[2013] FWCFB 3751 |
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
(AM2012/49)
The Australian Industry Group
(AM2012/69 and AM2012/76 - Variation A)
Australian Business Industrial
(AM2012/106)
Construction, Forestry, Mining and Energy Union
(AM2012/127)
Australian Glass & Glazing Association
(AM2012/214)
JOINERY AND BUILDING TRADES AWARD 2010
(MA000029)MANUFACTURING AND ASSOCIATED INDUSTRIES AND OCCUPATIONS AWARD 2010
(MA00010)
SENIOR DEPUTY PRESIDENT ACTON |
MELBOURNE, 13 JUNE 2013 |
Review of modern award - Item 6 of Schedule 5 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 - application to vary the Joinery and Building Trades Award 2010 and the Manufacturing and Associated Industries and Occupations Award 2010 - consideration of modern awards objective.
Introduction
[1] This decision deals with applications by various bodies to vary the Joinery and Building Trades Award 2010 1 (JBT Award) and, correspondingly, the Manufacturing and Associated Industries and Occupations Award 20102 (Manufacturing Award) having regard to the provisions of Schedule 5, Item 6 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth) (TPCA Act) and also with the review in Schedule 5, Item 6 in respect of the JBT Award and, insofar as it is associated, the Manufacturing Award.
Relevant law
[2] Schedule 5, Item 6 of the TPCA Act is as follows:
“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).”
[3] The “modern awards objective” is set out in s.134 of the Fair Work Act 2009 (Cth) (FW Act) as follows:
“134 The modern awards objective
What is the modern awards objective?
(1) The FWC 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 the FWC’s modern award powers, which are:
(a) the FWC’s functions or powers under this Part; and
(b) the FWC’s functions or powers under Part 2-6, so far as they relate to modern award minimum wages.
Note: The FWC must also take into account the objects of this Act and any other applicable provisions. For example, if the FWC is setting, varying or revoking modern award minimum wages, the minimum wages objective also applies (see section 284).”
[4] Schedule 5, Item 6 of the TPCA Act was considered by a Full Bench of Fair Work Australia (FWA) in Modern Awards Review 2012. 3 The Full Bench said:
“[91] It is important to recognise that we are dealing with a system in transition. Item 6 of Schedule 5 forms part of transitional legislation which is intended to facilitate the movement from the WR Act to the FW Act. The Review is a ‘one off’ process required by the transitional provisions and is being conducted a relatively short time after the completion of the award modernisation process. The transitional arrangements in modern awards continue to operate until 1 July 2014. 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. In this context it is particularly relevant to note that s.134(1)(g) of the modern awards objective requires the Tribunal to take into account:
‘the need to ensure a simple, easy to understand, stable and sustainable modern award system for Australia . . .’ …
[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.
Applications
[5] The subject matter of the applications before us, the corresponding application numbers and the applicants can be conveniently summarised as follows:
Subject Matter |
Application No. |
Applicant | |
Coverage |
AM2012/69 AND |
The Australian Industry Group (AIG) | |
AM2012/106 |
Australian Business Industrial (ABI) | ||
AM2012/214 |
Australian Glass & Glazing Association (AGGA) | ||
Part-time employees |
AM2012/106 |
ABI | |
Casuals |
AM2012/49 |
Master Builders Australia Limited (MBA) | |
Slushing Allowance |
AM2012/49 |
MBA | |
Payment of wages |
AM2012/49 |
MBA | |
Ordinary hours of work |
AM2012/127 |
Construction, Forestry, Mining and Energy Union (CFMEU) | |
AM2012/49 |
MBA | ||
AM2012/69 |
AIG | ||
AM2012/106 |
ABI | ||
AM2012/214 |
AGGA | ||
Overtime |
AM2012/69 |
AIG | |
AM2012/106 |
ABI | ||
AM2012/214 |
AGGA | ||
Callouts |
AM2012/106 |
ABI | |
AM2012/214 |
AGGA | ||
[6] We set out the nature of these applications and submissions in respect of them below. We deal with the evidence in support of the submissions later in our consideration of the applications.
Coverage
[7] The coverage clause of the JBT Award is as follows:
“Coverage
4.1 This award covers employers throughout Australia of employees in the joinery and building trades industries and occupations who are covered by the classifications in this award and those employees. However, this award does not cover:
(a) an employer who is outside the scope of clause 4.8(a) unless such employer employs an employee covered by clause 4.8(b) and the employer is not covered by another modern award containing a classification which is more appropriate to the work performed by the employee;
(b) an employee excluded from award coverage by the Act;
(c) employers or employees engaged in the manufacture of glass from raw materials;
(d) employers or employees covered by the Building and Construction General On-site Award 2010; or
(e) employers or employees covered by the Vehicle Manufacturing, Repair, Services and Retail Award 2010.
4.2 The award does not cover employees who are covered by a State reference public sector modern award, or a State reference public sector transitional award (within the meaning of the fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth)), or employers in relation to those employees.
4.3 The award does not cover employees who are covered by a modern enterprise award, or an enterprise instrument (within the meaning of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth)), or employers in relation to those employees.
4.4 This award covers any employer which supplies labour on an on-hire basis in the industry (or industries) set out in clause 4.8(a) in respect of on-hire employees in classifications covered by this award, and those on-hire employees, while engaged in the performance of work for a business in that industry (or those industries).
4.5 This award covers any employer which supplies on-hire employees in occupations set out in clause 4.8(b) covered by classifications in this award and those on-hire employees, if the employer is not covered by another modern award containing a classification which is more appropriate to the work performed by the employee.
4.6 Clauses 4.4 and 4.5 operate subject to the exclusions from coverage in this award.
4.7 This award covers employers which provide group training services for apprentices and/or trainees engaged in the industry (or industries), parts of industry and/or occupations set out at clauses 4.8(a) and 4.8(b) and those apprentices and/or trainees engaged by a group training service hosted by a company to perform work at a location where the activities described herein are being performed. Clause 4.7 operates subject to the exclusions from coverage in this award.
4.8 Joinery and building trades industries and occupations means:
(a) the following industries:
(i) joinery work.
(ii) shopfitting.
(iii) prefabricated building.
(iv) stonemasonry.
(v) glass and glazing contracting.
(vi) glass and glazing work.
(b) the following occupations:
(i) carver.
(ii) letter cutter.
(iii) carpenter.
(iv) joiner.
(v) signwriter.
(vi) painter.
(vii) stonemason.
(viii) plasterer.”
[8] The “glass and glazing work” referred to in clause 4.8 of the coverage clause of the JBT Award is defined in clause 3.1 of the JBT Award as follows:
“glass and glazing work means:
(a) the designing, bevelling, cutting, embossing or glazing by hand or machine, painting, silvering, sand-blasting, bending or otherwise working of all types of glass used in the trade, as well as leadlights, spandrel panels, clear plastic, sheet acrylic or any substitute therefore, glass lenses or prisms;
(b) the fitting and/or fixing in position of all types of glass used in the trade, as well as louvres, spandrel panels, glazing bars, clear plastic, or glass lenses or prisms in domestic on site situations;
(c) the packing and delivery of all types of glass used in the trade, as well as louvres, spandrel panels, leadlights, glazing bars, fibreglass, clear plastic, sheet acrylic or any substitute therefore, glass lenses or prisms including any labouring work in connection with any such operations;
(d) the toughening, heat treating or laminating of glass or safety glass;
(e) the fabrication, assembly, glazing and installation of Insulation Glass units;
(f) every operation, process, duty and function carried on or performed in or in connection with or incidental to any of the foregoing.”
[9] The AIG seek to add the following after the definition of “glass and glazing work” in the JBT Award:
“glass and glazing work does not mean glass that forms part of a product covered by the Manufacturing and Associated Industries and Occupations Award 2010.”
[10] The ABI and AGGA seek a similar variation.
[11] As a corollary of this variation, the AIG also seeks to vary the Manufacturing Award. Clause 4.1 of the Manufacturing Award provides as follows:
“4.1 This award covers employers throughout Australia of employees in the Manufacturing and Associated Industries and Occupations who are covered by the classifications in this award and those employees.”
