National Fire Industry Association; Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia - Plumbing Division (AM2012/146 & others)

[2013] FWC 2987

[2013] FWC 2987

The attached document, at page 2 and page 15, replaces the document previously issued with the above code on 19 July 2013.

Page 2 at paragraph 4 - in the first dot point the text “Master Plumbers Drainers and Gasfitters Association of ACT Inc (MPACT)” is deleted.

Page 15 at paragraph 55 - the reference to “CFMEU” is deleted and replaced by “CEPU”.

Helen Coulson

Relief Associate to Senior Deputy President Watson

Dated 22 August 2013

[2013] FWC 2987

FAIR WORK COMMISSION

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

National Fire Industry Association; Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia - Plumbing Division
(AM2012/146 & others)

Plumbing industry
SENIOR DEPUTY PRESIDENT WATSON	MELBOURNE, 19 JULY 2013

Modern Award Review 2012 - application to vary the Plumbing and Fire Sprinklers Award 2010 - modern award varied.

[1] This decision finalises seven applications made to vary the Plumbing and Fire Sprinklers Award 2010 1 (PFS Award) in the 2012 Review. Four variations were the subject of an earlier decision of 13 June 2013.2 That decision sets out the background to the outstanding applications and this decision should be read in conjunction with the 13 June 2013 decision.

[2] The 13 June decision determined four variations sought:

● AM2012/146 - a joint application to incorporate fire protection systems testers and inspectors within the classification structure by the National Fire Industry Association (NFIA) and the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU), as amended on 12 March 2013;

● applications by The Master Plumbers’ and Mechanical Services Association of Australia (MPA) (forming part of AM2012/202) and The Master Plumbers & Mechanical Contractors Association of New South Wales (MPANSW) (forming part of AM2012/199) to vary clause 18—Industry specific redundancy scheme of the PFS Award;

● an application by the MPA (forming part of AM2012/202) to vary clause 33.1—General overtime provision; and

● an application by the MPA (forming part of AM2012/202) to vary clause 37—Public holidays.

[3] Several variations within the applications of the CEPU, the MPANSW and the MPA are being dealt with by Full Benches, as indicated in paragraphs 5, 6 and 8 of the 13 June 2013 decision.

[4] The remaining applications, and variations to be determined in this decision, subject to the amendments set out in the 13 June 2013 decision and further amendments set out below, are as follows:

● AM2012/183 - an application by the CEPU and the Master Plumbers Drainers and Gasfitters Association of ACT Inc (MPACT):

• Application to vary clause 21.8(e)(i), concerning standard travelling time allowance; and



• Application to vary clause 32.1(a), concerning Saturday penalty rates (this variation arose out of the MPA application to vary clause 32).

● AM2012/199 - an application by the MPANSW, as amended on 22 February 2013:

• Application to vary clause 20.2(c) and other clauses concerning trainee apprentices;



• Application to vary clause 20.2(d), concerning apprentice tool allowance;



• Application to vary clause 27—Payment of wages concerning pay slips.

[Applications 7 and 9, concerning clause 20, minimum wages terminology were not pressed in light of the amended MPA variations sought.]

● AM2012/202 - an application by the MPA on behalf of the MPA, the Master Plumbers’ Association of Queensland (Union of Employers) (MPAQ), the Plumbing Industry Association of South Australia (PIASA), the Master Plumbers Drainers and Gasfitters Association of ACT Inc (MPACT), the Master Plumbers Association of Tasmania (MPATAS), and the Air Conditioning and Mechanical Contractors’ Association of Australia (ACMCAA), as amended on 21 December 2012 and on transcript on 26 March 2013 3 and further amended in documents posted on the website on 26 April 2013, 2 May 2013 and 9 May 2013. Any residual variations within the original MPA application were not pressed. The variations sought, in their final form, are set out when considering and determining them below.

● AM2012/229 - an application by the MPAQ:

• No variations sought - the MPAQ application to vary Schedule B to delete various classification levels was not pressed in favour of further discussions between the industrial parties to review classification levels against industry training which may result in a later application to vary.

[5] The final outstanding variations sought by the MPA evolved through discussions between the parties involved in the 2012 Review process in relation to the PFS Award, were agreed to in the 26 April 2013 form posted on the website. A further limited amendment was reflected in the document posted on the website on 9 May 2013 going to the terms of some variations arising out of discussions between the parties around the 30 April 2013 conference/hearing.

The CEPU variations

[6] The variations to clauses 21.8(e)(i) and 32.1(a) of the PFS Award sought by the CEPU are of similar nature, seeking to remove differential provisions as between plumbing and mechanical services employees and sprinkler fitter employees, applying the more beneficial provision in each case to all employees. Clause 21.8(e)(i) currently provides for a standard travelling time allowance of 25% of the standard rate for plumbing employees and 75% for sprinkler fitting employees. Putting aside transitional arrangements in Victoria, clause 32.1(a) currently provides for payment of 150% for the first two hours and 200% thereafter for overtime worked on Saturdays for plumbing and mechanical services employees and 200% for all hours for sprinkler fitter employees. The CEPU seeks that the provisions for sprinkler fitter employees be applied to all employees.

[7] The variations were sought on the basis that it was inequitable that employees under the PFS Award, working under the same conditions and at times, side by side, would be subject to different terms and conditions. The applications were opposed by the employer organisations represented.

