B J Jarrad Pty Ltd
[2013] FWCA 5425
•6 SEPTEMBER 2013
[2013] FWCA 5425 Note: An appeal pursuant to s.604 (C2013/1535) was lodged against this decision - refer to Full Bench decision dated 28 November 2013 for result of appeal. |
FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement
B J Jarrad Pty Ltd
(AG2013/2120)
B J JARRAD PTY LTD ENTERPRISE AGREEMENT 2013
Plumbing industry | |
SENIOR DEPUTY PRESIDENT O'CALLAGHAN | ADELAIDE, 6 SEPTEMBER 2013 |
Application for approval of the B J Jarrad Pty Ltd Enterprise Agreement 2013 - relevant modern award coverage - application of better off overall test.
[1] On 26 July 2013 B J Jarrad Pty Ltd (Jarrad) lodged an application for approval of the B J Jarrad Pty Ltd Enterprise Agreement 2013 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the FW Act). The application identified the Construction, Forestry, Mining and Energy Union (CFMEU) and the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) as employee bargaining representatives, together with a number of individually nominated employee bargaining representatives. Clause 1.3.1 of the Agreement establishes that it has application to Jarrad employees engaged in the classifications contained in the Agreement. The application nominated the Plumbing and Fire Sprinklers Award 2010 (referenced as the Plumbing Award) as the underpinning modern award for the purposes of the "better off overall test" (the BOOT).
[2] The AMWU lodged a notice advising that it supported approval of the Agreement and that it wished to be nominated as an organisation covered by the Agreement.
[3] Upon receipt of the application I sought clarification from Jarrad 1 about the applicable modern award. This advice was forwarded to each of the nominated employee bargaining representatives. This advice relevantly stated:
“[2] A copy of this advice has been forwarded to the nominated employee representatives. A copy has also been forwarded to the AMWU which has given notice that it seeks to be an organisation covered by the agreement. I note that, whilst the CFMEU is identified as an employee bargaining representative, no request for that union to be covered by the agreement has been received to date.
[3] The agreement and the Employer’s Declaration refer to the Plumbing and Fire Sprinklers Award 2010. The Wages Schedule and Classification Definitions in the agreement refer to classifications which appear to be derived from the Building and Construction General On-site Award 2010. I request the provision of advice and/or a signed undertaking which confirms the appropriate classification comparison and how clause 6.1.1 of the agreement operates.”
[4] For the sake of completeness I note that clause 6.1.1 of the Agreement states:
“6.1.1 The classifications and rates of pay for Employees covered by this Agreement are set out in Schedule 1 and are inclusive of all allowances that would otherwise be payable under the Award, other than those specifically prescribed and payable under this Agreement.”
[5] Jarrad responded to this invitation on 5 August 2013. Jarrad provided a signed undertaking in the following relevant terms:
1. In relation to the reference of the Wages Schedule and Classification Definitions, the Company advises that the Company undertakes Plumbing and Civil Works contracts, predominantly carrying out the establishment and renewal of sewer and water infrastructure for our major client, SA Water.
The Company confirms that the correct award is the Plumbers and Fire Sprinklers Award 2010 (Award) and that the classification structure as listed in Schedule 1 of the Agreement, has come from the previous Agreement (B J Jarrad Pty Ltd Enterprise Agreement 2010) and was therefore retained in the new Agreement. The attached table shows how the classifications in the Agreement equate to the equivalent classifications in the Award.
Clause 6.1.1 is intended to operate with reference to the allowances and payments under the Award
....
Classification Table:
Plumbing and Fire Sprinklers Award 2010 | B J Jarrad Pty Ltd Enterprise Agreement 2010 |
Plumbing and mechanical services worker/Sprinkler fitting worker: | |
Level 1 (a) - Level 1 (d) | Construction Worker Level 1 |
Level 2 | Construction Workers Levels 2 - 5 |
Plumbing and mechanical services worker/Sprinkler fitting tradesperson: | |
Level 1 | Leading Hand Level 1 |
Level 2 | Leading Hand Levels 2 - 3 |
Plumbing and mechanical services Worker/sprinkler fitting tradesperson special class: | |
Level 1 | Leading Hand Level 4 |
Level 2 | Leading Hand Level 5 |
Advanced plumbing and mechanical services tradesperson/Advanced sprinkler fitter tradesperson: | |
Level 1 | Supervisor Level 1 |
Level 2 | Supervisor Levels 2 - 3 |
[6] On the information before me, I was satisfied that the Agreement was reached through a process consistent with that set out in Part 2-4 of the FW Act and that, it met the requirements of the BOOT and sections 186, 187 and 188 of the FW Act necessary for approval were met. The application was listed for an e-hearing to give any interested party the opportunity to express a view relative to the proposed approval of the application. Subsequent events have required that I review this decision.
