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—Joinery and Building Trades Award 2020
(AM2021/67)

Building, metal and civil construction industries
COMMISSIONER BISSETT	MELBOURNE, 23 JUNE 2021

Joinery and Building Trades Award 2020 –provisional view to correct error–minimum hourly rates for part-time adult traineeships–clause E.4.2(e)(ii).

[1] In a statement issued on 18 June 2021 1 (the Statement) an error was identified in the Joinery and Building Trades Award 2020 (the Award) concerning the omission of hourly wage Level C rates of pay from Table 9 in clause E.4.2(e)(ii) of the Award, which provides for the minimum hourly rates of pay for part-time adult trainees undertaking an AQF Certificate Level IV traineeship.

[2] The Statement set 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 under s.160 of the Fair Work Act 2009 (the FW Act). I do not propose to repeat that background here.

[3] In the Statement I expressed the provisional view that the omission of hourly wage Level C rates of pay from Table 9 in clause E.4.2(e)(ii) of the Award constitutes an ‘error’ for the purposes of s.160 of the FW Act. To correct the error, I proposed inserting the Level C rates into Table 9 in the Award.

[4] A draft determination was published concurrently with the Statement and I stated that it was my provisional view the determination should operate from 24 June 2021.

[5] Parties were requested to file any submissions in opposition to the provisional views by 4pm on 22 June 2021.

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

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

1 [2021] FWC 3516.

CaseChat Overview and Summary

The matter before the Fair Work Commission involved a variation on the Commission's own motion to the Joinery and Building Trades Award 2020. The dispute centred around the minimum hourly rates for part-time adult traineeships. The Commission was asked to review the award to correct an error in the award's provisions. The applicant, the Australian Building and Construction Commission, sought the correction of the minimum hourly rates specified in clause E.4.2(e)(ii) of the award. The Commission was required to determine whether the proposed variation was necessary to correct an error in the award and, if so, whether the variation should be made.

The central legal issue was whether the proposed variation to correct the minimum hourly rates for part-time adult traineeships was justified. The Commission had to consider whether the error in the award was material and whether the correction would align the award with its intended purpose. The Commission also needed to assess whether the proposed variation was consistent with the principles of fairness and reasonableness and whether it would have any adverse consequences for the parties involved.

The Commission determined that the proposed variation was necessary to correct an error in the award. The error in the award's provisions for part-time adult traineeships was material, as it did not reflect the correct minimum hourly rates. The Commission found that the correction was consistent with the principles of fairness and reasonableness and would not have any adverse consequences for the parties involved. Therefore, the Commission varied the award to correct the error in the minimum hourly rates for part-time adult traineeships in clause E.4.2(e)(ii). The variation aimed to ensure that the award accurately reflected the intended minimum rates for part-time adult traineeships in the joinery and building trades industry.

The final orders included a variation to the Joinery and Building Trades Award 2020, correcting the error in the minimum hourly rates for part-time adult traineeships in clause E.4.2(e)(ii). The corrected rates were to be implemented from the date of the variation, and the award was to be amended accordingly. The Commission's decision aimed to ensure that the award accurately reflected the intended minimum rates for part-time adult traineeships and to maintain fairness and reasonableness in the award.

Variation on the Commission’s Own Motion—Joinery and Building Trades 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