[8] The CEPU has not established any proper basis for varying the clauses in question to give effect to Item 6 of Schedule 5 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Transitional Provisions Act), having regard to its terms and the approach to the 2012 Review set out in the 29 June 2012 4 decision of the Award Modernisation Full Bench, the 18 March 20135 decision of the Penalty Rates Full Bench, and the basis for the differential provisions stated by the Award Modernisation Full Bench when making the PFS Award.

[9] In publishing the Exposure Draft in January 2009, the Award Modernisation Full Bench created a single modern award in respect of the plumbing and sprinkler fitting sectors of the industry, whilst maintaining a range of different conditions for the fire sprinkler sector. 6 The travelling time allowance provision in the Exposure Draft was differently constructed to that now appearing in the PFS Award, prescribing a single allowance. The Exposure Draft did not provide for differential conditions in respect of Saturday overtime, prescribing the current plumbing employees provision (150% for the first two hours and 200% thereafter) for all employees. In their 20 March 2009 joint submission in respect of the Exposure Draft, the MPA, CEPU and the NFIA proposed a standard travelling time allowance (as per clause 22.8(d) of its joint draft) in the terms now reflected in clause 21.8(e)(i) and a Saturday overtime provision (as per clause 33.1(a) of its joint draft) in the terms now reflected in clause 32.1(a), save for a Victorian transitional provision. In each case those provisions jointly proposed by the MPA, CEPU and the NFIA, reflecting differential provisions for plumbing and sprinkler pipe fitter employees, were accepted by the Award Modernisation Full Bench and reflected in the PFS Award. The decision making the PFS Award7 stated:

“[106] We think that the rationalisation of the allowance provisions, the fares and travelling time provision and the hours provision suggested in the joint amendments provide a better structure. We have also added a number of differential conditions as between plumbing and mechanical employees and sprinkler fitting employees identified in the joint amendments, most notably in the penalty rates and overtime provisions.”

[10] It is clear that the inclusion of a number of differential provisions as between plumbing and mechanical services employees and sprinkler fitter employees was a considered decision by the Award Modernisation Full Bench and were clearly intended to apply in relation to clauses 21.8(e)(i) and 32.1(a), consistent with the acceptance of the position proposed in the joint submission of the MPA, CEPU and the NFIA and the relevant provisions of the pre-modern awards. It must be presumed that the current terms of clauses 21.8(e)(i) and 32.1(a) meet the modern awards objective. 8 The CEPU has not established a cogent reason for departing from the considered position determined by the Award Modernisation Full Bench. Each of the CEPU variations proposed are refused.

The MPANSW variations

(a) Trainee Apprentices (further amended application of 23 April 2013)

[11] Clause 20.2(c)—Trainee apprentices minimum wages (New South Wales only) of the PFS Award contains a transitional provision in respect of trainee apprentices, applying in New South Wales only until 31 December 2014. 9 Trainee apprentices are a class of apprentices provided for in the Apprenticeship and Traineeship Act 2001 (NSW). The current provision was inserted into the PFS Award as a result of a variation decision of 22 July 201110 on the following basis, as advanced by the MPANSW:

“[63] The MPMCANSW sought a variation to clause 20.2—Apprentice wages, to reflect the circumstances of trainee apprentices in New South Wales. The MPMCANSW relied on s.157 of the Act as the basis for the variation it proposed. In support of its proposed variation it submitted that trainee apprentices have been a significant feature of the plumbing industry in New South Wales for many years, under the Apprenticeship and Traineeship Act 2001 (NSW) (ATA). It submitted that arguably New South Wales employers covered by the modern award may not be able to comply with s.7(3)(d) of the ATA, if the modern award does not make specific provision for employment of trainee apprentices and therefore cannot meet the requirements of the ATA to enable them to employ trainee apprentices. It submitted that the inability of New South Wales employers to engage trainee apprentices will have a significant and detrimental impact on apprenticeship employment in that State. The MPMCANSW noted that a similar issue was encountered in respect of the Electrical, Electronic and Communications Contracting Award 2010  and the Nursery Award 2010, resulting in variations to those awards pursuant to s.157 of the Act.”

[12] The MPANSW seeks to vary the clause to alter it from a transitional provision operating in New South Wales only to a general provision operating in respect of any trainee apprentice arrangement provided for by a relevant training authority in any State, with the provision to continue to operate beyond 31 December 2014.

[13] The variations proposed by the MPANSW 11 are as follows:

1. “Clause 3 Definitions and interpretation

Clause 3.1 Insert:

trainee apprenticeship means an apprenticeship under which the employer does not undertake to employ the apprentice for the whole of the term of the apprenticeship and is subject to the relevant training legislation in each state and territory jurisdiction.”

2. Clause 15.4—Cancellation, suspension or transfer of apprenticeship. Insert a new clause 15.4(b) and renumber the existing 15.4(b) as 15.4(c):

“(b) A trainee apprenticeship may be terminated by either party giving two weeks’ notice of the termination of employment.”

3. Clause 20.2(c) Delete the title: “Trainee apprentices minimum wages (New South Wales only)” and replace with “Trainee apprentices minimum wages”.

[14] The MPANSW submitted that the variations are required to:

“(a) confirm that any employee engaged as a trainee apprentice is included within the coverage of the Award; and

(b) ensure that the Award contains termination of employment provisions that appropriately deal with trainee apprentices.” 12

[15] The MPANSW application is supported by the CEPU. Whilst not opposing the variation, the MPA 13 suggested the following alternate language:

● “At Clause 3—Definitions and interpretations, insert:

‘trainee apprenticeship means an training agreement specifically identified as a trainee apprentice in accordance with the relevant state-based training laws and regulations.’”