[7] On 6 August 2013 the CFMEU forwarded advice to my office in the following relevant terms:
“1. We disagree with the employer that the work of all of the employees covered by the agreement would fall within the coverage of the Plumbing and Fire Sprinklers Award 2010. We submit that the work of labourers and plant operators engaged on civil construction work would be covered by the Building and Construction General On-site Award 2010. The classification structure in the Plumbing and Fire Sprinkler Award 2010 has no reference to licensed operators of mobile plant, ticketed dog persons, concreters, steel fixers or concrete finishers (see construction worker level 3 under the proposed agreement). As the employer would be covered by more than one award the provisions of clause 4.6 of the Plumbing and Fire Sprinkler Award 2010 would come into play:
“4.6 Where an employer is covered by more than one award, an employee of that employer is covered by the award classification which is most appropriate to the work performed by the employee and to the environment in which the employee normally performs the work.”
There can be no doubt that the Building and Construction General On-site Award 2010 covers civil construction (see clauses 4.9 and 4.10(b)) and that the classification structure contains references to concreters, steelfixers, doggers and operators of all kinds of different plant (see clauses B.2.1(e), B.2.2(d), B.2.3(d), B.2.4(d) and B.2.5(d)). As such it would be the award that would normally cover the company’s employees engaged on civil construction work (who are not plumbing tradespersons) and is appropriate to be used for the BOOT test.”
[8] This advice then provided a detailed list of award provisions which the CFMEU asserted meant that the Agreement did not meet the BOOT.
[9] The application was the subject of a hearing on 15 August 2013. Jarrad was represented by Mr LeQuesne as agent and Mr Borg appeared for the CFMEU by telephone. The Jarrad position was that the Agreement followed an earlier agreement with the same classification structure and reflected the general plumbing work undertaken by Jarrad. Jarrad submitted that the classification structure in the Agreement was designed to provide employees with enhanced career progression opportunities.
[10] The CFMEU position was that Jarrad was most appropriately described as a civil contractor, that the Employer's Declaration (Form F17, para 2.3) made no reference to plumbing work and that, had Jarrad been a bone fide plumbing contractor, the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) would have been involved as an employee bargaining representative. The CFMEU reaffirmed its assertion that the Agreement did not pass the BOOT.
[11] In response, Jarrad advised that the CEPU had members employed by Jarrad and had been notified of the negotiations but had elected not to participate. Jarrad confirmed its position that the Agreement passed the BOOT but that it was a plumbing contractor. Jarrad requested the opportunity to call further evidence in support of this position.
[12] In order to meet the CFMEU concerns about the equity of the process, the matter was relisted for a further hearing on 19 August 2013 and a witness statement was provided in advance by Mr B Jarrad.
[13] Mr Jarrad’s evidence went to the nature of the work undertaken by Jarrad and the classifications of employees engaged by it.
[14] At this same hearing the parties provided submissions with respect to the appropriate award coverage and the application of the BOOT.
Findings
[15] Section 186(2)(d) requires that the Commission must be satisfied that the Agreement passes the better off overall test. Section 193 details the better off overall test. This test requires the identification of a modern award, which covers the employees relative to the work to be undertaken under the Agreement. Sections 47 and 48 establish when a modern award applies to an employee or employer.
[16] Two modern awards may conceivably have application to the work covered by the Agreement. These are the Building Construction General On-Site Award 2010 (referred to as the Building and Construction Award) and the Plumbing and Fire Sprinklers Award 2010 (the Plumbing Award).
[17] In reaching a conclusion with respect to the relevant award coverage I have noted the position set out by Watson SDP in MBA Ltd. 2 The observations of the Award Modernisation Full Bench3 in December 2008 are also a relevant starting point:
“[14] A number of parties suggested that the area of operation of modern awards could be clarified if the coverage provisions had an exclusionary as well as an inclusionary element. In general we agree with that approach and where practical we have adopted it. We also agree, however, with various parties who suggested that modern awards should not specify particular employers that are excluded from coverage. It would be undesirable to replicate an approach based on the requirement for parties to a dispute extending beyond the limits of any one state with the additional problem of identification, amendment and uncertainty. There may be circumstances that make it desirable to specify that particular employers are included or excluded but they would be rare. We have provided for exclusions in relation to enterprise awards and employees excluded from coverage by legislation. It may be necessary to review the terms of these exclusions later to ensure they properly reflect the legislative concepts involved.”
