[2009] AIRCFB 345

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AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

DECISION

Workplace Relations Act 1996

s.576E—Procedure for carrying out award modernisation process
Request from the Minister for Employment and Workplace Relations—28 March 2008

Award Modernisation

(AM2008/5, 7 and 13–24)

JUSTICE GIUDICE, PRESIDENT
VICE PRESIDENT WATSON
SENIOR DEPUTY PRESIDENT WATSON
SENIOR DEPUTY PRESIDENT HARRISON
SENIOR DEPUTY PRESIDENT ACTON
COMMISSIONER SMITH






MELBOURNE, 3 APRIL 2009

CONTENTS

     
 

Page

Paragraph

     

List of Main Abbreviations

3

  
     

Introduction

5

[1]

     

General Issues

5

[3]

     

      Amendments to the award modernisation request

5

[4]

      Transitional provisions

11

[19]

      Other variations to modern awards

13

[26]

      Supported wage system, school-based apprentices and national training wage provisions

14

[28]

     

Stage 2 industries/occupations

15

[36]

     

      Agriculture group

19

[50]

      Building, metal and civil construction group

21

[67]

      Cleaning services

31

[127]

      Financial services group

32

[133]

      Graphic arts group

33

[142]

      Health and welfare services (excluding social and community services)

34

[145]

      Information and communications technology group

36

[158]

      Manufacturing group

37

[164]

      Private transport industry (road, non-passenger)

38

[167]

      Quarrying industry

42

[184]

      Sanitary and garbage disposal services

42

[188]

     

Other Matters

43

[192]

     

Conclusion

44

[195]

     

Attachment A—List of Stage 2 modern awards

46

  

Attachment B—Supported wage system schedule

47

  

Attachment C—School-based apprentices schedule

50

  

Attachment D—National training wage draft schedule

51

  

 

 

LIST OF MAIN ABBREVIATIONS

 

In this decision the following abbreviations are used:

   

ACCI

The Australian Chamber of Commerce and Industry

   

ACG Association

The Australian Cotton Ginning Association

   

Act

Workplace Relations Act 1996

   

ACTU

Australian Council of Trade Unions

   

AiGroup

Australian Industry Group and the Engineering Employers Association, South Australia

   

ANF

Australian Nursing Federation

   

ASU

Australian Municipal, Administrative, Clerical and Services Union

   

AWU

Australian Workers’ Union, The

   

BECC Modern Award

Building, Engineering and Civil Construction Industry General On-site Award 2010

   

Building and Construction Award

National Building and Construction Industry Award 2000

   

CCC Award 2003

Contract Call Centre Industry Award 2003

   

CCC Modern Award

Contract Call Centres Award 2010

   

CCNT

Chamber of Commerce Northern Territory

   

CEPU

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia

   

CFMEU

Construction, Forestry, Mining and Energy Union

   

CICA

Crane Industry Council of Australia

   

CIT Modern Award

Transport (Cash in Transit) Award 2010

   

Clerks Modern Award

Clerks—Private Sector Award 2010

   

Electrical Contracting Award

National Electrical, Electronic and Communications Contracting Industry Award 1998

   

Engine Drivers’ (ACT) Award

Engine Drivers’ and Firemen’s (ACT) Award 2000

   

Federal Waste Award

Transport Workers’ (Refuse, Recycling and Waste Management) Award 2001

   

Furnishing Award

Furnishing Industry National Award 2003

   

General Retail Modern Award

General Retail Industry Award 2010

   

Graphic Arts Award

Graphic Arts Award 2000

   

joint amendments

Master Plumbers’ and Mechanical Services Association of Australia, National Fire Industry Association and CEPU joint submissions of 19 March 2009.

   

Manufacturing Modern Award

Manufacturing and Associated Industries and Occupations Award 2010

   

MBA

Master Builders Australia

   

Metal and Engineering On-site Award

National Metal and Engineering On-site Construction Industry Award 2002

   

Minister

Minister for Employment and Workplace Relations

   

Mixed Industries Award

Transport Workers (Mixed Industries) Award 2002

   

Mobile Crane Hiring Award

Mobile Crane Hiring Award 2002

   

NACCHO

Aboriginal & Torres Strait Islanders Community Controlled Health Organisations

   

NAPSA

Notional Agreements Preserving State Awards

   

NECA

National Electrical and Communications Association

   

NES

National Employment Standards

   

NFF

National Farmers Federation

   

NSW NAPSA

Transport Industry (State) Award NSW

   

Pastoral Industry Award

Pastoral Industry Award 1998

   

RT&D Modern Award

Road Transport and Distribution Award 2010

   

RT Long Distance Modern Award

Road Transport (Long Distance Operations) Award 2010

   

TCR Case

Termination, Change and Redundancy Case

   

TWU

Transport Workers’ Union

   

TWU Award 1998

Transport Workers Award 1998

INTRODUCTION

[1] This decision deals with a number of matters in the award modernisation process. It should be read in conjunction with earlier statements and decisions. The Commission’s statement of 23 January 2009 is particularly relevant.1 In that statement the Commission drew attention to a number of issues of general importance to award modernisation and published exposure drafts of a number of awards for Stage 2. Since that time the Commission has had the benefit of a large number of written and oral submissions on the issues of general importance and on the Stage 2 exposure drafts. This decision sets out the Commission’s conclusions. We have decided to make a further 27 modern awards which we publish with this decision. We also publish the Manufacturing and Associated Industries and Occupations Award 2010 (Manufacturing Modern Award)2 and the Clerks—Private Sector Award 2010 (Clerks Modern Award)3 as varied by this decision. Variations in relation to those two awards are published separately.

[2] This decision is divided into the following sections:

GENERAL ISSUES

[3] In this section of the decision we deal with a number of matters of general importance in the award modernisation process:

Amendments to the award modernisation request

[4] The award modernisation process is governed by the provisions in Part 10A of the Workplace Relations Act 1996 (the Act) and a request made by the Minister for Employment and Workplace Relations (the Minister) pursuant to s.576C(4) of the Act. The Minister’s request was made on 28 March 2008 and subsequently amended on 16 June and 18 December 2008.4 We shall refer to the request as amended as the consolidated request. The priority modern awards were made by the Commission on 19 December 2008. Because of the timing there was no opportunity to take the amendment to the request made on 18 December 2008 into account before publishing the priority modern awards. In its statement of 23 January 2009 the Commission sought views on how the amendment might affect the terms of modern awards. It appears that there are three main areas in which the 18 December amendment might have effect. Those areas are: coverage, award flexibility and annual leave. We deal first with coverage.

[5] As a result of the 18 December amendment cl.2(e) of the consolidated request now requires that “a modern award should be expressed so as not to bind an employer who is bound by an enterprise award or a Notional Agreement Preserving a State Award (NAPSA) derived from a state enterprise award.” Each of the modern awards made so far contains the following sentence in the coverage clause:

[6] It appears to us that the most direct way to ensure compliance with cl.2(e) is to amend the sentence in the coverage clause so that it reads:

[7] The Australian Council of Trade Unions (ACTU) proposed that we should postpone action on this issue. It suggested that at the present time NAPSAs derived from State enterprise awards, like other NAPSAs, will cease to operate on 31 December 2009. Since modern awards do not commence to operate until 1 January 2010, a provision in the terms we have set out would only operate if the legislature extends the operation of NAPSAs beyond 31 December this year. While this is true, it seems to us that the terms of the request limit the Commission’s discretion in the matter. We should ensure, to the extent we can, that we comply with the request. We have included the amended provision in each of the Stage 2 modern awards. We have also included a definition of enterprise NAPSA in the definition clause. We decide later on the process for varying the modern awards which were made on 19 December 2008.

[8] We deal next with award flexibility. The Commission published a model flexibility clause in its decision of 20 June 2008.5 The Commission changed the model clause in some respects in its decision of 19 December 2008. None of those changes was responsive to the 18 December amendment to the consolidated request. Clause 11AA of the consolidated request, which was included by the 18 December amendment, deals with the Commission’s obligation in relation to a flexibility term in a modern award. It reads:

[9] It seems that there are only two requirements in cl.11AA which are not already accommodated in the model flexibility clause. The first is the requirement that any individual flexibility arrangement must result in the employee being better off overall. The second is the requirement that the flexibility clause prohibit an individual flexibility arrangement from requiring the approval or consent of a non-party, except in relation to minors. We deal with the better off overall requirement first.

[10] The model award flexibility provision published by the Commission in its decision of 20 June 2008 was based on a test of no-disadvantage to the employee.6 The relevant terms of the model clause are sub-clauses 3, 4 and 5(d). They read:

[11] To the extent that the model clause is based on the no-disadvantage test it is now inconsistent with the consolidated request and must be altered. Reference to “no-disadvantage” in sub-clauses 3(b) and 5(d) will be replaced with references to “better off overall.” The terms of sub-clause 4 deal with the application of the no-disadvantage test and will be deleted.

[12] We deal now with the requirement that the flexibility clause prohibit an individual flexibility arrangement from requiring the approval or consent of a non-party, other than the consent of a parent or guardian where the employee is under 18. We think this requirement is best met by including a standard clause to that effect.

[13] Some parties suggested that other changes should be made to the model flexibility clause to meet the new requirements of the consolidated request. For example the Australian Chamber of Commerce and Industry (ACCI) suggested that we should prescribe criteria by which it might be concluded that an agreement would result in an employee being better off overall. ACCI proposed the following:

[14] Proposed sub-clause (a) seems to accord a preference to an arrangement which relates to an employee request over an arrangement which relates to an employer request. Proposed sub-clause (b) introduces an element of subjectivity and it is inconsistent with proposed sub-clauses (c) and (d) which seem to be a reversion to the no-disadvantage test. We do not think that the proposal overall is consistent with the requirements of the consolidated request. Furthermore it is desirable to permit the model clause to operate for some time before contemplating any refinement of the better off overall criterion.

[15] The model clause as amended reads:

[16] We turn now to the annual leave issue. The National Employment Standards (NES) deal, among other things, with the manner in which annual leave is to be taken. They provide that leave is to be taken at a time which is agreed between the employer and the employee. Despite that provision, the consolidated request allows the Commission to make a modern award which, in some circumstances, permits an employer to compel an employee to take annual leave. The relevant provision is in cl.33 of the consolidated request. We set out the provision as it stands following the 18 December 2008 amendment:

[17] Although the structure of the provision has altered, it is the last few words of the provision, “but only if the requirement is reasonable,” which require attention. Some of the priority modern awards made on 19 December 2008 permit an employer to require an employee to take annual leave in specified circumstances. The circumstances are mainly of two kinds. The first kind deals with annual close down. The second kind deals with excessive accumulations of annual leave. A number of the exposure drafts for the Stage 2 modern awards also contain such provisions.

[18] It was not suggested that any provision, either in the modern awards already made or in the exposure drafts, allowed an unreasonable requirement to take leave or should be altered as a result of the 18 December 2008 amendment. In particular it was not suggested that any of the provisions should be altered to include a general requirement for reasonableness in relation to the exercise of the rights given to employers. In the circumstances we have decided not to alter any of the existing modern award provisions and we have included similar provisions in a number of the Stage 2 modern awards.

Transitional provisions

[19] In its 23 January 2009 statement the Commission sought proposals and submissions as to the manner in which transitional issues should be dealt with.7 Most modern awards will contain terms which involve changes in minimum terms and conditions for many employees. That is because modern awards will replace a number, in some cases many, pre-reform awards and NAPSAs and establish a uniform safety net for employees and employers formerly covered by those pre-reform awards and NAPSAs. The effect of s.576T is that while modern awards must not include terms and conditions of employment that are determined by reference to State or Territory boundaries, a modern award may include such terms for an initial period of five years. It is no doubt the legislature’s intention to permit the Commission to include transitional provisions in modern awards to cushion the impact of changes in wages and other conditions. In the case of employees such provisions might deal with any reductions in their terms and conditions. In the case of employers the focus might be on increases in costs.

