DECISION

Fair Work Act 2009
s.156—4 yearly review of modern awards

4 yearly review of modern awards—Plain language project
(AM2016/15)

4 yearly review of modern awards – plain language re-drafting – standard clauses – redundancy clauses – Manufacturing and Associated Industries and Occupations Award 2020 – Timber Industry Award 2020 – awards varied.

Introduction

[1] In a decision issued on 18 March 2022 1 (18 March decision), the Full Bench with carriage of the ‘plain language’ re-drafting aspect of the 4 yearly review expressed provisional views concerning the following outstanding ‘plain language’ issues in relation to the redundancy provisions of what are now the Timber Industry Award 2020 (Timber Award) and the Manufacturing and Associated Industries and Occupation Award 2020 (Manufacturing Award).

[2] In respect of the Timber Award, the matter about which the Full Bench expressed a provisional view concerned the exclusion of ‘weekly piecework employees’ which currently appears in clause 38.5(c). The provisional view was that this reference was an error and should be deleted, 2 and in addition that the Payment by Results provisions currently contained in clause 13.2 of the Timber Award 2020 should be removed from clause 13 and placed as a separate subclause within clause 20, Minimum Rates (with some other consequential drafting changes required to be made).3

[3] In respect of the Manufacturing Award, the issue was the expression of the scope of application of clause 45.2, which extends the operation of the NES redundancy pay provisions to certain employees of small business furnishing employers. The existing provision refers to employees of a small business employer ‘who performs any of the work within the Manufacturing and Associated Industries and Occupations which immediately prior to 1 January 2010 was in clauses 6.1 to 6.6 of the Furnishing Industry National Award 2003’. The Full Bench concluded that this provision, insofar as it requires reference in the first instance to the industries identified in the coverage provisions in clauses 4.8 and 4.9 of the Manufacturing Award and then requires further reference to be made to the provisions of the defunct Furnishing Industry National Award 2003 (Furnishing Award 2003), did not meet the modern awards objective. 4 The Full Bench expressed the provisional view that clause 45.2 (which will be renumbered as clause 46.4 as a result of other variations) should be redrafted in a way which, relevantly, specified the scope of application of the provision as follows:

46.4 Furnishing employees of small business employers

(a) Clause 46.4 applies to a furnishing employee of a small business employer except for an employee who is excluded from redundancy pay under the NES by sections 121(1)(a), 123(1), 123(4)(a) or 123(4)(d) of the Act.

(b) In clause 46.4(a) an employee is a furnishing employee of a small business employer if:

(i) immediately before the time the employee’s employment is terminated, or at the time when the employee is given notice of termination as described in section 117(1) of the Act (whichever happens first), the employer is a small business employer as defined by section 23 of the Act; and

(ii) the employee’s principal purpose of employment is to perform work in any of the industries specified in clauses 4.8(a)(i) and 4.8(a)(iii) in respect of any of the following items:

•  furniture (except where made of wood or timber, manufactured wood or timber products), frames (pictures or mirrors);

•  clock cases (except where made of wood or timber, manufactured wood or timber products);

•  optical instruments, but not including spectacle lenses or frames;

•  lamp shades;

•  furnishings made from cane, bamboo and other like materials;

•  upholstery, furnishing drapery, blinds, screens, swings, awnings, mattresses and bedding;

•  flooring products made from other than wood;

•  picture frames other than wood;

•  musical instruments other than wood. 5

[4] Draft determinations setting out variations to the Timber Award and the Manufacturing Award consistent with the above provisional views (as well as other variations about previously determined matters) were published in conjunction with the 18 March decision. Interested parties were allowed until 31 March 2022 to file submissions in response to the draft determinations and the provisional views, and any contested issues concerning the provisional views and the finalisation of the draft determinations were directed to be determined by me on the papers. 6

[5] Submissions were subsequently received from the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) and the Australian Industry Group (Ai Group).

[6] I will deal with issues raised in these submissions in turn.

Timber Award

Submissions

[7] In submissions dated 31 March 2022, the CFMMEU stated that it did not oppose the provisional views expressed in relation to the Timber Award, but identified two drafting issues in relation to the draft determination. First, it submitted that clause 9.1(c) of the Award should be modified to read ‘(c) piecework (see clause 13—Piecework—General Timber Stream);’ in order to render it consistent with the proposed title of clause 13 contained in the draft determination. This had not been addressed in the draft determination. Second, it submitted that the cross-reference to clause 13.1 in the proposed clause 13.3(a) in the draft determination should be changed to refer to clause 13 in order to give it the same effect as the cross-reference in the current clause 13.1(c)(i) of the Timber Award.

