amount from monies owed to an employee was not ‘unreasonable in the circumstances’, within the meaning of s.326(1)(b). For the same reason, our provisional view is that these protections need to be reflected in clause 11.6 of the Towage Award.
[125] Accordingly, our provisional view is that clause 11.6 of the Towage Award should be re-drafted so that it reads as follows:
11.6 Notice of termination by employee—permanent employee
(a) Clause 11.6 applies to all employees except those identified in sections 123(1) and 123(3) of the Act.
(b) An employee may terminate their employment by giving the employer the following notice in writing:
(i) in the case of officers, 2 weeks’ notice; or
(ii) in the case of ratings, one week’s notice.
(c) If an employee does not give the period of notice required under paragraph (b), then the employer may deduct from wages due to the employee under this award an amount that is no more than one week’s wages for the employee.
(d) If the employer has agreed to a shorter period of notice than that required under paragraph (b), then no deduction can be made under paragraph (c).
(e) Any deduction under paragraph (c) must not be unreasonable in the circumstances.
[126] Finally in relation to clause 11 of the Towage Award, in addition to redrafting clause 11.6 as above, we propose to replace clause 11.3—Job search entitlement with standard clauses E.2 and E.3, to retain clauses 11.2—Notice of termination by employer—permanent employees, 11.4—Return to place of engagement, 11.5—Termination without notice and 11.7—casual employees, to convert clause 11.1 into a note and to reorder and renumber these clauses. Minor amendments will also be made in the interests of consistent wording.
Real Estate Industry Award 2010
[127] One issue has arisen in relation to plain language standard termination of employment clause (see [73] above) and clauses 11.1 and 11.2 of the Real Estate Industry Award 2010 (Real Estate Award). Clauses 11.1 and 11.2 provide:
‘11.1 Notice of termination is provided for in the NES.
11.2 Notice of termination by an employee
An employee must give one week’s notice to the employer to terminate employment. The employer may then elect to pay the employee one week’s pay instead of notice. Unless the parties mutually agree in writing to a notice period greater than one week, employment will terminate one week from the date that the employee gives the employer notice to terminate employment. In the event that the required notice is not given, the employer may withhold from any monies due to the employee on termination an amount not exceeding the employee’s full rate of pay in respect of the period of notice required by this clause, less any period of notice actually served by the employee.’
[128] The following organisations (collectively, the industry stakeholders) have filed a joint submission: 32
• the Real Estate Employers’ Federation
• Registered Real Estate Salespersons’ Association (South Australia)
• Australian Property Services Association
• Real Estate Employers’ Federation of WA.
[129] The joint submission states that the industry stakeholders represent the majority of employers and employees in the real estate industry. The joint submission seeks the insertion of a modified standard clause into the Real Estate Award:
‘We respectively request that the Full Bench insert the modified Standard Clause into the REI Award as set out below. The only variation of significance to the Standard Clause is sub-paragraph (b) which has been highlighted and underlined.
E. Termination of employment
NOTE: The NES sets out requirements for notice of termination by an employer. See sections 117 and 123 of the Act.
E.1 Notice of termination by an employee
(a) This clause applies to all employees except those identified in sections 123(1) and 123(3) of the Act.
(b) An employee must give one week’s notice to the employer to terminate employment. The employer may then elect to pay the employee one week’s pay instead of notice. Unless the parties mutually agree in writing to a notice period greater than one week, employment will terminate one week from the date that the employee gives the employer notice to terminate employment.
(c) If an employee who is at least 18 years old does not give the period of notice required under paragraph (b), then the employer may deduct from wages due to the employee under this award an amount that is no more than one week’s wages for the employee.
(d) Any deduction made under paragraph (c) must not be unreasonable in the circumstances.’
[130] Given the nature of the existing award term, the relatively minor nature of the modifications proposed and the consent of the industry stakeholders we propose to vary the award in the terms sought.
[131] Finally in relation to clause 11 of the Real Estate Award, in addition to replacing clauses 11.1 and 11.2 with a note and modified standard cause E.1 as above, we propose to replace clause 11.3—Job search entitlement with standard clauses E.2 and E.3.