[20] The Act deals specifically with issues relating to the terms and conditions in modern awards which are determined by reference to State boundaries. The relevant statutory provision is s.576T of the Act. The section reads:

[21] In its 19 December 2008 decision, the Commission included some transitional provisions in the priority modern awards but indicated that, in general, transitional provisions were better considered later.8 The decision contains the following passage:

[22] As already indicated, in its 23 January 2009 statement the Commission sought views on how transitional provisions should be dealt with. Most parties which addressed the issue, and many did, suggested a process in which transitional provisions were addressed after the terms of the Stage 2 modern awards are known. There was some disagreement as to the precise timing.

[23] As foreshadowed, we have decided to programme a separate proceeding to deal with transitional provisions. We are aware of the difficulties faced by parties, particularly parties with interests in a number of modern awards, in meeting the deadlines in the award modernisation program. We have sought to develop a process for dealing with transitional provisions which takes those deadlines into account. Nevertheless it is not practical to delay consideration of transitional provisions until much later in the year. For that reason we shall deal initially with transitional provisions for the modern awards made in the priority stage and in Stage 2. This will also provide an opportunity to address some matters of principle. Although consideration of transitional provisions for Stages 3 and 4 will be delayed until later in the year, with the benefit of a decision in relation to the earlier stages that consideration should be less complex than otherwise.

[24] We shall provide for transitional issues relating to the priority and Stage 2 modern awards to be dealt with in a consultation process over the period from 29 May to 18 July. The consultations will be conducted mainly in writing, by email and on the internet. Parties’ proposals and submissions must be filed by 29 May 2009. There will be an opportunity for parties to comment on each others’ proposals and submissions. Any party wishing to take advantage of this opportunity must file any additional or reply submissions by 26 June 2009. The Commission will sit in the week of 13 July to hear any supplementary oral submissions. By providing two opportunities for written submissions the amount of time required in the week of 13 July will be minimised. While the main focus of this proceeding will be the transitional provisions to be included in the priority and Stage 2 awards, submissions relating to issues of general principle or other transitional matters will be welcome. A process for dealing with any transitional provisions to be included in Stage 3 and 4 awards will be announced later in the year.

[25] There are two important matters of principle which deserve emphasis. First, we remain of the view, expressed by the Commission in its 19 December 2008 decision, that transitional provisions are better considered after the terms of modern awards are known. There are some cases in which it may be possible to deal with transitional provisions at the same time as the award is being made but these cases will be rare and likely to be limited to particular conditions. As the Commission indicated in its 19 December 2008 decision we shall also consider the overall economic impact of the move to modern awards. The actual cost impact will also be relevant. Secondly, we are concerned that there is a potential for transitional provisions in some awards to be overly-complicated. This is a danger in particular where the modern award is to replace a range of disparate conditions in pre-reform awards and NAPSAs. If transitional provisions are too complicated they will not serve the award modernisation objective and their implementation might be compromised. An approach is required which deals with the net effect of changes in conditions or perhaps which focuses on the main changes.

Other variations to modern awards

[26] It is well recognised that modern awards are likely to require other variations before 1 January 2010. Changes will almost certainly be required to recognise changes in legislation. For example, some awards include references to specific provisions of the NES. Those references will have to be replaced with references to sections of the Fair Work Bill 2009. Wage rates may require updating. In some cases supported wage system, adult apprenticeship and national training wage provisions will need to be added to awards. These variations might be seen as a cleaning-up exercise. In large part they will be directed to the implementation of changes which are necessary because of legislation or changes which have already been decided upon in principle. They could be described as residual variations.

[27] With the exception of transitional provisions, which we have dealt with separately, we have decided to defer consideration of residual variations until the final quarter of 2009. By that time most of the issues of principle will have been decided and most of the standard provisions will be settled. By leaving the residual variations until late in the process we also hope to minimise the number of occasions on which a particular modern award will require variation before the commencement date of 1 January 2010.

Supported wage system, school-based apprentices and national training wage provisions

[28] With our 23 January 2009 statement we published three draft schedules. The draft schedules deal with the supported wage system for employees with a disability, school-based apprentices and the national training wage. We indicated in the statement that we wished to finalise our consideration of these provisions as part of Stage 2. We received numerous helpful proposals and submissions. We shall deal first with the supported wage system.

[29] Apart from some relatively minor matters there was general agreement to the terms of the supported wage system draft schedule. The only issue worthy of comment relates to the parties’ reluctance to take on the responsibility of notifying unions which are not party to an assessment of the fact that an assessment has been made and of their right to object. We shall provide for the notification to be the responsibility of the Industrial Registrar. In due course we would expect the reference to be amended to the General Manager of Fair Work Australia.

[30] Some submissions suggested that the schedule should not be included in some awards because conditions in the industry covered by the award are not conducive to the employment of persons with a disability. This was the position taken by the Construction, Forestry, Mining and Energy Union (CFMEU) in relation to the construction industry. While the schedule should be included in most awards, we accept that there should be some limits based on safety considerations and the nature of the work the award covers. The schedule will not be included in a number of the Stage 2 awards, such as the main on-site building and construction award or in most of the awards in the health and welfare services group.

[31] We deal next with the draft schedule for school-based apprentices. There was general agreement with the terms of the draft. The ACTU suggested that the operation of the schedule should be limited to the trades provided for in the modern award concerned. We agree in general with that approach. To put the matter beyond doubt we shall include a provision limiting the schedule to trades covered by the award. The ACTU also pointed out that the schedule should specifically recognise the possibility of a three year apprenticeship. We shall include an appropriate clause. The schedule should be included in every award in which an apprenticeship is possible. It is desirable that other provisions in the body of the award should be deleted. This will ensure consistency of approach and make review and variation simpler.

[32] We note that in the Queensland jurisdiction school-based apprentices can be paid a loading of 20% in place of award leave entitlements. The Queensland Department of Education, Training and the Arts proposed that a similar clause be included in the schedule. While we are not opposed to the suggestion it did not receive much support from other interested parties. We would be prepared to consider including such a provision when next the schedule is reviewed.

[33] Many parties provided detailed submissions on the draft schedule for the national training wage. However, others indicated they needed more time to properly consider the draft. In the circumstances, we have decided to publish a further draft schedule. The further draft removes definitions which are not used in the schedule and simplifies others. It also recognises that there are full-time and part-time traineeships and, within those types, school-based and certain Australian Qualifications Framework Certificate Level IV traineeships. In addition it modernises provisions dealing with training and employment conditions in respect of traineeships. The further draft schedule provides that where its terms and conditions conflict with other terms and conditions in the award to which it is a schedule and which also deal with traineeships, the other terms and conditions prevail.

[34] We shall consider submissions on the further draft schedule in Stage 4 of the award modernisation process. This should give parties sufficient time to consider the range of issues involved, including amendments needed to Appendix 1 which allocates certain traineeships to wage levels, whether default wage rates should be set for traineeships not included in Appendix 1, whether the schedule should automatically apply to training packages which replace those in Appendix 1 and how competency based training should be dealt with.

[35] Parties making submissions on the national training wage draft schedule in Stage 4 should detail the specific amendments they consider need to be made and the reasons for such amendments.

STAGE 2 INDUSTRIES/OCCUPATIONS

[36] In this section of the decision we deal with the modern awards to be made in Stage 2. The industries and occupations to be dealt with in Stage 2 were identified in the Commission’s statement of 3 September 2008.9 Pre-drafting consultations were held towards the end of 2008 and a number of exposure drafts were published on 23 January this year. We now publish 27 Stage 2 modern awards. Before dealing with the awards on a more detailed basis it is appropriate to make some general observations.

[37] The award modernisation process is to be carried out according to ss.576A(2) and 576B(2) of the Act. Section 576A(2) is as follows:

[38] These characteristics of modern awards are to be achieved in the context of the further guidance provided by s.576B(2). That section requires the Commission to have regard to a number of specified factors in performing award modernisation functions. We shall not repeat those factors here. The Commission is also required to observe the objects in ss.1 and 2 of the consolidated request. Section 1 of the consolidated request repeats the terms of s.576A(2). Section 2 is as follows:

[39] This section deals with questions of award coverage of employees, disadvantage to employees, increased costs for employers and the exclusion of enterprise awards and NAPSAs from the process. Each of these matters has been treated as of central importance. We have avoided repetitive references to them, however, in dealing with individual modern awards. While issues relating to disadvantage for employees and increased employer cost have been dealt with in formulating the terms of the modern awards themselves, they will also be addressed in considering transitional provisions.

[40] In the 23 January 2009 statement we referred to the large number of allowances in some industries and raised the possibility of rationalising them. Progress on this issue has not been rapid. While we have not included many allowances which are either obsolete or for one reason or another inappropriate for inclusion in a safety net award, there are large national industries such as manufacturing and building and construction which still have far too many detailed allowance provisions. Despite our urging little has been achieved by consent in those industries. Regrettably further rationalisation will have to await the foreshadowed award reviews.

[41] We refer also to piecework provisions generally. The terms of the NES require that modern awards should specify the base rate of pay and the full rate of pay which are to apply to pieceworkers. The base rate of pay is relevant to annual leave, personal/carer’s leave, community service leave and redundancy pay. The full rate of pay is relevant to notice of termination and that part of the parental leave provisions which deals with transfer to a safe job. Since casual employees do not have any entitlement to annual leave under the NES, the issue only arises in relation to weekly employees who are pieceworkers and who therefore have a fixed number of hours of work per week. Debate on the question was extremely limited. We have decided to apply the definitions of base rate of pay and full rate of pay in the NES to pieceworkers as if they were not pieceworkers. Should this approach give rise to problems the matter can be reviewed in due course at the appropriate time.

[42] Questions also arose concerning the types of exclusions which should be specified in modern awards. In many awards, for example, it was suggested that we should include a specific exclusion for local Government bodies. Suggestions were also made that we should exclude some operations conducted by State Governments. We do not consider it appropriate, as a general rule, to incorporate in awards exclusions which simply restate or define the statutory or Constitutional boundaries of the Commission’s jurisdiction. We see no benefit in attempting to define the limits of the jurisdiction in relation to Government or quasi-Government bodies or corporations generally. To the contrary, we see dangers in that approach. There are differences as between the States. In Victoria, for example, there is a referral of power to the Commonwealth. Again, various Commonwealth statutory corporations may be in a different position to State Government corporations. The situation in the Territories differs from the situation in the States. There are always exceptions, of course, but we have decided that as a general rule modern awards should not exclude State, Territory or local Government corporations of any kind. The coverage of the award will be left to the operation of the legislation and the Constitution. In this way the full extent of the power granted to the Commission by the Parliament will be utilised.

[43] Some parties, particularly in the building, metal and civil construction group of industries, proposed the inclusion in modern awards of rolled-up wage rates i.e. rates comprised of minimum wages and all-purpose allowances, such as industry allowances. In our statement of 23 January 200910 we decided against such an approach in relation to the draft Electrical, Electronic and Communications Contracting Award 2010 despite the submissions of the National Electrical and Communications Association (NECA) and the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU). It remains our view that minimum classification rates should be shown separately from all-purpose allowances in modern awards. The combination of minimum classification rates and industry allowances would confuse minimum award payments of two different types, prescribed for different purposes. It is essential that properly fixed minimum classification rates are retained and shown separately in modern awards, in order to maintain consistent properly fixed minimum classification rates. The development and maintenance of properly fixed minimum rates have been important underpinning elements of the Commission’s awards since August 1988.11 A stable system of minimum wage relativities has developed throughout much of the award system over the last twenty years. A departure from those relativities would have the potential to destabilise minimum wage fixation and generate unsustainable claims. Because of that potential we are not prepared, given the limited debate that has occurred so far, to move away from the principle that minimum wages should be kept separate from allowances.