● ”At Clause 15.4—Cancellation, suspension or transfer of apprenticeship, insert:

‘(c) A trainee apprenticeship may be terminated by either party giving:

● two weeks’ notice of termination or;

● notice of termination in accordance with the National Employment Standards;

whichever is the greater.’”

[16] I am satisfied that the PFS Award should be varied to maintain and give the recognition and availability under the PFS Award of trainee apprenticeship arrangements where they are provided for by relevant State-based training laws and regulations. It is not disputed that trainee apprenticeships provide a form of apprenticeship, currently in New South Wales, which provide training opportunities and the provision of tradespersons in circumstances where they might not otherwise be available and to remove provision for trainee apprentices, where provided for by relevant State-based training laws and regulations, would be inconsistent with the modern awards objective, most notably the promotion of social inclusion through increased workforce participation and productivity, to the detriment of employees accessing apprentice training through such arrangements and employers who can access trades qualified employees completing such arrangements.

[17] The variations proposed by the MPNSW, and consequential changes within clause 20.2(c), will be given effect save for three matters.

[18] First, the trainee apprentice clause will be limited to plumbing apprentices. It was not suggested that trainee apprenticeships operated in respect of sprinkler pipe-fitting trades and the table of all-purpose rates which MPA sought to add to the award as Schedule G, with the support of all interested parties, does not identify trainee apprentices within the fire sprinkler fitting section. 14

[19] Second, the variation in respect of clause 3 will not be in the specific form proposed by the MPANSW. The definition, a blend of the MPA and MPANSW proposals will be as follows:

“trainee apprenticeship means a training agreement under which the employer does not undertake to employ the apprentice for the whole of the term of the apprenticeship and is specifically identified as a trainee apprentice in accordance with the relevant State-based training laws and regulations.”

[20] It is necessary to include the reference to the employer commitment to employ because this is an essential characteristic of the arrangement as it currently operates and on which the higher wage rates for trainee apprentices is based.

[21] Third, the termination provision proposed as a new clause 15.4(b) will be in the form proposed by the MPA. The clause as proposed by the MPANSW is inconsistent with the National Employment Standards 15 (NES) and should not be included in the PFS Award in that form. The new clause, as proposed by the MPA, will be included as clause 15.4(b), with the current clause 15.4(b) renumbered as clause 15.4(c).

(b) Pay slips

[22] The MPANSW seeks to add a new clause 27.2 to the current PFS Award clause 27—Payment of wages to provide that when pay slips are issued to employees for wages paid, pay slips must include an hourly or weekly wage as calculated from the relevant wages clause in clause 20—Minimum wages. The variation is sought to ensure compliance with the record keeping and pay slips requirements under the Fair Work Regulations 2009 (the Regulations) and is said to fall within the modern awards objective in s.134(g) of the Fair Work Act 2009 (the Act).

[23] The MPANSW has not established that the variation is necessary to give effect to Item 6 of Schedule 5 of the Transitional Provisions Act. The content of pay slips required by law is extensive and is set out in Division 3 of Part 3-6 of the Regulations, most relevantly in Regulations 3.33 Records—pay and 3.46 Pay slips—content.

[24] The variation is sought by the MPANSW on the basis of its experience that some employers are not complying with their legal obligations under the Regulations and the inclusion of the additional clause sought in the PFS Award would alert employers to that obligation. As expressed, however, the proposed variation sought is a partial statement of the legal obligations upon employers in respect of pay slips and may mislead them as to their obligations. The alternative of an award provision directing employers to regulations 3.33 Records—pay and 3.46 Pay slips—content would not be appropriate. The content of pay slips is not a term that may be included in modern awards, 16 either “incidental to a term that is permitted or required to be in the modern award” or “essential for the purpose of making a particular term operate in a practical way”.17 The legal obligations upon employers in respect to employment arise from multiple pieces of legislation and regulations, which employers have a responsibility to be aware of and apply. The partial expression of those obligations in an award would be dangerous and it is not the purpose of an award to catalogue the various laws and regulations which an employer should be aware of and apply.

[25] The variation sought by the MPANSW in respect of pay slips is refused.

(c) Apprentice tool allowance

[26] The MPANSW seeks to vary clause 20.2 of the PFS Award, which currently provides in clause 20.2(b) that the minimum rates of weekly wage to be paid to apprentices will be the percentages set out in the wages table in clause 20.1 of the aggregate of the minimum wage rate for the tradesperson Level 1 specified allowances. For plumbing apprentices, in clause 20.2(b)(ii), they are plumbing trade allowance and tool allowance, except that in NSW, until 31 December 2014, plumbing apprentices will be paid 100% of the tool allowance.

[27] The amendments proposed by MPANSW are twofold:

1. To vary clause 20.2(b)(ii) to limit the application of the apprentice wage percentages to only the plumbing trade allowance. This would be achieved by deleting the reference to the tool allowance (and the exception), with the effect that by virtue of clause 20.2(a) of the PFS Award, and the absence of reference to the tool allowance in clause 20.2, all apprentices would be entitled to the full tool allowance in the PFS Award;

2. To add a new clause 20.2(d)—with subsequent renumbering—stating that “For the avoidance of doubt, all plumbing apprentices are entitled to 100% of the tool allowance”.

[28] Dealing with the second proposition first, I see no need or basis for the proposed new clause 20.2(d). In the event that the first variation was made, there would be no doubt that by virtue of clause 20.2(a) of the PFS Award, and the absence of a reference to the tool allowance in clause 20.2, the full tool allowance would apply to all plumbing apprentices. That element of the MPANSW application is refused.

