| [2020] FWCFB 6040 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.156—4 yearly review of modern awards
4 yearly review of modern awards
(AM2019/17)
Building, metal and civil construction industries | |
JUSTICE ROSS, PRESIDENT |
MELBOURNE, 4 DECEMBER 2020 |
4 yearly review of modern awards – finalisation of Exposure Drafts and variation determinations – Tranche 3 – Building and Construction General On-site Award 2010 – Joinery and Building Trades Award 2010 – Mobile Crane Hiring Award 2010 – Plumbing and Fire Sprinklers Award 2010.
[1] This Full Bench has been constituted to oversee the process for finalising the exposure drafts produced during the 4 yearly review of modern awards (the Review) and the consequent variation of each modern award. For that purpose, the modern awards were divided into 3 Tranches. In a decision published on 2 September 2019 1, we outlined the process for finalising the exposure drafts and consequent variations of each award.
[2] This decision deals with the finalisation of the variation determinations for the Building and Construction General On-Site Award 2010 (On-Site Award), Joinery and Building Trades Award 2010 (Joinery Award), Mobile Crane Hiring Award 2010 (Mobile Crane Hiring Award) and the Plumbing and Fire Sprinklers Award 2010 (Plumbing and Fire Sprinklers Award) (collectively referred to as the Construction Awards).
[3] On 29 September 2020 we issued a Statement 2 which outlined the history of the Review with respect to the Construction Awards and advised of a number of changes which had been made to the draft variation determinations which had been published on 20 March 2020.
[4] In a Statement 3 issued on 7 October 2020 we provided a further update on the finalisation of the variation determinations relating to the Construction Awards and confirmed a number of further amendments that had been incorporated, including changes resulting from the determination of substantive claims by other Full Benches. Updated exposure drafts and draft variation determinations were published on 8 October 2020. Parties were directed to comment on the contents of those draft variation determinations by 22 October 2020 and we stated that any outstanding issues would be resolved on the papers.
[5] At the outset we wish to point out that the rates contained in the final variation determinations have been updated in line with the adjustment provided for in the 2019-2020 Annual Wage Review (AWR) decision. 4 The Construction Awards were categorised as Group 2 Awards for the purposes of the implementation of the AWR decision and as such adjusted rates operate from the start of the first full pay period on or after 1 November 2020.
[6] We also note that on 18 August 2020, the Full Bench constituted to deal with the identification and resolution of potential ambiguities in a number of modern awards in relation to the overtime entitlements of casual employees issued a decision 5 which determined that the Construction Awards (amongst others) should be varied in a standardised way to make unambiguous what the position regarding casual entitlements are. On 30 October 2020, the Full Bench issued determinations6 setting out the changes to the award arising from their decision. Those determinations have been incorporated into the final variation determinations relating to the Construction Awards.
[7] This decision determines the outstanding matters raised by the parties in relation to the variation determinations for each of the Construction Awards.
[8] We deal with each of the Construction Awards in turn, beginning with the On-site Award. We make the general observation at the outset that this part of the Review is concerned with technical and drafting amendments only – it is not dealing with substantive variations to any of the Construction Awards.
[9] Submissions regarding the On-site Award were received from:
• Australian Business Industrial and New South Wales Business Chamber (ABI);
• Australian Industry Group (Ai Group);
• Australian Workers’ Union (AWU);
• Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU);
• Housing Industry Association (HIA); and
• Master Builders Australia (MBA).
2.1 Minor drafting amendments or corrections
[10] The following uncontentious minor amendments were proposed by various parties:
• The award title will be amended from “Building and Construction General On-site Award 20XX” to “Building and Construction General On-site Award 2020” on page 1, in the header and also clause 1.1; 7
• The first cross reference at clause 4.3 will be amended from “clause 4.1” to “clause 4.2” 8;
• The words “Registered Training Organisation” will be deleted from clause 14.3(c) and replaced with “RTO”; 9
• Clause 14.6 will be reformatted as submitted by HIA in their submissions of 8 October 2020; 10
• At clause 14.8(a) and 14.9(a)(iii)(A) the brackets will be removed from the acronym RTO; 11
• At clause 14.8(d), the words “in lieu of” will be replaced with “instead of”; 12
• At clause 16.5(c) the word “the” should be inserted after the word “between” and before the word “employer”; 13
• At clause 16.9(b) the words “this clauses 16 and 17—Shiftwork” should be replaced with the words “clauses 16 and 17—Shiftwork; 14
• At clause 16.9(c) the words “this clauses 16 and 17—Shiftwork” should be replaced with the words “clauses 16 and 17—Shiftwork; 15
• At clause 17.1(e), the word “early” should be inserted before the word “morning” in the first sentence of the clause; 16
• At clause 18.1(a), the words “not less than” should be added between the words “of” and “30 minutes”; 17
• At clause 18.3(f), the word “allowed” should be replaced with the words “entitled to”; 18
• At clause 19.7(d)(iii) the words “Construction and Property Services Industry Skills Council” should be replaced with “Australian Industry and Skills Committee”; 19
• At clause 19.9 the words “a traineeship” should be replaced with “an apprenticeship while also undertaking a course of secondary education”; 20
• At clause 20.3, the cross reference “clause 20.5” should be replaced with “clause 20.4”; 21
• At clause 21.2, the words “one and a half hours” should be replaced with “1.5 hours”; 22
• At clause 21.3(e)(i), the cross reference “clause 21.3(e)” should be replaced with “clause 21.3”; 23
• At clause 26.3, the word “working” should be inserted between the word “ordinary” and the word “hours”; 24
• At clause 29.4, the words “ordinary time of work” should be replaced with the words “ordinary working hours”. 25
• At clause 29.8(a)(i), the reference to “work day or shift” should be amended to read “ordinary work day or shift”. 26
• At clause 31.2(b), the word “receive” should be replaced with the words “be paid”. 27
• At clause 32.2, the word “sick” should be replaced with the words “personal/carer’s”. 28
• At clause A.2.7(d), the bracket after the words “220 ton” should be deleted; 29
• At clause B.1.2, the clause reference for the allowance “Computing quantities allowance” should be amended from “23.10(c)” to “23.10(b)”; 30
• At clause B.1.2, the clause reference for the allowance “Scaffolding or rigging certificate allowance” should be amended from “23.10(b)” to “23.10(c)”; 31
• At clause D.3.3(a) the words “or to any training program which applies to the same occupation and achieves essentially the same training outcome as an existing apprenticeship in an award as at 25 June 1997” should be inserted after the word “system”; 32 and
• At clause D.7.2 in the table, the transport and logistics row should refer to AQF certificate level “I, II”. 33
[11] We agree with each of these proposed amendments and will incorporate them into the final variation determination.
[12] The following additional minor amendments will also be made:
• At clause 4.4(b), 4.4(c) and 4.4(d) the word “20XX” will be replaced with “2020”;
• At clause 4.4(e), the word “20XX” will be replaced with “2010”.
2.2 Other matters raised
(i) Definition of adult apprentice
[13] The HIA submits that the definition of “adult apprentice” appears in both clauses 2 and 14.1(a) of the exposure draft, albeit in slightly different terms. 34 The definition in clause 2 provides:
…
adult apprentice means a person of 21 years of age or over at the time of entering into a contract of training in a specified trade.”
[14] The definition in clause 14.1(a) provides:
(a) An adult apprentice is an employee who is 21 years of age or over at the time of signing the contract of training.”
[15] The HIA submits that the definition in clause 14.1(a) is to be preferred and that clause 2 be amended to reflect that contained in clause 14.1(a) and that the definition in clause 14.1(a) then be deleted to avoid duplication. 35
[16] We note that the current On-site Award includes the same two definitions, in identical terms to those set out above, at clauses 2 and 15.1 and that they have existed in the On-site Award in those same terms since the award was made.
[17] To avoid duplication we agree that the term “adult apprentice” should be defined once within the award. Clause 14.1 sets out a number of definitions and the definition should sit within that clause. We also agree with the HIA that the definition contained in clause 14.1(a) is to be preferred.
[18] We will amend clause 2 as follows:
“2. Definitions
…
adult apprentice has the meaning given in clause 14.1(a).
[19] Clause 14.1(a) will remain unchanged.