[44] In a number of clerical and administrative awards questions arose concerning exemption rates. By exemption rates we mean the specification of a rate of pay above which an employee is not entitled to specified award provisions. Such provisions would typically include overtime but in many cases might include a range of other award entitlements as well. Some parties, the ACTU and the Australian Municipal, Administrative, Clerical and Services Union (ASU) in particular, expressed great concern about the inclusion of exemption provisions in modern awards and suggested that the Commission should, at least, severely limit their application.

[45] The ACTU raised an issue of principle. It submitted that “neither the Act (nor the Fair Work Bill), the proposed NES nor the Request contemplate the inclusion of an exemption clause in modern awards that denies a class of employees, otherwise covered by the award, access to specific conditions contained in the award.” It supported this submission by reference to statutory provisions for annualised salaries and for the exemption of high income earners from the modern award system. This submission was directed at the exemption provision in the Clerks Modern Award, which is not currently before us in that respect, and the exemption provisions in two of the Stage 2 exposure drafts.

[46] Exemption provisions are not uncommon in some areas of federal and State award regulation, although the number of award entitlements they exclude varies. There are exemption provisions in a number of the priority modern awards. The detailed provisions of the Act and the consolidated request do not expressly prohibit exemption provisions. To the extent that the ACTU, supported by the ASU, has asked us to decide a question of principle we have concluded that we have neither the material nor the breadth of argument to do so at this stage. It is desirable, however, that we indicate the approach we have adopted.

[47] In considering whether to include exemption provisions in modern awards, and where relevant the terms of the exemption, a number of matters have been considered. Those matters include the extent to which exemption provisions appear in pre-reform awards and NAPSAs which the modern award will replace, the level of the exemption rate in those instruments and the award entitlements which the various exemption provisions exclude. We have been conscious of the need to provide a safety net which as far as practical recognises existing arrangements. The provisions we have decided upon in each of the modern awards reflect our examination and assessment of a diverse range of award provisions in all of the relevant pre-reform awards and NAPSAs including those without exemption clauses. It should be clear that in this decision the Commission is not deciding any questions of principle relating to exemption provisions. Such questions must wait for another time.

[48] Turning to another matter, the ACTU submitted that the Commission has so far taken a view of its power to supplement the terms of the NES which is too restrictive. It referred in particular to passages in the 19 December 2008 decision relating to concurrent parental leave, community service leave and public holidays. We adhere to those views. We think that we should give proper weight to the Parliament’s decision to regulate minimum standards in relation to the matters covered by the NES. It cannot have been Parliament’s intention that the Commission could make general provision for higher standards. We accept, however, that there may be room for argument about what constitutes supplementation in a particular case.

[49] From time to time we refer in this decision to rates of pay in pre-reform awards and NAPSAs. Technically these references should be to Australian Pay and Classifications Scales and should be so regarded. We have adopted the language generally used by parties for simplicity and ease of reference.

Agriculture group

[50] We have decided to make six modern awards to apply in what has been broadly identified as the agriculture group for the purposes of the award modernisation process. The awards are:

Pastoral Award 2010
Horticulture Award 2010
Cotton Ginning Award 2010
Nursery Award 2010
Silviculture Award 2010
Wool Storage, Sampling and Testing Award 2010

[51] We have made a number of variations to the provisions of the exposure drafts. We shall deal with some of the more significant changes. It will be noted that we have dealt with piecework in a variety of contexts.

[52] We have dealt with the effect of the NES upon pieceworkers’ pay for leave and other purposes in the way discussed more generally above.

[53] Our overall approach to coverage of the pastoral and horticultural awards is that they should be confined to agricultural production within the “farm gate.” Other questions of coverage also arose. It will be seen that we have excluded aquaculture and viticulture for wine production from coverage pending further consideration of those industries in the following stages of the award modernisation process as indicated in our 23 January 2009 statement.12

Pastoral Award 2010

[54] Following the submissions of the parties filed in response to the exposure draft and the consultations on 26 and 27 February 2009, we have been persuaded to vary the terms of the exposure draft significantly. The ordinary hours of work and overtime provisions of the Pastoral Award 2010, with the exception of those applying to pig breeding and raising, will now reflect the existing provisions of the Pastoral Industry Award 1998 (Pastoral Industry Award).13 We have also altered the classifications, classification structure and pay scales to more closely align the pay levels for different classifications of work with the pay levels in the Pastoral Industry Award. However, we have retained the extensive classification descriptors for various industry settings.

[55] A number of other changes have been made to the terms of the exposure draft. These include the deletion of the casual conversion provision and an alteration to the superannuation provision to better reflect the pattern of existing regulation and an amendment to the public holidays provision to allow the NES substitution arrangements to operate. There are some other technical or consequential changes.

[56] We have also made some changes to the coverage of the award from that contained in the exposure draft. These changes are designed to more clearly define the coverage of the Pastoral Award 2010 and the Horticulture Award 2010. We now deal with questions related to standard hours of work for shearing classifications.

[57] A submission was received from the Western Australian Shearing Contractors Association Inc. and the Western Australian Farmers Industrial Association contending, among other things, that the Commission is not obliged to include a 38 hour week in all awards and that there is no legislative prohibition on awards prescribing ordinary hours of work in excess of 38. This submission was made primarily in relation to shearers and crutchers but was said to be equally relevant to other classifications such as shed hands, pressers and cooks. We think this submission is misconceived. Maximum hours of work are not fixed by the Commission but by the NES. Section 12(1) of the NES provides that maximum standard hours of work for full time employees are 38 per week. In making modern awards the Commission is bound by cl.30 of the consolidated request not to exclude the NES or any of their provisions. While cl.33 of the consolidated request permits averaging of hours of work over a specified period there is no other indication in the consolidated request or in the Act permitting the Commission to provide for standard, or “ordinary” hours, in excess of 38. It is therefore the Commission’s duty to ensure that modern award provisions dealing with the pay and other conditions of casual employees, such as shearers, are consistent with the standard hours requirement.

[58] For these reasons the relevant award provisions will be based on a 38 hour week. As to the method of implementation, we have decided not to adopt the Australian Workers’ Union’s (AWU) suggestion.14 Instead, we have increased the relevant piecework rates to reflect a reduction of ordinary hours from 40 to 38 with respect to shearing, crutching, wool pressing and related classifications broadly along the lines suggested by the National Farmers Federation (NFF).

[59] To avoid any doubt we emphasise the fact that any necessary transitional provisions relating to hours of work and other matters will be considered in the proceeding to deal with transitional provisions which we have provided for earlier in this decision. This may be particularly relevant for employers in Western Australia.

Horticulture Award 2010

[60] We have revised the ordinary hours and overtime provisions of the exposure draft. The provisions in the Horticulture Award 2010 are generally in line with the relevant provisions of the Horticultural Industry (AWU) Award 2000,15 as it applies to what are referred to as the Schedule A respondents to that award. We have also included more extensive provisions for pieceworkers and included piecework provisions we consider are consistent with the requirements of the consolidated request. A number of other provisions have been altered to make the interaction with the NES clearer.

Cotton Ginning Award 2010

[61] The Australian Cotton Ginning Association (ACG Association) pointed out in response to the exposure draft that the majority of cotton gins are situated in New South Wales and that the ordinary hours provisions of the Cotton Ginneries, Cotton Oil and Other Seed Oil Manufacturing employees Award - State 2003 (Qld),16 which provide for a three shift roster system, are complex and rarely used. Accordingly, we have deleted those provisions from the draft and based the ordinary hours, overtime, and shift work provisions in the Cotton Ginning Award 2010 on those in the Cotton Ginning &C. Employees (State) Award (NSW).17

[62] We have deleted the prohibition on casuals being employed beyond 16 weeks or the season and some related clauses, on the basis that a prohibition of that kind is not appropriate in a modern award. We have, however, included a provision for casual conversion in the form which is found in a number of modern awards. We have also deleted that part of the superannuation clause which deals with contributions during absence from work on the basis that it is not a feature of the State award applying in New South Wales.

[63] We have adopted, with some modification, the classification descriptors proposed by the ACG Association to create a new classification structure. We have also included the pay levels and rates proposed by the ACG Association.

Nursery Award 2010

[64] We have made some modifications to the coverage provisions in the exposure draft and to the related definition of associated nursery products in order to reduce the possibility of overlap with the retail industry. To that end we have also provided for an exclusion in relation to the operation of the General Retail Industry Award 2010 (General Retail Modern Award).18 An adjustment to the entry level pay rates has also been made. In addition two provisions which were in the exposure draft have not been included because they are not features of the existing award and NAPSA coverage. The most significant of those is the casual conversion clause. The other related to hours for part-time employees.

Silviculture Award 2010

[65] There were few changes suggested to the exposure draft. We have revised the pieceworkers provision and the resulting clause differs in some respects from the piecework provisions of the only industrial instrument specifically regulating the industry of silviculture, the Silviculture and Afforestation Award (Tas).19

Wool Storage, Sampling and Testing Award 2010

[66] We published an exposure draft of an award entitled the Skin, Hide and Wool Stores Award 2010. We have altered the title in the final modern award. It is now called the Wool Storage, Sampling and Testing Award 2010. Some alterations have been made to the coverage, definitions and classifications. Most of these changes have been made in response to a submission made by the Australian Wool Testing Authority. The pieceworkers provision has been amended slightly to make the operation of the NES in relation to pieceworkers clearer.

Building, metal and civil construction group

[67] We have decided to make five modern awards in the building, metal and civil construction group of industries and occupations. They are:

Building, Engineering and Civil Construction Industry General On-site Award 2010
Electrical, Electronic and Communications Contracting Industry Award 2010
Plumbing and Fire Sprinklers Contracting Award 2010
Joinery and Building Trades Award 2010
Mobile Crane Hiring Industry Award 2010

Building, Engineering and Civil Construction Industry General On-site Award 2010

[68] Notwithstanding the continued pursuit, by some interested parties in the post-exposure draft consultations, of separate modern awards for the general building and construction, engineering construction and civil construction sectors, we have decided to proceed with a single award covering each of the sectors in respect of on-site work. We have renamed the award the Building, Engineering and Civil Construction Industry General On-site Award 2010 (BECC Modern Award). In our view, the award terms and conditions currently applying and the nature of the work favour a single modern award, albeit with some limited differential conditions between the sectors.

[69] The final award incorporates some alterations in the definitions clause, including minor changes to adult apprentice and air-conditioning work definitions. We have also added a definition of continuous service, reflecting the award definition in the National Building and Construction Industry Award 2000 (Building and Construction Award),20 to apply in respect of redundancy arrangements and the living away from home-distant work provision. We have removed foreperson/supervisor and general foreperson/supervisor from the definitions clause, placing that definition with special conditions for foremen and supervisors in the metal and engineering construction sector within Part 7 – Industry Specific Provisions. These special provisions reflect Appendix B of the National Metal and Engineering On-site Construction Industry Award 2002 (Metal and Engineering On-site Award).21

[70] The coverage clause has been amended in a number of respects. An exclusion has been included in respect of the Quarrying Award 2010. We have included “maintenance, in respect to buildings” to the definition of general building and construction but confined to maintenance undertaken by employees of employers covered by the award. We have also added an exclusion to the definition of metal and engineering construction in respect of incidental metal trades work performed by an employee of an employer not engaged substantially in metal and engineering construction. This is consistent with the exclusion in cl.6.3.1 of the Metal and Engineering On-site Award. The coverage clause may be further amended to take account of other modern awards resulting from Stages 3 and 4.

[71] We have retained, at this stage, within both the coverage clause and the classification structure appendix, references to the pre-mixed concrete, asphalt and bitumen industries, pending consideration of those industries in Stage 3. These references can be reviewed and if necessary altered or deleted in light of the outcome of that consideration.

[72] We have altered the means by which access to the award can be provided by an employer. This is reflected in a change to the standard clause dealing with access to the award and the NES. The change recognises the peculiar physical environment of on-site construction.

[73] We have added a dispute resolution procedure training leave provision, on the basis that it is a prevailing industry standard.22

[74] We have deleted the reference to notice under the NES which appeared in cl.11.2 of the exposure draft from the award because the NES expressly exclude building and construction industry daily hire employees from them.