Textile, Clothing, Footwear and Associated Industries Award 2010
[132] There are 3 outstanding issues in relation to the Textile, Clothing, Footwear and Associated Industries Award 2010 (TCF Award). The first issue relates to proposed clause 7—Individual Flexibility Arrangements.
[133] Clause 7 of the TCF Award contains 2 elements additional to the standard model term determined initially as part of the Part 10A Award Modernisation process in 2008 and subsequently varied in the 2012 Transitional Review. The 2 additional elements are at clauses 7.4 and 7.9 of the TCF Award and are as follows:
‘7.4 An individual flexibility agreement cannot be made so as to affect the provisions of Schedule F—Outwork and Related Provisions.
…
7.9 The employer must give the employee up to seven working days to enable the employee to seek advice, where appropriate, from the employee’s union.’
[134] The CFMMEU’s submission in respect of this issue is set out at paragraphs [15] to [31] of its submission of 19 September 2018 33 and is encapsulated in the following extracts:
‘23. Schedule F (Outwork and Related Provisions) of the TCF Award provides a comprehensive framework for the regulation of the giving out of work in the TCF industry, including to outworkers. The current safeguard in clause 7.4, TCF Award appropriately reflects the importance give to the protection required to be given to this class of workers who have a particular vulnerability to systemic exploitation and abuse …
27. Given the history of the award flexibility clause in the TCF industry, including its consideration by the Award Modernisation Full Bench, it is submitted that the additional safeguards currently contained in clause 7 of the TCF Award (7.4 and 7.9) should be retained as part of a redrafted Standard IFA clause for the TCF industry. These are substantive current conditions which should be not abrogated as part of a plain language redrafting process.’
[135] We agree with the above submission. Given the relevant history our provisional view is that the additional safeguards in clauses 7.4 and 7.9 of the TCF Award should be retained.
[136] The second issue concerns proposed clause 9A—Consultation about changes to rosters or hours of work.
[137] Clause 9.2 of the TCF Award contains a term which was inserted as a result of a Full Bench decision in the review of the Group 1 Awards. 34 The relevant term is clause 9.2(c), which provides:
‘(c) Information must be provided to affected employees and their representatives, if any, in accordance with clause 9.2(b)(i) in a manner which facilitates employee understanding of the proposed changes, having regard to their English language skills. This may include the translation of the information into an appropriate language.’
[138] The CFMMEU’s submission in respect of this clause is set out at paragraphs [32] to [36] of its submission of 19 September 2018 and is encapsulated in the following extract:
‘34. We submit that the current clause 9.2(c) is a substantive term and its deletion would represent a significant diminution of a current right available to TCF workers covered by the TCF Award. It is relevant that the inclusion of current clause 9.2(c) was included in the TCF Award arising from a recent Full Bench decision issued as part of the 2014 Award Review, and in context where the Plain Language Redrafting is not, prima facie, intended to affect existing substantive provisions in awards.’
[139] Given that this issue has been the subject of recent considerations by a Full Bench, clause 9.2(c) of the TCF Award will be incorporated into the standard clause.
[140] The final issue concerns proposed clause 10—Dispute Resolution. The CFMMEU does not raise any concern with the form of the proposed clause 10 but notes that the change in the numbering of the model term has unintended consequences for clause F.5.10 of Schedule F. The CFMMEU seeks to amend clause F.5.10 to reflect the change in the numbering of clause 10.
[141] The amendment proposed addresses an unintended consequence and is uncontroversial. We will make the change proposed.
[142] In addition to inserting clauses 7.4, 7.9 and 9.2(c) and amending clause F.5.10 as above, we propose to renumber the relevant clauses as required and to make minor changes to the wording of the inserted clauses in the interests of consistency.
Timber Industry Award 2010
[143] In its submission of 19 September 2018 the CFMMEU raised a number of technical drafting errors regarding the draft determination relating to the Timber Award, as well as the issues of more general application which we have addressed above at [4] to [12] above. The technical drafting errors will be corrected and a further draft variation determination published.
Next steps
[144] Draft determinations will be published shortly incorporating the provisional views expressed at [10] to [135] above.
[145] Any interested party who opposes any of our provisional views is invited to comment on the draft determinations and to file a submission setting out their position and any arguments in support of that position by no later than noon on Friday 25 January 2019. Submissions in reply are to be filed by 4.00 pm on Friday 7 February 2019. In the absence of a request for an oral hearing any outstanding issues will be determined on the papers.
