FAIR WORK COMMISSION

[2013] FWC 6347

[2013] FWC 6347

The attached document, replaces the document previously issued with the above code on 30 August 2013. The document has been amended to include the award reference at the end of the document.

Leanne Weeding

Associate to Senior Deputy President Watson

Dated 30 August 2013

[2013] FWC 6347

FAIR WORK COMMISSION

SUPPLEMENTARY DECISION

Fair Work (Transitional Provisions and Consequential Amendments) Act 2009
Sch. 5, Item 6 - Review of all modern awards (other than modern enterprise and State PS awards) after first 2 years

Master Builders Australia Limited
(AM2012/48) & Others

SENIOR DEPUTY PRESIDENT WATSON MELBOURNE, 30 AUGUST 2013

Modern Awards Review - Building and Construction General On-site Award 2010.

HIA variation proposed to clauses 14.5-14.7

[1] Following the publication of my decision in [2013] FWC 4576, corrected in [2013] FWC 4576, the Housing Industry Association (HIA) corresponded with the Commission on 22 July 2013, indicating that the decision did not deal with its application to vary clauses 14.5, 14.6 and 14.7 of the Building and Construction General On-site Award 2010, 1 (Award) the effect of which was to limit the rate to which the casual loading is applied to the weekly hire rate in clause 19.3(b) of the Award. The HIA correspondence has been uploaded onto the website.

[2] The variation sought by the HIA was to the opposite effect of the Construction, Forestry, Mining and Energy Union (CFMEU) claim to vary the Award which was dealt with, and refused, in paragraphs [186]-[188] of my decision. My reasoning in respect to the CFMEU claim applies equally to the HIA claim:

● The issue concerns the rate to which the casual loading applies.

● The 25% casual loading applies to the rate otherwise applicable in compensation for the absence of annual leave, paid personal/carer’s leave, paid community service leave, notice of termination and redundancy benefits.

● No basis has been established to vary clauses 14.5-14.7 in respect of the rate to which the casual loading applies within the clause specifying the casual loading.

● No practical problem or any other basis referable to the considerations in Item 6, Part 2 of Schedule 5 of the Transitional Provisions Act to warrant variation of the Award within the 2012 Review process.

[3] I am not satisfied that the HIA established cogent reasons to vary clauses 14.5-14.7 of the Award. This element of the HIA application is refused.

[4] As noted in my earlier decision 2, a broader debate as to any overlap of the factors contemplated by the follow-the-job loading and the casual loading was reflected in the submissions of the Master Builders Australia (MBA), the HIA and the CFMEU. That question was not fully ventilated in the current proceedings and no basis was established for considering that issue for the purposes of the 2012 Review.

Reference rates

[5] As noted in my decision, the CFMEU, the HIA, the MBA, The Australian Workers’ Union (AWU), the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) (AMWU) and the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) agreed to rationalise reference rates appearing in the Award, which were approved, subject to a minor amendment proposed by the Ai Group (AIG) 3

[6] The CFMEU noted that consequential variations would or might be required in respect of clauses 14.5, 14.6, 14.7 and 19.3 but the consequential variations would depend on the determination of other variations proposed in respect of the substantive provisions in this decision. It also noted that consequential variation of clauses 19.7 and 19.8 would depend on the outcome of the separate Full Bench dealing with apprentices. In this respect I decided:

“[43] Any consequential variations which are in respect of clauses 14.5, 14.6, 14.7 and 19.3, having regard to my determination of other variations proposed in respect of the substantive provisions in this decision, may be sought by further written submissions by no later than 15 August 2013. Any consequential variation of clauses 19.7 and 19.8, if necessary following the decision of the Apprentice, Trainees & Juniors Full Bench may be sought by further written submissions by no later than two weeks after the decision, if not already addressed in any determination made by that Full Bench”

[7] On 15 August, 2013, the CFMEU corresponded with the Commission indicating that clauses 14.6 and 14.7 should be varied to read:

“14.6 A casual employee required to work overtime or weekend work will be entitled to the relevant penalty rates prescribed by clauses 36—Overtime, and 37—Penalty rates, provided that:

(a) where the relevant penalty rate is time and a half, the employee must be paid 175% of the ordinary time hourly rate prescribed for the employee’s classification; and

(b) where the relevant penalty rate is double time, the employee must be paid 225% of the ordinary time hourly rate prescribed for the employee’s classification.

14.7 A casual employee required to work on a public holiday prescribed by the NES must be paid 275% of the ordinary time hourly rate prescribed for the employee’s classification.” [emphasis added]

[8] The correspondence advised that the MBA and the HIA consent to the variation.

[9] On 22 August 2013, the Apprentice, Trainees & Juniors Full Bench published a substantive decision 4 deciding “common matters” relating to multiple modern awards, including this Award.

[10] I will provide all interested parties an opportunity to provide written submissions by 13 September, 2013 in relation to:

1. The reference rate variations to clauses 14.6 and 14.7 proposed by the CFMEU; and

2. Any reference rate variations to clauses 19.7 and 19.8, which are necessary following the decision of the Apprentice, Trainees & Juniors Full Bench.

MBA submission concerning an “anomaly created by the decision of 15 July 2013” in respect of clause 34.1(a)

[11] By letter of 16 August 2013, the MBA contended that a variation to clause 34.1(a) of the Award, dealt with in paragraph [264] of the decision of 15 July 2013, to define shifts by reference to the time of commencement rather than finish of shifts, created an anomaly does not accommodate the hours between 11pm and 4.30am within the nightshift and inadvertently alters the effect of the shift definitions. The letter has been uploaded to the web-site.

[12] If the variation resulting from the decision has created an anomaly, it is best rectified as part of the 2012 Review process. To that end:

● The MBA is directed to provide a proposed variation to correct the anomaly and put any further submissions in relation to the anomaly by 6 September 2013; and

● Any interested party will be afforded to put submissions in relation to the submissions of the MBA and the variation proposed by it to rectify it by 13 September 2013.

SENIOR DEPUTY PRESIDENT

 1   [MA000020].

 2   [2013] FWC 4576, at para 188.

 3   [2013] FWC 4576, at para 42.

 4   [2013] FWCFB 5411.

Printed by authority of the Commonwealth Government Printer

<Price code A, MA000020  PR541002>