PR577551 - Decision - 01 Mar 2016

[2016] FWC 1191
FAIR WORK COMMISSION

CORRECTION TO STATEMENT


Fair Work Act 2009

s.156 - 4 yearly review of modern awards

4 yearly review of modern awards—Group 3 and 4 awards
(AM2014/217 and others)

JUSTICE ROSS,PRESIDENT

MELBOURNE,1 MARCH 2016

4 yearly review of modern awards –award stage –Group 3 and 4 awards

The Statement issued by the Fair Work Commission on 24 February 2016 [[2016] FWC 1191] is corrected as follows:

    1. By deleting the words “mid-March and mid-April 2016”in paragraph [9] and inserting the words “April and May 2016”.

    2. By deleting paragraph [21] and inserting the following:

    “It is proposed that the Directions issued on 2 November 2015,regarding the technical and drafting issues in the Group 3 and 4 awards,be amended and that the matters be dealt with as follows:”

PRESIDENT

[2016] FWC 1191 [Note:This Statement includes the corrections issued in PR57751 on 1 March 2016.]

STATEMENT



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

4 yearly review of modern awards—Group 3 and 4 awards
(AM2014/217 and others)

JUSTICE ROSS,PRESIDENT

MELBOURNE,24 FEBRUARY 2016

4 yearly review of modern awards –award stage –Group 3 and 4 awards

[1] Section 156 of the Fair Work Act 2009 requires the Commission to review all modern awards every four years (the Review). In the Award stage of the Review the 122 modern awards have been divided into 4 groups. The purpose of this Statement is to provide an update on the programming for the review of the 73 awards in Groups 3 and 4. 1 The awards allocated to Groups 3 and 4 are listed at Attachment A to this Statement.

[2] A mention was held on 14 December 2015 to consider the substantive claims made in relation to the Group 3 and 4 awards in order to determine which of these claims should be referred to separately constituted Full Benches,rather than being dealt with by the Review Full Benches which will deal with the technical and drafting issues relating to the Group 3 and 4 awards. Many of the submissions in relation to the Group 3 and 4 awards were made in early 2015 and since that time a number of issues have been resolved by decisions made as part of the Review and/or referred to other Full Benches for consideration. These matters have been noted in the Updated summary of submissions.

[3] In relation to most of the substantive claims in relation to the Group 3 and 4 awards the parties agreed that it would be beneficial to hold conferences after the exposure drafts are published. The purpose of these conferences is to:

  • determine any areas where there are common views;


  • see what can be resolved between the parties;


  • clarify the precise nature of any matters in dispute;and


  • ascertain the most effective method for dealing with the issues in dispute,including whether the issues warrant going to a separately constituted Full Bench and,if so,the time required to hear any evidence in relation to the disputed matter(s).


[4] A number of issues in relation to casual and part-time employment will be referred to the Casual and Part-time Employment Full Bench in AM2014/196 and AM2014/197. The issue of the minimum engagement for casual swim instructors covered by the Fitness Industry Awards 2010 will be dealt with during the award stage.

Group 3

[5] Exposure drafts for the Group 3 awards were published in two stages –those in Group 3A and 3B were published on 18 December 2015 and the Group 3C and 3D exposure drafts were published on 15 January 2016. In most cases the parties agreed there was merit in holding conferences after the exposure drafts had been published and,subject to the exceptions set out below,that is the course that will be adopted.

Group 3A

[6] The parties to the Real Estate Industry Award 2010 have participated in a number of conferences before Commissioner Hampton. On 2 September 2015 the Commissioner provided a Report on outlining status of the issues. The outstanding issues,along with the issue of the minimum income threshold raised by the Australian Property Services Association –New South Wales Branch,will be referred to a separate Full Bench for determination. All remaining awards in Group 3A will proceed to conference.

Group 3C

[7] A number of issues were raised in relation to the Ports,Harbours and Enclosed Water Vessels Award 2010 and the Seagoing Award 2010. The claims in relation to award coverage and classifications will be referred to a separately constituted Full Bench for determination.

Group 3D

[8] Commissioner Hampton has held three conferences in relation to the Wine Industry Award 2010. A number of issues are yet to be resolved and a further conference will be held prior to any outstanding substantive issues being referred to a Full Bench for determination.

