| [2019] FWCFB 8564 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.156—4 yearly review of modern awards
4 yearly review of modern awards—Construction awards
(AM2016/23)
Building, metal and civil construction industries | |
VICE PRESIDENT HATCHER |
SYDNEY, 18 DECEMBER 2019 |
4 yearly review of modern awards – Group 4 Awards – Construction awards – 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 – substantive matters.
[1] On 26 September 2018 we issued a decision (September 2018 Decision) dealing with the substantive claims in relation to the Building and Construction General On-Site Award (Building Award), the Joinery and Building Trades Award 2010 (Joinery Award), the Mobile Crane Hiring Award 2010 (Mobile Crane Award) and the Plumbing and Fire Sprinklers Award 2010 (Plumbing Award), collectively the “Construction Awards”. 1
[2] In this decision, we determined most of the substantive claims relating to the Construction Awards and also identified some remaining claims and issues which required further consideration. Draft variation determinations were then issued on 23 November 2018 (the 2018 draft determinations) and parties were invited to comment on the form of these determinations. 2 The following parties made submissions in relation to the determinations suggesting a range of typographical and drafting amendments:
• the Australian Industry Group (Ai Group);3
• Master Builder’s Australia (MBA);4
• the Housing Industry Association (HIA);5
• the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU); 6 and
• the Master Plumbers Group (MPG).7
[3] Submissions filed by the CFMMEU raised a claim that variation to the rest and recreation provisions in the Building Award determined in the September 2018 Decision should be extended to the Joinery Award and the Mobile Crane Award. 8 On 25 February 2019 the Commission issued directions asking parties to respond to this submission.9 Pursuant to these directions, submissions were filed by the Ai Group,10 Australian Business Industrial and the NSW Business Chamber (ABI),11 the HIA12 and the MBA13 opposing the CFMMEU’s position.
[4] In the September 2018 Decision we determined that the array of provisions providing for disability allowances in the Building Award was not consistent with the modern awards objective 14 and that most of these disability allowance provisions should be abolished and replaced with enhanced industry allowances applicable to the major sectors of the building and construction industry.15 We set out a provisional view concerning the quantum of the proposed sectorial industry allowances and invited interested parties to make submissions and submissions in reply.16
[5] On 31 October 2019 we issued a decision finalising the quantum of the sectorial industrial allowances and the allowances to be retained. 17 A draft determination to give effect to the variations determined was annexed to the decision. Parties were given a period of 14 days to comment on the form of the draft determination. Submissions were received pursuant to these directions by MBA,18 the HIA,19 the Ai Group,20 and the CFMMEU.21
[6] The September 2018 Decision also expressed a range of provisional views and invited further submissions in relation to the following outstanding matters in the Building Award:
• Camping allowance at [151]-[152]
• Tester coverage claim at [244]
• Utility locator claim at [246]
• Ordinary hours of work at [412]-[413]
• Foreperson’s and supervisors at [451].
[7] Interested parties were directed to file written submissions and submissions in reply in relation to these issues. 22 Submissions were subsequently received from the CFMMEU, 23 the Australian Manufacturing Workers’ Union (AMWU), 24 the AWU,25 the CEPU,26 the Ai Group,27 ABI,28 the HIA29 and MBA.30
[8] We will now turn to the outstanding issues from the September 2018 Decision.
[9] In the September 2018 Decision we determined that there is a lack of clarity associated with the camping allowance provision in clause 24.5 of the Building Award and observed that this lack of clarity extends to other parts of clause 24 as well. We expressed the provisional view in paragraph [151] of the decision that clauses 24.4, 24.5 and 24.6 in the Building Award should be replaced with the following:
“24.4 Reimbursement of meal expenses for living in camp
Where it is not possible for the employer to provide meals free of charge directly to employees required to live in camp, the employer shall:
(a) reimburse employees for food reasonably purchased by the them for their own use or for the reasonable cost of meals consumed in the nearest recognised centre; and
(b) pay an allowance of $201.48 for every complete week the employee is available for work, or in the case of broken weeks $28.76 per day including any Saturday or Sunday if the employee is in camp and available for work on the working days immediately preceding and succeeding each Saturday and Sunday. If an employee is absent without the employer’s approval on any day, the allowance will not be payable for that day and if such unauthorised absence occurs on the working day immediately preceding or succeeding a Saturday or Sunday, the allowance will not be payable for the Saturday and Sunday.
24.5 Camp conditions
(a) The employer must ensure that a camp is maintained in a clean and hygienic condition.
(b) Where an employer has established a camp site and provides facilities for employees living in their own caravan, the employer must provide reasonable space for the caravans.”
[10] Interested parties were asked to file written submissions within 28 days if they wished to respond to the provisional view. Only MBA and the Ai Group filed submissions addressing this issue. MBA supported the provisional clauses, 31 and they were not opposed by the Ai Group. 32 Accordingly the Building Award will be varied consistent with our provisional view. We consider that this will achieve the modern awards objective, having regard in particular to s 134(1)(g).
[11] In the September 2018 Decision we addressed the AWU claim seeking to vary the classification structure in Schedule B of the Building Award to add “Tester-soil, concrete or aggregate” to the list in clause B.2.2(c) of broadbanded award classifications. It sought this variation in order to “clarify” that employees engaged to perform testing work on soil, concrete and aggregate are classified at the CW/ECW2 level. 33 We observed in the September 2018 decision that the claim had substantial implications for award coverage of such testing work arising out of previous litigation concerning approval of the Coffey Materials Testing Services Agreement 2012-2016. In that case, Coffey, which specialised in such testing work and which performed it partially on construction sites and partially offsite, was found by a Full Bench to be covered by the Manufacturing and Associated Industries and Occupations Award 2010 (Manufacturing Award).34 The Full Bench found that the relevant classifications in the Manufacturing Award were more appropriate that those in the Building Award, which did not specifically mention laboratory or testing work. We said in the September 2018 Decision that the AWU claim would re-open the question of award coverage that was determined in the Coffey litigation, but it had not demonstrated that coverage of the work under the Manufacturing Award did not meet the modern awards objective. We concluded that the claim could not be granted on the basis advanced by the AWU.
[12] Nevertheless, we noted that clause 4.10(b)(v) of the Building Award includes in its coverage, as part of the definition of “civil construction”, the “testing of soil, concrete and aggregate when it is carried out at a construction site in or in connection with work under clause 4.10(b)(i)” and therefore clearly contemplated coverage of testing work in at least some circumstances. However, there is no classification in the Building Award which establishes a classification and a rate of pay for the performance of such work, and therefore we determined to call for further submissions as to whether, without disturbing the coverage of either the Building Award or the Manufacturing Award, a variation should be made to the classification structure in the former award to provide a minimum rate of pay for those employees covered under clause 4.10(b)(v) or, alternatively, whether clause 4.10(b)(v) should be removed on the basis that it serves no utility.
