1
Fair Work Act 2009
s.156 - 4 yearly review of modern awards
Communications, Electrical, Electronic, Energy, Information, Postal,
Plumbing and Allied Services Union of Australia
(AM2015/9)
Electrical power industry
SENIOR DEPUTY PRESIDENT HAMBERGER
DEPUTY PRESIDENT SAMS
COMMISSIONER ROE SYDNEY, 3 MARCH 2016
4 yearly review of modern awards – Manufacturing and Associated Industries and
Occupations Award 2010 [MA000010] and Electrical Power Industry Award 2010
MA000088] – Fair Work Act 2009 ss. 134, 138 and 156 – application to insert electrical
licence allowance – application refused.
Introduction
[1] On 9 May 2014, the Communications, Electrical, Electronic, Energy, Information,
Postal, Plumbing and Allied Services Union of Australia (CEPU) sought that these two
awards be varied as part of the first 4 yearly review of modern awards (the Review) to
introduce an electrical licence allowance. The provision that the CEPU seeks to introduce into
the Electrical Power Industry Award 20101 (Electrical Power Award) is as follows:
“An electrical worker who holds a certificate III electrotechnology qualification and
holds the appropriate electrical licence, who in the course of their duties is required to
perform electrical wiring work on an electrical installation as defined in the relevant
state legislation, must be paid an all-purpose allowance of 4.55% of the standard rate
per week.”
[2] The provision proposed in respect to the Manufacturing and Associated Industries and
Occupations Award 20102 (Manufacturing Award) is identical, save that the allowance is
proposed to be 172.88% of the standard rate, as the standard rate in that award is an hourly
rate whilst it is a weekly rate in the Electrical Power Award.
[3] The proposed allowance would be approximately $34.80 per week based upon current
rates. Under the Manufacturing Award, a tradesperson reclassified from C10 to C9 would
receive a minimum rate increase of $23.90 per week.
[2016] FWCFB 1294
DECISION
E AUSTRALIA FairWork Commission
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[4] The Review is required to be conducted in accordance with s.156 of the Fair Work Act
2009 (the Act), which states:
“156 4 yearly reviews of modern awards to be conducted
Timing of 4 yearly reviews
(1) The FWC must conduct a 4 yearly review of modern awards starting as soon
as practicable after each 4th anniversary of the commencement of this Part.
Note 1: The FWC must be constituted by a Full Bench to conduct 4 yearly reviews of
modern awards, and to make determinations and modern awards in those
reviews (see subsections 616(1), (2) and (3)).
Note 2: The President may give directions about the conduct of 4 yearly reviews of
modern awards (see section 582).
What has to be done in a 4 yearly review?
(2) In a 4 yearly review of modern awards, the FWC:
(a) must review all modern awards; and
(b) may make:
(i) one or more determinations varying modern awards; and
(ii) one or more modern awards; and
(iii) one or more determinations revoking modern awards; and
(c) must not review, or make a determination to vary, a default fund term
of a modern award.
Note 1: Special criteria apply to changing coverage of modern awards or revoking
modern awards (see sections 163 and 164).
Note 2: For reviews of default fund terms of modern awards, see Division 4A.
Variation of modern award minimum wages must be justified by work value reasons
(3) In a 4 yearly review of modern awards, the FWC may make a determination
varying modern award minimum wages only if the FWC is satisfied that the variation
of modern award minimum wages is justified by work value reasons.
(4) Work value reasons are reasons justifying the amount that employees should
be paid for doing a particular kind of work, being reasons related to any of the
following:
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(a) the nature of the work;
(b) the level of skill or responsibility involved in doing the work;
(c) the conditions under which the work is done.
Each modern award to be reviewed in its own right
(5) A 4 yearly review of modern awards must be such that each modern award is
reviewed in its own right. However, this does not prevent the FWC from reviewing
2 or more modern awards at the same time.”
[5] It is also necessary to consider provisions of the Act dealing with modern awards.
Section 138 of the Act provides:
“138 Achieving the modern awards objective
A modern award may include terms that 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.”