Group 4

[9] Apart from the awards listed below,the Group 4 awards have not yet been subject to any conferences or proceedings in relation to substantive claims. The exposure drafts for the Group 4 awards will not be published until April and May 2016. The parties generally agreed that it would be more efficient to hold conferences after the exposure drafts were available and that is the course which will be adopted.

Group 4A

[10] An issue relating to the Ceremonial leave provisions in two awards in Group 4A is currently being dealt with in relation to a number of awards in Group 2. Parties will be given an opportunity to make further submissions following any decision issued in respect of the Group 2 awards.

[11] At the request of the parties the substantive issues in the Social,Community,Home Care and Disability Services Industry Award 2010 and Supported Employment Services Industry Award 2010 will be the subject of a conference before Deputy President Booth. The timing of this conference will take into consideration the outcome of matter AM2013/30 which is dealing with the issues surrounding the Business Services Wage Assessment Tool.

Group 4B

[12] The proposal by the Australian Manufacturing Workers’Union to make a new award covering helicopter pilots 2 will be referred to a separate Full Bench to determine whether a new award should be made and the terms of such an award.

Group 4C

[13] There are a number of claims to vary the provisions of the Building and Construction General On-site Award 2010,the Plumbing and Fire Sprinklers Award 2010,the Joinery and Building Trade Award 2010 and the Mobile Crane Hiring Award 2010 (collectively the ‘Construction awards’). A conference will be convened by Senior Deputy President Watson in order to categorise the various issues raised in relation to the Construction awards seek to resolve the matters in dispute;and identify those matters that require referral to a separately constituted Full Bench.

Group 4D

[14] Birch,Carroll &Coyle Ltd and others have made submissions in relation to a number of issues affecting cinemas covered by the Broadcasting and Recorded Entertainment Award 2010. Following the scheduled meeting between the parties in February 2016 the employer representative is directed to forward a report to the Commission outlining the status of those issues. A separate Full Bench will be constituted to deal with the disputed issues. The other issues raised in relation to this award will be referred to Senior Deputy President Hamberger for conference.

Group 4E

[15] Aside from the Professional Employees Award 2010,which is the subject of a number of substantive claims,most of the issues in the Group 4E awards are relatively straightforward and will be dealt with by the main Group 4 Full Bench.

Group 4F

[16] The Shop,Distributive and Allied Employees Association (SDA) seeks to vary a number of awards in Group 4F in relation to the timing of the payment of wages. The awards which are the subject of these claims are:Fast Food Industry Award 2010 3;General Retail Industry Award 20104;Hair and Beauty Industry Award 20105;and Mannequin and Models Award 2010.6

Other matters

[17] There are two other matters which are the subject of similar claims in a number of awards. The first concerns the payment of wages on termination of employment. Variations in respect of this issue have been proposed in the Horticulture Award 2010 7;the Supported Employment Services Award 2010;the Food,Beverage and Tobacco Manufacturing Award 2010;the Manufacturing and Associated Industries and Occupations Award 2010;the Storage Services and Wholesale Award 2010;and the Business Equipment Award 2010.8

[18] The second matters concerns the annual leave loading provisions in certain awards. Ai Group filed an outline of proposed variations on 12 November 2015 in which it identified a number of awards that ‘appear to contain an anomaly in their annual leave clauses relating to the provisions dealing with payment of annual leave and annual leave loading’. 9 The awards said to be affected by this issued are:Contract Call Centres Award 2010;Electrical,Electronic and Communications Contracting Award 2010,Food,Beverage and Tobacco Manufacturing Award 2010;Joinery and Building Production Award 2010;and the Telecommunications Services Award 2010.

[19] These two matters will be referred to the same Full Bench constituted to deal with SDA claims referred to in paragraph 16 above.

Summary of submissions

[20] A Revised summary of proposed variations claims will be published on the Commission’s website today to include comments and changes proposed during the mention on 14 December 2015. Changes have been marked in red for easier identification. Parties are directed to email amod@fwc.gov.au:

    (i) to identify any errors or omissions including comments in the Notes comments regarding which issues are to be dealt with by other Full Benches;and

    (ii) inform the Commission if there are any issues in the summaries that they no longer wish to press.