[75] We have decided to include the current industry award redundancy provisions in the modern award as an industry-specific redundancy scheme.

[76] Section 141 of the Fair Work Bill 2009 permits the inclusion of such a scheme in a modern award. The consolidated request deals with industry specific redundancy schemes in the following way:

[77] We are satisfied that the redundancy scheme in the building industry award redundancy provisions is an established feature of the building and construction industry. Having regard to the arbitral history and general application of the current redundancy prescriptions within awards in the building and construction industry the scheme is properly described as an industry specific redundancy scheme.

[78] The redundancy benefits in the NES had their origin in the Termination, Change and Redundancy Case, (TCR Case) 23 modified in the Redundancy Case 2004.24 However, award provisions for redundancy in the building and construction industry took a different path, reflecting the particular circumstances of employment in that industry. That arbitral history commenced with a decision in 1989 of a Full Bench,25 which applied the TCR Case with modifications to suit the employment terms and conditions applying in the industry. Special provision was included for the accrual of redundancy benefits because of the high labour mobility in the industry. Before an order could be issued, however, some employer parties to the relevant awards obtained an order nisi for prohibition in the High Court. The Full Bench orders, and the High Court proceedings, were overtaken by a 1990 decision26 which determined what was to become the final form of the redundancy provisions for the building and construction industry. That decision was based on an in-principle agreement between organisations respondent to the awards. Two appeals against this decision were dismissed.27

[79] In June 1998, another Full Bench of the Commission considered the redundancy scheme within building and construction industry awards, inserting the provisions in the Building and Construction Industry (Northern Territory) Award 1996,28 against the opposition of employers. The Full Bench stated:

[80] Whilst, as noted in our 23 January 2009 statement, the current award prescription does not reflect the standard for larger employers arising from the Redundancy Case 2004 decision,30 when regard is had to the slightly more beneficial scale of benefits in earlier years, the broader application of the benefit and the pattern of limited periods of continuous service within the industry to which the building and construction redundancy provisions were directed we are also satisfied that when considered in totality, the scheme is no less beneficial to employees in the industry than the redundancy provisions of the NES. In relation to the pattern of service in the industry, we have relied on to the data supplied by Incolink, BERT and CoINVEST contained in the CFMEU submission of 11 March 2009.

[81] The Master Builders Australia (MBA) and some other employer bodies contended that the building industry arrangements cannot constitute an industry specific redundancy scheme. It was pointed out that the application of the scheme extends beyond redundancy as defined by the NES. Some suggested that the definition of redundancy in the current award provisions should be modified to reflect the NES. We do not accept these submissions. There are several reasons. First, in determining whether a particular scheme is an “industry specific redundancy scheme” the Commission can have regard to the factors mentioned in the passage we have set out above. Having regard to those factors, we are satisfied that they apply to the scheme. Secondly the definition of redundancy in the NES does not apply to an industry specific scheme. Clause 64, which is in Subdivision C—Limits on scope of this Division – of the NES, provides that Subdivision B does not apply to an employee covered by a modern award which includes an industry-specific redundancy scheme. While Subdivision B sets out the circumstances in which the NES entitlement to redundancy pay arises and to the amount of the entitlement that sub-division does not apply to an industry-specific redundancy scheme. It follows that an industry-specific redundancy scheme can deviate from the NES redundancy prescription in relation to both the circumstances in which the benefits arise and the amount of the benefits. Thirdly, the ability to include an industry-specific redundancy scheme in a modern award implies that the scheme as a whole can be included. A modified scheme might not meet the criterion, found in the consolidated request, that the scheme be a feature of the industry. Finally, the building industry scheme clearly falls within the definition of industry specific redundancy scheme in s.12 of the Fair Work Bill 2009, the relevant part of s.12 reads:

[82] The modern award has clarified provisions permitting some other payments to be offset against payments required under the industry specific redundancy scheme. Payments made to an employee from a redundancy pay fund, where such payments are made, or contributions on behalf of an employee to such a fund where no payments are made upon termination can be offset.

[83] We have added additional content to the apprentices clause, drawing on current award prescription and applied the payments arrangements from the Metal and Engineering On-site Award in respect of adult apprentices. We have, however, added a provision to make it clear that notice of termination and redundancy provisions do not apply to apprentices, subject to the apprenticeship period being counted as service in the event that the employment is continued at the completion of an apprenticeship or resumed within six months of completion.

[84] We have not included the trainee provisions for civil traineeship and the more general traineeship provision in cl.39 of the Building and Construction Award. The application of the National Training Wage Schedule will be applied with any necessary modification to maintain the current award provisions in respect of wages and additional payments for trainees.

[85] We have not included the supported wage system schedule in the award. There is no supported wage provision in current awards and no party has sought to alter that position.

[86] The rate for Level 8 in the minimum rates clause has been corrected and a note has been added to the clause, drawing attention to the applicability of specified allowances, with a reference to the clause setting out the method for calculating hourly rates. That provision has been amended to refer to the title of relevant allowances to assist users of the award.

[87] The piece rate provision in the exposure draft has been amended to specify the base and full rates of pay for an employee working under a piece rate agreement for the purposes of the NES.

[88] We have deleted cl.20.6 from the exposure draft. That provision was based on rates payable under the Building and Construction Award but applied only to forepersons in Tasmania and bridge and wharf carpenters in New South Wales. Transitional arrangements may be required in respect to these State based payments. Otherwise, we have retained the allowances provisions in the exposure draft. They reflect current award provisions. We have referred above to our preference for a rationalisation of such allowances, as expressed at paragraphs [20] and [21] of our statement of 23 January 2009. Notwithstanding, efforts by the MBA to address this issue, most recently in its eleventh submission (dated March 2009), we have not received sufficient material and input from interested parties to allow us to attempt to rationalise allowances at this stage. Such an exercise should, however, be given some priority in any future review of the modern award.

[89] We have amended the exposure draft provisions dealing with the fares and travel patterns allowance, inclement weather and annual leave to reflect the additional current terms of the Building and Construction Award.

[90] We have not included the administrative process for programming rostered days off for any particular year in the modern award. The relevant clause deals with the scheduling of rostered days off.

[91] The Queensland CEPU referred to a number of provisions in the Queensland NAPSA31 which have not been incorporated into the exposure draft. Such matters will be addressed in the context of transitional provisions.

Electrical, Electronic and Communications Contracting Industry Award 2010

[92] The Australian Industry Group (AiGroup) raised concerns about the possible overlap of the Electrical, Electronic and Communications Contracting Industry Award 2010 with the Manufacturing Modern Award. We think the distinction between contractors and employers in the manufacturing sector is reasonably clear. Nonetheless, we have included in cl.4.2 of the modern award an additional exclusion derived from the electrical contracting NAPSA in New South Wales. The exclusion reads:

[93] We have also altered the coverage clause to make it clear that manufacturing or vendors of plant or equipment in high or low tension power stations are not included. This corrects an inadvertent alteration to the meaning of that exclusion in the exposure draft.

[94] In our 23 January 2009 statement we explained the modifications we had made to the wage rates proposed jointly by the CEPU and NECA in the pre-exposure draft consultations.33 The modifications were principally directed to separating the minimum classification rate and all-purpose allowances from the rolled-up rate proposed and deducting the special payments on the basis that they constituted the residual amounts arising from the conversion of paid rates to minimum rates in June 1998. We invited the CEPU and NECA to address us on the appropriateness of the level of the minimum classification rates and the level of and rationale for the inclusion in a safety net award of the various allowances in the total weekly rates they proposed by reference to State NAPSA rates.34

[95] In a joint submission dated 6 March 2009, the CEPU and the NECA pointed out that the minimum safety rates in the exposure draft were low when compared with the National Electrical, Electronic and Communications Contracting Industry Award 1998 (Electrical Contracting Award)35 and NAPSAs in each State. They contended that such an outcome was inconsistent with s.2(c) of the consolidated request. That paragraph states that the creation of modern awards is not intended to disadvantage employees. They proposed that the differential between the current Federal award and NAPSA all-purpose rate and that arising from the exposure draft minimum classification rate and all-purpose allowances should be remedied by increasing the industry allowance from $23.60 to $80.00 or 3.7% and 12.55% respectively of the standard rate. They justify that proposition on the basis of incorporation of additional factors, separately accounted for in some NAPSAs.

[96] We have given careful consideration to this proposition but cannot accede to it. The increase in the industry allowance proposed by the CEPU and NECA appears to offset at lower classification levels and exceed at higher classification levels the special payment we decided not to include in the exposure draft for the reasons given in our 23 January 2009 statement and referred to above. The CEPU and NECA proposal seeks to restore the payments. We remain of the view that a residual payment arising from the conversion of the Electrical Contacting Award from a paid rates award to a minimum rates award should have been absorbed into minimum wage increases and is not a legitimate element of properly fixed rates and allowances within a modern minimum rates award. Notwithstanding our invitation to the CEPU and the NECA to explain the basis of NAPSA rates no explanation was provided. We cannot be confident that the NAPSA rates do not have a similar foundation.

[97] In addition, on the information before us, we are not satisfied that an increase in the industry allowance to the level proposed by the CEPU and the NECA is justified by the additional factors they seek to incorporate within it. The level of the allowance proposed by the CEPU and NECA would increase the weekly all-purpose rates (inclusive of all-purpose allowances) at the higher classifications in the Electrical Contracting Award and all NAPSAs other than the New South Wales NAPSA. Such an outcome could not be justified by reference to s.2(c) of the consolidated request, particularly when regard is had to s.2(d).

[98] We understand that the rates proposed in the exposure draft, and maintained in the modern award, may lead to disadvantage for some employees. Any disadvantage can be addressed in the transitional provisions proceeding.

[99] We have not included the additional factors proposed by the CEPU and NECA as matters to which the industry allowance is directed in the modern award published. If there is a basis for their inclusion and for an appropriate increase in the industry allowance, an application can be made to vary the modern award at some future time.

[100] An issue arose concerning adult apprentices. The Queensland CEPU and Electrical Contractors’ Association proposed that adult apprenticeship provisions reflective of those in the Queensland NAPSA should be adopted. The CEPU support that course. The NECA oppose it. We have included provisions in the modern award but they will operate only in Queensland. The provisions will cease operation on 31 December 2014. This transitional arrangement will accommodate current arrangements in Queensland, and what we understand to be the current practice in other States, whereby trades assistants are invited to undertake an adult apprenticeship by employers and normally retain their trades assistant rate until the normal apprentice rate overtakes that rate. While the transitional arrangement is operating the parties should attempt to reach agreement on appropriate adult apprenticeship provisions to be included in the award.

Plumbing and Fire Sprinklers Award 2010

[101] The Plumbing and Fire Sprinklers Award 2010 is both an industry and occupational award. It will operate as an occupational award in industries where modern awards do not contain relevant classifications. Rather than refer to specific awards, we have excluded from coverage employers bound by a modern industry award that contains plumbing and fire sprinkler fitting classifications. This is consistent with the approach taken in the Clerks Modern Award.

[102] We have decided that the current award arrangements for redundancy constitute an industry specific redundancy scheme and have included them in the modern award. They are very similar to the building and construction industry arrangements which we have already dealt with. Our reasons for including them in the award are similar to the reasons given above in relation to the BECC Modern Award.

[103] At the request of the major parties, we have identified allowances referred to in other major clauses in order by title as well as clause number to assist users of the award. We have amended the provisions in respect of protective clothing and equipment and lost or damaged tools. This accommodates current arrangements for plumbers and sprinkler pipe fitters by giving employers the option of providing such equipment or reimbursing employees for the expenses associated with their provision. The special allowance, in cl.21.1(v) has been reformulated as a dollar amount, and will not be varied. This reflects the current award provision.

