1
Fair Work (Transitional Provisions and Consequential Amendments) Act 2009
Item 6, Sch. 5—Modern awards review
Modern Awards Review 2012—Apprentices, Trainees and Juniors
(AM2012/18, AM2012/64, AM2012/107, AM2012/109, AM2012/110, AM2012/127,
AM2012/128, AM2012/129, AM2012/135, AM2012/140, AM2012/141, AM2012/152,
AM2012/155, AM2012/157, AM2012/159, AM2012/183, AM2012/247)
JUSTICE BOULTON, SENIOR DEPUTY PRESIDENT
SENIOR DEPUTY PRESIDENT HARRISON
COMMISSIONER ROE
SYDNEY, 22 AUGUST 2013
Review of all modern awards after two years - applications relating to apprentices, trainees
and junior rates - common matters - apprentice wages - adult apprentice provisions - terms
and conditions of employment for apprentices - competency based wage progression -
application for variation of National Training Wage Schedule - insertion and variation of
model school-based apprentice schedule.
CONTENTS PARA PAGE
A. Introduction.........................................................................................................[1] ........... 2
(i) Legislative provisions applicable to the review ............................................[5] ........... 4
(ii) Background to the review and the making of the applications.......................[9] ........... 8
The Report of the Apprenticeship Expert Panel .........................................[18] ......... 9
(iii) Conduct of the review..................................................................................[24] ....... 11
Evidence ...................................................................................................[25] ....... 11
Submissions..............................................................................................[48] ....... 16
B. Jurisdiction and Related Issues...........................................................................[73] ....... 21
(i) Terms that may be included in a modern award............................................[75] ....... 21
(ii) Applicability of s.135 to the review .............................................................[103] ..... 31
(iii) Interaction with State and Territory laws......................................................[106] ..... 32
C. ACTU and Union Claims ....................................................................................[120] ..... 36
(i) Apprentice rates of pay................................................................................[125] ..... 37
‘No loss of pay’ for existing employees......................................................[191] ..... 51
(ii) Adult apprentice rates of pay .......................................................................[198] ..... 53
When adult apprentice rates apply ............................................................[235] ..... 60
‘No loss of pay’ for existing employees......................................................[241] ..... 61
The minimum rates for adult apprentices ..................................................[251] ..... 62
Definition of adult apprentice ...................................................................[263] ..... 65
(iii) Competency based wage progression ...........................................................[268] ..... 65
(iv) Apprentice conditions of employment..........................................................[303] ..... 72
Travel time; travel and accommodation costs; recognition of training.......[303] ..... 72
Training costs - Fees and textbooks...........................................................[345] ..... 79
Attendance at training on an RDO ............................................................[363] ..... 82
Limitation on overtime and shiftwork........................................................[368] ..... 82
Extension of training contract due to absences..........................................[378] ..... 84
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DECISION
E AUSTRALIA FairWork Commission
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(v) Training requirements..................................................................................[392] ..... 86
(vi) Suspension, cancellation and recognition of service .....................................[413] ..... 92
Notice of termination - the NES.................................................................[416] ..... 94
Notice prior to cancellation or suspension of training contract..................[418] ..... 94
Termination of employment contract .........................................................[435] ..... 97
Recognition of service if re-engaged .........................................................[441] ..... 98
(vii) Probation.....................................................................................................[450] ..... 99
(viii) Dispute settlement .......................................................................................[456] ... 100
D. Ai Group Application..........................................................................................[461] ... 101
Application to vary the National Training Wage Schedule .....................................[461] ... 101
E. Commonwealth Proposals...................................................................................[482] ... 105
(i) Insertion of school-based apprenticeship provisions .....................................[483] ... 105
(ii) Competency based wage progression ...........................................................[493] ... 106
F. Other Matters......................................................................................................[496] ... 107
G. Conclusions and Operative Dates .......................................................................[498] ... 107
H. Attachments......................................................................................................................111
Attachment A: Glossary of terms........................................................................................111
Attachment B: List of applications referred to the Full Bench .............................................114
A. INTRODUCTION
[1] Under Item 6, Schedule 5 of the Fair Work (Transitional Provisions and
Consequential Amendments) Act 2009 (the Transitional Provisions Act),1 the Fair Work
Commission (the Commission) is required to conduct a review of all modern awards after two
years (the Transitional Review). In the review, the Commission must consider whether the
modern awards achieve the modern awards objective and are operating effectively, without
anomalies or technical problems arising from the award modernisation process conducted
under Part 10A of the Workplace Relations Act 1996 (the WR Act).
[2] In a statement of 27 April 2012,2 the President of Fair Work Australia (FWA)
indicated that a Full Bench would be constituted to determine all applications to vary modern
awards in relation to apprentices, trainees and juniors as part of the Transitional Review of
modern awards. Forty-six applications were originally referred to the Full Bench. Several
additional applications were subsequently referred. A full list of the applications referred to
the Full Bench is included as Attachment B to this decision.
[3] After hearing from the parties on the issue of how the review should be conducted, the
Full Bench decided that it would deal first with four “common matters” relating to multiple
modern awards.3 A fifth common matter was added to the list at the proceedings on 4 March
2013. The common matters are:
1. An application by the Australian Council of Trade Unions (ACTU) and eight
of its affiliates4 to raise apprentice wages. The variations sought are:
1 A glossary of terms used in this decision is included as Attachment A.
2 [2012] FWA 3514.
3 [2012] FWAFB 10395.
4 The AMWU, the ASU, the AWU, the CEPU, the CPSU, the CFMEU, the SDA, and United Voice.
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that the first year rate for apprentices5 across all relevant modern awards
be raised to 60% of the standard C10 tradesperson rate, or $434.70 per
week;6
that adult apprentices7 be paid the higher of the relevant apprentice rate
or the lowest adult rate in the relevant modern award, and that an adult
apprentice is an apprentice who is 20 years of age or older; and
that adult apprentices who were employed by the employer prior to
commencing their apprenticeship do not suffer a reduction in pay.
2. Applications by the Automotive, Food, Metals, Engineering, Printing and
Kindred Industries Union (AMWU), the Communications, Electrical,
Electronic, Energy, Information, Postal, Plumbing and Allied Services Union
of Australia (CEPU) and the Construction, Forestry, Mining and Energy Union
(CFMEU) to insert “model clauses” relating to apprenticeship into various
modern awards. The model clauses cover a range of matters including:
the provision by employers of work that is relevant and appropriate to
the apprentice’s training contract;
a requirement that apprentices not be left to work unsupervised,
consistent with relevant occupational health and safety (OHS)
requirements;
a provision that apprentices who were employed by the employer prior to
commencing their apprenticeship do not suffer a reduction in pay;
provisions relating to the suspension, cancellation and termination of
training and employment contracts;
provisions relating to the recognition of prior service of an apprentice;
an obligation that employers provide adequate mentoring to apprentices;
provisions concerning lost time, probation, rostered days off (RDOs) and
dispute settlement;
provisions relating to attendance by apprentices at training
establishments and payment of fees and other costs associated with
apprentices’ training; and
5 In this decision, the term “apprentices” refers to all apprentices other than adult apprentices.
6 The figure originally sought was $423.66 per week, but as a result of the Annual Wage Review 2012-13 decision ([2013]
FWCFB 4000), the C10 rate was raised from $706.10 to $724.50 per week.
7“Adult apprentice” in this decision refers to a person who is 21 years of age or older at the time of the commencement of an
apprenticeship.
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a prohibition against apprentices under 18 years of age working overtime
or shift work unless they wish to do so, and a requirement that such work
should not interfere with training for other apprentices.
3. An application by the Australian Industry Group (Ai Group) to vary the
National Training Wage Schedule (NTWS), as it appears in many modern
awards. The variations sought are to change the wording of references to time
spent “to attend” or “in attending” training to more explicitly refer to time
spent “in attendance” at training. The variations are intended to make it clear
that employers are not required to pay for time spent by trainees in travelling to
training, and that the NTWS does not extend the application of general award
entitlements.
4. Applications by the AMWU and the CFMEU to insert provisions for
competency based wage progression for apprentices into the Sugar Industry
Award 2010 (the Sugar Award), the Airline Operations - Ground Staff Award
2010 (the Airline Award), the Graphic Arts, Printing and Publishing Award
2010 (the Graphic Arts Award), the Building and Construction General On-
Site Award 2010 (the Building Award), and the Joinery and Building Trades
Award 2010 (the Joinery Award).
5. A submission by the Commonwealth of Australia, as represented by the
Department of Education, Employment and Workplace Relations (DEEWR),
seeking to insert the model schedule dealing with school-based apprentices
into seven modern awards, and to vary the schedule in the awards before us to
provide for competency based progression.
[4] This decision deals with the abovementioned common matters.
(i) Legislative provisions applicable to the review
[5] The Transitional Review is being conducted under Item 6, Schedule 5 of the
Transitional Provisions Act. Item 6 provides:
“6 Review of all modern awards (other than modern enterprise awards and State
reference public sector modern awards) after first 2 years
(1) As soon as practicable after the second anniversary of the FW (safety net provisions)
commencement day, FWA must conduct a review of all modern awards, other than modern
enterprise awards and State reference public sector modern awards.
Note: The review required by this item is in addition to the annual wage reviews and 4 yearly
reviews of modern awards that FWA is required to conduct under the FW Act.
(2) In the review, FWA must consider whether the modern awards:
(a) achieve the modern awards objective; and
(b) are operating effectively, without anomalies or technical problems arising
from the Part 10A award modernisation process.
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(2A) The review must be such that each modern award is reviewed in its own right.
However, this does not prevent FWA from reviewing 2 or more modern awards at the same
time.
(3) FWA may make a determination varying any of the modern awards in any way that
FWA considers appropriate to remedy any issues identified in the review.
Note: Any variation of a modern award must comply with the requirements of the FW Act
relating to the content of modern awards (see Subdivision A of Division 3 of Part 2-3 of the
FW Act).
(4) The modern awards objective applies to FWA making a variation under this item, and
the minimum wages objective also applies if the variation relates to modern award minimum
wages.
(5) FWA may advise persons or bodies about the review in any way FWA considers
appropriate.
(6) Section 625 of the FW Act (which deals with delegation by the President of functions
and powers of FWA) has effect as if subsection (2) of that section included a reference to
FWA’s powers under subitem (5).”
[6] The legislative provisions applicable to the Transitional Review were considered in a
decision relating to the Modern Awards Review 2012 given on 29 June 2012.8 In that
decision, the Full Bench dealt with various preliminary issues relating to the approach to be
adopted in the Transitional Review. In particular, and for the purposes of the present matters,
we note and adopt the following conclusions in that decision:
“[23] First, any variation of a modern award must comply with the requirements of the FW
Act which relate to the content of modern awards. These requirements are set out in
Subdivision A of Division 3 of Part 2-3 of the FW Act...
[25] Any variation to a modern award arising from the Review must comply with s.136 of
the FW Act and the related provisions which deal with the content of modern awards (ss.136–
155 of the FW Act)...
[34] While s.138 is relevant to the Review there is still the question of the extent of its
impact and the circumstances in which it will have on an application to a variation
determination...
[35] The other issue which is contentious is whether ss.157–160 are relevant to the
Review. A number of parties have suggested that these provisions are “contextually relevant”
or “compatible” with Item 6 and the Review...
[38] It seems to us that the Review is quite separate from both the 4 yearly reviews of
modern awards provided for in s.156 and from the process of varying awards outside the 4
yearly review, as provided in ss.157 and 158. We are not persuaded that these provisions are
relevant to the Tribunal’s task under Item 6 of Schedule 5. If ss.157 and 158 applied the
Review would be otiose...
8 [2012] FWAFB 5600.
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[83] As to the historical context the award modernisation process was conducted by the
AIRC under Part 10A of the former WR Act. The process took place in the period from April
2008 to December 2009 and was conducted in accordance with a written request (the award
modernisation request) made by the Minister for Employment and Workplace Relations to the
President of the AIRC. The award modernisation process was completed in four stages, each
stage focussing on different industries and occupations. All stakeholders and interested parties
were invited to make submissions on what should be included in modern awards for a
particular industry or occupation. Separate processes, including variously, the provision of
submissions, hearings and release of draft awards, were undertaken in respect of the creation
of each modern award to ensure parties were able to make submissions and raise matters of
concern relevant to particular awards. By the end of 2009 the AIRC had reviewed more than
1500 state and federal awards and created 122 industry and occupation based modern awards.
[84] ... The award modernisation process required by Part 10A of the WR Act has been
completed.
[85] Two points about the historical context are particularly relevant. The first is that
awards made as a result of the award modernisation process are now deemed to be modern
awards for the purposes of the FW Act (see Item 4 of Schedule 5 of the Transitional
Provisions Act). Implicit in this is a legislative acceptance that the terms of the existing
modern awards are consistent with the modern awards objective. The second point to observe
is that the considerations specified in the legislative test applied by the Tribunal in the Part
10A process is, in a number of important respects, identical or similar to the modern awards
objective which now appears in s.136...
[89] In circumstances where a party seeks a variation to a modern award in the Review and
the substance of the variation sought has already been dealt with by the Tribunal in the Part
10A process, the applicant will have to show that there are cogent reasons for departing from
the previous Full Bench decision, such as a significant change in circumstances, which
warrant a different outcome...
[99] To summarise, we reject the proposition that the Review involves a fresh assessment
of modern awards unencumbered by previous Tribunal authority. It seems to us that the
Review is intended to be narrower in scope than the 4 yearly reviews provided in s.156 of the
FW Act. In the context of this Review the Tribunal is unlikely to revisit issues considered as
part of the Part 10A award modernisation process unless there are cogent reasons for doing so,
such as a significant change in circumstances which warrants a different outcome. Having said
that we do not propose to adopt a “high threshold” for the making of variation determinations
in the Review, as proposed by the Australian Government and others.
[100] The adoption of expressions such as a “high threshold” or “a heavy onus” do not
assist to illuminate the Review process. In the Review we must review each modern award in
its own right and give consideration to the matters set out in subitem 6(2). In considering those
matters we will deal with the submissions and evidence on their merits, subject to the
constraints identified in paragraph [99] above.”
[7] The modern awards objective is set out in s.134 of the Fair Work Act 2009 (the Act) as
follows:
“134 The modern awards objective
What is the modern awards objective?
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(1) The FWC must ensure that modern awards, together with the National Employment
Standards, provide a fair and relevant minimum safety net of terms and conditions, taking into
account:
(a) relative living standards and the needs of the low paid; and
(b) the need to encourage collective bargaining; and
(c) the need to promote social inclusion through increased workforce
participation; and
(d) the need to promote flexible modern work practices and the efficient and
productive performance of work; and
(e) the principle of equal remuneration for work of equal or comparable value;
and
(f) the likely impact of any exercise of modern award powers on business,
including on productivity, employment costs and the regulatory burden; and
(g) the need to ensure a simple, easy to understand, stable and sustainable modern
award system for Australia that avoids unnecessary overlap of modern awards; and
(h) the likely impact of any exercise of modern award powers on employment
growth, inflation and the sustainability, performance and competitiveness of the
national economy.
This is the modern awards objective.
When does the modern awards objective apply?
(2) The modern awards objective applies to the performance or exercise of the FWC’s
modern award powers, which are:
(a) the FWC’s functions or powers under this Part; and
(b) the FWC’s functions or powers under Part 2 6, so far as they relate to modern
award minimum wages.
Note: The FWC must also take into account the objects of this Act and any other applicable
provisions. For example, if the FWC is setting, varying or revoking modern award minimum
wages, the minimum wages objective also applies (see section 284).”
[8] The minimum wages objective is set out in s.284(1) of the Act as follows:
“284 The minimum wages objective
What is the minimum wages objective?
(1) The FWC must establish and maintain a safety net of fair minimum wages, taking into
account:
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(a) the performance and competitiveness of the national economy, including
productivity, business competitiveness and viability, inflation and employment
growth; and
(b) promoting social inclusion through increased workforce participation; and
(c) relative living standards and the needs of the low paid; and
(d) the principle of equal remuneration for work of equal or comparable value;
and
(e) providing a comprehensive range of fair minimum wages to junior employees,
employees to whom training arrangements apply and employees with a disability.
This is the minimum wages objective.”
(ii) Background to the review and the making of the applications
[9] A review of apprentice wages and conditions has been in prospect for some years. A
review by the Australian Fair Pay Commission was commenced in September 2007, but was
cancelled in early 2008 following the establishment of the award modernisation process under
new legislative arrangements.
[10] In the award modernisation process, apprentice wages and conditions were the subject
of consideration, but there was no in-depth comprehensive review undertaken. In the Award
Modernisation decision of 18 December 2008,9 the Full Bench described the approach taken
in relation to junior and apprentice rates as follows:
“[71] The federal awards and NAPSAs with which we are dealing contain a very wide range
of rates for junior employees and apprentices. The relevant instruments fix percentages of the
adult wage for juniors and apprentices based on a host of historical and industrial
considerations, most of which can only be guessed at. It is not possible to standardise these
provisions on an economy-wide basis, at least not at this stage. We have adopted the limited
objective of developing new rates which constitute a fair safety net for each of the modern
awards based on the terms of the relevant predecessor awards and NAPSAs. We have
attempted to strike a balance as between, in some cases, wildly varying provisions. In the case
of junior employees the rates will be expressed as a percentage of the rate for the relevant adult
classification. In the case of apprentices the rates will generally be expressed as a percentage
of the relevant trade rate.”
[11] In relation to the hospitality industry awards, the Full Bench said:
“[134] The diversity in apprentice rates is indicative of broader issues which need to be
addressed, in relation to apprentice and other training arrangements across the country. We do
not think that the award modernisation process provides a proper opportunity to address those
issues. In reaching that conclusion, we have had regard to submissions of training
organisations which advocate a fuller review of apprentice wages.”
9 [2008] AIRCFB 1000.
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[12] In the Award Modernisation decision of 2 September 2009,10 the Full Bench said that
“it would be desirable to develop a unified national system of training and employment
conditions for apprentices”, and in that respect referred to the annual wage reviews.
[13] There were a series of conferences before the President of FWA in 2010 in relation to
the possible timing and scope of a review of apprentice and trainee wages and conditions.
Following these conferences, the President indicated in early 2011 that the tribunal would
wait for the results of the Apprenticeship Expert Panel report and the government response to
it before deciding on a further course of action about the review.
[14] The final report of the Apprenticeship Expert Panel supported a review of
apprenticeship and traineeship provisions, wages and conditions by FWA, but did not address
the mechanism through which such a review might take place. The ACTU and the unions
took the view that the best way to progress the apprenticeship matters is in the form of
applications as part of the Transitional Review.
[15] Following a conference with interested parties, the President set out a process by
which the parties interested in each application relating to apprentices, trainees and junior
rates would meet to identify relevant issues and then to report back.11 Following the reports to
the President, some 46 applications were to be dealt with by the Full Bench. Several
applications were subsequently referred to the Full Bench.
[16] The matters were listed by the Full Bench for mention and programming on 26
October 2012 and directions were made for the filing of submissions and evidence.12 A
timetable was established for the presentation of evidence and submissions relating to the
common matters, and the ACTU was requested to provide an updated table of the common
matters.13
[17] Given this background, we have taken the view that the claims are properly before the
Full Bench in the context of the Transitional Review.
The Report of the Apprenticeship Expert Panel
[18] On 31 January 2011, the final report of the Apprenticeship Expert Panel, “A Shared
Responsibility: Apprenticeships for the 21st Century”,14 was released. Under its terms of
reference, the Expert Panel was given a wide-ranging brief to examine the economic benefits
of the Australian apprenticeship system and to develop options for government on how to
sustain and build the system into the future.15
[19] The Expert Panel identified a number of major challenges which need to be addressed
if the Australian apprenticeship system is to meet the skills needs of the 21st century
10 [2009] AIRCFB 800 at [51].
11 See [2012] FWA 5102.
12 See [2012] FWAFB 9215.
13 See [2012] FWAFB10395.
14 ‘A shared responsibility - Apprenticeships for the 21st Century’. Final Report of the Expert Panel, 31 January 2011 (the
Apprenticeship Expert Panel Report).
15 The full terms of reference are set out at Appendix A of the Report, pp.98-99.
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economy. These include the need to develop skills in certain sectors of the economy, such as
engineering and the traditional trades; unacceptably low apprenticeship completion rates; the
complexity of the system; and the misalignment of the apprenticeship system and the
workplace relations system.
[20] In considering the way forward, the Expert Panel recognised a need for consistency in
wages and conditions for apprentices:
“We believe there is scope for a better approach to support the needs of the apprentices and
trainees. This includes facilitating arrangements for the effective implementation of
competency-based training progression (and associated wages progression) for apprentices and
trainees. The role of Recognition of Prior Learning (RPL) and Recognition of Current
Competencies (RCC) is also significant, given the increased number of mature age Australian
Apprentices.
We also note the disparity in Australian Apprenticeship and training arrangements in modern
awards with respect to several issues including adult Australian Apprentice rates of pay,
recognition of pre-apprenticeship training and part-time arrangements for Australian
Apprentices. We encourage and endorse a broad review conducted by Fair Work Australia
(FWA) into apprenticeship and traineeship wages and conditions. We note that a large number
of Australian Apprentices appear to be receiving above award rates of pay, which likely means
that Australian Apprenticeship wage rates contained in awards do not reflect the current
market for those wage rates. Whilst many Australian Apprentices receive above award wage
rates, the safety net (or minimum wage rates in modern awards) should reflect the changing
demographics of Australian Apprentices. This includes more mature age people, many from
diverse backgrounds and with a range of experiences choosing to enter into an Australian
Apprenticeship compared to the past.”16
[21] To address the issues identified, the Expert Panel made recommendations directed
towards ensuring that Australia has a high-quality apprenticeship system which responds to
the needs of the economy, supports nationally consistent standards for employment and
training, focuses on retention and completion, and supports high-quality skill development.17
[22] Several of the recommendations are of particular relevance to the current review.
Recommendation 4 refers to support to assist employers to provide high-quality off-the-job
and on-the-job training through support services such as mentoring and pastoral care.
Recommendation 11 refers to the implementation of a strategy to raise the status of
apprenticeships and traineeships, including promotion as a valued career choice for both
males and females. Recommendation 14 proposes a broad review conducted by FWA into
apprenticeship and traineeship wages and conditions:
“Support a review of apprenticeship and traineeship provisions, wages and conditions by Fair
Work Australia, considering:
the removal of barriers to competency based wage progression in modern awards
apprentice and trainee award pay compared to going rates of pay
age, diversity and circumstances of commencing apprentices and trainees
allowances (travel, tools, clothing, course fees)
16 Apprenticeship Expert Panel Report, p.13.
17 The recommendations are set out in the Report at pp.14-15.
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cost to apprentices and trainees of participation in an Australian Apprenticeship
part-time and school-based arrangements
recognition of pre-apprenticeship and pre-vocational programs
supervision ratios for apprentices and trainees.”
[23] The Australian Government, in its response to the Expert Panel’s recommendations in
December 2011, agreed that a review by FWA was warranted and indicated that it would
actively contribute to the review. This support is also set out in the scoping paper provided to
the Full Bench by the Minister for Employment and Workplace Relations regarding the
conduct of the review.18
(iii) Conduct of the review
[24] In the proceedings on 4-6, 19-22 March and 3-4 April 2013, the Full Bench heard
opening submissions on the common matters and evidence from a variety of witnesses called
by the parties. On 22-24 April and 1-3, 8-9 May 2013, the Full Bench heard the submissions
of the parties on the proposed variations relating to the common matters.
Evidence
[25] There was extensive evidence and material presented in the course of the review
proceedings. This included reference to inquiries, research and surveys relating to the
apprenticeship system which have been conducted nationally and in various States. We do not
seek to summarise or refer to all of the evidence presented, but provide the following
overview.
[26] At the outset we refer to the useful statistical and background information regarding
apprentices and the apprenticeship system in Australia provided in various publications of the
National Centre for Vocational Education Research Ltd (NCVER). In relation to the general
position with respect to apprenticeships in Australia, we were referred to the NCVER
publication on “Australian vocational education and training statistics” (June quarter 2012).
It showed that the number of apprentices and trainees in training as at 30 June 2012 was
514,900, an increase of 11.3% from one year earlier. In relation to overall trends, the
publication states that for the 12 months ending 30 June 2012:
trades commencements increased by 3.2%;
completions (trades and non-trades) increased by 8.1%; and
cancellations and withdrawals (trades and non-trades) increased by 2.8%.
[27] The NCVER provided a series of reports to the Apprenticeship Expert Panel,
including on “The apprenticeship and traineeship system’s relationships with the regulatory
environment”.19 The report notes that apprenticeships and traineeships are based on a legal
contract - the contract of training - between the individual, an employer, and a training
provider. However the contract of training is only one part of the legal and regulatory
18 Exhibit CTH3: Letter to the FWA President, 23 May 2012, and attached “Scoping Paper for Fair Work Australia on
Decision Points for Review of Apprentice and Trainee Wages and Conditions”.
19 NCVER, ‘The Apprenticeship and traineeship system’s relationships with the regulatory environment’, Report 3, 2011
(NCVER Report 3).
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framework that governs apprenticeships and traineeships. The report considers other parts of
that framework, in particular, the licensing system, award structures, and legislative and
quality assurance arrangements. In relation to award structures, the report notes:
“The apprenticeship model combines a contract of training with a contract of employment and
as such involves two regulatory systems: the training system and the industrial relations
system. The new Fair Work industrial relations system has consolidated coverage into 122
modern awards, 95 of which contain the Training Wage Schedule and 45 of which provide for
the employment of apprentices. Considerable diversity in apprentice pay and conditions
remains and it is as yet unclear whether the new framework can be more adaptive in response
to issues such as the expansion of apprenticeships and traineeships into new areas, competency
based wage progression, and the recognition of previous training and qualifications.”20
[28] In the course of the proceedings, evidence was given in statements provided by expert
witnesses, proprietors and managers of businesses, managers of training providers, union
officials, and apprentices. These witnesses provided much useful information about the
operation of the apprenticeship system, the challenges and problems in the system, and the
implications of the proposed variations from the perspectives of employers, training providers
and apprentices. Many of these persons were called for the purposes of cross-examination,
which not only allowed their evidence to be tested but also provided an opportunity for the
members of the Full Bench to ask questions about their statements and their involvement in
the apprenticeship system. We have taken all the evidence into consideration in reaching our
conclusions in relation to the matters before us. However, given the large number of
statements and witnesses involved, we provide only a general summary of the evidence in this
decision.
[29] In support of its claims, the ACTU relied on a report prepared by Dr Phillip Toner,
Honorary Senior Research Fellow, University of Sydney, entitled “The Role of Wages and
Other Factors in Apprentice Commencements and Completions: A Selected Review of the
Literature in Australia”21 (the Toner Report). The report addresses a range of issues relevant
to the ACTU claims, including the extent to which apprenticeship commencement and
completion rates are affected by apprentice wages, a comparison of apprentice wage rates
with accepted measures of poverty, and the likely impact of granting the union claims on the
Australian economy and on business. The Toner Report also refers to a number of major
changes to the characteristics of apprentices in Australia that have occurred over the past two
decades. In particular, the report notes the significant reduction in the proportion of younger
apprentices, aged 19 or under, from over three quarters (77.4%) to less than two thirds
(62.1%) and the corresponding increase in the proportion of older apprentices, so that
currently more than one in five (21.3%) apprentices is aged 25 or over.22
[30] The unions involved in the proceedings presented evidence from expert witnesses,
union officials and apprentices, as well as the results of surveys of apprentices.
[31] CEPU officials gave evidence regarding apprentices in various industries and sectors
including in the electrical contracting industry, the transmission, distribution and generation
sectors of the power industry, building and construction, the lift industry,
20 Ibid p.6.
21 Exhibit ACTU1, Attachment PT-1.
22 Ibid, pp.23-24.
[2013] FWCFB 5411
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telecommunications, black coal mining, and plumbing and fire sprinklers. The CEPU
apprentice witnesses gave examples of the types of work undertaken by electrical apprentices
in the various industries and sectors, the budget requirements of apprentices and the financial
hardships faced by them, and the provision of appropriate supervision and training. The
CEPU also relied upon the results of a survey of electrical apprentices conducted from March
to July 2012. The survey was about apprentice pay rates and expenses and the ability of
apprentices to adequately meet those expenses.
[32] The CEPU called Professor John Buchanan, the Director of the Workplace Research
Centre (WRC) and a professor of Work and Organisational Studies at the University of
Sydney’s School of Business. The evidence of Professor Buchanan mainly related to a report
prepared by the WRC for the Electrical Industry Stakeholder Consortium entitled “The
Changing Situation of Electrical Apprentices: Submission to the Modern Award Review”.23
Key findings of the report include:
“The assumption that apprentices have lower work value because they are untrained young
people who remain marginally or wholly dependent on their parents, and who have limited
job-ready experience requires revision. Many apprentices enter their training with deeper
cognitive, technical and behavioural skills than their predecessors.”24
“There are strong grounds for the structure and contents of these awards to be reviewed to
ensure greater consistency in the relativities, adult rates of pay and continuity clauses to
reflect the changing demographic situation of electrical apprentices that has occurred over
the last ten years.”25
“The wage rates contained in modern awards are insufficient to meet community
expectations of a reasonable standard of living. The prevalence of financial resource
constraints associated with undertaking an adult apprenticeship makes it unattractive and
difficult to commence and complete apprenticeship training.”26
[33] AMWU officials gave evidence relating to apprentices in a range of industries and
sectors, including the manufacturing industry, the manufacturing, service and repair sectors of
the vehicle industry, and the graphic arts, printing and publishing industries. One AMWU
official gave evidence about a survey of apprentices that she conducted in relation to costs
associated with travel and accommodation for “block release” training. The AMWU
apprentice witnesses gave evidence relating to their personal finances and budgetary
situations and the hardships that they experience, and the impacts of apprentice wages and
conditions upon their thinking and decision-making regarding their apprenticeships.
[34] The AMWU also relied upon the results of the “Better Wage Apprentice Survey”,27
which was conducted in 2012 and received responses from 545 apprentices who were AMWU
23 Hanna Schutz, Michael Bittman, Sharni Chan, Michelle Jakubauskas and John Buchanan, ‘The Changing Situation of
Electrical Apprentices: Submission to the Modern Award Review, Fair Work Australia’, Workplace Research Centre,
University of Sydney (the WRC Report).
24 Ibid, p.53.
25 Ibid, p.54.
26 Ibid, p.55.
27 Exhibit T13, pp.95-114 (summary); Attachments M and N.
[2013] FWCFB 5411
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members as well as 32 non-members. The survey was about apprentice demographics, work
conditions and training arrangements.
[35] Several CFMEU officials gave evidence relating to apprentices in various States,
principally in the residential and commercial sectors of the building and construction industry.
The officials also gave evidence in relation to disputes with employers regarding
apprenticeship issues, and the ways in which apprentice labour is used in some parts of the
industry. The CFMEU apprentice witnesses gave evidence relating to their income and
expenditure, and the difference in apprentice wages between the commercial and residential
sectors of the building and construction industry.
[36] The employer organisations appearing in the proceedings presented evidence from
expert witnesses, managers of group training organisations (GTOs) and employers of
apprentices, and also relied upon the results of surveys of employers.
[37] The Ai Group called Mr Dean Arundell, the General Manager of Australian Industry
Group Training Services Pty Ltd. Mr Arundell gave evidence primarily relevant to the
manufacturing industry, relating to the demand for apprentices, current rates of pay,
completion rates, and costs of training and travel.
[38] Australian Business Industrial (ABI) filed witness statements from managers and
officers of several GTOs, as well as one small business owner. The witnesses gave evidence
about the costs to employers associated with employing apprentices, the reasons for non-
completion of apprenticeships, the operation of GTOs, and other issues associated with
apprenticeships.
[39] ABI also relied on the evidence of Ms Zoe Jenkins, an employed solicitor at
Australian Business Lawyers and Advisers, and Mr Nicholas Minto, a Senior Policy Adviser,
Employment Education and Training at the NSW Business Chamber. Ms Jenkins designed an
online survey that was distributed to members of six State and Territory chambers of
commerce.28 The report of the survey results concluded that “a significant portion of the
employer respondents would decrease or cease engaging apprentices should there be an
additional burden on their businesses...” created by a number of factors including an increase
in minimum wages, introducing travel time payments for apprentices, or removing
employers’ capacity to have their apprentices work overtime or shiftwork.29 Mr Minto gave
evidence in relation to various matters, including cost barriers to employers engaging in
training, the notion of a training wage, and competency based wage progression.
[40] Master Builders Australia (MBA) and the Housing Industry Association (HIA) relied
upon a specially commissioned report by the Centre for International Economics entitled
“Increasing apprentice and trainee wages and conditions in the building and construction
industry: Costing the impact of union applications” (the CIE Report). The central finding of
the CIE Report was that:
28 Excluding Tasmania and the Northern Territory.
29 Exhibit W4, Schedule ZJ.1, p.12.
[2013] FWCFB 5411
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“Were the CFMEU application accepted, the relative attractiveness of employing apprentices,
relative to qualified construction trades workers would fall considerably, leading to the loss of
thousands of apprentice positions.”30
[41] Following cross-examination of the CIE Report’s author, Mr Derek Quirke, some
figures in the report were adjusted. An amended version of the report was tendered as a
separate exhibit, along with a schedule setting out the differences between the two versions.31
[42] MBA also relied on the evidence of Mr Omesh Jethwani, the NSW State Manager
Apprenticeship Mentoring for the MBA’s Apprenticeship Group Training Scheme, and Mr
Dave Callan, the Chairman of the Board of Directors of the Master Builders Group Training
Scheme Inc (MBGTS). Both Mr Jethwani and Mr Callan gave evidence in relation to their
experience of operating a GTO within the building and construction industry. Mr Callan also
attempted to assess the cost of the ACTU and the CFMEU’s claims in relation to the relevant
modern awards, and concluded that they would increase the MBGTS apprentices wage bill by
approximately 25%.32
[43] The National Electrical and Communications Association (NECA) called more than
15 witnesses to give evidence. Its witnesses were mainly small and medium business
operators in the electrical contracting industry who employ apprentices. These witnesses gave
evidence in relation to conditions in the industry, the financial position of their businesses,
and their likely response if the union claims were granted. NECA also called Mr Philip Green,
the Executive Director of NECA’s Victorian Chapter, and Mr Robert McGuinness, the
Membership Development Officer for the same chapter. Mr Green gave evidence in relation
the electrical contracting industry generally, while Mr McGuinness gave evidence in relation
to Australian Apprenticeship Centres and safety and licensing issues within the industry.
[44] The Electrical Contractors Association (ECA) called Ms Stacey Ozolins, its National
Apprenticeship Programs Manager. Ms Ozolins referred to unpublished data collected by the
Queensland Government in relation to apprenticeship cancellations, as well as information
relating to the electrical industry generally.
