N0122 Dec 849/99 M Print R7494

AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

Workplace Relations Act 1996

Review of awards pursuant to Item 51 of Part 2 of Schedule 5 of the

Workplace Relations and Other Legislation Amendment Act 1996

(C No. 00002 of 1998)

NATIONAL BUILDING AND CONSTRUCTION INDUSTRY AWARD 1990

(ODN C No. 02783 of 1974)

[Print L2807 [N0122]]

Various employees

Building, metal and civil construction industries

   

COMMISSIONER MERRIMAN

MELBOURNE, 23 JULY 1999

Award simplification.

DECISION

INTRODUCTION

[1] In February 1998 an initial conference pursuant to item 49 of the Workplace Relations and Other Legislation Amendment Act 1996 occurred and subsequently drafts were produced by the Unions and the Employer parties, however, no agreement was reached prior to 30 June 1998. The Commission, on its own motion pursuant to s.33 and s.113 of the Workplace Relations Act 1996, relisted the matter for 7 July 1998 and dealt with the matter pursuant to item 51 of the WROLA Act. At the initial hearing, after some challenges which were rejected, two Union parties [CFMEU and the CEPU], eight Employer groups [MBA, MPANSW, NSW Chamber, EMPFED, HIA, CCF, AIG and MPA] and the Minister for Workplace Relations and Small Business appeared. The Chamber of Commerce & Industry WA made written submissions. (In this decision, references to sections are to sections of the WR Act and references to items are to items in Schedule 5 of the WROLA Act).

[2] Formal proceedings occurred on 7, 8, 14 and 15 July 1998 and again on 4 August 1998. On 17 September 1998 the Commission communicated with the parties in the following terms:

[3] On 12 March 1999 the Commission further communicated with the parties in the following terms:

[4] Final submissions were heard on 24 March and 19 May 1999. On 19 May 1999 the CFMEU produced draft number 5 which is the outcome of various conferences. The draft includes a number of clauses which have been redrafted by the Commonwealth taking into consideration the earlier Full Bench decisions as to allowability. The parties then produced a document which identified 28 items that required arbitration by the Commission.

[5] At the commencement of the formal proceedings the Commonwealth ran a lengthy argument as to the proper application and operation of the WR Act, particularly items 49, 50 and 51 of the WROLA Act. This was supported by a number of Employers including the Chamber of Commerce and Industry Western Australia. Similar submissions were made before the Full Bench in the Leave Provisions case and an interim decision was issued by the Bench on all of the points on 7 August 1998 [Print Q4057]. In this matter the Commission adopts that decision in answer to the arguments advanced by the Commonwealth and others. In adopting that decision the Commission will therefore be applying all of the arguments that were advanced by the various parties going to the relevant award clauses which may be considered pursuant to the provisions of s.89A(6).

[6] In arriving at its decision the Commission has considered all of the material placed before it including exhibits, witnesses and written submissions. Consistent with the approach taken in the s.109 Review decision [Print R2700] the Commission will not refer to all of the arguments advanced but will simply give reasons going both to s89A(2) allowability, s.89A(6) incidental and necessary, and the requirements of item 51(7) and (8). It should also be noted that the Commission has worked from draft 5 provided by the CFMEU which was handed to the Commission on 19 May 1999. The parties all confirmed the amendments contained therein reflect the agreed changes following the recent Full Bench decisions referred to in the Commission's direction of 12 March 1999. In using draft 5 the Commission has taken into consideration the statements made by all of the parties in their closing submissions wherein they rely upon their earlier substantive submissions and exhibits.

MATTERS FOR ARBITRATION

[7] Turning to the matters for arbitration, the Commission deals with those items on a clause by clause basis.

Clause 3 - Definitions

[8] CCF argues that the definition covering mechanical plant operators and those associated with this section of the award should be removed and the general terminology contained in that organisation's material should replace the existing definitions. The CFMEU opposes this position. The Commission believes that definitions are allowable and certainly necessary and incidental to the wage rates and conditions and therefore the existing definitions will stay.

