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

4 yearly review of modern awards—Construction awards
(AM2016/23)

Four yearly review of modern awards – Group 4 Awards – Construction awards – Building and Construction General On-site Award 2010 – Joinery and Building Trades Award 2010 – Mobile Crane Hiring Award 2010 – Plumbing and Fire Sprinklers Award 2010 – substantive matters.

Introduction and Background

[1] On 26 September 2018 we issued a decision (September Decision) 1 dealing with the substantive claims in relation to the Building and Construction General On-Site Award 2010 (Building Award), the Joinery and Building Trades Award 2010 (Joinery Award), Mobile Crane Hiring Award 2010 (Mobile Crane Award) and the Plumbing and Fire Sprinklers Award 2010 (Plumbing Award), collectively the “Construction Awards”.

[2] In the September Decision we determined, amongst other things, that the array of disability allowances for which provision is made in the Building Award is not consistent with the modern awards objective. 2 We also determined to retain the multistorey allowance but all other disability allowances would be abolished and replaced by an enhanced industry allowance, variable in quantum having regard to the particular industry sector in which an employee is engaged.3

[3] By abolishing the disability allowances and replacing them with an enhanced industry allowance, we sought to simplify the current system of allowance prescription under the Building Award. We recognised that a different quantum of the industry allowance is appropriate across the sectors covered by the Building Award because the various disability allowances are paid more frequently on larger commercial building and construction and civil engineering and construction projects than in the smaller scale residential building and construction sector. We therefore set out an all-purpose industry allowance for two broadly described sectors: residential building and construction (defined by reference to the activities in clause 4.10(a) of the Building Award undertaken in relation to single occupancy residential building which is not a multi-storey building), and all other building and construction including civil construction and metal and engineering construction.

[4] We also set out our provisional view concerning the quantum of the proposed sectorial industry allowances - an all-purpose industry allowance of 4% applicable to the residential building and construction sector and 5% for all other building and construction work. 4

[5] We invited interested parties to advance any alternative proposals, make any submissions and to confer in relation to the quantum of the proposed sectorial industry allowances. 5 Interested parties were also provided with the opportunity to request a further conference or hearing to be conducted in relation to this issue.6

[6] A conference was held on 1 November 2018 for the purpose of dealing with the proposed amendment to the Building Award industry allowances, special and disability allowances. At the conclusion of the conference, the parties were directed to confer and file submissions in response to the Construction, Forestry, Maritime, Mining and Energy Union’s (CFMMEU) proposal on height work. Revised directions were issued on 8 November 2018 affording the parties an opportunity to file additional written submissions addressing the quantum of the proposed sectorial industry allowances. 7

Submissions

[7] Submissions were received from:

● the CFMMEU, 8
● the Australian Workers’ Union (AWU), 9
● the Australian Manufacturing Workers’ Union (AMWU), 10
● the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU), 11
● Master Builders Australia (MBA), 12
● the Housing Industry Association (HIA), 13
● the Australian Industry Group (Ai Group), 14 and
● Australian Business Industrial (ABI) and the New South Wales Business Chambers Ltd (NSWBC). 15

[8] The AWU and the AMWU also filed a number of witness statements.

CFMMEU submissions

[9] The CFMMEU, supported by the AMWU, AWU and CEPU (collectively “the Unions”), expressed opposition to our provisional view as to the quantum for the residential building and construction sector industry allowance. The CFMMEU submitted that the 4% proposed is inadequate and less than the existing combined industry and special allowances which is the equivalent of 4.6% of the standard rate. 16 It further submitted the quantum proposed would have the effect of reducing the existing safety net of all workers in the residential building and construction sector by an average of $5.18 per week and by $1.33 to $2.49 per week for apprentices.17

[10] The CFMMEU submitted that although the proposed industry allowance for all other building and construction work will result in a 0.4% increase over the existing combined special allowance and industry allowance, it does not fairly compensate when fares, RDOs and annual leave loading is factored in. It submitted that the amount of 5% is too low and that there is sufficient evidence before the Full Bench to justify a higher amount. 18

[11] The Unions proposed a general industry allowance of 6.6% of the standard rate and a separate allowance of 14.2% for “special building and construction work”. 19

[12] The separate special industry allowance of 14.2% would be limited to employees engaged in refractory work, asbestos removal work, air-conditioning and refrigeration industry work, and work in compressed air. 20 The CFMMEU seeks the special industry allowance as the majority of employees who do these types of work specialise in the work and would be paid the allowances currently payable under the award for all hours worked. It noted that in the case of the refractory bricklaying allowance and the air-conditioning and refrigeration allowance, the existing allowances are part of the ordinary time hourly rate, as defined in clause 3 – Definitions and provided for in clauses 19.3(a), 19.3(b), 19.7(e) and 21.8(b), effectively making them all-purpose allowances.21

[13] The CFMMEU also sought to amend the current multi-storey allowance at clause 21.4(d) proposing inter alia that it provide a height allowance of 3.2% of the standard rate for all work above 15 metres, with an additional 3.2% of the hourly standard rate for work above each additional 15 metres. In addition, the CFMMEU’s proposed amendment would see the allowance applied to any work performed on swing scaffold, bosun’s chair or suspended scaffold. 22