[45] The Victorian Automotive Chamber of Commerce (VACC) and the Motor Trade
Association of South Australia presented evidence and submissions on behalf of motor trades
associations in five States (collectively, the Motor Trades Associations, or MTA). Most of the
MTA witnesses were employers in the vehicle industry that employ apprentices and/or act as
host organisations for apprentices who are employed by GTOs. These witnesses gave
evidence about conditions in the industry, the financial position of their businesses, and their
likely response if the union claims were granted. Unlike the employer witnesses called by
other employer associations, the MTA witnesses generally supported an increase in apprentice
wages in the modern award relevant to their industry, but not an increase of the size sought by
the ACTU and the AMWU.
30 The Centre for International Economics, “Increasing apprentice and trainee wages and conditions in the building and
construction industry: Costing the impact of union applications”. Prepared for Master Builders Australia and the Housing
Industry Association, February 2013, p.5. See also Exhibit MBA8, p.6.
31 Exhibits MBA8 and MBA9 respectively.
32 Exhibit MBA3, p.3 para 13.
[2013] FWCFB 5411
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[46] Evidence was also given by the managers responsible for running the MTA group
training schemes in South Australia and Victoria, Mr John Chapman and Mr Nigel Muller
respectively. Mr Chapman and Mr Muller gave evidence in relation to the operation of their
GTOs and set out their views as to the likely effects of granting the ACTU and the AMWU’s
claims.
[47] The Master Plumbers and Mechanical Contractors Association of NSW (MPA-NSW)
called Mr Paul Naylor, who is the Chief Executive Officer of the organisation. Mr Naylor
explained what he saw as the likely impact of the CEPU’s claims in relation to apprenticeship
costs, and the Commonwealth’s submissions in relation to competency based wage
progression. He also gave evidence in relation to an online survey of members of the MPA-
NSW. The survey sought the views of members regarding the union claims in the present
proceedings.
Submissions
[48] The ACTU submitted that there is a strong equity and economic case for
improvements to apprentice wages. It was said that report after report, survey after survey, has
highlighted the inadequacy of current apprenticeship wages in attracting and retaining
apprentices, in responding to the changing profile of apprentices over time in terms of the age,
skills and experience, and in providing apprentices with dignity and sufficient income to
maintain a reasonable standard of living in line with community standards and expectations.
The current situation where apprentices on award rates have to scrape by, often relying on the
support of family or friends, is not a fair or sustainable way for the apprenticeship system to
continue. It was also said that low wages are a major factor explaining the declining
apprenticeship completion rates in recent years, with almost a third of apprentices dropping
out in the first year.
[49] It was submitted that a strong apprenticeship system is essential to give young, and
older, people a pathway to a secure job, and to meet the skills needs of employers and the
economy. Australia has and should continue to set high standards for the way its
apprenticeship system operates. This must include a safety net of fair wages and conditions to
support apprentices.
[50] The ACTU submitted that the Commission has jurisdiction to consider the various
union applications in the Transitional Review and that the claims sought in relation to rates of
pay and conditions for apprentices could be granted having regard to the relevant legislative
requirements, in particular the modern awards objective and the minimum wages objective.
The ACTU submissions with respect to the jurisdiction of the Commission were adopted by
the AMWU, the CEPU and the CFMEU, and each of the unions made similar submissions in
relation to the wage increases sought.
[51] In relation to its applications, the CEPU submitted that the impact upon businesses and
the economy of raising wages was not such as to warrant the claim not being granted, and that
on balance the effect on the national economy of granting the claims was likely to be positive.
In relation to the proposed clauses regarding apprentice terms and conditions of employment,
it was said that the national economy would benefit from improved retention and skills
formation. Particularly in relation to the Electrical, Electronic and Communications
Contracting Award 2010 (the Electrical Contracting Award), it was said current minimum
[2013] FWCFB 5411
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wages, which are some of the lowest in any modern award, do not meet the needs of
apprentices or provide a fair living standard.
[52] The AMWU made detailed submissions with respect to each of the awards that it
applied to vary. Generally it submitted that:
“The claim is made at a time when the manufacturing industry faces a shortage of engineering
skills’ capacity and at a time when apprenticeships are a less valued option than in previous
generations for the cohort of older, more qualified and more experienced school leavers. The
claim recognises that there are a plurality of issues impacting on completion rates including
apprentice wages and conditions. Modern Award provisions are well placed to make a positive
contribution in seeking improved retention outcomes.”33
[53] The AMWU made detailed submissions with respect to the costs of granting the union
claims in relation to the Manufacturing and Associated Industries and Occupations Award
2010 (the Manufacturing Award). It was said that the costs to employers would be relatively
modest.
[54] The CFMEU submitted that variations sought to apprentice conditions of employment
in the Building Award and the Joinery Award would resolve confusion and ambiguity as to
the entitlements of apprentices, particularly with respect to time spent in off-the-job training
and in identifying what matters are within the purview of the Commission on one hand and
relevant State and Territory training authorities or industrial tribunals on the other. In relation
to competency based wage progression, it submitted that all relevant expert reports,
government policy and every major employer body have expressed in-principle support, but
that employer groups have been slow in taking action to make it a reality. Further, it was said
that the introduction of competency based wage progression and higher wages would increase
productivity. The CFMEU’s applications to insert competency based wage progression into
the modern awards were supported by the Commonwealth.34
[55] The ACTU and the union applications were generally opposed by the employer parties
to the proceedings. Part of the employer opposition was based on whether the union claims
could be considered as part of the Transitional Review and on jurisdictional grounds.
However the main opposition related to the merits and the implications of the proposed
changes.
[56] In relation to what were broadly referred to as “jurisdictional” issues, the employers
submitted that some of the variations sought by the ACTU and the unions are terms that
cannot be included in modern awards pursuant to Division 3 of Part 2-3 of the Act. It was
submitted that some terms could or should not be added to modern awards because of the
rules governing the interaction between the Act, modern awards, and State and Territory
legislation. It was also submitted that, contrary to the ACTU submission, the Commission
must take into account work value considerations in deciding whether to increase minimum
wages in the Transitional Review.
33 Exhibit T13, p.4 para 1.4.
34 Exhibit CTH1, pp.12-13 para 3.16.
[2013] FWCFB 5411
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[57] In relation to the merits of the claims for increased wages, the submissions of the Ai
Group were broadly representative of the employer organisations as a whole. The Ai Group
submitted that apprentice wages in modern awards already provide a fair and relevant safety
net, satisfying the modern awards and minimum wages objectives. It was said that the
increases sought were not justified by work value principles, and that it is not appropriate to
standardise apprentice wages across all modern awards given the differences between
industries and the skills required of apprentices. Further, on the basis of NCVER research
about the costs of training apprentices,35 it was submitted that the proposed increases would
be a disincentive for employers to take on apprentices:
“The abovementioned findings suggest that the Unions’ applications will distort the careful
balance between the cost of training an apprentice and the productivity of an apprentice. The
Unions’ applications would simply give employer[s] a disincentive to invest in
apprenticeships.”36
[58] With respect to the AMWU, CEPU and CFMEU applications, the Ai Group submitted
generally that the variations were not necessary for the relevant modern awards to meet the
modern awards objective or to rectify anomalies or technical difficulties arising from the
award modernisation process. It was said that the unions had not demonstrated cogent reasons
or put on a sufficient evidentiary case to justify the Full Bench departing from the outcomes
of the award modernisation process.
[59] The ACCI submitted that the approach of the ACTU and the unions in seeking a
common wage rate for first year apprentices across a multiplicity of awards is inappropriate
and will substantially reduce the number of opportunities offered by employers. The ACCI
submitted that the ACTU claim for a general wage increase for first year apprentices should
be refused and applications for changes in wages and conditions should be examined on an
award-by-award basis, taking into account apprenticeship and industry circumstances.
[60] ABI submitted that apprentice rates of pay are only one factor influencing
commencement and completion rates, and that the ACTU and the unions overstated their
impact. It was said that the unions are asking the Commission to discard the long-held view
that apprentice rates are intended to provide a training wage, not necessarily a living wage. It
was submitted that the variations sought by the unions should be refused as they are not
necessary to ensure that the modern awards objective is met or to rectify anomalies or
technical problems, and that in fact some of the variations sought would offend the modern
awards objective.
[61] MBA opposed the CFMEU applications to insert provisions for competency based
wage progression into the two building awards. It submitted that State and Territory laws do
not currently provide an adequate framework for competency based progression, and that
adequate systems for quantifying and assessing competency should be put in place before any
change is made. Generally MBA argued that no work value case has been made out and that
granting the union claims would result in the loss of apprentice positions in the building and
construction industry.
35 NCVER, ‘The cost of training apprentices’, January 2009.
36 Exhibit AIG6, p.42 para 105.
[2013] FWCFB 5411
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[62] The HIA submitted that granting the ACTU and the CFMEU claims would have
significant adverse consequences for the residential construction sector, which differs in many
respects from the commercial sector, and is much more reliant on award rates of pay. It said
there was no convincing evidence that higher wages would lead to higher completion rates. It
made submissions similar to those of MBA in relation to competency based wage
progression.
[63] The NECA submitted that there has been no change in the demographic profile of
apprentices since award modernisation, and that there has been no increase in the work value
of apprentices such as to justify the increases in wages sought. It was said that all of the
CEPU’s claims would lead to increased costs to employers, with the result that employing
apprentices would be less attractive to employers.
[64] The ECA submitted that the Transitional Review was never intended as the vehicle for
a review of apprentice wages and conditions. It was submitted that the ACTU and union
submissions did not take into account the existence of all-purpose allowances in several
relevant awards or government financial support available to apprentices, which creates a
misleading impression of electrical apprentices’ remuneration and financial circumstances.
The ECA submitted that if the union applications are granted, the Full Bench should put in
place transitional arrangements to phase in any increases.
[65] The MTA supported an increase in apprentice wages on the basis that apprentice
wages in the vehicle industry are comparatively low. However it opposed an increase of the
size sought by the ACTU and AMWU, and submitted an alternate proposal for smaller
increases in the Vehicle Manufacturing, Repair, Services and Retail Award 2010 (the Vehicle
Award) that would bring apprentice wages into the mid range for modern awards. The MTA
generally submitted that the AMWU’s claims in relation to apprentice conditions of
employment should not be granted for reasons similar to those given in submissions by the
other employer associations, although for historical reasons its position differed somewhat
with regard to travelling time and payment of fares.
[66] The MPA-NSW submitted that the proposed wage increases sought by the unions are
contrary to the modern awards objective as they would place an unreasonable burden on
employers. It generally opposed the claims of the CEPU as unnecessary and contrary to the
modern awards objective.
[67] The Coal Mining Industry Employer Group (CMIEG) made a short submission with
respect to the AMWU’s application to vary the Black Coal Mining Industry Award 2010 (the
Black Coal Award). It submitted that the application does not fall within the scope of the
Transitional Review, and that none of the evidence presented shows any problem with respect
to the black coal mining industry that needs to be addressed through variations to the award. It
further submitted that the intent of several of the variations is unclear, that some provisions
could not be included in a modern award because they seek to fix actual rather than minimum
wages, and that some of the provisions sought by the AMWU would act as disincentives for
employers who might take on apprentices.
[68] A number of employer bodies only made written submissions with regard to the
applications, and did not appear and/or did not present evidence in the hearing proceedings.
These bodies included the Australian Chamber of Commerce and Industry (ACCI), the
Australian Federation of Employers and Industry (AFEI), the Australian Mines and Metals
[2013] FWCFB 5411
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Association (AMMA), Ports Australia, the Australasian Railway Association (ARA), the
Printing Industries Association of Australia (PIAA), the Australian Meat Industry Council
(AMIC) and the Local Government Association of NSW and Shires Association of NSW
(LGA). Generally these organisations submitted that the Transitional Review was not the
appropriate vehicle for the review of apprentice wages and conditions sought by the ACTU
and the unions, that the proposed variations are not necessary to meet the modern awards
objective or to rectify anomalies or technical difficulties, and that the unions have not made
out a sufficient evidentiary case for the variations. The Master Plumbers and Mechanical
Services Association of Australia (MPA) appeared in the proceedings and cross-examined
several witnesses but did not make oral closing submissions. Four State Chambers of
Commerce and Industry37 made joint written submissions, and the Chamber of Commerce
and Industry of Western Australia Inc (CCIWA) made additional oral closing submissions.
[69] In relation to its application to vary the NTWS, the Ai Group submitted that the
variation was necessary to correct an ambiguity, uncertainty or error in the awards in relation
to travel by trainees to attend training. The variation was said to be necessary in order to
refute an interpretation that the CEPU has sought to place on the existing clauses in a recent
series of cases.38 It was said that the CEPU’s interpretation is inconsistent with the
understanding of the provisions on which the relevant part of the NTWS is based, and that:
“The unreasonableness and unfairness of the interpretation being pressed by the CEPU and
other unions is obvious. If the unions’ interpretation prevailed, major costs would be imposed
on employers with consequent major reductions in employment for trainees.”39
[70] The Ai Group’s application and submissions were generally supported by the other
employer organisations. The ACTU and the unions submitted that the variation should be
rejected on the basis that requiring trainees to meet significant travel and accommodation
costs does not provide a fair and relevant safety net.
[71] The Commonwealth was essentially in the position of an applicant with respect to the
model school-based apprentice schedule. It submitted that the Award Modernisation Full
Bench intended to insert the schedule into all modern awards under which apprenticeships are
available, that its absence from five awards was an oversight, and that in accordance with the
same principal the schedule should be added into another award into which Group Training
Australia seeks to insert apprenticeship provisions. It further submitted that a provision
missing from the schedule as it appears in the Black Coal Award and the Hospitality Industry
(General) Award 2010 (the Hospitality Award) was a technical anomaly that should be
corrected in the Transitional Review. In line with the Commonwealth’s support for the
principle, it also submitted that the schedule should be amended to allow for competency
based wage progression.
37 The Chamber of Commerce and Industry of Western Australia Inc, the Chamber of Commerce and Industry Queensland,
the South Australian Employers’ Chamber of Commerce and Industry Inc (T/A Business SA) and the Victorian
Employers’ Chamber of Commerce and Industry.
38 CEPU v Excelior Pty Ltd [2012] FMCA 621; CEPU v Excelior Pty Ltd [2013] FCA 638.
39 Exhibit AIG3, p.7 para 17.
[2013] FWCFB 5411
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Consideration
[72] We now turn to consider the various matters raised in the applications and submissions
before us. Firstly we deal with the jurisdictional issues raised in relation to the review.
Secondly, we consider the merits of the applications for the variation of the relevant modern
awards.
B. JURISDICTION AND RELATED ISSUES
[73] The employers raised objections, described as jurisdictional, to a number of the
variations sought by the unions. With the exception of one issue we later refer to relating to
wage rates, these objections did not concern the wages and allowances claims. They
concerned the claims relating to the training contract, recognition of service and dispute
resolution. The employers submitted that the provisions sought to be included in the awards
are not terms which, consistent with s.136 of the Act, are either permitted or required to be
included in the awards. The ACTU submitted that the Commission has power to include in
awards all of the variations contained in both its applications and those of its affiliates. All of
the unions appearing before us, and the Commonwealth, supported the submissions of the
ACTU.
[74] We have earlier reproduced the provisions of Item 6, Schedule 5 of the Transitional
Provisions Act. A note contained after Item 6(3) provides that any variation of a modern
award that may be made as part of the Transitional Review “must comply with the
requirements of the FW Act relating to the content of modern awards ...” The provisions that
can be contained in modern awards are addressed in Part 2-3 of Chapter 2 of the Act. Section
136 provides that a modern award must only include terms that are permitted or required by
Subdivisions B and C (i.e. ss.139 to 149), s.55, or Part 2-2 (which contains the National
Employment Standards (NES)). Section 136 also refers to terms that are not to be contained in
modern awards, which we do not need to address. Section 138 provides that a modern award
may include terms it is permitted to include, and must include terms that it is required to
include, “only to the extent necessary to achieve the modern awards objective and (to the
extent applicable) the minimum wages objective.”
(i) Terms that may be included in a modern award
[75] The terms that may be included in modern awards are addressed in s.139 and this
section received a significant amount of attention in the submissions before us. It reads as
follows:
“139 Terms that may be included in modern awards—general
(1) A modern award may include terms about any of the following matters:
(a) minimum wages (including wage rates for junior employees, employees with
a disability and employees to whom training arrangements apply), and:
(i) skill-based classifications and career structures; and
(ii) incentive-based payments, piece rates and bonuses;
[2013] FWCFB 5411
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(b) type of employment, such as full-time employment, casual employment,
regular part-time employment and shift work, and the facilitation of flexible working
arrangements, particularly for employees with family responsibilities;
(c) arrangements for when work is performed, including hours of work, rostering,
notice periods, rest breaks and variations to working hours;
(d) overtime rates;
(e) penalty rates, including for any of the following:
(i) employees working unsocial, irregular or unpredictable hours;
(ii) employees working on weekends or public holidays;
(iii) shift workers;
(f) annualised wage arrangements that:
(i) have regard to the patterns of work in an occupation, industry or
enterprise; and
(ii) provide an alternative to the separate payment of wages and other
monetary entitlements; and
(iii) include appropriate safeguards to ensure that individual employees
are not disadvantaged;
(g) allowances, including for any of the following:
(i) expenses incurred in the course of employment;
(ii) responsibilities or skills that are not taken into account in rates of pay;
(iii) disabilities associated with the performance of particular tasks or
work in particular conditions or locations;
(h) leave, leave loadings and arrangements for taking leave;
(i) superannuation;
(j) procedures for consultation, representation and dispute settlement.
(2) Any allowance included in a modern award must be separately and clearly identified
in the award.”
[76] Section 12 of the Act defines training arrangement as meaning “a combination of work
and training that is subject to a training agreement, or a training contract, that takes effect
under a law of a State or Territory relating to the training of employees.”
[77] Section 142 was also the subject of submissions by the parties. It deals with incidental
and machinery terms which may be included in an award. The power in s.142(1) to include
incidental terms was given particular attention by the employers. That subsection reads as
follows:
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“142 Incidental and machinery terms
Incidental terms
(1) A modern award may include terms that are:
(a) incidental to a term that is permitted or required to be in the modern award;
and
(b) essential for the purpose of making a particular term operate in a practical
way”.
[78] As we have earlier indicated the ACTU submitted that each of the claims made were
about matters which could be included in modern awards. This submission addressed the
terms of s.139 and various other sections of the Act, as well as regulations which deal with
the way in which the Act interacts with certain State and Territory laws. Before we turn to
those provisions of the Act we should first deal with an issue concerning wages rates.
[79] In so far as the claims made concern increases to the minimum wages to be paid to
apprentices there is no basis for any jurisdictional objection to our entertaining such claims.
Any challenges that are made are more appropriately dealt with by reference to the
considerations that guide this Transitional Review, namely, whether the awards the subject of
applications before us are achieving the modern awards and minimum wages objectives.
Those considerations are addressed later in this decision. However, there is an issue which
arises out of the wording of a number of claims relating to the wage to be paid to an
employee, either a junior or an adult, who is in employment with an employer prior to
entering into an apprenticeship. The claims are expressed in a number of ways. They include a
requirement that the existing rate of pay is to continue; that the minimum wage applying to
the classification in which the person was engaged immediately prior to entering the training
contract is to continue; and the wage they were receiving immediately prior to entering into
the training contract is to continue. The particular concern raised by the employers relates to
any wording in these clauses which has the effect of obliging an employer to continue to pay
an actual rate that an employee may be receiving. They submit that such a provision is not
consistent with either the modern awards objective of providing a fair and relevant minimum
safety net or the minimum wages objective of establishing and maintaining a safety net of fair
minimum wages. We agree that the insertion of a new provision to require the continuation of
the actual rate of pay upon commencement of an apprenticeship would not be consistent with
those objectives. Any application we consider is justified on the merits to allow an existing
employee to retain a particular rate upon entering into a contract of training will be referable
to a minimum wage rate for a classification in the award.
[80] We turn now to consider s.139 of the Act. The ACTU submitted that the construction
of this section should be informed by a number of decisions of the Australian Industrial
Relations Commission (AIRC) in which the provisions of s.89A of the WR Act were
considered. That section provided that industrial disputes which the AIRC could deal with
were “normally limited to allowable award matters.” An award made in settlement of a
dispute could only contain matters which were in s.89A. Section 89A(2) listed the matters
which were allowable award matters. A number of those matters were described in terms
which are the same as or similar to those now contained in s.139 of the Act.
[2013] FWCFB 5411
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[81] We refer first to the Full Bench decision in Re Commonwealth Bank of Australia
Officers Award 199040 and its consideration of s.89A of the WR Act. The Full Bench had
before it an application by the Finance Sector Union to vary an award concerning the
employer’s obligation to provide workers compensation accident make-up pay, allowances
and other benefits. The Full Bench referred to a number of the demands contained in the log
of claims which had given rise to the dispute in respect of which the award variation was
sought. The employer argued that the matters sought were outside the ambit of the dispute
and, in any event, not matters referred to in s.89A which could be contained in any award in
settlement of the dispute. About s.89A the Full Bench said:
“The list of allowable award matters is comprised of concepts of particular kinds of award
benefits and conditions of employment. The construction of section 89A(2) demands that each
concept be given a meaning consistent with the use of the concept in industrial relations
practice in Australia. In its context, section 89A is not a provision for which there is need for
either a restrictive or a generous construction. The terms in it are to be given their ordinary
meaning having regard to industrial relations usage. Most of the allowable award matters listed
are industrial concepts formulated around entitlements and conditions of employment
ubiquitously the subject of award provisions in State and federal industrial jurisdictions. Even
within the standard award concepts, the formulation of an award provision covering
employment entitlements and conditions has long allowed room for craft and drafting skills.
Conceivably, some conditions of employment could be formulated in sufficiently various ways
to bring the condition within one, another, or more than one of the allowable award matters.
The categories of allowable award matters are not mutually exclusive. We accept Mr Cairns'
submission to the effect that some conditions of employment will combine or imply elements
from special specific allowable award matters. Thus, a higher duty allowance or the once
standard ‘mixed functions’ provision combines elements of allowances and rates of pay.
However, it is generally the case that established award provisions are of a sufficiently
standard content and form to be identifiable as coming within one or, occasionally, more of the
allowable award categories, or as not coming within the category at all.”41
[82] This extract was adopted by a Full Bench in Re The Hospitality Industry -
Accommodation, Hotels, Resorts and Gaming Award 199542 (Hospitality Decision) when it
was required to construe the terms of s.89A. That decision was what was described as an
award simplification decision.43 The Full Bench was required to consider the terms of the
award and, amongst other things, ensure that it concerned only allowable award matters.
[83] The AMWU next took us to a decision of Senior Deputy President Marsh in 1998 in
Re Metal Industry Award 1984 - Part 1.44 It submitted that this decision supported its
contention that “training and apprenticeships are matters that fall within or are incidental to
matters in s.139”.45 We observe that this decision was also an award simplification decision.
In it her Honour decided that clauses dealing with probationary employment (both generally
and for apprentices), apprentices (including adult apprentices), the training contract and State
laws relating to apprentices, the cancellation or suspension of the contract of apprenticeship,
40 (1997) 74 IR 446.
41 Ibid at Part 4.4.
42 (1997) 75 IR 272 at 276.
43 These were decisions that arose out of the provisions of Schedule 5, Item 49 of the Workplace Relations and Other
Legislation Amendment Act 1996.
44 AIRC Print P9311, 11 March 1998 (Metals Award Simplification Decision).
45 Exhibit T12, p.2; Exhibit T33.
[2013] FWCFB 5411
25
the reimbursement of training college fees, constraints on apprentices under 18 years old
working overtime or shifts, the making up of lost time and the payment of training costs
including travel costs associated with training were all allowable under s.89A of the WR
Act.46 We accept the AMWU submission that the range of provisions there considered by her
Honour raised considerations similar to those before this Full Bench. We note that in arriving
at her decision heavy reliance was placed on the findings in the Hospitality Decision where
comparable clauses had been found to be either allowable or incidental and necessary. An
important exception however was to a claim made concerning training of apprentices. Senior
Deputy President Marsh considered that claim in detail, noting that the Hospitality Decision
had not exhaustively dealt with a comparable claim.
[84] We note that many of the provisions being considered in that case were supported by
both the unions and the principal employer party to the award. Those which were opposed
were generally challenged by the Commonwealth and ACCI. However the award made
following her Honour’s decision, then called the Metal, Engineering and Associated
Industries Award 1998, contained clauses dealing with apprentices and the training contract
which today remain in the Manufacturing Award. That award was made by a Full Bench
which was obliged to consider the terms of s.576J of the WR Act, which is the predecessor to
s.139 of the Act and in the same terms.
[85] We next refer to decisions which gave particular attention to the term “type of
employment” which was one of the allowable matters in s.89A of the WR Act. Section
89A(2) relevantly provided as follows:
“89A Scope of industrial disputes
...
Allowable award matters
(2) For the purposes of subsection (1) the matters are as follows:
...
(r) type of employment, such as full-time employment, casual employment,
regular part-time employment and shift work...”
[86] The ACTU submitted that the term “type of employment” in s.139(1)(b) is sufficiently
broad to encompass the claims sought by the unions. We note that the ACTU submitted that if
we did not accept that term was sufficiently broad then, in the alternative, it was clear that all
of the claims were encompassed within one or other of the various matters referred to in
s.139(1) and by s.142 and s.55(4) of the Act.47
[87] In support of its submission about the construction we should place on the term “type
of employment” in s.139(1)(b), the ACTU referred to the Full Bench decision in Re National
Tertiary Education Union (the HECE Award Case).48 That decision concerned the content of
46 Metals Award Simplification Decision at pp. 21-42.
47 Exhibit ACTU 5, para 5.
48 AIRC Print Q0702 (11 May 1998); [1998] AIRC 589.
[2013] FWCFB 5411
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a new award the AIRC was considering and the employer’s challenges to certain of the
proposed clauses on a number of bases, one being they were not about any of the allowable
award matters in s.89A of the WR Act. When commenting upon a clause that might be
awarded to deal with duties on an employer to use specified types of employment, the Full
Bench said:
“Clause 2 of the [Higher Education Contract of Employment Award 1998] links the duty on the
employer to use the specified types of employment with the notion of contract of employment.
Perhaps that clause could provide to similar effect and be entitled ‘Types of Employment’. In
the past, awards have almost generally included a contract of employment clause. Despite that,
the list of allowable award matters makes no reference to contract of employment provisions
as a distinct class of allowable matter. We are unable to conceive how the allowable matter
“types of employment” could be effectively dealt with by an award that did not purport to
impinge directly on the contract of employment to be entered into between an employer and an
employee subject to the award. Indeed, a ‘type’ or ‘category’ of employment may be
conceived to be an elliptical expression covering a type of contract of employment. For that,
and other reasons, we conclude that some provision about contract of employment is incidental
to the allowable award matters dealt with and sufficiently necessary to their effective operation
for it to be appropriate for the award in this instance. We have formulated the substantive
award provisions as far as practicable in terms of duties on the employer, or rights of
employees...”49
[88] A further relevant extract from the HECE Award Case is referred to in the next Full
Bench decision we were taken to. In Qantas Airways Ltd v Australian Municipal,
Administrative, Clerical and Services Union50 (Qantas v ASU) a Full Bench of the AIRC
considered an appeal against a decision that a dispute about job sharing was one which the
AIRC could arbitrate and that it was about an allowable matter in terms of s.89A of the WR
Act. The Full Bench said that it was not persuaded that Commissioner Whelan was in error in
ruling that job sharing was a type of employment in the same way as regular part-time
employment was a type of employment and was therefore allowable under s.89A. The ACTU
submitted that apprenticeships are no different to job sharing and that this decision should
guide us in our approach to interpreting what is encompassed by “type of employment”. The
Full Bench in Qantas v ASU said:
“[56] As the Full Bench observed in the HECE Award Case, “a ‘type’ or ‘category’ of
employment may be conceived to be an elliptical expression covering a type of contract of
employment”. The industrial connotations of types of employment were explained in several
passages which are relevantly applicable to the issue raised by this appeal:
‘It is clear also that included within the allowable award matters is the stipulation in
awards of “type of employment”, or, more commonly, “categories of employment”.
The latter expression has a well established use in relation to Commonwealth
industrial legislation. It describes different classes of employment arranged in
categories based upon the incidents or the terms and conditions of the employment.
We read the reference to type of employment as meaning much the same thing. In
section 89A(2)(r), the Act envisages award provision for different types of
employment based in particular upon the term of employment and the hours worked...
49 Ibid at Part 4.2.
50 AIRC Print T0301 (7 September 2000); [2000] AIRC 290.
[2013] FWCFB 5411
27
However the identification of “a particular type of employment” can in practice be
more of an exercise of a judgment formed around inferences and assessment of
relative conditions than an outcome derived by the application of definitional
precision...
Any category or type of employment acquires meaning from the rights, duties and
privileges incidental to inclusion in the category. Thus, continuing employment, or
“tenure” as a distinguishable form of it, is constituted by an assemblage of rights and
privileges. Some of them may be common to other categories of employment.
Essentially the Commission and the parties in a case of this nature must address the
differential rights in each of the categories.’”
[89] The ACTU next referred to the Full Bench decision in AMWU re application to vary
the Metal, Engineering and Associated Industries Award 1998,51 a decision which it
submitted made similar observations about the construction to be placed on the term “type of
employment” in s.89A(2)(r) of the WR Act. In that matter the Full Bench of the AIRC was
considering variations to the award in respect to casual and part-time employees. The extract
from the decision relied upon by the ACTU is as follows:
“2.2 The function and incidents of casual employment as a type or category of
employment under the Award:
[9] Types of employment provided for in an award are foundational to the award's
regime, and therefore to the award safety net. The expressions ‘categories of employment’ and
‘types of employment’ in industrial jargon refer to types of contract of employment. A type of
employment specified in an award is the subject to which the terms and conditions for that
type of employment are awarded. Usually an award applies to one or more main or primary
types of employment; each other type, in concept at least, is exempt from some or all of the
conditions awarded to apply to the primary category or categories. For purposes of the Award,
weekly hire, in effect a form of continuing employment for standard hours, has long been the
primary category provided for under the Award's predecessors. Each other type of
employment may be seen as a response to operational, employment market, or perhaps special
case needs. Those needs have been met by making provision as the need arose for the extra
type of employment contract to which specific exemptions or peculiar conditions were then
awarded. The reasons for having a category of employment should be distinguished from the
reasons for awarding exemptions or differential conditions to apply to the supplementary
category. Aspects of the use later made of a category in the industry can also be distinguished
from each of those reasons. Those distinctions appear not always to have been kept in mind in
some of the cases or analysis dealing with particular types of employment.”52
[90] The Full Bench returned again to these considerations at paragraph [69] and said:
“[69] As we have noted at paragraph 9 above, type or category of employment is a concept
that goes to the regulatory role of awards. The types of employment provided for in an award
may vary over time. Moreover, a type of employment, for instance hourly hire employment,
may at one stage be sparsely used. Or, at times it may have well understood operational
characteristics extrinsic to the award provisions about it. However, the concept is the type of
employment: the incidents of the legal relationship under contracts of service in that category.
Type of work requirement, or the kind of circumstances in which a type of employment may be
51 AIRC Print T4991 (29 December 2000); [2000] AIRC 722.
52 Ibid at [9].
[2013] FWCFB 5411
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used initially or eventually, are not definitive of the type of employment. Such requirements,
circumstances or even type of demand for a particular categories [sic] of employment may
explain or justify its existence, or be relevant to the determination of some of its incidents.
However, unless imported into the terms constituting the category itself, such considerations
do not define the category, or even limit its use under the Award.”
[91] Relying on the above decisions, the ACTU submitted there could be little doubt that
employment as an apprentice is a type of employment. It also followed that the claims made
relating to disputes concerning the training contract, restricting, suspending, limiting or
extending the training contract, probation and the obligation to provide training are all
intrinsically bound up in the notion of the category of apprentice employment. If the training
contract is removed (terminated or cancelled) or if there is no training there can be no
category of apprentice employment. Those things, it submitted, are fundamental. The purpose
of the provisions concerning these matters is to define and maintain the integrity of the terms
of the modern awards in question that provide for apprentice employment.53
[92] The ACTU submitted that if we had any doubt about the breadth of the term “type of
employment” or that it was not a sufficient source of power, then any one or combination of
the following provisions in the Act would provide power. It identified ss.139(1)(a)(i),
139(1)(c), 139(1)(g), 139(1)(h) and 139(1)(j). Additionally it relied on s.142 to the extent any
provision was incidental to a permitted term and essential to make the particular term operate
in a practical way. Finally, it relied on s.55(4) which allows a term which is ancillary or
incidental to the operation of an entitlement under the NES or that supplements the NES.
[93] The employer submissions were wide ranging, some taking objection to all clauses
other than those dealing with minimum wages and some allowances and others challenging
only some of the particular clauses dealing with and relating to the training contract. We do
not propose to refer separately to each individual employer submission. We think the matters
raised can be fairly summarised in the following way:
It was submitted that apprentices are not encompassed by s.139(1)(b). The specific
references there to full-time, part-time and casual employment qualify the meaning
of “type of employment”. The use of the words “such as” means that they form a
particular class or genus. They are all categories which are defined by the amount
and frequency of the hours worked. Accordingly, it was submitted, the term “type of
employment” should be limited to categories of work which are defined by reference
to working hours. An apprenticeship is not so defined. It is characterised by the
existence of a training contract.
The construction the ACTU places on the term “type of employment” in s.139(1)(b)
is too broad and goes beyond the ordinary meaning of the words. To adopt the
ACTU construction would have the effect of rendering many of the remaining
provisions of s.139(1) pointless.
If the Commission was satisfied that the term “type of employment” encompassed
apprenticeships, then nonetheless the Commission may not proceed to regulate any
matters which may potentially be relevant to or impact upon an apprenticeship.
53 Exhibit ACTU11, para 6.
[2013] FWCFB 5411
29
A distinction is to be drawn between an apprentice’s training contract and the
contract of employment. A modern award can deal with the apprentice’s contract of
employment but not the training contract. Provisions which relate to the operation of
the training contract or training arrangements do not come within any of the matters
which ss.136-139(1) allow to be included in an award. In this respect the union
claims that concern probation, mentoring and supervision, provision of relevant
work, suspension, cancellation or termination of the training contract and constraints
on the type of work that can be done are terms which modern awards may not
include.
Insofar as the ACTU relies on s.139(1)(j), that section only relates to procedures for
consultation etc and it should not be read broadly so as to permit the inclusion of
provisions in an award which would not otherwise be permitted for the purposes
only of allowing the matter to be the subject of consultation and/or dispute
settlement.
Section 142 should be read as providing a relatively narrow basis for the inclusion of
award terms. It only allows a term to be included if it is incidental to, and essential
for, the operation of another term of the award that is within power.
