[2019] FWCFB 5868

FAIR WORK COMMISSION

DECISION

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

4 yearly review of modern awards – Payment of wages
(AM2016/8)

JUSTICE ROSS, PRESIDENT
DEPUTY PRESIDENT GOSTENCNIK
DEPUTY PRESIDENT CLANCY
COMMISSIONER LEE
COMMISSIONER HUNT

MELBOURNE, 23 AUGUST 2019

4 yearly review of modern awards – common issue – payment of wages – payments on termination of employment.

[1] In a decision issued on 26 July 2019 1 (the July 2019 Decision) we dealt with the 33 modern awards set out at Attachment 1, which have outstanding issues arising from the finalisation of the payment of wages on termination of employment model term.

[2] The 33 outstanding awards fall into three categories:

(i) 7 modern awards in respect of which interested parties have filed agreed amendments to the model term;

(ii) 17 modern awards in relation to which an application has been made to insert the model term by one or more interested parties but the application is opposed; and

(iii) 9 modern awards with other award specific issues.

(i) Agreed amendments

[3] As noted in the July 2019 Decision, interested parties have filed agreed amendments in relation to the following 7 modern awards:

• Aluminium Industry Award 2010;

• Horticulture Industry Award 2010;

• Hospitality Industry Award 2010;

• Pastoral Industry Award 2010;

• Registered and Licenced Clubs Award 2010;

• Restaurant Industry Award 2010;

• Wine Industry Award 2010.

[4] Each of the agreed amendments is dealt with below.

Aluminium Industry Award 2010

[5] This award is discussed at [12]–[20] of the July 2019 Decision and at [20] the Full Bench said:

‘In the event that Ai Group and the AWU wish to press the proposed variation they are to file written submissions (and any evidence relied upon) addressing the merits of their proposal (including the matters set out above) by no later than 4:00 pm on 21 August 2019. This matter will be determined on the papers unless an interested party requests an oral hearing by 4:00 pm on 21 August 2019.’

[6] No submissions have been received within the prescribed time and accordingly at this stage we are proceeding on the basis that the proposed variation is not being pressed. If no contrary submissions are received by 2pm on Friday 30 August 2019 we will vary the Aluminium Award to insert the model term.

Horticulture Industry Award 2010; Pastoral Industry Award 2010 and Wine Industry Award 2010

[7] On 17 September 2018, Ai Group filed draft determinations for Horticulture Industry Award 2010 (Horticulture Award) and Wine Industry Award 2010 (Wine Award) 2 which had arisen out of discussions between Ai Group, the AWU, the National Farmers’ Federation (NFF) and the South Australian Wine Industry Association (SA WIA). On 19 September 2018, the NFF confirmed that the same amendments to the Pastoral Industry Award 2010 (Pastoral Award) had been agreed with the AWU.3

[8] A marked up version of the proposed variation to the Horticulture Award is set out below (notes have not been reproduced as no changes are proposed to the notes):

‘19.3 Payment on termination of employment

(a) If the employment of an employee terminates, Tthe employer must pay an employee the following amounts in accordance with this clause ~~no later than 7 days after the day on which the employee’s employment terminates~~:

(i) the employee’s wages under this award for any complete or incomplete pay period up to the end of the day of the termination; and

(ii) all other amounts that are due to the employee under this award and the NES.

(b) The amounts described at clause 19.3(a)(i) must be paid to the employee:

(i) By cash or cheque on the day of termination or forwarded to the employee by post on the next working day; or

(ii) By electronic funds transfer no later than 7 days after the day on which the employee’s employment terminates.

(i) By cash or cheque on the day of termination or forwarded to the employee by post as soon as reasonably practicable and by no later than 7 days after the day on which the employee’s employment terminates; or

(ii) By electronic funds transfer by no later than 7 days after the day on which the employee’s employment terminates.

(d) The requirement to pay wages and other amounts under ~~paragraph (a)~~ clause 19.3 is subject to further order of the Commission and the employer making deductions authorised by this award or the Act.’

Note 1: Section 117(2) of the Act provides that an employer must not terminate an employee’s employment unless the employer has given the employee the required minimum period of notice or “has paid” to the employee payment instead of giving notice.

Note 2: Paragraph (d) allows the Commission to make an order delaying the requirement to make a payment under clause 19.3. For example, the Commission could make an order delaying the requirement to pay redundancy pay if an employer makes an application under section 120 of the Act for the Commission to reduce the amount of redundancy pay an employee is entitled to under the NES.

Note 3: State and Territory long service leave laws or long service leave entitlements under s.113 of the Act, may require an employer to pay an employee for accrued long service leave on the day on which the employee’s employment terminates or shortly after.

