Construction, Forestry, Mining and Energy Union

[2011] FWA 7868

[2011] FWA 7868

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.160 - Application to vary a modern award to remove ambiguity or uncertainty or correct error

Construction, Forestry, Mining and Energy Union
(AM2011/39)

SENIOR DEPUTY PRESIDENT WATSON MELBOURNE, 10 NOVEMBER 2011

Application to vary modern award to remove ambiguity or uncertainty or correct error.

[1] An application has been made by the Construction Forestry Mining and Energy Union (the CFMEU) for the variation of the Building and Construction General On-site Award 2010 1 (the B&C Award) under s.160 of the Fair Work Act 2009 (the Act).

[2] Section 160 - Variation of modern award to remove ambiguity or uncertainty or correct error, provides:

“(1) FWA may make a determination varying a modern award to remove an ambiguity or uncertainty or to correct an error.

(2) FWA may make the determination:

(a) on its own initiative; or

(b) on application by an employer, employee, organisation or outworker entity that is covered by the modern award.”

[3] The CFMEU application raises two categories of variations:

1. The CFMEU has identified potential gaps in the coverage of the modern award which may create uncertainty, in respect of which it proposes variations to remove uncertainty. The applications are made in the context of the current process of terminating modernisable instruments by Fair Work Australia (coverage).

2. The CFMEU has also identified a small number of alleged errors in the modern award. The application seeks to correct those errors (other matters).

[4] The variations sought in each of the categories are as follows:

Coverage:

1. By inserting a new clause 4.11 as follows:

“4.11 This award is also an occupational award for the following occupations:

(a) Bricklayers and tuckpointers;

(b) Builders labourers;

(c) Construction workers;

(d) Roof slaters and tilers.”

2. By deleting the words “spray painter” appearing in clause B.2.1(e).

3. By inserting in clause B.2.3(d) the following occupations:

Artworker

Roof slater

Sandblaster

Spraypainter

Shotblaster

[5] Each of the variations proposed in relation to coverage were opposed by the Master Builders Australia Limited (MBA), the Housing Industry Association (HIA), The Australian Industry Group (AIG), the Australian Federation of Employers and Industries (AFEI), Australian Business Industrial (ABI), the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) and the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) (the AMWU).

Other matters:

1. “In clause 19.3(a)(ii) delete the words ‘clause 20.1(d) - Special conditions to apply to bricklayers engaged on construction or repairs to refractory brickwork’ appearing in the last paragraph, and replace them with the words ‘clause 21.8 - Refractory bricklaying allowance’.”

2. “In clause 23.3 delete the figure ‘60’ and replace it with the figure ‘30’.”

3. “Insert the following new clause 23.14:

‘23.14 Safety

Where an employee is prevented from working at the employee’s particular function as a result of unsafe conditions caused by inclement weather, the employee may be transferred to other work in the employee’s classification on site, until the unsafe conditions are rectified. Where such alternative work is not available and until the unsafe conditions are rectified, the employee shall remain on site. The employee shall be paid for such time without reduction of the employees inclement weather entitlement.’”

[6] The first variation, concerning the Refractory bricklaying allowance was opposed by AIG. It was supported by the MBA. It was not opposed by any other party.

[7] The two variations concerning the inclement weather provision were opposed by the MBA, the HIA, the AIG, the AFEI and the ABI and supported by the CEPU. The AMWU broadly supported the intent of the CFMEU application.

Consideration

The proposed new clause 4.11

[8] The CFMEU submitted that the purpose of this proposed variationwas to make the B&C Award an occupational award for the occupations identified where no other industry award applies on the basis that there are a number of Modern Awards - such as the Banking, Finance and Insurance Award 2010; 2 the Corrections and Detention (Private Sector) Award 2010;3 the Educational Services (Post Secondary Education) Award 2010;4 the Fire Fighting Industry Award 2010;5 the Food, Beverage and Tobacco Manufacturing Award 2010;6 the Higher Education Industry - General Staff - Award 20107 - which do not have classifications that deal with building trades and building labourers or construction workers.