[8] In its submissions dated 31 March 2020, the Ai Group also did not oppose the provisional views expressed in relation to the Timber Award. Like the CFMMEU, it identified a drafting error in respect of the cross-reference in the proposed clause 13.3(a), but it submitted that this should be changed to refer to clause 13.3.

Consideration

[9] In relation to the first issue raised by the CFMMEU, I accept that it is necessary to alter the cross-reference in clause 9.1(c) to clause 13 so that it correctly reflects the modified title of clause 13.

[10] In relation to the second issue raised by the CFMMEU and also raised by the Ai Group, I accept that the cross-reference in proposed clause 13.3(a) to clause 13.1 is incorrect and needs to be modified. Currently, the equivalent to proposed clause 13.3(a) is clause 13.1(c)(i). Clause 13.1(c) currently provides:

(c) Chainsaw and other additional costs

(i)  Pieceworkers who, with the agreement of the employer, supply, operate and maintain their own chainsaws will be reimbursed for the supply of that equipment as per clause 13.1.

(ii) Pieceworkers will be reimbursed for all costs incidental to and directly connected with piecework in one of the following methods as agreed between the employer and the employee concerned:

•  incorporating the costs into the piecework rate;

•  by calculating the costs and applying an additional flat rate or percentage rate to the piecework rate; or

•  by reimbursement of the actual amount involved.

[11] In my view, it is clear that what is intended is that where a pieceworker by agreement provides and uses their own chainsaw pursuant to clause 13.1(c)(i), they are to be reimbursed in accordance with clause 13.1(c)(ii), since that is the only provision in clause 13 which is concerned with the reimbursement of work expenses incurred by the employee. The position is made clear upon analysis of the pre-modern award provision from which clause 13.3(c) was ultimately derived. Clause 15.6.3 of the Timber and Allied Industries Award 1999 provided:

15.6.3 Chainsaw and other additional costs

(a) Pieceworkers who, with the concurrence of the employer, supply, operate and maintain their own chain saws shall be reimbursed for the supply of such equipment as per this clause.

(b) All Pieceworkers will be reimbursed for all costs incidental to and directly connected with piecework in one of the following methods as agreed between the employer and the employee concerned:

(i) incorporating the costs into the piecework rate;

(ii) by calculating the costs and applying an additional flat rate or percentage rate to the piecework rate;

(iii) by reimbursement of the actual amount involved.

[12] The equivalent provision in the 2010 version of the Timber Award (clause 12.5(c)) was drafted in the same terms as the above provision of the pre-modern award. However, the change in the current 2020 Timber Award to a general reference to clause 13.1 has slightly obscured the position and did not represent a precisely accurate translation of the pre-existing position. In my view, the most precise way of expressing what is intended would be for clause 13.1(c)(i) to say ‘as per clause 13.1(c)(ii)’. In the context of the proposed clause 13.3(a), the words ‘as per clause 13.1’ shall therefore be changed to ‘as per clause 13.3(b)’.

Manufacturing Award

Submissions

[13] In relation to the Manufacturing Award, the Ai Group submitted that it agreed with the conclusion at paragraph [46] of the 18 March decision that a ‘principal purpose test’ should be used in the definition of the scope of operation of the furnishing employees of small business redundancy provision, but contended that the proposed clause 46.4(b)(ii) nonetheless expanded the scope of the provision beyond employees encompassed by clauses 6.1-6.6 of Furnishing Award. The Ai Group said this was the case because the references to ‘the industries specified in clauses 4.8(a)(i) and 4.8(a)(iii)’ in the proposed clause 46.4(b)(ii) introduces ‘actions” in relation to the specified articles that are broader than the type of work referred to in clauses 6.1-6.6 of the Furnishing Award 2003. Clause 4.8(a)(i) encompasses ‘the manufacture, making, assembly, processing, treatment, fabrication and preparation of’ relevant articles, and clause 4.8(a)(iii) refers to ‘the repair, refurbishment, reconditioning, maintenance, installation, testing and fault finding of” relevant articles, whereas terms of this breadth do not appear in clauses 6.1-6.6 of the Furnishing Award 2003. The Ai Group proposed that clause 46.4(b)(ii) be redrafted as follows:

