GATE, FENCE AND FRAMES MANUFACTURING AWARD

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

CITATION : 2023 WAIRC 00114

DELIVERED : TUESday, 27 February 2023

FILE NO. : APPL 1 OF 2023

Applicant

AND

CAI Fences Pty Ltd and others

Respondents

CatchWords : Industrial Law (WA) – Application to vary award – Increasing allowances – Glover scope clause – Retaining deregistered respondents

Legislation : Industrial Relations Act 1979 (WA)

Industrial Relations Commission Regulations 2005 (WA)    

Result : Award varied

Representation:

Applicant : Electrical Trades Union WA

Respondents : No appearance

Case(s) referred to in reasons:

The Shop, Distributive and Allied Employees’ Association of Western Australia v Samuel Gance (ABN 50 577 312 446) T/A Chemist Warehouse Perth [2019] WAIRC 00015; (2019) 99 WAIG 121(Gance 2019)

The Shop, Distributive and Allied Employees’ Association of Western Australia v Samuel Gance T/A Chemist Warehouse Perth [No 2] [2021] WASCA 76

The Western Australian Carpenters and Joiners, Bricklayers and Stoneworkers Industrial Union of Workers v Terry Glover Pty. Ltd. (1970) 50 WAIG 704 (Glover)

Reasons for Decision

1         The Electrical Trades Union WA (ETU) applied to vary the Gate, Fence and Frames Manufacturing Award. The variations are to:

(a) increase a number of allowances in the Award; and

(b) substitute a new Second Schedule – Respondents (Schedule of Respondents) to remove the two named respondents.

2         Section 40 of the Industrial Relations Act 1979 (WA) empowers the Commission to vary an award.

3         The ETU is a party bound by the Award and therefore has standing to bring the application: s 40(2) of the Act.

4         As the application is not made within the term specified in the Award, s 40(3) of the Act is no barrier to the variations sought.

5         The application has otherwise been duly served as required by the Act and the Industrial Relations Commission Regulations 2005 (WA).

Increasing allowances

6         The ETU seeks to vary several allowances by 4.75% in line with the $40.90 per week increase for classifications at and below C10 in the 2022 State Wage Case [2022] WAIRC 00273; (2022) 102 WAIG 431. The allowances in this category are:

(a) Clause 14 ‑ Special Rates & Provisions; and

(b) First Schedule ‑ Wages: Leading Hands and Tool Allowance.

7         Principle 6.3 of the 2022 State Wage Case Statement of Principles states:

Allowances which relate to work or conditions which have not changed, and service increments may be adjusted as a result of the State Wage order, or, if an award contains another method for adjusting such allowances, in accordance with that other method.

8         Principle 6.4 applies. It provides:

In the absence of any other prescribed method, where the Commission has determined that it is appropriate to adjust existing allowances relating to work or conditions which have not changed or service increments for a monetary safety net increase, the method of adjustment shall be as follows: divide the monetary safety net increase by the rate of pay for the key classification in the award which applied immediately prior to the safety net increase, and multiply the resulting figure by 100.

9         The ETU also seeks variation of allowances in line with CPI changes from June 2021 to September 2022. The allowances in this category are:

(a) Clause 7 ‑ Meal Allowance; and

(b) Clause 20 ‑ Distant Work Allowance.

10      Finally, ETU seeks to vary the Clause 19 Travel Allowances in accordance with the rates contained in the Building and Construction General On-site Award 2020 on the basis of nexus between it and the Award.

11      Principle 6.1 of the 2022 State Wage Case Statement of Principles states:

Existing allowances which constitute a reimbursement of expenses incurred may be adjusted from time to time where appropriate to reflect the relevant change in the level of those expenses.

12      The application to vary these allowances is unopposed.

13      These allowances were last varied on 7 January 2022: [2022] WAIRC 00005; (2022) 102 WAIG 22. Those variations updated the allowances to include increases based on the 2020 and 2021 State Wage Case decisions, and CPI increases to June 2021.

14      The ETU has provided the Commission with a schedule setting out the methodology and calculations supporting the variations now sought. The calculations show that the variations are consistent with the Statement of Principles as set out above. The Award does not itself specify a method for adjusting allowances which is at odds with the methods set out.

15      I am therefore satisfied that it is appropriate to make the variations to the allowances as sought.

Replacement of Schedule of Respondents

16      The application seeks to vary the Award by substitution of a new Schedule of Respondents. This part of the application is also unopposed, as no party has responded to the application.

17      There are two employers currently named in the Schedule of Respondents: Joyce Bros. (W.A.) Pty Ltd and Skinners Pty Ltd. Historically, the ETU has named three other employers as respondents to proceedings concerning the Award: CAI Fences Pty Ltd, DBS Fencing and Woodford Gatemakers Pty Ltd.

18      In the course of dealing with a previous variation: [2022] WAIRC 00005; (2022) 102 WAIG 22, I observed that neither Joyce Bros. (W.A.) Pty Ltd and Skinners Pty Ltd are currently registered on the ASIC register. The differently named Skinner Pty Ltd (A.C.N. 075 281 864) was registered in 1996, many years after the Award was made in 1971, and deregistered in 2003. The differently named Skinners Pty Limited (A.C.N. 007 181 268) is registered, but its registration date in 1989 also post‑dates the making of the Award.

19      If these named respondents to the Award do not exist as legal entities, they are not currently parties to the Award nor can they be parties to any proceedings.

20      However, it does not necessarily follow that they ought not be named as respondents to the Award.

21      The Area and Scope Clause of the Award is as follows:

This award shall operate in the industry carried on by the respondents within the State of Western Australia.

22      The Area and Scope Clause is of the same kind as was considered in The Western Australian Carpenters and Joiners, Bricklayers and Stoneworkers Industrial Union of Workers v Terry Glover Pty. Ltd. (1970) 50 WAIG 704 (Glover). As a common rule award with a Glover scope clause, the scope of the Award is determined by reference to the industries in which the respondents operated at the date the award was made. This is a question of fact: The Shop, Distributive and Allied Employees’ Association of Western Australia v Samuel Gance (ABN 50 577 312 446) T/A Chemist Warehouse Perth [2019] WAIRC 00015; (2019) 99 WAIG 121(Gance 2019), and affirmed by the Industrial Appeal Court in The Shop, Distributive and Allied Employees’ Association of Western Australia v Samuel Gance T/A Chemist Warehouse Perth [No 2] [2021] WASCA 76.

23      Even if this means that the deletion of a respondent under s 40 of the Act does not alter the scope, the deletion can create confusion and uncertainty about the award’s scope. To any reader of the Award, the scope clause would be meaningless on the face of the Award, if amended as foreshadowed, as there would simply be no respondents named from which an industry could be discerned. Further, s 38 of the IR Act appears to require that there be at least a named respondent party listed in an award.

24      The ETU originally applied to add other respondents to the Schedule of Respondents, but did not press that application in light of the fact that the addition of new parties may have the effect of extending the scope on a common rule basis: Gance 2019 at [81].

25      Accordingly, I will grant the application to vary the Award only in respect of the variations to the allowances. No variation will be made to the Schedule of Respondents at this time.

26      An order will issue in the following terms:

(a) THAT the Gate, Fence and Frames Manufacturing Award be varied in accordance with the following schedule and that the variations shall have effect from the beginning of the first pay period commencing on or after the date of this order.