[18] I have also noted the approach adopted by a Full Bench in AWU v Coffey Information Pty Ltd, 4 relative to the approach to determining award coverage. In that matter the Full Bench considered the interaction between the Building and Construction Award and the Manufacturing and Associated Industries and Occupations Award 2010 and stated:
“The Interaction between the Awards
[22] The awards contain interaction rules to govern the situation when more than one award may apply. Clause 4.2(a) of the On-Site Award, set out above, excludes the application of the On-site Award if the employees are covered by the Manufacturing Award. Clause 4.2(a) of the Manufacturing Award excludes the operation of that award if the coverage is based only on the occupational coverage of the award and the employer is covered by another award containing a classification which is more appropriate to the work performed by the employee.
[23] These provisions require a consideration of whether there is a more appropriate classification in the On-site Award, on the assumption that it otherwise applies. In our view the provisions establish a priority in favour of the Manufacturing Award where there is not a more appropriate classification in another applicable award.
[24] We are unable to conclude that the classifications in the On-site Award are more appropriate to the classifications in the Manufacturing Award. The Manufacturing Award contains classifications which specifically cover laboratory work and the work of technical workers. The Manufacturing Award covers such employees on a very wide occupational basis. Less qualified employees are nevertheless covered by general semi-skilled classifications.
[25] The On-site Award applies very widely to employers in the construction industry. The classifications are of a very general nature. They contain no specific mention of laboratory or testing work although the definition of the civil construction industry does. The technicians work on such projects as the company may be contracted to provide its specialist services from time to time. Long term employees will usually perform their work in a base lab or at multiple locations. Most of the work is performed at base labs. In our view a classification structure designed for workers in the construction industry cannot be considered more appropriate than the technical stream in the Manufacturing Award.
[26] It follows that the Manufacturing Award covers the technicians and by virtue of clause 4.2(a) of the On-site Award, the On-site Award does not cover them.
Does the On-site Award apply?
[27] It is strictly unnecessary that we consider the basis that the Commissioner found that the On-site Award did not apply or indeed whether the On-site Award would apply if the interaction provisions did not render it inapplicable. Whether Coffey is an employer in the building and construction industry depends on an analysis of the services it provides, the relationship between those services and the construction activity and the application of the definitions in the On-site Award.
[28] Given the specialist nature of its services and the significant proportion of those services provided at a laboratory location some distance from the construction activities we doubt that the employer’s business can be legitimately described as the construction of civil or mechanical engineering projects. Other aspects of the award coverage provisions are broader. Notwithstanding its primary activities at base laboratories we tend to the view that a part of its business can be described as testing at a construction site or testing in connection with construction work. However the On-site Award does not cover the technicians in any event because of the interaction provisions of the awards.
Conclusions
[29] As the matter involves complex questions as to the coverage of awards for the purposes of the BOOT we grant permission to appeal. However, for the reasons given we dismiss the appeal. We find that the Commissioner correctly determined that the Manufacturing Award was the only relevant award for the purposes of applying the BOOT.”
[19] The Coverage clause of the Plumbing Award relevantly states:
“4. Coverage
4.1 This industry and occupational award covers:
(a) employers throughout Australia in the industry of the provision of plumbing and/or fire sprinkler fitting services by contract and their employees in the classifications listed in Schedule B—Classification Definitions; and
(b) employers throughout Australia with respect to their employees engaged in the occupations of plumbing and/or fire sprinkler fitting classifications within Schedule B—Classification Definitions, and to those employees.
4.2 This award does not cover:
(a) an employer bound by a modern industry award that contains plumbing and fire sprinkler fitting classifications;
(b) an employee excluded from award coverage by the Act; or
(c) 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; or
(d) 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.
....
4.6 Where an employer is covered by more than one award, an employee of that employer is covered by the award classification which is most appropriate to the work performed by the employee and to the environment in which the employee normally performs the work.
4.7 For the purpose of clause 4.1:
(a) plumbing means plumbing, gasfitting, roof plumbing, lead burning, ship plumbing, heating, airconditioning or ventilation plumbing, irrigation installation, pipe-fitting or domestic engineering work, whether prefabricated or not, engaged on-site or in construction work or any work in or in connection with:
(i) sheet lead, galvanised iron or other classes of sheet metal or any other materials which supersede the materials usually fixed by plumbers;
(ii) lead, wrought, cast or sheet iron, copper, brass or other classes of pipework;
(iii) water (hot or cold), steam, gas, air, vacuum, heating or ventilating appliances, fittings, services or installations; or
(iv) house, ship, sanitary, chemical or general plumbing or drainage and irrigation.
(b) fire sprinkler fitting means the erection, fitting, fixing, altering, inspecting, testing, maintaining, retrofitting, overhauling or repairing of apparatus, pipes and/or fittings in and/or outside of buildings, ships or other structures for the extinguishment of fire by automatic sprinklers and/or other fire protection systems.”
