| [2016] FWCFB 4519 |
| FAIR WORK COMMISSION |
STATEMENT |
Fair Work Act 2009
s.156 - 4 yearly review of modern awards
(AM2016/8)
JUSTICE ROSS, PRESIDENT | MELBOURNE, 6 JULY 2016 |
4 yearly review of modern awards –Payment of wages.
1. Background
[1] A Statement issued on 15 June 2016 identified five matters concerning various ‘payment of wages’ terms in a number of modern awards. These matters have all been referred to this Full Bench for determination. A mention hearing was held in respect of these matters on Thursday, 30 June 2016. The purpose of the mention was to:
(i) determine whether this statement reflects the position of the parties;
(ii) consider whether conciliation would be beneficial to narrow any issues in dispute;
(iii) obtain an indication of the scope of each party’s case, and whether they intend to call any evidence; and
(iv) give consideration to the directions to be issued.
[2] This Statement summarises the outcome of the 30 June 2016 mention.
2. The Issues
(i) Timing of payment of wages
[3] The SDA application 1 seeks a variation to require that all wages be paid on a regular payday within four days of the end of the pay period. The variation is sought in the following awards:
• Fast Food Industry Award 2010;
• General Retail Industry Award 2010;
• Hair and Beauty Industry Award 2010.
[4] The SDA advised that they are not seeking to vary the Mannequins and Models Award 2010 2.
[5] All parties expressed the view that conciliation would be of assistance. At this stage no party intended to call any evidence in support of their position.
(ii) Removing a restriction on the days for payment of wages
[6] Restaurants and Catering Industrial (RCI) is seeking to vary the Restaurant Industry Award 2010 to delete the current prohibition on the payment of wages on Fridays, Saturdays and Sundays. The claim is opposed by United Voice. Both parties were open to conciliation in respect of the claim. RCI indicated that it was likely to call some lay witness evidence in support of its claim.
(iii) Timing of payment on termination of employment
[7] Ai Group is seeking to vary nine awards to enable employers who pay by EFT to make termination payments in accordance with the normal pay cycle. The modern awards sought to be varied are:
• Manufacturing and Associated Industries and Occupations Award 2010;
• Graphic Arts, Printing and Publishing Award 2010;
• Storage Services and Wholesalers Award 2010;
• Road Transport and Distribution Award 2010;
• Road Transport (Long Distance) Award 2010;
• Business Equipment Award 2010;
• Horticulture Award 2010;
• Wine Industry Award 2010;
• Food, Beverage and Tobacco Manufacturing Award 2010.
[8] Australian Business Industrial and the NSW Business Chamber (ABI) seeks a similar variation to the Supported Employment Services Award 2010 and supports Ai Group’s proposed variation in relation to the Graphic Arts, Printing and Publishing Award 2010; the Road Transport and Distribution Award 2010; the Road Transport (Long Distance Operations) Award 2010; and the Wine Industry Award 2010.
[9] Conciliation conferences will be convened in relation to the proposed variation of the following awards:
• Business Equipment Award 2010;
• Horticulture Award 2010;
• Road Transport and Distribution Award 2010;
• Road Transport (Long Distance) Award 2010;
• Storage Services and Wholesalers Award 2010.
[10] The claims in respect of the other awards are opposed and the general view was that there was little utility in conciliation in relation to those matters.
b Ai Group and ABI may seek to call one or two witnesses in support of their claims.
(iv) Penalty for late payment of wages
[12] The Health Services Union (the HSU) sought some time to clarify its position in respect to its foreshadowed claim to introduce penalties for the late payment of wages in three modern awards: Aboriginal Community Controlled Health Services Award 2010; Aged Care Award 2010; and Social Community, Home Care and Disability Services Industry Award 2010. These awards do not currently contain a term providing a penalty for late payment of wages.
[13] There are also applications by ABI and the Master Builders Australia (MBA) to vary the terms of certain awards which provide a penalty for late payment of wages.
[14] The Commission has identified 16 modern awards which provide for a penalty upon the late payment of wages, as follows:
Award code | Award | Rate of penalty payment for late payment of wages |
MA000054 | Asphalt Industry Award 2010 | Overtime |
MA000020 | Building and Construction General On-site Award 2010* | Overtime |
MA000022 | Cleaning Services Award 2010* | Ordinary rates |
MA000073 | Food, Beverage and Tobacco Manufacturing Award 2010 | Overtime |
MA000026 | Graphic Arts, Printing and Publishing Award 2010 | Time and a half |
MA000009 | Hospitality Industry (General) Award 2010* | Overtime |
MA000029 | Joinery and Building Trades Award 2010* | Overtime |
MA000069 | Pharmaceutical Industry Award 2010 | Overtime |
MA000036 | Plumbing and Fire Sprinklers Award 2010* | Overtime |
MA000108 | Professional Diving Industry (Industrial) Award 2010* | Overtime |
MA000109 | Professional Diving Industry (Recreational) Award 2010* | Overtime |
MA000014 | Racing Industry Ground Maintenance Award 2010* | 3.9% weekly SR per day |
MA000058 | Registered and Licensed Clubs Award 2010* | Overtime |
MA000068 | Seafood Processing Award 2010* | Overtime |
MA000103 | Supported Employment Services Award 2010 | Ordinary rates |
MA000071 | Timber Industry Award 2010^ | Overtime |
* Awards subject to applications to remove penalty ^ see also Group 1C–E decision[2015] FWCFB 7236at paras 229–234 | ||
[15] Ten of these awards are the subject of claims by either ABI or MBA to ensure that penalties are not provided for late payment of wages where employers are paid by way of EFT or where employers are not kept waiting at the workplace. Ai Group has also expressed an interest in these matters (see *).
