DECISION

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

4 yearly review of modern awards— Silviculture Award 2010
(AM2014/244)

4 yearly review of modern awards – award stage – technical and drafting – Silviculture Award 2010

[1] An exposure draft for the Silviculture Award was published on 8 March 2019. 1 This decision deals with four outstanding technical and drafting issues in the Silviculture Award 2010 (Silviculture Award). The four outstanding issues are:

(i) Item 25 – Expense related allowances – fares and travelling time

(ii) Item 28 – Expense related allowances – living away from home allowances – camping out

(iii) Item 29 – Expense related allowances – living away from home allowances – camping out

(iv) Item 30 – Expense related allowances – living away from home allowances – Travelling expenses

[2] A Report to the Full Bench from Deputy President Clancy 2 noted that these four issues ‘remain under consideration by the parties and may benefit from further discussions’.3 The parties did not subsequently come to an agreed position and the issues were identified as outstanding in the summary of submissions document for the Silviculture Award published on 10 October 2017. A number of other technical and drafting issues in the Silviculture Award were previously determined in [2018] FWCFB 6368, [2018] FWCFB 1405 and [2017] FWCFB 5536 but these four issues remain outstanding.

[3] Submissions dealing with the outstanding issues have been filed by the National Farmers Federation (NFF), on 9 June 2017, 17 January 2017 and 20 January 2017. The Australian Workers’ Union (AWU) filed submissions on 18 January 2017 and 9 February 2017, but the submissions did not address the outstanding issues referred to at [1] above.

[4] Exposure drafts for the Silviculture Award have been published on 15 January 2016, 29 July 2016, 3 November 2017, and most recently on 8 March 2019. The issues were highlighted as outstanding in the exposure draft published on 8 March 2019, however no further submissions have been received regarding these issues.

[5] Each outstanding item is dealt with below.

(i) Item 25 - Expense related allowances – fares and travelling time

[6] This issue relates to the proposed wording of clauses 11.4(f) and 11.4(l) of the exposure draft. The NFF submit that clause 11.4(l)(iii) replicates clause 11.4(f)(ii) and should be deleted.⁴

[7] Clause 11.4(f) of the exposure draft states:

‘(f) Provision of transport

(i) Subject to clauses 11.4(f)(iii) and 11.4(f)(iv), the allowances prescribed in clause 11.4, (except the additional payment prescribed in clauses 11.4(d) and 11.4(e)) will not be payable on any day on which the employer provides or offers to provide transport free of charge from the employee’s home (or, in the case of clause 11.4(b), the employee’s place of accommodation) to the place of work and back.

(ii) Any transport supplied must be equipped with suitable seating and be covered when necessary so as to be weatherproof.’

[8] Clause 11.4(l) of the exposure draft states:

‘(l) Transport from employer’s location

(i) An employee who, by mutual agreement with an employer, reports for work at a permanent location established by the employer and is transported from the location to the place of work and back will not be paid the daily fares allowances prescribed by clauses 11.4(a) to 11.4(e).

(ii) All time over 30 minutes spent by the employee travelling to and from the place of work in such transportation must be counted as time worked.

(iii) Transport provided by the employer pursuant to clause 11.4(l) must be free of charge, equipped with suitable seating accommodation and be covered when necessary so as to be weatherproof.’

[9] The corresponding clauses in the current award are clauses 18.1(n) and 18.1(f) are in similar terms.

[10] No opposition by any other party has been expressed in relation to the NFF’s proposal. The Australian Workers’ Union filed submissions in relation the Silviculture Award on 18 January 2017 and 9 February 2017 but did not address this issue.

[11] While there is some duplication in the clauses in question, they apply to transport supplied to and from different locations. Clause 11.4(f) deals with transport from the employee’s home (or place of accommodation) to the place of work, and back. Clause 11.4(l) deals with the transport from the employee’s permanent work location to the place of work and back.

[12] As these clauses deal with differing purposes the NFF’s submission is rejected.

(ii) Item 28 – living away from home allowances – camping out

[13] This issue concerns clause 11.6(d)(i) of the exposure draft, which deals with camp accommodation.

[14] Clause 18.5(d)(i) of the current award states:

‘(d) Camping out

(i) Camp accommodation

Where an employee is engaged on projects which are located in areas where suitable board and lodging as defined in clause 18.5(c) is not available, or where the size of the workforce is in excess of the available accommodation, or where the project or the working of shifts necessitate camp accommodation, and where it is necessary to house the employees in a camp, such camp will be constructed and maintained.’