[13] In response to this, MBA submitted that clause 4.10(b)(v) should be removed on the basis that it serves no utility because it could not identify an employer member which engaged employees under the Building Award, as it was common industry practice for such work to be undertaken by specialist companies who perform testing off-site. 35 ABI made the same submission in order to avoid any overlap in coverage, avoid complexity and maintain the outcome determined in respect of Coffey,36as did the Ai Group.37
[14] The AMWU submitted that the work of testers of soil, concrete and aggregate is part of the “Technical Field” of work which is defined in the Award in clause B.1.13 of Schedule B, and that the work of laboratory, scientific and engineering testing work had always been understood to be included in the technical field of work. In this respect the Building Award reflects clause B.3.6 of Schedule B of the Manufacturing Award, which currently covers the work of the soil testers within the technical field of work within the Manufacturing Award. 38 It proposed that, in order to confirm the coverage of the Building Award with respect to this work, the award should be varied by adding the following paragraph to the definitions of CW/ECW2 to create a new classification of General Technician:
(e) General Technician
A General Technician is an employee who has the equivalent level of training and/or experience to a CW /ECW 2 worker but who performs work in the technical fields as defined in B.1.13, such as testing (Tester- Soil, Concrete and Aggregate). 39
[15] The AWU submitted the reference to testing work should be inserted into the Construction Worker Level 2 classification in the Building Award. 40 The omission of such a classification during the award modernisation process must have been inadvertent, there is no alternative explanation why the definition of “civil construction” in clause 4.10(b) of the Building Award contains a deliberately worded inclusion of testing work on a construction site but the construction worker classifications fail to identify an appropriate classification for testing work.41 The AWU continued to rely on its previously evidence and submissions to demonstrate that the CW2 classification is the appropriate classification for testing work performed on a construction site which, it contended, already covered the work.42
[16] The CFMMEU supported the position of the AWU and AMWU that the CW/ECW2 level is appropriate for classification of those conducting the testing of soil, concrete and aggregate at a construction site. 43 It submitted that the testing of concrete, particularly slump testing when concrete is delivered to a site, is an everyday activity in the building and construction industry and is work that can only be undertaken on site when the concrete is delivered. It submitted that therefore clause 4.10(b)(v) should be retained as it is work performed on-site by construction workers and the classification structure under the Building Award should be varied accordingly.44
[17] Having considered these submissions, the conclusion we have reached is that clause 4.10(b)(v) should be removed from the Building Award. It has not been demonstrated that the provision has any practical utility in that there is no evidence that any employer operating in the “on-site building, engineering and civil construction industry” (by reference to which the coverage of the Building Award operates under clause 4.1) actually performs this testing work. Further, there is a lack of legal utility in that clause 4.2(a) of the Building Award provides that it does not cover employers covered by the Manufacturing Award. Because testing work plainly falls within the coverage of the Manufacturing Award described in clause 4.9(c)(ii), as was found to be the case in the Coffey litigation, this exclusion robs clause 4.10(b)(v) of any effect. Clause 4.10(b)(v) is therefore conducive only of confusion. We consider that its removal would ensure that the modern awards objective is met, and in this respect we place weight upon s 134(1)(g). In respect of s 163(1), we are satisfied that the removal of clause 4.10(b)(v) of the Building Award will achieve unambiguous and appropriate coverage of testing work under the Manufacturing Award.
[18] In the September 2018 Decision we set out the submission of Mr Thomas Walsh seeking to vary Schedule B of the Building Award to include a specific classification for a “Utility Locator” to cover persons who perform the function of detecting underground infrastructure and assets such as pipes, electricity cables and fibre optic cables, using “sophisticated electronic equipment”. 45 We observed that this work is both safety-critical and necessary to avoid costly damage to critical infrastructure and expressed satisfaction that utility location is a field of work of significance to the building and construction industry, and that there are a number of businesses which specialise in this work. Prima facie there should be an award classification applying to this work.46 We invited further submissions to progress the issue, addressing the following matters:
• whether any existing award classification covers utility locators (whether under the Building Award or any other award);
• the training, qualifications and accreditation (if any) required to perform utility location work;
• the rates of pay currently paid in the market for this work;
• if there is no current award classification, which award and which classification should apply; and
• any other relevant matter. 47
[19] All the submissions subsequently received opposed amending the Building Award, but were however based upon different understandings of current award coverage differed. MBA submitted that the work of “Utility Locator” is appropriately captured by the Surveying Award 2010 (Surveying Award). 48 The Surveying Award, at clause 4.1, sets out coverage as follows:
4.1 This occupational award covers employers throughout Australia who employ professional surveyors and other employees in the classifications listed in Schedule B—Classification Structure and Definitions and their employees to the exclusion of any other modern award.
[20] MBA pointed to clause B.1.1 of Schedule B of the Surveying Award in support of its submission that the Surveying Award covered utility location work on an occupational basis. Clauses B.1.1 defines “Surveying” for the purpose of the classification structure as follows (emphasis added):
Surveying means the act or process of determining the form, contour, position, area, height, depth or any other similar particulars of the earth’s surface, whether on land or water or of any natural or artificial features on, below or above any part of that surface or planning the position or the length and direction of the bounding lines of any part of that surface, or of any such natural or artificial features thereof and includes the making or obtaining of a plan of plans thereof.
It includes the acquisition, management, interpretation and analysis of data; the portrayal and dissemination of derived information in written, graphical, numerical, digital, photographic or magnetic media; and associated consulting, design, and plan preparation. In addition and when performed by employees in the classifications listed in Schedule B – Classification Structure and Definitions, Surveying also includes administration, management and technical support activities.
[21] The MBA submitted that the qualification required to perform utility location work usually requires the completion of the RIICCM202D - Identify, locate and protect underground services unit of competency which is available as a stand-alone course or can be undertaken as part of a broader qualification at AQF Level II or Level III. As a result the holder of this unit with a Level III qualification is likely to be classified as either Level 10 or Level 9 at clause B.1.5 or B.1.6 of Schedule B of the Surveying Award. 49In response to our query regarding market rates of pay for this work, MBA submitted that utility locating work is performed by specialist companies who provide services as required and research indicates that the market rates of pay for this type of work is on average $95,462 per year.50 MBA also submitted that the work of a “utility locator” involves duties that do not represent “construction work” pursuant to the definitions contained within clause 4.10 of the Building Award. For these reasons, MBA opposed any variation of the Building Award to include the work of “Utility Locators”.51
[22] The Ai Group took the same position as MBA, submitting that the Surveying Award as an occupational award covered the work described by Mr Walsh. 52
[23] The CEPU was also opposed to Mr Walsh’s proposal to vary the Building Award. Unlike MBA and the Ai Group, it submitted that utility location was already adequately covered by classifications in five modern awards, namely the Electrical, Electronic and Communications Contracting Award 2010, the Electrical Power Industry Award 2010, the Plumbing and Fire Sprinklers Award 2010, the Telecommunications Services Award 2010 and the Building Award. The CEPU submitted that there is no recognised training or accredited course to become a qualified “utility locator” nor any agreement under any industry skills package for such a classification, but that the work of a “utility locator” utilised skills acquired under a variety of certificate and diploma qualifications. It identified RIICCM202D – Identify, locate and protect underground services as a unit of competency for an array of certificate II and III qualifications in the civil construction sector, which are covered in the current classification structure of the Building Award at CW/ECW2 or CW/EWC3. 53
[24] The CFMMEU supported the CEPU’s submission that the work and skills identified by Mr Walsh are covered by the existing classification structure in the Building Award. 54 It said that the competency standard RIICCM202D - Identify, Locate and Protect Underground Services is part of the Resources and Infrastructure Industry Training Package which includes civil construction. The competency standard is included in multiple civil construction qualifications, clearly demonstrating the work can be performed by employees at either the CW2 or CW3 level.55 The CEPU pointed to the VAC Group Employees On-site Agreement 2016-2020 as indicative of market rates for this work, under which casual positions were paid at $25-34.99 per hour.56 The AWU took a similar position to that of the CEPU and the CFMMEU.57
[25] We are satisfied, having regard to the coverage provision of the Surveying Award and its definition of “Surveying” as set out above, that it covers the work of a “utility locator” on an occupational basis and their employers. It applies to the exclusion of any other modern award, so that it seems to us that it would apply to any “utility locator” employed on a building and construction site to the exclusion of the Building Award. The Surveying Award provides an appropriate safety net of minimum rates and conditions which meets the modern awards objective. Accordingly, there is no necessity for any variation to the Building Award to provide for an award classification for this work.