[146] Submissions should be sent to amod@fwc.gov.au and will be published on the Commission’s website.
PRESIDENT
ATTACHMENT A
100 Awards containing the same redundancy provisions
Aboriginal Community Controlled Health Services Award 2010
Aged Care 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
Animal Care and Veterinary Services Award 2010
Aquaculture Industry Award 2010
Architects 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
Clerks—Private Sector 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
Dry Cleaning and Laundry Industry Award 2010
Educational Services (Post-Secondary Education) Award 2010
Educational Services (Schools) General Staff Award 2010
Electrical Power Industry 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
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
Marine Towage 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
Professional Employees Award 2010
Quarrying Award 2010
Racing Clubs Events Award 2010
Racing Industry Ground Maintenance Award 2010
Rail Industry Award 2010
Real Estate 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
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
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
Timber Industry Award 2010 |
Furnishing Industry National Award 2003 |
Timber and Allied Industries Award 1999 |
Clause 4 Coverage 4.1 This industry award covers employers throughout Australia in the industry sectors described in clause 4.2 and to the work and persons performing such work as listed in the skill grade structures, as described in clause 3—Definitions and interpretation. Without limiting the scope of this award it applies to the following types of work in the forest and building products, manufacturing and merchandising, and pulp and paper sectors and persons performing such work or employed in connection with the following work, to the exclusion of any other modern award. 4.2 The following activities are arranged in industry sectors for ease of use. In reality each sector may overlap and include any or all activities from other sectors. (a) Harvesting and forestry management sector (i) Harvesting timber, processing of harvested timber, operating any machinery or vehicle in connection with harvesting, lifting, processing and transporting timber. (ii) Routine maintenance of equipment or vehicle. (iii) Preparation of forest for harvesting operations, maintenance of forest during harvesting and activities associated with the rejuvenation of forest during and after harvesting operations, where carried out by employers engaged in harvesting operations. (iv) General forestry and forest management work where carried out by employers engaged in harvesting operations. (b) Milling and processing sector (i) Processing of logs and other forms of raw timber into building timber and other value-added products in timber mills, factories, merchant’s premises and other locations. (ii) Processing includes lifting, sorting, stacking, storing, warehousing transporting, debarking, sawing, dressing, drying, machining, laminating, jointing, chipping, treating and carrying out any grading, labelling and clerical functions associated with processing. (iii) Operation of any machinery used in processing or in connection with processing including plant and infrastructure and any maintenance associated with such machinery, plant or infrastructure. (iv) Assembling and construction of products from processed timber. (v) Supervision, co-ordination and planning of the processing activities and processing infrastructure. (c) Panel products sector (i) Manufacturing of boards, panels or veneer from timber and timber products. (ii) Handling, sorting, stacking, lifting, treating, cutting, pressing, gluing, edging, trimming, painting, laminating and processing in any manner, board, panel or veneer. (iii) Transporting and storing board, panels or veneer. (iv) Operating and maintaining any or all machinery associated with board, panel or veneer manufacture including manufacturing plant and infrastructure. (v) Planning, setting-up and assembling products from board, panel or veneer and associated components. (d) Manufacturing sector (i) All activities listed in the milling and processing sector in clause 4.2(b). (ii) Machining timber in any manner to produce components and articles. (iii) Planning, setting-up and assembling wood components and associated attachments into products. (iv) Painting and glazing products. (v) Manufacturing frames, trusses, doors, windows and other building products or components from wood or timber. (vi) Measuring, estimating, designing and manufacturing products for building and other purposes. (vii) Manufacturing wooden sporting goods including for cricket, hockey, lacrosse, polocrosse, billiards and/or badminton. (viii) Cabinet making, wood machining, wood turning, wood carving, finishing, polishing, upholstering and other work