Clause 13 - Settlement of disputes

[9] A number of subparagraphs of this clause are challenged by various Employers and having considered the arguments put by all of the parties, the Commission has reached the following conclusion.

[10] Clause 13.1.1 was amended following conferences between the parties and the reference to a steward or delegate on a site wide basis is challenged by a number of Employers, however, the Commission is firmly of the belief that given the nature of this industry and the significant occasions when a multiplicity of employers are involved in major construction projects, then it is necessary and incidental to the operation of the settlement of disputes procedure for there to be a site specific person appointed by those union members if the members so desire.

[11] Clause 13.4, in the Commission's view, is not allowable as it provides specific entitlements to a person who is elected a shop steward or delegate and this is contrary to Part XA of the WR Act.

[12] Clause 13.6 has been incorporated to provide for the necessary training of representatives so they may effectively operate the settlement of disputes procedure. A decision of Commission Larkin was referred to the Commission for consideration in considering this subclause. The Commission believes the subclause now adopted more readily applies to this industry compared with the industry Commissioner Larkin was dealing with and the clause does meet the requirements of the major Employers and the CFMEU.

Clause 14 - Contract of employment

[13] The Commission endorses 14.1.3(a) and (b) as proposed and adopts the decision of Commissioner Lewin in the Furnishing Industry Award [Print Q3877] because the wording of the clause does not place a limit on the number or proportion of employees that can be employed as casuals.

[14] This clause has a long history of providing both weekly and daily hire employees. There is some concern in the Commission's mind that 14.2 (daily hire) provides less notice than that provided by s.170CM(2), however, the Commission is of the view that this subclause is necessary and incidental to the contract of employment clause for the proper working of this industry, given the nature of the work and the manner in which it is performed.

[15] The Commonwealth made a strong submission that the Commission should introduce part-time employment and produced a clause which would achieve this. The award currently provides for part-time employment in certain circumstances and the award also provides for casual employment. Item 51(7)(b) says the Commission must also review the award to determine whether or not it meets the criteria, "where appropriate it contains provisions enabling the employment of regular part-time employees". Having considered the arguments, the Commission does not believe the award should be further varied to provide for a general clause to introduce a broader category of part-time employee. A substantive part of the employment is daily hire, provision is made for casuals and some form of part-time employment and there is no restriction in the award that would contravene s.89A(4).

[16] Clause 14.6 provides for certain rights for shop stewards and delegates as against other employees and the provision is void because of ss298KE, 298L(1)(a) and 298Y.

Clause 15 - Redundancy

[17] All parties agree that the subject of redundancy is allowable, however, the definition as contained within this award was argued by the Government and some Employers to be inconsistent with the Test case and not "consistent with the use of concepts in industrial practice in Australia". Commissioner Wilks in the Plumbing Industry Award decision [Print Q8609 p33] provides a number of reasons as to why he believes the redundancy provision in that award, which is consistent with this award, is consistent with the use of the concepts in industrial practice in Australia and, therefore, consistent with the Full Bench decision in the CBOA case. In addition to the reasons provided by Commissioner Wilks, the Commission is of the view that a substantial part of the redundancy provisions and entitlements within this award would be allowable under s.89A(n) - notice of termination. The entitlements, given the reasons that they are paid, flow in some circumstances following the giving of notice where in other circumstances they flow from the cessation of the work. For these reasons the Commission is prepared to maintain the existing clause in the award in its current form because, in the Commission's view, it is allowable pursuant to s.89A(2)(m) and (n).

Clause 16 - Termination of employment

[18] This clause is consented to by all of the parties, with the exception of CCF, who provides an alternative clause. The Commission is not prepared to vary the existing provision based on the submissions of the CCF, relying upon the Hospitality decision [Print P7500] as to existing rights. The Commission is satisfied that as to weekly hire employees the draft meets the requirements of the WR Act. The Commission believes, consistent with its decision regarding clause 15, then clauses 15 and 16 should be redrafted so there is one clause to provide not only the notice requirement but the payment aspects of clause 15.