[26] In the September 2018 Decision we dealt with a range of claims and submissions concerning clause 33, Ordinary hours of work of the Building Award. We stated the following overall conclusions:
“[410] Consistent with the general approach contained in the August 2017 Statement, we consider that clause 33 should be varied in the following major respects in order for it to achieve the modern awards objective:
(1) Employers will have the capacity to roster RDOs either on the basis that all employees will take their RDOs on single day in a 20-day work cycle, or alternatively employees may be rostered to take their RDOs on different days during the cycle. In this respect we accept the submissions made by the HIA.
(2) As a concomitant of the capacity of the employer to roster employees’ RDOs on different days across the 20-day work cycle, the employer will be required to issue a written roster seven days in advance of the commencement of the work cycle.
(3) All employees will be given the capacity to bank RDOs, as the HIA submitted should be the case.
[411] There are some additional changes we will make to clause 33 which were not addressed in the proposed variation contained in the August 2017 Statement. We also propose to alter aspects of that proposed variation, specifically:
(1) The clause will be reformatted and renumbered to give it a more logical structure.
(2) We will add a daily maximum number of ordinary hours for casual employees, consistent with the submissions of the CFMMEU, and also for part-time employees. Our provisional view is that this daily maximum should be set at eight hours consistent with the position applying to full-time employees.
(3) In relation to working rostered days off, we will provide that this may occur by agreement with the employee without restriction as to the circumstances, or upon the provision of 48 hours’ notice in specified circumstances. We will also make it clear that an employee who works on a RDO will retain the accrued RDO in addition to the penalty rates to be paid for working on the RDO.
(4) We will remove the prohibition, currently contained in clause 33.1(b)(i), upon part-time employees working on a rostered day off.
(5) For reasons earlier explained, we consider that the current clause 33.1(e)(iii) should be deleted altogether rather than amended in accordance with the re-drafted provision proposed by the AWU. There was no evidence before us that the provision has any practical operation. Enterprise agreements applicable to current tunnelling projects do not disclose the operation of a 30-hour week in any circumstances. The rationale for the provision is not discoverable. To the extent that it may possibly reflect a safety standard, it is sufficient if the generally-applicable hours provisions are made subject to any relevant safety standard for underground work. This may be combined with a provision to the same effect for working in compressed air.” 58
[27] We then expressed the provisional view that the existing clause 33 should be replaced with the following:
33. Ordinary hours of work
33.1 Except as provided in clause 34–Shiftwork, the ordinary working hours will be 38 per week (averaged over a 20 day four week cycle to allow for the accrual and taking of rostered days off (RDO)), worked between 7.00am and 6.00pm Monday to Friday in accordance with the following procedures:
(a) Hours of work and accrual towards rostered days off
Ordinary working hours will be eight 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 7.6 hours towards a RDO each 19 days of ordinary hours worked.
(b) Accrual towards an RDO on days not worked
An employee will accrue 0.4 of one hour of each day towards a RDO for any public holiday where an employee is not required to work and for each day of paid leave taken. This will not apply on a day an employee takes a RDO.
(c) Taking the accrued RDO
(i) An accrued RDO will be taken in one of the following ways:
• on one day during a 20 day four week cycle on which all employees will take a RDO in accordance with a written roster fixed by the employer and issued 7 days before the commencement of that cycle; or
• on a day during a 20 day four week cycle during which particular employees will take their RDOs on different days in accordance with a written roster fixed by the employer and issued 7 days before the commencement of that cycle; or
• by any other method that is agreed by the employer and a majority of that employer’s employees and recorded in writing.
(ii) The means by which a written roster under clause 33.1(c) may be issued include but are not limited to the following:
• by giving an employee a copy of the written roster; or
• by placing a copy of the written roster on the notice board(s) at the workplace; or
• by sending the written roster to the employee by post in a prepaid envelope to an employee’s usual residential or postal address, by facsimile transmission, or by email or other electronic means; or
• by any other means agreed to by the employer and employee.
(iii) A roster issued in accordance with clause 33.1(a)(i) must not require an employee to take an RDO on a day that is a public holiday.
(d) RDO banking
An employee and the employer may agree to allow the employee to bank an accrued RDO that would otherwise be taken under one of the ways fixed under subclause 33.1(c)(i) and in that event the following will apply:
(i) The number of accrued RDOs banked must not exceed five at any time.
(ii) If an accrued RDO is banked, an employee is required to work on the day the employee’s RDO was otherwise fixed under clause 33.1(c)(i). In that event subclause 33.1(e) does not apply.
(iii) An accrued RDO that is banked will be taken on a day that is agreed between employer and the employee and on which ordinary working hours may be worked. An employer must not unreasonably withhold agreement for an employee to take a banked RDO on a particular day requested by the employee.
(iv) The employer must maintain a record of:
• the number of accrued RDOs banked by each employee; and
• the date on which each employee takes a banked accrued RDO.
(e) Requirement to work on a day that is a RDO
(i) The employer may require an employee to work on an RDO that is fixed in accordance with clause 33.1(c)(i) by agreement with the employee, or upon the provision of not less than 48 hours’ notice where the work to be performed is necessary because of unforeseen delays to a particular project or a section of it or any other reasons arising from unforeseen or emergency circumstances on a project.
(ii) An employee who works on a day rostered for the taking of a RDO in accordance with 33.1(e)(i) will be paid penalty rates as prescribed for Saturday work in clause 37 –Penalty rates, and will retain the accrued RDO.
(f) Entitlement on termination of employment
If an employee’s employment is terminated for any reason then, in addition to any other payment to which the employee becomes entitled the employer must pay to the employee:
(i) an amount equal to the payment the employee would have received had the employee taken any accrued RDO yet to be taken and any banked accrued RDO; and
(ii) an amount equal to the payment the employee would have received had the employee taken an RDO for the period representing the number of hours and minutes that have accrued towards an RDO.
33.2 Agreement on working other than the rostered day off cycle
Where an employer and the majority of employees employed at a particular enterprise agree that due to the nature of an employer’s operations it is not practicable for an employee to be provided with an RDO in each four week cycle, they may agree to an alternate method of arranging working hours, provided that the ordinary hours worked in any one week from Monday to Friday are within the spread of hours set out in clause 33.1 and that no more than eight ordinary hours are worked in any one day. Any such agreement shall be recorded in writing.
33.3 Hours of work – part-time employees
(a) The daily ordinary hours of work of a part-time employee shall not exceed 8 hours.
(b) Notwithstanding the provisions of this clause and clause 34 – Shiftwork, an employee working on a part-time basis may be paid for actual hours worked and in such instances the employee will not be entitled to accrue time towards an RDO.
(c) An employer and employee may agree that the part-time employee accrues time towards an RDO as provided by this clause and clause 34–Shiftwork. In such instances, the part-time employee will accrue pro rata entitlements to rostered days off in accordance with subclause 33.1(a).
33.4 Hours of work – casual employees
The daily ordinary hours of work of a casual employee shall not exceed 8 hours.
33.5 Other conditions for working ordinary hours
(a) Early starts
The working day may start at 6.00am or at any time between that hour and 8.00am 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.
(b) Washing time
The employer will provide sufficient facilities for washing and five minutes will be allowed before lunch and before finishing time to enable employees to wash and put away gear.
(c) Work in compressed air and underground
The working hours of employees working in compressed air or underground shall be subject to any applicable safety standards. 59
[28] We called for interested parties to make submissions in respect of the proposed new provision, and we received a number of submissions in response thereto.