[20] The Plumbing Award provides for 11 classification levels commencing with a new entrant and concluding with an advanced plumbing and mechanical tradesperson. Whilst I have considered each classification definition, the classification for the Plumbing and Mechanical Services Worker (Level 1(d)) is a useful indicator of the occupational descriptions. This definition states:
- assists in the co-ordination of work in a team environment or works individually under general supervision;
- is responsible for ensuring the quality of their own work;
- exercises discretion within their level of skill and training;
- has an understanding of the construction processes within the services stream;
- assists in the provision of on-the-job training to a limited degree;
- works from instructions and procedures;
- implements basic fault-finding and problem solving skills within the employee’s sphere of work;
- measures accurately for their area of operation;
- works in a safe manner;
- interacts harmoniously with employees of other companies on-site or at the workplace; and
- adapts to a changing work environment.
“B.3.1 Work levels
....
(d) Plumbing and mechanical services worker/Sprinkler fitting worker/Fire technician Level 1(d)
A Plumbing and mechanical services worker/Sprinkler fitting worker/Fire Technician Level 1(d) is an employee who has fulfilled the substantive requirements of a Plumbing and mechanical services worker/Sprinkler fitting worker Level 1(d) as detailed below. An employee at this level will have:
(i) successfully completed a Services Stream Certificate (Plumbing and mechanical services/Sprinkler fitting) or Property Services (Asset Maintenance), as appropriate, Certificate Level 1 consisting of 16 appropriate modules of structured training; or
(ii) obtained equivalent skills gained through work experience subject to competency testing to the prescribed standard covering the same content as the above modules of training.
An employee at this level performs work above and beyond the skills of an employee at Plumbing and mechanical services worker/Sprinkler fitting worker Level 1(c) and to the level of their training. The following indicative tasks which an employee at this level may perform are:
The following indicative tasks which an employee at this level may perform are subject to the employee having completed the appropriate training to perform the particular task:
- erect and dismantle scaffolding;
- assist with rigging;
- undertake basic oxy cutting;
- execute shoring/trenching;
- undertake site drainage and de-watering;
- assist one or more tradespersons;
- safely handle waste; and
- use tools, plant and equipment requiring the exercise of skill and knowledge beyond that of an employee at Plumbing and mechanical services worker/Sprinkler fitting worker Level 1(c).
- plumber’s labourer;
- sprinkler fitter’s assistant.”
The Plumbing and mechanical services worker/Sprinkler fitting worker/Fire Technician Level 1(d) classification incorporates the following translated award classifications:
[21] The classification definition for a Plumbing Mechanical Services Worker/Sprinkler Fitting Worker Level 2 states:
- exercises good interpersonal communication skills;
- exercises discretion within their level of training;
- understands and applies quality control techniques;
- performs work under general supervision either individually or in a team environment;
- has knowledge of the four streams within the building and construction industry and how they inter-relate;
- works in a safe manner;
- having been given adequate written or verbal instruction, is able to control their own schedule of work and meet objectives with general supervision;
- is capable of detailed measuring techniques;
- interacts with and assists employees of other companies on-site or at the workplace; and
- anticipates and plans for constant changes to the work environment.
- operating a laser when carrying out leveling;
- read and interpret plans and specifications;
- operate machinery and equipment requiring the exercise of skill and knowledge beyond that of an employee at Plumbing and mechanical services worker/Sprinkler fitting worker Level 1(d); and
- assist with informal on-the-job guidance to other employees to a limited degree.”
“B.3.1 Work levels
....
(e) Plumbing and mechanical services worker/Sprinkler fitting worker Level 2
A Plumbing and mechanical services worker/Sprinkler fitting worker Level 2 is an employee who has:
(i) successfully completed a Services Stream Certificate (Plumbing and mechanical services/Sprinkler fitting) Level 2 consisting of 24 appropriate modules of formal structured training; or
(ii) obtained equivalent skills gained through work experience subject to competency testing to the prescribed standards covering the content of the above agreed modules of training.
An employee at this level performs work above and beyond the skills of an employee at Plumbing and mechanical services/Sprinkler fitting worker Level 1(d) and to the level of their training. The following indicative tasks which an employee at this level may perform are:
The following indicative tasks which an employee at this level may perform are subject to the employee having completed the appropriate training to perform the particular task:
[22] The Plumbing Award then defines the Trades classifications. I have not recited these definitions.
[23] The Coverage clause of the Building and Construction Award relevantly states:
- power stations, oil refineries, terminals and depots; chemical, petro-chemical and hydrocarbon plants; and associated plant, plant facilities and equipment;
- major industrial and commercial undertakings and associated plant, plant facilities and equipment including undertakings for the processing and/or smelting of ferrous and non-ferrous metals, the processing of forest products and associated by-products, acid and fertiliser plants, cement and lime works, and other major industrial undertakings of a like nature;
- plant, plant facilities and equipment in connection with the extraction, refining and/or treatment of minerals, chemicals and the like;
- transmission and similar towers, transmission lines and associated plant, plant facilities and equipment;
- lifts and escalators as prescribed in clause 42—Lift industry;
- facilities and equipment in other engineering projects; and
“4. Coverage
4.1 This industry award covers employers throughout Australia in the on-site building, engineering and civil construction industry and their employees in the classifications within Schedule B—Classification Definitions to the exclusion of any other modern award.