Timeline

Technical and drafting issues

[21] It is proposed that the Directions issued on 2 November 2015,regarding the technical and drafting issues in the Group 3 and 4 awards,be amended and that the matters be dealt with as follows:

Proposed Timeline

Group 3 Awards

2015

 

18 December

Group 3A and B exposure drafts published

2016

 

15 January

Group 3C and D exposure drafts published

31 March

Submissions on drafting and technical issues in Group 3 exposure drafts

28 April

Submissions in reply on drafting and technical issues in Group 3 exposure drafts

20 May

Summaries of submissions to be published on website

6-7 June

Hearings re drafting and technical issues in Group 3 awards

Group 4 Awards

2016

 

April

Group 4A,B and C exposure drafts to be published.

May

Group 4D,E and F exposure drafts to be published.

23 June

Submissions on drafting and technical issues in 4A,B and C exposure drafts

14 July

Submissions in reply on drafting and technical issues in 4A,B and C exposure drafts

21 July

Submissions on drafting and technical issues in 4D,E and F exposure drafts

August

Hearings re drafting and technical issues in Group 4A,B and C awards

18 August

Submissions in reply on drafting and technical issues in 4D,E and F exposure drafts

October

Hearings re drafting and technical issues in Group 4D,E and F awards

[22] Dates for conferences and any subsequent Full Bench proceedings will be issued in due course.

[23] Interested parties are invited to comment on the proposed timeline by no later than 4.00pm on Thursday 3 March 2016. Any comments are to be forwarded to amod@fwc.gov.au.

PRESIDENT

Printed by authority of the Commonwealth Government Printer

<Price code C,PR577345>

ATTACHMENT A

Group 3 awards divided by sub-group

    Award code

    Award title

    Matter No.

    Sub-group 3A

 

    MA000019

    Banking,Finance and Insurance Award 2010

    AM2014/217

    MA000021

    Business Equipment Award 2010

    AM2014/218

    MA000002

    Clerks Private Sector Award 2010

    AM2014/219

    MA000083

    Commercial Sales Award 2010

    AM2014/221

    MA000023

    Contract Call Centres Award 2010

    AM2014/222

    MA000094

    Fitness Industry Award 2010

    AM2014/227

    MA000099

    Labour Market Assistance Industry Award 2010

    AM2014/232

    MA000116

    Legal Services Award 2010

    AM2014/233

    MA000030

    Market and Social Research Award 2010

    AM2014/236

    MA000104

    Miscellaneous Award 2010

    AM2014/237

    MA000106

    Real Estate Industry 2010

    AM2014/242

    MA000082

    Sporting Organisations Award 2010

    AM2014/245

    MA000041

    Telecommunications Services Award 2010

    AM2014/248

    Sub-group 3B

 

    MA000075

    Educational Services (Post-Secondary Education) Award 2010

    AM2014/224

    MA000076

    Educational Services (Schools) General Staff Award 2010

    AM2014/225

    MA000006

    Higher Education –Academic Staff Award 2010

    AM2014/229

    MA000007

    Higher Education –General Staff Award 2010

    AM2014/230

    MA000112

    Local Government Industry Award 2010

    AM2014/234

    MA000121

    State Government Agencies Administration Award 2010

    AM2014/246

    Sub-group 3C

 

    MA000045

    Coal Export Terminals Award 2010

    AM2014/220

    MA000085

    Dredging Industry Award 2010

    AM2014/223

    MA000088

    Electrical Power Industry Award 2010

    AM2014/226

    MA000050

    Marine Towage Award 2010

    AM2014/235

    MA000051

    Port Authorities Award 2010

    AM2014/240

    MA000052

    Ports,Harbours and Enclosed Water Vessels Award 2010

    AM2014/241

    MA000122

    Seagoing Industry Award 2010

    AM2014/243

    Sub-group 3D

 

    MA000101

    Gardening and Landscaping Services Award 2010

    AM2014/228

    MA000028

    Horticulture Award 2010

    AM2014/231

    MA000033

    Nursery Award 2010

    AM2014/238

    MA000035

    Pastoral Award 2010

    AM2014/239

    MA000040

    Silviculture Award 2010

    AM2014/244

    MA000087

    Sugar Industry Award 2010

    AM2014/247

    MA000090

    Wine Industry Award 2010

    AM2014/249

Group 4 awards divided by sub-group1

    Award code

    Award title

    Matter No.

