[2013] FWC 4576 |
FAIR WORK COMMISSION |
DECISION |
Fair Work (Transitional Provisions and Consequential Amendments) Act 2009
Sch. 5, Item 6 - Review of all modern awards (other than modern enterprise and State PS awards) after first 2 years
Master Builders Australia Limited
(AM2012/48 and others)
Building, metal and civil construction industries | |
SENIOR DEPUTY PRESIDENT WATSON |
MELBOURNE, 15 JULY 2013 |
Modern Awards Review 2012 - applications to vary the Building and Construction General On-site Award 2010 - modern award varied.
[1] The Fair Work Commission (the Commission) is required by the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (the Transitional Provisions Act) to conduct a review of all modern awards, other than modern enterprise awards or State Reference Public Sector Awards, as soon as practicable after 1 January 2012 (the 2012 Review).
[2] Eight applications were made to vary the Building and Construction General On-site Award 2010 1 (Building On-site Award) in the 2012 Review:
● AM2012/48 - an application by the Master Builders Australia Limited (MBA);
● AM2012/129 - an application by the Construction, Forestry, Mining and Energy Union (CFMEU);
● AM2012/154 - an application by Australian Business Industrial (ABI);
● AM2012/160 - an application by the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU);
● AM2012/207 - an application by the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) (AMWU);
● AM2012/227 - an application by the Chamber of Commerce and Industry WA (CCIWA);
● AM2012/228 - an application by the Housing Industry Association (HIA); and
● AM2012/340 - a further application by the MBA.
[3] Variations concerning apprentices sought within the applications by the MBA, the CFMEU, the CEPU and the HIA were referred to the 2012 Review Apprentices, Trainees & Juniors Full Bench and are not dealt with in this decision. The whole of the MBA application in AM2012/340 is in this category. The application by the CEPU in AM2012/160 concerned only apprentices and was wholly referred to the 2012 Review Apprentices, Trainees & Juniors Full Bench.
[4] The HIA application in AM2012/228 sought to vary clause 7.1 to add frequency of payment as a matter subject to flexibility arrangements, to insert a new clause 17.3(g), which would have the effect of subjecting the industry specific redundancy scheme to the terms of the flexibility term in clause 7 of the Building On-site Award and to vary clause 13.3 in relation to part-time work and inserting a new clause 19.9 in relation to annualised salary provisions. These variations were dealt with by the 2012 Review Award Flexibility Full Bench. The variation to clause 7.1 was not accepted 2 and the variation to clause 17.3(g) was not pressed.3 The proposed variation of clause 13.3 and insertion of a new clause 19.9 were referred to the current proceedings before me for determination4 but were not pressed by the HIA.5
[5] The MBA application sought variations to various provisions of the Building On-site Award which it said purported to regulate work health and safety on the ground that they were not lawful. Those elements of the MBA application in AM2012/48 were considered and determined by the 2012 Review Work Health & Safety Full Bench decision of 12 December 2012. 6 Applications by the MBA, HIA and ABI to vary clause 38.2, in respect of annual leave, are being dealt with by the 2012 Review Annual Leave Full Bench.
[6] The ABI application sought variations to clause 38 - Annual leave, in respect of clause 38.2 and inserting new clauses 38.4 and 38.5. These elements of the ABI application are being dealt with by the 2012 Review Annual Leave Full Bench.
[7] The Australian Industry Group’s (Ai Group) application in AM2012/221 seeking to vary clause 7.1 of the Building On-site Award and insert a new clause 41.11 in the Manufacturing and Associated Industries and Occupations Award 2010 7 (the Manufacturing Award) to make annual leave arrangements and the cashing out of annual leave, is a matter subject to the flexibility term. The application relates to the Commission’s Model Award Flexibility clause which appears in all modern awards, including the Building On-site Award. It was dealt with by the 2012 Review Award Flexibility Full Bench.8
[8] The HIA application in AM2012/228 was amended during the course of the hearing of the matter before me in several respects:
● Variations sought in respect of specific conditions for the “residential building” sector of the building industry, including variations contained within the HIA submission of 8 March 2012 that identify some allowances as payable or not payable in respect of residential building work, were not pressed; 9
● A variation to clause 9.7 in relation to dispute resolution training leave provisions was not pressed; 10
● Variations sought in relation to the calculation of allowances (payable to employees in charge of plants at clause 21.13(b)) were not pressed; 11
● A variation of the calculation of the leading hand payment in clause 19.2 was not pressed; 12 and
● A variation in relation to the regularity of payments under clause 31.3–Payment of wages was not pressed 13 but would be pursued through the 2012 Review Award Flexibility Full Bench hearings.
[9] Further, a number of other variations proposed in the HIA application in AM2012/228 were amended during the course of the hearing, 14 being pressed in an amended form in the HIA submissions of 21 September 2012:
● Variations sought in respect of the payment of the living away from home allowance under clause 24.4, inclement weather under clause 23.8 and ordinary hours of work under clause 33 of the Building On-site Award were modified; 15
● Modification of clause 19.1–Minimum wages;
● A new clause 10.3; to the effect that clause 10.2 - “At the time of engagement an employer will inform each employee, in writing, of the terms of their engagement and, in particular, whether they are to be daily hire, full-time, part-time or casual employees” - not apply to employees engaged after 1 January 2012.
[10] The matters raised in the various applications were dealt with through the filing of written submissions and evidence on the 2012 Review website, conciliation conferences on 27 August and 6 December 2012 and hearings on 1 August, 7, 8 and 9 November, 6 December 2012 and 21 March 2013.
[11] As late as 6 December 2012, organisations appearing in the matters before me sought a further opportunity to progress two issues—simplification of reference rates and an overhaul of the allowance provisions—which were reflected in numerous variations proposed. On 11 December 2012, I decided to determine all claims on which submissions were complete and deferred consideration and determination on the reference rate issues and the allowance issues, in respect of which submissions had not been heard to allow the parties an opportunity to progress their discussions, subject to a process for their timely but separate determination within the 2012 Review. 16
[12] Correspondence by the MBA on 1 February 2013, the terms of which were settled with the CFMEU, advised that agreement was pending in relation to the definition of the concept of ordinary hours/reference rates under the Building On-site Award. An agreed position between the MBA and the CFMEU was concluded and filed in the Commission. It was placed on the website dated 6 March 2013 and the matter was listed for further conference/hearing on 21 March 2013.
[13] In respect of its application in AM2012/48, the MBA did not press for the comprehensive overhaul of allowances reflected in its application during the 2012 Review but would further address the issues in the 2014 Review. 17
[14] Similarly, the HIA advised, in correspondence dated 20 March 2013 and placed on the website, on 21 March 2013, that it no longer pursued that part of its application pertaining to a proposed new Schedule E - Schedule of Allowances, foreshadowing that it will press the claim in the 2014 Review.
[15] Further, during the hearing of 21 March 2013, the CFMEU advised that it no longer pressed 18 its application providing for a consolidated special rates allowance in compensation for all special rates, other than Hot work, Cold work, Confined space, Swing scaffold, Asbestos, Asbestos eradication, Suspended perimeter work platform, Towers allowance and Compressed air work and subject to a no-disadvantage provision.
[16] Given the agreed position reached between the CFMEU and the MBA in relation to the reference rate, and the absence of any objection from other interested parties and the decisions by the MBA, the HIA and the CFMEU not to press their broader applications in respect of allowances and the receipt of full submissions in relation to both issues, I am now in a position to determine all of the outstanding applications before me and do so in this decision.
[17] It is noted that the variations sought included expense related allowances and rates of pay, expressed as monetary amounts, at the level which existed prior to the Annual Wage Review 19 adjustment, with effect from 1 July 2013 in PR536806. The level of such allowances and rates in the clauses considered in this decision is expressed at all times at the level prescribed from 1 July 2013.
Legislative provisions applicable to the 2012 Review
[18] The legislative provisions applicable to the 2012 Review were considered in a 29 June 2012 decision of a Full Bench, 20 which considered preliminary questions as to the approach to be taken in the 2012 Review. It is relied on for the purposes of this decision. The Full Bench found:
● “[T]he legislative context for the Review is principally set out in Item 6 of Schedule 5 of the Transitional Provisions Act”. 21 It provides:
“6 Review of all modern awards (other than modern enterprise awards and State reference public sector modern awards) after first 2 years
(1) As soon as practicable after the second anniversary of the FW (safety net provisions) commencement day, FWA must conduct a review of all modern awards, other than modern enterprise awards and State reference public sector modern awards.
Note: The review required by this item is in addition to the annual wage reviews and 4 yearly reviews of modern awards that FWA is required to conduct under the FW Act.
(2) In the review, FWA must consider whether the modern awards:
(a) achieve the modern awards objective; and
(b) are operating effectively, without anomalies or technical problems arising from the Part 10A award modernisation process.
(2A) The review must be such that each modern award is reviewed in its own right. However, this does not prevent FWA from reviewing 2 or more modern awards at the same time.
(3) FWA may make a determination varying any of the modern awards in any way that FWA considers appropriate to remedy any issues identified in the review.
Note: Any variation of a modern award must comply with the requirements of the FW Act relating to the content of modern awards (see Subdivision A of Division 3 of Part 2-3 of the FW Act).
(4) The modern awards objective applies to FWA making a variation under this item, and the minimum wages objective also applies if the variation relates to modern award minimum wages.
(5) FWA may advise persons or bodies about the review in any way FWA considers appropriate.
(6) Section 625 of the FW Act (which deals with delegation by the President of functions and powers of FWA) has effect as if subsection (2) of that section included a reference to FWA’s powers under subitem (5).”
● “[I]n conducting the Review the Tribunal is able to exercise its usual procedural powers, contained in Division 3 of Part 5–1 of the FW Act. It is also uncontentious that ss.577 and 578 are relevant to the conduct of the Review.” 22
● “[A]ny variation of a modern award must comply with the requirements of the FW Act which relate to the content of modern awards. These requirements are set out in Subdivision A of Division 3 of Part 2–3 of the FW Act.” 23
● “Any variation to a modern award arising from the Review must comply with s.136 of the FW Act and the related provisions which deal with the content of modern awards.” 24
● Section 138 is relevant to the 2012 Review . . . “The precise impact of s.138 is a question best considered in the context of a particular application.” 25
● “[T]he Review is quite separate from both the 4 yearly reviews of modern awards provided for in s.156 and from the process of varying awards outside the 4 yearly review, as provided in ss.157 and 158.” 26
● “[I]t is clear that the Tribunal must consider the specific matters mentioned in subitem 6(2)” of Part 2 of Schedule 5 of the Transitional Provisions Act “and those aspects of the FW Act to which . . . [the Full Bench] previously referred, it is not clear to us what other matters may be relevant in the context of a Review.” The Full Bench was “not prepared to determine this issue in the abstract, absent any factual context, but [indicated] . . . that a cautious approach should be taken to the consideration of matters others [sic] than those mentioned in subitem 6(2) and those aspects of the FW Act” it referred to. 27
● “The award modernisation process required by Part 10A of the WR Act has been completed.” 28
● “[A]wards made as a result of the award modernisation process are now deemed to be modern awards for the purposes of the FW Act (see Item 4 of Schedule 5 of the Transitional Provisions Act). Implicit in this is a legislative acceptance that the terms of the existing modern awards are consistent with the modern awards objective” and “the considerations specified in the legislative test applied by the Tribunal in the Part 10A process is, in a number of important respects, identical or similar to the modern awards objective which now appears in s.136.” 29
● “[A]s a matter of policy and sound administration it has generally followed previous Full Bench decisions relating to the issue to be determined, in the absence of cogent reasons for not doing so” and that “[t]hese policy considerations tell strongly against the proposition that the Review constitutes a ‘fresh assessment’ unencumbered by previous Tribunal authority.” 30
● “In circumstances where a party seeks a variation to a modern award in the Review and the substance of the variation sought has already been dealt with by the Tribunal in the Part 10A process, the applicant will have to show that there are cogent reasons for departing from the previous Full Bench decision, such as a significant change in circumstances, which warrant a different outcome.” The Full Bench rejected “the proposition that the Review should proceed on the basis of a fresh assessment of modern awards unencumbered by previous Tribunal authority.” 31
● “The fact that the transition to modern awards is still occurring militates against the adoption of broad changes to modern awards as part of the Review. Such changes are more appropriately dealt with in the 4 year review, after the transition process has completed.” 32
● “[T]he Review is intended to have a narrower scope than the 4 yearly reviews provided in the FW Act.” 33
● “Part 10A of the WR Act and the award modernisation decisions of the AIRC are relevant insofar as they provide a historical context for the Review and because the Review must look at any anomalies or technical problems arising from that award modernisation process.” 34
● “[A]s a general principle, variation determinations arising out of the Review should operate prospectively, unless there are exceptional circumstances which warrant a retrospective operative date.” 35
[19] In relation to the scope of the 2012 Review, the Full Bench summarised its conclusions as follows:
“[99] To summarise, we reject the proposition that the Review involves a fresh assessment of modern awards unencumbered by previous Tribunal authority. It seems to us that the Review is intended to be narrower in scope than the 4 yearly reviews provided in s.156 of the FW Act. In the context of this Review the Tribunal is unlikely to revisit issues considered as part of the Part 10A award modernisation process unless there are cogent reasons for doing so, such as a significant change in circumstances which warrants a different outcome. Having said that we do not propose to adopt a ‘high threshold’ for the making of variation determinations in the Review, as proposed by the Australian Government and others.
[100] The adoption of expressions such as a ‘high threshold’ or ‘a heavy onus’ do not assist to illuminate the Review process. In the Review we must review each modern award in its own right and give consideration to the matters set out in subitem 6(2). In considering those matters we will deal with the submissions and evidence on their merits, subject to the constraints identified in paragraph [99] above.” 36
[20] The modern awards objective, which is significant within the 2012 Review, is as follows:
“134 The modern awards objective
What is the modern awards objective?
(1) FWA must ensure that modern awards, together with the National Employment Standards, provide a fair and relevant minimum safety net of terms and conditions, taking into account:
(a) relative living standards and the needs of the low paid; and
(b) the need to encourage collective bargaining; and
(c) the need to promote social inclusion through increased workforce participation; and
(d) the need to promote flexible modern work practices and the efficient and productive performance of work; and
(e) the principle of equal remuneration for work of equal or comparable value; and
(f) the likely impact of any exercise of modern award powers on business, including on productivity, employment costs and the regulatory burden; and
(g) the need to ensure a simple, easy to understand, stable and sustainable modern award system for Australia that avoids unnecessary overlap of modern awards; and
(h) the likely impact of any exercise of modern award powers on employment growth, inflation and the sustainability, performance and competitiveness of the national economy.
This is the modern awards objective.
When does the modern awards objective apply?
(2) The modern awards objective applies to the performance or exercise of FWA’s modern award powers, which are:
(a) FWA’s functions or powers under this Part; and
(b) FWA’s functions or powers under Part 2-6, so far as they relate to modern award minimum wages.
Note: FWA must also take into account the objects of this Act and any other applicable provisions. For example, if FWA is setting, varying or revoking modern award minimum wages, the minimum wages objective also applies (see section 284).”
Variations proposed and not opposed
[21] There are six proposed variations which were not opposed and which can be made, subject to the Commission’s satisfaction that the variations should be made having regard to Item 6 of Part 2 of Schedule 5 of the Transitional Provisions Act. They are dealt with immediately below:
1. The HIA application to vary clause 25.5—Travelling outside radial areas in relation to fares and excess travelling allowances (Note. Other elements of the HIA application in respect of clauses 25.2 to 25.8 are dealt with separately below)
[22] In its initial application, the HIA sought a variation to clause 25.5–Travelling outside radial areas of the Building On-site Award, to provide clarity as to which radial area should be used for the purposes of calculating the excess entitlement under clause 25.5. It submitted that ambiguity exists as a result of the current terms of clause 25.5, which differs from the wording in the National Building and Construction Industry Award 2000 37 (NBCIA), and that amendment is necessary to simplify the clause so that the radial area for the purposes of this clause is clear.
[23] The HIA variation was discussed during the conference held on 6 December 2012, resulting in some level of agreement as to a variation to provide clarity within clause 25.5 and an intention of the parties to continue discussions on the drafting of an appropriate variation. 38
[24] In correspondence of 12 December 2012, the HIA advised of an agreed proposed variation and its terms. On 13 December 2012, I issued directions affording interested parties the opportunity to make written submissions in relation to the amended variation by 19 December 2012. On 18 December 2012, the CFMEU advised its consent to the proposed variation on behalf of itself, the AMWU, the AWU and the CEPU. No other submissions were received.
[25] On 4 January 2013, the HIA filed correspondence confirming the consent position recorded in its 12 December 2012 correspondence. However, on 10 January 2013, notwithstanding the absence of any submissions in relation to the directions of 13 December 2012, other than that of the CFMEU on 18 December 2012, the HIA advised that it had been brought to its attention that not all interested parties could consent to the variation to clause 25.5 in the form it proposed and that the parties would meet again in relation to it on 17 January 2013. No subsequent information concerning the amended clause 25.5 proposed by the HIA was provided. As a result, a further notice of listing of 7 March 2013 provided an opportunity for any further and final positions to be put in relation to the amended clause 25.5 proposed in the HIA correspondence of 12 December 2012.
[26] No further submissions were received.
[27] The amended terms of clause 25.5 as proposed, with the agreement of other interested parties and without objection by any interested party are as follows:
“25.5 Travelling outside radial areas
(a) Where an employer requires an employee to travel daily from inside one radial area mentioned in clauses 25.2, 25.3 and 25.4, to work on a construction site outside that area, the employee will be entitled to:
(i) the allowance prescribed in clause 25.2 for each day worked; and
(ii) in respect of travel from the designated boundary to the job and return to that boundary:
[28] I am satisfied that the variation to clause 25.5 now proposed provides clarity as to its operation and should be made to give effect to the modern awards objective in s.134(g), to address any practical confusion arising from the current terms. The variation does not materially alter the relevant terms and conditions. Clause 25.5 will be varied in the terms proposed, subject to minor modification to reflect the consequential amendment arising out of my decision in relation to reference rates below and consistent numbering:
25.5 Travelling outside radial areas
Where an employer requires an employee to travel daily from inside one radial area mentioned in clauses 25.2, 25.3 and 25.4, to work on a construction site outside that area, the employee will be entitled to:
(a) the allowance prescribed in clause 25.2 for each day worked; and
(b) in respect of travel from the designated boundary to the job and return to that boundary:
(i) the time outside ordinary working hours reasonably spent in such travel, which will be paid at the ordinary time hourly rate, and calculated to the next quarter of an hour with a minimum payment of one half an hour per day for each return journey; and
(ii) any expenses necessarily and reasonably incurred in such travel, which shall be $0.46 per kilometre where the employee uses their own vehicle.
2. The HIA application to vary clause 37–Penalty rates–in relation to meal and rest breaks when working overtime
[29] The HIA application sought to vary clause 37–Penalty rates, to provide clarity as to the breaks to which an employee is entitled when working on a Saturday or Sunday and the interaction between clauses 35–Meal breaks and 37 of the Building On-site Award.
[30] During the course of the 6 December 2012 hearing, it was evident that there was no disagreement as to the intended operation of clauses 35 and 37 and some level of support for the variation to provide greater clarity. Following the conference, my 11 December 2012 statement noted ongoing discussions and advised that if full agreement was reached, the HIA would file the proposed agreed clauses, and they would be posted on the Commission’s website, with interested parties being afforded the opportunity to make written submissions within a week of it being posted. 39 The discussions between the HIA and the CFMEU ultimately led to an agreed position recorded in HIA correspondence of 3 January 2013. It was posted on the website. No further submissions were received in relation to the proposed agreed variation.
[31] I am satisfied that the proposed variation will provide greater clarity as to the taking of breaks during weekend work and the interaction between clauses 35 and 37 of the Building On-site Award. I am satisfied that the agreed variation will better achieve the objective of simple, easy to understand modern awards.
[32] Clause 37—Penalty rates of the Building On-site Award will be varied to replace the existing clauses 37.6, 37.7 and 37.8, incorporating the consequential amendment to clauses 37.7 and 37.8 arising out of my decision in relation to reference rates below, as follows:
37.6 An employee working overtime on Saturday or Sunday must be allowed a paid rest period of 10 minutes between 9.00 am and 11.00 am. This provision operates in place of clause 35.3(a).
37.7 An employee working overtime on a Saturday or working on a Sunday must be allowed a paid crib time of 20 minutes after four hours work, to be paid for at the ordinary time hourly rate of pay but this provision will not prevent any arrangements being made for the taking of a 30 minute meal period, the time in addition to the paid 20 minutes being without pay. This provision operates in place of clause 35.1(a).
37.8 In the event of an employee being required to work in excess of a further four hours, the employee must be allowed to take a paid crib time of 30 minutes which will be paid at the ordinary time hourly rate of pay. This provision operates in place of clauses 35.3(a) and (b).
3. Reference rate issue
[33] The MBA’s initial application sought variations directed to providing greater clarity in respect of reference rates throughout the Building On-site Award. It submitted that, whilst most allowances are defined under the Building On-site Award as a proportion of the “standard rate”, which is described at clause 3.1 as the minimum wages as expressed for CW/ECW 3 workers under clause 19.1, i.e. 19.1(a) base rates, the reference rates for a range of other entitlements under the Building On-site Award are less clear. It submitted that many loadings, redundancy payments, distant work entitlements etc., are often described as being payable at “ordinary time rates of pay”, “ordinary rates”, “time and a half” or “double time” etc., which are not defined under the Building On-site Award. The MBA submitted that this resulted in employers being often uncertain about which rates should be paid upon redundancy, or to which rates loadings should be applied, proposing that reference rates under the Building On-site Award be specifically defined, based both on the penalty reference rate definitions contained in the NBCIA and common law precedent on the meaning of “ordinary time rates of pay”.
[34] As already noted in this decision, organisations appearing sought a further opportunity to progress the simplification of reference rates. They utilised that opportunity productively, resulting in a variation agreed between the CFMEU, the HIA, the MBA, the AWU, the AMWU and the CEPU which was conveyed to the Commission in a submission and correspondence of 6 March 2013, which was posted on the website.
