Four yearly review of modern awards - [2015] FWCFB 2856

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

Timber Industry Award 2010
(AM2014/92)

Timber and paper products industry

SENIOR DEPUTY PRESIDENT WATSON
SENIOR DEPUTY PRESIDENT O’CALLAGHAN
COMMISSIONER CRIBB MELBOURNE, 18 JUNE 2015

4 yearly review of modern awards – substantive issues – coverage in relation to potential 
overlap between Timber and Building awards – refused; penalty for late payment of wages by 
EFT – refused; ordinary hours – clause 27 – varied in part; charred timber allowance re 
application of allowance – current term expresses allowance to be daily allowance – refused; 
leading hand allowance – insertion of “per week” adds clarity to operation of allowance as a 
weekly allowance; NES provides same effect as clause 36.4 – clause deleted; plywood 
scarfing machinist – current term uncertain and difficult to apply – clause varied; pulp and 
paper stream Level 6 – change would alter substance of term – refused; definitions in clause 
3.1 – award varied by removing formatting and superfluous definitions and applying 
consistency in definitions in award.

[1] In a Statement on 13 August 2014,1 the 4 Yearly Review Full Bench dealing with 
various Group 1 awards referred various issues raised in respect of the current Timber 
Industry Award 20102 (the Timber Award) to this Full Bench to hear and determine.3

Directions were made for the hearing and determination of the matters referred: clause 25—
Payment of wages, proposed by the Construction, Forestry, Mining and Energy Union 
(Forestry and Furnishing Products Division) (CFMEU) (other than in respect of a legal 
argument based on Andrews and Others v Australia and New Zealand Banking Group 
Limited4 (Andrews Case) against the proposed new clauses 25.7 and 25.8 identified by Master 
Builders Australia Limited (MBA)) and the variation of clause 4—Coverage by inserting a 
new clause 4.6 as proposed by the Housing Industry Association (HIA) on 18 November 
2014.

[2] In Amended Directions of 18 November 2014, the President directed this Full Bench 
to hear and determine further substantive issues raised during the 2014 4 yearly review of 
modern awards (the Review) with respect to the Timber Award. A full list of matters for 
determination by us was set out in Schedule F of the Amended Directions. Further directions 
were made by this Full Bench on 4 December 2014 to include the additional matters referred 
to us. 

[2015] FWCFB 2856

DECISION


AUSTRALIA FairWork Commission




 



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[3] Further, the 18 November 2014 Amended Directions constituted another Full Bench to 
hear and determine the legal argument raised by the CFMEU’s proposed variation in respect 
of the payment of overtime rates for late wages in clause 25 of the Timber Award, which the 
MBA contended affected up to 22 additional modern awards. That issue was heard and 
determined by the other Full Bench (the Andrews Full Bench) on 11 March 2015.5

[4] The issues before us for determination are set out later in this decision.

Approach to the proposed variations

[5] A decision6 in respect of the Textile, Clothing, Footwear and Associated Industries 
Award 20107 sets out an approach to proposed variations in the context of the Review,8

drawing on the Fair Work Act 2009 (the Act), the decision9 of the 4 Yearly Review of 
Modern Awards: Preliminary Jurisdictional Issues Full Bench (Preliminary Issues Full Bench) 
and a decision10 by the Security Services Industry Award 2010 4 Yearly Review Full Bench. 
We apply that approach in determining the current proposals to vary the Timber Award.

Issues for determination

[6] The issues that we have been directed to determine are set out in Schedule F to the 
President’s Amended Directions of 18 November 2014. 

[7] They are:

1. HIA’s proposed variation of the coverage in clause 4 of the Timber Award 
(clause 3 of the exposure draft) – Coverage;

2. CFMEU’s proposed variation of clause 25 of the Timber Award (clause 15 of 
the exposure draft) – Payment of wages; 

3. CFMEU’s proposed variation of clause 27.2 and raised in the Award Brief 
clause 30.1(a) of the Timber Award (clause 12.2 and 24.1(a) of the exposure 
draft) – Ordinary hours of work—day workers and Payment for working 
overtime;

4. CFMEU’s proposed variation of clause 21.3 of the Timber Award (clause 20.9 
of the exposure draft) – Charred timber;

5. CFMEU’s proposed variation of clause 21.4 of the Timber Award (clause 20.4 
of the exposure draft) – Leading hands;

6. CFMEU’s proposed variation of clauses 36.4(a), (b) and (c) of the Timber 
Award (clauses 28.5(a), (b) and (c) of the exposure draft) – Day off in lieu of 
holidays falling on a Saturday or Sunday;

7. CFMEU’s proposed variation of Schedule B.3.1(b)(iii) of the Timber Award 
(Schedule A.3.1(b)(iii) of the exposure draft) – plywood scarfing machinist; 








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8. CFMEU’s proposed variation of Schedule D.1.6 – 2nd dot point of the Timber 
Award (Schedule C.1.6 – 2nd dot point of the exposure draft) – Classification 
definitions – Pulp and paper stream – Level 6 (relativity 105%); and

9. Proposed variation of clause 3.1 of the Timber Award (Schedule K of the 
exposure draft) – Definitions and interpretation.

[8] Issues 3 – 9 inclusive arose from a briefing note, setting out any issues identified in the 
Timber Award (the Award Brief) prepared by staff of the Fair Work Commission (the 
Commission) and published on 6 June 2014.

DECISION

1. HIA’s proposed variation of the coverage in clause 4 of the Timber Award (clause 
3 of the exposure draft) – Coverage

[9] The HIA proposes the insertion of the following new provision within clause 4—
Coverage of the Timber Award:

“4.6 For the avoidance of doubt an employer, whose employees carry out works 
incidental to or, as a consequence of, the predominant business activity of that 
employer, does not affect the modern award coverage of that business under this 
award.”

[10] The variation is proposed by the HIA on the following basis:

“ The unique nature of the residential construction industry presents a set of 
circumstances that requires the Timber Award to contain additional provisions in 
relation to modern award coverage.

 During award modernisation the on and off-site construction industry awards were 
considered at different stages of the Part 10A process. As such ‘cross coverage’ 
issues across these awards were not properly considered.

 Despite indications by the AIRC to the contrary, coverage provisions were not 
reconsidered at the conclusion of the award modernisation process in light of 
finalised awards.

 The proposal does not seek to interfere with the proposition that more than one 
modern award may apply to an employer’s business, nor does it seek to reduce 
modern award coverage.

 . . . the proposed variation is directed at giving primacy to industry coverage in line 
with the intention expressed during award modernisation.








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 To date the judicial approach to award coverage has given greater weight to the tasks 
of employees over and above consideration of the industry an employer operates. 
This tendency gives rise to uncertainty in relation to the appropriate award that 
should cover businesses engaged in a range of off and on-site construction related 
activities.”

 A survey conducted of HIA members (HIA Survey) demonstrates that “it is not clear 
on the face of the Timber Award how it might apply in circumstances of overlapping 
modern award coverage”.

[11] The unique set of circumstances in the residential construction industry relied on by 
the HIA were said to be found in:

its importance as a component of the Australian economy, providing 2.3% of total 
employment, with an annualised value of dwelling construction equivalent to 5%
of GDP;

its importance is adding to Australia’s housing stock;

a high level of award reliance by small businesses within the sector, according to 
the HIA Survey;

the absence of dedicated human resource departments within businesses in the 
timber industry and the non-engagement of external consultants to manage 
employment compliance obligations;

the “nature of the businesses that operate in the residential construction industry 
range from specialised trade contractor businesses . . . to new home and renovation 
builders, to those that both manufacture and install kitchens and bathrooms”; 

the broad range of activities carried out by businesses in order to adapt to market 
conditions; and

the common occurrence of circumstances where workshop based employees may 
be required to undertake irregular and incidental work on a building site. 

[12] In support of its application the HIA relied on comments from its members who 
participated in the HIA Survey, seeking a simpler award and contended that s.134(1)(g) of the 
Act which focuses on “the need to ensure a simple, easy to understand, stable and sustainable 
modern award system for Australia that avoids unnecessary overlap of modern awards” is the 
“principal limb” of the modern awards objective of relevance to its proposed variation. It 
submitted that there is uncertainty as to award coverage of a business which carries out both 
on and off site work and in circumstances in which the work performed by the business 
manufactures in-built furniture and carries out shopfitting work.

[13] The HIA referred to its application (the 2012 variation) in the 2012 Review of modern 
awards to vary clause 4—Coverage of the Building and Construction General On-site Award
201011 (the Building Award) to include the Timber Award as a part of the list of exclusions 








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under clause 4.2 of the Building Award. It also sought to vary clause 4.8 of the Building 
Award to amend the “Overlapping Coverage Clause” determined by the Award 
Modernisation Full Bench12 which focused on “the work performed by the employee and to 
the environment in which the employee normally performs the work”13 to read “considering 
the employer’s predominant work activities and environment in which the work is 
predominantly performed”14 and inserting a new provision in the Building Award that read:

“This award does not apply to employers whose predominant activities are the 
manufacture or fabrication of building products in an off-site or factory 
environment.”15

[14] The HIA sought to distinguish that matter and the decision16 in Master Builders 
Australia Limited (the 2012 Decision) arising from it on several bases, concluding that the 
decision should be given little weight in determining the current application.

[15] The HIA’s variation was supported by the MBA “because it would clarify that once a 
business is determined to fall within the timber industry sectors referenced at clause 4.2 of the 
[Building] Award, in the event of overlapping coverage, work carried out by an employee 
which is incidental or ancillary to the principal business of the employer will not change or 
make invalid coverage under the [Building] Award”.17

[16] The Ai Group was supportive of the intent of HIA’s variation of seeking that 
employees covered by the Timber Award are not inappropriately subject to coverage claims in 
relation to the Building Award, but expressed concerns that the proposal advanced by the HIA 
would have unintended and inappropriate consequences where an employer might be covered 
by multiple awards.

[17] The HIA’s proposed variation was opposed by the Construction, Forestry, Mining and 
Energy Union (Construction and General Division) (CFMEU (Construction)) and The 
Australian Workers’ Union (AWU).

[18] The CFMEU (Construction) opposed the HIA variation on several bases:

the issue of “overlapping award coverage was squarely before the Award 
Modernisation Full Bench” when it considered the making of the Timber Award; 

there is “no uncertainty as to coverage” of the Timber Award; 

the proposed HIA variation would “significantly alter the coverage” of the Timber 
Award and “lead to greater uncertainty”; 

the HIA’s proposed variation would “potentially reduce the existing safety net of 
employees currently covered by other awards”; and 

the “lack of probative evidence and cogent reasons supporting the HIA variation”. 








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[19] The CFMEU (Construction) submitted that the clear intent of the HIA, in putting 
forward its proposed variation, was to “significantly change award coverage so that the work 
performed by an employee and the environment in which the employee normally performs the 
work will no longer be a consideration in award coverage if the predominant activities of an 
employer” are covered by the Timber Award. It submitted that the HIA variation would 
“nullify the overlapping award coverage provision contained with clause 5.5” of the Timber 
Award. 

[20] The CFMEU (Construction) submitted that:

“The practical effect of the HIA variation would mean that if a roof truss manufacturing 
company also had an on-site installation crew who were in the minority of employees, 
the Building and Construction General On-site Award 2010 would no longer apply to 
the workers installing on-site. The same scenario could also apply to companies 
manufacturing timber windows and timber doors. Another example would be a 
furniture manufacturer who also had a side activity in shopfitting, joinery work or 
manufacture of shower screens. The effect would be to remove coverage of the Joinery 
and Building Trades Award 2010 from the side activity.”18

[21] The CFMEU (Construction) submitted that, if made, the variation would reduce 
employees’ conditions of employment where they are better under the Joinery and Building 
Trades Award 201019 (the Joinery Award) or the Building Award, reduce employment costs 
for employers covered by the Timber Award and give those employers a competitive 
advantage compared to employers who remain covered by the Joinery Award and/or Building 
Award. 

[22] The CFMEU (Construction) also submitted that the issue of overlapping coverage 
between the Joinery Award and the Timber Award was “fully ventilated” before the Award 
Modernisation Full Bench which made the Timber Award. It submitted that there was no need 
for the Award Modernisation Full Bench to “consider the issue because it was well recognised 
by the major industry parties that there was no overlap between these awards”. Installation on-
site was always covered by the building and construction awards.

[23] The CFMEU (Construction) further submitted that the 2012 Decision is relevant. It 
submitted that whilst the current Review may be wider in scope than the 2012 Review, the 
matters to be considered now are very similar to those dealt with in the 2012 Decision. It 
submitted that consistent with the Preliminary Issues Decision, in regard to “contested claims, 
cogent reasons and probative evidence would be required to justify any variation, and that the 
Commission should take into account previous decisions relevant to any contested issue”.