(ii) Coverage clause
[20] Clause 4.4 provides that the award does not cover employers covered by a number of listed modern awards. In particular, clause 4.4(g) provides that the award does not cover employers covered by;
“(g) the quarrying industry in the Cement, Lime and Quarrying Award 2020; or”
[21] ABI submits that clause 4.4(g) should be amended to read as:
“(g) the quarrying industry as defined in clause 4.3 of in the Cement, Lime and Quarrying Award 2020; or” 36
[22] We agree with the amendment proposed by ABI.
(iii) Facilitative provisions
[23] The HIA submits that there are a number of facilitative provisions which should be included in the list that appears at clause 7.2, including clause 16.6, 16.11(a), 21.1(b), 21.1(c), 29.12, and 31.6. 37
[24] We have reviewed the identified provisions and agree that clause 16.6, 16.11(a), 21.1(b)(i), 21.1(c)(i) and 29.12 should be inserted into the table appearing at clause 7.2. We do not propose to include clause 31.6 in the list of facilitative provisions at this time as provisions of this nature have generally not been included in the table of facilitative provisions in other awards.
(iv) Clause 14.2(a) -Apprentices – Conditions of employment
[25] The MBA submits that whilst trainees are referenced within clause 14.2(b), they are not referenced in clause 14.2(a) and that the word ‘trainees’ should be inserted into clause 14.2(a) as follows:
“(a) Apprentices/trainees will be engaged in accordance with the terms of this award, any relevant apprenticeship legislation and/or regulations made by any State or Territory training authority with the responsibility for the apprenticeship. The terms of this award apply to apprentices except where otherwise stated.” (amendment underlined) 38
[26] We do not propose to make this change. The terms of clause 14.2(a) are identical to those which exist in the current award at clause 15.2(a). In the event that MBA wishes to pursue this matter, they may make an application to vary the award.
(v) Clause 16.2 – Hours of work and accrual towards RDOs
[27] MBA submits that, for clarity, clause 16.2 should be amended to read as follows:
“16.2 Hours of work and accrual towards RDOs
Ordinary working hours will be 8 hours in duration each day, of which 0.4 of one hour of each day worked will accrue towards a RDO and 7.6 hours will be paid. An employee will therefore accrue a maximum of 7.6 hours towards a RDO each 19 days of ordinary hours worked.” (proposed amendment underlined) 39
[28] Clause 16.2 of the exposure draft and draft variation determination replicate the wording of the current award (at clause 33.1(a)). We are not persuaded that it is necessary to amend clause 16.2 in the manner proposed by the MBA.
(vi) Clause 16.3 – Accrual towards an RDO on days not worked
[29] The HIA submits that clause 16.3 fails to consider circumstances where a part-day public holiday may fall on a day which is otherwise partially taken as an RDO and that the clause does not account for how accrual towards an RDO operates in the context of a part-day public holiday.
[30] Clause 16.3 of the exposure draft and draft variation determination is in the same terms as clause 33.1(b) of the current award.
[31] As the HIA notes, the interaction with the Part-day public holidays schedule has been raised in AM2014/301 and AM2019/17. A Report to the Full Bench 40 was issued in AM2014/301 on 13 November 2020 and the matter is ongoing. Accordingly, we do not propose to make any amendment to the draft variation determination as the matter raised can be addressed in the other proceedings.
(vii) 16.11(a) – Other conditions for working ordinary hours – early starts
[32] Clause 16.11(a) states that:
“16.11 Other conditions for working ordinary hours
(a) Early starts
The working day may start at 6.00 am or at any time between that hour and 8.00 am and the working time will then begin to run from the time so fixed, with a consequential adjustment to the meal cessation period. The change to the start time requires agreement between the employer and the employees and their representative(s), if requested.”
[33] The MBA submits that clause 16.11(a) provides:
“…the ability for ‘Early Starts’ and allows for agreement to be reached such that ordinary hours can commence anywhere between 6:00am and 8:00am. This means that were the start time to commence at 6:00am the finishing time would become 2:00pm, and likewise if the start time were to commence at 8:00am the finishing time would become 4:00pm.” 41
[34] The essence of the issue identified by the MBA is that:
“Given that the span of hours allows for ordinary hours to be worked up to 6:00pm, ordinary hours could commence at 10:00am and still be within the conventional maximum span. However, the clause is limited to starts between 6:00am and 8:00am – but not 10:00am even though this would be within the conventional span.” 42
[35] To rectify the issue identified, the MBA submits that the Award should provide for early starts commencing any time between 6:00am and 10:00am. 43
[36] The CFMMEU object to the proposal to vary clause 16.11(a) by the MBA and submits that it would “…substantially affect the entitlements of workers already determined by the Construction Awards Full Bench and which have been in force since 1st July 2020”. 44
[37] The CFMMEU submits that in a Statement issued on 1 August 2017, 45 the Full Bench dealing with the substantive matters in the Construction Awards came to a provisional view about the replacement of the whole of the ordinary hours of work clause. The Full Bench made further changes to its proposed clause in a Decision46 issued September 2018 and provided parties with 28 days to comment.47
[38] In a Decision 48 issued on 18 December 2019, the Full Bench determined to issue a single variation determination for each award which incorporated all the variations arising from the September 2018, October 2019 Decision and December 2019 decisions and that each determination would have an operative date of 1 July 2020. 49
[39] The CFMMEU submits that:
“Given the level of scrutiny by all the parties, including the MBA and HIA, on the proposed variations to the clauses contained in the Building and Construction General On-site Award 2010, all parties were fully aware of the consequences of the clauses decided on by the Full Bench at the time the decisions were made. Moreover, the Construction Awards Full Bench gave ample opportunity to parties to comment on the draft determinations arising from its decisions. The MBA and HIA decided not to make any submissions on the specific issues that they now raise.” 50
[40] In essence, the CFMMEU submits that the matter raised by the MBA has already been determined. 51
[41] The proposal by the MBA is not what we would consider a technical and drafting matter. We are not persuaded that the change should be made. Should MBA wish to pursue its proposal, it may do so through pursuing a separate application to vary the award.
[42] The HIA also advanced a submission in relation to clause 16.11(a) which sought to amend the term so that the provision is simple and easy to understand, and consistent with the language used within the On-site Award. 52 The amendment proposed is as follows:
“16.11 Other conditions for working ordinary hours
(a) Early starts
The working day may start at 6.00 am or at any time between that hour and 8.00 am and the working time will then begin to run from the time so fixed, with a consequential adjustment to the meal cessation period and the meal break will be adjusted accordingly. The change to the start time requires agreement between the employer and the employees and their representative(s), if requested.”(strikethrough and underline proposed amendments) 53
[43] We agree with the HIA, the proposed amendment adds clarity and we will adopt it.
(viii) Clause 19 – Minimum rates
[44] The HIA and the CFMMEU submit that the use of the words “(full-time employee)” in the table appearing in clause 19.1(a) is confusing as it is not a defined term. 54 HIA submitted that the wording within clause 19.1(b) appropriately explains the application to minimum weekly wages.
[45] The words “(full time employee)” were inserted into the exposure draft and variation determinations published on 8 October 2020. The exposure draft indicates the amendment was made in accordance with a Decision 55 of the Plain Language Full Bench.
[46] On further review we think the inclusion of these words was an error. The relevant decision of the Plain Language Full Bench indicates that the On-site Award and the Joinery Award were to be excluded from this change and that the issue can be the subject of further submissions in response to the publication of exposure drafts. 56
[47] The HIA maintains the submission it advanced before the Plain Language Full Bench, that the minimum weekly rates within the Building and Construction Award are not confined to full-time employment. HIA submitted that the On-site Award has four types of employment (daily hire, full-time weekly hire, part-time weekly hire and casual) and that adding the words “full time employee” may cause confusion and is inconsistent with the language used throughout the award. 57
[48] We agree with the submissions of the HIA and CFMMEU. The words “(full-time employee)” will be removed from the table appearing at clause 19.1(a). The equivalent wording will also be deleted from the Joinery Award.
