Cryoperl Australia Pty Ltd
[2016] FWCA 2829
•13 May 2016
[2016] FWCA 2829
FURTHER DECISION
| Fair Work Act 2009 |
| s. 602 – Application to correct or amend |
| Cryoperl Australia Pty Ltd |
| (AG2016/2369) |
CRYOPERL AUSTRALIA PTY LTD WHEATSTONE PROJECT
AGREEMENT 2016
Building, metal and civil construction industries
| COMMISSIONER GREGORY | MELBOURNE, 13 MAY 2016 |
Application for approval of the Cryoperl Australia Pty Ltd Wheatstone Project Agreement
2016.
[1] This decision deals with an application by Cryoperl Australia Pty Ltd (“Cryoperl”)
under s.602 of the Fair Work Act 2009 (Cth) (“the Act”) seeking amendments to correct
obvious errors and omissions in relation to the Cryoperl Australia Pty Ltd Wheatstone Project
Agreement 2016, which was approved by the Commission with undertakings on 7 March
2016.
[2] The Employer’s Statutory Declaration provided by the Site Manager, Mr James
Keane, at the time the application was made to approve the Agreement indicated that only 4
employees are covered by the proposed Agreement.
[3] As indicated, Cryoperl now makes application under s.602 “seeking to correct or
amend obvious errors, defects or irregularities in the Agreement.”
[4] The errors/omissions arise from the failure to correctly state in the Agreement the rates
of pay and allowances that are intended to apply at the project site under the terms of the
Agreement. Those pay rates and allowances are intended to replicate those contained in the
overall Site Agreement. However, the terms of the Agreement currently fail to make clear that
the commencement rate of pay and allowances are not intended to apply until 1 September
2016, and the increases in those rates, which is now stated in the Agreement to apply from 1
February 2017, are not to apply until 1 September 2017.
[5] Cryoperl accordingly submits the rates of pay and allowances now in the Agreement
do not reflect the intended agreement of the parties and this has been caused by “a simple
administrative error.”
[6] Cryoperl has also provided the Commission with copies of correspondence from each
of the 4 employees covered by the Agreement confirming their understanding that the rates of
[2016] FWCA 2829
pay and allowances in the Agreement were intended to be the same as those applying in the
overall Site Agreement, and confirming their agreement to correct the errors in the Agreement
to confirm that this is, in fact, the case.
[7] Section 602 of the Fair Work Act states:
“602 Correcting obvious errors etc. in relation to the FWC’s decisions
(1) The FWC may correct or amend any obvious error, defect or irregularity (whether
in substance or form) in relation to a decision of the FWC (other than an error, defect
or irregularity in a modern award or national minimum wage order).
Note 1: If the FWC makes a decision to make an instrument, the FWC may correct etc.
the instrument under this section (see subsection 598(2)).
Note 2: The FWC corrects modern awards and national minimum wage orders under
sections 160 and 296.
(1) The FWC may correct or amend the error, defect or irregularity:
(a) on its own initiative; or
i
(b) on application.”
[8] Section 598(2) of the Act also relevantly states:
“(2) If the FWC makes a decision that makes or varies an instrument, a reference in this
Part to a decision of the FWC includes the FWC’s decision to make or vary the
instrument in the particular terms decided.”
[9] The Full Bench also determined in the matter of Fair Work Australia v Schweppes
Australia Pty Ltd & Anor:
“…the power under s.602 is not confined to errors made by the Tribunal but could
extend to obvious errors made by the parties reflected in instruments the Tribunal
ii
makes.”
[10] I am accordingly satisfied that the Commission has the power to amend the Agreement
under s.602 of the Act in the manner proposed in the present application. After considering
the application and the materials provided in support, as well as the nature of the changes
proposed, I am therefore prepared to make an order amending the Agreement in the terms
proposed by the Applicant.
[11] Those changes are as follows.