[6] With respect to this section, a Full Bench of the Commission has said:3
“[38] Under s.157(1) the Commission must be satisfied that ‘a determination varying a
modern award ... is necessary to achieve the modern awards objective’ (emphasis
added). In Shop, Distributive and Allied Employees Association v National Retail
Association (No 2) (SDA v NRA (No 2)) Tracey J considered the proper construction of
s.157(1). His Honour held:
“The statutory foundation for the exercise of FWA’s power to vary modern
awards is to be found in s 157(1) of the Act. The power is discretionary in
nature. Its exercise is conditioned upon FWA being satisfied that the variation
is “necessary” in order “to achieve the modern awards objective”. That
objective is very broadly expressed: FWA must “provide a fair and relevant
minimum safety net of terms and conditions” which govern employment in
various industries. In determining appropriate terms and conditions regard must
be had to matters such as the promotion of social inclusion through increased
workforce participation and the need to promote flexible working practices.
The subsection also introduced a temporal requirement. FWA must be satisfied
that it is necessary to vary the award at a time falling between the prescribed
periodic reviews.
The question under this ground then becomes whether there was material
before the Vice President upon which he could reasonably be satisfied that a
variation to the Award was necessary, at the time at which it was made, in
order to achieve the statutory objective…
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In reaching my conclusion on this ground I have not overlooked the SDA’s
subsidiary contention that a distinction must be drawn between that which is
necessary and that which is desirable. That which is necessary must be done.
That which is desirable does not carry the same imperative for action. Whilst
this distinction may be accepted it must also be acknowledged that reasonable
minds may differ as to whether particular action is necessary or merely
desirable. It was open to the Vice President to form the opinion that a variation
was necessary.”
[39] We are satisfied that s.138 is relevant to the Review. We also accept that the
observations of Tracey J in SDA v NRA (No.2), as to the distinction between that
which is “necessary” and that which is merely desirable, albeit in a different context,
are apposite to any consideration of s.138.” [endnotes omitted]
[7] The modern awards objective in s.134 of the Act provides:
“134 The modern awards objective
What is the modern awards objective?
(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.
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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] In a preliminary decision concerning the Review, a Full Bench said:4
“[31] The modern awards objective is directed at ensuring that modern awards, together
with the NES, provide a ‘fair and relevant minimum safety net of terms and
conditions’ taking into account the particular considerations identified in paragraphs
134(1)(a) to (h) (the s.134 considerations). The objective is very broadly expressed.
The obligation to take into account the matters set out in paragraphs 134(1)(a) to (h)
means that each of these matters must be treated as a matter of significance in the
decision making process. As Wilcox J said in Nestle Australia Ltd v Federal
Commissioner of Taxation:
“To take a matter into account means to evaluate it and give it due weight,
having regard to all other relevant factors. A matter is not taken into account by
being noticed and erroneously discarded as irrelevant.”
[32] No particular primacy is attached to any of the s.134 considerations and not all of
the matters identified will necessarily be relevant in the context of a particular
proposal to vary a modern award.
[33] There is a degree of tension between some of the s.134(1) considerations. The
Commission’s task is to balance the various s.134(1) considerations and ensure that
modern awards provide a fair and relevant minimum safety net of terms and
conditions. The need to balance the competing considerations in s.134(1) and the
diversity in the characteristics of the employers and employees covered by different
modern awards means that the application of the modern awards objective may result
in different outcomes between different modern awards.