Clause 18 - Inclement weather - tradespersons & labourers

[19] The parties agree this matter is allowable although for different reasons. The Commonwealth and the HIA argues that clause 18.5, requirement for a conference, 18.9.1 the restriction on working in the rain and 18.11.2 which again refers to not working in rain, are not allowable. The CFMEU argues the provision is an allowance, however, the Commonwealth, supported by the MBA, refers to the provision as a stand down provision.

[20] The Commission considers the clause to be a provision whereby employees may be stood down and in certain circumstances they are to be paid. Turning to the question of working in the rain, this restriction is tempered by the fact that employees may be relocated and therefore perform productive work. They may be stood down with some degree of payment dependent on the amount of lost time that has been experienced because of rain during the period. The clause has a long history in the award and the Commission rejects that it is too restrictive given the flexibilities that are provided and, therefore, consistent with the Hospitality decision, benefits that are provided in an award in respect to an allowable matter should not be reduced because of the simplification process. The fact that the award does provide some form of payment up to a limit where people are stood down should not be reduced or eliminated as part of the simplification process because the payment is incidental and necessary to the flexibility given under the stand down provision.

Clause 19 - Rates of pay

[21] This clause is allowable, however, MPA suggests the rates clause should include hourly rates. The Commission rejects this suggestion because of the varying allowances that apply and if the MPA wishes to produce hourly rates for its members, which it most likely does do, then that practice can continue, however, the Commission does not believe the award clause should be further expanded for this reason.

Clause 20 - Payment of wages

[22] Clause 20.7 which deals with the particulars for the payment to each employee when wages are paid was argued by some parties as being unnecessary as it is already covered by Regulation 132B of the WR Act. The CFMEU and the MBA argue for its retention on the basis that the award does have some differences from the Regulation and the parties produced a clause which encompasses both. The Commission notes that in the Hospitality decision the Full Bench agreed to the employers' submissions that such a clause should be deleted. In this matter the major Employers did not make such submissions and therefore the Commission believes the particular subclause is necessary and incidental to an allowable matter, that is payment of wages.

Clause 22 - Tool and employee protection allowances

[23] Clause 22.2 has been redrafted and draft 5 meets all of the requirements as to an allowance, however, 22.2.5(d) provides for lock-up facilities. The Commission believes this clause can also be redrafted so that it meets the requirements of an allowance in the following terms:

Clause 23 - Special rates

[24] Clause 23.2.6 is questioned as to its allowability and given that it is cleaning using "acids or other corrosive substances" then the employee should be provided with protective clothing as well as the allowance and therefore the clause as it stands, in the Commission's view, is allowable as being incidental and necessary to the performance of work which must be performed to attract the allowance, which is allowable pursuant to s.89A(2)(j).

Clause 30 - Compensation for clothes and tools - tradespersons & labourers

[25] Provision is made in this clause for the storage of tools when an employee reports in sick. The Commonwealth states [transcript p182] this matter is allowable and the Commission adopts the position put by the Commonwealth. The clause will remain unaltered.

Clause 32 - Hours of work

[26] Substantial submissions were made by CCF that go to greater flexibility in respect to the hours of work. The Commission's attention was drawn to the Hospitality decision and the Metal Industry decision. However, the CFMEU argues that both those awards have vastly different clauses as contained in this award, particularly as to the introduction of the 38 hour week. The Commonwealth argues the clause should be subject to a facilitative provision, as it did in respect to a number of clauses, and the Commission will deal with that matter as a separate item in this decision.

Clause 35 - Shift work

[27] The CCF argues for greater flexibility in 35.5 and for the extension to six hours by agreement either with an employee or with a majority of employees. There has been no evidence placed before the Commission as to the need for such a change and again the Commission relies on the Hospitality decision as to the protection to existing award clauses which are allowable.

