Fair Work Act 2009
s.156 - 4 yearly review of modern awards

Substantive and contested issues in the Concrete Products Award 2010.

[1] The Commission has before it two submissions seeking substantive and contested variations to the Concrete Products Award 2010 1 (the Award). First, in submissions dated 8 May 2014, Brickworks Pty Ltd (Brickworks) sought variations to expand the ordinary hours of work in clause 22, to phase out the industry allowance in clause 16.1, and to allow individual employees by consent to work ordinary hours on any five days in the week without the payment of the weekend penalty rates currently prescribed in clauses 25.7 and 25.8 (Brickworks application). Second, in submissions dated 26 September 2014, the Australian Workers Union (AWU) sought a variation to the Award to clarify the ordinary rates for non-continuous shift workers on Sundays and public holidays (AWU application).

[2] Programming for the hearing of these matters was the subject of a directions hearing before the presiding member on 14 May 2015. At this directions hearing, Brickworks (supported by the Concrete Masonry Association of Australia) advanced the position that both its application and the AWU application should not be heard and determined until after the matters before the Penalty Rates Full Bench (AM2014/305) had been heard and determined. This position was advanced on the basis that principles concerning penalty rates which might emerge from the decision ultimately to be issued by the Penalty Rates Full Bench would overlap with matters the subject of the Brickworks and the AWU applications. Brickworks did however propose that the inspections relevant to its application should take place before the Penalty Rates Full Bench issued its decision and later this year.

[3] The AWU, supported by the CFMEU, took the position that all the matters should be heard and determined as soon as practicable, and should not await the decision of the Penalty Rates Full Bench.

[4] The matters before the Penalty Rates Full Bench will be heard according to a timetable set out in a Statement published by Justice Ross, President, on 3 March 2015.² That timetable established a program of hearing dates the last of which was 18 December 2015. It can reasonably be envisaged therefore that a decision will not be issued until some months into 2016.

[5] We have some doubt as to whether the decision of the Penalty Rates Full Bench is likely to establish principles relevant to the determination of the Brickworks application, since it will primarily focus upon the hospitality and retail sectors. Nonetheless if Brickworks does not want to run its case prior to the Penalty Rates Full Bench decision and wishes to consider its position in the light of that decision, we see no reason to force it to an earlier hearing. Therefore the hearing of the Brickworks application will be deferred until after the Penalty Rates Full Bench decision is issued.

[6] Having so determined, we see little purpose in engaging in inspections in connection with the Brickworks application later this year. The primary benefit afforded by inspections is to allow members of the Commission to have greater understanding of and insight into the issue under consideration when they hear the evidence and submissions. If there is a significant time gap between the conduct of the inspections and the hearing of the evidence, there is a risk that impressions gained from the inspections will be diminished or lost by the time that the matter is heard. We consider that the better course would be to conduct the inspections shortly before the hearing. We also note that the parties have been unable to date to agree upon a sensible and realistic program for inspections. We would not be inclined in any event to embark upon inspections until the parties have made further genuine efforts to agree upon a program.

[7] The AWU application, although it raises an issue concerning penalty rates payable on Sundays and public holidays, does not appear to involve a merits examination of the quantum of penalty rates. Rather, it seeks to correct an alleged ambiguity in the Award as it currently stands. Its case is advanced on the basis that the Award is defectively drafted having regard to the past award history and other comparable modern awards. There is no substantial evidentiary contest. Its application will stand or fall on the basis on which it has been advanced. We do not consider that there is any impediment to hearing the AWU’s proposed variation at the earliest available date. In particular, we do not consider that any determination we make about the AWU application will prejudice the hearing and determination of the Brickworks application.

[8] Accordingly the AWU application will be heard by this Full Bench on 12 October 2015 in Sydney.

VICE PRESIDENT

 1   MA000056

² [2015] FWC 1482

Printed by authority of the Commonwealth Government Printer

<Price code A, PR568793>