4.2 Without limiting the generality of the exclusion, this award does not cover employers covered by:
(a) the Manufacturing and Associated Industries and Occupations Award 2010;
(b) the Joinery and Building Trades Award 2010;
(c) the Electrical, Electronic and Communications Contracting Award 2010;
(d) the Plumbing and Fire Sprinklers Award 2010;
(e) the Black Coal Mining Industry Award 2010;
(f) the Mining Industry Award 2010; or
(g) the Quarrying Award 2010; or
(h) the Pre-Mixed Concrete Award 2010.
....
4.4 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.
....
4.8 Where an employer is covered by more than one award, an employee of that employer is covered by the award classification which is most appropriate to the work performed by the employee and to the environment in which the employee normally performs the work.
NOTE: Where there is no classification for a particular employee in this award it is possible that the employer and that employee are covered by an award with occupational coverage.
....
4.10 For the purposes of clause 4.1:
(a) general building and construction means:
(i) the construction, alteration, extension, restoration, repair, demolition or dismantling of buildings, structures or works that form, or are to form, part of land, whether or not the buildings, structures or works are permanent and maintenance undertaken by employees of employers covered by clause 4.1 of such buildings, structures or works;
(ii) site clearance, earth-moving, excavation, site restoration, landscaping and the provision of car parks and other access works associated with the activities within clause 4.10(a)(i); and
(iii) the installation in any building, structure or works of fittings and services;
....
(c) metal and engineering construction means:
(i) metal trades work performed in the work of construction, fabrication, erection and/or installation work or work incidental thereto when it is carried out at a construction site which is specifically established for the purpose of constructing, fabricating, erecting and/or installing the following:
(ii) maintenance and/or repair and/or servicing work carried out on-site by the employees of contractors or subcontractors in connection with contracts for on-site construction work referred to in clause 4.10(c)(i). This does not include any work which is incidental to or of a minor nature in relation to the work normally performed by an employee of an employer not engaged substantially in metal and engineering construction.”
[24] The Building and Construction Award provides for 13 classification levels commencing with the new entrant and concluding with an Advanced tradesperson. Again, whilst I have considered each of these classification definitions, the Construction Worker Level 1(d) is a relevant indicator of the occupational descriptions. This states:
“B.2 Classifications and related issues
B.2.1 Construction worker level 1/Engineering construction worker level 1 (CW/ECW 1)
(a) A CW/ECW 1 works under general supervision in one or more skill streams contained within this award. An employee at CW/ECW 1 (level d) will have:
(i) successfully completed, in accordance with RPL principles, a construction skills test equivalent to the required competency standards; or
(ii) successfully completed a relevant structured training program equivalent to the required competency standards; or
(iii) successfully completed an Engineering Construction Industry Skills Certificate Level 1 consisting of 16 appropriate modules; or formally recognised equivalent accredited training so as to enable the employee to perform work within the scope of this level; or
(iv) obtained skills equivalent to the above gained through work experience subject to competency testing to the prescribed standards
CW/ECW 1 (level a) (new entrant) | Upon commencement in the industry |
CW/ECW 1 (level b) | After three months in the industry |
CW/ECW 1 (level c) | After twelve months in the industry |
CW/ECW 1 (level d) | Upon fulfilling the substantive requirements of Construction Worker 1/Engineering Construction Worker 1 as detailed above |
- is responsible for the quality of their own work subject to general supervision;
- works under general supervision either individually or in a team environment;
- exercises discretion within their level of skills and training;
- works in a safe manner;
- identifies basic faults in materials and equipment;
- interacts harmoniously with employees of other companies on-site;
- adapts to a changing work environment;
- communicates essential information; and
- works from instructions and procedures articulated in written, spoken and/or diagrammatic form.
- works from instructions and procedures;
- assists in the provision of on-the-job training to a limited degree;
- co-ordinates work in a team environment or works individually under general supervision;
- is responsible for assuring the quality of their own work;
- has a qualification in first aid.