[9] In the July 2019 Decision we noted that the proposed variations were broadly consistent with the objective of the model term, that is to ensure that employees receive their termination payments in a timely way. However, given that the Wine Award currently only provides for payment by cash or EFT the variation in respect of that award should be amended, in the terms set out below.

‘19.3 Payment on termination of employment

(i) the employee’s wages under this award for any complete or incomplete pay period up to the end of the day of the termination; and

(ii) all other amounts that are due to the employee under this award and the NES.

(b) The amounts described at clause 19.3(a)(i) must be paid to the employee:

(i) By cash on the day of termination; or

(ii) By electronic funds transfer no later than 7 days after the day on which the employee’s employment terminates.

(i) By cash on the day of termination; or

(ii) By electronic funds transfer by no later than 7 days after the day on which the employee’s employment terminates.

[10] We went on to express the provisional view that the Horticultural and Pastoral Awards be varied in the terms expressed at [6] above and that the Wine Award be varied in the terms set out at [7] above. Any party opposed to our provisional view was directed to file a submission in support of its position by 4pm 21 August 2019.

[11] No submissions were filed opposing our provisional view. We confirm our provisional view and will vary the Horticulture, Pastoral and Wine Awards in the terms set out above.

Hospitality Industry Award 2010; Registered and Licensed Clubs Award 2010 and Restaurant Industry Award 2010

[12] United Voice had raised a concern about the interaction between the model term and clause 13.4 in the Restaurant Industry Award 2010 (Restaurant Award), which requires that ‘a casual employee must be paid at the termination of each engagement, but may agree to be paid weekly or fortnightly’ and also noted that similar provisions currently exist in the Hospitality Industry Award 2010 (Hospitality Award) and Registered and Licenced Clubs Award 2010 (Clubs Award).

[13] ABI submitted a variation to the model term to address the concern raised 4 which is supported by United Voice5, the Australian Hotels Association, the Restaurant & Catering Industry Association and Clubs Australia.6 The agreed variation to each of the three awards is set out below, variations to the model term are shown in red:

(a) Subject to clause (b), the employer must pay an employee no later than 7 days after the day on which the employee’s employment terminates:

(i) the employee’s wages under this award for any complete or incomplete pay period up to the end of the day of termination; and

(ii) all other amounts that are due to the employee under this award and the NES.

(b) Where a casual employee is paid at the end of each engagement pursuant to clause XX of this Award, and that employee’s employment is terminated, the employer must pay the employee their wages due under the award at the end of their last engagement.

(c) The requirement to pay wages and other amounts under paragraph (a) is subject to further order of the Commission and the employer making deductions authorised by this award or the Act.

Note 2: Paragraph (b) allows the Commission to make an order delaying the requirement to make a payment under clause X. For example, the Commission could make an order delaying the requirement to pay redundancy pay if an employer makes an application under section 120 of the Act for the Commission to reduce the amount of redundancy pay an employee is entitled to under the NES.

[14] In the July 2019 Decision we expressed the provisional view that each of the three awards should be varied in the terms outlined above. Draft determinations were issued on 5 August 2019 and interested parties were given 14 days to comment. ABI supported the proposed variations set out above. 7 No other comments have been received and we will now issue final variation determinations.

(ii) Application to vary

[15] Applications have been made to insert the model term in 17 modern awards:

• Aged Care Award 2010 (Ai Group and ABI)

• Black Coal Mining Industry Award 2010 (Ai Group)

• Building and Construction General On-site Award 2010 (Ai Group supported by HIA)

• Business Equipment Award 2010 (Ai Group and ABI)

• Dry Cleaning and Laundry Industry Award 2010 (ABI)

• Electrical, Electronic and Communications Contracting Award 2010 (Ai Group)

• Food, Beverage and Tobacco Manufacturing Award 2010 (Ai Group and ABI)

• Graphic Arts, Printing and Publishing Award 2010 (Ai Group and ABI)

• Manufacturing and Associated Industries and Occupations Award 2010 (Ai Group and ABI)

• Meat Industry Award 2010 (Ai Group and ABI)

• Mobile Crane Hiring Award 2010 (Ai Group)

• Passenger Vehicle Transportation Award 2010 (ABI)

• Plumbing and Fire Sprinklers Award 2010 (Ai Group and ABI)

• Road Transport and Distribution Award 2010 (Ai Group, ABI and NatRoad)

• Road Transport (Long Distance Operations) Award 2010 (Ai Group, ABI and NatRoad)

• Seafood Processing Award 2010 (Ai Group)

• Supported Employment Services Award 2010 (ABI)

[16] Each of these applications is opposed.

[17] In the July 2019 Decision we noted that parties have not yet had the opportunity to make submissions and adduce evidence in relation to these applications and accordingly, the applicants are invited to file submissions and any evidence in support of the applications by 4pm on 21 August 2019.