[9] The effect of the proposed variation is significant - to add to the current industry coverage of the B&C Award, an occupational coverage in respect of bricklayers and tuckpointers, builders labourers, construction workers and roof slaters and tilers in relation to employees in other industries, where relevant Modern Awards do not contain classifications covering employees of this kind.

[10] I see no basis to vary the B&C Award to this effect. There is no ambiguity or uncertainty as to the basis of coverage of the B&C Award, and its making as an industry award does not reflect error. It was intended to operate on an industry basis. The CFMEU has produced no material to suggest a practical need for the variation, other than to identify awards which do not provide classifications covering the relevant occupations. Nor has it brought any evidence to suggest that the B&C Award is an appropriate Modern Award from which to draw and apply terms and conditions to apply to relevant workers in other industries. The B&C Award was quite specifically made to provide minimum safety net conditions relevant to the particular circumstances of the on-site building and construction industry, drawing upon award terms and conditions in award-based transitional instruments in the industry. The obvious example is the redundancy arrangements in award-based transitional instruments developed in the context of the particular circumstances of the industry which were taken into the B&C Award as an industry specific redundancy scheme. As such, the B&C Award is unsuited for an occupational coverage of employees undertaking work in other industries and it would be inappropriate to apply the terms and conditions of the B&C Award to employees in other industries, without any evidence as to the work undertaken and the circumstances under which it is undertaken.

[11] The application to introduce a proposed new clause 4.11 is refused.

The proposed variation of clause B.2 to move Spraypainter from clause B.2.1(e) to clause B.2.3(d) and to include Artworker, Roof slater, Sandblaster, Spraypainter and Shotblaster in clause B.2.3(d)

[12] The variation is proposed on the basis that the classification level at which these broadbanded award classifications, found in some award-based transitional instruments, would be placed, is uncertain. The CFMEU submitted that the relevant classifications were found in some award-based transitional instruments as follow:

Artworker:

Artworkers Award (WA) 8

Building Employees Mixed Industries (State) Award (NSW) 9

Roof slater:

Roof Slaters and Tilers (Victoria) Award 2002 10

Sandblaster, Spraypainter and Shotblaster:

Industrial Spraypainting and Sandblasting Award 1991 (WA) 11

[13] I accept that the work undertaken in each of the classifications identified by the CFMEU might occur within the on-site building and construction industry. I also accept, in each case, that the absence of incorporation of the particular broadbanded classification found within an award made under the Workplace Relations Act 1996 (Cth) or a notional agreement preserving a State award that would have applied to an employee immediately prior to 1 January 2010¹² in clause B.2 of the B&C Award creates uncertainty as to whether it falls within the classification covered by the B&C Award, notwithstanding the other substantive elements of each classification definition. However, I would need to be satisfied that the classification level in the B&C Award proposed by the CFMEU is appropriate before varying the B&C Award to remove the uncertainty. 13

[14] I am satisfied that it is appropriate that the Artworker classification be included at the level of B.2.3 Construction worker level 3. The classification of Artworker (Base Painter - Art) is included in clause 16.3.7 of the Building Employees Mixed Industries (State) Award (NSW) at the level of Painter. The Artworker in the Artworkers Award (WA) incorporates painting and was prescribed a rate in excess of the minimum trades rate. The Artworker classification will be incorporated into clause B.2.3(d) by adding the words “(including Artworker)” after the word “Painter” where it appears in clause B.2.3(d).

[15] The Roof slater is reflected in clause 14.1 of the Roof Slaters and Tilers (Victoria) Award 2002 within the classification of “Slater and/or tiler”. I am satisfied that the Roof slater classification should be reflected in the broadbanded classifications in Schedule B of the B&C Award and will be incorporated into clause B.2.3(d) by adding the words “(including Roof slater)” after the word “Rooftiler” where it appears in clause B.2.3(d).

[16] Similarly, the Spraypainter, Shotblaster and Sandblaster classifications are included in clause 8 of the Industrial Spraypainting and Sandblasting Award 1991 (WA) within the classification of “Painter, Spraypainter, Shotblaster and Sandblaster” with a common minimum classification rate. I am satisfied that the Spraypainter, Shotblaster and Sandblaster classifications should be reflected in the broadbanded classifications in Schedule B of the B&C Award and will be incorporated into clause B.2.3(d) by adding the words “(including Spraypainter, Shotblaster and Sandblaster)” after the word “Painter” where it appears in clause B.2.3(d).