(ix) Clause 19.2(a) Leading hands
[49] The HIA submits that the words “persons in the employee’s charge” within clause 19.2(a) should be replaced with “persons supervised” and that the heading “In charge of” which appears in the table at 19.2(a) should be replaced with “Persons supervised”. 58
[50] The language used in relation to leading hands is fairly standard in modern awards in which the term appears and is in line with the wording contained in the current award. Absent any consensus about this issue we are not persuaded that it is necessary to make the change proposed at this time. The matter can be revisited in the plain language review of this award.
(x) Clause 19.10 - National training wage
[51] The HIA submits that the words “Skill level B” and “Skill level A” should be replaced with “Wage Level B” and “Wage Level A” where they appear in the tables in clauses 19.10(c)(i) and 19.10(c)(ii). 59
[52] HIA notes that this issue has been raised before the Full Bench dealing with the National Training Wage Schedule – Award Specific Schedules (AM2016/15 and AM2016/17) and that proceedings regarding the On-site Award had not yet been determined in that matter.
[53] The words “Skill level A” and “Skill level B” only appear at clause 19.10 and no further explanation of those terms is found within the award.
[54] We agree with the HIA and the terms will be replaced by “Wage level B” and “Wage level A” in the tables appearing in clause 19.10(c)(i) and 19.10(c)(ii).
(xi) Clause 20.6(a)(ii) – Payment on termination of employment
[55] The MBA submits that its current form, clause 20.6(a)(ii) only recognises the more conventional categories of employment by referencing termination payments due to an employee under the Award and the NES. MBA submits that this has the effect of excluding those who are employed in the category of Daily Hire: 60
“This is because s.123(3)(b) of the FW Act provides that a daily hire employee working in the building and construction industry (including working in connection with the erection, repair, renovation, maintenance, ornamentation or demolition of buildings or structures) is not covered by notice of termination provisions under the NES.
Previous iterations of the award made reference to termination payments being all other amounts that are due to the employee “under the award or the NES” as opposed to “under the Award and the NES.”
This former wording better comprehended the unique nature of the Daily Hire employment category set by the Award and recognised by the FW Act. The former wording is commonly understood and accepted within the industry. A return to this wording would avoid creating confusion for Award users that is likely to arise and would allow the provision to better meet the Modern Awards Objective...” 61
[56] Clause 20.6 is in the same terms as clause 31.4 of the current award and was inserted by the Payment of Wages Full Bench following a decision dated 6 October 2020. 62 The MBA made a number of submissions during the payment of wages common issue. We do not intend to make any further amendments to clause 20.6. This matter can be revisited in the plain language review of this award.
(xii) Clause 21.2(a) – Meal allowance
[57] CFMMEU submits that the cross reference to clause 31-Annual leave within clause 21.2(a) should be clause 16 – Ordinary hours of work and rostering arrangements 63 because the time worked for accrual purposes refers to the RDO accrual in clause 16.
[58] We note that the cross reference included in clause 21.2(a) is the same as that which appears in the current award.
[59] We agree with the CFMMEU that the existing cross reference is incorrect and should be amended.
(xiii) Clause 23.9(a) – In charge of plant
[60] The CFMMEU and AWU submit that clause 23.9(a) replicates a definition found in clause 2 of the award 64 and the HIA submits that the clause should be re-worded.65
[61] We agree with the submissions of the CFMMEU and AWU that the clause replicates the definition contained in clause 2.
[62] We note the definition included in clause 2 is for the term “employee in charge of plant”. To ensure consistency through the award, the term in clause 2 – definitions will be amended to remove the reference to ‘employee’ and will simply be “in charge of plant”.
[63] Clause 23.9(a) will be amended to read as follows:
“(a) In charge of plant has the meaning given in clause 2.”
[64] We do not propose to re-word the clause in the manner proposed by the HIA. This matter can be revisited in the plain language review of this award.
(xiv) Clause 26.4 – Distant work payment
[65] Clause 26.4 of the variation determination provides:
“26.4 Distant work payment
(a) If an employee is required to travel to a construction site that is:
(i) not located in a metropolitan radial area in which the employee’s usual place of residence is located; and
(ii) more than 50 kms by road from the employee’s usual place of residence;
the employee will be entitled to the distant work payment in clause 26.4(b) in addition to the allowance in clause 26.1.
(b) The distant work payment is:
(i) payment for the time outside ordinary working hours reasonably spent in travel, paid at the ordinary time hourly rate, calculated to the next quarter of an hour, and with a minimum payment of one half an hour per day for each return journey; and
(ii) any expenses necessarily and reasonably incurred in such travel, which will be $0.47 per kilometre where the employee uses their own vehicle.
(c) Despite clause 26.4(a), the distant work payment is not payable when, at the commencement of employment, the employee’s usual place of residence was more than 50km by road from the construction site on which the employee was initially engaged.
(d) In this subclause, a metropolitan radial area is the area within a radius of 50 kilometres of:
(i) the GPO of a capital city of a State or Territory; or
(ii) the principal post office in a regional city or town in a State or Territory.”
[66] The MBA submits that clause 26.4(a)(ii) was the subject of submissions before the substantive Full Bench dealing with the Construction Awards and that that Full Bench determined that the clause required simplification. 66 The Full Bench issued a determination67 regarding the substantive matters on 20 March 2020 and it came into operation on 1 July 2020.
[67] The MBA contends that the amendments at clause 26.4(a)(ii) have “…given rise to a consequence that we submit is unintended and was not sought by any of the interested parties appearing in the Award stage proceedings.” 68 The MBA submits that:
“The previous clause 25 was underpinned by a concept that established ‘radial areas’ of 50km with a ‘designated boundary’ that was used to determine both eligibility and amounts payable for travel for work purposes. In simple terms, clause 25 operated by establishing amounts that were payable for travel within a radial area (50km from an employee’s home).
Where travel was required outside of the radial area, it was (save for some specifically identified circumstances) considered to be distant work and triggered a different allowance arrangement. This arrangement applied for travel from and beyond the ‘designated boundary’ (more than 50kms) and was payable in addition to the usual arrangement for travelling within the normal ‘radial area’ (less than 50km).
The re-drafted provision can now be interpreted such that it creates a ‘double-dip’ outcome. That is, an employee will receive both the conventional travel allowance and distant work arrangement for all travel to and from distant work – whereas previously the distant work arrangement only applied for the distance from and beyond that normally travelled.” 69
[68] The MBA submits that the re-drafted clause removes the notion of “designated boundary” contained in the previous version of the clause and as a consequence, the new clause 26.4(a) can be interpreted as creating an entitlement for employees to be paid for the entire distance travelled from their home to the distant work site (rather than for the return trip between the 50km radius point and the distant work site). 70
[69] The MBA further submits that clause 26.4(c) only precludes the allowance being payable in circumstances where the employee resided more than 50km from the site when they were initially employed. The MBA submits that this was different to the previous arrangement whereby the distant work allowance was payable only for travel beyond the metropolitan radial area, for example outside the 50km radial boundary and back to the boundary. The MBA submits that as a result the new provision can be read such that employees can now claim the fares and travel pattern allowance under clause 26.1 in addition to the distant work payment for travel from the employee’s usual place of residence to the distant work site. 71
[70] The HIA advanced a similar submission to that made by the MBA and proposed the following amendment to clause 26.4(b):
“(b) The distant work payment in respect of travel from the metropolitan radial area to the job and return to the metropolitan radial area is:” (amendment underlined)
[71] The CFMMEU objected to the proposal to vary the clause by the MBA and HIA 72 and submits that:
“Clause 26 - Travelling time entitlements, was determined by the Construction Awards Full bench in its September 2018 Decision and largely reflected the clause sought by the HIA. It should be noted that the whole clause was replaced by that decision. The Construction Awards Full Bench also published a draft variation dealing with this clause on 23rd November 2018 and, by directions also issued on 23rd November 2018, invited parties to comment…
Given the level of scrutiny by all the parties, including the MBA and HIA, on the proposed variations to the clauses contained in the Building and Construction General On-site Award 2010, all parties were fully aware of the consequences of the clauses decided on by the Full Bench at the time the decisions were made. Moreover, the Construction Awards Full Bench gave ample opportunity to parties to comment on the draft determinations arising from its decisions. The MBA and HIA decided not to make any submissions on the specific issues that they now raise.” 73
[72] Given that these matters have been extensively dealt with by the Construction Awards Full Bench, we do not propose to make the changes proposed by MBA and HIA. The President has referred the issues raised by the MBA and HIA, and the CFMMEU’s response, to the Full Bench (AM2020/101) for resolution.