[18] ABI has filed a submission seeking to vary the following modern awards to insert the model term:

• Aged Care Award 2010

• Business Equipment Award 2010

• Supported Employment Services Award 2010

• Dry Cleaning and Laundry Industry Award 2010

• Plumbing and Fire Sprinklers Award 2010

• Meat Industry Award 2010

• Passenger Vehicle Transportation Award 2010

• Road Transport and Distribution Award 2010

• Road Transport (Long Distance Operations) Award 2010

• Food, Beverage and Tobacco Manufacturing Award 2010

• Graphic Arts, Printing and Publishing Award 2010; and

• Manufacturing and Associated Industries and Occupations Award 2010

[19] Ai Group has filed a submission seeking to vary the following award to insert the model term:

• Aged Care Award 2010

• Black Coal Mining Industry Award 2010

• Building and Construction General On-Site Award 2010

• Business Equipment Award 2010

• Electrical, Electronic and Communications Contracting Award 2010

• Food, Beverage and Tobacco Manufacturing Award 2010

• Graphic Arts, Printing and Publishing Award 2010

• Manufacturing and Associated Industries and Occupations Award 2010

• Meat Industry Award 2010

• Mobile Crane Hiring Award 2010

• Plumbing and Fire Sprinklers Award 2010

• Road Transport (Long Distance Operations) Award 2010

• Road Transport and Distribution Award 2010; and

• Seafood Processing Award 2010

[20] The HIA filed a submission in support of Ai Group’s application to insert the model term into the Building and Construction On-site Award 2010.

[21] Master Plumbers filed a submission stating that it did not oppose the variation of the Plumbing and Fire Sprinklers Award 2010 to include the model term but sought an amendment to Note 2.

[22] NatRoad filed submissions and a witness statement in support of its applications to vary the Road Transport and Distribution Award 2010 and the Road Transport (Long Distance) Award 2010 to insert the model term.

[23] Submissions and evidence in reply are to be filed by 4pm on 25 September 2019. A Mention in respect of these matters will be listed in due course.

(iii) Other award specific issues

[24] Award specific issues remain outstanding in 9 modern awards:

• Alpine Resorts Award 2010

• Children’s Services Award 2010

• Joinery and Building Trades Award 2010

• Nurses Award 2010

• Pharmacy Industry Award 2010

• Rail Industry Award 2010

• Timber Industry Award 2010

• Vehicle Manufacturing, Repair, Services and Retail Award 2010 8

• Waste Management Award 2010

Alpine Resorts Award 2010

[25] The Australian Ski Areas Association (ASAA) opposes the insertion of the model term into the Alpine Resorts Award 2010 9 and proposed the following variations to the model term:

X. Payment on termination of employment

(a) The employer must pay an employee no later than ~~7 days after the day~~ whichever is the earlier of either 14 days after the day on which the employee’s employment terminates or the employer’s next usual pay cycle:

(i) the employee’s wages under this award for any complete or incomplete pay period up to the end of the day of the termination; and

(ii) all other amounts that are due to the employee under this award and the NES.

(b) The requirement to pay wages and other amounts under paragraph (a) is subject to further order of the Commission and the employer making deductions authorised by this award or the Act

[26] In the July 2019 Decision we directed that any submission opposing the variation proposed by ASAA should be filed by 4 pm on 21 August 2019. No submissions opposing the variation proposed by ASAA have been filed. If no contrary submissions are received by 2pm on Friday 30 August 2019 we will vary the Alpine Resorts Award 2010 in the manner proposed by ASAA.

Children’s Services Award 2010

[27] A final variation determination was issued on 5 August 2019 (see the July 2019 Decision at [41]).

Joinery and Building Trades Award 2010

[28] A final determination inserting the model term into the Joinery Award was issued on 5 August 2019 (see the July 2019 Decision at [45]).

Nurses Award

[29] The ANMF propose the following amendments to the model term to seek to retain the more favourable entitlements which are currently in the award:

X Payment on termination of employment

(a) The employer must pay an employee no later than 7 days after the day on which the employee’s employment terminates:

(i) the employee’s wages ~~under this award~~ owing for any complete or incomplete pay period up to the end of the day of termination; and

(ii) all other amounts that are due to the employee, including under this award and the NES.

(b) The requirement to pay wages and other amounts under paragraph (a) is subject to further order of the Commission and the employer making deductions authorised by this award or the Act.

[30] The proposed amendments are supported by HSU and UV.

[31] In the July 2019 Decision we directed that any submission opposing the variation proposed by the ANMF be filed by 4 pm on 21 August 2019.

