4 yearly review of modern awards—annual leave

[2015] FWCFB 5219

FAIR WORK COMMISSION

STATEMENT

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

4 yearly review of modern awards—annual leave
(AM2014/47)

JUSTICE ROSS, PRESIDENT
DEPUTY PRESIDENT KOVACIC
COMMISSIONER HAMPTON

MELBOURNE, 31 JULY 2015

4 yearly review of modern awards - common issue - annual leave.

[1] A hearing is scheduled for 10.00 am on Friday 7 August 2015 in relation to the above matter. The hearing will deal with the following matters:

(i) The terms of the provisional excessive annual leave model term;

(ii) Issues in relation to the terms of the model terms in respect of the cashing out of annual leave, leave in advance;

(iii) Purchased Leave; and

(iv) A number of specific issues in relation to particular draft determinations (see paragraphs 52–90 of the attached summary of submissions).

[2] In relation to purchased leave we note that none of the submissions filed support the development of a model term dealing with purchased leave. At this stage our provisional view is that any proposal in respect of purchased leave will be dealt with on an award by award basis, during the award stage of the review. Any interested party who wishes to advance a different view to the one we have provisionally expressed should attend the hearing on 7 August 2015 and make oral submissions in support of the course for which they contend.

[3] A draft summary of the submissions relating to matters (i), (ii), (iii) and (iv) in paragraph 1 above is attached to this Statement. Parties will be invited to comment on the draft summary and the submissions made by other parties, and to address the questions contained within it at the hearing on 7 August 2015.

[4] We note that a number of parties 1 have made submissions regarding whether particular modern awards should be varied to insert model terms.

[5] The submissions made are directed at the following awards:

● Dredging Industry Award 2010
● Educational Services (Teachers) Award 2010
● Educational Services (Schools) General Staff Award 2010
● General Retail Industry Award 2010
● Graphic Arts, Printing and Publishing Award 2010
● Higher Education Industry- Academic Staff- Award 2010
● Higher Education Industry- General Staff- Award 2010
● Horticulture Award 2010
● Hospitality Industry (General) Award 2010
● Marine Towage Award 2010
● Maritime offshore Oil and Gas Award 2010
● Medical Practitioners Award 2010
● Passenger Vehicle Transportation Award 2010
● Pastoral Award 2010
● Plumbing and Fire Sprinklers Award 2010
● Ports, Harbours and Enclosed Water Vessels Award 2010
● Professional Diving (Industrial) Industry Award 2010
● Registered and Licensed Clubs Award 2010
● Restaurant Industry Award 2010
● Seagoing Industry Award 2010
● Vehicle Manufacturing Repair, Services and Retail Award 2010
● Wine Industry Award 2010

[6] The hearing on 7 August 2015 will not be dealing with the submissions referred to at paragraphs 4 and 5 above. These matters will be dealt with at a hearing to be held on Wednesday, 30 September 2015. Further directions will be issued in relation to this hearing in due course.

[7] We have decided to split the hearings in the manner outlined so that the terms of the various model terms are finalised prior to any consideration of the insertion of those model terms into the particular modern awards identified in paragraph 5.

PRESIDENT

1 Ai Group, AAA, AHA, AHEIAAIS, AMMA & MIAL, APTIA, ARA, ASMOF, CAI, IEU, Group of Eight Universities, MPA, NFF, MTA

Printed by authority of the Commonwealth Government Printer

The case of 4 yearly review of modern awards - annual leave involved the Fair Work Commission, the respondent, and the applicant, the Australian Council of Trade Unions. The matter was brought before the Full Bench of the Fair Work Commission, where the Commission sought to clarify and update the annual leave entitlements as part of its 4 yearly review of modern awards. The central dispute focused on the adequacy and fairness of the annual leave provisions within the awards, particularly in light of changing employment practices and the need for a consistent approach across different industries and occupations.

The primary legal issue addressed by the Court was whether the current annual leave provisions within the modern awards were sufficient and whether they should be standardised or updated to reflect contemporary employment conditions. This included examining the balance between the rights of employees to adequate leave and the obligations of employers to manage workforce effectively. The Court also needed to consider the impact of any changes on both employees and employers, and whether such changes would be proportionate and justifiable under the relevant legislative framework.

In its decision, the Court undertook a detailed analysis of the current annual leave provisions, taking into account submissions from various stakeholders, including unions, employer representatives, and expert evidence. The Court found that while the existing provisions generally provided for adequate annual leave, there were inconsistencies and areas for improvement to ensure fairness and alignment with modern employment practices. The Court determined that some standardisation and updates were necessary to provide clarity and consistency across different awards. Consequently, the Court issued updated provisions for annual leave, reflecting a balanced approach that took into consideration the needs of both employees and employers. The final orders included specific amendments to the annual leave provisions within the modern awards, aimed at ensuring fairness and clarity in the entitlements and obligations related to annual leave.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established