[14] In response to submissions advanced by the HIA (see below), the CFMMEU submitted that if there was to be a separate industry allowance for the residential building and construction industry, it supported the definition proposed by the Full Bench in the September Decision and opposed the definition proposed by the HIA. It submitted that the term “single occupancy” was well understood in the industry, and the amendments proposed by HIA would open up the definition to include multi-unit/multi townhouse commercial developments including the construction of aged care facilities, many of which are constructed by large multinational companies. 23 The CFMMEU did however agree with HIA that there should be a consistent definition of a multistorey building, and that the definitions set out in clause 21.4(c) of the Building Award should apply.24

AMWU evidence and submissions

[15] The AMWU submitted that all residential building and construction sector employees will be worse off by a minimum of 0.6% of the standard weekly rate per week and all air-conditioning tradespeople and refrigeration mechanics will be worse off by a minimum of 7.5% with the quantum proposed in the September Decision. 25

[16] The AMWU relied on Mr Stephen Isberg’s evidence. He is employed by the AMWU as an organiser. His evidence was that on-site work of air-conditioning tradespeople and refrigeration mechanics is unique in that their work involves various disabilities occurring at that same time. 26 The AMWU contended that these employees would suffer a significant loss if the disability allowances were to be replaced by a single industry allowance. It says this is because the combined value of the industry allowance and the special allowance is 4.6%, the current value of the allowance paid to air-conditioning tradespeople and refrigeration mechanics is 7.9%, equating to a combined percentage of 12.5%. If the proposed 5% allowance for the civil construction sector is applied, it equates to a 7.5% reduction.27

[17] The AMWU opposed the rationalisation of the allowances into two allowances and supported the submissions of the CFMMEU, stating that the CFMMEU proposal represents the minimum of what the “rolled-up” rate should provide. 28

[18] As to the air-conditioning tradespeople and refrigeration mechanics allowance, the AMWU said that the allowance arose out of a decision of Commissioner Cox on 27 August 1987 in relation to the Metal Industry Award 1984 – Part I. The decision determined that a new allowance should be provided to recognise the peculiar nature of the work undertaken by refrigeration mechanics and service persons in connection with the construction industry. 29

CEPU submissions

[19] The CEPU supported and adopted the submissions of the CFMMEU and AMWU. 30

AWU evidence and submissions

[20] The AWU submitted there was merit in simplifying the Building Award by deleting a large number of the disability allowances and replacing them with an enhanced industry allowance. 31 It submitted the industry allowance of 3.7% and the special allowance of $7.70 per week equates to employees currently receiving an entitlement of 4.6% of the weekly standard rate per week or $38.68 per week.32

[21] The AWU relied on the evidence of its officials Mr Nicholas Blackford (Construction organiser), Mr Sean Burke (Organiser), Mr Anthony Callinan (Assistant Branch Secretary and Construction Team Leader), Mr Paul Cradden (Construction Organiser), Mr Ronnie Hayden (Lead Organiser) and Mr Kade Wakefield (Lead Organiser). 33 The AWU’s witnesses gave evidence that most of the members they represent at sites were covered by enterprise agreements which often had higher wage rates than the awards.

[22] The AWU’s witnesses listed in their statements a number of allowances that they contend would typically be paid to employees whilst working on site. However, during the hearing the witnesses conceded that employees would not typically be entitled to be paid all of the disability allowances at the same time. 34 During cross-examination, Mr Cradden said that it was common at most of those sites for a single allowance, commonly referred to as a “site allowance” or “productivity allowance”, to be paid in lieu of a number of individual disability allowances.35 Similarly, Mr Callinan, Mr Blackford and Mr Hayden gave evidence that it was not uncommon for most disability allowances to be grouped and paid as a single site allowance.36 Mr Wakefield could not give a definitive answer as to whether the allowances are paid as separate amounts as distinct from being rolled-up into one allowance.37

[23] Mr Hayden gave evidence that some employees may be worse off in circumstances where an allowance that would arise during the course of an employee’s work was not provided for in an enterprise agreement, however he conceded that this could be rectified with the inclusion of an all-purpose allowance of 5%. 38 Mr Burke agreed that the allowances should be simplified but proposed an amount of 15-20% as he said that in his personal experience, when there were different allowances that could be paid for the work being performed under the Building Award an employee would be paid the highest of those allowances.39

[24] The AWU witnesses said that no formal industry analysis or member survey had been conducted to support its contention or as to how often the allowances were paid to employees in civil construction. 40 However, Mr Burke said he had held informal discussions with about 50% of the employees working on the WestConnex M4 and 5 metro tunnel system, all of whom were covered by an enterprise agreement.41

[25] As to the underground allowance, the AWU submitted that its members working in the civil construction industry regularly experience the disability and for an employee who works 38 ordinary hours underground on a tunnelling project they would receive around $16.72 per week. It said this would constitute a reduction of around 80% based on the proposal in the September Decision. 42

[26] The AWU contended its evidence suggests a number of disability allowances are paid regularly and thus justifies an enhanced industry allowance of 7.8%. 43

MBA submissions

[27] MBA opposed the Unions’ proposal submitting that the calculations underpinning the proposal were manifestly deficient. 44 It submitted that the existing special allowance amount of $7.70, which under the Building Award is a fixed amount and not adjusted, has been translated into a percentage figure of 0.9% and then included as part of the total 6.6% for the proposed standard industry allowance which will then increase yearly, as a dollar amount, given its relationship with the weekly wage.45