[29] In respect of the first variation, the MPA submitted to the Apprentices, Trainees & Juniors Full Bench that its proposed variation of clause 20.2(b)(ii) removing the reference to “NSW” (so as to comply with s.154 of the Act) with the effect that 100% of the tool allowance is payable under the PFS Award (that is, in every State). Hence, the MPANSW variation, which is supported by the CEPU, is directed to replacing the substantive provision which applies in all States other than New South Wales with the transitional provision which currently applies in respect of that State.

[30] The PFS Award, as made by the Award Modernisation Full Bench and reflected in the March 2010 version which incorporated residual variations did not provide for the transitional exception for the tool allowance in respect of New South Wales. The transitional provision in clause 20.2(b)(ii), which the MPANSW now seeks to apply as the substantive entitlement in all States, was inserted on 22 July 2011 as a result of a decision in respect of an application by the MPANSW. 18

[31] No cogent reason has been advanced for the variation. There is no basis at all for converting a transitional provision in respect of NSW to a substantive provision applying to all States and Territories within the PFS Award. That second element of the MPANSW application is refused.

The MPA variations

[32] As noted earlier, the MPA variations, in the final form, are brought on behalf of the MPA, the MPAQ, the PIASA, the MPACT, the MPATAS and the ACMCAA. They are supported in their final form by the CEPU and the MPANSW.

[33] Predominantly, the variations fall within three broad categories:

● the correction of referencing issues;

● the rationalisation within the PFS Award to various references to wages within the PFS Award to achieve consistency, with the insertion of additional definitions for that purpose and variation of specific clauses to reflect the concept of wages intended; and

● a reordering of some award provisions, collecting together common matters within the correct clause—for example overtime provisions and penalty rates.

[34] Such variations are directed to the need to ensure a simple, easy to understand, stable and sustainable modern award system within the modern awards objective and do not alter the substantive terms or effect of the relevant provisions. I am satisfied that the variations are necessary to give effect to the modern awards objective.

[35] The variations sought will be considered in the draft order contained in the MPA’s further amended application, which was uploaded to the website on 2 May 2013 and further revised in MPA correspondence uploaded on the website on 9 May 2013. The variations generally refer to pairs of variations—one to delete the current clause and the second to insert a new clause, substituting one with the other, unless otherwise stated.

Variation 1: new definitions in clause 3

[36] The first proposed variation seeks to insert new definitions of “all-purpose rate of pay”, “hourly minimum wage”, “weekly minimum wage” and “shiftworker”. The first three provide consistent definitions of wages later used in the (amended) clauses throughout the PFS Award. The “shiftworker” definition is inserted to overcome the current absence of a definition of that term used within the PFS Award. I am satisfied that the variation is necessary and desirable to promote a simpler, easier to understand PFS Award and to remove uncertainty arising from the inconsistent terminology placed in the PFS Award. The variation will be made in the form proposed by the MPA. A related variation, to insert a new Schedule H, referred to in the definition of “all-purpose rate of pay” is dealt with in variation 50.

Variations 2 and 3: replacement of part-time employment provision in clause 13.2

[37] These variations simply insert “weekly minimum wage” as defined in place of the undefined “minimum weekly rate of pay” as part of the process of providing consistency of terminology and clarity. The variations will be made.

Variations 4 and 5: replacement of casual employment provision in clause 14.2

[38] These variations simply insert “hourly minimum wage for a weekly hire employee” in place of the undefined “hourly rate” as part of the process of providing consistency of terminology and clarity and consolidate separately prescribed forms of leave into “paid leave”. The variations will be made.

Variations 6 and 7: replacement of period of apprenticeship provision in clause 15.5

[39] These variations replace the current prescription of a period of apprenticeship of four years with a “nominal period of four years of training” to provide flexibility to accommodate an apprentice unable to complete their training within the nominal period or whose training is suspended for various reasons. The variation provides necessary flexibility to meet such circumstances. I am satisfied that this clarification meets the modern awards objective and should be given effect.

Variations 8 and 9: variation of industry specific redundancy scheme in clause 18.3(c)

[40] These variations insert “all-purpose rate of pay” in place of “ordinary time rate of pay” as part of the process of providing consistency of terminology and clarity. The variation will be made. It should be noted that substantive variations to the industry specific redundancy scheme were also considered, but rejected, in the 13 June 2013 decision.

Variation 10: variation of minimum wages terms in clauses 20.2 and 20.4

[41] This variation replaces three differently described references to wages in various parts of clause 20—Minimum wages, as identified in the 2 May 2013 MPA amended application, with the common term “Weekly minimum wages”. The variation will be made.

Variations 11, 12 and 17: relocation of the “lost time loading” provision from clause 20.4 to clause 21.1(j) in the allowances clause (clause 21)

[42] These variations relocate the lost time allowance from the wages clause to the allowances clause and do not alter the terms of the provision, other than some amended references to wages, consistent with the general rationalisation of such references. The variations will be made.

Variations 13 and 14: variation of all-purpose allowances in clause 21.1(a)

[43] These variations more clearly express the current clause and include additional forms of paid leave to which all-purpose allowances are applicable. The variations will be made.

Variations 15 and 16: variation of allowances in clause 21.1(f)(iv)

[44] These variations were not pressed.

Variations 18 and 19: relocation of the leading hand allowance from clause 21.5(a) to clause 21.1—All-purpose allowances

[45] These variations relocate clause 21.5—Leading hand allowance, which in its terms is expressed to be an all-purpose allowance, to clause 21.1—All-purpose allowances, providing a more logical and consistent ordering of the allowance provisions. The variation also incorporates the new consistent referencing of wages concepts, consistent with the general rationalisation of such references. The variations will be made.