[15] Clause 11.6(d)(i) of the exposure draft states:

‘(d) Camping out

(i) Camp accommodation

Camp accommodation will be constructed and maintained where it is necessary to house an employee in a camp because:

•  the employee is engaged on projects which are located in areas where reasonable board and lodging as defined in clause 11.6(c) is not available; or

•  the size of the workforce is in excess of the available accommodation; or

•  the project or the working of shifts necessitate camp accommodation.’

[16] The NFF submit that clause 11.6(d)(i) of the exposure draft should be redrafted to reflect the current terms of the award. It is submitted that the current award separates the various conditions that apply to the construction and maintenance of a camp. The NFF submit that the drafting in the exposure draft makes the necessity of a camp dependant on the three criteria. The NFF suggest the following redraft:

‘(i) Camp accommodation

Camp accommodation will be constructed and maintained if:

•  the employee is engaged on projects which are located in areas where reasonable board and lodging is not available; or

•  the size of the workforce is in excess of the available accommodation; or

•  the project or the working of shifts necessitate camp accommodation; and

•  it is necessary to have employees in a camp⁵ (NFF’s emphasis)

[17] In a later submission, the NFF reaffirmed this position, stating that the change in the legal effect of the drafting of the clause in the exposure draft compared to that in the current award was as follows:

‘In the current award, each of the conditions that must exist before an entitlement to camp accommodation arises (distance, lack of accommodation or type of work/roster) are separate conditions. If one of these condition is present, and it is necessary to house employees in a camp, an employer must arrange for the construction and maintenance of camp accommodation. In the exposure draft, one of the three conditions must be the reason that it is necessary to house employees in a camp. The clause should be clarified so that whether it is ‘necessary to house an employee in a camp’ is a separate question to the existence of one of the three circumstances of employment.’6

[18] The NFF further pressed this variation in their submission on 20 January 2017.⁷ They submitted that the use of the word ‘because’ before each of the dot points in proposed clause 11.6(d)(i) changes the effect of the term. No opposition has been expressed to the NFF proposal concerning clause 11.6(d)(i). The Australian Workers’ Union filed submissions in relation the exposure draft on 18 January 2017 and 9 February 2017, but did not address this issue.

[19] The NFF submission has merit. The legal effect of the clause has changed due to the redrafting of the clause. The following changes will be made to clause 11.6(d)(i) of the exposure draft:

‘(d) Camping out

(i) Camp accommodation

Camp accommodation will be constructed and maintained if: where it is necessary to house an employee in a camp because:

•  the employee is engaged on projects which are located in areas where reasonable board and lodging as defined in clause 11.6(c) is not available; or

•  the size of the workforce is in excess of the available accommodation; or

•  the project or the working of shifts necessitate camp accommodation; and

•  it is necessary to have employees in a camp.’

(iii) Item 29 – Expense related allowances – living away from home allowances – camping out

[20] This issue relates to the wording of clause 11.6(d)(iv) of the exposure draft which states:

‘(iv) Camp meal charges

Where a fee is charged for meals in a camp, such the fee will be fixed by agreement.’

[21] The NFF submit that it should be made clear that the agreement on the fee in clause 11.6(d)(iv) of the exposure draft is between ‘the parties’ or ‘the employer and the employee’.⁸ The NFF point to clause 18.5(d)(iii) of the current Award which includes the words ‘between the parties’ after the word ‘agreement’, clarifying who the agreement must be between.⁹

[22] Clause 18.5(d)(iii) of the current Award states:

‘(iii) Camp meal charges

Where a charge is made for meals in a camp, such charge will be fixed by agreement between the parties.’

[23] There has been no opposition by any party to the above proposal. The proposal will be adopted as requested by the NFF in order to preserve the status quo.

(iv) Item 30 – Expense related allowances – living away from home allowances – Travelling expenses

[24] Clause 11.6(e) of the exposure draft deals with travel expenses and states:

‘(e) Travelling expenses

An employee who is sent by their employer or selected or engaged by an employer or agent to go to a job which qualifies them to the provision of this clause will not be entitled to any of the allowances prescribed by clause 11.4 for the period occupied in travelling from their usual place of residence to the distant job, but instead must be paid the allowances in clause 11.6(e).

(i) Forward journey

For the forward journey, the employee is to be paid:

•  the ordinary hourly rate for the time spent travelling (to a maximum of eight hours); and

•  the amount of a fare on the most common method of public transport to the job and any excess payment due to transporting the employee’s gear.

(ii) The employer may deduct the cost of the forward journey fare from an employee who terminates or discontinues their employment within two weeks of commencing the job and who does not immediately return to their place of engagement.

