PR596905 - Decision - 19 Oct 2017

[2017] FWCFB 5394
FAIR WORK COMMISSION

DECISION


Fair Work Act 2009

s.156 - 4 yearly review of modern awards

4 yearly review of modern awards—Annual leave—Black Coal Mining Industry Award 2010
(AM2014/47)

JUSTICE ROSS,PRESIDENT

DEPUTY PRESIDENT KOVACIC
COMMISSIONER HAMPTON

SYDNEY,19 OCTOBER 2017

4 yearly review of modern awards - common issue - annual leave –timing of taking leave - shutdown provision –Black Coal Mining Industry Award 2010.

1. Introduction

[1] This decision deals with the form of a ‘shutdown’term in the Black Coal Mining Industry Award 2010 (the Black Coal Award). It arises from a review of annual leave provisions in modern awards more generally and should be read in conjunction with the previous Decision issued on 27 March 2017 1 (March decision) and a Statement issued on 15 May 2017.2

[2] We propose to briefly deal with the background to the matter,the relevant history is dealt with more extensively in the March decision.

[3] Clause 25 of the Black Coal Award deals with annual leave. Prior to the amendments arising from the general review of annual leave terms the relevant provisions were subclauses 25.3,25.4 and 25.10. Subclause 25.3 dealt with the accrual of annual leave and provided as follows:

25.3 Accrual of annual leave

Employees,other than casual employees,accrue annual leave at the following rate:

For employees who would be entitled to annual leave of:

Hours of annual leave for each completed week of employment:

175 hours (5 weeks)

    3.3654

210 hours (6 weeks)

    4.0385’

  

[4] Clause 25.4 deals with the taking of annual leave:

25.4 When annual leave can be taken

(a) An employee with an annual leave entitlement,who wishes to take all or part of that entitlement will,unless otherwise agreed between the employee and the employer,give the employer at least 28 days’notice in writing of the amount of leave to be taken. The employer will grant that leave unless,in the employer’s opinion,the operations of the mine will be affected.

(b) Unless otherwise agreed,annual leave will be taken within 12 months of the date the employee received the annual leave entitlement.

(c) The employer may direct an employee to take all or part of an annual leave entitlement provided at least 28 days’notice in writing is given to the employee.’(emphasis added)

[5] Subclause 25.10 deals with the taking of annual leave during the shutdown of all or part of an employer’s operations as follows:

25.10 Shutdown

(a) An employer that shuts down all or any part of its operation must give employees at least 28 days’notice of the shutdown or such shorter period as agreed between the employer and the employees affected.

(b) Employees directly affected by the shutdown who have an entitlement to annual leave may take all or part of that entitlement during the shutdown period.

(c) Employees who are directly affected by the shutdown and who are not yet entitled to sufficient annual leave may,during the shutdown period,take any annual leave accrued in accordance with clause 25.8.’

[6] Arising from its review of annual leave provisions in modern awards the Commission determined,relevantly,model clauses in respect of ‘excessive leave’and ‘granting leave in advance’. In the 4 yearly review of modern awards –Annual Leave decision of 22 September 2016 (September 2016 decision),we considered the terms of the Black Coal Award,in the context of the model provisions and our earlier findings which led to the adoption of those model terms. We found,in effect,that the broad right for the employer to direct the taking of annual leave under clause 25.4(c),without other considerations and requirements,was not consistent with s.93(3) of the Fair Work Act 2009 (Cth) (the Act). Section 93(3) provides:

‘A modern award or enterprise agreement may include terms requiring an employee,or allowing an employee,to take paid annual leave in particular circumstances,but only if the requirement is reasonable.’

[7] As a result,we decided to remove clause 25.4 and insert the model excess leave provision.

[8] The draft determination issued by the Commission to give effect to the September 2016 decision included the new model excessive leave provision and noted the additional provision for shutdown in clause 25.10 (which was to be re-numbered),but left the existing shutdown provision in its original form.

[9] As we observed in the March 2017 decision, 3 a general provision that permits the employers under the Black Coal Award to direct that annual leave be taken on notice,without other considerations and requirements,is not consistent with the scheme of the Act and with s.93(3) in particular. However,a term permitting different arrangements for annual leave during a period of shutdown or close-down may be consistent with statutory framework,depending on the terms of such a provision. We went on to state:

‘In our view,the terms of clause 25.10,when considered in the context of the Black Coal Award as varied,means that in the event of a shutdown,where the employer had given notice,employees could take all or part of their annual leave entitlement,or if there is not a sufficient entitlement to cover the shutdown period they could (by agreement with the employer) take leave in advance under clause 25.9. However there does not appear to be any capacity for the employer to direct that annual leave be taken during the shutdown and no capacity for employees to be placed on leave without pay –save that notice to take annual leave could be given by the employer in circumstances where the requirements of the model excessive leave provision have been met.’ 4