- uses precision measuring instruments;
- basic material handling functions;
- operate small plant and pneumatic machinery;
- inventory and store control;
- operate a range of hand tools and oxy welding equipment;
- has a knowledge of the construction process and understands the sequencing of construction functions;
- is able to provide first aid assistance to other employees;
- sheet metal soldering;
- tack welding;
- operation of mobile equipment including forklifts, hand trolleys, pallet trucks, overhead cranes and winch operation;
- ability to measure accurately;
- assists one or more tradespersons;
- Adult trainee terrazzo worker
- Aircon group 2
- Aircon group 3
- Aluminium alloy structural worker
- Assistant powder monkey
- Assistant rigger
- Bar bending machine operator
- Bitumen worker
- Builders’ labourer group 4
- Cable jointer
- Cement gun operator
- Chainperson
- Concrete cutting or drilling machine operator
- Concrete floater
- Concrete formwork stripper
- Concrete gang worker
- Concrete gun or pump operator
- Cook’s offsider, work boat driver
- Crane chaser
- Demolition labourer
- Dresser and grinder
- Drilling machine operator
- Dump cart operator
- Employee directly assisting a tradesperson
- Erector (wire mesh)
- Fencer
- Gantry hand or crane hand
- General hand
- Geotextile/geomembrane worker level 1
- Insulator
- Ironworker on construction
- Jackhammerman
- Kerb and gutter layer
- Lagger 1st assembler B
- Lagger 2nd six months
- Landscape labourer
- Linesperson
- Machinist (precast concrete manufacture)
- Machinist grade 1
- Mess attendant, camp attendant
- Mixer driver (concrete)
- Mobile concrete pump hoseperson or line hand
- Mobile crane driver
- Painter brush hand
- Pick or shovelman
- Plasterer, terrazzo or stonemason’s assistant
- Roof layer (malthoid or similar material)
- Sheetmetal worker 2nd class
- Spray painter
- Steel erector
- Stonemason assistant—factory (Queensland and Tasmania)
- Terrazzo assistant
- Tool/material storeman
- Tradesperson’s labourer
- Welder 2nd class
(b) An employee at the CW/ECW 1 (level d) performs work above and beyond the skills of an employee at CW/ECW 1 (level c) and to the level of their training and:
(c) Skills and duties
(i) An employee at this level performs work to the extent of their skills, competence and training. Employees will acquire skills both formal and informal over time and with experience, and will undertake indicative tasks and duties within the scope of skills they possess.
(ii) An employee at this level may be part of a self-directed WAT, and may be required to perform a range of duties across the skill streams contained within this award. An employee at this level:
(d) Indicative tasks which an employee at this level may perform include the following:
(e) The CW/ECW 1 classification incorporates the following broadbanded award classifications:
(f) An employee at this level may be undergoing training so as to qualify as a CW/ECW 1 (level d) or CW/ECW 2. Where possible, an employee at Levels 1 (level a), 1 (level b) and 1 (level c) will be provided with access to accredited structured training approved by the relevant Skills Council.”
[25] The classification definition for the classification level below the trades level is CW2. This is defined as:
- can interpret plans and drawings relevant to their functions;
- assists with the provision of on-the-job training;
- assumes responsibility for allocating tasks within a WAT within the area of the employee’s skill, competence and training;
- has some responsibility for the order and purchase of materials within defined parameters;
- is able to sequence functions relevant to the employee’s WAT;
- applies quality control techniques to the employee’s own work and other employees within the WAT;
- works from complex instructions and procedures;
- co-ordinates work in a team environment or works individually under general supervision;
- is responsible for assuring the quality of their work;
- works in a safe manner;
- exercises discretion within their level of training;
- understands the construction process in their sector and has a basic level of understanding of processes in other sectors;
- implements basic fault-finding and problem solving skills within the employee’s sphere of work;
- interacts harmoniously with employees of other companies on-site;
- anticipates and plans for changes to the work environment.
- calculates safe loads and stress factors;
- measures accurately using specialised equipment;
- non-trades maintenance of relevant plant and equipment;
- anticipates and plans for constant changes to the work environment.
- materials handling;
- operates machinery and equipment requiring the exercise of skill and knowledge beyond that of an employee at CW/ECW 1 (level d);
- uses measuring and levelling instruments;
- performs basic quality checks on the work of others;
- oxy acetylene cutting.
- Aircon group 1
- Concrete batching plant operator
- Concrete finisher
- Employee operating power driven portable saw
- Forklift over 4500kg
- Foundation shaftsworker
- Geotextile/geomembrane worker level 2
- Hoist or winch driver
- Landscaper
- Manhole builder
- Pitcher or beacher
- Powder monkey
- Scaffolder
- Spotter
- Steelfixer
- Storeman
- Tack welder
- Tool sharpener
- Traffic controller
- Wall builder
“B.2.2 Construction worker level 2/Engineering construction worker level 2 (CW/ECW 2)
(a) A CW/ECW 2 works under limited supervision in one or more skill streams contained within this award. A CW/ECW 2 will:
(i) have completed in accordance with RPL principles a Construction Skills Test equivalent to the required competency standards; or
(ii) have completed relevant structured training equivalent to the required competency standards; or
(iii) successfully completed an Engineering Construction Industry Certificate Level 2 consisting of a total of 20 appropriate modules, or formally recognised equivalent accredited training so as to enable the employee to perform work within the scope of this level; or
(iv) obtained skills equivalent to the above gained through work experience subject to competency testing to the prescribed standard.
