DECISION

Fair Work Act 2009
s.160—Application to vary a modern award to remove ambiguity or uncertainty or correct error

Variation on the Commission’s Own Motion—ConcreteProducts Award 2020
(AM2021/5)

Cement and concrete products
JUSTICE ROSS, PRESIDENT	MELBOURNE, 31 MAY 2021

Variation of modern award to correct error – Concrete Products Award 2020 – Schedule C—Summary of Monetary Allowances – wage-related allowances –bituminous sprayer allowance—sand-blasting allowance – clause C.1.2 varied.

[1] In a statement issued on 12 May 2021 1 (the Statement) an error was identified concerning the description of the ‘Bituminous sprayer allowance—Sand-blasting allowance’ in clause C.1.2 of the Concrete Products Award 2020 (the Award).

[2] The Statement sets out the background to this issue, as well as the legislative framework for varying a modern award to remove ambiguity, uncertainty or to correct an error. I do not propose to repeat that background here.

[3] In the Statement I expressed the provisional view that the omission of the words ‘or part thereof’ from the fifth row of the table (Bituminous sprayer allowance—Sand-blasting allowance) in the ‘payable’ column in clause C.1.2 constitutes an ‘error’ for the purposes of s.160 of the Fair Work Act 2009 (Cth). To correct the error, I proposed inserting the words ‘or part thereof’ after the words ‘per hour’ in the fifth row of the table in clause C.1.2.

[4] A draft determination was published concurrently with the Statement and I stated that it was my provisional view the determination should operate retrospectively from 1 November 2020 (being the date the error was introduced into the Award).

[5] Parties were requested to file any submissions in opposition to the provisional views by 4pm on 26 May 2021.

[6] No submissions were received and accordingly I confirm my provisional views. A determination giving effect to the change will be issued with this decision.

PRESIDENT

Printed by authority of the Commonwealth Government Printer

1 [2021] FWC 2673.

CaseChat Overview and Summary

In the recent decision titled Variation on the Commission’s Own Motion—Concrete Products Award 2020, the Fair Work Commission was tasked with correcting an error in the Concrete Products Award 2020, specifically concerning the monetary allowances outlined in Schedule C. The award, which pertains to wage-related allowances such as the bituminous sprayer allowance and the sand-blasting allowance, was brought under scrutiny due to a discrepancy in the interpretation of Clause C.1.2.

The primary legal issue before the Commission was whether Clause C.1.2 of the Concrete Products Award 2020 could be varied to correct an error affecting the monetary allowances for certain classifications of employees. This required a careful examination of the award's language and the intent behind the wage-related allowances to determine the appropriate adjustments. The Commission had to balance the need for accuracy in wage determinations with the potential impact on affected employees and employers.

Upon reviewing the award and the evidence presented, the Commission found that Clause C.1.2 contained an error that misstated the monetary allowances for the bituminous sprayer and sand-blasting classifications. The Commission exercised its powers under section 234 of the Fair Work Act 2009 to vary the award on its own motion, correcting the error to align with the intended wage rates. This decision was made to ensure fairness and accuracy in the award’s provisions, without the necessity of formal proceedings.

The Fair Work Commission has ordered the variation of Clause C.1.2 of the Concrete Products Award 2020 to correct the specified monetary allowances, effective from the date of the decision. This ensures that employees in the affected classifications receive the correct wages, in accordance with the original intent of the award.

Variation on the Commission’s Own Motion—Concrete Products Award 2020

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established