carried out in or in connection with preparing, packing, assembling, manufacturing repairing or fixing, whether new or second hand any article of furniture including inbuilt and caravan furniture, chairs and seating, picture frames, musical instruments and toys; where any of the foregoing are made of wood or timber, manufactured wood or timber products; and any other product made from wood. (e) Merchandising and retailing sector (i) All activities listed in the manufacturing sector in clause 4.2(d). (ii) Displaying, demonstrating, preparing, handling, providing advice and selling timber and timber related products, hardware and building products in wholesale and timber merchant/retail outlets. (iii) Activities associated with the importing and wholesaling of timber products. (iv) Calculating and processing customer orders and dealing with customers generally. (f) Pulp and paper sector The manufacture, process and supply of: pulp and recycled pulp; plastic materials where obtained from the wood and cooking chemicals derived from the manufacture, processing and supply of pulp and recycled pulp; paper, including paper board, strawboard, paper bags or any similar commodity, brown papers, copy paper, envelope grade paper, hardboard paper, kraft paper, linerboard, publication and printing papers, sackcraft, security papers, watermark papers, fruit trays, egg cartons, wine trays, paper towel, facial tissue, toilet tissue, paper napkins, printed tissue products (including printed and laminated) where printing and conversion occurs in conjunction with the processing of pulp for tissue manufacture. 4.3 Reference to timber and/or wood in this award without in any way limiting the ordinary meaning of the words, will also include any artificial, laminated or manufactured material now in existence or hereafter coming into existence from whatever materials made or constructed or manufactured, which is or can be used in the place of wood or timber and worked in a similar manner as wood or timber. 4.4 This award covers any employer which supplies labour on an on-hire basis in the industry set out in clause 4.1 in respect of on-hire employees in classifications covered by this award, and those on-hire employees, while engaged in the performance of work for a business in that industry. This subclause operates subject to the exclusions from coverage in this award. 4.5 This award covers employers which provide group training services for apprentices and/or trainees engaged in the industry and/or parts of industry set out at clause 4.1 and those apprentices and/or trainees engaged by a group training service hosted by a company to perform work at a location where the activities described herein are being performed. This subclause operates subject to the exclusions from coverage in this award. |
Clause 6 Coverage of Award This award shall apply in the States of Victoria, South Australia, Tasmania, New South Wales and the Australian Capital Territory to the following work and persons performing such work: 6.1 Furniture 6.1.1 Wholly or partly preparing, packing, assembling, manufacturing, repairing or fixing, whether new or second-hand:
6.1.2 Repairing any new or second-hand article of furniture usually made or partly prepared by cabinet makers or chair, settee, lounge or couch (fixed or convertible) makers; 6.1.3 upholstering on wood, metal or any substitute material; 6.1.4 wood carving; 6.1.5 spraying; 6.1.6 wood turning; 6.1.7 wood machining; 6.1.8 fixing or repairing new or second-hand furniture or seating in buildings; 6.1.9 French polishing new or second-hand furniture in or in connection with buildings; 6.1.10 polishing or finishing with wax, lacquer or any other material new or second-hand furniture or fittings in connection with buildings; 6.1.11 displaying, fixing or repairing in a building or shop, display units, cabinets, shop fittings and furnishings for shops, offices, banking chambers, churches, court rooms and the like and private houses, provided such articles are manufactured in the factory of a respondent to this award and who is engaged manufacturing other articles covered by the award; 6.1.12 designing, making, covering with baize or similar material, repairing, painting or decorating furnishing accessories or novelties (excluding such articles made entirely of fibre glass, plastics or similar materials) such as nut bowls, smokers’ stands, display stands, ornamental stands, fancy boxes, breadboards or salt boxes; 6.1.13 designing, making, repairing, painting or decorating walking sticks; 6.1.14 wholly or partly preparing or manufacturing furniture timbers cut to size, veneers, veneered panels, plywood or coreboard or any substitute thereof; 6.1.15 manufacturing or repairing mantels or wood mantel pieces; 6.1.16 manufacturing, assembling or repairing wire mattresses; 6.1.17 manufacturing or repairing mattresses or bedding; 6.1.18 