[94] We have carefully considered all the submissions relating to whether the various
clauses sought by the ACTU and the unions can be included in modern awards.
[95] We accept the ACTU submissions as to the approach that we should take to the
interpretation of s.139 of the Act. The terms of the section are to be given their ordinary
meaning and there is no warrant for a restrictive construction to be placed on any of them. In
our opinion, the Commission’s powers being to include “terms about” the matters listed in
s.139(1) gives no support to approaching the construction of the section in any other manner.
[96] We are not persuaded that the term “type of employment” in s.139(1)(b) should be
constrained or read down in the manner that some employers contend. We do not accept that
the categories which may come within that term are defined or qualified by the hours of work
persons in them undertake. The examples given in s.139(1)(b) are just that, only examples,
and provide no basis to constrain the potential scope of the term. In fact, even the examples
given are not confined to categories of employment which might have suggested that the
hours worked by such persons was intended to be the defining characteristic of the type of
award terms that s.139(1)(b) allows to be made. Section 139(1)(b) refers to facilitation of
flexible working arrangements, which clearly allows for terms in an award dealing with
matters beyond just hours of engagement. In any event, hours of work is specifically dealt
with in ss.139(1)(c) and (e), suggesting that hours worked is not the defining characteristic of
the breadth of categories of employment which s.139(1)(b) may envisage.
[97] In our opinion, “type of employment” in s.139(1)(b) is to be read as describing
different kinds or classes of employment that may be arranged into categories based upon the
incidents, terms or conditions of the employment in question. Each type of employment will
take its character from the rights, duties, obligations and privileges that attach to it. In the case
of apprenticeship, which we accept is a type of employment, the rights, duties and obligations
will involve the existence of a training contract and obligations on an employer associated
with the provision of training to the employee. There can be no real or legal category of
[2013] FWCFB 5411
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apprentice employment if the provision of training is not involved. Award clauses dealing
with the circumstances in which training is to be provided to apprentices, and will continue,
are terms about that type of employment. Putting to one side issues relating to the drafting of
the clauses, which can give rise to argument as to whether a term remains in or falls outside of
those envisaged by s.139, it is open to us, in the sense we have jurisdiction, to consider the
subject matters referred to in the common claims. As we have earlier indicated, those
common claims deal with the need for a training contract and provision of appropriate
training and other obligations of both parties under it, disputes about the training contract,
suspending, limiting or extending the training contract and probation of an apprentice.
[98] Some of the employers submitted that if we were to adopt the ACTU’s construction of
the relevant provisions of the Act, it will deprive other provisions of the Act of work to do.
We do not agree, and in this respect adopt the ACTU’s observations about that submission.
There will remain many matters affecting training that would not properly be dealt with in a
modern award. Provisions in State and Territory legislation that concern a number of aspects
of training arrangements would not be capable of inclusion within modern awards because
they do not define or regulate what employment as an apprentice is and what rights or
obligations attach to it. Examples given include “training standards established nationally, the
identity of the training provider [and] the availability of a traineeship itself”.54
[99] We have earlier observed that many of the terms used in s.139 were contained in
s.89A of the WR Act and have been considered in a number of AIRC decisions. Unless we
are persuaded that the interpretation of the relevant provisions given in those decisions was
clearly wrong it is appropriate that we follow them. In this case we have not been persuaded
that the approach taken in the decisions relied upon by the ACTU was wrong. It is also
relevant that following those decisions, particularly of Full Benches, the Parliament chose to
use in legislation replacing the WR Act, namely the Act, similar, and in some cases the same
words and terms.
[100] The ACTU submitted that if there was any doubt that the provisions sought to be
included in the various modern awards were not terms about a type of employment, then such
provisions were able to be included by virtue of the other provisions of s.139 which we have
listed earlier in paragraph [92]. We do not propose to deal with this submission here. Should it
be necessary to consider those other provisions when dealing with particular claims, we refer
to them in that part of this decision which addresses the particular provision. Similarly, and if
necessary, we refer there to any provisions which may be justified on the basis they are
incidental and essential to matters in s.139.
[101] We should, however, say something about s.142(1), which allows terms to be included
in an award that are incidental to a term that is permitted or required to be in an award and
which is essential to make the particular term operate in a practical way. The terms of this
section are to be contrasted with s.89A(6) of the WR Act. That section provided that the
AIRC “may include in an award provisions that are incidental to the matters in subsection (2)
and necessary for the effective operation of the award”. We agree with the submission of the
employers that s.142(1) provides only a relatively narrow basis for the inclusion of award
terms. It is not in itself an additional power for the inclusion of any terms that cannot be
appropriately linked back to a term that is permitted by s.139(1). The use of the word
54 Ibid para 7.
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“essential” suggests that the term needs to be “absolutely indispensable or necessary” for the
permitted term to operate in a practical way. The wording of the section suggests that it
provides a more limited power to include terms than that of its earlier counterpart in s.89A(6).
[102] The ruling in this section of our decision should not be taken to have endorsed as
being within power all of the terms contained in the many variations sought. In this part of the
decision, we are only dealing with whether the subject matter of those variations can be
included in a modern award. If necessary, we will deal with the terms of any variation that we
are prepared to make when we deal with the particular application. Finally, we note that the
ACTU submitted that the claims made may be supportable as being, in terms of s.55(4),
ancillary, incidental or supplementary to the NES. It did not make any further submission
aligning particular provisions sought with corresponding provisions of the NES. There is no
need to say more about s.55(4) in this part of the decision. If s.55(4) is relevant to a particular
claim, we refer to it when dealing with that claim.
(ii) Applicability of s.135 to the review
[103] Although it is not strictly correct to describe the challenge made by some of the
employers, relying upon the provisions of s.135 of the Act, as a jurisdictional challenge, it is
appropriate to deal with it in this part of our decision. Section 135 is contained within Part 2-3
of the Act, which is titled “Modern Awards”. It is s.135(1) in particular that is relevant to this
challenge. That subsection is in these terms:
“135 Special provisions relating to modern award minimum wages
(1) Modern award minimum wages cannot be varied under this Part except as follows:
(a) modern award minimum wages can be varied if the FWC is satisfied that the
variation is justified by work value reasons (see subsections 156(3) and 157(2));
(b) modern award minimum wages can be varied under section 160 (which deals
with variation to remove ambiguities or correct errors) or section 161 (which deals
with variation on referral by the Australian Human Rights Commission).
Note 1: The main power to vary modern award minimum wages is in annual wage
reviews under Part 2-6. Modern award minimum wages can also be set or revoked in
annual wage reviews...”
[104] The employers submitted that we must take s.135 into account insofar as the
applications before us seek to vary the minimum award wages of apprentices. As the unions
were seeking a comprehensive review of modern award wages it was submitted that we must
be satisfied that the variations are justified by work value reasons. It was said that the ACTU
and the unions had not addressed the issue of work value and there was little evidence that
justified any increases on that basis.
[105] For the reasons given by the ACTU55 we are not persuaded that s.135 applies to the
Transitional Review. That section relates to variations of awards under Part 2-3 of the Act.
This decision relates to the review of the various awards required by Item 6, Schedule 5 to the
55 Exhibit ACTU5, para 16.
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32
Transitional Provisions Act. The considerations we must take into account are contained in
that schedule; s.135 is not referred to.56
(iii) Interaction with State and Territory laws
[106] We next refer to what is described in the Act and the Fair Work Regulations 2009 (the
Regulations)57 as interaction provisions. They are ss.26 to 29 of the Act and regulations 1.13
to 1.15. They concern the way in which provisions in the Act and identified provisions in
State and Territory legislation are to operate. The employers submitted that the provisions
operated to constrain or limit the terms which the Commission is empowered to include in
modern awards. We are not persuaded that they operate in such a manner. They do not limit
either the jurisdiction or the power of the Commission to include the terms in an award as
sought by the unions. However, they are very relevant for us to consider when exercising any
discretion we have about whether a particular term should be included. We should refer to the
relevant provisions of the Act and the regulations.
[107] Section 26(1) of the Act states as follows:
“26 Act excludes State or Territory industrial laws
(1) This Act is intended to apply to the exclusion of all State or Territory industrial laws
so far as they would otherwise apply in relation to a national system employee or a national
system employer.”
[108] The section reflects the legislative intention that the Act “cover the field” in relation to
industrial laws applicable to national system employees and employers, to the exclusion of
State and Territory legislation. Section 26(2) defines the types of laws that are encompassed
by the phrase “State or Territory industrial laws”. Section 27 then provides for State and
Territory laws that are not excluded by s.26. It saves the operation of laws identified in it. It
reads as follows:
“27 State and Territory laws that are not excluded by section 26
...
(1) Section 26 does not apply to a law of a State or Territory so far as:
(b) the law is prescribed by the regulations as a law to which section 26 does not
apply; or
(c) the law deals with any non-excluded matters; or
(d) the law deals with rights or remedies incidental to:
(i) any law referred to in subsection (1A); or
(ii) any matter dealt with by a law to which paragraph (b) applies; or
56 See also Modern Awards Review 2012 [2012] FWAFB 5600 at [38].
57 Unless otherwise indicated, any reference in this decision to a ‘regulation’ is a reference to the relevant part of the
Regulations.
[2013] FWCFB 5411
33
(iii) any non-excluded matters.
Note: Examples of incidental matters covered by paragraph (d) are entry to
premises for a purpose connected with workers compensation, occupational
health and safety or outworkers.
(2) The non-excluded matters are as follows:
...
(f) training arrangements, except in relation to terms and conditions of
employment to the extent that those terms and conditions are provided for by the
National Employment Standards or may be included in a modern award;”
[109] The effect of ss.27(1) and 27(2) is to remove matters from the field of the intended
exclusive coverage of the Act described in s.26. The Act is not intended to cover the field
with respect to the State and Territory laws referred to in s.27(1) and (2).
[110] Section 27(1)(b) allows regulations to be made prescribing additional State and
Territory laws that are saved. Regulation 1.13 is a regulation made as envisaged by s.27. It
states:
“1.13 State and Territory laws that are not excluded by section 26 of the Act--
prescribed laws
For paragraph 27(1)(b) of the Act, each of the following laws of a State or Territory is a law to
which section 26 of the Act does not apply:
(a) a law dealing with the suspension, cancellation or termination of a training contract;
(aa) a law dealing with the suspension, cancellation or termination of a contract of
employment that is:
(i) associated with a training contract; and
(ii) entered into as part of a training arrangement;
(b) a law dealing with a period of probation of an employee that:
(i) is part of a training arrangement; but
(ii) is not a period of probationary employment; ...
Note Under subsection 27 (1) of the Act, section 26 of the Act does not apply to a law of a
State or Territory so far as the law is prescribed by the regulations as a law to which section 26
does not apply.”
[111] The effect of s.27(1)(b) and regulation 1.13 is that State and Territory laws dealing
with suspension, cancellation or termination of a training contract; or with the suspension,
cancellation or termination of a contract of employment associated with a training contract
and entered into as part of a training arrangement; or with or a period of probation under a
training arrangement, are not excluded by s.26 and therefore can continue to operate. This is
[2013] FWCFB 5411
34
generally consistent with the way in which the effect of s.27 and regulation 1.13 is explained
in the Explanatory Statement which accompanied the Regulations.58
[112] The effect of s.27(1)(c) and s.27(2)(f) is that it is not intended that the Act operate to
the exclusion of State and Territory legislation with respect to training arrangements (as
qualified by the subsection). State and Territory laws dealing with training arrangements are
saved under ss.27(1)(c) and 27(2)(f), but not to the extent that they deal with terms and
conditions of employment that are provided for by the NES or may be included in a modern
award.
[113] Section 28 of the Act allows for the Regulations to prescribe additional State and
Territory laws that are excluded. Regulation 1.14 provides that:
“1.14 Act excludes prescribed State and Territory laws
For subsection 28(1) of the Act, each of the following laws of a State or Territory is
prescribed: ...
(b) a law relating to training arrangements, to the extent to which it deals with terms and
conditions of employment that:
(i) are provided for by the National Employment Standards; or
(ii) may be included in a modern award; or
(iii) may be included in an enterprise agreement under section 55 of the Act; ...
Note Under subsection 28 (1) of the Act, the Act is intended to apply to the exclusion of a
law of a State or Territory that is prescribed by the regulations.”
[114] The effect of s.28 and regulation 1.14 is that the Act applies to the exclusion of State
and Territory legislation relating to training arrangements to the extent that it deals with the
terms and conditions of employment that may be included in a modern award, where there is a
direct inconsistency between the provisions of the Act and State or Territory legislation. If the
Commission can provide for something in a modern award relating to training arrangements,
a term about the type of employment of apprentices or about other matters that have been
identified above, these provisions override any State or Territory law that deals with the same
matter.
[115] Section 29 of the Act is in these terms:
“29 Interaction of modern awards and enterprise agreements with State and
Territory laws
(1) A modern award or enterprise agreement prevails over a law of a State or Territory, to
the extent of any inconsistency.
(2) Despite subsection (1), a term of a modern award or enterprise agreement applies
subject to the following: ...
58 Explanatory Statement, Fair Work Regulations 2009 at [29]-[32].
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(b) any law of a State or Territory so far as it is covered by paragraph 27(1)(b),
(c) or (d).
(3) Despite subsection (2), a term of a modern award or enterprise agreement does not
apply subject to a law of a State or Territory that is prescribed by the regulations as a law to
which modern awards and enterprise agreements are not subject.”
[116] Regulation 1.15 provides:
“1.15 Interaction of modern awards and enterprise agreements with State and
Territory laws
For subsection 29(3) of the Act, each of the following laws of a State or Territory is
prescribed: ...
(b) a law relating to training arrangements, to the extent to which it deals with terms and
conditions of employment that:
(i) are provided for by the National Employment Standards; or
(ii) may be included in a modern award; or
(iii) may be included in an enterprise agreement under section 55 of the Act;
Note Under subsection 29 (3) of the Act, a term of a modern award or enterprise agreement
does not apply subject to a law of a State or Territory that is prescribed by the regulations as a
law to which modern awards and enterprise agreements are not subject.”
[117] The effect of ss.29(1) and 29(2) is that a modern award prevails over State and
Territory legislation to the extent of any inconsistency. However, State and Territory
legislation dealing with suspension, cancellation or termination of a training contract; or with
the suspension, cancellation or termination of a contract of employment associated with a
training contract and entered into as part of a training arrangement; or with or a period of
probation under a training arrangement, is not excluded and therefore can operate alongside
modern awards. Modern awards can therefore supplement the laws of a State or Territory
insofar as the laws deal with those matters. The explanatory memorandum59 describes the
effect of ss.27 and 29(2) as being “that a modern award or enterprise agreement is subject to
any of the State or Territory laws that are saved by clause 27, as well as any State or Territory
laws prescribed by the regulations. This means that a modern award or enterprise agreement
cannot diminish, but may supplement, rights and obligations under these laws”.
[118] Some of the interaction provisions were considered by a Full Bench in Master
Builders Australia Ltd re Award Modernisation Review.60 That decision arose out of the
Transitional Review of the Building Award. A large number of applications to vary the award
had been made. One of the applications made by MBA was to remove provisions which
regulated OHS on the ground that they were not lawful and accordingly should not be
contained in a modern award. The Full Bench described the contention of MBA as being that
59 Explanatory Memorandum, Fair Work Bill 2008 at [149].
60 [2012] FWAFB 10080.
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the Act does not displace OHS laws of the States and Territories and that modern awards do
not, and should not, have the function or purpose of directly regulating OHS.61 The Full
Bench referred to MBA’s argument relying as it had on the provisions of ss.27 and 29 for its
proposal that “... the provisions of a modern award would apply subject to any OHS law of a
State or Territory because OHS is mentioned in s.27(2)(c) which is a non-excluded matter as
expressed in s.27(1)(c). Hence, the general provisions of the Act clearly do not contemplate
that the Act’s jurisdiction will encompass regulation of OHS but that State and Territory laws
will prevail.”62 Similarly, a challenge was made to FWA’s power to include consultation,
representation and dispute settlement clauses in so far as they related to OHS matters. It was
submitted that they cannot be included in modern awards.63 The Full Bench considered the
provisions of ss.27 and 29 of the Act and said:
“[55] Provided that a modern award term must or may be included in modern awards under
Division 3 of Part 2-3 of the Act, its inclusion is lawful, even if it reduces an entitlement under
the relevant State and Territory legislation saved by s.27. Division 2 of Part 1-3 of the Act does
not render such a term unlawful, rather it renders the provision to be of no legal effect.
Although it is unnecessary, we note for completeness, we are not persuaded that any of the
provisions identified by the MBA in the On-site Award or other modern awards reduces an
entitlement under the relevant State and Territory legislation saved by s.27.
[56] It is clear that Division 2 of Part 1-3 of the Act does not deal with the lawfulness of
the content in modern awards or any other instruments made under the Act. Its purpose is to
provide interaction rules to operate in conjunction with ss.109 and 122 of The Constitution,
with s.26 providing an express statement of an intention to cover a field and s.27 setting out
the exceptions to that exclusivity set out in s.26. Sections 26 to 30 are not directed to nor have
the effect of enlarging or confining the matters which may lawfully be contained in a modern
award. They are concerned with resolving issues relating to inconsistency of laws under s.109
of The Constitution and have nothing to do with the lawfulness or otherwise of what may be
contained in a modern award.”
[119] We agree with those comments. Our interpretation of the various sections of the Act
and the Regulations is consistent with them. We observe however that despite our finding that
the interaction rules do not operate to preclude jurisdiction or power to entertain the subject
matters of the variations sought by the unions, we acknowledge the force of the employers’
submissions that these provisions require attention be given to significant discretionary
considerations. We also accept that a cautious approach should be taken before including new
terms concerning apprentices in a modern award which may have the effect of overriding
State and Territory legislation.
C. ACTU AND UNION CLAIMS
[120] The main claims by the ACTU and the unions seek improvements in wages and
conditions of employment for apprentices under the relevant modern awards.64
61 Ibid at [8].
62 Ibid at [9].
63 Ibid at [13].
64 Set out at Exhibit ACTU4, p.4 para 24.
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[121] The ACTU application was confined to the issue of apprentice wages for apprentices
and adult apprentices. The claims are:
to raise the first year (or stage one) apprentice rate so as to equate to 60% of the C10
or equivalent adult trades classification;
for adult apprentices - those aged 20 years or older - to be paid no less than the rate
for the lowest adult classification in the award or the apprentice rate prescribed for
the relevant year or stage, whichever is the greater; and
for adult apprentices who were employed in their workplace prior to becoming an
apprentice not to suffer a reduction in pay.
[122] The AMWU, CEPU and CFMEU supported the ACTU wage claims.65
[123] The unions also sought to make changes in relation to conditions of employment and
training arrangements for apprentices. These related to competency based wage progression,
payment for off-the-job training and associated fees and expenses, training requirements,
suspension and cancellation of training contracts and recognition of service, probation, and
dispute resolution.
[124] We now turn to deal with the various claims.
(i) Apprentice rates of pay
[125] The ACTU and the unions seek to increase the first year apprentice rate of pay across
all relevant modern awards to 60% of the C10 or equivalent adult trades classification.
Following the 2013 adjustments to award rates of pay,66 this would provide a first year
apprentice rate of $434.70 per week or $11.44 per hour.67
[126] The ACTU did not make a specific claim in relation to rates of pay for second, third or
fourth year apprentices. It was submitted that the percentages for these apprentices should be
adjusted taking into account any increase applied to the first year rate.
[127] A summary of apprenticeship wage provisions in the modern awards covered by the
union applications was provided to the Commission. Some of the key features of the
provisions are as follows:
In a majority of awards, apprentice wages are determined as a fixed percentage of
the tradesperson’s rate for each year or stage of the apprenticeship;
65 The ACTU application and submissions were also supported by the joint applicant unions (see fn. 4), as well as the
Maritime Union of Australia and the Textile, Clothing and Footwear Union of Australia.
66 Annual Wage Review 2012-13 [2013] FWCFB 4000.
67 In awards where the C10 trade rate is not the relevant adult rate for the purpose of determining apprentice wages, the
ACTU sought that the first year apprentice rate should also be $434.70, although expressed as an appropriate percentage
of the relevant benchmark classification in the relevant award.
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Many awards refer to the C10 or equivalent trade classification as the benchmark
rate for determining apprentice pay;
There is a diversity of percentage wage rates for apprentices across awards, although
some typical wage structures can be identified (e.g. a four year wage structure of
42% - 55% - 75% - 88% in ten of the 46 awards);
The first year wage rates for four year apprenticeships range from 35% for
apprentices in the first three months of their first year under the Hair and Beauty
Industry Award 2010 to a starting rate of 55% in five modern awards;68
There is similar diversity in the rates for the subsequent years or stages of a four year
apprenticeship, with second year rates ranging from 55% to 65%, third year rates
from 75% to 85%, and fourth year rates from 82% to 95%; and
Some modern awards, particularly those covering the building trades, also provide
for three year apprenticeships with rates starting from 45% to 55% in the first year
and going through to 90% in the third year.
[128] The ACTU referred to evidence and research relating to the extent of over-award
payments to apprentices. This included an examination of over-award payments conducted by
the NCVER as part of the research programme underpinning the Expert Panel report.69 The
examination found that most apprentices in trade occupations receive over-award payments,
but with substantial variation by occupation. According to the NCVER research, in total
36.3% of apprentices are on award rates with the remaining 63.7% earning above the award.
This finding was said by the ACTU to be broadly consistent with the results of an earlier
survey by the Australian Chamber of Commerce and Industry in 2005,70 which found that a
majority of their employer members paid some or all of their apprentices above-award wages.
In relation to first year apprentices, the NCVER research found that only 22.4% were paid the
award rate, with the remainder being paid above the award.71
[129] The ACTU also referred to the range of government payments and incentives available
for employers of apprentices and trainees and directly to apprentices and trainees.72 It was
noted that some apprentices may also be eligible for other government benefits or allowances,
such as Youth Allowance. However the ACTU said that very few apprentices were entitled to
Youth Allowance and that the most common form of ongoing assistance received was living
away from home allowance.73
68 The Hospitality Industry (General) Award 2010, the Miscellaneous Award 2010, the Registered and Licensed Clubs Award
2010, the Restaurant Industry Award 2010, and the Higher Education Industry - General Staff - Award 2010.
69 NCVER Report 3, pp.50-58.
70 ‘Paying Apprentices: The Market Responds’, ACCI Review, February 2005, pp.5-9.
71 NCVER Report 3, p.54, table 16.
72 See “Summary of the current Australian Apprenticeships Incentives Program” as at 1 January 2011: Apprenticeship Expert
Panel Report, Appendix Q, pp.126-128.
73 2007 Active Apprenticeship Survey, Prepared by ABS Statistical Consultancy for SA DFEEST (the Active
Apprenticeship Survey), p.17. Cited in Exhibit ACTU4, p.220, fn 94.
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[130] It was submitted that there are various grounds on which wage increases for
apprentices are warranted. These include:
to ensure reasonable living standards for apprentices;
to reflect the changing age profile of apprentices and the broader range of skills,
experience and qualifications of apprentices;
to ensure apprenticeships are competitive as an employment and career choice;
to address a situation where apprentice wages have failed to keep pace with general
community wage movements; and
to improve the capacity to attract and retain apprentices.
[131] The ACTU and the unions relied upon evidence and research in support of these
submissions. We do not refer to all the material relied upon, but would highlight the
following.
[132] In relation to living standards of apprentices, a major research report was released by
Group Training Australia in 2007.74 The report found that apprentices were living on the
margins of society with nearly all first year apprentices on wages below the Henderson
poverty line. The report recognised the general logic behind the apprenticeship wage structure
with apprentices, particularly in their early years, being generally less productive and with
employers making an investment in their skill development. However, the report states:
“The economic rationale for the first year apprentice to be paid a fraction of a qualified
tradesperson’s wage is that the apprentice has the prospect of future income from the skills
gained during training and should be expected to invest (in terms of foregone earnings) during
training. But it seems perverse to drive the first year apprentice wage down to levels, which in
every case in net terms, lie below the poverty line, and to keep second year apprentice wages
marginally above the poverty line.”75
[133] The report found that young apprentices were likely to survive through a mixture of
handouts from parents, overtime, second jobs and the cash economy.
[134] The ACTU also referred to key findings in the updated costs of living report by the
Workplace Research Centre, including the finding that first year apprentices on award rates
are unable to attain a modest but adequate standard of living, even if they are wholly
dependent on their parents for accommodation.76
[135] In relation to improving commencement and completion rates for apprentices, it was
acknowledged that a range of factors play a part in influencing the overall apprenticeship
experience. These were said to include not only low wages but also factors such as the quality
74 Michael Bittman, Ron Reavell, Greg Smith and Tim Battin, ‘Living standards of apprentices: a report prepared for Group
Training Australia by the centre of Applied Research in Social Science (CARSS)’, October 2007 (Living Standards of
Apprentices).
75 Ibid, p.8.
76 See WRC Report, pp.35-41 generally, and particularly p.36.
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of training, workplace issues, support mechanisms and the costs of undertaking an
apprenticeship.77 However the ACTU submitted that it is clear that low wages are one of the
key factors that affect completion rates, as well as commencements. In this regard the ACTU
referred to various surveys and research reports. These included the 2007 Active
Apprenticeship Survey conducted by the Australian Bureau of Statistics for the South
Australian training department,78 the NCVER 2007 survey of students and apprentices,79 the
2008 report prepared by the Huntly Consulting Group on exits from the trades and
apprenticeships,80 and the NCVER Apprentice Destinations Survey 2010.81
[136] The ACTU also referred to other research suggesting that it is the wage premium at
the end of an apprenticeship that is the significant factor influencing completion, not the
training wage on the way through.82 The ACTU pointed to various differences with the
methodology and results of such research and to the different conclusions reached in other
studies. However the ACTU argued that, even if there is a premium at the end of an
apprenticeship that is sufficient incentive to keep apprentices, this does not justify starting
wages being so low. It was said that apprentices are entitled to fair minimum wages
throughout their apprenticeship that allow them to participate meaningfully in society,
including through being able to meet their basic living expenses.
[137] In relation to the changing age profile of apprentices, the ACTU referred to statistics
comparing apprenticeship commencements in 1981-82 and 2011-12.83 In 1981-82 more than
half (56.4%) of commencing apprentices were 16 years or younger and more than 80% were
under 18 years. In 2011-12 less than one in seven (13.8%) started an apprenticeship at age 16
or younger. More than 85% were at least 17 or older. It was said that the apprentice wage
structures currently in modern awards differ little from those in place over 50 years ago.
Those structures were based on the understanding that most apprentices would start at age 15,
or even 14, and by around the age of 18 or 19 would be finished their apprenticeship and be
receiving the trade rate of pay.
[138] The ACTU also submitted that wage increases for apprentices are necessary to ensure
that apprenticeships are competitive as an employment and career choice. It was said that
research and survey evidence shows that apprentices are aware of other employment and
training options available to them and how favourably they compare with the wages and
conditions of apprentices. In this regard, a number of examples were provided regarding an 18
year old Year 12 school leaver.84 The differential between the first year apprentice rate of pay
and the rate for an unapprenticed junior under the same award was between $80 and $150 a
week. In the majority of awards, apprentices would receive considerably less, typically $40 to
$60 a week, than an 18 year old with Year 12 schooling who takes on a level A traineeship
77 See e.g. Apprenticeship Expert Panel Report, pp.9, 21-25.
78 Active Apprenticeship Survey. Cited in Exhibit ACTU4 at pp.53-56, p.60 para 266.
79 Josie Misko, Nhi Nguyen and John Saunders, ‘Doing an apprenticeship: what young people think’, NCVER, 2 October
2007.
80 Huntly Consulting Group Pty Ltd, ‘Exits from the Trades: Final Report’, 2008 (Exits from the Trades).
81 NCVER, ‘2010 Apprentices and Trainee Destinations: Australian vocational education and training statistics’, 2010.
82 See e.g. Tom Karmel and Peter Mlotkowski, ‘The impact of wages and the likelihood of employment on the probability of
completing an apprenticeship or traineeship’, NCVER, 2011.
83 Exhibit ACTU4, p.69, Table 7.
84 Ibid, Appendix 5.
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(wage level A). It was said that there is no discernible reason for differences of this magnitude
between apprentices, trainees and juniors, even accounting for time spent in training. It was
also said that the shortfall in apprentice wages may be even greater when compared with
actual rates available above the award in other employment options.85 Reference was also
made to the report of the Huntly Consulting Group in its work on apprentice and trade
attrition rates. This found that the overwhelming view of a wide range of stakeholders
consulted was that wage levels for first and second year apprentices are often so low that
young Australians will often prefer to opt for full-time employment where they can command
higher entry-level wages, including by leaving their apprenticeship before it is complete.86
[139] It was also submitted that apprentice wages are not keeping pace with general
community wage movements. This is because apprentice wages are generally tied to the
award rate for a tradesperson. Award-reliant apprentices have not had the benefit of the larger
proportionate increases in the National Minimum Wage provided to workers on the lowest
rates of pay in the community and also miss out on the over-award payments made to many
tradespersons. The ACTU submitted that the erosion in the relative earnings of apprentices is
a matter of serious concern with many award rates now falling significantly below the
Henderson poverty line of $483.51 per week for a single adult household in the workforce.87
It was said that this situation is relatively new, as until 2004 a worker paid at 55% of C10
would have had gross earnings greater than the poverty line.
[140] In relation to the impact of the claim, the ACTU submitted that its application is
sustainable and affordable, and will not have an adverse impact on employers or the wider
economy. In this regard, the ACTU referred to the consideration of the Minimum Wage Panel
of the employment effects of increases in minimum wages. Reference was also made to the
Toner Report, which reviews numerous studies conducted over the past 20 years on the
determinants of apprentice employment. It highlights the relative insensitivity of employer
demand for apprentices with respect to apprentice wages, and the fact that the key drivers of
apprentice commencements are macroeconomic variables such as growth in demand for the
output of the firm, not the level of apprentice wages. It also finds that employers generally
recognised the problems of low apprentice wages for equity reasons, and in terms of their
ability to attract apprentices and the quality of the apprentice intake. Reference was made to
the AMWU submission in relation to the increases in apprentice rates of pay flowing from the
Re Metal, Engineering and Associated Industries Award 1998.88 It was said that in such cases
where apprentice wages have been increased as a result of tribunal decisions there has been no
discernible adverse impact on commencement numbers, and if anything the impact has been
positive.
[141] In relation to the legislative requirements, the ACTU submitted that the current levels
of apprentice wages in modern awards do not provide apprentices with a fair and relevant
safety net of wages and conditions consistent with the Act.89 It was said that the current
apprenticeship wage provisions in modern awards fail to meet the modern awards objective of
85 WRC Report, p.43.
86 Exits from the Trades, p.29.
87 Melbourne Institute of Applied Economic and Social Research, ‘Poverty Lines: Australia’, ISSN 1448-0530, September
Quarter 2012, p.1.
88 AIRC Print PR968890 (21 February 2006) (the Metals Award Decision 2006).
89 See ss.3(a) and (b), 134 and 284 of the Act.
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providing a fair, relevant minimum safety net of terms and conditions, taking into account the
matters in section 134(1). For the award safety net to remain relevant, the apprentice wage
rates, wage structure and wage relativities need to better reflect the changing age and
demographic profile of apprentices. Further it was submitted that current apprentice wage
levels in modern awards fail to take adequately into account relative living standards and the
needs of the low paid. By keeping apprentices on such low wages, modern award rates for
apprentices fail to promote social inclusion. Improvements to apprentice pay will have a
positive impact on employment growth, inflation and the sustainability, performance and
competitiveness of the national economy.
[142] The AMWU, CEPU, CFMEU and other unions supported the submissions of the
ACTU for an increase in the first year apprentice rate. In particular, the unions submitted that
the increase is necessary taking into account relative living standards and needs of the low
paid in s.134(1)(a) and s.284(1)(c) of the Act, and to create a comprehensive range of fair
minimum wages for employees to whom training arrangements apply (s.284(1)(e)).
[143] The AMWU submitted that metal and vehicle apprenticeship commencements rose by
15.8% between June 2005 and June 2008, following wage increases in 2006. It was said that
this is prima facie evidence that even significant wage increases do not necessarily have a
negative impact upon the number of employers taking on apprentices. The AMWU Better
Apprentice Wage Survey was said to support the ACTU submissions in relation to the
changing demographic profile of apprentices. The AMWU also adopted the ACTU’s
submissions in relation to the cost of its claims, and made a separate submission in relation to
the cost of the claim to the manufacturing industry.
[144] The CEPU made specific comments relating to wages in relation to several modern
awards where it has coverage and where apprentice wage relativities are very low compared
to other modern awards. It was said that the CEPU survey of electrical apprentices and a
number of other reports and witness statements confirm the general trend noted by the ACTU
toward older apprentices with more extensive schooling. The CEPU evidence was also said to
indicate that the majority of electrical apprentices receive substantial over-award payments.
[145] The CEPU also relied upon the evidence from apprentices and CEPU officials, and its
cross-examination of the NECA witnesses. It was said that this evidence demonstrated that:
Apprentices often perform a wider range of work than better paid trade assistant and
labourer classifications in the award.90
Apprentices increasingly perform productive work including in the first year and the
increasing incidence of pre-apprenticeship programs has contributed to this.91
Apprentices employed by NECA witnesses were generally working overtime which
suggests that they are regarded as productive.92
90 See summary of evidence at Exhibit K20, para 21.
91 See evidence of Mark Osborne: Transcript of 20 March 2013, PN4536-PN4537 and PN4579; Mr Allen Hicks: Exhibit K2;
Ms Cangie Edwards: Transcript of 22 March 2013, PN6440-PN6443 and PN6438-PN6439; Mr Stewart Munro:
Transcript of 22 March 2013, PN6727-PN6768; Mr Phil Green: Transcript of 22 March 2013, PN6209-PN6218,
Ms Ninette Markulis: Transcript of 4 April 2013, PN8260; Mr Stephen Kerfoot: Transcript of 4 April 2013, PN8867; and
Mr David Pollock: Transcript of 3 April 2013, PN7356-PN7367.
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[146] The CFMEU referred to the history of apprentice wages in awards covering the
building and construction industry. It was said that the claims before the Full Bench with
respect to apprentice rates are the next logical step in the development of awards covering the
industry and follow on from comments by the Award Modernisation Full Bench in relation to
the desirability of economy-wide standard provisions. The CFMEU also made submissions in
relation to apprentices’ living costs, referring to both its own survey of living costs and other
reports. It submitted that the wage increases sought by the ACTU and the unions are
reasonable given the cost of living that apprentices face.
[147] In general, the employer organisations in the proceedings opposed the wage increases
sought by the unions for first year apprentices. This is with the exception of MTA and the
LGA, both of which accepted that the relativities for first year apprentices in their industry
modern awards were too low. The MTA and the LGA opposed the rates sought by the unions,
but indicated their support for a modest increase in apprentice rates of pay.