Clause 37 - Annual leave

[28] The MBA, supported by the Commonwealth and other Employers, contends this clause does not work and therefore on one view is obsolete. It was further argued that it does not meet the requirements of item 51(6)(a) in that it provides matters of detail or process that are more appropriately dealt with by agreement at the workplace or at enterprise level. In considering the clause it provides in this industry, which is subject to daily hire and inconsistent work periods, a time when employees must take leave over the Christmas/New Year period. It also provides, in the Commission's view, a sensible time line to set a close down date so employees can properly plan for their family break. What does concern the Commission is the effect on a major building site if different dates were established and the resultant effect on productivity. The submission of the MBA, the major Employer, places in serious doubt whether the provision is acted upon. However, from the Commission's own experience and not denied by the parties, each year appearing from somewhere is a date when the industry closes down for the Christmas/New Year period. The Commission is also aware that the actual re-opening date seems to vary from site to site and on major sites this is generally co-ordinated so that there is a common close down period. The Commission believes the clause provides flexibility and is facilitative in nature and is also necessary and incidental to an allowable matter being annual leave and, therefore, the Commission rejects the argument to remove it from the award.

Clause 43 - Living away from home - distant work

[29] The CFMEU and MBA have endeavoured, on a number of occasions, to draft this clause, which is a substantial clause, to meet the requirements of the WR Act. Despite their best endeavours the Commission believes that clause 43.3.3(b) still does not meet the requirements of the WR Act and is too prescriptive. It deals with accommodation which, in the Hospitality decision is determined to be a non allowable matter, however, an allowance may be appropriate. The Commission therefore believes the clause needs to be written in such a way so that it is not too prescriptive and does not include matters of detail or process that are more appropriately dealt with by an agreement at the workplace or enterprise level [item 51(6)(a)]. As Commissioner Wilks determined in the Plumbing Industry Award decision [p41] the specification of the standard of amenities to be provided on construction sites is not allowable of itself and is not incidental to any allowable matter and the clause was deleted. A significant part of 43.3.3 goes to accommodation and the Commission is prepared to rewrite the clause in the following way so that it will not be over prescriptive:

43.3.3 Where employees are required to live in a camp at one site, provide:

Clause 44 - Compensation for travel patterns, mobility etc

[30] In the Commission's view the parties have not applied their best endeavours to redraft this clause. CCF provided on 4 August 1998 a draft which, it claims, simplifies the clause without reducing entitlements. The CFMEU undertook to review that draft, however, the final document presented to the Commission on 19 May 1999 continues to have a very descriptive heading and continues in its current form. The subject matter is allowable, however, in 44.6.1 the last sentence is not allowable as it prescribes a standard, 44.14.2(a)(ii) is also not allowable for the same reason. The parties are to confer as to the general wording of this clause, including its title, and are to provide a further draft to the Commission for the final order.

Clause 50 - Amenities

[31] In the Commission's view the MBA correctly argues this clause is not allowable and relies on the Hospitality decision and correctly distinguishes this clause from the camping clause where an allowance is payable. The Commonwealth considers the clause is not allowable, however, it said that it will appropriately be redrafted as an allowance for any disability. The CFMEU claims the matter is allowable. The Commission supports the position put by the MBA and the Commonwealth and certainly the aspect of the clause that goes to Western Australia needs substantial simplification. The Commission is concerned because these points were made in July and August 1998 yet the draft presented in May 1999 is in exactly the same terms as the July 1998 draft. The Commission is therefore left with no alternative but to exclude the clause from the award and the parties may wish to present a further draft for the Commission's consideration before the finalisation of the order.

Clause 51 - First aid duties

[32] This clause is generally accepted to be allowable because it provides an allowance, however, 51.2, 51.3 and 51.4 are not allowable. Clauses 51.2 and 51.3 deal with the provision of first aid kits and the Hospitality decision determined such a provision is not allowable nor justifiable pursuant to s.89A(6). The Commission accepts the points made by the Commonwealth that 51.4 should be redrafted as an allowance consistent with the approach adopted in the Hospitality decision, and will therefore require this clause to be redrafted as required by this decision.