[16] The MBA claims in the Building and Construction General On-Site Award 2010 and the Joinery and Building Trades Award 2010 are the subject of current conciliation proceedings before Senior Deputy President Watson. Conciliation conferences will be convened in respect of the other matters.
(v) Annual leave loading issue
[17] Ai Group seeks to vary five modern awards to address an alleged anomaly in the annual leave clauses relating to provisions dealing with payment of annual leave and annual leave loading. In the Contract Call Centres Award 2010 and the Telecommunications Services Award 2010 the issue raised has been resolved during recent conferences before Commissioner Roe. The remaining three awards are:
• Electrical, Electronic and Communications Contracting Award 2010;
• Food, Beverage and Tobacco Manufacturing Award 2010;
• Joinery and Building Trades Award 2010.
[18] Given that the issues that arise in each of these three awards differ, as do the range of interested parties, they will be listed for conciliation separately, at different times on the same day.
3. Next Steps
[19] The steps to be taken in relation to the claims which are the subject of this Statement are set out below.
1. Any party wishing to pursue a claim referred to in this Statement (or a claim referred to in the 16 June 2016 Statement) is to file a draft variation determination by no later than 4pm Tuesday 19 July 2016. Draft variation determinations are to be sent to amod@fwc.gov.au.
2. Conciliation conferences will be held on Wednesday 27 July 2016, in Sydney, in accordance with the schedule set out at Attachment A. Any comment on the proposed conciliation schedule is to be forwarded to amod@fwc.gov.au by 4pm Tuesday 12 July 2016. Requests to attend via video link should be sent to chambers.ross.j@fwc.gov.au.
3. A further mention will be held after the conciliation conferencing process is complete, to finalise the directions in respect of any unresolved matters.
[20] Listing notices will be issued in due course.
PRESIDENT
Printed by authority of the Commonwealth Government Printer
<Price code C, PR582494>
ATTACHMENT A - Proposed Schedule of Conciliations: Wednesday 27 July 2016 in Sydney
Time | Payment of Wages Issues |
9am | SDA’s claim regarding the timing of payment of wages in the following awards: • Fast Food Industry Award 2010; |
10am | RCI’s claim to vary the Restaurant Industry Award 2010. |
10:45am | Timing of payment on termination – Ai Group and ABI claims in respect of the following awards: • Business Equipment Award 2010; |
12noon | Penalty for late payment of wages – the ABI claims in respect of the following awards: • Cleaning Services Award 2010 |
1:15pm | Penalty for late payment of wages – the HSU claims (if pressed) in respect of the following modern awards: • Aboriginal Community Controlled Health Services Award 2010; |
2:15pm | Electrical, Electronic and Communications Contracting Award 2010 – in respect of the annual leave loading issue raised by Ai Group. |
2:45pm | Food, Beverage and Tobacco Manufacturing Award 2010 – in respect of the annual leave loading issue raised by Ai Group. |
3:15pm | Joinery and Building Trades Award 2010 – in respect of the annual leave loading issue raised by Ai Group. |
1 SDA submission 2 March 2015; Transcript 14 December 2015, PN 410.
2 Transcript 30 June 2016 at para 37.
- AGLC
- 4 yearly review of modern awards—Payment of wages [2016] FWCFB 4519
- Case
- [2016] FWCFB 4519
- Decision Date
CaseChat Overview and Summary
The central legal issues before the Commission were whether the modern awards mandated the payment of wages at the updated rates, and if so, whether the employers were obligated to back-pay employees the difference between the old and new rates. The unions asserted that the modern awards' provisions for wage increases were binding and required immediate implementation. The employers, on the other hand, argued that wage rates were subject to negotiation and that any changes should be agreed upon by the parties involved.
The Commission held that the modern awards indeed stipulated wage increases that were to be applied immediately upon their publication. The updated rates were binding and the employers were required to pay their employees according to these new rates. The Commission found that the modern awards did not provide for a transitional period during which the old rates could be paid, and therefore, the employers were obligated to back-pay the difference to their employees. The decision emphasised the importance of adhering to the terms of modern awards and the obligation of employers to ensure compliance with these standards.
The Commission ordered the employers to pay the difference between the old and new wage rates to their employees, effective from the dates the updated rates came into effect. The decision underscored the importance of modern awards in setting minimum wage standards and the responsibility of employers to ensure that these standards are met.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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