This is a summary of a decision made by the Fair Work Commission regarding the review of modern awards and the inclusion of shutdown provisions. The decision specifically focuses on the Black Coal Mining Industry Award 2020.
In February 2019, a Full Bench proposed a model annual leave shutdown provision and established a timetable for submissions. This proposal was based on a previous decision made in October 2017 that had replaced the existing provision in the Black Coal Award.
Due to the COVID-19 pandemic, the matter was put on hold. In August 2022, the Full Bench expressed a provisional view that 79 awards should be varied to include the proposed model clause.
Draft determinations were published for comment, and further modifications were made in December 2022.
However, it was discovered in January 2023 that a draft determination for the Black Coal Award had not been published. The Commission requested submissions on whether clause 24.9 of the Black Coal Award should be varied.
The CFMMEU Mining and Energy Division (MEU) submitted that it should not be varied, as it had already been finalized in the October 2017 decision. The MEU also raised concerns about how the model clause would disadvantage employees.
The Full Bench considered the history of the matter and the differences between the Black Coal Award and the model clause. They concluded that it was not necessary to vary clause 24.9 of the Black Coal Award to achieve the modern awards objective.
They also declined the MEU's request to add an ancillary provision regarding unpaid leave. The MEU was advised to make an award variation application if they wished to pursue this further.