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6 March, 2018
In 2018, the four yearly review of modern awards is entering into its fourth year, with matters in relation to the Black Coal Mining Industry Award 2010 still before the FWC. Although the second four yearly review was due to commence on 1 January 2018, the FWC has confirmed that the Second Review will not commence at least until the matters in the current review are finalised. This is unlikely to be before the second half of 2018.
One of the most significant matters in the current four yearly review concerned the application of the Coal Mining Industry Employer Group for a variation of the Award to provide a cap on redundancy pay. The Award at that time provided for an uncapped benefit of three weeks’ pay per year of service (two weeks per year of service attributed to retrenchment pay, and one week per year of service attributed to severance pay).
After a hearing in early November 2016, a Full Bench of the FWC handed down its decision in January 2017 ([2017] FWCFB 584) placing a cap of 15 years (or 30 weeks’ payment) on the retrenchment component of the payment. The severance component of the redundancy pay remained uncapped. The variation to the payment came into force on 20 March 2017 and also included a grandfathering arrangement (see also Redundancy and the Modern Award Objective.)
The CFMEU, APESMA and AMWU sought judicial review of the FWC’s decision. However, the challenge was ultimately unsuccessful (Construction, Forestry, Mining and Energy Union v Anglo American Metallurgical Coal Pty Ltd [2017] FCAFC 123).
In respect of other matters before the FWC, the CMIEG brought two other applications in 2017:
An application to vary the accident pay clause of the Award to reduce the maximum benefit to a period of 52 weeks’ pay in line with other awards. There was a hearing before a Full Bench in October and November 2017. The decision is still pending.
An application to vary the annual leave clause of the Award, that arose out of the general review of annual leave provisions in modern awards, in order to clarify the ability of employers to direct employees to take annual leave during a shut down. The FWC handed down its decision in October 2017 clarifying that employers can direct employees to take paid annual leave during a shutdown, but deciding that there ought not be an ability to direct an employee to take unpaid leave. The determination varying the Award to clarify the position came into effect on 17 November 2017.
The Award was also varied more generally to provide measures to deal with excessive annual leave, by virtue of a Determination handed down on 23 November 2017, with some variations coming into effect on 1 December 2017 and others on 1 December 2018 (see PR597971).
Other pending matters before the FWC that affect the Award include claims by unions for family friendly work arrangements, plain language drafting of the Award, and clarification of the operation of penalty allowances and whether they are cumulative.
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