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Fair Work (Transitional Provisions and Consequential Amendments) Act 2009
Item 6, Sch. 5—Modern awards review
Modern Awards Review 2012—Apprentices, Trainees and Juniors
(AM2012/66, AM2012/76, AM2012/144, AM2012/152, AM2012/160, AM2012/199, AM2012/202)
JUSTICE BOULTON, SENIOR DEPUTY PRESIDENT
SENIOR DEPUTY PRESIDENT HARRISON
COMMISSIONER ROE
MELBOURNE, 28 NOVEMBER 2013
Review of all modern awards after two years - applications relating to apprentices, trainees
and junior rates - non-common matters - Peak Sports Apprenticeships - insertion of junior
rates - fees for repeat courses - prohibition on competency based progression - provision of
tool allowance to apprentices - lift industry allowance - application of general training costs
clause.
[1] In the statement of 23 October 2013,1 the Full Bench set out how the “non-common
matters” relating to apprentices, trainees and juniors arising in the review of all modern
awards required by Item 6, Schedule 5 of the Fair Work (Transitional Provisions and
Consequential Amendments) Act 2009 (the Transitional Review) would be finalised.
[2] The statement refers to the various conferences conducted by Commissioner Roe and
the statements issued by the Commissioner following the conferences. The statement
indicates that the non-common matters will be finalised as follows:
“(a) In respect to all the non-common matters except those listed in (b), (c) and (d)
below, the decision of the Full Bench will be made having regard to the report
and submissions received to date. Any party wishing to make a further
submission should provide this to the Full Bench by 30 October 2013.
(b) In respect to the following matters, a decision will be made based upon
submissions and evidence received according to the timetable contained in the
statement of Commissioner Roe of 17 October 2013:
Tool allowance – Sugar Industry Award 2010 (the Sugar Award)
(AM2012/152);
Non-payment of fees for repeat courses – Plumbing and Fire Sprinklers
Award 2010 (the Plumbing Award) (AM 2012/199 and AM2012/202);
1 [2013] FWCFB 8301.
[2013] FWCFB 9295
DECISION
E AUSTRALIA FairWork Commission
[2013] FWCFB 9295
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Lift allowance - Building and Construction General On-site Award 2010
(the Building Award) (AM2012/160); and
Application of clause 32.5 of the Manufacturing and Associated
Industries and Occupations Award 2010 (the Manufacturing Award) to
trainees and apprentices (AM2012/76).
The first three of these matters will be determined on the basis of the
submissions. The last matter will be determined on the basis of submissions
unless there are witnesses required for cross-examination.
(c) In respect to the application to vary junior rates in the Manufacturing Award
(AM2012/109), this matter will be further discussed at the next conference
before Commissioner Roe and will be programmed for hearing if necessary at a
later date.
(d) In respect to the Ai Group application for changes to competency based
progression in the Manufacturing Award (AM2012/76), there will be further
discussions between the parties and this matter will be programmed for hearing
if necessary at a later date.”2
[3] Some of the non-common matters referred to in Commissioner Roe’s statements have
been dealt with in the decision of 22 November 2013,3 including the applications made by
Group Training Australia. In this decision, we deal with the remaining matters referred to in
paragraphs (a) and (b) above.
[4] Submissions were made by various parties in accordance with the timetable and
directions given in the statements by the Full Bench and Commissioner Roe. We have
considered these submissions together with the reports by the Commissioner on the progress
made in the conferences. In relation to the matters where an agreed or accepted position was
reached between the parties in the conferences, we have generally adopted these positions and
the determinations published pursuant to this decision will so provide.
[5] We now turn to deal with the remaining non-common matters.
Plumbing and Fire Sprinklers Award 2010
[6] There are several matters relating to the Plumbing and Fire Sprinklers Award 2010
(the Plumbing Award).
[7] The first relates to an application by the Master Plumbers and Mechanical Contractors
Association of NSW (MPA-NSW) for the inclusion in the award of provisions for Peak
Sports Apprenticeships. The peak sports apprentice is a person who is undertaking an
apprenticeship in accordance with the award while also being contracted to play sport at a
peak level. Peak sports apprenticeships are only available to persons contracted to the
National Rugby League, Australian Football League, Football Federation Australia, and
2 Ibid at [4].
3 [2013] FWCFB 9092.
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Cricket Australia. The apprentices may be engaged in either full time or part time work from
time to time to balance the varying requirements of the apprentice's sports commitments as
well as the arrangements required by the apprenticeship. As a consequence the apprenticeship
may extend to a period of up to six years. Other apprentice wages and conditions under the
award apply.
