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[2015] FWCFB 3406
Fair Work Commission (Full Bench)
2015-06-11
Ross J
Original judgment source is linked above.
Background paper - Scope of annual leave common issue
The individualisation of employment relationships and the adoption of high performance work practices - final report (filed by the Australian Council of Trade Unions)
PWC expert accounting report (joint document of the Australian Chamber of Commerce and Industry and the Australian Industry Group - see also Mr Eugene Kalenjuk witness evidence)
"Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU)
"Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU) - Vehicle Division
Legislative provisions relating to annual leave (joint document)
Australian Childcare Centres Association and Australian Childcare Alliance
Legislative provisions relating to annual leave (joint document)
Legislative provisions relating to annual leave (joint document)
Correspondence and chart detailing accumulation of annual leave
Construction, Forestry, Mining and Energy Union - Construction and General Division
Construction, Forestry, Mining and Energy Union - Forestry and Furnishing Products Division
Australian Entertainment Industry Association t/as Live Performance Australia
Queensland Funeral Directors' Association Ltd and Funeral Directors Association of New South Wales Ltd
Shop, Distributive and Allied Employees' Association
Mr Eugene Kalenjuk (see also PWC expert accounting report)
Australian Chamber of Commerce and Industry and the Australian Industry Group
"Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU) - Vehicle Division
"Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU) - Vehicle Division
Attachment D - New Subclause for Excessive Annual Leave
The awards the Employer Group proposes to be varied to include the new subclause relating to excessive annual leave (Employer Group propose insertion of new provision (Schedule 2))[1]
Building and Construction General On-site Award 2010
Corrections and Detention (Private Sector) Award 2010
Educational Services (Post-Secondary Education) Award 2010
Health Professionals and Support Services Award 2010
Professional Diving Industry (Industrial) Award 2010
Professional Diving Industry (Recreational) Award 2010
Social, Community, Home Care and Disability Services Industry Award 2010
State Government Agencies Administration Award 2010
Storage Services and Wholesale Industry Award 2010
Attachment E - Replacement Subclause for Excessive Annual Leave
The awards the Employer Group proposes to be varied to include the new subclause relating to excessive annual leave (Employer Group propose replacing current provision (Schedule 3))[2]
Electrical, Electronic and Communications Contracting Award 2010
Food, Beverage and Tobacco Manufacturing Award 2010
Manufacturing and Associated Industries and Occupations Award 2010
Road Transport (Long Distance Operations) Award 2010
Vehicle Manufacturing, Repair, Services and Retail Award 2010
Attachment F - Analysis of Excessive Annual Leave Provisions in Awards
Employer and employee unable to reach agreement
2 = insert
3 = replace
n/a = not in submission
Aboriginal Community Controlled Health Services Award 2010
Within 12 months of accrual or 15 months of the start of the last period of leave
Within 4 months of accrual or 12 months by agreement
Within 12 months of accrual unless otherwise agreed
8 wks (or a proportionate amount for a PT employee)
* Employees who are entitled to 5 weeks' annual leave may accrue up to 10 weeks' leave.
The 44 awards the Employer Group proposes to be varied to include the new subclause relating to close down (Employer Group propose insertion of new provision).[3]
Corrections and Detention (Private Sector) Award 2010
Educational Services (Schools) General Staff Award 2010 ^
Health Professionals and Support Services Award 2010 ^
Ports, Harbours and Enclosed Water Vessels Award 2010
Professional Diving Industry (Industrial) Award 2010
Professional Diving Industry (Recreational) Award 2010
Social, Community, Home Care and Disability Services Industry Award 2010
State Government Agencies Administration Award 2010
^ These five awards currently contain close-down provisions.
Two awards that do not contain close-down provision were not the subject of the Ai Group claim:
· Higher Education Industry - Academic Staff - Award 2010
21 awards to be varied to include the new subclause relating to close-down (Employer Group propose insertion of new provision).[4]
Building and Construction General On-site Award 2010
Electrical, Electronic and Communications Contracting Award 2010
Food, Beverage and Tobacco Manufacturing Award 2010
Manufacturing and Associated Industries and Occupations Award 2010
Textile, Clothing, Footwear and Associated Industries Award 2010
Vehicle Manufacturing, Repair, Services and Retail Award 2010
Attachment H - New Subclause for Annual Leave in Advance
The 48 awards the Employer Group proposes to be varied to include the new subclause relating to taking annual leave in advance of accrual (Employer Group propose insertion of new provision (Schedule 6)).[5]
Aboriginal Community Controlled Health Services Award 2010
Ambulance and Patient Transport Industry Award 2010
Building and Construction General On-site Award 2010
Corrections and Detention (Private Sector) Award 2010
Higher Education Industry - Academic Staff - Award 2010
Higher Education Industry - General Staff - Award 2010
Ports, Harbours and Enclosed Water Vessels Award 2010
Professional Diving Industry (Industrial) Award 2010
Professional Diving Industry (Recreational) Award 2010
Social, Community, Home Care and Disability Services Industry Award 2010
State Government Agencies Administration Award 2010
Storage Services and Wholesale Industry Award 2010
Textile, Clothing, Footwear and Associated Industries Award 2010
Note: Attachment C of the Fair Work Commission Background paper - Annual leave common issue, 30 May 2014 included the following additional awards in the 76 modern awards classified as containing limited provisions permitting taking leave in advance of accrual:
The 51 awards the Employer Group proposes to be varied by inserting new subclause relating to the electronic transfer payment (EFT) of annual leave.
