[2017] FWCFB 4174

The attached document replaces the document previously issued with the above code on 15 August 2017.

The cross reference to [60] in paragraph [67] has been deleted and replaced with [65].

Ingrid Summers
On behalf of the Associate to Justice Ross

Dated 16 August 2017

Fair Work Act 2009
s.156 - 4 yearly review of modern awards

4 yearly review of modern awards – National Training Wage Schedule – Miscellaneous Award – plain language re-draft.

Background

[1] In a Statement of 6 July 2016 (the July 2016 Statement) it was proposed that the National Training Wage Schedule (the NTW Schedule) be standardised and removed from all awards except the Miscellaneous Award 2010, and that the NTW Schedule be incorporated into other awards by reference to the Miscellaneous Award 2010.

[2] In a decision 1 issued on 9 June 2017 (the June 2017 decision) a reference term was inserted into the 94 modern awards specified in Attachment A of that decision. Draft Determinations giving effect to that decision were published on the Commission’s website on 13 June 2017 and interested parties were invited to comment. The Draft Determinations removed the NTW Schedule from the specified awards and incorporated the NTW Schedule by reference to the Miscellaneous Award 2010. Final determinations were issued and the change came into operation on 1 July 2017.

[3] In a Statement 2 issued on 23 February 2017 (the February 2017 Statement) the Full Bench announced that the NTW Schedule of the Miscellaneous Award 2010 would be re-drafted in plain language and a plain language draft of the NTW Schedule was published the same day. Interested parties were invited to make submissions on the draft. This Decision deals with the finalisation of the terms of the plain language NTW Schedule as part of the 4 yearly review of modern awards (the Review).

[4] In response to the February 2017 Statement, submissions were received from Australian Industry Group (Ai Group), the Australian Manufacturing Workers’ Union (AMWU), the Construction, Forestry, Mining and Energy Union – Construction and General Division (CFMEU), the Motor Trade Association of South Australia (MTA (SA)), Master Builders Australia (MBA) and the Housing Industry Association (HIA).

[5] A draft summary of submissions was published on the Commission’s website on 20 April 2017. Interested parties were invited to review the draft summary to ensure their submissions were accurately characterised. No comments or submissions were received.

[6] The draft summary of submissions was sorted into outstanding and agreed issues, with the outstanding contested issues appearing at items 1 to 9. Agreed issues appear at items 10 to 24.

[7] A conference was held on Friday 21 July 2017 to discuss the outstanding issues with the NTW Schedule in the Miscellaneous Award 2010. The transcript of the conference is available on the Commission’s website. The parties in attendance at the conference confirmed the accuracy of the summary of submissions.

[8] As to the matters remaining in contention (items 1to 9) the outcome of the conference was as follows:

Item 1: no longer pressed by Ai Group

Item 2: Ai Group to clarify its position, in writing, by 4.00 pm Friday 28 July 2017

Item 3: unresolved, to be determined on the papers

Item 4: unresolved, to be determined on the papers

Item 5: unresolved, to be determined on the papers

Item 6: Ai Group drew attention to the judgment of Katzmann J in CEPU v Excelior Pty Ltd [2013] FCA 638 (28 June 2013)

Item 7: the proposal by MTA (SA) is opposed by both Ai Group and the AMWU on the basis that it would effect a change to existing entitlements. Unresolved, to be determined on the papers.

Item 8: Ai Group to contact MTA (SA) to ascertain whether this item and item 7 is pressed or not, and to advise the Commission ([email protected])

Item 9: unresolved, to be determined on the papers

[9] Following the conference a Statement 3 was issued on 24 July 2017 (the July 2017 Statement), requesting the Ai Group to confirm its position with respect to item 2 and to contact the MTA (SA) to ascertain if they wish to press items 7 and 8, and to advise the Commission of their intent.

[10] The MTA (SA) outlined in correspondence dated 28 July 2017 that they wish to press items 7 and 8 and rely on their earlier submissions (filed on 24 March 2017). The MTA then filed a further submission on 1 August 2017 setting out their submissions in relation to item 7 and item 8. The Ai Group wrote to the Commission on 31 July 2017 stating that they do not press their submission in relation to item 2.

[11] In the July 2017 Statement, parties were put on notice that any unresolved issues would be determined on the basis of the submissions filed and if any party wished to file further submissions or wanted an oral hearing they should contact the Commission. No further submissions or requests for an oral hearing were received.

[12] We now deal briefly with the agreed matters relating to the NTW Schedule, before turning to determine the outstanding contested issues.

Agreed issues

[13] In the summary of submissions document, the agreed issues appear at items 10 to 24. These agreed matters were incorporated into the NTW Schedule that appeared at Attachment B to a Statement issued on 21 June 2017 4. We briefly deal with each agreed matter below.

A.1.1 – Definitions of Industry Skills Council and National Quality Council

[14] Items 10 and 11 of the summary document relate to submissions made by the AMWU regarding clause A.1.1 – Definitions. In relation to Item 10, parties agreed that the ‘traineeship’ definition needed to be updated by deleting the terms ‘Industry Skills Council’ and ‘National Quality Council’ and replacing them with ‘Skills Service Organisation’ and ‘Australian Industry and Skills Committee.’ We agree and this change will be made to the NTW Schedule.

A.1.1 – Definition of ‘relevant Ministers’

[15] In relation to Item 11, the definition of ‘relevant Ministers’ has been retained to reflect reference to this definition within the NTW Schedule.