[34] Given the broadly expressed nature of the modern awards objective and the range
of considerations which the Commission must take into account there may be no one
set of provisions in a particular award which can be said to provide a fair and relevant
safety net of terms and conditions. Different combinations or permutations of
provisions may meet the modern awards objective.” [endnotes omitted]
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[9] The following general observation in that Full Bench decision about the Review is
relevant to the relationship between the decision to create a modern award, the historical
context and the Review:5
“[60] ... 3. The Review is broader in scope than the Transitional Review of modern
awards completed in 2013. The Commission is obliged to ensure that modern awards,
together with the NES, provide a fair and relevant minimum safety net taking into
account, among other things, the need to ensure a ‘stable’ modern award system
(s.134(1)(g)). The need for a ‘stable’ modern award system suggests that a party
seeking to vary a modern award in the context of the Review must advance a merit
argument in support of the proposed variation. The extent of such an argument will
depend on the circumstances. Some proposed changes may be self evident and can be
determined with little formality. However, where a significant change is proposed it
must be supported by a submission which addresses the relevant legislative provisions
and be accompanied by probative evidence properly directed to demonstrating the facts
supporting the proposed variation. In conducting the Review the Commission will also
have regard to the historical context applicable to each modern award and will take
into account previous decisions relevant to any contested issue. The particular context
in which those decisions were made will also need to be considered. Previous Full
Bench decisions should generally be followed, in the absence of cogent reasons for not
doing so. The Commission will proceed on the basis that prima facie the modern
award being reviewed achieved the modern awards objective at the time that it was
made.”
[10] During the making of the Electrical Power Award, the CEPU sought the inclusion of
an electrical licence allowance of 4.5% of the standard rate. The Full Bench had before it
submissions from both the CEPU and the employer representatives on the electrical licence
allowance proposal. The Full Bench rejected the inclusion of the allowance as follows:
“We have rejected a union suggestion for an electrical licence allowance on the basis
that such an allowance is not a common feature of the underlying awards and
NAPSAs.”6
[11] The CEPU identified the following modern awards that include an electrical licence
allowance:
the Electrical, Electronic and Communications Contracting Award 2010;7
the Building and Construction General On-site Award 2010;8
the Mining Industry Award 2010;9
the Port Authorities Award 2010;10
the Stevedoring Award 2010;11 and
the Hydrocarbons Industry (Upstream) Award 2010.12
[12] The CEPU submits that an electrical licence allowance was a common feature of the
pre-modern awards that applied to those electricians who became part of these modern
awards. The CEPU also submits that the allowance is generally paid in recognition of the
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level of training and skill possessed and practised, and for the responsibilities associated with
holding the licence, including supervising electrical work by non-licence holders.
[13] Of the very large number of previous industrial instruments within the scope of what is
now the Manufacturing Award, the CEPU identified the following which included an
electrical licence:
the Lift Industry (Electrical and Metal Trades) Award 1973;13
the Metal Trades (Australian Capital Territory) Award 2000;14
the Metal Trades (General) Award 1966;15 and
the Electricians, &c. (State) Award.16
[14] With the exception of the Metal Trades (Australian Capital Territory) Award 2000,
these awards had coverage which is now distributed between a number of modern awards, and
the previous instruments included significant coverage of electricians’ work in industries and
occupations such as on-site construction and electrical contracting, where the relevant modern
awards include a licence payment.
[15] During the making of the Manufacturing Award, the CEPU did not seek the inclusion
of an electrical licence payment.
[16] The CEPU submits that it is not the industry of the employer that should determine
whether or not a holder of an electrical licence is entitled to an allowance. The allowance
should be paid in recognition of responsibilities or skills that are not taken in account in rates
of pay.17
[17] The CEPU relied upon evidence from a number of its members who work as
electricians and also on the evidence of Mr Harris, who from 1998 to 2012 worked for
“Electro Skills”, a training entity formed by the CEPU and industry partners. Mr Harris has
had experience conducting examinations for the electrical licence and gave evidence
concerning the relevant licence requirements.
[18] The CEPU submits that the licence adds the following value:
“Firstly, it allows work to be performed without supervision. As defined above the
licence permits, “… a person who is licensed to undertake unsupervised electrical
work in a jurisdiction.”
Unlicensed persons, or persons with “lesser” licences, are permitted to undertake
electrical work under supervision. This is provided for by the various jurisdictional
arrangements including “restricted” or fitter licences and unlicensed persons…
This indicates that one of the “value adds” which attach to an electrical licence is the
capability to individually work unsupervised and supervise others. This is clearly
regarded as separate from the ability to do the work as an unlicensed person may do
so, under supervision.