[24] The AWU submitted that the “proposed variation if accepted will displace the existing 
Award coverage arrangements for a large number of workers and will lead to changes in 
substantive terms and conditions of employment”. It submitted that, a change of this type 
“should not be made lightly”. It also submitted that the HIA variation should be rejected 
because:

The “HIA submissions fail to adequately articulate the basis upon which the 
proposed variation meets the modern awards objective. 134(1) (a–h inclusive)”;








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The “HIA has not adduced probative evidence sufficient to demonstrate the facts 
supporting the proposed variation”;

The “Commission has previously dealt with the matter and the relief sought is at 
odds” with the 2012 Decision; and

The “HIA does not advance any ‘cogent reasons’” for not following the 2012 
Decision.

Decision in relation to the HIA’s proposed variation of clause 4—Coverage

[25] The variation to clause 4.6 of the Timber Award is brought by the HIA, which 
predominantly represents the residential building sector of the Australian economy. The 
application is brought on the basis that the potential overlap as between the Timber Award 
and the Building Award was not addressed in the making of the awards in the same way as it 
was in relation to the Joinery Award.20

[26] The HIA submitted that its proposed variation would “‘clarify’ that once a business is 
determined to fall within the timber ‘industry’, . . . in the event of overlapping coverage works 
carried out by an employee” covered by another modern award that are incidental or ancillary 
to the principal business, that work would fall within the coverage of the Timber Award.21 It 
submitted that the “variation does not seek to interfere with the proposition that more than one 
modern award may apply to an employer’s business nor does it seek to reduce modern award 
coverage”.22

[27] However, the variation, if made, would go beyond clarifying the existing coverage 
provision. The HIA’s submission is premised on the proposition that if most of the work23

undertaken by a business falls within the timber industry, any work undertaken by it which 
falls within an award classification in the Timber Award is regarded as being within the 
timber industry,24 whereas clause 4.1 provides that the Timber Award covers employers in the 
timber industry in respect of the work and persons performing such work as listed in the 
classification structure in the Timber Award to the extent that it is work within the timber 
industry.

[28] Notwithstanding the HIA’s submission and its preliminary words – “For the avoidance 
of doubt”, the inclusion of the new clause 4.6 would alter the basis of Timber Award coverage 
under the timber industry, extending the industry to include work outside of the timber 
industry as currently defined in the Timber Award, within the timber industry where the
predominant business activity of an employer is in the timber industry. The proposed new 
clause 4.6 would have a substantive effect by extending coverage of the Timber Award to 
include any work (for which there is a relevant classification) if the predominant business 
activity of the employer is within the timber industry and would have the effect of altering the 
current coverage arrangements in relation to the existing coverage by the Building Award of 
on-site construction industry workers, where the predominant activity of the business is not 
on-site construction.








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[29] If, as the HIA contends, the new clause 4.6 proposed does not alter the coverage of the 
Timber Award in that it would not extend the coverage of the Timber Award to an employer 
covered by it to employees carrying out incidental work outside of the coverage of the timber 
industry then it has no purpose and it would confuse, rather than clarify coverage of the
Timber Award. 

[30] Whilst the HIA drew attention to a specific circumstance in which workshop based 
employees may be required to undertake irregular and incidental work on a building site, the 
variation sought by the HIA extends beyond that circumstance. The HIA’s proposed variation 
is not limited to that specific circumstance and no specific variation was proposed in relation 
to that specific circumstance and the HIA’s substantive case and evidence were not directed to 
it.

[31] The HIA’s variation which we are required to consider and determine proposes a 
significant change to the coverage provision. The approach of the Commission in relation to a 
significant change was set out by the Security Services Industry Award 2010 4 Yearly Review 
Full Bench25 as follows:

“While this may be the first opportunity to seek significant changes to the terms of 
modern awards, a substantive case for change is nevertheless required. The more 
significant the change, in terms of impact or a lengthy history of particular award 
provisions, the more detailed the case must be. Variations to awards have rarely been 
made merely on the basis of bare requests or strongly contested submissions. In order 
to found a case for an award variation it is usually necessary to advance detailed 
evidence of the operation of the award, the impact of the current provisions on 
employers and employees covered by it and the likely impact of the proposed changes. 
Such evidence should be combined with sound and balanced reasoning supporting a 
change. Ultimately the Commission must assess the evidence and submissions against 
the statutory tests set out above, principally whether the award provides a fair and 
relevant minimum safety net of terms and conditions and whether the proposed 
variations are necessary to achieve the modern awards objective. These tests 
encompass many traditional merit considerations regarding proposed award 
variations.”

[32] The decision26 in relation to the 2012 variation of the Building Award proposed by the 
HIA during the 2012 Review is relevant and must be taken into account.27 Although the 2012 
variation proposed by the HIA approached the issue through a variation to clause 4.8 of the 
Building Award, the practical effect of what the HIA proposed in 2012 and now proposes by 
inserting a new clause 4.6 is of similar practical effect. The effect is to alter the award 
coverage applicable by reference to the employer’s predominant work activities and 
environment in which the work is predominantly performed, rather than the work performed 
by the employee and to the environment in which the employee normally performs the work. 

[33] In our view, the following conclusions in the 2012 decision28 apply equally to the 
current proposed variation:








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“[153] The HIA variation is directed to providing that award coverage is to be 
determined by the employer’s predominant activities and avoiding the prospect of 
having to apply multiple modern awards for similar activities within the one 
workplace. The HIA variation seeks to remove any overlap or potential overlap by 
providing that where overlap would otherwise arise, coverage is determined by the 
‘predominant activity’ of the employer, with the effect that employee’s undertaking 
work within the scope of the non-predominant activity would not be covered by the 
modern award which would apply under the terms of its coverage clause.

[154] Such an outcome is inconsistent with the clear terms of clause 4.8, as a 
mechanism applied generally across modern awards for deciding which modern award 
applies in the case of overlap or potential overlap. Further, in relation to the Building 
On-site Award, it is inconsistent with the clear distinction of the Award Modernisation 
Full Bench, between work undertaken in the context of the on-site building, 
engineering and civil construction industry and comparable work under classifications 
which is not undertaken in that on-site context. Such a distinction is clear in the 
decisions of the Award Modernisation Full Bench in relation to concrete batching, 
roadmaking and landscaping. The HIA proposal would fundamentally alter the effect 
of the provision and the position of the Award Modernisation Full Bench, considered 
both generally and in relation to potential overlap in respect of the Building On-site 
Award.

[155] Clause 4.8 was included in the Building On-site Award by the Award 
Modernisation Full Bench, in terms reflected generally within modern awards, to 
provide a basis for deciding which modern award applies in the case of overlap, 
having regard to the terms of the consolidated Award Modernisation Request and the 
submissions of interested parties. The variation proposed by the HIA fundamentally 
alters the intent and the effect of the provision formulated by the Award 
Modernisation Full Bench. The HIA’s case in support of the variation was directed to 
addressing confusion amongst its members in circumstances of potential overlap in 
coverage. However, the variation proposed by the HIA to the provision determined by 
the Award Modernisation Full Bench, to apply where an employer is covered by more 
than one modern award, significantly alters the effect of the clause, being directed to 
removing work from the coverage of the Building On-site Award, rather than 
providing a process to apply where overlap exists. No proper basis has been advanced 
for altering the focus within clause 4.8, from the work performed by the employee and 
to the environment in which the employee normally performs the work, to the 
employer’s predominant work activities. No basis has been established to support the 
inclusion of the HIA’s proposed clause 4.8(a) which is, in effect, a provision 
narrowing the coverage of the Building On-site Award and not, as it was intended to 
be, a basis for deciding which modern award applies in the case of overlap. The HIA 
has not made out a cogent reason for departing from the provision determined by the 
Award Modernisation Full Bench decision, generally or in the particular 
circumstances of the on-site building and construction industry. This element of the 
HIA application is refused.” [Citations omitted]








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[34] The HIA contended that the variation is required to provide clarity as to coverage in 
relation to circumstances of employers within the “residential construction industry who carry 
out a variety of on and off site construction related work”.29 In the event of potential 
overlapping coverage, clause 5.5 of the Timber Award provides that:

“Where an employer is covered by more than one award, an employee of that employer 
is covered by the award classification which is most appropriate to the work performed 
by the employee and to the environment in which the employee normally performs the 
work.”

[35] That overlapping coverage provision, determined by the Award Modernisation Full 
Bench is clear as to the approach to be taken in the event of overlapping coverage. The new 
clause 4.6 proposed would confuse, rather than clarify coverage of the Timber Award in 
circumstances of overlapping coverage by suggesting the application of a predominant 
business activity test.

[36] The HIA also submitted that “mixed industry” provisions in relevant pre-reform award 
coverage provisions at the time of the making of the Timber Award support the fact that it 
was “contemplated that employers may operate across different industries”.30 That proposition 
is correct so far as it goes. However, the “mixed industries” provisions recognised not only 
that employers may operate across different industries but also that they may be subject to the 
application of multiple awards with different hours and leave prescriptions. Within a mixed 
business the “mixed industry” provisions is directed to the application of consistent hours of 
work and leave arrangements to a minority of employees within an enterprise for whom 
different hours and leave provisions apply through the application of a different award. The 
“mixed industry” provisions did not alter or override the award coverage applicable to the 
minority group of employees but simply allowed the employer to apply common hours and 
leave arrangements to them, reflecting the predominant award where multiple applicable 
awards prescribed different arrangements. 

[37] We do not accept the HIA’s proposition that, in making the Timber Award, the Award 
Modernisation Full Bench failed to address a potential overlap between the Timber Award 
and the Building Award. The HIA31 relied on a decision32 by the Award Modernisation Full 
Bench and the statement dealing with the Timber Award 2009 exposure draft,33 in publishing 
the draft, which recognised that some “refinement” of coverage clauses in other modern 
awards may be required so as to “clarify the award’s scope” and referring to the Joinery 
Award, submitting that the Award Modernisation Full Bench failed to address itself on this 
issue. However, the Award Modernisation Full Bench did consider submissions about the 
coverage clause proposed in the 2009 exposure draft, as detailed by the CFMEU 
(Construction)34 in determining the terms of the Timber Award. Whilst the issue of overlap 
between the Timber Award and the Joinery Award was addressed, no submissions were made 
in respect of the Building Award. No issue arose as to a potential overlap between the Timber 
Award and the Building Award.

[38] The HIA has not demonstrated unique characteristics of the residential construction 
industry which would justify the proposed variation. The factors relied upon as unique 
characteristics of the residential construction industry advanced by the HIA were:








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general observations about the economic and social contribution of the sector 
based, presumably on Australian Bureau Statistics (ABS) data; 

general observations as to the need for flexibility of businesses; and

observations as to the activities undertaken in the timber industry, award 
dependence and business size, based on the results of the HIA Survey.

[39] As the CFMEU (Construction) observed, some of those considerations apply generally 
to the private sector construction industry as a whole. The first two matters are not unique to 
the residential construction industry and the HIA had not established how these factors, in any 
case, support the variation sought.

[40] Other factors relied on by the HIA were based on information from its members in the 
HIA Survey. The HIA Survey was responded to by 363 HIA members of the 4,832 HIA 
members (of the total members around 20,000)35 who received the HIA Survey. The HIA 
Survey respondents were not confined to employers covered by the Timber Award but 
included builders, contractors, manufacturers/suppliers and developer/commercial builders. 
Indeed, only 1% of respondents “best classified” their business as the timber industry36 and 
only 14 of the 363 respondents to the HIA Survey selected the Timber Award as the modern 
award applying to them.37 Only two comments reported in the HIA Survey specifically refer 
to the Timber Award,38 one of which reported that the employer and its staff consider their 
work to be directly related to the construction industry and not the timber industry.39

[41] The HIA Survey was attended by an introduction stating: 

“The Fair Work Commission is currently conducting a review of the modern awards. 
HIA will be putting forward views on behalf of the industry about how the modern 
awards have been operating since their commencement in 2010. To help HIA prepare 
its submission we have compiled a short survey for you to let us know about your 
experience with the modern awards and what you think should be done to improve 
them.”40

[42] This introduction would seem to invite responses from those seeking a change based 
on their interests. The HIA Survey carries limited weight as it represents a small, self-selected 
sample of the HIA membership. 

[43] In answer to the question “Do you think it is easy to determine which Modern Award
applies to your business and your employees? What changes should be made to make the 
coverage of modern awards simpler and easier to understand” for which a comment could be 
recorded, 53% did so.41 Whilst there were many complaints made and suggestions as to 
improvements to modern awards in relation to terms and conditions and ease of 
understanding, only a very small group of respondents provide a response relevant to the 
application of modern awards to them and even fewer responses relevant to potential overlap 
between modern awards. Of around 150 answers, 15 or so made a general complaint about 
determining which modern award applied, going to the difficulty of identifying and accessing 
the relevant modern award at all, rather than potential overlap between modern awards. About 
six respondents did identify specific coverage issues. Only three specifically referred to the 








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Timber Award and only two referred to on-site construction work. Clerical employee issues 
were raised more often. These responses do not suggest a widespread issue of the nature 
relied on by the HIA in relation to the Timber Award, whatever the characteristics of the 
residential construction industry. To the extent that the HIA contends that the variation it 
proposes is directed to addressing a problem whereby employers who undertake work covered 
by the Timber Award are confused about whether or not the undertaking of work on-site is 
covered by the Building Award means the work covered by the Timber Award becomes work 
covered by the Building Award,42 the evidence brought does not support the existence of such 
confusion. The HIA Survey does not provide probative evidence of significant practical 
problems arising from any overlap between the Timber Award and other modern awards.

