THE CFMEU has failed in its bid to convince a Full Bench of the Fair Work Commission that refractory installers and installation bricklayers employed by Bluescope Steel were short-changed allowances for working in hot and high conditions.

In dismissing the union’s appeal, the Full Bench found the single member was right to characterise the application as a bid to ‘double dip’.

Background:

This dispute related to the provisions of the BlueScope Steel Port Kembla Steelworks Agreement 2015, which contains clauses for a ‘Hot Work Allowance’ (above 49 degrees) and a ‘Height Allowance’ (above 15 metres) for employees classified as ‘bricklayers’ and ‘labourers assisting bricklayers’.

The CFMEU had argued that employees classified as ‘Refractory Installers’ or ‘Refractory Installation Bricklayers’ were entitled to the allowances.

The union argued that the terms ‘bricklayers’ and ‘labourers assisting bricklayers’ in the allowance clauses were descriptors of the functions being undertaken and should be taken in their ordinary meaning; and were not to be taken as formal job classifications.

The employer disagreed, arguing that the CFMEU’s argument was ‘misconceived’ on the basis that ‘Refractory Installer’ and ‘Refractory Installation Bricklayers’ were job classifications restructured at the steel mill in 1995 and had the hot and high work allowances ‘rolled up’ into the standard rates.

Further, there were no longer any employees classified as ‘bricklayers’ or ‘labourers assisting bricklayers’ at the mill, the employer said, thus the allowances unambiguously did not apply to any current employee.

In his November 2016 decision, Commissioner Riordan found in favour of the employer. He found that the phrases ‘bricklayers’ and ‘labourers assisting bricklayers’ while descriptors of the applicable classifications, were not the skills being utilised by the employee.

“I cannot accept the interpretation submitted by the CFMEU that the phrase “bricklayers and labourers assisting bricklayers” are not classifications,” Cmn Riordan said.

“These provisions clearly identify that the allowance is paid to employees as defined by their classification when they experience the disability. The bricklayer and labourer assisting bricklayers phrase is a descriptor of the applicable classifications, not the skills being utilized by the employee.”

The Commission further found that there was ‘no ambiguity’ in relation to the payment of the hot work allowance or height allowance and, that the CFMEU’s interpretation was ‘convenient but fallacious’.

“(The clauses) of the Agreement are very specific. These provisions apply to those employees who are classified under the Unrestructured Classifications in Part C of the Agreement, ie ‘bricklayers’ and ‘bricklayer’s labourers’,” Cmn Riordan said.

“Put simply, a new classification structure was negotiated between the parties which ‘rolled up’ the relevant disability allowances and created a new multi-skilled classification.”

Union’s appeal dismissed:

The union appealed Commissioner Riordan’s decision on three grounds, contending that the ‘plain and ordinary meaning’ of the actual words used should be the starting point for determining the meaning of a term in an enterprise agreement.

Also, that the Commissioner had paid little, if any, regard to the ‘plain and ordinary meaning’ of the allowance clauses, nor did he have regard to the surrounding clauses or the object of the disability allowances.

The union asserted that the clauses do not limit the entitlement to a Hot Work Allowance to any particular classification under the Agreement. Rather, that it directs attention to the nature of the work being performed and not a particular classification.

The Full Bench, comprised of Vice President Catanzariti, Deputy President Lawrence and Commissioner Cambridge, rejected the appeal on the grounds that:

• they were not satisfied that there was an arguable case of error;
• the matter did not attract public interest; and
• the matter did not manifest an injustice in relation to any other ground for appeal asserted by the appellant.

The Bench deferred to the Commissioner’s remarks in the original decision:

“If I were to accede to the CFMEU’s argument, then those employees who are employed as Refractory Installation Bricklayers or Refractory Installers would be getting paid these allowances twice, therefore, double dipping. Such a scenario cannot be condoned.”

Implications for employers:

While this matter was technical and involved a dispute over the interpretation of site-specific allowances and job classifications, the case shows the extent to which unions may attempt to stretch the interpretation of an agreement clause to their benefit.

It is very important for all enterprise agreement to be unambiguous in their classifications of work and the allowances which do and don’t apply to specific roles. Further, employers must be prepared to mount a solid legal argument in defence of the true meaning or purposes of agreement clauses particularly where disputes arise over their meaning.

AREEA’s workplace relations specialists can assist with all processes involved, from the negotiating and drafting of enterprise agreements, including allowance clauses and job classifications, to assisting in agreement-related disputes in the workplace.

For further information on how AREEA can assist with your workplace relations matters, contact our team