[29] The HIA’s submission opposed clause 33.4, which sets maximum daily ordinary hours for casual employees at 8 hours. It submitted that the current position should be retained which, it contended, was that casuals received overtime rates only if they worked in excess of 38 hours per week or outside the spread of ordinary hours. The HIA expressed concern that the new provision was at odds with the 2013 decision in Master Builders Australia Limited 60, where an application made by HIA to vary clause 14.2 of the Building Award to include RDOs as one of the modern award matters which does not apply to casual employees due to the casual loading was rejected.61
[30] MBA submitted that the effect of the new clause 33.1(e)(ii) appears to reflect the submissions from the AWU and CFMMEU and allowed for an employee who works an RDO in emergency circumstances to be paid Saturday penalty rates in addition to being entitled to an RDO. It contended that this interpretation is incorrect and therefore the notion that the Commission’s initial provisional view of clause 33.1 would have resulted in a loss of entitlement is also incorrect. 62 It submitted that the words “in addition to accrued entitlements” in the existing clause 33.1(a)(vi) are linked to their use in clause 33.1(a)(i), where the term “accrued entitlements” references allowances at clauses 25.2 to 25.7. That provision clarifies that these allowances form part of the payment for an RDO even though no work is performed. Therefore the words “in addition to accrued entitlements” at 33.1(a)(vi) is a contextual reference to clauses 25.2 to 25.7, clarifying they remain payable for work performed on an RDO in emergency circumstances, just as they would be payable if the RDO was taken and no work performed.63 It submitted that clause 33.1(e)(ii) should be re-drafted to read:
(ii) An employee who works on a day rostered for the taking of a RDO in accordance with 33.1(e)(i) will, in addition to accrued entitlements, be paid penalty rates as prescribed for Saturday work in clause 37 –Penalty rates, and will retain the accrued RDO.” 64
[31] MBA also expressed opposition to the establishment of a maximum number of daily ordinary hours for casual and part-time employees in clauses 33.3 and 33.4. It submitted that there is no current ambiguity with reference to ordinary hours of work for casual employees, and that such a clarification is unnecessary. It submitted that the current position is that casual employees work a maximum of 38 ordinary hours per week within the span of hours under clause 33.1, and this satisfied s 134(1)(a) and (d)(i) of the FW Act as it sets out circumstances in which overtime is triggered. Further, MBA submitted the fixing of the maximum daily hours for casual and part-time employees would be inconsistent with sections 134(d), (f) and (h) of the FW Act by introducing a level of rigidity that does not exist within the Building Award’s current provision and operation. The rigidity would limit the number of ordinary hours worked in a day to a maximum of eight, whereas the existing daily span allows for a total of eleven. 65
[32] The CFMMEU submitted that the proposed clause 33.4 was consistent with the current position whereby there is a maximum of eight ordinary hours per day Monday to Friday for all employees, whether the hours are worked under an RDO system or non-RDO system. It submitted that the employers’ proposal would result in ordinary hours for casual employees being increased to 11 hours per day, which would reduce the existing safety net. 66 It also supported the proposed clause 33.1(e)(ii), and said that the expression “accrued entitlements” in the existing clause 33.1(a)(vi) plainly referred to the accrual of a RDO and not the allowances in clauses 25.2 to 25.7.
[33] The AMWU supported the CFMMEU’s submission that the current operation of clause 33.1 is such that it limits the daily maximum number of ordinary hours for casuals to eight. They stated that when read as a whole the clause provides for a maximum of eight ordinary hours per day and there is otherwise nothing in clause 33.1 which excludes casual employees from that maximum. 67 The AMWU accordingly supported the Commission’s proposed variation to clause 33.1 as it correctly and expressly confirms the existing operation of the clause by confirming that the daily ordinary hours of work for a casual are a maximum of eight.68
[34] We have decided that we should not depart from the provisional views concerning clause 33 expressed in the September 2018 Decision, and the Building Award shall be varied to include the new clause proposed in that decision which we have earlier reproduced. We reject the submissions advanced by MBA and the Ai Group against that position. In respect of the proposed clauses 33.3 and 33.4, we confirm the view we expressed in the September 2018 Decision as follows:
“[407] … clause 33 in its current form does not provide for any maximum number of daily ordinary hours for casual employees (after which overtime penalty rates would be payable). Nor does it do so for part-time employees. In this respect also, the clause is not a fair and relevant standard, having regard in particular to the needs of the low paid (s.134(1)(a)) and the need to provide additional remuneration for employees working overtime (s.134(1)(da)(i) of the Act).”
[35] There is no dispute that, under clause 33.1 as it currently stands, the maximum daily ordinary hours for full-time employees is eight, notwithstanding a daily span of hours of 7.00am to 6.00pm. No evidence or persuasive submission has been advanced to justify a different position with respect to part-time or casual employees.
[36] In respect of the proposed clause 33.1(e)(ii), we do not accept the MBA’s submission that the expression “accrued entitlements” in the existing clause 33.1(a)(vi) referred to fares and travel patterns allowances in clauses 25.2-25.7 rather than to the accrued RDO. In the context of a provision concerning RDOs which are accrued by working an amount of overtime each week without pay, the expression “accrued entitlements” is naturally to be read as referring to the RDO which has been accrued (and is not to be lost because work is required to be performed on the scheduled RDO). It is not apposite to refer to fares and travel patterns allowances, which do not accrue in any sense. It is true that existing clause 33.1(a)(i) refers to payment for RDOs including “accrued entitlement to the allowances prescribed in clauses 25.2 to 25.7”, but the allowances there are specifically referred to, unlike clause 33.1(a)(vi). In any event, we have decided that such allowances will no longer be payable on RDOs, 69 so the retention of the expression “accrued entitlements” in the new provision would make no sense even on MBA’s reading of the current provisions.
[37] We consider that the inclusion of the new clause 33 is necessary to meet the modern awards objective for the reasons stated in the September 2018 Decision.
[38] In the September 2018 Decision we dealt with a claim advanced by the AMWU to vary clause 43.2(b) of the Building Award. Clause 43 as a whole concerns forepersons and supervisors in the metal and engineering construction sector, and the AMWU claim sought to clarify the operation of the payment provisions of the clause. We stated the following conclusions and provisional views about the claim and the provisions generally:
“[449] It may readily be accepted that there are difficulties in the way that clause 43 is drafted. Clause 43.2(b), read literally, provides that forepersons and supervisors are not to receive the range of entitlements referred to. It is difficult to identify what offsetting advantage such employees receive under the clause to justify the loss of these entitlements, since presumably the additional remuneration referred to in clause 43.2(a) is to take account of the additional work value involved in supervisory duties rather than to “buy out” the benefits specified in clause 43.2(b). Clause 43.5(a) is confusing, because it refers to employees “covered by this part” (presumably “this part” being clause 43 as a whole), and it refers to conditions of employment applying to such employees being no less favourable “than those prescribed under this award”, without identifying the conditions of employment. Clause 43.5(a) tends to support the proposition that the entitlements referred to in clause 43.2(b) are not intended to be applicable at all to forepersons and supervisors. But this is at odds with clause 43.5(b) which allows, by custom and agreement, time off to be taken in lieu of overtime and shift work – entitlements which, under clause 43.3(2)(b) are said not to be payable to forepersons and supervisors.
[450] Clause 43 as it stands does not meet the modern awards objective at least because it fails to set a simple and easy to understand standard for compliance. However we do not consider that the difficulties we have identified should be resolved simply by varying the provision in the manner proposed by the AMWU. There are more significant difficulties in clause 43 which the AMWU variations would not resolve. The prescribed method of calculating the wages of forepersons and supervisors is inherently complex. It is doubtful whether the provision properly sets a safety net minimum rate in accordance with the modern awards objective. Clause 43 also sets specific provisions for the payment of wages to forepersons and supervisors (clause 43.3) and notice periods (clause 43.4), for reasons that are not apparent.
