Western Australia
Thu 3 August 2017

Modern Award update

The review of the Building and Construction General On-site Award 2010 culminated with a Full Bench hearing in April. As we await the ruling, hear what CCF is arguing for on behalf of industry.

Over the past two years each CCF Branch has consulted with Members and developed their list of issues surrounding the Building and Construction General On-site Award 2010. The final list of issues was ultimately selected by the CCF National board and formed the basis of CCF’s Submission to the Fair Work Commission (FWC).
CCF NSW has been leading the advocacy on this issue working on behalf of CCF nationally.

In April a Full Bench of the FWC (the Bench) was convened to hear the arguments of both employer and employee representatives. CCF NSW’s team attended the hearing to pitch CCF’s case. A number of affidavits from CCF witnesses, including both CCF NSW CEO David Castledine and a number of employer Members, had been taken to support our arguments and were included in our submission. It was expected all would be called to give evidence and be cross-examined by the unions.

The hearing lasted two weeks, and we understand the intention was for a decision to be handed down before 30 June.

PROPOSED VARIATION 1 – DEFINITION OF REDUNDANT
CCF is seeking to vary the industry-specific definition of “redundant” in the Award. The change being pursued is to remove the provision requiring employers to pay redundancy benefits to non-redundant employees who terminate the employment relationship of their own accord.

We argued that the current redundancy provisions are unfair, inequitable, unnecessarily expensive, and discouraging of full-time employment.

“The historic argument for the current definition of ‘redundant’ is that employment in our industry is ‘intermittent and project-based’,” Mr Castledine said. “We argued to the Bench that this fails completely when the employee chooses to leave gainful, ongoing employment of their own accord.”

As part of consultation with industry to ensure civil employers right across Australia had a say, a simple and short survey was sent to all CCF Members regarding the changes being sought to redundancy provisions (and junior rates).

CCF’s Members provided an overwhelming response in support of the changes, making it very clear Members, from Tier 1 to small firms, want this addressed. Of the 319 responses received, 318 supported this stance (the one that did not wanted CCF to go even further!).

In the hearing, the CFMEU and AWU tried to have this important survey evidence – evidence that shows clearly what employers in the industry want – deemed inadmissible, but the Bench rejected their argument.

The employer groups were united in their call for the redundancy provision to be changed, although there were variations on how far those changes should go. CCF’s stance was a measured, middle ground.

PROPOSED VARIATION 2 – INTRODUCTION OF JUNIOR RATES TO THE AWARD
The second variation being pursued by CCF is the introduction of junior rates to the Building and Construction General On-site Award 2010.

The industry survey mentioned earlier gave an emphatic response on the need for junior rates to exist in our Award, with every single respondent supporting the reinstatement of junior rates.

Regrettably, on the morning of the day this matter was to be heard by the Commission, the Master Builders Association withdrew its support for the insertion of junior rates clauses. The Housing Industry Association remained supportive.

Resolute, CCF continued on with its argument that the Award should be changed on social inclusion grounds. As we said in our closing remarks: “What employers know, and are trying to tell the Commission through our submission, is that in our industry very young people are more costly to supervise than older adults. Employers want to hire young people – they were all young themselves once and were given a start in the industry, but the reality is that an employer, when faced with the option of hiring a 16-year-old or a 25-year-old will pick the 25-year-old. They need reasonable junior rates to cover the additional costs of safely hiring and supervising a younger person, or else they will not do it.”

The CFMEU’s response to our submission and the sworn testimony of our witnesses was to call the CCF witnesses biased. This implies those witnesses would not tell the whole truth. This is an abhorrent representation and we strongly opposed it with the Bench. Despite their views about the witnesses’ bias, none of the employee representative bodies had the will to call our witnesses to the stand. Rather than be deterred by the attempt to devalue our evidence, what we said to the Bench was: “We accept that our evidence presents what employers are thinking and feeling. That is the point of it. We submit that, for the Commission to ensure the Modern Award’s objectives are met, it needs to hear this.”

In our closing remarks CCF said: “[W]e have presented significant evidence that is probative. Our evidence explains the opinion of our industry on a key employment participation, and the opinion is staggeringly consistent. The CFMEU has chosen not to cross-examine the evidence of our witnesses. If they believed the evidence was incorrect then they should have called those witnesses, as they should have called our witnesses for redundancy. They had the opportunity, and stepped back. This evidence is probative, and we submit that the Commission should give it significant weight.”

Mr Castledine said after the hearing: “CCF makes no apologies for representing employers in the industry with conviction. It’s our role to represent our Members and be the voice of the industry. That voice will not be silenced.”

OTHER VARIATIONS TO THE AWARD
In addition to the two prominent variations discussed above there are six other areas of concern argued by CCF. These are Payment of Wages; Definition of Dirty Work; Living away from Home Allowance; Travelling Time; Provision of Transport; and the Definition of Civil Work v Asphalt Work.

We presented no direct evidence other than our submission, but on all cases we stood to explain to the Bench why we considered they were necessary. On each occasion, employee representatives presented opposing arguments.

MOVING FORWARD…WHAT’S NEXT?
Our work for now is done. We now must await the FWC’s decision. Let us hope the Commission accepts that the industry will be better off for these reforms.