A.3.2(b) – Part-time traineeships

[16] The types of traineeship clause for part-time employees is currently worded as follows:

“E.4.2 a part-time traineeship based on less than 38 ordinary hours per week, with 20% of ordinary hours being approved training solely on-the-job or partly on-the-job and partly off-the-job, or where training is fully off-the-job.

[17] The equivalent plain language clause is as follows:

“(b) a part-time traineeship based on fewer than 38 ordinary hours per week, with 20% of those hours being approved training.”

[18] The Ai Group submit that the words “solely on-the-job or partly on-the-job” should be re-inserted. 5 The Ai Group is of the view that these words aid in understanding the basis upon which a part-time traineeship may be undertaken. The MBA and the AMWU support the submission of the Ai Group.

[19] We agree that the omitted words should be reinserted as they assist in understanding the basis upon which part time traineeships are undertaken. We have decided to amend the clause as follows:

‘A.3.2 A part-time traineeship based on fewer than 38 ordinary hours per week, with 20% of those hours being approved training provided:

(a) wholly on the job; or

(b) partly on the job and partly off the job; or

(c) wholly off the job.’

A.4 – Minimum Rates

[20] Items 13, 14, 15, 16, 17, 19, 20, 21 and 22 of the summary document all relate to a submission by the Ai Group that a number of subclauses in clause A.4.1 should be amended to clarify that the clauses operate subject to clause A.4.3 6. The affected clauses are A.4.1(a), A.4.1(b), A.4.1(c) and A.4.1(d)(i) and (ii).

[21] The Ai Group made a further submission that a number of subclauses in A.4.2 should be amended to clarify that the clauses operate subject to clauses A.4.3 and A.4.2(f). The affected clauses are A.4.2(a), A.4.2(b) and A.4.2(c).

[22] The AMWU supports the Ai Group submissions. 7

[23] We propose to deal with the Ai Group submission by inclusion of the following notes:

‘NOTE: See clause A.4.3 for other minimum wage provisions that affect this paragraph.

NOTE: See paragraph (f) for calculating the actual minimum wage. See also clause A.4.3 for other minimum wage provisions that affect this paragraph.’

[24] Item 18 of the summary document relates to a submission made by the MTA (SA) that the title of clause A.4.2 should be amended to read ‘Minimum hourly rates for part-time traineeships’ rather than the current wording of ‘minimum wages for part-time traineeships.’ We agree. We prefer the use of the word ‘rate’. The title of clause A.4.2 will be amended. The word ‘wages’ has also been amended to ‘rates’ in a number of other clauses of the NTW Schedule for consistency.

[25] Item 23 of the summary document relates to a submission made by the MTA (SA) that the words ‘hourly minimum rate’ in clause A.4.2(f)(i) be amended to read ‘minimum hourly rate’. We agree and this change will be made.

[26] Item 24 of the summary document refers to an incorrect clause reference appearing in the note under clause A.5.3. The cross reference has been amended from clause 0 to clause A.5.3. for the reasons set out at [57] this note has been removed.

[27] We now turn to deal with the outstanding contested issues which appear at items 3 to 9 of the summary of submissions document.

Outstanding contested issues

Item 3 – A.2.1 – Coverage

[28] The Ai Group submit that clause A.2.1 should be amended as follows (see item 3 of the summary document):

“A.2.1 Subject to clauses A.2.2 to A.2.5, this schedule applies to in respect of an employee covered by this award who is undertaking a traineeship and whose training package and AQF certificate level are allocated to a wage level by clause A.6 or by clause A.4.4.”

[29] The Ai Group submit that the NTW Schedule creates entitlements for employees and obligations on employers in relation to those employees. It says that it is not appropriate that the application of the schedule be limited to employees only.

[30] We do not propose to make the change proposed. It seems to us that the expression ‘applies to an employee covered by this award is clearer and easier to understand than the expression proposed by Ai Group. Further, we do not agree with the proposition that the NTW Schedule does not impose obligations on employers. The NTW Schedule sets out employee entitlements. It is implicit that such entitlements impose consequent obligations on employers.

Item 4 – A.4 – Minimum rates

[31] The MBA has made a submission (see item 4 of the summary document) to delete, from the end of a number of clauses, the words ‘and the experience level of the trainee specified in column 1’. 8 The clauses subject to the MBA submission are A.4.1(a), A.4.1(b), A.4.1 (c), A.4.1(d)(ii), A.4.2(a), A.4.2(b) and A.4.2 (c).

[32] The MBA submit that these words should be deleted as they have no relevance to the operation of time-based progression provisions contained within the Miscellaneous Award NTW Schedule. No other party supported the position advanced by the MBA.

[33] The CFMEU opposes the deletion of these words on the basis that they clearly relate to the title of Column 1 of the tables in the relevant clauses and have nothing to do with competency-based progression. 9 The AMWU also opposes the MBA submission, on the ground that the reference to the ‘experience level of the trainee’ is not a reference to the competency of the trainee but to the ascribed experience accruing over time after leaving school.10

[34] We are not persuaded to make the change proposed by the MBA. The reference to ‘the experience level of the trainee’ is plainly not related to competency based progression and simply refers to experience acquitted after leaving school by reference to the number of years since the trainee left school.

Item 5 – Clause A.5.1 – Employment conditions

[35] Clause A.5 of the NTW Schedule is as follows:

‘A.5 Employment conditions

A.5.1 A trainee undertaking a school-based traineeship may agree to be paid an additional loading of 25% on all ordinary hours worked instead of being paid annual leave, paid personal/carer’s leave, paid compassionate leave and paid absence on public holidays. However, if the trainee works on a public holiday, the public holiday provisions of this award apply.