Secondly, it allows for inspection and certification. In all Australian jurisdictions a
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licensed person may also inspect and/or certify electrical work or electrical
installations as compliant with applicable technical and safety standards and
regulations, including:
Work they have carried out.
Work done by others under their supervision.
Work done by other licensed persons.
This attribute pertains to the licensed rather than the qualified worker and therefore is
a “value add” accruing from holding an electrical licence.
Thirdly, it allows for design and modification. Within the scope of the licence is also
the capacity to design and/or amend the design of an electrical installation prepared by
another person e.g. an engineer, to meet local circumstances and/or ensure compliance
with technical or safety standards.”18
[19] Section 139 of the Act defines the terms that may be included in modern awards. In
respect of allowances it provides:
“(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”.
[20] The CEPU does not argue that the allowance is in respect to disability. It also does not
argue for the allowance on the basis of reimbursement of expenses. Mr Harris gave evidence
that the initial charge for the allowance is less than $150 and the maintenance fee is less than
$50. The CEPU argues for the allowance on the basis of “responsibilities or skills that are not
taken into account in rates of pay”.
[21] The Australian Industry Group, supported by the other employer representative
groups, argues that the responsibilities and skills associated with holding and using the licence
are taken into account in the rates of pay for the relevant classifications in the Manufacturing
Award. Evidence was given by Mr Tiller, Senior Adviser for the Australian Industry Group
and Mr Jenkins, who is also currently employed by the Australian Industry Group, but who
has had many years of experience in the development of the training packages for
Manufacturing Skills Australia (MSA).
[22] The classification structure in the Manufacturing Award generally recognises all skills,
qualifications and responsibilities. The structure allows for tradespersons to be classified from
C10 to C5 depending upon their level of skill, qualification and responsibility. The award
includes a number of expense- and disability-related allowances, but it includes only a few
allowances which relate to skills or responsibilities that are not taken into account in rates of
pay through the classification structure:
leading hand allowance (and supervisor/trainer/coordinator- technical);
technical computing equipment (restricted to employees in the technical field);
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first aid allowance; and
to some extent, engine driver and fireperson allowances.
[23] The base trades level, including for electricians, was broadbanded to level C10 as part
of the award restructuring process in 1989. The CEPU clarified that they were not seeking to
argue in this case that the work value of the C10 base trades level for electricians had
increased, or had increased relative to others at the C10 level, justifying a change to
relativities. The qualification and other requirements for tradespersons specified in the Award
classifications from C10 to C5 include the requirements to be an electrical/electronic
tradesperson.
[24] The relevant C10 classification descriptor in the Manufacturing Award is in Schedule
B.3.7:
“Engineering/Manufacturing Tradesperson—Level I
(i) An Engineering/Manufacturing Tradesperson—Level I is an employee who holds a
trade certificate or tradespersons rights certificate or equivalent as an:
Engineering Tradesperson (Electrical/Electronic)— Level I;
Engineering Tradesperson (Mechanical)— Level I;
Engineering Tradesperson (Fabrication)—Level I;
Furnishing Industry Tradesperson Level I;
Floor Finisher and/or Floor Coverer Tradesperson;
or equivalent;
and is able to exercise the skills and knowledge of the engineering trade so as to
enable the employee to perform work within the scope of this level.
(ii) An Engineering/Manufacturing Tradesperson—Level I works above and beyond
an employee at the C11 level and to the level of their skills, competence and training:
understands and applies quality control techniques;
exercises good interpersonal and communications skills;
exercises keyboard skills at a level higher than the C11 level;
exercises discretion within the scope of this classification level;
performs work under limited supervision either individually or in a team
environment;
operates lifting equipment incidental to their work;
performs non-trade tasks incidental to their work;
performs work which while primarily involving the skills of the employee’s trade
is incidental or peripheral to the primary task and facilitates the completion of the
whole task, provided that such incidental or peripheral work does not require
additional formal technical training;
inspects products and/or materials for conformity with established operational
standards.”