[44] We are not persuaded to vary the Timber Award as sought by the HIA.

[45] The practical effect of the variation would be significant, altering coverage 
arrangements between the Timber Award and some other modern awards – most notably the 
Building Award and the Joinery Award – and substantially altering the terms of the 
“Overlapping Coverage Clause” and its operation in respect of the Timber Award. The 
variation was supported by little more than the proposition that it is necessary to (and would 
have the effect of) alleviating uncertainty as to coverage of the Timber Award amongst its 
members where it exists, a proposition which was not supported by evidence of practical 
problems arising from any overlap between the Timber Award and other modern awards. The 
HIA falls well short of establishing a cogent reason for varying the Timber Award in the 
manner proposed.

[46] The issue of the coverage of the Timber Award was addressed during the Award 
Modernisation Process. No cogent reason was advanced to justify the 2012 variation to the 
terms of clause 4.8 of the Building Award, which arose out of that process in relation to the 
Timber Award.

[47] The evidentiary case of the HIA does not support the variation. The HIA has not 
provided detailed evidence of the operation of the Timber Award, the impact of the current 
provisions on employers and employees covered by it and the likely impact of the proposed 
changes which would support the variation its proposes. The HIA has not established that the 
Timber Award, varied as it proposes in respect of the coverage clause, provides a fair and 
relevant minimum safety net of terms and conditions and that the proposed variation is 
necessary to achieve the modern awards objective. 

[48] We decline to vary clause 4 of the Timber Award as sought by the HIA.

2. CFMEU’s proposed variation of clause 25 of the Timber Award (clause 15 of the 
exposure draft) – Payment of wages

[49] The Timber Award provides for a penalty for late payment if the employees are paid 
in cash. The CFMEU seeks to vary clause 25—Payment of wages of the Timber Award, to 
provide for a penalty to be payable if wages paid by Electronic Funds Transfer (EFT) are paid 
late. The CFMEU submitted that the variation is necessary given the predominance of 
payment by EFT.








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[50] To give effect to its proposal, the CFMEU initially proposed on 5 June 2014 a 
variation which would:

1. Replace the current clause 25.5(b):

“(b) If an employee is paid wages by cash and is kept waiting for their wages on 
pay day after the usual time for ceasing work, the employee is to be paid at overtime 
rates for the period they are kept waiting.”

with:

“(b) Where wages are paid via electronic funds transfer (EFT) to the employee’s 
bank account, wages shall be made available for employee’s withdrawal no 
later than the close of business, from the nominated bank, on the day such 
wages are due”; and

2. Insert the following new clauses 25.7 and 25.8 immediately after the existing 
clause 25.6:

“25.7 Time of Payment

Wages shall be paid not later than two days following the expiration of the pay 
period and in any case not later than Friday.

25.8 Late payment

(a) Where an employee’s wages are paid by electronic funds transfer, cash 
or cheque and those wages are unpaid for more than 15 minutes after 
close of business on any pay day the employee shall be paid at 
overtime rates for three hours or until the hour of payment, whichever 
shall first occur if payment be made on the day of default.

(b) If payment is not made on the day wages are due the employee shall in 
addition be paid at overtime rates for all ordinary working hours 
between the end of the day of default, and the day of payment provided 
that payment for working ordinary hours at this penalty rate shall not 
exceed payment as for 38 hours.

(c) In the event that it can be shown that technical problems within the 
EFT system beyond the control of the employer prevent an employee 
from collecting his/her wages at the close of business at the nominated 
bank on the day such wages are due, the employer shall not be liable to 
pay the penalties prescribed above provided the employer takes 
immediate action to ensure such employee receives due payment or 
part payment by cash or, where agreed, by cheque and ensures that the 
employee receives due payment by 11.00AM the next day.”








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[51] On 9 April 2015, the CFMEU filed an amended proposed variation, modifying its 
initial proposal to address a concern that an employer might be subject to the prescribed 
overtime rate, where wages are paid by EFT, if the delay in paying wages on time was due to 
the error or default of another, such as the employee’s financial institution. The CFMEU 
submitted that the intention of the amended variation is that an employer would not be liable 
to the overtime rate if it had done all that it needed to do to ensure that payment was made 
and, when advised that an employee had not been paid, to pay affected employees by cash (or, 
if agreed, by cheque) by, as the CFMEU currently provides, 11.00 a.m., on the next business 
day. 

[52] Further, the CFMEU’s proposal, as varied, did not prescribe a day by which 
employees are to be paid wages, as had been reflected in the initially proposed clause 25.7. 
Instead, the trigger for the overtime rate is non-payment by an “employee’s usual pay day”.

[53] The effect of the amended proposed variation was to delete clause 25.5 of the Timber 
Award which provides:

“25.5 Wages to be paid during working hours

(a) Where an employee is paid wages by cash or cheque such wages are to 
be paid during ordinary working hours. 

(b) If an employee is paid wages by cash and is kept waiting for their 
wages on pay day after the usual time for ceasing work, the employee 
is to be paid at overtime rates for the period they are kept waiting.”

and replace it with:

“25.5 Wages to be paid during working hours

(a) If an employee is paid wages by cash or cheque and the employee is 
kept waiting for their wages for more than 15 minutes after the usual 
time for ceasing work on their usual pay day, the employee shall be 
paid at overtime rates for the period the employee is kept waiting to be 
paid up to a maximum of 3 hours, if payment is made on that day. If 
payment is not made on that day, the employee shall, in addition, be 
paid at overtime rates for the number of ordinary working hours the 
employee is kept waiting to be paid, up to a maximum of 38 ordinary 
working hours.

(b) Subject to clause 25.5(c), if an employee is paid by electronic funds 
transfer and the employee’s wages are not available in the account of 
the employee’s nominated financial institution by close of business on 
the employee’s usual pay day, the employee shall be paid at overtime 
rates for the number of hours (or part thereof) the employee is kept 
waiting for their wages to become available, up to a maximum of 3 
hours, if payment is made on that day. If payment is not made on that 
day, the employee shall, in addition, be paid at overtime rates for the 








[2015] FWCFB 2856

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number of ordinary working hours (or part thereof) the employee is 
kept waiting for their wages to become available, up to a maximum of 
38 ordinary working hours.

(c) An employer is not liable to pay the overtime rate prescribed in clause 
25.5(b) if, and only if:

(i) the payment delay was not due to the employer’s failure to take 
any step or perform any requirement within its control to ensure 
an employee receives his or her wages on the employee’s usual 
pay day; and

(ii) the employer paid the employee’s wages in cash (or if agreed 
by cheque) by 11am on the next business day (or such later time 
as may be agreed) after it was notified that the employee’s 
wages were not available in the employee’s nominated 
account.”

[54] The CFMEU submitted that the provision it seeks supports and buttresses the 
desirability about being paid on time by providing compensation of some degree for people 
who are affected, with the clause, as varied by its proposal, operating as a deterrent to 
employers that do not pay as the Timber Award requires.

[55] The CFMEU submitted that at present the Timber Award provides for payment of 
waiting time at penalty rates only when wages are payable in cash. It submitted that this cash 
only late payment provision fails to deal with the actual practice in relation to payment of 
wages in the timber industry whereby EFT is the dominant, if not universal, method of 
payment of wages.

[56] The CFMEU accepted that a similar variation to the Timber Award was considered, 
and rejected, by Deputy President Gooley during the 2012 Review.43 However, the CFMEU 
submitted that the 2014 Review is broader in scope than the 2012 Review and the variation is 
supported by:

“a. The historical context applicable to each modern award

b. The need to provide a fair and relevant safety net of terms and conditions 
which takes into account the modern awards objectives set out in s.134 of the 
Act.

c. The necessity of a particular variation having regard to the modern award 
objectives.”

[57] The CFMEU submitted that the provision currently contained in the Timber Award 
was not sought by any party in submissions during the Award Modernisation Process, with 
clause 25.5 appearing to be based on the provision44 now contained in clause 34.2 of the 
Manufacturing and Associated Industries and Occupations Award 201045 (the Manufacturing 
Award). It further submitted that there was no uniform approach to this issue across modern 








[2015] FWCFB 2856

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awards, with the MBA submission of 5 November 2014 identifying 13 awards with EFT late 
payment provisions. The CFMEU noted that the Racing Industry Ground Maintenance Award 
201046 contains a provision which requires payment of a penalty at the level of “3.9% of the 
standard rate per week for each day on which the wages remain unpaid”47 including in 
circumstances where wages are paid by EFT.

[58] The CFMEU also relied on the inclusion in the Timber and Allied Industries Award 
199948 (the 1999 Timber Industry Award) of the provision for late payment of wages by EFT. 
That provision was removed during the award simplification process in 1999 on the basis that 
the relevant clauses “go into unnecessary detail”,49 but reinserted by Commissioner Blair in 
2007 on the basis that the term did not provide “anything additional [to] what had already 
existed prior to the award simplification process” and the removal of the provision “created 
uncertainty and ambiguity”.50

[59] The CFMEU submitted that the late payment provisions covering EFT payment were a
“necessary feature of the safety net” in the majority of States and industries now covered by 
the Timber Award, including two federal common rule awards in the State of Victoria and 
one in the Australian Capital Territory and the relevant federal and State awards in both South 
Australia and Tasmania. 

[60] In addition, it submitted, some but not all of the State awards in Queensland prescribed 
a payment at a penalty rate in respect of late payment by EFT.

[61] The CFMEU submitted that the proposed new clauses 25.7 and 25.8:

 will “encouraging enterprise bargaining on the issue of late payment of wages”; 
and

 will better meet the needs of low paid employees, having regard to the financial 
stress and social deprivation which can result from the failure by an employer to 
pay wages on time.

[62] The CFMEU submitted that its proposed variations to clause 25 of the Timber Award
will not disadvantage employers as an employer will be able to avoid any additional cost by 
ensuring that its employees are paid on time. It submitted that an “employer will incur not one 
additional dollar of cost if they comply with the award and pay on time”.51

[63] The CFMEU relied on the CFMEU FFPD Survey (the CFMEU Survey) a survey52 of 
part of its membership which disclosed that 99% were paid by EFT, 24% of respondents 
reported that their wages had previously been paid late, 46% of whom said that this late 
payment had occurred since the commencement of the Timber Award in 2010, and 20% said 
that they had been paid late both before and after 2010.

[64] The AWU supported the variations proposed by the CFMEU.

[65] The Ai Group submitted that the Preliminary Issues Decision establishes the following 
key threshold principles:








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17

“ A proposal to significantly vary a modern award must be accompanied by 
submissions addressing the relevant statutory requirements and probative evidence;

 The Commission will proceed on the basis that a modern award achieved the modern 
awards objective at the time that it was made;

 Relevant previous Full Bench decisions will be taken into account and generally 
followed, unless there are cogent reasons for not doing so; and

 The variation sought must be necessary to achieve the modern awards objective, and 
not one that is merely desirable.”

[66] The Ai Group submitted that the CFMEU’s proposed new clause 25.8 fails against 
these principles. It further submitted that the CFMEU had failed to establish that its proposed 
variation satisfies the requirement, within s.138 of the Act, that the relevant award includes 
terms only to the extent necessary to achieve the modern awards objective.

[67] The Ai Group also submitted that the third element of the new clause 25.8—Late 
payment – of the CFMEU’s proposed variation, does not meet the requirements of s.136(1) –
“the clause is not one that is permitted or required by the Act” and relevantly, it is “not a term 
about any of the matters listed at ss.139(1)(a)–(j)” of the Act. It submitted that the proposed 
new clause 25.8 can “properly be characterised as the requirement to pay an employee at a 
particular rate (described as the ‘overtime rate’) for a specified period of time where an 
employer does not comply with clauses 25.5 and 25.7. It is a term about a penalty imposed on 
an employer for breaching clauses 25.5 and 25.7. The matters listed at s.139(1) do not include
a reference to a term that is about a penalty”.

[68] The Ai Group submitted that s.139(1)(e) of the Act permits the inclusion of an award 
term about penalty rates but penalty rates are a higher rate of pay to which an employee is 
“entitled in compensation for the inconvenience or disabilities associated with performing 
work at a particular time”. It submitted that the proposed new clause 25.8 is not about such a 
rate.

[69] The Ai Group submitted that the re-inclusion of the late payment provision into the 
1999 Timber Industry Award by Commissioner Blair in 2007 was “based upon an argument 
pertaining to ambiguity and uncertainty” and not on the merits and is of “little relevance to 
these proceedings”.