[8] There was no opposition to the introduction of peak sports apprenticeships into the
Plumbing Award and a revised determination was provided by the Communications,
Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of
Australia (CEPU) Plumbing Division. We consider that the variation may be made consistent
with the modern awards and minimum wages objectives in the Fair Work Act 2009 (the Act).
[9] The second matter in relation to the Plumbing Award concerns apprentices who are
required to repeat training courses. The MPA-NSW and the Master Plumbers and Mechanical
Services Association of Australia (MPA) are seeking the inclusion in the award of a provision
that employers are not required to provide apprentices with time off for training or to meet the
cost of fees etc for repeat courses. The parties were given an opportunity to make submissions
in support of the proposal,4 but did not do so. Such provision is not a common provision in
awards and we are not persuaded that it should be introduced into the Plumbing Award.
[10] The third matter relates to an application by the MPA-NSW for the insertion of a
prohibition into the Plumbing Award on competency based progression. In the decision of 22
August 2013, we decided to facilitate the introduction of competency based wage progression
for apprentices in awards where it is not already provided.5 It would be inconsistent with the
decision reached to insert the proposed prohibition into the Plumbing Award and nothing has
been put to persuade us that a different approach is warranted in this award. The application is
rejected.
Aquaculture Award 2010 and Sporting Organisations Award 2010
[11] The next matter concerns the insertion of junior rates of pay into two awards. We have
considered the submissions of the Australian Football League and the proposed draft
determination, in respect to the insertion of junior rates of pay into the Sporting Organisations
Award 2010 for those employed by national and state sporting organisations engaged in
coaching classifications. We have also considered the supporting submissions of other parties
and the report of Commissioner Roe. We consider it is consistent with the modern awards and
minimum wages objectives to vary the award to include junior rates of pay for those
employed by national and state sporting organisations engaged in coaching classifications.
[12] We have considered the submissions and revised draft determination provided by the
South Australian Employers’ Chamber of Commerce and Industry (Business SA) on behalf of
a number of other organisations concerning the insertion of junior rates into the Aquaculture
Award 2010. We note that agreement has been reached with the Australian Workers Union on
the revised draft determination and that junior rates were included in relevant pre-modern
awards and notional agreements preserving state awards (NAPSAs). We consider that it is
4 See statement of Commissioner Roe, 17 October 2013.
5 [2013] FWCFB 5411 at [295] and [302].
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consistent with the modern awards and minimum wages objectives to vary the award to
include junior rates of pay.
[13] The two awards will be varied accordingly.
Sugar Industry Award 2010
[14] The Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union
(AMWU) has sought the inclusion in the Sugar Industry Award 2010 (the Sugar Award) of an
entitlement for apprentices to a relevant proportion of the tool allowance applicable to
tradespersons. This is opposed by the Ai Group.
[15] In support of its application, the AMWU relied upon the entitlement of apprentices
under a number of other awards to tool allowance or a relevant proportion of tool allowance.
It was also said that various groups of apprentices now covered by the Sugar Award were
entitled to tool allowance under previous awards or transitional instruments.6 It was submitted
that it is appropriate that apprentices under the Sugar Award should be paid the relevant
proportion of tool allowance.
[16] The Ai Group submitted that the failure to include an entitlement to tool allowance for
apprentices was not an anomaly or oversight in the making of the modern award. In this
regard, it was said that the draft awards proposed by the parties in the award modernisation
process, including the unions, did not include payment of tool allowance to apprentices. The
Ai Group submitted that the absence of such payment has not created problems and, in this
regard, referred to the entitlement of apprentices to the “tools for your trade” allowance from
the federal government.
[17] Whilst we accept that the entitlement of apprentices to tool allowance was not the
subject of any substantive consideration in the making of the modern award, it would seem
that it also was not a matter of contention at the time between the parties. Although there was
an entitlement under previous awards to tool allowance for some groups of apprentices now
covered by the Sugar Award, it has not been demonstrated that the absence of such
entitlement in the modern award means that the award is not operating effectively or fails to
meet the modern awards objective. We are not persuaded on the limited material and
submissions presented that the proposed variation should be made.
Building and Construction General On-site Award 2010
[18] The AMWU and the CEPU have sought to vary the entitlement of apprentices to lift
industry allowance under the Building and Construction General On-site Award 2010 (the
Building Award).
