MODERN AWARDS – 4 yearly review – common issues – s.156 Fair Work Act 2009 – Full Bench – consideration of the insertion of the TOIL model term into 10 modern awards – Full Bench first considered insertion into Mobile Crane Hiring Award 2010 and Amusement, Events and Recreation Award 2010 – provisional view expressed 11 July 2016 model term should be inserted – no objections received – held model term to be inserted into these awards – Full Bench then considered insertion into Hydrocarbons Industry (Upstream) Award 2010, Mining Industry Award 2010, Oil Refining and Manufacturing Award 2010 and Salt Industry Award 2010 (Resources Sector Awards) – Resources Sector Awards already contain a TOIL provision – AMMA submitted current provisions should not be altered – submitted current provisions were simple to understand and have met the modern awards objective – model term provides increased prescription and regulatory burden on employers – no industry evidence supports insertion of the model term – Commission should consider its previous decisions in the award modernisation process relevant to this contested issue – AWU and AMWU support the insertion because there are no industry specific reasons against it – Full Bench reiterated points from previous Full Bench decisions dealing with TOIL provisions – held no previous decisions related to this issue in award modernisation process – model term not burdensome – no relevant industry evidence against the insertion – current TOIL provisions in the Resources Sector Awards are deficient and do not provide a fair and relevant safety net because they do not provide the additional employee safeguards in the model term – model term to be inserted into the Resources Sector Awards – Full Bench then considered insertion into Marine Towage Award 2010, Ports Harbours and Enclosed Water Vessels Award 2010 (Ports Award), Professional Diving Industry (Industrial) Award 2010 (Diving Award) and Dredging Industry Award 2010 – all of these awards contained overtime provisions and the Ports Award also had a TOIL provision – MIAL, AMMA submitted similar submissions to those advanced against the insertion of the model term in Resources Sector Awards – submitted model term should not be incorporated into these awards – MUA agreed the Awards should not incorporate the model term – AWU agreed except they supported the inclusion of the model term in the Ports Award because the current TOIL term was deficient and not consistent with the modern awards objective – Full Bench held Ports Award’s current TOIL provision is deficient and does not provide a fair and relevant safety net because they do not provide the additional employee safeguards in the model term – model term to be inserted into the Ports Award – Full Bench cited April 2016 Award flexibility decision when considering the insertion of the model term into the other three Awards – held model term not to be inserted into the Dredging Industry Award 2010 or the Marine Towage Award 2010 because all interested parties opposed the variation and the awards already contained sufficient aggregate salary provisions commonly used in practice – held model term to be inserted into the Diving Award but limited to apply only to inshore divers because the Diving Award currently only provides overtime for inshore divers and not offshore divers – draft determinations to be published. 4 yearly review of modern awards – Award flexibility
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