[12] Clause 4.11(i) of the Manufacturing Award provides that “Manufacturing and Associated Industries and Occupations” does not mean “employers or employees engaged in glass and glazing work or glass and glazing contracting covered by the Joinery and Building Trades Award 2010.”
[13] The AIG seeks to vary clause 4.11(i) of the Manufacturing Award by adding after the word “2010” the following:
“, unless the glass forms part of a product or article in the Manufacturing and Associated Industries and Occupations”.
[14] Subsequent to making their application, the AIG made a “without prejudice” proposal in respect of their variation to the Manufacturing Award. They proposed that the Manufacturing Award be varied to amend clause 4.11(i) and add after it a new clause 4.11(j) as follows:
“(i) employees of glass and glazing contractors covered by the Joinery and Building Trades Award 2010.
(j) employees carrying out glass and glazing work covered by the Joinery and Building Trades Award 2010, unless
(i) The work is covered by 4.9(a)(vii) or 4.10(ff) of this Award; or
(ii) The work is incidental to the performance of other work in factories covered by this award; or
(iii) The work involves the use of a glass component in a product manufactured or assembled under this Award.”
[15] MBA generally supported the variations sought.
[16] A further variation affecting the coverage clause of the JBT Award is sought by AGGA. AGGA seeks to add the word “or” between the word “domestic” and the words “on site” in the definition of “glass and glazing work” in the JBT Award.
[17] The applications are opposed by the CFMEU, the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) and The Australian Workers’ Union (AWU).
[18] The submissions in support of the variations concerning the interaction between the JBT Award and the Manufacturing Award include that:
• the applications are intended to address the significant unfairness, which is contrary to the modern awards objective, that has resulted from the inclusion of the glass industry within the coverage of the JBT Award and to clarify the coverage of the Manufacturing Award;
• the JBT Award does not meet the modern awards objective in that it overlaps with the coverage of the Manufacturing Award and it does not make clear that some glass work is covered by the Manufacturing Award, creating uncertainty for certain manufacturers as to which award covers them;
• the interaction of clause 4.11(i) of the Manufacturing Award with other clauses in the Manufacturing Award is confusing and difficult to understand, contrary to the modern awards objective and constitutes an anomaly and/or technical problem arising out of the award modernisation process;
• the current coverage of the JBT Award and Manufacturing Award was determined at a time when there was an extreme workload as a result of the looming deadline for completion of the award modernisation process, resulting in insufficient analysis of the consequences of the determined coverage;
• predecessor federal and state awards to the Manufacturing Award, rather than the predecessor awards to the JBT Award, provided the award terms and conditions of employment for employees producing many products which include glass (eg. aluminium windows) and/or involved in various glass operations;
• the JBT Award’s conditions resemble those in the construction industry, are extremely costly and inflexible and not appropriate for the manufacturing industry;
• they will avoid demarcation disputes;
• they will avoid deleterious economic consequences; and
• when the coverage clauses of the JBT Modern Award and the Manufacturing Award were determined, the Australian Industrial Relations Commission (AIRC) or FWA did not have before them the now provided detailed history of award coverage of the work which is the subject of the variations, the detailed analysis of that work and the skills and competencies required for it, the effect of the terms of the JBT Award on employees in the manufacturing industry, or the analysis of those covered by the JBT Award.
[19] The submissions in opposition to the variations include that:
• following the publication of an exposure draft of the JBT Award on 23 January 2009, a Full Bench of the AIRC published the JBT Award on 3 April 2009 and on 30 December 2009 the Full Bench varied the coverage clause of the JBT Award consistent with an application of the CFMEU to extend the coverage of the JBT Award to include glass and glazing work beyond glazing contracting work, and made a corresponding variation to the Manufacturing Award;
• there has been no change in circumstances since the Full Bench varied the coverage of the JBT Award and the Manufacturing Award on 30 December 2009;
• the AIG was actively involved in contesting the CFMEU applications that led the Full Bench to vary the coverage clauses of the JBT Award and the Manufacturing Award on 30 December 2009;
• the industry of an employer is relevant to whether the employer is covered by a modern industry-based award and the industry of an employer requires careful analysis in accordance with established principles of the operation carried on by the employer, rather than a narrow focus on a particular product of an employer;
• the classifications in a modern award may also be important in determining relevant award coverage, with qualifications being relevant to determining the appropriate classification in a structure;
• the JBT Award and the Manufacturing Award contain provisions to deal with any seeming overlap in their coverage; and
• there is no evidence of any demarcation dispute arising from the current coverage of the JBT Award or the Manufacturing Award.
[20] The submissions in support of the variation providing for certain “glass and glazing work” to extend to “domestic or on site situations” include that the variation will reduce the number of modern awards covering certain employees as it will enable those employees to be covered by the JBT Award if they are involved in domestic situations or on-site situations, and not just if they are involved in domestic on-site situations.
[21] The submissions in opposition to this AGGA proposed variation include that an identical variation was considered and rejected by FWA in 2010 and there has been no relevant change in circumstances since then.
Part-time employees
[22] Clause 11.8 of the JBT Award is as follows:
“11.8 A part-time employee who is required by the employer to work in excess of the hours agreed under clauses 11.3 and 11.4 must be paid overtime in accordance with clause 30—Overtime.”
[23] Clauses 11.3 and 11.4 of the JBT Award are as follows:
“11.3 Before commencing part-time employment, the employee and employer must agree in writing:
(a) on the hours to be worked by the employee, the days on which they will be worked and the commencing and finishing times for the work; and
(b) on the classification applying to the work to be performed in accordance with Schedule B—Classification Structure and Definitions.
11.4 The terms of the agreement in clause 11.3 may be varied by consent in writing.”
[24] ABI seeks to delete clause 11.8 of the JBT Award and replace it with the following:
“A part-time employee may agree to work in excess of their normal hours as agreed in clause 11.3 and 11.4 will be paid at ordinary time up to a maximum of thirty-eight hours per week; provided that the additional time worked is during the ordinary hours of operation of the business.”
[25] The ABI application is supported by the AIG and AGGA.
[26] The application is opposed by the CFMEU and the AMWU.
[27] The submissions in support of the application include that:
• the current provision creates a barrier to business needs and flexible modern work practices contrary to the modern awards objective; and
• the variation would encourage employers to offer further hours to part-time employees.
[28] The submissions in opposition to the application include that:
• there is no evidence supporting the application;
• the effect of the variation sought is to remove an overtime entitlement for part-time employees;
• a clause to similar effect was considered by the Award Modernisation Full Bench and not adopted; and
• the existing clause is similar to that which existed in the underlying predecessor federal award to the JBT Award.
Casuals
[29] Clause 12.3 of the JBT Award provides as follows:
“12.3 A casual employee is engaged by the hour with a minimum daily engagement of 7.6 hours.”
[30] The MBA application seeks to vary clause 12.3 by deleting the words “minimum daily engagement of 7.6 hours” and replacing them with the words “minimum of four hours’ work per engagement”.
[31] If the application is denied by the Full Bench, the MBA seeks a minimum engagement period of 7.6 hours per engagement. The application is supported by the AIG, ABI and AGGA.
[32] The application is opposed by the CFMEU and AMWU.
[33] The submissions in support of the application include that:
• a minimum daily engagement of 7.6 hours is not casual employment as it is usually defined by law, and as such is anomalous and contrary to the modern awards objective;
• the variation would make the JBT Award consistent with the Building and Construction General On-site Award 2010 4 (Building Award); and
• the existing clause is not consistent with some other modern awards or some former relevant state awards.
[34] The submissions in opposition to the variation include that:
• the existing clause was contained in the underlying predecessor federal award to the JBT Award;
• the casual clause in the JBT Award allows employment on an irregular or intermittent basis with no certainty as to the period over which such employment will be offered, consistent with the characterisation of casual employment; and
• there is no evidence that the operation of the existing clause has been contrary to the modern awards objective.