(iii) The employee will be entitled to the meal allowance specified in clause 11.5 for all meals incurred while travelling. The meal allowance will be increased if the employee satisfies the employer that they reasonably incurred expenditure greater than the rate prescribed by clause 11.5.

(iv) Return journey

An employee will, for the return journey, receive the same time, fares and meal payments as provided in clause 11.6(e)(i), unless the employee:

•  terminates or discontinues their employment within two months of commencing on the job (or prior to the job completion if the work is for less than two months); or

•  is dismissed for incompetence within one working week of commencing on the job; or

•  is dismissed for misconduct.

(v) Departure point

For the purposes of clause 11.6(e), travelling time will be calculated as the time taken for the journey from the central or regional bus or air terminal nearest the employee’s usual place of residence to the locality of the work.’

[25] The NFF¹⁰ propose a number of suggested changes to clause 11.6(e). The NFF’s proposed amendments reflect the current drafting in clauses 18.5(e) and (f) of the award. Clauses 18.5(e) and (f) of the current award state:

‘(e) Travelling expenses

An employee who is sent by their employer or selected or engaged by an employer or agent to go to a job which qualifies them to the provision of this clause will not be entitled to any of the allowances prescribed by clause 18.1 of this award for the period occupied in travelling from their usual place of residence to the distant job, but instead must be paid.

(f) Forward journey

(i) For the time spent in so travelling, at ordinary rates up to a maximum of eight hours per day for each day of travel (to be calculated as the time taken by rail or the usual travelling facilities).

(ii) For the amount of a fare on the most common method of public transport to the job (e.g. bus; economy air) and any excess payment due to transporting the employee’s gear if such is incurred.

Provided that the employer may deduct the cost of the forward journey fare from an employee who terminates or discontinues their employment within two weeks of commencing on the job and who does not immediately return to their place of engagement.

(iii) For each meal incurred while travelling at the rate prescribed by clause 18.4 of this award.

Provided that such rate will be increased if the employee satisfies the employer that they reasonably incurred an expenditure greater than the rate prescribed by clause 18.4.’

[26] The NFF’s suggested amendments to clause 11.6(e) of the exposure draft are highlighted in red text below:

‘(e) Travelling expenses

An employee who is sent by their employer or selected or engaged by an employer or agent to go to a job which qualifies them to the provision of this clause will not be entitled to any of the allowances prescribed by clause 11.4 for the period occupied in travelling from their usual place of residence to the distant job, but instead must be paid the allowances in clause 11.6(e).

(i) Forward journey

For the forward journey, the employee is to be paid:

•  the ordinary hourly rate for the time spent travelling (to a maximum of eight hours) per day of travel, calculated as the time taken by rail or other usual travel method; and

•  the amount of a fare on the most common method of public transport to the job and any excess payment due to transporting the employee’s gear.

(ii) The employer may deduct the cost of the forward journey fare from the wages of an employee who terminates or discontinues their employment within two weeks of commencing on the job and who does not immediately return to their place of engagement.

(iii) The employee will be entitled to the meal allowance specified in clause 11.5 for all meals incurred while travelling. The meal allowance will be increased if the employee satisfies the employer that they reasonably incurred expenditure greater than the rate prescribed by clause 11.5.

(iv) Return journey

An employee will, for the return journey, receive the same time, fares and meal payments as provided in clause 11.6(e)(i)-(iii), unless the employee:

•  terminates or discontinues their employment within two months of commencing on the job (or prior to the job completion if the work is for less than two months); or

•  is dismissed for incompetence within one working week of commencing on the job; or

•  is dismissed for misconduct.’

[27] We propose to accept the NFF amendments on the basis that they reflect the current drafting in clause 18.5(e), and help clarify the operation of the clause.

Next Steps

[28] An updated exposure draft for the Silviculture Award will be published concurrently with this decision. Any comments on the updated exposure draft must be filed by no later than 4pm on Monday 19 August 2019, in line with comments that will follow the plain language light touch process. All submissions to be sent to [email protected].

PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR710682>

 1   Exposure Draft, republished 8 March 2019

 2   Report to the Full Bench, 25 August 2016

 3   Report to the Full Bench, 25 August 2016, at para [5] and Attachment C

4 Submission, 9 June 2016, [8]

5 Submission, 9 June 2016, [45]

6 Submission, 17 January 2017, [9]

7 Submission, 20 January 2017, [33]

8 Submission, 9 June 2016, [46]

9 Submission, 20 January 2017,[34]-[37]

10 Submission, 9 June 2016, [47]