[451] Our provisional view is that the appropriate course is to restructure and simplify clause 43 so that it does no more than set properly fixed minimum rates for forepersons and supervisors, either by way of a minimum weekly rate of pay or an allowance. The dollar amounts currently prescribed by clause 43.2 would appear to be appropriate for this purpose. We will invite further submissions in relation to this provisional view before we make a final decision.”
[39] The AMWU, the Ai Group and MBA made submissions in response to our provisional view. The AMWU proposed that we adopt a mechanism such as the one currently contained at clause 24.1(g) of the Manufacturing Award, which provides:
(f) Supervisor/Trainer/Coordinator—Levels I and II
(a) The minimum hourly wage for a Supervisor/Trainer/Coordinator—Level I is 122% of the minimum hourly wage paid to the highest technically qualified employee supervised or trained or 104.3% of the standard rate per hour, whichever is the higher.
(b) The minimum hourly wage for a Supervisor/Trainer/Coordinator—Level II is 115% of the minimum hourly wage paid to the highest paid employee supervised or trained or 113.1% of the standard rate per hour, whichever is the higher.” 70
[40] The AMWU submitted that this mechanism is simple, easy to understand, provides a properly fixed minimum rate and has been applicable in the industry since before the creation of the Metal, Engineering and Associated Industries Award 1998. 71
[41] The Ai Group strongly opposed our provisional view to restructure and simplify clause 43 on the grounds that it “would have sweeping adverse consequences for employers covered by the Award and would disrupt the employment arrangements of a large number of forepersons and supervisors”. 72 It submitted that the following aspects of clause 43 are essential and need to be maintained:
• Clause 43.1 limits the application of clause 43 to forepersons and supervisors who are in the metal and engineering sector and employed by the employers with 30 or more employees are covered by the award.
• Clauses 43.3 and 43.3 provide flexibility for wages to be paid monthly (the most common pay period for such employees).
• Clause 43.5 is intended to ensure forepersons and supervisors are not disadvantaged in an overall sense when compared to other employees covered by the Building Award. This wording recognises forepersons and supervisors are typically paid a salary and do not receive overtime, shift or weekend penalties.
• Clause 43.6 defines “Foreperson/supervisor” and “General/supervisor” for the purposes of the coverage clause and the minimum wage rates in clause 43.2. 73
[42] The Ai Group instead proposed minor drafting changes to clause 43.2. It opposed the AMWU’s proposal, which omitted that the rates in the Building Award recognise that forepersons and supervisors are typically paid a salary and do not receive overtime, shift or weekend penalties. 74
[43] MBA submitted that:
• Clause 43 does not apply to general construction and they understand the clause was inserted during earlier award modernisation proceedings.
• The clause was inserted to accommodate the related supervisor/foreperson provisions from the now defunct National Metal and Engineering On-Site Construction Industry Award 2002 which contained elements originally established to deal with supervisors/forepersons engaged under the Metal Engineering Industries Award 1998.
• The relevant provisions in the Metal Engineering Industries Award 1998 provided remuneration arrangements for supervisors/forepersons intended to operate as “all in” arrangements under which persons performing these duties could be paid a total amount that off-sets and accommodates award amounts that would otherwise be applicable.
• Clause 43.2 reflects this background, particularly clause 43.2(b) which comprehends a salaried or “all in” type arrangement.
• The Commission should consider this history of clause 43.2 and in particular the approach reflected in clause 43.2(b). 75
[44] MBA submitted the AMWU’s proposal should be rejected because it altered the current rates of pay applicable to forepersons, and a number of the rates proposed (i.e. 104.3% and 113.1%) were impractical and would likely give rise to administrative error. 76 It supported the Ai Group’s proposal.77
[45] In reply submissions, the AMWU opposed the Ai Group’s proposal, observing that it did more than “set properly fixed minimum rates”, did not engage with the observations in the September 2018 Decision, did not resolve the difficulties in the clause, purported to provide offsetting, excluded award payments such as overtime penalties and did not provide for properly fixed minimum rates. 78
[46] We have not been persuaded by the submissions to depart from our provisional view. It appears to us that the AMWU proposal seeks to replace the existing provision, which is complex and arguably does not establish a properly set minimum rate, with another provision of the same nature. The Ai Group’s proposal does not seek to address the concerns we raised in the September 2018 Decision. The Ai Group, perhaps correctly, appears to view the provision as a type of annualised salaries provision. Clause 43.2(b), which provides that employees who are paid the amounts provided for in clause 43.2(a) will not receive overtime payments, shift work premiums, special rates and a range of specified allowances, certainly gives it that character. However, as we pointed out in the September 2018 Decision, this is contradicted by clause 43.5(b). Further, it has not been explained how the rates prescribed for forepersons and supervisors would compensate them for the loss of the identified award benefits while at the same time remunerating them for the higher work value presumably required by their roles, nor how the “not…less favourable” provision in clause 43.5 is meant to operate in practice. We consider that any employer group which desires to have an annualised wages provision for forepersons and supervisors placed in the Building Award may apply to have one of the standard provisions established in the Full Bench 4 yearly review decisions concerning that issue. 79
[47] Consistent with our provisional view, clause 43 will be restructured to provide as follows:
43. Foreperson and supervisors
43.1 Application
This clause applies to forepersons and supervisors in the metal and engineering construction sector covered by this award, but does not apply to any employer employing fewer than 30 employees.
43.2 Wages
The weekly minimum wage rate for forepersons and supervisors will be as follows:
Classification |
Supervision of three or more tradespersons, excluding leading hands |
Supervision of other than three or more tradespersons, excluding leading hands |
Foreperson/supervisor |
$926.30 |
$1004.10 |
General foreperson/supervisor |
$901.30 |
$982.90 |
43.6 Definitions
(a) Foreperson/supervisor shall mean an employee (other than a leading hand) appointed as such or required by his/her employer to be mainly engaged in the direct supervision of employees including those employed as leading hands, covered by this award.
(b) General foreperson/supervisor shall mean an employee appointed as such or required by his/her employer to be mainly engaged in the direct supervision and coordination of the work of at least two forepersons/supervisors as defined in clause 43.6(a) but shall not include site managers, nor departmental heads and the like.
[48] In a submission dated 7 December 2018, the CFMMEU submitted that the decision to vary the rest and recreation provisions in the Building Award should be extended to the Joinery Award and the Mobile Crane Award. 80 The CFMMEU observed that the rest and recreation provisions in clause 24.5(a) of the Joinery Award are more onerous than those being replaced in the Building Award. Clause 24.5(a) of the Joinery Award provides as follows:
(vi) Subject to clause 24.5(a)(vii), after three months’ continuous service on a distant job to which an employee has been directed to attend, and thereafter at four monthly periods of continuous service thereon, an employee may return to their usual residence at a weekend.
(vii) Where the location of a distant job is in an area to which air transport is the only practical means of travel, an employee may return to their usual residence after five months’ continuous service and if the employee does so the employee is entitled to two days leave with pay in addition to the weekend. An employee may also return to their usual residence after each further period of five months’ continuous service and in each case if the employee does so the employee is entitled to two days leave, of which one day must be paid.
[49] The Mobile Crane Award contains no rest and recreation provisions.
[50] The CFMMEU submitted that, consistent with the approach taken in the September 2018 Decision regarding the living away from home allowance, standard of accommodation and travelling expenses, an equivalent variation to rest and recreation provisions should be made to the Joinery Award and the Mobile Crane Award.