[70] The Ai Group also submitted that during the Award Modernisation Process, the Award 
Modernisation Full Bench published the 2009 exposure draft53 of the Timber Award which 
contained a payment of wages provision at clause 25, which was materially identical to clause 
25 as it currently appears in the Timber Award. The CFMEU filed submissions addressing the 
2009 exposure draft in which it submitted that the late payment of wages it had proposed, 
required the payment of a penalty where employees are paid late their wages by EFT, should 
be included in the Timber Award. The Full Bench considered submissions about the 
consequences of adopting provisions from the Manufacturing Award and their relevance to 
the timber industry and amended a number of provisions in the 2009 exposure draft. It did not 
amend the payment of wages provision, notwithstanding the submissions of the CFMEU. The 








[2015] FWCFB 2856

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Ai Group submitted that the Award Modernisation Full Bench clearly had regard to this 
matter in determining whether the terms of the Timber Award would provide a fair and 
relevant minimum safety net.

[71] The Ai Group submitted that the CFMEU had re-agitated its support for the late 
payment of wages clause in virtually identical terms to the clause now proposed during the 
2012 Review. It submitted that Deputy President Gooley refused the variation then sought on 
the basis that there was insufficient evidence before the Commission to indicate that late 
payment by EFT was a widespread problem and the Award Modernisation Full Bench had 
considered the proposed term arising out of the CFMEU’s submissions in relation to the 2009 
exposure draft and declined adopt it.

[72] The Ai Group submitted that the CFMEU had overstated the existence of a late 
payment of wages provision in respect of EFT, of the type it now seeks, in the pre-modern 
awards in the timber industry.

[73] The Ai Group also submitted that the proposed variation does not reflect the historical 
basis of the late payment of wage provisions, to provide for compensation to be paid at 
overtime rates for the period an employee is kept waiting for his/her pay by the employer at 
the workplace after working hours.54 It submitted that the CFMEU’s claim was at odds with 
the historical context of such provisions and its intended purpose.

[74] The Ai Group further submitted that the evidence called by the CFMEU falls well 
short of establishing that the variations proposed are necessary to achieve the modern awards 
objective. It submitted that of the nine witness statements filed, five simply referred to their 
witness statements that were relied upon by the CFMEU during the 2012 Review, which 
Deputy President Gooley found was insufficient in establishing the widespread non-
compliance alleged by the CFMEU. The evidence, in any case, only established that the 
incidence of such late payment was low and did not distinguish between complaints made 
regarding late payments prior to or after the making of the modern award. It submitted that the 
four remaining witness statements identified isolated instances of late payment by EFT.

[75] The Ai Group also submitted that even if the CFMEU’s submissions about widespread 
late payment were accepted, it had not established that the variations proposed will effectively 
address such late payment. It submitted that the proposed variations would simply add an 
additional obligation on employers but not necessarily aid in addressing the non-compliance 
that the CFMEU alleges exists.

[76] The Ai Group submitted that the evidence in these proceedings did not establish that
the Timber Award is not achieving the modern awards objective. It submitted that even if the
CFMEU could establish that its proposed variation is consistent with s.134(1)(a), equal 
weight must be given to each of the relevant considerations that follow, which weigh against 
granting the CFMEU’s claim:

 The inclusion of the term proposed “would raise the floor and thus narrow the gap 
between the award and likely bargaining outcomes”, contrary to the modern awards 
objective (s.134(1)(b));








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 To the extent that the proposed introduction of a “penalty and imposition of a 
significant regulatory burden deter employers from using this form of payment, the 
CFMEU’s claim cannot be reconciled” with s.134(1)(d);

 The imposition of a penalty introduces significant additional employment costs and 
imposes a regulatory burden on employers (s.134(1)(f));

 The need for a “stable modern awards system tells against the redetermination of 
this issue, which has been determined by this Commission twice in the past five 
years” (s.134(1)(g)); 

 To the extent that “matters arising under ss.134(1)(b), (d) and (f) impact upon 
employment growth, inflation and the national economy, this is also a relevant 
consideration that runs contrary to the CFMEU’s claim” (s.134(1)(h)); and

 Sections 134(1)(c), (da) and (e) are neutral considerations.

[77] The Australian Federation of Employers and Industries (AFEI) submitted that the 
proposed new clause 25.8 is not a modern award term “permitted or required” by the Act and 
the Commission has no jurisdiction to give effect to the CFMEU’s variation to the extent that 
it seeks inclusion of provisions that are not “permitted or required” by the provisions 
identified in ss.136(1)(a)–(d); or necessary to achieve the modern awards objective. AFEI 
submitted that the permissible term about a “penalty rate” in s.139(e) is different from a
“penalty” and is associated with imposing sanctions on a party for breaching their statutory 
obligations, as sought by the CFMEU variation. It submitted that “penalty rate” in s.139(e) 
carries a distinct meaning in industrial law – it is a term providing a “higher rate of pay in 
compensation for the performance of work under special conditions of time, place or 
circumstance” and that the proposed new clause 25.8 is not a “penalty rate” for the purposes 
of s.139(e) of the Act.

[78] The argument put by the MBA that the Commission lacked power to make the 
variations proposed by the CFMEU on the basis of a principle that is derived from the 
decision in the Andrews Case,55 a purported exercise of judicial power or the operation of the 
compliance framework established by the Act, was considered and rejected by the separately 
constituted Andrews Full Bench.56

[79] Beyond those arguments, the MBA submitted that the CFMEU had failed to show that 
the Timber Award was not achieving the modern awards objective as set out in s.134 of the 
Act. The MBA submitted that the CFMEU’s evidence disclosed partial payments to 
employees to assist them when their pay was not accessible due to EFT problems. It 
submitted that if the proposed variation to the Timber Award is made, “employers who made 
such partial wage payments would still be obliged to pay employees at overtime rates” and the 
“proposed variation would therefore act as a disincentive for employers to make similar 
payments in good faith in circumstances where a genuine failure to pay wages has occurred”
and would “actively discourage employers from acting ‘fairly’ in accordance with the modern 
awards objective”. The MBA further submitted that the variation sought would impose 
excessive employment costs on employers, who would be required to pay a disproportionate 
amount as penalty for any failure to meet their award obligations, a failure for which they 
already face penalties under the Act and also increased the regulatory burden on employers.








[2015] FWCFB 2856

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[80] The MBA also submitted that the CFMEU’s survey does not “show any problematic, 
systemic issues” in relation to late payment of wages. It submitted that the “survey does 
nothing other than reinforce the fact that the CFMEU seeks to impose a penalty ‘to ensure that 
employees are paid on time.’ The consequences of the imposition of that penalty far exceed 
the problem identified particularly in respect of the survey”. The MBA also raised concerns 
about the technical integrity of the CFMEU Survey.

[81] The HIA submitted that the “proposed variation goes further than simply penalising an 
employer for such conduct by way of an award breach, the proposal imposes a separate and 
distinct penalty for such conduct” and “goes significantly further than other Modern Awards 
that may provide some form of penalty for the late payment of wages”.

[82] The HIA submitted that the variation is not necessary to meet the modern awards 
objective and that:

 the “claim that the proposed variation would encourage enterprise bargaining is a 
fallacy”;

 the CFMEU’s evidence does “not demonstrate systemic late payment of wages”;
and

 the varied provision proposed is “punitive at best” and, in practical terms, “would 
act as a disincentive for employers to act in the best interests of their employees in 
circumstances of the late payment of wages”.

Decision in relation to the CFMEU’s proposed variation of clause 25—Payment of wages
of the Timber Award 

[83] The CFMEU proposal is to replace clause 25.5 of the Timber Award to introduce an 
obligation on employers to make additional payments to employees in the event of late 
payment of wages, for reasons beyond their control, or in the absence of remedial action in 
respect of late payment due to a third party, when payment is made by EFT.

[84] The CFMEU detailed the history of the provision for the late payment of wages in the 
1999 Timber Industry Award and its predecessors, beginning with the consolidated award 
containing a late payment provision in 1947,57 its retention in the Timber Workers Award 
195058 and subsequent awards through to the Timber Industry Award 199059 in relation to 
waiting for payment by cash. The 1990 Award provision was retained in the Forest and 
Building Products, Manufacturing and Merchandising (General) Award 1996.60 It was 
renumbered during the Award Simplification Process and Commissioner Merriman intended 
that it be retained in the simplified award and apply to any of the payment methods then 
available under the award: cash, cheque or EFT. However that intention was not carried into 
the published simplified award – the 1999 Timber Industry Award. In that context 
Commissioner Blair corrected the oversight inserting a clause in similar terms to that now 
proposed by the CFMEU to remove ambiguity and uncertainty.61








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[85] However, the late payment provision in clause 26.5 of the 1999 Timber Industry 
Award was not included in the Timber Award.

[86] The variation of clause 25 proposed by the CFMEU was sought to similar effect 
during the making of the Timber Award in the post exposure draft stage of the Award 
Modernisation Process62 and during the 2012 Review.63

[87] During the Award Modernisation Process, the CFMEU filed a draft modern award, 
which contained a provision requiring the payment of a penalty for late payment of wages by 
any method. The Award Modernisation Full Bench published the 2009 exposure draft of the 
Timber Award on 22 May 2009 which contained a payment of wages provision at clause 25, 
in materially identical terms to the current clause 25 of the Timber Award. It did not require 
the payment of a penalty where employees are paid late their wages by EFT.

[88] In a statement accompanying the 2009 exposure draft, the Award Modernisation Full 
Bench stated:

“In relation to many conditions of employment we have adopted provisions from the 
Manufacturing Modern Award. In the absence of consensus we regard these conditions 
as constituting an appropriate safety net given their widespread application to similar 
industries.”64

[89] On 12 June 2009, the CFMEU filed submissions addressing the 2009 exposure draft, 
in which it submitted that the late payment of wages it had proposed should be included in the 
modern award and relied on the 1999 Timber Industry Award provision and the variation by 
Commissioner Blair.65

[90] The Award Modernisation Full Bench, having considered the submissions made in 
response to its 2009 exposure draft retained the payment of wages term in the form it 
appeared in the 2009 exposure draft. In its decision in relation to the making of the Stage 3 
modern awards, the Full Bench said, in relation to the Timber award:

“A number of submissions were made dealing with the consequences of adopting 
provisions from the Manufacturing Modern Award and their relevance to the timber 
industry. As a result we have amended a number of provisions in the exposure draft 
particularly the clauses dealing with hours of work and related matters.”66

[91] The final element of the award history concerns an application by the CFMEU to vary 
clause 25 to similar effect during the 2012 Review67 before Deputy President Gooley.

[92] Deputy President Gooley refused the variation then sought on the basis that there was 
insufficient evidence before the Commission to indicate that late payment by EFT was a 
widespread problem:

“[106] Whilst I have sympathy for employees who do not receive their wages on time 
there is insufficient evidence before the Commission to indicate that this is a 
widespread problem. 








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[107] The CFMEU included a late payment penalty clause in its draft award 
provided to the award modernisation Full Bench. When the exposure draft was 
published by the award modernisation Full Bench, the CFMEU responded and 
specifically raised the issue of penalties for late payment of wages when wages were 
paid by EFT. These submissions were not adopted by the award modernisation Full 
Bench. In the context of this Review, I am not prepared to revisit this issue which was 
considered as part of the Part 10A award modernisation process as the CFMEU has 
not established that there are cogent reasons for doing so. It cannot be said that there 
has been a significant change in circumstances. The exclusion of the provision was not 
an error or oversight.”68

[93] Whilst the CFMEU amended the currently proposed variation from that proposed 
before Deputy President Gooley to take into account some observations made by her in her 
decision and to simplify the provision, and further amended the variation sought on 9 April
2015, it accepts that there is a similarity in relation to both its submissions and witness 
evidence between the 2012 and 2014 Reviews.69 We think this is an accurate observation. 

[94] Consistent with the approach set out by the Preliminary Issues Full Bench we proceed 
on the basis that prima facie the Timber Award being reviewed achieved the modern awards 
objective at the time that it was made,70 and that it is necessary to have regard to the historical 
context applicable to each modern award and previous decisions relevant to any contested 
issue (and their context) and previous Full Bench decisions should generally be followed, in 
the absence of cogent reasons for not doing so.71

[95] Applying that approach, given the making of the Timber Award with clause 25 in its 
current terms, in circumstances where the CFMEU’s case for a provision of similar effect to 
that currently proposed was ventilated, we proceed on the basis that, prima facie, clause 25 
achieved the modern awards objective at the time that it was made and it is necessary for the 
CFMEU to establish cogent reasons for the proposed variation of clause 25. A significant 
change, such as the CFMEU proposes, “must be supported by a submission which addresses 
the relevant legislative provisions and be accompanied by probative evidence properly 
directed to demonstrating the facts supporting the proposed variation”.72

[96] Deputy President Gooley was not satisfied that such a case had been established in the 
context of the 2012 Review. We accept, however, that additional evidence has been brought 
from CFMEU officials and members in the current proceedings and that the CFMEU has 
introduced and relied on a survey of its members and put additional submissions in its case for 
the proposed variation. It is now necessary to consider whether the additional submissions and 
evidence as whole brought by the CFMEU establish cogent reasons in support of the variation 
proposed. 

