| [2021] FWCFB 1032 |
| 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, 25 FEBRUARY 2021 |
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 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.
[2] On 29 September 2020 we issued a Statement 1 which outlined the history of the 4 yearly review of modern awards (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.
[3] In a Statement 2 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.
[4] On 4 December 2020 (the December 2020 decision), we issued a decision 3 determining the outstanding technical and drafting matters raised by the parties in relation to the variation determinations for each of the Construction Awards. On 7 December 2020, we published final variation determinations incorporating the changes outlined in the December decision with a proposed operative date of 1 March 2021.
[5] Interested parties were invited to file any comment in relation to the amendment to the Construction Awards to be effected by the December 2020 decision and our earlier statements and decisions. We confirmed that this process was intended to provide an opportunity to correct any errors and was not an opportunity to relitigate the issues which had already been determined.
[6] We received a submission from the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) in response to the variation determinations for the On-Site Award, Joinery Award and the Mobile Crane Hiring Award. No other submissions were received.
Clause 17.1(e) – Shiftwork
[7] The CFMMEU submit that in clause 17.1(e), the words “early morning” should have been inserted, not just the word “early” so that all of the shift arrangements are mentioned (i.e. early morning, morning, early afternoon, afternoon and night shift). We agree that all of the shift arrangements should be included in this clause. Clause 17.1(e) will be amended to read as follows:
“(e) The ordinary hours of early morning, morning, early afternoon, afternoon and night shift will be 8 hours daily inclusive of meal breaks. Provided where shiftwork comprises 3 continuous and consecutive shifts of 8 hours each per day, that 24 minutes of each shift will accrue towards a rostered off shift and a crib time of 20 minutes duration will be allowed on each shift, and will be paid for as though worked. Such crib time will be instead of any other rest period or cessation of work elsewhere prescribed by this award.”
Clause 29.6 – Work during meal break – day workers
[8] In the December 2020 decision we dealt with the HIA’s submission that clauses 29.6(a) and (b) be amended to ensure they are consistent. The changes proposed were 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 of 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).”
[9] In the December decision we expressed a provisional view that the change proposed by the HIA be adopted. 4 Any party with a different view was invited to make a submission.
[10] The CFMMEU did not object to the proposed changes to clause 29.6(a), however submit that the words “start of the” should be inserted before “meal break under clause 18.1” to ensure there is no uncertainty as to what time is used. The clause would then read:
“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 the 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 for the start of the meal break under clause 18.1 and the beginning of the time allowed in substitution for the meal break.” (amendment made in underline).
[11] The CFMMEU also submit that the words “be not” appearing before the word “required” in clause 29.6(b) be reversed. It appears that this was a typographical error in the December 2020 decision that was not replicated in the final variation determination. For clarity, we confirm that clause 29.6(b) will read as follows:
(b) If the meal 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 not be 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.”
[12] We confirm our provisional view as set out in the December 2020 decision with the additional amendments as proposed by the CFMMEU. Clause 29.6 will be amended as set out in paragraphs [10] and [11] above.
Clauses 25.4, B.2.3, B.2.6, B.3.3 and B.3.6
[13] In the December 2020 decision we dealt with a submission from ABI 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”. 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.”
[14] ABI had submitted that the issue may be resolved, if the “afternoon or night” shift allowance column in the respective tables was moved under the heading “all shiftwork” next to the “public holiday” column.
[15] In the December 2020 decision we agreed with ABI and determined to amend the variation 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, and that the “early morning or early afternoon shift” will be left under the heading “continuous shiftwork” in accordance with clause 25.4(b).
[16] When considering the changes to the column titles, the CFMMEU identified what it termed an error in clause 25.4 of the final variation determination. The CFMMEU submit that the re-drafting of clause 28.3(d) of the current Joinery and Building Trades Award 2010 into clause 25.4 as set out in the final variation determination has significantly altered the clause.
[17] Clause 28.3(d) of the current Joinery and Building Trades Award 2010 is as follows:
“(d) Shift rates
(i) Other than for work on a Saturday, Sunday or public holiday, the rate of pay for afternoon or night shift is 150% and the rate of pay for early morning and early afternoon shift is 125%, provided that the employee is employed continuously for five shifts Monday to Friday in any week. A public holiday in any week is not a break in continuity for the purposes of clause 28.3(d)(i).
(ii) An employee who is employed for less than five consecutive shifts Monday to Friday must be paid for each day the employee works on shiftwork at the rate of 150% for the first two hours and 200% thereafter, provided that when a job finishes after proceeding on shiftwork for more than one week, or the employee terminates their services during the week, the employee must be paid at the rate specified in clause 28.3(d)(i) for the time actually worked.”
