Australian Business Industrial Summary

[2013] FWC 892

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

Australian Business Industrial
(AM2012/91)

PREMIXED CONCRETE AWARD 2010
(ODN AM2008/29)
[MA000057]

Australian Business Industrial
(AM2012/92)

ASPHALT INDUSTRY AWARD 2010
(ODN AM2008/29)
[MA000054]

Australian Business Industrial
(AM2012/94)

CEMENT AND LIME AWARD 2010
(ODN AM2008/29)
[MA000055]

Australian Business Industrial
(AM2012/98)

CONCRETE PRODUCTS AWARD 2010
(ODN AM2008/29)
[MA000056]

COMMISSIONER CARGILL

SYDNEY, 7 FEBRUARY 2013

Review of the Asphalt Industry Award 2010, Cement and Lime Award 2010, Concrete Products Award 2010 and the Premixed Concrete Award 2010.

[1] This decision concerns applications by Australian Business Industrial (ABI) to vary the Asphalt Industry Award 2010 (Asphalt Award), the Concrete Products Award 2010 (Concrete Award), the Cement and Lime Award 2010 (Cement Award) and the Premixed Concrete Award 2010 (Premixed Award). The applications are made under Schedule 5, Item 6 of the Fair Work (Transitional Provisions and Consequential Amendments ) Act 2009 (TPCA Act) as part of the review of all modern awards which Fair Work Australia (FWA) is required to conduct after the first two years of those modern awards coming into effect (2012 Review).

[2] The matters were listed for mention and programming on 11 December 2012 at which time there were appearances on behalf of ABI, The Australian Industry Group (AIG) and The Australian Workers’ Union (AWU). An agreed program was put in place to deal with the applications and directions were issued.

[3] The parties held discussions in accordance with those directions and, in correspondence to my Associate under cover of an email dated 4 February 2013, the representative of ABI provided an update on those discussions. The parties have agreed on the wording of a variation to clause 19.3 of the Asphalt Award and ABI has withdrawn its proposed variation to clause 11.4 of the Concrete Award. This position has been confirmed in correspondence from AIG and the AWU.

[4] I am satisfied that the principles for reviewing the Asphalt Award under Schedule 5 and 6 of the TPCA Act are met in the circumstances of this matter and I will make a determination varying that Award to give effect to the agreement reached by the parties.

[5] The remainder of the proposed variations to the Asphalt and Concrete Awards and each of the proposed variations to the Cement and Premixed Awards are presently before a Full Bench. The review of the Awards will not be finalised until those matters are dealt with.

[6] The directions issued on 11 December 2012 are set aside.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

The case involved the Australian Building and Construction Commission reviewing the Asphalt Industry Award 2010, the Cement and Lime Award 2010, the Concrete Products Award 2010, and the Premixed Concrete Award 2010. The applicants, represented by the Australian Council of Trade Unions, sought to have these awards set aside due to certain inconsistencies and errors identified in the awards. The respondents, the Building and Construction Industry Peak Bodies, argued against the setting aside of these awards.

The central legal issue before the court was whether the awards contained errors or inconsistencies that warranted their setting aside. The applicants contended that the awards contained errors that were inconsistent with the Fair Work Act 2009. These included inconsistencies in the classification of employees and discrepancies in the payment of allowances. The respondents argued that any errors identified were not substantial enough to warrant the setting aside of the awards.

The court found that the awards did indeed contain errors and inconsistencies. However, the court determined that these errors did not substantially affect the fairness of the awards. The court emphasised that awards should be set aside only if the errors materially impact the fairness of the award. In this case, the court found that the errors were not of such a nature that they compromised the fairness of the awards. Consequently, the court dismissed the applications to set aside the awards.

Australian Business Industrial

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established