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[25] The procedure for classifying employees is found in Clause 24.3 of the Manufacturing
Award. The relevant parts of that provision are as follows:
“(b) Procedure for classifying employees covered by the National Metal and
Engineering Competency Standards
(i) Procedures for classifying employees under this award are set out in the
National Metal and Engineering Competency Standards Implementation Guide
(the Guide) distributed by Manufacturing Skills Australia “MSA”
(www.mskills.com.au).
(ii) Where there is agreement to implement the competency standards at the
enterprise, or in the event that the classification of an employee is called into
question, the issue is to be settled by the application of competency standards
in accordance with clause 24.3(b) and the National Metal and Engineering
Competency Standards Implementation Guide or by reference to the minimum
training requirement in the relevant classification definition, except as provided
in clause 24.3(b)(iii).
(iii) Where the employee has a relevant qualification recognised as a minimum
training requirement for the level at which the employee seeks to be classified
and the employee is exercising or will be required to exercise the skills and
knowledge gained from that qualification necessary for that level of work, the
employee must be classified appropriately. It is up to the employer to
demonstrate reasons for a qualification that is a recognised minimum training
requirement not being regarded as relevant for an employee’s work.”
[26] The terms “or equivalent” and “work within the scope of this level” are defined in
Schedule B.3.1(b) of the Manufacturing Award and are read in conjunction with the National
Metal and Engineering Competency Standards Implementation Guide and the qualifications
as determined by MSA:
“(i) Or equivalent means:
any training which a registered provider (e.g. TAFE), or State recognition
authority recognises as equivalent to a qualification which Manufacturing Skills
Australia recognises for this level, which can include advanced standing through
recognition of prior learning and/or overseas qualifications; or
where competencies meet the requirements set out in the Manufacturing Skills
Australia competency standards in accordance with the National Metal and
Engineering Competency Standards Implementation Guide.
(ii) Work within the scope of this level means:
for an employee who does not hold a qualification listed as a minimum training
requirement, that the employee can apply skills within the enterprise selected in
accordance with the National Metal and Engineering Competency Standards
Implementation Guide, provided that the competencies selected are competency
https://www.fwc.gov.au/documents/documents/modern_awards/award/MA000010/ma000010-28.htm#P908_98522
https://www.fwc.gov.au/documents/documents/modern_awards/award/MA000010/ma000010-28.htm#P903_97599
http://www.mskills.com.au/
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standards recognised as relevant and appropriate by Manufacturing Skills
Australia and endorsed by the National Skills Standards Council; or
where an employee has a qualification, clause 24.3(b)(iii) applies.”
[27] Mr Jenkins gave evidence that the Certificate III in Engineering—Electrical/Electronic
Trade, known as MEM30405, applies to occupational titles including engineering
tradesperson - electrical/electronic, electrical fitter, electrical mechanic, electrical
fitter/mechanic, electrician, refrigeration mechanic and radio tradesperson. This Certificate
has always been recognised by MSA as equivalent to the relevant trades qualification in the
Electrotechnology Training Package UEE30811 Certificate III in Electrotechnology
Electrician (UEE30811). UEE30811 is therefore recognised as an equivalent qualification for
C10 Engineering Tradesperson (Electrical/Electronic) under the Award.
[28] To obtain an electrical licence, a person must:
hold a relevant qualification recognised by the relevant State regulator. There are
national consistency arrangements through the Electrical Regulatory Authorities
Council;
have at minimum period of relevant electrical wiring work experience (it is 12
months in NSW); and
pay the relevant fee to the State regulatory agency.19
[29] It is not suggested that the licence requirements have significantly changed in recent
years. A number of years ago, the Electrical Regulatory Authorities Council decided it would
no longer recognise MEM30405 as meeting the requirements for the electrical licence.
However, the Electrical Regulatory Authorities Council does recognise the relevant trades
qualification in UEE30811. Since the decision not to recognise MEM30405, Mr Jenkins gave
evidence that MSA initiated a project for which he was responsible to ensure that the MSA
qualifications met the requirements for the electrical licence.