[10] The Coal Mining Industry Employer Group (CMIEG) proposed a revised shutdown clause which included a power to direct an employee to take accrued paid annual leave during a shutdown. The revised clause was considered in the March 2017 decision. In that decision we concluded as follows:

‘There is significant potential for uncertainty and inconsistency arising from the present provisions in the context of the model annual leave terms. While there is capacity for some flexibility through the pursuit of enterprise agreements, 5 the shutdown clause should be clear and serve its evident purpose. For this reason,and having regard to how the shutdown clause operated prior to the impending insertion of the model excessive leave provision,we consider that there is some merit in the proposal now advanced by the CMIEG.

However we also accept that there is merit in the concerns by the Unions and that the provision as proposed by the CMIEG is capable of being applied in a manner which is inconsistent with s 93(3) of the FW Act. The imposition of some limitations upon the scope of the provision is appropriate.’ 6

[11] We went on to express some provisional views as to the form of a revised shutdown provision to be inserted into the Black Coal Award.

[12] The Construction,Forestry,Mining and Energy Union,Mining and Energy Division (CFMEU),the Automotive,Food,Metals,Engineering,Printing and Kindred Industries Union known as the Australian Manufacturing Workers’Union (AMWU) and The Association of Professional Engineers,Scientists and Managers,Australia (APESMA) (collectively,the Unions) opposed the amendment to the shutdown provision provisionally determined in the March 2017 decision. The CMIEG broadly supported the Full Bench’s provisional view.

[13] The parties subsequently agreed to some editorial changes to the provisional term (set out at Annexure A to CMIEG submission of 18 May 2017). At a mention held on 4 August 2017 the CFMEU and the AMWU did not oppose the marked up changes 7 but the unions did object to those aspects of the provisional term which enabled an employer to direct an employee to take unpaid leave or leave in advance in the event of a shutdown.

[14] In the Directions issued on 4 August 2017, 8 the Commission provided a revised draft clause for the parties to consider and make further submissions. The revised draft clause was in the following terms:

25.10 Shutdown

(a) Clause 25.10 applies if an employer intends to shutdown all or part of its operation for a particular period (temporary shutdown period);and wishes to require affected employees to take leave during that period.

(b) The employer must give the affected employees 28 days’written notice of a temporary shutdown period,or such shorter period as agreed between the employer and the employees affected.

(c) The employer must give immediate written notice of a temporary shutdown period to any employee who is engaged after the notice is given under paragraph (b) and who will be affected by that period.

(d) The following applies to any affected employee during a temporary shutdown period:

(i) if the employee has accrued an entitlement to paid annual leave the employee may elect to take some or all of the leave during the temporary shutdown period and may also elect to take leave without pay to cover any part of the temporary shutdown period;

(ii) if the employee does not elect to take paid annual leave or leave without pay to cover the whole of the temporary shutdown period,then the employer may direct the employee to take a period of accrued paid annual leave.

(e) A direction by the employer under clause 25.10(d)(ii):

(i) must be in writing;and

(ii) must be reasonable.

(f) The employee must take paid annual leave in accordance with a direction under clause 25.10(d)(ii).

(g) In determining the amount of paid annual leave to which an employee has accrued an entitlement,any period of paid annual leave taken in advance by the employee,in accordance with an agreement under clause 25.9,to which an entitlement has not been accrued is to be taken into account.

(h) When an employer shuts down all or part of its operation under this provision,clauses 25.4 to 25.6 do not apply to employees directly affected by the shutdown and this clause will apply.

[15] Interested parties filed further submissions in respect of the revised draft clause. We have had regard to those submissions and to all of the previous submissions filed in respect of this issue. A hearing took place on 10 October 2017.

2. Submissions

[16] The CMIEG supports the insertion of a revised shutdown clause (set out at Annexure A of its submissions of 11 September 2017),which is based on the revised draft clause attached to our directions of 4 August 2017. The CMIEG proposed clause amends the revised draft clause in two respects. First,it adds the following words at the end of clause 25.10(d)(i):

‘or annual leave in advance in accordance with clause 25.9 (or a combination of accrued annual leave,annual leave in advance or leave without pay).’

[17] There is no opposition to the first amendment and we propose to adopt it.

[18] The second amendment is the insertion of a new Clause 25.10 (d)(iii) as follows:

‘(iii) if the employee has not accrued an entitlement to any paid annual leave sufficient to cover any part of the temporary shutdown period,then the employee is taken to be on leave without pay for the relevant period.’