[32] Ai Group has filed a submission opposing the variations to the model term sought by the ANMF. 10

[33] The Private Hospital Industry Employer Association filed a submission in the following terms:

‘PHIEA agrees with the ANMF that the current entitlements in the Nurses Award 2010 regarding payment on termination of employment are more favourable than the model term, and therefore would have no objection if the model term were to be amended in the Nurses Award as proposed by the ANMF and noted above in paragraph [47] of the Full Bench Decision of 26 July 2019.’ 11

[34] Submissions in reply are to be filed by 4pm on 25 September 2019. This matter will be determined on the papers unless an interested party requests an oral hearing by 4pm on 25 September 2019.

Pharmacy Award

[35] The Pharmacy Guild does not oppose the insertion of the model term into the Pharmacy Industry Award 2010 (the Pharmacy Award) but proposes an amendment to allow for payment on termination to be made in accordance with the normal pay cycle.

[36] In the July 2019 Decision we directed that any submission opposing the variation proposed by the Pharmacy Guild should be filed by 4 pm on 21 August 2019.

[37] No submissions opposing the variation proposed by the Pharmacy Guild have been filed. If no contrary submissions are received by 2pm on Friday 30 August 2019 we will vary the Pharmacy Award in the manner proposed by the Pharmacy Guild.

Rail Industry Award

[38] The Rail Employers propose an amendment to the model term to allow payment to be made ‘no later than 14 days after the day on which the employee’s employment terminates.’ 12

[39] In the July 2019 Decision we directed that any submission opposing the variation proposed by the Rail Employers should be filed by 4 pm on 21 August 2019.

[40] No submissions opposing the variation proposed by the Rail Employers have been filed. If no contrary submissions are received by 2pm on Friday 30 August 2019 we will vary the Rail Industry Award 2010 in the manner proposed by the Rail Employers.

Timber Industry Award

[41] On 21 September 2018, the Ai Group advised that it had been involved in discussions with the CFMMEU and the AMWU, and had consulted with ABI with regard to payment of wages provisions in the Timber Award, but that the discussions had not resulted in an agreed positions between the parties as to the ‘industry specific elements of the clause that should be retained in the event that the model term is inserted into the award.’ 13

[42] The AMWU and CFMMEU confirmed that Ai Group’s submission provided an accurate reflection of the constructive discussions that had taken place, and that discussions would continue. 14

[43] A conference of interested parties was held on 23 August 2019 prior to listing the matter for hearing and determination. The parties are continuing to engage in discussions in order to narrow the issues in dispute. In the event that a party seeks the assistance of the Commission to facilitate such discussions a request should be sent to chambers.ross.j@fwc.gov.au.

Waste Management Award

[44] Clause 24.3 in the Waste Management Award 2010 (Waste Management Award) currently provides that: ‘Despite anything contained in this clause, the employer must pay to an employee who leaves or is dismissed all money due to the employee as soon as possible.’

[45] As the words ‘as soon as possible’ do not provide a time period for payment on termination, parties were asked to engage in discussions to see if an agreed position could be reached.

[46] In its submission of 7 September 2018, Ai Group noted that it had engaged in discussions with various unions, primarily the TWU, but reported that these discussions had not resulted in an agreed position. 15 The AMWU, AWU and TWU all oppose insertion of the model clause.16

[47] In the July 2019 Decision we directed all interested parties to file submissions in support of their respective position by 4 pm on 21 August 2019. Any submissions filed were to address the meaning of the expression ‘as soon as possible’ in the Waste Management Award and why the insertion of the model term is opposed (or supported).

[48] Ai Group has filed a submission in which it contends that the Waste Management Award be amended to include the model term and to clarify that clauses 24.1 and 24.2 operate subject to clause 24.3. 17

[49] Submissions in reply are to be filed by 4pm on 25 September 2019.

[50] The application will be determined on the papers unless an interested party requests an oral hearing by 4pm on 25 September 2019.

PRESIDENT

Printed by authority of the Commonwealth Government Printer

1 [2019] FWCFB 5146

2 Ai Group submission dated 17 September 2018.

3 NFF correspondence dated 19 September 2018.

4 ABI submission 7 September 2018, para 2.2.

5 United Voice submission 10 September 2018, para 9.

6 Ibid, para 2.3.

7 ABI submission, 19 August 2019

8 A Statement in respect of this award will be issued shortly.

9 ASSA submission dated 10 August 2018.

10 Ai Group submission 21 August 2019 at [66] – [69]

11 Private Hospital Industry Employer Association submission 16 August 2019

12 Rail employer submission dated 9 August 2018.

13 Ai Group submission re: Timber Award 21 September 2018.

14 AMWU (with CFMMEU) submission 21 September 2018.

15 Ai Group submission 7 September 2018, para 13.

16 AMWU submission 7 September 2018, paras 2-3; AWU submission 10 September 2018; TWU submission 7 September 2018.

17 Ai Group submission 21 August 2019 at [70] – [80]