[35] The variations proposed are as follows:
Clause |
Variation proposed |
3 |
By inserting the following new definitions in alphabetical order in clause 3: Double time means the ordinary time hourly rate multiplied by 200% Double time and a half means the ordinary time hourly rate multiplied by 250% Ordinary time hourly rate means: ● for daily hire employees the hourly rate calculated in accordance with clause 19.3(a);
Time and a half means the ordinary time hourly rate multiplied by 150% |
13.2 |
By deleting clause 13.2 and inserting the following: 13.2 For each ordinary hour worked, a part-time employee will be paid no less than the ordinary time hourly rate for the relevant classification and pro rata entitlements for those hours. An employer must inform a part-time employee of the ordinary hours of work and the starting and finishing times. |
15.3(a) |
By deleting clause 15.3(a) and inserting the following: (a) When overtime and/or shiftwork are worked the relevant penalties and allowances prescribed by the award will apply, based on the applicable ordinary time hourly rate. No apprentice/trainee will work overtime or shiftwork on their own or without supervision. |
17.3(c) |
By deleting clause 17.3(c) and inserting the following: (c) Week’s pay means the ordinary time hourly rate at the time of termination multiplied by 38. Hours pay means the ordinary time hourly rate at the time of termination. |
19.1(b) |
By deleting clause 19.1(b) and inserting the following: (b) The rates in clause 19.1(a) prescribe minimum classification rates only. The payment of additional allowances is required by other clauses of this award in respect of both weekly and hourly payments. The ordinary time hourly rate for an employee’s classification is set out in clause 3. |
19.4(a) |
By deleting clause 19.4(a) and inserting the following: (a) A new employee, if engaged and presenting for work to commence employment and not being required, will be entitled to at least eight hours’ work or payment therefore at ordinary time hourly rates, plus the appropriate allowance prescribed by clause 25—Fares and travel patterns allowance. |
21.7 |
By deleting clause 21.7 and inserting the following: 21.7 Carpenter-diver allowance Employees undertaking work normally performed by a carpenter-diver must be paid an additional 4.5% of the hourly standard rate per hour extra which will be regarded as part of the ordinary time hourly rate for all purposes of the award. |
21.8(b) |
By deleting clause 21.8(b) and inserting the following: (b) This allowance must be paid instead of all special rates prescribed in clause 22—Special rates, except clauses 22.2(b) and 22.2(c) and will be regarded as part of the ordinary time hourly rate. |
22.2(m) |
By deleting clause 22.2(m) and inserting the following: (m) Furnace work An employee engaged in the construction of, or alteration or repairs to, boilers, flues, furnaces, retorts, kilns, ovens, ladels, and similar refractory work must be paid an additional 8.5% of the hourly standard rate per hour. This additional rate will be regarded as part of the ordinary time hourly rate for all purposes. |
22.2(n) |
By deleting clause 22.2(n) and inserting the following: (n) Acid work An employee required to work on the construction of or repairs to acid furnaces, acid stills, acid towers and all other acid resisting brickwork must be paid an additional 8.5% of the hourly standard rate per hour. This additional rate will be part of the ordinary time hourly rate for all purposes. |
22.3(l) |
By deleting clause 22.3(l) and inserting the following: (l) Brewery cylinders—painters (i) A painter in brewery cylinders or stout tuns must be allowed a 15 minute spell in the fresh air at the end of each hour worked. Such 15 minutes will be counted as working time and will be paid for as such. (ii) The rate for working in brewery cylinders or stout tuns will be at the rate of time and a half. When an employee is working overtime and is required to work in brewery cylinders and stout tuns the employee must, in addition to the overtime rates payable, be paid one half of the ordinary time hourly rates. |
23.7 |
By deleting clause 23.7 and inserting the following: 23.7 Where an employee is not able to perform any work at any location because of inclement weather, the employee will receive payment at the ordinary time hourly rate for ordinary hours. Payment for time lost due to inclement weather is subject to a maximum of 32 hours pay in any four week period for each employee. Payment is subject to adherence to the terms of this clause. |
24.7(a)(i) |
By deleting clause 24.7(a)(i) and inserting the following: (i) An employee must:
|
25.5 |
By deleting clause 25.5 and inserting the following: 25.5 Travelling outside radial areas Where an employer requires an employee to travel daily from inside one radial area mentioned in clauses 25.2, 25.3 and 25.4, to work on a construction site outside that area, the employee will be entitled to: (a) the allowance prescribed in clause 25.2 for each day worked; and (b) in respect of travel from the designated boundary to the job and return to that boundary: (i) the time outside ordinary working hours reasonably spent in such travel, which will be paid at the ordinary time hourly rate, and calculated to the next quarter of an hour with a minimum payment of one half an hour per day for each return journey; and (ii) any expenses necessarily and reasonably incurred in such travel, which shall be $0.46 per kilometre where the employee uses their own vehicle. |
34.1(b) |
By deleting clause 34.1(b) and inserting the following: (b) When an employee is employed continuously (inclusive of public holidays) for five shifts Monday to Friday, the following rates will apply: (i) afternoon and night shift—ordinary time hourly rate plus 50%; (ii) morning and early afternoon shifts—ordinary time hourly rate plus 25%. |
34.1(d) |
By deleting clause 34.1(d) and inserting the following: (d) In the case of broken shifts (i.e. less than 38 ordinary hours worked over five consecutive shifts Monday to Friday) the rates prescribed will be time and a half for the first two hours and double time thereafter. |
34.1(i) |
By deleting clause 34.1(i) and inserting the following: (i) All work in excess of shift hours, Monday to Friday, other than holidays must be paid for at double time (excluding shift rates). |
34.2(j) |
By deleting clause 34.2(j) and inserting the following: (j) Shift allowances A shiftworker whilst on afternoon or night shift other than on a Saturday, Sunday or holiday must be paid their ordinary time hourly rate plus 15%. |
34.2(n) |
By deleting clause 34.2(n) and inserting the following: (n) Permanent night shift An employee who (except at their own request pursuant to clause 34.2(b)(i)): (i) during a period of engagement on shift, works night shift only; or (ii) remains on a night shift for a longer period than four successive weeks; or (iii) works on a night shift which does not rotate or alternate with another shift or with day work so as to give the employee at least one third of their working time off night shift in each cycle; must, during such engagement, period or cycle be paid their ordinary hourly rate plus 30% for all time worked during ordinary working hours on such night shift. |
34.2(o) |
By deleting clause 34.2(o) and inserting the following: (o) Call outs A shiftworker called out to work after the expiration of their customary working time and after they have left work for the shift, or is called out to work on a day on which they are rostered off, must be paid for a minimum of three hours work calculated at double time for each occasion the shiftworker is called out. Provided that if called out on a public holiday, payment must be calculated at the rate prescribed in clause 37.9 of this award. |
36.5 |
By deleting clause 36.5 and inserting the following: 36.5 If an employer requires an employee to work during the time prescribed by clause 35.1 for finishing of work, the employee must be paid at the rate of double time for the period worked between the prescribed time of finishing and the beginning of the time allowed in substitution for the meal break. If the finishing time is shortened at the request of the employee to the minimum of 30 minutes prescribed in clause 35.1 or to any other extent (not being less than 30 minutes) the employer will not be required to pay more than the ordinary time hourly rate of pay for the time worked as a result of such shortening, but such time will form part of the ordinary working time of the day. |
37.7 |
By deleting clause 37.7 and inserting the following: 37.7 An employee working overtime on a Saturday or working on a Sunday must be allowed a paid crib time of 20 minutes after four hours work, to be paid for at the ordinary time hourly rate of pay but this provision will not prevent any arrangements being made for the taking of a 30 minute meal period, the time in addition to the paid 20 minutes being without pay. |
37.8 |
By deleting clause 37.8 and inserting the following: 37.8 In the event of an employee being required to work in excess of a further four hours, the employee must be allowed to take a paid crib time of 30 minutes which will be paid at the ordinary time hourly rate of pay. |
[36] The CFMEU correspondence noted that consequential variations would or might be required in respect of clauses 14.5, 14.6, 14.7 and 19.3 but the consequential variations would depend on the determination of other variations proposed in respect of the substantive provisions in this decision. It also noted that consequential variation of clauses 19.7 and 19.8 would depend on the outcome of the separate Full Bench dealing with apprentices.
[37] Finally, the CFMEU noted that the unions believe no change should be made to clause 38.2(a) as it highlights that the base rate of pay referred to in the Fair Work Act 2009 (the Act) does not apply.
[38] The position reflected in the currently proposed variations, if accepted, disposes of numerous MBA claims: in respect of clauses 3.1, 17.3(c), 19.4(a), 22.3(l)(ii), 23.6, 23.7, 24.7(a)(i), 34.1(b)(i) and (ii), 34.1(d), 34.1(i), 34.2(i)–(k), 34.2(m)–(o), 36.2, 36.5, 36.11, 36.13, 37.1, 37.3, 37.5, 37.7, 37.8 and 37.9.
[39] In a statement of 7 March 2013, 40 all parties with an interest in the Building On-site Award were afforded an opportunity to make submissions on the reference rate variations, as set out in the CFMEU correspondence and recorded above, through a conference/hearing listed on 21 March 2013.
[40] On 15 March 2013, correspondence from the Ai Group was posted on the website for the matter supporting the combined proposal, save for one matter. Specifically, it indicated that the word “time” has been missed in the last sentence in the proposed clause 34.2(n), as highlighted below:
“(iii) works on a night shift which does not rotate or alternate with another shift or with day work so as to give the employee at least one third of their working time off night shift in each cycle;
must, during such engagement, period or cycle be paid their ordinary time hourly rate plus 30% for all time worked during ordinary working hours on such night shift.”
[41] No other written submissions were received. In the hearing of 21 March 2013, no objection was taken to the amendment proposed by the Ai Group. In a statement of 22 March 2013, 41 a further opportunity was provided for submissions in respect of the Ai Group amendment. None were made.
[42] I am satisfied that the additional definitions and the consequential variations contained in the CFMEU correspondence of 6 March 2013, amended in respect of clause 34.2(n) as proposed by the Ai Group, provide clarity and consistency as to the calculation of various entitlements under the Building On-site Award by reference to the definitions proposed. As noted by the MBA, the definitions now proposed more closely correspond with the definitions within s.16 of the Act. I am satisfied that the variations proposed should be made to give effect to the modern awards objective in s.134(g), to address uncertainty arising from the current terms and does not materially alter the relevant terms and conditions. The Building On-site Award will be varied in the agreed terms proposed, subject to the Ai Group amendments to clause 34.2(n), unless otherwise varied in this decision.
[43] Any consequential variations which are in respect of clauses 14.5, 14.6, 14.7 and 19.3, having regard to my determination of other variations proposed in respect of the substantive provisions in this decision, may be sought by further written submissions by no later than 15 August 2013. Any consequential variation of clauses 19.7 and 19.8, if necessary following the decision of the Apprentice, Trainees & Juniors Full Bench may be sought by further written submissions by no later than two weeks after the decision, if not already addressed in any determination made by that Full Bench.
4. MBA application to vary clause 19.5–Mobile cranes capacity adjustment formula
[44] The MBA application to vary clause 19.5 is directed to clarifying that the standard weekly rate is divisible by 38 hours per week and multiplied by actual hours worked for part-time employees and retained as a cumulative allowance.
[45] The MBA has not established an issue with the terms of clause 19.5, requiring a variation in light of error or technical problems or its operation in a manner which requires variation to meet the modern awards objective, including as a result of uncertainty. The adjustment formula is an addition to the weekly base rate for Level 5 (CW/ECW 5) and above. The weekly rate, inclusive of the mobile cranes capacity adjustment formula, is calculated as an hourly rate in accordance with clause 13.2. The variation to clause 19.5 is refused.
5. MBA variation to remove reference to definition of “new construction work on a multistorey building” in clause 3
[46] The MBA sought to remove the definition of “new construction work on a multistorey building” in clause 3—Definitions and interpretation of the Building On-site Award on the basis that it performs no function. 42 The only other submission was put by the CFMEU, which supported the variation.43
[47] Other than in the definition in clause 3, the term “new construction work on a multistorey building” does not appear in the Building On-site Award. It serves no purpose, is inconsistent with a simple, easy to understand award. It will be deleted from clause 3.
6. MBA application to vary clause 28.1 to remove an erroneous reference to clause C.3.1
[48] Clause 28.1 states that “[t]he provisions of Schedule C will apply in respect of traineeships, save that the following minimum wage rates [in clauses 28.2 and 28.3] will apply instead of those within clause C.3.1 of Schedule C”. Clause C.3.1 (and clause C.3 as a whole) of Schedule C deals with its coverage. The relevant minimum rates are in fact found in clause C.5.1 of Schedule C. The MBA submitted reference to clause C.3.1 of Schedule C in clause 28.1 appears to be in error and should be to clause C.5.1.44 The CFMEU, although agreeing that there is an incorrect reference, proposed that any variation be dealt with by the 2012 Review Apprentices, Trainees & Juniors Full Bench. 45 No interested party opposed the variation.
[49] It is clear that the reference to clause C.3.1 is an error and should be a reference to clause C.5.1. The Building On-site Award will be varied to correct the error. Given the error is peculiar to the Building On-site Award, there is no reason to distract the 2012 Review Apprentices, Trainees & Juniors Full Bench from the major issues it is considering, in order to correct a referencing error of this type. The variation will be made to change the reference to clause C.5.1.
Other variations proposed
1. HIA application to vary clause 23.8–Inclement weather
[50] The HIA submitted that there is a lack of clarity as to when the “four week period” referenced in clause 23.8 is to commence and conclude. It submitted that whilst the NBCIA specified in clause 21.7.1 an initial date, from which subsequent four week periods are calculated, the Building On-site Award is silent on this issue, creating confusion.
[51] In its application the HIA sought to remove the uncertainty by inserting a new clause 23.9, in similar terms to clause 21.7.1 of the NBCIA:
“23.9 The first four week period shall be deemed to have commenced on 11 January 1999 and subsequent periods shall commence at four weekly periods thereafter.”
[52] On reflection and after discussions with other parties, HIA proposed another, more appropriate time of 1 January 2010 to more closely align with the introduction of the modern award and, in addition, altered the variation sought to also enable the parties to the Building On-site Award to use an alternative industry calendar. 46
[53] The MBA submitted that the current provisions of the inclement weather clause permit inclement weather calendars to continue to be applied and supported the HIA variation to the extent that it makes that position clear.
[54] The CFMEU was not opposed to the intent of the HIA variation but suggested that it be a new clause 23.8(b) so that the renumbering of the rest of the clause is not needed, and that the date of 28 December 2009 be used as it is as close as possible to the start of the modern award whilst still being in line with the 2010 inclement weather calendar and its predecessor calendars. It opposed the start date of 1 January 2010, on the basis that it is inconsistent with current calendars, with 28 December 2009 being consistent with the existing calendar that applied prior to the Building On-site Award coming into operation. It submitted that the second element of the amended HIA variation is not needed. 47
[55] In the hearing the HIA accepted the slightly earlier date proposed by the CFMEU 48 and the inclusion of the date in a new clause 23.8(b),49 rather than as a new clause 23.9.
[56] Both the MBA and CCIWA strongly contended that the provision should allow flexibility for the use of other calendars. 50
[57] I accept that the absence of a starting date of the inclement weather calendar creates a technical problem, creating uncertainty as to the operation of clause 23.8 of the Building On-site Award and that a variation is required to remedy that problem. Having regard to the agreed position between the CFMEU and the HIA, but the concerns of the MBA and CCIWA in relation to employers currently utilising alternate calendars, clause 23.8 will be varied to renumber clause 23.8 as 23.8(a) and to insert a new clause 23.8(b) in the following terms:
“The first period will be deemed to commence on the first Monday after 28 December 2009 and subsequent periods will commence at four weekly periods thereafter, provided that a calendar that was being used immediately before 15 July 2013 may still apply.”
2. CCIWA application: for the inclusion of remote work provisions–clause 3.1 (definitions of remote work and remote work cycles), vary clauses 25.10(a)(ii), 34, 35.3(c) (renumbered as 36.3(c)) and 36.2 (renumbered as 37.2)) to include “shift work” and “remote work”, and insert a new clause 35, prescribing terms and conditions applicable to remote work
Submissions
[58] CCIWA brought the application on the basis that the Building On-site Award does not meet the modern awards objective in s.134 of the Act, is not operating effectively, and operates with anomalies for construction work undertaken pursuant to cycle work arrangements in remote locations. It submitted that paragraph 33AA of the consolidated Award Modernisation Request, concerning work in remote locations, was not considered in the context of the Building On-site Award during the award modernisation process.
[59] CCIWA submitted that it is widely accepted that due to the regional and remote locations of resource projects, long distance commuting, such as fly in/fly out (FIFO), drive in/drive out, or bus in/bus out (together, Long Distance Commuting) is common and widespread in regional and remote location resource projects across Australia, but primarily in Western Australia and Queensland. It submitted that construction work is undertaken on and in relation to resource projects and is work which the Building On-site Award covers, often in regional and remote locations and is temporary in nature. It submitted that workers engaged to undertake construction work in remote locations are commonly engaged on Long Distance Commuting working arrangements.
[60] CCIWA submitted that the Building On-site Award in its current form contemplates that work will be undertaken in remote locations, 51 but is restrictive in the way it addresses rostering and hours of work, is not sufficiently flexible to allow for Long Distance Commuting work arrangements, and does not reflect current working arrangements.
[61] CCIWA submitted that its proposed variation gives effect to roster arrangements, including hours, work rosters etc., presently operating and applicable to construction work being undertaken pursuant to cycle work arrangements in remote locations in the construction industry and gives effect to the modern awards objective to promote flexible modern work practices and the efficient and productive performance of work. It submitted that the variation, based on clauses in the Mining Industry Award 2010 52 (Mining Award) that address the circumstances applicable to remote “cycle work”, seeks the following:
“(a) inserting definitions for ‘remote works’ and ‘remote work cycle’ (proposed definitions in clause 3.1);
(b) in relation to the working of a remote work cycle:
(i) allowing for the averaging of ordinary hours over a remote work cycle involving working and non-working days (proposed clauses 35.2(b) and 35.3);
(ii) increasing ordinary hours from 8 to 10 (and 12 by agreement) (proposed clauses 35.2(c), 35.2(d) and 35.2(e));
(iii) changing the spread of hours from 7.00 am to 6.00 pm Monday to Friday, to 6.00 am to 6.00 pm Monday to Friday (or otherwise by agreement) (clauses 35.2(c) and 35.2(e));
(iv) maximum weekly hours to be averaged over a period of 26 weeks (proposed clause 35.4);
(v) allowing rostered days off to be rostered in accordance with an employee’s roster cycle (ie during any off-duty period) (proposed clause 35.5); and
(vi) allowing rosters to be varied with 48 hours notice, or at any time in the event of an emergency (proposed clauses 35.6 and 35.7); and
(c) clarifying that clause 34.2(b)(ii) of the Construction Award does not apply to remote cycle work or remote work (clause 34.2(b)(ii) prevents shiftworkers in the civil construction sector working more than eight shifts in any nine consecutive days) (proposed clause 35.2(f)).” 53
[62] The full variations sought by CCIWA, including the substantive proposed remote work provision in clause 35, are appended to this decision as Attachment A.
[63] The CCIWA application was supported by the Ai Group, ABI, the HIA and the MBA. The MBA cited ABS data that 345,000 of a total of 352,000 firms in the construction industry were non-employing companies or employed less than 20 employees 54 which, it submitted, supported the difficulty of entering into enterprise agreements to work on remote work projects.
[64] The CFMEU opposed the CCIWA application, submitting that:
“ the variation to the Award Modernisation Request regarding remote work is not relevant to the Review;
● there has been no significant change in circumstances . . .;
● the award as it currently stands meets the modern award [sic] objective . . .;
● the anomaly that the CCIWA complain of is not an anomaly contemplated by item 6.2 of Schedule 5 of the Transitional Provisions Act;
● the variations proposed are unnecessary and a reduction of the safety net; and
● that the variations proposed are contrary to the objectives of the FW Act, particularly s.3(f), and the modern award [sic] objective contained in s.134(1) of the FW Act . . .” 55
[65] The CFMEU submitted that the consolidated Award Modernisation Request is not relevant to the 2012 Review process, given Item 14(4) of Schedule 5 of the Transitional Provisions Act, a proposition, it submitted, that is supported by the 29 June 2012 Penalty Rates Full Bench preliminary decision. 56 Similarly, it submitted, the Mining Award provisions based on the consolidated Award Modernisation Request are not relevant.
[66] The CFMEU submitted that construction industry pre-modern awards have recognised and provided appropriate terms and conditions for remote work since the early 1990s, recognising FIFO arrangements since 1976. It submitted that up until 1989, the NBCIA was a paid rates award, with project appendices for specific remote work projects, with enterprise agreements governing such projects from 1993. It submitted that the majority of enterprise agreements contain hours of work provisions that reflect eight ordinary hours per day, Monday to Friday, inclusive of time worked for rostered day off (RDO) accruals with overtime applying for the other hours worked.
[67] The CFMEU submitted that the pattern of work claimed by CCIWA to be reflective of remote project work is in fact common across the broader construction industry: the working of 10 hour days Monday to Friday and working on Saturdays or Sundays is common across the overwhelming majority of major construction projects, irrespective of location. Working seven days a week and large numbers of overtime hours are a common feature of construction projects, especially as the deadline for completion of a project approaches. 57 The CFMEU submitted that it is common across the construction industry, including on remote projects, where 10 hours per day are worked Monday to Friday for the first eight hours to be paid at ordinary rates and the remainder paid at penalty rates, with any time worked on a Saturday or Sunday is paid at overtime rates. It submitted that the majority of the agreement extracts attached to the statement of Mr D Lee, General Manager Construction Services Chamber of Commerce and Industry of Western Australia (Inc), supported this contention with only three of the 21 respondents to the Deloitte survey attached to Mr Lee’s statement averaging the maximum ordinary hours of 36.