Variation 20: renumbering consequential upon variations 18 and 19

[46] The variations will be made.

Variations 21 and 22: variation of acid plants chemical works allowances in clause 21.7(a)

[47] This is a consequential amendment to reflect the correct cross-referencing to the leading hand allowance in light of variations 18 and 19. The variations will be made.

Variations 23 and 24: variation of fares and travelling time allowance in clause 21.8

[48] These variations reorder the current provision, bringing a summary table to the front of the provision, and incorporating some current provisions (current clauses 21.8(a), (b), (c) and (k)) within it, and setting out the substantive provisions in a more logical order. It also incorporates the newly defined consistent references to wages. By correspondence posted on the web-site dated 9 July 2013, I sought clarification from the MPA as to whether its proposed variation intended to remove the current clause 21.8(h) from clause 21.8. In a response posted on the web-site on 12 July 2013, the MPA advised that it had been deleted in the proposed variation in error and should be maintained in the varied clause 21.8(h) as a renumbered clause 21.8(f). These variations as finally proposed will be made to clause 21.8, as follows:

21.8 Fares and travelling time.

(a) The fares and travelling time allowances are daily allowances that will be paid in accordance with the following table:

Travel time	Fares
Employee is required to start or finish on the job using own vehicle	Paid	Paid
Employee is required to start or finish on the job using public transport	Paid	Paid
Employee is required to start or finish on the job provided with or offered transport	Paid	Not paid
Employee is required to start and finish at the workshop	Not paid	Not paid
Employee is provided with or offered accommodation at job site	Not paid	Not paid
RDOs (where the employee normally receives standard fares and travelling allowances)	Paid	Paid
Annual leave	Not paid	Not paid
Public holidays	Not paid	Not paid
Personal leave	Not paid	Not paid

(b) Fares allowances

Subject to clause 21.8(a), employees will be paid a fares allowance of $9.90 per day.

(c) Standard travelling time allowance

(i) The standard travelling time component is an amount based on travel within a defined radius set out in clause 21.8(c)(ii).

• for plumbing and mechanical services and irrigation installer employees, the standard travelling time component is an amount the equivalent of 25% of the hourly minimum wage of the employee’s classification per day; and



• for fire sprinkler fitter employees the standard travelling time component is an amount the equivalent of 75% of the hourly minimum wage of the employee’s classification per day.

(ii) The defined radius is 50kms from the centre of employment as determined under clause 21.8(c)(iv).

(iii) An employer having determined its centre of employment under clause 21.8(c)(iv) will not change that centre without at least 28 days prior notice to each of its employees.

(iv) An employer may determine its centre of employment by reference to one of the following options:

• the employer’s normal base establishment or workshop;



• the GPO, or Principal Post Office of the capital city or major regional centre for all employees whose base establishment or workshop is within the defined radius from the said Post office;



• the local Post Office closest to the employer’s establishment or workshop beyond the defined radius of the Post Office listed above; or



• in the case of employees sent to a distant job (as defined) the place at which such employees are domiciled with the approval of their employer, for that distant job.

(d) Travelling time allowance beyond the defined radius

(i) Where an employee is required to work at a job site beyond the defined radius, an additional travelling time component is to be paid per day of either:

• an amount equivalent to 25% of the respective hourly minimum wage; or



• an amount equivalent to the actual time incurred in travelling the distance from the defined radius to the job site and the return from the job site to the defined radius;

whichever is the greater.

(ii) For the purposes of clause 21.8(d)(i), the actual time incurred in travelling is to be calculated by reference to a speed not exceeding the legal speed limit.

(e) Transfer between job sites during working hours

(i) Employees transferred from one job site to another during ordinary working hours must be paid their ordinary rate of pay for the time occupied in travelling, and unless transported by the employer, will be reimbursed the reasonable cost of fares by the most convenient public transport between such job sites.

(ii) Where the employer requests an employee to use their own vehicle to effect such a transfer, and the employee agrees to do so the employee will be paid an allowance at the rate of $0.76 per kilometre.

(f) Mileage allowance for travel beyond defined radius

An employee entitled to the additional travelling time allowance beyond the defined radius under clause 21.8(e) and who uses their own vehicle for such travel is to be paid an amount equivalent to $0.41 per kilometre as reimbursement for the additional fuel costs incurred covering the combined distance from the defined radius to the job site and return to the defined radius.

(g) Distant work

(i) When an employee is required to travel from their normal place of employment or their normal place of residence to a distant job (as defined) the employee will be reimbursed for all travelling expenses incurred. The mode of travel will be as directed by the employer provided the comfort of the employee will be of a standard not less than that of economy class travel. All time spent in travelling from the normal place of employment or the employee’s normal place of residence to the distant job will be paid at the ordinary time rate of pay up to a maximum of eight hours in any one day. For sprinkler fitter trades, payment will be made at the rate of time and a half where the employer requires the employee to travel on Sundays and public holidays.

(ii) Where the employee is not accommodated on the actual site of the distant job, their place of accommodation will become the centre as defined by clause 21.8(c)(iv) and fares and travelling time must be paid as prescribed by clauses 21.8(b), (c) and (d) as the case may be.

(h) Entitlement

(i) Upon any day when an employee, in accordance with the employer’s requirements, reports for work, or allocation of work, the employee will receive the fares and/or travelling time payment (if any) that the employee would normally be paid if the employee worked for the day.