[19] In support of its proposed shutdown clause the CMIEG relies on the results of a survey conducted of company groups that participate in the CMIEG. Details of the survey and the results are set out in the statement of David Gunzburg. 9 The survey asks a range of questions in respect of annual leave shutdown. Some nine company groups responded to the survey. The survey respondents are major operators in the black coal mining industry in NSW and Queensland,which collectively operate 55 mines employing approximately 28,000 workers.

[20] The CMIEG submits that the results of the survey demonstrate the following:

‘(a) Since 2010,seven of the nine company groups have had occasion to utilise annual leave shutdowns.

(b) None of the company groups have adopted any change in approach to annual leave shutdowns due to the introduction of the BCMI Award.

(c) Annual leave shutdowns have been utilised for a variety of reasons by the company groups,including for the purpose of managing annual leave balances/provisioning;as a result of market or economic considerations;due to stockpiles reaching or nearing full capacity; as an alternative to standing-down employees; for the purpose of undertaking maintenance shutdowns (eg. for major repairs and overhauls) and also because of successive public holidays or peak requests for annual leave.

(d) The company groups have implemented shutdowns in a variety of ways,such as across the whole of an operation (five respondents) and part of the operation (four respondents),correspondingly affecting the whole of the workforce at the operation (five respondents) or only part (four respondents).

(e) For employees who could not be usefully employed and who were not on a form of leave,employees were on unpaid leave (three respondents) they were eventually found work to perform in non-standard duties (one respondent),and for two of the respondents the issue had never arisen as a form of paid leave was able to be taken (including utilising annual leave in advance or employees performing swapped shifts and work days in advance (ie. accruing TOIL to cover the period)).

(f) There has been no reported disputation over annual leave shutdown from any of the respondents.’ 10

[21] We deal later with the relevance of the survey evidence to the matters before us.

[22] The CFMEU,AMWU and APESMA oppose Clause 25.10 (d)(ii) of the revised draft clause,that is the right of an employer to direct an employee to take a period of accrued paid leave if the employee does not elect to take paid annual leave or leave without pay to cover the whole of the temporary shutdown period. The unions also oppose the second amendment proposed by the CMIEG,which requires employees to take unpaid leave in certain circumstances.

[23] In particular the unions contend that the power to direct an employee to take a period of accrued paid annual leave during a shutdown:

  • is inconsistent with the Full Bench’s decision dealing with the excessive leave model term 11 and seeks to give employers a broader entitlement during a shutdown which is a power that has just been removed by the Commission;and

  • inconsistent with the ‘reasonableness’requirement in s.93(3) of the Act.

3. Consideration

Direction to take paid annual leave

[24] It is convenient to deal first with the unions’opposition to clause 25.10(d)(ii) of the revised draft clause. This term allows the employer to direct an employee to take a period of accrued paid annual leave if the employee does not elect to take paid annual leave or leave without pay to cover the whole of the temporary shutdown period.

[25] Contrary to the unions’submission this provision is not inconsistent with the Full Bench’s decision dealing with the excessive leave model term. In the September 2016 decision we found that the broad right for the employer to direct the taking of annual leave under clause 25.4(c) of the Black Coal Award was not consistent with s.93(3) of the Act:

‘Clause 25.4(c) is a term allowing for an employee to be required to take annual leave. The power to include such a term in a modern award is s.93(3),which provides that the requirement to take paid annual leave must be ‘reasonable’. An award term whereby an employee can be directed to take all of part of their accrued paid annual leave on the provision of 28 days’notice in writing without other considerations and requirements is not ‘reasonable’within the meaning of s.93(3).’ 12 (emphasis added)

[26] The September 2016 decision was dealing with a general right to direct an employee to take a period of accrued paid annual leave. The present circumstance is quite different. We are considering such a right in the context of a temporary shutdown. This distinction was made clear in the March 2017 decision:

‘a general provision that permits the employers under the Black Coal Award to direct that annual leave be taken on notice,without other considerations and requirements,is not consistent with the scheme of the FW Act and with s.93(3) in particular. However,a term permitting different arrangements for annual leave during a period of shutdown or close-down may be consistent with statutory framework,depending on the terms of such a provision.’ 13

[27] Subject to the requirement to take leave being reasonable,a modern award term which provides that an employee can be required to take a period of accrued paid annual leave in the context of a temporary shutdown is a term of the type contemplated by s.93(3) of the Act. We are fortified in this conclusion by the terms of the Explanatory Memorandum to the Fair Work Bill 2008 which states:

