4 yearly review of modern awards – Plain language re-drafting [2018] FWC 1501

1 Fair Work Act 2009 s.156 - 4 yearly review of modern awards 4 yearly review of modern awards – Plain language re-drafting (AM2016/15) JUSTICE ROSS, PRESIDENT MELBOURNE, 15 MARCH 2018 Substitution of public holidays by majority agreement – alleged NES inconsistencies –referral to Plain Language Full Bench [1] In the course of the review of the Group 3 Awards the National Tertiary Education Union (the NTEU) submitted that clauses in various higher education awards were inconsistent with the NES.1 The clauses in question provide for the substitution of public holidays. Clause 20.2 of the Post-Secondary Award exposure draft is such a term, it states: ‘20.2 Substitution of public holidays by agreement By agreement between the employer and the majority of employees in an enterprise another day may be substituted for a public holiday.’ [Emphasis added] [2] Clause 29.2 of the current Educational Services (Post-Secondary Education) Award 2010 is in identical terms. [3] The NTEU submit that the words ‘the majority of employees in an enterprise’ should be replaced with the words ‘an employee’ to ensure that the term is consistent with s.115(3) of the Fair Work Act 2009 (Cth). Section 115(3) states: ‘s.115 Meaning of public holiday . . . (3) A modern award or enterprise agreement may include terms providing for an employer and employee to agree on the substitution of a day or part-day for a day or part-day that would otherwise be a public holiday because of subsection (1) or (2)’ [Emphasis added] [4] The Australian Higher Education Industrial Association and Business SA agreed with the NTEU. 1 NTEU submission, 8 June 2016 [2018] FWC 1501 STATEMENT -- 1 of 5 -- [2018] FWC 1501 2 [5] ABI took a different view and submitted that the relevant clauses were not inconsistent with the NES. [6] The issue raised by the NTEU has implications for a number of other modern awards which are not Group 3 Awards. On that basis the Group 3 Full Bench concluded: ‘As the determination of the issue in the context of this award may have implications for other awards we do not propose to deal with the issue in this decision. This issue will be the subject of a Statement by the President shortly.’2 [7] As noted above, s.115(3) of the Act states that a modern award may include terms providing for ‘an employer and an employee’ to agree on the substitution of a day or part-day for a day or part-day that would otherwise be a public holiday. [8] The issue in question is whether an award term which permits public holidays substitution by agreement between an employer and a majority of employees excludes the NES or any provision of the NES, within the meaning of s.55(1). [9] Of the 122 modern awards, 78 contain clauses which permit the substitution of public holiday by agreement with the majority of employees. These 78 modern awards are listed at Attachment A. A further 5 modern awards permit the substitution of public holidays by an employer, these are listed at Attachment B. In addition, the Sporting Organisations Award 2010 does not specify whether agreement is with an employee or a majority of employees. Next Steps [10] Given the general nature of the issue raised, I am satisfied that a broader review of all awards containing a term which provides for the substitution of public holidays by either majority agreement, or unilaterally by an employer, is required. Accordingly, substitution clauses in the awards listed in Attachments A and B, together with the Sporting Organisations Award 2010 are referred to the Plain Language Full Bench for review. [11] The Plain Language Full Bench will issue directions in due course. PRESIDENT Printed by authority of the Commonwealth Government Printer <PR601135> 2 [2018] FWCFB 1405 at [37]. -- 2 of 5 -- [2018] FWC 1501 3 Attachment A — Awards that allow substitution of public holidays by majority agreement Aboriginal Community Controlled Health Services Award 2010 Airline Operations—Ground Staff Award 2010 Airport Employees Award 2010 Alpine Resorts Award 2010 Aluminium Industry Award 2010 Ambulance and Patient Transport Industry Award 2010 Aquaculture Industry Award 2010 Architects Award 2010 Asphalt Industry Award 2010 Banking, Finance and Insurance Award 2010 Black Coal Mining Industry Award 2010 Broadcasting and Recorded Entertainment Award 2010 Building and Construction General On-site Award 2010 Business Equipment Award 2010 Car Parking Award 2010 Cement and Lime Award 2010 Children’s Services Award 2010 Cleaning Services Award 2010 Clerks—Private Sector Award 2010 Commercial Sales Award 2010 Concrete Products Award 2010 Contract Call Centre Award 2010 Educational Services (Post-Secondary Education) Award 2010 Educational Services (Schools) General Staff Award 2010 Electrical Power Industry Award 2010 Electrical, Electronic and Communications Contracting Award 2010 Fast Food Industry Award 2010 Food, Beverage and Tobacco Manufacturing Award 2010 Gardening and Landscaping Services Award 2010 General Retail Industry Award 2010 Graphic Arts, Printing and Publishing Award 2010 Hair and Beauty Industry Award 2010 Health Professionals and Support Services Award 2010 Horse and Greyhound Training Award 2010 Horticulture Award 2010 Hospitality Industry (General) Award 2010 Hydrocarbons Industry (Upstream) Award 2010 Joinery and Building Trades Award 2010 Journalists Published Media Award 2010 Labour Market Assistance Industry Award 2010 Live Performance Award 2010 Mannequins and Models Award 2010 Manufacturing and Associated Industries and Occupations Award 2010 Meat Industry Award 2010 Mining Industry Award 2010 -- 3 of 5 -- [2018] FWC 1501 4 Miscellaneous Award 2010 Mobile Crane Hiring Award 2010 Nursery Award 2010 Nurses Award 2010 Oil Refining and Manufacturing Award 2010 Pastoral Award 2010 Pest Control Industry Award 2010 Pharmaceutical Industry Award 2010 Pharmacy Industry Award 2010 Plumbing and Fire Sprinklers Award 2010 Poultry Processing Award 2010 Premixed Concrete Award 2010 Professional Employees Award 2010 Quarrying Award 2010 Racing Clubs Events Award 2010 Racing Industry Ground Maintenance Award 2010 Registered and Licensed Clubs Award 2010 Restaurant Industry Award 2010 Road Transport (Long Distance Operations) Award 2010 Road Transport and Distribution Award 2010 Salt Industry Award 2010 Seafood Processing Award 2010 Security Services Industry Award 2010 Storage Services and Wholesale Award 2010 Surveying Award 2010 Telecommunications Services Award 2010 Textile, Clothing, Footwear and Associated Industries Award 2010 Timber Industry Award 2010 Transport (Cash in Transit) Award 2010 Vehicle Manufacturing, Repair, Services and Retail Award 2010 Waste Management Award 2010 Wine Industry Award 2010 Wool Storage, Sampling and Testing Award 2010 -- 4 of 5 -- [2018] FWC 1501 5 Attachment B —Awards that allow substitution of public holidays by employer Educational Services (Teachers) Award 2010 Health Professionals and Support Services Award 2010 Higher Education Industry—Academic Staff—Award 2010 Higher Education Industry—General Staff—Award 2010 Horse and Greyhound Training Award 2010 -- 5 of 5 --