(ii) The allowances set out in this clause will not be taken into account in calculating overtime, penalty rates, annual or personal/carer’s leave.

[49] By correspondence placed on the website on 12 July 2013, prompted by but not arising out of the MPA correspondence, the MPANSW raised three issues in relation to the amended clause 21.8 as finally proposed by the MPA.

[50] First, MPANSW submitted that the proposed clause 21.8 did not deal with the entitlement to fares and travelling time in respect of payment of workers compensation and long service leave and to apprentices on days on which they attended off-the-job training. Neither the current nor the proposed clauses 21.8 deal with these matters. Nor do they need to. The entitlement to payment on workers compensation and on long service leave are dealt with by relevant workers compensation legislation and relevant long service leave provisions applicable as a consequence of the NES and do not need to be dealt with in the PFS Award. Neither the current nor the proposed clauses 21.8 provide an entitlement to fares and travelling time allowances for apprentices except in circumstances where they start or finish on the job or are taking an RDO where the employee normally receives fares and travelling allowances.

[51] Secondly, the MPANSW intimates that the deletion of current clauses 21.8(a), (b), (c) and (k) and their incorporation into the table in the proposed clause 21.8(a) removes or makes the operation of the entitlement uncertain. The MPANSW illustrates this proposition by reference to the current clause 21.8(b) which provides that:

“(b) The fares and travelling time allowances are not payable for any day on which the employee:

(i) is absent from work for any reason (subject to clause 21.8(l)), or

(ii) is required to start or finish work at the employer’s workshop, yard or depot, or

(iii) is provided with by the employer, or is offered to be provided with by the employer, accommodation that is located at the job site.”

[52] The MPANSW proposition is not made out. The proposed clause 21.8(a) does not provide for an entitlement to payment of fares and travelling allowances where an employee is absent from work, except when on a RDO where the employee normally receives fares and travelling allowances. The fourth row of the table in the proposed clause 21.8(a) makes it clear that there is no entitlement to payment when an employee is required to start or finish work at the employer’s workshop. The fifth row of the table in the proposed clause 21.8(a) makes it clear that there is no entitlement to payment when an employee is provided with by the employer, or is offered to be provided with by the employer, accommodation that is located at the job site. The proposed variation does not alter the current entitlements and is clear as to its operation.

[53] Thirdly, MPANSW suggests that the proposed clause 21.8 does not address unforeseen circumstances where questions might arise as to the application of the fares and travelling allowances. That is true in respect of both the current clause 21.8 and the proposed clause 21.8, reflecting the fact awards prescribe terms and conditions of employment applicable in defined circumstances and cannot, by definition, prescribe terms and conditions to apply in unforeseen circumstances.

[54] The MPANSW correspondence placed on the web-site on 12 July 2013 provides no basis for not giving effect to the variations to clause 21.8 as finally proposed by the MPA.

[55] The CFMEU responded to the MPA amended proposal in correspondence posted to the web-site on 15 July 2013, indicating that they did not understand that the MPA proposal deleted the current clauses 21.8 (a) to (c). The final MPA proposal deletes current clauses 21.8 (a) to (c) and (k). However, the entitlement to the fares and travelling allowances reflected in the current clauses 21.8 (a) to (c) and (k) is fully and clearly contained in the table in the new proposed clause 21.8. I am satisfied that the amended clause 21.8 finally proposed by the MPA on the 12 July 2013 more clearly but fully provides for the fares and travelling allowances entitlements within the current clause 21.8 and should be varied in that form.

Variation 25: renumbering consequential upon variations 23 and 24

[56] These variations are redundant as a consequence of the MPA amended clause 21.8 in correspondence posted to the website on 15 July 2013.

Variations 26 and 27: variation of living away from home—distant work allowance in clause 21.9

[57] This amendment corrects a referencing error within the PFS Award. The variations will be made.

Variations 28 to 29: variation of living away from home—distant work allowance in clause 21.9(d)(i)—Forward journey

[58] These variations simply insert the “hourly minimum wage” rate as defined in place of the undefined “ordinary rates” as part of the process of providing consistency of terminology and clarity.

Variations 30 to 31: variation of living away from home—distant work allowance in clause 21.9(d)(iii)—Daily fares allowance

[59] This amendment corrects a referencing error to the fares allowance within the PFS Award. The variations will be made.

Variations 32 to 34: variation of ordinary hours of work over a four week cycle in clause 29.3—Ordinary working hours (variation 33 duplicated variation 32 in the MPA document)

[60] These variations clarify the operation of clause 29.3 as subject to the early start provision and the penalty rates provision, correcting an oversight in the latter respect. The variations provide clarity and correct an error and will be made.

Variations 35 to 36: variation of ordinary hours of work over a four week cycle in clause 29.7—Rostered days off

[61] These variations reorder the provisions in clause 29.7 from 29.7(c) onward, setting out the clause in a more logical order. The variations will be made.

Variations 37 and 46: relocation of the breaks between working days provision from the overtime provision in clause 33.6 to the breaks clause in clause 30

[62] These variations relocate a breaks provision to the substantive breaks clause. The variations will be made.

Variations 38 to 43: relocation of the shiftwork provision in clause 31.1 to penalty rates provisions in clause 32

[63] These variations relocate the current shiftwork provision from clause 31—Shiftwork, service work, on call and call-back to clause 32—Penalty rates, reflecting the nature of the shiftwork provisions. The MPA variation also incorporates the new consistent referencing of wages concepts, consistent with the general rationalisation of such references. The variations provide clarity and a simpler award structure. The variations will be made.