[19] Under clause 42 of the Building Award, a lift industry allowance is payable to
electrical and mechanical tradespersons in consideration of the peculiarities and disabilities
associated with work in the lift industry (see clause 42.2(a)). An employee in receipt of the
allowance will not be entitled to any of the special rates provided in clause 22 of the award
6 Se e.g. the Metal, Engineering and Associated Industries Award 1998 and the Bulk Terminals Award - State 2003.
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(clause 42.2(c)). Clause 42.2(b) provides that apprentices are paid a proportion of lift industry
allowance in accordance with their year of apprenticeship:
“(b) Apprentices must be paid the following proportion of the appropriate
lift industry allowance as follows:
Year of apprenticeship % of allowance
First year of apprenticeship 42
Second year of apprenticeship 55
Third year of apprenticeship 75
Fourth year of apprenticeship 88
...”
[20] The AMWU and the CEPU submitted that the entitlement of apprentices to lift
industry allowance should be amended to reflect the proportion of minimum rates generally
payable to apprentices under the award following the decision of 22 August 2013, namely,
55%, 65%, 75% and 90%. The Housing Industry Association (HIA), Master Builders
Australia (MBA) and the Ai Group oppose the variation. The employers submitted that the
historical nexus between the lift industry allowance percentages and the minimum wage
percentages applying to apprentices was broken in the making of the modern award and that
there is no evidence that the award is operating unfairly or that the variation is necessary.
[21] We have considered the history of the award and the basis for the calculation of the
entitlement of apprentices to lift industry allowance. We note that the current percentages
(42%, 55%, 75% and 88%) were introduced into the Metal Industry Award 1971 as being the
percentage proportion of the adult trades rates of pay which was payable to apprentices at the
time.7 These percentages, both as to rates of pay and entitlement to lift allowance, were
maintained in the various predecessors to the Building Award.8 In the making of the modern
award, the percentages used for determining the rates of pay for all apprentices (including
electrical and mechanical apprentices in the lift industry) became the same as those
traditionally applicable to carpenters and other building trade apprentices, namely 45%, 55%,
75% and 90%. This resulted in the breaking of the nexus between the minimum rates
percentages and lift industry allowance percentages payable to apprentices under the modern
award. Although it is not clear whether this was an intended or inadvertent result, we are
satisfied that an anomaly arose in setting the apprentice rates of lift industry allowance at the
time of award modernisation. We consider that the historical relationship between the
minimum rates percentages and the lift industry allowance percentages should be restored as
part of the Transitional Review of the Building Award. This is consistent with the modern
awards and minimum wages objectives in providing an understandable, stable and fair basis
for the calculation of the entitlement of apprentices to lift industry allowance under the award.
[22] Accordingly clause 42.2(b) of the Building Award will be varied to provide for the
following percentages to be applied in calculating the entitlement of apprentices to lift
industry allowance: 55%, 65%, 75% and 90%.
7 See Re Metal Industry Award, 1971 (1973) 149 CAR 494 at 499 (Williams J).
8 See e.g. the Metal Industry Award 1984, the National Metal and Engineering On-site Construction Industry Award 1989,
and the National Metal and Engineering On-site Construction Industry Award 2002.
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Manufacturing and Associated Industries and Occupations Award 2010
[23] The Ai Group has sought a variation to the Manufacturing and Associated Industries
and Occupations Award 2010 (the Manufacturing Award) so that clause 32.5 does not apply
to apprentices and trainees.
[24] Clause 32.5 of the award provides an entitlement to training costs for employees,
including the cost of standard fees for prescribed courses and text books and travel costs. It
provides:
“32.5 Training costs
(a) Any costs associated with standard fees for prescribed courses and prescribed
textbooks (excluding those textbooks which are available in the employer’s
technical library) incurred by an employee in connection with training agreed
to by the employer must be reimbursed by the employer on the production of
evidence of such expenditure by the employee, provided that reimbursement
may be on an annual basis subject to the presentation of reports of satisfactory
progress.
(b) Travel costs incurred by an employee undertaking training agreed to by the
employer, which exceed those normally incurred in travelling to and from
work, must be reimbursed by the employer.”
[25] It was submitted by the Ai Group that the variation sought would clarify the operation
of clause 32.5. It was said that the subclause was originally introduced into the Metal Industry
Award as part of a package of award changes associated with implementing a new skills-
based classification structure and career paths. The subclause was never intended to have
application to training by apprentices and trainees as the provisions associated with such
training are governed by other award provisions. It was also submitted that the provision is
inconsistent with the existing training cost provision in the award for apprentices9 and with
the decision of 22 August 2013 dealing with training costs and travel costs for apprentices10.
[26] The AMWU opposed the variations. It was said that there is nothing in the decision
creating the modern award to the effect that clause 32.5 is not intended to apply to apprentices
and trainees. Further it was said that the rationale underlying the promotion of training and
career progression in the award has application to apprentices even if they are not formally a
part of the classification structure.