    Sub-group 4A

 

    MA000115

    Aboriginal Community Controlled Health Services Award 2010

    AM2014/250

    MA000018

    Aged Care Award 2010

    AM2014/251

    MA000120

    Children’s Services Award 2010

    AM2014/263

    MA000077

    Educational Services (Teachers) Award 2010

    AM2014/266

    MA000025

    Electrical,Electronic and Communications Contracting Award 2010

    AM2014/265

    MA000100

    Social,Community,Home Care and Disability Services Industry Award 2010

    AM2014/285

    MA000103

    Supported Employment Services Award 2010

    AM2014/286

    Sub-group 4B

 

    MA000046

    Air Pilots Award 2010

    AM2014/252

    MA000047

    Aircraft Cabin Crew Award 2010

    AM2014/253

    MA000048

    Airline Operations—Ground Staff Award 2010

    AM2014/254

    MA000049

    Airport Employees Award 2010

    AM2014/255

    Sub-group 4C2

 

    MA000079

    Architects Award 2010

    AM2014/257

    MA000020

    Building and Construction General On-site Award 2010

    AM2014/260

    MA000064

    Hydrocarbons Field Geologists Award 2010

    AM2014/273

    MA000029

    Joinery and Building Trades Award 2010

    AM2014/274

    MA000032

    Mobile Crane Hiring Award 2010

    AM2014/278

    MA000036

    Plumbing and Fire Sprinklers Award 2010

    AM2014/280

    MA000066

    Surveying Award 2010

    AM2014/287

    Sub-group 4D

 

    MA000080

    Amusement,Events and Recreation Award 2010

    AM2014/256

    MA000078

    Book Industry Award 2010

    AM2014/258

    MA000091

    Broadcasting and Recorded Entertainment Award 2010

    AM2014/259

    MA000067

    Journalists Published Media Award 2010

    AM2014/275

    MA000081

    Live Performance Award 2010

    AM2014/276

    MA000013

    Racing Clubs Events Award 2010

    AM2014/282

    MA000102

    Travelling Shows Award 2010

    AM2014/288

    Sub-group 4E

 

    MA000095

    Car Parking Award 2010

    AM2014/261

    MA000070

    Cemetery Industry Award 2010

    AM2014/262

    MA000073

    Food,Beverage and Tobacco Manufacturing Award 2010

    AM2014/268

    MA000105

    Funeral Industry Award 2010

    AM2014/269

    MA000097

    Pest Control Industry Award 2010

    AM2014/279

    MA000065

    Professional Employees Award 2010

    AM2014/281

    MA000113

    Water Industry Award 2010

    AM2014/289

    Sub-group 4F

 

    MA000096

    Dry Cleaning and Laundry Industry Award 2010

    AM2014/264

    MA000003

    Fast Food Industry Award 2010

    AM2014/267

    MA000004

    General Retail Industry Award 2010

    AM2014/270

    MA000005

    Hair and Beauty Industry Award 2010

    AM2014/271

    MA000009

    Hospitality Industry (General) Award 2010

    AM2014/272

    MA000117

    Mannequins and Models Award 2010

    AM2014/277

    MA000058

    Registered and Licensed Clubs Award 2010

    AM2014/283

    MA000119

    Restaurant Industry Award 2010

    AM2014/284

 1  See also [2015] FWC 7253;[2015] FWC 618; [2014] FWC 8985; [2014] FWC 8575.

 2  

Printed by authority of the Commonwealth Government Printer

<Price code A, PR577551>

Correspondence –AMWU –10 December 2014

 3  See Items 10 and 11 in the Summary of Proposed Variations.

 4  See Item 10 in the Summary of Proposed Variations.

 5  See Item 8 in the Summary of Proposed Variations.

 6  See Transcript of 14 December 2015,at PN410.

 7  See Item 7 of the Summary of Proposed Variations.

 8  See Transcript of 14 December 2015,at PN 127.

 9  Ai Group,‘Group 3 and 4 Modern Awards:Outline of Proposed Variations’,12 November 2015,at para 5.

About this document
(1)
Code:
PR577551
Title:
PR577551 - Decision - 01 Mar 2016
Effective:
1 Mar 2016
Updated:
21 Mar 2017
(0)
PR577551 - Decision - 01 Mar 2016
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