Construction, Forestry, Mining and Energy Union

Application to vary - Wages and conditions of employment.

[1] This supplementary decision follows the issuing of a decision on 30 June 2006 [PR973320]. That decision found that

(a) the Workplace Relations Amendments (Work Choices) Act 2005 and associated Regulations pose no impediment to the proceedings continuing;

(b) an ambiguity or uncertainty existed in clause 26.5 of the Timber and Allied Industries Award 1999 [AP800937CRV��Print R5055] (the Award) with respect to the late payment of wages; and

(c) an ambiguity or uncertainty existed in clause 42.3 of the Award with respect to half day public holidays.

[2] That decision created an opportunity for the parties to confer for the purposes of reaching an agreement on wording that would remove the ambiguity or uncertainty that the Commission had identified.

[3] The parties were unable to reach an agreement on such wording.

[4] Further proceedings occurred on 24 January 2007 where the Commission issued Directions that the parties provide in writing their respective positions in regards to removing the ambiguity or uncertainty that had been identified in the Commission, and that the Commission would deal with this matter to its conclusion on the papers provided.

[5] Additional submissions were provided by all parties regarding the two clauses in question, that is clauses 26.5 and 42.3.

[6] The Commission does not intend to go into detail regarding the parties' respective positions. Each of the parties have been provided with copies of the submissions that have been provided and each party is well aware of the detailed arguments that have been put at previous hearings. Needless to say it now falls on the Commission to make a decision.

[7] Under s554(1) of the Workplace Relations Act 1996 it states:

"The Commission may, if it considers that an award or a term of an award is ambiguous or uncertain, make an order varying the award so as to remove the ambiguity or uncertainty."

[8] Also, under clause 30(1) of Schedule 6 of the Workplace Relations Act 1996 it states:

"If the Commission considers that a term of a transitional award about a matter referred to in subclause 29(2) is ambiguous or uncertain, the Commission may make an Order varying the award so as to remove the ambiguity or uncertainty."

[9] On the issue of late payment of wages by electronic transfer funds there is no dispute that this matter was already included in the award; however, as part of the award simplification process Commissioner Merriman removed the provision relating to late payment for electronic funds transfer in his decision issued on 13 May 1999 [R4683].

[10] The reasons why the clause was removed was that, according to the Commission in its decision, "the relevant clauses go into unnecessary detail." By removing such clauses it is the Commission's view that that created uncertainty and ambiguity that the Commission now has to deal with.

[11] In considering the respective positions of the parties the Commission is prepared to vary clause 26.5, late payments, in the terms sought by the Union. In doing so, the Commission believes that it is not providing anything additional too what had already existed prior to the award simplification process.

[12] In regard to clause 43.2, additional public holidays, the Commission accepts the argument by the employer that adding the word "full" before "days" in clause 42.3 removes the ambiguity or uncertainty. Therefore the Commission will vary clause 42.3 the Award in the following terms:

"Where in a State, Territory, or locality, public holidays are declared or prescribed on full days, other than those set out in 42.2 hereof, those full days shall constitute additional holidays for the purpose of this award."

[13] In varying the award in the terms outlined above, the Commission removes any uncertainty and ambiguity without installing something into the award that was not intended.

[14] The Commission shall issue the appropriate order in regards to the variation and the order shall operate from the first pay period to commence on or after 9 March 2007.

T Clarke, of Slater & Gordon, for the Construction, Forestry, Mining and Energy Union

P Eberhard for the Victorian Employers' Chamber of Commerce and Industry

P Ryan for the Victorian Association of Forest Industries

J Williams for the Timber Trade Industrial Association

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