Ambulance and Patient Transport Industry Award 2010
Broadcasting and Recorded Entertainment Award 2010
Building and Construction General On-site Award 2010
Electrical, Electronic and Communications Contracting Award 2010
Food, Beverage and Tobacco Manufacturing Award 2010
Manufacturing and Associated Industries and Occupations Award 2010
Professional Diving Industry (Industrial) Award 2010
Road Transport (Long Distance Operations) Award 2010
Vehicle Manufacturing, Repair, Services and Retail Award 2010
Attachment J - Legislative Provisions Relating to Annual Leave
During proceedings before a Full Bench of the Fair Work Commission on 16 October 2014, His Honour, Justice Ross, directed the Ai Group, the ACCI and the ACTU to file a joint document that summarises the legislative provisions contained in the Workplace Relations Act 1996 and state/territory legislation regarding annual leave. The table below contains the key legislative provisions regarding annual leave, as agreed between the aforementioned parties, extracted from the joint submission provided on 14 November 2014. The table also indicates where the relevant legislation has been repealed. State/territory legislation that has not been repealed only has application to employees of employers who are not national system employers.
Right of Employer to Direct Employee to Take Annual Leave
**Federal: Workplace Relations Act 1996 (repealed)
**Section 172 Operation of the Australian Fair Pay and Conditions Standard & Section 230 Agreement between employees and employers
Section 236(1) - (4) Rules about taking annual leave
Section 234(1) and (4) Annual leave - accrual, crediting and accumulation rules
New South Wales: _Annual Holidays Act 1944
_Section 5(1)(a) Special provisions-annual holidays otherwise than under this Act
Queensland: _Industrial Relations Act 1999
_Section 41 Relationship to other rights and industrial instruments & Section 71CA Queensland Employment Standards subject to provisions of modern industrial instrument
Section 71EG Requirements for cashing out annual leave
Western Australia: Minimum Conditions of Employment Act 1993
23(1), (2) and (2a) Paid annual leave, entitlement to
8 Limited contracting-out of annual leave conditions
Section 47AA(2) Division 2A - Minimum conditions of employment relating to all employees - Purpose and application of Division
Victoria: Industrial Relations Act 1979 (repealed)
**Australian Capital Territory: Annual Leave Act 1973 (repealed)
**Section 14(2) No contracting out
Section 10 Employer may require employee to take annual leave
Northern Territory: _Annual Leave Act
_Section 15 Exemptions
[1] This decision also deals with unpaid annual leave in the context of close-down.
[3] [2014] FWC 1790 at paras 5-6.
[5] [2014] FWC 2279 at para 2.
[6] Ai Group submission, 20 March 2014 at para 2.19.
[7] ACCI correspondence, 21 May 2014.
[9] Shop, Distributive and Allied Employees Association v National Retail Association (No 2) [2012] FCA 480; (2012) 205 FCR 227 at [35] per Tracey J.
[10] Friends of Hichinbrook 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.
[11] [2014] FWCFB 1788 at para 60.
[12] [2015] FWCFB 620 at para 8.
[13] Preliminary Jurisdictional Issues [2014] FWCFB 1788 at para 24.
[14] Preliminary Jurisdictional Issues [2014] FWCFB 1788 at paras 35-36.
[15] Fair Work Commission Background paper - Annual leave common issue, 30 May 2014.
[16] [2008] AIRCFB 1000 at para 99.
[19] [2012] FWAFB 5600 at para 99.
[20] Also see Modern Awards Review 2012 - Award Flexibility [2013] FWCFB 2170 at para 10-12.
[21] Ai Group submission and witness statements, 20 June 2014, Witness statement of Mr Ben Waugh, Attachment A.
[22] Ai Group submission and witness statements, 20 June 2014, Witness statement of Mr Ben Waugh, paras 14-15.
[23] Ai Group submission and witness statements_,_ 20 June 2014, Witness statement of Mr Ben Waugh, Attachment C.
[24] Ai Group submission and witness statements_,_ 20 June 2014, Witness statement of Mr Ben Waugh, para 19.
[25] ACCI Small Business Survey, August 2014.
