[2017] FWCFB 3176 |
FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.156 - 4 yearly review of modern awards
JUSTICE ROSS, PRESIDENT |
|
National Training Wage Schedule – reference term – next steps.
Background
[1] In a Statement issued on 6 July 2016 (the July Statement) 1 the Commission proposed to standardise the National Training Wage Schedule (NTW Schedule); to remove the NTW Schedule from all modern awards except the Miscellaneous Award 2010, and to incorporate the NTW Schedule into other awards by reference to the Miscellaneous Award 2010. An example of a reference term was included in the July Statement (see [5]5 below). Interested parties were invited to make submissions.
[2] The Australian Industry Group (Ai Group) and the National Farmers’ Federation (NFF) did not oppose removal of the NTW Schedule from all awards except the Miscellaneous Award 2010. The Australian Manufacturing Workers Union (AMWU) and Construction, Forestry, Mining and Energy Union – Construction and General Division (CFMEU) proposed that the NTW Schedule identified nine awards which, they submitted, required award-specific NTW Schedules. 2
[3] In a Statement 3 of 23 February 2017 (the February Statement) we expressed the provisional view that where parties requested that the NTW Schedule be tailored to a particular modern award, this would occur. Applications were then made by the AMWU and the CFMEU to maintain award-specific schedules in a number of awards. We confirm that award-specific schedules will be maintained in the following nine modern awards:
[4] This Decision deals with the reference term to be inserted into all modern awards that currently contain a NTW Schedule other than the nine awards subject of applications to retain award-specific NTW Schedules. It also sets out the next steps for finalising the terms of the plain language NTW Schedule for the Miscellaneous Award 2010 and the form of award-specific NTW Schedules to be inserted into the nine awards set out above.
Reference term to be inserted into majority of awards
[5] In the July and February Statements, we provided an example of the manner in which the NTW Schedule would be incorporated through reference to the Miscellaneous Award 2010 as follows:
“X. National training wage
X.1 Schedule E to the Miscellaneous Award 2010 sets out minimum wage rates and conditions for employees undertaking traineeships.
X.2 This award incorporates the terms of Schedule E to the Miscellaneous Award 2010 as at 1 July 2017.”
[6] Comments were invited on the form of the proposed incorporation by reference term. Submissions were received from the Ai Group, the NFF, the CFMEU and the AMWU.
[7] The NFF did not oppose the proposed reference term as outlined in the Statement. 5 The CFMEU did not support the proposal in all awards,6 however, it was not opposed to using standard terms in awards where appropriate.7 The CFMEU noted that a number of provisions in the plain language re-draft refer to “this award” including A.2.1, A.2.4, A.5.1 and A.5.4. The CFMEU submitted that additional provision would need to be inserted that provides as follows (or similar):
“Provided that any reference to “this award” in Schedule X to the Miscellaneous Award is to be read as referring to the (award title) and not the Miscellaneous award”. 8
[8] The AMWU generally supported the comments made by the CFMEU. 9
[9] The Ai Group submitted that:
‘In order to maintain the current application and operation of the NTWS in all relevant awards, attention will need to be given to both the terms of the NTWS in the Miscellaneous Award 2010 and to the terms of the clauses which incorporate the NTWS by reference, to ensure that there are no interaction problems.
For example, it needs to be clear that where a clause in the NTWS in the Miscellaneous Award 2010 refers to provisions in the body of the Miscellaneous Award 2010 (e.g. the coverage provisions referred to in clause A.2.1 of the redraft), that the intent when the NTWS is incorporated by reference into another award, is to refer to the relevant clause in the other award and not the clause in the Miscellaneous Award 2010.’ 10
[10] We agree with and adopt the proposal and make the following amendment to the reference term:
“X. National training wage
X.1 Schedule E to the Miscellaneous Award 2010 sets out minimum wage rates and conditions for employees undertaking traineeships.
X.2 This award incorporates the terms of Schedule E to the Miscellaneous Award 2010 as at 1 July 2017. Provided that any reference to “this award” in Schedule X to the Miscellaneous Award 2010 is to be read as referring to the [award title] and not the Miscellaneous Award 2010.”
[11] Draft determinations incorporating the amended reference term above and deleting the NTW Schedule from the awards listed in Attachment A will be published on the Commission’s website for comment by interested parties.
Next steps
[12] Interested parties are invited to make submissions on draft determinations incorporating the proposed reference term. Submissions should be sent to [email protected] by 4.00 pm on Thursday 15 June 2017.