(b) Skills and duties
(i) An employee at this level performs work to the extent of their skills, competence and training. Employees will acquire skills both formal and informal over time and with experience, and will undertake indicative tasks and duties within the scope of skills they possess.
(ii) An employee at this level may be part of a self-directed WAT and may be responsible for the supervision of one or more employees working at CW/ECW 1 level.
(iii) An employee at this level:
(c) Indicative tasks which an employee at this level may perform include the following:
(d) The CW/ECW 2 classification incorporates the following broadbanded award classifications:
(e) An employee at this level may be undergoing training so as to qualify as a CW/ECW 3.
[26] The Building Construction Award then provides for Trades level classifications.
[27] The Agreement contains the following classifications:
Classification | Definition: | Rate effective from date agreement is approved by FWA Increase 1% | Rate effective from first full pay period after 01/07/14 Increase 2% | Rate effective from first full pay period after 01/07/15 Increase 2% |
Apprentices | ● First Year: 50% of Leading Hand 1 rate of pay [Note: where existing employees are offered and accept an apprenticeship with B J Jarrad, consideration will be given to whether the employee retains their existing classification and rate of pay during their apprenticeship] | |||
Construction Worker Level 1 (CW1) | New entrant to the Civil Construction Industry ● Possesses basic teamwork skills Construction Worker Level 1 may include: ● Competent and ticketed Traffic Controllers | $21.09 per hour | $21.51 | $21.94 |
Construction Worker Level 2 (CW2) | Possesses minimum skills equivalent to CW1 ● Undertaken training in the use of tools, which may include but not be limited to: jack hammer, leg rammer, DPU, quick cut saw, and power tools Construction Worker Level 2 may include: ● Senior Traffic Controllers supervising small teams | $23.39 per hour | $23.86 | $24.34 |
Construction Worker Level 3 (CW3) | Possesses minimum skills equivalent to CW2 ● Advanced teamwork skills Construction Worker Level 3 may include: ● Competent and licensed operators of mobile plant | $24.82 per hour | $25.31 | $25.82 |
Construction Worker Level 4 (CW4) | Possesses minimum skills equivalent to CW3 ● Skills and licenses to operate multiple mobile plant And/or ● Skills, tickets and/or licenses in multiple disciplines that enables flexibility on the job site And/or ● High level of proficiency in pipe laying in the installation of Water, Sewer, Fire, Stormwater, Gas, Reuse water systems and associated components | $26.59 per hour | $27.13 | $27.67 |
Construction Worker Level 5 (CW5) | Possesses skills equivalent to CW4 ● Extensive technical understanding of Civil Construction and the business construction processes And/or ● Demonstrated ability to undertake final trim operation of multiple mobile plant | $28.56 per hour | $29.13 | $29.72 |
Leading Hand Level 1 (LH1) | Possesses skills equivalent of Construction Worker Levels 1 – 4 ● Ability to lead and motivate small teams Or | $26.59 per hour | $27.13 | $27.67 |
Leading Hand Level 2 (LH2) | Skills equivalent to LH1 ● Demonstrated ability to lead and motivate small to medium sized teams And/or ● Sound knowledge of Civil Construction ● Or | $28.56 per hour | $29.13 | $29.72 |
Leading Hand Level 3 (LH3) | Skills equivalent to LH2 ● Demonstrated ability to lead and motivate medium sized teams And/or | $29.87 per hour | $30.46 | $31.07 |
Leading Hand Level 4 (LH4) | Skills equivalent to LH3 ● Ability to lead and motivate medium to large teams And/or | $31.11 per hour | $31.73 | $32.36 |
Leading Hand Level 5 (LH5) | Skills equivalent to LH4 ● High level understanding of Civil Construction and the business processes Or | $33.13 per hour | $33.79 | $34.47 |
Supervisor Level 1 (SS1) | Skills equivalent to LH5 ● Ability to lead, motivate and co-ordinate large teams | $33.13 per hour | $33.79 | $34.47 |
Supervisor Level 2 (SS2) | Skills equivalent to SS1 and extensive experience in supervising large teams within the Civil Construction Industry | $35.97 per hour | $36.68 | $37.41 |
Supervisor Level 3 (SS3) | Skills equivalent to SS2 and recognised as an expert within the business and Civil Construction Industry | $37.32 per hour | $38.07 | $38.83 |
[28] I have already noted the 5 August 2013 advice from Jarrad which confirmed its view that the classification structure related to the Plumbing Award. 5
[29] Mr B Jarrad’s evidence 6 was that:
“3. The work performed by B J Jarrad is only associated with plumbing works, including work performed by licenced plumbers and by labourers in support of this work.