[68] The CFMEU submitted that the variation sought would diminish the award safety net by enabling employers to require their employees to work 47 and a half ordinary hours per week Monday to Friday, clearly reducing the safety net of the modern award, which currently provides for a maximum of 38 ordinary hours per week at ordinary time rates.
[69] The CFMEU submitted that the issue of ordinary time hours was a contested issue in respect of the Building On-site Award in the award modernisation process, with several employer organisations seeking more flexible provisions at that time. The CCIWA in a 31 October 2008 submission called for the averaging of the 38 hour week over an extended period, saying it was necessary for work carried out on a FIFO basis. The current provisions were determined having regard to those proposals and the terms of existing industrial instruments at the time.
[70] The CFMEU submitted that the variation is unnecessary in light of flexibility to provide for distant work within the Building On-site Award—clauses 7, 24.7, 25.3, 33.1, 35, 36, 38 and 41.2.
[71] The CFMEU submitted that from an employee’s perspective the proposed variation would be unfair to employees as it will reduce their safety net by:
“ Increasing the number of ordinary hours an employee can be required to work each day to 10 hours
● Permit employers to dictate the roster arrangements without any consultation or agreement with their employees or the employee’s representatives
● Removes an employee’s right to be consulted over an increase in the spread of hours during which ordinary hours can be worked
● Removes the right of an employee, working shifts on civil construction projects, to a break after working 8 consecutive shifts
● Permits employers to require employees to work more than 38 ordinary hours in a week (eg on a 4 in 1 roster the averaging system would mean working 47.5 ordinary hours in each of the 4 weeks on the work site)
● Removes the employees right to be paid weekly and allows employers to dictate that employees are paid monthly
● Allows employers to dictate when rostered days off are taken
● Removing the obligation of the employer to seek employees agreement to alter start and finishing times”. 58
[72] The CFMEU submitted that the CCIWA variation does not reflect industry arrangements for remote work—rest and recreational (R & R) arrangements, travel to and from site and additional payments. It submitted that it is inappropriate to take one part or a clause of an agreement in isolation and that the provisions of the whole agreement are relevant to determine the ordinary hours of work that apply under the agreement. It submitted that agreements relied on by CCIWA demonstrate that in the overwhelming majority of cases the ordinary hours of work each day are eight hours, and up to 40 ordinary hours per week (inclusive of RDO accruals) and that where an agreement contains a roster cycle which includes a period of R & R, such time off is made up of paid and unpaid R & R leave, project leave, accrued RDOs, paid annual leave and unpaid annual leave.
[73] The AMWU supported the CFMEU submission in relation to current practice reflected in enterprise agreements, submitting that they provide for additional remote provisions including:
● payment for travel;
● provisional accommodation;
● compensation for accommodation, if not provided;
● income protection;
● travel arrangements for demobilisation;
● R & R;
● payment for travel time; and
● additional payments, such as special allowances and project incentive payments.
[74] More generally, the AMWU submitted that remote rosters should remain the preserve of industrial agreements, principally because agreements are better able to take into account the conditions of the enterprises and projects they are designed to cover and would have been the subject of give and take in the bargaining process, where other provisions dealing with entitlements and responsibilities would have also been argued over as compensation for the demands required of workers performing under remote work rosters. It further submitted that if a specific remote clause is to be inserted into the Building On-site Award it should not be confined to those clauses that CCIWA are seeking to have inserted; rather they should be accompanied by additional clauses which are also representative of the working conditions which are presently operating in practice in connection with remote work.
[75] The AWU also opposed the variation on three bases:
● CCIWA has misconstrued the purpose of the amendment to the Award Modernisation Request in paragraph 33AA, seeking to make a fresh assessment of possible hours of work and working arrangements. The AWU submitted that paragraph 33AA of the consolidated Award Modernisation Request was intended to provide a transition from established remote work arrangements at the time to the modern award and was not intended to capture short-term project work and certainly not to lock in arrangements in terms of hours of work and rostering for all future short-term projects. The AWU submitted that only two of the agreements relied on by the CCIWA were in place at the time of the award modernisation process in respect of the Building On-site Award.
● The application seeks to import the hours of work and rostering arrangements from the Mining Award by reference to paragraph 33AA of the consolidated Award Modernisation Request, when only one element in the proposed CCIWA variation was determined by the Award Modernisation Full Bench having regard to the amendment to the Award Modernisation Request, with the remainder being included in the Mining Award by reference to the then existing industrial instruments and the industry circumstances of the mining industry. Clauses 17.2(a) and (b) and 17.3(a) and (b) of the Mining Award were in the previous awards operating in the mining industry and were not changed. The only provision that was amended by the Award Modernisation Full Bench having regard to this requirement was to include a term that permits rostering arrangement and working hours presently operating in practice in those locations to continue after the making of the modern award. Otherwise, the only changes made between the exposure draft and the modern award made as the Mining Award was to provide for 10 ordinary hours rather than 12 as a general provision and the authority to average hours being increased from 12 to 26 weeks, with each provision having regard to the terms of pre-existing instruments.
● The proposed variation is not based on the evidence about how hours of work and rostering arrangements exist in practice by reference to remote work in the industry. The AWU relied on the evidence of Mr P Asplin, Assistant Branch Secretary of the AWU in Western Australia, that, in relation to remote work in Western Australia, the preference of the CCIWA is to negotiate pattern agreements and it is relatively easy to negotiate enterprise agreements in construction industries in relation to remote projects given the standard terms and conditions that apply. His evidence was also that in his experience the hours of work and rostering on construction projects, whether remote or otherwise, tend to be arranged so that eight ordinary hours are worked Monday to Friday and the overtime is worked in addition to that either at the end of the eight hour day and/or on Saturdays and Sundays, with ordinary hours of work of 36 ordinary hours per week in remote construction projects and employees generally working a 10 hour day that that is made up of a component of eight ordinary hours and then overtime.
[76] The CEPU also opposed the CCIWA application, submitting that the provisions sought were inconsistent with current practice, even the evidence of Mr Lee, 59 which establishes, for example, that 10 hours worked on Monday to Friday are worked on the basis of eight hours at ordinary time (7.2 plus 0.8 RDO accrual) and two hours at overtime rates.
Evidence
[77] The evidence brought in relation to the CCIWA application focussed on roster arrangements and working hours presently operating in practice for remote work covered by the Building On-site Award. That evidence came in the form of:
● A statement by Mr D Lee, 60 based on his experience providing industrial relations services to numerous major projects;
● A report by Deloitte Access Economics commissioned by CCIWA - Rostering arrangements for remote construction projects in Australia, 61 21 September 2012, which reports the results of a survey undertaken by a “series of one hour telephone interviews with a sample of 21 Australian construction companies”. Whilst the authors acknowledge that the “sample may not be fully representative of the remote construction industry as a whole”,62 it is said to be indicative of remote work arrangements in respect of the construction industry of the companies surveyed.
● Evidence brought by the unions from experienced officers representing the interests of the unions’ members in resource sector project work:
● The terms of enterprise agreements operating in respect of construction activity on remote work resource projects.
[78] None of the witnesses were required for cross-examination.
[79] The unchallenged evidence of Mr Lee is that a significant amount of construction work is undertaken in regional and remote areas of Australia through the growth of the resources industry which requires the construction of large engineering projects and civil works. Such construction activity is undertaken at the earlier part of such projects and is of limited duration (less than two years in a significant majority of cases 63). It is estimated by the Chamber of Mineral and Energy of WA that in the construction phase of resource projects up to 2015, 92% of that workforce will be FIFO.64
[80] Mr Lee’s evidence was that compaction of hours is a common element in the establishment of many FIFO work practices as it enables the efficient utilisation of human resources whilst on site but also ensures that the employee has the opportunity to have time away from the site.
[81] Mr Lee’s evidence was that some employers have established enterprise agreements to enable them to gain the flexibilities required for FIFO operations. Elaboration was provided in the evidence of union officers that, in respect of projects in which CCIWA was involved, this generally involved the negotiation of a greenfields agreement between the principal or the key contractors and relevant unions, which are then applied through agreements with other contractors in the same terms. 65 The practice of a “head” agreement, the terms and conditions of which are applied in agreements with other contractors in order to secure common terms and conditions across a project, is familiar to me from my responsibilities for agreement approval. This approach is reflected in relation to the INPEX Project in Northern Australia. The MJHJV (John Holland) Ichthys Onshore Construction Greenfields Agreement66 was approved on 23 February 2012,67 with the Commission’s Agreements web page identifying multiple additional greenfields agreements, within the coverage of the Building On-site Award (and other related awards), providing the same terms and conditions.
[82] Mr Lee’s evidence, from his statement, was that many of the agreements have common elements:
● A requirement that employees work a cycle which is made up of time on-site and time away from site including, for example, four weeks on, one week off; three weeks on, one week off; 21 days on 10 days off.
● Flexibility in averaging ordinary hours over a defined work cycle (which can be greater than four weeks) that allows for 10 ordinary hours per day and in some cases 12 ordinary hours per day.
● Flexibility in averaging ordinary hours that does not require the accrual of a RDO.
● Ordinary hours—Monday to Friday can be worked between the spread of 6.00 am to 6.00 pm and this spread may be altered by agreement.
[83] The evidence as to agreements providing for work cycles, of various durations including a four weeks on one week off roster, which is made up of time on-site and time away from site is supported by the evidence of the unions’ witnesses. However, their evidence disputes the proposition that flexibility in averaging ordinary hours over a work cycle allows for 10 ordinary hours per day and in some cases 12 ordinary hours per day, to the extent that it implies payment of the 10 or 12 hours at ordinary time rates of pay. In this respect:
● The evidence of Mr Asplin is that generally, “on many Western Australian projects, remote or otherwise, it is common for employees to work a ten (10) hour day. These ten (10) hours are not ordinary time hours. The 10 hours will be made up of eight (8) ordinary hours and then overtime hours”. 68
● The evidence of Mr O’Grady was that the “normal working pattern for remote construction projects is for 10 hour days Monday to Friday and at least 8 hours on Saturday”, patterns which also apply to non-remote major projects. 69 His evidence was that “[w]hilst the 36 hour week is the standard working hours in the majority of enterprise agreements in the building and construction industry . . . payment of the working hours reflects [the Building On-site Award provisions] where 10 hour days are worked Monday to Friday the first 8 hours are paid at ordinary time (with 0.4 or 0.8 of an hour per day accruing towards the RDO depending on whether it is a 38 or 36 hour week) and two hours at overtime rates, [with] [a]ll time worked on Saturday or Sunday is paid for at weekend penalty rates”.70
● The evidence of Mr Pallot was that “all of the agreements applying to construction projects in the resource sector have ordinary hours of 36 per week with the ordinary hours to be worked between 6:00am and 6:00pm Monday to Friday”. 71
[84] Mr O’Grady’s evidence was that “the averaging of hours over a roster cycle of paid and un-paid days is not and never has been a practice adopted in the building and construction industry”. 72
[85] Mr Ingham was “not aware of any major project that utilises averaging of hours” and has “never had an employer request to utilise averaging of hours when negotiating a greenfields agreement for a regional project”. 73
[86] The Deloitte report found:
● “All companies interviewed for the survey used cycle or swing arrangements on at least some of their remote construction projects”, in 90% of cases on all of their remote construction projects and in the remaining 10% on some projects; 74
● In nearly all cases, R & R periods were unpaid; 75
● In 89% of cases, “[m]aximum weekly ordinary hours on remote construction projects currently being undertaken by companies interviewed were” 36; 76
● Only “[t]hree of the 21 companies that participated in the survey used averaging of maximum ordinary hours to spread their ordinary hours over specific time periods”; 77
● 85% of respondents did not average maximum weekly ordinary working hours over a certain period under the roster(s) used on remote construction projects they engaged on 78 because “[a]veraging is not in line with current Agreement” (31%); the employer did not think that workers would agree to it (19%); it is not recommended by CCIWA (25%); averaging is not standard practice (19%); or the respondents did not see the need for averaging (6%);79
● “The maximum number of weekly (regular scheduled) overtime hours and the maximum total number of working hours tended to differ between different arrangements and projects. The majority of companies interviewed (81 per cent) reported maximum total weekly hours of between 60 and 70 hours on remote construction projects”; 80
● “The majority of companies work to a 10 hour day on remote construction projects”, with the most common span being 6.00 am to 6.00 pm; 81
● “Every company that participated in the survey spread their ordinary hours from Monday to Friday”; 82 and
● “Of all the companies interviewed, 75 per cent provided special allowances applicable only to non-local employees on remote construction projects.” 83
[87] Considerable debate as to whether the content of a number of major remote project agreements relied on by CCIWA in its application provided evidence of a practice for remote project work consistent with the CCIWA’s proposed variation and, in particular, the averaging of ordinary hours over total cycles consisting of on shift and off shift R & R periods. Whilst CCIWA submitted that there are a range of roster arrangements in practice, there was some focus on a four week on/one week off roster arrangement. A central related issue was whether agreements reflected a departure from the Building On-site Award requirement for payment of overtime for Monday to Friday in excess of eight hours (inclusive of RDO accumulation) on any day.
[88] This debate occurred in the context of a central purpose, and effect, of the CCIWA variation: to increase the ordinary hours per day to 10 (Monday to Friday) during the on-duty period (e.g. four weeks on-site) to provide for average ordinary hours over the total of the cycle (e.g. five weeks: four weeks on, one week off) in order to facilitate the fifth week off, achieved by averaging the ordinary weekly hours over the five week period.
[89] In its submissions the CFMEU contended that the majority of the agreements relied on by the CCIWA do not provide for averaging of hours. 84 CCIWA in a supplementary submission of 28 November 2012 (uploaded on 29 November 2012) conceded that the summary of hours clauses in the Building On-site Award in Appendix One of Schedule C of its application overstates the position in paragraph 23 of the statement of Mr Lee and referenced agreements, appended to the supplementary submission as Annexure 1—Clauses in Enterprise Agreements Dealing with Hours of Work and Rostered Days Off. The CFMEU in a submission in reply of 5 December 2012, submitted that the analysis contained in Annexure 1 of the CCIWA supplementary submission “is flawed and not a true reflection of the agreements”, presenting clauses in isolation. It set out its own (fuller) assessment of the content of agreements in Appendices 1 and 2 to its submission in reply. The CFMEU submitted that the extracts from the agreements therein clearly demonstrated that in the overwhelming majority of cases the ordinary hours of work each day are eight hours, and up to 40 ordinary hours per week (inclusive of RDO accruals) and “[n]one of the agreements that would otherwise be covered by the [Building On-site Award] specifically allow for 10, 11 or 12 ordinary hours per day”. It submitted that “the CCIWA has confused ordinary hours with working hours”.
[90] A second supplementary submission by CCIWA of 6 December 2012 essentially asserts in respect of each agreement that the CCIWA summary in its supplementary submission of 29 November 2012 was accurate.
[91] In assessing the content and effect of the various agreements, CCIWA submitted that the majority of the enterprise agreements, both in Appendix One to Schedule C of its application and in Annexure 2 to Mr Lee’s witness statement, provide for:
“(a) a clause (usually titled ‘hours of work’) prescribing the maximum weekly hours (usually 36 or 38), averaged over a defined work cycle; and
(b) another clause (usually titled ‘rostered days off’) prescribing eight ordinary hours per day, being paid seven and one-fifth (7.2) ordinary hours pay and accruing four-fifths (0.8) of an hour towards an RDO.” 85
[92] CCIWA submitted, however, that some of the agreements “allow up to 10, 11 or 12 ordinary hours per day”, with a “small number operating on an eight hour basis”. 86
[93] The enterprise agreements relied on by CCIWA do provide for ordinary hours of work (generally 36) averaged over a (variously) defined (although in some cases they are not defined) work cycle, generally to be worked Monday to Friday. However, an assessment of the agreements’ content does not support the general proposition that current industrial arrangements for remote construction work provide for averaging of ordinary hours over the on shift and off shift periods within rosters and provide for payment for hours beyond eight ordinary hours per day at ordinary time rates.
[94] Some agreements do not specifically address the basis of payment for the additional hours (beyond eight inclusive of RDO accrual) each day. However, some agreements, which are otherwise similarly constructed to those agreements which do not directly address the issue, provide examples of rosters which specifically provide that where 10 hours are worked each day Monday to Friday, 7.2 are as ordinary hours, 0.8 as RDO accrual and two hours as overtime and all weekend hours paid as overtime. 87
[95] Further, in the context of the central purpose of the CCIWA variation to facilitate the taking of the off-swing period through the averaging of ordinary hours over the total off-swing and on-swing period, the agreements commonly include specific provision for the basis of payment for the off-swing period (R & R), which would be unnecessary if the off-swing period is accommodated by the averaging of hours.
[96] Specifically:
● most agreements provide for a period of R & R, where such time off is made up of paid and unpaid R & R leave, project leave, accrued RDOs, paid annual leave and unpaid annual leave; 88 and
● in many cases the accrual of annual leave recognises periods of unpaid leave during an R & R period as part of the continuous service. 89
[97] Other agreements provide for variation of the application of an average of a 36 hour ordinary working week from “[e]mployee to Employee or section or sections of Employees, from time to time to suit programming requirements of the Project”, but the application of averaging is subject to no more than eight hours ordinary time being worked per day. 90
[98] Other agreements specifically provide that R & R is classified as non-work time unless accrued RDOs are paid out which is inconsistent with the CCIWA contention that the agreements average hours over the on shift and off shift period and additional ordinary hours are worked during on shift periods to accommodate off shift R & R. 91
[99] The Central Systems Pty Ltd Employee Collective Agreement 2009-2014 92 is a general construction agreement, providing simply for ordinary hours of eight per day. It includes special provisions in Annexure A for remote work. There is no provision for the averaging of ordinary hours within Annexure A.
[100] An examination of the agreements generally, having regard to their fuller content, does not support a conclusion that it is the usual practice that ordinary hours are averaged over the total on shift and off shift period or that Monday to Friday hours in excess of eight (inclusive of RDO accrual) are paid at ordinary time rates. This is consistent with the evidence of the union witnesses recorded above and the finding of the Deloitte report that 85% of respondents did not average maximum weekly ordinary working hours over a certain period under the rosters used on remote construction projects they were engaged on. 93
Conclusion
[101] Item 6 of Part 2 of Schedule 5 of the Transitional Provisions Act requires consideration of whether the modern awards:
“(a) achieve the modern awards objective; and
(b) are operating effectively, without anomalies or technical problems arising from the Part 10A award modernisation process.”
[102] The CCIWA submitted that the variation proposed should be made on either basis—it provides fair and relevant minimum standards in the context of the modern awards objective and there is an anomaly or technical problem arising from the prior award modernisation process. 94 CCIWA submitted that it needed only one of the two avenues to substantiate its application and accepted that even if there was an anomaly or technical problem, it would need to substantiate the merit of its proposed variation against the modern awards objective.
[103] The application is brought in the following context:
● On 3 April 2009, the Award Modernisation Full Bench published its decision 95 concerning Stage 2 modern awards, including the Building On-site Award.
● On 2 May 2009 the then Workplace Relations Minister issued a variation to the Award Modernisation Request, introducing a new paragraph 33AA:
“Where a modern award covers work performed in remote locations, the Commission should include terms that permit the roster arrangements and working hours presently operating in practice in those locations to continue after the making of the modern award.”
● The Award Modernisation Full Bench decisions of 22 May 2009 96 and 26 June 200997 considered the 2 May 2009 variation to the Award Modernisation Request. In its statement of 26 June 2009 re variations to modern awards, the Full Bench noted the process to be applied in dealing with any implications of the new paragraph 33AA on Priority and Stage 2 awards:
“Another more general issue arises in connection with the recent variation [2 May 2009] to the consolidated request. It is likely that the variation will have some significance in relation to modern awards made in the priority stage and in Stage 2. We do not intend, however, to initiate a review of those awards as that course would lead to considerable delay in completing modernisation. A party covered by a modern award who wishes to challenge terms in that award based on the variation to the consolidated request should make an appropriate application.” 98
● Sometime later, on 20 August 2009, 99 CCIWA wrote to the then President of the Australian Industrial Relations Commission (AIRC). It requested that the AIRC schedule an “additional hearing for all modern awards to take into consideration the subsequent amendments to the award modernisation request along with the amendments to the requirements to be considered by the Commission in continuing and completing the Award Modernisation process” established as a result of the Transitional Provisions Act and identified the industries/occupations most affected by remote work arrangements as the mining, construction, maintenance, security, industrial catering, cleaning, materials testing, clerical employees and professional occupations (e.g. engineers and geologists).100
● The CCIWA letter of 20 August 2009 was treated as a submission and placed on all industry sections of the Priority award and Stage 2 and Stage 3 web pages.
[104] To complete the history, paragraph 33AA of the consolidated Award Modernisation Request was specifically addressed by the Award Modernisation Full Bench in three subsequent decisions/statements:
[105] In that context, it cannot be said that the CCIWA variation reflects and responds to an anomaly or technical problem arising from the Part 10A award modernisation process. The process was clear and properly communicated to all interested parties. Any anomaly, technical problem or problem arises not from the Part 10A award modernisation process but by the failure of CCIWA to avail itself of the process clearly set out by the Award Modernisation Full Bench 104 to challenge the terms in modern awards made in the Priority stage and in Stage 2 awards, based on the variation to the consolidated Award Modernisation Request to make an appropriate application.
[106] The other basis of anomaly argued by the CCIWA was that it was anomalous that the Building On-site Award did not contain remote work provisions, when other awards—in the manufacturing, hospitality, aluminum, maritime, offshore oil and gas and mining industries 105 —did. This does not constitute an anomaly in circumstances where each modern award was made having regard to particular submissions advanced, and award terms proposed, having regard to the consolidated Award Modernisation Request and the content of pre-modern instruments. Further, given the 20 August 2009 letter of CCIWA to the AIRC, that the remote work issues arose in respect of the—maintenance, security, industrial catering, cleaning, materials testing, clerical and professional occupations—industries and occupations106—the anomaly would be widespread. FIFO work also occurs in respect of the Mobile Crane Hiring Award 2010,107 the Electrical, Electronic and Communications Contracting Award 2010108 and the Plumbing and Fire Sprinklers Award 2010.109
[107] For the CCIWA to succeed in its application it is necessary that it makes a case that the variation is justified on the basis of consideration of whether the Building On-site Award achieves the modern awards objective, having regard to the approach to be taken in the 2012 Review set out by the 29 June 2012 decision of the Award Modernisation Full Bench 110 which considered that preliminary question.