[27] We have considered the submissions of the parties and have examined the history of
the relevant award provisions. This examination has included the decision leading to the
introduction of the training costs provisions into predecessor awards, and the various
publications advising employers and workers about the implementation of the new
9 See e.g. subclause 15.15 dealing with reimbursement of fees.
10 [2013]FWCFB 5411 especially at [303]-[362].
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classification structure and associated training commitments.11 We have also considered the
situation in other awards with apprenticeship provisions which include provisions similar to
clause 32.5.
[28] In relation to apprentices, we note that the Manufacturing Award provides for the
reimbursement of training fees upon satisfactory progress12 and, as a result of the decision of
22 August 2013, will provide for reimbursement for the cost of prescribed textbooks and for
the payment of excess travel costs for attendance at block release training which requires an
overnight stay. We also note that clause 15.11 of the award provides that “except as provided
in clause 15 Apprentices or where otherwise stated, all conditions of employment specified in
this award apply to apprentices.”
[29] Having regard to these matters, including the history relating to the introduction of the
present clause 32.5 of the award, we consider that it is appropriate to clarify the application of
the subclause in relation to apprentices. We consider that the provisions introduced or varied
as a result of the decision of 22 August 2013 are now the relevant entitlements of apprentices
in relation to reimbursement for course fees and textbooks and payment for travel costs
associated with training which is in connection with an apprentice’s training contract. It is
appropriate to avoid confusion between these entitlements and entitlements under clause 32.5.
This is consistent with the modern awards objective (s.134(1)(f) and (g)) .
[30] We consider that the variation proposed by the Ai Group should be modified in the
manner we have adopted in the variation of the Graphic Arts, Printing and Publishing Award
2010. Accordingly we will vary clause 32.5 of the Manufacturing Award by inserting a new
paragraph 32.5(c) as follows:
“(c) This subclause 32.5 does not apply to costs associated with training that are in
connection with an apprentice’s training contract. Such costs are subject to
clause 15 and not this clause.”
[31] In relation to trainees, the position is not as straight forward. An application by the Ai
Group to vary the National Training Wage Schedule in awards was considered in the decision
of 22 August 2013.13
[32] The National Training Wage Schedule (NTWS) to the Manufacturing Award
(Schedule D) provides in clause D.6.4 as follows:
“D.6.4 Subject to clause D.3.5 of this schedule, all other terms and conditions of this
award apply to a trainee unless specifically varied by this schedule.”
[33] Clause D.3.5 provides:
11 See e.g. Award Restructuring Implementation Manual for the Metal and Engineering Industry - a joint publication by the
Metal Trades Industry Association of Australia and the Metal Trades Federation of Unions (1990).
12 See clause 15.15.
13 [2013] FWCFB 5411 at [461]-[480].
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“D.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.”
[34] In the decision of 22 August 2013 we noted that there is no specific provision about
payment of course fees or travel costs in the NTWS and that the only provisions which could
apply to trainees are those which would otherwise be applicable under the award.14 In this
regard we referred to a recent decision of the Federal Court.15
[35] In these circumstances, and without further material relating to the application of
clause 32.5 to trainees and the practical implications of the variations proposed by the Ai
Group for trainees, we are not persuaded that it would be consistent with the modern awards
objective, including the need to ensure a stable and sustainable modern award system
(s.134(1)(g)), to make the variations proposed. Moreover we are not satisfied that such
variation in relation to trainees is necessary to ensure that the award is operating effectively
without anomalies or technical problems arising from the award modernisation process.
Accordingly we have decided not to make the variation sought by the Ai Group.
[36] The other matter relating to the Manufacturing Award concerns the application by the
AMWU to vary junior rates. This is referred to in paragraph (c) of the statement of 23
October 2013. We note that the AMWU has now advised that it will not be proceeding with
this application.
Determinations
[37] Determinations will be made varying the various awards in accordance with this
decision. The decision and the determinations now finalise the non-common matters referred
to the Full Bench in the Transitional Review, except for various issues relating to competency
based wage provisions16 and matters relating to part-time trainees which are the subject of
consideration in conferences before Commissioner Roe.
SENIOR DEPUTY PRESIDENT
Printed by authority of the Commonwealth Government Printer
Price code C, PR545016
14 Ibid at [476].
15 Ibid at [477].
16 See [2013] FWCFB 8301 at [4], sub-para (d) and [5], sub-para (c).
OF FAIR WORK CON OF FA COM MISSION JAUSTRALI. THE SEA!
