MA000020 - Decision - 02 Oct 2013

[2013] FWC 7478

FAIR WORK COMMISSION

FURTHER SUPPLEMENTARY DECISION


Fair Work (Transitional Provisions and Consequential Amendments) Act 2009

Sch. 5,Item 6 - Review of all modern awards (other than modern enterprise and State PS awards) after first 2 years

Master Builders Australia Limited
(AM2012/48 &Others)

Building,metal and civil construction industries

SENIOR DEPUTY PRESIDENT WATSON

MELBOURNE,2 OCTOBER 2013

Modern Awards Review - Building and Construction General On-site Award 2010 - reference rates.

[1] In my decision of 15 July 2013 in [2013] FWC 4576,I determined various applications before me as a single member to vary the Building and Construction General On-site Award 2010 (the On-site Award) in respect of the 2012 Review—a review of modern awards required by the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (the Transitional Provisions Act).

[2] In a supplementary decision of 30 August 2013, 1 I determined an outstanding issue drawn to my attention by the Housing Industry Association (HIA) and set down a program for further submissions on two final matters:

    ●Further variations to give effect to consistent terminology of reference rates following the determination of substantive applications to vary some clauses in the 15 July 2013 decision and the 22 August 2013,the Apprentice,Trainees &Juniors Full Bench decision; 2 and

    ●An alleged anomaly in respect of shift arrangements arising out of my 15 July 2013 decision,in respect of clause 34.1(a) of the On-site Award, drawn to my attention by Master Builders Australia (MBA) in correspondence of 16 August 2013.

Reference rates

[3] As noted in both previous decisions,a number of reference rates appearing in the On-site Award were varied as a consequence of my decision of 15 July 2013 to give effect to a rationalisation of such references agreed between the major parties with an interest in the On-site Award in order to make it easier to understand and apply.

[4] In my decision of 15 July 2013,I invited further written submissions concerning reference rate variations to clauses 14.5,14.6,14.7 and 19.3,having regard to my determination of substantive variations in respect of these clauses and,if necessary,reference rate variations to clauses being considered for substantive variation by the Apprentice,Trainees &Juniors Full Bench.

[5] On 15 August 2013,the Construction,Forestry,Mining and Energy Union (CFMEU) corresponded with the Fair Work Commission (the Commission) indicating that clauses 14.6 and 14.7 should be varied to read:

    “14.6 A casual employee required to work overtime or weekend work will be entitled to the relevant penalty rates prescribed by clauses 36—Overtime,and 37—Penalty rates,provided that:

    (a) where the relevant penalty rate is time and a half,the employee must be paid 175% of the ordinary time hourly rate prescribed for the employee’s classification;and

    (b) where the relevant penalty rate is double time,the employee must be paid 225% of the ordinary time hourly rate prescribed for the employee’s classification.

    14.7 A casual employee required to work on a public holiday prescribed by the NES must be paid 275% of the ordinary time hourly rate prescribed for the employee’s classification.”

[6] The CFMEU correspondence advised that the MBA and the HIA consent to the variation.

[7] On 22 August 2013,the Apprentice,Trainees &Juniors Full Bench published a substantive decision 3 deciding “common matters”relating to multiple modern awards,including the On-site Award.

[8] In my 30 August 2013 supplementary decision,I invited further written submissions by 13 September 2013 as to whether any other reference rate variations of the same character be varied:

1. The reference rate variations to clauses 14.6 and 14.7 (casual clauses) proposed by the CFMEU;and

2. Any reference rate variations to clauses 19.7 and 19.8,which are necessary following the decision of the Apprentice,Trainees &Juniors Full Bench.

[9] Only the MBA and CFMEU have made further written submissions in relation to either issue.

Clauses 14.6 and 14.7 (casual clauses)

[10] In submissions dated 12 September 2013 the MBA advised that it had settled on the draft variation to clauses 14.6 and 14.7 as proposed by the CFMEU in correspondence of 15 August 2013 and that it agrees with the proposed variation.

[11] Clauses 14.6 and 14.7 will be varied to reflect the terms proposed by the CFMEU and set out above. The determination giving effect to this decision will operate from 2 October 2013.

Clauses 19.7 and 19.8 (Apprentice,Trainees &Juniors Full Bench)

[12] The MBA requested that consideration of any reference rate variations to clauses 19.7 and 19.8 be deferred pending the finalisation of orders following the decision of the Apprentice,Trainees &Juniors Full Bench in its decision of 22 August 2013 (as proposed by 30 September 2013). It submitted that it will not be until those orders are established by way of a determination that clarity and any changes to the On-site Award will be clear.

[13] The CFMEU submitted that clauses 19.7 and 19.8 will be affected by the decision of the Apprentice,Trainees &Juniors Full Bench,and the settlement of the determinations in that matter will give the parties an opportunity to address any reference rate issues. It submitted that no further action on these clauses is necessary in the current proceedings.