(xv) Clause 27.2 – Accident pay
[73] The HIA submits that the definition of ‘accident pay’ should be moved to clause 2 – Definitions, for consistency and to ensure that all definitions can be found within the same clause. HIA propose that a cross-reference could be used in place of the repeated text and that the following amendment to clause 27.1 (with the deletion of clause 27.2):
“27.1 The employer must pay accident pay (see clause 2).” 74
[74] We agree with the HIA’s proposal. The definition of “accident pay” will be moved to clause 2 – Definitions.
[75] Clause 27.2 will be amended to read as follows:
“27.2 Accident pay has the meaning given in clause 2.”
(xvi) Clause 28.5 – Superannuation
[76] The AWU and CFMMEU submit that the cross-reference in clause 28.5 to clause 28.1(a) should be to clause 28.2 because clause 28.1(a) refers to superannuation legislation and it is clause 28.2 that imposes an obligation for an employer to make contributions. 75
[77] We agree with the AWU and CFMMEU and will update the cross-reference accordingly.
(xvii) Clause 29.6 – Work during meal break – day workers
[78] The HIA submits that clause 29.6 should be moved to clause 18.1, as a new subsection (d) on the basis that all provisions relating to meal breaks should be contained within the same section of the award. The HIA submits that employers unfamiliar with the operation of these provisions are largely left unaware of the penalty rates applicable when an employee works through a meal break. 76
[79] We propose to address the issue raised by the HIA by inserting a note at the end of the clause 18.1 as follows:
‘Note: Penalty rates apply in circumstances where an employer requires an employee to work through a meal break – see clause 29.6’
[80] HIA’s proposal can be revisited in the plain language review of this award.
[81] The HIA also submits that clauses 29.6(a) and (b) be amended to ensure they are consistent. The changes proposed are as follows:
“29.6 Work during meal break – day workers:
(a) If an employer requires an employee to work during the time prescribed by clause 18.1 for finishing of workthe meal break, the employee must be paid at the rate of 200% of the ordinary hourly rate for the period worked between the prescribed time of finishingfor the meal break under clause 18.1 and the beginning of the time allowed in substitution for the meal break.
(b) If the finishing timemeal break provided in accordance with clause 29.6(a) is shortened at the request of the employee to the minimum of 30 minutes prescribed in clause 18.1 or to any other extent (not being less than 30 minutes) the employer will be not required to pay more than the ordinary hourly rate of pay for the time worked as a result of such shortening, but such time will form part of the ordinary working time of the day.” (amendment made in strikethrough and underline)
[82] It is our provisional view that the change proposed by the HIA be adopted. Any party with a different view may make a submission when commenting on the revised draft variation determination published with this decision.
(xviii) Clause 30.4 – Paid crib time during overtime – Saturday and Sunday
[83] The HIA submits that clause 30.4 be amended ‘for readability purposes’ as follows:
“30.4 Paid crib time during overtime – Saturday and Sunday
(a) This provision operates in place of clause 18.1.
(a)(b) An employee working overtime on a Saturday or working on a Sunday must be allowed a paid crib time of 20 minutes after 4 hours’ work, to be paid for at the ordinary hourly rate of pay. but this provision
(c) Clause 30.4(b) will does not prevent any arrangements being made for the taking of a 30 minute unpaid meal period, the time in addition to the paid 20 minutes in accordance with clause 30.4(b). being without pay. This provision operates in place of clause 18.1(a).
(b)(d) In the event of an employee being required to work in excess of a further 4 hours, the employee must be allowed to take a paid crib time of 30 minutes which will be paid at the ordinary hourly rate of pay. This provision operates in place of clause 18.3(a) and 18.3(b).” 77 (amendments in strikethrough and underline)
[84] We do not propose to reword the provision in the manner proposed by the HIA. This matter can be revisited in the plain language redrafting of this award.
(xix) Clause 31.2 – Payment for annual leave
[85] The HIA submits that clause 31.2(a) be amended ‘for clarity and to reflect consistency of language throughout the award’ as follows:
“(a) Instead of the base rate of pay as referred to in section 90(1) of the Act, an employee under this award, before going on annual leave, must be paid, in advance, the amount which they would have received for working ordinary time hours ordinary working hours, at their ordinary time hourly rate, if they had not been on leave.” (amendment in strikethrough and underline)
[86] We do not agree with the change proposed and do not propose to re-word the clause in the manner proposed by the HIA. This matter can be revisited in the plain language redrafting of this award.
(xx) Clauses 33, 34 and 35
[87] The HIA submits that the numbers “33.1”, “34.1” and “35.1” should be inserted before the text appearing in clauses “33. Parental leave and related entitlements”, “34. Community service leave” and “35. Unpaid family and domestic violence leave” respectively.
[88] Generally in modern awards, clauses with paragraph text below the title only do not have clause numbers assigned to them. To ensure consistent drafting across all modern awards, we do not propose to make the changes proposed.
(xxi) Clause 40 – Termination of employment
[89] The HIA submits that clause 40 should include headings to clearly differentiate between notice requirements for termination applying to employees and employers, on the basis that a heading already exists regarding employee requirements, the HIA submitted that the following changes to flag the employer requirements: 78
“40.1 Notice of termination by an employer
NOTE: The NES sets out requirements for notice of termination by an employer. See sections 117 and 123 of the Act.
40.1 40.2 Notice of termination by an employee” (amendments in strikethrough and underlined)
[90] The terms of clause 40 are derived from the determination 79 issued by the Plain language Full Bench in a decision80 addressing the award specific issues relating to the plain language redrafting of the termination of employment model term in the On-site Award. We do not propose to re-word the clause in the manner proposed by HIA. This matter can be revisited in the plain language review of this award.
(xxii) Schedule A – Classification Definitions
[91] The CFMMEU submits that the organisations mentioned in clause A.1.7 are out of date and that they be updated when the award goes through the next stage of plain language redrafting. 81 We agree and the organisations listed in A.1.7 will be reviewed in the plain language re-drafting of the award.
(xxiii) Schedule B.1– Summary of Monetary Allowances – wage related allowances
[92] The CFMMEU submits that in the table in B.1.1 all of the industry allowances should have an asterix by them as they are all purpose allowances. 82
[93] All purpose allowances in the table at C.1.1 are noted by an asterix. There is an error in the table in that the “Electrician’s license allowance” has a footnote 1, but there is no footnote 1 to the table. 83 We will amend the table so that all of the industry allowances are noted by the asterix.
[94] The CFMMEU further submits that the Mobile Cranes capacity adjustment formula in clause B.1.1 should refer to the weekly payment being for each 40 ton. 84
[95] We agree and will amend the affected row by deleting the words “per week” in the last column and adding the words “per week for each additional 40 tonnes over max limit”.
(xxiv) Schedule B.2– Summary of Monetary Allowances – expense related allowances
[96] Ai Group submits that at the table at B.2.1:
“(a) the section reference relating to “Living away from home allowance – per complete week” should be deleted as it relates to the previous award provisions.
(b) the section reference relating to “Living away from home allowance – broken parts of the week” needs to be deleted and reworded as “Living away from home - Distant Work - Entitlement.”
(c) the section reference relating to “Metropolitan Radial Areas” should be amended to refer to “Fares and Travel Pattern Allowance” and the clause reference should be 26.1(a) not 26.1.
(d) the section reference relating to “Travelling outside radial areas – employee’s own vehicle” should be amended to refer to “Distant Work Payment”
(e) the section reference relating to “Travelling during working hours - employee’s own vehicle” should be amended to refer to “Travelling between construction sites”. The clause references should be amended to 26.2(b)(ii).” 85
[97] We agree with Ai Group and will make the necessary corrections to the variation determination, in particular:
• The words “Living away from home allowance – broken parts of the week” appearing in the table will be deleted and replaced with “Living away from home allowance – distant work – Entitlement”.
• The words “Metropolitan radial areas” will be replaced with “Fares and travel pattern allowance” and the clause reference to 26.1 will be updated to 26.1(a).
• Delete the words “Travelling outside radial areas – employees own vehicle” and replace them with “Distant work – employees own vehicle”.