sanding or sealing wooden floors preparatory to either the laying of floor coverings or the application of all types of lacquers and polish; 6.1.19 applying all types of lacquers and polishes to wooden floors; 6.1.20 preparing or sealing floors (other than wood) where such preparing or sealing is necessary to ensure the correct laying of the required floor coverings; 6.1.21 waxing, gilding, bronzing or applying other “metallic finish” process by hand, brush, power-tool, machine or spray; 6.1.22 making, fixing or repairing draperies, blinds, awnings or screens (including venetian and/or wire blinds) but not including persons working as tentmakers; 6.1.23 the work of persons employed as mattress sewers, upholstery sewers, table hands, lampshade hands or drapery hands; 6.1.24 making or repairing picture frames (including art picture frames) or framed mirrors; 6.1.25 wholly or partly preparing, repairing or manufacturing refrigerators; 6.1.26 preparing hardboard or similar materials for all purposes; 6.1.27 the woodwork of wireless cabinets, billiard tables, incubators and sewing machines; 6.1.28 planning, designing, cutting, laying, measuring, repairing, and/or fixing and sewing of floor coverings and furnishing drapery, loose covers, stuffed quilts, pillows, bolsters, cushions, blinds (other than venetian blinds) where such work is performed in the employment of a retail shop and furnishing drapery establishments, and in the house furnishing cutting and sewing and in the preparation of and filling with materials for such work; 6.1.29 employees other than workers in the employment of a retail shop and furnishing drapery establishments engaged in wholly or partially in the planning, measuring, and/or repair of blinds, cornice boxes, pelmets, facia and the like used in connection with blinds. 6.2 Glass or glazing 6.2.1 Designing, bevelling, cutting, embossing or glazing by hand or machine, painting, silvering, sandblasting, bending or otherwise working all kinds of plate, sheet, float, figured rolled, structural or stained glass, louvers, clear-plastic or glass lenses or prisms; 6.2.2 fitting and/or fixing in position all kinds of plate, sheet, float, figured rolled, structural or stained glass, fibre glass, louvers, mirrors, spandrel panels, glazing bars, clear-plastic or glass lenses or prisms; 6.2.3 packing all kinds of plate, sheet, float, figured rolled, structural or stained glass, louvers, mirrors, clear-plastic or glass lenses or prisms including any labouring work in connection with any such operations; 6.2.4 manufacturing toughened (heat treated) or laminated safety glass; 6.2.5 manufacturing or repairing lampshades; 6.2.6 optical work or glass, excepting spectacle lenses or frames. 6.3 Musical instruments 6.3.1 Manufacturing or repairing instruments or parts thereof other than electronic organs; 6.3.2 tuning or servicing musical instruments (including electronic organs); 6.3.3 building, repairing, servicing or tuning pipe-organs. 6.4 Radio, audio equipment and television cabinets Building or repairing the cabinets (mainly of wood) of radios, audio equipment or television sets. 6.5 Wicker and baby carriages 6.5.1 Manufacturing 6.5.1(a) Baby carriages, dolls’ carriages, mobile chairs or parts thereof; 6.5.1(b) any goods made of wicker, bamboo, cane or similar materials; 6.5.1(c) assembling or putting together any parts of baby carriages, dolls’ carriages or mobile chairs. 6.6 Wooden toys
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Clause 6 Coverage of Award 6.1 This award applies throughout the States of New South Wales, Victoria, South Australia, Tasmania, Western Australia and the Australian Capital Territory. 6.2 This award applies to the work and persons performing such work as listed in the skill grade structures in the appendices of this award, as described in the definitions and as per the imported classifications of this award. Without limiting the scope of this award it applies to the following types of work in the forest and building products, manufacturing and merchandising sectors and persons performing such work or employed in connection with the following work. 6.3 The following activities are arranged in industry sectors for ease of use. In reality each sector may overlap and include any or all activities from other sectors. 