[17] The effect of my decision in relation to Artworker, Spraypainter, Shotblaster and Sandblaster is that the words “(including Artworker, Spraypainter, Shotblaster and Sandblaster)” will be inserted after the word “Painter” where it appears in clause B.2.3(d).

[18] Clause B.2.3(d) in Schedule B of the B&C Award will be varied to read:

(d) The CW/ECW 3 classification incorporates the following broadbanded award classifications:

• Air compressor operator



• Air-conditioning tradesperson



• All winch driver



• Artificial stoneworker



• Battery fitter



• Bitumen sprayer



• Boilermaker and/or structural steel tradesperson



• Bricklayer



• Bridge and wharf carpenter



• Carpenter



• Caster



• Concrete finisher, powered



• Concrete spreader, powered



• Crawler tractor with power operated attachments (up to and including 2000kg shipping mass)



• Crusher operator aggregate (dimension stone quarries)



• Drainer



• Dumper, rear and bottom (up to and including 2 cubic metres struck capacity)



• Electric motor attendant



• Electrical fitter



• Electrical mechanic



• Fitter



• Fixer



• Floor layer specialist



• Floorsander



• Forklift driver



• Form setter



• Gardener



• Geotextile/geomembrane worker level 3



• Glazier



• Hand sprayer, lance type



• Joiner



• Locksmith



• Machinist



• Marble and slateworker



• Marker off



• Mobile concrete line pump operator



• Mobile hydraulic platform operator



• Motor mechanic



• Operator, drilling machine, up to and including 155 mm diameter



• Operator, pneumatic tyred tractor with power operated attachments (up to and including 15 kW net engine power)



• Operators of other cranes up to and including 5 ton



• Painter (including Artworker, Spraypainter, Shotblaster and Sandblaster)



• Paviour (including segmental paving)



• Pipe layer (any kind of pipes)



• Plant mechanic



• Plasterer



• Prefab tradesperson



• Qualified/trade cook



• Quarryworker (dimension stone quarries)



• Refrigeration mechanic



• Renderer in pipes, tunnels or covered drains



• Rigger



• Dogger



• Roller, vibrating (under 4 ton)



• Roof fixer



• Rooftiler (including Roof Slater)



• Second driver—Navvy and dragline or dredge-type excavator



• Serviceperson



• Sheetmetal worker 1st class



• Shophand



• Slate ridge or roof fixer



• Stonemason



• Tilelayer



• Timberperson



• Tradesperson (radio)



• Tradesperson (precast concrete manufacture)



• Tradesperson landscaper



• Trenching machine (small Ditch-Witch type)



• Welder 1st class



• Welder special class

(The emphasis has been added for the purpose of this decision and will be removed in the Determination which varies the B&C Award to give effect to this decision.)

[19] Consistent with the submission of the MBA, the broadbanded classifications added to clause B.2.3(d) will besubject to the provisions in clause B.6 - Definitions of classifications in Schedule B, which provides that:

“The broadbanded award classifications referred to in Part B.2 of this Schedule will have the meaning ascribed to them by an award made under the Workplace Relations Act 1996 (Cth) or a notional agreement preserving a State award that would have applied to an employee immediately prior to 1 January 2010; or a Division 2B State award that would have applied to the employee immediately prior to 1 January 2011.”

[20] I note that the Artworkers Award was subject to a hearing on 25 July 2011 before Senior Deputy President Harrison, as part of the termination of modernisable instruments process in matter CT2011/432. The matter was adjourned 14 on the basis of an objection to the termination of the instrument by the CFMEU, reflected in correspondence dated 22 July 2011 to Senior Deputy President Harrison and submissions put by the CFMEU in the hearing before her Honour in order to allow the CFMEU an opportunity to vary the B&C Award to clarify modern award coverage. That application formed part of the current variation application before me.