• Delete the words “Transfer during work hours – employees own vehicle” and replace them with “Travelling between construction sites – employees own vehicle” and the clause reference should be amended from “26.2” to “26.2(b)(ii)”.
[98] Submissions about the Joinery Award variation determination were received from Ai Group, ABI, the HIA and the CFMMEU.
3.1 Minor drafting amendments or corrections
[99] The following uncontentious minor amendments were proposed by various parties:
• The award title to be amended from “Joinery and Building Trades Award 20XX” to “Joinery and Building Trades 2020” on page 1, in the header and also clause 1.1 86;
• At clause 12.2, all references to “clause 11.7” should be amended to “clause 12”; 87
• At clause 25.4(c), the reference to “clause 25.4(a)” should be amended to “clause 25.4(b)”; 88
• At clause 25.4(e) the reference to “clause 25.4(a)” should be amended to “clauses 25.4(a) and 25.4(b)”; 89
• At clause 32.3, the reference to “Schedule A” should be amended to “Schedule J”; 90
• At clause C.1.1, the footnote reference “2” appearing after the words “Industry allowance—employee engaged on joinery work, shopfitting, stonemasonry or outside work” should be amended to “1”. 91
[100] We agree with each of the proposed amendments and will incorporate these into the final variation determination.
[101] Further minor amendments will also made:
• At clause 4.3(c) the words “Building and Construction General On-site Award 20xx” will be amended to “Building and Construction General On-site Award 2020”;
• At clause 13.12(a)(ii), the full stop after the word “RTO” will be replaced with a comma;
• At clause 25.4(e) the word “rate” will be replaced with the word “rates”
3.2 Other matters
(i) Facilitative provisions
[102] The HIA proposed that the following clauses should be inserted in the table appearing at clause 7.2: 92
• 17.1 – Rostering arrangements
• 18.1(b) – Meal breaks
• 24.9(b) – Time off instead of payment for overtime
• 27.5(b) - Excessive leave accruals: general provision
[103] We have reviewed the identified provisions and agree that clauses 17.1, 18.1(b) and 24.9(b) should be inserted into the table appearing at clause 7.2. We do not propose to include clause 27.5(b) in the list of facilitative provisions as provisions of this nature have generally not been included in the table of facilitative provisions in other awards.
(ii) Clause 13.5(c) - Apprentices
[104] The HIA submits that the management of training packages is now undertaken by the Australian Industry Skills Committee and submits that the reference in clause 13.5(c) to the ‘Construction and Property Services Industry Skills Council’ should be replaced by more generic language to avoid confusion. 93
[105] The award specific national training wage schedule to the Joinery Award (Schedule E) refers to the Australian Industry Skills Committee as the body which endorses training packages (see clause E.1.1). We will amend 13.5(c) so that it also refers to the Australian Industry Skills Committee for consistency with Schedule E.
[106] The CFMMEU submits that the reference in clause 13.5(c) to the ‘Construction and Property Services Industry Skills Council’ be replaced by the ‘Construction, Plumbing and Services Industry Reference Committee’. 94 We agree and will make the proposed change.
(iii) Clause 13.11(c) – Apprentice training
[107] The HIA submits that clause 13.11(c) of the exposure draft should be a stand-alone clause within clause 13. 95
[108] The CFMMEU submits that the reference to ‘Clause 13’ in clause 13.11(c), should be changed to ‘clause 13.11(b)’. 96
[109] We agree that the reference to “clause 13” in clause 13.11(c) should be changed to “clause 13.11(b)”. The current award term was inserted by the Commission during the 2012 modern award transitional review. The words “This clause is subject to Schedule C - School based apprentices” formed part of clause (b). The variation to the determination will be amended.
(iv) Clauses 16 and 17
[110] The CFMMEU submits that clause 17.2 should be part of clause 16.2 because both clauses deal with the rostered day off (RDO) arrangements. 97
[111] We do not agree. Clause 16.2 of the exposure draft determination deals with ordinary hours of work and references the rostered day off system. Clause 17 provides for rostering arrangements and clause 17.2 provides for requirements for how a rostered day off is to be implemented and rostered. If the CFMMEU wishes to pursue this issue it can be raised in the plain language review of this award.
(v) Clause 21.2 – All purpose allowances
[112] The HIA submits that including a definition of the term ‘all purposes’ in clauses 2 and 21.2 is unnecessary duplication and suggest that the definition at clause 21.2 be deleted. 98
[113] We do not agree that the definition is duplicated at clause 21.2.
(vi) Clause 22.2(a) and clause 22.7 – Accident Pay
[114] The HIA submits that the definition of ‘accident pay’ at clause 22.2(a) should be moved to clause 2 to ensure consistency of drafting and that all definitions are appropriately grouped. HIA proposed to delete clause 22.2(a) and amend clause 22.1 as follows: 99
“22.1 The employer must pay accident pay (see clause 2)” (amendment underlined)
[115] We do not agree with the submissions of the HIA. Clause 2 at present contains the following definition for “accident pay”:
“accident pay has the meaning given in clause 22.2(a)”
[116] A definition in the same type appears for the term “injury” which has the meaning given in clause 22.2(b). The definitions for those two terms will remain in clause 22.2.
[117] The CFMMEU submits that the reference to ‘clause 2—Definitions’ in clause 22.7 should be changed to ‘clause 22.2(a)’ 100 and Ai Group submits that the reference be changed to ‘clause 22.2’.101
[118] We agree that the reference in clause 22.7 to “clause 2—Definitions” is incorrect. The appropriate pinpoint reference is clause 22.2(a) and the variation determination will be amended accordingly.
(vii) Clause 27.2(d)
[119] The HIA submits that the note appearing at the end of clause 27.2(d) should be deleted on the basis that it is ‘confusing and largely irrelevant’. 102 The HIA submits that clause 27.2(a) specifically excludes the operation of the base rate of pay and, consequently, does not apply to the calculation of the wages an employee received while on annual leave. Further, clause 27.2(b) already addresses how over-award payments are to be dealt with when making payments while an employee is on annual leave.103
[120] The note at clause 27.2(d) of the exposure draft does not appear in the current Joinery Award and appears to have been included in error. We will delete the note from the final variation determination.
(viii) Clauses 29 and 31
[121] The HIA submits that text appearing at clauses 29 and 31 should be reformatted as level 2 clauses as follows:
“31. Unpaid family and domestic violence leave
31.1 Unpaid family and domestic violence leave is provided for in the NES.
29. Parental leave and related entitlements
29.1 Parental leave and related entitlements are provided for in the NES.” (amendment underlined)
[122] The HIA submits that the above changes were needed for the sake of consistency (citing clause 14 as an example).
[123] As mentioned earlier, generally in modern award clauses with paragraph text below the title only do not have clause numbered assigned to them. To ensure consistent drafting across all modern awards we do not propose to amend clauses 29 and 31 as suggested by the HIA. We will vary the variation determination to amend clause 14 by deleting the paragraph number 14.1.
(ix) Clause 36
[124] The HIA submits that clause 36 should include headings to clearly differentiate between notice requirements for termination applying to employees and employers. Noting that a heading already exists regarding employee requirements, HIA propose the following changes to flag the employer requirements: 104
“36.1 Notice of termination by an employer
NOTE: The NES sets out requirements for notice of termination by an employer. See sections 117 and 123 of the Act.
36.1 36.2 Notice of termination by an employee” (amendments in strikethrough and underlined)
[125] The terms of clause 36 are derived from the determination 105 issued by the Plain language Full Bench in a decision106 addressing the award specific issues relating to the plain language redrafting of the termination of employment model term in the Building Award. We do not propose to re-word the clause in the manner proposed by the HIA. This matter can be revisited in the plain language review of this award.
(x) Clause 37
[126] The CFMMEU submits that the underlined words below are missing from the note appearing in clause 37: 107
“NOTE: Redundancy pay is provided for in the NES. See sections 119 to 123 of the Act. Clause 37.4 supplements the NES by providing redundancy pay for employees of a small business employer.”
[127] The terms of clause 37 are also derived from the determination 108issued by the Plain language Full Bench in their decision109 addressing the award specific issues relating to the plain language redrafting of the termination of employment model term in the Joinery Award. We agree that the underlined words were inserted into the current award by that determination and should be inserted into the exposure draft and variation determination. We will amend the final variation determination to insert the underlined text.
