Fair Work Australia
[2011] FWA 6966
•11 OCTOBER 2011
[2011] FWA 6966 |
|
DECISION |
Fair Work Act 2009
s.160 - Application to vary a modern award to remove ambiguity or uncertainty or correct error
Fair Work Australia
(AM2011/49)
Building, metal and civil construction industries | |
SENIOR DEPUTY PRESIDENT WATSON | MELBOURNE, 11 OCTOBER 2011 |
Determination on Fair Work Australia’s own initiative to remove ambiguity or uncertainty or correct error.
[1] In correspondence dated 27 September 2011 the Construction, Forestry, Mining and Energy Union (CFMEU) and the Master Builders Australia Limited (MBA) asked Fair Work Australia to, on its own motion, vary clause 25.2 - Metropolitan radial areas - of theBuilding and Construction General On-site Award 2010 1(the Award) to remove thecomma after the words “construction sector” and before “who is required”, so that the clause reads:
“An employee, other than an employee in the metal and engineering construction sector who is required to commence or cease work at the employer’s workshop, yard or depot other than on a construction site, must be paid an allowance of $16.50 per day for each day worked when employed on construction work, at a construction site located:
(a) within a radius of 50 kilometres of the GPO in a capital city of a State or Territory; or
(b) within a radius of 50 kilometres of the principal post office in a regional city or town in a State or Territory.”
[2] The comma following the word “sector” was deleted, administratively, on 31 March 2010 and reinstated, administratively, on 26 September 2011.
[3] In response to the CFMEU and MBA correspondence, Fair Work Australia created variation matter AM2011/49, on its own motion, with the proposed variation posted on the Award Modernisation variation page to allow input from interested parties.
[4] No organisation or person other than the CFMEU and the MBA expressed a view, either in written submissions or orally in consultations undertaken on 11 October 2011.
[5] In its 27 September 2011 correspondence seeking that the Award be varied by Fair Work Australia, the CFMEU traced the history of clause 25.2 in the modernisation process and noted that the reinsertion of the comma, administratively, on 26 September 2011, significantly altered the entitlement to the fares and travel allowance under the Award. The MBA, in its 27 September 2011 correspondence, agreed with the CFMEU that Fair Work Australia should of its own motion remove the comma. It advised that the interpretation of the provision without this punctuation differs markedly from its historical application and the MBA have been advising members on its construction absent the comma.
[6] The MBA submitted that clause 25.2 is derived from clause 20.3.4 of the National Metal and Engineering On-Site Construction Award 2002, 2 which excluded those employees in the metal and engineering sector who began or ceased their day at a workshop. The insertion of the comma after the word “sector” in clause 25.2 means that the provision reverses its historical basis: now it only applies to those who begin or cease their day at a workshop and is never payable to workers in the metal and engineering sector. It was for this reason that MBA and the CFMEU advocated the removal of the comma after the word “sector”, as it truncated and reversed the meaning of this exception.
[7] The MBA submitted that this altered effect of the clause led the CFMEU and the MBA to support the removal of the comma during the residual variations process, although they proposed different means of achieving the correct effect of clause 20.3.4 of the National Metal and Engineering On-Site Construction Award 2002 in that process.
[8] No other party made a submission on this issue.
[9] It is clear that the re-insertion of the comma in clause 25.2 does alter the effect of the provision, contrary to operation of the clause in the source pre-modern award - clause 20.3.4 of the National Metal and Engineering On-Site Construction Award 2002. The administrative change on 26 September 2011 reflected the approach of the Modernisation Full Bench to residual changes, by which it declined to make residual variations which were opposed. The residual variation in respect of clause 25.2 was taken to be opposed because of the disagreement as to the form the residual variation should take.
[10] However, it is now clear that there is a common position between the major parties - the CFMEU and the MBA - that the inclusion of the comma reverses the intended effect of the exclusion within clause 25.2 and reverses the historical position reflected in clause 20.3.4 of the National Metal and Engineering On-Site Construction Award 2002. There is now agreement between the parties as to the form of the variation required - the removal of the comma following the word “sector”.
[11] I am satisfied that the inclusion of the comma is in error, departing from the approach of the Modernisation Full Bench of incorporating the effect of pre-modern awards into Modern Awards unless there was good reason not to do so. Indeed the effect of the comma is to markedly alter the effect of the clause, contrary to the position in pre-modern awards and as applied in the construction industry. Further, the existing published modern award creates uncertainty as to the operation of clause 25.2, in the context of its historical operation.
[12] Accordingly, the Award will be varied to reflect the position of the CFMEU and the MBA to correct the error and to remove uncertainty. The variation will have effect from 1 January 2010, the date of the residual variation order 3 to overcome the unintended effect of the administrative variations.
[13] Clause 25.2 will be varied to read:
“An employee, other than an employee in the metal and engineering construction sector who is required to commence or cease work at the employer’s workshop, yard or depot other than on a construction site, must be paid an allowance of $16.50 per day for each day worked when employed on construction work, at a construction site located:
(a) within a radius of 50 kilometres of the GPO in a capital city of a State or Territory; or
(b) within a radius of 50 kilometres of the principal post office in a regional city or town in a State or Territory.”
SENIOR DEPUTY PRESIDENT
Appearances:
S Maxwell on behalf of the Construction, Forestry, Mining and Energy Union.
R Calver on behalf of the Master Builders Australia Limited.
Hearing details:
2011:
Melbourne:
October 11
1 MA000020.
2 AP816828CRV.
3 PR994519, Item B.
Printed by authority of the Commonwealth Government Printer
<Price code A, MA000020 PR515578 >
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