[28] MBA submitted that the Commission is entitled to make a determination on the quantum of sectorial industry allowances 46 and it does not oppose the quantum of the sectorial industry allowances proposed in the September Decision.47 It submitted that it is a highly likely outcome that the quantum of 4% or 5% representing a “roll-up” of allowances will result in a detriment to some employers as they may have not been previously triggered in particular workplaces or circumstances. However, it also conceded that there will be circumstances in which employees may also suffer a financial detriment. It submitted that with between 350,000 and 400,000 business entities operating in the construction industry employing in excess of 1.1 million people, it would be impossible to account for the limitless scenarios in which a detriment could manifest itself at varying degrees and therefore has not made submissions as to quantum of the “roll-up”.48

[29] It said that the conceptual change as to how allowances are treated will likely result in an overall benefit to employees and detriment to employers. 49 It submitted that allowances currently attract various types of treatment in terms of employment costs whereas the proposed industry allowance is payable for all purposes under the current Building Award and is considered to be ordinary time earnings for purposes such as leave, superannuation, various shift and penalty rates, and a series of associated relevant loadings.50

[30] MBA argued that the CFMMEU’s calculations and submissions should be rejected as they proceed on the false premise that a range of existing allowances are triggered and payable on a constant basis for all hours of work, and the CFMMEU has made the incorrect assumption that existing allowances remain relevant to certain types of work. MBA submitted that this is not how the Building Award is expressed to apply and that the majority of the allowances proposed to be abolished are rarely triggered, if at all. Of the 52 allowances the Commission has proposed to roll-up to generate a sectorial based industry allowance, it noted that 29 are payable only for each hour worked, 8 are payable for each hour or part thereof when worked, 3 are payable in circumstances with set pre-conditions, 6 are payable for each day in which they are triggered or part thereof, and only 6 are payable each week when triggered by set pre-conditions. 51 In addition, it noted that it is uncommon for work in the residential building and construction sector to trigger the vast majority of the 52 allowances proposed to be rolled-up.52

[31] In an effort to show the impact on labour costs of the quantum proposed by the CFMMEU, MBA relied on Australian Bureau of Statistics (ABS) data which measures labour costs in the residential and non-residential construction sub-sectors. By extrapolating the data and applying the CFMMEU proposal, MBA contended that the result is an overall increase of $0.06 per hour or $2.26 per week, being an average increase of 0.23% of the base wage. MBA also carried out an analysis utilising ABS data for employment by sub-sector within the construction sector (rather than the applicable division of wages paid by sub-sector) and submitted the data reveals that 10% of total employment in the construction sector is in the residential sector and 90% is in non-residential. Using those proportions and applying them to the CFMMEU proposal suggests an overall increase of $0.08 per hour or $3.16 per week resulting in an average increase of 0.32% of the base wage. MBA submit that the conclusion to be drawn from its analyses is that the overall impact of the proposed quantum would provide a favourable outcome when considered in the context of the industry in which various ABS survey data show construction employees earnings, on average, are between $1,500 to $1,800 per week. 53

[32] MBA also noted that the payment of the air-conditioning allowance at clause 21.11 negates the necessity to pay other allowances including insulation, hot work, cold work and confined space and despite this the CFMMEU has proposed a special industry allowance including an amount to compensate for their alleged loss, notwithstanding that these are not ordinarily payable. 54

[33] MBA submitted there is a link between the towers allowance at clause 22.3(a) that the Commission has determined to abolish and clauses 21.4(d) and (g) that the Commission has determined to retain.  55 Therefore, MBA proposed the following alterations:

“(d) Any buildings or structures which do not have regular storey levels but which are not classed as towers (e.g. grandstands, aircraft hangars, large stores, etc.) and which exceed 15 metres in height may will be covered by this subclause,. or by clause 22.3(a) by agreement between the employer and an employee.

(g) Service cores

(i) All employees employed on a service core at more than 15 metres above the highest point of the main structure must be paid the multistorey rate appropriate for the main structure plus an additional 3.2% of the hourly standard rate per hour, with 3.2% of the hourly standard rate per hour additional for work above each additional 15 metres the allowance prescribed in clause 22.3(a), calculated from the highest point reached by the main structure to the highest point reached by the service core in any one day period. (i.e. For this purpose, the highest point of the main structure will be regarded as though it were the ground.).in calculating the appropriate Towers allowance prescribed in clause 22.3(a).” 56

[34] As to the proposition that abolishing a number of disability allowances will have an adverse consequence for enterprise bargaining, MBA submitted that the prospect of any impact on bargaining flowing from changes to the industry allowances as proposed in the September Decision is remote. 57

[35] MBA supported the HIA submission as to the definition of “residential building and construction” noting that the term “single occupancy” is unclear and could lead to confusion in its application. Therefore, it submitted that that the definition of “multistorey building” used to define the residential building and construction sector must be consistent with that at clause 21.4(c) of the Building Award. 58

HIA submissions

[36] The HIA supported both the sectorial approach and the quantum of the industry allowances 59 proposed in the September Decision, however it raised concerns in relation to the definition of “residential building and construction” outlined at [368] of the September Decision, which stated:

“…our provisional view is that it is sufficient for there to be two sectors only: residential building and construction (defined by reference to the activities referred to in clause 4.10(a) of the Building Award undertaken in relation to single occupancy residential building which is not a multistorey building), and all other building and construction, including civil construction and metal and engineering construction.”