(xi) Schedule B – Summary of Hourly Rates of Pay
[128] The HIA submits that while “…the overarching intention of [Schedule B] is to provide clarity in relation to rates of pay aiding in compliance and providing certainty the sheer number of tables, the various iterations (particularly in relation to apprentice rates) and the conditional nature of the rates due to the variable application of all-purpose allowances may lead to inadvertent non-compliance”. 110
[129] The HIA submits that due to the complexity of wage rate calculations, a table of rates similar to that adopted in Schedule C of the Manufacturing and Associated Industries and Occupations Award 2020 (the Manufacturing Award) is more appropriate. 111
[130] The HIA submits that Schedule B should be renamed “Summary of Wage Rates” and that the existing content of Schedule B be deleted and replaced with the following: 112
Full-time and Part-time employees | |
Working hours |
% of minimum ordinary hourly rate/ Minimum casual ordinary hourly rate |
Ordinary hours |
100% |
Ordinary hours on a Saturday |
150% |
Ordinary hours on a Sunday |
200% |
Work on a public holiday |
250% |
Overtime – first 2 hours Monday to Saturday |
150% |
Overtime –after 2 hours Monday to Saturday or after 12 noon on a Saturday |
200% |
Overtime on a Sunday |
200% |
Public Holiday |
250% |
Shiftworkers | |
Continuous | |
Day |
100% |
Early morning or early afternoon |
125% |
Afternoon or night |
150% |
Non-Continuous | |
First 2 hours |
150% |
After 2 hours |
200% |
Public Holiday |
250% |
Overtime – Monday to Sunday |
200% |
Casual employees | |
Working hours |
% of minimum ordinary hourly rate/ Minimum casual ordinary hourly rate |
Ordinary hours |
125% |
Ordinary hours on a Saturday |
175% |
Ordinary hours on a Sunday |
225% |
Work on a public holiday |
275% |
Overtime – first 2 hours Monday to Saturday |
175% |
Overtime –after 2 hours Monday to Saturday or after 12 noon on a Saturday |
225% |
Overtime on a Sunday |
225% |
Public Holiday |
275% |
Shiftworkers | |
Continuous | |
Day |
125% |
Early morning or early afternoon |
150% |
Afternoon or night |
175% |
Non-Continuous | |
First 2 hours |
175% |
After 2 hours |
225% |
Public Holiday |
275% |
Overtime – Monday to Sunday |
225% |
[131] In the alternative, the HIA submits that should the Full Bench not be minded to accept its proposed change to Schedule B as set out above, then an explanatory provision similar to those included in the Manufacturing Award (for example C.1.1, C.2.1 and C.2.2 of the Manufacturing Award) should be inserted into the exposure draft. 113 The HIA further submits that it needs to be made clear that the rates outlined under B.3 and B.5 include the industry allowance.114
[132] Similarly, the CFMMEU submits that the presentation of hourly wage rates in the schedules are cumbersome and overly prescriptive. The CFMMEU submits that the information can be presented in a more condensed form based on the penalty rate applying rather than trying to cater for each and every circumstance in which the penalty applies. 115
[133] We do not propose to replace Schedule B with a summary of wage rate percentages, at this time. This matter can be revisited during the plain language review of this award. However, we have decided to amend the explanatory notes at the beginning of Schedule B, as follows:
“B.1.2 The rates in the tables below for employees not engaged on joinery work, shopfitting, stonemasonry, outside work, or engaged on factory glazing below are based on the minimum hourly rates in accordance with clause 19.1. Consistent with clause B.1.1, all-purpose allowances need to be added to the rates in the table where they are applicable.
B.1.3 The ordinary hourly rate for employees engaged on joinery work, shopfitting, stonemasonry, outside work, or other than engaged on factory glazing includes the industry allowance (21.3(b)) which is payable for all purposes. Any other applicable all-purpose allowances must be added prior to calculating penalties and overtime.”
(xii) Schedule B – Full time and part time shiftworkers
[134] ABI submits that the ordinary and shift rates for shiftworkers in clauses B.2.3, B.2.6, B.3.3 and B.3.6 are unclear and that the “afternoon or night” shift allowance column in the respective tables suggest that the rate is only applicable to “continuous shiftwork”. 116 Clause 25.4(a) of the Joinery Award states that “other than for work on a Saturday, Sunday or public holiday, the rate of pay for afternoon or night shift is 150% of the ordinary hourly rate”.117
[135] ABI submits that this issue may be resolved, if the “afternoon or night” shift allowance column in the respective tables is moved under the heading “all shiftwork” next to the “public holiday” column. 118
[136] We agree with ABI and will amend the variation determination to move the column titled “afternoon or night” appearing in clause B.2.3, B.2.6, B.3.3 and B.3.6 across the table under the heading “all shiftwork” next to the public holiday column. The ‘early morning or early afternoon’ shift will be left under the heading “continuous shiftwork” in accordance with clause 25.4(b).
(xiii) Schedule B – clause B.1.1
[137] The HIA submits that the words “In accordance with clause 2, the” should be inserted at the beginning of B.1.1 to clarify that the ordinary hourly rate is defined in clause 2 of the exposure draft. 119
[138] We are not persuaded that the change proposed is necessary. This issue can be revisited during the plain language review of this award.
(xiv) Schedule B – clause B.3.1
[139] The CFMMEU submits that the first footnote in B.3.1 is confusing because the rates would appear to include the industry allowance, but not the tool allowance or other all-purpose allowances. 120 We agree. The footnotes throughout clause B.3 and B.5 have been reviewed and will be updated in the final variation determination. The footnote wording will be as follows:
“Ordinary hourly rate includes the industry allowance payable to all employees for all purposes. Any additional all-purpose allowances applicable need to be added to these rates.”
[140] Submissions about the Mobile Crane Hiring Award variation determination were received from Ai Group and the CFMMEU.
4.1 Minor drafting amendments or corrections
[141] The following uncontentious minor amendments were proposed by the parties:
• the reference to 20XX throughout the draft variation determination be replaced with “2020”; 121
• at clause 7.2 the row relating to clause 9.7(g) should be amended from referencing “The majority of employees” to “The majority of employees, section or sections of it, or an individual employee”; 122
• at clause 19.3(a) the cross reference to “clause 16.1” be replaced with “clauses 16.1 and 16.2”; 123
• at clause 22.7(a)(i), the word “work” should be replaced with “ordinary work”; 124
• at clause 29.2 the cross reference to “Schedule A” should be replaced with Schedule “I” and the error reference deleted; 125
[142] We agree with each of these the proposed amendments and will incorporate them into the award variation determination.
4.2 Other matters raised
(i) Definition of ordinary hourly rate
[143] The CFMMEU submits that “[t]he definition of “ordinary hourly rate” is ambiguous as the industry allowance is a weekly payment;” but do not propose any resolution to the issue raised.
[144] The calculation of the ordinary hourly rate is set out in Schedule B-Summary of Hourly Rates of Pay. Footnotes to each table of rates clarify that the “ordinary hourly rate includes the industry allowance payable to all employees for all purposes”. Accordingly, we do not think that it is necessary to make any amendment to the definition of ‘ordinary hourly rate’ at clause 2. If the CFMMEU wish to pursue this issue it can be raised during the plain language review of this award.
(ii) Clause 16 - Minimum rates
[145] The CFMMEU submits that the headers of the table in clause 16.1 should be amended so that ‘minimum weekly rate’ and ‘minimum hourly rate’ read as ‘minimum base weekly rate’ and ‘minimum base hourly rate’ accordingly. The CFMMEU submits that the proposed amendment makes the headings of the table in clause 16.1 consistent with the language used in clause 16.1.
[146] Clause 16.1 has the following statement before the insertion of a rates table:
“16.1 The minimum weekly rate of pay to employees in the mobile crane hiring industry will total the following weekly base rates of pay and the industry allowance set out in clause 16.2 for each classification level as described in Schedule A.”
[147] We agree with the CFMMEU that the headings in the table appearing at clause 16 are not consistent with the wording in clause 16.1.