Slushing allowance
[35] Clause 24.3(r) of the JBT Award concerns a slushing allowance and is as follows:
“(r) Slushing
An employee engaged at slushing must be paid 3.2% of the standard rate per hour extra.”
[36] The MBA application seeks the deletion of clause 24.3(r) from the JBT Award and the consequent renumbering of other clauses. The application is not opposed.
Payment of wages
[37] Clause 26 of the JBT Award concerns the payment of wages and provides as follows:
26.1 All monies due to an employee by the employer in relation to the performance of work must be paid and be available by no later than the time of cessation of ordinary hours of work on Thursday of each working week. Provided that in any week in which a public holiday falls on a Thursday or a Friday mutually acceptable alternative arrangements must be made.
26.2 All such monies must be paid by cash, cheque or direct credit to the account at an approved financial institution nominated by the employee, provided that payment other than by cash creates no undue financial burden to the employee.
26.3 Subject to clause 26.1, an employee who due to circumstances within the control of the employer does not receive such monies by the cessation of the ordinary hours of work on the Thursday of each week must be paid waiting time at overtime rates, with a minimum of a quarter of an hour, until such time as the monies due are paid.”
[38] The MBA application seeks to delete clause 26.3 and replace it with the following:
“If an employee is paid wages by cash or cheque and is kept waiting for their wages more than a quarter of an hour after the usual time of finishing work on the employee’s usual pay day (for reasons other than circumstances beyond the control of the employer), the employee is to be paid at overtime rates after that quarter of an hour for the period they are kept waiting, with a minimum payment of a quarter of an hour.”
[39] The application is supported by the AIG.
[40] The application is opposed by the CFMEU and the AMWU.
[41] The submissions in support of the application include that:
• a waiting time provision can be oppressive; and
• the variation would add to the JBT Award’s consistency with the Building Award and some other modern awards.
[42] The submissions in opposition to the application include that:
• no evidence has been brought in support of the application; and
• the failure of an employer to pay wages and entitlements on time disadvantages employees irrespective of the method of payment.
Ordinary hours of work
[43] Clause 28 of the JBT Award concerns “Ordinary hours of work and rostering” and clause 28.2 concerns “Day workers”. Clause 28.2(g) of the JBT Award provides as follows:
“(g) 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 30.6.”
[44] The CFMEU application seeks to replace clause 28.2(g) of the JBT Award with the following:
“(g) An employee who works on a paid rostered day off or any substituted day must, in addition to accrued entitlements, be paid the penalty rates and provisions prescribed for Saturday work in clause 30.6.”
[45] However, during the proceedings before us the CFMEU proposed an alternative variation to clause 28.2(g) in the event we were not persuaded to adopt the above variation. The alternative variation proposed is as follows:
“(g) An employee who works on a paid rostered day off or any substituted day must, in addition to any time credits accumulated for that day during a work cycle, be paid the penalty rates and provisions prescribed for Saturday work in clause 30.6, but shall not, in addition to those payments, be entitled to a day off in lieu of the day worked. Where an alternative day is substituted for a scheduled rostered day off, the penalty payments will only apply to the alternative day worked and not the original rostered day off.”
[46] The alternative variation proposed by the CFMEU to clause 28.2(g) of the JBT Award is not opposed.
[47] Clause 28.3(d) of the JBT Award concerns shift rates and is as follows:
(i) Other than for work on a Saturday, Sunday or public holiday, the rate of pay for afternoon or night shift is 150% and the rate of pay for early morning and early afternoon shift is 125%, provided that the employee is employed continuously for five shifts Monday to Friday in any week. A public holiday in any week is not a break in continuity for the purposes of clause 28.3(d)(i).
(ii) An employee who is employed for less than five consecutive shifts Monday to Friday must be paid for each day the employee works on shiftwork at the rate of 150% for the first two hours and 200% thereafter, provided that when a job finishes after proceeding on shiftwork for more than one week, or the employee terminates their services during the week, the employee must be paid at the rate specified in clause 28.3(d)(i) for the time actually worked.”
[48] The AIG, ABI and AGGA applications seek to insert the heading “Shift rates, other than for glass and glazing work” in clause 28.3(d)(i), renumber clause 28.3(d)(ii) as clause 28.3(d)(iii) and insert a new clause 28.3(d)(ii) as follows:
“Shift rates for glass and glazing work.
Other than work on a Saturday, Sunday or public holiday, the rate of pay for shift work is:
• Afternoon shift – 115 per cent;
• Night shift –130 per cent where an employee during a period of engagement works only on night shift, and 115 per cent in other circumstances;
• Early morning shift – 115 per cent;
• Early afternoon shift – 115 per cent.”
[49] These AIG, ABI and AGGA applications are opposed by the CFMEU and the AMWU.
[50] The submissions in support of the applications include that:
• the current shift rates for glass and glazing work are not fair and are therefore contrary to the modern awards objective;
• the shift rates were included in the JBT Award without sufficient analysis of their implications or adequate consultation with the companies affected as at the time there was an extreme workload as a result of the award modernisation process;
• the glass and glazing companies that supported being covered by the JBT Award were largely unaware of the terms and conditions in the JBT Award;
• the shift rates are greater than those that were contained in some former relevant federal and state awards; and
• the shift rates are negatively impacting on enterprise bargaining and having deleterious economic effects, and that will increase as the full effect of the rates is implemented.
[51] The submissions in opposition to the applications include that:
• there has been no relevant change in circumstances since the inclusion of glass and glazing work in the JBT Award;
• a similar application was refused by FWA in 2010;
• the terms and conditions in the JBT Award are in some instances higher but in other instances lower than those contained in relevant predecessor federal and state awards; and
• many of the employers affected have enterprise agreements providing different shift rates to those in the JBT Award.
Overtime
[52] Clause 30.2 of the JBT Award concerns payment for working overtime and is as follows:
“30.2 Payment for working overtime
(a) Except as provided for in clauses 30.6 and 30.7, for all work done outside of ordinary hours by a day worker the overtime rate is 150% for the first two hours and 200% thereafter and for all work done outside of ordinary hours by a shiftworker the overtime rate is 200%.
(b) Overtime work performed by a shiftworker employed on the second or third shifts of a day when two or three shifts are worked must be paid for at the rate of 200%.”
[53] The AIG, ABI and AGGA applications seek to delete the heading of clause 30.2 and replace it with the heading “Payment for working overtime, other than for glass and glazing work.” The applications also seek to insert a new clause 30.3 with subsequent renumbering of the remaining clauses in clause 30 as follows:
“30.3 Payment for working overtime - glass and glazing work.
Except as provided for in clauses 30.7 and 30.8, for all work done outside of ordinary hours the overtime rate is 150% for the first two hours and 200% thereafter.”
[54] The applications are opposed by the CFMEU and the AMWU.
[55] The submissions in support of the applications include that:
• the current overtime provision for glass and glazing work is not fair and is therefore contrary to the modern awards objective;
• the overtime provisions were included in the JBT Award without sufficient analysis of their implications or adequate consultation with the companies affected as at the time there was an extreme workload as a result of the award modernisation process;
• the glass and glazing companies that supported being covered by the JBT Award were largely unaware of the terms and conditions in the JBT Award;
• the overtime provisions are greater than those that were contained in some relevant former federal and state awards; and
• the overtime provisions are negatively impacting an enterprise bargaining.
[56] The submissions in opposition to the application include that:
• there has been no relevant change in circumstances since the inclusion of glass and glazing work in the JBT Award;
• the terms and conditions in the JBT Award are in some instances higher but in other instances lower than those contained in the relevant predecessor federal and state awards;
• the evidence supporting the applications is scant and insufficient to warrant the changes sought; and
• the overtime provision is consistent with that in some other modern awards.
Call outs
[57] Clause 30.4 of the JBT Award concerns rest period after overtime and provides as follows:
“30.4 Rest period after overtime
(a) When overtime work is necessary it must, wherever reasonably practicable, be arranged so that an employee has at least 10 consecutive hours off duty between the work of successive working days.
