4 yearly review of modern awards

[2020] FWCFB 430

[2020] FWCFB 430

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.156 - 4 yearly review of modern awards

4 yearly review of modern awards
(AM2019/17)

JUSTICE ROSS, PRESIDENT
DEPUTY PRESIDENT CLANCY
COMMISSIONER BISSETT MELBOURNE, 29 JANUARY 2020

4 yearly review of modern awards – Final stage proceedings – Animal Care and Veterinary Services Award 2010 – annual leave – terminology.

[1] A decision issued on 2 September 2019 1 outlined the process for finalising the Exposure Drafts produced in the 4 yearly review of modern awards and the consequent variation of each modern award.

[2] On 24 October 2019 2 we issued a decision confirming the Animal Care and Veterinary Services Award 2010 would be varied in accordance with the variation determination issued on 25 November 2019.3 The variation was to take effect on 4 February 2020.

[3] An issue has arisen in relation to the terminology used at clause 22.3(a) of the variation determination, which is set out as follows:

‘22.3 Annual leave loading

(a) During a period of annual leave an employee will receive their minimum hourly rate plus a loading calculated on the rate of wage prescribed in clause 15—Minimum rates. Annual leave loading is payable on leave accrued.’

[4] Section 90 of the Fair Work Act 2009 (Cth) (Act) requires an employer to pay to an employee taking annual leave at their base rate of pay for ordinary hours worked:

‘90. Payment for annual leave

(1) If, in accordance with this Division, an employee takes a period of paid annual leave, the employer must pay the employee at the employee’s base rate of pay for the employee’s ordinary hours of work in the period.’ (emphasis added).’

[5] Clause 22.1 of the variation determination provides:

‘22.1 Annual leave is provided for in the NES.’

[6] We are of the view that the term ‘minimum hourly rate’ in clause 22.3(a) may be inconsistent with s.90 of the Act. It is our provisional view that clause 22.3(a) of the variation determination should be varied as follows:

‘22.3 Annual leave loading

(a) During a period of annual leave an employee will receive their minimum hourly rate plus a loading calculated on the rate prescribed in clause 15— Minimum rates in addition to the payment provided by the NES. Annual leave loading is payable on leave accrued.

(b) The loading is as follows:

(i) Day work

Employees who would have worked on day work only had they not been on leave—17.5% or the relevant weekend penalty rates, whichever is the greater but not both.

(ii) Shiftwork

Employees who would have worked on shiftwork had they not been on leave—a loading of 17.5% or the shift loading (including relevant weekend penalty rates) whichever is the greater, but not both.

NOTE: Where an employee is receiving over-award payments such that the employee’s base rate of pay is higher than the rate specified under this award, the employee is entitled to receive the higher rate while on a period of paid annual leave (see sections 16 and 90 of the Act).

Next steps

[7] Any party opposed to the provisional view and the proposed amendment set out at para [5] is to file a submission outlining the objection by 4pm Thursday, 13 February 2019. Submissions are to be sent to [e-mail].

[8] The variation determination issued on 25 November 2019 will not come into effect on 4 February 2020. If no submissions are filed the variation determination, including the amendment set out at para [5], will come into effect on 14 February 2019.

PRESIDENT

Printed by authority of the Commonwealth Government Printer

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 1   [2019] FWCFB 6077.

 2   [2019] FWCFB 7173.

 3   Determination – Animal Care and Veterinary Services Award 2020.