[148] Rather than amend the headings of the table (which are standard headings for minimum rates clauses across most 2020 modern awards), we have decided to vary clause 16.1 as follows:
“16.1 The minimum weekly rate of pay to employees in the mobile crane hiring industry will total the following weekly base rates of pay An employer must pay employees the following minimum rates for ordinary hours worked by the employee and the industry allowance set out in clause 16.2 for each classification level as described in Schedule A.” (amendment in strikethrough and underline)
[149] The above amendment accords with the wording used in other awards with all-purpose industry allowances (such as Premixed Concrete Award 2020, Cemetery Industry Award 2020 and the future Salt Industry Award 2020).
(iii) Industry Specific Redundancy–Transfer of business clause
[150] Ai Group 126 and the CFMMEU127 submit that there is a typographical error at clause 34.6(a) and that the reference to “new employee” should be changed to “new employer”.
[151] Clause 34.6 of the exposure draft and variation determination provides:
“34.6 Transfer of business
(a) Except where an employee has received redundancy benefits, where a business is transferred from an employer (in clause 34.6(a) called the old employer) to another employer (in clause 34.6(a) called the new employee) and an employee who at the time of such transfer was an employee of the old employer in that business becomes an employee of the new employee.
(i) the continuity of the employment of the employee will be deemed not to have been broken by reasons of such transfer; and
(ii) the period of employment which the employee has had with the old employer or any prior old employer will be deemed to be service of the employee with the new employer.
[152] The clause is in the same terms as the current award provision (clause 12.6), that is, the typographical error identified exists in the current award.
[153] We agree with Ai Group and the CFMMEU, that the use of the words “new employee” are a typographical error. They will be amended to “new employer” in the amended variation determination.
(iv) Clauses B.2.2 and B.3.2 – “Non-successive afternoon or night shifts”
[154] Ai Group and the CFMMEU both submit that the column headings “Non-successive afternoon or night shifts” used in the tables appearing in clauses B.2.2 and B.3.2 require further clarification.
[155] Ai Group submits that a further notation should be put at the bottom of the tables to add clarity and that the notation should reflect that this section applies to shift workers working a roster that does not continue for at least 5 successive shifts, as set out in clause 23.3. 128
[156] The CFMMEU submits that in B.2.2 and B.3.2 the term “Non-successive afternoon or night shifts” should be “less than 5 consecutive shifts”.
[157] We agree that the term “Non-successive afternoon or night shifts” requires further clarification. We will insert a footnote at the tables appearing in clauses B.2.2 and B.3.2 as follows:
“Non-successive afternoon or night shifts apply to shift workers working a roster that does not continue for at least 5 successive shifts as stated in clause 23.3.”
[158] Submissions about the Plumbing and Fire Sprinklers Award variation determination were received from Ai Group, ABI, and Master Plumbers Group (MPG).
5.1 Minor drafting amendments or corrections
[159] The following uncontentious minor amendments were proposed by the various parties:
• the reference to 20XX throughout the draft variation determination be replaced with ‘2020’; 129
• at clauses B.1 and B.2, the cross-reference to “Industry Allowance” at the top of both tables be corrected from ‘clause 21.2(b)’ to ‘clause 21.3(a)’; 130
• at clause B.1, to ensure consistency with the rows titled “Apprentice” and “Adult apprentice (as defined)”, the word “Yes” in the column for “Plumbing trade allowance” for “Trainee apprentices” should be removed and replaced with “Refer 18.2(b)(v) and 18.2(c)(v)” ; 131
• at clause B.3, the word “No” in the column titled “Fire sprinkler fitting trade allowance” for “Worker Level 1” and “Worker Level 2” be removed and replaced with “Refer 21.3(e)(iv)” to reflect that an allowance is paid in some circumstances; 132
• at clause B.3, to ensure consistency, in the column titled “Industry disability allowance and space, height and dirt money allowance”, the “Apprentice” row be changed from “Refer 18.2(b)” to “Refer 18.2(b)(iii) and 18.2(c)(iii)”; 133
• at clause B.3, to ensure consistency, in the column titled “Fire sprinkler fitters adjustment”, the “Apprentice” row be changed from “Refer 18.2(b)” to “Refer 18.2(b)(iii) and 18.2c)(iii)”; 134 and
• at clause F.2 the table should state that the “Tool allowance” is payable on a “per week” basis in accordance with clause 21.8(a), as opposed to a “per hour” basis. 135
[160] We agree with each of the proposed amendments and will incorporate them into the award variation determination.
[161] The following additional minor amendments will also be made:
• At the table appearing in clause C.2.3, the heading “Not registered” in the first column will be amended to “Not registered in accordance with the relevant State legislation”;
• At the table appearing in clause C.2.4, the heading “Not registered” in the first column will be amended to “Not registered in accordance with the relevant State legislation”;
• At the table appearing in clause C.2.5, the heading “Not registered” in the first column will be amended to “Not registered in accordance with the relevant State legislation”; and
• At the table appearing in clause F.1.2, footnote 1 has been inserted under the table and reads “These allowances apply for all purposes”.
[162] No further issues have been raised in respect of this award.
[163] In our 29 January 2020 decision 136 we expressed the provisional view that the variation of the Tranche 3 modern awards in accordance with the published draft variation determinations was necessary to achieve the modern awards objective. In reaching that conclusion we adopted the reasons set out in the decisions at Attachment B of the 29 January 2020 Decision insofar as they are relevant to the Construction awards and, in particular, to the considerations in ss.134(1)(a) to (h), which are addressed in each of those decisions. Subject to the amendments set out in the 29 September 2020 Statement and those detailed in this decision, we confirm our provisional view.
[164] Final draft variation determinations incorporating the changes outlined in this decision will be issued shortly, with a proposed operative date of 1 March 2021.
[165] Interested parties will have until 4.00 pm on Thursday, 17 December 2020 to file any comment in relation to the amendments to the Construction awards to be effected by this decision and our earlier statements and decisions. Any submissions in reply are to be filed by 4pm on Thursday, 21 January 2021. Comments must be sent electronically to amod@fwc.gov.au. Other than in respect of the provisional view expressed at [82], this process is intended to only provide an opportunity to correct any errors; it is not an opportunity to relitigate the issues which have already been determined. We will determine any outstanding issues on the papers.
PRESIDENT
Printed by authority of the Commonwealth Government Printer
<PR724443>
4 [2020] FWCFB 3500 at [178]; PR718846; PR724006
6 Building and Construction General On-Site Award 2010 [PR723873]; Joinery and Building Trades Award 2010 [PR723913]; Mobile Crane Hiring Award 2010 [PR723935]; Plumbing and Fire Sprinklers Award 2010 [PR723946]
7 Ai Group, Submission, 27 October 2020, para 4
8 HIA, Submission, 26 October 2020, para 2.2.1
9 MBA, Submission, 27 October 2020, para 4
10 HIA, Submission, 26 October 2020, para 2.4.1
11 CFMMEU, Submission, 22 October 2020, para 8; ABI & NSWBC, Submission, 22 October 2020, para 12 and 13; AMWU, Submission, 6 October 2020, para 5 and 6; HIA, Submission, 26 October 2020, para 2.4.2
12 HIA, Submission, 26 October 2020, para 2.4.3
13 AWU, Submission, 22 October 2020, para 3; ABI & NSWBC, Submission, 22 October 2020, para 14
14 ABI & NSWBC, Submission, 22 October 2020, para 15
15 ABI & NSWBC, Submission, 22 October 2020, para 15
16 AWU, Submission, 22 October 2020 at para 4; CFMMEU, Submission, 22 October 2020 at para 8; Ai Group, Submission, 27 October 2020at para 5
17 AWU, Submission, 22 October 2020 at para 5; CFMMEU, Submission, 22 October 2020 at para 8
18 HIA, Submission, 26 October 2020, para 2.6.1
19 HIA, Submission, 26 October 2020, para 2.7.6
20 ABI & NSWBC, Submission, 22 October 2020, para 16
21 CFMMEU Submission, 22 October 2020 at para 8; Ai Group, Submission, 27 October 2020, para 6
22 HIA, Submission, 26 October 2020, para 2.9.1
23 AWU, Submission, 22 October 2020 at para 6; CFMMEU, Submission, 22 October 2020 at para 8 Ai Group Submission, 27 October 2020at para 7
24 HIA, Submission, 26 October 2020, para 2.11.1
25 HIA, Submission, 26 October 2020, para 2.13.1.
26 CFMMEU Submission, 22 October 2020 at para 8; AiG, Submission, 27 October 2020, para 8
27 CFMMEU Submission, 22 October 2020 at para 8
28 HIA, Submission, 26 October 2020, para 2.16.1.
29 CFMMEU, Submission, 22 October 2020, para 8
30 ABI & NSWBC, Submission, 22 October 2020, para 24; AMWU, Submission, 26 October 2020, para 7
31 ABI & NSWBC, Submission, 22 October 2020, para 25; AMWU, Submission, 26 October 2020, para 8
32 CFMMEU, Submission, 22 October 2020, para 8. In the 2016 exposure draft, the Commission asked the parties to identify “any training program which applies to the same occupation and achieves essentially the same training outcome as an existing apprenticeship in an award as at 25 June 1997” that they consider should not be covered by this Schedule.