[148] The Ai Group submitted that the wages claim by the unions is inconsistent with the
principle of a safety net of fair and relevant minimum wages (see ss.3(b), 134(1) and 284(1)
of the Act). It was said that the current apprentice minimum wages in awards reflect a fair
safety net and that the unions have not made out the case for the increases claimed. Much of
the union case inappropriately conflates notions of “market rates” or a “living wage” for
apprentices with the concept of a minimum safety net. It was said that the safety net is not
designed to, or intended to, represent a “living wage”.
[149] The Ai Group referred to the evidence regarding the costs to employers associated
with the training and supervision of apprentices. It was said that the wage increases sought
would distort the current balance between the cost of training apprentices and the productivity
of apprentices and incentive payments from governments. This will discourage employers
from engaging apprentices. The Ai Group also submitted that the wage increases will not
improve the commencement and retention of apprentices and will only discourage employers
from taking on apprentices. The evidence shows that the decision of an employer to take on
an apprentice is a very price-sensitive issue. It also shows that the reasons that individuals
elect to commence or continue in an apprenticeship are complex and varied, with key
motivators including the attainment of a relevant qualification and enhanced income upon
completion. The Ai Group disputed the evidence provided by the unions about people not
choosing to commence an apprenticeship because of wages or failing to complete their
apprenticeship because of “low wages”. It was said that the extent to which wages can be
demonstrated to contribute to non-commencements and non-completions should not be
overstated. In relation to non-completion, factors such as “poor fit” with the chosen vocation
and recruitment practices by employers are more important than pay.
[150] The Ai Group and other employer parties submitted that the unions’ wage claim will
have a significant cost impact on employers and will have the effect of discouraging many
employers from offering apprenticeships, particularly in difficult economic times. It was also
said that the claim fails to acknowledge the special circumstances of small and medium-sized
businesses (see s.3(g) of the Act) which are important in providing apprenticeship
opportunities.
92 See summary of evidence: Transcript of 1 May 2013, PN10883.
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[151] ABI opposed the unions’ wage claims for apprentices and advanced similar
submissions to those of the Ai Group. It was said that each of the contentions upon which the
ACTU and the unions have advanced their claims could be refuted. In particular, it was said
that the motivation for commencing an apprenticeship is rarely pay-related and that wage
rates are a very small factor influencing decisions by apprentices not to finish an
apprenticeship. Further, it must be recognised that the apprentice wage is a training wage and,
as such, has to be discounted to balance employer attraction and apprentice productivity
relative to a tradesperson. Apprentices are now mostly employed by small employers and
increasing rates will have an impact on their decisions to employ apprentices.
[152] In relation to the evidence regarding the payment of over-award rates to some
apprentices, ABI submitted that the existence of over-award payments is a sign that the safety
net is working effectively and not a reason to increase rates of pay. It should not be assumed
that employers that pay over-award rates can automatically absorb further increases to
apprentice rates into their business. ABI was also opposed to the differentiation of apprentice
rates of pay based on levels of school completion. It was said that work-readiness does not
necessarily translate into apprenticeship-readiness or take-up and, in any event, it would be
difficult to assess the value of such a proposed distinction across the vastly different industries
regulated by the awards.
[153] The ACCI recognised the importance of the apprenticeship system in meeting the
skills needs of Australian industry and the economy. It was said that, in view of the critical
skills development role, any adjustment to wages and conditions for apprenticeships should
be viewed not just by comparing apprenticeship wages to other wages of employed persons,
but the choice of the apprenticeship option over other training or life options (such as
university or VET study, or formal training in the workforce). The ACCI submitted that,
given that many of the training choices are high-cost/no wage options, the Commission
should not place particular or undue significance on the apprenticeship wage in the context of
“living expenses”.
[154] The ACCI submitted that there are a range of factors to be taken into account in
considering the rates of pay for first year apprentices. The first year rate is by definition a
wage rate paid for one year in the career development of a person with minimal skills in the
trade and who requires maximum supervision. Apart from the substantial evidence of over-
award payments, many award-reliant apprentices will receive allowances (e.g. for tools, travel
and accommodation), and penalty rates and overtime, lifting their take home pay to a higher
level than the base rate for a first year apprentice.
[155] It was said that the wage rate being sought would be a very substantial increase in the
cost of apprentices for employers and will substantially damage a highly valuable method of
skills acquisition as apprenticeship commencements are demonstrated to be price-elastic. It
was also submitted that the increases will not assist in improving apprenticeship completion
rates as wage rates are not a key determinant of completions.
[156] The State Chambers of Commerce and Industry93 supported the ACCI’s submissions.
93 Chamber of Commerce and Industry WA, Chamber of Commerce and Industry Queensland, Business SA and the
Victorian Employers’ Chamber of Commerce and Industry.
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[157] The AFEI submitted that current research indicates that apprentice wages are a
relatively insignificant determinant of retention and completion rates, as compared to other
micro- and macroeconomic factors. It submitted that the significant wage increases sought by
the unions would increase costs for employers and deter them from taking on apprentices. It
was said that comparisons between apprentice rates and wages for unapprenticed juniors are
inappropriate because an apprentice’s employment comes with significant training and
supervision costs for employers.
[158] MBA submitted that the CFMEU’s application to increase first year apprentice wages
in the Building Award seeks wage increases of an unprecedented level, which could have
significant adverse effects on employment costs and growth (see ss.134(1)(f), (h)). It was said
that demand for apprentices is elastic and varies with the cost of employing apprentices. It
was submitted that the increases sought would be a substantial disincentive for small
businesses faced with marginal decisions about whether to employ first-year apprentices.
[159] The HIA stressed that the Commission should consider industry-specific
circumstances in considering claims for wage increases, which dictates against standardising
apprentice rates. It particularly urged the Commission to consider the possible effects on the
residential construction sector, and particularly small businesses, which face challenging
economic circumstances and rely heavily on award rates of pay. It submitted that the figures
relied upon by the CFMEU are not all-purpose wages, and that with appropriate all-purpose
allowances factored in, award-reliant apprentices’ take home pay is in fact higher than the
cost of living calculated by the CFMEU.
[160] The NECA referred to the substantial incidence of incentive and bonus payments to
apprentices in the electrical contracting industry, but noted that these payments are made if
and when employers can afford to make them. It stressed the low productivity of first and
second year apprentices, and submitted that notwithstanding the ACTU and unions’
comments about the demographic profile of apprentices, there has been no relevant change
since the award modernisation process.
[161] The ECA submitted that existing apprentice wage provisions in relevant modern
awards are a product of determinations going back to the 1960s, many of which were made
with the consent of the CEPU. Like the HIA, it stressed that the ACTU and CEPU evidence
and submissions were based on base rates rather than the higher all-purpose rates that
apprentices in the electrical industry actually receive.
[162] The MTA submitted that its members were broadly in favour of a modest increase in
apprentice wages, because apprentices in the vehicle industry are low paid relative to other
apprentices in the traditional trades. The MTA sought an increase that would bring the vehicle
industry into the mid-range of rates of pay for other trades. In opposition to the size of the
increase sought by the ACTU and the AMWU, it was said that the latest ACCI small business
survey indicates that revenue, profit growth and business investment are approaching historic
lows. The MTA made submissions in relation to the nature of employers of apprentices in the
vehicle industry, noting that over 50% of these employers employ between 10 and 19
employees, and that most of the remainder have fewer employees. The MTA referred to a
survey of its members indicating that, if the AMWU claim was granted, 34.3% of respondents
would no longer employ apprentices.
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[163] The MTA in its submissions advanced an “alternate wage proposal” with smaller
increases than those sought by the ACTU and the AMWU. The MTA’s proposal would
differentiate between first and second year apprentices who had finished Year 10, Year 11 or
Year 12. A first year apprentice would earn 45.9% to 47.5% of the C10 rate depending upon
their level of educational attainment, while a second year apprentice would earn 55% to
58.9%.
[164] The LGA accepted that the 45% relativity for first year apprentices in the Local
Government Industry Award 2010 (the Local Government Award) is “inadequate”. It opposed
the size of the increase sought by the ACTU, but did not make submissions on what would be
an appropriate wage rate. It submitted that apprentice wages in the award should be specified
as dollar amounts rather than as percentages of a standard rate.
[165] The MPA-NSW submitted that the CEPU’s claims with respect to the Plumbing and
Fire Sprinklers Award 2010 (the Plumbing Award) would create unreasonable burdens for
employers, and that this regulatory burden would be contrary to the modern awards objective
(see s.134(1)(f)). It was said that in the current economic circumstances and given the lack of
interest in employing apprentices shown by its respondents to the organisation’s member
survey, the CEPU had not advanced a sufficient argument in support of its variations. The
MPA-NSW further submitted that the CEPU did not provide sufficient evidence to support its
proposed variations, as much of the evidence was unrelated to the plumbing industry. The
MPA made similar submissions, and further submitted that the CEPU’s calculations excluded
all-purpose allowances and therefore understated the remuneration of apprentices.
[166] The PIAA submitted that the ACTU and the AMWU did not make out a sufficient
evidentiary case to justify variation of the Graphic Arts Award. It referred to the economic
circumstances of the printing industry, which experienced a 24% contraction during the
Global Financial Crisis, and the need to preserve a set of minimum terms and conditions that
are fair and relevant to all parties. It was said that the AMWU did not justify the amount of
the increases sought, and that its submissions and evidence relating to the cost of the claim
were only relevant to the Manufacturing Award.
[167] The CMIEG submitted that none of the evidence led by the ACTU or unions indicated
any unfairness in the current apprentice rates of pay in the Black Coal Award. It was said that
for this reason the Commission should not make any variation and that the AMWU could
revisit the issue of apprentice remuneration in the four-year review of modern awards required
by s.156 of the Act. The submissions of AMMA with respect to a number of awards were
broadly similar. AMMA also submitted that across-the-board increases in first year apprentice
rates cannot guarantee higher completion rates, but are likely to reduce employer demand for
apprentices.
[168] The AMIC, Ports Australia and the ARA each referred to the history and process of
modernising the awards covering their members, and submitted that the Transitional Review
should not be used to substantially increase apprentice wages.
[169] We have considered the submissions and evidence regarding the union claims to
increase the first year apprentice rate and to adjust the rates for second, third and fourth year
apprentices. We have had regard to the research and reports relating to the apprenticeship
system referred to in the course of the proceedings. We have also taken into account the
evidence of the apprentice and other witnesses and the various surveys.
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[170] Both the modern awards objective in s.134 of the Act and the minimum wages
objective in s.284(1) are relevant in the consideration of the union claims. The modern awards
objective requires the Commission to ensure that modern awards provide a fair and relevant
minimum safety net of terms and conditions, taking into account the various factors set out in
s.134(1). The minimum wages objective requires the Commission to establish and maintain a
safety net of fair minimum wages taking into account various factors including the provision
of “a comprehensive range of fair minimum wages to... employees to whom training
arrangements apply” (s.284(1)(e)).
[171] We have decided that it is appropriate to review and adjust the wage rates for first year
apprentices in the context of the Transitional Review. As noted above, the need for a review
of apprenticeship provisions was recognised in the award modernisation process.
[172] There have been a range of significant changes in recent years relating to the
apprenticeship system and the position of apprentices which are relevant to the current
review. These are referred to in numerous reports and research papers, and in the evidence
and submissions in the proceedings. In particular, we refer to the following changes:
The average age of apprentices has increased substantially over time and apprentices
can no longer be assumed to be teenagers with little or no experience in the
workforce.
Many apprentices have now completed Year 12 schooling or its equivalent.
In some areas of apprenticeships, a significant number of apprentices have
completed a vocational qualification prior to commencing an apprenticeship.
The wage rates for first year apprentices have fallen to be significantly below the
Henderson poverty line and they are now properly regarded as amongst the “low
paid” in the workforce.94
[173] The changing profile of apprentices is relevant in the setting of fair minimum rates of
pay. One of the implications of apprentices generally being older is that many of today’s
apprentices are entering apprenticeships with higher levels of schooling, qualifications and a
broader range of work and life experience. This contrasts with the traditional picture of a first
year apprentice as an early school leaver moving into their first job with no previous
experience. Current apprenticeship wage structures were set when most apprentices were 14,
15 or 16 years old on commencement. Many are now 17 or older and have completed Year 12
schooling, and are already undertaking part-time and casual work with higher wages than they
receive under an apprenticeship.
[174] It is also relevant to consider the wage rates for first year apprentices relative to other
workers, including unskilled labourers. An unskilled labourer is entitled to at least the
94 We note the comments made by the Minimum Wage Panel about the Henderson poverty line in the Annual Wage Review
2010-11 decision ([2011] FWAFB 3400 at [226]): “Our view at present is that this measure is not helpful to our task. Its
origins in the 1960s, the inconsistency between its original construction and the way it is updated, and its focus on
poverty rather than the needs of the low paid reduce its value as a tool for wage-setting.” See also Annual Wage Review
2011-12 [2012] FWAFB 5000 at [179].
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National Minimum Wage, which is currently $622.20 per week. As noted in the report of the
Apprenticeship Expert Panel, this raises the question of whether the first year apprentice of
today is only half as productive in the workplace as an unskilled labourer in receipt of the
minimum wage.95 A comparison between the wages paid to trainees under the NTWS and
those paid to first year apprentices is also relevant.
[175] Both the modern awards objective and the minimum wages objective require the
Commission to take into account “relative living standards and the needs of the low paid” in
setting or varying award minimum wages.96 The rate for first year apprentices must therefore
be considered having regard to evidence as to hardships experienced by apprentices as a result
of the current rates and community expectations of reasonable living standards, as well as
other considerations.
[176] In the consideration of fair and relevant rates of pay for apprentices, we accept that
apprentice wages should be regarded as “training wages” and that it is appropriate for the
rates to be discounted to take account of the fact that, during the course of an apprenticeship,
apprentices will be engaged in both training and productive work. We also recognise that
much of the off-the-job training is undertaken in the first two years of an apprenticeship. It is
important that an appropriate balance be maintained between the costs of employing
apprentices and their productivity.97
[177] Apart from equity considerations, there are other grounds for addressing the problems
of low pay for apprentices. There is a persuasive case that increased rates may assist to
improve the attractiveness of apprenticeships compared to other training options or
employment opportunities for young people. All the parties recognised the importance of the
apprenticeship system in providing for the skills needs of the Australian economy and
industry. Increased rates of pay will go some way towards addressing the situation where new
apprentices are earning far less than other school leavers or workers the same age employed
as juniors or in other employment options, including unskilled adult entry level work. It may
be expected that this will encourage more young people to consider taking up apprenticeships,
and in this way help to contribute to skills development and the improved performance of the
national economy.98 In this regard we note that the Apprenticeship Expert Panel pointed out:
“The low level of pay extends the period of dependence for young people on parents and family,
at a time when many of their peers are entering the unskilled workforce and earning
considerably more on junior wages. This has led to apprenticeships being perceived as an
unattractive proposition for many young people leaving school and seeking employment.”99
[178] Increased wage rates for apprentices may also assist in the improvement of completion
rates for apprentices. The Apprenticeship Expert Panel refers to the low completion rates for
apprenticeships and traineeships (about 46% for trade apprentices and trainees) with an
attrition rate within the first 12 months for trade occupations being just above 32%.100 An
95 Apprenticeship Expert Panel Report, p.88.
96 See ss.134(1)(a) and 284(1)(c) of the Act.
97 See ss.134(1)(d) and (f) and 284(1)(a) of the Act.
98 See ss.134(1)(h) and 284(1)(a) of the Act.
99 Apprenticeship Expert Panel Report, p.88.
100 Ibid, p.21.
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improvement in completion rates would be to the benefit of the economy and industry, given
the significant economic cost in terms of time and resources invested in the training of
apprentices. However we note that there is still debate about the extent of the impact that
increasing apprentice wages might have on completion rates.
[179] In considering variations to the wage rates for first year apprentices, we have also
taken into account the likely impact of any increases on business and the national economy.101
We note the submissions and evidence presented by employer bodies regarding the possible
adverse impact that any increase might have on the willingness of employers to take on
apprentices and the viability of some businesses. In general the employers submitted that
increased rates of pay will lead to fewer apprenticeship opportunities for young people as
fewer employers will be willing or able to afford to engage apprentices. Notwithstanding
these submissions, we have come to the conclusion that the rates of pay for apprentices may
be increased without having a significant adverse effect on business or the national economy.
[180] The impact that any increases will have will depend upon a variety of factors,
including the level of any increase awarded, the acceptance of the need for a more relevant
safety net and the incidence of existing over-award payments to apprentices. The evidence
presented suggests that over-award payments to apprentices are relatively common with
NCVER research suggesting that almost 64% of apprentices earn above the award. This
research also suggested that above-award payments for apprentices were most prevalent in
occupations with strong demand and high levels of collective bargaining, such as electrical
and engineering, and automotive. It also suggested that apprentices in small businesses and
outside capital cities were less likely to get over-award payments and that apprentices were
more likely to be paid at the award wage than adult apprentices. This is generally consistent
with the other evidence presented in the proceedings before us. The widespread existence of
over-award payments will limit the cost to business of increases in the safety net award rates.
[181] We also note the studies and research referred to in the proceedings which suggest that
apprentice wages are far from the critical factor in determining employment decisions by
employers. The Toner Report reviews various studies on the determinants of apprentice
employment and highlights the relative insensitivity of employer demand for apprentices. It
found that the key drivers of apprentice commencements are macroeconomic variables such
as growth in demand for the output of the firm and not the level of apprentice wages. It also
found that many employers recognise the problems of low wages for equity reasons and in
terms of their ability to attract apprentices and the quality of the apprentice intake.
[182] We are not persuaded, having regard to the material and evidence presented, that the
increases we have determined will have a significant adverse effect on apprenticeship
commencements. In this regard we note the relatively widespread existence of over-award
payments to apprentices and the evidence presented in regard to the experience in previous
cases where apprentice wages have been increased as a result of tribunal decisions. We also
note that much of the concern expressed by employer witnesses and in the surveys conducted
by several employer organisations related to the granting in full of the various claims pressed
by the ACTU and the unions in the Transitional Review. Indeed, in some cases the evidence
was based on the consideration of claims which have not been made or pursued in the present
proceedings. The evidence and concerns about the cost impact and the response by employers
101 See ss.134(1)(c), (f) and (g) and 284(1)(a) and (b).
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needs to be considered having regard to the decisions we have reached regarding the various
aspects of the claims before us.
[183] The overall cost impact of the wage increases must also be considered in light of the
benefits which might be achieved through a better skilled workforce and overcoming or
avoiding skills shortages.102 As we have noted earlier, there may be positive benefits for
industry and the economy as a result of the improvement in apprenticeship commencements
and the quality of the apprentice intake which will result from the provision of a fair and
relevant minimum rate for first year apprentices.
[184] Having regard to all the submissions and evidence presented, and taking into account
the relevant legislative requirements, we consider that there should be an increase in the first
year rate of pay in the relevant awards. The modern award safety net should better reflect the
reality of the current day apprenticeship intake. It must also take into account relative living
standards and the needs of workers who must within the community be considered to be low-
paid. We consider that the present rates of pay in the awards do not provide a fair and relevant
safety net for apprentices and that an increase in the first year rate is appropriate. However,
having regard to the possible effect that the increases sought by the unions might have on the
capacity of employers generally, and in particular small business, to engage apprentices in the
current economic circumstances, we have decided not to grant the level of increases sought by
the unions.
[185] In considering the case for increased rates of pay, we have also had regard to the
evidence across the variety of trades and industries covered by the relevant awards. We are
mindful of the need in the Transitional Review for each modern award to be reviewed in its
own right having regard to the matters set out in Item 6(2), Schedule 5 to the Transitional
Provisions Act. We also note the submissions of the MTA and the LGA relating to the low
level of apprentice rates in their awards relative to other awards. Notwithstanding the
differences in relation to some awards and trades, we have come to the conclusion that the
first year apprentice rates across the relevant modern awards should not be below the level we
have determined. This is because the general circumstances of award reliant apprentices
across the various trades are not materially different having regard to many of the
considerations we have referred to, including cost of living and wage comparisons with other
relevant groups of workers. We believe that this approach will help to provide a simpler and
more sustainable range of wage rates for apprentices across modern awards and will provide
for a level of consistency in the rates for first year apprentices.103
[186] In relation to the structure of first year apprentice rates of pay, we note that some
awards provide different rates of pay for first and second year apprentices based on whether
an apprentice has completed Year 10, 11 or 12 schooling at the time of commencement.104 In
the course of the proceedings it was suggested that differential rates might be based on both
age and level of school completion. The Apprenticeship Expert Panel referred to this matter as
follows:
102 Metals Award Decision 2006 at [43].
103 See ss.134(1)(g) and 284(1)(e) of the Act.
104 See e.g. the Manufacturing and Associated Industries and Occupations Award 2010, clause 25.1.
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“...many first year apprentices have now completed Year 12 and in many cases have also been
in the outside-of-school-hours workforce for several years. Apprentices in this category
therefore are better educated and more productive than a person who left school in Year 9 and
pursued an apprenticeship as a first job. Yet in many modern awards, all of these apprentices,
including those who have completed Year 12 and have one year of full time work experience
combined with several years in the after-school -hours workforce, are paid the same first year
wage.”105
[187] We accept that there is a case for differential treatment of junior first year apprentices
based on considerations such as age, education level and work experience. However it would
introduce too many complexities into the award provisions if distinctions were made
according to all these criteria. We have therefore decided to adopt a similar approach as in
several modern awards before us and to provide for differential rates for first and second year
apprentices on the basis of completion of Year 12 schooling. This would maintain a
differential in those awards which currently so provide and introduce such a differential into
other modern awards. We consider that such a differential is appropriate in setting a fair and
relevant minimum safety net for apprentices and would recognise the benefits of having better
educated and potentially more productive young people entering apprenticeships. The
introduction of these differentials will protect the position in the labour market of early school
leavers whilst also encouraging Year 12 completion.
[188] For all the above reasons we have decided to vary the rates for first year apprentices so
that the rate for an apprentice who has completed Year 12 schooling will be 55% of the C10
rate, being $398.50 per week or $10.49 per hour. The rate for other first year apprentices will
be 50% of the C10 rate.
[189] The second year rate for apprentices should be adjusted in order to provide an
appropriate progression of rates through the apprenticeship.106 The second year rate for an
apprentice who has completed Year 12 schooling shall be shall be 65% and for other
apprentices shall be 60%. This will result in a typical progression for the Year 12 apprentice
in a significant number of the relevant awards approximating 55% - 65% - 75% - 88% of the
C10 or equivalent adult trades classification.
[190] These rates should be reflected through variations to the modern awards before us. In
the case of awards where the first and/or second year rates are higher than those we have
determined, the current rates in the awards should not be adjusted pursuant to this decision.
‘No loss of pay’ for existing employees
[191] The AMWU seeks the introduction of a clause into the Sugar, Graphic Arts, Black
Coal, Manufacturing and Airline Awards that an existing employee shall not suffer a
reduction in pay when taking up an apprenticeship with their employer. The clause sought is
in similar terms to the existing clause 26.1 of the Manufacturing Award, which applies only to
existing employees who become adult apprentices. The CFMEU seeks the introduction of a
105 Apprenticeship Expert Panel Report, p.88.
106 See ss.134(1)(g) and 284(1)(e) of the Act.
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similar clause into the Building and Joinery Awards, but in different terms which would
prevent “a reduction in the all purpose rate of pay by virtue of becoming an apprentice”.
[192] The AWMU submitted that it is unfair and discriminatory that existing junior
employees should not receive the benefit available to existing employees who are adults
commencing an apprenticeship. It was said that the same benefits of experience, saving on
recruitment costs, enterprise knowledge and productivity apply equally to existing junior
employees and as to adults who are existing employees. It is unfair for employees in this
situation to suffer loss of pay upon commencing an apprenticeship. It was also submitted that
the introduction of the provision would encourage commencement and completion of
apprenticeships.
[193] The employers opposed the proposed variations. Generally they made similar
submissions to those advanced in opposition to similar claims with respect to adult
apprentices. It was said that the requirement to pay higher rates would be a disincentive for
employers to offer apprenticeships to existing employees. It was also submitted that although
existing employees may have some knowledge of the business or industry, they are still
unlikely to be immediately productive as they will not have trade-specific skills or
knowledge, and because they will still have to spend the equivalent of one day a week in off-
the-job training.
[194] Although there is a history of provisions of this type in relation to adult apprentices, a
similar provision with respect to apprentices generally is not common in awards. Such
provisions are not sought by the ACTU in relation to the 32 awards that its application covers,
or by the CEPU.
[195] While we have decided that such provisions should be made for adult apprentices (see
below), we consider that there are special considerations with respect to adult apprentices that
do not apply to apprentices generally. These include the likelihood that adult apprentices will
have additional financial commitments and living expenses, and the potentially greater value
to the enterprise of these apprentices because of their work experience, maturity and
productivity.
[196] We are also concerned about the potential implications of the claim. When combined
with the other award variations resulting from the Transitional Review, granting this claim
may have significant cost implications for employers. Further, it may result in significant
differentials between apprentices who were employed by their employer prior to beginning
their apprenticeship and those who were not. At least under some of the awards sought to be
varied, the effect of the proposed clauses would be that apprentices who have only a short
period of service with an employer may receive substantially more pay than a newly
employed apprentice.107
[197] Having regard to the above considerations, we do not consider that varying the awards
as sought by the AMWU and the CFMEU is consistent with the need to provide a fair and
107 See e.g. the maintenance and engineering stream of the Airline Award, the streams of the Sugar Award under which
apprentices can be employed, and the Black Coal Award. Under all three awards the rate for an unapprenticed 18 year old
is substantially higher than 55% of the C10 rate.
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relevant minimum safety net of terms and conditions and a comprehensive range of fair
minimum wages to apprentices.108
(ii) Adult apprentice rates of pay
[198] The ACTU claim with respect to adult apprentices seeks:
The introduction of adult apprentice rates of pay in various awards;
The application of adult apprentice rates when the adult age is reached (including
during an apprenticeship) rather than only if the apprentice is an adult on
commencement;
The introduction of a provision, where it does not already exist, that existing workers
in an enterprise when taking up an adult apprenticeship suffer no loss of salary;
That adult apprentice rates be no less than the greater of the federal minimum wage,
the lowest adult rate in the award, or the apprentice rate at the relevant year or stage;
and
The introduction of adult apprentice rates at age 20 years rather than 21.
[199] There are some variations from the ACTU claim in the applications made by the
CFMEU, the CEPU and the AMWU, the most important of which are as follows:
Adult apprentice rates only apply if the apprenticeship is commenced as an adult.
This is the status quo in those awards which presently contain adult apprentice
provisions.
Variations in the wording of the ‘no loss of pay’ clause for existing workers. The
CFMEU variation adds reference to the “all purpose” rate.
Variations to the rates for years or stages of the adult apprenticeship beyond the first
year in the Sugar Award, the Airline Award, the Vehicle Award, the Graphic Arts
Award and the Manufacturing Award.
The AMWU proposes that the first year adult rate be higher than the lowest adult
rate in an award. In particular, the AMWU proposes that in the Sugar Award, the
Manufacturing Award, the Graphic Arts Award and the Airline Award the lowest
adult rate (C14 in the Manufacturing Award) should only apply to an adult
apprentice for three months and then the next classification rate should apply (C13 in
the Manufacturing Award).
The AMWU does not propose any change to adult apprentice rates in the Black Coal
Award and the CFMEU does not propose any change to adult apprentice rates in the
Building Award or the Joinery Award, as current provisions are already equal to or
better than the ACTU claim.
108 See ss.134(1) and 284(1)(e) of the Act.
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The CEPU does not propose adult apprenticeship rates to commence at 20 years of
age rather than 21 in the Electrical Power Industry Award 2010 (the Electrical
Power Award), the Telecommunications Services Award 2010 (the
Telecommunications Award) or the Electrical Contracting Award. The AMWU does
not seek adult apprenticeship rates to commence at 20 years of age rather than 21 in
the Black Coal Award or the Higher Education Awards.
The CEPU proposes that rates in the Electrical Power Award should be the greater of
the minimum weekly wage payable for the lowest paid adult classification or the
existing table of rates for adult apprentices in the award.
[200] The ACTU and the unions relied upon much of the evidence and submissions relating
to apprentice rates of pay in support of their claims with respect to adult apprentices.
[201] Adult apprenticeships were not able to be undertaken in most traditional trade areas
until the 1980s. Although the restriction on adult apprentices being engaged has now been
removed, there is no provision made for adult apprentice rates of pay in some awards.
[202] NCVER statistics show that considerably more than half of all apprenticeship
commencements are in automotive, engineering, building, and electrotechnology; that is, they
are in the industries and occupations covered by the modern awards subject to the CFMEU,
CEPU and AMWU applications.109
[203] It is not in dispute that the proportion of apprentices who commence an apprenticeship
at age 20 or 21 or over has been increasing. In 1981-82 only 3% of apprentices commenced at
21 years of age or over. In 2011-12 some 47% of apprentices commenced at 21 years or over;
64% of electrotechnology apprentices commenced at age 20 years or over; and 54% of auto
apprentices were aged 20 or over. The figures for the engineering trades are similar. Mr Ian
Curry, AMWU National Coordinator, Skills Training and Apprenticeships, gave evidence of
the rapid increase in older apprentices in engineering.
[204] Apprentices who start at an older age are more likely to have completed Year 12
schooling than those who commence at a younger age and this trend has been increasing over
time even while school retention rates have plateaued. The level of work exposure and
experience has also been increasing in commencing apprentices, particularly those who are
older. There has been a growth in school-based vocational education and also in the incidence
of senior school and post-secondary students undertaking paid employment.110
[205] The Apprenticeship Expert Panel Report notes that the trend over the last decade has
been a reduction in the proportion of apprentices and trainees aged 17 to 24 years while the
proportion aged over 25 years has increased. In 2010 more than 42% of apprentices and
109 NCVER, ‘Historical time series apprenticeships and traineeships in Australia from 1963’, Table 5 (Commencements in 12
months ending 30 June by trade occupation, 1963–2012), 2012 (NCVER Historical Time Series).
110 Brian Knight, ‘Evolution of apprenticeships an traineeships in Australia: an unfinished history’ (NCVER, 2012) p.27;
Australian Bureau of Statistics, ‘Schools, Australia’ (Catalogue Number 4221.0, 2012).
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trainees were more than 25 years old compared to 32% in 2000.111 The Expert Panel
suggested that:
“More thought needs to be given to the extent that the remuneration for apprentices and trainees
is still seen as a training wage, in contrast with recognition that the cohort of Australian
Apprentices is changing to include higher numbers of adults and others with additional
qualifications and experience before they enter an Australian Apprenticeship.”112
[206] The Expert Panel identified a number of inconsistent approaches in modern awards to
some issues affecting apprentices and suggested that these should be considered in the context
of the FWA review. These included the following in relation to adult apprenticeships:
“Only a small number of modern awards include provisions for adult apprentices. Those awards
that include a provision for apprentices 21 years or over generally include a percentage of the
trade rate fixed at a higher rate than the traditional junior rate. The percentage rate varies from
award to award. In some cases this rate has been set as a monetary amount, rather than as a
percentage.”113
[207] The ACTU and the unions submitted that all modern awards should provide for an
adult apprentice rate of pay that is no less than the minimum adult classification in that award,
or the rate prescribed for the relevant year of the apprenticeship, whichever is higher. The
ACTU also sought that existing adult workers entering into an apprenticeship with their
current employer should receive the added protection of no reduction in their current rate of
pay, so that they continue to receive the rate of pay that they received before starting the
apprenticeship.
[208] In relation to the modern awards covered by the ACTU application, 24 of these awards
make no provision for adult apprentice wage rates. The ACTU submitted that it was an
untenable position that adults undertaking an apprenticeship covered by these awards will
receive the same rates as apprentices who are juniors for the relevant year or stage of
apprenticeship, unless other arrangements are entered into. The ACTU submitted that the
modern awards covering the bulk of apprentices in the building, metal and engineering trades
already provide adult apprentice rates and that the intention of its application is that similar
provisions are provided to adult apprentices across all relevant modern awards. Almost half of
all apprentices are in the building, vehicle, metals and engineering trades.114
[209] In general it was submitted by the ACTU and the unions that adult apprentice rates of
pay are appropriate because of the higher cost of living and financial pressures facing adult
apprentices (perhaps reflecting the additional responsibilities that older apprentices may have)
and the greater skills and work experience which they have acquired.
[210] There was evidence from the CEPU and the ACTU that employers are increasingly
seeking completion of Year 12 schooling and pre-apprenticeships prior to the commencement
of an apprenticeship, particularly in the electrotechnology trades. There was also evidence
that apprentices who have completed pre-apprenticeships or participated in some form of
111 Apprenticeship Expert Panel Report, Appendix F, p 122.
112 Ibid p.90.
113 Ibid. See also at pp.96-7.
114 NCVER Historical Time Series, Table 3 (In-training at 30 June by trade occupation, 1963-2012).
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school-based trade training are considered by employers to be much more productive at the
commencement of their apprenticeship.115 These trends have contributed to the increase in
adult commencement of apprenticeships. The AMWU submitted that the evidence
demonstrates that older apprentices have higher productivity when they commence their
apprenticeship.116 The CEPU provided similar evidence.117
[211] The unions drew attention to an ACCI report titled “It’s not about age, pathways for
engaging mature age people and existing workers as apprentices.”118 The report notes that
employers believe that mature aged apprentices are good value and come to employers with
existing knowledge. The report notes the positive attitudes of employers towards mature age
apprentices as they bring to their work “earlier productivity and enthusiasm, maturity and
previous skills”. One of the key findings from the survey conducted for the report was that
“employers are aware of the reluctance of mature age or existing workers to take up
apprenticeships and believe this reluctance has much to do with the low apprentice wage.”119
[212] The ACTU submitted that the contrast between apprentice award rates and the rates
available in other employment alternatives is particularly stark for adult apprentices. This
affects the take up of adult apprenticeships. In those awards where there are no adult
apprentice rates the award rate upon commencement as an apprentice is often about half the
award rate for an alternative unskilled job.
[213] In relation to other career options, it was submitted that young adults can study full
time at university or TAFE and earn more from part-time or casual work than many
apprentices can earn full-time in the first two years of an apprenticeship.120 There is still a
considerable gap in many of those awards where adult apprentice rates exist. The rates for an
18 year old unapprenticed junior are significantly higher than the rates for a 25 year old adult
commencing an apprenticeship in many awards. It is also relevant that a young adult and their
employer can choose between a traineeship and an apprenticeship in many industries. Adult
trainees earn far more than adult apprentices in those awards where there are no adult
apprentice rates.
[214] The ACTU evidence suggested that the costs of living are higher for older apprentices.