[37] The HIA submitted the term “single occupancy” should be removed from the proposed definition as it is open to interpretation and potentially confusing for the industry given it is not a term that is broadly used. It further submitted the definition of “multi-storey building” used for the purpose of defining the residential building and construction sector should be consistent with the definition outlined at clause 21.4(c) of the Building Award. 60

[38] The HIA opposed the CFMMEU’s proposed amendment to the multi-storey allowance, submitting the proposal was at odds with the desire of the Full Bench to simplify and rationalise allowances in the Building Award, including the swing scaffold, bosun’s chair and suspended scaffold allowances. It submitted the proposal would have the effect of the allowance being applied to scenarios that go well beyond those that were specifically contemplated by the current towers allowance. 61 The HIA contended that the CFMMEU seeks to re-agitate the method of rationalisation through a proposal that would see the retention of a number of allowances for height work which had already been determined by the Commission.62 Whilst HIA objected to the CFMMEU’s proposal for the multi-storey allowance, it said that if the Commission is minded to adopt either of the unions proposals, the ability to reach agreement on the amount payable in certain situations should be retained.63

[39] HIA contended that the proposal in the September Decision to retain the multi-storey allowance and delete the towers allowance requires consequential amendments to the multi-storey allowance at subclauses (d) and (g). In order to be consistent with the approach that other height related allowances be removed whilst continuing to provide an allowance for work on buildings or structures with irregular storey levels, HIA contended that the deletion of the towers allowance could be accommodated by making amendments to clause 21.4(d) so that it reads:

“Any buildings or structures which do not have regular storey levels and which exceed 15 metres in height will be covered by this subclause.”

[40] HIA also proposed to delete reference to the allowance prescribed in 22.3(a) from clause 21.4(g) of the Building Award. 64 Clause 21.4(g)(i) provides that a specific allowance for employees employed on a service core at more than 15 metres above the highest point of the main structure be paid the multistorey rate appropriate for the main structure plus the allowance prescribed in clause 22.3(a). This is calculated from the highest point reached by the main structure to the highest point reached by the service core in any one day period (i.e. for this purpose, the highest point of the main structure will be regarded as though it were the ground in calculating the appropriate towers allowance prescribed in clause 22.3(a)).

[41] As to the CFMMEU’s proposed allowance for “special building and construction work” for employees engaged on refractory work, asbestos removal work, air-conditioning and refrigeration industry work and work in compressed air, the HIA submitted that allowance is significantly higher than the current allowance and fails to recognise the Commission’s conclusion to rationalise these allowances. 65

Ai Group submissions

[42] The Ai Group did not oppose the residential and construction allowance amounts proposed in the September Decision but submitted that it would oppose any higher quantum. 66 It submitted that the CFMMEU’s calculations do not identify how it has factored in what allowances actually apply to the work undertaken by the various groups of employees.67

[43] Ai Group submitted the multistorey allowance should remain as intended or in the alternative it supports the submission of the HIA. 68 It noted that the CFMMEU’s solution seems to preserve the existing disability allowances (such as the towers and heights allowance) by incorporating them into the multistorey allowance.69

ABI and NSWBC submissions

[44] Whilst ABI and the NSWBC are not opposed to the adoption of an enhanced industry allowance or quantum proposed in the September Decision, and in this regard they support the submissions made by the MBA, Ai Group and HIA, they oppose the quantum proposed by the CFMMEU, AWU, AMWU and CEPU. 70

Consideration

[45] The Commission has a responsibility to ensure the awards are meeting the modern award objectives. The need to rationalise the allowances in the Building Award in order that the Building Award was consistent with the modern awards objective was identified in the September Decision. 71

[46] We have considered the evidence and submissions of the parties as to the asserted frequency with which some of the existing allowances are paid to employees. However, none of the parties assisted us with any detailed analysis of actual frequency with which particular allowances are paid to employees. No survey or other data was produced 72 despite the additional time that was made available to the parties to comment on the proposals set out in the September Decision. This is unsurprising to some degree as, outside of the residential building and construction sector, the preponderance of employees in the industry are covered by enterprise agreements, many of which contain a rolled-up industry allowance based on project value in lieu of numerous variable disability allowances, although this would still leave considerable room for a survey and the production of useful data. Instead, the material advanced by the parties was largely based on assertions made in submissions and in the witness statements to support an underlying proposition as to a proposed quantum and, in the case of the CFMMEU, the creation of a further cumulative allowance in the form of a separate allowance for so-called “special building and construction work”.  

[47] As we foreshadowed in the September Decision, the multistorey allowance, which we are satisfied is commonly paid and is relevant to a specific category of work, will be retained. We are persuaded that we should also amend the provision dealing with the application of the multistorey allowance to structures that do not have regular storey levels. We do not accept the CFMMEU proposal set out in Appendix 8 of its submissions. 73 However, we consider that it is appropriate to remove provision for the capacity to reach agreement between the employer and employee as to which allowance provision should be applied to work on such structures. Instead, we propose to fix a rate for the allowance that is the same as the Towers allowance. We also consider that work on a tower should be included in the structures described in clause 21.4(d) of the Building Award. This requires an adjustment to be made to what is currently designated as clause 21.4(d) of the Building Award,74 which will be modified as follows:

“(d) In respect of any building or structure (including a tower) which does not have regular storey levels and which exceed 15 metres in height, an allowance of 3.2% of the hourly standard rate per hour will be paid for all work above 15 metres, with an additional 3.2% of the hourly standard rate per hour for work above each additional 15 metres. For example, an employee working at a height of 31 metres is paid an allowance of 6.4% of the hourly standard rate per hour.”