[14] No variation of clauses 19.7 and 19.8 is required to complete the reference rate exercise undertaken by the parties at this time.

[15] In the event that following the settlement of orders consequent upon the Apprentice,Trainees &Juniors Full Bench decision,there is agreement between those organisations which have participated in the 2012 Review of the On-site Award,that if a further reference rate variation is required,it should be communicated to me jointly by those parties and it will be given effect. In the absence of such agreement,any further variation should be raised in the four year review (s.156 of the Fair Work Act 2009 (the Act)).

MBA submission concerning an “anomaly created by the decision of 15 July 2013”in respect of clause 34.1(a)

[16] By letter of 16 August 2013,the MBA contended that a variation to clause 34.1(a) of the On-site Award,dealt with in paragraph [264] of the decision of 15 July 2013,to define shifts by reference to the time of commencement rather than finish of shifts,created an anomaly because it does not accommodate the hours between 11.00 p.m. and 4.30 a.m. within the nightshift and inadvertently alters the effect of the shift definitions.

[17] In my supplementary decision of 30 August 2013,I decided that if the order arising out of my 15 July 2013 decision did create an anomaly,it would be best rectified as part of the 2012 Review process. Accordingly,I directed:

    “—The MBA to provide a proposed variation to correct the anomaly and put any further submissions in relation to the anomaly by 6 September 2013;and

    ●Afforded any interested party to put submissions in relation to the submissions of the MBA and the variation proposed by it to rectify it by 13 September 2013.”

[18] In its submission of 6 September 2013,the MBA proposed that clause 34.1(a) of the On-site Award be varied to add an additional shift definition for an early morning shift:

    “early morning shift means a shift starting at 11.00 pm and before 4.30 am”

[19] Absent a shift loading in respect to the additional early morning shift proposed,the MBA submitted that clause 34.1(b) be amended by adding an early morning shift loading,to read:

    “(b) When an employee is employed continuously (inclusive of public holidays) for five shifts Monday to Friday,the following rates will apply:

    (i) afternoon,night and early morning shift –ordinary time hourly rate plus 50%;

    (ii) morning and early afternoon shifts –ordinary time hourly rate plus 25%.”

    [emphasis added]

The MBA submission

[20] The MBA submitted that the anomaly arises in respect of the definition of shiftwork only in the general building and construction and metal and engineering sectors.

[21] The MBA submitted that the original shiftwork definitions in the On-Site Award for the general building and construction and metal and engineering sectors were derived from clause 30.1 of the National Building and Construction Industry Award 2000 (NBCIA),4 which provided that:

    “—Afternoon shift means a shift finishing at or after 9.00 p.m. and at or before 11.00 p.m.

      ●Night shift means a shift finishing after 11.00 p.m. and at or before 7.00 a.m.

      ●Morning shift means a shift finishing after 12.30 p.m. and at or before 2.00 p.m.

      ●Early afternoon shift means a shift finishing after 7.00 p.m. and before 9.00 p.m.”

[22] The variation arising out of the 15 July 2013 decision reformulated the provision to describe the shifts,in clause 34.1,on the basis of commencement rather than finishing times:

    “—afternoon shift means a shift commencing at or after 1.00 p.m. and before 3.00 p.m.

      ●night shift means a shift commencing at or after 3.00 p.m. and before 11.00 p.m.

      ●morning shift means a shift commencing at or after 4.30 a.m. and before 6.00 a.m.

      ●early afternoon shift means a shift commencing on or after 11.00 a.m. and before 1.00 p.m.”

[23] The MBA submitted that the reconfiguration of the shiftwork definitions has inadvertently provided a shiftwork spread that does not accommodate the hours of work which commence between 11.00 p.m. and 4.30 a.m. within the shift arrangements. It submitted that the shifts which previously could end during the period 11.00 p.m. to 4.30 a.m. and be encompassed by a shift definition are not accommodated in the redrafted provision.

[24] The MBA proposed that a new definition of an early morning shift be inserted into clause 34.1(a) of the On-site Award as follows:

    “early morning shift means a shift starting at 11.00 p.m. and before 4.30 a.m.”

[25] It further proposed that clause 34.1(b) be varied to add the new early morning shift to clause 34.1(b)(i) with the early morning shift,like the afternoon and night shift,being subject to a 50% shift loading.

The CFMEU submission

[26] In its 13 September 2013 submission,the CFMEU submitted that the 15 July 2013 decision did not substantively alter the shift arrangements in the previous version of the modern award,or from the pre-reform awards. It characterised the “real issue”that the MBA is seeking to address is how work that commences after 11.00 p.m. and before 4.30 a.m. is to be treated for shift work purposes. The CFMEU submitted that under the current provisions of the On-site Award the hours worked would be treated as overtime hours either before a morning shift or before a day shift and does not change the previous version of the modern award,or from the pre-reform awards.