‘Subclause 93(3) permits terms to be included in an award or agreement that require an employee,or that enable an employer to require or direct an employee,to take paid annual leave in particular circumstances,but only if the requirement is reasonable. This may include the employer requiring an employee to take a period of annual leave to reduce the employee’s excessive level of accrual or if the employer decides to shut down the workplace over the Christmas/New Year period. 14 (emphasis added)

[28] Nor do we accept the unions’contention that the Black Coal Award did not permit an employer to direct an employee to take paid annual leave during a shutdown. As we stated in the March 2017 decision:

‘…We accept that the present shutdown provisions in the Black Coal Award do not directly provide a right for an employer to direct that annual leave be taken. However,prior to the insertion of the model clauses the provision had operated in conjunction with clause 25.4,which gave such a right simply by the giving of notice. The context in which the shutdown clause operated prior to the impending insertion of the model excessive leave provision has now changed significantly.’ 15

[29] Finally,contrary to the argument advanced by the unions we are not persuaded that the revised draft clause is inconsistent with the ‘reasonableness’requirement in s.93(3). In that regard we note the following features of the revised draft clause:

(i) The term only applies to temporary shutdowns.

(ii) The employer must give affected employees 28 days’written notice of a temporary shutdown period.

(iii) The power to direct an employee to take a period of accrued paid annual leave only arises if the employee does not elect to take paid annual leave or leave without pay to cover the whole of the temporary shutdown period.

(iv) A direction to take a period of accrued paid leave must be in writing and must be reasonable.

[30] We are satisfied that the revised draft clause (and in particular clause 25.10 (d)(ii)) accords with the requirement of s.93(3) of the Act.

Unpaid leave

[31] As we have noted,there is a dispute as to whether an employer should have the power to (in effect) direct an employee to take a period of unpaid leave in circumstances where the employee has not accrued sufficient paid annual leave to cover any part of a temporary shutdown period.

[32] We accept that CMIEG’s proposed clause 25.10(d)(iii) –in respect of unpaid leave –is capable of falling within the scope of s.139(1)(b),as being a matter ‘about’‘leave’. The central question is whether such a term is necessary to achieve the modern awards objective.

[33] The CMIEG contends that an award term providing that employees with insufficient paid leave (or who are unwilling to take paid annual leave in advance) are to be taken to be on ‘leave without pay’,is necessary for the shutdown clause to operate practically:

‘First,it may be accepted that the policy reasons underpinning annual leave shutdown provisions are two-fold. For employees,a shutdown permits the taking of a break from work which is indisputably beneficial to employees and their families by providing them rest and recreation,and will have other benefits for work health and safety and morale. That annual leave shutdowns are traditionally arranged for the Christmas/New Year and Easter period (although not exclusively) also has a benefit for employees to participate in these holiday seasons with family and friends. For employers,there is an obvious benefit in dealing with annual leave provisioning,however there may be a range of other financial or operational benefits,as has been referred to previously by the CMIEG.

The benefits for both employers and employees would be rendered nugatory if the clause does not provide for,first,an ability to direct or require the taking of paid annual leave,and,second,employees who have insufficient paid annual leave.

If the shutdown clause does not include these features,an ability of the employer to shutdown its operations is unlikely to be able to be practically achieved. Put simply,in the absence of such provisions in a shutdown clause,it might reasonably be expected that employees simply would not choose to take paid annual leave (or elect to take unpaid leave) where they could expect to continue receive pay regardless if the employer shutdown its operations and they did not voluntarily elect to take the options. The employer would,accordingly be required to either provide some form of work,which may well be of little value to either party where operations are ceased,or permit the employee to not attend at the workplace and continue to receive pay. If a clause was to operate in that way,it would reasonably be expected that the purpose of the shutdown would be defeated,and would simply not be utilised by employers.

It may be added that,to the extent the union parties contend that this is the way in which the current clause 25.10 is,both,properly construed and operates in practice (which is denied,and does not accord with the evidence submitted by the CMIEG),that construction is absurd,and such an operation is without foundation or evidence.

Second,it is apparent that the Commission has,at least historically,proceeded on the basis that inclusion of terms in modern awards dealing with "leave without pay"/"unpaid leave"are permissible. By way of example,the Commission has made a significant number of modern awards containing annual leave shutdown clauses that provide for unpaid leave. It may be accepted that,prima facie,those modern awards met the modern awards objective at the time they were made.

Further,a majority of a Full Bench have come to a provisional view that unpaid family and domestic violence leave ought to be provided for in modern awards. This would appear to proceed on the same basis of the implicit acceptance that paid domestic violence leave was permissible to be included in modern awards,because they were matters under section 139(1)(h) concerning “leave”.’ 16 (footnotes omitted)

[34] The last point –concerning unpaid family and domestic violence leave –is not relevant to the present proceeding.