[26] ACTU submissions in reply, 1 August 2014, paras 42-55; AMWU outline of submission in reply, 1 August 2014 at para 3.
[28] Transcript at para 1041; The ABS defines a stratified random sample as a sample that first identifies relevant subgroups from within the population and random samples are selected from within each strata. ABS Statistical Language - Census and Sample, July 2013, http://www.abs.gov.au/websitedbs/a3121120.nsf/home/statistical+language+-+census+and+sample, accessed 12 September 2014.
[30] ACCI's correspondence and outline of submissions, 20 June 2014 at para 5.3.
[31] Transcript at paras 1048-1059.
[32] Master Builders Australia submission and witness statement, 20 June 2014, Witness statement of Geoffrey Charles Thomas at p. 3.
[33] See for example, Transcript at paras 1129-1131, 1152 and 1223-1225.
[34] See for example, Transcript at paras 1176 and 1281.
[35] Ai Group correspondence, 21 May 2014; ACCI correspondence, 21 May 2014.
[36] See Exhibits A, D, E, G and H to ACCI correspondence and outline of submissions, 20 June 2014.
[37] Denniss R (2003) Annual Leave in Australia: An Analysis of Entitlements Usage and Preferences. The Australia Institute Discussion Paper No. 56 Canberra: The Australia Institute.
[38] Cameron P and Denniss R (2013), 'Hard to get a break? Hours, leave and barriers to re-entering the Australian workforce', The Australia Institute, Institute Paper No. 13, November 2013, pp. 26-27.
[39] ACCI outline of submissions, 20 June 2014 at para 7.14.
[40] ACCI outline of submissions, 20 June 2014 at para 7.22.
[41] ACCI outline of submissions, 20 June 2014 at para 7.24.
[42] ACCI outline of submissions, 20 June 2014 at paras 7.26-7.28.
[43] ACCI outline of submissions, 20 June 2014 at paras 7.29-7.30.
[44] Ai Group submission and witness statements, 20 June 2014, p. 12 at para 34.
[45] Ai Group submission and witness statements, 20 June 2014, p. 18 at para 47.
[46] ACTU reply submission, 1 August 2014, pp. 25-26 at paras 109 and 111.
[47] ACTU reply submission, 1 August 2014, p. 23 at para 93.
[48] ACTU reply submission, 1 August 2014, p. 27 at para 120.
[49] ACTU reply submission, 1 August 2014, p. 26 at para 113.
[50] Transcript at paras 1877-1889.
[51] ACTU reply submission, 1 August 2014, p. 20 at paras 81-82 and pp. 29-30 at paras 132-133.
[52] ACTU reply submission, 1 August 2014, pp. 28-29 at paras 125-128.
[53] Transcript at paras 1877-1881.
[54] ACTU reply submission, 1 August 2014, p. 29 at paras 129-131.
[56] See generally ACCI further submission, 28 October 2014, Affidavit of Julian Fredrick Arndt: 218 such applications were made in the period 30 August 1998 to 4 November 2010.
[57] Also see Fair Work Act 1994 (SA): Schedule 4; Industrial Relations Act 1984 (Tas): s.47AE(5)-(7); Annual Leave Act 1973 (ACT): s.10; Annual Leave Act (NT): s.6(9).
[58] When the Work Choices Act was introduced the Commonwealth Government suggested that the resulting system would cover 85 per cent of all Australian employees: see Work Choices: A New Workplace Relations System, Australian Government, Canberra 2005 p.11, citing unpublished ABS data. Attempts since the Work Choices Act to estimate the respective coverage of federal and state laws have produced conflicting results. Research conducted for the Queensland Government suggested that the new federal system would cover 76 per cent of employees: Queensland Government, 'The Coverage and Characteristics of the State Jurisdiction under a New Industrial Relations System', Submission to Queensland Industrial Relations Inquiry into the Impact of Work Choices on Queensland Workplaces, Employees and Employers, Appendix 1, Queensland Government, Brisbane, 2006. A subsequent analysis published by the ABS found that the federal system covered at least 79 per cent of all Australian employees, compared with 12 per cent in the state systems and 9 per cent being uncertain: ABS (2008) 'Jurisdictional Coverage of Pay-Setting Arrangements', Australian Labour Market Statistics 2008, ABS Cat 6105.0. See generally Peetz D 'How Wide is the Impact of Work Choices?' in Abbott K et al (eds) Work Choices: Evolution or Revolution, Heidelberg Press, pp.23-41.
[59] See Stewart A 'Testing the Boundaries: Towards a National System of Labour Regulation' in Forsyth A and Stewart A (eds) 'Fairwork: The New Workplace Laws and the Work Choices Legacy', Federation Press, 2009, pp.19-39, p.24.
[60] Explanatory Memorandum to the Fair Work Bill 2008 at para 383.