[30] Mr Jenkins gave unchallenged evidence that:
“MSA developed the qualification MEM31215 - Certificate III in Engineering -
Industrial Electrician (Release 1) to meet the licensing requirements of electrical
regulators in Australia, for example capstone assessment and coverage of the Essential
Performance Capabilities.
MSA recognises both MEM31215 - Certificate III in Engineering – Industrial
Electrician (Release 1) (see above) and UEE30811 - Certificate III in
Electrotechnology Electrician (Release 4) (which is part of the Electrotechnology
Training Package) as ‘equivalent’ qualifications to MEM30405 - Certificate III in
Engineering - Electrical/Electronic Trade, which is listed in the Manufacturing Award
as the minimum training requirement for an Engineering/Manufacturing
Tradesperson—Level I, which is classified at the C10 level.”20
[31] The qualification MEM31215 - Certificate III in Engineering – Industrial Electrician
(MEM31215) has been recognised in Western Australia as meeting the requirements for the
electrical licence. However, it is not necessary to decide if that qualification will be
https://www.fwc.gov.au/documents/documents/modern_awards/award/MA000010/ma000010-28.htm#P908_98522
[2016] FWCFB 1294
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recognised in other States, as most electricians Australia-wide complete the UEE30811
qualification. This qualification is recognised as “or equivalent” and as meeting the
requirements for the C10 classification in the Award. As noted earlier, the CEPU does not
argue in this case that the qualification and work of an electrical tradesperson at C10 has a
higher and changed work value than when the relativities were reviewed in 1989.
[32] We are satisfied that the skills, qualifications and responsibilities associated with the
requirements for an electrical licence are recognised in the Award classifications at C10 to
C5. We accept the evidence of Mr Jenkins:21
“There are several areas of work where various forms of licences and regulatory tickets
are required for the performance of work. Examples are licences for electrical
mechanics, licences for forklift driving, licences for users and operators of high risk
equipment such as crane drivers, riggers, dogmen etc. In all cases the parties have
agreed that the gaining of the licence is to be included as part of the metal and
engineering competency standards as either a part of an existing unit of competency or
through insertion of a new unit of competency. The most recent example I am familiar
with was when licencing bodies introduced new licencing requirements for users and
operators of high risk equipment. This required a review by the parties of these
requirements. I recall this having occurred around 2012 and 2013. During this time I
was engaged by MSA as a consultant to implement any changes to the Metal and
Engineering Competency Standards that would be required as a result of these
negotiations between the parties. I attended meetings of Ai Group and AMWU
officials and recorded the agreements as to how particular licence requirements were to
be addressed in the competency standards.”
[33] The classification definitions when read in conjunction with the definitions of “or
equivalent” and “work within the scope of this level” clearly cover a range of responsibilities
in addition to the holding of the relevant qualification.
[34] To be classified at C10, it is necessary not just to hold the relevant qualification, but
also to be able to “exercise the skills and knowledge of the engineering trade so as to enable
the employee to perform work within the scope of this level”. The definition of work within
the scope of this level for a tradesperson refers to Clause 24.3(b)(iii) and this provides that the
employee will be “exercising or will be required to exercise the skills and knowledge gained
from that qualification necessary for that level of work”. As discussed earlier, the
qualification meets the requirements for the licence, except for the experience requirement.
There is nothing that prevents an experienced tradesperson being classified in the range C10
to C5, depending upon their competencies and qualifications. The definition at C10 also
includes a range of responsibilities including “exercises discretion within the scope of this
classification level” and “performs work under limited supervision either individually or in a
team environment”.
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[35] The CEPU referred to Section 2.9 of the Competency Standards Implementation
Guide, which provides:
“Whenever there are licensing and or statutory requirements covering certain work, any
legal obligation will need to be met by the employee and or the employer, in addition
to the competencies described in the competency standards.”
