[2013] FWCFB 9295 |
FAIR WORK COMMISSION |
DECISION |
Fair Work (Transitional Provisions and Consequential Amendments) Act 2009
Item 6, Sch. 5—Modern awards review
JUSTICE BOULTON, SENIOR DEPUTY PRESIDENT |
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:
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 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 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 (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%.
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 apprentices 9 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 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 progress 12 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:
“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 provisions 16 and matters relating to part-time trainees which are the subject of consideration in conferences before Commissioner Roe.
SENIOR DEPUTY PRESIDENT
2 Ibid at [4].
4 See statement of Commissioner Roe, 17 October 2013.
5 [2013] FWCFB 5411 at [295] and [302].
6 Se e.g. the Metal, Engineering and Associated Industries Award 1998 and the Bulk Terminals Award - State 2003.
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.
9 See e.g. subclause 15.15 dealing with reimbursement of fees.
10 [2013]FWCFB 5411 especially at [303]-[362].
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].
14 Ibid at [476].
15 Ibid at [477].
16 See [2013] FWCFB 8301 at [4], sub-para (d) and [5], sub-para (c).
Printed by authority of the Commonwealth Government Printer
<Price code C, PR545016>