[51] The CFMMEU’s position was opposed by the Ai Group, 81 ABI,82 the HIA83 and MBA.84
[52] Our conclusion in the September 2018 Decision to amend clause 24.7(f) of the Building Award was based on evidence concerning difficulties in the operation of that clause that were specific to fly in-fly out workers on major construction projects covered by that award. We said in that connection:
“[155] However we are persuaded that one aspect of the CFMMEU’s claim concerning rest and recreation does raise an issue of merit. The CFMMEU’s claim was that the time spent on travel to the employee’s home for the purpose of a period of rest and recreation and the return travel to the work site should not be included in the seven-day rest and recreation period. We consider that the evidence adduced by the CFMMEU establishes that some employers seek to save expenses on air travel by booking the most inexpensive flights rather than flights which result in the least travel time to and from the employee’s home. In some cases, as a consequence, travel time for the employee is unnecessarily prolonged and the time spent at home by the employee is reduced. To the extent that clause 24.7(f)(i) does not place a reasonable restriction on this practice, we consider that it does not constitute part of a fair and relevant safety net and does not achieve the modern awards objective. We consider a reasonable limitation to be that at least five full days of the prescribed period of rest and recreation should be exclusive of travel time. That limitation should be adopted within the context of a minimum “four week on, one week off” roster in accordance with the industry practice. We also propose to remove the distinction between modes of travel with necessary consequential variations to clause 24.7(f).”
[53] There was no evidence of comparable difficulties arising for workers under the Joinery Award or the Mobile Crane Award. Accordingly the CFMMEU’s claim will not be granted.
[54] A number of submissions were made in relation to the 2018 draft determinations issued to give effect to the variations determined in the September 2018 decision. We briefly deal with the submissions received relating to each award.
Plumbing Award
[55] The Ai Group and MPG made submissions in relation to the Plumbing Award. 85 Both parties identified a typographical error in relation to item 1 whereby an unnecessary bracket is included at the start of the second dot point in clause 32.1(a)(ii) and submit this bracket be deleted. MPG submitted it otherwise supports the draft determination.
[56] No other parties commented on the Plumbing Award draft determination. We will adopt the proposed amendment in the final variation determination for the Plumbing Award which will be issued as a consequence of this decision.
Joinery Award
[57] The CFMMEU submitted the draft determination for the Joinery Award omitted a variation to clause 24.5(a)(xiv) as contemplated at paragraph [153] of the September 2019 decision. 86
[58] Paragraph [153] of the September 2018 Decision stated the following:
“[153] We accept that the modes of travel referred to in brackets in the first item point in clause 24.7(a) of the Building Award are partially outdated and are therefore no longer relevant for the purpose of the modern award safety net. However we do not accept the CFMMEU’s proposal to correct this by simply by adding to and modifying the listed modes of travel. They are merely examples of modes of transport which may or may not be appropriate in particular circumstances. Even if the list is updated as proposed by the CFMMEU, it remains non-exhaustive and non-prescriptive and is likely to become outdated again with the passage of time. We consider that the words in brackets do not serve any useful purpose and that the better course is to delete them altogether. Clause 24.7(a) of the Building Award will be varied accordingly, and an equivalent variation will be made to the Joinery Award.”
[59] Clause 24.7 of the Building Award sets out benefits an employee is entitled to in relation to travel expenses. Among other things, clause 24.5(a) of the Building Award states that employees must be provided appropriate transport or “paid a fare on the most appropriate method of public transport to the job (bus, economy air, second class rail with sleeping births if necessary). The draft determination issued for the Building Award amends clause 24.5(a) by deleting this bracketed information.
[60] Clause 24.5(a)(xiv) of the Joinery Award contains the equivalent list in brackets that we determined as partially outdated:
“(xiv) For the purposes of clause 24.5(a) economy return fare means the total cost of the most common method of public transport (including bus, aircraft or rail, with sleeping berths if necessary) between the employee’s usual residence and the distant job and return.
[61] The CFMMEU submitted that, to give effect to our decision, clause 24.5(a)(xv) as renumbered should read as follows:
“(xv) For the purposes of clause 24.5(a) economy return fare means the total cost of the most common method of public transport between the employee’s usual residence and the distant job and return
[62] No other submissions were received in relation to this issue.
[63] We accept this submission, and the amendment proposed by the CFMMEU will appear in the final determination varying the Joinery Award which will be issued.
Mobile Crane Award
[64] No submissions we received in relation to the draft determination for the Mobile Crane Award aside from the CFMMEU’s claim concerning the rest and recreation provisions which we have earlier rejected. The final determination varying the Mobile Crane Award will be issued in due course after this decision.
Building Award
[65] The following parties made submissions relating to the Building Award draft determination:
• the Ai Group;87
• MBA;88
• the HIA;89 and
• the CFMMEU 90
[66] We deal with each of the substantive issues raised in clause order below. We note that a number of the submissions identified minor typographical errors or suggested minor drafting amendments in a manner that was not the subject of contest. Where not discussed below, these will simply be incorporated in the final variation determination for the Building Award.
Clause 19
[67] MBA expressed concern regarding the decision to remove the word “adult” from clause 19.1(a), as outlined at paragraph [294] of the September 2018 Decision. It submitted that its removal could be interpreted to mean the award now provides an appropriate safety net for employees aged 21 and under who are not apprentices or trainees, which would hinder future applications to vary the award to include rates of pay for such employees. The MBA submitted that the award does not provide an appropriate safety net for employees aged 21 and under who are not apprentices or trainees and the absence of rates for these employees is a significant award deficiency.
[68] This submission is rejected. It seeks to re-agitate an issue which we have already determined. In the September 2018 Decision at [285]-[293] we rejected claims advanced by the MBA and the Civil Contractors’ Federation for the establishment of junior rates in the Building Award. One of our reasons for doing so (at [286]-[287]) was that classification CW/EW1 already provided for properly-fixed wage rates for entry-level, unskilled labouring duties. Accordingly the presence of the word “adult” in clause 19.1(a) is anomalous and creates a lacuna in the rates of pay. It shall be removed.
Clause 25
[69] The CFMMEU took issue with the amendment to the title of clause 25 at item 10 of the draft determination, which has been changed from “Fares and travel patterns allowance” to “Travelling time entitlements”. 91It submitted that no party sought a change to the title of clause 25 and it was not suggested in the decision, and referred to paragraph [181] of the September 2018 Decision which states “the allowance compensates employees, on an averaging basis, for the cost and inconvenience associated with variable travel to and from work”. The CFMMEU submit that, as the clause deals with more than “travel time”, it is preferable to retain the current clause title of “Fares and Travel Patterns Allowance” and amend the title of clause 25.1 to either “Daily Fares and Travel Patterns Allowance” or “Daily Allowance”.
[70] The submission is rejected.
[71] The HIA took issue with proposed clause 25.1(b) in the draft determination. 92 It referred to paragraph [182] of the September 2018 Decision, where we stated that we could not identify a legitimate rationale for the payment of the fares and travel pattern allowance where the employee is:
• absent from work for any reason, including for leave and RDOs;
• provided with or offered free transport by the employer to and from the construction site;
• provided with a fully maintained vehicle by the employer to travel to and from the construction site (regardless of any other use that may be made of the vehicle); or
• not required to start and finish work at the construction site but rather at another fixed location (so that actual travel to and from the construction site occurs in paid working time).
