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Modern Award Update

Modern AwardsNovember 3, 2015

Modern Award Update (Last Updated On: August 9, 2016)

What has changed to your Awards?

The Fair Work Commission has recently made some changes to a number of modern awards to remove provisions which were inconsistent with the National Employment Standards (NES) and employer’s obligations on a transfer of business under the Fair Work Act 2009 (the Act).

Click here to check whether there have been any amendments to the awards applicable to your business. These awards will be identified in your initial review letter.

As always, we are on hand to help if you have any questions about the changes and how they affect your business or if you have any questions about your employees’ entitlements. In particular, please contact Employsure if you are considering buying or selling a business or transferring employees between businesses, for advice on your obligations in relation to the affected employees.

Amendments relating to transfer of business

When businesses are bought and sold, often employees will be offered employment with the new owner. In this situation, the Act sets out specific rules about whether the new employer must recognise transferring employees’ service with the old employer for purpose of calculating accrued entitlements (such as annual leave) and protection from unfair dismissal. A number of awards previously required the new employer to recognise a transferring employee’s service with the old employer for the purpose of calculating accrued annual leave. This provision has been deleted for being inconsistent with the Act which allows the new employer to choose to refuse to recognise service in relation to accrued annual leave in certain circumstances.

The awards affected by these amendments are:

Airport Employees Award 2010
Building and Construction General On-site Award 2010
Food, Beverage and Tobacco Manufacturing Award 2010
Horticulture Award 2010
Manufacturing and Associated Industries and Occupations Award 2010
Nursery Award 2010
Pastoral Award 2010
Plumbing and Fire Sprinklers Award 2010
Seafood Processing Award 2010
Timber Industry Award 2010
Wine Industry Award 2010

There are a number of employment obligations and potential liability when employees are transferring across with the sale of a business. Therefore, please call Employsure if you are considering buying or selling a business or business assets or employees are transferring between businesses, for advice on your obligations in relation to the affected employees.

Amendments to specific awards

Hair and Beauty Award 2010

Clause 34.2 of the award has been deleted. This entitled casual employees to a minimum of 48 hours of unpaid leave to care for a person who is sick or requires care due to an emergency. In accordance with the NES, casual employees will be entitled to a maximum of two days of unpaid carer’s leave in relation to their immediate family or household only.

Horse and Greyhound Training Award 2010

Clause 10.2(d) of this award, which provided for shorter periods of notice on termination for employees still in probation, has been deleted. All employees with less than one year of service will be entitled to one week’s notice in accordance with the NES.

Mobile Crane Hiring Award 2010

Clause 25.2(c) of this award has been amended to confirm that an employer may allow an employee to take annual leave prior to the employee accruing the leave and the employer can make a deduction (equivalent to the leave taken but not accrued) from monies payable to an employee on termination of employment.

This clause previously provided that, where leave was granted in advance, annual leave would not accrue until 12 months after the expiration of the 12 month period in respect of which the leave was taken. This requirement has been removed because annual leave accrues progressively during the year under the NES.

Educational Service (Post-Secondary Education) Award 2010

Clause 11.2(b) provides that where a course has to be cancelled because of undersubscription or failure of students to attend and the employer cannot give four weeks’ notice of termination to a teaching staff member, the employer must give at least two weeks of notice. This clause has been amended to confirm that teaching staff will need to be provided with the minimum notice required by the NES if this is higher than two weeks.

Live Performance Award 2010

Clause 19.2 of this award has been amended to confirm that an employer may allow an employee to take annual leave prior to the employee accruing the leave and the employer can make a deduction (equivalent to the leave taken but not accrued) from monies payable to an employee on termination of employment.

This clause previously provided that, where leave was granted in advance, annual leave would not accrue until 12 months after the expiration of the 12 month period in respect of which the leave was taken. This requirement has been removed because annual leave accrues progressively during the year under the NES.

Ambulance and Patient Transport Award 2010

Clause 30.6 of this award previously imposed restrictions on an employee’s ability to access personal leave during a period of annual leave (eg the employee must be sick for not less than five days). The clause has been amended to be consistent with the NES and confirm that an employee who becomes sick during annual leave can access personal leave (and be re-credited their annual leave) if they immediate forward a medical certificate to their employer.

Labour Marketing Assistance Industry 2010

Clause 25.3 of this award previously imposed restrictions on an employee’s ability to access personal leave during a period of annual leave (eg the employee must be sick for not less than five days). The clause has been amended to be consistent with the NES and confirm that an employee who becomes sick during annual leave can access personal leave (and be re-credited their annual leave) if they immediate forward a medical certificate to their employer.

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