[62] Re General Retail Industry Award 2010 [2010] FWAFB 305 at para 1.
[63] Re General Retail Industry Award 2010 [2010] FWAFB 305 at para 30.
[64] Re General Retail Industry Award 2010 [2010] FWAFB 305 at para 30.
[65] Re Fast Food Industry Award 2010 [2010] FWAFB 379 at para 1.
[66] Re Fast Food Industry Award 2010 [2010] FWAFB 379 at para 28.
[67] Re Fast Food Industry Award 2010 [2010] FWAFB 379 at para 28.
[68] Fair Work Commission Background paper - Annual leave common issue, 30 May 2014, Attachment C at p.33. Note the figure of 82 modern awards in this paper includes 3 awards that provide that an employer can direct an employee to take leave but this is not restricted to excessive leave.
[69] Skinner, N and Pocock, B (2013) Paid Annual Leave in Australia: Who gets it, who takes it and implications for work-life balance, Journal of Industrial Relations, 21 August 2013, Vol. 55, p.82. at p. 685.
[70] Denniss R (2003) Annual Leave in Australia: An Analysis of Entitlements Usage and Preferences. The Australia Institute Discussion Paper No. 56 Canberra: The Australia Institute.
[71] Skinner, N and Pocock, B (2013) Paid Annual Leave in Australia: Who gets it, who takes it and implications for work-life balance, Journal of Industrial Relations, 21 August 2013, Vol. 55, p.82. at p.686.
[72] Wooden M and Warren D (2008) Paid annual leave and working hours: Evidence from the HILDA survey, Journal of Industrial Relations 50(4); Cameron P and Denniss R (2013), 'Hard to get a break? Hours, leave and barriers to re-entering the Australian workforce', The Australia Institute, Institute Paper No. 13, November 2013, pp. 26-27; and Tourism Australia (2012).
[73] Wooden M and Warren D (2008) Paid annual leave and working hours: Evidence from the HILDA survey, Journal of Industrial Relations 50(4) at p. 666.
[74] Wooden M and Warren D (2008) Paid annual leave and working hours: Evidence from the HILDA survey, Journal of Industrial Relations 50(4) at p. 666.
[75] Wooden M and Warren D (2008) Paid annual leave and working hours: Evidence from the HILDA survey, Journal of Industrial Relations 50(4) at p. 666.
[76] Cameron P and Denniss R (2013), 'Hard to get a break? Hours, leave and barriers to re-entering the Australian workforce', The Australia Institute, Institute Paper No. 13, November 2013, pp. 26-27.
[77] Ai Group submission and witness statements, 20 June 2014, Witness statement of Mr Ben Waugh, Attachment E at p. 25.
[78] Joudrey A and Wallace J (2009) Leisure as a coping resource: A test of the job demand-control-support model. Human Relations 62(2): 195-217; Walsh R (2011) Lifestyle and mental health. American Psychologist, advance online publication, 17 January at p. 682.
[79] Cameron P and Denniss R (2013), 'Hard to get a break? Hours, leave and barriers to re-entering the Australian workforce', The Australia Institute, Institute Paper No. 13, November 2013 at p. 27.
[80] Cairncross G and Waller I (2004) 'Not taking Annual Leave: What Could it Cost Australia', Journal of Economic and Social Policy, Vol: 9, Issue 1, Article 3.
[81] Safe Work Australia 'Guide for Managing the Risk of Fatigue at Work', November 2013 at p. 2.
[82] Safe Work Australia 'Guide for Managing the Risk of Fatigue at Work', November 2013 at p. 9.
[83] ACCI, Expert accounting report of Mr Eugene Kalenjuk, 2 July 2014 at p. 4.
[84] Ai Group submission and witness statements, 20 June 2014, Witness statement of Mr Ben Waugh, Attachment E at p. 27.
[85] Skinner, N and Pocock, B (2013) Paid Annual Leave in Australia: Who gets it, who takes it and implications for work-life balance, Journal of Industrial Relations, 21 August 2013, Vol. 55 at p. 682.
[86] Skinner, N and Pocock, B (2013) Paid Annual Leave in Australia: Who gets it, who takes it and implications for work-life balance, Journal of Industrial Relations, 21 August 2013, Vol. 55 at p.694.
[87] ACCI outline of submissions, 20 June 2014 at para 7.14.
[88] [1915] AR 235 at [237]-[238].
[89] [1915] AR 235 at [237]-[238].
