MODERN AWARDS – 4 yearly review – common issue – s.156 Fair Work Act 2009 – Full Bench – decision deals with a number of outstanding matters in relation to the variation of annual leave terms in the Black Coal Mining Industry Award 2010 (the Black Coal Award) – to 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) [[2015] FWCFB 5771], 23 May 2016 (the May 2016 decision) [[2016] FWCFB 3177], 24 June 2016 (the June 2016 decision) [[2016] FWCFB 3953], 22 September 2016 (the September 2016 decision) [[2016] FWCFB 6836] and 19 December 2016 (the December 2016 decision) [[2016] FWCFB 9074] – outstanding issues of concern related to the finalisation of the Determination varying the Black Coal Award, in particular: the form of shutdown provision to be included as part of the annual leave arrangements; and some minor editorial issues relating to draft determination issued by Commission – a number of unions opposed an amendment to the shutdown provision proposed by the Coal Mining Industry Employer Group (CMIEG) – following a conference of the parties conducted on 25 November 2016, the Full Bench provided a further opportunity for submissions – CMIEG, CFMEU and AMWU made additional submissions consistent with the positions advanced at the November conference – shutdown issue – existing shutdown clause (clause 25.10) provides that employees must be given a period of notice of the shutdown and that an employee who is directly affected may take accrued annual leave or leave in advance – with the removal of the general right to direct the taking of annual leave under the former clause 25.4(c), there appears to be no capacity to direct that annual leave be taken during a shutdown period, other than potentially in relation to excessive leave – unions raised two principal concerns about the CMIEG proposal – first, that a provision permitting the employer to direct the taking of leave is not reasonable, and is contrary to s.93(3) of the FW Act – second, the proposal would, in effect, reintroduce the power for the employer to direct the taking of leave – Full Bench held there was significant potential for uncertainty and inconsistency arising from the present provisions – shutdown clause should be clear and serve its evident purpose – Full Bench accepted there is merit in the unions’ concerns and that the provision as proposed by the CMIEG is capable of being applied in a manner which is inconsistent with s.93(3) -Full Bench provisional view that a revised shutdown provision be inserted into the Black Coal Award – may be appropriate that any direction to take accrued paid annual leave, or unpaid leave, be subject to the requirement that such a direction be reasonable – provisional view is that there are two means by which a shutdown term may be framed such as to ensure compliance with s.93(3) – such a term may either include a range of procedural and substantive safeguards (e.g. as is the case with the excessive leave model term), or it may simply require that any direction to take leave be reasonable – provisional view that the latter approach is preferable – invitation written submissions regarding the provisional views – submissions should be forwarded to amod@fwc.gov.au by 4pm on Tuesday 11 April 2017 – submissions in reply are due by 4pm on Wednesday 26 April 2017 – a short oral hearing to be held at 9.30am on Friday 5 May 2017 in Sydney. 4 yearly review of modern awards-Annual leave