[108] I turn to consider the CCIWA application against the modern awards objective.
[109] The Building On-site Award was made having regard to the terms of prior instruments, including the NBCIA. The fact and specific regulation of remote work has been recognised and accommodated within pre-existing instruments for many decades. There has been no material change in circumstances as to the fact and regulation of remote construction work since the making of the Building On-site Award. The Building On-site Award was made having regard to those provisions and is taken to meet the modern awards objective unless other cogent reasons to the contrary can be established.
[110] There is no doubt that there is a significant amount of remote work, principally on resource projects, undertaken under the Building On-site Award and that such work is generally undertaken utilising FIFO arrangements. In some relevant respects characteristics of remote construction work are little different from those of many major non-remote construction sites—for example the working of extended hours Monday to Friday and Saturday work, involving significant levels of overtime. Other aspects of remote construction work—for example rosters involving on shift and off shift periods, including the common “4 on/1 off” roster—are more specific to remote projects.
[111] There is no material evidence that the current terms of the Building On-site Award are impeding the meeting of the modern awards objective in relation to remote work or impeding remote projects. Australia has seen unprecedented resource investment and construction activity in remote locations in recent years, in the context of the operation of the Building On-site Award and the previously operating awards on which it was based. Current work arrangements, which the CCIWA application is directed to, have been implemented largely through enterprise agreements.
[112] CCIWA submitted that it is impractical and unreasonable to require an employer, a small employer in particular, to reach an enterprise agreement to facilitate cycle work before it can tender for work. The evidence and my own experience in agreement approval is that major projects, remote and otherwise, are subject to a lead greenfields agreement between the principal employer and relevant unions, with contractor agreements being made and approved with identical terms and conditions to provide common industrial regulation. As the AMWU submitted, 111 there is no evidence to support the contested proposition that, “Many employers in the construction industry are small and award reliant with limited ability and knowledge to develop enterprise agreements to overcome the restrictions within the Construction Award.”112 Nor, relevantly, is there evidence of instances of such employers seeking and being prevented from participating in remote projects in practice.
[113] The consolidated Award Modernisation Request is not directly relevant to the legislative framework governing the 2012 Review, although the award modernisation decisions of the AIRC are relevant insofar as they provide a historical context for the 2012 Review and the 2012 Review must look at any anomalies or technical problems arising from that award modernisation process. 113
[114] To the extent that the CCIWA application relies on paragraph 33AA of the consolidated Award Modernisation Request, the evidence as to “current practice” does not support the CCIWA variation. The variation, in the form proposed, involves an averaging of ordinary hours across on shift and off shift periods and the avoidance of overtime payments in respect of Monday to Friday daily hours in excess of eight hours per day, which is not evident in practice on the evidence (considered above).
[115] The central issue in the CCIWA application is the accommodation of off-swing periods through the averaging of hours across the total on-swing and off-swing period within a roster. Save for the off-swing arrangement, the compaction of hours and total working hours significantly in excess of ordinary hours is not limited to remote work—it is a common characteristic of major project work, whether remote or otherwise. The variation sought by CCIWA extends well beyond the issue of accommodating the off shift within roster arrangements, resulting in a reduction in payment in respect of Monday to Friday hours 114 and a diminution of the safety net reflected in the current terms of the Building On-site Award. The diminution of the safety net, by reducing overtime payments otherwise payable for daily hours beyond eight per day (where RDOs accrue), would impact directly upon employees to whom the Building On-site Award applies and indirectly in relation to agreement making, in that the reduced application of overtime payments could occur without compensating benefits which would otherwise be required for agreement approval in order to meet the better off overall test.
[116] To the extent the CCIWA variation seeks a comprehensive remote work provision, reflecting what CCIWA characterises as current practice, it fails. It incorporates some provisions which are inconsistent with the evidence as to current practice. Further, current practice in remote locations involves substantial additional beneficial terms and conditions, including specific remote location provisions, which have not been incorporated into the CCIWA proposed variation.
[117] I am not satisfied that the variation proposed is necessary or appropriate to achieve the modern awards objective.
[118] The Building On-site Award will not be varied to give effect to the CCIWA application.
[119] The CCIWA variation is sought principally on the basis, it submits, that absent an enterprise agreement, employers, and small employers in particular, are unable to access unpaid leave to facilitate the off-swing period of remote work rosters. If there was evidence of an inability in practice to access enterprise agreements or to enter into agreements with employees under the Building On-site Award to take unpaid leave to the extent necessary to facilitate the off-swing period, a variation might be contemplated in the 2014 Review, in terms which achieve the primary outcome sought by the CCIWA without materially altering other terms and conditions, and to reflect the evidence as to current practice within remote work undertaken in the context of the coverage of the Building On-site Award.
3. Coverage (clause 4)
[120] The applications of ABI, the HIA and the MBA each seek to vary clause 4—Coverage of the Building On-site Award. The variations proposed can be grouped into three categories:
(i) The ABI and HIA applications to extend the modern awards referenced as excluded in clause 4.2 of the coverage clause by adding:
(ii) The HIA application to vary clause 4.8—coverage by more than one award; and
(iii) The MBA application to insert a provision clarifying the relationship between industry and occupational based awards in determining coverage, an issue the MBA submitted went across all awards and was raised as an issue for consideration by a Full Bench considering the coverage of modern awards. 118
(A) The ABI and HIA applications to extend the modern awards referenced as excluded in clause 4.2
The Premixed Concrete Award 119 and the Asphalt Award120
[121] ABI submitted that its proposed variation, to add the Premixed Concrete Award and the Asphalt Award to the list of exclusions in clause 4.2 of the Building On-site Award is directed towards removing confusion created by the overlapping coverage of the Building On-site Award.
[122] It submitted that uncertainty arises in the case of the Asphalt Award from overlap in the definition of “civil construction” in the Building On-site Award and the definition of the “asphalt industry” in the Asphalt Award, both of which include “road making and the manufacture or preparation, applying, laying or fixing of bitumen emulsion, asphalt emulsion, bitumen or asphalt preparations, hot pre-mixed asphalt, cold paved asphalt and mastic asphalt”.
[123] ABI relied on the evidence of Mr N Perumal, Commercial Manager for CTEC Pty Ltd (CTEC), that there was uncertainty as to whether certain work was covered by the Building On-site Award or the Asphalt Award, which made it difficult for CTEC to ensure that contractors applied industrial arrangements compliant with the National Code of Practice for the construction industry and the associated implementation guidelines. He also gave evidence that “[i]t would be beneficial if the coverage of each award was clarified as proposed by the amendments made by ABI to remove ambiguity and confusion as to each award’s coverage”. 121
[124] ABI submitted that the Premixed Concrete Award excludes employees covered by the Building On-site Award but the Building On-site Award does not contain a reciprocal provision. It submitted that the lack of a reciprocal provision can create an overlap for employers, confusion and uncertainty as to the correct award coverage for employees.
[125] ABI submitted that the modern awards objective includes the need to ensure a simple easy to understand award that avoids unnecessary overlap and that providing an express exclusion of the Premixed Concrete and the Asphalt Awards would aid in clarification for employers when determining award coverage.
[126] The Ai Group supported the ABI applications.
[127] The CFMEU opposed the variations proposed by ABI to extend the exclusions in clause 4.2. The AWU opposed the variation, submitting that rather than reduce potential confusion, the ABI proposal would alter the status quo in terms of relationship between each of those two modern awards.
[128] In relation to the Asphalt Award, the CFMEU and the AWU noted that the Award Modernisation Full Bench had specifically considered the relationship between the Asphalt Award and the Building On-site Award when making the Building On-site Award 122 and in making the Asphalt Award in Stage 3. In the Stage 3 decision, the Award Modernisation Full Bench said:
“We have retained roadmaking within the coverage clause of the award. Roadmaking, in this context, is intended to comprehend those elements of roadmaking associated with the asphalt industry and undertaken by employers within the industry as defined. Other roadmaking activity, undertaken by employers within the civil construction sector of the building, engineering and civil construction industry, will fall within the coverage of the Building, Engineering and Civil Construction Industry General On-site Award.” 123
[129] Clause 4.2 of the Building On-site Award was formulated by the Award Modernisation Full Bench, following specific consideration of coverage as between the Building On-site Award and the Asphalt Award. The distinction between the two modern awards in respect of roadmaking is clear from the decision of the Award Modernisation Full Bench.
[130] The only evidence of any practical issues arising in relation to that coverage was the evidence of Mr Perumal. It is insufficient to warrant a variation on the basis of the considerations arising out of Item 6 of Part 2 of Schedule 5 of the Transitional Provisions Act. No cogent reason has been established for departing from the current considered provision determined by the Award Modernisation Full Bench. In any case, it is not apparent on the evidence how the addition of the Asphalt Award to the exclusions in clause 4.2 of the Building On-site Award would assist CTEC in applying the distinction between the work reflected in the observations of the Award Modernisation Full Bench in its Stage 3 decision.
[131] In relation to the Premixed Concrete Award, the CFMEU submitted that there is no evidence of any confusion over the coverage of that award. The AWU submitted that submissions were put to the Award Modernisation Full Bench regarding the relationship between the Building On-site and the Premixed Concrete Awards. 124 The AWU submitted that the Award Modernisation Full Bench issued a statement on 22 May 2009 which included the following consideration of the relationship between the Building On-site Award and the modern Premixed Concrete Award:
“It appears that premixed concrete batch plants are predominantly operated by employers in the premixed concrete industry, servicing customers in a variety of industries including the on-site building, engineering and civil construction industry. There are, however, some employers in the on-site building, engineering and civil construction industry who have purchased and operate their own plant, principally in relation to road-making. We think that batch plant operators and associated premixed concrete classifications should fall within the coverage of the modern award covering the employer – the Premixed Concrete Award 2010 in the case of employers within that industry and the Building and Construction General On-site Award 2010 in relation to employers in that industry. The industry of the employer should determine the coverage. As a result, we have included in the coverage clause of the premixed concrete industry exposure draft an exclusion in relation to employers and their employees in the on-site building, engineering and civil construction industry, covered by the Building and Construction General Onsite Award 2010. We propose to vary that award to add, in clause 4.2, an exclusion in relation to the Premixed Concrete Award 2010 when that award is made.” 125
[132] In the case of the Premixed Concrete Award, the distinction between that award and the Building On-site Award is again clear from the reasons of the Award Modernisation Full Bench. However, in the case of the Premixed Concrete Award, it is also clear from its reasons that the Award Modernisation Full Bench intended to add an exclusion in relation to the Premixed Concrete Award within clause 4.2 of the Building On-site Award. The absence of such an exclusion, as intended by the Award Modernisation Full Bench, reflects an error which I will correct, pursuant to s.160 of the Act on the basis of the submissions put in the current proceedings. I note that such an exclusion would operate consistently with the coverage between the two modern awards as indicated by the Award Modernisation Full Bench and would not have the effect of narrowing the coverage of the Building On-site Award in respect of employers within the industry covered by the Building On-site Award.
The Timber Award 126
[133] The HIA seeks a variation to clause 4.2 of the Building On-site Award, to add the Timber Award to the list of exclusions. The HIA put limited submissions in support of the specific variation concerning the Timber Award. The HIA seemed to rely on its broader submissions in relation to the confusion which, it submitted, arose from the potential overlap of several awards which might cover its members, including the Building On-site Award and the Timber Award.
[134] That general material provides little support for the specific variation concerning the Timber Award. The fact that a majority of respondents to a HIA survey (the details of which are not in evidence) did not find it easy to know what award they were covered under provides no evidence as to the practical impact of absence of the Timber Award from the exclusions in clause 4.2 of the Building On-site Award.
[135] To the extent that the HIA relied on a statement of Ms M Adler, 127 Executive Director–Workplace Relations, it may be noted that Ms Adler’s statement addresses the Timber Award only to the extent of noting a “significant overlap” between that award and the Building On-site Award, and including the classification descriptor for Levels 1–7; clause 4.2(d) Manufacturing Sector128 in Annexure A to her statement and a series of correspondence attached to the statement which identify the Timber Award and the Building On-site Award as potentially relevant to their members in terms of award coverage. The practical issues raised in the correspondence focus on potential overlap in relation to factory based work between the Timber Award and the Joinery and Building Trades Award 2010,129 (the Joinery Award) in relation to on-site work between the Joinery Award and the Building On-site Award and the Gardening and Landscaping Services Award 2010130 and the Building On-site Award. There is no evidence of significant practical problems arising from any overlap between the Timber Award and the Building On-site Award.
[136] Further, the submissions of the HIA in relation to its application to vary clause 4.2 of the Building On-site Award went no further than the proposition, in the context of its broader submissions as to a general uncertainty as to coverage amongst its members, that the Timber Award should also be identified as an express exclusion within clause 4.2 to assist in alleviating the confusion for overlap between these modern awards. 131 That proposition falls well short of establishing a cogent reason for varying the Building On-site Award in the manner proposed.
[137] The Ai Group supported the HIA application.
[138] The CFMEU opposed the variation proposed by the HIA to extend the exclusions in clause 4.2 of the Building On-site Award. It submitted that clause 4.2 does not limit the generality of the exclusion in clause 4.1, but indicates that the Building On-site Award does not cover employers covered by the awards mentioned in clauses 4.2(a) to (g)—they do not cover work in the on-site building, engineering and civil construction industry. It submitted that clauses 4.1 and 4.2 make it clear that the Building On-site Award applies to on-site work and that it is the only modern award that applies to on-site work (as long as the employees are covered by the classifications within that modern award).
[139] The issue of the coverage of the Building On-site Award was discussed extensively during the Part 10A award modernisation process. No cogent reason has been advanced to justify the variation to the terms of clause 4.2, which arose out of that process in relation to the Timber Award. The HIA application in respect of the Timber Award is refused.
(B) The HIA application to vary clause 4.8—Coverage by more than one award
[140] The HIA application seeks to vary clause 4.8 as follows (deletions proposed by HIA are square bracketed and additions are underlined):
“4.8 (a) Where an employer is covered by more than one award, an employee of that employer is covered by the award [delete - classification] which is most appropriate [delete - to the work performed by the employee and to the environment in which the employee normally performs the work] considering the employer’s predominant work activities and environment in which the work is predominantly performed.
(b) This award does not apply to employers whose predominant activities are the manufacture or fabrication of building products in an off-site or factory environment.”
[141] It is unclear in the HIA submissions whether the current note in clause 4.8 would be retained or deleted.
[142] The provision which the HIA seeks to vary is a common provision within all modern awards, determined during the Part 10A award modernisation process. 132
[143] The HIA submitted that uncertainty as to this award coverage is a significant issue for HIA members, with 61% of respondents to a HIA survey indicating that members did not find it easy to determine which modern award they were covered by. The HIA submitted that the proposed variation related to “a number of members who are employers with businesses that carry out a diverse range of business activities. For example, an employer who employs both offsite employees to work in a joinery workshop and onsite employees to install the cabinetry built in that offsite joinery workshop, or employers who run a landscaping business and are engaged in both work in connection with a construction site, and gardening/maintenance type work that follows practical completion or is in connection with private houses.” 133
[144] The HIA submitted that the present clause 4.8 of the Building On-site Award appears to require the employer to conduct an assessment of the “employee’s” work and work environment, as opposed to the employer’s circumstances. It submitted that this is inconsistent with an industry award, which would require an assessment of the employer’s circumstances and inconsistent with the award modernisation process which had a number of objectives of “reducing the regulatory burden on business”, creating modern awards that were “simple to understand and easy to apply” and avoiding the overlap of modern awards that may apply to a particular employee.
[145] The HIA submitted that clarification as to the intention of this coverage clause is required and will be best achieved through its proposed variation, by providing that award coverage is to be determined by the employer’s predominant activities. The HIA relied on a submission put to the award modernisation hearings 134 in support of its proposed variation, questioning the application of multiple modern awards to cover what it submitted is one industry. It submitted that the prospect of having to apply multiple modern awards for similar activities within the one workplace creates unnecessary confusion and complexity. To support its proposition about overlapping coverage and confusion, the HIA relied on correspondence between it and the Fair Work Ombudsman in which the central issue for HIA members revolved around the overlapping coverage of the Manufacturing Award,135 the Joinery Award and the Timber Award.136
[146] The Ai Group supported the HIA’s proposed variation to clause 4.8 on the basis that it would be consistent with the current exclusion in relation to factory based awards—the Manufacturing Award and the Joinery Award, to which should be added the Timber Award.
[147] The CFMEU opposed the variation of clause 4.8 proposed by the HIA. It submitted that the clause was a standard clause within modern awards, determined during the Part 10A award modernisation process. The CFMEU submitted that there is no confusion because the Award Modernisation Full Bench in the proceedings clearly decided that work undertaken on-site is covered the Building On-site Award. It submitted that the HIA variation proceeds on the mistaken belief of HIA that clause 4.2 of the Building On-site Award prevents an employer being covered by more than one modern award. It submitted that all clause 4.2 does is recognise the exclusive coverage, which is set out in clause 4.1 of the Building On-site Award and, once it is recognised that the Building On-site Award applies to on-site work only, then the application of clause 4.8 is more easily understood, and that it recognises that an employer can be covered by more than one modern award. The CFMEU submitted that position is consistent with the way the industry has operated for the past 50 years—if an employee is engaged in an off-site establishment, then the off-site award applies. The CFMEU submitted that the variation proposed by the HIA in respect of clause 4.8 seeks to change the test to be applied where more than one modern award applies, from a test based on the activities of the employee to one based on the activities of the employer.
[148] The HIA submissions 137 were premised on the proposition that the current clauses within the Building On-site Award do not recognise the distinction between the coverage and application of a modern award, referring only to coverage and thereby providing no guidance as to the application of the modern award.
[149] The HIA is correct in its submission that neither clause 4 of the Building On-site Award, nor any other provision within it, provides guidance as to the application of the modern award, save to the extent it establishes coverage, which is one material factor in determining the application of a modern award. 138 That proposition is true of every modern award. That position is hardly surprising. Division 3—Terms of modern awards—of Part 2–3 of the Act requires coverage terms within modern awards.139 It does not require terms dealing with the application. The application of a modern award is determined by s.47 of the Act (and any provisions of the kind referred to in s.47(1)(c), including s.57 of the Act). A modern award is incapable of providing practical guidance as to its application in respect of the matters in ss.47(1)(b) and (c) of the Act. Modern awards can and do provide guidance as to their coverage (s.47(1)(a)).
[150] As noted by the Award Modernisation Full Bench:
“At this stage we have not listed employers to whom an award does not apply. Whether an award applies to a particular employer will depend, among other things, upon whether the employer is an employer within the meaning of the Act and whether the employer is bound by an enterprise award as defined in the Act. We have adopted the relevant definitions in each draft. We do not think it is desirable to embark on a series of cases to decide such questions as whether an employer is a constitutional corporation, whether an employer is bound by an enterprise award, etc. Such questions could in any event only be finally decided by a court.” 140
[151] Whilst the HIA is correct in its submission that the Building On-site Award provides no guidance as to the application of the modern award, other than by establishing its coverage, it is unclear what relevance that proposition has to or what support it lends to its application to vary the coverage clause.
[152] Clause 4.8 was included in the Building On-site Award, and most other modern awards, to provide a basis for deciding which modern award applies in the case of overlap. 141 The provision is premised on the existence of an overlap, having been formulated in the context of the reference in the consolidated Award Modernisation Request to the desirability of avoiding overlap between modern awards and, in cases of overlap or potential overlap, the inclusion of clear rules to identify which modern award applies.142
[153] The HIA variation is directed to providing that award coverage is to be determined by the employer’s predominant activities and avoiding the prospect of having to apply multiple modern awards for similar activities within the one workplace. The HIA variation seeks to remove any overlap or potential overlap by providing that where overlap would otherwise arise, coverage is determined by the “predominant activity” of the employer, with the effect that employee’s undertaking work within the scope of the non-predominant activity would not be covered by the modern award which would apply under the terms of its coverage clause.
[154] Such an outcome is inconsistent with the clear terms of clause 4.8, as a mechanism applied generally across modern awards for deciding which modern award applies in the case of overlap or potential overlap. Further, in relation to the Building On-site Award, it is inconsistent with the clear distinction of the Award Modernisation Full Bench, between work undertaken in the context of the on-site building, engineering and civil construction industry and comparable work under classifications which is not undertaken in that on-site context. Such a distinction is clear in the decisions of the Award Modernisation Full Bench in relation to concrete batching, 143 roadmaking144 and landscaping.145 The HIA proposal would fundamentally alter the effect of the provision and the position of the Award Modernisation Full Bench, considered both generally and in relation to potential overlap in respect of the Building On-site Award.
[155] Clause 4.8 was included in the Building On-site Award by the Award Modernisation Full Bench, in terms reflected generally within modern awards, to provide a basis for deciding which modern award applies in the case of overlap, having regard to the terms of the consolidated Award Modernisation Request and the submissions of interested parties. The variation proposed by the HIA fundamentally alters the intent and the effect of the provision formulated by the Award Modernisation Full Bench. The HIA’s case in support of the variation was directed to addressing confusion amongst its members in circumstances of potential overlap in coverage. However, the variation proposed by the HIA to the provision determined by the Award Modernisation Full Bench, to apply where an employer is covered by more than one modern award, significantly alters the effect of the clause, being directed to removing work from the coverage of the Building On-site Award, rather than providing a process to apply where overlap exists. No proper basis has been advanced for altering the focus within clause 4.8, from the work performed by the employee and to the environment in which the employee normally performs the work, to the employer’s predominant work activities. No basis has been established to support the inclusion of the HIA’s proposed clause 4.8(a) which is, in effect, a provision narrowing the coverage of the Building On-site Award and not, as it was intended to be, a basis for deciding which modern award applies in the case of overlap. The HIA has not made out a cogent reason for departing from the provision determined by the Award Modernisation Full Bench decision, generally or in the particular circumstances of the on-site building and construction industry. This element of the HIA application is refused.
