[2010] FWAFB 1983 |
FAIR WORK AUSTRALIA |
DECISION |
Workplace Relations Act 1996
s.576H—Commission may vary modern awards
Fair Work (Transitional Provisions and Consequential Amendments) Act 2009
Sch 5, Item 14—Variation of modern award
HAIR AND BEAUTY INDUSTRY AWARD 2010
[MA000005]
JUSTICE GIUDICE, PRESIDENT |
MELBOURNE, 15 MARCH 2010 |
[1] This decision concerns an application by Hair and Beauty Australia Limited (HBA) to vary the Hair and Beauty Industry Award 2010 1 (the modern award). The application was made on 30 December 2009 pursuant to s.576H of the Workplace Relations Act 1996 and was not determined by 31 December 2009. The application will be determined by Fair Work Australia pursuant to item 14 of Schedule 5 to the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009.2
[2] The application seeks to extend the trainee rates payable under the modern award to trainee hairdressers and to beauty therapy trainees completing their qualification through institutional-based learning. A second part of the application seeks a reduction in Sunday penalty rates.
[3] The application is opposed by the Shop, Distributive and Allied Employees Association (SDA). A brief submission was filed on behalf the Advanced Association of Beauty Therapists and the Employers Association of Beauty Therapists (New South Wales) opposing the first part of the application. The applicant cast doubt on the standing and position of the latter association in relation to the application.
Trainee and Graduate rates of pay
[4] For both hairdressing and beauty therapy, the primary method of obtaining trade qualifications is by way of serving an apprenticeship. In hairdressing, an alternative route of more concentrated full time study and on the job traineeships is also common. The full time alternative is also common in the beauty therapy area and appears to be growing in popularity. The beauty therapy courses are usually of less than 12 months duration.
[5] Clause 19.3 of the modern award currently has trainee and graduate rates for the hairdressing stream only. The hairdressing trainees are paid 55% and 75% of the Level 3 trades rate ($637.60 per week) depending on the number of training hours completed. The HBA submits that any beauty therapy trainees employed under the modern award must currently be paid the full rate of pay for a Level 2 beautician ($615.00 per week) and that the National Training Wage schedule does not apply.
[6] Under clause 19.3 graduate hairdressers are paid 92.5% of the trades rate for the first 12 months. The National Training Wage schedule does not apply to graduates because the employees will have completed their qualification from full time study when employed as a graduate.
[7] The HBA submits that the modern award should contain consistent terms for trainees and graduates for the two trade classifications covered. It contends that as both trades can be completed through institutional-based learning, clause 19.3 should be amended to cover hairdresser trainees and graduates and beauty therapist trainees and graduates. The HBA submits that the higher rate of pay currently payable to beauty therapy trainees will serve as a disincentive to employers engaging them in the future.
[8] The SDA submits that the hairdressing and beauty therapy industries are separate and distinct with little overlap in the skills exercised in each industry. It submits that a beauty therapy graduate has all the skills required when they complete their traineeship whereas a hairdressing graduate who has completed a traineeship does not. The SDA submits that a hairdressing traineeship graduate requires salon experience in order to effectively deal with all aspects of the job.
[9] In the proceedings a question arose as to the practical application of, and interaction with, junior rates of pay. The SDA submitted that when the junior percentages are applied to the unqualified trainee beautician rate the amount payable is comparable to the payment received by hairdressing traineeship graduates. The HBA submitted that trainees are not commonly juniors and therefore the interaction is not of real relevance.
[10] A question also arises with respect to the National Training Wage Schedule. The HBA does not consider that it applies because there would commonly be no formal traineeship entered into. The SDA contends that the schedule does apply.
[11] The approach of the Australian Industrial Relations Commission in award modernisation was to weigh the various award modernisation objectives and pay particular regard to the terms of awards which were to be replaced by a modern award. Because beauty therapy traineeships have not been widespread, they have not been specifically recognised in previous awards. In some jurisdictions such as the New South Wales Hairdressers’, &c (State) Award, 3 a traineeship rate was included. In other jurisdictions there was no specific rate so the minimum rate of pay applied.
[12] In our view the growing incidence of traineeships arising from institution based training and the desirability of encouraging the employment of trainees are important factors. However it is also important that trainees and graduates are employed on fair minimum wages.
[13] In our view the National Training Wage schedule to the modern award can and should apply to beauty therapy trainees who are undertaking Certificate II, III or IV courses. The contention that underpins this application, that a full adult Level 2 rate is payable, therefore appears to be incorrect. Providing for differences between the hairdressing and beauty therapy streams with respect to trainees is perhaps undesirable. However this is not the only difference as apprenticeship rates are also different. Given the application of the National Training Wage schedule to beauty therapy trainees we will not make the variation sought. If the provisions are considered to operate unfairly they can be reconsidered during the 2 year review of the award.
[14] Different considerations arise with respect to beauty therapy graduates. It is usually the case that a person who has a relevant qualification receives the rate of pay for that qualification. In this award however the hairdressing graduate rate of 92.5% appears to recognise that full trades competency comes from on the job training in addition to completion of full time study.
[15] Beauty therapy certificates III and IV can be completed in 6 and 9 months respectively. We consider that the on the job training requirement which applies to hairdressing graduates should also apply to beauty therapy graduates before they become entitled to the trades rate or the higher beauty therapist Level 4 rate. We will therefore vary the award to provide that the graduate rate for hairdressers will also apply to beauty therapy graduates for the first 12 months after completing their qualification.
Sunday penalty rates
[16] The HBA submits that prior to the modern award coming into effect, the Sunday penalty rates were either 50% or 100% in different States across Australia. It submits that the penalty payable under the modern award will lead to increased costs for employers who are required by the terms of their lease within shopping complexes to open salons on Sundays. Those that previously paid a 50% penalty for work performed on Sunday will have an additional cost impost which will not enable them to operate profitably.
[17] The SDA submits that in most States a penalty rate of 100% for Sunday work was payable. It submits that the only State in which a 100% penalty rate was not payable was New South Wales.
[18] The adoption of a single national penalty payment for Sundays will inevitably have an impact on cost or employee entitlements where employees are paid near the modern award level and the variation between state instruments is significant. It would be inconsistent with the general approach in award modernisation to adopt a rate lower than the rate that previously applied in most states. We therefore dismiss this part of the application. The transitional provisions have been developed to ameliorate the impact of such changes on employers.
PRESIDENT
Appearances:
Mr G Christodoulou for Hair and Beauty Australia Limited
Ms S Burnley for the Shop, Distributive and Allied Employees Association
Hearing details:
2010.
Melbourne
28 January
Sydney
18 February
1 MA000005.
2 Schedule 5 was modified by the Fair Work Legislation Amendment Regulations 2009 (No.2) on 14 December 2009.
3 AN120242.
<Price code A, MA000005 PR994846 >