[13] If no submissions are received final determinations will be issued on 19 June 2017.
[14] Finalisation of the terms of the plain language NTW Schedule to be inserted into the Miscellaneous Award 2010 will be dealt with in July 2017. Interested parties will have an opportunity to comment on any proposed plain language amendments to the NTW Schedule.
[15] The terms of award-specific NTW Schedules to be inserted into the nine modern awards set out at [3] above will be dealt with after finalisation of the plain language NTW Schedule in the Miscellaneous Award 2010.
PRESIDENT
Attachment A—Awards containing NTW Schedule
This table lists all modern awards that include a NTW Schedule.
Code |
Award title |
NTW |
Schedule to be deleted |
Aboriginal Community Controlled Health Services Award 2010 |
✔ |
D | |
Aged Care Award 2010 |
✔ |
D | |
Airline Operations—Ground Staff Award 2010 |
award-specific see [3] | ||
Airport Employees Award 2010 |
award-specific see [3] | ||
Alpine Resorts Award 2010 |
✔ |
D | |
Aluminium Industry Award 2010 |
✔ |
D | |
Amusement, Events and Recreation Award 2010 |
✔ |
D | |
Animal Care and Veterinary Services Award 2010 |
✔ |
D | |
Aquaculture Industry Award 2010 |
✔ |
E | |
Asphalt Industry Award 2010 |
✔ |
D | |
Banking, Finance and Insurance Award 2010 |
✔ |
E | |
Black Coal Mining Industry Award 2010 |
✔ |
D | |
Broadcasting and Recorded Entertainment Award 2010 |
✔ |
J | |
Building and Construction General On-site Award 2010 |
award-specific see [3] | ||
Business Equipment Award 2010 |
✔ |
E | |
Car Parking Award 2010 |
✔ |
D | |
Cement and Lime Award 2010 |
✔ |
E | |
Cemetery Industry Award 2010 |
✔ |
D | |
Children’s Services Award 2010 |
✔ |
D | |
Cleaning Services Award 2010 |
✔ |
E | |
Clerks—Private Sector Award 2010 |
✔ |
D | |
Commercial Sales Award 2010 |
✔ |
C | |
Concrete Products Award 2010 |
✔ |
C | |
Contract Call Centre Award 2010 |
✔ |
C | |
Corrections and Detention (Private Sector) Award 2010 |
✔ |
E | |
Cotton Ginning Award 2010 |
✔ |
C | |
Dredging Industry Award 2010 |
✔ |
A | |
Dry Cleaning and Laundry Industry Award 2010 |
✔ |
F | |
Educational Services (Post-Secondary Education) Award 2010 |
✔ |
F | |
Educational Services (Schools) General Staff Award 2010 |
✔ |
D | |
Electrical Power Industry Award 2010 |
✔ |
D | |
Electrical, Electronic and Communications Contracting Award 2010 |
✔ |
D | |
Fast Food Industry Award 2010 |
✔ |
D | |
Fitness Industry Award 2010 |
✔ |
D | |
Food, Beverage and Tobacco Manufacturing Award 2010 |
award-specific see [3] | ||
Funeral Industry Award 2010 |
✔ |
D | |
Gardening and Landscaping Services Award 2010 |
✔ |
E | |
Gas Industry Award 2010 |
✔ |
E | |
General Retail Industry Award 2010 |
✔ |
D | |
Graphic Arts, Printing and Publishing Award 2010 |
✔ |
E | |
Hair and Beauty Industry Award 2010 |
✔ |
D | |
Health Professionals and Support Services Award 2010 |
✔ |
E | |
Higher Education Industry—General Staff—Award 2010 |
✔ |
E | |
Horse and Greyhound Training Award 2010 |
✔ |
C | |
Horticulture Award 2010 |
✔ |
D | |
Hospitality Industry (General) Award 2010 |
✔ |
F | |
Hydrocarbons Field Geologists Award 2010 |
✔ |
C | |
Hydrocarbons Industry (Upstream) Award 2010 |
✔ |
E | |
Joinery and Building Trades Award 2010 |
award-specific see [3] | ||
Labour Market Assistance Industry Award 2010 |
✔ |
D | |
Legal Services Award 2010 |
✔ |
D | |
Live Performance Award 2010 |
✔ |
E | |
