In the case of [2018] FWCFB 7433, the Fair Work Commission (FWC) issued a decision on December 17, 2018, regarding the 4-yearly review of modern awards, specifically focusing on the issue of abandonment of employment as it relates to certain modern awards under the Fair Work Act 2009. The decision was made by Vice President Hatcher, Deputy President Gostencnik, and Commissioner Cribb.
The FWC had previously issued a decision on January 23, 2018, in which it concluded that several modern award provisions related to abandonment of employment should be deleted. These provisions were identified in various awards, including the Manufacturing and Associated Industries and Occupations Award 2010, Business Equipment Award 2010, Contract Call Centres Award 2010, Graphic Arts, Printing and Publishing Award 2010, Nursery Award 2010, and Wool Storage, Sampling and Testing Award 2010.
However, the FWC considered the submissions of the Australian Industry Group (Ai Group) and the Australian Manufacturing Workers’ Union (AMWU), which argued that it would be useful to replace these provisions with a new one that outlines procedures for dealing with extended and unexplained employee absences. A 28-day period was allowed for interested parties to submit proposals for such a replacement provision.
Submissions were subsequently received from various parties, including the AMWU, the Australian Services Union (ASU), the Ai Group, and The Australian Workers’ Union (AWU). These submissions presented different perspectives on the need for and content of replacement provisions.
A conference was conducted by Deputy President Gostencnik, and a proposed replacement provision was shared with interested parties. This provision outlined the steps employers should take when an employee is absent from work for three or more consecutive days without authorization or notification.
Additional submissions were received, with some employer groups arguing that the proposed provision was unnecessary, while unions supported its inclusion in the awards. The FWC considered the provisions of the Fair Work Act 2009, which state that modern awards should include terms necessary to achieve the modern awards’ objective.
Ultimately, the FWC concluded that while the proposed provision could have some utility, it was not necessary to meet the modern awards’ objective. The situations it addressed were relatively rare, and the appropriate steps for employers to take would depend on the specific circumstances. Therefore, in the absence of a consensus among the parties, the FWC decided not to replace the provisions related to abandonment of employment in the identified modern awards.
As a result, determinations to remove the identified provisions were to be issued in due course. This decision reflects the FWC’s careful consideration of the modern awards’ objectives and the practical necessity of including specific provisions in them.
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