[27] The CFMEU submitted that major shutdown work in the industry across 24 hours would rarely cease between the hours of 7.00 a.m. and 12.30 p.m. because in a three shift 24 hour operation the shift hours would be worked as 7.00 a.m. to 3.00 p.m. day shift,3.00 p.m. to 11.00 p.m. afternoon shift and 11.00 p.m. to 7.00 a.m. night shift. The CFMEU submitted that the MBA has provided no evidence from any company to show how they have been affected by the change in the shift definitions in the On-site Award.

[28] The CFMEU submitted that no anomaly has arisen from the change to the shift definitions arising from the decision of 15 July 2013. It submitted that the shiftwork arrangements for the general building and construction and metal and engineering sectors have never provided for shifts commencing after 11.00 p.m. and before 4.30 a.m. and the MBA has provided no evidence from any employer who currently operates with shifts commencing after 11.00 p.m. and before 4.30 a.m.

[29] The CFMEU submitted that if the Commission however believes that a variation is necessary pursuant to Item 6 of Schedule 5 of the Transitional Provisions Act, in that the On-site Award is not meeting the modern awards objective and is not operating effectively without anomalies or technical problems,a simple solution to address the commencing time issue would be to extend the commencing times of the night shift definition in clause 34.1(a) to read as follows:

    night shift means a shift commencing at or after 3.00 p.m. and before 4.30 a.m.”

Conclusion concerning an “anomaly created by the decision of 15 July 2013”in respect of clause 34.1(a)

[30] There is no anomaly arising from the variation made in the context of the 2012 Review. That variation simply reformulated the shifts arrangements for shiftworkers in the general building and construction and metal and engineering sectors which were incorporated into the On-Site Award from the NBCIA expressed as finishing times to express them as commencement times. The shifts which previously could end during the period 11.00 p.m. to 4.30 a.m.,reformulated to starting times,are shifts commencing between 3.00 p.m. and 8.30 p.m. and are accommodated within the reformulated shiftwork definition. The effect of the relevant variation was simply to alter the identification of shifts from the finishing time to the commencement time. The application to vary on the basis of an anomaly must be rejected.

[31] The absence of shift arrangements in respect of shifts commencing between 11.00 p.m. and 4.30 a.m. within shift arrangements is common to clause 34.1 as it appears in the On-site Award when made in 2010 and after the variation arising from the 15 July 2013 decision. It did not arise from the variation and is not an anomaly created by the decision or consequent determination.

[32] However,the gap in shift arrangements in respect of a shift starting at 11.00 p.m. and before 4.30 a.m. does require consideration in the context of providing for a full range of shift arrangements outside what are regarded as “normal hours”and is required,potentially,to give effect to the modern awards objective. Notwithstanding the previous NBCIA history,the absence of shift arrangements in respect of a shift starting at 11.00 p.m. and before 4.30 a.m. in respect of the general building and construction and metal and engineering sectors requires consideration in the context of the modern awards objective. If warranted to give effect to the modern awards objective,the variation proposed,which provides for an early morning shift,with a 50% shift loading (at the same level as for the afternoon and night shift) should be given effect to provide a full range of shift arrangements,appropriately remunerated,within the On-site Award.

[33] The absence of shift arrangements in respect of a shift ceasing between 7.00 a.m. and 12.30 p.m. (or starting at 11.00 p.m. and before 4.30 a.m.) within the NBCIA may have reflected the absence of any practical demand for such shift arrangements. There is no evidence currently before me supporting a practical demand for the additional shift arrangement in the general building and construction and metal and engineering sectors. If there is such a need,evidence to that effect should be brought. In the absence of such evidence in support of the variation,either in the initial submissions of the MBA in the 2012 Review or in respect of its 16 August 2013 letter,I am not satisfied that the variation is required to give effect to the modern awards objective. If such evidence exists,the issue and variation proposed could be ventilated further in the four year review (s.156 of the Act). Such further consideration could have regard to the CFMEU submission concerning the extension of the hours within the night shift definition to cover the additional hours in question. If there is such evidence,and it supports a more urgent variation to give effect to the modern awards objective,an application could be brought pursuant to s.157 of the Act at an earlier time.

Conclusion

This decision concludes all of applications to vary the On-site Award in respect of those matters referred to me as a single member for determination as part of the 2012 Review. No further variation to the On-site Award,other than that approved in this decision,will be made in respect of those elements of the applications referred to me as a single member in respect of the 2012 Review,save that and as discussed above,in the event that an agreed reference rate variation to clauses 19.7 and 19.8 is required following the settlement of the determination arising out of the Apprentice,Trainees &Juniors Full Bench decision,such a variation will be given effect.

SENIOR DEPUTY PRESIDENT

 1  [2013] FWC 6347.

 2  [2013] FWCFB 5411.

 3  [2013] FWCFB 5411.

4 AP790741.

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MA000020 - Decision - 02 Oct 2013
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MA000020 - Decision - 02 Oct 2013
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