[104] Allowances for confined space, swing scaffold, wet work, dirty work and ladder work, which operate only in South Australia, have not been included in the award and will be further considered in the context of transitional arrangements, as will a number of other State-specific provisions identified in the joint amendments of 19 March 2009, filed by the Master Plumbers’ and Mechanical Services Association of Australia, National Fire Industry Association and CEPU (joint amendments).

[105] We have adopted a number of changes to the exposure draft proposed in the joint amendments:

[106] We think that the rationalisation of the allowance provisions, the fares and travelling time provision and the hours provision suggested in the joint amendments provide a better structure. We have also added a number of differential conditions as between plumbing and mechanical employees and sprinkler fitting employees identified in the joint amendments, most notably in the penalty rates and overtime provisions.

[107] We have not acceded to the proposal in the joint amendments to alter the casual loading in the exposure draft from 25% to 20%. We see no reason not to implement the level which will apply generally to casual employment. We have deleted the whole of cl.17.4 – employment as an adult apprentice.

[108] The centre for employment identified in the fares and travelling time provision has been amended to reflect the national operation of the modern award. We have retained the 50 kilometres radius in light of current award provisions.

[109] We have amended the exposure draft provisions dealing with inclement weather and annual leave to reflect the additional current terms of the Plumbing Trades (Southern States) Construction Award 1999.36

[110] We have added a provision for annual close down to the annual leave clause, again a current award provision.

[111] The two highest minimum rates have been altered to achieve consistency with minimum rates at the same skill level in the Manufacturing Modern Award and the BECC Modern Award.

Joinery and Building Trades Award 2010

[112] The Joinery and Building Trades Award 2010 is both an industry and an occupational award. The industries covered by the award are joinery work, shopfitting, prefabricated building, stonemasonry and glazing contracting work. The occupations covered by the award are a carver, letter cutter, carpenter, joiner, signwriter, painter, stonemason and plasterer. An employer employing an employee in those occupations will be covered by the award unless the employer is covered by another modern award containing a classification which is more appropriate to the work performed by the employee. This provision in the coverage clause is designed to overcome the overlap the exposure draft had with other modern awards and has necessitated amendments to or deletion of some of the definitions in the exposure draft. The award specifically excludes those covered by the BECC Modern Award. Pre-cast concrete manufacturing and associated occupations have not been included in the award pending the consideration of the cement and concrete products industry in Stage 3.

[113] The terms and conditions in the award largely reflect those in the National Joinery and Building Trades Products Award 2002.37 However, the casual conversion clause reflects that in other modern awards. The apprentice provisions have been simplified and adult apprentice wage rates consistent with those in other modern awards have been included. The apprentice provisions recognise there are both 3 and 4 year apprenticeships covered by the award. Where practical allowances have been simplified. The adjustment of allowances reflects industry practice.

Mobile Crane Hiring Award 2010

[114] We have published a separate award for the mobile crane hiring industry – the Mobile Crane Hiring Award 2010. We accept there is a need for a separate award for the industry reflecting the existence of a distinct industry servicing a range of other industries. The modern award is based on the drafts submitted by the AiGroup/CICA and the CFMEU, which were broadly consistent in their content and largely reflect the terms and conditions of the current Mobile Crane Hiring Award 2002 (Mobile Crane Hiring Award).38

[115] We have utilised the dispute resolution clause which appears in modern awards generally in place of the clause from the Mobile Crane Hiring Award, and we have inserted the casual conversion provision generally included in modern awards, instead of the current restrictive provision which prohibits a casual engagement extending beyond four weeks.

[116] We have included the redundancy provision of the industry Mobile Crane Hiring Award as a specific redundancy scheme, replacing the redundancy entitlements under the NES. The redundancy scheme incorporated in the current award is an established feature of the industry and is no less beneficial to employees in the industry than the redundancy provisions of the NES, when considered in its totality. We have placed the definition of continuous service proposed by the CFMEU within the industry specific redundancy scheme to which it relates.

[117] Both the CFMEU and AiGroup/CICA have proposed a new qualification based classification structure in place of the 22 different classifications, encompassing mobile cranes (with differential rates in New South Wales), operators and mobile elevated work platforms within the current structure. The new structures proposed seek to align the classification structure with current licensing requirements and incorporate equipment changes. We have decided to incorporate a new structure, directed to these ends, in the modern award.

[118] The CFMEU and AiGroup/CICA propose slightly different structures in relation to the groupings of employee functions and minimum rates. In relation to the groupings the major differences arise in respect of the level at which slew crane operators are placed and the splitting by the AiGroup/CICA of the rigger function into three levels based on the licenses required. We have adopted the position of the AiGroup/CICA in both respects. Their proposal in relation to slew crane operators better reflects the current award groupings and minimum wage levels. The recognition of licence requirements for riggers results in a more rational structure.

[119] With respect to minimum wage rates both the CFMEU and AiGroup/CICA identify a key rate, although not at the same classification level, and calculate other minimum rates as percentages of the key rate. The result, in both cases, is to apply old relativities associated with the incorporation of skill-based classification structures into awards in the late 1980s. This approach removes the effect of flat dollar and/or differential percentage safety net adjustments of minimum wage rates since that time. AiGroup/CICA proposes a minimum rate which incorporates an industry allowance, whereas the CFMEU proposes a separate minimum classification rate, augmented by a separate industry allowance.

[120] We have applied our general approach of separately identifying minimum classification rates and industry allowances. We have established the first classification (MCE1) at 100% of the tradesperson rate having regard to the current rates in the Mobile Crane Hiring Award, which include an industry allowance, and the fact that the dogger and mobile crane operator are classified at that level in the building industry award.

[121] We have not adopted the approach of applying percentage relativities to a key rate, as proposed by both the CFMEU and AiGroup/CICA. Instead, we have included in the new classification structure minimum rates which reflect those in the Manufacturing Modern Award, at each equivalent classification level, by reference to the percentage relativities to the key classification rate, proposed by the CFMEU and/or the AiGroup/CICA. In doing so, we have had regard to the current rates in the Mobile Crane Hiring Award.

[122] Having established a set of minimum classification rates, we have then derived a separate industry allowance which is the difference between the minimum rate for the new MCE1 level and the rate in the Mobile Crane Hiring Award for the classifications of dogger, mobile elevated platform less than 17 metres and the operator of a mobile crane of less than 20 tonnes, which currently incorporate an industry allowance. The difference, 5.7% of the standard weekly rate, is the industry allowance. The industry allowance will apply at all levels.

[123] The new classification structure results in minimum classification rates and an industry allowance which, in aggregate, are below those proposed by the CFMEU and the AiGroup/CICA and below those in the Mobile Crane Hiring Award at the higher classification levels. It may be necessary to address any potential impact on employees through transitional provisions, depending on the practical effect of the new rates.

[124] We have not included a definition of crane crew. The definition related to a classification, operating only in Victoria, in the Mobile Crane Hiring Award. Given the new qualifications based classification structure and the single State operation of the old classification, we have not included such a classification in the modern award, and the definition is therefore unnecessary.

[125] We have not included a number of allowances applying in only one State. Where we have included a State-based allowance, it will not operate beyond 31 December 2014.

[126] We have included a payment of wages provision which simplifies the current overly prescriptive provision, although not to the full extent suggested by the AiGroup/CICA.

Cleaning Services

[127] We have decided to make an award called the Cleaning Services Award 2010. For the most part it is in the same terms as the exposure draft published on 23 January this year, although there are a number of changes which should be mentioned.

[128] The coverage clause has been amended. An exclusion has been added to make it clear that trolley collection, which is covered by the General Retail Modern Award is not covered by the award. The definition of event cleaning has been varied to make it clear that the award does not cover repair and maintenance services

[129] Some allowances included in the exposure draft have not been included in the modern award because they are not appropriate or are State-based. As we have indicated elsewhere State-based allowances are not appropriate for a safety net award applying on a national basis. Where State-based allowances in pre-reform awards and NAPSAs still have application they can be the subject of discussion in the proceeding to deal with transitional provisions.

[130] Provisions relating to overtime worked on weekends and public holidays have been included as well as provision for time off instead of payment of overtime.

[131] The annual leave clause has been amended to provide that “ordinary pay” in relation to payment of annual leave does not apply to the calculation of leave loading. Consistent with the provision that leave loading should be 17½% or where shift or penalty rates are greater than 17½% these will apply, the draft has been varied to clarify that the 17½% is calculated on the ordinary hourly rate. These amendments have been made to bring the award into line with prevailing standards in the industry.

[132] Other variations to the clause clarify that shift workers, as defined, accrue an additional five days annual leave, rather than six, and that leave loading is only paid on termination of employment on completed years of service.

Financial services group

[133] We publish the Banking, Finance and Insurance Award 2010. The exposure draft published in January 2009 attracted comment from various parties. Some parties reiterated their opposition to their coverage under a broad industry award and, in the alternative, submitted that changes were necessary to properly cater for the needs and achieve the objects of award modernisation. Other parties commented on particular terms of the exposure draft.

[134] The ASU requested that the health insurance industry be split from the coverage of the award. The Agribusiness Employers Federation submitted that the agribusiness industry should be separate. We have decided not to accede to these requests. In our view the industry is capable of being covered by a single set of safety net provisions and making a single modern award best achieves the objects of award modernisation.

[135] The health insurance industry is not sufficiently different to other parts of the banking, finance and insurance industry to warrant separate regulation. The agribusiness industry has many aspects in common with parts of the finance sector and no other industry is a more logical fit. The reach of the current award appears broad but it is not clear that it is confined to the limits of the union party’s eligibility rules. Further, many provisions of the award are unclear and would need to be reconsidered in the light of the need for a fair safety net. In our view applying the finance sector safety net to all award covered employees in the agribusiness industry is a sound and fair approach. We accept that changes to the content of the modern award are appropriate.

[136] As far as the content of the modern award is concerned, employers and unions sought changes to the exposure draft. We have acceded to many of these requests and made other changes. We shall briefly deal with the important changes.

[137] Some alterations have been made to the coverage clause. We have added superannuation and agribusiness to the definition of the banking, finance and insurance industry to ensure that the coverage of the award is comprehensive for the financial services sector. Section 576V(3) of the Act requires a modern award to be expressed not to bind an employer who is bound by an enterprise award in respect of an employee to whom an enterprise award applies. Some employers submitted that the coverage clause should exclude all employees of employers covered by enterprise awards. Such a provision would be inconsistent with s.576V(3) and there is in any event no sound basis for expanding the exclusion. We have not included accountancy practices as these will be considered in Stage 4. We have decided to make a contract call centre award, which we deal with below. Accordingly contract call centres covered by that award are excluded from coverage. The industry of the employer will therefore determine which of the two awards applies.

[138] There are also some alterations in the provisions dealing with pay, allowances and related conditions. The casual provisions will clarify the application of the loading and reflect the usual approach in modern awards. An adjustment has been made to the Level 6 annual salary to reflect the level of the weekly rate. The exemption provision in the exposure draft has been amended to more closely reflect the provision in the Insurance Industry Award 1998.39 There is provision for the first aid allowance to be paid pro rata to part-time employees. Employers will be permitted to make deductions from salary with respect to the private use portion where vehicle running expenses are fully met by the employer. The standard superannuation provision has also been included.

[139] Special provisions have been included dealing with hours of work and penalties for employees in call centres. These provisions mirror the provisions in the Contract Call Centres Award 2010 (CCC Modern Award). We accept the need for flexibilities in this type of work whether work is performed under this award or the CCC Modern Award. Other alterations to the hours of work clauses include the deletion of some unnecessary detail, inserting rest break provisions in line with the Clerical and Administrative Employees (Health Insurance Industry) Award 200140 and amending the shift work provisions to reflect more closely those currently applying in the insurance industry.

[140] There have also been some changes to the classification definitions to make the references to managerial employees clearer and to cover a broader range of employees in the agribusiness industry. We have not expanded or contracted the number of salary levels in response to requests by unions and employers respectively. We do not think that it is necessary to broaden the exemption in the consolidated request in relation to employers covered by enterprise awards or enterprise NAPSAs.