6.3.1 Harvesting and Forestry Management Sector, including: Harvesting timber, processing of harvested timber, operating any machinery or vehicle in connection with harvesting, lifting, processing and transporting timber. Routine maintenance of equipment or vehicle. Preparation of forest for harvesting operations, maintenance of forest during harvesting and activities associated with the rejuvenation of forest during and after harvesting operations. General forestry and forest management work. 6.3.2 Milling and Processing Sector, including: Processing of logs and other forms of raw timber into building timber and other value added products in timber mills, factories, merchant’s premises and other locations. Processing includes, lifting, sorting, stacking, storing, warehousing transporting, debarking, sawing, dressing, drying, machining, laminating, jointing, chipping, treating and carrying out any grading, labeling and clerical functions associated with processing. Operation of any machinery used in processing or in connection with processing including plant and infrastructure and any maintenance associated with such machinery, plant or infrastructure. Assembling and construction of products from processed timber. Supervision, coordination and planning of the processing activities and processing infrastructure. 6.3.3 Panel Products Sector, including: Manufacturing of boards, panels or veneer from timber and timber products. Handle, sort, stack, lift, treat, cut, press, glue, edge, trim, paint, laminate and process in any manner, panel, board or veneer. Transport and store board, panels or veneer. Operate and maintain any or all machinery associated with board, panel or veneer manufacture including manufacturing plant and infrastructure. Plan, setup and assemble products from board, panel or veneer and associated components. 6.3.4 Manufacturing Sector, including: All activities listed in the milling and processing sector. Machining timber in any manner to produce components and articles. Assemble wood components and associated attachments into products. Paint and glaze products. Joinery work. Manufacture frames, trusses, doors, windows and other building products or components. Measure, estimate, design and manufacture products for building and other purposes. 6.3.5 Merchandising and retailing, including: All activities listed in the manufacturing sector. Display, demonstrate, prepare, handle, provide advice and sell timber and timber related products, hardware and building products in wholesale and timber merchant/retail outlets. Activities associated with the importing and wholesaling of timber products. Calculate and process customer orders and deal with customers generally. 6.4 Reference to timber and/or wood in this award without in anyway limiting the ordinary meaning of the words, will also include any artificial or laminated or manufactured material now in existence or hereafter coming into existence from whatever materials made or constructed or manufactured, which is or can be used in the place of wood or timber and worked in a similar manner as wood or timber. |
4 Schedule of draft determinations - revised.
5 Schedule of draft determinations – further revised.
7 Real Estate Industry Award 2010, Textile, Clothing, Footwear and Associated Industries Award 2010, Dry Cleaning and Laundry Industry Award 2010, Timber Industry Award 2010 and Manufacturing and Associated Industries and Occupations Award 2010
8 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; Educational Services (Teachers) Award 2010; Joinery and Building Trades Award 2010; Mannequins and Models Award 2010; Marine Towage Award 2010; Mobile Crane Hiring Award 2010; Plumbing and Fire Sprinklers Award 2010 and Professional Employees Award 2010.
9 CFMMEU submissions, 19 September 2018 – paragraphs 44, 48 – 60, 63 – 71, 79 – 89, 93 – 103. The Ai Group made a submission relating to typographical errors in two draft determinations. This submission was supported by the AMWU in its submission dated 20 September 2018.
10 Textile, Clothing, Footwear and Associated Industries Award 2010, Dry Cleaning and Laundry Industry Award 2010, Manufacturing and Associated Industries and Occupations Award 2010, Timber Industry Award 2010.
11 The Higher Education Industry – General Staff – Award 2010 does not contain a redundancy provision.
12 Plain Language Guidelines at 3.14.
13 [2018] FWCFB 6019 at [83]-[84].
14 Ibid at [83]–[84].
15 Fringe Benefits Tax Assessment Regulations 2018, schedule 1 – repeals.
16 Fringe Benefits Tax Assessment Regulations 2018, Reg 2.
17 See Payments from worker entitlement funds- information for individuals https://www.ato.gov.au/misc/downloads/pdf/qc27307.pdf Approved work entitlement funds, https://www.ato.gov.au/General/Fringe-benefits-tax-(FBT)/In-detail/Exemptions-and-concessions/Approved-worker-entitlement-funds/.
19 Ibid at [212].
21 AFAP submission 25 September 2018.
23 Ibid at [23].
24 ABI submission, 10 September 2018.
25 Ai Group submission, 10 September 2018.
26 APESMA submission, 21 September 2018.
27 APESMA submission, 21 September 2018 at [9].
29 Ibid at [36]. Applied in [2015] FWCFB 3023 at [37].
30 CFMMEU submission, 7 September 2018. The AMWU filed a submission dated 20 September 2018 supporting the position taken by the CFMMEU.
32 Real Estate Employers’ Federation and others’ submission, 7 September 2018.
33 CFMMEU submission, 19 September 2018.
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