[92] Eden D (2001), 'Vacations and other respites: Studying stress on and off the job', in Robertson I (eds) International Review of Industrial and Organisational Psychology, Vol 16, New York, John Wiley & Sons pp 121-146, cited in Skinner, N and Pocock, B (2013) Paid Annual Leave in Australia: Who gets it, who takes it and implications for work-life balance, Journal of Industrial Relations, 21 August 2013, Vol. 55 at p.682
[93] Cited in Skinner, N and Pocock, B (2013) Paid Annual Leave in Australia: Who gets it, who takes it and implications for work-life balance, Journal of Industrial Relations, 21 August 2013, Vol. 55, p.82. at pp. 682-683
[94] Westman & Etzion (2001) at pp. 595, 602-603, cited in Skinner, N and Pocock, B (2013) Paid Annual Leave in Australia: Who gets it, who takes it and implications for work-life balance, Journal of Industrial Relations, 21 August 2013, Vol. 55, at p.682
[95] Etzion, D. 2003, 'Annual vacation: duration of relief from job stressors and burnout.' Anxiety, Stress and Coping, 16(2), at pp. 223-224.
[96] Skinner, N and Pocock, B (2013) Paid Annual Leave in Australia: Who gets it, who takes it and implications for work-life balance, Journal of Industrial Relations, 21 August 2013, Vol. 55 at pp. 688-689
[97] Skinner, N and Pocock, B (2013) Paid Annual Leave in Australia: Who gets it, who takes it and implications for work-life balance, Journal of Industrial Relations, 21 August 2013, Vol. 55 at p.689
[98] Skinner, N and Pocock, B (2013) Paid Annual Leave in Australia: Who gets it, who takes it and implications for work-life balance, Journal of Industrial Relations, 21 August 2013, Vol. 55 at p. 689.
[99] Skinner, N and Pocock, B (2013) Paid Annual Leave in Australia: Who gets it, who takes it and implications for work-life balance, Journal of Industrial Relations, 21 August 2013, Vol. 55 at p. 695.
[100] Ai Group correspondence, 21 May 2014, Attachment A at p. 1; varied by Ai Group correspondence, 15 October 2014, Attachment A at p. 1.
[101] See also Attachment F; figure amended from 83 in the 30 May 2014 Background Paper.
[102] Sometimes described as '18 months of annual leave accrued': Cemetery Industry Award 2010 at clause 24.3.
[103] Nurses Award 2010, cl.31.2; Security Services Industry Award 2010, cl.24.3; Asphalt Industry Award 2010, cl.25.5; Broadcasting and Recorded Entertainment Award 2010, cl.23.6; Cement and Lime Award 2010, cl. 24.5; Gardening and Landscaping Services Award 2010, cl. 24.4; Gas Industry Award 2010, cl.25.4; Horse and Greyhound Training Award 2010, cl. 23.4; Premixed Concrete Award 2010, cl. 24.5; Quarrying Award 2010, cl.29.5; Racing Clubs Events Award 2010, cl.30.4; Racing Industry Ground Maintenance Award 2010, cl.24.3; Silviculture Award 2010, cl.29.4; Sporting Organisations Award 2010, cl.25.4; Textile, Clothing, Footwear and Associated Industries Award 2010, cl.41.4; Black Coal Mining Industry Award 2010, cl.25.4; Air Pilots Award 2010, cl.27.4; Architects Award 2010, cl.20.2; Ambulance and Patient Transport Industry Award 2010, cl.30.8; Mobile Crane Hiring Award 2010, cl.25.2; Ports, Harbours and Enclosed Water Vessels Award 2010, cl.22.4; Aquaculture Industry Award 2010, cl. 23.4.
[104] The Nurses Award 2010 (cl.31.2) provides that 'Annual leave will be given and taken within six months of the employee becoming entitled to annual leave of more than five weeks'; Also see the Black Coal Mining Industry Award 2010, cl.25.4 ('unless otherwise agreed, annual leave will be taken within 12 months of the date the employee received the annual leave entitlement'); Air Pilots Award 2010, cl.27.4 ('Normally, annual leave will be granted and will be taken within 12 months from the date on which it falls due or alternatively 15 months from the date of commencement of the preceding period of leave'); Architects Award 2010, cl.20.2 ('The employee must be allowed to take annual leave at a time agreed with the employer, within four months after it is due'); Ambulance and Patient Transport Industry Award 2010, cl.30.8 ('Annual leave will be taken within six months of the employee becoming entitled to take it unless alternative arrangements are agreed between the employer and employee'); Mobile Crane Hiring Award 2010, cl. 25.2 ('Leave will be given and will be taken within six months from the date when the right to annual leave occurred and after not less than four weeks notice to the employees'); Ports, Harbours and Enclosed Water Vessels Award 2010, cl.22.4 ('Annual leave must be taken within six months of the entitlement accruing').
[105] Higher Education Industry - General Staff - Award 2010, cl.30.1(a) and Higher Education Industry - Academic Staff - Award 2010, cl.23.1 ('at least two months prior to the date on which the employee is to take the leave'); Also note that the Ports, Harbours and Enclosed Water Vessels Award 2010, cl. 22.4 provides that 'An employer may require an employee to take a period of annual leave provided the employee is given at least 14 days' notice'.