[141] The award we make as a result of these changes has comprehensive application in a large and important industry. It is concise and easy to apply. In our view the award reduces the regulatory burden on business and provides a fair and flexible safety net for employees in the industry.

Graphic arts group

[142] We publish a Graphic Arts, Printing and Publishing Award 2010. We have made only minor alterations to the coverage provision in the exposure draft. Some concerns were expressed about the potential for overlap between this award and other awards in relation to publishing and despatching. We have made a minor alteration to make it clear that the award only applies to despatching which is incidental to the industries or parts of industries covered by the award. Otherwise we do not think any greater clarification is warranted. We have not made any changes to the draft relating to coverage of web design, design generally, or metropolitan newspapers or plastics manufacturing. The provisions largely reflect the coverage of awards to be subsumed into the modern award.

[143] As a result of the consultations we have decided to include in the award the substance of the facilitative provisions in the Graphic Arts – General - Award 2000 (Graphic Arts Award)41 with appropriate changes. Alterations were sought in the leading hands allowances, public holiday provisions and the junior artist and designer rates. We have altered the junior rates to bring them into line with those in the Graphic Arts Award. We have not included the restrictions on the employment of casual employees which are in the Graphic Arts Award, but we have maintained the provision for casual conversion to weekly employment after six months which was in the exposure draft.

[144] A number of other minor changes have been made to the exposure draft to better reflect the existing award regulation to correct drafting errors, or both.

Health and welfare services (excluding social and community services)

[145] We now publish four modern awards. They are the:

Nurses Award 2010
Aged Care Industry Award 2010
Health Professionals and Support Services Award 2010
Medical Practitioners Award 2010

[146] Each of the awards has been altered since the release of the exposure drafts. We have not adopted the proposal by the Health Services Union to create one award. This approach would have constituted a significant departure from the existing pattern of regulation. It would also have involved important work value considerations and posed a number of relativity issues.

[147] There were a number of key factors which the parties raised which require comment in this decision. One matter which was raised in all but the Medical Practitioners Award 2010 related to the use of part-time employees. There are a number of common features for the use of part-time employees. To begin, they must have reasonably predictable hours of duty. Underlying provisions vary but generally there is a requirement to provide certainty when employing part-timers. We have included a relevant provision. The next issue is in relation to changes to working hours of part-timers. There are of course notice periods for roster changes contained in the underlying awards but these seem not to be used in relation to part-timers. Instead, part-time hours appear to be changed regularly on a daily basis where the employee consents. Many employers saw this as a necessary flexibility. The private hospital industry employer associations estimated that, on average, part-timers would work an extra six hours per week. The impact of this consent is that the employee does not receive overtime for working in excess of the rostered hours when requested but is paid at the ordinary time rate.

[148] We have some reservations about the nature of the consent in circumstances where a supervisor directly requests a change in hours on a day where the part-timer had otherwise planned to cease work at a particular time. Existing provisions require that any amendment to the roster be in writing and we have retained this provision. We also have no doubt that many part-time employees would welcome the opportunity to earn additional income. However, there may also be part-timers who would be concerned to ensure that their employment is not jeopardised by declining a direct request from a supervisor to work additional non-rostered hours at ordinary rates. From the submissions of the employers this is a major cost saving and used widely.

[149] Whilst all the relevant underlying awards have different provisions there is a general opportunity for part-time employees to consent to working additional hours at ordinary rates within an average of less than a 38 hour week. We have sought to provide some common provisions which retain cost savings for employers in the knowledge that any change requires written consent. There was never any suggestion that asking part-timers to work additional hours did not relate to unforseen circumstances on the day.

[150] Some concern was raised in relation to the basis upon which a casual employee should be paid overtime. Two examples were given. The first is the separate calculation of overtime on the ordinary rate and the calculation of the casual loading also on the ordinary rate. The second is the cumulative approach. The ordinary rate plus the casual loading forms the rate for the purpose of the overtime calculation. We believe that the correct approach is to separate the calculations and then add the results together, as illustrated by the first example, rather than compounding the effect of the loadings.

[151] Another important matter related to annual leave for nurses. There was universal agreement that the history of annual leave for nurses is both complex and diverse. In the exposure draft we tentatively reached the conclusion that the provision of five weeks leave for all nurses was a reasonable balance between the existing award entitlements. This meant that there were some who may be entitled to an increase but clearly there were nurses whose annual leave would decrease. This quantum was raised as a cost increase in some areas however concern was expressed at the level of penalty rate for public holidays worked by nurses. The exposure draft contained a penalty of 250% for working on a public holiday. It was argued that there was a trade-off between extra leave and payment for a public holiday being reduced to 200%. The Australian Nursing Federation (ANF) submitted that no such trade-off existed. Whilst it appears true that no express trade-off is evident, nonetheless, where the greater annual leave amount is available there generally exists lower payments for public holidays. We have altered the exposure draft by reducing the payment of public holidays to 200%.

[152] In the Nurses Award 2010 there is also a classification for nursing assistant. We were asked both to delete this classification and to make it more relevant. There were concerns about an overlap between this classification and the personal care worker. We have decided to retain the classification in the Nurses Award 2010 and make it directly relevant to the work of nurses. In addition, we have adopted the suggestion of the ANF to provide an additional salary point at the Certificate III level.

[153] We have also provided an exclusion, at this stage, for nurses in secondary and primary schools. Our views are not fixed in this regard but we believe it preferable to hear from the participants in the consultations on education before a final decision is made on the employment of nurses in a school environment.

[154] Particular submissions were made on the span of hours for various private practices which reflected the underlying awards and the needs of the sectors. Whilst some rationalisation has taken place we have sought to maintain a specific spread in these areas.

[155] A number of submissions were made going to general flexibilities which should be expressly contained in the awards. Some of these requests do not currently apply in underlying awards. Where some of these can be accommodated in accordance with the flexibility clause we have not included them as we believe that it is better to use that clause with its attendant protections.

[156] The Department of Human Services in the State of Victoria invited us to conclude that relevant modern awards would apply to Victorian public hospitals as they do not represent and are not a part of the Victorian government. It was also suggested that, if such a finding were made, we should conclude that some matters in the awards were beyond the constitutional power of the Commonwealth. As we explained earlier in this decision, we see no benefit in attempting to define the limits of the Commission’s jurisdiction in relation to Government or quasi-Government bodies or corporations generally. To that we add the observation that coverage of particular entities may depend upon the nature of the legislative provisions operating on 1 January 2010 and thereafter.

[157] The National Aboriginal Community Controlled Health Organisation (NACCHO) submitted that the aboriginal and Torres Strait islander controlled health services deliver primary health care services and are operated by local aboriginal communities with elected boards of management. It argued that the services need separate regulation and it opposed the “mainstreaming” of staff through the award modernisation process which may have the affect of divorcing staff from the existing governance structures. It raised current award provisions dealing with self-determination and ceremonial leave. We have included ceremonial leave provisions in the relevant awards. We deal with the question of separate award coverage at the end of this decision.

Information and communications technology group

[158] We publish four modern awards. They are the:

Business Equipment Award 2010
Contract Call Centres Award 2010
Market and Social Research Award 2010
Telecommunications Services Award 2010

[159] We also publish a varied Clerks Modern Award.

[160] These industries are of relatively recent origin and their growth is important to the Australian economy. We published two exposure draft awards covering market and social research operations and telecommunications services and proposed amendments to the Clerks Modern Award to cover call centre operations. A number of parties representing both employers and employees requested that additional awards be made covering the business equipment industry and the contract call centre industry. We have decided to accede to these requests.

[161] It appears that there is an industry of selling and/or leasing business equipment of various types including computers, photocopiers and printers. Businesses involved in such activities are also involved in the installation and servicing of that equipment. It is not in the nature of a manufacturing, retail or electrical contracting business. The AiGroup proposed an award which effectively amalgamated three awards currently covering the servicing, clerical and sales activities of employers in the business equipment industry. The result is a comprehensive modern award covering all award-covered employees in this industry which largely reflects the terms of existing awards. In the modern award we have replicated the exemption provisions in the existing awards. The modern award makes minor changes in the draft submitted by AiGroup. The changes we have made provide greater clarity, reduce some of the prescription and conform to other modern awards. Nevertheless we are concerned at the length and complexity of the award. There is scope to revise it further in future award modernisation exercises.

[162] Parties to the existing Contract Call Centre Industry Award 2003 (CCC Award 2003) supported the making of a separate award for contract call centres in preference to establishing call centre flexibilities within the Clerks Modern Award. In our view there should not be disparate safety net provisions for call centres. Flexibilities which reflect the needs of the industry while enhancing competitiveness and employment growth prospects should be generally available. We will make a CCC Modern Award based on the CCC Award 2003 – amended to reflect the Commission’s standard approach to certain modern award provisions. We will also make amendments to the Clerks Modern Award to reflect appropriate call centre flexibilities.

[163] Minor changes have been made to exposure drafts of the telecommunications services and market and social research awards to reflect certain non-contentious matters raised by the parties.

Manufacturing group

[164] The coverage clause of the Manufacturing Modern Award, one of the priority modern awards, has been varied to include all or a significant part of the brush and broom making, chemical, clay and ceramics, furnishing, glass, gypsum and plasterboard manufacturing, insulation materials manufacturing, paint manufacturing, rope, cordage and thread and saddlery, leather and canvas industries. Electrical contractors and glazing contractors have been excluded from the coverage of the award as they are covered by other awards. The production of polypropylene/polyethylene has also been excluded from the coverage of the award pending consideration of the oil and gas industry in Stage 3. The coverage clause of the Manufacturing Modern Award may require further variation once the coverage of other modern awards, in particular that to cover the timber industry, is known.

[165] The terms and conditions in the award are substantially the same as those in the award at the conclusion of the priority stage, reflecting prevailing industry standards. However, small employer redundancy provisions have been inserted for those who perform work within the manufacturing and associated industries and occupations which immediately prior to 1 January 2010 would have been covered by the Engine Drivers’ and Firemen’s (ACT) Award 2000 (Engine Drivers’ (ACT) Award)42 or was in clauses 6.1 to 6.6 of the Furnishing Industry National Award 2003 (Furnishing Award).43 They reflect the small employer redundancy provisions of these two awards. The Engine Drivers’ (ACT) Award is a common rule award. The provision concerning the Engine Drivers’ (ACT) Award is transitional given its application solely in the Australian Capital Territory. To provide a consistent approach to the application of the small employer redundancy provisions in modern awards, that concerning the Furnishing Award is not limited to the current respondents to the award. A number of allowances which are significant in the industries added to the award have also been included.

[166] The classification structure of the Manufacturing Modern Award remains unaltered. Issues concerning how the many employees now covered by the award will be classified in the Manufacturing Modern Award will need to be addressed prior to 1 January 2010.

Private transport industry (road, non passenger)

[167] We have decided to make three industry awards. They are the Road Transport and Distribution Award 2010 (RT&D Modern Award), the Road Transport (Long Distance Operations) Award 2010 (RT Long Distance Modern Award) and the Transport (Cash in Transit) Award 2010 (CIT Modern Award).

[168] We have previously published exposure drafts of each of the awards we now propose to make. We should make a number of comments about issues raised by the parties concerning the exposure drafts and variations of substance that have been made to the drafts. We refer first to be RT&D Modern Award. In our statement of 23 January 200944 we said that the definition of the industry should be closely considered by the parties and submissions made as to whether the description was sufficient to encompass the various sectors of the industry that were being incorporated into the award. No party submitted that any additional paragraphs needed to be added to the definition and accordingly it retains paragraphs (a) to (i) however we have made some variations to make it clear that the award relates to the transport of goods etc by road. We have also adopted the definition of a distribution facility as proposed by the Transport Workers’ Union (TWU) so it is clear that they are facilities which are operated by an employer as part of its road transport business.