It was said that an apprentice commencing at age 25 is more likely to have higher transport,
housing and other costs and is much more likely to have dependent children.121 The CEPU,
CFMEU and AMWU evidence from apprentices and apprentice surveys supported similar
conclusions. A number of the CEPU apprentice witnesses were adult apprentices,122 who said
115 Exits from the Trades p.76, referred to in Exhibit ACTU4, para 325.
116 Exhibit T1, para 10, and Exhibit T2.
117 See for example the evidence on transcript of Allan Hicks (5 March 2013, PN1454 and PN1457) and Omar Merhi (21
March 2013, PN5212).
118 Exhibit ACTU3 (It’s not about age).
119 Ibid, pp.5 and 31.
120 See also the Apprenticeship Expert Panel Report, p.88, and Queensland Government, ‘Queensland’s proposed responses
to the challenges of skills for jobs and growth’ (Green Paper, 2005) p.16.
121 See generally Exhibit ACTU4, para 246; Living Standards of Apprentices; and the WRC Report.
122 For the ages of the witnesses see Exhibit K21, para 87(d).
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that they had considered leaving their apprenticeships because of low pay rates and the
difficulties in meeting basic living costs.123
[215] In support of the proposal to define an adult apprentice at 20 rather than 21 years of
age, the ACTU and AMWU submitted that only a small proportion (approximately 5%) of
apprentices commenced at age 20.124 On this basis the unions submitted that the cost to
employers of the proposed change would be small and, when considered in conjunction with
the level of over-award payments, would have an insignificant impact on employers’
decisions to engage apprentices.
[216] The Commonwealth supported the ACTU claims in respect to adult apprenticeships
and submitted that they are consistent with the modern awards objective.125 It was said that
the cost impact of granting the claim would not be excessive. It has been estimated that a
quarter of apprentices and trainees are working in the same enterprise before taking up the
apprenticeship or traineeship. In ten of the awards subject to the applications an adult existing
worker already retains their existing minimum rate of pay upon commencing an
apprenticeship.
[217] The employers generally opposed the ACTU and union applications relating to adult
apprentices, relying upon similar submissions and evidence as was put in relation to
apprentice rates of pay. The employer organisations submitted that granting the claim for all
awards to be adjusted so that mature age apprentices are paid not less than the rate for the
lowest adult award classification will prejudice the employment of those apprentices. This
will be exacerbated if the age of adult apprenticeship is lowered to 20 years. It was submitted
that lower commencing wages in apprenticeships are offset by higher earning capacity and
career opportunities upon completion. Further it should be taken into account that apprentices,
whether adult or junior, spend a considerable amount of time in training and not in productive
work. It was said that apprentice wages should be considered as training wages and that there
must be associated consideration of the cost of training to employers.
[218] It was submitted by the employers that adult apprentices are in a better position to
make informed decisions about their career choices and how they can manage financially. The
decision by an adult to take up an apprenticeship is a career development choice based on the
long term benefit of undertaking education and training. There is already provision made in
many awards for adult apprentices, and these awards set rates to suit the circumstances of
particular industries. It was also submitted that there is a marked difference between a 40 year
old apprentice and a 23 year old apprentice in respect of their value to the employer and their
likely living arrangements and costs. There is also a difference between an existing employee
in an enterprise who begins an apprenticeship and a person from a different industry seeking a
“sea change” by undertaking an apprenticeship in a new industry.
[219] AMMA submitted that many adult apprentices already receive higher rates than
apprentices who are juniors and this reflects the work and life experience they bring to the
role. It was said that determining adult apprentice rates is highly dependent upon the
123 See summary in Exhibit K21, paras 126 and 127, and see Exhibit T29 evidence of Ms Mayer.
124 Exhibit ACTU4, paras 296-307 and Exhibit T13, paras 2.8-2.10. The ACTU and AMWU appear to rely on unpublished
NCVER data for their estimates.
125 Transcript of 8 May 2013, PN12484-PN12488.
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individual, their productivity, and their potential future with the enterprise. The decision as to
whether an adult apprentice should retain prior rates while undertaking training with the same
employer should be made at the enterprise level and not enshrined in modern awards.126
[220] The MTA submitted that adult apprentices are not currently attractive to employers in
the vehicle repair industry and that the ACTU claim would worsen this situation.127 However
the NCVER statistics provided by the MTA show that of the automotive apprentices and
trainees in training in 2012: 92% are undertaking a Certificate III qualification which is the
apprenticeship qualification; 53.6% are aged 20 years or over; and 42% have qualifications at
Year 12 school level or equivalent.128 The proportion of apprentices aged 20 years or over has
been increasing. In 2008 it was 49%. This does not suggest that there is anything out of the
ordinary in respect of the trend to older and more educated entrants to apprenticeships in the
vehicle repair industry compared to other traditional trades industries. Furthermore it does not
suggest that existing adult apprentice rates are a particular barrier to the engagement of adult
apprentices.
[221] We have considered the submissions and evidence regarding the ACTU and union
claims in relation to adult apprentice rates of pay. Much of what was put in support of or in
opposition to the claims is similar to what we have considered in relation to apprentice rates.
We do not repeat here what we have earlier decided regarding those matters.
[222] We have decided that it is appropriate to consider the various claims in relation to
adult apprentice rates in the context of the Transitional Review. Both the modern awards
objective and the minimum wages objective are relevant to the consideration of the claims.
[223] We note that in recent years there has been a significant increase in the number of
older workers undertaking apprenticeships. Those awards which do not have adult apprentice
rates rely on the rates which were historically set on the assumption that apprentices would be
juniors.
[224] There is evidence that older, better educated and experienced apprentices are more
productive in the workplace, even taking into account the training and education being
undertaken. There was evidence that such apprentices are less likely to have issues with
timeliness than those who are juniors and are likely to be more productive in their work. It
was also suggested that the increase in adult apprentice commencements at least in part
reflects employer preferences for better educated and more experienced apprentices and a
view that these employees are likely to be more productive. There is some evidence that over-
award payments are higher amongst adult apprentices than amongst apprentices under the age
of 21.129 There is also evidence that the financial hardships and challenges with living costs
which apply to apprentices generally may have an even greater impact on adult apprentices.130
126 AMMA Submission in Reply, February 2013, paras 27, 28 and 31.
127 Exhibit MTA8, paras 101-103. See also the evidence of Mr Chapman: Transcript of 20 March 2013, PN4078- PN4081.
However it is noted that a small majority of the employer respondents to the MTA employer survey support increasing
adult apprentices’ wages to the adult minimum rate of pay under the Vehicle Award: see Exhibit MTA8, para 99.
128 Exhibit MTA8, Attachment B.
129 Damien Oliver, ‘An Examination of Award Wages among Australian Apprentices and Trainees’, Australian Bulletin of
Labour Vol. 38 No 2, 2012, pp.166, 170.
130 See ss.134(1)(a) and 284(1)(c) of the Act.
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[225] We are satisfied that it is not consistent with the modern awards objective to have
provisions for apprenticeships in modern awards without provision for adult apprentice rates.
It cannot be said that the minimum safety net provided by a modern award is fair and relevant
in the absence of such provisions.
[226] Adult apprentice rates are already contained in modern awards covering a significant
proportion of apprentices and the inclusion of such rates in other awards is appropriate in
providing both a fair and relevant minimum safety net and a comprehensive range of fair
minimum wages for apprentices (see s.284(1)(e)). The introduction of adult apprentice rates
will assist in addressing the needs of low paid workers (see ss.134(1)(a) and 284(1)(c)) and
contribute towards the improved performance of business and the economy by providing adult
apprentice options and skill development opportunities for older and more experienced
workers (see ss.134(1)(h) and 284(1)(a)). The competitiveness of the national economy is
likely to be improved by encouraging such workers to undertake apprenticeships and this will
assist in improving the education and skills of the workforce. The introduction of such rates is
not likely have a significant negative effect on business costs having regard to the incidence
of over-award payments, the likelihood that adult apprentices will be more productive, and the
relative proportion of the workforce constituted by such employees.
[227] We also consider that the inclusion of adult apprentice rates in awards may assist in
encouraging capable and educated adults to undertake apprenticeships, and in improving
completion rates for apprentices. The options available to a young adult at the time of entering
into a apprenticeship include working in a lesser skilled adult classification, and in some cases
an adult traineeship. The gap between apprenticeship rates and the lowest classification rates
for lesser skilled adult work is very wide and constitutes a disincentive to entering an adult
apprenticeship. The rates in the NTWS to relevant awards provide significantly higher rates
for those entering a traineeship as an adult. The existence of much more highly paid options
through traineeships and through work at the lowest adult classification rates is a disincentive
to the take up of apprenticeships and particularly in attracting quality applicants into those
positions.
[228] There is no persuasive evidence that the provision of adult rates will reduce the
engagement of adult apprentices. In this regard we have taken into account the experience
with the modern awards which presently contain adult apprenticeship provisions. We note that
there was no evidence of any significant detriment caused by the introduction of adult
apprentice rates in the awards for manufacturing and building, or which suggested that the
trend towards engaging older apprentices was affected by the incidence of adult apprentice
rates in awards.
[229] For all these reasons, we have decided to provide for adult apprentice rates of pay in
those awards subject to the applications before us.
[230] The most significant area of traditional apprentice employment where the modern
award does not provide for adult apprentice rates is electrical contracting. The NECA and the
ECA opposed the introduction of adult apprentice rates of pay for the Electrical Contracting
Award, even though adult apprentice rates do exist in that award for electrical contracting in
Queensland. There was no evidence presented of any difference in the rate of engagement of
older apprentices in electrotechnology between Queensland and the other parts of Australia.
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[231] The employers submitted that the introduction of adult apprentice rates in the
Electrical Contracting Award would lead employers to cease or reduce the engagement of
adult apprentices and would have flow-on effects into enterprise agreements. It was said that
the issue of adult apprenticeship provisions in the award was considered in the award
modernisation process and it is therefore not appropriate to deal with the CEPU application in
the Transitional Review. It was also said that it would be contrary to an agreement reached
with the CEPU in Victoria in relation to the age of adult apprentices in collective agreements.
[232] The CEPU submitted that the evidence from NECA employer witnesses that they will
cease or reduce the engagement of adult apprentices if adult apprentice rates are introduced in
the award was not convincing.
[233] We are satisfied that the issue of adult apprenticeship provisions in the Electrical
Contracting Award was only dealt with in the award modernisation process to preserve the
transitional provisions of the adult apprentice provisions in the previous Queensland award
and the transitional federal instrument preserving it. The issue of introducing adult apprentice
rates more generally into the award was not considered by the Full Bench in that case. The
Full Bench on 3 April 2009 determined to include the Queensland provision on a transitional
basis and said that “while the transitional arrangement is operating the parties should attempt
to reach agreement on appropriate adult apprenticeship provisions to be included in the
award.”131 This is a clear indication that the matter was not closed or finally determined.
[234] For similar reasons as above, a provision for adult apprentice rates will be included in
the Electrical Contracting Award.
When adult apprentice rates apply
[235] The ACTU seeks that adult apprentice rates should apply to all apprentices when they
reach 20 years of age, and not just to apprentices who commenced their apprenticeship as an
adult.
[236] We consider that the cost to employers of the introduction of adult apprenticeships in
those awards which presently do not have such provision will be significantly increased if the
current approach in awards that adult apprenticeship rates only apply to those who are adults
on commencement is changed. The additional costs attributable to this changed approach will
be increased if the age at which adult apprentice wages apply is reduced from 21 to 20
years.132
[237] We are not satisfied that it is necessary having regard to the modern awards objective
to change the general provision in awards that an adult apprentice is defined as a person who
is an adult at the time of commencing an apprenticeship. An apprentice who reaches the adult
age during the period of the apprenticeship receives increases in rates with progress through
the stages of the apprenticeship. These increases reduce the disadvantage arising from not
being covered by the provisions relating to adult apprentices. In any event, the possible
disadvantage to employees has to be offset against the additional costs to business. The
131 [2009] AIRCFB 345 at [100].
132 This was accepted by Mr Nixon Apple for the AMWU: Transcript of 9 May 2013, PN12983-PN12986.
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unions did not seek to change the definition of adult apprenticeship in the awards covering the
majority of apprentices.
[238] In the absence of strong reasons particular to the circumstances of those awards, we
are not satisfied that it would be consistent with the modern awards objective to introduce a
provision in a range of awards which adopts a different approach to the definition of an adult
apprentice than that which has applied in the awards which cover the majority of apprentices.
In a situation where all the major parties associated with the awards which have established
adult apprentice provisions are not seeking to change the provisions in those awards, it would
require a compelling argument for us to vary those awards. No party urged us to vary those
awards.
[239] Although we accept that there is some logic in the position advocated by the ACTU
and the Commonwealth, we do not believe it is appropriate to make the variation at this time.
[240] A provision that adult apprenticeship rates only apply to those who meet the age
requirement upon commencement of an apprenticeship will be included in those awards
where adult apprentice rates are being introduced.
‘No loss of pay’ for existing employees
[241] The ACTU and the unions seek the introduction of a provision that workers should
suffer no loss of salary when taking up an adult apprenticeship with their current employer.
[242] A provision of this sort has been in a number of apprenticeship awards including the
Manufacturing and Vehicle Awards for more than 20 years. There is no evidence that it has
inhibited the growth of adult apprenticeships or limited the availability of such apprenticeship
opportunities for existing employees.
[243] A move by an existing worker to take up an apprenticeship is part of career
development. Skills development, training and career path opportunities are best promoted
where backed by a principle of ‘no loss of pay’. Such a principle was generally adopted
during award restructuring processes in the 1990s. An existing adult employee is likely to
have skills, knowledge and experience which will continue to contribute to the productivity of
the enterprise even during the early stages of an apprenticeship. It would be inequitable for an
existing employee to be paid the same minimum rate as an inexperienced new entrant
undertaking an apprenticeship. It is inequitable for an existing adult employee undertaking an
apprenticeship to suffer loss of minimum or base pay.
[244] We have therefore decided that a provision for the protection of minimum rates for
existing employees who commence adult apprenticeships should be inserted in all the relevant
awards which do not currently contain such a provision. The inclusion of this provision is
consistent with the modern awards objective and the minimum wages objective.
[245] We do not consider that there are likely to be significant negative effects on
employment, employment costs or the regulatory burden as a result of this change. Similar
provisions are already contained in some awards and have not been shown to be operating in a
detrimental way. In any event, an employer has a choice in deciding whether to offer an
apprenticeship to an existing employee and may benefit from providing such opportunities to
them in order to retain their skills and experience in the enterprise and allow them to acquire
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new skills. We consider that increasing the attractiveness of adult apprenticeships to existing
employees as a career option will be positive for the performance and competitiveness of the
economy and for the productive performance of work.
[246] We consider that the appropriate formulation for this provision in those awards where
it does not currently exist is that which was determined during the making of the
Manufacturing Award (clause 26.1) as follows:
“A person employed by an employer under this award immediately prior to entering
into a training agreement as an adult apprentice with that employer must not suffer a
reduction in their minimum wage by virtue of entering into the training agreement. For
the purpose only of fixing a minimum wage, the adult apprentice must continue to
receive the minimum wage that applies to the classification specified in clause X in
which the adult apprentice was engaged immediately prior to entering into the training
agreement.”
[247] For reasons discussed earlier when considering jurisdictional matters, we agree with
the employer submissions that any new provision for maintenance of salary should refer to no
“reduction in the minimum wage by virtue of entering into the training agreement” rather than
by reference to actual rate of pay.
[248] We note that with respect to the Building and Joinery Awards, the CFMEU seeks the
inclusion of the words “all purpose” in relation to the ‘no loss of pay’ provision. It was
suggested that this is appropriate in order to clarify the current application of the provision.
We request that the parties concerned with these awards confer as to whether or not the
addition of these words is necessary, so that the matter can be considered in the finalisation of
orders.
[249] We have considered the Commonwealth’s suggestion that there may be value in
defining an existing worker within an enterprise for the purpose of the ‘no loss of pay’
provision. It was suggested that the definition which is used for Commonwealth employer
apprenticeship subsidy purposes, namely three months’ full-time or 12 months’ part-time or
casual prior engagement, may be appropriate.
[250] One of the reasons that the ‘no loss of pay’ provision is appropriate relates to the
skills, knowledge and experience likely to be contributed by an existing employee. Those
benefits may not be present in a situation where the employee has only been employed in the
enterprise for a very short period. In the relevant awards where new ‘no loss of pay’
provisions for existing workers commencing an adult apprenticeship are inserted, we will
include a provision that the apprentice must have been an employee in that enterprise for at
least six months as a full-time employee or twelve months as a part-time or regular and
systematic casual employee immediately prior to commencing the apprenticeship.
The minimum rates for adult apprentices
[251] In considering appropriate rates for adult apprentices, we have had regard to various
matters, including the relationship between rates of pay for apprentices and trainees and the
‘training’ nature of apprentice wages.
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[252] We accept that there is a strong argument in favour of the adult minimum wage being
a floor for adult apprentice rates. As the South Australian Industrial Relations Commission
said in adopting this approach in fixing rates for adult apprentices:
“Such employees are adults with life skills and often work experience and they are subject to
adult costs of living. Further, given the demand for more apprentices and need to encourage
workers to take up such vocations, we consider adult apprentices in general terms should be
entitled to the adult minimum wage.”133
[253] However we also recognise that if employers are required to pay an adult apprentice
the same rate as a similarly skilled worker who is available 100% of the time this may act as a
disincentive to engage adult apprentices. Although we are satisfied that it is necessary to meet
the modern awards and minimum wages objectives to set the rate for a first year adult
apprentice at a higher rate than currently exists in a number of awards, we consider that in
respect of an adult apprentice, who is not an existing employee in an enterprise, some
allowance must be made for the fact that they will spend approximately 20% of working time
in the first year in off-the-job training and not in productive work.
[254] We have also considered the relationship between rates of pay for apprentices and
trainees. Although we accept the submissions that generally an apprenticeship is a more
intensive and prolonged training program than a traineeship, there should not be too great a
disparity between the rate paid to an adult trainee and the rate paid to an adult apprentice in
the first year. Traineeships are generally, but not exclusively, no more than one year in
duration for full-time employees, so this is not a relevant consideration after the first year.
[255] In the Manufacturing Award and some other awards the adult apprentice rate in the
first year is the same as the adult traineeship rate. The rate is linked to the Level B traineeship.
The engineering production traineeship is associated with the Level B rates but a number of
other manufacturing traineeships are associated with the Level A rates. We are not satisfied
that the linkage to the Level B traineeship remains appropriate given that the apprenticeship is
a training program for a level of skill which generally exceeds that associated with Level A
traineeships. We cannot see why an apprentice should be paid less than a trainee of similar
age and at a similar stage in their training program.
[256] The Apprenticeship Expert Panel said that “the Australian Apprenticeship brand [is]
being devalued over time by significant inconsistencies given that the integrity of alignments
between qualifications and classifications levels has broken down.” The Expert Panel saw
wage rates as a significant factor affecting the current status of Australian apprenticeships.
The Panel suggested that FWA, in conducting its review, should “consider additional
reference points for setting fair and sustainable relativities for those receiving apprentice and
trainee rates of pay”.134
[257] The industry skills council Manufacturing Skills Australia, in response to the Expert
Panel Report, said that “[d]ecoupling apprenticeships from traineeships will assist in
establishing the different skills requirements of apprenticeships and traineeships. While an
apprenticeship and a traineeship at [Australian Qualification Framework (AQF)] certificate III
133 Minimum Standard for Remuneration [2006] SAIRComm 13 at [94].
134 Apprenticeship Expert Panel Report, pp.95-96.
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level may have the same academic requirements, the skills requirements for an apprenticeship
are very different to those of a traineeship at that level.”135 This provides support for the
proposition that the value of the AQF III traineeships is not equivalent to the AQF III
apprenticeships. The overall intensity of training and skills development involved is different.
This is a consideration in favour of commencement rates for adult apprentices being higher
than the rate for a trainee at a similar age.
[258] We note that a number of awards provide for the first year adult apprentice to be paid
between 80% and 90% of the base trade rate, as illustrated in the following table:
RELEVANT AWARD AWARD RATE
Level B adult trainee (commencing rate for adult
apprentices in Manufacturing, Sugar, Higher Education and
Vehicle Awards)
$549.10
Level A adult trainee $568.70
80% to 83.5% of trade rate (commencing rate for adult
apprentices in the Black Coal (note trade rate $719.20), Coal
Export, Graphic Arts, Joinery, Timber, and TCF Awards)
$575.40-$605.00
Adult minimum wage (ACTU claim for commencing rate
for adult apprentices) Commencing Rate in Educational
Services, Local Government, Water, Building, and
Plumbing Awards is the minimum wage or lowest
classification rate.
$622.20
90% of C10 Rate (commencing rate in Aluminium Award $652.10
C10 $724.50
[259] We have decided with respect to the applications before us that the appropriate
minimum rate for an adult apprentice, who is not an existing employee at an enterprise, in the
first year or stage of the apprenticeship, should be 80% of the C10 or base trade rate unless an
award already provides for a higher rate. This would generally provide for a commencement
rate of $579.60 for adult apprentices.136
[260] We consider it appropriate that the minimum rate for an adult apprentice in the second
year or stage of the apprenticeship should be the adult minimum wage or the lowest
classification rate in the award, whichever is the greater. The adult apprentice is likely to be
sufficiently productive in the second year or stage to justify minimum payment at this level.
This level of payment corresponds with the existing rates in the Manufacturing, Sugar, Higher
Education and Vehicle Awards for a second year adult apprentice. If the current award rate is
greater, then it will continue to apply. We will not disturb the rates for the third and fourth
year or stage in those awards which currently have higher rates for adult apprentices at those
stages.
[261] We accept that adult apprentices should be paid the higher of the relevant apprentice
rate for the year or stage of the apprenticeship or the relevant adult apprentice rate. There was
no substantive opposition to this approach.
135 Manufacturing Skills Australia, Response to the Expert Panel Report, April 2011, p.10.
136 It is not intended that the commencement rate in the Black Coal Award be varied by this decision.
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[262] In the other awards where we are introducing rates for adult apprentices there was no
proposal that we introduce specific rates for third and fourth year or stage adult apprentices.
We will not introduce such rates but will provide that in subsequent years or stages the rate
should not be less than the rate otherwise applicable to an apprentice who is a junior at that
stage of the apprenticeship.
Definition of adult apprentice
[263] The ACTU seeks that the adult apprentice rates should be applied to apprentices aged
20 years and over. This change was not sought by the unions in relation to all the awards
before us.
[264] We have considered the evidence and submissions in regard to the appropriate
definition of adult apprentices. We recognise that it is a difficult matter to determine where
the appropriate line should be drawn in relation to minimum wages between workers in
different age groups.
[265] We accept that the living cost pressures for apprentices will tend to increase with age.
In this regard it may be appropriate to distinguish between an 18 year old apprentice and an
adult apprentice. The case for distinguishing between a 20 year old and a 21 year old upon
commencing an apprenticeship is much weaker. In respect of 20 year olds, the rates for
unapprenticed juniors at 20 years of age vary between the awards which include provisions
for apprentices. Some of the awards have discounted rates for unapprenticed 20 year olds and
some do not. We accept the force in the NECA submission that there may often be more
difference between an apprentice at age 25 years who was previously employed in the
enterprise and an inexperienced apprentice aged 20 years than there is between an 18 or 19
year old apprentice and a 20 year old apprentice.
[266] We have decided to introduce award provisions which recognise the skills and
experience of adult apprentices and which ensure that existing employees will not be
disadvantaged when commencing an adult apprenticeship. These provisions are necessary to
meet the modern awards and minimum wages objectives in the Act. We are not however
persuaded, on the basis of the evidence and submissions before us, that the case has been
made for applying the adult apprenticeship provisions to a wider category of workers. This
would increase the cost burden on employers of the award variations that we have otherwise
determined are appropriate to be made at this time, and may act as a disincentive to engage 20
year old apprentices.
[267] We have therefore decided that the adult apprenticeship provisions should apply only
to apprentices who are 21 years of age or over at the commencement of their apprenticeship.
(iii) Competency based wage progression
[268] The applications by the CFMEU and AMWU seek to introduce competency based
wage progression (CBWP) into the Building, Joinery, Airlines, Sugar and Graphic Arts
Awards. The Commonwealth urged the Commission to facilitate the introduction of CBWP in
all awards with apprenticeship provisions. The Apprenticeship Expert Panel in its report
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recommended that FWA should consider the removal of barriers to CBWP in modern
awards.137
[269] The Commonwealth indicated that only six modern awards provide for some form of
CBWP and a further three provide for some recognition of previous experience to commence
at a higher wage. Four modern awards have comprehensive provisions for CBWP.
[270] The national training system has provided for apprentices and other vocational training
students to progress through courses on the basis of the acquisition of competency for several
decades. Where this results in an apprentice acquiring competencies more quickly the
employer has the ability to apply those additional competencies in the workplace and may
gain some productivity benefits. However, this competency based training progression must
be distinguished from CBWP. CBWP means that upon the acquisition of the competencies
associated with a particular year or stage of the apprenticeship, the apprentice is entitled to be
paid the minimum wage rate associated with the next year or stage. CBWP should also be
distinguished from competency based completion. The system for regulation of
apprenticeships has traditionally allowed for earlier completion and in some cases for later
completion. The ability to complete an apprenticeship early where all the necessary
competencies have been achieved is now more widespread and a number of awards provide
for it.
[271] A number of reports provided to the Commission refer to the benefits of CBWP for
apprentices including:
Providing incentive for apprentices to apply themselves to their training and to
persevere with that training.
Recognition and reward for effort.
The capacity to respond more effectively to the skill needs of the economy through
the production of qualified tradespersons more quickly.
The encouragement of higher quality training and training which is more attuned to
the emerging needs of industry by better integration of on and off-the-job learning
and stronger partnerships between employers of apprentices and Registered Training
Organisations (RTOs). This arises because the achievement of competency involves
the combination of both on and off-the-job learning, and because competency based
progression requires better integration of the process of competency sign off between
apprentices, employers and RTOs.
Increased labour market opportunities as local skills formation is facilitated rather
than relying on importation of temporary skilled labour.
Improved opportunities for more mature existing workers in an industry to have their
skills recognised and to complete apprenticeships within a reduced time frame.
137 Apprenticeship Expert Panel Report, Recommendation 12, p.94.
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More flexible and responsive RTOs. CBWP will create market pressure from
apprentices and in some cases employers for RTOs to provide more flexible
approaches to training delivery so as to enable recognition of existing skills and
differential rates of progression adapting to the needs of individual learners and
businesses. This will enhance productivity.
[272] No party argued against the value of CBWP provided it was properly implemented.
[273] The CFMEU referred to the Board of Vocational Education and Training NSW
(BVET) study which noted the dissatisfaction of employers and apprentices with the lack of
CBWP.138 Mr Robert Cameron, Apprentice Training Coordinator, gave evidence for the
CFMEU concerning the successful implementation of CBWP in the building industry in
Queensland over a number of years. The CFMEU pointed to the fact that building and
construction apprentices employed under the Manufacturing Award have access to CBWP
and that there has been no evidence of any significant problems arising as a result of that
provision.
[274] The MTA support CBWP and there is provision for it in the Vehicle Award. However
the MTA note that there have been some difficulties with RTOs adapting to competency
based progression. The MTA agree that the award provision has removed barriers to CBWP
but has not necessarily meant that it has been fully implemented throughout the industry
because of a range of implementation issues.
[275] The AMWU submitted that no good reason has been advanced that an engineering
apprentice employed under the Sugar Award, doing the same qualification as an apprentice
under the Manufacturing Award, should not have access to CBWP. The AMWU also
submitted that in the Graphic Arts Award competency based training progression is provided
for but not CBWP. It was said that, unless provision is made in the awards for CBWP,
employers will get the benefit of competency based progression in the acquisition of skills
without the employee getting the benefit of being paid for those competencies. This is unfair
and discourages progression and completion.
[276] Governments, the ACTU and peak employer bodies have supported competency based
progression including CBWP for more than ten years. The Ai Group and the AMWU jointly
proposed variations which introduced CBWP into the Metal, Engineering and Associated
Industries Award 1998 in 2006. There have also been CBWP provisions in Queensland
awards for all trades for a similar period. There was no evidence before the Commission of
any significant problems created by these provisions. The evidence that was provided
suggested that the CBWP arrangements generally have worked successfully and have
facilitated earlier completion of apprenticeships. In this regard we note that the average
duration of the engineering apprenticeship is now approximately three years as opposed to the
nominal duration of four years.
[277] Group Training Australia supported the introduction of CBWP provisions into modern
awards through the Transitional Review:
138 Mary Dickie, Rod McDonald and Fadil Pedic, “A fair deal: Apprentices and their employers in NSW”. Integrated
Research Report. Quay Connection, Ithaca Group and the Research Forum. Prepared for the NSW Board of Vocational
Education and Training. November 2011. pp.15-6 (BVET Report).
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“Group Training Australia's concern is in relation to how common anomalies and/or objectives
across awards or industries may be managed in an award by award process. For example the
application of competency based training and CBWP varies across the country. The Council of
Australian Governments’ Meeting 10 February 2006 agreed that by December 2006 measures
would be in place to implement competency based training progression (CBTP). This is the
responsibility of the State and Territory training authorities. To support such a system, CBWP
is required in modern awards. The application of CBWP is currently limited to 4 modern
awards. Despite the COAG agreement CBWP has not commonly been adopted in modern
awards. The review of modern awards may be an opportunity for FWA to provide for a
common approach to CBWP across modern awards while taking into consideration the
licensing requirements in some trades. A common schedule outlining matters such as those
outlined in the Government's scoping paper of 23 May 2012 could provide common
approaches to issues such as assessment of competency on which wage progression is based,
i.e. how is the assessment of competency determined so a pay rate may be established.”139
[278] The NSW Government supported having CBWP provisions in modern awards:
“Of major concern in relation to Modern Awards is the four year wage structure in trades where
NSW apprenticeships have been established with three year nominal terms, inadequate
provision for competency based progression and gaps in the provision of school based part-
time apprenticeships.
This is hindering NSW’s ability to fully implement the COAG directives for states and
territories to shorten the duration of apprenticeships where competencies are demonstrated.”140
[279] The Western Australian Government also indicated its support for the inclusion of
competency based training arrangements and the inclusion of provisions in modern awards to
facilitate such arrangements.
[280] Some of the administrative barriers and inconsistencies in this area are being tackled
through the Council of Australian Governments (COAG) and in particular through the
National Partnership Agreement on Skills Reform.141
[281] The Commonwealth and relevant stakeholders have developed “Principles for
competency-based wage progression for Australian Apprentices” (CBWP Principles) which
are supported by the peak industry councils. The following CBWP Principles are of particular
relevance:142
“Each stage of the apprenticeship should identify competency requirements which, once
accomplished, allow the apprentice to progress to the next stage of the apprenticeship and next
wage level provided [that]... the apprentice, the employer and the RTO agree that the
apprentice possesses the necessary competency requirements covered by the training
agreement and relevant industry training package...
139 Group Training Australia Submission, 9 July 2012, para 16.
140 Cover letter to submission of NSW Government, acting through its State Training Services, 29 January 2013.
141 Exhibit CTH7.
142 Exhibit CTH3, Attachment 1, principles 4 and 5.
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... Competency assessment is a three way process between the employer, the apprentice and
the RTO. Each party must agree that the apprentice has the necessary skills, knowledge and
practical experience to consistently demonstrate required competencies in a variety of work
contexts and consistent with the training package requirements.”
[282] A number of witnesses and parties submitted that RTOs generally did not offer the
necessary flexibility in the scheduling of training and assessment to achieve CBWP. It was
said that sometimes the decision as to whether or not an apprentice was competent was made
by the RTO and that this would have no regard to whether the apprentice was actually
competent to perform the work on the job.
[283] MBA referred to a Workplace Research Centre report of June 2012,143 which
concluded that the utilisation of competency based progression is fundamentally premised on
stakeholders’ perception of the usability of the concept. The report suggests that practical and
attitudinal barriers must be removed if a higher take up of competency based progression is to
be achieved.
[284] MBA and HIA support the principle of CBWP but submitted that it should not be
introduced in the building awards until various issues are resolved. MBA and HIA submitted
that if a stage of the apprenticeship was defined as 25% of the competencies, there was no
practical mechanism to determine what this means. In the Manufacturing Award,
competencies have points assigned to them so that account can be taken of competencies
which take more time to achieve than others. Particular competencies have pre-requisites so
that competencies in a particular skill area are achieved in the right order. MBA submitted
that it is matter for the relevant skills council to determine what the relevant competencies for
each stage of an apprenticeship are and the mechanism for sign off of competency before
CBWP can be introduced in the building and construction industry. The CFMEU did not
accept these arguments and pointed to the successful operation of CBWP in Queensland for
many years despite the prerequisites raised by the MBA not being in place. The HIA
submitted that in Queensland other supportive arrangements are in place which facilitate
competency based progression. The primary support is through the appointment of an RTO
which has a supervisory role, including with respect to assessment arrangements.
[285] In relation to the Graphic Arts Award, the PIAA indicated that it has jointly applied
with the AMWU for funding to promote competency based progression. It was therefore
submitted that any variation to the Graphic Arts Award should only be made after the
completion of this project.
[286] The State Chambers of Commerce and Industry referred to a number of State and
Commonwealth programs designed to promote CBWP and in particular effective industry
involvement in the assessment of competencies. It was said that this is occurring particularly
in those areas where award provisions exist. The Chambers accepted that an award provision
would remove some of the barriers to accessing State and Territory legislation that facilitates
CBWP. CCIWA acknowledged that the alternative approach of waiting until the details of the
training and assessment support system are in place has not worked over the past decade.
143 Workplace Research Centre, ‘A step into the breach: Group Training initiatives and innovations using competency-based
progression’, Final Report, June 2012.
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[287] The employer organisations and the CEPU opposed any award provision for
competency based progression in the plumbing and electrical contracting industries. However,
they did provide detailed evidence of the trial competency based progression process funded
by the Commonwealth which is underway with respect to electrical apprentices.
[288] Mr Nicholas Minto, Senior Policy Adviser, Employment Education and Training,
NSW Business Chamber, gave evidence that it was more appropriate at this stage to ensure
the training system is fully equipped to deliver competency based progression prior to any
changes to modern awards. However, Mr Minto accepted that if the award provision was in
place but the training system did not have sufficient flexibility there would be no
disadvantage to the employer because the apprentice would simply not progress at a faster
rate. Mr Minto confirmed the support of the Chamber for CBWP and accepted that the shift to
CBWP would be facilitated by greater recognition within awards of the concept of CBWP.
[289] ABI, MBA and others expressed concern that the variations proposed could mean that
progression would occur based simply on the completion of TAFE related course
components.
[290] We consider that the proposed variations and the existing Manufacturing Award
provisions make it clear that progression is based upon the achievement of the required
proportion of the competencies, which is clearly something more than successful acquisition
of knowledge and theory. In respect to the Manufacturing Award the industry parties have,
through the relevant Industry Skills Council, developed guidelines to ensure that the RTO
involves the employer and the apprentice prior to competency sign off so that it can be
effective for the purposes of CBWP and completion.