A.5.2 A trainee is entitled to be released from work without loss of pay and without loss of continuity of employment to attend any training and assessment specified in, or associated with, the training contract.

A.5.3 Time spent by a trainee, other than a trainee undertaking a school-based traineeship, in attending any training and assessment specified in, or associated with, the training contract is to be regarded as time worked for the employer for the purposes of calculating the trainee’s wages and determining the trainee’s employment conditions.

NOTE: The time to be included for the purpose of calculating the wages for part-time trainees whose approved training is fully off-the-job is determined by clause A.4.2(f)(ii) and not by this clause.

A.5.4 Subject to clause A.2.4, this award applies to a trainee in the same way that it applies to an employee who is not a trainee except as otherwise expressly provided by this schedule.’ (emphasis added)

[36] The Ai Group submit that the word “being” should be deleted from A.5.1. The Ai Group submit that the words are unnecessary and may cause confusion. The Ai Group submit:

‘It is not the case that where a school-based trainee is paid an additional 25% loading, he/she is entitled to (for instance) a form of leave called “annual leave” without pay. “Paid annual leave” is a specific reference to the entitlement that arises under s.87 of the Act. Where the 25% loading is paid, the employee is does not accrue and therefore cannot take that form of leave. Nor can they take paid personal/carer’s leave or paid compassionate leave.’ 11

[37] The AMWU oppose the Ai Group’s submission on the basis that if trainees are not specifically excluded from an award provision, for example annual leave without pay, then they are entitled to access the entitlement. 12 The AMWU submit that the current drafting should remain.

[38] We do not propose to amend clause A.5.1 in the manner suggested by the Ai Group. Contrary to the Ai Group’s submission the expression ‘instead of being paid annual leave’ does not, of itself, give rise to any entitlement to unpaid annual leave. Any entitlement to unpaid annual leave in such circumstances will depend on the terms of the relevant award.

Item 6 – Clause A.5.2 – Employment conditions

[39] The Ai Group seeks to amend clause A.5.2 as follows:

‘A trainee is entitled to be released from work without loss of pay and without loss of continuity of employment and to payment of the appropriate wages to attend any training and assessment specified in, or associated with, the training contract.’

[40] The Ai Group submit that the words without loss of pay may be interpreted to require the payment of any amount that would have been payable to the employee had they instead been working. Many award clauses presently adopt this phrase and are interpreted to have that effect.

[41] The Ai Group rely on a Federal Court Decision 13 (CEPU v Excelior Pty Ltd [2013] FCA 638; ‘Excelior’). The question before the Court was whether the employer was obliged by the terms of the Telecommunications Services Award 2010 (the TS Award) to pay for the cost of travel and related expenses incurred by an employee where the purpose of the travel was to attend training and the training was a requirement of the job. The employee was employed as a trainee technician engaged in a telecommunications traineeship. Clause 17.1(e) of the TS Award provided:

Transfers, travelling and working away from usual place of work
(i) Distant work/travelling time payment

• All reasonable out-of-pocket expenses incurred in connection with the employer’s business authorised by the employer and properly paid by the employee will be reimbursed by the employer.


• Except as provided elsewhere in this award, an employee directed by the employer to travel in the employee’s own time to transact company business will be paid travelling time and all expenses incurred while travelling in accordance with clause 17.1(e)(ii). Further, an employee sent by their employer from their usual locality to another and required to remain away from their usual residence will be paid expenses while so absent from their usual locality.


• An employee is not entitled to be paid for travelling in the employee’s accustomed workplace or territory. In circumstances where an employee is required to work away from the accustomed workplace or territory and travels in the employee’s own time to reach such place, the employee will be entitled to be paid for the time reasonably spent in travelling to such place in excess of that which would be spent travelling from home to the accustomed workplace or boundary of the accustomed territory.

[42] The NTW Schedule was set out at Schedule E of the TS Award. Clause E.6 dealt with employment conditions for trainees and provided, relevantly,:

Employment conditions

...

E.6.2 A trainee is entitled to be released from work without loss of continuity of employment and to payment of the appropriate wages to attend any training and assessment specified in, or associated with, the training contract.

E.6.3 Time spent by a trainee, other than a trainee undertaking a school-based traineeship, in attending any training and assessment specified in, or associated with, the training contract is to be regarded as time worked for the employer for the purposes of calculating the trainee’s wages and determining the trainee’s employment conditions.

E.6.4 Subject to clause E.3.5 of this schedule, all other terms and conditions of this award apply to a trainee unless specifically varied by this schedule.

[43] The Ai Group rely on the following observations in Excelior regarding clause E.6.2:

‘66. Clause E.6.2 requires payment of the appropriate wages to attend training. Courts have sometimes taken a broad view of the meaning of wages. The CEPU referred to the discussion of the case law in the maritime context in my judgment in Visscher v Teekay Shipping (Australia) Pty Ltd (No 4) (2012) 297 ALR 674; [2012] FCA 1247 (“Vischer”) at [81]. Indeed, in one case meal allowances were held to be “wages”: The Tergeste [1903] P 26. In United States Trust Company of New York v Master and Crew of Ship “Ionian Mariner” (1997) 77 FCR 563 Black CJ pointed out (at 582) that “[m]any emoluments and other advantages to which a member of a crew has become entitled have been regarded as wages for the purpose of a maritime lien” and that a “broad view of ‘wages’ will readily accommodate emoluments that can be seen as surrounding the core concept of money paid as a recompense for work done under a contract of employment”. But the context in which these decisions were made is quite different. Even if these cases were relevant to the interpretation of the TS award, which is doubtful to say the least, none of them recognises a travel allowance as a wage. “Wages” is not defined in the TS award and there is no definition in the Fair Work Act. The CEPU did not in fact contend that “wages” was wide enough to include travelling allowances. In my opinion, “wages” in cl E.6.2 has its ordinary meaning of a payment for services rendered. See Visscher at [73], [75] where the relevant dictionary definitions appear. “Wages” would readily encompass overtime and penalty rates (and probably also annual leave) as they are paid for services rendered. But a travel allowance is not. The Navigation Act 1912 (Cth), with which Visscher was concerned, defined “wages” as “includes emoluments”, probably reflecting the position historically taken in maritime law. There is nothing in the TS award that implies that “wages” was intended to include emoluments. Indeed, the distinction between wages and conditions in cl E.6.3 might suggest otherwise.’ 14