[18] The re-drafted clause 25.4 as set out in the final variation determination is as follows:
“25.4 Shift rates
(a) 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.
(b) The rate of pay for early morning and early afternoon shift is 125% of the ordinary hourly rate, provided that the employee is employed continuously for 5 shifts Monday to Friday in any week.
(c) A public holiday in any week is not a break in continuity for the purposes of clause 25.4(b).
(d) An employee who is employed for less than 5 consecutive shifts Monday to Friday must be paid for each day the employee works on shiftwork at 150% of the ordinary hourly rate for the first 2 hours and 200% thereafter.
(e) When a job finishes after proceeding on shiftwork for more than one week, or the employee terminates their services during the week, the employee must be paid at the rates specified in clause 25.4(a) and 25.4(b) for the time actually worked.”
[19] The CFMMEU submit that the re-draft of the clause has the following effect:
“• Paragraph (a) removes the provision that the rate of pay for afternoon or night shift only applies if an employee is employed continuously for 5 shifts, Monday to Friday.
• Paragraph (b) removes the exception for work on a Saturday, Sunday or public holiday for early morning and early afternoon shifts.
• Paragraph (c) would only apply to early morning or early afternoon shifts.
• Paragraphs (d) and (e) both apply to weeks in which an employee can be employed for less than 5 consecutive shifts yet provide for different pay rates.”
[20] The CFMMEU submit that its preference is to keep the current wording of clause 28.3(d) or in the alternative provided a redraft of the clause as follows:
“25.4 Shift rates
(a) 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 and the rate of pay for early morning and early afternoon shift is 125% of the ordinary hourly rate.
(b) The shift rates in clause 25.4(a) apply when the employee is employed continuously for 5 shifts Monday to Friday in any week.
(c) A public holiday in any week is not a break in continuity for the purposes of clause 25.4(b).
(d) Subject to clause 25.4(e), an employee who is employed for less than 5 consecutive shifts Monday to Friday must be paid for each day the employee works on shiftwork at 150% of the ordinary hourly rate for the first 2 hours and 200% thereafter.
(e) When a job finishes after proceeding on shiftwork for more than one week, or the employee terminates their services during the week, the employee must be paid at the rates specified in clause 25.4(a) and 25.4(b) for the time actually worked.”
[21] We agree that the redrafted wording as set out in clause 25.4 of the final variation determination changes the entitlement. In the current award the clause applies to afternoon and night shift shiftworkers as well as early morning and early afternoon shiftworkers provided the shiftworker is employed continuously for 5 shifts, Monday to Friday. It is clear that when the clause was redrafted in the beginning of the Review, the two rates were separated into two subclauses, but not all of the elements of the provisions were properly applied to each subclause.
[22] We will amend clauses 25.4(a) and (b) in the final variation determination to read as follows:
“25.4 Shift rates
(a) Other than for work on a Saturday, Sunday or public holiday, the rate of pay for afternoon or and night shift is 150% of the ordinary hourly rate., provided that the employee is employed continuously for 5 shifts Monday to Friday in any week.
(b) Other than for work on a Saturday, Sunday or public holiday, The the rate of pay for early morning and early afternoon shift is 125% of the ordinary hourly rate, provided that the employee is employed continuously for 5 shifts Monday to Friday in any week.”
[23] Given the changes made to clause 25.4, the table headings in clauses B.2.3, B.2.6, B.3.3 and B.3.6 will no longer be amended as determined in paragraphs [134] to [136] of the December decision. The columns “afternoon or night” will revert to the columns as initially set out in the Exposure Draft of 8 October 2020.
Schedule X
[24] The CFMMEU submit that the title of Schedule X refers to “Schedule 24”. This will be corrected to read “Schedule X”. Additionally, the clause references that follow in Schedule X are incorrect. The clause references from J.5 to J.6.2 will be amended to read X.1 to X.2.2 respectively.
Schedule X
[25] The CFMMEU submit that the title of Schedule X refers to “Schedule 24”. This will be corrected to read “Schedule X”. Additionally, the clause references that follow in Schedule X are incorrect. The clause references from I.5 to I.6.2 will be amended to read X.1 to X.2.2 respectively.
[26] The above amendments will be corrected in the final variation determinations for the On-Site Award, the Joinery Award and the Mobile Crane Hiring Award. No further amendments will be made to the Plumbing and Fire Sprinklers Award. This decision concludes the technical and drafting amendments to the Construction awards which will come into operation on 1 March 2021.
PRESIDENT
Printed by authority of the Commonwealth Government Printer
<PR727289>
4 [2020] FWCFB 6040 at [81] to [82].