[107] Ai Group submission and witness statements, 20 June 2014 at paras 17-18 and 20-21.
[108] Ai Group submission and witness statements, 20 June 2014 at para 33.
[109] [2015] FWCFB 3124 at para 25.
[110] [2015] FWCFB 3124 at paras 25-28.
[111] Ai Group correspondence, 21 May 2014; ACCI correspondence, 21 May 2014.
[112] Re Just Cuts (Canberra and Queanbeyan) Agreement 2000-2003, Print T3829, 30 November 2000 at para 16.
[113] Review of Wage Fixing Principles - October 1993 (1993) 50 IR 285 at [320]; Enterprise Flexibility Test Case (1995) 59 IR 430 at [457].
[114] [2008] AIRCFB 1000 at paras 99-100.
[115] [2009] AIRCFB 50 at paras 3-4 and 8-9.
[116] [2009] AIRCFB 345 at para 4.
[117] For example see Re Journalists Published Media Award 2010 (2009) 187 IR 192 at [116]; Re Commercial Sales Award 2010 [2009] AIRCFB 826 at [276]; Re Meat Industry Award 2010 [2009] AIRCFB 942 at [11].
[118] Seafood Processing Award 2010 at clause 27.8.
[119] Seafood Processors and Exporters Council and others Parties' Draft awards - Seafood Processing Industry Award, 6 April 2009.
[122] CFMEU v Fair Work Australia and Newlands Coal Pty Ltd [2011] FCA 719 at [83].
[123] Enterprise bargaining commenced in October 1991 through the 'Prices and Incomes Accord Mark VII' however note the principle of enterprise bargaining was federally legislated in 1993 via the Industrial Relations Reform Act 1993 (Cth).
[124] ACCI submission, 27 November 2014; ACTU submission, 27 November 2014; TCFUA submission, 27 November 2014; Ai Group submission, 27 November 2014; BHP Billiton correspondence and submission, 27 November 2014; Housing Industry Association correspondence, 27 November 2014.
[126] For example clause 33.4 the Downer EDI Engineering Electrical Pty Ltd (Tasmania) Greenfield Agreement 2013 [AE406442].
[127] For example clause 9.15.6 of the Diver Consolidated Industries (DCI) Enterprise Agreement 2013 [AE407170] which provides for cashing out of annual leave only once an employee has been with the employer for 10 years or more.
[128] For example clause 20.3 of The Westin Melbourne Enterprise Agreement 2012 [AE407158].
[129] [2013] FWCFB 1635 at para 229.
[130] Transcript at paras 1506 and 1522.
[131] Transcript at paras 1527 and 1532.
[132] Ai Group submission and witness statements, 20 June 2014, Witness statement of Mr Ben Waugh, Attachment E at p. 15.
[133] Ai Group submission and witness statements, 20 June 2014, Witness statement of Ms Kristina Flynn at para 21.
[134] ACCI outline of submissions, 20 June 2014, Witness statement of Ms Fiona Corbett at para 7.
[135] [2014] FWCFB 3500 at paras 392 and 400.
[136] ACTU submission, 27 November 2014 at para 35.
[137] [2014] FWCFB 3500 at para 72.
[138] ACCI outline of submissions, 20 June 2014 at paras 6.24-6.26; Ai Group submission and witness statements, 20 June 2014 at para 126.
[139] Pepsi Seven-Up Bottlers Perth Pty Ltd v FCT [1995] FCA 1655; (1995) 62 FCR 289 at [298] -[299] per Hill J.
[141] [2012] FWAFB 7858 at paras 38-45.
[142] [2013] FWCFB 4000 at para 140.
[143] ACCI outline of submissions, 20 June 2014 at para 6.9.
[144] Mitchell R and Fetter J (2003) 'The individualisation of employment relationships and the adoption of high performance work practices: Final Report', University of Melbourne at p. 9.
[145] Mitchell R and Fetter J (2003) 'The individualisation of employment relationships and the adoption of high performance work practices: Final Report', University of Melbourne at p. 9.
[146] Mitchell R and Fetter J (2003) 'The individualisation of employment relationships and the adoption of high performance work practices: Final Report', University of Melbourne at pp. 6-8.
[147] ABS, Employee Earnings and Hours, Australia, May 2014, unpublished survey instrument, glossary.
[148] ABS, Employee Earnings and Hours, Australia, May 2014, Catalogue No, 6306.0, glossary.
[149] ABS, Employee Earnings and Hours, Australia, May 2014, Catalogue No, 6306.0, glossary.
[150] ABS, Employee Earnings and Hours, Australia, May 2014, Catalogue No, 6306.0, glossary.