[48] A consequential amendment will need to be made to the cross-referencing in what is now clause 21.4(f).

[49] We also accept that it is appropriate to amend clause 21.4(g) in the manner proposed by the MBA and noted in [33] above.

[50] We accept the AWU’s submissions in respect of the Underground allowance to the effect that underground work is attended by particular disabilities, that an employee who works 38 ordinary hours underground on a tunnelling project would currently receive around $16.72 per week, and consequently that our proposal would effect a significant reduction in remuneration. Therefore, the Underground allowance will be retained. All other disability allowances as set out in the September Decision will be abolished and replaced by an enhanced industry allowance.

[51] We accept the MBA’s contention that the CFMMEU and AWU submissions and their proposals as to the quantum of the rolled-up allowance, particularly the proposed special building and construction work allowance, proceed on the premise that a range of existing allowances are triggered and payable on a constant or consistently frequent basis. This premise appears to us to be incorrect and is inconsistent with how these allowances in the Building Award are expressed to apply. We are also not persuaded by the proposals for the quantum of the industry allowances advanced by the Unions. However, we accept that the provisional view in the September Decision as to the quantum of the sectorial allowances understates the appropriate level at which to fix the all-purpose industry allowances having regard to the allowances which are to be removed. Although in fixing the appropriate rate for the all-purpose industry allowance we endeavoured to take into account the abolition of other disability allowances, we accept that we did not factor into our calculation the value of the abolition of the special allowance. The special allowance is $7.70 per week. As a percentage of the standard rate, its value decreases each time the standard rate is increased. The current percentage value is 0.89% of the standard rate.

[52] The Unions’ submitted that the combined value of the current industry and special allowance is 4.6% of the standard rate. Our September Decision proposal of 4% as the value of the all-purpose allowance for the residential building and construction sector plus the 0.89% of the standard rate equates to 4.9% rounded up. We consider, factoring in the special allowance, that it is appropriate to fix the rate of the residential building and construction industry allowance at 4.8% of the standard rate. This is because it must be acknowledged that such portion of the new allowance that absorbs the flat dollar special allowance will now increase over time and will be part of an all-purpose allowance.

[53] We also propose to increase the other sectoral industry allowance to 6% taking into account the combined effect of the special allowance and some earlier undervaluing of other allowances.

[54] Therefore, we have concluded that the following industry allowances shall be paid in addition to the employee’s weekly rate prescribed in clause 19- Minimum Wages, for work in each of the sectors described below in lieu of all disability allowances other than those to be retained in the Building Award:

(i) General building and construction industry, Civil construction industry and Metal and engineering construction industry – an allowance of 6% of the weekly standard rate;

(ii) Residential building and construction industry- an allowance of 4.8% of the weekly standard rate.

[55] We are not persuaded and there is no evidence to support the HIA’s contention that the term “single occupancy” should be removed from the proposed definition of residential building and construction on the basis that it is open to interpretation and potentially confusing for the industry. We agree with the CFMMEU’s submission that the amendments proposed by the HIA would have the potential to include multi-unit/multi townhouse commercial developments. Therefore, for the purposes of determining the applicable industry allowance, the definitions in clause 4.10 will apply. The following definition of “residential building and construction” in the new industry allowance provision will apply for the purposes of determining the industry allowance applicable to that sector:

Residential building and construction industry means the activities identified in clause 4.10(a) undertaken in relation to a single occupancy residential building which is not a multistorey building.

[56] We accept the submissions of the parties that the definition of a “multistorey building” used to define the residential building and construction sector should be consistent with that at clause 21.4(c) of the Building Award – that is, a building which will, when complete, consist of five or more storey levels.

[57] We reject the Unions’ proposal as to the special industry allowance for workers engaged in refractory work, asbestos removal, air-conditioning work and work in compressed air. As earlier noted, the special industry allowance proposal is structured on a false premise that these allowances are paid for each hour worked. There is no evidence supporting such a hypothesis. We do however accept the AMWU’s submissions and are persuaded to retain a special allowance for the air-conditioning industry and refrigeration industry allowance because of the industrial history of the provision and the peculiarities that are associated with on-site air-conditioning and refrigeration work and for which the allowance was first awarded.

[58] As previously noted, consequential amendments to the Building Award will be necessary to account for the deletion of various allowances.

Conclusion

[59] A draft determination to give effect to the variations to the Building Award we have determined above will be issued in conjunction with this decision. Interested parties will be given a period of 14 days to comment on the form of the draft determinations. The variations shall take effect on and from 1 January 2020.

VICE PRESIDENT

Appearances:

S. Maxwell for CFMMEU

S. Crawford and P. Cradden for AWU

V. Paul for Ai Group

S. McGregor and R Sostarko for MBA

M. Adler and L. Regan for HIA

A. Ambihaipahar for CEPU

G. Millar for AMWU

L. Zhoe for NSWBC

Hearing details:

2019.

Melbourne:

March 4.

Printed by authority of the Commonwealth Government Printer

<PR713019>

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

BUILDING AND CONSTRUCTION GENERAL ON-SITE AWARD 2010
[MA000020]

4 yearly review of modern awards – Group 4 Awards – Construction awards – Building and Construction General On-site Award 2010 – substantive matters – allowances.