[169] We have retained the reference in paragraph (a) of the definition of the road transport and distribution industry to the transport of goods etc where that work is ancillary to the principal business, undertaking or industry of the employer. In our January 2009 statement we raised this aspect of the award’s coverage and, for the purposes of encouraging submissions about it, we put cl.4.3, as it then was, in the exposure draft. We also noted that this issue had not arisen before in the award modernisation process in any significant way.45 As it transpired few parties made submissions about this matter. AiGroup submitted that it was appropriate that the award have a majority clause in terms similar to that in the Transport Workers (Mixed Industries) Award 200246 (Mixed Industries Award). We should comment on how that award, and the majority clause in it, operates. The incidence of award clause is in terms similar to paragraph (a) of the definition of the road transport and distribution industry in the RT&D Modern Award. However the Mixed Industries Award provides that it only binds an employer respondent to that award. Modern awards are not to have the equivalent of named respondent employers. The Mixed Industries Award makes it clear that it only applies where the employee of a respondent employer is required to perform work in one of the classifications in the award. In this respect we note that the classification structure is very similar to the RT&D Modern Award which in turn has been based on the pre-reform Transport Workers Award 1998 (TWU Award 1998).47 Clause 9 of the Mixed Industries Award provides that if employees are in a minority of employees in a respondent employer’s enterprise and the majority of the employer’s employees are covered by another award then certain identified provisions would apply and the balance of provisions could be those applying in an award covering the majority of the employer’s employees. The identified provisions included the rates of pay, and in this respect, we note that those rates were the same as in the TWU Award 1998.

[170] Based on the observations we have made above we have not been persuaded to put a majority clause in the RT&D Modern Award. The manner in which the clause in the Mixed Industries Award operated cannot easily be accommodated in the modern award regime. We also note in this respect, the submission that in the absence of named employers, the manner in which a majority and a minority of relevant employees may be identified and the time when that assessment should occur was likely to give rise to some doubts about award coverage.

[171] We also gave consideration to a number of other matters. Even though the RT&D Modern Award is an industry award it is clear that the practical effect of the various existing private transport awards it encompasses is that they operate by reference to a structure of types, models and classes of vehicle and, it follows, to the driver of those vehicles thereby having occupational coverage. We note that there are very few transport classifications in the modern awards made to date and it is likely that any transport functions of any significance are carried out by dedicated transport operators. If the transport of goods etc as defined in the RT&D Modern Award is ancillary to an employer’s business but it is carried out by an employee in one of the classifications in the award it should be covered by the award. In this respect we are not persuaded that an employer will loose the ability to have those drivers, who may be a small number only of its workforce, work hours which the employer’s business requirements dictate. The RT&D Modern Award contains numerous facilitative provisions which relate to matters like hours of work, shifts and spread of hours. The award also contains the standard award flexibility clause. We will monitor the practical implications of our decision to not put a majority clause in the RT&D Modern Award, and, at an appropriate time, the parties may wish to address us further about it.

[172] We turn next to the classification structure. We have retained the classification structure which was in the exposure draft which, as we have earlier observed, was based on the TWU Award 1998. Similar classifications or a subset of them were also in many of the other pre-reform transport awards. In our statement of 23 January 2009 we asked the parties to confer in relation to a proposed variation to the classification structure introduced by the TWU late in the consultation process. We also asked the parties to give consideration to grouping a number of the grades together. In the Full Bench post-exposure draft consultations we were informed that no agreement about either of these matters could be reached. In those circumstances, and as foreshadowed by us, we have decided to retain the long-standing existing classification structure.

[173] We indicated in January 2009 that the issue of appropriate rates had been considered by us when publishing the rates in the exposure draft. In the Full Bench post exposure draft consultations the TWU made further submissions again urging us to adopt the higher rates contained in the Transport Industry (State) Award (NSW)48 (the NSW NAPSA) We have considered all of those submissions and also the decisions of the Industrial Relations Commission of New South Wales referred to by the TWU and other parties. It seems clear to us that the wage increases granted in those decisions were considered as special cases. An attempt to flow on the first of them to the TWU Award 1998 (it was then known as the 1993 award) was not granted by this Commission.49 Accepting the TWU submission that even if we were to discount the amounts granted in the special cases the NSW NAPSA rates would still be in excess of those operating federally that does not persuade us that a case is made out to adopt those rates in the RT&D Modern Award. It is also relevant to here note that it was not suggested by any party in the context of the simplification of the TWU Award 1998 that the rates should be those in the NSW NAPSA.

[174] The Act makes it clear that wage rates in a modern award must be minimum rates and can be included only to the extent that they provide a fair minimum safety net.50

[175] In performing award modernisation functions we are also obliged to have regard to a number of factors including the rates of pay in Australian Pay and Classification Scales and transitional awards.51 The TWU would have us adopt the rates in the NSW NAPSA in preference to all other non-New South Wales NAPSA and transitional rates in pre-reform transport awards. As we have previously indicated the rates that are reflected in the modern award are those applying in the vast majority of the pre-reform awards and NAPSA’s applying in various states other than New South Wales. Many of those NAPSA’s reflect a regime whereby the predominant Federal awards were varied and thereafter the rates flowed to the state common rule awards.

[176] We acknowledge the fact that the rates in the Transport Workers (Oil Distribution) Award 200152 and the Transport Workers (L.P. Gas Industry) Award 200553 are higher than rates in the other pre-reform transport awards. We have considered the history of adjustment of the rates in those awards. It appears that each award had, in the past, operated as a paid rates award and it is not apparent that when the awards were simplified the rates were converted to minimum rates. In any event the majority of rates in other pre-reform transport awards and NAPSAs weigh heavily in favour of them being reflected in the rates in the RT&D Modern Award. We need say little about the TWU suggestion that we introduce an 11% industry allowance in the oil distribution and LP gas sectors. The union did not raise this proposal in submissions filed in accordance with the published timetable. When it was raised late in the consultation process little was said to justify it. Such an allowance would normally apply to all employees in the sector and for all purposes and before we would consider the introduction of such an allowance employers would need to first be alerted to the fact it was being sought and then an opportunity, on the days set aside for Full Bench consultations, to make submissions about it. We have decided that no such provision should be in the RT&D Modern Award. The rates for these two sectors can be considered further in the context of transitional provisions.

[177] We next turn to the hours clause in the RT&D Modern Award and in particular cl.23 which provides for ordinary hours of work for oil distribution workers. The exposure draft clause reflected the existing regime of hours being 35 per week or 70 per fortnight. We are aware that these hours have operated within these sectors of the transport industry for many decades. We considered whether, in the context of this modern award, the ordinary hours for this sector of the industry should be less than those for the remaining sectors. In this respect we acknowledge the submissions of the Oil Industry Industrial Committee as to why two different hours clauses may not be appropriate. On balance however we have decided it is appropriate to retain the two minimum ordinary hours clauses. As a consequence of doing so we have inserted into the facilitative provisions and the provisions of cl.23 additional flexibilities contained in existing awards. We should indicate that it is not our intention that these minimum hours of work should extend any further than they have traditionally applied. It may be that, at an appropriate time, consideration needs to be given to variations to the award to ensure these constraints are reflected in it.

[178] The TWU submitted there was no need for the various flexibility or facilitative clauses in the award and suggested that the award need only contain the standard award flexibility clause. We have decided to maintain the existing flexibilities contained within various pre-reform awards as well as the award flexibility clause. We have decided that the making of this modern award should not reduce the range of existing flexibilities currently in relevant awards. Also in this context we refer to comments made in earlier statements that it is not intended that the existing facilitative provisions, particularly those requiring majority agreement, should reduce the operation of individual flexibility found elsewhere in the award and more recently in the award flexibility clause.54

[179] We have amended the shiftwork clause to reflect the provisions of the corresponding clause in the TWU Award 1998. We have also made a number of changes to the work on public holidays clause to reflect the penalty rates in a large number of pre-reform transport awards.

[180] We now turn to the RT Long Distance Modern Award. Few comments need be made about this award. It is largely in the terms of the exposure draft.

[181] The TWU submissions about this award both before and after the exposure draft were that long distance driving should not be paid by reference to cents per kilometre driven and that there was no justification for a separate modern award applying to long-distance operations; they should be contained in the RT&D Modern Award. The union made no submissions about the provisions contained in the exposure draft. Each of the employers maintained that a separate award should be made and the cents per kilometre method of remuneration, as well as other methods of remuneration that had always been in the award, should continue. We have not been persuaded to incorporate long-distance operations into the RT&D Modern Award. The long distance sector of this industry has been regulated federally for many years under a separate award and we accept the submission of the employers that it should continue to do so. As indicated in the Commission’s 23 January 2009 statement, in the event there are some legislative provisions that impact on the method of remuneration contained in this award we shall revisit those provisions.

[182] Finally we refer to the CIT Modern Award. The TWU made no submissions in relation to the exposure draft and the employer submissions were limited and made only by Linfox Armaguard Pty Ltd and Chubb Australasia Pty Ltd. There were few significant issues raised and we have taken into account the various drafting changes suggested by them. We should indicate that there seemed to be some suggestion that the percentage by which allowances will be varied will vary by reference to each of the classifications in the award. That is not the case. There will be one reference point for the purposes of variations to allowances for responsibilities and skills and that is to the rate for the armoured vehicle operator.

[183] We have deleted the allowance that related to a contract for work for the Reserve Bank of Australia. We have also reinserted into the part-time employment clause a provision concerning the offering of additional hours of work and payment for those hours.

Quarrying industry

[184] We publish the Quarrying Award 2010. In large measure the award is based on the agreement of the major parties. Little alteration has been made in the coverage provision in the exposure draft. Consistent with our general approach, which we have set out above, we have not included a specific exclusion for quarries operated by local councils.

[185] The AWU asked us to include the provision for voluntary conversion of casuals to weekly employees contained in the federal award applying to quarrying in Victoria. There was no employer objection to that course. Instead of the long and detailed provisions in that award, however, we have included a casual conversion provision in the terms found in the Modern Manufacturing Award. The AWU also sought a provision to supplement the NES redundancy pay arrangements for small business. For the reasons given in the Commission’s 21 December 2008 decision we have not granted that request.

[186] We have included a new classification structure based on competencies acquired and exercised rather than on function groups. We have deleted the provision for additional payments for employees trained and accredited in more than two function groups, since progression through the structure will be based on competencies rather than function groups. Minor alterations have been made in the format of the minimum wages clause in the exposure draft but, consistent with our approach generally, we have not combined the industry allowance with the minimum wages. Each remains a separate element of remuneration. Some alterations have been made in tool and clothing allowance provisions. New provisions have been included, based on terms in the award applying in Victoria, relating to the reimbursement for the cost of obtaining an articulated vehicle licence, and transport home after overtime and shiftwork.

[187] We have not altered the spread of ordinary hours in the exposure draft, which is the same as that in the Victorian and New South Wales awards applying to quarrying. Nor have we altered the night shift penalties which are in line with prevailing federal standards in industry generally. By contrast, the night shift penalties applying to quarrying in the various States vary and it is not practical to reduce them to a standard provision. We have made some change to the provisions dealing with rostered days off. We have also deleted the provisions relating to the working of reasonable overtime which appeared in the exposure draft. On reflection we have decided that they add nothing to, and indeed may be inconsistent with, the terms of the NES.

Sanitary and garbage disposal services

[188] We publish the Waste Management Award 2010. In our 23 January 2009 statement we drew attention to the significant differences between rates in the Transport Workers’ (Refuse, Recycling and Waste Management) Award 2001 (Federal Waste Award),55 which applies in all States except New South Wales and in the Northern Territory, and the rates in the NAPSAs applying in New South Wales. The minimum wages in the exposure draft were based on the minimum rates in the Federal Waste Award. The TWU submitted that the rates in the New South Wales NAPSA were appropriate for inclusion in the modern award and also submitted that those rates could be integrated with the federal rates to produce a compromise set of minimum wages if need be.