[151] ABS, Employee Earnings and Hours, Australia, May 2014, Catalogue No, 6306.0, glossary. Data on owner managers of incorporated enterprises were not available and hence excluded from the analysis such that proportions calculated reflect the total of collective agreements, individual arrangements and 'award only' arrangements.
[152] It is noted that s.23 of the FW Act defines a small business (national system employer) as an employer that employs fewer than 15 employees.
[153] The chart in the background paper set out the 2012 data (which was the most recent data at the time the background paper was released). The May 2014 data shows the same pattern as the 2012 data.
[154] BHP Billiton's submission, 27 November 2014 at paras 8-9.
[155] ACTU submission in reply, 1 August 2014, p. 11 at paras 37-39.
[156] ACTU submission in reply, 1 August 2014 at paras 270 and 272.
[157] AMWU outline of submissions in reply, 1 August 2014, p. 6 at para. 4.3.
[158] AMWU outline of submissions in reply, 1 August 2014, p. 7 at para 4.3.5.
[161] ACTU submission in reply, 1 August 2014, pp. 58 and 60 at paras 288, 297 and 298.
[162] ACTU submission in reply, 1 August 2014, p. 61 at para 299.
[163] [2008] AIRCFB 1000 at paras 99-100.
[165] Transcript at para 1190; ACTU submission in reply, 1 August 2014. p. 56 at para 269.
[166] [2009] AIRCFB 942 at para 11.
[167] Construction, Forestry, Mining and Energy Union v Fair Work Australia and Newlands Coal Pty Ltd [2011] FCA 719 at [83].
[168] Transcript at paras 1418-1420.
[169] ACTU submission in reply, 1 August 2014, p. 5 at para 15.
[170] ACTU submission in reply, 1 August 2014, pp. 54-55 at para 261.
[172] ACCI correspondence, 21 May 2014.
[174] The Ai Group claim notes that there are 44 modern awards that do not presently contain any provision allowing employers to implement an annual close down. It seems to us that there are 41 modern awards that do not presently contain the provision. See Attachment G for explanation of discrepancies.
[175] Transcript at paras 2139-2140.
[176] Re Metal Industry Award 1971 (1977) 191 CAR 598.
[177] [2008] AIRCFB 1000 at para 97.
[178] [2008] AIRCFB 1000 at para 97.
[179] [2009] AIRCFB 945 at para 27.
[180] Pest Control Award [AN150106] at clause 15(k).
[181] Fair Work Commission Background paper - Annual leave common issue, 30 May 2014, Attachment C at p.33.
[182] [2014] FWCFB 255. See Ai Group submission and witness statements, 20 June 2014, p. 50 at para 50.
[183] Ai Group submission 20 March 2014, p. 4 at para 2.10; Ai Group submission and witness statements, 20 June 2014, p. 20 at para 51.
[184] Ai Group submission and witness statements, 20 June 2014, pp. 24-26 at paras 71-74.
[185] Ai Group submission and witness statements, 20 June 2014, p. 20 at para 52.
[186] Ai Group submission and witness statements, 20 June 2014, p. 20 at para 53.
[187] Ai Group submission and witness statements, 20 June 2014, p. 21-23 at paras 58, 61 and 66-70.
[188] Ai Group submission and witness statements, 20 June 2014, p. 21 at para 60.
[189] See generally Ai Group submission 20 June 2014 at paragraph 76.
[190] ACCI outline of submissions, 20 June 2014 at paras 8.5-8.7.
[191] ACCI outline of submissions, 20 June 2014 at paras 8.8-8.11.
[192] ACCI outline of submissions, 20 June 2014 at paras 8.12-8.17.
[193] ACCI outline of submissions, 20 June 2014 at paras 8.18-8.20.
[194] [2008] AIRCFB 1000 at para 97.
[195] For an example of a majority clause, see Print M5600 at pp. 31-34.
[196] Ai Group correspondence, 21 May 2014, p. 11 at Schedule 6.
[197]Ai Group further submission, 19 September 2014, p. 4 at para 6; ACCI correspondence, 19 September 2014 at p. 2.
[198] The TCFUA addressed this variation in some detail and the AMWU and CFMEU did so in brief submissions.
[199] [2008] AIRCFB 717 at para 30; [2008] AIRCFB 1000 at para 95.
[200] [2008] AIRCFB 1000 at para 95.
[201] Fair Work Commission Background paper - Annual leave common issue, 30 May 2014, Attachment C. (Note the Background paper identified two additional awards as containing limited provision allowing for taking annual leave in advance of accrual - see Attachment H).
[202] Joint document filed by Ai Group, ACCI and ACTU, Legislative provisions relating to annual leave, 14 November 2014 (Attachment I); ACCI outline of submissions, 20 June 2014, p. 20 at para 9.4 refers to sections from this legislation.
[203] ACCI outline of submissions, 20 June 2014, Annexure F; Ai Group submission and witness statements, 20 June 2014, Witness statement of Mr Ben Waugh, Attachments A-G.