(C) The MBA application to vary clause 4.8
[156] The MBA proposed a variation to clause 4.8 of the Building On-site Award (and coverage clauses across all modern awards) to insert additional words of the following kind:
“Where industry-based awards do not contain an appropriate classification for an employee, regard may be had to occupational-based awards which specifically describe the occupation in their coverage clauses.”
[157] Clause 4.8 provides:
“4.8 Where an employer is covered by more than one award, an employee of that employer is covered by the award classification which is most appropriate to the work performed by the employee and to the environment in which the employee normally performs the work.
NOTE: Where there is no classification for a particular employee in this award it is possible that the employer and that employee are covered by an award with occupational coverage.”
[158] The MBA proposed that the note within the existing clause 4.8 be replaced in order to provide clarity and reinforce the observations of the Award Modernisation Full Bench in its decision in relation to the making of the Priority awards. 146
[159] The variation was opposed by the CFMEU, the CEPU and the AMWU as unnecessary and by the Ai Group and AMWU on the basis that there is no good reason for those model provisions to be disturbed.
[160] The Award Modernisation Full Bench considered the requirements of the consolidated Award Modernisation Request and the extensive submissions made concerning coverage in determining the provisions dealing with overlapping coverage, 147 found in clause 4.8 of the Building On-site Award and the coverage clauses of most other modern awards. The variation was proposed by the MBA essentially to confirm the reasoning of the Award Modernisation Full Bench in relation to interaction between potentially applicable modern awards, and the relationship between industry and occupational based awards.148
[161] The current terms of clause 4.8, including the note, included by the Award Modernisation Full Bench, gives effect to its decision in relation to overlapping coverage and was formulated in the context of the requirements of the consolidated Award Modernisation Request and the submissions before it. The MBA has advanced no cogent reason for varying the clause referable to Item 6 of Part 2 of Schedule 5 of the Transitional Provisions Act. There is no basis for varying clause 4.8 in the terms proposed by the MBA in order to give effect to the modern awards objective. This element of the MBA application to vary is refused.
[162] The MBA in its submissions also invited me as a “senior member of the Tribunal” to endorse a four step process determining award coverage. I do not think it is appropriate for me to do so. It is unnecessary to do so for the purpose of determining the applications before me and would be inappropriate to do so in circumstances where parties with an interest in other modern awards have not had an opportunity to put submissions. Modern award coverage is to be determined on the basis of the coverage provisions of the modern awards, in the context of the observations of the Award Modernisation Full Bench in formulating those terms—at a general level in the statement 149 and the decision150 in relation to the Making of Priority awards and, at a particular level, in the statements and decisions attending the making of specific modern awards.
4. The HIA application included an amended variation 151 to add a new clause 10.3, providing that clause 10.2 does not apply to employees engaged after 1 January 2012
[163] The HIA submitted that some confusion exists in relation to employees who were employed on a daily hire basis before the commencement of the new modern awards. It submitted that the fact that the Building On-site Award has come into operation would not change the status of a daily hire employee if the pre-modern award had not required that the employee be informed of the terms of their engagement in writing. The HIA submitted that employers and employees would benefit from clarity on this issue, through its proposed amendment.
[164] Whilst the CFMEU was prepared to consent to the variation originally proposed by the HIA, on the basis that it provided clarification, it did not support the amended proposed variation, submitting that there has been no evidence to justify it.
[165] The obligation upon an employer under clause 10.2 to inform each employee, in writing, of the terms of their engagement and, in particular, whether they are to be daily hire, full-time, part-time or casual employees at the time of engagement can only be applied subsequent to the making of the modern award and to the engagement of employees after that time. The HIA variation is unnecessary and is not required to give effect to Item 6, Part 2 of Schedule 5 of the Transitional Provisions Act. The variation is refused.
5. CFMEU application to vary the definition of “daily hire employee” in clause 11 to limit daily hire to the general construction stream
[166] The CFMEU’s application seeks to vary clause 11 to replace the current words—“A daily hire employee means a tradesperson or labourer engaged subject to the following provisions:” with “A daily hire employee means a tradesperson or labourer engaged, in the general construction stream (defined in Schedule B), subject to the following provisions:”.
[167] The CFMEU submitted that prior to the making of the modern award daily hire employment had traditionally only applied to tradespersons and labourers engaged in the general construction stream, with the “overwhelming majority of the awards that contain daily hire were limited to those applying to building tradespersons as distinct from mechanical or electrical tradespersons and labourers operating in the general construction stream”. 152 It submitted that the relevant proposed variation seeks to restore this arrangement. The effect of the variation would be to limit daily hire employees to tradespersons and labourers engaged in the general construction stream.
[168] The CFMEU submitted that its application seeks to deal with an anomaly - an issue specific to the Building On-site Award, and is, “therefore, [of] a special and isolated nature and it is not a matter that could be used as a vehicle for general improvements in pay and conditions”. 153 In this regard, the CFMEU submitted that anomaly, within Item 6(2), Part 2 of Schedule 5 of the Transitional Provisions Act should attract a meaning arising from the Anomalies and Inequities principles154 of the National Wage Case decision August 1988.
[169] The CFMEU variation was supported by the AWU, the CEPU and the AMWU.
[170] The MBA opposed the CFMEU variation, submitting that merely asserting that the modern award does not contain the pre-reform structure or a matter in a pre-reform award is not in itself sufficient to justify variation. It submitted that the Award Modernisation Full Bench considered the notion of the application to daily hire when the modern award was made 155 and that the CFMEU brought “no evidence at all, to show that the expansion of daily [hire] . . . has created a problem in the real world”.156
[171] The HIA, CCIWA, the Ai Group and ABI also opposed the variation, supporting the submissions of the MBA.
[172] I am not persuaded that an anomaly within Item 6(2), Part 2 of Schedule 5 of the Transitional Provisions Act should be derived from the specific tests attached to the terms in the Wage Fixation Principles adopted by the AIRC within the wage fixation system of the 1970s and 1980s. However, the broad meaning of “anomaly” derived from that Anomalies principle, within that system, is in any case one of exception, consistent with the intent to limit wage rises beyond those arising from general increases (indexation or productivity) within the Wage Fixation Principles.
[173] The CFMEU seeks to justify its application on the basis that the restricted use of daily hire it proposes is consistent with the predominance of pre-modern instruments which operated in the industry. This ignores the fact that the concept of daily hire attracted very specific consideration of the Award Modernisation Full Bench 157 and that the Full Bench opted for a single modern award for the on-site building and construction industry, with only limited specific differences in terms and conditions between sectors.158 The CFMEU has not established cogent reasons for departing from the provisions determined by the Award Modernisation Full Bench in respect of employment types included in the Building On-site Award, after specific consideration of the issue of daily hire and specific consideration of what differential conditions should be included in the modern award to reflect the various sectors of the industry brought within it. Nor has the CFMEU established that the failure by the Award Modernisation Full Bench to replicate the sectoral provisions in respect of daily hire in the single Building On-site Award is an anomaly. The issue raised by the CFMEU is not one of an anomaly in the general meaning of an “Irregularity, deviation from the common or natural order, exceptional condition or circumstance”.159 The award modernisation process both generally and within the on-site building and construction industry brought together differently regulated industry sectors within broader industry awards. The proposition that the failure to maintain a previous sectoral difference within a broader industry award is an anomaly is not sustainable, given that it would not be an exceptional outcome, either in respect of the Building On-site Award or in other modern awards—as one example, the Manufacturing Award.160 The CFMEU application is refused.
[174] The CFMEU submitted that if the variations it proposed were not accepted, certain technical variations required attention:
● inclusion of all of the specific allowances and conditions involving the daily hire and weekly hire hourly rate calculations (refrigeration allowance and the electricians allowance); and
● the reference to part-time daily hire employees in clause 23.9—Inclement weather.
[175] These matters did not form part of the CFMEU application and were not fully debated in the proceedings before me. The CFMEU can, if it chooses, raise these matters in the 4 yearly review provided for in Division 4 of Part 2–3 of the Act.
6. HIA application to vary clause 14.2—in relation to the non-applicable rates and conditions, to add RDO accrual
[176] Clause 14.2 of the Building On-site Award provides that:
“A casual employee is entitled to all of the applicable rates and conditions of employment prescribed by this award except annual leave, paid personal/carer's leave, paid community service leave, notice of termination and redundancy benefits.”
[177] The HIA submitted that confusion exists as to whether a casual employee is entitled to accrue RDOs, this should be addressed by varying clause 14.2 to add “rostered days off” to the excluded conditions. The HIA submitted that the application of RDOs to casuals goes against the intention of an individual being engaged as a casual employee.
[178] The HIA submitted that the New South Wales Industrial Relations Commission Secure Employment Test Case (NSWIRC Secure Employment Test Case) provides evidence that the casual loading provided for in the Building On-site Award is to compensate the casual employee for the non-availability of RDOs. 161 It also relied on advice from the Fair Work Ombudsman in relation to the Joinery Award.
[179] The HIA submitted that the absence of an exclusion of RDOs as an entitlement of casual employees in the 2000 version of the NBCIA reflects the limitations on the duration of casual employment permitted such that it would never have needed to be contemplated that a specific provision be inserted to exclude the application of RDOs from casual employees. It submitted that when the maximum period of engagement for casual employees was increased to six weeks in 2002, following the Metal and Engineering and Associated Industries Award 1998 Casuals Case, 162 (the Casuals Case) the parties did not turn their minds to the need to specifically exclude the operation of the RDO system to casuals.
[180] The CFMEU opposed the variation. It submitted that there is nothing in the casual or the hours of work clauses that excludes casuals from working under an RDO system. It further submitted that there is a provision which recognises that an employer and their employees may agree not to work an RDO system, so that whether a casual is to accrue RDOs or not would, to a large extent, depend on their engagement.
[181] The CFMEU submitted that the Casuals Case, in identifying the main components to be assessed in determining casual loading 163 made no reference to the lack of accrual of RDOs. It submitted the position arising from the Casuals Case was reflected in the variation to the NBCIA in 2002.164
[182] The CFMEU also submitted that the exclusion, or otherwise of RDO provisions, was raised in the Stage 2 award modernisation process in relation to the making of the Building On-site Award, with the MBA, in its 10th submission, seeking a specific exclusion to RDOs being included in the casual employment clause.
[183] The HIA has not established a case for varying clause 14.2 of the Building On-site Award to give effect to the requirements of Item 6, Part 2 of Schedule 5 of the Transitional Provisions Act by including RDOs as one of the modern award matters which does not apply to casual employees in light of the casual loading. Clause 14.2 was formulated by the Award Modernisation Full Bench having regard to the submissions made, including those in the MBA’s 10th submission, and having regard to the terms of pre-modern instruments. RDOs were not one of the excluded matters in clause 13.4.1 of the NBCIA, which was inserted in 2002 165 to give effect to changes arising out of the Casuals Case.166 Clause 13.4.1 of the NBCIA did not include RDOs as one of the excluded conditions, which is unsurprising given the Casuals Case decision did not include RDOs as an excluded condition in determining the casual loading. Nor did any notional agreements preserving State awards (NAPSAs) exclude RDOs in the casual loading provision. The NSWIRC Secure Employment Test Case did not specifically consider the applicability of RDO provisions to casual employees. No evidence was brought by the HIA to support the variation by reference to the 2012 Review considerations. No cogent reason has been established for varying the Building On-site Award as sought by the HIA. This part of the HIA application to vary is refused.
7. ABI application to vary clause 14.3 the matters an employer is required to advise an employee of, when engaged for casual employment, and the CFMEU application to vary clause 14.5 in respect of payment of the casual loading
[184] The variations sought to clause 14.3 are:
● A CFMEU application to add “daily hire or weekly hire” before casual; and
● An ABI application to delete “the actual or likely number of hours to be worked”.
[185] Clause 14.3 of the Building On-site Award provides:
“An employer, when engaging a person for casual employment, must inform the employee, in writing, that the employee is to be employed as a casual, stating by whom the employee is employed, the job to be performed, the classification level, the actual or likely number of hours to be worked, and the relevant rate of pay.”
[186] The CFMEU proposed variation to clause 14.3 is linked to its proposed variation to clause 14.5 in respect of the basis of payment of the casual loading in that they both seek to rectify what the CFMEU characterises as a “technical problem that has arisen in regard to determining how casual rates of pay are to be calculated and to clarify that casuals can be employed as daily hire casuals and weekly hire casuals”. 167 The CFMEU’s variation to clause 14.5 seeks to replace:
“A casual employee must be paid a casual loading of 25% for ordinary hours as provided for in this award.”
with:
“A casual employee must be paid an additional casual loading of 25%, based on the hourly rates calculated in accordance with clause 19.3, for ordinary hours worked in accordance with clause 33. Hours of Work.”
[187] The CFMEU has not established a need for the variation within the context of the 2012 Review process. The 25% applies to the rate otherwise applicable in compensation for the absence of annual leave, paid personal/carer’s leave, paid community service leave, notice of termination and redundancy benefits. It is neither appropriate, nor necessary to deal with the rate to which the casual loading applies within the clause specifying the casual loading. Further, the CFMEU has not identified any practical problem or any other basis referrable to the considerations in Item 6, Part 2 of Schedule 5 of the Transitional Provisions Act to warrant variation of the Building On-site Award within the 2012 Review process. The issue raised by the CFMEU is about the rate to which the casual loading applies. The CFMEU submitted that the hourly rate calculation for daily hire employees includes the follow-the-job loading. There is no evidence that the terms of clause 14.3 and/or clause 14.5 have disturbed the practice, reflected in most of the pre-modern awards, of applying this loading to casuals. The MBA submitted that it advises employers that casual loadings should be applied to follow-the-job rates, i.e. as calculated under clause 19.3(a). The CFMEU has not provided any evidence to suggest that the terms of clause 14.3 and/or clause 14.5 have caused any practical problems or otherwise operates contrary to the modern awards objective. It has not established cogent reasons to vary clauses 14.3 or 14.5 of the Building On-site Award. This element of the CFMEU application is refused.
[188] There exists a broader debate as to any overlap of the factors contemplated by the follow-the-job loading and the casual loading, as reflected in the submissions of the MBA and refuted by the CFMEU. That question was not fully ventilated in the current proceedings and no basis was established for considering that issue for the purposes of the 2012 Review.
[189] The ABI application seeks to remove the current requirement on employers, when engaging casual employees, to specify the actual or likely number of hours to be worked by casual employees. ABI submitted that the requirement is inconsistent with the engagement of casual employees because often employers will not know the actual or likely number of hours worked. It relied on the statement of Mr Perumal, of CTEC that:
“It can be difficult to accurately specifying the likely number of hours for casual employees due to the fact that casuals are hired to meet the short term requirements of the business. Therefore CTEC respectfully proposes that it would be sensible to amend the terms of the Award to remove this requirement for casual staff, as it would allow our engagement of staff to reflect the changing nature of their engagement depending upon the availability of work on each project.” 168
[190] The CFMEU opposed the variation, submitting that the statement of Mr Perumal is not sufficient evidence to justify a variation to the Building On-site Award. It submitted that there is no specific evidence of actual casual engagement of employees, or specific instances of problems with the application of the clause. The CFMEU submitted that this part of the casual employment clause is a common provision in the majority of modern awards and has been contained in most pre-modern awards for over 10 years.
[191] I am not persuaded that the variation should be made. Clause 14.3 appears in the terms of clause 13.4.2 of the NBCIA, having been inserted in 2002 169 to give effect to changes arising out the Casuals Case.170 That clause was carried over to the Building On-site Award, as occurred in respect of the equivalent provision of the Metal, Engineering and Associated Industries Award 1998,171 save that the words “actual or” were not carried over to the Manufacturing Award. The generalised evidence of Mr Perumal, which suggested the variation was “sensible”, falls well short of providing a basis for the variation in order to achieve the modern awards objective. No cogent reason exists to vary the terms of clause 14.3 as determined by the Award Modernisation Full Bench. The ABI application to vary clause 14.3 is refused.
8. HIA variations to the casual conversion process in clause 14.8, reflected in clauses 14.8(a), (d), (e), (f), (g), (h) and (j)
[192] The HIA sought a variation to clause 14.8—Casual conversion to full-time or part-time employment, on the basis that the terminology could be improved to make it clear that it provides a right to request to have employment converted to full-time or part-time and that the conversion is not automatic.
[193] Clause 14.8 of the Building On-site Award reflects the casual conversion clause determined in the the Casuals Case. 172 The Award Modernisation Full Bench included it in place of the more restrictive provision inserted by consent as clause 13.4.2 of the NBCIA173 which restricted the employment of casual employees on a regular and systematic basis to a period not exceeding six weeks:
“We have removed, from each award, restrictions on the maximum duration of casual employment, replacing them with a casual conversion clause.” 174
[194] The casual conversion provision is one reflected in many modern awards and in many pre-modern awards before 1 January 2002 in the terms formulated by the Full Bench in the Casuals Case. There is no evidence to suggest that those terms operate in a problematic way or in a way which is inconsistent with the Building On-site Award or more generally in respect of other modern awards containing the casual conversion clause. It is clear from the terms of clause 14.8(e) that conversion is subject to the right of an employer to refuse, providing the refusal is not unreasonable and subject to compliance with clauses 14.8(g) and (j). No cogent reason has been advanced for varying the Building On-site Award in the manner proposed by HIA. This part of the HIA application to vary is refused.
9. HIA application to vary the industry specific redundancy scheme (clauses 17.2 and 17.3 in respect of the definition of redundancy and the insertion of a new clause 17.3 which exempts employers who employ less than 20 employees at the time of the terminations)
[195] The HIA application seeks to replace the definition of redundancy to one more reflective of the National Employment Standards (NES) in s.119 of the Act and to exempt from the provision employers who employ less than 20 employees at the time of the terminations. The variations are supported by other employer associations.
[196] The HIA supports it application on the basis of submissions that:
● The industry specific redundancy scheme provided for in clause 17.3 presents a number of problems for small businesses in the residential sector of the industry.
● The current provision does not represent a fair minimum safety net.
● The current provision negatively impacts staff retention and requires employers to budget for resignation payments over which they have no control.
[197] The HIA also submitted that immediately prior to 1 January 2010, employees who were covered by a pre-modern award and are now covered by the a modern award were not entitled to the benefit of a payment of the nature provided for in the industry specific redundancy scheme now contained within the Building On-site Award, with the Full Court of the Federal Court of Australia finding that this was not an allowable award matter in the context of the pre-modern NBCIA.
[198] The HIA submitted that the definition of redundancy in clause 17.2 must still have regard to the overall aims and objectives of the Act, which were not relevant at the time the definition was first introduced into the predecessor NBCIA.
[199] The HIA submitted that the provisions in the redundancy provision in the NES would be more appropriate to meet the circumstances of the home building industry.
[200] The MBA submitted that whilst the Award Modernisation Full Bench decision 175 potentially means that the small business exemption does not apply to employees covered by the Building On-site Award, it falls short of an explicit statement as to that matter.
[201] The unions opposed the variation sought by the HIA. The CFMEU submitted that there is a very long and tortuous history in regard to the redundancy benefits payable under the building and construction industry awards and it was clearly a matter that was before the Award Modernisation Full Bench. It submitted that the Award Modernisation Full Bench determined to include in the Building On-site Award the industry specific redundancy scheme in the terms of clause 17 and there is nothing new, nor any other cogent reason, to depart from the decision of the Award Modernisation Full Bench when it made the Building On-site Award. The CFMEU also submitted that there has been no exemption for small business employers under any redundancy provisions in the on-site building and construction awards, particularly the NBCIA and its predecessors.
[202] The HIA, in supporting its variations argues the issues from first principles, advancing arguments put and considered by the Award Modernisation Full Bench in the making of the Building On-site Award, rather than in reliance on the matters within Item 6, Part 2 of Schedule 5 of the Transitional Provisions Act and without regard to the approach to the 2012 Review set out in the 29 June 2012 Award Modernisation Full Bench decision, 176 which considered preliminary questions as to the approach to be taken in the 2012 Review.
[203] The decision of the Award Modernisation Full Bench in respect of the terms of the industry specific redundancy scheme, including its broader application arising from the definition of “redundancy”, 177 specifically considered the terms and history of the redundancy prescriptions within modern awards in the building and construction industry178 and deviations within it from the NES.179 Most significantly the Award Modernisation Full Bench considered and rejected the suggestion that the definition of “redundancy” should be modified to reflect the NES,180 the very argument agitated in the current proceedings by the HIA, without identifying any changed circumstances or any other cogent reason to support variation of the Building On-site Award.
[204] The decision of the Award Modernisation Full Bench in respect of the small business exemption in the Building On-site Award is consistent with its general approach to the small business exemption within modern awards, reflected in its 19 December 2008 decision 181 in relation to the making of Priority modern awards. The approach taken—that as a general rule the small business exemption will be maintained, except for pre-modern awards and industries in which there was no small business exemption prior to the Redundancy Case 2004182—had regard to the full arbitral and legislative history of redundancy pay for employees of small business.
[205] The HIA has done nothing more than to re-argue some of the issues raised and determined by the Award Modernisation Full Bench in including in the Building On-site Award the industry specific redundancy scheme, in the terms of clause 17. The HIA has put no cogent reasons for altering the terms of clause 17 of the Building On-site Award which were the product of extensive debate and a considered decision by the Award Modernisation Full Bench. This claim by the HIA is refused.
10. Simplification/Rationalisation of allowances
[206] The allowance provisions in the Building On-site Award are lengthy and complex, largely reflecting a consolidation of allowances prescribed in pre-modern instruments. The need for rationalisation of the allowance provisions in the Building On-site Award was noted by the Award Modernisation Full Bench. 183 Similar observations were more recently made by the Full Bench184 which determined an MBA 2012 Review application to remove provisions which purport to regulate work health and safety on the ground that they are not lawful, which concluded:
“[83] The desirability of a rationalisation of allowance terms in the On-site Award raised by the Australian Industrial Relations Commission Full Bench in January 2009 remains. This may occur in the context of the 2012 Review of the On-site Award, which remains before Senior Deputy President Watson, to the extent that the particular terms are in issue and there is sufficient material and input from interested parties before him in relation to those particular terms. To the extent that particular terms which might benefit from review are not before his Honour or there is insufficient material for the purpose of the 2012 Review, any outstanding rationalisation of allowances in the On-site Award could occur in the 2014 Review.”
