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)

4 yearly review of modern awards – Plain language – standard clauses – Redundancy clauses – Award specific matters.

Introduction

[1] This Decision deals with two outstanding issues in the plain language standard clauses matter:

•  the plain language standard redundancy clause; and

•  industry specific redundancy schemes in 6 awards.

[2] A further decision in relation to awards with an industry-specific redundancy element that supplements the NES (such as providing an entitlement to redundancy pay for employees of small business) and other variations from the standard redundancy clause will be issued in the coming weeks.

[3] In a decision issued on 11 December 2018 1 (December 2018 decision), we expressed the provisional view that the plain language standard redundancy clauses should be restructured as a single clause instead of three separate clauses. Submissions were invited regarding the restructured plain language standard redundancy clause. No submissions were received opposing our provisional view.

[4] We confirm that the plain language standard redundancy provisions should be restructured as a single clause, as follows:

‘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.

(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 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 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 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 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.

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 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.’

[5] At [12] of the December 2018 decision we expressed the provisional view that the restructured plain language standard redundancy clause should be inserted into 100 awards that include identical redundancy provisions (save for the numbering of the relevant clauses). No submissions were received opposing our provisional view.

[6] We confirm that the restructured plain language standard redundancy clause will be inserted into the 100 awards listed in Attachment A to this decision. Final determinations will be issued shortly.

[7] This leaves 22 awards that require award-specific consideration. Of those 22 awards, 21 awards have redundancy provisions and one award does not have any redundancy provisions. In the December 2018 decision we divided the 21 awards containing a redundancy provision into three categories: 2

(1) awards with an industry-specific redundancy scheme;

(2) awards with an industry-specific redundancy element that supplements the NES (such as providing an entitlement to redundancy pay for employees of small business); and

(3) awards with other variations from the standard redundancy provisions.

[8] This decision deals with the awards in the first category.

[9] Six awards have an industry-specific redundancy scheme:

•  Black Coal Mining Industry Award 2010 (Black Coal Award),

•  Building and Construction General On-site Award 2010 (Building Award)

•  Dredging Industry Award 2010 (Dredging Award)

•  Higher Education—Academic Staff—Award 2010 (Academic Staff Award)

•  Mobile Crane Hiring Award 2010 (Mobile Crane Award)

•  Plumbing and Fire Sprinklers Award 2010 (Plumbing Award)

[10] In the December 2018 decision at [20] we expressed the provisional view that the industry-specific redundancy schemes in the remaining 5 awards: the Black Coal Award, the Building Award, the Dredging Award, the Mobile Crane Award and the Plumbing Award, should be retained rather than be replaced by the plain language standard redundancy clause. The provisional view was not opposed by any party.

[11] We confirm that the industry-specific redundancy schemes in the 5 awards mentioned in paragraph [10] above will be retained and will not be replaced by the plain language standard redundancy clause.

[12] In relation to 2 of the 5 awards mentioned in paragraph [10] above, the Building Award and the Plumbing Award, we raised a technical issue and at [24] of the December 2018 decision we asked interested parties to consider whether the reference to the ‘Fringe Benefits Tax Regulations 1992’ in each award should be replaced with a reference to ‘Fringe Benefits Tax Assessment Act 1986’.

[13] Submissions were received from the, Ai Group 3, Housing Industry Association⁴, Master Builders Australia5, Master Plumbers Group6, Australian Manufacturing Workers’ Union7 and the Construction, Forestry, Maritime, Mining and Energy Union—Construction and General Division8. No party opposed replacing the existing reference with the proposed reference in the affected awards.

[14] We confirm that the reference to the ‘Fringe Benefits Tax Regulations 1992’ will be replaced with a reference to ‘Fringe Benefits Tax Assessment Act 1986’ in the Building Award and the Plumbing Award. Determinations will be issued shortly.

[15] The Higher Education—Academic Staff—Award 2010 (Academic Staff Award) includes an identical redundancy provision to the 100 awards identified at [6] as well as an industry specific redundancy scheme. In the December 2018 decision at [26], we expressed the provisional view that the standard award redundancy provision at clause 16 should be replaced by the plain language standard redundancy clause and that the industry-specific redundancy scheme at clause 17 will not be varied. No submissions were received opposing this provisional view.

[16] We confirm that the plain language standard redundancy clause will be inserted at clause 16 and the industry-specific redundancy scheme will be retained at clause 17 of the Academic Staff Award.

[17] We also noted at [25] of the December 2018 decision that clause 17 applies to any institution that was bound by the Universities and Post Compulsory Academic Conditions Award 1999 as at 12 September 2008. At [26] we asked interested parties to comment on how to retain the reference to the coverage of the predecessor award in the modern award, whether it be to provide a link to the predecessor award or to set out the list of institutions bound by the predecessor award as a schedule to the modern award.

[18] No party commented on the means of addressing the issue of accessibility. We have decided to add a Schedule to the modern award listing the institutions bound by the predecessor award in the modern award, in the same terms as the Schedule I—List of Respondent in the Universities and Post Compulsory Academic Conditions Award 1999. Additionally, a cross-reference will be added to clause 17.1(a) of the modern award. A determination determination will be issued shortly.

Next steps

[19] Final determinations will be issued shortly in accordance with this decision.

[20] A further decision in relation to awards with an industry-specific redundancy element that supplements the NES and awards with other variations from the standard redundancy provisions will be issued in the coming weeks.

PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR706954>

Attachment A

100 Awards containing the restructured plain language standard redundancy clause

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

 1   [2018] FWCFB 7447.

 2   [2018] FWCFB 7447 at [13].

 3   Ai Group submissions, 21 December 2018 and 25 January 2019.

4 HIA submissions, 21 December 2018 and 25 January 2019.

 5   MBA submission, 21 December 2018 and 25 January 2019.

 6   MPG submission, 20 December 2018.

 7   AMWU submission, 21 December 2018 and 25 January 2019.

 8   CFMMEU–C&G submissions, 21 December 2018 and 8 February 2019.