[72] The HIA submitted clause 25.1(b) as currently drafted only reflects two of these four scenarios. The HIA submitted that, to accurately reflect the decision and provide clarity for industry participants, clause 25.1(b) in the draft determination should be amended as follows:
(b) An employee will not be entitled to the allowance in paragraph (a) on any day where the employer:
(i) the employer provides or offers to provide transport free of charge from the employee’s home to the place of work and return; or
(ii) the employer provides a fully maintained vehicle free of charge to the employee.; or
(iii) the employee is absent from work for any reason including leave and RDOs; or
(iv) the employee is not required to start and finish work at the construction site but rather another fixed location.
[73] The submission is rejected because the additional provisions are unnecessary and would constitute surplusage. The new clause 25.2 provides that the fares and travel pattern allowance is only payable “for each day worked when the employee starts and finishes work on a construction site”. That condition will not be satisfied if the employee is on leave and taking an RDO (and thus is not working), or if the employee is required to start and finish work at a fixed location that is not the construction site.
[74] The HIA also submitted that the current clause 25.10(c) provided clarity by specifying that the allowances provided under clause 25 are not taken into account when calculating overtime, penalty rates, annual or personal/carer’s leave entitlements, and proposed that it be retained. This is again unnecessary. The allowance in the new clause 25.1 is a daily allowance payable only when the condition we have earlier referred to is satisfied. The other allowances provided are for time or distance travelled. There is no question of them being payable on leave or being included in the calculation of penalty rates.
[75] The HIA expressed concern that the clause 25.5 of the draft determination removes clarity regarding how the fares and travel pattern allowance is treated on a day in which an apprentice attends an RTO. HIA submitted that the current award clause 25.12(b)(ii), which provides the following, should be retained:
(ii) Apprentices will not be paid the allowance in clause 25.12(a) for days they attend an RTO for training and assessment in accordance with the contract of training.
[76] This amendment will be made. The existing provision will become clause 25.5(b), and the currently proposed clause 25.5(b) shall be re-designated as clause 25.5(c).
Clause 38.2
[77] The CFMMEU, the Ai Group and the HIA made submissions 93 concerning the proposed clause 38.2(b), which provides:
(b) In addition to the payment prescribed in clause 38.2(a), an employee must receive during a period of annual leave a loading of 17.5% calculated and paid by reference to the base rate payable under clause 38.2(a).
[78] The CFMMEU submitted that by deleting the words from the existing provision that “This loading will also apply to proportionate leave on lawful termination” the variation does more than what was intended by the Full Bench and this sentence should be retained. It also submitted that the use of the words “base rate” in the draft determination should be replaced with the word “amount” to remove potential confusion with the base rate as referred to in s 90(1) of the FW Act, proposing that clause 38.2(b) reads as follows:
(b) In addition to the payment prescribed in clause 38.2(a), an employee must receive during a period of annual leave a loading of 17.5% calculated and paid by reference to the amount payable under clause 38.2(a).
This loading will also apply to proportionate leave on lawful termination.
[79] The HIA and the Ai Group make similar submissions concerning the use of “base rate”.
[80] We accept the substance of the CFMMEU’s submissions. However, the reference to “lawful” termination is confusing and will be deleted. The new provision will be as follows:
(b) In addition to the amount prescribed in clause 38.2(a), an employee must be paid during a period of annual leave a loading of 17.5% calculated on that amount. This loading will also be payable on accrued leave paid out on termination of employment.
[81] A draft determination to give effect to the issues concerning allowances determined in the October 2019 Decision was annexed to that decision. Interested parties were given 14 days to comment on the form of the draft determination. 94 The CFMMEU,95 the Ai Group,96 MBA97 and the HIA98 made submissions pursuant to this direction. Many of the submissions identified minor typographical errors or suggested minor drafting amendments that were not the subject of any dispute.99 These will be adopted in the final variation determination which will be issued as a result of this decision. We will deal with other issues raised in clause order.
Clause 21—Industry allowances
[82] The CFMMEU submitted that the industry allowances in new clause 21 are part of the ordinary time hourly rates and therefore payable for all-purposes and that it would be preferable for the award to clearly state this. 100 It proposed the following new clause to give effect to this:
21.3 The industry allowances payable under this clause are to be paid for all-purposes of the award.
[83] We agree this adds clarity and will amend the draft determination accordingly.
[84] Ai Group submitted the bolding of “residential building and construction industry” in item 4 is unnecessary and should be removed as no emphasis is required.
[85] It is a common award style when providing definitions to bold the words that are being defined. As such, we retain the current style.
Application of allowances across subsectors
[86] MBA maintained concerns that confusion could arise where employees are performing work across two subsectors. MBA submitted part of this complexity arises due to the inclusion of a new definition of “residential building and construction industry” at clause 21.2(b). It submitted that the use of the phrase “single occupancy” as part of this definition may cause confusion as there is no settled view amongst industry participants as to what constitutes a “single occupancy” dwelling. MBA regarded this as particularly problematic because determining what constitutes single occupancy will need to occur in advance of building work commencing, and submitted that it anticipated that “this will create particular uncertainty with respect to the Low Rise Medium Density sector including Terraces and Duplex homes (whether they are detached, semi-detached or side by side with Separate Title/Strata Title/Torrens Title (subdivided)/Dual Occupancy etc.)”. 101 It also submitted that situations may arise where employers need to make retrospective adjustments to the industry allowance paid due to assigning the incorrect allowance, such as in circumstances where the building completed does not align with the initial scope of the project. MBA said that its interpretation was that the definition of residential work would incorporate any developments of up to 4 stories on the basis that any multistorey building under clause 22.3(c) is defined as 5 or more storey levels. MBA submitted the use of “single occupancy” is therefore too narrow.
[87] The MBA’s submission is based on a misunderstanding of what we intended. We had in mind that the “residential building and construction industry” would consist of small-scale residential construction on a standard household block, not any residential development of under five storeys. We accept however that this may include dual-occupancy residences (that is, duplex-type developments). Accordingly we will amend clause 21.2(b) to read:
(b) residential building and construction industry means the activities identified in clause 4.10(a) undertaken in relation to a single occupancy or dual occupancy residential building which is not a multistorey building as defined in clause 22.3(c).
Clause 22—Other allowances
[88] The CFMMEU submitted that proposed clause 22.3(c), which contains the definitions of the key terms used in clause 22.3—Multistorey allowance, should include the wording from current clause 21.4(e) within the definition of storey level. The CFMMEU submitted that clause 21.4(e) is not an allowance, but rather an additional definition that assists the parties in determining the number of storeys in a building.
[89] Clause 21.4(e) provides the following:
“(e) Plant room: a plant room situated on the top of a building will constitute a further storey level if the plant room occupies 25% of the total roof or an area of 100 square metres whichever is the lesser.
[90] The CFMMEU submitted the inclusion of plant room as a story level has been well settled in the industry for many years and to not include it would lead to industrial disputation.
[91] The CFMMEU submitted the definition of storey level in the draft determination be amended as follows:
storey level means structurally completed floor, walls, pillars or columns, and ceiling (not being false ceilings) of a building and will include basement levels and mezzanine or similar levels (but excluding half floors such as toilet blocks or store rooms located between floors), and a plant room situated on the top of a building if the plant room occupies 25% of the total roof or an area of 100 square metres whichever is the lesser.
[92] We accept this proposal and will amend the determination accordingly.
[93] The HIA submitted that the proposed clause 22.4 appears to be precursor guidance as to when laser operation allowances may apply under the Building Award and clause 22.5 should be renumbered as clause 22.4(c). We accept this. The HIA’s proposal will be adopted in the final determination.