[64] In these variations, the MPA also seek to vary clause 31.1—Shiftwork in the PFS Award to introduce a distinction between work undertaken between midnight on Sunday and midnight on Friday for five or more consecutive shifts and such work undertaken for less than five continuous shifts and to relocate the clause into clause 32—Penalty rates. The variation was supported by the major industry organisations which participated in the proceedings.

[65] The PFS Award currently defines “continuous shiftworker” in clause 3 and provides in clause 31.— Shiftwork:

“(a) Shiftworkers must be paid 133% of the respective wage rate prescribed in clause 20—Minimum wages. Provided an employee is not employed during the ordinary hours of employment specified in clause 29—Ordinary hours of work over a four week work cycle, and provided further that the employee is not employed for more than eight hours continuously except for meal breaks in any 24 hours between 7.00 am on Monday and noon the following Saturday. The unpaid meal or rest period of a shiftworker will be 45 minutes or where an employer and employees agree, 30 minutes to suit particular circumstances.

(b) Where an employee, after having worked a shift, finishes at a time when reasonable means of transport are not available, the employer will provide the employee with a conveyance to their home or pay them their current wage for the time reasonably occupied in reaching their home.”

[66] The clause proposed by the MPA to replace it is as follows:

“32.2. Shift work

(a) Where an employee is:

(i) given no less than 48 hours’ notice prior to the commencement of shiftwork by the employer; and

(ii) directed by the employer to work ordinary hours between midnight on Sunday and midnight on Friday for five or more consecutive shifts;

the employee will receive a loading of 33% calculated on their ordinary hourly rate of pay for such ordinary hours worked.

(b) Where an employee is:

(i) given less than 48 hours’ notice prior to the commencement of shiftwork by the employer; or

(ii) directed by the employer to work ordinary hours between midnight on Sunday and midnight on Friday for less than five consecutive shifts;

the employee will receive a loading of 50% for the first two hours and 100% thereafter calculated on their minimum hourly rate of pay for such ordinary hours worked.

(c) Where an employee, after having worked a shift, finishes at a time when reasonable means of transport are not available, the employer will provide the employee with a conveyance to their home or pay the employee their current wage for the time reasonable spent occupied in reaching their home.

(d) An employee directed to work ordinary hours in accordance with this clause will be allowed:

(i) an unpaid meal break of not less than 30 minutes, to be taken no more than 5hours after the commencement of the employee’s shift; and

(ii) a paid rest break of not more than 10 minutes, to be taken no more than two hours after the commencement of the employee’s shift.”

[67] The MPA contended that the current clause is confusing and uncertain in that it fails to distinguish between work undertaken between midnight on Sunday and midnight on Friday as shiftwork and shorter term employment between those hours undertaken as overtime. It submitted that the current provision can be and has been read in the context of a four week work cycle to require work at the required times over a four week period to fall within the shiftwork provision. The MPA also contended that by operating only over a four week work cycle and, in particular, the requirement to undertake repair work between midnight on Sunday and midnight on Friday the clause is inconsistent with those elements of the modern awards objective in ss.134(d), (f), (g), and (h) of the Act—having regard to the contemporary commercial environment. It also submitted that the shiftwork provision was not subject to specific consideration during the award modernisation process.

[68] A review of the making of the PFS Award supports the MPA contention that the issues raised in its application, and the terms of the shiftwork provision included in the PFS Award, were not specifically considered by the Award Modernisation Bench.

[69] The predominant pre-modern federal award - the Plumbing Trades (Southern States) Construction Award, 1999 19 contained no shiftwork provision. Clause 24.2 of the Sprinkler Pipe Fitters’ Award 199820 (Sprinkler Award) contained a provision broadly in the same terms of the current provision in the PFS Award. The only other federal award which provided specifically for shiftwork was the Plumbing Industry (Australian Capital Territory) Award 1999.21 Clauses 28.3 and 28.4 containeda provision for shiftwork to the same effect as that now sought by the MPA. The only pre-modern State award which provided specifically for shiftwork was the Plumbers and Gasfitters (State) Consolidated Award22(NSW). Clause 5 provided for a night shift, with clause 5(iv) including the requirement for the working of more than five continuous shifts in any working week to fall within the night shift payments and clause 5(v) requiring at least 48 hours notice.

[70] The only submission addressing shiftwork was the 31 October 2008 submission of the MPANSW and the National Plumbing Associations Alliance which proposed a clause 19 to the same effect as that now proposed by the MPA (presumably reflecting the NSW State award).

[71] Neither the Stage 2 statement 23 nor the Stage 2 decision24 referred to shiftwork in respect of the PFS Award. Clause 32.1 of the Exposure Draft published in January 2009 was materially in the same terms as clause 31.1 of the final PFS Award. The 31 October 2008 joint submission of the MPA, the CEPU and the NFIA included a shiftwork provision essentially in the same terms.

[72] It is clear that the terms of the shiftwork provision and the issues raised by the MPA application were not specifically addressed by including clause 31.1 in the PFS Award in its current terms. It appears that the Award Modernisation Full Bench adopted the Sprinkler Award clause in the absence of any real engagement by the parties as to the terms of the shiftwork provision for the purposes of the Exposure Draft and retained it in the absence of any submissions to the contrary and with the implicit support of the MPA and CEPU and the NFIA.