Clause 54 - Time records

[33] The Commission notes that in the Hospitality decision the Full Bench rejected the employers' submissions that time and wages records are not an allowable matter. However, the Full Bench deleted the award requirements prescribing records because the Regulations require all that the particular award requires and more. The major parties to this award submit the clause should remain given the nature of the work in the industry and the general lack of referral to Regulations. Certainly, the Commission is aware of many disputes which have arisen because of lack of records being kept and is convinced the award needs such a provision to enable employers and employees to resolve any differences. This is especially necessary considering the hours of work and deductions that are prescribed, together with additional allowance payments that are prescribed and in some way are unique to this award. The Commission believes this award can be distinguished from the Metal Industry Award and the TWU awards as to this matter, specifically because of the short term nature of the employment cycle and the provision of daily hire together with the movement of labour from site to site.

Clause 56 - Posting of notices

[34] This clause is allowable in the Commission's view, and consistent with the approach taken in the Metal Industry decision, this clause, together with clause 55 (Posting of award), will be included in the settlement of disputes clause.

Clause 57 - Right of entry

[35] This clause was found to be non allowable in the Hospitality decision, however, it was said that the Commission does have the power to award some entry provision pursuant to Division 11A of Part IX of the WR Act, in particular s.285G, and that that section is the only source of the Commission's power to award such provisions. The Commission notes the decision of his Honour Mr Justice Boulton in the Coal Industry [Print Q1205 p14] wherein his Honour states:

The Commission, in excluding this clause from the award, does so on the basis of adopting the reasons given by his Honour.

Clause 58 - Civil operations traineeship

[36] This clause is allowable and there was argument put by the CCF together with a draft, to which the CFMEU takes certain objections. In considering the position of the parties the Commission will delete from 58.1.2 the words "and approved by the union". The Commission will also delete 58.4.5 which gives the union reasonable access to trainees. In deciding this way the Commission is following the decision of the Full Bench in the Hospitality and s.109 Review decisions.

Appendix A - New South Wales - site provisions

Appendix B - Victoria - site provisions

Appendix C - Queensland - site provisions

[37] The Commission believes that in the simplification of this award and the reformatting these appendices need further review and should ultimately, if still required, form part of the award and not be seen as an appendix. Any residual provisions should be part of the wages clause.

Appendix D - Western Australia - site provisions

[38] In appendix D, 1.15.6 has a number of subclauses which are not allowable, particularly paragraphs 5 and 6 and the Commission relies upon the s.109 Review decision [para 286] for this conclusion. As a general comment in respect to appendix D, the Commission believes most of the provisions should be in agreements and not contained within the award. The clause needs redrafting before it will be included in the award

Appendix E - Award restructuring in the Building and Construction industry

[39] It is argued by all of the parties, except BISCO, that this clause is allowable. The Commonwealth supports this view but draws the Commission's attention to sections 1 and 2 as being statements of intent which were found to be non allowable in the Hospitality decision. The Commission is not prepared to include these sections in the award and the appendix will now form part of the wage rates clause and will be retitled Classifications and wage rates.

Appendix F - Travel allowance Pinjar, Western Australia

[40] This appendix should be included in the allowances clause of the award.

Facilitative provisions

[41] The Commonwealth produced an exhibit, C4-1, which had been sent to all parties to the proceedings, in which it outlines the scope for individual and/or majority agreement in eleven clauses contained in the award. It identifies the level of agreement required, whether individual or majority, and where similar clauses have been dealt with by this Commission. In its submissions the Commonwealth clearly spells out the responsibility upon the Commission, pursuant to item 51(7)(a), in so far as the Commission must review the award to determine whether or not it has facilitative provisions in the appropriate places. Further, the Commonwealth submits the review is mandatory and it does not require the parties necessarily to make suggestions or submissions as to whether facilitative provisions should appear in certain clauses. The obligation is on the Commission to conduct the review and where appropriate include facilitative provisions.

