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

Concrete Products Award 2010 - AWU Claim.

[1] In the course of the 4 yearly review of the Concrete Products Award 2010 1 (Award), the Australian Workers’ Union (AWU) raised an issue concerning an alleged anomaly or ambiguity in clause 25.9 of the Award, which is concerned with penalty rates for shiftworkers for work performed on Sundays and public holidays. That contention was the subject of a hearing before us on 12 October 2015.

[2] On 19 February 2016 we issued a decision 2 (Decision) in which we concluded that there was an error in the drafting of clause 25.9(b) in that the cross-reference to clause 15 in that provision made it appear as if non-continuous shiftworkers were to be paid at ordinary-time rates for work performed on Sundays and public holidays, in circumstances where continuous shiftworkers and indeed all other categories of employees under the Award received penalty rates for such work and where non-continuous shiftworkers themselves received penalty rates for work performed on Saturdays. We also referred in the Decision to the history of the shift work provisions in predecessor awards, which strongly suggested that it was intended that all shiftworkers receive penalty rates for Sunday and public holiday work. At the conclusion of the Decision we invited interested parties to file any further evidence and submissions they wished to advance concerning how the identified error in clause 25.9(b) might be corrected having regard to the modern awards objective in s.134(1) of the Fair Work Act 2009.

[3] The AWU filed submissions in which it contended that:

• the Award should be amended to provide for a penalty rate for non-continuous shiftworkers of double time on Sunday and double time and a half on public holidays;



• these rates were the established standards having regard to the NSW Industrial Commission decisions in In re Electricians, &c. (State) Award (No 3) 3 and In re Shiftworkers Case4;



• businesses in the industry covered by the Award were generally covered by enterprise agreements which provided for double time on Sundays and double time and a half for public holidays.

[4] The AWU’s submissions were supported by a number of witness statements from AWU officials which identified various work locations where work in the industry to which the Award applied occurred. That evidence demonstrated that enterprise agreements typically applied to businesses in the industry and their employees, that shift work was not commonly performed in the industry and that under the applicable enterprise agreements the rate for non-continuous shiftworkers on Sundays was generally double time and for public holidays it was generally double time and a half. The persons who made the witness statements were not required for cross-examination by any party.

[5] The Ai Group did not oppose a rate of double time on Sundays being established for not continuous shift workers, but did oppose the rate of double time and a half for public holidays. It submitted that the rate should be double time, in line with the public holiday rate for continuous shiftworkers in the Award. It further submitted that an analysis of enterprise agreements in the industry did not demonstrate any consistent industry standard for double time and a half being paid on public holidays to non-continuous shiftworkers. No other party elected to make further submissions in the matter.

[6] We consider that the establishment of a rate of double time for work performed by non-continuous shiftworkers on both Sundays and public holidays is necessary to achieve the modern awards objective in s.134(1). The error in clause 25.9(b) of the Award identified in the Decision requires correction by way of the establishment of penalty rates harmonious with those applying to other categories of employees in the Award. We consider that the appropriate rate is double time (and not double time and a half on public holidays) because:

(1) Clause 25.9(a) prescribes double time as the rate for continuous shiftworkers for work performed on Sundays and public holidays. We see no reason why non-continuous shiftworkers should have a different rate of pay.

(2) The decision of Grimshaw C which established the first comprehensive award prescription for shift work in this industry 5 is best interpreted on the basis that double time was the rate originally intended for shift work performed on Sundays and public holidays. It was the errors which crept into the drafting of the applicable award provisions then and subsequently (identified in the Decision6) which frustrated this intention.

[7] We propose to amend clause 25.9 to give effect to this decision so that it reads as follows:

25.9 Sundays and public holidays

(a) Shiftworkers on continuous shifts for work on a rostered shift the major portion of which is performed on a Sunday or public holiday will be paid as follows:

(i) Sundays—at the rate of double time; or

(ii) public holidays as prescribed by clause 29 - Public holidays, at the rate of double time. 

(b) Shiftworkers on other than continuous work for all time worked on a Sunday or public holiday will be paid as follows:

(i) Sundays—at the rate of double time; or

(ii) public holidays as prescribed by clause 29 - Public holidays, at the rate of double time. 

(c) Where shifts commence between 11.00 pm and midnight on a Sunday or a public holiday, the time worked before midnight will not entitle the employee to the Sunday or public holiday rate, provided that the time worked by an employee on a shift commencing before midnight on the day preceding a Sunday or public holiday and extending into a Sunday or public holiday will be regarded as time worked on such Sunday or public holiday.

(d) Where shifts fall partly on a public holiday, that shift the major portion of which falls on a public holiday will be regarded as the public holiday shift.

[8] Any party which considers that the amended provision set out above would not appropriately give effect to this decision shall file and serve any submission it wishes to make in that respect within 14 days of the date of this decision. Any such submission should identify how it is contended that the amended clause 25.9 should be drafted. If no such submissions are filed, we will proceed to issue a determination varying clause 25.9 of the Award as set out above.

VICE PRESIDENT

 1   MA000056

 2   [2016] FWCFB 597

 3   [1970] AR 305

 4   [1972] AR 633

 5   Referred to in the Decision at [9]-[11]

 6   Decision at [10] and [15]

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