[44] The Ai Group submit that the above extract supports its proposition that ‘wages’ in clause E.6.2 does not incorporate all amounts that might otherwise have been payable under the award to the trainee. Rather, it requires the payment of amounts due for ‘services rendered’. 15

[45] The AMWU supports the proposed drafting of clause A.5.2 and does not agree with the proposition that the current term excludes, for example, travelling allowances.

[46] Whether trainees are entitled to travelling allowances depends on the context and entitlements contained in a specific modern award. The term ‘at the appropriate wage’ is the current expression and also one identified in the apprentice provisions of modern awards. The terms ‘without loss of pay’ or ‘appropriate wage’ depends on the context of the award. 16

[47] Contrary to the Ai Group’s submission Excelior does not stand for the general proposition that clause E.6 is necessarily limited to amounts that might otherwise have been payment for ‘services rendered’. As Katzmann J observed at [63] – [65]:

‘In its terms cl E.6.3 provides that time spent by a trainee in attending training is to be regarded as time worked for the purposes of calculating the trainee’s wages and determining the trainee’s employment conditions. It does not provide that attending training is to be regarded as attending work. While some employment conditions may be regarded as “wages” (see the discussion below), I am satisfied that the purpose of this clause is to ensure that time spent in training counts towards both the calculation of ordinary wages and the determination of those employment conditions which depend on time worked. The most obvious examples of such a condition are long service leave (where continuity of service is important) and annual leave (which is given by the s 87(1) of the Fair Work Act as four weeks paid annual leave or five in the case of certain shiftworkers for each year of service). But there are other examples. Section 96(1) of the Fair Work Act, for instance, provides that employees are entitled to 10 days paid personal/carer’s leave for each year of service. Section 117 requires that the minimum period of notice that an employer must give when terminating an employee’s employment is to be calculated by reference to the employee’s period of continuous service with the employer.

The primary judge was therefore correct to observe that cl E.6.3 is concerned with remuneration for time spent in attending training and does not extend to time spent travelling to and from training.

The CEPU submitted that by the operation of cl E.6.4 all terms and conditions of employment in the TS award apply to trainees, regardless of whether they are engaged in work or training. I do not accept the submission. It seems to me that the intention of the clause was to ensure that, save to the extent provided in the schedule, trainees were not to be disadvantaged in comparison with other employees. So if an employee was entitled to be paid for the time reasonably spent in travelling to a place where he or she was required to work, then so was a trainee. Similarly, the employer must reimburse a trainee, like any other employee, for reasonable out-of-pocket expenses he or she incurs in connection with the employer’s business, provided they are authorised by the employer and properly paid by the trainee. Thus, while it is true that the terms and conditions of employment in the TS award include the entitlements conferred by cl 17.1(e), cl E.6.4 does not alter the meaning of “work” in that clause.’

[48] It is also clear from [57] –[58] of her Honour’s judgment that clause 17.1(e)(i) of the TS Award does not encompass a requirement to attend training at a location away from the workplace or places, as such a requirement is not a requirement ‘to work’. Further, as is apparent from the passages set out above, clause E.6 of the NTW Schedule provides that time spent by a trainee is to be regarded as time worked for the purposes of calculating the trainee’s wages and determining the trainee’s employment conditions. It does not provide that attending training is to be regarded as work.

[49] It seems to us that whether or not a trainee is entitled to the benefit of a particular award entitlement, such as a travelling allowance when attending training depends on the terms of the particular award (see, for example, CFMEU v Master Builders Group Training Scheme Inc 17).

[50] We are not persuaded to make the variation proposed. It seems to us that the expression ‘entitled … to payment of appropriate wages’ is somewhat ambiguous and the intended interaction between A.5.2 and A.5.3 and A.5.4 is uncertain. To the extent that there is any ambiguity as to the particular award entitlements which are applicable to trainees, that issue should be dealt with on application on an award by award basis. The ‘one size fits all’ approach advocated by Ai Group is not appropriate in these circumstances.

Item 7 and Item 8 – Clause A.5.3

[51] The MTA (SA) sought to amend clause A.5.3 and to delete the ‘NOTE’ after clause A.5.3 as follows:

A.5.3 Time spent by a full time trainee, other than a trainee undertaking a school based traineeship attending any training and assessment specified in, or associated with, the training contract is to be regarded as time worked for the employer for the purposes of calculating the trainee’s wages and in determining the a full time trainee’s employment conditions. The weekly wages in A.4.1(a) to (d) includes payment for time worked and time spent in training.

NOTE: The time to be included for the purpose of calculating the wages for part-time trainees whose approved training is fully off-the-job is determined by clause 0 and not by this clause.