(b) An employee, other than a casual employee, who works so much overtime between the termination of their ordinary hours on one day and the commencement of their ordinary hours on the next day that the employee has not had at least 10 consecutive hours off duty between those times must, subject to the other provisions of clause 30.4, be released after completion of the overtime until the employee has had 10 consecutive hours off duty without loss of pay for ordinary hours occurring during such absence.
(c) If on the instructions of the employer an employee resumes or continues work without having had the 10 consecutive hours off duty the employee must be paid at the rate of 200% until the employee is released from duty for such period. The employee is then entitled to be absent until the employee has had 10 consecutive hours off duty without loss of pay for ordinary hours occurring during the absence.
(d) The provisions of clause 30.4 apply in the case of a shiftworker as if eight hours were substituted for 10 hours when overtime is worked:
(i) for the purpose of changing shift rosters;
(ii) where a shiftworker does not report for duty and a day worker or a shiftworker is required to replace the shiftworker; or
(iii) where a shift is worked by arrangement between the employees themselves.
(e) An employee who has worked continuously, except for meal or crib breaks, for 20 hours must not be required to continue at or recommence work for at least 12 hours.”
[58] The ABI application seeks to add a new clause 30.4(f) as follows:
“(f) For employees and employers in glass and glazing work, where there is mutual agreement recorded and maintained at the employer’s premises, call-outs are in no way affected by the provisions of clause 30.4.”
[59] The AGGA application seeks to add a new clause 30.4(f) as follows:
“(f) It is specifically agreed between the respondents to this award that call-outs are in no way affected by the provisions of paragraph (a) of this subclause.”
[60] The applications are supported by MBA and the AIG.
[61] However, the AIG proposed an alternative new clause 30.4(f) as follows, if the ABI’s and AGGA’s applications for a new clause 30.4(f) were not supported by the Fair Work Commission (FWC):
“(f) Overtime worked in the circumstances specified in subclause 30.3 is not to be regarded as overtime for the purposes of subclause 30.4 when the actual time worked is less than three hours on the call back or on each call back.”
[62] The applications and proposed alternative are opposed by the CFMEU and the AMWU.
[63] The submissions in support of the applications include that:
• employers in New South Wales covered by the Glass Workers (State) Award (NSW) had an ability to agree with employees not to apply the requirement for a specific rest period following call-outs and the non-inclusion of such a provision in the JBT Award has led some companies to refuse to offer emergency glazing services; and
• the AIG proposed alternative new clause 30.4(f) is consistent with the Manufacturing Award.
[64] The submissions in opposition to the applications and proposed alternative include that:
• a similar but narrower application was refused by FWA in 2010; and
• the evidence as to the effects of clause 30.4 without a provision such as the proposed clause 30.4(f) is scant.
Other variations
[65] There were some other variations to the JBT Award sought in the applications before us, but those other variations are being, or have been, dealt with otherwise by the FWC or were not pursued.
Consideration of the applications
[66] Relevant to our consideration of the variations sought in the applications before us is the history of the award modernisation process, particularly that in respect of the JBT Award. We outline that history below, before turning to deal with the variations sought in the applications before us.
[67] The Award Modernisation Full Bench of the AIRC published an exposure draft of the JBT Award on 23 January 2009. In doing so, the Full Bench said:
“Building, metal and civil construction group
[31] There are four exposure drafts in this industry group:
[54] The exposure draft of Joinery and Building Trades Award 2010 (Joinery Modern Award) is largely based on the current National Joinery and Building Trades Products Award 2002 (National Joinery Award), as it applies in the off-site sector. As with each of the exposure drafts published for this industry group, it is desirable that during the consultations consideration be given to rationalising the allowances in the exposure draft published, in particular special rates.
[55] The CFMEU filed a draft Off-site Construction Industries Award on 31 October 2008. The AiGroup proposed that the scope of any such award be limited to avoid intrusion into the manufacturing industry. The CFMEU and AiGroup reached an in-principle agreement directed at resolving this tension, although the practical effect of the agreement is difficult to ascertain. The CFMEU lodged an amended draft award on 20 January 2009. The amended award apparently did not resolve the AiGroup’s concerns. Nor was the amended draft acceded to by the MBA.
[56] We accept the need to consider a modern award or awards covering other work within the awards in the current building, metal and civil construction group, as they apply beyond the building and construction industry. We are conscious, however, of the need to avoid such an award or awards intruding into manufacturing activity, which would be more properly regulated by the Manufacturing Modern Award. The exposure draft of that award, as revised in Stage 2, incorporates elements of the draft off-site award initially proposed by the CFMEU, specifically clay articles, glazing and gypsum and plasterboard manufacturing. As noted above, at this stage, the cement and concrete products industry will be considered in Stage 3.
[57] The terms and scope of a modern award applying to building trades and activities off-site was not subject to detailed discussion in our consultations and the CFMEU’s amended draft came too late to allow broader input into the issues raised. In the circumstances we have decided to publish an exposure draft for off-site building work largely based on the current National Joinery Award as it applies in the off-site sector. That exposure draft is entitled Joinery Modern Award. We shall give further consideration to the scope of such an award, or any additional awards to cover other off-site work, during the consultations. The CFMEU will have the opportunity to elaborate on its proposal and other parties will be able to provide their views in the next part of the Stage 2 consultation process.” 5 [Original endnote omitted]
[68] On 3 April 2009, following proceedings in respect of the exposure draft, the Full Bench published the JBT Award. In doing so, the Full Bench said:
“Joinery and Building Trades Award 2010
[112] The Joinery and Building Trades Award 2010 is both an industry and an occupational award. The industries covered by the award are joinery work, shopfitting, prefabricated building, stonemasonry and glazing contracting work. The occupations covered by the award are a carver, letter cutter, carpenter, joiner, signwriter, painter, stonemason and plasterer. An employer employing an employee in those occupations will be covered by the award unless the employer is covered by another modern award containing a classification which is more appropriate to the work performed by the employee. This provision in the coverage clause is designed to overcome the overlap the exposure draft had with other modern awards and has necessitated amendments to or deletion of some of the definitions in the exposure draft. The award specifically excludes those covered by the BECC Modern Award. Pre-cast concrete manufacturing and associated occupations have not been included in the award pending the consideration of the cement and concrete products industry in Stage 3.
[113] The terms and conditions in the award largely reflect those in the National Joinery and Building Trades Products Award 2002. However, the casual conversion clause reflects that in other modern awards. The apprentice provisions have been simplified and adult apprentice wage rates consistent with those in other modern awards have been included. The apprentice provisions recognise there are both 3 and 4 year apprenticeships covered by the award. Where practical allowances have been simplified. The adjustment of allowances reflects industry practice.” 6 [Original endnote omitted]
[69] Subsequently, the CFMEU made an application to vary the JBT Award published on 3 April 2009 to extend its coverage to include glass and glazing work 7 and also made an application to vary the previously published Manufacturing Award to make consequential exclusions and deletions.8 The Award Modernisation Full Bench determined those applications on 30 December 2009. In doing so, the Full Bench said:
“[1] The Construction, Forestry, Mining and Energy Union (CFMEU) has applied to extend the coverage of the Joinery and Building Trades Award 2010 (JBT Modern Award) to include glass and glazing work. This is to be achieved by including a definition of ‘glass and glazing work’, including ‘glass and glazing work’ in the industries covered by the award, adding ‘glass worker and glazier’ to the occupations covered by the award and including various additional conditions of employment for those performing such work.
[2] In order to avoid overlap with other modern awards the CFMEU would agree to add to the list of employers not covered by the JBT Modern Award employers engaged in the manufacture of glass from raw materials and employers covered by the Vehicle Manufacturing, Repair, Services and Retail Award 2010 (Vehicle Modern Award). As a corollary, the CFMEU seeks to vary the Manufacturing and Associated Industries and Occupations Award 2010 (Manufacturing Modern Award) in two respects. Firstly to delete ‘glazing, cutting, bending, fixing in position or otherwise working of, or with, all types of glass’ from the industries covered by that award and, secondly, to specifically exclude ‘glass workers, glaziers and employees of glass merchants and glazing contractors’ from the definition of manufacturing and associated industries and occupations.