The wage rates and classification structure set out in sub clause 9(1) in section 2 of the
Agreement under the heading “Civil/Structural” are replaced by the following:
[2016] FWCA 2829
Transition $ $ $ Level
Group 01/09/2015 01/09/2016 01/09/2017
1 45.32 47.87 50.57
CW1 2 45.57 48.00 50.57 3 45.94 48.20 50.57 1 46.66 49.51 52.54 CW2 2 47.28 49.84 52.54 3 47.65 50.03 52.54 1 48.77 51.66 54.72 CW3 2 49.14 51.86 54.72 3 49.64 52.12 54.72 1 50.26 53.23 56.37 CW4 2 50.75 53.49 56.37 CW5 1 51.87 54.86 58.01 CW6 1 53.61 56.55 59.65
| | The wage rates and classification structure set out in sub clause 9(1) in section 2 of the |
| Agreement under the subheading “Trade and Technical Classifications” are deleted | |
| and replaced by the following: |
$ $ $ 01/09/2015 01/09/2016 01/09/2017
Extra Low Voltage Installer/
47.65 50.03 52.54
Communication Technician
Mechanical Fitter
Welder
Pipe Fitter
Boilermaker
Mechanical Fitter
Carpenter
Painter 49.64 52.12 54.72 Refractory Tradesperson Sheetmetal Worker (1st class) Sprinkler Plumber Communications Tradesperson Tradesperson- other [2016] FWCA 2829
Electrical Fitter
Electrical Installer
Electrical Mechanic
Licensed Plumber 52.12 54.73 57.47 Welder Special Class Mechanical Tradesperson Special Class Non Destructive Testing Technical Officer (or Non Destructive Technician Level 3 as defined by AS
399819992) 54.61 57.34 60.20 Electrician Special Class* Instrument Electrical Grade 1* Instrument Tradesperson Instrument and Controls Tradesperson
57.09 59.94 62.94
Electronics Tradesperson*
| | The wage rates and classification structure set out in sub clause 9(1) in section 2 of the | |||
| Agreement under the heading “Crane Classifications” are deleted and replaced by the | ||||
| following: | ||||
|
01/09/2015 01/09/2016 01/09/2017
Mobile Crane
45.32 47.87 50.57
Driver (Hiab)
Mobile Crane
operator - mobile
cranes with lifting
50.26 53.23 56.37
capacity up to and
including
15 tonnes
[2016] FWCA 2829
Classifications $ $ $
01/09/2015 01/09/2016 01/09/2017
Mobile Crane
Operator - mobile
crane with a
lifting capacity in
51.87 54.86 58.01
excess of 15
tonnes and up to
and including 100
tonnes
Mobile Crane
Operator - mobile
crane with a
lifting capacity in
53.61 56.55 59.65
excess of 100
tonnes and up to
and including 180
tonnes
Mobile crane
operator- mobile
crane with a
lifting capacity in
55.35 58.24 61.29
excess of 180
tonnes and up to
and including 260
tonnes
Tower crane
55.35 58.24 61.29
operator
Operates a crane
with lifting
57.08 59.94 62.93
capacity in excess
of 260 tonnes
| | The Site Allowances set out in clause 10 of the Agreement are deleted and replaced by |
| the following: |
$ $ $
01/09/2015 01/09/2016 01/09/2017
8.31 8.73 9.17
[2016] FWCA 2829
| | The Leading Hand Allowances set out in clause 11(1) of the Agreement are deleted |
| and replaced by the following: |
$ $ $
If placed in charge of
01/09/2015 01/09/2016 01/09/2017
up to three other 35.60 37.78 39.25 employees Three and not more 75.23 78.99 82.94 than seven other employees More than seven other 124.10 130.31 136.82 employees
The First Aid Allowances set out in clause 12 of the Agreement are deleted and
replaced by the following:
$ $ $ 01/09/2015 01/09/2016 01/09/2017 4.96 5.21 5.47
The provisions in respect of Income Protection Insurance contained in sub clause
14(1)(a)(i) of the Agreement are deleted and replaced by the following:
$ $ $ 01/09/2015 01/09/2016 01/09/2017 2,800 2,875 2,950
| | The following provisions contained in Appendix 2 of the Agreement are deleted and |
| replaced by the following: | |
| PRE-HEATED WORK ALLOWANCE | |
| (2) An Employee who is required to perform work on pre-heated steel at temperatures |
between 100° Celsius to 150° Celsius within tarpaulin shelters shall be paid, in
addition to any other allowances to which he/she is entitled, a special payment in
accordance with the table below whilst engaged on such work. This is a flat hourly
payment.
[2016] FWCA 2829
$ $ $ 01/09/2015 01/09/2016 01/09/2017 0.97 1.02 1.07
WORKING WITHIN PIPES, PILES AND PRESSURE VESSELS
(3) With the exception of refractory and welding work, an Employee who is required
to perform work within pipes or piles or in pressure vessels or beneath the annular
ring or between the outer and inner walls of an LNG or propane tank shall be paid
in addition to any other allowances to which he/she is entitled, a special payment
in accordance with the table below while engaged on such work. This is a flat
hourly payment
$ $ $ 01/09/2015 01/09/2016 01/09/2017 3.63 3.82 4.01
(4) An Employee required to perform welding work inside pipes or piles or pressure
vessels or beneath the annular ring or between the outer and inner walls of an LNG
or propane tank shall be paid an allowance in accordance with the table below
while engaged on such work. This is a flat hourly payment
$ $ $ 01/09/2015 01/09/2016 01/09/2017 6.31 6.62 6.96
WELDING ALLOWANCES
(5) When employed by the Company to carry out the full range of duties involved in
welding work as specified hereunder, a welder special class shall in consideration
for the work they are required to carry out on site, be paid the applicable weekly
all purpose allowance specified hereunder in addition to the wage to which they
are otherwise entitled under their contract of employment. These allowances shall
only apply from the time the Employee concerned has commenced work on the
Site and has passed the tests required and qualified at the levels set out below.
