MODERN AWARDS – 4 yearly review – common issues – s.156 Fair Work Act 2009 – Full Bench – Statement dealing matters concerning ‘payment of wages’ terms in modern awards – on 1 December 2016 Full Bench issued decision dealing ‘payment of wages’ issues in modern awards (December 2016 decision) [[2016] FWCFB 8463] – main issues dealt with in December 2016 decision were: timing of payment of wages; timing of payment on termination of employment; and accrual of wages and other amounts – issues related to penalties for late payment of wages and annual leave loading have been determined – a claim made by Restaurant and Catering Industrial (RCI) in relation to removing a restriction on the days for payment of wages in respect of the Restaurant Industry Award 2010 was referred to the Award stage of the review – December 2016 decision set out provisional views and model terms in respect of issues related to timing of payment of wages and timing of payment on termination of employment – Full Bench called for further submissions in relation to these issues, and also called for further submissions to be filed in respect of issue related to accrual of wages – a number of submissions were received from parties – at 23 March 2017 hearing Full Bench noted that there appeared to be a measure of agreement between parties about some important matters of principle – Statement issued 26 April 2017 identified areas of agreement and disagreement [[2017] FWCFB 2290] – purpose of 4 May conference was to provide parties with opportunity to identify which areas were agreed and those that may require determination – at conference, parties confirmed there is general agreement in a number of areas – timing of payment of wages – provisional view expressed in December 2016 decision was that all modern awards should include a term providing for method and frequency of payment as well as placing a limit on payment in arrears – Full Bench also considered that there was utility in establishing a model ‘payment of wages and other amounts’ award term – timing of payment on termination of employment – in Statement published 14 October 2016 [[2016] FWCFB 7455], Full Bench expressed some provisional views in respect of this issue – in December 2016 decision, Full Bench confirmed their provisional view that each modern award should provide for payment of wages and other amounts owing to an employee on termination of employment – such term should also prescribe timeframe within which such termination payments are to be made – Full Bench also confirmed their provisional view that there is utility in a common ‘payment on termination’ provision across all 122 modern awards – accepted that each modern award is to be reviewed in its own right and there may be sound reasons for departing from model term in a particular modern award – accrual of wages and other amounts – December 2016 decision outlined an issue in relation to accrual of wages and other amounts, in that award provisions do not expressly deal with accrual of payments – s.323 FW Act deals with method and frequency with which employers must pay ‘amounts payable to the employee in relation to performance of work’, and appears to have effect that such amounts must be paid no later than one month after accrual – however s.323 does not specify when ‘amounts payable to the employee in relation to the performance of work’ become payable – December 2016 decision noted academic commentary suggested that, absent express provision for accrual in an award, if wages are required to be paid periodically under the award (for example, weekly, fortnightly or monthly) then they will be taken to accrue with at least the same frequency – Full Bench directed parties to file further written submissions regarding this issue – submission received by Irving and Stewart proposing insertion of a new default term into all modern awards dealing with the accrual of wages ‘on a day to day basis’ unless industry circumstances required modification of default wording – appears to be general agreement that awards should prescribe how wages accrue, but this general issue requires further discussion – next steps – agreed interested parties will have direct discussions relating to timing of payment of wages model term – parties requested period of seven weeks to confer with affiliates and then forward a position to opposing side – matter will be listed for mention before President at 10am on Wednesday 5 July 2017. 4 yearly review of modern awards – Payment of wages
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