Annual Leave
IN MAY, the Fair Work Commission (FWC) issued a decision dealing with the variation of modern awards in relation to a number of paid annual leave matters. The terms related to the insertion of model clauses in respect of:
- Cashing out of annual leave
- EFT and paid annual leave
- Granting of annual leave in advance
- Excessive annual leave
Members should visit this page to understand these changes, and are encouraged to contact an AREEA consultant for any required advice on how they may impact your employment processes.
The decision also proposed changes to the FWC’s model clauses, including cashing out of annual leave, annual leave in advance and excessive annual leave. It also expressed a number of provisional views in relation to specific awards and model clauses.
AREEA opposed the insertion of a number of model clauses to modern awards operating within the resource industry, which were, in AREEA’s submissions, meeting the Fair Work Act’s ’modern awards objective’ since they commenced on 1 January 2010.
AREEA and Maritime Industry Australia Ltd (MIAL) also jointly opposed variation of a number of maritime industry related modern awards, because of the unique features within the maritime industry.
The decision confirmed that the Full Bench was not dissuaded from resource industry arguments that the FWC should not vary the relevant resource industry modern awards to replace the current annual leave terms with the model terms.
In relation to the maritime industry awards, the Full Bench curiously decided that it seek a hearing with interested parties and AREEA/MIAL to give further consideration to whether the model clauses should be inserted. This was despite the Full Bench in December 2015 accepting and adopting AREEA/MIAL’s and trade union submissions that the relevant maritime awards should not have the model terms inserted. In the December statement, the Full bench indicated that a party seeking to insert a model clause in a particular modern award could do so upon application.
A further Full Bench decision issued in June dealt with further refinements to the model clauses and confirmed that the resource industry modern awards will now include the model terms. Draft determinations have been published on the FWC website on 1 July, with submissions due by 11 July on any technical issues identified. Determinations will then be issued in final form after 11 July.
In relation to the maritime industry modern awards, AREEA/MIAL appeared in a hearing with relevant unions on 1 July to re-iterate its earlier submissions that the model clauses should not be inserted. AREEA/MIAL was requested to file further written submissions in August with the Full Bench at this stage indicating that it would decide the matter on the papers thereafter.
Time Off In Lieu (TOIL)
AREEA has also opposed the FWC replacing existing TOIL provisions in relevant resource industry modern awards with the FWC’s draft model clauses.
Similarly, AREEA and MIAL jointly opposed the insertion of the TOIL model clause in maritime modern awards due to the unique features of the maritime industry. This position was supported by relevant unions.
In June, the Full Bench issued a further statement in relation to four resource industry modern awards and four maritime industry modern awards summarising the conferences which have occurred before Deputy President Kovacic and outlining next steps. The Full Bench has confirmed that it will now determine the matter to finality on the papers.
Proposed New Modern award – Helicopter Crew
AREEA is currently participating in proceedings initiated by the AMWU to create a new modern award for Helicopter crew due the potential new award coverage for Helicopter operators within the resource industry. The AWMU has now filed a draft modern award.
AREEA appeared before a mention hearing in May before Hatcher VP and intends to continue participating in the proceedings with other interested parties. Directions have been issued which require the AWMU to organise consultations with interested parties before the matter is brought back for a further mention hearing. Members with an interest in this particular matter should contact Peter Robertson in the Perth office.
Multiple Modern Award Coverage
In May, the Full Bench issued a statement on multiple modern award coverage. As part of the Award Flexibility Common Issue to the 4 yearly review of modern awards, a statement issued in October 2015 indicated the intention to engage an external research provider to conduct research into multiple modern award coverage and the utility of majority clauses.
This is another initiative of the FWC and has not been requested by any party. In December 2015 the Commission issued a statement finalising the scope of the research following consultations with interested parties. The Commission subsequently engaged an external research provider, who has completed the research and prepared a report. The report does not represent the views of the Full Bench. The Commission has released the report on multiple modern award coverage and the utility of majority clauses to inform the review. A copy can be found on the modern awards research page and the Award Flexibility Common Issue page on the Commission’s website.
The FWC has indicated that interested parties are invited to provide responses to the report by no later than 30 June 2016 to [email protected].
For more information, contact AREEA’s policy team via [email protected].