[3] The CFMEU also seeks to alter the definition of ‘shopfitting’ in the JBT Modern Award.
[4] The JBT Modern Award is an industry and occupational award which covers, amongst other things, glazing contracting work. The Manufacturing Modern Award is also an industry and occupational award which currently covers, amongst other things, the industries of ‘glazing, cutting, bending, fixing in position or otherwise working of, or with, all types of glass’ (cl. 4.2(a)(vii)), the ‘manufacture, making, assembly, processing, treatment, fabrication and preparation of … all types of flat glass and fibreglass, and all substitutes, and all products made therefrom including but not limited to flint ware, bottles, containers, jars, bricks, light bulbs, opal ware, pyrex ware, translucent reinforced sheeting, tubing, rods and lamp shades’ (cl. 4.3(ee)). However, the Manufacturing Modern Award specifically excludes ‘employees of glazing contractors, being any entity principally engaged in the business of providing glazing services on a contract basis’ (cl. 4.4(i)).
[5] The application is brought on the basis that it is more appropriate to include glass work which is downstream from the manufacture of glass from raw materials in the JBT Modern Award than in the Manufacturing Modern Award. The JBT Modern Award already covers glazing contracting work and it would be artificial to separate other downstream glass work from such contracting work. Such separation would require many employers to apply both awards as employees would be covered by the JBT Modern award or the Manufacturing Modern Award depending upon the nature of the work. It was also said that the application is consistent with the scope of transitional instruments which cover both glass merchants and glazing contractors.
[6] The application, at least in relation to award coverage, is supported by employers in the glass industry. The Australian Government also supports modern award coverage for the downstream glass industry being determined by way of industry and occupation rather than the principal nature of an employer’s business. The Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union known as the Australian Manufacturing Workers’ Union (AMWU) (the AMWU) supports the application provided the manufacture of glass remains within the coverage of the Manufacturing Modern Award.
[7] The application is opposed by the Australian Industry Group (AiGroup) essentially because it considers the application will increase uncertainty over modern award coverage and increase costs. This is because the effect of the variations will be that the Manufacturing Modern Award will:
[8] AiGroup submitted that, as the term ‘glass worker’ is not defined by the CFMEU, it is difficult to see how employees of primary manufacturers of glass would not be construed as glass workers, leaving the Manufacturing Modern Award without any coverage of the glass industry.
[9] The Australian Federation of Employers and Industries (AFEI) also opposes the variations. It does so on the basis the conditions of the JBT Modern Award are inappropriate when compared against those in the Glass Workers (State) Award (NSW).
[10] O’Brien Glass Industries Ltd also opposed the JBT Modern Award extending to ‘Windscreen Fitters’. It submitted that the provision of vehicle glass repair services by windscreen fitters is more appropriately covered by the Vehicle Modern Award.
[11] We have concluded that the downstream glass industry as ultimately defined by the CFMEU should be covered by the JBT Modern Award rather than the Manufacturing Modern Award. The JBT Modern Award is the more appropriate of the two because it already covers glazing contractors. We have decided to vary the JBT Modern Award so that it covers glass and glazing work and glass and glazing contracting, but excludes employers and employees engaged in the manufacture of glass from raw materials and employers and employees covered by the Vehicle Manufacturing, Repair, Services and Retail Award 2010. The award will define ‘glass and glazing work’ as:
‘(a) designing, bevelling, cutting, embossing or glazing by hand or machine, painting, silvering, sand-blasting, bending or otherwise working of all types of glass used in the trade, as well as leadlights, spandrel panels, clear plastic, sheet acrylic or any substitute therefore, glass lenses or prisms;
(b) fitting and/or fixing in position all types of glass used in the trade, as well as louvres, spandrel panels, glazing bars, clear plastic, or glass lenses or prisms in domestic on site situations;
(c) packing and delivery of all types of glass used in the trade, as well as louvres, spandrel panels, leadlights, glazing bars, fibreglass, clear plastic, sheet acrylic or any substitute therefore, glass lenses or prisms including any labouring work in connection with any such operations;
(d) toughening, heat treating or laminating glass or safety glass;
(e) fabrication, assembly, glazing and installation of Insulation Glass units;
(f) every operation, process, duty and function carried on or performed in or in connection with or incidental to any of the foregoing.’
[12] We are not persuaded it is necessary or appropriate to include ‘glass worker and glazier’ in the coverage clause of the JBT Modern Award. To the extent such employees perform glass and glazing work as defined or are employed by glass and glazing contractors they will be engaged in the classifications in the award. A separate reference might cause confusion about the extent of coverage of the Manufacturing Modern Award.
[13] We shall also vary the Manufacturing Modern Award to delete the reference to ‘glazing, cutting, bending, fixing in position or otherwise working of, or with, all types of glass’ from cl. 4.2(a)(vii) and specifically exclude ‘employers or employees engaged in glass and glazing work or glass and glazing contracting covered by the Joinery and Building Trades Award 2010’ from the definition of ‘Manufacturing and associated industries and occupations’ in cl. 4.4.
[14] With respect to the classification structure in the JBT Modern Award, subject to some exceptions we will include the glass and glazing classifications that the CFMEU seeks be inserted into Schedule B—Classification Structure and Definitions at the levels the CFMEU has proposed. It is appropriate to do so given the expanded coverage of the JBT Modern Award and the minimum wages paid to such classifications in the underlying awards and NAPSAs. The exceptions relate to windscreen fixers or fitters. We do not propose to include specific reference to such classifications in the JBT Modern Award. The classification definitions in the award are generic, although they also refer to some specific classifications. We think that including specific reference to windscreen fixers or fitters in the award is likely to create confusion about the coverage of the JBT Modern Award and that of the Vehicle Modern Award.
[15] As for the conditions that the CFMEU seeks be included in the JBT Modern Award in light of its expanded coverage, we will vary the JBT Modern Award to provide for a form of industry allowance similar to that in the underlying awards and NAPSAs. Having regard to those awards and NAPSAs, we will also include the tool allowance, protective clothing and footwear, collection of monies, motor vehicle allowance, performing work away from the usual place of work, rest period and washing time provisions sought by the CFMEU. However, the laundry and silicone allowances sought by the CFMEU are not sufficiently prevalent in the underlying awards and NAPSAs to warrant their inclusion.
[16] We will include a plasterer’s tool allowance in the JBT Modern Award to correct an omission when the JBT Modern Award was made.
[17] We do not propose to vary the definition of ‘shopfitting’ in the JBT Modern Award as sought by the CFMEU. The definition was crafted when the JBT Modern Award was made, with the coverage of other modern awards in mind. No sound case for varying the definition has been advanced.
[18] Orders reflecting this decision are issued in conjunction with it.” 9 [Original endnotes omitted]
[70] On 11 June 2010, ABI made an application to vary the JBT Award. 10 Senior Deputy President Acton heard that application and decided as follows:
“Introduction
[1] This decision concerns an application by Australian Business Industrial (ABI) to vary the Joinery and Building Trades Award 2010 (JBT Modern Award).
[2] The variations sought cover the following matters:
[3] I will deal with each of the subject matters of the variations sought.
Glass and glazing work definition
[4] ABI seeks that the following definition of ‘glass and glazing work’ in clause 3.1 of the JBT Modern Award:
‘(b) the fitting and/or fixing in position of all types of glass used in the trade, as well as louvers, spandrel panels, glazing bars, clear plastic, or glass lenses or prisms in domestic on site situations’.
be varied to:
‘(b) the fitting and/or fixing in position of all types of glass used in the trade, as well as louvers, spandrel panels, glazing bars, clear plastic, or glass lenses or prisms in domestic or on site situations’.