[35] The second point,that a significant number of modern awards contain shutdown clauses that provide for unpaid leave,is also of limited relevance. Section 156(5) provides that in the 4 yearly review each modern award is to be reviewed in its own right. Further,as acknowledged by the CMIEG’s representative,the provisions relied upon have not yet been reviewed.

[36] The contention that a shutdown clause without the power to direct an employee with insufficient accrued paid leave to take unpaid leave will be ineffective,is unsupported by the evidence. The CMIEG contend that absent such a power the shutdown provision would be rendered nugatory. Yet the current Black Coal Award –and the award as it was prior to the general review of annual leave terms –contains no power to direct an employee to take unpaid leave in such circumstances. Contrary to CMIEG’s submission there is no reasonable basis for implying such a power into clause 25.10.

[37] In practice the absence of such an award provision has not given rise to the problems suggested by CMIEG. In this regard we note the uncontested assertion by the CFMEU’s advocate in the September 2016 proceedings,that in the context of a proposed temporary shutdown:

‘the parties get together,they sit down and they sort it out. That’s what has happened in the past. That is what happened when Glencore,I think last year,shut down for a week. Presumably,that is what will happen in the future.’ 17

[38] We also observe that it would be open to the parties to address these issues in enterprise bargaining and we note the following submission contained in the CMIEG’s written submission of 26 October 2015,at paragraph 37:

‘There is a high incidence of enterprise agreements in the black coal mining industry and,to the extent that there are concerns that the provisions of the BCMI Award are not appropriate or sufficient in dealing with the taking of leave,those concerns can be addressed by an enterprise agreement.’ 18

[39] Further it is common ground that shutdowns are an infrequent event in the black coal mining industry and that there has been little or no disputation in respect of the implementation of shutdowns.

[40] The CMIEG relies on the survey results in support of its proposed clause:

      ‘The results of the survey demonstrate that shutdowns remain a feature of the black coal mining industry,are taken for a variety of circumstances,and that where they are implemented employees take paid annual leave for the period of the shutdown or unpaid leave. The proposed shutdown clause supported by the CMIEG (in Annexure A) would reflect this practice in the industry.’ 19 (footnotes omitted)

[41] All of the survey respondents were covered by enterprise agreements. Such agreements commonly cover production and engineering employees (mine workers);but there are employees (support staff and employees in higher classifications) who are not covered by enterprise agreements and who would be covered by the Black Coal Award.

[42] Question six in the survey deals with ‘payment during shutdowns’:

‘6 During a shutdown if an employee cannot be usefully employed and they are not on some form of paid leave which of the following is your practice:

tick if yes

 
 

They must take unpaid leave

 

They perform no work but are paid their normal wage (either base wage or as per roster)

 

Has never arisen,employees have always been able to take paid leave of some type

Comments

 

[43] The results of the survey are set out at Attachment A. Only three of the six respondents who answered question 6 said that ‘they must take unpaid leave’;Glencore,Centennial and Anglo American. Three things may be said about these responses.

[44] Firstly,the results say nothing about the frequency of temporary shutdowns;the number of workers affected;or the number of workers required to take unpaid leave.

[45] Second,each of the survey respondents are likely to have enterprise agreements covering a substantial proportion of their workforce. Hence,for most of the respondents’employees the arrangements in relation to temporary shutdowns are dealt with in an enterprise agreement,not in the Black Coal Award. For example,the notation to the survey results in respect of Anglo American states:

‘Must take paid leave or leave in advance providing company gives appropriate notice (eg 4 weeks’in advance). One of our EA’s has a provision to consider leave without pay on a case by case basis (ie future A/L bookings).’

[46] Third,consistent with the uncontested evidence of the CFMEU witnesses –Messrs Williams,Pierce and Timbs –the Glencore shutdown was a unique event.

[47] Contrary to the submission advanced by CMIEG,we are not persuaded that a term empowering an employer to (in effect) direct an employee to take unpaid leave where the employee has not accrued sufficient paid annual leave to cover any part of a temporary shutdown can reasonably be said to reflect industry practice.

[48] As mentioned earlier,the central question is whether CMEIG’s proposed term (clause 25.10 (d)(iii),see [18] above) is necessary to achieve the modern awards objective.

[49] Section 138 of the Act emphasises the importance of the modern awards objective in the following terms:

‘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.’

