| [2018] FWCFB 4735 |
| 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 |
MELBOURNE, 15 AUGUST 2018 |
4 yearly review of modern awards – payment of wages common issue – payments on termination model term.
[1] In a Decision 1 issued on 16 July 2018 we finalised the payment on termination of employment model term and expressed the provisional view that it is necessary to vary the 86 modern awards which are currently silent in respect of the time period within which termination payments are to be made to insert the model term. Any party wishing to contest that provisional view was required to file a submission by no later than 10 August 2018. The following submissions were received:
• the Australian Ski Areas Association opposes the insertion of the model term in its current form in the Alpine Resorts Award 2010;
• the Pharmacy Guild of Australia submits that consideration should be given to altering the model clause for the Pharmacy Industry Award 2010;
• the Rail Employers submit that the period for payment be increased from 7 days to 14 days in the Rail Industry Award 2010; and
• NECA does not object to the variation of the Electrical, Electronic and Communications Contracting Award 2010 to insert the model term.
[2] In a late submission, filed on 13 August 2018, Ai Group opposed the provisional view and did not support the variation of all 86 modern awards which are silent in relation to the time period during which termination payments are to be made. Ai Group makes the following ‘overarching comments’ regarding the proposed amendment of these awards:
• Acknowledging the current absence of a clause setting out a clear timeframe within which all money due on termination are to be made, we contend that any inclusion of a ‘payment on termination’ clause into the 86 Awards should maintain existing flexibilities provided by extant ‘payment of wages’ provisions.
• The inclusion of the Model Term into the 86 Awards, absent some tailoring to reflect the current arrangements in such instruments, would not be necessary to achieve the modern awards objective.
• It has not been established that the absence of a provision relating to payment on termination in the 86 Awards is causing any problems or difficulties in the industries and occupations they cover. 2
[3] Ai Group goes on to address the s.134 considerations (at [20]-[22]).
[4] We reject Ai Group’s submission and confirm our view that each modern award should provide for the payment of wages and other amounts owing on termination of employment, to ensure that employers and employees are aware of their obligations and entitlements. We acknowledge that there may be some force in Ai Group’s point (at [23]-[24]) that 5 of the 86 modern awards to be varied only provide for fortnightly pay and if the model term were inserted the employers covered by these instruments would be required to administer a separate pay run each time an employee’s contract is terminated. The 5 awards are:
• Airport Employees Award 2010;
• Corrections and Detention (Private Sector) Award 2010;
• Fire Fighting Industry Award 2010;
• Higher Education Industry–General Staff–Award 2010; and
• State Government Agencies Award 2010.
[5] Any ‘tailoring’ of the model term to deal with the circumstances in relation to these awards can be the subject of submissions in response to the publication of the draft variation determinations.
[6] We do not propose to vary the Alpine Resorts Award 2010, the Pharmacy Industry Award 2010 or the Rail Industry Award 2010, at this time. A statement will be issued shortly regarding the next steps in respect of these awards. In respect of the remaining 83 modern awards that do not presently specify a time period within which termination payments are to be made we confirm our provisional view and will accordingly vary these modern awards to insert the model term.
[7] As to the remaining 36 modern awards, a series of short conferences were held on 1 and 2 August 2018 in order to ascertain the view of interested parties in relation to the following issues:
(i) whether there is any opposition to inserting the model term into the particular awards which is the subject of the conference; and
(ii) if varying awards to insert the model term is opposed, then what award-specific amendments are proposed by the parties. 3
[8] Arising out of the conferences the insertion of the model term was not opposed in the following awards:
• Asphalt Industry Award 2010;
• Horse and Greyhound Training Award 2010;
• Nursery Award 2010;
• Pharmaceutical Industry Award 2010;
• Professional Diving Industry (Industrial) Award 2010;
• Professional Diving Industry (Recreational) Award 2010;
• Silviculture Award 2010; and
• Storage Services and Wholesale Award 2010. 4
[9] In relation to the Market and Social Research Award 2010, Ai Group proposed that the first sentence in clause 19.5 of that award be retained and that the balance of the clause be replaced by the model term. No party opposed the course proposed.
[10] Further, the AWU and Ai Group have agreed upon an amended version of the model term to be inserted into the Aluminium Industry Award 2010. 5
[11] We propose to issue draft variation determinations to insert the model term in the modern awards set out at [8] and [9] above. In relation to the Market and Social Research Award 2010 the variation will retain the first sentence of clause 19.5 as a separate entitlement and replace the balance of the clause with the model term.
[12] It is our provisional view that the variation of these awards to insert the model term is necessary to ensure that these modern awards achieve the modern awards objective. Any party wishing to contest that provisional view must file a submission by no later than 14 days after the publication of the draft variation determinations. Any such submission should set out the reasons in support of the party’s position. All submissions and comments are to be sent to amod@fwc.gov.au. Absent any submission in respect to a particular award we will confirm our provisional view and vary that award in accordance with the draft variation determination.
[13] As to the Aluminium Industry Award 2010, we will await the filing of the agreed proposed variation determination and if satisfied that the variation proposed is necessary to ensure that the award achieves the modern awards objective we will vary the award in the terms proposed.
[14] The 92 modern awards in respect of which draft variation determinations are to be made to insert the model term are set out at Attachment 1. A statement will be issued shortly regarding the next steps in relation to the remaining 30 modern awards.
