Timber Industry Award 2010 - [2015] FWCFB 2856

[2015] FWCFB 2856

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.156 – 4 yearly review of modern awards

Timber Industry Award 2010
(AM2014/92)

Timber and paper products industry
SENIOR DEPUTY PRESIDENT WATSON SENIOR DEPUTY PRESIDENT O’CALLAGHAN COMMISSIONER CRIBB	MELBOURNE, 18 JUNE 2015

4 yearly review of modern awards – substantive issues – coverage in relation to potential overlap between Timber and Building awards – refused; penalty for late payment of wages by EFT – refused; ordinary hours – clause 27 – varied in part; charred timber allowance re application of allowance – current term expresses allowance to be daily allowance – refused; leading hand allowance – insertion of “per week” adds clarity to operation of allowance as a weekly allowance; NES provides same effect as clause 36.4 – clause deleted; plywood scarfing machinist – current term uncertain and difficult to apply – clause varied; pulp and paper stream Level 6 – change would alter substance of term – refused; definitions in clause 3.1 – award varied by removing formatting and superfluous definitions and applying consistency in definitions in award.

[1] In a Statement on 13 August 2014, 1 the 4 Yearly Review Full Bench dealing with various Group 1 awardsreferred various issues raised in respect of the current Timber Industry Award 20102(the Timber Award) to this Full Bench to hear and determine.3 Directions were made for the hearing and determination of the matters referred: clause 25—Payment of wages, proposed by the Construction, Forestry, Mining and Energy Union (Forestry and Furnishing Products Division) (CFMEU) (other than in respect of a legal argument based on Andrews and Others v Australia and New Zealand Banking Group Limited4 (Andrews Case) against the proposed new clauses 25.7 and 25.8 identified by Master Builders Australia Limited (MBA)) and the variation of clause 4—Coverage by inserting a new clause 4.6 as proposed by the Housing Industry Association (HIA) on 18 November 2014.

[2] In Amended Directions of 18 November 2014, the President directed this Full Bench to hear and determine further substantive issues raised during the 2014 4 yearly review of modern awards (the Review) with respect to the Timber Award. A full list of matters for determination by us was set out in Schedule F of the Amended Directions. Further directions were made by this Full Bench on 4 December 2014 to include the additional matters referred to us.

[3] Further, the 18 November 2014 Amended Directions constituted another Full Bench to hear and determine the legal argument raised by the CFMEU’s proposed variation in respect of the payment of overtime rates for late wages in clause 25 of the Timber Award, which the MBA contended affected up to 22 additional modern awards. That issue was heard and determined by the other Full Bench (the Andrews Full Bench) on 11 March 2015. 5

[4] The issues before us for determination are set out later in this decision.

Approach to the proposed variations

[5] A decision 6 in respect of the Textile,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2015] FWCFB 2856
Decision Date: 18 JUNE 2015

CaseChat Overview and Summary

In the matter of the Timber Industry Award 2010, the Fair Work Commission reviewed several modern awards to address potential overlaps and ambiguities in their coverage. The dispute centred on various amendments proposed by the parties to enhance clarity and effectiveness of the award. The Commission assessed the proposed changes to ensure they aligned with the relevant legal standards and did not alter the substantive terms of the award.

The legal issues before the Commission included determining the proper scope of the award's coverage, assessing whether proposed changes were substantive or merely clarificatory, and ensuring that any amendments complied with the National Employment Standards (NES). Specifically, the Commission had to decide on the overlap between the Timber and Building awards, the penalty for late payment of wages by Electronic Funds Transfer (EFT), the application of certain allowances, and the clarity of definitions within the award.

The Commission concluded that the proposed changes to the award did not substantively alter its coverage or effect. The review of overlaps between the Timber and Building awards found no substantive issues, and thus, the proposed changes were refused. The penalty for late payment of wages by EFT was also refused as it did not align with existing legal standards. Regarding allowances, the Commission varied certain clauses to enhance clarity, such as specifying the weekly nature of a leading hand allowance, but refused changes that would substantively alter terms. The Commission also deleted a clause that provided the same effect as the NES, thereby ensuring consistency with national standards. Lastly, the Commission streamlined definitions within the award to improve clarity and application.

The final orders included varying certain clauses to enhance clarity and application while refusing changes that would substantively alter the award's terms. The definitions within the award were also varied to remove inconsistencies and superfluous terms. The overall aim was to ensure the award remained clear, effective, and compliant with national employment standards.

Orders