[21] Given my decision to incorporate the Artworker classification into clause B.2.3(d) by adding the words “(including Artworker)” after the word “Painter” where it appears in clause B.2.3(d) of the B&C Award and the reallocation of matter CT2011/432 to me, I intend to terminate the Artworkers Award on the basis that the CFMEU objection appears to be addressed, subject to taking steps through the processes in place to advise persons interested in the termination of modernisable instruments process, of my intention and to afford them an opportunity to raise any objection to that course of action.

[22] I note that the Building Employees Mixed Industries (State) Award (NSW) was notsubject to proceedings in the recent termination of modernisable instruments process, being aninstrument “that cover employees also covered by an enterprise instrument”, where the award-based transitional instrument is referenced in an enterprise award. Item 3(3) of Schedule 5 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 states that Fair Work Australia must not terminate these instruments.

The allowance referenced in clause 19.3(a)(ii)

[23] Clause 19.3(a) of the B&C Award sets out the basis of the hourly rate calculation for daily hire employees. It includes in clause 19.3(a)(ii) a proviso applicable to Refractory bricklayers and their assistants, providing that “the allowance contained in clause 20.1(d) -Special conditions to apply to bricklayers engaged on construction or repairs to refractory brickwork, will be added to the hourly rate”.

[24] The CFMEU submitted that whilst clause 20.1(d) contains a special provision related to refractory bricklayers, it is concerned with a monetary allowance for the purchase of boots, which has not traditionally been part of the hourly rate. It submitted that the correct reference should be to clause 21.8 - Refractory bricklaying allowance, which is the special allowance paid to compensate for the disabilities associated with Refractory bricklaying, reflecting the terms of clauses 18.3.1(b) and 18.10.2 of the National Building and Construction Industry Award 2000. 15

[25] The MBA did not oppose the amendment to clause 19.3(a)(ii) and submitted that it appeared to have been drafted in error. It submitted that it is clear given that the Australian Industrial Relations Commission (AIRC) did decide to include a Refractory bricklaying entitlement as part of Refractory bricklayers’ ordinary hourly rates that the intended reference was not to a boot allowance, but to the allowance in clause 21.8, as the CFMEU submitted.

[26] AFEI submitted that the reference in clause 19.3(a)(ii) to the boot allowance appeared to be an error.

[27] The AIG opposed the variation on the basis of its analysis of the making of the B&C Award and the later variation of clause 19.3(a)(ii) 16 and submitted that no error had been established.

[28] Having regard to the relevant terms of the National Building and Construction Industry Award 2000 17in clauses 18.3.1(b), 18.10.2 and24.3.4(a), I am satisfied that the reference in clause 19.3(a)(ii) to clause 20.1(d) is in error and that it should refer to clause 21.8 - Refractory bricklaying allowance.

[29] Clause 19.3(a)(ii) of the B&C Award will be varied to read:

(ii) For this purpose the hourly rate, calculated to the nearest cent (less than half a cent to be disregarded), will be calculated by multiplying the sum of the appropriate amounts prescribed in:

• clause 19.1—Minimum wages;



• clause 21.2—Industry allowance;



• and where applicable,



• clause 20.1—Tool and employee protection allowance;



• clause 21.3—Underground allowance,

by 52 over 50.4 (52/50.4) rounded to the nearest cent, adding to that subtotal the amount prescribed in clause 21.1—Special allowance, and dividing the total by 38.

Provided that in the case of a carpenter-diver, the divisor will be 31, and for refractory bricklayers and their assistants the allowance contained in clause 21.8 - Refractory bricklaying allowance, will be added to the hourly rate.

Inclement weather

[30] The CFMEU sought two variations to clause 23 - Inclement weather:

1. Replacing the amount “60” appearing in clause 23.3 and inserting “30”.

2. Inserting a new clause 23.14 as follows:

“23.14 Safety

Where an employee is prevented from working at the employee’s particular function as a result of unsafe conditions caused by inclement weather, the employee may be transferred to other work in the employee’s classification on site, until the unsafe conditions are rectified. Where such alternative work is not available and until the unsafe conditions are rectified, the employee shall remain on site. The employee shall be paid for such time without reduction of the employees inclement weather entitlement.”

