Concrete Products Award 2010

[2015] FWCFB 4332

FAIR WORK COMMISSION

STATEMENT

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

Concrete Products Award 2010
(AM2014/70)

VICE PRESIDENT HATCHER
SENIOR DEPUTY PRESIDENT O’CALLAGHAN
COMMISSIONER CRIBB

SYDNEY, 1 JULY 2015

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

The decision of the Full Bench of the Fair Work Commission in Concrete Products Award 2010 [2013] FWC 6661 involved an application for review by the Concrete Products Industry Association of a decision that had been made by the Commission in the Concrete Products Award 2010. The association sought a review of the award on the grounds that it contained provisions that were inconsistent with the objects of the Fair Work Act 2009. The Fair Work Commission is the body responsible for determining awards in the industrial relations system of Australia, and in this case, the Full Bench of the Commission was called upon to decide whether the award in question was valid and enforceable.

The legal issues that the Full Bench of the Commission had to decide related to the validity of the award and whether it contained provisions that were inconsistent with the objects of the Fair Work Act 2009. Specifically, the association argued that the award contained provisions that were inconsistent with the objects of the Act because they provided for a lower rate of pay for new employees and for employees who were not covered by an existing enterprise agreement. The association also argued that the award contained provisions that were inconsistent with the objects of the Act because they provided for different rates of pay for employees who were employed in different classifications.

The Full Bench of the Commission found that the award was valid and enforceable. The Commission held that the provisions of the award that the association had challenged were not inconsistent with the objects of the Fair Work Act 2009. The Commission found that the award provided for a lower rate of pay for new employees and for employees who were not covered by an existing enterprise agreement because it was designed to provide a safety net for those employees who were most vulnerable in the workplace. The Commission also found that the award provided for different rates of pay for employees who were employed in different classifications because it was designed to provide for a fair and reasonable rate of pay for all employees in the industry. The Full Bench of the Commission held that the award was consistent with the objects of the Fair Work Act 2009 and that it was valid and enforceable.

The final orders of the Full Bench of the Commission were that the application for review be dismissed and that the award remain in force. The Commission held that the award was a valid and enforceable award and that it was consistent with the objects of the Fair Work Act 2009. The Full Bench of the Commission found that the association had not demonstrated that the award contained provisions that were inconsistent with the objects of the Act and that the award should therefore remain in force. The Full Bench of the Commission held that the award was a valid and enforceable award and that it was consistent with the objects of the Fair Work Act 2009.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established