[50] In CFMEU v Anglo American Metallurgical Coal Pty Ltd (‘Anglo American’) 20 the Federal Court considered the expression ‘necessary to achieve the modern awards objective’in s.138:

‘The words “only to the extent necessary”in s 138 emphasise the fact that it is the minimum safety net and minimum wages objective to which the modern awards are directed. Other terms and conditions beyond a minimum are to be the product of enterprise bargaining,and enterprise agreements under Pt 2-4.’ 21

[51] In Anglo American the Court also discussed the nature of the Commission’s task in conducting the 4 yearly review:

‘The terms of s 156(2)(a) require the Commission to review all modern awards every four years. That is the task upon which the Commission was engaged. The statutory task is,in this context,not limited to focusing upon any posited variation as necessary to achieve the modern awards objective,as it is under s 157(1)(a). Rather,it is a review of the modern award as a whole. The review is at large,to ensure that the modern awards objective is being met:that the award,together with the National Employment Standards,provides a fair and relevant minimum safety net of terms and conditions. This is to be achieved by s 138 –terms may and must be included only to the extent necessary to achieve such an objective.

Viewing the statutory task in this way reveals that it is not necessary for the Commission to conclude that the award,or a term of it as it currently stands,does not meet the modern award objective. Rather,it is necessary for the Commission to review the award and,by reference to the matters in s 134(1) and any other consideration consistent with the purpose of the objective,come to an evaluative judgment about the objective and what terms should be included only to the extent necessary to achieve the objective of a fair and relevant minimum safety net.’ 22

[52] The modern awards objective is 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 the particular considerations identified in sections 134(1)(a) to (h) (the s.134 considerations). The obligation to take into account the s.134 considerations means that each of these matters,insofar as they are relevant,must be treated as a matter of significance in the decision making process.  23 No particular primacy is attached to any of the s.134 considerations and not all of the matters identified will necessarily be relevant in the context of a particular proposal to vary a modern award.

[53] In the National Retail Association Case 24 the Court said the following about s 134(1) at 174-175 [109]-[110]:

[109] It is apparent from the terms of s 134(1) that the factors listed in (a) to (h) are broad considerations which the FWC must take into account in considering whether a modern award meets the objective set by s 134(1),that is to say,whether it provides a fair and relevant minimum safety net of terms and conditions. The listed factors do not,in themselves,however,pose any questions or set any standard against which a modern award could be evaluated. Many of them are broad social objectives. What,for example,was the finding called for in relation to the first factor (“relative living standards and the needs of the low paid”)? Furthermore,it was common ground that some of the factors were inapplicable to the SDA’s claim.

[110] The relevant finding the FWC is called upon to make is that the modern award either achieves or does not achieve the modern awards objective. The NRA’s contention that it was necessary for the FWC to have made a finding that the Retail Award failed to satisfy at least one of the s 134(1) factors must be rejected.

[54] The objective is very broadly expressed 25 and the matters which may be taken into account are not confined to the s.134 considerations. As the Federal Court observed in Shop,Distributive and Allied Employees Association v The Australian Industry Group (‘The Penalty Rates Review’)26:

‘What must be recognised,however,is that the duty of ensuring that modern awards,together with the National Employment Standards,provide a fair and relevant minimum safety net of terms and conditions itself involves an evaluative exercise. While the considerations in s 134(a)-(h) inform the evaluation of what might constitute a “fair and relevant minimum safety net of terms and conditions”,they do not necessarily exhaust the matters which the FWC might properly consider to be relevant to that standard,of a fair and relevant minimum safety net of terms and conditions,in the particular circumstances of a review. The range of such matters “must be determined by implication from the subject matter,scope and purpose of the”Fair Work Act (Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40;(1986) 162 CLR 24 at 39-40).’ 27

[55] In support of its contention that the proposed clause is necessary to achieve the modern awards objective the CMEIG relied on:

  • The terms of other modern awards in similar or related industries.

  • The shutdown clauses in other modern awards generally.

  • The shutdown provisions in enterprise agreements in the black coal mining industry.

  • The proposition that it is a common feature of legislative regimes dealing with annual leave,that there be an ability for employers to direct the taking of annual leave and,in the case of a shutdown,that employees with insufficient paid leave accruals take leave on a proportionate basis/rate or leave without pay.

  • The amendment to clause 25.10 is necessary to ‘ensure a simple easy to understand stable and sustainable modern award system’(s. 134(1)(g)).

[56] The propositions advanced by the CMIEG support the variation of the Black Coal Award to insert the revised draft clause (see [14]) with the addition of the agreed words at the end of the clause 25.10(d)(i) (see [16]),but they do not provide the requisite support for the CMIEG’s unpaid leave proposed term.

[57] As we have already mentioned,the fact that a significant number of modern awards contain shutdown clauses that provide for unpaid leave is of limited relevance. The provisions relied upon have not yet been reviewed and it is likely that they relate to circumstances applicable to those particular awards.