PRESIDENT
Printed by authority of the Commonwealth Government Printer
<PR609884>
Attachment 1
Aboriginal Community Controlled Health Services Award 2010 [MA000115]
Air Pilots Award 2010 [MA000046]
Aircraft Cabin Crew Award 2010 [MA000047]
Airline Operations—Ground Staff Award 2010 [MA000048]
Airport Employees Award 2010 [MA000049]
Alpine Resorts Award 2010 [MA000092]
Ambulance and Patient Transport Industry Award 2010 [MA000098]
Amusement, Events and Recreation Award 2010 [MA000080]
Animal Care and Veterinary Services Award 2010 [MA000118]
Aquaculture Industry Award 2010 [MA000114]
Architects Award 2010 [MA000079]
Asphalt Industry Award 2010 [MA000054]
Banking, Finance and Insurance Award 2010 [MA000019]
Book Industry Award 2010 [MA000078]
Broadcasting and Recorded Entertainment Award 2010 [MA000091]
Car Parking Award 2010 [MA000095]
Cement and Lime Award 2010 [MA000055]
Cemetery Industry Award 2010 [MA000070]
Cleaning Services Award 2010 [MA000022]
Clerks—Private Sector Award 2010 [MA000002]
Coal Export Terminals Award 2010 [MA000045]
Commercial Sales Award 2010 [MA000083]
Concrete Products Award 2010 [MA000056]
Contract Call Centres Award 2010 [MA000023]
Corrections and Detention (Private Sector) Award 2010 [MA000110]
Cotton Ginning Award 2010 [MA000024]
Dredging Industry Award 2010 [MA000085]
Educational Services (Post-Secondary Education) Award 2010 [MA000075]
Educational Services (Schools) General Staff Award 2010 [MA000076]
Educational Services (Teachers) Award 2010 [MA000077]
Electrical Power Industry Award 2010 [MA000088]
Fast Food Industry Award 2010 [MA000003]
Fire Fighting Industry Award 2010 [MA000111]
Fitness Industry Award 2010 [MA000094]
Funeral Industry Award 2010 [MA000105]
Gardening and Landscaping Services Award 2010 [MA000101]
Gas Industry Award 2010 [MA000061]
General Retail Industry Award 2010 [MA000004]
Hair and Beauty Industry Award 2010 [MA000005]
Health Professionals and Support Services Award 2010 [MA000027]
Higher Education Industry—Academic Staff—Award 2010 [MA000006]
Higher Education Industry—General Staff—Award 2010 [MA000007]
Horse and Greyhound Training Award 2010 [MA000008]
Hospitality Industry (General) Award 2010 [MA000009]
Hydrocarbons Field Geologists Award 2010 [MA000064]
Hydrocarbons Industry (Upstream) Award 2010 [MA000062]
Joinery and Building Trades Award 2010 [MA000029]
Journalists Published Media Award 2010 [MA000067]
Labour Market Assistance Industry Award 2010 [MA000099]
Legal Services Award 2010 [MA000116]
Live Performance Award 2010 [MA000081]
Local Government Industry Award 2010 [MA000112]
Mannequins and Models Award 2010 [MA000117]
Marine Tourism and Charter Vessels Award 2010 [MA000093]
Marine Towage Award 2010 [MA000050]
Maritime Offshore Oil and Gas Award 2010 [MA000086]
Market and Social Research Award 2010 [MA000030]
Medical Practitioners Award 2010 [MA000031]
Mining Industry Award 2010 [MA000011]
Miscellaneous Award 2010 [MA000104]
Nursery Award 2010 [MA000033]
Oil Refining and Manufacturing Award 2010 [MA000072]
Pest Control Industry Award 2010 [MA000097]
Pharmacy Industry Award 2010 [MA000012]
Pharmaceutical Industry Award 2010 [MA000069]
Port Authorities Award 2010 [MA000051]
Ports, Harbours and Enclosed Water Vessels Award 2010 [MA000052]
Poultry Processing Award 2010 [MA000074]
Premixed Concrete Award 2010 [MA000057]
Professional Diving Industry (Industrial) Award 2010 [MA000108]
Professional Diving Industry (Recreational) Award 2010 [MA000109]
Professional Employees Award 2010 [MA000065]
Quarrying Award 2010 [MA000037]
Racing Clubs Events Award 2010 [MA000013]
Racing Industry Ground Maintenance Award 2010 [MA000014]
Rail Industry Award 2010 [MA000015]
Real Estate Industry Award 2010 [MA000106]
Registered and Licensed Clubs Award 2010 [MA000058]
Salt Industry Award 2010 [MA000107]
Seagoing Industry Award 2010 [MA000122]
Security Services Industry Award 2010 [MA000016]
Silviculture Award 2010 [MA000040]
Social, Community, Home Care and Disability Services Industry Award 2010 [MA000100]
Sporting Organisations Award 2010 [MA000082]
State Government Agencies Award 2010 [MA000121]
Stevedoring Industry Award 2010 [MA000053]
Storage Services and Wholesale Award 2010
Sugar Industry Award 2010 [MA000087]
Surveying Award 2010 [MA000066]
Telecommunications Services Award 2010 [MA000041]
Textile, Clothing, Footwear and Associated Industries Award 2010 [MA000017]
Transport (Cash in Transit) Award 2010 [MA000042]
Travelling Shows Award 2010 [MA000102]
Water Industry Award 2010 [MA000113]
Wool Storage, Sampling and Testing Award 2010 [MA000044]
2 Ai Group submission, 13 August 2018.
3 See the Statement of 17 July 2018 [2018] FWC 4206.
4 AWU submission, 10 August 2018.
5 Ibid.