A. Further to the Full Bench decision issued by the Fair Work Commission on 26 September 2018 [[2018] FWCFB 6019] and 31 October 2019 [[2019] FWCFB 6860], the above award is varied as follows:

1. By deleting the clause 19.3(a)(ii) and inserting the following

(ii) For this purpose the hourly rate, calculated to the nearest cent (less than half a cent to be disregarded), will be calculated by multiplying the sum of the appropriate amounts prescribed in:

•  Clause 19.1—Minimum wages;

•  clause 21.1—Industry allowances;

and where applicable,

•  clause 20.1—Tool and employee protection allowance;

•  clause 22.2—Underground allowance,

by 52 over 50.4 (52/50.4) rounded to the nearest cent and dividing the total by 38.

Provided that in the case of a carpenter-diver, the divisor will be 31.

2. By deleting the words “clause 21.1—Special allowance” appearing in clause 19.3(b).

3. By deleting clause 19.7(e) and inserting the following:

(e) In addition to the above rates apprentices will be paid amounts prescribed in:

•  clause 21.1—Industry allowances;

•  clause 20.1—Tool and employee protection allowance;

and, where applicable,

•  clause 22.2—Underground allowance

as part of the ordinary weekly wage for all-purposes.

4. By deleting clause 21—Site and general wage related allowances and inserting the following:

21 Industry allowances

21.1 The following industry allowances must be paid, in addition to the employee’s weekly rate prescribed in clause 19—Minimum wages, for work in each of these sectors:

(a) General building and construction industry, civil construction industry and metal and engineering construction industry—an allowance of 6% of the weekly standard rate;

(b) Residential building and construction industry—an allowance of 4.8% of the weekly standard rate.

21.2 For the purposes of determining the applicable industry allowance:

(a) the definitions of general building and construction, civil construction and metal and engineering construction in clause 4.10 will apply.

(b) residential building and construction industry means the activities identified in clause 4.10(a) undertaken in relation to a single occupancy residential building which is not a multistorey building as defined in clause 22.3(c).

(c) the definition of multistorey building in clause 22.3(c) will apply.

5. By deleting clause 22—Special rates and inserting the following:

22. Other allowances

22.1 An employer must pay an employee the allowances they are entitled to under clause 22 in addition to the applicable industry allowance under clause 21.

22.2 Underground allowance

(a) An employee, other than an employee in an Operator classification, who is required to work underground must be paid an additional allowance of 1.8% of the weekly standard rate per week for all-purposes of the award.

(b) Provided that an employee required to work underground for no more than four days or shifts in any ordinary week must be paid an additional 0.4% of the weekly standard rate per day or shift.

(c) Where a shaft is to be sunk to a depth greater than six metres, the payment of the underground allowance will commence from the surface.

(d) These allowances will not be payable to employees engaged upon pot and drive work at a depth of 3.5 metres or less.

22.3 Multistorey allowance

(a) A multistorey allowance must be paid to all employees on-site whilst engaged in construction or renovation of a multistorey building to compensate for the disabilities experienced in, and which are peculiar to construction or renovation of a multistorey building.

(b) Provided that for the purposes of this clause renovation work is work performed on existing multistorey buildings and such work involves structural alterations which extend to more than two storey levels in a building, and at least part of the work to be performed is above the fourth floor storey level in accordance with the scale of payments appropriate for the highest floor level affected by such work.

(c) In this clause:

multistorey building means a building which will, when complete, consist of five or more storey levels
complete means the building is fully functional and all work which was part of the principal contract is complete
storey level means structurally completed floor, walls, pillars or columns, and ceiling (not being false ceilings) of a building and will include basement levels and mezzanine or similar levels (but excluding half floors such as toilet blocks or store rooms located between floors)
floor level means that stage of construction which in the completed building would constitute the walking surface of the particular floor level referred to in the table of payments.

(d) In respect of any building or structure (including a tower) which does not have regular storey levels and which exceed 15 metres in height, an allowance of 3.2% of the hourly standard rate per hour will be paid for all work above 15 metres, with an additional 3.2% of the hourly standard rate per hour for work above each additional 15 metres. For example, an employee working at a height of 31 metres is paid an allowance of 6.4% of the hourly standard rate per hour.

(e) Rates

(i) Except as provided for in clauses 22.3(d) and 22.3(f), an allowance in accordance with the following table must be paid to all employees on the building site. The higher allowances presented in respect of work on the 16th and subsequent floors will be paid to all employees when one of the following components of the building—structural steel, reinforcing steel, boxing or walls—rises above the floor level first designated in the allowance scale:

Storeys	Allowance per hour
From the commencement of building to 15th floor level	2.6% of the hourly standard rate
From the 16th floor level to 30th floor level	3.1% of the hourly standard rate
From the 31st floor level to 45th floor level	4.8% of the hourly standard rate
From the 46th floor level to 60th floor level	6.2% of the hourly standard rate
From the 61st floor level onward	7.6% of the hourly standard rate

(ii) The allowances payable at the highest point of the building will continue until completion of the building.

(f) Service cores

(i) All employees employed on a service core at more than 15 metres above the highest point of the main structure must be paid the multistorey rate appropriate for the main structure plus an additional 3.2% of the hourly standard rate per hour, with 3.2% of the hourly standard rate per hour additional for work above each additional 15 metres calculated from the highest point reached by the main structure to the highest point reached by the service core in any one day period. (i.e. For this purpose, the highest point of the main structure will be regarded as though it were the ground).