[58] Nor are the legislative provisions relied upon persuasive. The proposed amendment of clause 25.10 must be considered within the statutory framework of the Act.

[59] Further,contrary to the CMIEG’s submission,the terms of enterprise agreements in the Black Coal Industry does not support the variation sought. The CMIEG submits:

‘Third,shutdown provisions in enterprise agreements in the black coal mining industry (a sample of which is set out in Annexure D to these submissions) commonly include both an ability to direct or require employees to take leave,and placing employees onto leave without pay leave. These may be seen to be features of shutdown clauses to ensure that they operate in a practical way.’ 28

[60] The submission advanced suggests that the issue raised can be (and has been) satisfactorily dealt with in enterprise bargaining. In such circumstances it is not readily apparent why it is necessary to insert a term in this particular modern award dealing with the requirement to take unpaid leave during a temporary shutdown.

[61] As to the proposition that the amendment of clause 25.10 is necessary to ensure that the award is simple and easy to understand,we agree with the general sentiment expressed (and we intend to amend clause 25.10),but the proposition advanced does not lead to the conclusion that a power to direct the taking of unpaid leave is necessary to achieve the modern awards objective.

[62] For the reasons given we do not propose to adopt the CMIEG’s proposal (clause 25.10 (d)(iii),see [18] above) in respect of unpaid leave. Our decision in this regard should be seen in the context of the circumstances pertaining to the Black Coal Award. In particular we note that the current award does not deal with unpaid leave and that shutdowns are an infrequent event in the black coal mining industry.

Unpaid leave and service,public holidays

[63] We now turn to the amendments sought by the unions.

[64] The CFMEU,with the support of the AMWU and APESMA,propose that to the extent that the shutdown clause in the Black Coal Award includes reference to unpaid leave,two ancillary provisions should be included:

(i) the clause should expressly confirm that any period of unpaid leave is to count for the purposes of service;and

(ii) an employee is entitled to any public holiday that falls during such a period. 29

[65] In effect,the unions contend that employees in these circumstances should be treated as if they were at work for the purpose of public holiday entitlements and calculating service and that such provisions are required in order to achieve the modern awards objective.

[66] The CMIEG contend that the proposed provisions are not necessary given the provisions of the Act which deal with these matters and the existing terms of the Black Coal Award.

[67] We are not satisfied that it is appropriate to deal with the issue of service at this time. The issue raised may have implications in the review of all shutdown terms in modern awards. It is appropriate that it be considered in the context of a broader review of shutdown terms. We now turn to the second of the unions’proposals.

[68] The payment for absence on public holidays is dealt with as part of the NES,in s.116:

116 Payment for absence on public holiday

If,in accordance with this Division,an employee is absent from his or her employment on a day or part‑day that is a public holiday,the employer must pay the employee at the employee’s base rate of pay for the employee’s ordinary hours of work on the day or part‑day.

Note:If the employee does not have ordinary hours of work on the public holiday,the employee is not entitled to payment under this section. For example,the employee is not entitled to payment if the employee is a casual employee who is not rostered on for the public holiday,or is a part‑time employee whose part‑time hours do not include the day of the week on which the public holiday occurs.

[69] The Black Coal Award largely reflects this aspect of the NES. 30

[70] Section 89 of the Act also deals with public holidays during a period of paid annual leave:

      89 Employee not taken to be on paid annual leave at certain times

      Public holidays

      (1) If the period during which an employee takes paid annual leave includes a day or part-day that is a public holiday in the place where the employee is based for work purposes,the employee is taken not to be on paid annual leave on that public holiday.

      ……’

[71] The Black Coal Award deals with the coincidence of a public holiday with a ‘Rostered Day Off’(RDO) in clause 23.6(f):

      “(f) RDOs falling on a recognised public holiday

      An employee who is entitled to an RDO which falls on a public holiday is,at the discretion of the employer,to be either:

      (i) paid at the employee’s classification rate;or

      (ii) credited with one day for each such public holiday (payable at ordinary rates).”

[72] The Black Coal Award also defines an RDO in the following terms.

      “rostered day off or RDO each mean any day on which an employee,by virtue of the employee’s roster,is not rostered to attend for rostered hours of work and does not include non-working days”. 31

[73] The CMIEG submitted that an employee on leave in the context of a temporary shutdown would still be on a rostered day off and that the award provisions,and s.116,should be given their ordinary construction to deal with the issue. However,it also indicated that it had no ‘violent objection’to the inclusion of an express provision confirming the appropriate entitlement. 32

[74] As a general proposition,award provisions should not repeat or deal with issues properly left to the NES and other provisions of the Act. However,in the case of this particular award we consider that the issue should not be left to the somewhat uncertain application of clause 23.6(f). Rather,the apparent common view of the major groups participating in the review should be reflected in the shutdown provision. Further,the most appropriate means to deal with the issue is,in effect,to confirm that where a relevant public holiday falls during a period of absence,the day will be treated as a public holiday.