A.5.4 ‘The time to be included for the purpose of calculating the wages for part-time trainees (including a school-based trainee) is determined by A.4.2(f)(ii) and (iii) and not A.5.3.’ 18

A.5.5 Subject to clause A.2.4, this award applies to a trainee in the same way that it applies to an employee who is not a trainee except as otherwise expressly provided by this schedule.

[52] The MTA (SA) seek the variation above for the following reasons:

‘ A full-time trainee is paid a weekly wage as set out in Tables 1-4 in A.4.1 for the hours of work and training. These weekly wage rates in the NTW Schedule have been ‘discounted’ by 20% to account for the time that is spent in training. So the full-time trainee wage is to cover hours worked as well as time spent in training.

• The hourly rates for part-time employees (including a school-based trainee) have not been ‘discounted’ to account for time spent in training so the mix of training and work has to be considered when calculating the wages of a part-time trainee. A different calculation is used to calculate the wages depending on the type of training that is undertaken.


• The different types of training are referred to in A.4.2(f)(ii) and (iii).


• School- based trainees are paid part-time hourly rates, as appropriate, in Table 8 of A.4.2(d) as well as having regard to the ‘Employment conditions’ contained in A.5.1.’ 19

[53] The AMWU oppose the change sought by MTA (SA) on the ground that the existing clause only excludes “a trainee undertaking a school-based apprenticeship” and not all part-time trainees. The AMWU argue that the proposal would significantly extend the scope of the exclusion. 20

[54] The Ai Group also opposes the changes to clause A.5.3 sought by MTA (SA) on the basis that the provision was subject of the Excelior Federal Court Decision 21 and that the proposed change may lead to a further round of costly litigation.22

[55] Contrary to the submissions advanced by the AMWU and the Ai Group, MTA (SA) contends that the variations proposed do not significantly broaden the scope of the exclusion and nor do they amount a substantive change to the clause. This contention is advanced on the basis that the current clause A.5.3 excludes ‘school based trainees’ and that the ‘Note’ at the end of the clause also excludes part time trainees from clause A.5 for the purpose of calculating the wages for part time trainees whose approved training is wholly off-the-job. It is submitted that the change proposed only provides ‘further clarification on the application of the clause’ and that ‘no substantive change is intended’.

[56] We accept the MTA (SA) does not intend to substantively change clause A.5.3 but we are not persuaded that the proposed change is as benign as it described. The difficulty with the proposal is that it removes (for part time trainees) the current position whereby time spent attending training is to be regarded as time worked. There is no similar provision in either A.4.2(f)(ii) or (iii). We think that the change proposed may be substantive and accordingly we do not propose to make it as part of this exercise. In the event that MTA (SA) wishes to pursue the issue they may make an application to vary the NTW Schedule in the Miscellaneous Award 2010 once the plain language redrafting exercise is complete.

[57] We do propose to adopt MTA (SA)’s other proposal – the deletion of the ‘NOTE’ and its replacement with a new clause A.5.4, in the terms set out above.

[58] We do not propose to make the change sought by MTA (SA) to clause A.5.3, for the reasons advanced by Ai Group.

Item 9 – Clause A.5.4 – Employment conditions

[59] The redrafted clause A.5.4 is as follows:

‘E.5.4 Subject to clause A.2.4, this award applies to a trainee in the same way that it applies to an employee who is not a trainee except as otherwise expressly provided by this schedule.’

[60] Ai Group submit that clause A.5.4 should be amended to read as follows:

‘Subject to clause A.2.4, all other terms and conditions of this award apply to a trainee unless specifically varied by this schedule.’

[61] Ai Group submit that an interpretation of the redrafted clause may have the effect of narrowing the scope of an employer’s prerogative as to how a specific provision is applied to its employees. They submit that this would amount to an alteration to the legal effect of the clause. 23

[62] We are not persuaded that the redrafted clause alters the legal effect of the current provision and we do not propose to make the change sought.

[63] A determination giving effect to this decision will be issued shortly.

Award specific schedules

[64] In the February 2017 Statement we expressed a provisional view that where parties requested that the NTW Schedule be tailored to a particular modern award, this would occur. Applications were made by the AMWU and the CFMEU to maintain award-specific schedules in a number of awards.

[65] In the June 2017 decision 24 we confirmed that award-specific schedules will be maintained in the following nine modern awards:

• 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;
• Sugar Industry Award 2010; and
• Surveying Award 2010 25.

[66] The decision outlined that the terms of award-specific NTW Schedules to be inserted into the nine modern awards set out above will be dealt with after the finalisation of the plain language NTW Schedule in the Miscellaneous Award 2010. When tailored to each award, these schedules will be consistent with the final plain language NTW Schedule.

[67] We propose to publish draft schedules for each of the nine awards listed at paragraph [65] above in the week commencing 21 August 2017. Interested parties will be given an opportunity to comment on the award specific schedules. These comments on the award specific schedules are to be filed no later than 4.00 pm Friday 8 September 2017. Any party wishing to reply to material filed are to do so no later than 4.00 pm on Friday 22 September 2017.

Next Steps

[68] An updated draft NTW Schedule that we propose to insert into the Miscellaneous Award 2010 is set out at Attachment A to this decision. Parties are directed to file any comments on the updated draft no later than 4.00 pm Friday 18 August 2017. All comments are to be sent to [email protected]. A determination varying the schedule in the Miscellaneous Award 2010 will then be issued.