[291] Mr Dean Arundell, who manages Australian Industry Group Training Services (a large
group training scheme linked to the Ai Group) gave evidence that competency based
progression works well in his group scheme and that it had some effect in accelerating the rate
of progression through apprenticeships. Mr Arundell also said that the RTO, the employer and
the apprentice are involved in decisions about whether competency had been achieved to
justify progression and/or completion.
[292] We consider that CBWP will have greater impact if there are corresponding changes
in the training system to maximise the opportunities for competency based training
progression, including flexible delivery, industry level processes and partnerships for
competency based sign off, complementary work by industry skills councils, and enhanced
processes for recognition of prior learning and current competencies. Many of these matters
are on the agenda of COAG.144 Some of the matters will be progressed through Australia’s
eleven Industry Skills Councils. Other implementation details will require further discussions
between industrial parties.
[293] Overall the evidence supports a conclusion that CBWP award provisions have
achieved the objective of facilitating CBWP in those awards where they have been in
existence for some time. The corresponding reforms to the training system and to industry
culture are occurring progressively but are not yet complete.
144 COAG, National Partnership Agreement on Skills Reform.
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[294] We consider that if awards are varied to facilitate CBWP then some employers and
RTOs will utilise the opportunity. There is nothing raised by the employer organisations that
satisfies us that it would be harmful to introduce such facilitative provisions into awards.
[295] We are satisfied that it is consistent with the modern awards objective for the
Commission to facilitate the introduction of CBWP for apprentices in awards where it is not
already provided for. We agree with the submission of the Commonwealth that the adoption
of CBWP in awards supports the modern awards objective of promoting flexible modern
work practices and the efficient performance of work (s.134(1)(d) of the Act). We are also
satisfied that such a provision will promote productivity in that it will facilitate a more skilled
workforce (s.134(1)(f)).
[296] The Commonwealth advised that it would be willing to take an active role in assisting
the parties to develop appropriate award provisions for CBWP, and supported the
Commission arbitrating the matter if a consent position cannot be reached. The
Commonwealth proposed that the award provisions should be in operation by 1 January 2014.
[297] The Ai Group, ACTU, CFMEU, and MBA all supported the concept of further
discussions between the industrial parties about CBWP provisions with the Commission
providing assistance in that process.
[298] The AMWU referred to Clause 15.8 of the Manufacturing Award which provides as
follows:
“15.8 Notwithstanding the nominal period, the apprenticeship is completed in a shorter
period when:
(a) the qualification specified in the training agreement is successfully completed;
and
(b) the apprentice has the necessary practical experience to achieve competency
in the skills covered by the training agreement, provided that the determination as to
whether this condition has been met must be by agreement between the registered
training organisation, the employer and the apprentice and where there is a
disagreement concerning this matter the matter may be referred to the relevant
State/Territory apprenticeship authority for determination; and
(c) the requirements of the relevant State/Territory apprenticeship authority and
any requirements of Manufacturing Skills Australia with respect to demonstration of
competency and any minimum necessary work experience requirements are met; and
(d) with respect to trades where there are additional licensing or regulatory
requirements under State legislation, when these requirements are met.”
[299] We have decided that those awards which are the subject of the AMWU and CFMEU
applications will be varied to provide for CBWP from 1 January 2014. The variations should
reflect the criteria for competency based completion currently found in clause 15.8 of the
Manufacturing Award and will provide for progression through the wage rates for each year
or stage of the apprenticeship based upon achievement of the relevant proportion of the
competencies. We consider that there should be further discussions between the parties about
the appropriate wording of the variations to the relevant awards.
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[300] We accept that at this stage it is appropriate to exempt those undertaking training for
the qualification in the Electrotechnology Training Package from the CBWP provision in the
Building and Joinery Awards.
[301] In relation to the awards before us where there is no specific CBWP variation
application, we believe that further efforts should be made by the parties towards the
introduction of CBWP in those awards. Many of those involved with the apprenticeship
system are rightly frustrated about the length of time it has taken to progress this matter. The
Apprenticeship Expert Panel Report, the decisions of COAG and the agreement between the
peak industrial parties represent a high level of consensus that awards should provide for
CBWP. The rationale advanced for CBWP is consistent with the considerations in the modern
awards and minimum wages objectives.
[302] For reasons set out earlier, we consider that awards which contain apprenticeship
provisions where the qualifications are competency based should also provide the opportunity
for CBWP. In order to move forward with this matter, we consider that a model clause should
be developed, noting that there may be award specific variations to take account of specific
industry and trade circumstances such as whether or not competency units are weighted,
whether or not license provisions apply and the relationship with proficiency payments where
they apply. The Commonwealth should take the initiative to assist in organising the process of
further discussion between the parties within the framework of the CBWP Principles
developed by the peak industry bodies and the Commonwealth.
(iv) Apprentice conditions of employment
Travel time; travel and accommodation costs; recognition of training
[303] The AMWU, CEPU and CFMEU are seeking variations so that existing award
provisions with respect to work-related travelling allowances, travelling time and fares apply
to travel for off-the-job apprentice training. In some cases the unions seek that the provisions
only apply to excess travelling time and costs. Where the training involves overnight stays,
such as with block release training at a distant location, the unions are seeking that the award
provisions concerning remote work including travel, accommodation and other expenses
should apply. Where there are no appropriate award provisions the unions are seeking to
introduce equivalent provisions.
[304] The unions are also seeking a number of variations to provide that attendance at
training is to be treated as if it were attendance at work for various purposes in the relevant
award.
[305] Some of the submissions of the unions proceeded on the basis that there was some
ambiguity or doubt as to whether or not existing provisions for travel allowance, travel time
and costs apply to apprentices when attending off-the-job training as part of their training
plan.
[306] The relevant apprenticeship provisions in awards generally ensure that time spent by
an apprentice in attending any training and assessment specified in, or associated with, the
training contract is to be regarded as time worked for the employer for the purposes of
calculating wages and service. This is consistent with the provisions of relevant State
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apprenticeship legislation145 and the Apprenticeship/Traineeship Training Contract (the
standard training contract).
[307] That apprenticeship training takes place within paid hours is a long-established
practice in awards. There is also a long established-principle that apprentices are entitled to all
award conditions unless otherwise specifically stated. However, some allowances are
associated with specific work or disability. Employers argue that travel provisions are
associated with the disability of certain work and that does not include off-the-job apprentice
training.
[308] In CFMEU v The Master Builders Group Training Scheme Inc146 (CFMEU v MBGTS)
the Full Federal Court dealt with an appeal concerning the proper interpretation of clause 38
of the National Building and Construction Industry Award 2000 as it applied to apprentices in
South Australia, and in particular whether an apprentice was entitled to the fares and travel
allowance on a day when they were at trade school. The Court noted that it was “... not in
dispute that the apprentices attend trade school in the course of, and as part of, their
employment.”147 However, the Court determined that an apprentice whilst attending off-the-
job training was not “employed on work” within the meaning of the travel allowance
provisions of the relevant award and therefore was not entitled to be paid the allowance to
attend that training. The terms of the clause stated that the allowance was to be “paid to
employees for travel patterns and costs peculiar to the industry which include mobility
requirements on employees and the nature of employment on construction work.” The Court
found that “[a]n apprentice’s travel to trade school does not involve travel patterns and costs
peculiar to the building and construction industry and has nothing to do with the nature of
employment on construction work”.148
[309] A similar approach was adopted in the CEPU v Excelior Pty Ltd,149 which considered
the interaction between the Telecommunications Award and the NTWS. The CEPU argued in
that case that clause E.6.3 of the NTWS was a ‘definitional clause’ which modified the
meaning of ‘work’ in the award so that it included ‘training’. Cameron FM held that clause
E.6.3 did not operate to change the definition of ‘work’ in the award, noting that there was a
historical distinction between training and work that had underpinned a number of previous
decisions (including CFMEU v MBGTS).150 Consequently, while the award required trainees
to be paid while in attendance at training, no allowances were payable to trainees who were
required to travel for training purposes. An appeal against this decision by the CEPU was
dismissed.151
[310] In some cases, State training legislation provides that attendance at off-the-job
apprenticeship training is deemed to be attendance at work for the purposes of any
145 See e.g. the Education and Training Reform Act 2006 (Vic) s.5.58(2); Training and Skills Development Act 2008 (SA)
s.46(10)-(11); Vocational Education and Training Act 1996 (WA) s.60E(1)(a)(iv); Apprenticeship and Traineeship Act
2001 (NSW) s.19.
146 [2007] FCAFC 165.
147 Ibid at [13].
148 Ibid at [20].
149 [2012] FMCA 621.
150 Ibid at [58]-[59].
151CEPU v Excelior Pty Ltd [2013] FCA 638 (Katzmann J).
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employment agreement or contract. This is reflected in the provisions of the NTWS in
modern awards as follows:
“X.6.3 Time spent by a trainee, other than a trainee undertaking a school-based traineeship, in
attending any training and assessment specified in, or associated with, the training contract is
to be regarded as time worked for the employer for the purposes of calculating the trainee’s
wages and determining the trainee’s employment conditions.”
[311] However, neither the legislation nor the award provision says anything about the time
spent in travelling to attend training or assessment. The provisions are about the time spent in
attending training and assessment.
[312] For these reasons we accept the submissions of the employers that with respect to
travel and accommodation costs there is no anomaly or technical problem arising from the
creation of the modern awards. The current provisions are consistent with the principle that
apprentices are entitled to the provisions of the award unless specified. The courts have found
that particular allowance clauses in terms only apply to work and not to training.
[313] In these circumstances, the unions would need to demonstrate on the merits that time
and costs associated with travelling to off-the-job apprentice training should be treated in the
same way as travel required for work.
[314] The unions’ primary submission is that, given the low pay of apprentices and the
significant costs involved in some cases in attending off-the-job training, the awards should
be varied to provide that allowances should apply for travel to attend such training. It was
submitted that the apprentice is required as part of their contract of training and contract of
employment to attend off-the-job training and should be entitled to all award conditions
which would otherwise apply to such attendance as if it was attendance at work. It was said
that the current situation is unfair and unreasonable.
[315] The CEPU suggested that attendance at a different location for training is analogous to
attendance at a different location for work, which is commonplace in the industry. CEPU
Organiser Mr Omar Merhi gave evidence that payment of travel time for off-the-job training
to apprentices in the electrical contracting industry is a widespread provision in a large
number of collective agreements in Victoria. CFMEU Organiser Mr Terry Kesby gave
evidence that apprentices in NSW under the State award “were paid fares and travelling to
attend TAFE”, however under the modern award “this has become a grey area as there is no
specific provision in the award”. Evidence from apprentices called by the CFMEU does not
indicate that fares and travel allowance or other costs were paid by employers for attendance
at block release training. However, the apprentices did give evidence of the significant costs
and distances involved. The AMWU also provided evidence of the hardship caused by travel
costs and the costs of attendance at block release training. There was, for example, evidence
about apprentices sleeping in their cars overnight to attend training.152 The AMWU apprentice
survey reveals instances of concern about the impact of travel and accommodation costs
associated with attendance at training and notes that a significant proportion of apprenticeship
training occurs through block release.
152 Mr Nigel Muller also referred to having witnessed apprentices sleeping in cars overnight during his time as a trainer at
Box Hill TAFE in Victoria: Transcript of 4 April 2013, PN8545.
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[316] It is not in contention that a number of apprentices when attending training are
required to stay away from their usual place of residence overnight. This particularly affects
apprentices from regional areas or in more specialised trades where there may be long
distances to the nearest appropriate TAFE. Mr Timothy Phelps from Group Training and
Employment Specialists (GTES), a large group training scheme, suggested that in most cases
the burden of these costs is passed on to parents.
[317] The Commonwealth referred to the report of the Apprenticeship Expert Panel, which
notes that “some modern awards do not explicitly include a provision specifying payment
while an apprentice is carrying out off-the-job training”. The Commonwealth supported the
Commission revising the terms and rates of training related allowances to achieve greater
consistency across awards as this will contribute to the achievement of a simple and easy to
understand modern award system, and would encourage take up and completion of
apprenticeships and traineeships as recommended by the Expert Panel. The Commonwealth
submitted that apprentices should not be expected to meet unreasonable travel costs
associated with undertaking training.
[318] The employers submitted that there would be significant costs to employers if the
current situation where travel and accommodation provisions do not apply was altered. It was
said that the additional costs would be a disincentive to the engagement of apprentices. It was
also said that the proposed variations will have a disproportionate impact on regionally based
employers who have no other option but to send apprentices for block release training. In this
regard it was submitted that the proposed variations would reduce social inclusion by
potentially disadvantaging employers and young people in regional, rural and remote areas,
contrary to s.134(1)(c) of the Act.
[319] It was also submitted by the employers that an extension of travel provisions will
mean that the cost of employing an apprentice will be uncertain, as it will depend upon the
residence of the apprentice and the location of the training provider, matters not within the
control of an employer. Further it was said that there could be compliance problems because
of the difficulty in ascertaining the correct number of hours for payment.
[320] The PIAA submitted that the AMWU’s submissions and evidence do not apply
specifically to the Graphic Arts Award. It was said that evidence specific to the Graphic Arts
Award is required, even if similarities between awards exist. The NECA submitted that all
awards relevant to the electrical contracting industry since 1960 have provided for fares and
travelling time allowances relevant to employees required to start and/or finish at work sites,
and that these provisions have not applied to attendance by apprentices at trade schools. The
HIA submitted that witness evidence as to the distance an apprentice must travel to attend
training does not equate to a necessity to vary the award. It was said that the evidence shows
that an apprentice can choose their TAFE location.
[321] The MTA supported the principle of payment for time spent in attendance at training
and for travel where it takes place in ordinary hours, but opposed the union claim for award
excess travel time provisions to apply to attendance at off-the-job apprentice training.
[322] We have considered all the evidence and submissions presented in reaching our
conclusions regarding the extension of award travel provisions to apprentices. We note that
off-the-job training is an essential part of an apprenticeship and that the evidence shows that
some apprentices may suffer hardship in meeting travel costs to attend such training.
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[323] Award travel provisions apply to apprentices when they are required to travel to
different work sites. These provisions may apply in some situations to off-the-job apprentice
training. For example, the AMWU referred to the decision in Rohrlach v Career Employment
Group Inc153 (Rohrlach) as authority for the proposition that clause 32.5(b) of the
Manufacturing Award has application to apprentices.
[324] In relation to travel for day release training there was little evidence of the incidence
of excess travel. We therefore do not adequately understand the extent to which this is a
significant problem for apprentices or the extent of the cost impact upon employers of the
variations sought. We also recognise that there may be administrative difficulties in the
calculation and verification of excess travel time and cost claims given that three parties are
involved: the RTO, the apprentice and the employer.
[325] Overall, we do not consider that the union case has demonstrated that it is necessary to
meet the modern awards objective to generally extend the concept of the fares and travelling
pattern allowance in the construction and electrical contracting awards to apprentice off-the-
job training. Similarly in relation to the other applications the unions have not demonstrated
that the concept of excess travelling time applicable to approved work travel should be
extended generally to apprentice travel for off-the-job training.
[326] There is a stronger case with respect to the situation where an apprentice is required to
attend block release training at a distant location. The costs associated with travelling, and in
some cases, of accommodation in these situations may be significant given the low income of
apprentices. The consequential impact on apprenticeship participation and on living standards
is therefore far greater. It is hard to see why an employee who is required by the terms of his
or her contract of employment to attend training far from their usual workplace should have to
meet most of the costs of travel and accommodation to enable them to do so. The unions
noted that in these situations there may be some government assistance available and
proposed that any such assistance be deducted from any award obligation of the employer.
[327] Only a small proportion of apprentices are required to attend block release training at a
distant location. We do not have evidence of the exact proportion. However, there was
evidence that in some industries block release is not a common practice. The evidence was
that in Victoria generally block release training does not involve a requirement for apprentices
to stay away from home overnight.
[328] The provisions sought by the unions in respect to attendance at block release training
which requires an overnight stay mirror those which apply to distant work in the awards. The
costs for which the unions seek reimbursement include: excess costs of travel, travelling time,
other expenses including accommodation and board, and the cost of returning home after each
four week period.
[329] A requirement for employers to meet excess travel and other costs for block release
training involving overnight stays away from home would have particular impact on
employers in regional Australia. There is also an issue about who chooses the location of the
training. In many cases there will be little real choice. If there is no TAFE college in the
153 [2012] SAIRComm 7.
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regional locality then distant travel is inevitable. In cases where “user choice” applies, the
employer is likely to be able to have significant influence on the choice.
[330] We are satisfied that it is consistent with the modern awards objective to provide that
employers are required to meet some of the costs where an apprentice is required to attend
block release training at a distant location. However, in the absence of further evidence about
the possible impact on employers in regional Australia, we are not prepared to extend this to
the full range of costs which apply to distant work in awards. Government subsidies available
to apprentices in respect to travel and accommodation for distant training should be
considered as part of any future consideration of these issues.
[331] At this stage we will only vary the awards to provide for the payment of excess travel
costs for attendance at block release training which requires overnight stay, except where it is
open to the apprentice to attend an alternative RTO at a location closer to their usual
workplace and the use of the more distant RTO is not agreed between the employer and the
apprentice.
[332] We now turn to consider the variations proposed by the unions regarding the
recognition of training as work for award purposes.
[333] The unions submitted that it is necessary to meet the modern awards objective to
remove any uncertainty that, for apprentices, time spent in attending off-the-job training and
assessment consistent with the training contract is part of work time for the purposes of
service, wages, weekly ordinary hours and leave entitlements. It was submitted that where
awards do not already so provide, it should be made clear that except as provided in the
apprentice clause or otherwise stated, all conditions of employment specified in the award
apply to apprentices.
[334] This was opposed by the State Chambers of Commerce and Industry in their joint
submissions. It was pointed out that the standard training contract provides at paragraph (e)
that “the employer will release the apprentice/trainee from work and pay the appropriate
wages to attend any training and assessment specified in our Training Plan.” It was submitted
that if there are instances where paragraph (e) is not complied with, this is a breach of the
training contract and should be raised with the relevant State/Territory training authority. On
this basis, it was said that the variation sought by the unions is unnecessary as it simply seeks
to double-up on existing requirements that are adequately and appropriately dealt with by the
State/Territory training authorities. The engagement of apprentices is already a highly
regulated area and there is no evidence that the variation is necessary to achieve the modern
awards objective. However, the State Chambers of Commerce and Industry supported a
provision that leave entitlements accrue during training time where the training occurs during
ordinary hours.
[335] The NECA submitted that the acceptance of the CEPU application to define
attendance at trade school as ‘time worked’ has very real consequences for the payment of
overtime hours once the apprentice has reached a total of 38 ordinary hours in a week.
However we do not consider that clarification of this matter will result in any significant
change in current award entitlements in most circumstances.
[336] We accept that it is consistent with the modern awards objective to remove any
uncertainty that for apprentices the time spent in attending off-the-job training and assessment
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consistent with or associated with the training contract is regarded as part of work time for the
purposes of wages, weekly ordinary hours and leave entitlements. This is generally consistent
with the requirements of the relevant State legislation.
[337] Minimum entitlements to wages and allowances are appropriately determined through
awards and evidence suggests that the State apprenticeship bodies tend to deal with “training”
disputes rather than “employment conditions” disputes. It is appropriate that on such matters
the awards identify entitlements and that there be access to appropriate disputes settlement
procedures and enforcement mechanisms. We do not therefore accept that the provision in the
standard training contract is sufficient.
[338] The approach taken in the NTWS to the entitlements to the recognition of training
time and the application of award conditions to trainees is relevant. The clause provides:
“X.6.2 A trainee is entitled to be released from work without loss of continuity of
employment and to payment of the appropriate wages to attend any training and assessment
specified in, or associated with, the training contract.
X.6.3 Time spent by a trainee, other than a trainee undertaking a school-based traineeship, in
attending any training and assessment specified in, or associated with, the training contract is
to be regarded as time worked for the employer for the purposes of calculating the trainee’s
wages and determining the trainee’s employment conditions.
X.6.4 Subject to clause X.3.5 of this schedule, all other terms and conditions of this award
apply to a trainee unless specifically varied by this schedule.”
[339] These provisions of the NTWS were the subject of consideration in the award
modernisation process. We can see no reason why traineeships and apprenticeships should be
different in this respect.
[340] The Commonwealth supported the inclusion in awards of similar provisions for
apprentices:
“...the Government supports the inclusion of provisions in modern awards deeming time spent
by an apprentice attending off-the-job training as work time, including for the purposes of
calculating leave entitlements under the award and the National Employment Standards (NES).
Off-the-job training is an integral component of an apprenticeship which necessarily affects
arrangements for when an apprentice performs work (s 139(1)(c)). The Government considers
that this amendment would support the modern awards objective to provide a fair and relevant
minimum safety net taking into account, in particular, relative living standards and the needs
of the low paid (s 134(1)(a)).”
[341] We agree with this submission. We also agree with the union and Commonwealth
submissions that it is necessary to clarify that time spent in attending off-the-job training is
part of an apprentice’s service for the purpose of NES entitlements.
[342] The provisions in the NTWS provide a model where the current award provisions do
not clearly provide for entitlements equivalent to X.6.2 and X.6.3. We have decided that the
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awards in Schedule 7 of the ACTU common claims document154 should be varied to include
such provisions.
[343] We have also decided that the awards should include a provision to the effect that
except as provided in the apprentice clause or where otherwise stated, all conditions of
employment specified in the award apply to apprentices. A model for this provision is
provided by clause X.6.4 of the NTWS. We note that there is no provision of this sort in the
Airline and Vehicle Awards. For clarity and to avoid uncertainty we have decided that such a
provision should be inserted in those awards.
[344] We are not satisfied that there is sufficient evidence that the other variations under the
heading “when training time is work time and what follows from this” in the common claims
document155 sought by the unions are required to meet the modern awards objective or to
remove uncertainty.
Training costs - Fees and textbooks.
[345] Awards for apprentices generally provide for the payment of fees for off-the-job
training and for the fees to be reimbursed based upon “satisfactory progress”. The AMWU,
CEPU and CFMEU seek to remove any requirement for satisfactory progress and to require
the employer to take responsibility for the payment of fees. The unions also proposed that the
requirement to pay fees should extend to textbooks.
[346] The unions presented evidence about the significant impact of fees on apprentices. The
AMWU apprentice survey showed that the majority of apprentices are reimbursed for course
fees, textbooks and other course materials. However, a significant proportion get
reimbursement of training fees but not other costs and more than 10% reported no
reimbursement at all. There was evidence about some apprentices not being able to continue
apprenticeships because of training costs. The survey found that the top five issues of concern
for apprentices were (in order) lack of proper mentoring, low apprentice pay rate, poor quality
training, costs associated with training and the ratio of tradespeople to apprentices.
[347] The CFMEU also provided evidence about the problem of apprentices not being
reimbursed training fees, delays in reimbursement and the impact of the costs of fees and
textbooks. Mr Terry Kesby, a CFMEU organiser who is a member of NSW Vocational
Training Tribunal and Appeal Panel, gave evidence that it is common for apprentices to pay
TAFE fees and books and not to be reimbursed, particularly if the employer terminates the
apprentice prior to the end of a TAFE year. Mr Liam O’Hearn, CFMEU apprenticeship
officer, gave similar evidence with respect to Victoria.
[348] Two of the CEPU apprentice witnesses, Mr Christopher Punch and Mr Nigel Carroll,
gave evidence of the costs of textbooks to apprentices.
[349] The CEPU Plumbing Division does not seek to alter the requirement for
reimbursement based upon satisfactory progress but it does seek to extend reimbursement to
costs beyond course fees. The CEPU Plumbing Division submitted that the additional costs
154 Exhibit ACTU7.
155 Ibid.
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such as materials, resources and administration fees are usually built into course fees. It was
said that it would place award apprentices under financial pressure if it was not clarified that
such costs are included in reimbursement.
[350] Mr Nigel Muller is the manager of auto apprenticeships for the VACC group training
scheme, a major employer of apprentices. He suggested that trying to get TAFE fees from
apprentices was “virtually near impossible”, and that the current reimbursement mechanism
for TAFE fees may not be a successful motivator for apprentices to undertake or complete
their training. The VACC scheme pays the fees up front as an incentive to attract apprentices
and encourage completion.
[351] The employers opposed the union applications. It was submitted that requiring
employers to pay for fees and textbooks upfront without proof of satisfactory progress would
increase the cost burden on employers, making business, particularly small businesses, less
likely to engage apprentices. It was said that removing the requirement for satisfactory
progress would mean that where an apprentice failed units, failed to attend the required
training or wished to cancel the apprenticeship during the probationary period, the employer
would unnecessarily have incurred these costs.
[352] The State Chambers of Commerce and Industry submitted that the issue of apprentices
not being reimbursed by employers is a matter of enforcement and compliance and does not
demonstrate that award variations are necessary. It was said that increasing the costs of the
apprenticeship to the employer would undermine the achievement of the modern awards
objective, in particular taking into account s.134(1)(f) of the Act. The PIAA agreed with the
AMWU that the matter of fees and charges is dealt with inconsistently by the States and
Territories, but submitted that it is not appropriate to resolve these issues through award
prescription.156
[353] The evidence from both unions and employers showed diversity in the way that
current award provisions for reimbursement subject to satisfactory progress are applied. In
some cases the employers pay the fees directly, or reimburse the fees very early in the
apprenticeship year. In other cases, reimbursement occurs late in the year or not at all.
[354] The evidence also shows that there have been some significant changes in
apprenticeship off-the-job training in recent years including:
“User choice of provider”, whereby the employer and to some extent the apprentice
have a choice of the RTO;
Changes to the fee structure of TAFE courses with the introduction of a more
competitive training market. In some cases this has led to significant fee increases;
and
The introduction of competency based training and assessment which may involve
apprentices progressing at different pace and in some cases in the integration of off-
and on-the-job aspects of training and assessment.
156 PIAA Outline of Submissions in Response to application by AMWU, paras 17.1-17.4.
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[355] We are satisfied that in this changed environment the requirement for reimbursement
subject to satisfactory progress should be clarified. It would be unreasonable to interpret
satisfactory progress as meaning ‘following the satisfactory completion of all competency
units for the particular apprenticeship stage’. This could mean apprentices are out of pocket
for a year or more and would not be consistent with the modern awards objective due to the
impact on low paid workers (s.134(1)(a) of the Act). It may also act to discourage
apprenticeship completion and early apprenticeship completion (s.134(h)). On the other hand,
there is no reason that an employer should be required to pay fees up front in the case of a
first year apprentice who never attends the required off-the-job training. The evidence shows
that there is a significant drop out rate from apprenticeships during the probation period,
which is generally three months from commencement
[356] We consider that in the context of competency based training, the emphasis should be
on the demonstration of an appropriate level of commitment to the apprenticeship rather than
a requirement to have completed particular competencies. The objective of the award
provision should be both to avoid the apprentice having to meet the significant cost of fees
whilst on low pay and to avoid the employer being required to pay upfront fees in a situation
where an apprentice fails to effectively participate in training. Provided that it is not
mandatory for employers to pay fees prior to apprentices establishing satisfactory
commitment to the apprenticeship, and maintaining this in subsequent stages of their
apprenticeship, the cost impact on employers of the change is not likely to be significant
(s.134(1)(f)).
[357] We consider that to meet the modern awards objective it is appropriate to clarify the
award requirement for the reimbursement of training fees. There should be an addition to
current award provisions to require reimbursement of training fees to occur within six months
of commencement of the apprenticeship or the relevant stage of the apprenticeship unless
there is unsatisfactory progress. It should also be clear that payment of fees directly to the
training provider by an employer within six months of commencement of the apprenticeship
or stage of the apprenticeship will satisfy the award requirement.
[358] We consider six months to be an appropriate time frame. Stages of apprenticeships are
nominally one year in length. After six months an apprentice will be able to demonstrate a
reasonable record of attendance and participation in on and off-the-job training. A six month
outer time limit for reimbursement is likely to provide some relief and assistance to
apprentices in undertaking their training.
[359] The other aspect of the union applications is to clarify that reimbursement applies to
fees including textbooks where this is not currently clear in the award. As referred to earlier,
the evidence from the AMWU apprentice survey is that a significant proportion of employers
reimburse for textbooks but that some employers do not. If textbook or training resource costs
are included in fees then the employer is currently required to provide reimbursement.
[360] The provision in the Manufacturing Award, and some other awards, in respect to
training agreed by the employer requires payment of fees and prescribed textbooks (clause
32.5 of the Manufacturing Award). The proposed variations would ensure consistency
between these provisions and apprenticeship-specific provisions.
[361] The Commonwealth supported the union applications. The Commonwealth submitted
that apprentices should not be left out of pocket in relation to course fees or textbooks.
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[362] We accept that the cost of textbooks can be a hardship for apprentices given their low
pay. However there was limited evidence presented in the proceedings as to the actual cost of
textbooks generally associated with each of the trades and the extent to which such costs are
currently part of the fees charged by RTOs. In these circumstances we have decided to vary
the awards to provide for reimbursement for the cost of prescribed textbooks. The variations
will be subject to similar qualifications as in the Manufacturing Award. We also consider that
it may be appropriate to include a cap on the level of reimbursement for textbooks in
particular awards. This will be considered in the settlement of the award variations.
Attendance at training on an RDO
[363] The AMWU seeks to insert a provision into the Manufacturing, Graphic Arts, Sugar,
Airline and Vehicle Awards to the effect that an apprentice who attends off-the-job
apprenticeship training on an RDO must be allowed a substitute day off in the current or in
the next work cycle. It was said that the variation has a similar purpose to clause 44.3
(Rostered Day off Falling on a Public Holiday) of the Manufacturing Award. It was submitted
that it would be unfair to have apprentices work on a cycle accruing additional time for the
RDO and then lose it due to performing their duties under the training contract.
[364] The Ai Group, ABI, the PIAA and the State Chambers of Commerce and Industry
opposed the variations. The State Chambers of Commerce and Industry submitted that the
proposed variation would create unnecessary overlap with existing award provisions. In this
regard, we note that the Graphic Arts Award already contains a provision which is similar in
nature to the provisions proposed in the RDO variation. Clause 30.7(c)(ii) of that award
provides that where an employer adopts a system of work which entitles an employee to a day
off during a work cycle, an apprentice who is required to attend trade school on a RDO must
be entitled to substitute a day as soon as practicable following that attendance.
[365] Ordinary hours of work and rostering for employees, including apprentices, are
regulated by a range of provisions including, for example, clauses 15.11, 15.12, 15.14, 36 and
44.3 of the Manufacturing Award. These provisions, when read in conjunction with State
training legislation and the training contract, mean that apprentice off-the-job training is
generally conducted within paid working hours.
[366] There was no substantial evidence presented to show that the absence of the provision
sought has created problems. There was no direct evidence of apprentices accruing additional
time for the RDO and then losing it due to performing their duties under the training contract.
[367] In these circumstances, it has not been established that the proposed variation is
necessary or that there is good reason having regard to the modern awards objective to move
beyond the regulation of apprentice hours currently provided in the relevant awards. We will
not vary the awards in the manner sought.
Limitation on overtime and shiftwork
[368] The Manufacturing Award provides as follows:
“15.12 The ordinary hours of employment of apprentices in each enterprise are not to exceed
those of the relevant tradesperson ...
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15.16 An apprentice under the age of 18 years is not required to work overtime or shiftwork
unless such an apprentice so desires. No apprentice, except in an emergency, is to work or be
required to work overtime or shiftwork at times which would prevent their attendance in
training consistent with their training agreement.”
[369] The provisions in the Manufacturing Award are also found in a number of other
awards. The AMWU seeks to insert a provision of similar effect to clause 15.16 into the
Airlines, Graphic Arts and Vehicle Awards and a provision of similar effect to clause 15.12
into the Airline Award. The AMWU submitted that the variations are appropriate having
regard to various general considerations including the modern awards objective, the need to
ensure that the provisions of the award do not undermine the NES, and to allow apprentices to
complete their training.
[370] Generally the employers opposed the variations on the basis that there was inadequate
evidence to support them. The Ai Group and the State Chambers of Commerce and Industry
submitted that there are a range of mechanisms protecting employees undertaking an
apprenticeship from requirements to work unreasonable or unsafe hours. For example, the
standard training contract places an obligation on the employer to allow an apprentice to
attend the training specified in the training plan. The employers submitted that the
amendments are therefore unnecessary.
[371] The MTA opposed the prohibition on the rostering of overtime for apprentices. The
MTA survey asked employers “how would you respond if you were prohibited from rostering
overtime for apprentices under 18 years?” A number of the employer witnesses from the
vehicle repair industry were strongly opposed to a prohibition on the rostering of overtime. It
was clear that the employer witnesses did not accurately understand the AMWU claim and
several of them changed their views about the claim when it was clarified.
[372] We agree with the Ai Group that no case has been made out for placing additional
restrictions on employers being able to require employees to perform reasonable overtime or
shiftwork. The AMWU did not produce evidence of problems created by the absence of such
provisions in the specified awards which would justify the insertion of provisions further
limiting access to overtime or shiftwork for those under 18 years of age. Similarly we do not
consider that the AMWU has demonstrated the need for a provision that the ordinary hours of
apprentices not exceed those of the relevant tradesperson. We have therefore decided not to
vary the specified awards to include such provisions
[373] The variation sought to restrict the working of overtime and shift work by apprentices
where it would prevent attendance at training is in a different category. We do not consider
that such a provision would impose unreasonable limitations on the working of overtime or
shiftwork. Although the training contract provides an obligation on the employer to allow an
apprentice to attend training we consider that it is important that both the employer and the
apprentice be alert to the fact that in certain circumstances the working of overtime or
shiftwork may render attendance at training impractical, even if the overtime or the shiftwork
was not at the same time as the scheduled training. In this regard, we agree with the Ai Group
submission that overtime and shiftwork should not be unnecessarily restricted “where
reasonable and consistent with the training contract.”
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[374] There was significant evidence of the importance of access to quality training and
work experience consistent with the training contract and related training plan. This is an
essential part of an apprenticeship and is a necessary and defining characteristic of the type of
employment. Concerns about the quality of the work and training arrangements are significant
reasons given for non-completion of apprenticeships.
[375] We are satisfied that it is appropriate to include a provision in the awards subject to the
AMWU applications that:
“No apprentice, except in an emergency, is to work or be required to work overtime or
shiftwork at times which would prevent their attendance in training consistent with their
training contract.”
[376] Such a provision is necessary to ensure the effective operation of the provision in the
awards and relevant legislation to the effect that an employer must provide and/or provide
access to training consistent with the training contract without loss of pay. In the absence of
the provision, the working of overtime or shiftwork could make attendance at training
consistent with the training contract impractical.