[204] Of the 2249 employers who answered Question 16, 951 (42 per cent) said that they agreed to such requests on 51 per cent or more occasions.
[205] Ai Group submission and witness statements, 20 June 2014, p. 28 at para 81.
[206] Ai Group submission and witness statements, 20 June 2014, p. 28 at para 82.
[207] ACCI outline of submissions, 20 June 2014, p.20 at paras 9.5, 9.9 and 9.10.
[208] Transcript at paragraphs 2176-2177.
[209] Ai Group submission and witness statements, 20 June 2014, p. 28 at paras 81-84; ACCI outline of submissions, 20 June 2014, p. 21-22 at paras 9.12-9.19.
[210] ACTU reply submissions, 1 August 2014, p. 46 at para 216.
[211] TCFUA submission, 4 August 2014, p. 21 at para 7.10.
[212] ACTU reply submission, 1 August 2014, p. 49 at para 231.
[213] The Commission's background paper of 30 May 2014 noted this as 76.
[214] Transcript at paras 2185-2186.
[215] ACTU correspondence, 21 May 2014; ACTU submission, 20 June 2014.
[216] A point acknowledged by the ACTU, Transcript at paragraphs 86 and 281-282.
[218] [2015] FCA 136 at [31]- [38].
[220] Commonwealth, Parliamentary Debates, House of Representatives, Fair Work Amendment Bill 2014 - Second Reading Speech (the Hon. Christopher Pyne), 27 February 2014, p. 1086.
[221] Ai Group correspondence, 21 May 2014; ACCI correspondence, 21 May 2014.
[222] ACTU reply submission, 1 August 2014, pp. 69-70 at para 345.
[223] See for example s.3(6)(b) of the Annual Holidays Act 1944 (NSW); s.8 of the Annual Leave Act 1973 (ACT); s.9 of the Annual Leave Act (NT); s.13 of the Industrial Relations Act 1999 (Qld); s.235 of the Workplace Relations Act 1996 (Cth); clause 7.1.3 of the Metal, Engineering and Associated Industries Award 1998; clause 37.12 of the Timber and Allied Industries Award 1999; clause 7.1.2(a) of the Graphic Arts - General - Award 2000; clause 27(k)(i) of the Vehicle Industry - Repair, Services and Retail - Award 2002.
[224] Ai Group submission and witness statements, 20 June 2014, Witness statement of Mr Ben Waugh at Attachment A.
[225] Question 20 asked: 'Are you charged extra fees for processing payroll outside the usual pay period?' 563 employees answered 'yes', 1940 answered 'no' and 662 were 'unsure'; Ai Group submission, 20 June 2014, Witness statement of Mr Ben Waugh, Attachment E.
[226] ACCI outline of submissions, 20 June 2014 at Exhibit F.
[227] ACTU reply submission, 1 August 2014, p. 69 at para 345.
[228] Transcript at paras 1898-1922.
[229] [2014] FWCFB 3202 at para 43.
[230] [2014] FWCFB 3202 at para 44.
[231] Ai Group submission, 20 March 2014.
[232] Ai Group correspondence, 21 May 2014.
[233] Skinner N and Pocock B (2013), 'Paid annual leave in Australia: Who gets it, who takes it and implications for work-life interference', Journal of Industrial Relations 55(5), pp.681-698 and p. 685.
[234] See Denniss R (2003) Annual Leave in Australia: An Analysis of Entitlements Usage and Preferences. The Australia Institute Discussion Paper No. 56 Canberra: The Australia Institute.
[235] Denniss R (2003) Annual Leave in Australia: An Analysis of Entitlements Usage and Preferences. The Australia Institute Discussion Paper No. 56 Canberra: The Australia Institute.
[236] Skinner, N and Pocock, B (2013) Paid Annual Leave in Australia: Who gets it, who takes it and implications for work-life balance, Journal of Industrial Relations, 21 August 2013, Vol. 55 at pp. 690-691.
[1] Ai Group correspondence, 21 May 2014; ACCI correspondence, 21 May 2014; Ai Group correspondence, 15 October 2014.
[2] Ai Group correspondence, 21 May 2014; ACCI correspondence, 21 May 2014; Ai Group correspondence, 15 October 2014.
[3] Ai Group correspondence, 21 May 2014; ACCI correspondence, 21 May 2014; Ai Group correspondence, 15 October 2014.
[4] ACCI submission, 21 May 2014 at Schedule 5; Ai Group correspondence, 21 May 2014.
[5] Ai Group correspondence, 21 May 2014; ACCI correspondence, 21 May 2014.
(2012) 205 FCR 227
(1997) 77 FCR 153
(1993) 50 IR 285
(1995) 59 IR 430
(2009) 187 IR 192
(1995) 62 FCR 289