[73] I am also satisfied that the current terms of clause 31.1 of the PFS Award are unclear in that they do not differentiate between shift arrangements and overtime arrangements for the working of hours between midnight on Sunday and midnight on Friday. Further, the provisions do not reflect the weight of the terms of the pre-modern instruments, to the extent that they addressed shiftwork, which clearly support the provision now sought by the MPA and supported by other interested organisations in the industry. The variation is supported by the need to ensure a simple, easy to understand, stable and sustainable modern award system. 25

[74] It may also be noted that the provision sought by the MPA is consistent with those appearing in other modern awards immediately relevant to the broader industry context within which the PFS Award operates - the Building and Construction General On-site Award 2010, 26 the Electrical, Electronic and Communications Contracting Award 2010,27 Mobile Crane Hiring Award 201028 and the Manufacturing and Associated Industries and Occupations Award 2010.29 Given the common commercial circumstances of the broader building industry group of awards, this variation to include a shiftwork provision in similar terms would meet the modern awards objective, having regard to ss.134(d) and (f) of the Act.

[75] I am satisfied that cogent reasons have been advanced for the variation sought by the MPA. The current provision is unclear and the issues raised by the MPA were not the subject of specific consideration by the Award Modernisation Full Bench. Further, the variation best reflects the terms of the pre-modern instruments. I am satisfied that the variation is required to achieve the modern awards objective

Variations 44 and 45: relocation of overtime provisions in respect of weekend and public holiday work to the overtime provision in clause 33 and renumber the rest of the clause

[76] These variations relocate the current overtime provisions in respect of weekend and public holiday work from the penalty rates provisions in clause 32 to the overtime provision in clause 33. The variations provide clarity and a simpler award structure. The variations will be made.

Variations 47 and 48: variation of the clause E.9 within the school based apprenticeship schedule.

[77] The variation seeks to delete the words “(unless the apprenticeship is of three years duration)” from after the words “The apprentice wage scales are based on a standard full-time apprenticeship of four years”. This is sought on the basis that there is no apprenticeship of three years’ duration available within the industry and the PFS Award does not contain any wage scales based on an apprenticeship of such duration. The MPA contend that the words it seeks to delete are superfluous and confusing to award users. The variations will be made to remove uncertainty on the basis that appropriate variation can be made in the future in the event that apprenticeships of other than a standard full-time apprenticeship of four years are introduced into the industry/occupation.

Variation 49: insertion of a new Schedule B

[78] This is the MPAQ application concerning the classification structure which is no longer pressed by the MPAQ.

Variation 50: insertion of a new Schedule H—All-purpose rates

[79] This variation seeks to include a summation of the operation of all-purpose rates within a Schedule to the PFS Award, to provided clarity and an easy to use reference point. It forms part of broader exercise of providing consistent definitions of wages used throughout the PFS Award. I am satisfied that the variation is necessary and desirable to promote a simpler, easier to understand PFS Award and to remove uncertainty arising from the inconsistent terminology currently in the award. The schedule will be included as Schedule G in the form proposed by the MPA.

Conclusion

[80] A determination giving effect to the variation approved in this decision is published in PR539029 The variations in respect of the MPA application will be in the form of the attachment to the 8 May 2013 correspondence of the MPA, save for clause 21.8 which will be in the form filed by the MPA on 10 July 2013. The variation in respect of trainee apprentices will be in the form decided in paragraphs 17–20 above. The variation will have effect from today’s date.

SENIOR DEPUTY PRESIDENT

Appearances:

P McCrudden and P Coffey, for the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia.

C Coate for the National Fire Industry Association.

S Kraemer for the Master Plumbers’ and Mechanical Services Association of Australia, the Plumbing Industry Association of South Australia, The Master Plumbers, Drainers and Gas Fitters Association of ACT Inc, Master Plumbers Association of Tasmania and the Air Conditioning Mechanical Contractors’ Association of Australia.

K Yu for the Master Plumbers Association of New South Wales.

E Lutz and P Corner for the Master Plumbers’ Association of Queensland.

P Naylor for the Master Plumbers & Mechanical Contractors’ Association New South Wales.

S Williams for the Fire Protection Association Australia.

R Krajewski for Chubb Australasia.

Hearing details:

2012.

Melbourne:

November 28.

2013.

Melbourne:

March 25 and 26;

April 30.

 1   MA000036.

 2   [2013] FWC 2838

 3   Transcript, at para 81.

 4   [2012] FWAFB 5600.

 5   [2013] FWCFB 1635.

 6   [2009] AIRCFB 50, at para 52.

 7   [2009] AIRCFB 345.

 8   [2013] FWCFB 1635, at para 9.

 9   Clause 20(2)(c)(iii) of the PFS Award.

 10   [2011] FWA 4781.

 11   MPANSW further amended application of 23 April 2013.

 12   MPANSW further amended application of 23 April 2013, Appendix B.

 13   MPA Correspondence and draft determination - further amended of 1 May 2013.

 14   Transcript, at para 616.

 15 Section 117 of the Fair Work Act 2009.

 16 Section 139 of the Fair Work Act 2009.

 17 Section 142 of the Fair Work Act 2009.

 18   [2011] FWA 4781, at paras 64 and 65.

 19   AP792355 CRV.

 20   AP796030 CRV.

 21   AP792330 CRA.

 22   AN120684.

 23   [2009] AIRCFB 50.

 24   [2009] AIRCFB 345.

 25 Section 134(g) of the Fair Work Act 2009.

 26   MA000020, clauses 34.1 and 34.2.

 27   MA000025, clause 24.13.

 28   MA000032, clause 22.

 29   MA000010, clause 37.3.

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