(ii) Employees employed on a service core no higher than 15 metres above the main structure must be paid in accordance with the multistorey allowance prescribed herein.

(iii) Provided that any section of a service core exceeding 15 metres above the highest point of the main structure will be disregarded for the purpose of calculating the multistorey allowance application to the main structure.

22.4 Laser operation allowance

(a) Application

This subclause applies when laser equipment is utilised for work within the scope of this award.

(b) Definitions

(i) Laser means any device excepting a Class 1 device which can be made to produce or amplify electromagnetic radiation in the wave length range from 100 nanometres to one millimetre primarily by the process of controlled stimulation emission.

(ii) Laser safety officer is an employee who in addition to the employees ordinary work is qualified to perform duties associated with laser safety and is appointed as such.

22.5 Laser safety officer allowance

An employee appointed by the employer to carry out the duties of a laser safety officer must be paid an additional 13.4% of the hourly standard rate per day or part thereof whilst carrying out such duties, paid as a flat amount without attracting any premium or penalty.

22.6 Carpenter-diver allowance

Employees undertaking work normally performed by a carpenter-diver must be paid an additional 4.5% of the hourly standard rate per hour extra which will be regarded as part of the ordinary time hourly rate for all-purposes of the award.

22.7 First aid allowance

(a) An employee:

(i) is appointed by the employer to be responsible for carrying out first aid duties as they may arise;

(ii) holds a recognised first aid qualification (as set out hereunder) from the Australian Red Cross Society, St John Ambulance or similar body;

(iii) is required by their employer to hold a qualification at that level;

(iv) the qualification satisfies the relevant statutory requirement pertaining to the provision of first aid services at the particular location where the employee is engaged; and

(v) those duties are in addition to the employee’s normal duties, recognising what first aid duties encompass by definition;

will be paid at the following additional rates to compensate that person for the additional responsibilities, skill obtained, and time spent acquiring the relevant qualifications:

(vi) an employee who holds the minimum qualifications recognised under the relevant State or Territory Occupational Health and Safety legislation (or, in Western Australia, a Senior First Aid certificate of Industrial First Aid certificate or equivalent qualification from the St John Ambulance Association or similar body)—0.36% of the weekly standard rate per day; or

(vii) an employee who holds a higher first aid certificate recognised under the relevant State or Territory Occupational Health and Safety legislation (or, in Western Australia, a Senior First Aid certificate or Industrial First Aid certificate or equivalent qualification from the St John Ambulance Association or similar body)—0.57% of the weekly standard rate per day.

(b) An employee will be paid only for the level of qualification required by their employer to be held, and there will be no double counting for employees who hold more than one qualification.

22.8 Air-conditioning industry and refrigeration industry allowance

An air-conditioning tradesperson and a refrigeration mechanic must be paid a weekly allowance of 7.9% of the weekly standard rate as compensation for the various disabilities and peculiarities associated with on-site air-conditioning work or on-site refrigeration work.

22.9 Electrician’s licence allowance

(a) An employee engaged and working as an electrical tradesperson and who holds an appropriate electrician’s licence must be paid a weekly allowance of 3.2% of the weekly standard rate for all-purposes of this award.

(b) An appropriate electrician’s licence for the purpose of this subclause will be:

•  New South Wales—a NSW Electrician’s Licence;

•  Victoria—an A Grade Electrician’s Licence;

•  South Australia—an A Grade Electrical Worker’s Licence;

•  Tasmania—an A Grade Electrician’s Licence; and

•  Queensland—an Electrical Mechanic’s or Electrical Fitter/Mechanic’s Licence.

22.10 In charge of plant

(a) In charge of plant means:

(i) when two or more employees are employed at the plant at the one time, the employee who is invested with the superintendence and responsibility or who has to accept the superintendence and responsibility;

(ii) an employee who is invested with the superintendence and responsibility or who has to accept the superintendence and responsibility over one or more other employees;

(iii) when the employee is the only person of that class employed on the plant the employee who does the general repair work of the plant in addition to the work of operating, but not when the employee merely assists a fitter or engineer to do such work; or

(iv) where shifts are worked, the employee who is directed to carry out the general repair work of the plant in addition to the work of operating, but not when the employee merely assists a fitter or engineer to do such work.

(b) An employee who is in charge of plant must be paid an additional 4.7% of the weekly standard rate per week.

22.11 Special rates applicable only to the general building and construction sector

(a) Conditions in respect of special rates

(i) To avoid doubt, the special rates are allowances for the purpose of clause 7.1(d).

(ii) The special rates prescribed in this award must be paid irrespective of the times at which work is performed and will not, except where specified, be subject to any premium or penalty conditions.

(iii) The special rates must be paid to employees in addition to other rates in this award.

(b) Computing quantities

(i) Employees who are regularly required to compute or estimate quantities of materials in respect of the work performed by other employees must be paid an additional 23.3% of the hourly standard rate per day or part thereof.

(ii) This allowance will not apply to an employee classified as a leading hand and receiving an allowance prescribed in clause 19.2.

(c) Scaffolding or rigging certificate allowance

A tradesperson who is the holder of a scaffolding certificate or rigging certificate issued by the appropriate certifying authority and is required to act on that certificate whilst engaged on work requiring a certificated person must be paid an additional 3.2% of the hourly standard rate per hour.