[189] As we have already indicated in dealing with the private transport industry (road, non-passenger) group of industries, with very few exceptions, federal road transport driver rates are properly fixed minimum rates. The rates in the Federal Waste Award mirror the structure in the key federal road transport awards. We have not been persuaded to depart from those rates. We accept that transitional provisions may be necessary in New South Wales. Any proposals for transitional provisions should be advanced in the proceeding to deal with such provisions that we have provided for above. Proposals should take any other relevant changes in award regulation into account. We note that the junior rate provisions in the modern award will reflect those in the Federal Waste Award.

[190] Some alterations have been made to the classification structure as it appeared in the exposure draft. The new structure, which is primarily based on the Federal Waste Award, will provide for coverage of employees at waste management facilities and is agreed between the main parties.

[191] A number of other provisions in the exposure draft have been deleted and replaced with the equivalent provisions from the Federal Waste Award. That award covers the bulk of the private waste management industry nationally. These provisions primarily deal with highest function, hours of work, shift work, overtime and public holidays. While a number of these clauses will be more onerous for employers previously covered by the New South Wales NAPSAs, such changes should be balanced against the reduction in minimum award wages in New South Wales and taken into account in considering what transitional provisions might be necessary.

OTHER MATTERS

[192] We received a submission from some employers in the fast food industry in which they sought an exemption from some of the terms of the Fast Food Industry Award 2010.56 That award is one of the priority modern awards made on 21 December 2008. In particular exemption was sought from some of the management classifications in the award. Historically retail awards, including the National Fast Food Retail Award 2000,57 have contained managerial classifications. We see no case for varying the modern award in the manner sought.

[193] In dealing with the modern awards in the health and welfare services group we referred to a submission by NACCHO seeking a separate, comprehensive modern award for aboriginal and Torres Strait islander community controlled health organisations. This is not the first occasion on which we have been asked to make specific provision for indigenous organisations. In the Commission’s 19 December 2008 decision the following passage appears:

[194] We shall appoint Commissioner Raffaelli to investigate the matters raised by the CCNT and NACCHO and any other similar matters. The Commissioner will visit the Northern Territory for this purpose at a time to be advised. The Commission will give further consideration to the issues in Stage 4, as already indicated. A possible outcome is that one or more separate awards may be made for indigenous organisations or services.

CONCLUSION

[195] We express our appreciation to all of those who have made contributions to the consultation process and to the staff of the Australian Industrial Registry for their research and their administrative support to the Full Bench.

BY THE COMMISSION:

PRESIDENT



1 [2009] AIRCFB 50.

2 MA000010.

3 MA000002.

4 [2008] AIRCFB 1000.

5 [2008] AIRCFB 550.

6 ibid at paras [177]–[181] and [187].

7 [2009] AIRCFB 50.

8 [2008] AIRCFB 1000.

9 [2008] AIRCFB 708.

10 [2009] AIRCFB 50, at para [45].

11 National Wage Case August 1988, Print H4000, August 1988, 22 IR 461.

12 op cit at para [23].

13 AP792378CRV.

14 op cit at para [29].

15 AP784867CRV.

16 AN140086.

17 AN120160.

18 MA000004.

19 AN170096.

20 AP790741CRV.

21 AP816828CRV.

22 [2008] AIRFB 1000 at para [46].

23 Print F6230, 2 August 1984, (1984) 294 CAR 175.

24 PR032004, 26 March 2004 and PR062004, 8 June 2004.

25 Building Industry Inquiry Case, Print H7465, 22 March 1989.

26 Building, Metal and Construction Industries decision, Print J4870, 10 October 1990.

27 Print K4831, 1 October 1992 and Print K2799, 5 May 1992.

28 AP812941CRN.

29 Print Q1599, 4 June 1998.

30 PR062004, 8 June 2004.

31 Building Construction Industry Award – State 2003 (Qld), AN140043.

32 Electrical, Electronic and Communications Contracting Industry (State) Award (NSW), AN120191.

33 [2009] AIRCFB 50 at paras [46]-[48].

34 ibid at para [49].

35 AP791396CRV.

36 AP792355CRV.

37 AP817265CRV.

38 AP816842.

39 AP784988CRV.

40 AP809224.

41 AP782505CR.

42 AP805250CRA.

43 AP825280CAV.

44 [2009] AIRCFB 50.

45 Ibid at para [101].

46 AP813166.

47 AP799474CNV.

48 AN120594.

49 P0926, 15 May 1997.

50 ss.576A(2)(b), 576J(1) and 576L of the Workplace Relations Act 1996 and s.576C(1) of the consolidated request.

51 s.576B(2)(h).

52 AP813252CAV.

53 AP841105CAV.

54 [2008] AIRCFB 100 at paras [35]-[39].

55 AP812785CNV.

56 MA000003.

57 AP806313CRV.



Attachment A to Full Bench decision of 3 April 2009

Stage 2 modern awards

The following modern awards have been amended:

Attachment B to Full Bench decision of 3 April 2009

Supported Wage System Schedule

1. This schedule defines the conditions which will apply to employees who because of the effects of a disability are eligible for a supported wage under the terms of this award.

2. In this schedule:

3. Eligibility criteria

3.1 Employees covered by this schedule will be those who are unable to perform the range of duties to the competence level required within the class of work for which the employee is engaged under this award, because of the effects of a disability on their productive capacity and who meet the impairment criteria for receipt of a disability support pension.

3.2 This schedule does not apply to any existing employee who has a claim against the employer which is subject to the provisions of workers compensation legislation or any provision of this award relating to the rehabilitation of employees who are injured in the course of their employment.

4. Supported wage rates

4.1 Employees to whom this schedule applies will be paid the applicable percentage of the relevant minimum wage according to the following schedule:

4.2 Provided that the minimum amount payable must be not less than $69 per week.

4.3 Where an employee’s assessed capacity is 10%, they must receive a high degree of assistance and support.

5. Assessment of capacity

5.1 For the purpose of establishing the percentage of the relevant minimum wage, the productive capacity of the employee will be assessed in accordance with the Supported Wage System by an approved assessor, having consulted the employer and employee and, if the employee so desires, a union which the employee is eligible to join.

5.2 All assessments made under this schedule must be documented in an SWS wage assessment agreement, and retained by the employer as a time and wages record in accordance with the Act.

6 Lodgement of SWS wage assessment agreement

6.1 All SWS wage assessment agreements under the conditions of this schedule, including the appropriate percentage of the relevant minimum wage to be paid to the employee, must be lodged by the employer with the Commission.

6.2 All SWS wage assessment agreements must be agreed and signed by the employee and employer parties to the assessment. Where a union which has an interest in the award is not a party to the assessment, the assessment will be referred by the Industrial Registrar to the union by certified mail and the agreement will take effect unless an objection is notified to the Commission within 10 working days.

7. Review of assessment

The assessment of the applicable percentage should be subject to annual or more frequent review on the basis of a reasonable request for such a review. The process of review must be in accordance with the procedures for assessing capacity under the supported wage system.

8. Other terms and conditions of employment

Where an assessment has been made, the applicable percentage will apply to the relevant minimum wage only. Employees covered by the provisions of this schedule will be entitled to the same terms and conditions of employment as other workers covered by this award on a pro rata basis.

9. Workplace adjustment

An employer wishing to employ a person under the provisions of this schedule must take reasonable steps to make changes in the workplace to enhance the employee’s capacity to do the job. Changes may involve re-design of job duties, working time arrangements and work organisation in consultation with other workers in the area.

10. Trial period

10.1 In order for an adequate assessment of the employee’s capacity to be made, an employer may employ a person under the provisions of this schedule for a trial period not exceeding 12 weeks, except that in some cases additional work adjustment time (not exceeding four weeks) may be needed.

10.2 During that trial period the assessment of capacity will be undertaken and the percentage of the relevant minimum wage for a continuing employment relationship will be determined.

10.3 The minimum amount payable to the employee during the trial period must be no less than $69 per week.

10.4 Work trials should include induction or training as appropriate to the job being trialled.

10.5 Where the employer and employee wish to establish a continuing employment relationship following the completion of the trial period, a further contract of employment will be entered into based on the outcome of assessment under clause 5.



Attachment C to Full Bench decision of 3 April 2009

School-based Apprentices Schedule

1. This schedule applies to school-based apprentices. A school-based apprentice is a person who is undertaking an apprenticeship in accordance with this schedule while also undertaking a course of secondary education.

2. A school-based apprenticeship may be undertaken in the trades covered by this award under a training agreement or contract of training for an apprentice declared or recognised by the relevant State or Territory authority.

3. The relevant minimum wages for full-time junior and adult apprentices provided for in this award, calculated hourly, will apply to school-based apprentices for total hours worked including time deemed to be spent in off-the-job training.

4. For the purposes of clause 3, where an apprentice is a full-time school student, the time spent in off-the-job training for which the apprentice must be paid is 25% of the actual hours worked each week on-the-job. The wages paid for training time may be averaged over the semester or year.

5. A school-based apprentice must be allowed, over the duration of the apprenticeship, the same amount of time to attend off-the-job training as an equivalent full-time apprentice.

6. For the purposes of this schedule, off-the-job training is structured training delivered by a Registered Training Organisation separate from normal work duties or general supervised practice undertaken on the job.

7. The duration of the apprenticeship must be as specified in the training agreement or contract for each apprentice but must not exceed six years.

8. School-based apprentices progress through the relevant wage scale at the rate of 12 months progression for each two years of employment as an apprentice.

9. The apprentice wage scales are based on a standard full-time apprenticeship of four years (unless the apprenticeship is of three years duration). The rate of progression reflects the average rate of skill acquisition expected from the typical combination of work and training for a school-based apprentice undertaking the applicable apprenticeship.

10. If an apprentice converts from school-based to full-time, all time spent as a full-time apprentice will count for the purposes of progression through the relevant wage scale in addition to the progression achieved as a school-based apprentice.

11. School-based apprentices are entitled pro rata to all of the other conditions in this award.



Attachment D to Full Bench decision of 3 April 2009

National Training Wage Draft Schedule

1. Title

This is the National Training Wage Schedule.

2. Definitions

In this schedule:

3. Coverage

3.1 Subject to clause 3.2 of this schedule, this schedule applies in respect of an employee covered by this award who is undertaking a traineeship whose training package and AQF certificate level is allocated to a wage level by Appendix 1 to this schedule.

3.2 This schedule only applies to AQF Certificate Level IV traineeships for which a relevant AQF Certificate Level III traineeship is listed in Appendix 1 to this schedule.

3.3 This schedule does not apply to the apprenticeship system or to any training program which applies to the same occupation and achieves essentially the same training outcome as an existing apprenticeship in an award as at 25 June 1997.

3.4 Where the terms and conditions of this schedule conflict with other terms and conditions of this award dealing with traineeships, the other terms and conditions of this award prevail.

3.5 At the conclusion of the traineeship, this schedule ceases to apply to the employee.

4. Types of Traineeship

4.1 The following types of traineeship are available under this schedule:

4.2 Employment as a trainee does not commence until the relevant training contract has been signed by the employer and the employee and lodged for registration with the relevant State or Territory training authority, provided that if the training contract is not in a standard format employment as a trainee does not commence until the training contract has been registered with the relevant State or Territory training authority.

5. Minimum Wages

5.1 Minimum wages for full-time traineeships

5.2 Minimum wages for part-time traineeships

5.3 Other minimum wage provisions

6. Employment conditions

6.1 A trainee is subject to a probation period of no longer than one month.

6.2 A trainee must be permitted to be absent from work without loss of continuity of employment and/or wages to attend approved training.

6.3 Subject to clause 3.4 of this schedule, all other terms and conditions of this award apply to a trainee unless specifically varied by this schedule.

Appendix 1: Allocation of Traineeships to Wage Levels

The wage levels applying to training packages and their AQF certificate levels are:

1.1 Wage Level A

1.2 Wage Level B

1.3 Wage Level C

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<Price code J, PR042009>