[5] ABI submits the insertion of the word ‘or’ between the words ‘domestic’ and ‘on-site’ clarifies the coverage of the JBT Modern Award in respect of the downstream glass industry and removes the possibility that the JBT Modern Award’s coverage may be interpreted as being confined to ‘domestic on-site situations’.
[6] The variation is supported by Master Builders Australia Limited (MBA) for reasons of clarity and bearing in mind that it would not exclude employees covered by the Building and Construction General On-Site Award 2010 (Building and Construction Modern Award) as clause 4.1(d) of the JBT Modern Award provides that the JBT Modern Award excludes from its coverage employers or employees covered by the Building and Construction Modern Award.
[7] The variation is opposed by the Construction, Forestry, Mining and Energy Union (CFMEU).
[8] I am not persuaded the variation should be made. The issue of the coverage of downstream glass work was specifically considered by a Full Bench of the Australian Industrial Relations Commission (Commission) on 30 December 2009 as a result of applications by the CFMEU to vary the JBT Modern Award and the Manufacturing and Associated Industries and Occupations Award 2010 (Manufacturing Modern Award). The Full Bench decided that the ‘downstream glass industry as ultimately defined by the CFMEU should be covered by the JBT Modern Award rather than the Manufacturing Modern Award.’ As a result, the existing definition of ‘glass and glazing work’ was included in the JBT Modern Award. The JBT Modern Award already excluded from its coverage employers and employees covered by the Building and Construction Modern Award and the Building and Construction Modern Award covered glaziers. In the circumstances, I am not persuaded the addition of the word ‘or’ between the words ‘domestic’ and ‘on-site’ will clarify the coverage of the JBT Modern Award. Indeed, I consider the variation is likely to create confusion, ambiguity and uncertainty about the coverage of the JBT Modern Award. The variation is not necessary to achieve the modern awards objective…
Shift rates for glass or glazing work
[18] In respect of shift rates, ABI seeks that a new clause 28.3(d)(iii) be inserted in the JBT Modern Award, together with associated variations to other parts of clause 28.3(d). The new clause 28.3(d)(iii) sought is as follows:
‘Glass and Glazing Work
An employee engaged on glass or glazing work as defined by clause 3 of this Award working an early morning, early afternoon, afternoon or night shift shall be paid 115% for those shifts provided that such an employee, who during a period of engagement works only on night shift, shall be paid 130% for those shifts.’
[19] The JBT Modern Award provides for shift rates as follows:
(i) Other than for work on a Saturday, Sunday or public holiday, the rate of pay for afternoon or night shift is 150% and the rate of pay for early morning and early afternoon shift is 125%, provided that the employee is employed continuously for five shifts Monday to Friday in any week. A public holiday in any week is not a break in continuity for the purposes of clause 28.3(d)(i).
(ii) An employee who is employed for less than five consecutive shifts Monday to Friday must be paid for each day the employee works on shiftwork at the rate of 150% for the first two hours and 200% thereafter, provided that when a job finishes after proceeding on shiftwork for more than one week, or the employee terminates their services during the week, the employee must be paid at the rate specified in clause 28.3(d)(i) for the time actually worked.’
[20] In support of their proposed variation to the shift rates in the JBT Modern Award, ABI submits the shift rates sought are similar to those in the following award-based transitional instruments:
[21] Further, the witness evidence given by employers in support of the variation indicates that it is not uncommon for employees engaged on glass and glazing work to perform shift work and the cost to employers for such shift work will increase substantially as a result of the shift rates in the JBT Modern Award. Some employer witnesses also suggest the shift rates could adversely affect investment and employment in glass and glazing work.
[22] The Australian Industry Group (AiG), in supporting ABI’s variation, did not present any witness evidence but submitted that it had been contacted by relevant employers citing the following effect of the shift rates in the JBT Modern Award:
[23] The AiG submission contained a table showing the differences between some shift rates under the JBT Modern Award and award-based transitional instruments. The table is as follows:
Afternoon Shift |
Rotating Night Shift |
Permanent Night Shift | |
Joinery Modern Award |
50%* |
50% |
50% |
Glass Merchants and Glazing Contractors General (Victoria) Award 1997 |
15% |
15% |
30% |
Glass Workers (State) Award - NSW NAPSA |
15% |
15% |
20% |
Glass Makers (State) Award - NSW NAPSA |
15% |
15% |
30% |
Glass Industry Award (Qld) 1998 |
15% |
15% |
25% |
Glass Industry – Glass Merchants and Glazing Contractors – South Australia Award 1998 |
15% |
15% |
30% |
Glass Workers and Glazing (South Australia) Award - SA NAPSA |
15% |
15% |
30% |
Glass Industry – Glass Merchants and Glazing Contractors (Tasmania) Award 1997 |
15% |
15% |
30% |
Metal, Engineering and Associated Industries Award 1998 (which applied to the manufacture of a significant number of products which included glass components) |
15% |
15% |
30% |
* The award also includes an early afternoon shift loading of 25% but this only applies to shifts which finish before
9pm. Typically, companies are not able to structure hours to have an afternoon shift finishing that early as day work
would need to start at an hour which required the payment of a shift loading.
[24] MBA also supports the variation.
[25] In opposing the variation, the CFMEU points out that the shift rates in the JBT Modern Award were known to employers undertaking glass and glazing work when the CFMEU’s application to transfer the ‘downstream glass industry’ from the Manufacturing Modern Award to the JBT Modern Award was considered and decided upon in 2009.
[26] In this regard, the CFMEU also notes that the Glass Merchants and Glazing Association Victoria Incorporated supported the coverage of the ‘downstream glass industry’ under the JBT Modern Award. Moreover, neither ABI or the HIA opposed the CFMEU’s application. The CFMEU’s application was also supported by 17 employers undertaking glass and glazing work without complaint about the shift rates in the JBT Modern Award that would apply to them, even though some of them now support ABI’s application in respect of shift rates. For example, Stuart Rowswell, the General Manager of Chevron Glass (Royal Park) a Division of Chevron Glass Pty Ltd, wrote to Fair Work Australia on 17 November 2009 in respect of the CFMEU’s application as follows:
‘I understand that the CFMEU have made an application to vary the modern awards so that only the modern Joinery Award will apply to employers who are currently covered by the South Australian Glass Award. We support that application. The conditions in the Joinery Award are similar to those in the current South Australian Glass Award and represent a fair standard for all companies that operate our industry. Keeping a single award accurately reflects the way employers in this industry operate and will prevent the Award Modernisation from becoming a source of disputes and grievances in the industry.’
[27] Further, the CFMEU submits that many of the employers who now support ABI’s shift rate variation also have employees performing joinery work and their employees performing joinery work are covered by the current shift rates in the JBT Modern Award.
[28] In opposing the variation, the CFMEU also indicates that the JBT Modern Award resulted in some improvements and some reductions in the terms and conditions of employment of employees undertaking glass and glazing work compared to the terms and conditions of employment in the award-based transitional instruments that previously covered their employment. For example, the trades rate in the JBT Modern Award is some $67 per week less than the trades rate in the Glass Workers (State) Award (NSW). The employers’ evidence about the cost increases from the shift rates in the JBT Modern Award should, therefore, be treated with caution as it fails to take into account the phasing of the increases, absorption into over-award payments and the availability of enterprise bargaining.
[29] I am not persuaded I should vary the JBT Modern Award in respect of shift rates as sought by ABI.
[30] The shift rates in the JBT Modern Award are higher than those in the award-based transitional instruments covering employers and employees engaged on glass and glazing work. However, the shift rates were included in the exposure draft of the JBT Modern Award and were included in the JBT Modern Award when the CFMEU in 2009 sought that the JBT Modern Award, rather than the Manufacturing Modern Award, cover the ‘downstream glass industry’.