[69] In relation to the award specific schedules (outlined at paragraphs [64] – [67] above), interested parties are to comment on the schedules no later than 4.00 pm on Friday 8 September 2017. In the event that any party opposes the inclusion of award specific NTW schedules in a particular award (e.g see HIA submission 17 March 2017) they should make a submission to that effect. Any party wishing to reply to material filed are to do so no later than 4.00 pm on Friday 22 September 2017. All submissions are to be sent to [email protected].

[70] We propose to determine whether award specific NTW schedules are to be included in the nine modern awards set out at [65] above and, if so, the content of the schedule, on the papers. Any request for an oral hearing is to be made by no later than 4pm on Tuesday 25 September, 2017 and to be sent to [email protected].

PRESIDENT

Attachment A—Plain language draft of Miscellaneous Award 2010 NTW Schedule

Note: changes have been tracked using red text to highlight proposed changes as a result of this decision.

Schedule A—National Training Wage

A.1 Definitions

A.1.1 In this schedule:

adult trainee means a trainee who would qualify for the highest minimum wage in wage level A, B or C if covered by that wage level.

approved training, in relation to a trainee, means the training specified in the training contract of the trainee.

Australian Qualifications Framework (AQF) means the national framework for qualifications in post-compulsory education and training.

relevant Ministers means the Commonwealth, State and Territory Ministers responsible for vocational education and training.

relevant State or Territory training authority means a body in the relevant State or Territory that has power to approve traineeships, and to register training contracts, under the relevant State or Territory vocational education and training legislation.

relevant State or Territory vocational education and training legislation means the following or any successor legislation:

Apprenticeship and Traineeship Act 2001 (NSW);

Education and Training Reform Act 2006 (Vic);

Training and Skills Development Act 2008 (SA);

Training and Skills Development Act 2016 (NT);

Training and Tertiary Education Act 2003 (ACT);

Training and Workforce Development Act 2013 (Tas);

Vocational Education and Training Act 1996 (WA);

Further Education and Training Act 2014 (Qld) Vocational Education, Training and Employment Act 2000 (Qld).

trainee means an employee undertaking a traineeship under a training contract.

traineeship means a system of training that:

(a) has been approved by the relevant State or Territory training authority; and

(b) meets the requirements of a training package developed by the relevant Industry Skills Council Skills Service Organisation and endorsed by the National Quality Council Australian Industry and Skills Committee; and

(c) leads to an AQF certificate level qualification.

training contract means an agreement for a traineeship made between an employer and an employee that is registered by the relevant State or Territory training authority.

training package means the competency standards and associated assessment guidelines for an AQF certificate level qualification that have been endorsed for an industry or enterprise by the National Quality Council Australian Industry and Skills Committee and placed on the National Training Information Service with the approval of the relevant Ministers, and includes any relevant replacement training package.

wage level A, B or C, see clause A.4.

Year 10 includes any year before Year 10.

A.1.2 A reference in this schedule to out of school refers only to periods out of school beyond Year 10 as at 1 January in each year and is taken to:

(a) include any period of schooling beyond Year 10 that was not part of, or did not contribute to, a completed year of schooling; and

(b) include any period during which a trainee repeats, in whole or part, a year of schooling beyond Year 10; and

(c) not include any period during a calendar year after the completion during that year of a year of schooling.

A.2 Coverage

A.2.1 Subject to clauses A.2.2 to A.2.5, this schedule applies to an employee covered by this award who is undertaking a traineeship and whose training package and AQF certificate level are allocated to a wage level by clause A.6 or by clause A.4.4.

A.2.2 This schedule only applies to AQF Certificate Level IV traineeships for which a relevant AQF Certificate Level III traineeship is listed in clause A.6.

A.2.3 This schedule does not apply to:

(a) the apprenticeship system; or

(b) qualifications not identified in training packages; or

(c) qualifications in training packages that are not identified as appropriate for a traineeship.

A.2.4 If this schedule is inconsistent with other provisions of this award relating to traineeships, the other provisions prevail.

A.2.5 This schedule ceases to apply to an employee at the end of the traineeship.

A.3 Types of traineeship

The following types of traineeship are available:

A.3.1 A full-time traineeship based on 38 ordinary hours per week, with 20% of those hours being approved training;

A.3.2 A part-time traineeship based on fewer than 38 ordinary hours per week, with 20% of those hours being approved training provided:

(a) wholly on the job; or

(b) partly on the job and partly off the job; or

(c) wholly off the job.

A.4 Minimum Wages Rates

A.4.1 Minimum wages weekly rates for full-time traineeships

(a) Wage level A

Subject to clause A.4.3, The minimum wage rate for a full-time trainee undertaking a full-time AQF Certificate Level I–III traineeship whose training package and AQF certificate levels are allocated to wage level A by clause A.6.1 is the weekly wage rate specified in column 2 of Table 1—Wage level A minimum weekly wage rate for full-time trainees (AQF Certificate Level I–III traineeship) according to the highest year of schooling completed by the trainee specified in that column and the experience level of the trainee specified in column 1.

Table 1—Wage level A minimum weekly wage rate for full-time trainees (AQF Certificate Level I–III traineeship)

NOTE: See clause A.4.3 for other minimum wage provisions that affect this paragraph.

(b) Wage level B

Subject to clause A.4.3, The minimum wage rate for a full-time trainee undertaking a AQF Certificate Level I–III traineeship whose training package and AQF certificate levels are allocated to wage level B by clause A.6.2 or by clause A.4.4 is the weekly wage rate specified in column 2 of Table 2—Wage level B minimum weekly wage rate for full-time trainees (AQF Certificate Level I–III traineeship) according to the highest year of schooling completed by the trainee specified in that column and the experience level of the trainee specified in column 1.