[377] We consider that the inclusion of the provision will promote a higher quality
apprenticeship experience by ensuring that employers understand their obligation to ensure
that apprentices have effective access to training and to ensure that overtime and shiftwork
does not interfere with such access. This is consistent with the modern awards objective.
Extension of training contract due to absences
[378] The AMWU seeks to vary the provisions in the Sugar Award and the Manufacturing
Award which automatically extend the nominal duration of the apprenticeship for each day of
absence during each year of the apprenticeship, except in respect of absences due to annual
leave or long service leave. The AMWU also seeks to introduce the amended provisions into
the Vehicle Award and the Airline Award.
[379] The current provision in the Manufacturing Award is as follows:
“15.17 Apprentices are required to serve an additional day for each day of absence during
each year of their apprenticeship, except in respect of absences due to annual leave or long
service leave. The following year of their apprenticeship does not commence until the
additional days have been worked. However, any time that has been worked by the apprentice
in excess of their ordinary hours must be credited to the apprentice when calculating the
amount of additional time that needs to be worked in the relevant year.”
[380] The AMWU seeks to replace the provision in clause 15.17 and similar provisions in
the Sugar Award with a provision that an employer can apply to the relevant training authority
for an extension to the nominal duration of the apprenticeship contract where absences, other
than on paid leave, negatively affect progress. The provision sought would retain the current
provision in the Manufacturing Award that overtime worked must be taken into account in
determining whether an application to the relevant authority is warranted.
[381] Three main arguments were advanced in support of the proposed variations. First, that
the current approach mandating an extension of the nominal period is inconsistent with
competency based progression. The average duration of an engineering apprenticeship is 37
[2013] FWCFB 5411
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months as opposed to the nominal duration of 48 months.157 The AMWU submitted that this
demonstrates that the lost time provisions which have been in the awards for many years are
no longer relevant. Secondly, the requirement to extend the period for all absences other than
annual leave or long service leave is unreasonable. Thirdly, the extension of the training
contract in cases of extended illness is best left to the apprenticeship authority.
[382] The Ai Group submitted that the lost time provision operates in respect to the nominal
term of the apprenticeship and that the apprentice is still able to complete it in a shorter time if
competency requirements are met. It was said that it would be an unnecessary burden for the
employer to seek approval of the relevant training authority before utilising the lost time
provisions. The MTA took a different view. They submitted that “[t]he associations have not
led any evidence on this claim as any extension of training contracts would be handled
through the relevant State Training Authorities.” ABI also submitted that applications for an
extension of an apprenticeship or traineeship are governed by the standard training contract
and that State and Territory regulation concerning these matters remains operative.
[383] We agree with the Ai Group that there is insufficient evidence to justify the proposal
by the AMWU to alter the lost time provision so that it is only accessible where progress is
negatively affected and following successful application for extension to the relevant
apprenticeship authority. This would be a significant change to the existing provision which
would reduce flexibility.
[384] We consider that the Ai Group is correct as to the intended operation of clause 15.17.
The preamble in clause 15.8 that “[n]otwithstanding the nominal period, the apprenticeship is
completed in a shorter period” is intended to ensure that an apprenticeship can be completed
when competencies are achieved. The Ai Group submitted that notwithstanding the lost time
provision, if an apprentice completes the competencies then he or she would still finish at that
time. It was therefore submitted that there is no ambiguity or uncertainty in the provisions
about lost time and the provisions about competency based progression and completion.
[385] Notwithstanding these submissions, we consider that there is some ambiguity in clause
15.17. The provision that “apprentices are required to serve an additional day” is unqualified
and as it does not refer to the apprenticeship nominal period could be read as overriding
provisions allowing for CBWP and competency based completion. Any ambiguity should be
removed and to achieve this clause 15.17 should be amended to make it clear that it is the
nominal period of the apprenticeship which is extended by certain absences and that CBWP
and competency based completion requirements take precedence over lost time provisions.
[386] The other aspect of the AMWU application is to extend the types of absence which do
not justify extension to the nominal duration of an apprenticeship from annual leave and long
service leave to all forms of paid leave. It was said that there is no good reason that absences
on paid personal leave should automatically extend the nominal period of the apprenticeship.
It is hard to see why an extension of the nominal period of the apprenticeship should occur
every time an apprentice takes a day of paid personal leave. Short periods of absence on paid
personal leave are common and are unlikely to affect the ability to successfully complete the
requirements of an apprenticeship. The intention of the award provision is to ensure that the
157 Exhibit ACTU4; Apprenticeship Expert Panel Report, Appendix N, p.121.
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nominal period of the apprenticeship is extended where absences are likely to interfere with
the effective acquisition of competencies.
[387] The Ai Group submitted that the retention of lost time provisions was negotiated and
agreed between the industrial parties as part of a package of variations to apprenticeship
provisions in 2006. The Ai Group opposed the extension of the types of paid leave which are
exempt but did not specifically address the rationale for excluding paid personal leave.
[388] We have decided to retain the lost time provisions in the awards but to provide
exemption for paid personal leave and to remove any ambiguity or uncertainty in relation to
CBWP and competency based completion. We will limit the exempt paid personal leave to 10
days in any year in order to ensure that it would not significantly interfere with the effective
acquisition of competencies.
[389] We have decided that clause 15.17 should be amended to the following effect:
“The nominal period of the apprenticeship is extended by an additional day for each day of
absence during each year of their apprenticeship, except in respect of absences due to annual
leave or long service leave. However, periods of paid personal leave which total less than ten
days in any apprenticeship year do not extend the nominal period of the apprenticeship. Except
where the apprentice meets the competency requirements to progress to the next stage as set
out in clause 25.6 the following year of their apprenticeship does not commence until the
additional days have been worked. However, any time that has been worked by the apprentice
in excess of their ordinary hours must be credited to the apprentice when calculating the
amount of additional time that needs to be worked in the relevant year.”
[390] Completion of apprenticeships in the shortest possible time consistent with the
maintenance of high quality skills acquisition is positive for the performance and
competitiveness of the economy and employment (s.134(1)(h) of the Act). The amended
variation will promote competency based progression and completion of apprenticeships and
will remove the possibility of unreasonable and unnecessary extension of apprenticeships in
case of short term paid personal leave which does not significantly interfere with skills
acquisition. We are satisfied that the limited exemption for paid personal leave is necessary
and appropriate to achieve the modern awards objective.
[391] We consider it appropriate to adopt the same approach to the AMWU application to
amend similar provisions in the Sugar Award. There has been insufficient evidence to
demonstrate that it is necessary to introduce lost time provisions into the Vehicle and Airline
Awards. We will not vary those Awards.
(v) Training requirements
[392] The AMWU, CEPU and CFMEU seek to insert clauses into various modern awards
relating to training requirements for apprentices. The precise form of the training
requirements vary from application to application, but each proposed clause would require
that an apprenticeship not be undertaken without a training contract registered with the
appropriate State or Territory authority, and require the employer to:
provide and/or provide access to training consistent with the training contract,
without loss of pay;
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provide work that is relevant and appropriate to the vocation and to the achievement
of the qualification referred to in the training contract;
appropriately mentor apprentices consistent with their training contract;
provide appropriate facilities and experienced people to facilitate the training of
apprentices and to supervise them while at work; and
not leave apprentices to work alone or unsupervised, consistent with the OHS
requirements of the job being performed and the competence of the apprentices.
[393] The unions submitted that the proposed award variations with respect to mentoring,
supervision, and the provision of appropriate work and training would improve the quality of
the employment experience of apprentices and, in this way, contribute towards improving
retention rates and skills formation to the benefit of the national economy (see s.134(1)(h) of
the Act). It was also submitted that the proposed variations with respect to supervision would
benefit the national economy by improving safety at the workplace.
[394] It was said that many apprentices are not given sufficient appropriate and relevant
work and that some apprentices are used as cheap labour and perform menial tasks rather than
work related to the attainment of their trade. It was submitted that the proposed clauses will
ensure that apprentices are not exploited, and thereby assist in providing a fairer safety net of
wages for apprentices (see s.284(1)(e) of the Act). The clauses will also ensure that
apprentices are given sufficient relevant and appropriate work to progress through their
apprenticeship. It was said that the proposed clauses are similar to obligations which already
appear in the standard training contract, and are already dealt with to various extents in State
and Territory legislation. Reference was also made to guidelines and policies set down by
State and Territory training bodies.
[395] It was submitted by the CPEU that supervision is particularly important for electrical
apprentices given the workplace health and safety issues associated with electrical work. In
this regard the CEPU referred to State and Territory regulations dealing specifically with the
supervision of electrical apprentices, and to provisions dealing with supervision in enterprise
agreements and State awards covering the electrical industry.
[396] The unions submitted that the proposed clauses encapsulate the essential elements of
the “fair deal” for apprentices, as set out in a report of the NSW Board of Vocational
Education and Training titled “A fair deal: Apprentices and their employers in NSW” (the
BVET Report). The essential elements of the fair deal are:
“ Varied and increasingly challenging work experience, so that by the end of the
apprenticeship, the apprentice has experience across the range of trade work; no long periods
of doing the same task or too much time spent on meaningless work
Real on-the-job training, provided by a skilled tradesperson, someone who can coach and
mentor the apprentice through skills acquisition, not leave them to work it out by themselves
or expect them to be able to perform tasks for which they don’t have the skills
Good supervision, with increasing flexibility and autonomy but in the early months, no time
left unsupervised or working alone
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Competency based pay and progression, based on skills and work performance and
recognition for the apprentice’s achievements and contributions, not an artificial time
construct
A good boss, someone who treats the apprentice as a human being and an employee, not a
kid at the bottom of the ladder
Good open communications between apprentice, employer, work colleagues and RTO
Fair work practices including a contemporary workplace culture that prevents bullying and
ensures safety”.158
[397] In relation to the requirement to mentor apprentices, it was said that mentoring
improves the employment experience of apprentices and promotes completion. It was noted
that mentoring was rated as the third most important issue for the apprentices surveyed by the
AMWU, with 57.25% of respondents rating it as “important” or “very important”. Reference
was made to the Australian Apprenticeships Mentoring Package, an Australian Government
program providing funding for apprentice mentoring, as recognition of the importance of
mentoring.
[398] The employers opposed the union applications with respect to training requirements.
The opposition was mainly based on jurisdictional issues, as considered above, but the
proposed variations were also opposed by the employers on their merits.
[399] Most of the employer organisations submitted that the proposed clauses would
unnecessarily duplicate existing obligations found in the standard training contract and State
and Territory legislation. ABI, for example, submitted that the States and Territories have
comprehensive and robust systems for the regulation of training matters within
apprenticeships, whereby problems are resolved by specialist bodies that operate in a way
conducive to managing the special apprenticeship relationship, which often involves minors.
It was said that the State and Territory systems work well and should be left to operate. The
Ai Group submitted that matters relating to OHS should be addressed, where possible, in
legislation specifically intended to address such matters.
[400] The State Chambers of Commerce and Industry submitted that the proposed variations
relating to supervision would create dual responsibilities for employers under both modern
awards and State and Territory OHS legislation. It was said that this would not improve safety
outcomes, but would add to the regulatory burden on business and create confusion as to
whether OHS is an industrial issue or a matter for State and Territory regulation. The PIAA
similarly submitted that the clauses proposed by the AMWU would replicate existing
requirements, and could create a “double jeopardy” situation whereby employers could be
exposed to an additional layer of potential sanctions for breach of a modern award as well as
consequences under State and Territory legislation. Several employer organisations submitted
that the proposed provisions with respect to relevant and appropriate work are unduly
restrictive and do not recognise that general duties, including menial and cleaning work, are
incidental to the work of tradespeople, and that apprentices should be expected to perform this
kind of work.
158 BVET Report, p.21.
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[401] Generally the employer organisations submitted that the unions’ proposed variations
are not necessary in order to meet the modern awards objective. The Ai Group submitted that
the inclusion of the training requirements clauses would be contrary to “the need to promote
flexible, modern work practices and the efficient and productive performance of work”
(s.134(1)(d)). The State Chambers of Commerce and Industry submitted that the mentoring
provisions would add to the regulatory and cost burden on business (s.134(1)(f)). MBA
submitted that many of the clauses sought have an “eye of the beholder” quality, and that their
vagueness is problematic for a simple modern awards system (see s.134(1)(g)).
[402] The employers generally recognised the value of mentoring in improving the
employment experience for apprentices and in increasing retention rates. However, the
creation of an award obligation for mentoring was opposed. ABI submitted that mentoring is
inherent in the relationship between an apprentice and a supervising tradesperson, and more
akin to an art than something that is amenable to award prescription. The ECA drew attention
to the difficulty of deciding who would be the appropriate person to provide mentoring to
apprentices (e.g. the employer, tradespersons, specialised mentoring providers) and how the
concept of “mentoring” should be defined.
[403] We have considered the submissions and evidence presented in relation to the
proposed award variations relating to training requirements. In general, the provisions
proposed by the unions relate to commendable principles and practices which should be
adopted by employers in relation to the employment of apprentices and to ensure the
provision of high quality on-the-job training.
[404] The Apprenticeship Expert Panel identified the provision of high quality on-the-job
and off-the-job training as a core characteristic of the Australian Apprenticeships system and
as providing significant benefits for apprentices, employers and the economy.159 The report of
the Expert Panel refers to the importance of high quality employment relationships, including
the provision of appropriate induction processes and effective support such as mentoring and
pastoral care, and recognises that some employers already provide high quality on-the-job
training.160 It identifies various options to improve the quality of the on-the-job experience of
apprentices, including: the identification of key criteria or pre-conditions that employers
should meet to be considered a high quality on-the-job training provider; the recognition of
good practice in providing on-the-job training through an Excellence in Employment scheme;
and the recognition of the value of mentoring and pastoral care in supporting apprenticeships
and trainees.161
[405] It is important to ensure that there is high quality on-the-job training for apprentices
and that apprentices are given appropriate and relevant work in their employment. However
whether there is a need for award provisions dealing with such matters will depend upon the
extent to which existing arrangements are shown not to be working effectively. On the
evidence and submissions presented in the proceedings we are not satisfied that this has been
done. We are not therefore persuaded that the case has been made out for the award variations
sought by the unions to be made.
159 Apprenticeship Expert Panel Report, p.21.
160 Ibid, pp.9, 30-31.
161 Ibid, p.33.
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[406] The standard training contract presently includes many of the obligations which the
unions seek to impose upon employers through the award variations. The contract sets out the
training obligations of the parties to the training contract. The obligations under the standard
training contract include that the employer will:
provide the appropriate facilities and experienced people to facilitate the training and
supervise the apprentice/trainee while at work, in accordance with the Training Plan;
make sure the apprentice/trainee receives on-the-job training and assessment in
accordance with the Training Plan;
provide work that is relevant and appropriate to the vocation and also the
achievement of the qualification referred to in the Contract;
release the apprentice/trainee from work and pay the appropriate wages to attend any
training and assessment specified in the Training Plan;
meet all legal requirements regarding the apprentice/trainee, including but not
limited to, OHS requirements and payment of wages and conditions under the
relevant employment arrangements; and
work with the RTO and the apprentice/trainee to make sure the parties follow the
Training Plan, keep training records up-to-date, and monitor and support the
apprentice/trainee’s progress.
[407] Such matters are also addressed in relevant State and Territory training legislation162
and through legislation and regulations addressing OHS matters.163
[408] In the proceedings the unions presented evidence and submissions about various
deficiencies in the current arrangements. For example, the unions referred to problems with
some employers not meeting their obligations under apprenticeship arrangements and with the
legislative regimes in different States and Territories directed towards securing compliance
162 See e.g. s.13 of the Apprenticeship and Traineeship Act 2001 (NSW), which states:
“13 Duties of employers under apprenticeships and traineeships
(1) The employer of an apprentice or trainee must, in accordance with the relevant training plan, take all
reasonable steps:
(a) to enable the apprentice or trainee to receive the work-based component of the required
training, in particular by providing all necessary facilities and opportunities to acquire the
competencies of the vocation concerned; and
(b) to enable the apprentice or trainee to obtain an appropriate qualification for that vocation, in
particular:
(i) by releasing the apprentice or trainee as required for attendance at the relevant
registered training organisation, and
(ii) by liaising with the relevant registered training organisation in relation to the
apprentice’s or trainee’s attendance and participation in the training provided by the
relevant registered training organisation.
(2) The employer of an apprentice or trainee must discharge his or her obligations under the relevant
apprenticeship or traineeship as an employer of the apprentice or trainee.”
163 See e.g. s.19 of the Work Health and Safety Act 2011 (NSW).
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with such obligations. However it was not demonstrated by the evidence that such problems
as have arisen are not capable of being addressed through existing arrangements.
[409] Overall we do not consider that a persuasive case has been made out that the existing
arrangements are not operating satisfactorily. In these circumstances, we do not see the need
for the relevant modern awards to duplicate existing legal obligations which are contained in
the training contract and in State and Territory training and OHS legislation. Further we
consider that to include the proposed award provisions dealing with appropriate work,
training and supervision would unnecessarily add to the regulatory burden on business and
possibly lead to confusion amongst employers and others as to which obligations are to be
observed.164 It would potentially add to the already complex system for the regulation of
apprenticeships without achieving any discernible benefit. This would not be consistent with
the modern awards objective.165 Accordingly we have decided that, particularly in the absence
of broad agreement between the major stakeholders as to the need for greater uniformity in
relation to such arrangements that might be achieved through award regulation, we should not
make the changes sought by the unions.
[410] We note that there is no specific reference to mentoring as such in the standard
training contract. Notwithstanding this, many employers recognise that mentoring can play a
positive role in promoting the success of apprentices. In relation to the proposed variations
dealing with the provision of mentoring, there was considerable debate in the proceedings as
to the need for an award obligation and what appropriate mentoring for apprentices might
involve and who might be in the best position to provide it. There was evidence as to
mentoring of apprentices presently being provided by employers, GTOs, union officials, and
fellow employees. The variation proposed by the AMWU to the Manufacturing Award
requires that apprentices be appropriately mentored and that employers provide appropriate
facilities and qualified and experienced people to facilitate training and mentor the apprentice
while at work. The reference to “appropriate mentoring” is stated to include providing
apprentices with:
“(i) feedback, checking progress and providing progress reports regarding skills’
development;
(ii) detailed instructions including through demonstration and explanation;
(iii) sufficient opportunity and time to practice new skills;
(iv) questions to confirm the apprentice’s understanding of a skill;
(v) a range of tasks and opportunities to practice new skills; and
(vi) an explanation on developing good relationships with other workers.”
[411] We accept that this would provide a model for good practice in relation to mentoring
and pastoral care in supporting apprentices. However we do not consider that the case for its
imposition by award prescription has been made out in the proceedings. The provision of
164 See ss.26-29 of the Act, which deal with the interaction between the Act and modern awards on one hand and State and
Territory legislation on the other.
165 See in particular s.134(1)(d) and (f) of the Act.
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mentoring might be best pursued at this time by promoting a wider understanding of the value
of mentoring and pastoral care in supporting apprenticeships166 and by encouraging employers
and GTOs to adopt such practices on a voluntary basis. Consideration may also be given to
the further development by stakeholders in the apprenticeship system of guidelines for the
provision of mentoring and support to apprentices.
[412] For the above reasons, we have decided not to vary the relevant modern awards to
include the unions’ proposed provisions relating to training requirements.
(vi) Suspension, cancellation and recognition of service
[413] Before we deal with the applications to vary awards in respect to these matters we
should first refer to the terms of the standard training contract. Some provisions of this
contract are referred to earlier in this decision. There are some other provisions of this
contract that are relevant to this part of our decision. They are as follows:
The parties acknowledge that they understand the training contract can only be
terminated within the period of probation and/or in accordance with the requirements
of the relevant State or Territory legislation. They also acknowledge that
probationary periods are determined by a State or Territory training authority or
relevant industrial award or agreement.
The contract can only be changed by agreement of the parties and according to State
or Territory legislation. In the event of this occurring the training authority must be
informed of the proposed changes.
The parties agree that they will try to resolve any dispute they have between them
and if they cannot they will contact their State or Territory training authority to
request assistance or to access the appropriate dispute resolution processes.
The contract will be successfully completed where there is agreement from the
employer, registered training organisation and apprentice and acknowledgement
from the relevant training authority that the apprentice has attained the required
competencies. Alternatively, it expires if it reaches the end of the term of the
contract without the apprentice having attained all relevant competencies or having
received authorisation for an extension of the contract.
The employer agrees that it will inform the relevant State or Territory training
authority and the RTO within five working days, or such time as legislation requires,
if the training contract has become jeopardised.
[414] We have also earlier referred to the legislation which operates in each State and
Territory which deals with apprenticeships. We have referred to the interaction provisions of
the Act and the way in which they save the operation of certain provisions of legislation
dealing with the cancellation, suspension and termination of a training contract and
probationary periods that are part of a training contract. The State and Territory legislation,
although in different terms, generally deals with the issues of the suspension, cancellation or
166 Apprenticeship Expert Panel Report, p.33.
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termination of the training contract, the resolution of disputes about the training contract and
probationary periods in training contracts.167 We have taken all of this legislation, and the
regimes established by it, into account when considering whether to make the variations
sought by the unions. In respect to the variations we deal with in this part of our decision we
note the following matters which are dealt with in the legislation:
The legislation in each State and Territory identifies the authority which is to be the
first point of contact for resolving any disputes. Although dealt with in different
ways the legislation has a number of similar attributes. The parties are required to
deal with any disputes that they have by first having discussions in the workplace.
In a number of cases area consultants or other training officers of the relevant
authority are available to participate in discussions with the parties.
The role of these officers also includes the monitoring of training contracts and all
aspects relating to the provision of training under them. They are able to make
enquiries of any persons in relation to the provision of training, to search premises
and inspect documents, and to give a written direction about these matters.
Either party to the training contract is able to refer a dispute to a relevant authority.
In some cases there is a further ability to refer the dispute to a higher authority, for
example, a State industrial tribunal.
In the case of all of the legislation the clear emphasis is on the parties resolving the
dispute without the issue proceeding further to, for example, the termination of the
training contract.
Should a matter not be able to be resolved there is an authority which has power to
make a final order or determination. The orders or determinations that may be
made range from reprimands, the giving of a direction to a party to the contract to
take some particular action, an amendment of the training contract, the suspension,
extension, cancellation and termination of the training contract, to an order for the
payment of compensation.
Probationary periods are dealt with in the legislation. There is a high degree of
similarity in the manner in which they deal with probationary periods. As a general
rule it is recognised that probationary periods will not exceed a period between one
and three months depending on the term of the contract. Three months is the norm
for apprenticeships. In New South Wales, the provision of a probationary period
can be extended by up to three months on the application of the employer or
apprentice. In Queensland, applications can be made by an employer or apprentice
to shorten or lengthen the period of probation provided such applications are made
within the original probationary period. The employees are to be informed of the
period of probation in any approval or confirmatory letters that are received.
Applications to suspend or cancel a contract are referred to. Applications can be
made by either the employer or the apprentice. Although provided for in different
ways, in each case there is a person or authority identified in the legislation that
167 The relevant legislation is referred to in numerous exhibits and submissions. See for example Exhibits CTH6 and AIG4.
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will oversee the requirement that the parties seek authorisation or approval of the
cancellation or suspension. The parties to a training contract may by mutual
agreement cancel or suspend the contract. In most States and Territories mutual
cancellation or suspension is not subject to approval or takes effect unless the
relevant training authority is satisfied that the agreement is not genuine or has been
withdrawn.
[415] The effectiveness and adequacy of the resources allocated to the implementation of
these provisions in each State and Territory was a matter of conflicting submissions but little
substantive evidence.
Notice of termination - the NES
[416] The unions sought the deletion of a clause in many of the awards before us which
limits the entitlement of apprentices to notice of termination of their contract of employment.
An example of such a provision is currently contained in the second sentence of clause 15.11
in the Manufacturing Award which is in these terms:
“15.11 ... notice of termination and redundancy provisions do not apply to apprentices.”
[417] The NES are contained in Part 2-2 of the Act. Notice of termination and redundancy
pay are in Division 11 of that Part. There is no contest that the Act excludes apprentices from
an entitlement to payment for redundancy under the NES,168 but it is submitted that an award
should not exclude them from minimum notice or payments to be made upon termination of
employment and to do so is contrary to the Act. We agree with this submission. Section 123
excludes a number of employees from the entitlements under Division 11 but it is clear from
s.123(1)(d) that in respect to the notice and termination provisions apprentices are not
excluded. Any variation seeking to amend a provision of an award in this respect is granted.
Notice prior to cancellation or suspension of training contract
[418] A claim is made which seeks to place a constraint on the time before which an
employer may apply to a training authority to cancel or suspend an apprentice’s training
contract. The claim is made by a number of unions in relation to several awards. Generally the
terms of the clause sought are the same or very similar. They read as follows:
“An employer will not terminate an apprentice except consistent with the process outlined in the
training contract. Where an employer is considering or has made a decision to apply to a
training authority to cancel or suspend an apprentice’s training contract they shall give the
apprentice 2 weeks’ notice in writing prior to notifying the training authority, identifying the
reason for the proposed cancellation or suspension and the apprentice’s rights under the
training contract. This clause is additional to and does not replace any entitlements or process
under the training contract or the relevant state/territory training legislation”.
[419] The AMWU submitted that the additional notice did not alter the entitlement to
terminate the training contract but provided for an additional period of time that would enable
discussions at the workplace to occur when an employer was considering the cancellation or
168 See s.123(4) of the Act. We do not intend to alter any entitlement to redundancy pay which an apprentice may have under
a modern award or enterprise agreement.
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suspension of the contract. It submitted that the additional notice was consistent with s.55(4)
of the Act having the effect of extending the minimum notice of termination of employment
provisions in the NES. It was also submitted that the claim was necessary to meet the modern
award objectives in ss.134(a), (c) and (g). None of these submissions were developed in any
detail.
[420] Reliance was placed on the evidence of Mr Phillip Reid and Ms Kate Luke, witnesses
called by the AMWU. Mr Reid, an organiser employed by the AMWU, gave evidence that he
had seen companies which had informed their apprentices that there was no more work for
them to do and asked them to sign a form which stated that the company and apprentice
mutually agreed to terminate the apprenticeship. He said that the apprentices were unaware of
their rights and would generally sign the form. He believed that a period of two weeks’ notice
would give an opportunity for apprentices to better understand their rights and that their
training contract may be in jeopardy and allow them to seek information and assistance.
Ideally, it would allow any issues that had arisen to be resolved in that time, resulting in the
apprentice being able to continue in their employment. No detail was given about the
companies Mr Reid referred to. The only specific evidence seemed to relate to an incident in
New South Wales where the employer was attempting to unilaterally terminate an apprentice
contrary to the legislation in that State. The union took the issue to the apprenticeship
committee and it was “sorted out”.
[421] Ms Luke is an apprentice coordinator for the AMWU. She said that concerns had
arisen as a result of the rise of GTOs. It was frequently the case that if there was any issue
with a host organisation, they simply handed the apprentice back without taking any
responsibility to work through any issues. The apprentice would be given little opportunity to
rectify any problems. The GTO would then claim they were unable to find an alternative post
and apply for the cancellation of the training contract. The two week notice period would be
invaluable as many cancellations occur because there had been a breakdown in
communication between an employer or host organisation and the apprentice. The time would
give the union or other representative an opportunity to try to resolve the problems and rectify
them. She gave as an example the experience she had with an employer applying for a
cancellation of a training contract of an apprentice who had been consistently late for work.
She believed if an extra two weeks’ notice period had applied there would have then been an
opportunity for intervention and at least an attempt to allow the apprentice to continue
working.
[422] Evidence was also given by Mr William Ashcroft, who addressed the problems he had
with frequently changing host organisations. He would be given little warning that they had
no additional work for him and he had been finished up on a day’s notice. He would then be
contacted by the GTO and would just have to wait until he got another job.
[423] The AMWU also referred to an extract from the sixth annual report of the South
Australian Industrial Relations Court and Commission in which it is said that commonly
employers, and occasionally apprentices, acted to unilaterally terminate the employment
relationship by dismissal or resignation instead of accessing the suspension or dispute
processes under the Training and Skills Development Act 2008.
[424] The CEPU relied on the evidence of Mr Omar Merhi, an organiser with the union. He
said the toughest situation for an apprentice is when they are suddenly made redundant and
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find themselves with no income and no job security. Employers were terminating or
suspending apprentices on no notice and this was occurring a lot in his industry.
[425] Reference was made to the evidence of Mr Timothy Phelps, the General Manager of
GTES, a New South Wales based GTO. He said that if a host organisation wanted to hand
back an apprentice his organisation would require them to give two weeks’ written notice. His
organisation would use the two weeks to try and find an alternative host organisation so the
training could continue. He had not found this requirement to be a burden on any of the host
organisations.
[426] The CFMEU referred to the evidence of Mr Liam O’Hearn and Mr Terry Kesby. In
the case of Mr O’Hearn we have taken his evidence into account but note the issues he
addressed are related more to the unsatisfactory practice of an employer taking a person on a
trial period and paying them apprentice wage rates, but not entering into a formal contract of
training. In the case of Mr Kesby we note his evidence about underpayment of wages and
termination payments. These matters are not particularly relevant to the claim being
considered. Although such practices would be contrary to the relevant awards and to the
relevant State and Territory legislation, it is not appropriate for us to deal with this further
here.
[427] We note, but do not detail, the competing evidence given by employers that it is
common for apprentices to simply walk away from the job without giving any notice. It was
said that apprentices just do not turn up. Many apprentices decide that the apprenticeship is
not what they thought it would be. Little detail was given as to specific examples, but we note
this observation was reasonably widespread. The employers also took issue with the
allegation that apprentices are misled into signing cancellation documents, but in the absence
of being given names and dates they were not able to reply further to those assertions.
[428] We do not underestimate the importance of trying to resolve disputes between
apprentices and employers and the retention of the training contract, if at all possible.
However, we have decided in the context of the Transitional Review to reject the proposed
variation.
[429] The process for suspending or cancelling a training contract is already regulated by
State and Territory training legislation and no apprentice can be suspended or have their
training contract cancelled without the approval of the relevant training authority. It is clear
that it is currently intended that such outcomes are to be considered as a last resort. However,
there is no requirement for prior approval of mutual suspensions or cancellations. The unions
are particularly concerned to ensure the opportunity for genuine consideration and consent by
apprentices prior to their agreement to a suspension or cancellation.
[430] We note that the training contract expressly requires parties to attempt to resolve
disputes and where this fails, to then seek assistance from the relevant State training authority
or dispute resolution processes. In this way there are already existing provisions that operate
in a way to try to prevent the breakdown of the training contract. We have earlier referred to
these obligations when identifying key provisions of the standard training contract.
[431] No adequate evidence was called by the unions to suggest that there is any significant
difficulty with the manner in which the State and Territory regimes operate. The evidence was
not sufficient for us to make a finding that the State and Territory regimes are in some way
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deficient in the manner in which they deal with disputes between employers and apprentices.
To the extent that there was any evidence, it went no further than the identification of a very
small number of circumstances (without sufficient particulars) suggesting that some State
authorities may have taken a longer period of time to deal with disputes than the unions had
wished.
[432] We are not persuaded that the variation is necessary to achieve any of the modern
award objectives or that the clause was one appropriate to make under s.55(4) as being
supplementary to the NES.
[433] The proposal would present particular difficulties for GTOs. The claim only relates to
the placing of an obligation on an employer (which would include a GTO) and not a host
organisation. It will not prevent the unhappy practice of host organisations handing back
employees with little or no notice. It is no answer to observe that a GTO might give
consideration to placing a requirement in any arrangement it has with a host organisation that
the host would give the GTO a corresponding period of notice. Such an obligation is not one
we can currently see that we would have power to insert into an award.
[434] Finally, the terms of the clause sought are problematic. If there was to be any further
consideration of such a claim then it should not compromise the rights of an employer in
circumstances of an apprentice’s serious misconduct. Further consideration would also need
to be given to what is meant by the obligation on an employer to provide written details of the
apprentice’s rights.
Termination of employment contract
[435] Several claims are made for a clause in these terms:
“If a training contract is entered into between an employer and a person who is already in the
employment of the employer, the termination, or expiry of the term, of the training contract
does not of itself terminate the person's employment with the employer.”
[436] It was submitted that such a provision would make the award easy to understand and
enhance apprentice and employer awareness of their entitlements and responsibilities. We
note that reference was made to the Training and Skills Development Act 2008 (SA) which
contains a provision in s.54 in similar terms to the clause here sought. Reference was also
made to s.31 of the Apprenticeship and Traineeship Act 2001 (NSW).
[437] We do not readily identify the clause as being a term that is about rights, duties or
obligations that attach to the training contract as the AMWU submitted. It is principally a
term which impacts on the contract of employment. Depending on the terms of the contract
between the employer and apprentice it may do more to confuse the parties than to make the
award easy to understand. If such a term was inserted into an award it may also undermine the
ability of an employer to engage an apprentice on a contract for a specific term which is
aligned with the completion of the apprenticeship.
[438] We note the AMWU’s submission that the clause would be justifiable as a
supplementation to the termination provisions of the NES. In this respect it was the Division
11 entitlements in the NES which were referred to. We do not readily see that it is so or can
be said to be a term which is incidental or ancillary to the NES. The clause does not
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supplement the scale of payments or notice provisions of the NES. It does not deal with
redundancy. The effect of the clause is to declare what the legal position will be upon the
occurrence of the termination of the training contract. That may, or may not be what is in fact
the legal position established by the terms of the contract of employment.
[439] The AMWU also submitted that the claim was incidental to the type of employment of
an apprentice and to the cancellation or suspension of the training contract. We are not
persuaded the clause is, in terms of s.142, essential for the purpose of making another term
operate in a practical way. We do not know what that other term is said to be.
[440] We are not persuaded that a sufficient case has been made out to warrant the inclusion
of this term in any of the awards in which it is sought.
Recognition of service if re-engaged
[441] Several applications are made to vary awards to include a clause in the following (or
very similar) terms:
“In the event that an apprentice is terminated at the end of their apprenticeship and is re-engaged
by the same employer within six months of such termination, the period of the apprenticeship
will be counted as service in determining any future award and NES entitlements where those
entitlements were not paid out on termination.”
[442] We read the clause as operating as a deeming provision overriding the legal effect of
the termination of the apprentice’s employment and deeming service before that termination
to be continuous with the subsequent period of service. No merit case was established to
justify such a significant provision in the awards before us.
[443] The Act provides in s.22 for what is to be considered service for the purposes of the
Act and those entitlements in it which are conditional on a certain period of service. That
section does not go so far as the clause proposed by the unions. For us to entertain the union
claim, much more would need to be said about the justification for it. To the extent the clause
operates upon award entitlements, we were not advised which entitlements these were. But
assuming it relates to any award entitlement which has a service pre-requisite, the clause
would then need to be justified as being essential for each of those clauses to operate in a
practical way. We simply do not have sufficient evidence or submissions before us to take this
justification for the clause further.