[31] The AiG opposed that change in coverage, at least in part, because it would increase employer costs. The Australian Federation of Employers and Industries (AFEI) also opposed the change in coverage on the basis that the conditions of the JBT Modern Award were inappropriate when compared against those in the Glass Workers (State) Award (NSW). Many employers, however, supported the change in coverage sought by the CFMEU in 2009. In deciding in 2009 to change the coverage, the Full Bench of the Commission said:
‘[15] As for the conditions that the CFMEU seeks be included in the JBT Modern Award in light of its expanded coverage, we will vary the JBT Modern Award to provide for a form of industry allowance similar to that in the underlying awards and NAPSAs. Having regard to those awards and NAPSAs, we will also include the tool allowance, protective clothing and footwear, collection of monies, motor vehicle allowance, performing work away from the usual place of work, rest period and washing time provisions sought by the CFMEU. However, the laundry and silicone allowances sought by the CFMEU are not sufficiently prevalent in the underlying awards and NAPSAs to warrant their inclusion.’
[32] It may be accepted that some of the employers who supported the change in modern award coverage for the downstream glass industry in 2009 did not appreciate it could lead to increased shift rates for them and that some other employers simply failed to follow the award modernisation process carefully enough. However, it is apparent that in acceding to the change in coverage, the Full Bench had regard to the conditions in the underlying award-based transitional instruments.
[33] Further, the JBT Modern Award covers more than just glass and glazing work. Its conditions reflect that broader coverage and have resulted in the employers covered by it experiencing some increases and decreases in the conditions under the JBT Modern Award compared to those in the award-based transitional instruments that covered them.
[34] Moreover, there was little substance to the evidence about the effect of the shift rates in the JBT Modern Award on employers and employees engaged in glass and glazing work. The evidence tended to explanation of the difference between the shift rates in the JBT Modern Award and those in the underlying award-based transitional instruments and to assertion about the effect of the difference. The evidence essentially failed to detail the actual effect of the shift rates in the JBT Modern Award compared to those in the underlying award-based transitional instruments or, given it is early days in the application of the shift rates in the JBT Modern Award, the projected actual effect.
[35] In the circumstances, I cannot conclude the variation sought by ABI in respect of shift rates is necessary to correct an error in the JBT Modern Award or to achieve the modern awards objective.
Recall for glass or glazing work
[36] ABI seeks that a new clause 30.3(c) be added to clause 30.3 of the JBT Modern Award. Clause 30.3 is currently as follows:
‘30.3 Call back
(a) An employee recalled to work overtime after leaving the employer’s business premises (whether notified before or after leaving the premises) must be paid for a minimum of three hours work at the appropriate rates for each time the employee is so recalled. Except in the case of unforeseen circumstances arising, the employee must not be required to work the full three hours if the job they were recalled to perform is completed within a shorter period.
(b) Clause 30.3(a) does not apply where it is customary for an employee to return to the employer’s premises to perform a specific job outside the employee’s ordinary hours or where the overtime is continuous, subject to a reasonable meal break, with the completion or commencement of ordinary hours.’
[37] The addition ABI seeks is as follows:
‘(c) Where the actual time worked by an employee on glass or glazing work is less than three hours on such recall or on each of such recalls, overtime worked in the circumstances specified in this clause shall not be regarded as overtime for the purposes of clause 30.4 hereof.’
[38] Clause 30.4 of the JBT Modern Award is as follows:
‘30.4 Rest period after overtime
(a) When overtime work is necessary it must, wherever reasonably practicable, be arranged so that an employee has at least 10 consecutive hours off duty between the work of successive working days.
(b) An employee, other than a casual employee, who works so much overtime between the termination of their ordinary hours on one day and the commencement of their ordinary hours on the next day that the employee has not had at least 10 consecutive hours off duty between those times must, subject to the other provisions of clause 30.4, be released after completion of the overtime until the employee has had 10 consecutive hours off duty without loss of pay for ordinary hours occurring during such absence.
(c) If on the instructions of the employer an employee resumes or continues work without having had the 10 consecutive hours off duty the employee must be paid at the rate of 200% until the employee is released from duty for such period. The employee is then entitled to be absent until the employee has had 10 consecutive hours off duty without loss of pay for ordinary hours occurring during the absence.
(d) The provisions of clause 30.4 apply in the case of a shiftworker as if eight hours were substituted for 10 hours when overtime is worked:
(i) for the purpose of changing shift rosters;
(ii) where a shiftworker does not report for duty and a day worker or a shiftworker is required to replace the shiftworker; or
(iii) where a shift is worked by arrangement between the employees themselves.
(e) An employee who has worked continuously, except for meal or crib breaks, for 20 hours must not be required to continue at or recommence work for at least 12 hours.’
[39] ABI submits the following award-based transitional instruments exclude the types of recall it refers to in its proposed clause 30.3(c) from the calculation of the 10 or eight hour break after overtime:
[40] Further ABI, supported by MBA, says the witness evidence of many of the employers engaged on glass and glazing work is to effect that to not disregard such recalls for the 10 or eight hour break provision would significantly increase costs and/or cause inefficiencies in their businesses and could result in a reduction in employment.
[41] In opposing the variation, the CFMEU submits that clause 30.4 of the JBT Modern Award does not require that an employee must have a 10 hour break after each recall, rather it requires an employee to have at least a 10 hour break between the termination of ordinary hours on any one day and the start of ordinary hours on the next day. Depending on rostered ordinary hours, it is possible for an employee to get a 10 hour break either between the end of work on one day and the recall or between the end of the recall and the beginning of work on the next day. The CFMEU adds that the witness evidence from the employers did not go to the frequency with which recalls occur, and the call back and rest period after overtime clauses were part of the exposure draft of the JBT Modern Award and also apply to employees of glass and glazing contractors.
[42] I am not persuaded I should grant the variation to the call back clause in the JBT Modern Award sought by ABI for reasons similar to those I have given for not being satisfied I should grant their proposed variation to shift rates. The call back clause was included in the exposure draft of the JBT Modern Award and included in the JBT Modern Award when the CFMEU in 2009 sought that the JBT Modern Award rather than the Manufacturing Modern Award cover the ‘downstream glass industry’. The Full Bench of the Commission had regard to the conditions in the award-based transitional instruments when it acceded in 2009 to the change in modern award coverage. The JBT Modern Award covers more than just glass and glazing work, its conditions reflect that broader coverage and its conditions have resulted in the employers covered by it experiencing some increases and decreases in the conditions under the JBT Modern Award compared to those in the award-based transitional instruments that covered them. The evidence about the actual effects of the call back clause in the JBT Modern Award was also scant.
[43] In the circumstances, I am not satisfied the variation is necessary to correct an error in the JBT Modern Award or to achieve the modern awards objective.” 11 [Original endnotes omitted]
[71] It is apparent that many of the types of variations sought in the applications relevant to this decision have previously been considered by the AIRC and/or FWA.
[72] We will now deal with the variations sought in turn.
(i) Coverage
[73] We are not persuaded we should make the variations sought to the definition of “glass and glazing work” in the JBT Award or to the meaning of “Manufacturing and Associated Industries and Occupations” in the Manufacturing Award.
[74] The extent of the JBT Award’s coverage of “glass and glazing work” was decided by a Full Bench of the AIRC on 30 December 2009. In the course of that decision, the Full Bench also decided to vary the coverage of the Manufacturing Award to exclude employers or employees engaged in glass and glazing work covered by the JBT Award. The exclusion deals with any overlap in the coverage of the JBT Award and the Manufacturing Award that would otherwise exist because of the JBT’s coverage of “glass and glazing work” as defined in the JBT Award.
[75] On 11 June 2010, FWA declined to vary the reference to “domestic on site situations” in the definition of “glass and glazing work” in clause 3.1 of the JBT Award so that it referred to “domestic or on site situations”. FWA was not persuaded the variation would clarify the coverage of the JBT Award and considered the variation was likely to create confusion, ambiguity and uncertainty about the coverage of the JBT Award.