Table 2—Wage level B minimum weekly wage rate for full-time trainees (AQF Certificate Level I–III traineeship)

NOTE: See clause A.4.3 for other minimum wage provisions that affect this paragraph.

(c) Wage level C

Subject to clause A.4.3, The minimum wage rate for a full-time trainee undertaking a AQF Certificate Level I–III traineeship whose training package and AQF certificate levels are allocated to wage level C by clause A.6.3 is the weekly wage rate specified in column 2 of Table 3—Wage level C minimum weekly wage rate for full-time trainees (AQF Certificate Level I–III traineeship) according to the highest year of schooling completed by the trainee specified in that column and the experience level of the trainee specified in column 1.

Table 3—Wage level C minimum weekly wage rate for full-time trainees (AQF Certificate Level I–III traineeship)

NOTE: See clause A.4.3 for other minimum wage provisions that affect this paragraph.

(d) AQF Certificate Level IV traineeships

(i) Subject to clause A.4.3, The for a trainee undertaking a full-time AQF Certificate Level IV traineeship are the minimum wage rate for the relevant full-time AQF Certificate Level III traineeship increased by 3.8%.

(ii) Subject to clause A.4.3, The minimum weekly wage rate for an adult trainee undertaking a full-time AQF Certificate Level IV traineeship is the weekly wage rate specified in column 2 or 3 of Table 4—Minimum weekly wage rate for full-time adult trainees (AQF Certificate Level IV traineeship according to the year of the traineeship specified in those columns and the relevant wage level for the relevant AQF Certificate Level III traineeship specified in column 1:

Table 4—Minimum weekly wage rate for full-time adult trainees (AQF Certificate Level IV traineeship)

Column 1 Wage level	Column 2 First year of traineeship	Column 3 Second and subsequent years of traineeship
	per week	per week
A	$638.50	$663.20
B	$616.00	$639.70
C	$560.60	$581.80

NOTE: See clause A.4.3 for other minimum wage provisions that affect this paragraph.

A.4.2 Minimum wages hourly rates for part-time traineeships

(a) Wage level A

Subject to clauses A.4.2(f) and A.4.3, the minimum hourly rate for a trainee undertaking a part-time AQF Certificate Level I–III traineeship whose training package and AQF certificate levels are allocated to wage level A by clause A.6.1 is the hourly rate specified in column 2 of Table 5—Wage level A minimum hourly rate for part-time trainees (AQF Certificate Level I–III traineeship) according to the highest year of schooling completed by the trainee specified in that column and the experience level of the trainee specified in column 1.

Table 5—Wage level A minimum hourly rate for part-time trainees (AQF Certificate Level I–III traineeship)

NOTE: See paragraph (f) for calculating the actual minimum wage. See also clause A.4.3 for other minimum wage provisions that affect this paragraph.

(b) Wage level B

Subject to clauses A.4.2(f) and A.4.3, the minimum hourly rate for a part-time trainee undertaking a AQF Certificate Level I–III traineeship whose training package and AQF certificate levels are allocated to wage level B by clause A.6.1 or by clause A.4.4 is the hourly rate specified in column 2 of Table 6—Wage level B minimum hourly rate for part-time trainees (AQF Certificate Level I–III traineeship) according to the highest year of schooling completed by the trainee specified in that column and the experience level of the trainee specified in column 1.

Table 6—Wage level B minimum hourly rate for part-time trainees (AQF Certificate Level I–III traineeship)

NOTE: See paragraph (f) for calculating the actual minimum wage. See also clause A.4.3 for other minimum wage provisions that affect this paragraph.

(c) Wage level C

Subject to clauses A.4.2(f) and A.4.3, the minimum hourly rate for a part-time trainee undertaking a AQF Certificate Level I–III traineeship whose training package and AQF certificate levels are allocated to wage level C by clause A.6.1 is the hourly rate specified in column 2 of Table 7—Wage level C minimum hourly rate for part-time trainees (AQF Certificate Level I–III traineeship) according to the highest year of schooling completed by the trainee specified in that column and the experience level of the trainee specified in column 1.

Table 7—Wage level C minimum hourly rate for part-time trainees (AQF Certificate Level I–III traineeship)

NOTE: See paragraph (f) for calculating the actual minimum wage. See also clause A.4.3 for other minimum wage provisions that affect this paragraph.

(d) School-based traineeships

Subject to clauses A.4.2(f) and A.4.3 A.4.1, the minimum hourly rate for a part-time trainee who works ordinary hours and is undertaking a school-based AQF Certificate Level I–III traineeship whose training package and AQF certificate levels are allocated to wage levels A, B or C by clause A.6 or by clause A.4.4 is the hourly rate in column 1 or 2 of Table 8—Minimum hourly rate for part-time trainees (school-based AQF Certificate Level I–III traineeship) according to the year of schooling of the trainee.

Table 8—Minimum hourly rate for part-time trainees (school-based AQF Certificate Level I–III traineeship)

(e) AQF Certificate Level IV traineeships

(i) Subject to clauses A.4.2(f) and A.4.1, the minimum hourly rate for a trainee undertaking a part-time AQF Certificate Level IV traineeship is the minimum hourly rate for the relevant part-time AQF Certificate Level III traineeship increased by 3.8%.