[207] The complexity of the allowance provisions led to proposed variations within the current applications directed to achieving some level of rationalisation of the allowance provisions:
● The MBA proposed a comprehensive overhaul of allowances;
● The CFMEU applied to add a new clause 22.1(f) providing for a consolidated special rates allowance.; and
● The HIA applied to vary, in an amended form, 185 the table in clause 19.1(a), minimum wages related to allowances and to include allowances in a new Schedule E186 of the Building On-site Award, represented as “skill” or “expense related” allowances not payable for all purposes or “disability” allowance payable for all purposes.187
[208] The various applications were subject to discussions between the interested parties but without resolution. Following those discussions, the MBA 188 and the HIA189 did not press their proposals, subject to pursuing them within the 2014 Review and the CFMEU did not press its application for a new clause 22.1(f) within the 2012 Review.
[209] Whilst the HIA did not press its application for a new schedule of allowances, nor its application for a differential application of certain allowances in respect of the residential building sector, 190 it maintained its application to vary the table in clause 19.1(a), minimum wages by including both the special and industry allowance in the minimum rate, creating “rolled up” rates that include certain all purpose allowances. Such a proposal is inconsistent with the approach of the Award Modernisation Full Bench to separately identify properly fixed minimum rates and any additional payments and allowances and describe the basis of their application,191 reflecting Item 26 of the consolidated Award Modernisation Request, and with s.139(2) of the Act which requires that “[a]ny allowance included in a modern award must be separately and clearly identified in the award”. This variation is refused.
[210] The HIA also proposed a number of variations as consequential amendments associated with its proposal to vary the table in clause 19.1(a), minimum wages. 192 Given my decision in respect of clause 19.1(a), the consequential amendments will not be made.
[211] No variation will be made to the allowance provisions in relation to the broader applications to rationalise allowance provisions. There are, however, a number of specific variations sought in relation to allowances, which fall outside the compass of the broad rationalisation proposals. They are considered later in this decision.
[212] I note that the major parties interested in the Building On-site Award have made some attempt in this 2012 Review to address the allowance issues raised by the Award Modernisation Full Bench, but no common approach between them has yet emerged. Partly because those parties have spent some time exploring common ground, there is limited material and evidence before me in relation to those issues and insufficient information for me to embark on a rationalisation of the allowance provisions. The MBA and the HIA have foreshadowed that they will revisit the issue in the 2014 Review. I encourage interested parties to further explore common ground in relation to the issue well in advance of the 2014 Review. Absent any level of agreement, any proposals to vary the Building On-site Award in the 2014 Review would need to be supported by evidence and argument. It may be that the major parties can bring their common experience to an assessment of the contemporary relevance and application of various allowances and proposals for consolidation based on some common practical understanding of the incidence and appropriate valuation of possible consolidated allowances and other relevant issues, which might reduce the burden on the parties to substantiate action to further address the allowance provisions in the Building On-site Award in the 2014 Review.
11. HIA application to vary clause 20.1(a)—tool allowance
[213] Clause 20.1(a) provides a tool allowance which must be paid for all purposes of the Building On-site Award, at different levels depending on the classification of the employee. Clause 20.1(b) provides for the reimbursement of the expense to employees where they provide particular tools. Clause 20.1(a) is expressed in similar terms to that of clause 24.3.1 of the NBCIA. 193
[214] The HIA submitted that the current drafting of clause 20.1(a) of the Building On-site Award places an undue financial burden on businesses in the industry. It agreed that where an employee provides and maintains their tools and protective boots an employee should be entitled to compensation in the form of an allowance but submitted that where the expense is not incurred—in circumstances where an employer provides the tools or the employee fails to bring the tools to work or maintain the tools so they are safe and suitable for use—the employee should have no entitlement to compensation. The HIA submitted that the variation simply desires to clarify that the allowance is payable when the expense is actually incurred.
[215] The HIA proposed that clause 20.1(a) be varied to read:
“A tool allowance must be paid for all purposes of the award in accordance with the following table, except where the employer provides the employee with all tools and protective boots necessary to carry out the work or if the employee fails to bring tools to work or to maintain tools so that they are safe and suitable for use.” 194
[216] The HIA variation was supported by other employer organisations and opposed by the unions. In opposing the variation, the CFMEU submitted that the tool allowance is not payable for the provision of tools but for the maintenance of the tool kit that the employee provides. The payment of the tool allowance is nothing new under the construction awards and has been payable as part of the all purpose rate for on-site tradespeople since the first pre-modern awards/instruments were ever made and that the HIA brought no evidence of the tools that are provided by the employers and whether those tools they provide are fit for the job.
[217] I am not persuaded that the HIA has established cogent reasons for the variation. Clause 20.1(a) was included in the Building On-site Award in terms reflecting the NBCIA provision which has a longstanding history. The HIA has sought to justify its variation by way of a “‘fresh assessment’ unencumbered by previous Tribunal authority” 195 without little regard to the approach to the 2012 Review set out in the 29 June 2012 decision of the Award Modernisation Full Bench.196 The HIA has not established cogent reasons for departing from the provision incorporated into the Building On-site Award having regard to the submissions put to it and the provisions within pre-modern instruments.
12. HIA application to vary clauses 24.3 and 24.4—living away from home
[218] The HIA applied to vary clause 24.4(a)—Messing system on the basis that the interaction between clause 24.4(a) and clauses 24.3(a)(i) and 24.3(a)(ii) was unclear and that were these provisions to operate simultaneously, this would produce an anomalous outcome.
[219] In its amended form 197 the HIA proposed variation would replace clauses 24.3, 24.4 and 24.5 with a new clause 24.3 and 24.4 (with rates reflecting 1 July 2013 levels) as follows:
“24.3 Entitlement
Where an employee qualifies under clause 24.1 the employer will:
(a) pay a living away from home allowance of $438.25 per complete week. In the case of broken parts of the week the living away from home allowance will be $62.70 per day. This allowance may be increased if the employee satisfies the employer that the employee reasonably incurred a greater outlay than that prescribed; or
(b) provide the worker with reasonable board and lodging in a well kept establishment with three adequate meals each day.
(c) The accommodation provided will be of a reasonable standard having regard to the location in which work is performed, including the provision of reasonable ablution/laundry, recreational and kitchen facilities, as well as reasonable external lighting, mail facilities, radio or telephone contact and fire protection.
24.4 Entitlement–Camping
(a) Where an employee qualifies under clause 24.1 the employer will:
i. Where 10 or more employees are engaged, the employer will provide a cook. If there are less than 10 employees, the employer must reimburse employees for food reasonably purchased by them for their own use or must reimburse the reasonable cost of meals consumed in the nearest recognised centre
ii. In camps over 30 people the employer must employ a camp attendant.
Camp attendant means an employee engaged for the purpose of maintaining a camp in a clean and hygienic condition.
iii. In all camps the employer must provide labour for the purpose of maintaining the camp in a clean and hygienic condition.
(b) Where an employer has established a camp site and provides facilities for employees living in their own caravan, the employer must provide reasonable space for the caravans. An employee living in a construction camp where free messing is not provided must receive a camping allowance of $186.08 for every complete week the employee is available for work. In the case of broken weeks, the camping allowance will be $26.56 per day including any Saturday or Sunday if the employee is in camp and available for work on the working days immediately preceding and succeeding each Saturday and Sunday. If an employee is absent without the employer’s approval on any day, the allowance will not be payable for that day and if such unauthorised absence occurs on the working day immediately preceding or succeeding a Saturday or Sunday, the allowance will not be payable for the Saturday and Sunday.
(c) Where a charge is made for meals in a construction camp, the charge will be fixed by agreement between the employer and the majority of affected employees.
(d) Clause 24.4 applies to the exclusion of clause 24.3.”
[220] The HIA submitted that there is confusion in the industry with the amended variation seeking to clarify that there exists two distinct types of living away from home arrangements: 198
(i) when the employee is provided with a monetary allowance or when the employee is provided board and lodging and three meals per day; and
(ii) a camping scenario in which for camps of more than 10 a cook must be engaged or if less than 10, reimbursement of food related expenses occurs.
[221] The HIA submitted that the most significant change is the new clause 24.4(d) which states how the exclusion would operate.
[222] The CFMEU expressed some sympathy for the initial variation put forward by the HIA, which was to simply add to the existing prescription in clause 24.4(a) with a proviso that it will not apply where the employee is provided with three meals per day in accordance with clause 24.3(a)(ii).
[223] As originally proposed, the HIA variation altered clause 24.4(a) by the addition of the words underlined below:
“Where 10 or more employees are engaged, the employer will provide a cook. If there are less than 10 employees, the employer must reimburse employees for food reasonably purchased by them for their own use or must reimburse the reasonable cost of meals consumed in the nearest recognised centre, provided this subclause will not apply where the employee is provided with three meals per day in accordance with clause 24.3(a)(ii).”
[224] The CFMEU did, however, have a major concern with the HIA’s amended variation. In this regard, it submitted that clause 24.3(b) requires accommodation of reasonable standard in respect of employees living away from home. The CFMEU submitted that if the provision about employees living in camp is taken out of clause 24.3(a), it would be necessary to replicate clause 24.3(b) in any new clause, adding an unnecessary complication to the Building On-site Award. The CFMEU submitted that there is no evidence of confusion in any case, but if the Commission were persuaded to vary the Building On-site Award, the variation originally proposed by the HIA would deal with the problem they have identified.
[225] The most significant element of the HIA variation is to make it clear that the entitlement to reimbursement for meals does not apply where the employer provides all meals. That is a proposition with which the CFMEU has some sympathy. The amended variation seeks to restructure the provision to make it clearer. However, that clarity is not readily apparent. Further, as proposed by HIA, the amended provision seems to exclude the possibility to utilise camps, which the MBA sought to address by a further amendment. 199
[226] I am satisfied that there is uncertainty within the current clauses 24.3—Entitlement and 24.4—Messing system which should be rectified in the interest of simple, easy to understand modern awards within the modern awards objective. That uncertainty relates to whether an employer is required to reimburse the cost of meals in circumstances where the employee is provided with three meals per day in accordance with clause 24.3(a)(ii). That clarity is achieved by the variation in the form initially proposed by the HIA. The further renumbering of clauses 24.3 and 24.4 does not achieve the further clarification suggested and, unless further amended, creates unintended consequences.
[227] I am persuaded to vary clause 24.4—Messing system, but in the terms reflected in the HIA’s initial application, as reworded in paragraph 223.
13. HIA application to vary clauses 25.2–25.8—Fares and travel patterns allowance—(subject to the agreed position in relation to clause 25.5 as reworded in the table in paragraph 35 above)
[228] The HIA proposes that clauses 25.2 to 25.8 be deleted and replaced with:
“25.2 Fares and excess travelling allowances
a) The fares and travelling time allowances are daily allowances where the employee is required to:
i. start or finish work at a job site; and
ii. uses his/her own vehicle or uses public transport.
b) The fares and travelling time allowances are not payable for any day on which the employee:
i. is absent from work, or
ii. is required to start or finish work at the employer’s workshop, yard or depot, or
iii. is provided with by the employer, or is offered to be provided with by the employer, accommodation that is located at the job site.
c) The fares allowance is not payable for any day on which the employer provides, or offers to provide, the employee with transport from where the employee is living to the job site and return (including transport provided by the employer when the employee is working at a distant job site).
d) Fares allowance
Subject to clauses 25.2 (a), (b) and (c), employees will be paid a fares allowance of $17.01 per day.
e) Excess travelling allowance
If an employee travels beyond the defined radius, in addition to the fares allowance in clause 25.5, the employee will be entitled to:
i) payment for time reasonably spent in travelling from the boundary of the defined radius and return to the boundary of the defined radius, calculated at ordinary on-site rates to the next quarter of an hour
ii) any excess expenses reasonably and necessarily incurred in travelling from the boundary of the defined radius and return to the boundary of the defined radius, which will be $0.46 per kilometre where the employee uses their own vehicle.
iii) The defined radius is 50km from the centre of employment as determined by the employer by reference to one of the following options:
A. the employer’s normal base establishment or workshop;
B. the GPO, or Principal Post Office of the capital city or major regional centre for all employers whose base establishment or workshop is within the defined radius from the said Post Office;
C. the local Post Office closest to the employer’s establishment or workshop beyond the defined radius of the Post Offices listed above;
D. in the case of employees engaged on distant work (as defined) the place at which such employees are domiciled with the approval of their employer, for that distant job;
E. in the case of an employer that does not have a fixed base establishment or workshop, the Post Office closest to the town or city nominated by the employer as the place where the employee ordinarily carries out work. The nominated town or city may be changed upon the employer providing 2 weeks notice of the change to the employee.” 200
[229] The proposed variation seeks to limit the payment of the fares and travel patterns allowance when an employee uses their own vehicle or public transport. That element of the variation overlaps with the variations to clause 25.8—Provision of transport, which is considered immediately below.
[230] Otherwise the HIA variation is based on the proposition that a lack of specificity comparative to a number of pre-modern awards as to the appropriate radial area to choose creates the anomalous situation that:
● Radial areas may overlap.
● Employers faced with a construction site located within overlapping radial areas are at a loss as to determine which radial area is appropriate.
● Such factors introduce uncertainty as to the appropriate calculation of other clauses within clause 25 as these are influenced by the deduction of a “radial area”.
[231] The HIA proposes that these issues be addressed by its variation which links the appropriate radial area to the location where the employee is originally engaged on work, as nominated by the employer.
[232] The CFMEU opposed the variations to clauses 25.2–25.8, save for the variation to clause 25.5—Travelling outside radial areas, in the form agreed with the HIA and considered in paragraphs 35–42. The CFMEU submitted, in relation to the additional elements of the HIA claim, that the wording of the clause creates much confusion for employers and employees and is not supported by evidence of actual confusion on the ground, with the HIA relying on hypothetical examples to substantiate the existence of confusion.
[233] Further, the CFMEU submitted the HIA seeks to make substantial changes to the clause which would in effect allow an employer carte blanche scope to change the radial area to determine an employee’s entitlement on each job, with:
● the employer determining the defined radius by reference to one of several options;
● the nominated town or city may be changed upon the employer providing two weeks’ notice of the change to the employee, with entitlements dependent upon the fluctuating decisions of the employer; and
● a substantial change to the entitlements available to employees, without evidence to justify a change.
[234] Clause 25—Fares and travel patterns allowance was included in the Building On-site Award in its current form by the Award Modernisation Full Bench having regard to the terms of pre-modern instruments and the submissions of interested parties, including, at the exposure draft stage, reflecting a formulation of travel and distant work provisions of the MBA. 201
[235] The HIA brought no evidence of practical problems arising from clause 25, no evidence of changed or otherwise significant circumstances, nor any evidence to support substantive changes to the operation of the provision, through the variation it proposes by reference to the modern awards objective, or by establishing an anomaly or technical problem. No cogent reason has been advanced to vary clause 25 in the manner proposed by the HIA. This variation is refused.
14. HIA and MBA applications to vary clause 25.8—Provision of transport, daily fares and travel patterns allowance
[236] The variation is sought so that payment is not payable where an employer provides a vehicle:
● “where the employer provides a company vehicle to the employee for the employee’s benefit” (HIA); or
● “when an employee receives a vehicle free of charge inclusive of free fuel” (MBA).
[237] The applications are directed, on their face, to remove the entitlement to employees to the fares and travel patterns allowance in circumstances where an employee derives some private benefit from the supply of a vehicle by their employer. The applications are directed to the same effect as the MBA application in AM2009/162, which sought to add a new clause 25.8(c):
“In order to be eligible for the allowance prescribed in this clause, the vehicle provided by the employer must be used solely for purposes related to the employee's employment. Where the vehicle is also used for private use or some other benefit, the allowance will not be payable.” 202
[238] That application was rejected by the Award Modernisation Full Bench on the basis that:
“The variation sought is inconsistent with the terms of cl.38.6 of the NBCIA, upon which cl.25.8 is based. No circumstances have been raised which persuade us to give effect to this variation.” 203
[239] Neither the MBA nor the HIA have provided any cogent reason why the decision of the Award Modernisation Full Bench in making the Building On-site Award and in refusing the similar application by the MBA should be disturbed.
[240] In any case, the applications are flawed.
[241] First, the HIA and MBA submissions do not establish any basis upon which the daily fares and travel patterns allowance described in clause 25.1 would not apply because an employee enjoys some private benefit from an employer provided vehicle. There is no association, or logical trade-off between the two.
[242] The MBA, for example, submitted that:
“Given that the fares and travel patterns allowance is intended to compensate the ‘travel patterns and costs peculiar to the construction industry, which include mobility in employment and the nature of employment’, it would appear unnecessary to provide the allowance where an employee’s travel is effectively free of charge due to the provision of a vehicle”. 204
[243] It is immediately clear, that the variations sought are erroneously premised on the basis that the fares and travel patterns allowance is prescribed solely in compensation for travel costs.
[244] The misconceived basis of the fares and travel patterns allowance on which the MBA and HIA submissions are demonstrated on the face of clause 25.1, which requires employees to start and cease work on-site, without payment for travel except in the circumstances specified in clauses 21.1, 24.7, 25.5, 25.7 and 36.3. It then provides that the fares and travel patterns allowance recognises travel patterns and costs peculiar to the on-site building and construction industry, which include mobility in employment and the nature of employment on construction work. The two elements are related. As observed by the CFMEU, the provision has a long history, recounted up until 1979 by a Full Bench of the Commonwealth Conciliation and Arbitration Commission in an anomaly matter concerning The National Building Trades Construction Award 1975. 205 The Full Bench approved an increase in the allowance, but noting that problems had arisen from misleading and changing titles to the allowances, they did so on the basis that the title of the clause reflected the purpose of the allowance, renaming it “Compensation for travel patterns, mobility requirements of employees and the nature of employment in the construction work covered by this award”.206
[245] Secondly, the HIA variation does not deal with the extent of private benefit and the MBA variant does not require private benefit at all, simply the provision of a vehicle at no cost to the employee for unstated reasons. There is a world of difference between the private benefit of a fully maintained vehicle provided for unlimited private usage and one provided as a “tool of trade” subject to Fringe Benefit Tax exemption, conditional upon private use of certain vehicles “limited to certain work-related travel and non-work-related use that is minor, infrequent and irregular”. 207
[246] The HIA and MBA proposition that the allowance is provided wholly in relation to travel expenses incurred by employees and should not be paid when the employer meets the costs of transport, ignores the history of clause 25.1, the basis of the fares and travel patterns allowance and the nature of the industry. Those elements of the HIA and MBA applications are dismissed.
15. ABI application to vary clause 31.4 to make the requirement to pay wages on termination “as soon as is reasonably practicable”
[247] Clause 31.4 of the Building On-site Award provides that:
“When notice is given, all monies due to the employee must be paid at the time of termination of employment. Where this is not practicable, the employer will have two working days to send monies due to the employee by registered post (or where paid by EFT the monies are transferred into the employee’s account).”
[248] The immediacy of payment has historically reflected the high incidence of short-term employment within the industry.
[249] ABI submitted the provision adversely impacts employers in relation to productivity, employment costs and the regulatory burden. It submitted that the provision is outdated and administratively burdensome in that it requires processing of payments outside of the business’ normal pay run and fails to reflect external banking deadlines outside of the employer’s control, in a number of circumstances termination payments can be delayed, resulting in a technical breach of the Building On-site Award.
[250] It relied on the evidence of Mr Perumal that:
“The award also requires that CTEC and our contractors to makes [sic] termination payments within one day of termination of employment. Such requirement places a significant extra administrative burden upon CTEC and our contractors to avoid breaches of clause 31.4 of the Building and Construction Modern Award. Employees on CTEC’s project are often engaged in isolated areas, and in the event of termination of an employee, CTEC would find it more manageable if the final pay is made in accordance with its usual pay run. The proposed amendment would remove the administrative burden of running an isolated pay run for each employee that is terminated.” 208
[251] In its oral submissions, ABI indicated that it was prepared to alter its proposed variation to add the words “requiring payment no later than the employees next usual pay day” to assist in the objective of providing a fair safety net. 209
[252] Subject to that amendment, clause 31.4 as proposed by ABI would read:
“When notice is given, all monies due to the employee must be paid as soon as is reasonably practicable, requiring payment no later than the employees next usual pay day.”
[253] The CFMEU opposed the variation, submitting that the evidence brought by ABI does not justify a variation, being premised on the proposition that payment is required within one day of termination of employment, whereas the current clause also provides that where this is not practicable the employer will have two working days to send moneys due to the employee by registered post or where paid by EFT the moneys are transferred into the employee’s account. It submitted that there is nothing cumbersome or a burden on employers to pay someone within two working days of termination and there was no justification for the variation.
[254] The CFMEU submitted that the payment provision, upon termination, was reflected in similar terms in other modern awards and in a 2012 Review application made in similar terms by ABI in respect of the Graphic Arts, Printing and Publishing Award 2010 210 which had been refused.
[255] The AWU opposed the variation on the same basis as the CFMEU and also submitted that the existing provision is appropriate in the particular circumstances of the on-site building and construction industry which is based on short-term project work and an often itinerant workforce.
[256] I am not persuaded that there are cogent reasons to depart from the provisions within clause 31.4 of the Building On-site Award determined by the Award Modernisation Full Bench. The requirement for payment upon termination on the day of termination or the next working day is found in other modern awards 211 in terms which are more onerous than the Building On-site Award provision, which provides additional flexibility in circumstances where payment at the time of termination of employment is not practicable. The evidence of Mr Perumal, was premised on an absolute requirement for payment at the time of termination and the proposition that the variation is “more manageable” is insufficient to justify departure from the provision determined by the Award Modernisation Full Bench. Further, the evidence and the variation had no regard to the interests of employees in the particular circumstances of the industry. The variation is refused.