4. B J Jarrad employs 12 licenced/qualified plumbers in addition to the Managing Director, Barry Jarrad who is a licenced plumber as well. B J Jarrad also employs one apprentice plumber.
5. In addition, we employ employees to undertake the following types of work, all of which are in support of our plumbing works:
5.1. Pipelayers and drainlayers
5.2. Plant Operators
5.3. Mechanics (to maintain vehicles and equipment)
5.4. Welders
5.5. General Labour including Traffic Control / Riggers / Safety Supervisors”
[30] Additionally, Mr Jarrad detailed a number of significant projects undertaken by Jarrad which he described as plumbing projects. His evidence was that Jarrad generally only undertook plumbing works in terms of water supply, drainage and sewerage works.
[31] Mr Jarrad’s evidence was that 12 of the current 61 employees were qualified licensed plumbers. Approximately 10 employees were pipe-layers and drainers, 20 were plant operators, 10 were general labourers, 3 were welders and a further 3 were mechanics engaged under a separate agreement. His evidence was that Jarrad also engaged apprentice plumbers through a group training scheme. Employees generally work in teams under the control and direction of a qualified plumber. Jarrad has an off-site manufacturing facility, covered by the Agreement, where pipework may be fabricated and tested before being installed on-site, potentially by the same employees.
[32] Jarrad is registered as a plumbing business and is a member of the Plumbing Industry Association of South Australia.
[33] Information about the Jarrad business disclosed on its website was provided to me. On this site, Jarrad describes itself and certain of the works undertaken by it in terms of civil, hydraulic and mechanical works. However, consideration of each specific project identified to me discloses that this work is undertaken as part of water, drainage or sewerage project.
[34] I have noted that, in its Application (Form F16) Jarrad described itself as being in the industry of "Civil Works." I do not consider that this, of itself, permits a conclusion about award coverage but have concluded that it more likely reflects a statement made without consideration of the potential industrial consequences. In as much as it is inconsistent with the more detailed evidence now before me, I have not based my conclusions on this assertion.
[35] Having considered all of the evidence before me I have concluded that Jarrad is a plumbing contractor and is covered by clause 4.1 of the Plumbing Award. On the material before me it is clear that the civil works undertaken by Jarrad are elements of plumbing works such that Jarrad should not be characterised as a civil construction contractor.
[36] Further, notwithstanding the somewhat general classification descriptors in the Agreement, I am satisfied that the employees to be covered by that Agreement can be most appropriately described by the Plumbing Award classifications in that the employees engaged under the Agreement all undertake work which is directly related to the plumbing work undertaken by Jarrad.
[37] Accordingly, I consider that the relevant Award for the purposes of the BOOT is the Plumbing Award.
The BOOT
[38] On 5 August 2013 Jarrad provided the following undertaking:
“In relation to the definition of a shiftworker for the purposes of the additional week of annual leave under the NES, the Company undertakes to apply the definition from the Award, and to provide an additional week of annual leave to any employee who meets the definition of a shiftworker (totalling five (5) weeks per annum for eligible employees).
For the purpose of clarity, the Award at clause 34.1(b) defines a shiftworker for the purposes of the additional week of annual leave as a continuous shiftworker as defined by the Award. A continuous shiftworker is defined as follows:
“continuous shiftworker means an employee engaged to work in a system of consecutive shifts throughout the 24 hours of each of at least six consecutive days without interruption (except during breakdown or meal breaks or due to unavoidable causes beyond the control of the employer) and who is regularly rostered to work those shifts”
The Company undertakes to apply the provisions of the NES to provide an additional week’s annual leave to any employee who meets the definition set out above.”
[39] I am satisfied that, taking this undertaking into account and, as a term of the agreement, the requirements of the BOOT are met. The various concerns identified by the CFMEU related to the Building and Construction Award and are not relevant to the Plumbing Award.
[40] I have taken the above undertaking to be a term of the Agreement. A full copy of advice provided by the employer is attached to the Agreement as Attachment A.
[41] I am satisfied that each of the requirements of ss.186, 187 and 188 of the Act as are relevant to this application for approval have been met.
[42] The “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU), being a bargaining representative for the Agreement, has given notice under s.183 of the Act that it wants the Agreement to cover it. In accordance with s.201(2) of the Act I note that the Agreement covers this organisation.
[43] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 14 September 2013. The nominal expiry date of the Agreement is 30 June 2016.
<Price code G, AE402895 PR539870>
1 Preliminary Findings of 2 August 2013
2 [2013] FWC 4576, paras [153] - [162]
3 [2008] AIRCFB 1000
4 [2013] FWCFB 2894
5 See para [5] of this decision
6 Exhibit J1
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