These allowances shall not apply to Employees engaged on tack welding and are
not cumulative. Only the highest allowance that each Employee has been tested to
and assessed as competent shall apply.
a. If engaged on arc welding of structural steel to AS1554SP - Welding of Steel Structures (or similar standard).
[2016] FWCA 2829
$ $ $ 01/09/2015 01/09/2016 01/09/2017 32.75 34.38 36.10
b. If engaged on welding of carbon steel pipework, to ASME B-31-3 standard or pressure vessels to AS1210.
$ $ $ 01/09/2015 01/09/2016 01/09/2017 66.29 69.61 73.09
c. If engaged on welding allow pipework to ASME B-31-3 standard or 9% nickel steel welding on LNG tanks to either API 620 or API 650 standard,
or allow pressure vessels and tanks to AS1210, API620 or API650
standard consisting of the following materials:
i.Stainless steel (304, 310, 316 and 904 grade); and
ii.Chrome molybdenum.
iii.Aluminium
$ $ $ 01/09/2015 01/09/2016 01/09/2017 95.76 100.55 105.57
d. If engaged on welding any type of pipework to ASME B-31-3 standard using FCAW or TGAX welding processes:
$ $ $ 01/09/2015 01/09/2016 01/09/2017 162.03 170.13 178.63
ELECTRICAL LICENCE ALLOWANCE
(8) A tradesperson who holds, and in the course of their employment may be required
to use, a current "A" Grade or "B" Grade licence issued pursuant to the Electricity
(Licensing) Regulations 1991 shall be paid an hourly all purpose allowance in
accordance with the table below.
[2016] FWCA 2829
$ $ $ 01/09/2015 01/09/2016 01/09/2017 2.67 2.81 2.95
(9) An employee working on a full time basis as a trades assistant assisting a
tradesperson holding an A or B grade Electrical Licence working for an electrical
contractor licensed under the Electricity Act 1945 and normally respondent to the
Electrical Contracting Industry Award R22 or 1978, shall be paid an hourly all
purpose allowance in accordance with the table below.
$ $ $ 01/09/2015 01/09/2016 01/09/2017 1.29 1.35 1.42
(10) An employee who is engaged at Tradesperson level or higher, holding a current tradesperson certificate or tradespersons rights recognition who is required
to perform the full range of duties of a Tradesperson, shall be paid an hourly all
purpose allowance in accordance with the table below:
$ $ $ 01/09/2015 01/09/2016 01/09/2017 2.07 2.17 2.28
TUNNELING ENTITLEMENTS
(11) The following allowances are applicable only to the microtunnelling operation of the Company. For clarification, the provisions of paragraphs 3 and 4 of this
appendix have no application to the tunneling construction.
a. COMPRESSED AIR ALLOWANCE -Employees directly engaged in tunneling construction who work in compressed air shall be paid a flat hourly
allowance for each hour worked and spent in compression and decompression,
in accordance with the table below while engaged on such work:
[2016] FWCA 2829
Gauge $ $ $ reading 01/09/2015 01/09/2016 01/09/2017
1.52 1.60 1.68
0 to 35 kPA
Over 35 and 1.91 2.00 2.10 up to 65 kPA Over 65 and 3.87 4.06 4.26 up to 100 kPA Over 100 and 7.68 8.07 8.47 up to 170 kPA Over 170 and 12.79 13.43 14.10 up to 225 kPA Over 225 and 24.52 25.74 27.03 up to 275 kPA
b. TUNNELING ALLOWANCE -Employees directly engaged in tunneling construction shall be paid a daily flat allowance for each day or shift
worked, in accordance with the table below while engaged on such work.
$ $ $ 01/09/2015 01/09/2016 01/09/2017 21.82 22.91 24.06
The provisions concerning the Local Living Subsidy in Appendix 4(2)(a) are deleted
and replaced by the following:
LOCAL LIVING SUBSIDY
(2) (a) Local Workers who are engaged to work the Project Working Hours will be
paid a flat weekly local living subsidy which shall be paid in lieu of any other
payment made in respect of location, living and accommodation related expenses.
$ $ $ 01/09/2015 01/09/2016 01/09/2017 490 510 540
[2016] FWCA 2829
[12] An Order to this effect will be issued in conjunction with this decision.
COMMISSIONER
Printed by authority of the Commonwealth Government Printer
<Price code C, AE418115 PR580052>
i
Fair Work Act 2009 (Cth) at s.602
ii
Ibid at [348]
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