6. By deleting the cross reference to clause 21.1 in clause 25.1.

7. By deleting the words “clauses 22(b) and 22.2(c)” in clause 35.3(e) and inserting “clauses 35.6 and 35.7”.

8. By inserting clause 35.6 as follows:

35.6 Hot work

Where an employee works for more than two hours in a place where the temperature has been raised by artificial means to 46 degrees Celsius and above, the employee is entitled to 20 minutes rest after every two hours work without loss of pay.

9. By inserting clause 35.7 as follows:

35.7 Cold work

Where an employee works for more than two hours in a place where the temperature is lowered by artificial means to less than 0 degrees Celsius, the employee is entitled to 20 minutes rest after every two hours work without loss of pay.

10. By deleting the cross reference to clause 21.1. in clause 42.3.

11. By updating the table of contents and cross-references accordingly.

B. This determination comes into operation from 1 January 2020. In accordance with s.166(5) of the Fair Work Act 2009 this determination does not take effect until the start of the first full pay period that starts on or after 1 January 2020.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

 1   [2018] FWCFB 6019

 2   Ibid at [368]

 3   Ibid

 4   Ibid

 5   Ibid and at [372]

 6   Ibid at [372]

 7   Directions dated 8 November 2018

 8   CFMMEU Submissions dated 14 November 2018 and CFMMEU Reply Submissions dated 28 November 2018

 9   AWU Submissions dated 14 November 2018 and AWU Reply Submissions dated 28 November 2018

 10   AMWU Submissions dated 14 November 2018 and AMWU Reply Submissions dated 28 November 2018

 11   CEPU Submissions dated 14 November 2018

 12   MBA Submissions dated 14 November 2018 and MBA Reply Submissions dated 28 November 2018

 13   HIA Submissions dated 9 November 2018, 14 November 2018 and HIA Reply Submissions dated 28 November 2018

 14   Ai Group Submissions dated 14 November 2018 and Ai Group Reply Submissions dated 28 November 2018

 15   ABI and NSWBC Submissions dated 28 November 2018

 16   CFMMEU Submissions dated 14 November 2018 at [9]

 17   Ibid

 18   Transcript dated 4 March 2019 at PN550

 19   CFMMEU Submissions dated 14 November 2018 at [27]

 20   Ibid at [32]

 21   Ibid at [33]

 22   CFMMEU Correspondence dated 8 November 2018

 23   CFMMEU Reply Submissions dated 28 November 2018 at [46]-[49]

 24   Ibid at [51]

 25   AMWU Submissions dated 14 November 2018 at [6]

 26   Exhibit SI

 27   Transcript dated 4 March 2019 at PN575

 28   AMWU Reply Submissions dated 28 November 2019 at [14]-[15]

 29   AMWU Submissions dated 14 November 2018 at [32]-[34]

 30   CEPU Submissions dated 14 November 2018 at [4]-[6]

 31   AWU Submissions dated 14 November 2018 at [4]

 32   Ibid at [6]-[7]

 33   Exhibit PC; Exhibit AC; Exhibit KW; Exhibit SB; Exhibit RH; Exhibit NB

 34   Transcript dated 4 March 2019 at PN57; PN120; PN376-PN377; PN120

 35   Ibid at PN63-PN64

 36   Ibid at PN125; PN391; PN312

 37   Ibid at PN208

 38   Ibid at PN320-PN321

 39   Ibid at PN242-PN250

 40   Ibid at PN72; PN75; PN139; PN238; see also PN551-PN556

 41   Ibid at PN246-PN247

 42   AWU Submissions dated 14 November 2018 at [14] and [16]

 43   Ibid at [19]

 44   MBA Reply Submissions dated 28 November 2018 at [57]

 45   Ibid

 46   Ibid at [11]-[12]

 47   MBA Submissions dated 14 November 2018 at [25]

 48   MBA Reply Submissions dated 28 November 2018 at [20]

 49   Ibid at [18]-[21]

 50   Ibid at [21]

 51   Ibid at [34]-[35]

 52   Ibid at [38]

 53   Ibid at [44]-[49]

 54   Ibid at [61]

 55   MBA Correspondence dated 9 November 2018

 56   MBA Reply Submissions dated 28 November 2018 at [75]-[76]

 57   Ibid at [30]

 58   Ibid at [96]-[100]

 59   HIA Submissions dated 14 November 2018 at [2.1.1]-[2.1.2]; [2.2.1]-[2.2.2]

 60   Ibid at [2.1.3]-[2.1.9]

 61   HIA Submissions dated 9 November 2018 at [2.2.1]-[2.3.4]

 62   HIA Reply Submissions dated 28 November 2018 at [4.1.9]

 63   HIA Submissions dated 9 November 2018 at [2.4.1]-[2.4.4]

 64   Ibid at [2.5.1]

 65   HIA Reply Submissions dated 28 November 2018 at [4.2.2]

 66   Ai Group Submissions dated 14 November 2018 at [22]

 67   Ai Group Reply Submissions dated 28 November 2018 at [13]

 68   Ibid at [17]

 69   Ibid at [16]

 70   ABI and NSWBC Submissions dated 28 November 2018 at [2.1]-[2.2]

 71   [2018] FWCFB 6019 at [368]

 72   See for example questions raised by Hamilton DP at Transcript 10 April 2017 - PN3584-PN3586

 73   CFMMEU Submissions dated 14 November 2018 at Appendix 8

 74   There will be a renumbering of clauses as a result of the variations we proposed to make.