4 yearly review of modern awards—Abandonment of Employment

[2018] FWCFB 7433

[2018] FWCFB 7433

FAIR WORK COMMISSION

DECISION

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

4 yearly review of modern awards—Abandonment of Employment
(AM2016/35)

VICE PRESIDENT HATCHER
DEPUTY PRESIDENT GOSTENCNIK
COMMISSIONER CRIBB SYDNEY, 17 DECEMBER 2018

4 yearly review of modern awards – common issues – abandonment of employment - awards varied.

[1] On 23 January 2018 we issued a decision 1 in which we reached the conclusion that the following modern award provisions concerning abandonment of employment were not permitted or required to be included in a modern award and should be deleted:

•  clause 21 of the Manufacturing and Associated Industries and Occupations Award 2010;

•  clause 17 of the Business Equipment Award 2010;

•  clause 16 of the Contract Call Centres Award 2010;

•  clause 14 of the Graphic Arts, Printing and Publishing Award 2010;

•  clause 11 of the Nursery Award 2010; and

•  clause 10.6 2 of the Wool Storage, Sampling and Testing Award 2010.

[2] However, we proceeded to accept the submissions of the Australian Industry Group (Ai Group) and the Australian Manufacturing Workers’ Union (AMWU) that there would be utility, at least in respect of the Manufacturing and Associated Industries and Occupations Award, in replacing the above provisions with one which identified the procedures to be followed in the event that there is an extended and unexplained absence from duty on the part of an employee, and we referred to without endorsing a proposal advanced by the AMWU along those lines. 3 We allowed a period of 28 days for interested parties to file submissions concerning a replacement provision of this nature, and also invited interested parties to participate in a conference conducted by a member of the Commission to endeavour to reach a consensus about the issue.4 The deletion of the identified provisions was deferred to allow this process to occur.

[3] Submissions were subsequently received from the Ai Group, the AMWU, the Australian Services Union (ASU) and The Australian Workers’ Union (AWU). It is not necessary to describe these submissions in detail save to say that:

•  the AMWU, with the support of the ASU, advanced a modified version of its earlier proposal;

•  the Ai Group proposed a replacement provision which identified consultation obligations applicable in the event of an abandonment of employment and contained a detailed definition of what constituted an abandonment of employment; and

•  the AWU submitted that it was not necessary for any of the six modern awards to contain a provision concerning abandonment of employment, but in the alternative advanced a proposed replacement provision.

[4] A conference of interested parties was conducted by Deputy President Gostencnik on 3 August 2018. Following that conference, directions were issued inviting interested parties to comment upon a proposed replacement provision in the following terms:

“21 Reasonable inquiries about certain absences

21.1 This clause applies to an absence from work by an employee of 3 or more consecutive working days where the whole of the absence is not authorised or explained, or occurs without notification to the employer given before or as soon as practicable after the first day of the absence commences.

21.2 If an employee is absent from work as described in subclause 1, the employer shall take reasonable steps to:

(a) contact the employee;

(b) provide the employee with an opportunity to explain the absence from work; and

(c) give genuine consideration to any explanation provided by the employee.”

[5] Submissions were subsequently received from the Ai Group, Australian Business Industrial and the NSW Chamber of Commerce (ABI/NSWBC), the Australian Federation of Employers and Industries (AFEI), and a joint group of unions (the AMWU, the AWU, the ASU, the Community and Public Sector Union, and the Construction, Forestry, Maritime, Mining and Energy Union). In summary:

•  the Ai Group submitted that the proposed provision was not necessary to meet the modern awards objective, and the appropriate course was to delete the existing abandonment of employment provisions in the six awards and not insert any alternative clauses;

•  ABI/NSWBC submitted that the proposed provision lacked utility and was not necessary or desirable to meet the modern awards objective, and that no clause should be added to any of the six awards to replace the current abandonment of employment provisions;

•  the AFEI took a similar position to that of the Ai Group and ABI/NSWBC; and

•  the unions jointly supported the inclusion of the proposed provision in the six awards.

[6] Section 138 of the Fair Work Act 2009 (FW Act) provides that:

“A modern award may include terms that it is permitted to include, and must include terms that it is required to include, only to the extent necessary to achieve the modern awards objective and (to the extent applicable) the minimum wages objective.”

[7] The modern awards objective, which is set out in s 134(1), is for the Commission to “…ensure that modern awards, together with the National Employment Standards, provide a fair and relevant minimum safety net of terms and conditions” taking into account nine specified matters. While we consider that the proposed provision would have some utility in terms of prescribing a standardised and fair procedure for dealing with employees who are absent from work without authorisation or notification, we accept the submissions of the employer groups (which were consistent with the earlier submission of the AWU) that the provision cannot be regarded as necessary to meet the modern awards objective. The situation with which the provision is concerned is, in our experience, fairly rare; the steps, if any, which it may be appropriate for the employer to take in that situation will depend upon the precise circumstances; and if the employee has truly abandoned his or her employment, then it is at least arguable that the employer owes the employee no duty of procedural fairness. Accordingly, in the absence of any consensus among the parties as to the terms of a provision which would meet the requirements of s 138, we will not replace the provisions identified in paragraph [1] above with any new provision.

[8] Determinations to remove the provisions listed in paragraph [1] will be issued in due course.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR702920>

 1   [2018] FWCFB 139

 2   The provision was numbered as clause 10.5 at the time of our decision but was renumbered as clause 10.6 effective from 1 October 2018.

 3   [2018] FWCFB 139 at [33]-[34]

 4   Ibid at [35]