MODERN AWARDS – 4 yearly review – common issues – s.156 Fair Work Act 2009 – decision finalises a number of outstanding matters in relation to the variation of annual leave terms in modern awards – should be read in conjunction with previous decisions issued on 11 June 2015 (the June 2015 decision) [[2015] FWCFB 3406], 15 September 2015 (the September 2015 decision) [[2016] FWCFB 5771], 23 May 2016 (the May 2016 decision) [[2016] FWCFB 3177] and 24 June 2016 (the June 2016 decision) [[2016] FWCFB 3953] – two categories of outstanding issues – whether the excessive model term should be included in certain modern awards and whether particular existing terms that provide for the taking of annual leave should be retained; and annual leave provisions in a number of awards in the Maritime industry – Timing of taking annual leave – June 2016 decision finalised the excessive leave model term – 20 modern awards contain existing provisions which require accrued annual leave to be taken within a certain period of time – relevant Unions confirmed they were seeking the insertion of the model excessive leave term – no objection received to insertion of the model term in 18 modern awards – Full Bench concluded the existing terms which require annual leave be taken within a specified period of time after accrual did not provide a fair and relevant minimum safety net of terms and conditions of employment and, accordingly, did not satisfy the modern awards objective – these18 modern awards set will be varied to insert the excessive leave model term – the two modern awards which were the subject of continuing objections were the Black Coal Mining Industry Award 2010 (the BCMI Award) and the Aquaculture Award 2010 (the Aquaculture Award) – FW Act does not require an employee to take their accrued paid annual leave within any particular timeframe – ‘a modern award or enterprise agreement may include terms requiring an employee, or allowing for an employee to be required, to take paid annual leave in particular circumstances, but only if the requirement is reasonable’ [s.93(3) of FW Act] – the assessment of whether a requirement to take paid annual leave is ‘reasonable’ within the meaning of s.93(3) is not viewed solely through the perspective of the employer – BCMIAward provides for 6 weeks’ annual leave per annum for continuous shiftworkers and 5 weeks for other employees – the Coal Mining Industry Employer Group (CMIEG) submitted data which showed that some 1,973 employees employed by 12 black coal mining industry employers (or about 9.5% of the employees) had an ‘excessive leave accrual’ within the meaning of the model term – further submitted that accrual of annual leave is not at a level that is problematic in the industry – Full Bench held that such a level of ‘excessive’ paid annual leave accruals was problematic and supported an inference that a significant proportion of these employees were not taking a reasonable portion of their paid annual leave – decided to insert the model excessive leave term into BCMI Award, subject to a modification to the definition of ‘excessive leave’ having regard to the level of annual leave entitlements under the award – Aquaculture Award provides that annual leave is to be taken within 18 months of accrual – also provides that employees may be directed to take annual leave where an employer ‘ intends temporarily to close (or reduce the nucleus) the place of employment or a section of it’ – NSW Farmers (Industrial) Association (NSW Farmers), which represents the interests of oyster producers in NSW, opposed insertion of the model excessive leave term – Full Bench concluded the excessive leave term in the Aquaculture Award did not provide a fair and relevant minimum safety net of terms and conditions of employment – satisfied that variation of the Aquaculture Award to insert the model excessive leave term is necessary to ensure award meets the modern awards objective – Maritime awards – whether the six modern awards in the Maritime industry (the Maritime Industry Awards) should be varied to include some or all of the model annual leave terms – no longer any opposition to the insertion of the excessive leave, leave in advance and cashing out model terms into the Dredging Industry Award 2010 and the Ports, Harbours and Enclosed Water Vessels Award 2010 – Full Bench proposed to vary these two awards to insert the three model terms – AMMA/MIAL joint submission asserted the existing terms in the Marine Towage Award 2010; the Maritime Offshore Oil and Gas Award 2010 ; and the Seagoing Industry Award 2010 gave employers ‘the necessary flexibility to manage rosters by working in sync with the ‘swing system’ eg four or five weeks on duty followed by four or five weeks off duty’ and that ‘annual leave cannot be accommodated for employees during the on duty period’ – Full Bench found operation of the swing system in these awards likely to minimise excessive paid annual leave accruals and on that basis did not propose to vary these awards to insert the excessive leave model term – whether these awards should be varied to insert the cashing out and leave in advance model terms – none of these awards presently provide for the cashing out of annual leave – cashing out model term is a facilitative provision – no obligation on the employer to enter into such an agreement – provisional view of Full Bench was that these three awards should be varied to insert the cashing out model term – standard leave in advance model term is a facilitative provision – provisional view of Full Bench was that these three awards should be varied to insert the leave in advance model term – Professional Diving (Industrial) Industry Award 2010 provides different entitlements for inshore and offshore during operations – AMMA/MIAL joint submission does not oppose the variation of the award to insert the annual leave model terms in respect of inshore divers, but does oppose the application of those model terms to offshore divers – Full Bench did not propose to deal now with whether the excessive leave model term should be inserted into this award – a number of drafting issues need to be addressed before this matter can be determined – provisional view of Full Bench was that the Professional Diving (Industrial) Industry Award 2010 should be varied to insert the cashing out and leave in advance model terms and they should not distinguish between inshore and offshore divers – interested parties will have until 5.00pm (AEST) Friday 7 October 2016 to notify the Commission (at [email protected]) if they wish to contest the Full Bench’s provisional views in respect of the other Maritime Industry Awards. 4 yearly review of modern awards – Annual Leave
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