[76] Contrary to their submissions, the applicants for the variations in the matters before us and those supporting them have not established that the variations to the JBT Award and the Manufacturing Award arising from the Full Bench decision of 30 December 2009 have made the respective coverage of the awards difficult to understand and created confusion and uncertainty about the coverage of each award. Nor have they established that the existing coverage of the awards has or is likely to create demarcation disputes. We concur with the FWA decision of 11 June 2010 that varying the definition of “glass and glazing work” in clause 3.1 of the JBT Award so that it refers to “domestic or on site situations” is likely to create confusion, ambiguity and uncertainty about the coverage of the JBT Award, particularly when such varied coverage is compared to the coverage of the Building Award in respect of certain employers and employees.
[77] The Full Bench decision of 30 December 2009 also reveals that the AIG and other employer organisations and employers were actively involved in the proceedings that led to the decision. It is apparent from the decision that in deciding the respective coverage of the JBT Award and the Manufacturing Award the Full Bench was cognisant of the pre-existing coverage of each of the awards, the work, skills and competencies involved in the glass and glazing work concerned and the terms and conditions in relevant predecessor federal and state awards covering employers and employees engaged in such work. The submissions and evidence before us on such matters is more detailed, but in effect not different to that before the Full Bench that made the 30 December 2009 decision.
[78] The submissions to the effect that the variations are warranted having regard to the deleterious effects of the terms and conditions in the JBT Award concentrate on particular terms and conditions. We later deal with and reject the variations sought to those particular terms and conditions. As a result, we are unable to conclude the terms and conditions in the JBT Award are a basis for granting the variations affecting the coverage of that award.
[79] In the circumstances, we are unable to conclude that the variations affecting the coverage of the JBT Award or the Manufacturing Award are warranted on the bases put to us. Those bases include that the JBT Award or the Manufacturing Award is not achieving the “modern awards objective” or is operating other than “effectively, without anomalies or technical problems arising from the Part 10A award modernisation process” because of the existing definition of “glass and glazing work” in the JBT Award or the meaning of “Manufacturing and Associated Industries and Occupations” in the Manufacturing Award.
(ii) Part-time employees, Casuals and Payment of wages
[80] We are not persuaded we should make the variations sought to clauses 11.8, 12.3 and 26.3 of the JBT Award concerning part-time employees, casuals and payment of wages. There was an insufficient evidentiary case presented in support of the submissions made for the variations. We are unable to conclude that such variations are warranted on the bases that the JBT Award is not achieving the “modern awards objective” or is operating other than “effectively, without anomalies or technical problems arising from the Part 10A award modernisation process” because of the extant clauses 11.8, 12.3 and 26.3 in the JBT Award.
(iii) Slushing allowance
[81] We will delete slushing allowance from the JBT Award as its inclusion is not achieving the modern awards objective.
(iv) Ordinary hours of work
[82] We will vary the JBT award for the alternative variation sought to clause 28.2(g) of the JBT Award concerning rostered days off, having regard to the requirements of Schedule 5, Item 6 of the TPCA Act.
[83] In respect of the variations sought to clause 28.3(d) of the JBT Award concerning shift rates for glass and glazing work and the consequential other variations sought to clause 28.3(d), we are not persuaded we should make the variations sought.
[84] In its 11 June 2010 decision, FWA declined to make similar variations to the JBT Award. It is apparent from the 11 June 2010 decision that FWA was cognisant of the higher shift rates in the JBT Award compared to those in relevant predecessor federal and state awards. However, FWA also recognised the JBT Award contained some lesser terms and conditions compared to those in the predecessor awards. We also recognise the JBT Award contains some higher and lower terms and conditions than those in the relevant predecessor federal and state awards covering employers and employees engaged in the glass and glazing work. Further, the evidence before us to the effect that the shift rates in the JBT award are having or will have a negative impact on enterprise bargaining as well as deleterious economic effects, including on the offering of shifts, was undermined by the evidence that enterprise agreements covering employers and employees engaged in the glass and glazing work exist and continue to be negotiated. It was also undermined by the evidence that the same shift rate for afternoon and night shift makes it difficult to incentivise employees to work night shift, as this evidence suggests there remains demand for employees to work night shift notwithstanding the shift rate.
[85] In the circumstances, we are unable to conclude the variations concerning shift rates are warranted, including on the bases that the JBT Award is not achieving the “modern awards objective” or is operating other than “effectively, without anomalies or technical problems arising from the Part 10A award modernisation process” because of the existing clause 28.3(d).
(v) Overtime
[86] We are not persuaded we should make the variations sought in respect of payment for working overtime in the JBT Award. As we have pointed out, the JBT Award contains some terms and conditions which are higher and some which are lower than those in relevant predecessor federal and state awards covering employers and employees engaged in the glass and glazing work. Enterprise agreements covering those employees exist and continue to be negotiated. The evidence presented in support of the variations was scant and insufficient to lead us to conclude that the variations are warranted, including on the bases that the JBT Award is not achieving the “modern awards objective” or is operating other than “effectively, without anomalies or technical problems arising from the Part 10A award modernisation process” because of the existing payment for working overtime provisions in the award.
(vi) Callouts
[87] With respect to the variations and alternative proposed variation to clause 30.4 of the JBT Award concerning callouts and the rest period after overtime, we are not persuaded we should make the variations or alternative proposed variation sought.
[88] In its 11 June 2010 decision, FWA declined to make a variation to the JBT Award to similar effect. It is apparent from the 11 June 2010 decision that FWA was cognisant of the failure of the JBT Award to exclude certain recalls from the calculation of the rest break after overtime compared to relevant predecessor awards. However, FWA recognised the JBT Award also contained some lesser terms and conditions compared to those in the predecessor awards. We also recognise the JBT Award contains some higher and lower terms and conditions than those in the predecessor awards covering employers and employees engaged in the glass and glazing work. Further, the evidence presented in support of the variations was scant. The evidence suggested the emergency work usually performed on callout is still being undertaken, and the relative cost of performing the work on overtime rates under the predecessor awards compared to the cost of performing the work under the new operational arrangements brought about by the provisions of the JBT Award was unspecified. The evidence was insufficient to lead us to conclude that the variations are warranted, including on the bases that the JBT Award is not achieving the “modern awards objective” or is operating other than “effectively, without anomalies or technical problems arising from the Part 10A award modernisation process” because of the existing provisions of the JBT Award concerning callouts and the rest period after overtime.
Conclusion
[89] For the foregoing reasons, we have decided to reject all of the variations sought to the JBT Award which are before us, except those in respect of the slushing allowance and a rostered day off. We will issue a determination 12 at the same time as this decision to give effect to those variations. We have also decided to reject the corresponding variation sought to the Manufacturing Award.
[90]
Setting aside the variations to the JBT Award sought as part of the Schedule 5, Item 6 of the TPCA Act process which have not yet been determined by the FWC, those two variations will remedy the issues preventing the JBT Award from achieving the modern awards objective and from operating effectively, without anomalies or technical problems arising from the Part 10A award modernisation process.
SENIOR DEPUTY PRESIDENT
Appearances:
H. Lepahe for Australian Business Industrial.
N. Carpenter for Australian Glass & Glazing Association.
M. Mead with B. Ferguson and G. Vaccaro for The Australian Industry Group.
G. Starr for the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union.
T. Roberts and T. Kesby for the Construction, Forestry, Mining and Energy Union.
R. Calver for Master Builders Australia Limited.
Hearing details:
2012.
Sydney, Melbourne and Brisbane (video hearing):
November 27, 28.
Final written submissions:
Construction, Forestry, Mining and Energy Union, 21 December 2012.
Master Builders Australia Limited, 12 December 2012 and 18 January 2013.
Australian Glass & Glazing Association, 13 December 2012 and 18 January 2013.
The Australian Industry Group, 12 December 2012 and 18 January 2013.
Australian Business Industrial, 13 December 2012 and 18 January 2013.
5 Re Award Modernisation, [2009] AIRCFB 50.
6 Re Award Modernisation, [2009] AIRCFB 345.
7 AM2009/42.
8 AM2009/43.
9 Re Joinery and Building Trades Award 2010 and Manufacturing and Associated Industries and Occupations Award 2010, [2009] AIRCFB 974.
10 AM2010/80.
11 Re Joinery and Building Trades Award 2010, [2010] FWA 8752.
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