Local Government Industry Award 2010 |
✔ |
E | |
Manufacturing and Associated Industries and Occupations Award 2010 |
award-specific see [3] | ||
Marine Tourism and Charter Vessels Award 2010 |
✔ |
D | |
Maritime Offshore Oil and Gas Award 2010 |
✔ |
B | |
Meat Industry Award 2010 |
✔ |
C | |
Mining Industry Award 2010 |
✔ |
D | |
Miscellaneous Award 2010 |
NTW retained | ||
Mobile Crane Hiring Award 2010 |
award-specific see [3] | ||
Nursery Award 2010 |
✔ |
C | |
Oil Refining and Manufacturing Award 2010 |
✔ |
E | |
Passenger Vehicle Transportation Award 2010 |
✔ |
D | |
Pastoral Award 2010 |
✔ |
C | |
Pest Control Industry Award 2010 |
✔ |
D | |
Pharmaceutical Industry Award 2010 |
✔ |
C | |
Pharmacy Industry Award 2010 |
✔ |
D | |
Plumbing and Fire Sprinklers Contracting Award 2010 |
✔ |
D | |
Port Authorities Award 2010 |
✔ |
E | |
Poultry Processing Award 2010 |
✔ |
C | |
Premixed Concrete Award 2010 |
✔ |
D | |
Professional Diving Industry (Recreational) Award 2010 |
✔ |
B | |
Quarrying Award 2010 |
✔ |
E | |
Racing Clubs Events Award 2010 |
✔ |
D | |
Racing Industry Ground Maintenance Award 2010 |
✔ |
D | |
Rail Industry Award 2010 |
✔ |
D | |
Real Estate Industry Award 2010 |
✔ |
D | |
Registered and Licensed Clubs Award 2010 |
✔ |
E | |
Restaurant Industry Award 2010 |
✔ |
D | |
Road Transport (Long Distance Operations) Award 2010 |
✔ |
B | |
Road Transport and Distribution Award 2010 |
✔ |
D | |
Salt Industry Award 2010 |
✔ |
D | |
Seafood Processing Award 2010 |
✔ |
C | |
Seagoing Industry Award 2010 |
✔ |
B | |
Security Services Industry Award 2010 |
✔ |
D | |
Silviculture Award 2010 |
✔ |
C | |
Social, Community, Home Care and Disability Services Industry Award 2010 |
✔ |
G | |
Sporting Organisations Award 2010 |
✔ |
D | |
State Government Agencies Administration Award 2010 |
✔ |
D | |
Stevedoring Industry Award 2010 |
✔ |
E | |
Storage Services and Wholesale Award 2010 |
✔ |
C | |
Sugar Industry Award 2010 |
award-specific see [3] | ||
Supported Employment Services Award 2010 |
✔ |
C | |
Surveying Award 2010 |
|||
Telecommunications Services Award 2010 |
✔ |
E | |
Textile, Clothing, Footwear and Associated Industries Award 2010 |
✔ |
E | |
Timber Industry Award 2010 |
✔ |
G | |
Transport (Cash in Transit) Award 2010 |
✔ |
B | |
Travelling Shows Award 2010 |
✔ |
C | |
Vehicle Manufacturing, Repair, Services and Retail Award 2010 |
✔ |
E | |
Waste Management Award 2010 |
✔ |
D | |
Water Industry Award 2010 |
✔ |
E | |
Wine Industry Award 2010 |
✔ |
D | |
Wool Storage, Sampling and Testing Award 2010 |
✔ |
D |
2 Airline Operations—Ground Staff Award 2010; Airport Employees Award 2010; Building and Construction General On-site Award 2010; Food, Beverage and Tobacco Manufacturing Award 2010; Joinery and Building Trades Award 2010; Manufacturing and Associated Industries and Occupations Award 2010; Mobile Crane Hiring Award 2010; Sugar Industry Award 2010; and Surveying Award 2010.
3 Statement, 23 February 2017.
4 Note: The Surveying Award 2010 does not currently contain the NTW Schedule.
5 Submission, 29 July 2016 paragraph 10.
6 Submission, 28 July 2016, paragraph 18.
7 Ibid at paragraph 5.
8 Submission, 24 March 2013, paragraph 51.
9 Submission, 29 July 2016, paragraph 2.
10 Submission, 24 March 2017, paragraph 5 and 6.
11 Note: The Surveying Award 2010 does not currently contain the NTW Schedule.
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