(ii) Subject to clauses A.4.2(f) and A.4.1, the minimum hourly rate for an adult trainee undertaking a part-time AQF Certificate Level IV traineeship is the hourly rate in column 2 or 3 of Table 9—Minimum hourly rate for adult part-time trainees (AQF Certificate Level IV traineeship), according to the year of the traineeship specified in those columns and the relevant wage level for the relevant AQF Certificate Level III traineeship specified in column 1:

Table 9—Minimum hourly rate for adult part-time trainees (AQF Certificate Level IV traineeship)

(f) Calculating the actual minimum wage

(i) If fewer than 38 (or an average of 38) ordinary hours of work per week is considered full-time at the workplace by the employer, the appropriate hourly minimum hourly rate for a part-time trainee is obtained by multiplying the relevant minimum hourly rate in clauses A.4.2(a) to (e) by 38 and then dividing the figure obtained by the full-time ordinary hours of work per week.

(ii) If the approved training for a part-time traineeship is provided fully wholly off-the-job by a registered training organisation, for example at school or at TAFE, the relevant minimum hourly rate in clauses A.4.2(a) to (e) applies to each ordinary hour worked by the trainee.

(iii) If the approved training for a part-time traineeship is undertaken solely on-the-job or partly on-the-job and partly off-the-job, the relevant minimum hourly rate in clauses A.4.2(a) to (e) minus 20% applies to each ordinary hour worked by the trainee.

A.4.3 Other minimum wage provisions

(a) Clause A.4.3 applies despite anything to the contrary in clause A.4.4 or A.4.2.

(b) An employee who was employed by an employer immediately before becoming a trainee with that employer must not suffer a reduction in their minimum rate of pay because of becoming a trainee.

(c) For the purpose of determining whether a trainee has suffered a reduction as mentioned in paragraph (a), casual loadings are to be disregarded.

(d) If a qualification is converted from an AQF Certificate Level II to an AQF Certificate Level III traineeship, or from an AQF Certificate Level III to an AQF Certificate Level IV traineeship, then the trainee must be paid the next highest minimum wage provided in this schedule, if a higher minimum wage is provided for the new AQF certificate level.

A.4.4 Default wage rate

The minimum wage for a trainee undertaking an AQF Certificate Level I–III traineeship whose training package and AQF certificate level are not allocated to a wage level by clause A.6 is the relevant minimum wage under this schedule for a trainee undertaking an AQF Certificate to Level I–III traineeship whose training package and AQF certificate level are allocated to wage level B.

A.5 Employment conditions

A.5.1 A trainee undertaking a school-based traineeship may agree to be paid an additional loading of 25% on all ordinary hours worked instead of being paid annual leave, paid personal/carer’s leave, paid compassionate leave and paid absence on public holidays. However, if the trainee works on a public holiday, the public holiday provisions of this award apply.

A.5.2 A trainee is entitled to be released from work without loss of pay and without loss of continuity of employment to attend any training and assessment specified in, or associated with, the training contract.

A.5.3 Time spent by a trainee, other than a trainee undertaking a school-based traineeship, in attending any training and assessment specified in, or associated with, the training contract is to be regarded as time worked for the employer for the purposes of calculating the trainee’s wages and determining the trainee’s employment conditions.

NOTE:

A.5.4 The time to be included for the purpose of calculating the wages for part-time

trainees whose approved training is fully wholly off-the-job is determined by clause A.4.2(f)(ii) and (iii) and not by this clause A.5.3.

A.5.45 Subject to clause A.2.4, this award applies to a trainee in the same way that it applies to an employee who is not a trainee except as otherwise expressly provided by this schedule.

A.6 Allocation of Traineeships to Wage Levels

The wage levels applying to training packages and their AQF certificate levels are:

A.6.1 Wage level A

A.6.2 Wage level B²

A.6.3 Wage level C³

NOTE 1 The Rail, Tram and Bus Union Australia proposed replacing the ‘Transport and Logistics’ training package with the ‘Transport and Distribution’ training package at Certificate III (see submission dated 17 October 2014).

NOTE 2 The Professional Golfers’ Association propose the addition of a ‘Golf Clubs and Facilities’ training package in Wage Level B (see submission dated 28 September 2015).

NOTE 3 The National Farmers’ Federation proposed replacing the three existing training packages titled ‘Agri-Food, Amenity Horticulture, and Conservation and Land Management’ with one consolidated training package titled ‘Agriculture, Horticulture and Conservation and Land Management’ (see submission dated 29 July 2016).

 1   [2017] FWCFB 3176

 2   Statement, 23 February 2017

 3   [2017] FWC 3874

 4   [2017] FWCFB 3349

 5   Submission, 29 July 2017, paragraph 24 – 25

 6   Ibid, at paragraph 29 – 33

 7   Submission, 7 April 2017, paragraph 7 – 9

 8   Submission, 17 March 2017, paragraph 3.4

 9   Submission, 6 April 2017, paragraph 13

 10   Submission, 7 April 2017, paragraph 17

 11   Submission, 24 March 2017, paragraph 45 – 46

 12   Submission, 7 April 2017, paragraph 10 – 11

 13   Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Excelior Pty Ltd [2013] FCA 638 at [66]

 14   Submission, 24 March 2017, paragraph 47

 15   Ibid, paragraph 48

 16   Submission, 7 April 2017, paragraph 12 – 15

 17   (2007) 168 IR 164

 18   Submission, 24 March 2017, paragraph 2.2.4

 19   Submission, 24 March 2017, paragraph 2.2.3

 20   Submission, 7 April 2017, paragraph 19

 21   Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Excelior Pty Ltd [2013] FCA 638

 22   Submission, 11 April 2017, paragraph 10 – 12

 23   Submission, 24 March 2017 at para 52-59

 24   [2017] FWCFB 3176

 25   The Surveying Award 2010 does not currently have a NTW Schedule.

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