[97] The Preliminary Issues Full Bench noted that any variation to a modern award arising 
from the 4 yearly review must comply with s.136 of the Act and the related provisions which 
deal with the content of modern awards (ss.136–155 of the Act).73 For present purposes, the 
relevant provisions are s.139, which prescribes terms which “may” be included in a modern 
award and s.142 which deals with incidental and machinery terms. Section 138 provides that a 
“modern award may include terms that it is permitted to include, and must include terms that 
it is required to include, only to the extent necessary to achieve the modern awards objective 
and (to the extent applicable) the minimum wages objective”.








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[98] The Andrews Full Bench noted that, in answer to the MBA case, the CFMEU 
submitted that the Act specifically confers on the Commission the power to include terms 
about “penalty rates”. The CFMEU maintained that position before us as its primary 
contention, relying on s.142 as a secondary position.74 Although not required to determine the 
correctness of that contention, the Andrews Full Bench expressed a view that:

“. . . the Proposed Term [clause 25.7 and 25.8, as varied] does not sit comfortably being 
described as a ‘penalty rate’. It seems to us more likely that the power to include the 
term contained in the CFMEU proposal must, if it exists, be found in s.142(1) of the 
FW Act.”75

[99] We are required to reach a view on that contention. The contention that the 
Commission has power to include the proposed term as a “penalty rate” relates to s.139(e) of 
the Act, which includes terms which “may” be included in a modern award: 

“(e) Penalty rates, including for any of the following:

(i) employees working unsocial, irregular or unpredictable hours;

(ii) employees working on weekends or public holidays;

(iii) shift workers;”

[100] In our view, the payment of wages provision in the elements of clause 25 as varied to 
give effect to the CFMEU’s proposal is not a “penalty rate” provision within the meaning of 
s.139(e) of the Act. Reflecting common industrial usage, “penalty rate”, for the purpose of 
s.139(e) of the Act is a higher rate of pay to which an employee is entitled in compensation 
for the inconvenience or disabilities associated with performing work at a particular time, 
consistent with the non-exhaustive examples within s.139(e). We are not persuaded that a 
provision of the character of clauses 25.7 and 25.8, as proposed by the CFMEU – a payment 
an employer is required to make to an employee as a penalty for the late payment of wages –
is a “penalty rate” within the meaning of s.139(e) of the Act.

[101] In this regard, we do not think that the CFMEU’s characterisation of clause 25.5 is 
supported by the Judgement of the Full Court of the Commonwealth Court of Conciliation 
and Arbitration in the 1947 Penalty Rates Case.76 Whilst Drake-Brockman ACJ and 
Sugerman J identified two elements of a penalty rate – an additional payment “where work is 
done under special conditions” and a “deterrent against calling upon employees to work” in 
such conditions, in both cases the payment related to working in particular circumstances. 
That is of a different character altogether to an obligation upon an employer to make 
additional payment to an employee in circumstances where they fail to meet their obligation 
to make payment for the relevant work on time. Such an obligation is properly characterised 
as a “penalty” rather than a “penalty rate” of the nature described by Drake-Brockman ACJ 
and Sugerman J – “additional amounts to be paid where work is done under special conditions
of time, place or circumstance”77 [emphasis added]. That distinction accords with common 
industrial usage and the dictionary meaning relied on by the CFMEU of “an increased rate of 
pay for overtime or in recognition of abnormal conditions”,78 is itself referable to a rate of pay 
for work and the recognition of abnormal conditions in relation to that work.








[2015] FWCFB 2856

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[102] Accordingly, the power to include the term contained in the CFMEU’s proposal must, 
if it exists, be found in s.142(1) of the Act.

[103] Section 142 of the Act, which permits the inclusion in modern awards of incidental 
and machinery terms, provides:

“(1) A modern award may include terms that are:

(a) incidental to a term that is permitted or required to be in the modern 
award; and

(b) essential for the purpose of making a particular term operate in a 
practical way.”

[104] We accept that an award provision for the payment of wages is incidental to those 
elements of s.139 dealing with payments to employees: minimum wages, overtime rates, 
penalty rates and allowances. The issue which then arises is whether or not the terms resulting 
from the variation to clause 25 of the Timber Award proposed by the CFMEU are essential 
for the purpose of making the terms operate in a practical way and are the terms necessary to 
achieve the modern awards objective.

[105] The CFMEU drew our attention to the inclusion by the Award Modernisation Full 
Bench of late payment provisions relating to payment by EFT in seven other modern 
awards.79 We accept that the Award Modernisation Full Bench was satisfied as to the power 
to include such a provision, although it is not clear whether that power was based on s.139 or 
s.142 of the Act. Given our conclusion above in relation to s.139, we think the power was 
based on the incidental power in s.142 and that the Award Modernisation Full Bench was 
satisfied that the terms were necessary to achieve the modern awards objective in the 
particular circumstances of those awards. It is necessary for us to consider whether a similar 
conclusion arises in relation to the case put by the CFMEU in relation to the Timber Award.

[106] In support of its proposed variation, the CFMEU relied on direct evidence of its 
officials and members and the CFMEU Survey of its membership to the effect that late 
payment is a significant practical problem within the timber industry and its proposed 
variation, effecting a penalty upon employers for late payment by EFT, is essential for the 
payment of wages term to operate in a practical way and is necessary to achieve the modern 
awards objective.

[107] The direct evidence of its officials and members goes to a proposition that payment by 
EFT is now the norm in the timber industry. This proposition was not contested and we accept 
it. We also accept that late payment can cause costs to employees, both in terms of default and 
other financial institution fees incurred and disruption to the family and social activities of 
employees and that many timber workers are award reliant80 and low paid.








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[108] Beyond that, the evidence goes to incidents of late payment in the timber industry. The 
evidence of five officials simply repeats and relies on the evidence of those officials in the 
2012 Review.81 Such evidence was found by Deputy President Gooley to provide insufficient 
proof to indicate that late payment was a widespread problem.82

[109] Additional evidence was given by:

 Mr R Cotroneo, an employee of a Melbourne firm, which recounted two occasions 
of late payment: in Easter 2014, after the making of the Timber Award and in 2009 
prior to its making;

 Mr K Law, an employee of a Melbourne firm, which recounted late payment 
regularly between 2012 and 2013, but more regular payment following the 
intervention of the CFMEU in early 2013;

 Mr J Patti, a Victorian CFMEU official, who gave evidence that he encountered a 
situation of late payment about once a year, with a more serious late payment issue 
about every two years. He recounted one specific instance at Easter 2014, which 
was addressed on Sunday by the availability of partial cash payments.

 Ms Finnegan, a CFMEU delegate at the AKD Softwoods sawmill in Colac, who 
added to her evidence before Deputy President Gooley by recounting a later 
incident (on 22 April 2013) when pay was not available on the normal day, but the 
problem was rectified on the same day. 

 Ms J Calvert, Divisional President of the CFMEU Forestry and Furnishing 
Products Division, which went to an assessment of relevant enterprise agreement 
provisions and the CFMEU Survey of its members. No additional instances of late 
payment were dealt with in her evidence. 

[110] It may be noted that some of the evidence of the individuals identified the same 
incidences of late payment as in the 2012 Review.83 Further, the individual evidence 
recounted incidences of late payment which occurred both prior to and after the Timber 
Award commenced operating on 1 January 2010.84

[111] Whilst there was additional evidence of some incidences of late payment, by EFT, 
both the evidence previously put to Deputy President Gooley and the additional evidence does 
not establish a significant incidence of late payment in the timber industry, which would make 
the variation sought necessary.

[112] In order to prepare its case the CFMEU commissioned the ACTU to conduct a 
telephone survey of its members, resulting in a report prepared by the ACTU Call Centre, 
dated June 2014.85 The survey was conducted by telephone, with 1,338 calls made to CFMEU 
members with 433 members, or 32% of those called (the total survey population) completing 
the survey. The members who completed the survey were employed at 39 employer 
operations.








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[113] The survey population was selected by the CFMEU on the basis of including members 
employed across a number of geographic locations and in firms of varying size (by 
employment).86 This selection process necessarily referenced employer characteristics. The 
survey population was not randomly selected and there was no indication that the selection by 
reference to employer characteristic involved a stratified survey reflecting employer 
characteristics in the timber industry generally. It is difficult to compare the distribution of 
respondents to the survey by State to employment in the timber industry by State to ascertain 
if the survey respondents are representative of the timber industry due to the industry sectors 
within the Timber Award which are not conveniently reflected in ABS industry data. 
However, the survey was clearly not reflective of the timber industry as a whole given the 
absence of any CFMEU membership in Queensland87 and the high level (42%) of respondents 
in South Australia. Only members of the CFMEU were surveyed.

[114] Of the survey respondents, 102, or 24% reported that their wages had been paid late on 
at least one occasion, 69, or 66% were sure that late payment had occurred at a time after 
1 January 2010 at least on some occasions when late payment was experienced. It is not clear 
from the survey results whether the reporting of late payment relates to payment of wages or 
late payment of some part of the entitlement.88

[115] Around 20% of those experiencing late payment reported the imposition of bank fees 
and late payment fees and around 10% reported an inability to attend social events and to pay 
for family activities as a result of late payment.

[116] A document89 provided by the CFMEU discloses that a majority of the respondent 
employees were employed by Carter Holt Harvey and almost 95% were employed by one of 
four companies at various sites (Carter Holt Harvey; Timberlink Australia, Boral Timber and 
AKD Softwoods). Carter Holt Harvey now has enterprise agreements made in 2014 which 
include provisions of the type sought by the CFMEU. Timberlink Australia also has 2014 
Agreements with similar provisions, as did the predecessor agreements and so do AKD
Softwoods. The instances of late payment in relation to Gunns Limited also resulted in 
enterprise agreement provisions in respect of late payment.90

[117] The evidence cannot be regarded as being representative of the timber industry as a 
whole being focussed, as it is, on four major employers at various sites. Those major 
companies aside, there is very little evidence in relation to late payment beyond the incidences 
of late payment in the witness evidence and the five additional instances raised by 
respondents in the CFMEU Survey in relation to other employers. Only 24 respondents were 
otherwise employed. Five of the 24 reported instances of late payment: once a year, all after 
2010; once only after 2010; once in 12 months before 2010; three times in 14 years with the 
respondent uncertain as to when, and one a few times before 2010, with the CFMEU
intervening to ensure remedial steps were taken. Only one, the last respondent, referred to 
reported adverse personal effects of the late payment. In relation to employees of both the 
four major employers and the 24 respondents employed by other employers, the evidence 
suggests that late payment has occurred from time to time, both during the operation of the 
1999 Timber Industry Award and the Timber Award.








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[118] It is clear that the CFMEU survey is not a survey constructed on a basis which 
provides a representative picture of late payment which can be extrapolated to the timber 
industry as a whole. Given the methodology employed in undertaking the survey, it does not 
provide an accurate statistical representation of the incidence of late payment. At best, it can 
be relied on only to the extent that it illustrates some continuing instances of late payment and 
the consequences of late payment in relation to those employees and employers included in 
the survey where a member responded to the survey. That seemed to be the purpose of the 
survey.91 Whilst augmenting the illustrative examples given by witnesses (in cases, 
potentially reporting on the same circumstances), the survey does not establish the existence 
of a significant practical issue of late payment in the timber industry.

[119] The CFMEU submitted that the variation is necessary to ensure employers took their 
responsibility to pay wages on time under the Timber Award seriously and thereby enhance 
compliance with that obligation. However, it is not clear, given the penalties for non-
compliance with an award in the Act why an additional incentive is necessary, nor, from the 
evidence as a whole, that the provision would enhance compliance. It is notable in that respect 
that the incidences of late payment occurred whilst the 1999 Timber Industry Award was in 
operation, with a late payment provision in respect of EFT payment, and since the making of 
the Timber Award. This suggests that late payment is a sporadic, unpredictable and unplanned 
event92 in most instances, and has occurred and would occur on that basis whether or not there 
is a penalty for late payment in the Timber Award.

[120] Further, given the CFMEU witnesses and survey respondent’s report that the cause of 
late payment was, variously, an inadvertent error by an employee of the employer, 
information technology faults within the employer’s systems and/or bank error due to 
information technology or other reasons, the compliance argument is weakened. Whilst in the 
first instance, a further penalty for late payment may encourage an employer to introduce 
safeguards to minimise the possibility of late payment through human error, it is unclear how 
it would operate to avoid or reduce technological misadventure within an employer’s systems 
or how the imposition of a penalty on the employer would reduce technological or other 
issues within the employee’s nominated financial institution which caused the late payment. 

