DECISION

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

4 yearly review of modern awards – Part-time and Casual Employment
(AM2014/197)

4 yearly review of modern awards – common issues – part time employment and casual employment – casual conversion – Timber Industry Award 2010.

[1] In a decision issued on 8 May 2019, 1 a differently constituted Full Bench dealt with an outstanding issue concerning the form of the casual conversion clause to be inserted into the Timber Industry Award 2010 (Timber Award). The current position is that clause 12.3 of the Timber Award contains a casual conversion provision which applies only to the Wood and Timber Furniture Stream classifications set out in Schedule D of the award and not the General Timber and Pulp Stream and Paper Stream classifications set out in Schedules B and D respectively. This existing clause differs in some respects from the model casual conversion clause established in the principal decision of the 4 yearly review concerning part and casual employment issued on 5 July 2017.2 The Full Bench expressed the provisional view that the existing clause should be removed and replaced with the model clause on the basis that it applies to employees in all classifications in the Timber Award. Interested parties were invited to make submissions in respect of the provisional view within 21 days.

[2] The only submission filed in response (on 4 June 2019) was made by the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU). The CFMMEU opposed the provisional view on the basis that it was less beneficial than the existing provision for employees in Wood and Timber Furniture Stream classifications in three respects:

(1) the qualifying period for casual conversion under clause 12.3 is currently six months, whereas under the model clause it is 12 months;

(2) under clause 12.3, the employer is required to provide written notice to the casual employees close to when the right to request is triggered, whereas under the model clause the notice may be given at any time within the first 12 months; and

(3) clause 12.3 requires the employer to make a genuine attempt to reach agreement concerning any conversion request, whereas the model clause contains no such requirement.

[3] As an alternative, the CFMMEU proposed that the existing clause 12.3 should continue to apply to employees in the Wood and Timber Furniture Stream classifications, and the model clause should be added to the award to apply to employees in the General Timber and Pulp Stream and Paper Stream classifications.

[4] We do not accept that the model clause is on balance detrimental to employees in the Wood and Timber Furniture Stream classifications as compared to the existing clause 12.3, as submitted by the CFMMEU, for the following reasons:

(1) Although the current clause 12.3(a) provides for a nominal qualifying period for casual conversion of six months, clause 12.3(j) permits this to be extended to 12 months in respect of currently engaged employees by agreement with a majority of employees. There is no evidence as to the extent to whether the six month period provided for in clause 12.3(a) remains operative at workplaces with employees in the Wood and Timber Furniture Stream classifications.

(2) Clause 12.3(c) provides that once an employee has been notified of their right to request conversion, they must elect to request conversion within four weeks or else they are deemed to have elected against any conversion (with the implication being that they cannot later make a further request). There is no such equivalent provision in the model clause, which makes the timing of the provision of the notice less crucial. Further, the 12 month qualifying period in the model clause is a rolling period, so that the right to request conversion can be made after any 12-month period of employment which meets the requisite criteria.

(3) Clause 12.3(i) provides that the employer and employee must make a genuine attempt to reach agreement, but only after the request had been refused by the employer, which is may do under clause 12.3(d) provided it does not do so unreasonably. The model clause also provides that a request may only be refused on reasonable grounds, but unlike clause 12.3 it gives a non-exhaustive definition of what may constitute reasonable grounds. The model clause also has a requirement not present in clause 12.3 that, for any ground of refusal to be reasonable, it must be based on facts which are known or reasonably foreseeable.

[5] Accordingly we reject the CFMMEU’s submission that there should be a hybrid clause, and we will proceed in accordance with the provisional view expressed by the Full Bench in its 8 May 2019 decision. We consider that such a course is necessary to achieve the modern awards objective set out in s 134(1) of the Fair Work Act 2009 for the reasons set out in the principal decision of 5 July 2017. The Timber Award will, effective from 1 May 2020, be varied in the terms set out in paragraph [7] of the 8 May 2019 decision, except that the dates “20 May 2019” and “20 August 2019” in the new clause 12.3(p) shall be altered to “1 May 2020” and “1 August 2020” respectively. The variation determination [PR717674] will be published in conjunction with this decision.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR717687>

 1   [2019] FWCFB 3064

 2   [2017] FWCFB 3541, 269 IR 125