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

4 yearly review of modern awards - common issue - annual leave.

[1] In a decision 1 of 19 October 2017 (the October decision) we determined to delete clause 25.10 of the Black Coal Mining Industry Award 2010 and insert a revised clause incorporating amendments in accordance with paragraphs [16] and [75] of that decision.

[2] A draft determination which incorporates changes arising from the October decision is at Attachment A to this Statement.

[3] Interested parties are to file submissions in relation to the draft determination by 4.00 pm, Wednesday 8 November 2017. In the event that no submissions are received a determination will issue in the terms of the draft determination attached.

[4] All written submissions should be sent to amod@fwc.gov.au.

PRESIDENT

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

BLACK COAL MINING INDUSTRY AWARD 2010
[MA000001]

4 yearly review of modern awards - common issue - annual leave.

A. Further to the Full Bench decision issued by the Fair Work Commission on 19 October 2017 2 the above award is varied as follows:

1. By deleting clause 25.10—Shutdown and inserting the following:

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 any shorter period agreed between them and the employer.

(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) the employee may elect to cover the temporary shutdown period by doing one, or a combination of 2 or more, of the following:

• taking paid annual leave if the employee has accrued an entitlement to such leave;



• taking leave without pay;



• taking annual leave in advance in accordance with an agreement under clause 25.9;

(ii) if the employee does not make an election under subparagraph (i) that covers the whole of the temporary shutdown period, then the employer may direct the employee to take a period of paid annual leave to which the employee has accrued an entitlement.

(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) If a temporary shutdown period includes a day or part-day that is a public holiday and would have been a working day for the employee had the employee not been on leave in accordance with clause 25.10, the employee is taken not to be on leave on that day or part-day.

(i) Clauses 25.4 to 25.6 do not apply to a period of annual leave that an employee is required to take during a temporary shutdown period in accordance with clause 25.10.

B. This determination comes into operation from XX November 2017. In accordance with s.165(3) of the Fair Work Act 2009 this item does not take effect until the start of the first full pay period that starts on or after XX November 2017.

PRESIDENT

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 1   [2017] FWCFB 5394

 2   [2017] FWCFB 5394.

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