[121] The CFMEU submitted that the inclusion in the Timber Award of the amended clause 
25.5 it proposes would better meet the needs of the low paid, in light of the potential financial 
stresses of the late payment of wages. We think this misconstrues s.134(1)(a) of the Act in 
that it is the fair and relevant minimum safety net of terms and conditions which is fixed 
taking into account relative living standards and the needs of the low paid. The variation 
proposed does not fix the award component of the safety net. Rather it is directed to including 
a penalty for late payment to encourage compliance with the payment of wages required to be 
paid in accordance with the award safety net. Whilst we accept that non-compliance with the 
safety net will detract from the application of the safety net wages, we are not persuaded that 
the late payment provision is necessary for compliance with the payment of wages as a 
penalty for non-application of the requirements of the Timber Award in addition to the 
existing penalties for non-compliance within the Act. Nor, given the evidence as to the 
occurrence of late payment under both the pre-modern awards and the Timber Award and the 
evidence of late payment in some instances where enterprise agreements contained a 
provision of the type now sought by the CFMEU that the variation of clause 25.5 would 
prevent instances of late payment. 








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[122] Nor are we persuaded that the variation would encourage collective bargaining. Whilst 
the inclusion of clauses 25.7 and 25.8 in the Timber Award might increase the incidence of 
the same or a similar provision made in agreements, whether by incorporation or by specific 
agreement clauses dealing with late payment, and may make it easier for employees to 
negotiate such a provision in enterprise agreements any effect will be on the content on the 
agreement made, rather than the encouragement of collective bargaining. 

[123] Against those considerations, the variation sought would increase employment costs 
and an increased regulatory burden through the added payments required in the event of late 
payment, in some circumstances where an employer has done all that they can to ensure that 
payment will be accessible to employees when they are due. Even where the payment 
obligation did not arise as a result of the proposed clause 25.8(c), an employer would 
nonetheless be obliged to make some payment and undertake the administrative actions 
necessary to do so, even in circumstances in which late payment occurred for reasons beyond 
the employer’s control.

[124] Further, as a matter of merit, we think that the prescription of payment in respect of 
time spent by an employee waiting for a late payment by cash or cheque, in respect of the 
delayed departure of an employee from their place of employment because their wages are not 
paid on time93 is qualitatively different from the imposition of a penalty in respect of late 
payment by EFT.

[125] We accept that payment by EFT is now the norm in the timber industry. We also 
accept that late payment can cause costs and disruption to family and social activities of 
employees and that many timber workers are award reliant and low paid.

[126] We also accept that employers are required by law to pay their employees for their 
work, on time. Quite apart from their legal entitlement to be paid on time, employees, who 
make financial and family arrangements on the basis that they will be paid on time, are 
entitled to expect that they can access their wages when they are due. Employers should, to 
meet their legal obligations and out of respect for their employee’s entitlement to be paid on 
time, ensure that payroll arrangements are in place with safeguards to avoid late payment 
through inadvertence and which reflect the practical requirements for the transmission of 
wages through to the nominated accounts of their employees by the due time, having regard to 
the transmission processes and the effect of public holidays or extended absences (for 
example at Christmas and Easter) from work.

[127] However, we are not satisfied that the CFMEU’s case, and the evidence which 
supports it, establishes a practical problem in relation to the current payment of wages 
provision which makes the variation it proposes necessary to meet the modern awards 
objective. Whilst there was evidence of some incidences of late payment, it falls short of 
establishing a incidence of late payment in the timber industry of a frequency which would 
make the variation sought necessary. In this regard, the CFMEU’s survey of its members 
cannot be relied on as being representative of industry circumstances. Further, we are not 
satisfied, on the evidence, that the inclusion in the Timber Award of the varied clause 
proposed would materially affect late payment in the timber industry.








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[128] We are not satisfied that the CFMEU has established that its proposed amended clause 
25.5 is essential for the purpose of making clause 25 operate in a practical way and can be 
included in the Timber Award having regard to s.142 of the Act. We are not persuaded that 
the amended variation to clause 25.5 of the Timber Award is necessary to ensure that the 
Timber Award, together with the National Employment Standards (NES), provides a fair and 
relevant minimum safety net of terms and conditions having regard to the s.134 matters. Nor 
are we satisfied that the CFMEU has established the case for the variation it proposes, having 
regard to the modern awards objective. We are not satisfied that there are cogent reasons for 
departing from the position determined by the Award Modernisation Full Bench.

[129] We are not persuaded to vary clause 25.5 of the Timber Award.

3. CFMEU’s proposed variation of clause 27.2 and raised in the Award Brief clause 
30.1(a) of the Timber Award (clause 12.2 and 24.1(a) of the exposure draft) –
Ordinary hours of work—day workers and Payment for working overtime

[130] This issue was raised in the Award Brief as follows:

“Clause 30.1 [of the existing award] states that overtime is payable when an employee 
works outside the spread of hours or in excess of the ordinary daily number of hours in 
clause 27 [of the existing award]. The absence of a definition of daily ordinary hours 
and/or a method for determining such hours in clause 27 makes it difficult to determine 
the calculation of overtime in accordance with clause 30.1.”94

[131] Clause 30.1—Payment for working overtime – of the Timber Award provides:

“(a) All time worked by employees outside the spread of hours prescribed in 
clause 27—Hours of work, or in excess of the ordinary daily number of hours 
prescribed in clause 27, will be paid for at the rate of time and a half for the 
first two hours and double time thereafter.”

[132] Clause 27.2—Ordinary hours of work – day workers of the Timber Award provides:

“(a) Ordinary hours of work will be worked between the hours of 6.30 am and 
6.00 pm Monday to Friday in one of the following manners:

(i) 38 hours within a work cycle of one week;

(ii) 76 hours within a work cycle of two weeks;

(iii) 114 hours within a work cycle of three weeks; or

(iv) 152 hours within a work cycle of four weeks.

Different methods of implementation of a 38 hour week may apply to various 
groups or sections of employees in the establishment concerned.








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(b) Where agreement exists the ordinary hours of work can be worked on any day 
of the week, Saturday and Sunday inclusive.”

[133] Clause 27.2(a) of the Timber Award clearly identifies the spread of ordinary hours. 
However, whilst clause 30.1 states that overtime is payable when an employee works in 
excess of the ordinary daily number of hours, the Timber Award does not otherwise specify a 
method of determining the ordinary daily number of hours. 

[134] In order to identify when an employee works in excess of the ordinary daily number of 
hours, the CFMEU initially proposed two changes to clause 27.2, which are highlighted 
below:

“27.2 Ordinary hours of work—day workers

(a) Ordinary hours of work shall be an average of 38 per week and will be 
worked between the hours of 6.30 am and 6.00 pm Monday to Friday 
in one of the following manners:

(i) 38 hours within a work cycle of one week;

(ii) 76 hours within a work cycle of two weeks;

(iii) 114 hours within a work cycle of three weeks; or

(iv) 152 hours within a work cycle of four weeks.

(b) Different methods of implementation of a 38 hour week may apply to 
various groups or sections of employees in the establishment 
concerned.

(c) Unless otherwise agreed, the ordinary daily number of hours shall be 
the number of ordinary hours in the work cycle divided by the number 
of days on which ordinary hours are rostered to be worked in that work 
cycle.

(d) Where agreement exists the ordinary hours of work can be worked on 
any day of the week, Saturday and Sunday inclusive.”95

[135] The submissions of employer organisations96 and discussion within the hearing on 
16 March 2015 identified an issue with the new clause 27.2 as initially proposed by the 
CFMEU. It would, as the Ai Group submitted, introduce a new provision, requiring 
agreement as to the arrangement of ordinary hours of work, failing which, a default method of 
arranging ordinary hours of work (of 7.6 ordinary hours per day Monday to Friday) will be 
deemed to be applicable. Clause 29.1.1 of the 1999 Timber Industry Award did not contain 
such a provision; it simply facilitated agreement about the pattern of ordinary hours worked.








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[136] The CFMEU in its submissions on 16 March 2015 indicated that, in proposing the new 
clause 27.2(c), it did not intend to introduce a requirement for agreement as to the working of 
ordinary hours.97 Rather the intention was to prescribe the daily ordinary hours to fill the void 
identified by the Award Brief caused by the absence of a definition of daily ordinary hours 
and/or a method for determining such hours in clause 27, which makes it difficult to 
determine the calculation of overtime, in respect of daily hours, in accordance with clause 
30.1 of the Timber Award.

[137] As a result, on 9 April 2015, the CFMEU filed an amended proposed new clause 
27.2(c) as follows:

“The ordinary daily number of hours for the purposes of clause 30.1 shall be the 
ordinary daily number of hours within a work cycle divided by the number of days on 
which ordinary hours are rostered to be worked in that work cycle, unless otherwise 
agreed.”

[138] The CFMEU submitted that the intention of the amended clause 27.2(c) is not to 
qualify what is permitted by 27.2(a) and (b) – in relation to the arrangement of ordinary hours 
– but instead to establish a default method for ascertaining the ordinary daily number of 
hours, for the purposes of the payment of overtime, in accordance with clause 30.1 of the 
Timber Award. The CFMEU submitted that the amended proposed clause 27.2(c) would 
overcome the absence of a definition of daily ordinary hours raised in the Award Brief and 
allow the calculation of overtime in accordance with clause 30.1 of the Timber Award without 
affecting current award provisions in respect of the arrangement of ordinary hours.

[139] The amended CFMEU variation of 9 April 2015 was opposed by the employer 
organisations (through the Ai Group) on the basis of potential unintended or unforeseen 
consequences. Ai Group proposed instead, informally between hearings, a variation of clause 
30.1 of the Timber Award to replace the current clause 30.1(a) with:

“All time worked by an employee outside of the ordinary hours of work as determined 
in accordance with the award will be overtime and will be paid for at the rate of time 
and a half for the first two hours and double time thereafter.”

[140] The CFMEU opposed the variation proposed by the employer organisations on the 
basis of potential unintended or unforeseen consequences.

[141] Given the absence of any disagreement as to the purpose of a relevant variation, we 
issued advice to the parties, in which we proposed an alternate variation:

“30.1 Payment for working overtime

(a) All time worked by employees outside the spread of hours prescribed 
in clause 27—Hours of work, or in excess of the ordinary daily number 
of hours determined in accordance with clause 27 (subject to variation 
of the application of clause 27 pursuant to clause 8), will be paid for at 
the rate of time and a half for the first two hours and double time 
thereafter. [Addition emphasised]








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[142] We invited the views of any interested party on the alternate variation. 

[143] The HIA and MBA supported the variation suggested by this Full Bench, save for the 
removal of the reference to clause 8 – the flexibility term, whilst Ai Group preferred it to the 
CFMEU proposed variation. The CFMEU opposed the variation in the proposed terms on the 
basis that, as with the employer organisations’ proposal, the proposed variation leaves 
unresolved the identification of the “ordinary daily number of hours”. 

Decision in relation to clause 27.2 and 30.1(a) of the Timber Award

[144] No submission was put against the inclusion of a specification of the average of 38 
ordinary hours per week in respect of the various means of working ordinary hours of work 
set out in clause 27. In our view, this element of the variation of clause 27 to this effect is 
necessary to provide clarity as to the average ordinary hours and should be made.

[145] We will vary clause 27.2(a) to read:

“27.2 Ordinary hours of work—day workers

(a) Ordinary hours of work shall be an average of 38 per week and will be 
worked between the hours of 6.30 am and 6.00 pm Monday to Friday 
in one of the following manners:

(i) 38 hours within a work cycle of one week;

(ii) 76 hours within a work cycle of two weeks;

(iii) 114 hours within a work cycle of three weeks; or

(iv) 152 hours within a work cycle of four weeks.” [Additions 
emphasised]

[146] The new clause 27.2(c) initially proposed by the CFMEU was problematic in that it 
would have altered the provisions in respect of the arrangement of ordinary hours in the 
Timber Award.

[147] The amended new clause 27.2(c) proposed by the CFMEU on 9 April 2015 and an 
alternative variation (to clause 30.1(a)) proposed by the employer organisations were opposed 
on the basis of unintended consequences and, in the case of the latter proposal, its failure to 
specify daily ordinary hours.

[148] The issue in contention – concerning proposals to define “ordinary daily number of 
hours” – arose from the Award Brief observation that, whilst, clause 30.1 of the Timber
Award “states that overtime is payable when an employee works outside the spread of hours 
or in excess of the ordinary daily number of hours in clause 27” (of the Timber Award), but 
does not define daily ordinary hours in clause 27.








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33

[149] However, there was no agreement as to whether the terms of any of the variations 
proposed (including the variation raised by us) provided the necessary specification and 
whether the proposed variations were attended by unintended substantive changes in the 
overtime provision. 

[150] We accept that neither the employer organisations’ proposal nor the proposal we 
advanced specified the “ordinary daily number of hours”. 

[151] The CFMEU’s amended variation does, but it does so by specifying the ordinary daily 
number of hours as the ordinary daily number of hours within a work cycle divided by the 
number of days on which ordinary hours are rostered, resulting in a common number of 
“ordinary daily hours” on any day on which ordinary hours are rostered, “unless otherwise 
agreed”. Absent such agreement, the CFMEU formulation does not contemplate or 
accommodate a variation in ordinary daily hours, for the purpose of calculating overtime 
hours, within a roster which complies with clause 27.2 of the Timber Award. Whilst, clause 
27.9 provides for agreement to establish a system of rostered days, the Timber Award does 
not otherwise require agreement for the rostering of different daily ordinary hours between 
days within a roster which complies with clause 27.2 of the Timber Award. The CFMEU 
proposal introduces such a requirement. It would effect a substantive variation to clause 27 
which has not been supported by evidence or argument. 