[42] The CCIWA supports this position in written submissions and the CCF produced an exhibit which incorporates its requirements as to facilitative provisions. The CFMEU and the MBA believe there are sufficient facilitative provisions in existing clauses and the CFMEU took the Commission to ten clauses and highlighted where existing facilitative provisions are provided.

[43] In conducting the review and in deciding whether a provision is appropriate, the Commission has taken into consideration not only the submissions of the parties, but given the wording of item 51(7)(a):

the Commission must heavily rely upon its experience of the award and its operation. The Commission has had significant experience in the operation of this award in the industry, having been assigned to the panel in 1980 and having sat on a range of matters including Full Benches which have dealt with major disputes in the industry over the last 19 years. In arriving at the decision as to the appropriateness of facilitative provisions in this award, the Commission has had regard to the type of employment, daily hire and weekly, the flexibility of the workforce as it is required to move from work site to work site, the short term nature of many employment contracts and the inter relationship of many different employers working on the same site. The Commission has decided the following:

[44] The Commission has not dealt with clause 41 of the award (public holidays) because that matter is still before Commission Jones under a separate application.

CONCLUSION

[45] Having reviewed the award consistent with the Award Simplification Principles, and having heard the submissions of the parties, the award will be varied so as to remove provisions which ceased to have effect under item 50 of Part 2 of Schedule 5 of the WROLA Act, other than those clauses which are administrative in nature or are both incidental to allowable award matters and necessary for the effective operation of the award.

[46] The award has been reviewed pursuant to item 51(4) and (5) and once varied the award will satisfy the criteria set out in item 51(6) and (7) of the WROLA Act.

[47] The parties are directed to confer and redraft the necessary clauses to give effect to this decision. Further, a conference will be held in Sydney at 10.00 am on Wednesday, 11 August 1999 to finalise the order.

BY THE COMMISSION:

COMMISSIONER

Appearances:

S. Maxwell for the Construction, Forestry, Mining and Energy Union.

D. Matson for the Communications, Electrical and Plumbing Union of Australia.

A. Grinsell-Jones for the Master Builders Association of Victoria, New South Wales and South Australia and respondent members of the Master Builders Association of Queensland, Newcastle, Western Australia and Tasmania.

I. Warren for the Building Industry Sub-Contractors Association and the Master Painters Australia - NSW Association, Queensland Association, Western Australian Association and Australian Capital Territory Association and respondent members of the Association of Wall & Ceiling Contractors of New South Wales, the Australian Specialist contractors Association and the Concrete Pumping Association of New South Wales (intervening).

M. Gissane for the Chamber of Manufacturers of New South Wales (intervening).

J. Wigmore for the Employers Federation of New South Wales.

G. Simpson, P. Tahar and M. Parubotchy for the Housing Industry Association Ltd (intervening) and Wheeler Rice & Associates.

B. Shinners, D. Huett and H. Vale for the Civil Contractors Federation.

A. Tomlinson and S. Clancy for the Australian Industry Group.

D. Murray for the Master Plumbers Association, Master Plumbers and Connected Contractors Association (intervening).

S. Jauncey and P. Lee for the Minister for Workplace Relations and Small Business (intervening).

Decision Summary

   

Award - review of award - award simplification - allowable matters - s89A Workplace Relations Act 1996 - Item 51 Workplace Relations and Other Legislation Amendment Act 1996 - various employees, building, metal and civil constructions industries - award varied to meet legislative requirements - allowable clauses include: redundancy, termination of employment, inclement weather, definitions, rates of pay (but not hourly rates), payment of wages, storage of tools when employee sick, annual leave, compensation for travel patterns, time and wage records, posting of award, civil operations traineeships - allowable allowances include those for water proof lock-up, protective clothing, first aid, living away from home - Commission noted that award appendices should be reviewed and included in text of award - certain facilitative provisions considered appropriate having regard to short term nature of many employment contracts in construction industry and interrelationship of many different employers working on same worksite.

National Building and Construction Industry Award 1990

C No 00002 of 1998

Print R7494

Merriman C

Melbourne

23 July 1999

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