The AIRC seven-member award modernisation full bench has today (Friday 20th June 08) decided to make 15 priority modern awards; confined its model flexibility clause to agreements between employers and individuals – which cannot be offered as a condition of employment – and finalised its timetable for the process.

AIRC to make 15 priority awards

The Commission has decided to make one general “catch-all” modern award (after being directed to do so under Workplace Relations Minister Julia Gillard’s revised modernisation request), plus modern awards for one occupation (clerks in the private sector) and 13 industries:

  • coal mining;
  • glue and gelatine;
  • higher education;
  • hospitality;
  • metal and associated industries;
  • mining industry;
  • racing;
  • rail;
  • retail;
  • rubber, plastic and cablemaking;
  • security;
  • textile, clothing and footwear; and
  • vehicle manufacturing.


On October 10 AIRC will advise on a list of industries and occupations that would be given early attention even though they were not on the priority list.

Award flexibility clause

The full bench’s one-and-a-half page model award flexibility clause does not allow for agreements to be made between the employer and a majority of employees, with the Commission saying it was evident from the terms of the Minister’s award modernisation request that the clause provide for agreements between an employer and an individual employee. The bench continued that nor should the ability of an employer and an individual employee to make an agreement be in any way conditional on an agreement with a majority of employees in the area concerned.

In a win for the ACTU, the bench agreed that an arrangement made under the flexibility clause could not be offered as a condition of employment. “The terms of cl.10 suggest that an agreement ought to be available only after employment has commenced,” it said.

On the issue of which award terms could be included within the scope of the model flexibility clause, the bench listed five:

  • arrangements for when work is performed;
  • overtime rates;
  • penalty rates;
  • allowances; and
  • leave loading.

On the requirement that the clause cannot be used to disadvantage individual employees, the Commission included a definition of “disadvantage” in the model clause based on the no disadvantage test in the former Workplace Relations Act and test for ITEAs in the transitional legislation. It included a reference to the terms and conditions of federal agreements (which the Commission said may have to be reconsidered once the Federal Government’s substantive legislation was known), and to relevant Commonwealth, state or territory law.

It continued that for pre-drafting consultations for the priority modern awards all written submissions, draft modern awards and other proposals concerning the scope, content and transitional arrangements should be lodged by July 25. Pre-drafting consultations would commence in the week following and continue until August 12.

The full bench would then prepare the exposure drafts, to be published by September 12. Parties would then have until October 10 to lodge written submissions and suggestions. The full bench would hold further public consultations on October 16, 17, 20, 21 and 22, with the final date for the publication of priority awards December 19 this year.