16. HIA application to vary clause 33—Ordinary hours of work–day works
[257] The HIA submitted that the current ordinary hours provisions are unable to accommodate the needs of the industry and fail to reflect a paradigm shift in the way people work and the immediacy with which people demand services and this has impacted on how a business can operate. It submitted that the Building On-site Award needs to be varied in order to reflect this change in circumstances to provide flexibility to work more than eight (ordinary) hours per day.
[258] The HIA proposed the following amended variation:
“Delete the current clause 33.1 and 33.1(a) and replace with:
33 Ordinary Hours of Work–Day works
33.1 Except as provided elsewhere in this award, the ordinary hours of work for an employee are 38 or an average of 38 hours per week not exceeding 153 hours in 28 days.
a) Ordinary hours for a day worker must be worked as eight hours per day, between 6.00 am and 6.00 pm Monday to Friday, over a 20 day four week cycle, with 0.4 of one hour of each day worked accruing as a paid rostered day off in each cycle.
b) Where it is agreed between a majority of employees and the employer that a paid rostered day off in each cycle is not practicable then agreement may be reached in writing on an alternative method of implementing ordinary hours, including:
i. 38 hours within a work cycle not exceeding seven consecutive days;
ii. 76 hours within a work cycle not exceeding 14 consecutive days;
iii. 114 hours within a work cycle not exceeding 21 consecutive days;
iv. 152 hours within a work cycle not exceeding 28 consecutive days; or
v. any other work cycle during which a weekly average of 38 ordinary hours are worked.
c) Not more than 10 hours exclusive of meal breaks (except if paid overtime rates) are to be worked in any one day.
d) By agreement between the employer and the majority of employees concerned, ordinary hours ordinary hours not exceeding 12 hours on any one day may be worked.
e) The paid rostered days off must be implemented:
i. by the employer fixing one day in a cycle on which all employees will be off;
ii. by the employer rostering employees off on various days in a cycle so that each employee has a paid rostered day off during the cycle; or
iii. by any other method which is agreed to by the employer and a majority of employees.
f) Where any paid rostered day off falls on a public holiday, the next working day must be taken instead of the paid rostered day off unless an alternative day is agreed in writing between the employer and an employee.
g) Each day of paid leave (except the paid rostered day off) and any public holiday taken during a cycle of four weeks must be regarded as a day worked for accrual purposes.
h) Where the working of the 38 hour week is agreed to in accordance with this clause, an employee and the employer may agree to a banking system of up to a maximum of five rostered days off. An employee would therefore work on what would normally have been the employee’s rostered day off and accrue an entitlement to bank a rostered day off to be taken at a mutually convenient time for both the employee and the employer, provided not less than five days’ notice is given before taking the banked rostered day(s) off.
i) No payments or penalty payments are to be made to employees working under this substitute banked rostered day off. However the employer will maintain a record of the number of rostered days banked.
j) An employee who has not worked a complete 19 day four week cycle must be paid accrued pro rata entitlements for each day worked on the rostered day off or, in the case of termination of employment, on termination.
[k] An employee who works on a paid rostered day off, or any substituted day, must be paid the penalty rates and provisions prescribed for Saturday work in clause 37—Penalty Rates.” 212
[259] The HIA submitted that there are working hour scenarios that cannot be accommodated by the current provisions within the Building On-site Award—providing hypothetical examples of rosters for work, week one being Monday to Thursday of 10 hours a day or Monday to Saturday working eight hours a day and week two being Monday to Thursday at seven hours a day. It submitted that such working arrangements can be accommodated within other related modern awards—in the Manufacturing Award, the Timber Industry Award and the Joinery Award.
[260] The CFMEU, and the other unions, opposed the variation proposed by the HIA. The CFMEU submitted that the hours of work provisions that are proposed to be included in the Building On-site Award were in issue before the AIRC Full Bench and the Part 10A award modernisation process, with the Ai Group, HIA, ABI, Australian Federation of Employers and Industry and MBA seeking more “flexible” provisions. It submitted that the matter now raised by the HIA was clearly a matter before the Award Modernisation Full Bench. Further, it submitted that the HIA brought no evidence in regard to the working of the hours suggested by the HIA notwithstanding the prevalence of enterprise agreements in the building and construction industry, which would support such arrangements if they applied in the industry. It submitted that there is no sufficient reason to vary a matter determined in the Part 10A award modernisation process.
[261] The HIA submission re-argued the basis of the hours provision in the Building On-site Award, a matter specifically considered by the Award Modernisation Full Bench when making the Building On-site Award. The HIA provided no evidence of changed circumstances, the effect of the current award provisions at a practical level or other cogent reasons to support the variation of the provision determined by the Award Modernisation Full Bench in light of similar arguments advanced before it during the Part 10A award modernisation process. No cogent reasons have been established to vary the hours provision in clause 33—Ordinary hours of work. This variation proposed by the HIA is refused.
17. MBA application to vary clause 34—Shiftwork
[262] Clause 34—Shiftwork of the Building On-site Award provides for dual regimes, with clause 34.1 regulating shiftworkers in the general building and construction and metal and engineering construction sectors, and clause 34.2 covering shiftworkers in the civil construction sector. 213 Whilst the Award Modernisation Full Bench invited further input from interested parties directed to simplification of the provisions and some degree of commonality of shift provisions, the Building On-site Award as published retained the separate provisions.
[263] The MBA variation did not go to simplification or greater commonality between the two sets of provisions, with the MBA submitting that it is very difficult to resolve the differences between shift loadings and definitions without markedly increasing or decreasing entitlements. However, the MBA proposed simplifying amendments to clause 34 to “make its interpretation easier, in relation to shift definitions and loadings” as follows: 214
● shift definitions in clause 34.1(a) “re-drafted based on when they commence, rather than cease”;
● remove the reference to “ordinary hours” in clause 34.1(d), which, the MBA submitted, was included by error;
● vary clause 34.1(e) to include reference to “morning” and “early morning” shifts and also providing that “24 minutes of each eight hour shift will accrue towards a rostered day off”; and
● commonality of terminology in relation to the “application of overtime, weekend and public holiday loadings for shift workers” between clauses 34.1 and 34.2 provisions.
[264] The MBA proposed that shift definitions in clause 34.1(a) be re-drafted based on when they commence to achieve consistency with the mode of expressing shift times in clause 34.2. Whilst the CFMEU was prepared to consult with the MBA in relation to defining shifts by reference to the time of commencement rather than cessation, it opposed the MBA variation to do so absent an agreed provision. I am satisfied that the variation, which is not intended to alter the effect of the provision, would provide greater consistency at least with the manner of expressing shift times with that used in clause 34.2 and would provide greater clarity. The variation will be made, so that clause 34.1(a) will read:
(a) Definitions
For the purposes of this clause:
afternoon shift means a shift commencing at or after 1.00 pm and before 3.00 pm
night shift means a shift commencing at or after 3.00 pm and before 11.00 pm
morning shift means a shift commencing at or after 4.30 am and before 6.00 am
early afternoon shift means a shift commencing on or after 11.00 am and before 1.00 pm.
[265] Limited submissions were made in relation to the MBA application to remove the reference to ordinary hours in clause 34.1(d). It is not clear that the reference to ordinary hours is in error and no clear basis has been established for the removal of the reference. This variation will not be made.
[266] In relation to the references to “morning” and “early morning” shifts proposed by the MBA, the CFMEU did not oppose the concept, but submitted that the references should be to “morning” and “early afternoon” shifts and the reference in clause 34.1(e) to “rostered day off” proposed by the MBA should be to “paid rostered off shift”, to achieve consistency with clause 34.2. Clause 34.1(e) in its present form does not include reference to each of the shifts defined in clause 34.1(a) but would apply to each of them. For clarity, clause 34.1(e) will be varied to include “morning” and “early afternoon” shifts, as defined in clause 34.1(a). Further, the addition proposed by the MBA to clarify the accumulation of time for the taking of “paid rostered off shift”, applying the terminology of clause 34.2(d) for consistency. Clause 34.1(e) will be varied to read:
(e) The ordinary hours of morning, early afternoon, afternoon and night shift will be eight hours daily inclusive of meal breaks. Provided where shiftwork comprises three continuous and consecutive shifts of eight hours each per day, that 24 minutes of each shift will accrue towards a rostered off shift and a crib time of 20 minutes duration will be allowed on each shift, and will be paid for as though worked. Such crib time will be instead of any other rest period or cessation of work elsewhere prescribed by this award.
[267] The MBA submitted that even if the other changes which it proposed to achieve rationalisation of how shifts are defined were not given effect, clause 34.1(g) should be varied to remove any uncertainty by making notice required by the ceasing time of the proposed day shift in clause 34.1(g)—i.e. 7.00 pm. It submitted that such a variation was required because clause 34.1(g) states that the “hours for shiftworkers, when fixed, must not be altered except for breakdown or other causes beyond the control of the employer, provided that notice of such alteration must be given to the employee not later than the ceasing time of the previous day shift”, but “day shifts” are not defined in clause 34.1.
[268] In its submissions, the Ai Group contended that clause 34.1(g) should be amended to require notice not later than ceasing time of the previous “day’s shift”, rather than “day shift”, so that it is a reference to the ceasing time of the previous equivalent shift, rather than to a day shift which is not defined in the Building On-site Award.
[269] The CFMEU was not opposed to the clarification of clause 34.1(g) or a variation to make it clear so that it is a reference to the previous equivalent shift. It did oppose the variation in the form proposed by the MBA because it would increase the spread of ordinary hours per day and affect employees’ entitlement to payment.
[270] There is agreement that the terms of clause 34.1(g) are ambiguous in the reference to “day shift” and should be corrected. I am satisfied that it does constitute a technical problem and requires correction. The correction should be limited to providing clarity. There is no basis for the broader variation, as proposed by the MBA, which would alter ordinary hours for day workers. Further, the inclusion of day work within shift arrangements might create uncertainty as to the possible application to day workers of other incidents of shiftwork, clause 34.1(g) will be varied to read:
(g) The hours for shiftworkers, when fixed, must not be altered except for breakdowns or other causes beyond the control of the employer, provided that notice of such alteration must be given to the employee not later than the ceasing time of their previous shift.
18. HIA application to vary clause 36.2—Overtime penalty rates and computing overtime
[271] Clause 36.2 of the Building On-site Award provides:
“All time worked beyond an employee’s ordinary time of work (inclusive of time worked for accrual purposes as prescribed in clauses 33—Ordinary hours of work and 34—Shiftwork), Monday to Friday, must be paid for at the rate of time and a half for the first two hours and at double time thereafter.”
[272] The HIA submitted that clause 36.2 is confusing and does not clearly state whether overtime is to be computed on a daily or weekly basis, requiring the clause to be read in conjunction with the hours of work clause in clause 33 of the Building On-site Award. The HIA proposed 215 that clause 36.2 be varied to read:
“36.2 Overtime penalty rates and computing overtime
(a) All time worked beyond an employee’s ordinary time of work (inclusive of time worked for accrual purposes as prescribed in clauses 33—Ordinary hours of work and 34—Shiftwork), Monday to Friday, must be paid for at the rate of time and a half for the first two hours and at double time thereafter.
(b) Except as provided for in clause 36.11, in computing overtime each day’s work will stand alone.”
[273] It may be seen that the variation is, in substance, directed to the inclusion of a provision that in computing overtime each day’s work will stand alone. The HIA submitted that there is confusion as to the calculation of overtime, reflected in the evidence of Ms L Cooper, Workplace Services Manager with the HIA, to which was attached inconsistent advices from the Fair Work Ombudsman as to the calculation of overtime. The HIA’s experience under previous pre-modern awards was that “overtime was payable when either an employee was engaged for more than eight hours in a day or over 38 hours in one week”. 216
[274] The HIA has not established a need for clarification of the overtime provisions. The proposed clause 36.2(b) simply reflects what is clear from clause 33.1 of the Building On-site Award, which specifies that except for shiftwork the ordinary hours are “38 per week, worked between 7.00 am and 6.00 pm, Monday to Friday”; clause 33.1(a)(i), which provides that when working the RDO roster cycle the ordinary working hours are eight hours per day; clause 33.1(a)(vii), which provides that if a non RDO cycle is worked, “no more than eight ordinary hours are worked in any one day”; and clauses 34.1(e) and 34.2(c), which specify that the ordinary hours for shiftworkers are eight hours per day. The variation proposed will not be made.
19. AMWU application to vary clause 43 in relation to Forepersons/supervisors - a new clause 43.6–Definitions, amend wording in clause 43.1 and text in 43.2 and to vary Schedule B–Classification definitions in relation to work in technical fields and engineering construction technical
[275] The AMWU application initially sought several variations:
1. To vary clause 43.1 by deleting the words “but do not apply to any employer employing fewer than 30 employees” so that the clause reads as follows:
“43.1 These special conditions apply to forepersons and supervisors in the metal and engineering construction sector covered by this award.”
2. By inserting a new clause 43.6–Definitions as follows:
“43.6 Definitions
(a) Foreperson/supervisor shall mean an employee (other than a leading hand) appointed as such or required by his/her employer to be mainly engaged in the direct supervision of employees including those employed as leading hands, covered by this award.
(b) General foreperson/supervisor shall mean an employee appointed as such or required by his/her employer to be mainly engaged in the direct supervision and coordination of the work of at least two forepersons/supervisors as defined in Clause 43.6(a).”
3. By varying the table appearing in clause 43.2 by:
(i) Removing “the text ‘provided that where only juniors and/or apprentices are supervised, the minimum wage rate to be paid is $757.00 per week’ in the definition of General foreperson/supervisor under the heading ‘Supervision of three or more tradespersons.’”
(ii) Inserting “the following text below into the definition of Foreperson /supervisor under the heading ‘Supervision of other than three or more tradespersons, excluding leading hands’ so that definition in full reads:
The average of the weekly wage rates for 38 ordinary hours of work, including payments applicable from time to time to the adult employees (excluding leading hands) plus $98.37, or $843.40, whichever is the greater, provided that where only juniors and/or apprentices are supervised, the minimum wage rate to be paid is $843.40 per week.”
4. The AMWU also applied to vary Schedule B—Classification Definitions in relation to work in technical fields as follows:
(i) “By varying Schedule B heading B.1.13, so that it reads as follows:
Work in a technical field includes:”
(ii) By varying Schedule B to give effect to drafting changes to move content under the heading of “Engineering Construction Technician Level . . .” in various classification levels.
[276] The AMWU submitted 217 that the Building On-site Award contains a number of anomalies and technical problems:
(a) “The savings provision in clause 43.1 should not have been carried through into the Modern Building Award. This clause also existed in pre-modern awards, such as Part V, Clause 3.3 of the Metal, Engineering and Associated Industries Award 1998 (“Metals 1998 – Part V) and Appendix B, Clause 2.2 of MECA 2002, respectively. It was properly dropped from the Manufacturing and Associated Industries and Occupations Award 2010, and it is an anomaly in the Modern Building Award.”
(b) “The definitions and the wage rates in the table at 43.2 are also anomalous.
i) It is anomalous and inappropriate that the general foreperson in both categories has a lower minimum wage rate than the foreperson; the general foreperson is responsible for supervising those workers employed as forepersons.
ii) It is anomalous and inappropriate for those who have the ‘supervision of other than three or more tradespersons,’ have a higher minimum rate than that of an employee who is supervising three or more trades.”
(c) “The term ‘technical area’ is defined in Schedule B.1, but does not appear anywhere else in Schedule B whereas the term ‘technical field’ does.”
(d) “The provisions relating to engineering construction technicians in Schedule B.2 Classifications and related issues are anomalous; they appear as bullet points following a colon related to completed training requirements for engineering construction tradespersons.”
[277] During a conference held on 22 November 2012, the AMWU advanced amended variations but advised in correspondence of 5 December 2012 that it no longer pressed the variations, as amended, reverting to its initial application, subject to reserving its right to re-agitate the amended position during the 2014 Review.
[278] In correspondence of 7 December 2012, the AMWU advised that it had clarified the wording of its original application in light of discussions at a conference held on 6 December 2012, again reserving its right to make a further application during the 2014 Review. The variations ultimately sought through the 2012 Review were as follows:
Variation 1: Clause 43.1–Opposed by other parties, to be arbitrated:
“43.1 Application
These special conditions apply to forepersons and supervisors in the metal and engineering construction sector covered by this award.”
[deleting “, but do not apply to any employer employing fewer than 30 employees.”]
Variation 2: Clause 43.6–Agreement between parties by inserting a new clause:
“43.6 Definitions
(a) Foreperson/supervisor shall mean an employee (other than a leading hand) appointed as such or required by his/her employer to be mainly engaged in the direct supervision of employees including those employed as leading hands, covered by this award.
(b) General foreperson/supervisor shall mean an employee appointed as such or required by his/her employer to be mainly engaged in the direct supervisions and coordination of the work of at least two forepersons/supervisors as defined in clause 43.6(a) but shall not include site managers, nor departmental heads and the like.”
Variation 3: Clause 43.2–Agreement between parties
Move the words “Provided that where only juniors and/or apprentices are supervised, the minimum wage rate to be paid is $843.40 per week.” in Table 43.2 Wages from the General foreperson/supervisor row and Supervision of three or more column to the Foreperson/supervisor row and Supervision of other than three or more column and insert the correct amounts.
Variation 4: Schedule B.1.13–Agreement between parties
In the prelude alter “area” to “field” i.e.:
B.1.13 Work in a technical field includes:
Variation 5: Schedule B–Agreement between parties
Formatting changes as contained in marked up form at pages 3 to 18 of the 7 December 2012 correspondence of the AMWU.
[279] The variations finally proposed by the AMWU, and the identification of whether the amended variations were agreed or not, were posted on the Commission’s website. My 11 December 2012 statement 218 afforded interested parties the opportunity to make written submissions in relation to the variations by 18 December 2012. No further submissions were received.
[280] Variations 2–5 are agreed. Variation 1, the deletion of the exclusion of any employer employing fewer than 30 employees from the operation of the special provisions for forepersons and supervisors is opposed.
[281] The Building On-site Award will be varied in respect of the agreed variations. I am satisfied that in each case the variations correct error or technical deficiencies arising from the incorrect or incomplete translation of the pre-modern award conditions in the National Metal and Engineering On-site Construction Industry Award 2002 219 (MECA 2002) for supervisors and engineering construction classifications and aids award users in determining which parts of the modern award apply to or affect Engineering Construction Technicians at the appropriate classification level.
[282] The final variation arising from the AMWU application is its application to remove from clause 43.1—Application—the exclusion in relation to an “employer employing fewer than 30 employees”. The effect of the proposed variation would be to extend the application of the special provisions in clause 43 to forepersons and supervisors in the metal and engineering construction sector covered by the Building On-site Award, including the weekly minimum wage rate prescribed in clause 43.2.
[283] The AMWU supported the variation by reference to the historical context of the exclusion:
● The Building On-site Award is a consolidation of a number of pre-modern awards/instruments which includes the MECA 2002 which was preceded by the National Metal and Engineering On-site Construction Industry Award 1989 220 (MECA 1989);
● MECA 1989 – Part III was intended to be a redraft of Part V of the Metal Industry Award 1984 – Part V – Foremen and Supervisors 221 (Metals 1984 – Part V);
● MECA 1989 and the Metals 1984 – Part V each contained an exclusion in relation to employers of less than 30 at a specified time;
● The exclusion remained in that form following the Award Simplification process; and
● The exclusion was not carried over to the Manufacturing Award but was carried over, without the “as at the date of this award” limitation within MECA 1989, into the Building On-site Award.
[284] The AMWU submitted that the exclusionary element of the clause was never intended to operate in perpetuity and should be deleted from clause 43.1 for reasons of historical consistency and contemporary relevance.
[285] The variation was opposed by employer organisations on the basis that:
● The exclusion in relation to those employers with fewer than 30 employees is longstanding and continued in the terms of the MECA 2002 when they were adopted into the Building On-site Award;
● The variation would extend the operation of the Building On-site Award beyond the application of the award to a class of persons who have never been covered by the provisions of the Building On-site Award or its predecessors; and
● The variation would increase wages, invoking the minimum wages objective and the requirement to justify the variation by work value reasons.
[286] The exclusion within clause 43.1 reflected clause 2.2 of Appendix B of the MECA 2002, which applied the exclusion in respect of the number of employees “as at the date of this award”. The Award Modernisation Full Bench brought the exclusion over generally. The exclusion in the Building On-site Award is broader, to the extent that it is not directed to a number of employees at a particular time. The AMWU variation however, removes the exclusion entirely, including in respect of any employer excluded by virtue of the previous exemption calculated by reference to a specific date, having the effect of extending the application of the forepersons and supervisors provisions in the metal and engineering construction sector and increasing costs of employers so affected.
[287] There is no evidence in relation to the practical effect of the variation sought—and in particular the effect of extending the exclusion—on the one hand—and removing the exclusion in relation to employers to whom it previously applied—on the other. No satisfactory basis has been advanced for removing the exclusion as it operated under the MECA 2002 and no cogent reason has been established for departing from the provision determined by the Award Modernisation Full Bench. This element of the variations as finally proposed by the AMWU is refused.
20. HIA application to vary schedule B—Classification definitions in relation to sub-foreperson and foreperson (B2.7(d) and B2.8(d))
[288] The HIA proposed a variation within Schedule B to clarify that the classification of sub-foreperson at clause B.2.7(d) be confined to the metal and engineering construction sector and foreperson as defined at clause B.2.8(d) also be confined to the metal and engineering construction sector.
[289] The variations sought were that:
● The reference to “Sub-foreperson” at clause B.2.7(d) of Schedule B be amended to “Sub-foreperson in the metal and engineering construction sector”; and
● The reference to “Foreperson (as defined)” at clause B.2.8(d) of Schedule B be amended to “Foreperson in the metal and engineering construction sector”.
[290] Sub-forepersons and forepersons were included within the classification structure in Schedule B of the Building On-site Award by the Award Modernisation Full Bench, consistent with their inclusion within the NBCIA in clause 18, as translated classifications and in clause 19—Award restructuring in the building and construction industry. The inclusion of special conditions for foremen and supervisors in the metal and engineering construction sector within Part 7—Industry specific provisions, of the Building On-site Award did not affect coverage of sub-forepersons and forepersons under the Building On-site Award, consistent with the NBCIA.