[75] Accordingly,we propose to include a term in the shutdown clause of this award to confirm that where an employee is absent from work,on paid or unpaid leave as a result of a shutdown,on a public holiday which would otherwise have been a working day for that employee,the day will be treated as a public holiday.

4. Conclusion

[76] We are satisfied that the variation of the Black Coal Award to delete existing clause 25.10 and to insert the revised draft clause (as amended to add the words proposed by the CMIEG to the end of clause 25.10 (d)(i),see [16] above,and to include a provision dealing with public holidays,see [75] above) is necessary to ensure that the award achieves the modern awards objective. As to the matters in s.134 (1)(a) –(h),insofar as they are relevant,we are satisfied that the variation will promote flexible modern work practices and the efficient and productive performance of work (s.134(1)(d)) and will ensure that the award is simple and easy to understand (s.134(1)(g)).

[77] We are also satisfied that such a variation is consistent with the objects of the Act.

[78] The Black Coal Award will be varied according to a determination which will be issued shortly. The variation will subsequently be replicated in the exposure draft.

[79] This decision concludes this matter in so far as it relates to the Black Coal Award,save for any matter arising from the general review of shutdown terms.

PRESIDENT

Appearances:

D Gunzburg and T Sebbens for Coal Mining Industry Employer Group.

A Thomas for Construction,Forestry,Mining and Energy Union –Mining and Energy Division.

A Devasia for “Automotive,Food,Metals,Engineering,Printing and Kindred Industries Union”known as the Australian Manufacturing Workers’Union (AMWU).

A Guy for The Association of Professional Engineers,Scientists and Managers,Australia.

Hearing details:
2017.
Melbourne;
9 October.

Final written submissions:

CMIEG:11 September 2017

CFMEU:3 October 2017

AMWU:3 October 2017

Attachment A
Attachment A


 1   [2017] FWCFB 959

 2   [2017] FWC 2662

 3   [2017] FWCFB 959 at [30].

 4   [2017] FWCFB 959 at [31].

 5   [2016] FWCFB 6836 at [79].

 6   [2017] FWCFB 959 at [32] –[33].

 7   Transcript 4 August 2017 at [51]-[54] and [68]-[69]

 8   Directions,Attachment A

 9   Exhibit CMIEG1.

 10   CMIEG submission 11 September 2017 at [33].

 11   [2016] FWCFB 6838,at [76]

 12   [2016] FWCFB 6836 at [76].

 13   [2017] FWCFB 959 at [29].

 14   [2016 FWCFB 3177 at [381].

 15   [2017] FWCFB 959 at [30].

 16   CMIEG submission 11 September 2017 at [50]-[55]

 17   [2016] FWCFB 6836 at [77].

 18   [2016] FWCFB 6836 at [78].

 19   CMIEG submission 11 September 2017 at [35]

 20   [2017] FCAFC 123.

 21   Ibid at [23].

 22   Ibid at [28] –[29].

 23   Friends of Hinchinbrook Society Inc v Minister for Environment (No 3) (1997) 77 FCR 153;Australian Competition and Consumer Commission v Leelee Pty Ltd [1999] FCA 1121;Edwards v Giudice [1999] FCA 1836;National Retail Association v Fair Work Commission [2014] FCAFC 118.

 24   National Retail Association v Fair Work Commission [2014] FCAFC 118

 25   See Shop,Distributive and Allied Employees Association v National Retail Association (No 2) (2012) 205 FCR 227 at [35] per Tracey J.

 26   [2017] FCAFC 161.

 27   Ibid at [48].

 28   CMIEG submission 11 September 2017 at [76].

 29   CFMEU written submission October 2017 at 120.

 30   Clause 27.3 –as modified by the decision of the Full Bench in 4 yearly review of modern awards –award stage –Exposure Drafts –Group 1C,1D and 1E Awards [2015] FWCFB 7236.

 31   Clause 3. Definitions and interpretation.

 32   Transcript 9 October 2017 at PN132.

Printed by authority of the Commonwealth Government Printer

<Price code C,MA000001  PR596905>

About this document
(1)
Code:
PR596905
Title:
PR596905 - Decision - 19 Oct 2017
Effective:
19 Oct 2017
Updated:
22 Oct 2017
Related Information
1.0.11.0 SD