[94] The Ai Group submitted that items 7 and 8 of the draft determination incorrectly include the allowances for hot and cold work. 102 It submitted that the September 2018 Decision found that the new industry allowances were to be payable in lieu of an array of existing allowances, including those for hot and cold work at clauses 22.2(b) and 22.2(c).
[95] This submission is rejected. We intended that the allowances applicable to hot and cold work should be removed. However the provisions which have been retained relate to paid breaks in respect of hot and cold work. These provisions were never intended to be removed.
Commencement date
[96] The HIA and MBA have made submissions seeking a postponement to the proposed commencement date of 1 January 2020 in respect of the draft determination issued in conjunction with the October 2019 Decision 103 They submit that considerable preparatory work would be needed to prepare for the introduction of the new allowance structure, particularly in respect of payroll systems and the education of relevant personnel.
[97] We accept this submission. The course we have decided to take is to issue a single variation determination for each award which incorporates all the variations arising from the September 2018 Decision, the October 2019 Decision and this decision. Each determination will have an operative date of 1 July 2020.
VICE PRESIDENT
Printed by authority of the Commonwealth Government Printer
<PR715412>
2 Building Award draft determination, Joinery Award draft determination, Mobile Crane Award draft determination; Plumbing Award draft determination and Directions published 23 November 2018.
3 Ai Group submission, 7 December 2018
4 MBA submission, 7 December 2018.
5 HIA submission 7 December 2018.
6 CFMMEU (C&G) Submission, 7 December 2018.
7 Master Plumbers submission, 27 November 2018.
8 CFMMEU (C&G) Submission, 7 December 2018 at [6].
9 Directions, 25 February 2019.
10 Ai Group submission, 12 March 2019, at [13].
11 ABI & NSW Business Chamber, 11 March 2019, at 3[5].
12 HIA submission, 11 March 2019, at [4.1.1].
13 MBA submission, 11 March 2019, at [9].
14 [2018] FWCFB 6019 at [368].
15 [2018] FWCFB 6019 at [368].
16 [2018] FWCFB 6019 at [372] and Directions, 8 November 2018.
18 MBA submission, 19 November 2019.
19 HIA submission, 13 November 2019.
20 Ai Group submission, 14 November 2019.
21 CFMMEU (C&G) submission, 11 November 2019.
22 Directions, 8 November 2018.
23 CFMMEU submission in reply, 28 November 2018.
24 AMWU submission, 14 November 2018; AMWU submission in reply – 28 November 2018.
25 The AWU submission, 15 November 2018; The AWU submission in reply, 28 November 2018
26 CEPU submission, 14 November 2018.
27 Ai Group submission, 15 November 2018; Ai Group submission in reply, 28 November 2019.
28 ABI and NSWBC submission, 14 November 2018; ABI and NSWBC submission in reply, 28 November 2019.
29 HIA submission, 14 November 2018 at [3].
30 MBA submission, 14 November 2018; MBA submission in reply, 29 November 2019.
31 MBA submission, 14 November 2018 at [5]-[6].
32 Ai Group submission, 15 November 2018 at [6].
33 [2018] FWCFB 6019 at [207].
35 MBA submission, 14 November 2018 at [8].
36 ABI submission, 14 November 2018.
37 Ai Group submission, 15 November 2018 at [9].
38 AMWU submission, 14 November 2018 at [44]-[45].
39 AMWU submission, 14 November 2018 at [46]-[48].
40 AWU submission, 15 November 2018 at [21].
41 AWU submission, 15 November 2018 at [22]-[23].
42 AWU submission, 15 November 2018 at [24].
43 CFMMEU submission in reply, 28 November 2018 at [7].
44 CFMMEU submission in reply, 28 November 2018 at [15]-[17].
45 [2018] FWCFB 6019 at [208] and [245].
46 [2018] FWCFB 6019 at [245].
47 [2018] FWCFB 6019 at [246].
48 MBA submission, 14 November 2018 at [11].
49 MBA submission, 14 November 2018 at [13]-[18].
50 MBA submission, 14 November 2018 at [20].
51 MBA submission, 14 November 2018 at [22]-[23].
52 Ai Group submission, 15 November 2018 at [12]-[18].
53 CEPU submission, 14 November 2018 at [17].
54 CFMMEU submission in reply, 28 November 2018 at [8].
55 CFMMEU submission in reply, 28 November 2018 at [9]-[10].
56 CFMMEU submission in reply, 28 November 2018 at [23].
57 AWU submission in reply, 28 November 2018 at [35].
59 [2018] FWCFB 6019 at [396].
61 HIA submission, 14 November 2018 at [3.1.3]-[3.1.7].
62 MBA submission, 14 November 2018 at [32]-[33].
63 MBA submission, 14 November 2018 at [34]-[35].
64 MBA submission, 14 November 2018 at [37].
65 MBA submission, 14 November 2018 at [48]-[49].
66 CFMMEU submission in reply, 28 November 2018 at [28]-[34].
67 AMWU submission in reply, 28 November 2018 at [19].
68 AMWU submission in reply, 28 November 2018 at [20].
69 [2018] FWCFB 6019 at [182]-[183].
70 The AMWU submission, 14 November 2018 at [42].
71 The AMWU submission, 14 November 2018 at [43].
72 Ai Group’s submission, 15 November 2018 at [32].
73 Ai Group’s submission, 15 November 2018 at [33].
74 Ai Group’s submission in reply, 28 November 2018 at [29].
75 MBA submission, 29 November 2019 at [53]-[59].
76 MBA submission in reply, 29 November 2018 at [85].
77 MBA submission, 29 November 2019 at [86].
78 AMWU submission in reply, 28 November 2018 at [50].
79 [2018] FWCFB 154; [2019] FWCFB 1289; [2019] FWCFB 4368.
80 CFMMEU Submission, 7 December 2018 at [6].
81 Ai Group submission, 12 March 2019.
82 ABI & NSW Business Chamber, 11 March 2019.
83 HIA submission, 11 March 2019.
84 MBA submission, 11 March 2019.
85 Ai Group submission, 7 December 2018 and Master Plumbers submission, 27 November 2018.
86 CFMMEU submission, 7 December 2018, at [5].
87 Ai Group submission, 7 December 2018.
88 MBA submission, 7 December 2018.
89 HIA submission 7 December 2018.
90 CFMMEU (C&G) Submission, 7 December 2018.
91 CFMMEU submission, 7 December 2018 at [3].
92 HIA submission, 7 December 2018 at [2.10]-[2.15].
93 CFMMEU Submission, 7 December 2018 at [4]; Ai Group submission, 7 December 2018 at [3]; HIA submission 7 December 2018 at [3.1]-[3.4].
94 [2019] FWCFB 6860 at [59].
95 CFMMEU submission, 11 November 2019.
96 Ai Group submission, 14 November 2019.
97 MBA submission, 19 November 2019.
98 HIA submission, 13 November 2019.
99 CFMMEU submission, 11 November 2019, item amending clause 19.3(b) should also renumber other cross references in the clause at [3], dot points in clause 19.7(e) should be reordered so clauses appear in numerical order at [4]; Ai Group submission, 14 November 2019, clause 21.2(c) should be deleted as it replicates the reference in subclause 21.2(b) at [4], the word “who” should be added after “employee” at clause 22.7(a); HIA submission, 13 November 2019 made same submissions as CFMMEU in relation to clause 19.3(b) above at [1] and Ai Group in relation to deletion of clause 21.2(c) above at [2].
100 CFMMEU submission, 11 November 2019 at [5].
101 MBA submission, 19 November 2019 at [70].
102 Ai Group submission, 14 November 2019 at paragraph 4(d)-(g).
103 MBA submission, 19 November 2019 at [10]-[20] and HIA submission, 13 November 2019 at [4].