[31] The first variation sought to change the maximum time period within which consultation must occur for determining whether or not the conditions referred to in the B&C Award clause apply, from 60 minutes to the original 30 minutes that applied in former awards. The second variation seeks to re-instate a safety subclause which was omitted when the modern award was made. The CFMEU submitted that the current provisions were in error, having regard to the terms of the pre-modern awards and retraced the submissions put by various parties to the Award Modernisation Full Bench in relation to inclement weather provisions in the building and construction industry proposed modern award during the Stage 2 proceedings. The CFMEU submitted that as there is no reference to “removing prescription” in the decisions and statements of the Award Modernisation Full Bench then the only rational conclusion is that the change in the time period for consultation and the omission of the safety provision in the inclement weather clause were a result of an error.

[32] The variations sought in respect of the inclement weather provision were opposed by the employer associations on the basis that the CFMEU had not established an ambiguity, uncertainty or error in clause 23, which is a pre-requisite to the variation of a Modern Award under s.160 of the Act.

[33] The MBA submitted that the proposition that because a Modern Award provision did not reflect in every respect the terms of pre-modern awards reflects error is untenable, given that Modern Awards are expressions of the AIRC/Fair Work Australia “striking the balance” between the “broad and multifaceted” objects of award modernisation and they should only be varied with great reluctance. The MBA further submitted that the drafting of clause 23 during the awards modernisation process has already been the subject of a significant number of submissions and there is little basis to suggest that, as the CFMEU claims, a clause of the kind proposed was made in “error”.

[34] The MBA relied on the 26 June 2009 Award Modernisation Statement of an Award Modernisation Full Bench of the AIRC, 18 which stated:

“Applications to vary the substantive terms of modern awards will be considered on their merits. It should be noted, however, that the Commission would be unlikely to alter substantive award terms so recently made after a comprehensive review of the relevant facts and circumstances including award and NAPSA provisions applying across the Commonwealth. Normally a significant change in circumstances would be required before the Commission would embark on a reconsideration.”

[35] I am not satisfied that the inclement weather provisions raised by the CFMEU reflect ambiguity, uncertainty or error. The inclement weather provisions were subject to considerable attention during the Stage 2 proceedings which led to the making of the B&C Award, with the Award Modernisation Full Bench publishing in the exposure draft two inclement weather provisions, drawn from the two major Federal awards in the industry. It is clear that the Award Modernisation Full Bench sought the assistance of the parties in developing a single provision, in a simplified form and removing unnecessary prescription. 19 Having considered the submissions of the various interested parties in relation to the inclement weather provisions, the Award Modernisation Full Bench included clause 23, in its current form, in the B&C Award, having regard to the matters it was required to consider under the Award Modernisation Request, as amended, and the statutory matters in Part 10A of the Workplace Relations Act 1996. In this context the assertion that because a Modern Award provision did not in a particular respect contain the same terms as relevant pre-modern awards is insufficient to establish that clause 23 of the B&C Award, in its current form, demonstrates error.

[36] In the absence of demonstrated ambiguity, uncertainty or error in respect of the matters raised by the CFMEU in relation to inclement weather, there is no basis to vary the B&C Award, as sought by the CFMEU, under s.160 of the Act.

SENIOR DEPUTY PRESIDENT

Appearances:

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

A. Matheson for Housing Industry Australia.

S. Smith with G. Vaccaro for The Australian Industry Group.

R. Calver for the Master Builders Australia.

A. Kentish for the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia.

G. Noble for “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU).

N. Ward for Australian Business Industrial.

C. Blades for Australian Federation of Employers and Industries.

Hearing details:

2011.
Melbourne and Sydney (video hearing):
October 11.

 1   MA000020.

 2   MA000019.

 3   MA000110.

 4   MA000075.

 5   MA000111.

 6   MA000073.

 7   MA000007.

 8   AN160014.

 9   AN120091.

 10   AP818507.

 11   AN160180.

12 Clause B.6 Definitions of classifications in Schedule B.

 13   Re Joinery and Building Trades Award, [2011] FWA 7266, at para 16.

 14   Transcript, at para 21.

 15   AP790741.

 16   [2009] AIRCFB 989 and PR992159.

 17   AP790741.

 18   Award Modernisation Statement [2009] AIRCFB 645 at para 3.

 19   Stage 2 Statement, [2009] AIRCFB 50, at para 43.

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