[444] The AMWU submitted it was supplementary to the NES. Presumably it is said to be
supplementary to any of the NES provisions which contain some service qualification. Little
more was said about this justification for the clause. We acknowledge that the AMWU
identified clauses in other awards which it submitted reflected a similar “policy provision
position”. As we read the provisions we were taken to they do not go so far as the proposed
clause. In the case of the Building Award that clause169 relates only to the prior period of
service being counted to determine termination entitlements. Clause 42.2 of the
Manufacturing Award relates to the right of an employee re-engaged within a period of six
months to any unclaimed balance of their paid personal/carers leave to continue from the date
169 Clause 15.2(c).
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of re-engagement. Clause 16.6(b) of the Sugar Award relates to redundancy pay for
apprentices in sugar mills. It provides that the limitation on redundancy contained in s.123 of
the Act would not apply to employees of sugar mills where they are apprentices who are
retained in employment for more than six months after the completion of their apprenticeship.
It is clear that none of these clauses are in the same terms nor go as far as the clause here
claimed.
[445] We note the evidence of Mr Omar Merhi, an organiser with the CEPU, that he had
regularly encountered situations where, to minimise entitlements, apprentices were dismissed
upon completing their trade and then rehired after three months or even less. No other detail
was given in relation to the frequency of this occurring, which employers had acted this way,
whether it is peculiar to any particular State, or whether any action was taken by the union or
anyone else on the apprentices behalf to seek to address it.
[446] The AMWU submitted that the clause would encourage apprentices who had
completed their training to return to their employer, thus meeting a major employer complaint
that after a significant investment in apprentices they leave employment at the completion of
their apprenticeship. The submission was not supported by the employers. Some submitted it
was more likely to act as a disincentive to re-engage. Further, a clause in these terms will not
benefit an apprentice who had been engaged by a GTO. It is unlikely they would be returning
to work with that GTO after the completion of their apprenticeship.
[447] We are not persuaded that a sufficient case has been made for this clause to be inserted
into the awards where it is sought.
[448] The CFMEU sought a clause to be inserted into the Joinery Award which had a
counterpart in the Building Award. The clause does not go as far as the one sought by the
AMWU but rather the relevant part of it provides that if an apprentice is re-engaged by the
same employer within six months of the end of their apprenticeship, the period of
apprenticeship is counted as service in determining future termination entitlements. The major
building industry employers did not object to this variation.
[449] The desire to have the same clause in each award was the sole basis relied upon by the
CFMEU to justify it. This submission alone would not normally be sufficient without more
being said for us to grant this variation. However, we note the submissions of the employers
and also that the two awards are closely related and operate in different sectors of the building
and construction industry. We have decided to make the variation sought.
(vii) Probation
[450] A clause is sought by the AMWU and CFMEU in a number of awards which will limit
the maximum length of probationary periods in training contracts. The terms of the clause
sought are not identical in all cases, but their effect is. The clause most commonly sought is in
these terms:
“The probationary period of an apprentice is as set out in the training contract consistent with
the requirement of the apprenticeship authority and with State legislation but must not exceed
three months.”
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[451] One justification for the clause is that a similar clause is contained in some modern
awards. The AMWU pointed to clause 12.6 in the Sugar Award and clause 15.10 of the
Manufacturing Award. In the case the Graphic Arts Award the variation that is sought is to
reduce a reference in clause 13.7 to the maximum period for probationary employment to not
exceed six months to a period of three months. The CFMEU justified the variation it sought to
the Building Award for a maximum probationary period of three months as such a clause is in
the Joinery Award.
[452] The AMWU submitted that the clause is consistent with the period identified in most
modern awards and most vocational training orders. The clause would provide for national
consistency and reflects what is submitted to be a fair and relevant standard.
[453] The employers submitted there was no evidence establishing any need for the variation
and simply relying on the fact that a similar clause exists in another award is insufficient.
There was no evidence to show that it was common for employers to seek to extend
probationary periods once they have been set. Mr Phelps, General Manager of GTES, gave
evidence that probationary periods were rarely extended but he did seek to retain any
flexibility he had. When there may be a need to extend a probationary period this was a
desirable and better alternative to terminating the contract.
[454] Probationary periods in training contracts are a matter dealt with in the State and
Territory legislation we have earlier referred to. No case has been made out that the
legislation is not adequate or operating effectively. A range of periods are prescribed as being
the maximum depending on the type of apprenticeship or training that is entered into.
Generally three months is the maximum period for an apprentice. There are slightly different
provisions in New South Wales and Queensland. In New South Wales the legislation allows
for the extension of a probationary period by up to three months. In Queensland, although as a
general rule the probationary period for apprenticeships is three months, an employer or an
apprentice is able to apply in writing to the relevant authority to shorten or lengthen the
probationary period. Examples are given of the reasons that a probationary period may be
reduced or extended: the employer may be either satisfied or dissatisfied with the apprentice’s
progress; or the apprentice may be uncertain about their suitability for the apprenticeship. The
applications for amendment are to be made before the original probationary period has
expired.
[455] No adequate case has been made out to justify the variations sought. We acknowledge
the existence of similar clauses already in some modern awards but that alone is not sufficient
for us to introduce them into the awards now sought to be varied. This is certainly the case
where the relevant employers do not consent to the variation. We are not persuaded that to
achieve the modern awards objective it is necessary that the awards contain the same
maximum period of probation.
(viii) Dispute settlement
[456] The CFMEU sought to vary the dispute resolution clauses of the Building and Joinery
Awards by inserting a new final sub-clause in the following terms:
“If a dispute concerns the contract of training of an apprentice or trainee it shall be dealt with in
accordance with the requirements of the relevant State/Territory training legislation. Otherwise
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any dispute involving an apprentice or trainee shall be dealt with in accordance with this
clause.”
[457] The CFMEU submitted that the evidence before the Commission demonstrates
problems inherent in the existing mechanisms for the resolution of disputes involving
apprentices. It referred in this respect to the evidence of two of its officials, Mr Liam O’Hearn
and Mr Terry Kesby. Mr O’Hearn gave evidence that in Victoria disputes concerning
apprentices are referred to State training authorities, but that this is a lengthy process and only
deals with issues relating to contracts of training. Mr Kesby gave evidence in relation to his
experience as a CFMEU organiser and as a member of the Vocational Training Tribunal in
NSW. His evidence was that the role of the Tribunal is to focus on the role of training in a
given dispute, whereas the underlying issues in disputes are often industrial and involve
wages. It was submitted that the proposed variations to the awards would help to identify
which matters are within the purview of State and Territory training authorities and which are
within the jurisdiction of the Commission. It was said that this would therefore be of
assistance to employers and employees.
[458] The variations were opposed by employers. MBA submitted that the variations would
cause complications with respect to the correct forum for a given dispute, and could
potentially give rise to parallel proceedings concerning the same dispute in the Commission
and before a State/Territory training body. The CCIWA submitted that the variations would
unnecessarily duplicate and convolute the dispute resolution process. In this regard, reference
was made to the difficulty of delineating disputes that do and do not involve issues relating to
the training contract.
[459] The proposed variations to the dispute settlement clauses in the building awards were
not the subject of extensive submissions in the proceedings. We have considered the evidence
and submissions presented. We note that some disputes regarding apprentices are dealt with
by the Commission under the terms of existing dispute resolution provisions in awards. We
also note existing practices whereby the parties and/or State and Territory training authorities
can identify the most appropriate avenues through which disputes involving apprentices may
be resolved. In general, disputes primarily concerned with matters relating to the training
contract may be dealt with by the training bodies, whereas other disputes involving wages and
employment matters may be considered under award procedures.
[460] Given such practices and the difficulties raised in relation to the categorisation of
disputes under the variations proposed by the CFMEU, and having regard to the limited
material put to the Commission, we have decided not to vary the dispute resolution clauses in
the two awards.
D. AI GROUP APPLICATION
Application to vary the National Training Wage Schedule
[461] The relevant provisions of the NTWS are as follows:
“X.6.2 A trainee is entitled to be released from work without loss of continuity of
employment and to payment of the appropriate wages to attend any training and assessment
specified in, or associated with, the training contract.
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X.6.3 Time spent by a trainee, other than a trainee undertaking a school-based traineeship, in
attending any training and assessment specified in, or associated with, the training contract is
to be regarded as time worked for the employer for the purposes of calculating the trainee’s
wages and determining the trainee’s employment conditions.
X.6.4 Subject to clause X.3.5 of this schedule, all other terms and conditions of this award
apply to a trainee unless specifically varied by this schedule.”
[462] Clause X.3.5 provides:
“X.3.5 Where the terms and conditions of this schedule conflict with other terms and
conditions of this award dealing with traineeships, the other terms and conditions of this award
prevail.”
[463] The Ai Group seeks to vary X.6.2 by replacing “to attend any training” with “when in
attendance at any training.” It seeks to replace “in attending any training” in X.6.3 with “in
attendance at training.” It also seeks to add the words “that are applicable to the trainee,” after
the word “award” in X.6.4. The variations are intended to make it clear that employers are not
required to pay for time spent by trainees in travelling to training, and that the NTWS does
not extend the application of general award entitlements.
[464] Many of the employer organisations supported the Ai Group application. It was
submitted that if the proposed variations to the NTWS are not made (and the CEPU’s
interpretation of the clauses is adopted) there will potentially be significant negative
consequences for both employers and trainees. It was said that the proposed variations are
necessary to correct anomalies that have arisen in respect of the clauses as they are currently
drafted, and because the clauses are ambiguous or uncertain. It was submitted that the
variations proposed are in accordance with the original intent of the clauses and subsequent
judicial interpretations.
[465] We agree with the Ai Group that its application has not been subsumed by the separate
union applications seeking to extend award provisions dealing with travel and board to
attendance at off-the-job training by apprentices. Those applications do not relate to trainees.
The unions sought clarification that such provisions apply to trainees although there is no
specific application by the unions in the common claims to vary the NTWS.
[466] Clause X.6.3 was inserted during the award modernisation process. An equivalent
clause was not present in the National Training Wage Award 2000. The clause expands upon
clause 10.4 of the National Training Wage Award 2000, which provides that “[t]he Trainee
shall be permitted to be absent from work without loss of continuity of employment and/or
wages to attend the approved training.” It is clear that pursuant to clause X.6.3 if the training
and/or assessment takes place outside ordinary hours it must be paid for in accordance with
the relevant provisions of the award, including penalties where relevant, and that time spent in
training and/or assessment is taken into account in determining other employment conditions
under the award, for example service. Depending upon the context, it is possible that “time
spent in attending training” could include time spent getting to and from training. However,
we agree with the submission of the Ai Group that, read in context, the phrase “in attending
training” is only about the time spent in actual attendance at training and/or assessment and it
is only that time which is to be regarded as time worked pursuant to the clause.
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[467] Clause X.6.2 of the NTWS and clause 10.4 of the National Training Wage Award
2000 permit absence from work without loss of continuity of employment and to the payment
of appropriate wages to attend any training and assessment. It is apparent that if an employee
travels during ordinary working hours to attend training that travel time will be paid time.
However, the clause does not create any other entitlement to payment for travel time or travel
costs.
[468] We see nothing uncertain or ambiguous in clauses X.6.2 and X.6.3 of the NTWS.
[469] In relation to clause X.6.4, the Ai Group is concerned that the clause could be read as
broadening the application of other clauses of the awards to trainees so that a clause which
would not otherwise be applicable to the trainee would become applicable.
[470] An employee is only entitled to, for example, cold places allowance in an award if that
employee actually works in a cold place and meets the conditions specified in the award. A
trainee is not entitled to a particular award condition unless they meet all of the requirements
for that condition. Clause X.6.4 does not create any entitlement which would not otherwise
apply to the trainee if the NTWS did not exist.
[471] We do not see the provision as uncertain or ambiguous.
[472] There is no argument that clause 25 (Fares and Travel Patterns Allowance) of the
Building Award applies to the work of apprentices and trainees when performing work on
sites which meets the provisions of the clause. Similarly there is no argument that an
apprentice or trainee who is required to start and/or finish work at a job away from the
employer’s usual workplace is entitled to the excess fares and travelling time allowance in
clause 32.4(a) of the Manufacturing Award. The Ai Group submitted that these clauses and
others like them do not apply to travel to off-the-job training. The CFMEU v MBGTS170 is
authority for that position.
[473] The unions submitted that because time spent in attending training is to be regarded as
time worked for the purposes of determining the wages and conditions of an apprentice, the
provisions which apply to work related travel should also apply to travel for off-the-job
apprentice training. Whether this is correct or not depends upon the words of the award travel
provision, considered in context, not upon the words of clause X.6.4. That clause does not
alter the meaning of “work” in the relevant award clauses which apply to travel.
[474] The Ai Group suggested that when the AMWU submits that trainees have access to
clause 32.5 (Training Costs) by virtue of clause D.6.4 of the Manufacturing Award, it is
asserting that the provisions of the NTWS play a role in extending the application of clause
32.5. The Ai Group also referred to a similar CFMEU submission in relation to clause 15.2(a)
of the Building Award.
[475] We do not understand the AMWU submission to have this meaning. The AMWU
relied upon the decision in Rohrlach171 as authority for the proposition that clause 32.5 of the
Manufacturing Award has application to apprentices by virtue of the provision in clause 15.1
170 [2007] FCAFC 165.
171 [2012] SAIRComm 7.
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that “the terms of this award apply to apprentices, including adult apprentices, except where
otherwise stated”. The AMWU submitted that similarly the provision applies to trainees by
virtue of clause D.6.4. It also submitted that the clause only applies to particular apprentices
and particular circumstances to the extent that an apprentice meets the stated requirements of
the relevant clause. Then the clause will apply unless otherwise provided for in the award.
The unions submitted that the same situation applies to trainees.
[476] In respect to trainees there is an additional proviso in clause X.6.4, and that is “unless
specifically varied by this schedule”. There is no specific provision about payment of course
fees or travel costs in the NTWS. Therefore the only provisions which could apply are those
which would otherwise be applicable under the award.
[477] In a decision handed down after the hearings in the present matter were completed, the
Federal Court dismissed an appeal against the decision of the Federal Magistrates Court in
CEPU v Excelior Pty Ltd,172 which dealt with clauses X.6.2 - X.6.4 of the NTWS. In her
judgment upholding the decision of Cameron FM, Justice Katzmann found clause X.6.3 of the
NTWS was not ambiguous or uncertain. Her Honour held that clause X.6.4 is intended to
“ensure that, save to the extent provided in the schedule, trainees [are] not to be disadvantaged
in comparison with other employees”, but that the clause does not alter the meaning of
“work” in a particular award travel provision.173 Her Honour also found that the requirement
in clause X.6.2 for payment of appropriate wages to attend training does not include the
payment for travel to training and that the phrase “in attending training” in clause X.6.3 is
only about the time spent in actual attendance at training and/or assessment and it is only that
time which is to be regarded as time worked pursuant to the clause.
[478] We are satisfied that the minor changes to the wording of clause X.6.2 and X.6.4
during the award modernisation process made no substantive change to the meaning and
operation of those clauses and has not created any ambiguity or uncertainty. With respect to
clause X.6.3 the award modernisation process did make a substantive change. That change
puts beyond doubt that time spent undertaking training associated with the training contract is
to be regarded as time worked for the purposes of determining wages and conditions. The
unions have unsuccessfully argued in the courts that this change supports their argument that
provisions associated with travel time and costs to attend work apply to trainees travelling to
off-the-job training. The fact that such an argument has been raised does not make the clause
ambiguous or uncertain. The courts have not found that there is ambiguity or uncertainty.
[479] Apart from these considerations, we are concerned that the variation sought by the Ai
Group to clause X.6.2 may have unintended consequences. The present clause would require
the employer to release an apprentice from training in time to be able to travel to attend the
training. The variation proposed by the Ai Group may remove that requirement.
[480] We consider that the variations sought to the NTWS are not necessary to meet the
modern awards objective or to address ambiguity or uncertainty.
172 [2012] FMCA 621.
173 [2013] FCA 638 at [65].
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[481] We also reject the submissions of the unions that we should make variations similar to
those proposed in relation to apprentices to ensure that award travel provisions apply to
trainees attending training. There is no application to that effect before us.
E. COMMONWEALTH PROPOSALS
[482] The Commonwealth and Group Training Australia proposed variations to ensure that
consistent school-based apprenticeship provisions are in all relevant awards and that these
provisions provide for competency based progression.
(i) Insertion of school-based apprenticeship provisions
[483] A Full Bench of the AIRC published the model schedule for school-based apprentices
on 3 April 2009.174 The Full Bench said:
“[31] We deal next with the draft schedule for school-based apprentices. There was general
agreement with the terms of the draft. The ACTU suggested that the operation of the schedule
should be limited to the trades provided for in the modern award concerned. We agree in
general with that approach. To put the matter beyond doubt we shall include a provision
limiting the schedule to trades covered by the award. The ACTU also pointed out that the
schedule should specifically recognise the possibility of a three year apprenticeship. We shall
include an appropriate clause. The schedule should be included in every award in which an
apprenticeship is possible. It is desirable that other provisions in the body of the award should
be deleted. This will ensure consistency of approach and make review and variation simpler.”
[484] In the present proceedings, it was sought to include the schedule for school-based
apprentices into several awards.
[485] In general, the applications were not opposed. The CFMEU and CCIWA were the
only parties to oppose the inclusion of the schedule dealing with school-based apprentices in
awards which include provision for apprentices but which do not contain the schedule. The
submission of the CFMEU was essentially to reiterate its long standing opposition to school-
based and part-time apprenticeships. The submission of the CCIWA was that there was
inadequate evidence of the need for the variations.
[486] The Alpine Resorts Award 2010 (the Alpine Resorts Award), the Children’s Services
Award 2010 (the Children’s Services Award) and the Nursery Award 2010 (the Nursery
Award) have apprentice wage provisions which are the subject of applications by the ACTU
in these proceedings. We are satisfied that it is consistent with the approach adopted by the
AIRC Full Bench to ensure that the schedule is inserted in a consistent manner into all
modern awards under which apprenticeship is available, and that the omission from the
Alpine Resorts, Children’s Services and Nursery Awards was an oversight.
[487] The Horse and Greyhound Training Award 2010 does appear to cover apprentices
who are working as track riders. The relevant provision is as follows (clause 3.1):
174 [2009] AIRCFB 345.
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“track rider means a person who is engaged to ride track work exclusively and may be
a jockey or an apprentice other than a jockey or an apprentice who has an established
arrangement with the employer with respect to race riding.”
[488] There are no discounted wage rates for apprentices under this award, although there
are discounted rates for unapprenticed juniors. An apprentice would be paid the rate for an
adult track rider. In these circumstances we consider it unlikely that an apprentice would be
employed as a school-based apprentice under the award. However we cannot exclude this
possibility, and therefore we will insert the schedule into the award.
[489] The variations to the abovementioned awards will be made to ensure the awards are
operating without anomalies or technical problems and meet the modern awards objective.
[490] Group Training Australia applied to vary the Aged Care Award 2010 to insert the
schedule for school-based apprentices into the award.175 There are no apprentice rates of pay
in the award, although Group Training Australia has sought to have these inserted. An
examination of the classifications covered by the award suggests that trades qualified
employees may be included in some instances. It is therefore possible that there may be a
desire to engage apprentices. We do not consider it appropriate to insert provision for school-
based apprentices when there is no specific provision for their continuing employment under
the award when they complete the school based phase of their apprenticeship. The application
to insert apprenticeship rates into this award will be considered separately. It was not
identified as a “common matter”. If such provisions are inserted, the schedule for school-
based apprentices should be inserted at that time.
[491] The Contract Call Centres Award 2010 does not provide for the employment of
apprentices. The NTWS excludes those engaged as traditional apprentices. The classification
structure includes provision for a trainee level which excludes those engaged through a new
apprenticeship/traineeship. There are no pay rates for apprentices and no classifications which
appear to cover traditional trades employees. In the absence of further evidence we do not
consider it appropriate to insert provisions for school-based apprentices in the award. The
Commonwealth submitted that there are apprentices employed under this award. In the event
that there is evidence that apprentices are employed under the award the appropriate
apprentice provisions, including school-based apprentice provisions, can be revisited in the
four yearly review.
[492] There was no opposition to the proposal to vary the schedule for school-based
apprentices in the Black Coal and Hospitality Awards to correct an omission. For similar
reasons as above, we will vary those awards to insert the missing provision in the schedule.
(ii) Competency based wage progression
[493] The other aspect of the Commonwealth’s proposal is to vary the schedule to provide
for competency based progression.
175 Group Training Australia also made a similar application to vary the Fast Food Industry Award 2010, but withdrew the
application by letter dated 6 August 2013.
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[494] We are satisfied that competency based progression for school-based apprentices is
consistent with the modern awards objective. We will therefore insert the schedule into the
specified awards with the variation for competency based progression proposed by the
Commonwealth. We will also vary the schedule in a similar way in the other awards before us
to provide for competency based progression.
[495] It is possible that not all affected parties have had the opportunity to consider the
particular drafting of the amendments proposed by the Commonwealth to the school-based
apprentice schedule in a large number of awards. In the settlement of orders we will consider
any technical drafting issues which may be raised to ensure that the variation meets the
intended purpose.
F. OTHER MATTERS
[496] There are a number of other aspects of the variations proposed by the AMWU, CEPU
and CFMEU in the common claims176 which could appropriately be described as technical
amendments to remove uncertainty or ambiguity. For example, several applications seek
consistency of expression in award descriptions of apprenticeship training contracts and the
use of updated names for various authorities. Generally there were no specific submissions in
opposition to these variations being made. The parties should confer in the settlement of
orders in respect to those matters.
[497] As referred to earlier, the parties should also confer in the settlement of orders on the
expression “all purpose” in the Building and Joinery Awards and in respect to consequential
changes for three year apprenticeships and trainee apprentices in NSW. They should also
confer about the proposed simplification of the tables in the Higher Education Award and the
deletion of the definition in G1 of that Award; the inclusion of an “all purpose” preamble for
the apprentice rates proposed by the CFMEU in the Building and Joinery Awards; the
proposed insertion of the heading to 15.3 adult apprentices in the Manufacturing Award and
the proposed addition of a prohibition on payment by results in the Vehicle Award clause
15.9; and how the CEPU proposal in respect to the lift industry allowance should be
considered by the Full Bench. These matters will be finalised in the settlement of the award
variations to be made pursuant to this decision.
G. CONCLUSIONS AND OPERATIVE DATES
[498] The apprenticeship system is a complex area and we have been greatly assisted in our
consideration of the matters by the very comprehensive submissions and the evidence
provided by the parties in the proceedings, and by the numerous reports, research, studies and
surveys referred to. We have noted in particular the report of the Apprenticeship Expert Panel
and its recommendations directed at the reform of the apprenticeship system to allow it to
meet the skills needs of the 21st century economy.
[499] For all the reasons given, we have decided that in the Transitional Review there should
be variations made to the modern awards before us in relation to apprentice rates of pay and
conditions of employment. We consider that these variations are necessary having regard to
176 See Exhibits ACTU7 and ACTU8.
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the modern awards and minimum wages objectives, and to take into account the significant
changes which have occurred in relation to apprenticeships in Australia.
[500] In particular, we have decided that:
the rates of pay for first and second year apprentices should be adjusted;
special provisions should be made in relation to rates of pay and wage protection for
adult apprentices;
provision should be made for competency based wage progression to be introduced
into a range of modern awards and for consideration to be given to its introduction
into other awards;
adjustments should be made in relation to apprentice conditions of employment
including those relating to travel costs, training time, timely payment of training
fees, and attendance at training; and
The model school-based apprentice schedule should be inserted into several modern
awards which do not contain it, and the schedule should be varied to provide for
competency based wage progression.
[501] We consider that these changes are appropriate having regard to the purpose and
objective of the Transitional Review as set out in the Transitional Provisions Act, and are
necessary to ensure that the apprenticeship system meets the needs of business and the
Australian economy and is relevant and attractive to modern day apprentices.
[502] We have not adopted many of the award variations sought by the unions in relation to
apprentice conditions of employment and training requirements. This is not because we do not
accept the principles and good practices which the variations are directed at achieving.
However, many of the proposed changes would duplicate obligations already provided in the
standard training contract and in State and Territory legislation. To provide for such matters in
awards may add unnecessary complexity in circumstances where there was inadequate
evidence that the current arrangements have not been be working satisfactorily.
[503] We have been mindful in determining the various matters of the cost of the changes to
business and the economy. However we consider that the costs of the changes we have
determined can and should be accommodated in the interests of providing a better functioning
apprenticeship system and a more relevant set of award minimum wages and conditions for
apprentices.
[504] Several of the employer groups submitted that if we decided to increase apprentice
wages, any increases should be phased in over time. It was generally submitted that this
should be done in order to mitigate the cost impact of any increases on employers.
[505] We have decided that the increases to apprentice rates of pay should be phased in, and
will take effect as follows:
If the relevant increase is equal to or less than a 5% increase in the relevant
percentage of the award reference rate (whether the equivalent of the C10
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tradesperson rate or otherwise), then the full increase shall apply from 1 January
2014;
If the relevant increase is more than a 5% increase in the relevant percentage of the
award reference rate, then the percentage or rate shall be increased by 5% from 1
January 2014, with the remainder of the increase to take effect from 1 January 2015.
[506] We have also decided that the new rates of pay shall apply only to apprentices who
commence their apprenticeship on or after 1 January 2014.
[507] The phasing arrangements shall apply to increases in apprentice rates of pay, and to
increases in first year adult apprentice rates in awards that already contain adult rates.
[508] Where we have decided to introduce adult apprentice rates into awards we consider
that it is impractical to phase them in. We note that these rates shall only apply to apprentices
commencing on or after 1 January 2014.
[509] In relation to the variations dealing with apprentice conditions of employment, these
variations shall apply to all apprentices (regardless of commencement date) from 1 January
2014.
[510] The parties should confer about the variations necessary to give effect to this decision
and provide draft variations to the Full Bench by 30 September 2013. The Full Bench will
make the determinations varying the modern awards.
SENIOR DEPUTY PRESIDENT
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Appearances:
T Shipstone, R Reitano of counsel, T Clarke and D Oliver for the ACTU
S Taylor, L Weber, N Apple, J Moriarty and A Dettmer for the AMWU
S Maxwell and D Noonan for the CFMEU
A Kentish and P Tighe for the CEPU
C Young for the USU and ASU
J Willey for the SDA
M Tehan and T Pick, solicitors, and A Morehead for the Commonwealth of Australia
B Ferguson, S Smith and G Vaccaro for the Ai Group
S Forster for the AFEI
N Ward and S Haynes, solicitors, for ABI
H Wallgren for Business SA
J Murphy for the CCIWA
R Calver for MBA and the ACCI
J Nikolić for MBA
D Humphrey and M Adler for the HIA
K McCosh for the NECA
J O’Dwyer for the ECA
W Chesterman for the MTA
P Eblen for the Motor Trade Association of South Australia
A Morris and B Rauf, solicitors, for the CMIEG
M Gao for the PIAA
S Kraemer for the MPA
T Dixon of counsel and N Peacocke, solicitor, for the MPA-NSW
Hearing details:
2012.
Sydney, Melbourne, Brisbane, Canberra, Adelaide (mentions by video link):
October 26, December 10.
2013.
Sydney:
March 4-6 and 19, April 3-5 and 22-24, May 1-3 and 8-9.
Adelaide:
March 20.
Melbourne:
March 21-22.
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H. ATTACHMENTS
Attachment A: Glossary of terms
ABI Australian Business Industrial
ACCI Australian Chamber of Commerce and Industry
Act Fair Work Act 2009
ACTU Australian Council of Trade Unions
Ai Group Australian Industry Group
AIRC Australian Industrial Relations Commission
Airline Award Airline Operations—Ground Staff Award 2010
AFEI Australian Federation of Employers and Industry
Aluminium Award Aluminium Industry Award 2010
AMIC Australian Meat Industry Council
AMMA Australian Mines and Metals Association
AMWU
“Automotive, Food, Metals, Engineering, Printing and Kindred
Industries Union” known as the Australian Manufacturing Workers’
Union
Alpine Resorts
Award Alpine Resorts Award 2010
AQF Australian Qualification Framework
ARA Australasian Railway Association
ASU Australian Municipal, Administrative, Clerical and Services Union
Black Coal Award Black Coal Mining Industry Award 2010
Building Award Building and Construction General On-site Award 2010
BVET Board of Vocational Education and Training NSW
CBWP competency-based wage progression
CBWP Principles
Principles for competency-based wage progression for Australian
Apprentices, developed by the Commonwealth and relevant
stakeholders
CCIWA Chamber of Commerce and Industry WA Inc
CEPU Communications, Electrical, Electronic, Energy, Information, Postal,
Plumbing and Allied Services Union of Australia
CFMEU Construction, Forestry, Mining and Energy Union
Children’s Services
Award Children’s Services Award 2010
CMIEG Coal Mining Industry Employer Group
COAG Council of Australian Governments
Coal Export Award Coal Export Terminals Award 2010
Commission Fair Work Commission
DEEWR Department of Education, Employment and Workplace Relations
ECA Electrical Contractors Association
Educational Educational Services (Schools) General Staff Award 2010
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Services Award
Electrical
Contracting Award Electrical, Electronic and Communications Contracting Award 2010
Electrical Power Electrical Power Industry Award 2010
FWA Fair Work Australia
Graphic Arts Award Graphic Arts, Printing and Publishing Award 2010
GTES Group Training Employment Services
GTO group training organisation
Higher Education
Award Higher Education Industry—General Staff—Award 2010
HIA Housing Industry Association
Hospitality Award Hospitality Industry (General) Award 2010
Joinery Award Joinery and Building Trades Award 2010
LGA Local Government Association of NSW and Shires Association of
NSW
Local Government
Award Local Government Industry Award 2010
Manufacturing
Award
Manufacturing and Associated Industries and Occupations Award
2010
MBA Master Builders Australia
MBGTS Master Builders Group Training Scheme Inc
MPA Master Plumbers and Mechanical Services Association of Australia
MPA-NSW Master Plumbers and Mechanical Contractors Association of NSW
MTA Motor Trades Associations
NAPSA Notional agreement preserving State awards
NCVER National Centre for Vocational Education Research Ltd
NECA National Electrical and Communications Association
NES National Employment Standards
NTWS National Training Wage Schedule
Nursery Award Nursery Award 2010
OHS occupational health and safety
PIAA Printing Industries Association of Australia
Plumbing Award Plumbing and Fire Sprinklers Award 2010
RTO Registered Training Organisation
SDA Shop, Distributive and Allied Employee’s Association
standard training
contract Apprenticeship/Traineeship Training Contract
State Chambers of
Commerce and
Industry
Chamber of Commerce and Industry WA, Chamber of Commerce and
Industry Queensland, Business SA and the Victorian Employers’
Chamber of Commerce and Industry
Sugar Award Sugar Industry Award 2010
TCF Award Textile, Footwear, Clothing and Associated Industries Award 2010
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Telecommunications
Award Telecommunications Services Award 2010
Timber Award Timber Industry Award 2010
Transitional
Provisions Act
Fair Work (Transitional Provisions and Consequential Amendments)
Act 2009
Transitional Review The review of all modern awards after two years required by Item 6,
Schedule 5 of the Transitional Provisions Act
USU New South Wales Local Government, Clerical, Administrative,
Energy, Airlines and Utilities Union
VACC Victorian Automobile Chamber of Commerce
Vehicle Award Vehicle Manufacturing, Repair, Services and Retail Award 2010
Water Award Water Industry Award 2010
WR Act Workplace Relations Act 1996
WRC Workplace Research Centre
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Attachment B: List of applications referred to the Full Bench
Table 1: Applications referred to the Full Bench in the President’s statement of 14 June 2012
([2012] FWA 5102).
Matter no. Modern award title Award ID
AM2012/18 N/A*
AM2012/128 All awards containing the National Training Wage Schedule
AM2012/135 34 awards**
AM2012/107 Airline Operations—Ground Staff Award 2010 MA000048AM2012/282
AM2012/60 Aged Care Award 2010 MA000018
AM2012/140 Black Coal Award MA000001
AM2012/50 Broadcasting and Recorded Entertainment Award 2010 MA000091
AM2012/48
Building and Construction General On-Site Award 2010 MA000020AM2012/129
AM2012/160
AM2012/228
AM2012/52 Clerks - Private Sector Award 2010 MA000002
AM2012/159 Electrical Power Industry Award 2010 MA000088
AM2012/157 Electrical, Electronic and Communications Contracting
Award 2010 MA000025AM2012/161
AM2012/184
AM2012/59 Fast Food Industry Award 2010 MA000003
AM2012/178 Food, Beverage and Tobacco Manufacturing Award 2010 MA000073
AM2012/177 General Retail Industry Award 2010 MA000004AM2012/8
AM2012/141 Graphic Arts, Printing and Publishing Award 2010 MA000026
AM2012/172 Hair and Beauty Industry Award 2010 MA000005AM2012/287
AM2012/58 Health Professionals and Support Services Award 2010 MA000027
AM2012/110 Higher Education Industry—General Staff—Award 2010 MA000007AM2012/61
AM2012/24 Hospitality Industry (General) Award 2010 MA000009
AM2012/127 Joinery and Building Trades Award 2010 MA000029
AM2012/55 Labour Market Assistance Industry Award 2010 MA000099
AM2012/168 Local Government Industry Award 2010 MA000112
AM2012/109 Manufacturing and Associated Industries and Occupations
Award 2010 MA000010
AM2012/164 Meat Industry Award 2010 MA000059
AM2012/54 Nurses Award 2010 MA000034
AM2012/202
Plumbing and Fire Sprinklers Award 2010 MA000036AM2012/183
AM2012/199
AM2012/57 Social, Community, Home Care and Disability Services
Industry Award 2010 MA000100
AM2012/152 Sugar Industry Award 2010 MA000087
AM2012/56 Surveying Award 2010 MA000066
AM2012/155 Telecommunications Services Award 2010 MA000041
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Matter no. Modern award title Award ID
AM2012/64 Timber Industry Award 2010 MA000071
AM2012/53 Vehicle Manufacturing, Repair, Services and Retail Award
2010 MA000089
AM2012/247 Vehicle Award MA000089
AM2012/271 Wine Industry Award 2010 MA000090
* This application was made by a Queensland government body which no longer exists,
and has not been dealt with by the Full Bench. The matter number AM2012/18,
however, has been used to refer to the ‘common claims’ proceedings generally.
** Following the amendment of the application, which initially sought to vary 36 awards.
Table 2: Applications subsequently referred to the Full Bench
Matter no. Modern award title Award ID
AM2012/14 Aquaculture Award 2010 MA000114
AM2012/66 MA000114
AM2012/196 General Retail Industry Award 2010 MA000004
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Price code O, PR539853