In the next published exposure draft, this question was removed but I do not believe we received any submissions.
Building is subject to the NTW matter which is yet to be determined.
33 CFMMEU, Submission, 22 October 2020, para 8
34 HIA, Submission, 26 October 2020, para 2.1.5
35 HIA, Submission, 26 October 2020, para 2.1.6
36 ABI & NSWBC, Submission, 22 October 2020, at [11
37 HIA, Submission, 26 October 2020, para 2.3.1
38 MBA, Submission, 27 October 2020, para 4
39 MBA, Submission, 27 October 2020, para 6
40 Report to the Full Bench, 13 November 2020
41 MBA, Submission, 27 October 2020, para 8
42 MBA, Submission, 27 October 2020, para 9
43 MBA, Submission, 27 October 2020, para 10
44 CFMMEU, Submission in reply, 29 October 2020, para 4
47 CFMMEU, Submission, 29 October 2020, para 7
49 CFMMEU, Submission, 29 October 2020, para 8
50 CFMMEU, Submission, 29 October 2020, para 9
51 CFMMEU, Submission, 29 October 2020, para 11
52 HIA, Submission, 26 October 2020, see para 2.5.3
53 HIA, Submission, 26 October 2020, see para 2.5.4
54 CFMMEU, Submission, 22 October 2020 at para 8; HIA Submission, 26 October 2020, see para 2.7.1 – 2.7.3
55 [2020] FWCFB 5409 at [6] and [14]
56 [2020] FWCFB 5409 at [113] to [114]
57 HIA, Submission, 26 October 2020, see para 2.7.2
58 HIA, Submission, 26 October 2020, see para 2.7.4 – 2.7.5
59 HIA, Submission, 26 October 2020, see para 2.7.8
60 MBA, Submission, 7 October 2020,para 14
61 MBA, Submission, 7 October 2020, paras 15-17
63 CFMMEU, Submission, 22 October 2020 at para 8
64 CFMMEU, Submission, 22 October 2020 at para 8; AWU, Submission, 22 October 2020 at para 7
65 HIA, Submission, 26 October 2020, para 2.10
66 MBA Submission, 27 October 2020, para 19
68 MBA Submission, 27 October 2020, para 20
69 MBA Submission, 27 October 2020, para 21-23
70 MBA Submission, 27 October 2020, para 26
71 MBA Submission, 27 October 2020, para 28
72 CFMMEU, Submission in reply, 29 October 2020
73 CFMMEU, Submission in reply, 29 October 2020, paras 6 and 9
74 HIA, Submission, 26 October 2020, paras 2.1.1 to 2.1.4.
75 AWU, Submission, 22 October 2020 at para 8; CFMMEU, Submission, 22 October 2020 at para 8;
76 HIA, Submission, 26 October 2020, paras 2.13.2 and 2.13.3.
77 HIA, Submission, 26 October 2020, para 2.14.1
78 HIA submission, 26 October 2020, see para 3.9.1
81 CFMMEU, Submission, 22 October 2020, para 8
82 CFMMEU, Submission, 22 October 2020, para 8
83 ABI & NSWBC, Submission, 22 October 2020, para 22; HIA, Submission, 26 October 2020,para 2.21
84 CFMMEU, Submission, 22 October 2020, para 8
85 Ai Group, Submission, 27 October 2020, para 9
86 Ai Group, Submission, 27 October 2020, para 11
87 HIA, Submission, 26 October 2020, see para 3.3.1
88 Ai Group, Submission, 27 October 2020, see para 12; CFMMEU, Submission, 22 October 2020, see para 9
89 CFMMEU, Submission, 22 October 2020, see para 9
90 Ai Group, Submission, 27 October 2020, see para 14
91 ABI & NSWBC, Submission, 22 October 2020, see paras 30-31
92 HIA, Submission, 26 October 2020, see para 3.2.1
93 HIA, Submission, 26 October 2020, see para 3.4.1 and 3.4.2
94 CFMMEU, Submission, 22 October 2020, see para 9
95 HIA submission, 26 October 2020, see paras 3.4.3- 3.4.4
96 CFMMEU, Submission, 22 October 2020, see para 9
97 CFMMEU, Submission, 22 October 2020, see para 9
98 HIA submission, 26 October 2020, see paras 3.1.4-3.1.7
99 HIA submission, 26 October 2020, see paras 3.1.1-3.1.3
100 CFMMEU, Submission, 22 October 2020, see para 9
101 Ai Group submission, 27 October 2020, see para 12
102 HIA submission, 26 October 2020, see paras 3.6.1
103 HIA submission, 26 October 2020, see paras 3.6.2-3.6.5
104 HIA submission, 26 October 2020, see para 3.9.1
107 CFMMEU, Submission, 22 October 2020, see para 9
110 HIA, Submission, 26 October 2020, para 3.10.1
111 HIA submission, 26 October 2020, see para 3.10.2-3.10.3
112 HIA submission, 26 October 2020, see para 3.10.4; Attachment A
113 HIA submission, 26 October 2020, see para 3.10.5
114 HIA submission, 26 October 2020, see para 3.10.5
115 CFMMEU, Submission, 22 October 2020, see paras 9 and 6
116 ABI & NSWBC, Submission, 22 October 2020, see para 26
117 ABI & NSWBC, Submission, 22 October 2020, see para 27
118 ABI & NSWBC, Submission, 22 October 2020, see para 29
119 HIA submission, 26 October 2020, see para 3.10.6
120 CFMMEU, Submission, 22 October 2020, see para 9
121 Ai Group, Submissions, 27 October 2020 at [16]
122 Ai Group, Submissions, 27 October 2020 at [17]
123 Ai Group, Submissions, 27 October 2020 at [18] and CFMMEU, Submission, 22 October 2020 at [10]
124 Ai Group, Submissions, 27 October 2020 at [19] and CFMMEU, Submission, 22 October 2020 at [10]
125 Ai Group, Submissions, 27 October 2020 at [20] and CFMMEU, Submission, 22 October 2020 at [10]
126 Ai Group, Submissions, 27 October 2020 at [21]
127 CFMMEU, Submission, 22 October 2020 at [10]
128 Ai Group, Submissions, 27 October 2020 at [22]
129 Ai Group, Submissions, 27 October 2020 at [24].
130 Ai Group, Submissions, 27 October 2020 at [25] and ABI & NSWBC Submissions, 22 October 2020 at [32] and [34].
131 ABI NSWBC, Submissions, 22 October 2020 at [33]. Note the ABI submits that in clause B.1, “Yes” should be replaced with “Refer 18.2(b)(iv) and 18.2(c)(v)”. The reference to clause 18.2(b)(iv) appears to be an error and that it should refer to clause 18.2(b)(v) which provides for the plumbing trade allowance for trainee apprentices in the exposure draft published on 8 October 2020.
132 ABI & NSWBC Submissions, 22 October 2020 at [35] – [37].
133 ABI & NSWBC Submissions, 22 October 2020 at [38].
134 ABI & NSWBC Submissions, 22 October 2020, at [39]
135 Ai Group, Submissions, 27 October 2020 at [26]; ABI & NSWBC, Submissions, 22 October 2020 at [40]; MPG, Submissions, 22 October 2020, at [4].