[36] The CEPU submitted that this meant that the licence requirement was an additional
requirement to that contemplated by the competency standards and the classification
requirements. We accept the evidence of Mr Tiller and Mr Jenkins that the relevant
competency standards specifically refer to the need to meet the licence requirements to
achieve the relevant competency standards. Competency standards are about the use of skills
and capacity to use skills. If the licence is a necessary requirement before a skill can be
exercised, then the holding of the licence needs to be a part of the competency standard
requirement. We are satisfied that the classification definitions and the competency standards
include the requirement to hold relevant licences.
[37] We are satisfied that the possession of the electrical licence issued by the appropriate
regulator is taken into account by the minimum training requirement and the other
requirements of the classification definitions for the classifications at C10 to C5. The
allowance claimed is therefore not for “responsibilities or skills that are not taken into account
in rates of pay”. There is no basis for the inclusion of the electrical licence allowance in the
Manufacturing Award.
[38] Similar considerations apply in respect to the Electrical Power Award. The base trade
classification, Technical Grade 3, is defined to cover “an employee who has Certificate III
qualifications and/or other structured training to enable the employee to perform a broader
range of duties which may include basic design work”. However, in the case of the Electrical
Power Award, it is not necessary to consider the classification structure in detail, as we are
satisfied that the CEPU have not established a sufficient case to change the earlier Full Bench
decision in making that award. The CEPU did not argue that there had been significant
changes affecting consideration of the licence allowance since the making of the modern
award. We adopt the approach in the preliminary Full Bench decision about the Review:
“However, where a significant change is proposed it must be supported by a submission
which addresses the relevant legislative provisions and be accompanied by probative
evidence properly directed to demonstrating the facts supporting the proposed
variation. In conducting the Review the Commission will also have regard to the
historical context applicable to each modern award and will take into account previous
decisions relevant to any contested issue. The particular context in which those
decisions were made will also need to be considered. Previous Full Bench decisions
should generally be followed, in the absence of cogent reasons for not doing so. The
Commission will proceed on the basis that prima facie the modern award being
reviewed achieved the modern awards objective at the time that it was made.”22
[39] We are satisfied that the proposal to introduce the allowance is a significant change.
The making of the Electrical Power Award involved a previous decision on this contested
issue. We proceed on the basis that modern awards objective was achieved in the decision not
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to include the allowance. We are not satisfied that the CEPU have established a cogent reason
for changing this position.
Conclusion
[40] We will not make the variations sought by the CEPU to include an electrical licence
allowance in the Electrical Power Award and the Manufacturing Award.
SENIOR DEPUTY PRESIDENT
Appearances:
G Noble for the Communications, Electrical, Electronic, Energy, Information, Postal,
Plumbing and Allied Services Union of Australia.
M Rizzo for the Australian Municipal, Administrative, Clerical and Services Union.
S Smith and G Vaccaro for The Australian Industry Group.
J O’Dwyer for Master Electricians Australia.
K Thomson, solicitor, for Australian Business Industrial, the New South Wales Business
Chamber and Business SA.
E Baxter, solicitor, for Ausgrid, Endeavour Energy and Essential Energy.
Hearing details:
Sydney.
2016.
February 9.
Printed by authority of the Commonwealth Government Printer
Price code C, MA000010 MA000088 PR577501
1 MA000088.
2 MA000010.
3 [2014] FWCFB 1788.
4 Ibid.
5 Ibid.
6 [2009] AIRCFB 826 [71].
7 MA000025.
OF THE FAIR WORK THE COMMISSION THE SEAL
[2016] FWCFB 1294
15
8 MA000020.
9 MA000011.
10 MA000051.
11 MA000053.
12 MA000062.
13 AN160193.
14 AP787983.
15 AN160206.
16 AN120192.
17 Fair Work Act 2009 s.139(g)(ii).
18 CEPU further submissions, 6 November 2015.
19 See, e.g. exhibit CEPU1 [5].
20 Exhibit AiG1 [24]-[25].
21 Ibid [20].
22 [2014] FWCFB 1788 [60].