[152] We accept the point in the Award Brief that “ordinary daily number of hours” is not 
specified for the purpose of determining overtime payable when an employee works in excess 
of their ordinary daily hours. However, none of the proposals satisfactorily resolves that 
deficiency without risk of unintended substantive effects. Each proposal put has been
advanced in an abstract way, without evidence as to the history of the overtime provision and 
the working of daily ordinary hours of work in the timber industry, evidence of the practice or 
practices in respect of the working of daily ordinary hours of work in the timber industry or 
evidence as to any practical problems arising from the Timber Award terms. 

[153] In those circumstances, we do not propose to vary clause 27 or clause 30 of the 
Timber Award, other than to add the reference to ordinary hours of an average of 38 per week 
in clause 27.2(a).

[154] Any interested party is at liberty to make a further application to address the issue 
raised by the Award Brief. Such an application would need to be supported by evidence of the 
history of the relevant provisions, the practical application of the provision and any practical 
problems arising in respect of the application of the provision, and a proposed variation which 
effectively addresses the issues. Such evidence would assist in the formulation of such a 
variation.

4. CFMEU’s proposed variation of clause 21.3 of the Timber Award (clause 20.9 of 
the exposure draft) – Charred timber

[155] In respect of this matter, the Award Brief noted that:








[2015] FWCFB 2856

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“For some of the wage-related allowances it is not clear how the allowance is applied. 
For example, clause 21.3 states that an employee will be paid 0.7% of the standard rate 
(which is a weekly) but it is not clear if this is paid per hour or per week. 

Further, it is to be paid when handling or cutting such timber are unusually dirty or 
objectionable which may be hard to measure.”98

[156] Clause 21.3 of the Timber Award states:

“21.3 Charred timber

Employees handling or cutting charred timber will be paid a daily allowance of 
0.7% of the standard rate in addition to their ordinary rate of pay when the 
disabilities associated with handling or cutting such timber are unusually dirty 
or objectionable.”

[157] The CFMEU submitted that no interested party had sought clarification in relation to 
the circumstances in which the charred timber allowance is payable and it was not aware of 
any practical issue arising in relation to determining when the charred timber allowance is 
payable. The Ai Group supported the CFMEU in this submission.

[158] The CFMEU did, however, support the inclusion in the clause of a statement that the 
allowance is a daily allowance, by adding “, per day”, after “0.7% of the standard rate” in the 
term. The Ai Group submitted that this was unnecessary because clause 21.3, as currently 
drafted, already states that eligible employees “are to be paid a daily allowance” as 
prescribed.

[159] In the absence of any evidence in relation to a difficulty of timber industry employers 
or employees applying the charred timber allowance provision, we are not satisfied that the 
provision should be varied in relation to the application of the allowance, having regard to the 
modern awards objective. Further, the current term expresses the allowance to be a daily 
allowance and no variation to the term is required in that respect.

5. CFMEU’s proposed variation of clause 21.4 of the Timber Award (clause 20.4 of 
the exposure draft) – Leading hands

[160] In respect of this matter, the Award Brief noted that:

“Clause 21.4 does not expressly state whether the leading hand allowance is payable on 
overtime hours.

The clause makes provisions for a leading hand allowance of ‘3.3% of the standard 
rate’ and ‘5.1% of the standard rate’ depending on the number of employees 
supervised. This clause does not state whether the amount is per hour, per day or 
week. Should this be included?”99








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[161] The CFMEU supported a variation to clause 21.4 of the Timber Award by inserting 
“per week” to clarify that the allowance is paid as a flat rate once per week. The proposed 
amended clause 21.4 would read:

“21.4 Leading hands

In addition to the rates prescribed in clause 17—Minimum wages, a leading 
hand supervising two to six employees will be paid 3.3% of the standard rate 
and for more than six employees 5.1% of the standard rate, per week in 
addition to their ordinary rate of pay.” [Additions emphasised]

[162] The CFMEU submitted that the leading hand allowance is based on clause 22.3 of the 
1999 Timber Industry Award, in that the percentage amounts included in the Timber Award 
“directly reflect the rates included in the pre-modern Award” and that the amount of this 
allowance under the 1999 Timber Industry Award “did not vary with hours worked and no 
additional amount was paid on overtime”.

[163] The CFMEU submitted that it is “not necessary for the clause to state whether the 
allowance is payable on overtime hours, and that the only clarification which is required” is to 
insert the words “per week”. 

[164] Ai Group did not oppose the amendment sought by the CFMEU, submitting that the 
addition proposed by the CFMEU is consistent with the current definition of the standard rate 
as the “minimum weekly wage” for a Level 5 employee.

[165] We agree that the insertion of “per week”, as suggested by the CFMEU, adds clarity to 
the operation of the allowance as a weekly allowance and we will vary clause 21.4 to that 
extent. It is unnecessary to otherwise vary the provision as the Timber Award does not 
provide for an additional allowance payable on overtime hours.

[166] We will vary clause 21.4 of the Timber Award to read as follows:

“21.4 Leading hands

In addition to the rates prescribed in clause 17—Minimum wages, a leading 
hand supervising two to six employees will be paid 3.3% of the standard rate 
and for more than six employees 5.1% of the standard rate, per week in 
addition to their ordinary rate of pay.”

6. CFMEU’s proposed variation of clauses 36.4(a), (b) and (c) of the Timber Award 
(clauses 28.5(a), (b) and (c) of the exposure draft) – Day off in lieu of holidays 
falling on a Saturday or Sunday

[167] The Award Brief stated:

“Clauses 36.4(a), (b) and (c) contain the phrase ‘a holiday instead of will be observed’. 
Should this be ‘a holiday will be observed’.”100








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[168] The CFMEU, whilst acknowledging “some lack of clarity in that the clause does not 
specify what the holiday is intended to be ‘instead of’”, submitted that it is “necessary to 
retain the reference to the public holiday being ‘instead’ in order to avoid any suggestion that 
the clause creates an additional holiday”. The CFMEU proposed a varied clause identifying 
by “date the relevant days which each holiday is said to be ‘instead of’” to provide clarity. 

[169] Clause 36.4 of the Timber Award, as proposed by the CFMEU would read:

“36.4 Day off in lieu of holiday falling on a Saturday or Sunday

(a) When Christmas Day (25 December) is a Saturday or a Sunday, a 
holiday instead of 25 December will be observed on 27 December.

(b) When Boxing Day (26 December) is a Saturday or a Sunday, a holiday 
instead of 26 December will be observed on 28 December. 

(c) When New Year’s Day (1 January) or Australia Day (26 January) is a 
Saturday or Sunday, a holiday instead of 1 January, or instead of 
26 January, will be observed on the next Monday.” [Additions 
emphasised]

[170] Ai Group, whilst accepting that the current provision is unclear, expressed concern 
that the CFMEU’s proposal “creates a new definition of Christmas, Boxing Day, New Years’ 
Day and Australia Day, which may deviate from that in the NES”, in which s.115(1)(a) of the 
Act “defines public holidays as those that fall on the dates there prescribed” and ss.115(2) and 
(3), “allow for the alteration of that date by virtue of State or Territory laws or under a modern 
award term (such as clause 36.2 of the Timber Award)”.

[171] Ai Group suggested that the variation be refused or, alternatively, the Commission 
could simply delete the provisions of clause 36.4 of the Timber Award, “leaving the rules 
around the substitution of public holidays to the combined operation of the NES and State and 
Territory laws, where relevant”, as a Full Bench did in respect of the Manufacturing 
Award.101

[172] In this respect the Full Bench:102

 noted a provision of the type in clause 44.2 of the Manufacturing Award appeared 
in only four other of the 122 modern awards created, one of which was clause 36.4 
of the Timber Award;

 noted that in including a clause identical to clause 44.2 of the Manufacturing 
Award in the Textile, Clothing, Footwear and Associated Industries Award 
2010,103 the Award Modernisation Full Bench stated104 that the “NES would more 
than likely cover the position” but was “prepared to include a substitution 
provision”; and

 found that “clause 44.2 is meant to do no more than that which the NES on public 
holidays effectively provide”.








[2015] FWCFB 2856

37

[173] The Full Bench concluded:

“[37] In the circumstances, we consider it is desirable to remove the ambiguity or 
uncertainty associated with the current clause 44.2 in the modern manufacturing 
Award and that the most appropriate way of doing so is by deleting clause 44.2 from 
the modern Manufacturing Award. That would make the modern Manufacturing 
Award consistent with the vast majority of modern awards which do not contain such a 
clause.”

[174] We think the current provision is unclear. In the context of the operation of clause 
36—Public holidays, as a whole of the Timber Award, and clause 36.1 in particular, which 
states that public holiday entitlements are provided for in the NES, clause 36.4 does no more 
than set out the substitution arrangements in the NES in s.115(2) of the Act which provides 
that:

“(2) If, under (or in accordance with a procedure under) a law of a State or 
Territory, a day or part-day is substituted for a day or part-day that would otherwise be 
a public holiday because of subsection (1), then the substituted day or part-day is the 
public holiday.”

[175] Given the operation of the NES, which provides for substitution to the same effect of 
clause 36.4 of the Timber Award and the similarity of the now deleted Manufacturing Award 
provision, we think the lack of clarity of the current clause 36.4 is best resolved by deleting 
clause 36.4 from the Timber Award. This will avoid any potential inconsistency between the 
NES substitution provision in s.115(2) and clause 36.4.

7. CFMEU’s proposed variation of Schedule B.3.1(b)(iii) of the Timber Award 
(Schedule A.3.1(b)(iii) of the exposure draft) – plywood scarfing machinist

[176] The Award Brief identified as “Complex wording/ambiguous wording/clauses with 
unclear meaning” the terms of clause B.3.1(b)(iii) of the Timber Award, which sets out 
indicative tasks for a plywood scarfing machinist at Level 3 in the Panel products sector in 
respect of the 6th dot point beginning with “plywood scarfing machinist” which are described 
as “where the machinist has not been required to grind the knives and cutters, but is at any 
time required to grind the knives and cutters”. The Award Brief noted that it is not clear 
whether an employee at this level is required to grind the knives or cutters and suggested 
clarification.105

[177] In order to clarify the term, the CFMEU seeks to vary the existing 6th dot point in 
clause B.3.1(b)(iii) of the Timber Award by inserting:

“ plywood scarfing machinist where the machinist has not been required to grind the 
knives and cutters, but is at any time required to set up the machine and then only 
from such time as the employee is required so to act;”

[178] The variation proposed strikes out the underlined words in clause B.3.1(b)(iii) of the 
Timber Award:








[2015] FWCFB 2856

38

“ plywood scarfing machinist where the machinist has not been required to grind the 
knives and cutters, but is at any time required to grind the knives and cutters, but is 
at any time required to set up the machine and then only from such time as the 
employee is required so to act;”

[179] In support of the change, the CFMEU submitted that it “addresses the obvious 
contradiction contained in the existing clause which refers both to machinists not being 
required to grind knives and cutters and also to being required to do the same”.

[180] The CFMEU further submitted that the effect of its proposed resolution would be that 
the award “operates so that there is a logical progression between the classification levels” as 
follows:

 “At level 2 the plywood scarfing machinist is never required to set up the machine 
or grind the knives cutters”;

 “At level 3 the plywood scarfing machinist is required to set up the machine BUT 
not to grind the knives and cutters”; and

 “At level 4 the plywood scarfing machinist is required to set up the machine AND 
grind the knives and cutters”. 

[181] The Ai Group raised a concern that the variation proposed “alters the meaning of 
existing terms” of the award in that the current wording appears to “contemplate a 
circumstance where a relevant machinist has not previously been required to undertake the 
relevant grinding work, but may be required to in the future”. 

[182] The current term is uncertain and difficult to apply. We are satisfied that clarification 
is required and that the variation proposed is consistent, in the context of the classification 
structure as a whole, with a logical progression of the requirements of the plywood scarfing 
machinist within the classification structure.

[183] We will vary the Timber Award in the terms proposed by the CFMEU.

8. CFMEU’s proposed variation of Schedule D.1.6 – 2nd dot point of the Timber 
Award (Schedule C.1.6 – 2nd dot point of the exposure draft) – Classification 
Definitions – Pulp and Paper Stream – Level 6 (relativity 105%)

[184] The Award Brief suggested a change to part of the definition of the Level 6 
classification in Schedule D.1.6 of the Timber Award from “Able to communicate at 
production senior level to an acceptable standard and undertakes group decision making 
processes and dynamics” to “Is able to communicate at a level appropriate to facilitate group 
decision making processes and dynamics both at a production and senior level”.106

[185] The CFMEU does not agree to the suggested rewording, submitting that it 
significantly alters the substantive effect of the clause. The Ai Group agreed that the 
suggested change “alters the substance of the provision” by attaching a different standard to 








[2015] FWCFB 2856

39

the level at which an employee is able to communicate and by removing the “express 
requirement that the employee be able to undertake group decision making processes and 
dynamics”.