“the employee’s principal purpose of employment is to perform work in any of the industries specified in clauses 4.8(a)(i) and 4.8(a)(iii) in respect of any of the following items covered by the Award in respect of employees for whom the principal purpose of their engagement is the manufacture, repair or installation of:…”

[14] The Ai Group also made the following submissions about the list of articles in proposed clause 46.4(b)(ii):

•  there is a confusing overlap between the reference to ‘frames (pictures and mirrors)’ in the first bullet point and ‘picture frames other than wood’ in the ninth bullet point, and this should be combined as ‘frames (pictures or mirrors) other than wood’;

•  the reference to ‘swings’ in the sixth bullet point is not derived from the Furnishing Award 2003 or clause 4 of the Manufacturing Award and should be deleted;

•  there should be a specification that the items otherwise specified in the sixth bullet point are ‘made from other than wood’.

[15] The CFMMEU stated that it did not wish to make any further submissions in relation to the Manufacturing Award.

Consideration

[16] I do not accept that the Ai Group’s submissions that the ‘actions’ which would be encompassed by the proposed clause 46.4(b)(ii) via the reference to ‘the industries specified in clauses 4.8(a)(i) and 4.8(a)(iii)’ would render it wider in scope than clauses 6.1-6.6 of the Furnishing Award 2003. The provisions in clauses 6.1-6.6 of the Furnishing Award 2003 use differing formulations to describe the ‘actions’ covered but, for example, clause 6.1.1 refers to ‘preparing, packing, assembling, manufacturing, repairing or fixing’ in relation to (relevantly) furniture and clock cases, and this does not appear to be necessarily narrower that the actions described in clauses 4.8(a)(i) and 4.8(a)(iii) of the Manufacturing Award. Further, it must be borne in mind that many of the expressions used in all these provisions have overlapping meanings: for example, words such as ‘preparing’, ‘making’ ‘assembling’ and ‘fabrication’ appear to me to be wholly or substantially encompassed by the word ‘manufacturing’.

[17] Nonetheless, the alternative approach proposed by the Ai Group has a degree of attraction, not because it better reflects the relevant ‘actions’ encompassed by clauses 6.1-6.6 of the Furnishing Award 2003, but rather because it points the way to a simpler and more elegant drafting solution which omits the need to cross-refer to clauses 4.8(a)(i) and 4.8(a)(iii). For that reason I will adopt Ai Group’s formulation of ‘manufacture, repair or installation’, except that I will add a reference to tuning and servicing of musical instruments to reflect clause 6.3 of the Furnishing Award 2003. The Ai Group’s draft will have to be modified however because it doubles up in in its reference to the ‘principal purpose’ of the employee’s employment. It will remain the case, of course, that proposed clause 46.4(b)(ii) cannot have a coverage wider than that of the Manufacturing Award as prescribed by clause 4 of the award. This means, for practical purposes, that the work must fall within the industries described in clauses 4.8(a)(i) and 4.8(a)(iii).

[18] In respect of the changes to the list of articles prescribed by proposed clause 46.4(b)(ii) suggested by Ai Group, all of those changes will be adopted. Accordingly, clause 46.4(b)(ii) will provide:

(ii) the principal purpose of the employee’s employment is manufacturing, repairing, installing or (in the case of musical instruments) tuning or servicing any of the following items:

•  furniture (except where made of wood or timber, manufactured wood or timber products);

•  clock cases (except where made of wood or timber, manufactured wood or timber products);

•  optical instruments, but not including spectacle lenses or frames;

•  lamp shades;

•  furnishings made from cane, bamboo and other like materials;

•  upholstery, furnishing drapery, blinds, screens, awnings, mattresses and bedding made from other than wood;

•  flooring products made from other than wood;

•  frames (picture or mirrors) made from other than wood;

•  musical instruments made from other than wood.

Conclusion

[19] Determinations varying the Timber Award and the Manufacturing Award to give effect to this decision and the 18 March decision will be published in conjunction with this decision. As stated in the 18 March decision, the variations will take effect on 2 May 2022.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR740140>

 1   [2022] FWCFB 33

 2   Ibid at [18]

 3   Ibid at [23]

 4   Ibid at [38]-[41]

 5   Ibid at [47]

 6   Ibid at [25], [49]