[291] The HIA has not established a proper basis for the variations it proposed in respect of the classification structure within Schedule B of the Building On-site Award. These variations are refused.
[292] Consistent with my decision above a determination giving effect to the variations approved in this decision is published as PR538792. It will have effect from today’s date.
ATTACHMENT A |
APPLICATION TO VARY A MODERN AWARD – 2012 REVIEW BUILDING AND CONSTRUCTION GENERAL ON-SITE AWARD 2010 |
APPLICATION BY CCIWA |
PROPOSED ORDERS |
A. Further to the decision issued by Fair Work Commission on [insert date] the Building and Construction General On-site Award 2010 is varied as follows:
1. By inserting the following definitions in clause 3.1 in alphabetical order:
remote work means work required to be performed in any location that is operated by the employer as a remote location, including but not limited to sites operating on a fly in/fly out, drive in/drive out or bus in/bus out basis remote work cycle means a roster cycle made up of working and non-working days, where the work the subject of that roster cycle is remote work.
2. By deleting the words “and 34—Shiftwork” in clause 25.10(a)(ii) and inserting the words “34—Shiftwork, and 35—Remote work”.
3. By deleting the words “clause 34—Shiftwork” in clause 33.1 and inserting the words “clauses 34—Shiftwork, and 35—Remote work”.
4. By inserting a new clause 35 as follows, and re-numbering the following clauses respectively:
35. Remote work
35.1 Relationship with rest of the award
(a) This clause of the award provides specific detail for work that is remote work as defined in clause 3—Definitions and interpretation.
(b) Where a term of this clause 35—Remote work, is inconsistent with any other clause of the award, this clause will prevail to the extent of that inconsistency.
35.2 Hours of work and spread of hours
(a) This clause 35.2—Hours of work and spread of hours:
(i) replaces clause 33—Ordinary hours of work; and
(ii) prevails to the extent of any inconsistency with clause 34—Shiftwork, for work that is remote work.
(b) A full time employee's ordinary hours of work will be an average of 38 hours per week.
(c) Subject to clause 35.2(e) employees, other than shiftworkers as defined in clause 34—Shiftwork, may be required to work up to 10 ordinary hours per day, between the hours of 6.00 am and 6.00 pm, Monday to Friday.
(d) Subject to clause 35.2(e) shiftworkers as defined in clause 34—Shiftwork may be required to work a shift of up to 10 consecutive ordinary hours (including meal breaks). Shiftwork may be worked on any or all days of the week.
(e) An employer may agree with a majority of affected employees to alter the spread of hours in clause 35.2(c) and/or to increase the ordinary hours per day in clauses 35.2(c) and 35.2(d) to a maximum of 12.
(f) Clause 34.2(b)(ii) of the award does not apply where an employee undertakes work that is remote work, and/or is engaged to work on a remote work cycle.
35.3 Remote work cycle
(a) Employees may be engaged to work on a remote work cycle made up of working and non-working days. The total ordinary hours of work during a remote work cycle must not exceed 38 hours multiplied by the total number of working (on-duty period) and non-working (off-duty period) days in the cycle divided by seven.
(b) The on-duty period commences at the time the employee reports to the point designated by the employer for commencement of work at the workplace. The off-duty period commences at the conclusion of the employee's last rostered shift.
(c) For employees engaged to work on a remote work cycle, payments must be made to employees as agreed, but no less frequently than once per month, but nothing in this clause requires an employer to pay an employee on a remote work cycle during an off-duty period.
35.4 Maximum weekly hours
(a) This clause of the award provides industry specific detail and supplements the NES which deals with maximum weekly hours.
(b) For the purposes of the NES an employee’s weekly hours may be averaged over a period of up to 26 weeks.
35.5 Rostered days off
Where an employee undertakes work that is remote work, and/or is engaged to work on a remote work cycle, an employer may, due to operational requirements roster any rostered day off (if applicable) in accordance with the roster cycle.
35.6 Rostering
(a) An employer may vary an employee’s days of work or start and finish times to meet the needs of the business by giving at least 48 hours’ notice, or such shorter period as is agreed between the employer and an individual employee.
(b) Where an employee is performing shiftwork, the employer may change shift rosters or require an employee to work a different shift roster upon 48 hours’ notice. These time periods may be reduced where agreed by the employer and the employee or at the direction of the employer where operational circumstances require.
(c) The employer must consult with directly affected employees about any changes made under this clause.
35.7 Emergency arrangements
Notwithstanding anything elsewhere contained in this clause 35—Remote work, an employer may vary or suspend any roster arrangement immediately in the case of an emergency.
5. By deleting the words “and 34 – Shiftwork” in existing clause 35.3(c) (which after renumbering will become clause 36.3(c)) and inserting the words “34—Shiftwork, and 35—Remote work”.
6. By deleting the words “and 34—Shiftwork” in existing clause 36.2 (which after renumbering will become clause 37.2) and inserting the words “34—Shiftwork, and 35—Remote work”.
B. This order commences on [insert date].
SENIOR DEPUTY PRESIDENT
Appearances:
S Maxwell for the Construction, Forestry, Mining and Energy Union.
A Kentish for the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia.
G Nobel and Mr Moriarty for the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU).
M Mead and D Murray for The Australian Industry Group.
S Hayne and A Patterson for Australian Business Industrial.
R Calver for the Master Builders Australia Limited.
R Lilburne and P Moss with R Bunting for the Chamber of Commerce and Industry WA.
M Adler with D Humphrey for the Housing Industry Association.
Z Angus for The Australian Workers’ Union.
Hearing details:
2012.
Melbourne:
August 1.
Sydney:
November 7, 8 and 9;
December 6.
2013.
Melbourne:
March 21.
1 MA000020.
2 [2013] FWCFB 2170, at para 149.
3 [2013] FWCFB 2170, attachment 3 at 7.1(g).
4 Correspondence from FWC - Award Flexibility, 27 March 2013 to HIA.
5 HIA correspondence of 17 April 2013.
7 MA000010.
9 HIA correspondence of 7 December 2012, in respect of its application to vary clauses 4.9, 4.10(a) and (d), and Submission of 8 March 2013 at Part 3 to vary clauses 20.1(d), 21.3, 21.4, 21.4(d), 21.4(g), 21.6, 21.7, 21.8, 29.1, 22.2(b), 22.2(d)–22.2(j), 22.2(l)–22.2(r), 22.3(a), 22.3(i), 22.3(l) and 22.4(a)–(h).
10 Transcript, at para 637.
11 Exhibit HIA 1: HIA Summary of Amended Variations.
12 Exhibit HIA 1: HIA Summary of Amended Variations and Transcript at para 248.
13 Exhibit HIA 1: HIA Summary of Amended Variations.
14 See Exhibit HIA 1: HIA Summary of Amended Variations.
15 Exhibit HIA 1: HIA Summary of Amended Variations.
16 Statement of 11 December 2012, PR532213.
17 MBA correspondence of 1 February 2013.
18 Transcript at paras 2846–2847.
21 [2012] FWAFB 5600, at para 5.
22 [2012] FWAFB 5600, at para 19.
23 [2012] FWAFB 5600, at para 23.
24 [2012] FWAFB 5600, at para 25.
25 [2012] FWAFB 5600, at paras 33–34.
26 [2012] FWAFB 5600, at para 38.
27 [2012] FWAFB 5600, at para 48.
28 [2012] FWAFB 5600, at para 84.
29 [2012] FWAFB 5600, at para 85.
30 [2012] FWAFB 5600, at paras 86 and 88.
31 [2012] FWAFB 5600, at paras 89–90.
32 [2012] FWAFB 5600, at para 91.
33 [2012] FWAFB 5600, at para 94.
34 [2012] FWAFB 5600, at para 103.
35 [2012] FWAFB 5600, at para 115.
36 [2012] FWAFB 5600, at paras 99 and 100.
37 AP790741.
38 See statement of 11 December 2012, PR532213.
39 PR532213, at paras 7 and 8.
42 MBA application of 7 March 2012, at page 81.
43 Transcript, at para 313.
44 MBA application of 7 March 2012, at page 81.
45 Transcript, at para 1963.
46 Transcript, at para 1747.
47 Transcript, at paras 1756–1758.
48 Transcript, at para 1783.
49 Transcript, at para 1821.
50 Transcript, at paras 1807 and 1811.
51 See clauses 24 – Living away from home – distant work and 25 – Fares and travel patterns allowance of the Building On-site Award.
52 MA000011.
53 CCIWA application at Schedule B pp. 2–3.
54 Transcript, at paras 1277–1284.
55 CFMEU Reply submissions at pp. 8–9.
56 [2012] FWAFB 5600, at para 102.
57 Evidence of Mr F O’Grady attached to CFMEU submission of 25 October 2012.
58 CFMEU Reply Submissions, at p.22.
59 CCIWA submission of 21 September 2012, attachment.
60 CCIWA submission of 21 September 2012, attachment.
61 Statement of Mr D Lee, attached to CCIWA submission of 21 September 2012, Annexure 3.
62 Statement of Mr D Lee, attached to CCIWA submission of 21 September 2012, Annexure 3, at p. 2.
63 Statement of Mr D Lee, attached to CCIWA submission of 21 September 2012, Annexure 3, at p. 4 and Statement of Mr Asplin, at para 7.
64 The Chamber of Minerals and Energy of Western Australia: WA State Growth Outlook April 2011.
65 Evidence of Mr Asplin, at paras 8-12, Mr McLaughlan, at para 7 and Mr Pallot at paras 10 and 11.
66 AE891823.
68 Statement of Mr Asplin, at para 16.
69 Statement of Mr O’Grady, at para 8.
70 Statement of Mr O’Grady, at para 9.
71 Statement of Mr Pallot, at para 7.
72 Statement of Mr O’Grady, at para 10.
73 Statement of Mr Ingham, at paras 8–9.
74 Statement of Mr D Lee, attached to CCIWA submission of 21 September 2012, Annexure 3, at 2.2.1.
75 Statement of Mr D Lee, attached to CCIWA submission of 21 September 2012, Annexure 3, at 2.2.1.
76 Statement of Mr D Lee, attached to CCIWA submission of 21 September 2012, Annexure 3, at 2.2.3.
77 Statement of Mr D Lee, attached to CCIWA submission of 21 September 2012, Annexure 3, at 2.2.3.
78 Statement of Daniel Lee, attached to CCIWA submission of 21 September 2012, Annexure 3, Appx A at Question 5.12.
79 Statement of Mr D Lee, attached to CCIWA submission of 21 September 2012, Annexure 3, Appx A at Question 5.13.
80 Statement of Mr D Lee, attached to CCIWA submission of 21 September 2012, Annexure 3, at 2.2.3.
81 Statement of Mr D Lee, attached to CCIWA submission of 21 September 2012, Annexure 3, at 2.2.4.
82 Statement of Mr D Lee, attached to CCIWA submission of 21 September 2012, Annexure 3, at 2.2.4.
83 Statement of Mr D Lee, attached to CCIWA submission of 21 September 2012, Annexure 3, at 2.2.7.
84 Transcript, at para 1363.
85 CCIWA supplementary submission 29 November 2012, at paras 3–4.
86 CCIWA supplementary submission 29 November 2012, at para 5.
87 For example, clause 8.3(g) of the MJHJV (John Holland) Ichthys Onshore Construction Greenfields Agreement [AE891823] and the ATCO Structures and Logistics Pty Ltd Curtis Island LNG Project Greenfield Agreement 2011-2014 [AE886283] in Appendix 2. The Carr Civil Construction Pty Ltd Pluto Project Greenfields Agreement 2008 [AC319455] has an overtime provision with a similar effect in clause 25(1).
88 For example clauses 4.9(f) and (k) of the Downer EDI Works Pty Ltd Warramboo Project AWU Greenfields Agreement 2011 [AE889126], clause 31.3 of the CBI Constructors Pty Ltd – AMWU – Gorgon Project – Barrow Island Greenfields Agreement 2010 [AE883484] and clause 18(a)(ii) of Appendix 7 of the Carr Civil Construction Pty Ltd Pluto Project Greenfields Agreement 2008 [AC319455], clause 17.1(g) of the Southern Seawater Desalination Project Stage 2, AWU Kulin Group Pty Ltd Construction Greenfields Agreement 2011 [AE891037], clause 16.8 of the Pilbara Logistics - FMG Port Expansion Project AMWU Enterprise Agreement 2011 [AE886436], clause 4.9(k) of the Powerlines Plus Pty Ltd Marandoo Mine Phase 2 CFMEU Greenfields Agreement 2011 [AE888672], clause 4.9(k) of the O’Donnell Griffin Pty Ltd Western Turner Brockman Project AWU Greenfields Agreement 2012 [AE893738], clause 4.9(k) of the Macmahon Cape Lambert CFMEU Greenfields Agreement 2011 [AE885726], clause 16.11 of the Zinfra Contracting Pty Ltd - FMG Solomon Project AWU Greenfields Agreement 2012 [AE894374] and clause 3.8.2(d) of the Karara Iron Ore Construction Project (Mine and Other Infrastructure) Carn Construction Industrial Ltd AWU Greenfields Agreement 2011 [AE890075].
89 See clause 31.1(a) of the Carr Civil Construction Pty Ltd Pluto Project Greenfields Agreement 2008 [AC319455] and clause 3.13(f) and (k) of the Monadelphous Engineering Associates Pty Ltd BHPB Iron Ore Growth Projects Stage 1 AWU Greenfields Agreement [2012] [AE891191] for example.
90 See clause 8.2(a)(iv) of the Leighton Contractors Pty Limited APLNG Upstream Project Union Greenfields Agreement 2012 [AE892943], clause 9.1(c) of the ATCO Structures and Logistics Pty Ltd Curtis Island LNG Project Greenfield Agreement 2011-2014 [AE886283] and clause 8.2(3) of the GB Industries Electrical Contractors Pty Ltd South Walker Creek Project Union Greenfields Agreement [2011] [AE888230].
91 See clause 10.4(b) of the Bechtel Hay Point Expansion 3 Project Union Greenfields Agreement [2011] [AE883279], the GB Industries Electrical Contractors Pty Ltd South Walker Creek Project Union Greenfields Agreement [2011] [AE888230] and clause 9.5(c) of the Leighton Contractors Pty Limited APLNG Upstream Project Union Greenfields Agreement 2012 [AE892943], for example.
92 AC324534.
93 Statement of Mr D Lee, attached to CCIWA submission of 21 September 2012, Annexure 3, at Question 5.12 at p. 13.
94 Transcript, at para 1175.
95 [2009] AIRCFB 345.
96 [2009 AIRCFB 450.
97 [2009] AIRCFB 645.
98 [2009] AIRCFB 450, at para 7.
99 CCIWA application, Attachment 4.
100 CCIWA application, Attachment 4.
101 [2009] AIRCFB 826, at para 178.
102 [2009] AIRCFB 865, at paras 249-251 and [2009] AIRCFB 945, at paras 195-197.
103 [2009] AIRCFB 958.
104 [2009] AIRCFB 450, at para 7.
105 Transcript, at para 1152.
106 CCIWA application, attachment 4.
111 AMWU submission of 25 October 2012.
112 CCIWA application, at para 63.
113 [2012] FWAFB 5600, at paras 102 and 103.
114 Transcript, at para 1690.
118 MBA submission of 7 March 2012, attending its application to vary the Building On-site Award, at para 8.1.
121 Statement of Mr Perumal attached to ABI submission of 9 October 2012, at para 8.
122 [2009] AIRCFB 345, at para 71.
123 [2009] AIRCFB 826, at para 39.
124 CFMEU submissions dated 12 June 2009; Boral further submissions in AM2008/29, dated 14 April 2009.
125 [2009] AIRCFB 450, at para 25.
127 Filed with HIA submissions of 21 September 2012.
128 Clause 17.1 and Schedule B of the Timber Industry Award 2010 [MA000071].
131 HIA application of 12 March 2012.
132 [2008] AIRCFB 1000 at paras 28–30.
133 Transcript, at para 360.
134 HIA application of 12 March 2012, at para 38.
136 Transcript, at para 355.
137 HIA submissions of 21 September 2012, at paras 3.1.7 to 3.1.12.
138 Section 47 of the Fair Work Act 2009.
139 Section 143 of the Fair Work Act 2009.
140 [2008] AIRCFB 717, at para 7.
141 [2008] AIRCFB 1000, at para 28.
142 [2008] AIRCFB 717, at para 7.
143 [2009] AIRCFB 450, at para 25.
144 [2009] AIRCFB 826, at para 39.
145 [2009] AIRCFB 865, at para 80 and [2009] AIRCFB 945, at paras 61–62.
146 [2008] AIRCFB 1000, at para 23.
147 Statement re Making of Priority awards [2008] AIRCFB 717, at paras 6–14 and decision re Making of Priority awards [2008] AIRCFB 1000, at paras 12–33.
148 Reflected in the decision re Making of Priority awards [2008] AIRCFB 1000, at para 23.
149 [2008] AIRCFB 717.
150 [2008] AIRCFB 1000.
151 Exhibit HIA 1.
152 Transcript at para 672.
153 Transcript at para 671.
154 Print H4000 at pp 14–15.
155 [2009] AIRCFB 989, at paras 30-32.
156 Transcript at para 717.
157 [2009] AIRCFB 50, at para 39.
158 [2009] AIRCFB 50, at para 44.
159 The Shorter Oxford English Dictionary on Historical Principles, Volume 1.Third Edition.
160 MA000010–covering the previously separately regulated industries of the metal, engineering and associated industries, the rubber, plastic and cablemaking industry, the brass, copper and non-ferrous metals industry and the glue and gelatine industry. See [2008] AIRCFB 717, at para 56.
161 Secure Employment Test Case [2006] NSWIRComm 38 at para 52.
162 Print T4991.
163 Print T4991, at para 196.
166 Print T4991.
167 CFMEU submissions of 21 September 2012, at para 5.3.
168 Attached to ABI amended submissions of 9 October 2012.
170 Print T4991, at para 123, reflected in the variation affected in the Metal and Engineering and Associated Industries Award 1998 in PR901028.
171 AP789529CRV.
172 Print T4991, at para 123, reflected in the variation affected in the Metal and Engineering and Associated Industries Award 1998 in PR901028.
174 [2009] AIRCFB 50, at para 40.
175 [2009] AIRCFB 345.
177 [2009] AIRCFB 345, at paras 80–81.
178 [2009] AIRCFB 345, at paras 77–80.
179 [2009] AIRCFB 345, at para 81.
180 [2009] AIRCFB 345, at para 81.
181 [2008] AIRCFB 1000, at paras 59–60.
183 Statement concerning Stage 2 exposure drafts [2009] AIRCFB 50, at paras 20-21, and decision making Stage 3 Awards, [2009] AIRCFB 345, at para 88.
185 Exhibit HIA 1.
186 A new Schedule E, dealing part-day public holiday, was added to the award in PR532628 on 21 December 2013, after the HIA application was made.
187 In respect of clauses 19.2, 19.4(a), 20.1(d), 20.2(a), 20.2(c), 20.3(a), 20.3(b), 21.1, 21.2, 21.10(a)(vi), 21.11 (subject also to amendment to clause 19.3 which is currently payable for all purposes), 21.12 (subject also to amendment to clause 19.3 which is currently payable for all purposes), 21.13(a) (subject also to amendment to clause 19.3 which is currently payable for all purposes), 21.3, 21.4, 21.4(d), 21.4(g), 21.6, 21.7, 21.8, 21.9, 22.2, 22.3(a)–(n), 22.4, 24.3, 24.5, 24.7(a)–(b) 24.7(e), 25.2–25.5, 25.7, 25.9 and 26.
188 MBA correspondence of 1 February 2013.
189 HIA correspondence of 21 March, 2013.
190 HIA correspondence of 7 December 2012, in respect of its application to vary clauses 4.9, 4.10(a) and (d), and Submissions of 8 March 2012 20.1(d), 21.3, 21.4, 21.4(d), 21.4(g), 21.6, 21.7, 21.8, 21.9, 22.2(b), 22.2(d)–(j), 22.2(l)–(r), 22.3(a), 22.3(i)(i), 22.3(i)(ii), 22.3(l) and 22.4(a)–(h).
191 [2009] AIRCFB 50, at para 46 and [2009] AIRCFB 345 at para 43.
192 HIA application, at p. 49.
193 AP790741CRV.
194 HIA Outline of submissions, 21 September 2012 at p. 27.
195 [2012] FWAFB 5600, at paras 86 and 88.
197 Exhibit HIA 1.
198 Transcript at paras 1843–1844.
199 Transcript, at para 1878.
200 HIA Outline of submissions, 21 September 2012 at pp. 24–25.
201 [2009] AIRCFB 50, at para 43.
202 [2009] AIRCFB 989, at para 33.
203 [2009] AIRCFB 989, at para 36.
204 MBA application of 7 March 2012, at para 3.29.
205 (1979) 229 CAR 630, Print E1321. The nature and the history of the provision is also reflected upon by the Federal Court Australia Full Court decision in Master Builders’ Association of Victoria v Australian Building Construction Employees’ and Builders Labourers’ Federation [1981] FCA 49, at paras 18 and 21.
206 (1979) 229 CAR 630, at page 634.
207 Sections 8(2) and 47(6) of the Fringe Benefits Tax Assessment Act 1986 (Cth). See also, the Australian Taxation Office Miscellaneous Taxation Ruling MT 2024.
208 ABI Attachment to amended submission 9 October 2012 at para 12.
209 Transcript, at para 1987.
211 For example, clause 34.3 of the Manufacturing and Associated Industries and Occupations Award 2010 [MA000010].
212 Exhibit HIA 1.
213 [2009] AIRCFB 50, at para 44.
214 MBA application, at para 7.2.
215 Transcript, at para 2049.
216 Statement of Ms L Cooper, attached to HIA submission of 21 September 2012, at para 7.
217 AMWU application at ground 4.
219 AP816828CRV.
220 AW790722.
221 AW819297.
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