[186] We agree that the suggested change would alter the substance of the term. Absent any 
basis advanced for doing so, we will not vary the Timber Award in this respect.

9. Proposed variation of clause 3.1 of the Timber Award (Schedule K of the exposure 
draft) – Definitions and interpretation

[187] The Award Brief identified a number of “Definitions expressed differently in the text 
of award”, which involved issues of formatting, superfluous and inconsistent definitions.107

[188] Only one of the definitions raised any issue between the timber industry parties: the 
definition of “Millwright—mechanical tradesperson—special class” which is defined but 
elsewhere appears to be referred to as a “Timber tradesperson millwright—special class”. 

[189] The CFMEU submitted that the description “Timber tradesperson millwright—special 
class” should replace “Millwright—mechanical tradesperson—special class”. Ai Group urged 
caution in affecting the variation because it may result in unforeseen consequences, although 
it could not immediately identify any.

[190] We think the definition refers to “Timber tradesperson millwright—special class”, 
which term is found in the Timber Award and the change should be made to correct an error 
in the description of the term defined.

[191] We will vary clause 3.1 of the Timber Award in relation to each of the following 
matters:

 to remove bolding from bracketed text in relation to “examiner (Timber 
tradesperson—Level 5 or above)”, “inspector (Timber tradesperson—Level 6 or 
above)”, “machinist A grade (Timber tradesperson—Level 5)”;

 to delete reference to “first class” in “glazier—first class”;

 To delete the definitions of “greaser or oiler—first class” and “mixed industry” 
which do not otherwise appear in the award; 

 to change the term defined “millwright—mechanical tradesperson—special 
class” to “timber tradesperson millwright—special class”; and

 in relation to “sawbench” alter instances of “saw bench” and “saw benches” to read 
“sawbench” or “sawbenches”.

CONCLUSION

[192] For the reasons stated above, the Timber Award will be varied as follows:








[2015] FWCFB 2856

40

Clause 27.2 of the Timber Award

[193] We will vary clause 27.2(a) of the Timber Award to read as follows:

“27.2 Ordinary hours of work—day workers

(a) Ordinary hours of work shall be an average of 38 per week and will be 
worked between the hours of 6.30 am and 6.00 pm Monday to Friday 
in one of the following manners:

(i) 38 hours within a work cycle of one week;

(ii) 76 hours within a work cycle of two weeks;

(iii) 114 hours within a work cycle of three weeks; or

(iv) 152 hours within a work cycle of four weeks.”

Clause 21.4 of the Timber Award

[194] Clause 21.4 of the Timber Award will be varied to read as follows:

“21.4 Leading hands

In addition to the rates prescribed in clause 17—Minimum wages, a leading 
hand supervising two to six employees will be paid 3.3% of the standard rate 
and for more than six employees 5.1% of the standard rate, per week in 
addition to their ordinary rate of pay.”

Clauses 36.4(a), (b) and (c) of the Timber Award 

[195] Clause 36.4 will be deleted in its entirety from the Timber Award.

Schedule B.3.1(b)(iii) of the Timber Award 

[196] Dot point 6 of the indicative tasks for a plywood scarfing machinist at level 3 in the 
Panel products sector will be varied to read as follows:

“ plywood scarfing machinist where the machinist has not been required to grind the 
knives and cutters, but is at any time required to set up the machine and then only 
from such time as the employee is required so to act;”

Clause 3.1 of the Timber Award 

[197] Clause 3.1 of the Timber Award is varied as follows:








[2015] FWCFB 2856

41

 to remove bolding from bracketed text in relation to “examiner (Timber 
tradesperson—Level 5 or above)”, “inspector (Timber tradesperson—Level 6 or 
above)”, “machinist A grade (Timber tradesperson—Level 5)”;

 to delete reference to “first class” in “glazier—first class”;

 To delete the definitions of “greaser or oiler—first class” and “mixed industry” 
which do not otherwise appear in the award; 

 to change the term defined “millwright—mechanical tradesperson—special 
class” to read “timber tradesperson millwright—special class”; and

 in relation to “sawbench” alter instances of “saw bench” and “saw benches” to read 
“sawbench” or “saw benches”.

[198] The Determination,108 giving effect to each of the proposed consent variations, will be 
to the effect set out above, implemented in a manner which reflects any variations to the 
Timber Award arising from any other 4 yearly review outcomes in relation to the Timber 
Award at the time the Determination takes effect.

SENIOR DEPUTY PRESIDENT

Appearances:

M Harding for the Construction, Forestry, Mining and Energy Union (Forestry and 
Furnishing Products Division).

S Maxwell for of the Construction, Forestry, Mining and Energy Union (Construction and 
General Division).

M Adler for the Housing Industry Association.

L Izzo for the New South Wales Business Chamber and Australian Business Industrial.

R Calver for the Master Builders Australia Limited.

E Watt for The Timber Merchants’ Association (Victoria).

G Moriarty for the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries 
Union” known as the Australian Manufacturing Workers’ Union (AMWU).

J Gherjestani for The Australian Workers’ Union.

B Ferguson with Ms Clarke for The Australian Industry Group.

J Light for the Australian Federation of Employers and Industries.








[2015] FWCFB 2856

42

Hearing details:

2015.
Melbourne and Sydney (via video):
March 16;
April 13.

Printed by authority of the Commonwealth Government Printer

Price code G, MA000071  PR563463 

                                               
1 [2014] FWCFB 5537.
2 MA000071.
3 [2014] FWCFB 5537, at para 8.
4 (2012) 247 CLR 205.
5 [2015] FWCFB 1549.
6 [2015] FWCFB 2831.
7 MA000017.
8 [2015] FWCFB 2831, at paras 3–13.
9 [2014] FWCFB 1788.
10 [2015] FWCFB 620.
11 AM2012/48 and others.
12 Making of Priority Awards Full Bench [2008] AIRCFB 1000, at paras 28–30.
13 [2008] AIRCFB 1000, at para 30.
14 Master Builders Australia Limited, [2013] FWC 4576, at para 140.
15 Master Builders Australia Limited, [2013] FWC 4576, at para 140.
16 Master Builders Australia Limited, [2013] FWC 4576.
17 Master Builders Australia Limited submission of 6 February 2015, at para 4.1.
18 CFMEU written submissions of 6 February 2015, at para 17.
19 MA000029.
20 HIA submission of 19 December 2014, para 4.2.9.
21 HIA submission of 19 December 2014, para 5.1.26.
22 Transcript, at para 155.
23 Transcript, at para 46.
24 Transcript, at paras 45–46.
25 [2015] FWCFB 620, at para 8.
26 [2013] FWC 4576.
27 Preliminary Issues Full Bench, [2014] FWCFB 1788, at para 60.3.
28 Master Builders Australia Limited, [2013] FWC 4576, at paras 153–155.
29 HIA submission of 19 December 2014, para 5.1.14 and Transcript, at paras 45–46 and 288.
30 Transcript, at para 73.
31 HIA submission of 19 December 2014, para 4.2.6.
32 [2009] AIRCFB 345, at para 112.
33 [2009] AIRCFB 450.
34 Construction, Forestry, Mining and Energy Union (Construction and General Division) submission of 6 February 2015, at 

paras 29–33.








[2015] FWCFB 2856

43

                                                                                                                                                  
35 Transcript, at paras 109–120.
36 HIA submission of 19 December 2014, Attachment A at Annexure C, at p. 40 and Transcript at paras 137–142.
37 HIA submission of 19 December 2014, Attachment A at Annexure C, at p. 35.
38 HIA submission of 19 December 2014, Attachment A, extracted at p.13 of the HIA submission and Transcript, at para 128.
39 HIA submission of 19 December 2014, extracted at p.13.
40HIA submission of 19 December 2014, Attachment A at Annexure B.
41 HIA submission of 19 December 2014, Attachment A at Annexure D, at pp. 46–61.
42 Transcript, at para 288.
43 [2013] FWC 6114.
44 [2009] AIRCFB 450, 22 May 2009, at para 211.
45 MA000010.
46 MA000014.
47 Ibid., clause 19.3.
48 Print R5055, AW800937CRV.
49 Print R4683, at para 22.
50 [2007] AIRC 186, at paras 10–11.
51 Transcript, at para 530.
52 Exhibit CFMEU 1 at Attachment B – CFMEU FFPD Survey 2014.
53 Exposure draft, May 2009.
54 Re Clerks (Domestic Airlines) Award 1980 Print H1382 and Re Milling Industry Award 1978 Print J2154.
55 (2012) 247 CLR 205.
56 [2015] FWCFB 1549, at para 6.
57 (1947) 59 CAR 1309.
58 (1950) 67 CAR 489.
59 Print J2380.
60 Print P2917.
61 Timber and Allied Industries Award 1999, AW800937 PR973230, at paras 64–66.
62 Clause 27.5 of the 19 June 2009 CFMEU amended draft award and 12 June 2009 CFMEU submission, at paras 28–34. 
63 AM2012/64, decided in [2013] FWC 6114, at paras 80–107.
64 [2009] AIRCFB 450, at para 211.
65 Construction, Forestry, Mining and Energy Union submission of 12 June 2009 at paras 28–34.
66 [2009] AIRCFB 826, at para 257.
67 AM2012/64.
68 [2013] FWC 6114, at paras 106–107 re AM2012/64.
69 CFMEU written submissions of 19 December 2014, at para 47.
70 [2014] FWCFB 1788, at para 25.
71 [2014] FWCFB 1788, at para 60.
72 [2014] FWCFB 1788, at para 23.
73 [2014] FWCFB 1788, at para 40.
74 Transcript, at para 531.
75 [2015] FWCFB 1549, at para 29.
76 (1947) 58 CAR 610.
77 Ibid, at p. 615.
78 Construction, Forestry, Mining and Energy Union submission of 13 April 2015; Exhibit CFMEU 11, at para 31.
79 Exhibit CFMEU 11, Annexure A, at pp. 7–11.








[2015] FWCFB 2856

44

                                                                                                                                                  
80 The evidence of the CFMEU witnesses to this effect is consistent with unpublished ABS data from its Employee Earnings 

and Hours, Australia, May 2014 (Cat No. 6306) which indicates that 28.2% of labourers in the “Farm, forestry and 

garden workers” occupational sub-group were award reliant in May 2014, compared with 18.8% for all employees, as 
reported in the ACTU submission to the Annual Wage Review 2014-15.

81 Witness statements of Ms J Calvert, Mr B Coates, Mr T Lawson, Ms G Finnegan and Mr S McLean in the 2012 Review.
82 [2013] FWC 6114, at para 106.
83 Mr J Patti and Mr R Cotroneo and Mr R Coates and Ms G Finnegan.
84 For example Attachment A of Mr B Coates’ witness statement – evidence related an incident at a Gunns Limited 

establishment in December 2009 and another at a Carter Holt and Harvey Mill in 2004, whilst the evidence of 

Mr McLean in Transcript, at paras 1188 and 1192 –1193 recounted incidences of late payment at Gunns Limited in 2009 

and White’s Saw Mill in 2008.
85 Exhibit CFMEU 1, Attachment B.
86 Transcript, at paras 644, 646 and 655.
87 Transcript, at para 659.
88 For example, Attachment C of CFMEU 1 – one respondent, member 227, complains of late payment of overtime.
89 Exhibit CFMEU 14.
90 Evidence of Mr B Coates, Transcript, at para 1400.
91 Transcript, at paras 644 and 701.
92 Transcript, at para 1481 and evidence of Mr McLean, Transcript, at para 1212.
93 (1989) 27 IR 375 Re Darling Harbour Development Project Industrial Agreement, Connor CC.
94 Timber Industry Award 2010 [MA000071] Award Brief, p. 1/8.
95 CFMEU Draft Determination dated 25 June 2014.
96 Ai Group submission of 13 March 2015, item 2 and HIA submission of 6 February 2015, item 2.
97 Transcript, at paras 304–306 and 324.
98 Timber Industry Award 2010 [MA000071] Award Brief, at p. 2/8.
99 Timber Industry Award 2010 [MA000071] Award Brief, at p. 2/8.
100 Timber Industry Award 2010 [MA000071] Award Brief, at p. 5/8.
101 Australian Nursing Federation and others, [2010] FWAFB 9290.
102 Australian Nursing Federation and others, [2010] FWAFB 9290, at paras 34–36.
103 MA000017.
104 [2010] FWAFB 1811, at paras 23–26.
105 Timber Industry Award 2010 [MA000071] brief, at p. 6/8.
106 Timber Industry Award 2010 [MA000071] brief, at p. 6/8.
107 Timber Industry Award 2010 [MA000071] brief, at pp. 3/8 and 4/8.
108 PR567883.

Cases cited by this decision: