[2020] FWCFB 2620
FAIR WORK COMMISSION

DECISION

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

4 yearly review of modern awards – National Training Wage – Award Specific Schedules
(AM2016/15; AM2016/17)

JUSTICE ROSS, PRESIDENT
VICE PRESIDENT HATCHER
COMMISSIONER HUNT

MELBOURNE, 21 MAY 2020

4 yearly review of modern awards – National Training Wage – award specific schedules – Joinery and Building Trades Award 2010 – Mobile Crane Hiring Award 2010.

[1] This decision deals with the National Training Wage (NTW) Schedules in the Joinery and Building Trades Award 2010 (Joinery Award) and the Mobile Crane Hiring Award 2010 (the Mobile Crane Award).

[2] A Statement 1 published on 6 July 2016 noted that 103 out of the 122 of the modern awards of general application, as well as 15 enterprise and State reference public sector modern awards, contained the National Training Wage Schedule (the NTW Schedule). The NTW Schedule runs over 8 pages and there were only minor variations between the NTW Schedules in the various awards.

[3] With the objective of reducing award length and complexity, the following changes were proposed:

(i) standardising the NTW Schedule; and

(ii) removing the NTW Schedule from all modern awards, save for the Miscellaneous Award 2010 (Miscellaneous Award), and incorporating the NTW Schedule by reference into the other modern awards that currently contain the Schedule in full.

[4] In response to the July 2016 Statement, the AMWU and CFMMEU proposed that the NTW should be relevant and appropriate to the work covered by the particular award. Among the awards the AMWU and CFMMEU identified as requiring a NTW schedule, albeit in a modified form, were the Joinery Award and the Mobile Crane Award.

[5] In a Statement 2 published on 23 February 2017, we expressed the provisional view that:

‘where parties have requested that the NTW schedule be tailored to a particular modern award that this should occur. A tailored version of the NTW schedule will be inserted in the awards listed above adopting the proposed plain language provisions where appropriate. Parties with an interest in those awards should file submissions setting out how the draft schedules should be tailored.’ 3

[6] In our decision 4 of 9 June 2017 we confirmed that award specific NTW schedules would be maintained in 9 modern awards (including the Joinery Award and the Mobile Crane Award).5

[7] In a decision 6 of 15 August 2017 we finalised the NTW Schedule and the Miscellaneous Award NTW Schedule was varied7 in September 2018.

[8] Draft award-specific NTW Schedules were annexed to a Statement of 28 August 2017. 8 Interested parties were invited to file submissions in relation to the draft award-specific NTW Schedules.9

[9] Submissions in relation to the Joinery Award were received from:

•  CFMMEU (8 September 2017);

•  Housing Industry Association Limited (HIA) (8 September 2017); and

•  Master Builders Australia (MBA) (8 September 2017).

[10] Submissions in relation to the Mobile Crane Award were received from:

•  CFMMEU (8 September 2017); and

•  Australian Industry Group (Ai Group) (8 September 2017).

[11] A conference was held on 23 August 2019 (August 2019 Conference) at which parties were requested to prepare a joint report as to the agreed and disputed matters including draft consent directions, if necessary, as to how the matter should be resolved. 10

[12] The following Submissions were received after the August 2019 Conference:

•  CFMMEU (15 November 2019);

•  HIA (22 November 2019); and

•  MBA (22 November 2019).

[13] The CFMMEU submitted that it was that it was not possible for all the parties to agree on a report to present to the Full Bench. The CFMMEU provided a report which it stated was agreed to by Ai Group but not by HIA or MBA 11 and provided draft award-specific NTW Schedules for both Awards.

[14] The CFMMEU submitted that it would be necessary to have a full hearing of the matter in relation to the Joinery Award and the Mobile Crane Award, subject to the submissions of the MBA. It also suggested that directions be issued for the filing of further submissions and evidence.

[15] The HIA also submitted that directions should be issued, but stated it was content for the matter to be determined on the papers. The MBA advised it continued to rely on its previous submissions filed and was of the view that a full hearing was not required.

[16] On 19 December 2019 12 we issued the following amended directions in relation to the determination of the CFMMEU’s proposal:

‘1. Any party seeking the inclusion of an award specific NTW Schedule for the Joinery Building Trades Award 2010 and Mobile Crane Award 2010, shall file submissions and any evidence upon which they wish to rely by 4:00 pm Tuesday 4 February 2020.

2. Any submissions in reply including any evidentiary material are to be filed by 4:00 pm Tuesday 3 March 2020.

3. All submissions and evidence shall be sent by email to [email protected]

4. The parties are granted liberty to apply to vary these directions.

Note: All parties must file new submissions in accordance with the above directions (parties may refer to previous submissions and rely on them, but absent a submission in accordance with these directions we will not be having regard to any previous submissions).’

[17] Submissions were received from:

•  CFMMEU (4 February 2020);

•  Ai Group (24 February 2020);

•  HIA (3 March 2020); and

•  MBA (3 March 2020).

CFMMEU

[18] The CFMMEU submits the NTW Schedules in the Joinery and Mobile Crane Awards should be varied, so they are award-specific, by deleting unnecessary references to wage rates and training packages that are not relevant or have no application. 13 It is submitted that many of the training packages referenced in the Schedules do not apply, and if those references are removed, it would follow that the applicable wage rates should also be removed.14

[19] In relation to the Joinery Award, the CFMMEU filed draft determinations reflecting its proposed NTW Schedules. Those draft determinations are set out at Attachments A and B.

[20] The CFMMEU submits that only the following training packages are relevant:

•  Construction, Plumbing and Services (Wage Level A);

•  Manufacturing (Wage Level A);

•  Manufacturing and Engineering (Wage Level A);

•  Transport and Logistics (Wage Level B);

•  Furnishing (Wage Level B);

•  Forest and Wood/Forest Products (Wage Level B); and

•  Sustainability. 15

[21] The CFMMEU submits that the Joinery Award contains no training packages relevant to wage level C, so it has no work to do. It follows that the clause allocating training packages to wage level C and all references to wage level C should be deleted. 16 The CFMMEU also submits the ‘Printing and Graphic Arts’ training package should be removed from Wage Level B as it is not relevant to signwriters.

[22] The ‘Sustainability’ training package was introduced on 22 June 2016. 17 It is intended to teach the skills required to be efficient in performing the requirements of a role and is complementary to (but does not duplicate) the other training packages. The CFMMEU submits that until this package is inserted in the award, it falls under the default arrangement and wage level B applies.18

[23] As to the Mobile Crane Award, and having regard to the coverage clause and classification structure of that award, the CFMMEU submits the only training packages that apply are:

•  Construction, Plumbing and Services Integrated Framework (Wage Level A); and

•  Transport and Logistics (Wage Level B).

[24] The CFMMEU submits that the Mobile Crane Award contains no training packages relevant to wage level C so, again, it has no work to do. The CFMMEU submits the clause allocating training packages to wage level C and all references to wage level C should be deleted.

[25] The CFMMEU filed 4 witness statements in support of its proposed variations.

Stuart Maxwell

[26] Stuart Maxwell is the Senior National Industrial Officer at the CFMMEU and has been employed by the CFMMEU and its predecessors since 1990. 19 Mr Maxwell has participated in the development of training packages, advocated in modern award review proceedings and is currently the Chairperson of the Construction, Plumbing and Services Industry Reference Committee.

[27] Mr Maxwell gave evidence that the training for the classifications and occupations in the Joinery Award and the qualifications relevant to them are mainly covered by the Construction, Plumbing and Services Training Package. Mr Maxwell gave evidence that in his opinion, the following training packages are also applicable:

•  Furnishing;

•  Manufacturing;

•  Manufacturing and Engineering;

•  Metal and Engineering;

•  Transport and Logistics; and

•  Forest and Wood Products.

[28] In relation to the Mobile Crane Award, Mr Maxwell gave evidence that the Construction, Plumbing and Services Training Package is applicable.

Ian Curry

[29] Ian Curry is employed by the Australian Manufacturing Workers’ Union (AMWU) as the National Coordinator – Skills, Training & Apprenticeships and has held that position for 18 years. 20 One of Mr Curry’s responsibilities is coordination of the AMWU’s engagement with the National Training Package development process.

[30] Mr Curry gave evidence that some of the training and qualifications relevant to the classifications covered by the Joinery Award are covered by the Manufacturing & Engineering MEM05, MEM and the Sustainability Training Package MSS.

Yvette Nash

[31] Yvette Nash is employed by ForestWorks as the General Manager and has held that position for 5 months. 21 ForestWorks is contracted by SkillsImpact to develop the Forest and Wood Products Training Package, and by State governments to provide skills and training development in related industries. Ms Nash gave evidence that the Forest and Wood Products Training Package covers the following qualifications that relate to work performed under the Joinery Award:

•  FWP31119 Certificate III in Wood Machining;

•  FWP20516 Certificate II in Timber Manufactured Products; and

•  FWP30516 Certificate III in Timber Manufactured Products

Barry Kearney

[32] Barry Kearney is employed by the CFMMEU – Education and Training Unit as the High Risk Work Trainer and has worked in that Unit for 20 years. 22 Mr Kearney has worked in the building and construction industry for 30 years. Mr Kearney’s duties are to train workers to meet the relevant requirements of competency units and qualifications associated with high risk work. Mr Kearney gave evidence that the training packages relevant to the mobile crane hiring industry are the Transport and Logistics Package and the Construction, Plumbing and Services Training Package.

[33] The CFMMEU submits its proposed variations are consistent with the modern awards objective in the following respects:

•  they will help new trainees understand their entitlements (s.134(1)(c));

•  they will reduce the need for employers to seek external assistance to determine which training packages and wage rates apply (s.134(1)(f)); and

•  they will provide clarity and make the awards easier to understand (s.134(1)(g)).

[34] The CFMMEU submits the other s.134(1) considerations are neutral.

[35] The CFMMEU submits its proposed variations also meet the objectives of the plain language re-drafting project. It submits that removing irrelevant training packages and wage rates would make it easier for users to read and understand the award provisions that do apply. In a Decision issued on 20 January 2017 relating to the plain language re-draft of the Pharmacy Award, we stated the following:

‘The objective of the plain language project is to remove ambiguity, promote certainty and make awards simpler and easier to understand, consistent with the statutory direction to take into account the ‘need to ensure a simple, easy to understand, stable and sustainable modern award system’ (s.134(1)(g) of the FW Act). An objective of the plain language project is to avoid future disputation by providing clarity about the rights and responsibilities of those covered by modern awards.’ 23

[36] The CFMMEU also relies on the following extract from the plain language guidelines, published on 20 June 2017:

‘1.2 As employers and employees are expected to comply with the award(s) that apply to them, they are entitled to expect that awards are drafted in such a way that they can readily navigate their way around them and understand their content.

1.3 Plain language drafting is not just about the language used. It also covers the structure and design of a document. The Plain Language Association International has published the following definition:

‘A communication is in plain language if the language, structure and design are so clear that the intended audience can easily find what they need, understand what they find and use that information.’ 24 (footnotes omitted).

Ai Group

[37] On 23 February 2020 25 Ai Group advised the Commission that its position in relation to the variations sought by the CFMMEU had not changed from that set out at paragraphs [8] – [12] of the CFMMEU’s Report26 filed on 14 November 2019 as follows:

‘Response from the Ai Group

8. On 1st November 2019 the Ai Group replied to the CFMMEU C&G stating that:

“Ai Group’s preferred position is that there not be an industry-specific NTW schedule in the relevant awards. That said, we are not strongly opposed to the idea of industry specific NTW schedules provided that the content is agreed. As you are aware, Ai Group recently reached agreement with the AMWU on industry specific NTW schedules for a number of awards, including the Manufacturing Award. The agreed approach was to adopt the same alignment between particular qualifications and wage levels as those in the Miscellaneous Award, and to simply delete qualifications that are not relevant to the employers and employees covered by each award. Is a similar approach acceptable to the CFMMEU?”

9. The CFMMEU C&G responded to the Ai Group that it was agreeable to that approach and also the deletion of wage levels that were not relevant.

10. If the Commission were to decide to adopt a tailored schedule for the awards then from the above response it would appear that the CFMMEU C&G and Ai Group would be able to reach a consent position.

How the Matter Should Proceed

11. The CFMMEU C&G and Ai Group suggest that the threshold issue, of whether or not the awards have a tailored schedule, be determined first.

12. Once this matter is determined, if the Commission is supportive of tailored schedules then the CFMMEU C&G and Ai Group, at least, should be able to quickly agree on appropriate tailored schedules for each of the awards, or if the Commission is not supportive then the standard clause referring to the Miscellaneous Award can be inserted.’ (Emphasis added)

[38] In respect of the ‘threshold issue, of whether or not the awards have a tailored schedule’, we would observe that this issue has already been determined. As mentioned earlier, in the February 2017 Statement we expressed the provisional view that ‘where parties have requested that the NTW schedule be tailored to a particular award that this should occur’. 27 We confirmed that provisional view in our decision of 9 June 2017.28

[39] To ensure there is no misunderstanding, we confirm that the Joinery Award and the Mobile Crane Award should contain tailored NTW schedules. The only remaining issue for determination is the content of the NTW schedules in each of these awards.

HIA

[40] The HIA filed a submission in respect of the Joinery Award and opposes the CFMMEU’s proposed variations. 29 The HIA submits no substantive reason has been put justifying a departure from the Commission’s decision to standardise the NTW schedule in the Joinery Award by reference to the Miscellaneous Award.30 Therefore, no award specific schedule is required.31 We note that we have dealt with this issue, above at [38] – [39].

[41] In the alternative, should we decide to insert an award specific schedule in the Joinery Award, the HIA submits the current schedule should remain unchanged. 32

[42] The HIA submits there is ambiguity in which training packages apply to the Joinery Award. Therefore, the CFMMEU’s submission that some packages are not relevant or do not apply is unpersuasive. The removal of any packages should be done so with certainty and supported by evidence. The HIA further submits the witness evidence filed by the CFMMEU should be given little weight because it is based on opinion rather than fact. 33

MBA

[43] The MBA filed submissions in respect of the Joinery Award and opposes the CFMMEU’s proposed variations. 34 The MBA submits the CFMMEU has not advanced any reasons to justify why its proposed variations should be made instead of the approach taken by the Commission in respect of other awards. We note that we have dealt with this issue, above at [38] – [39].

[44] The MBA disagrees with the CFMMEU’s submission that its suggested training packages are the only packages that will ever apply to the award. It is concerned that limiting the applicable training packages would have a detrimental impact on the industry’s evolving training needs, particularly in relation to technology, work practices, products and methodology. The MBA also disagrees with the CFMMEU’s proposal to delete references to wage level C. It submits the proposal assumes that there will never be a training package applicable to the Joinery Award and further restricts the training system’s ability to evolve and be flexible in response to requirements.

[45] The MBA submits the CFMMEU has not met the threshold required for significant changes to a modern award, as set out in the 4 yearly review of modern awards: Preliminary Jurisdictional Issues Decision. 35

[46] The MBA submits the CFMMEU’s proposed variations are not supported by evidence other than a ‘collective opinion’ and should be rejected. 36

Next Steps

[47] Any further submissions in respect of the content of the NTW schedules in the Joinery Award and the Mobile Crane Award are to be filed by 4pm on Friday 29 May 2020.

[48] Any request to cross-examine the witnesses or for an oral hearing generally, is to be filed by 4pm on Friday 29 May 2020.

[49] All documents are to be sent to [email protected]

[50] Absent any request for an oral hearing, we will determine the outstanding issues on the papers.

PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR719485>

ATTACHMENT A

DRAFT DETERMINATION

fwc_logo

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

4 yearly review of modern awards – National Training Wage – Award Specific Schedules
(AM2016/15; AM2016/17)

JOINERY AND BUILDING TRADES AWARD 2010
[MA000029]

Building, metal and civil construction industries

JUSTICE ROSS, PRESIDENT
VICE PRESIDENT HATCHER
COMMISSIONER HUNT

DATE, PLACE OF SIGNING

4 yearly review of modern awards – National Training Wage Schedule.

A. Further to the Full Bench decision [[2020] FWCFB XXXX], issued by the Fair Work Commission on XX XX 2020, the above award is varied as follows:

1. By deleting Schedule D—National Training Wage and inserting the following:

Schedule D—National Training Wage

D.1 Definitions

D.1.1 In this schedule:

adult trainee means a trainee who would qualify for the highest minimum wage in wage level A or B 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).

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 Skills Service Organisation and endorsed by the 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 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 or B, see clause D.4.

Year 10 includes any year before Year 10.

D.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.

D.2 Coverage

D.3 Types of traineeship

The following types of traineeship are available:

D.4 Minimum rates

D.4.1 Minimum weekly rates for full-time traineeships

The minimum rate for a full-time trainee undertaking an AQF Certificate Level I–III traineeship whose training package and AQF certificate levels are allocated to wage level A by clause D.6.1 is the weekly rate specified in Column 2 of Table 1—Wage level A minimum weekly 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 rate for full-time trainees (AQF Certificate Level I–III traineeship)

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

The minimum rate for a full-time trainee undertaking an AQF Certificate Level I–III traineeship whose training package and AQF certificate levels are allocated to wage level B by clause D.6.2 or by clause D.4.4 is the weekly rate specified in Column 2 of Table 2—Wage level B minimum weekly 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 rate for full-time trainees (AQF Certificate Level I–III traineeship)

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

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

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

D.4.2 Minimum hourly rates for part-time traineeships

The minimum hourly rate for a part-time trainee undertaking an AQF Certificate Level I–III traineeship whose training package and AQF certificate levels are allocated to wage level A by clause D.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 D.4.3 for other minimum wage provisions that affect this paragraph.

The minimum hourly rate for a part-time trainee undertaking an AQF Certificate Level I–III traineeship whose training package and AQF certificate levels are allocated to wage level B by clause D.6.2 or by clause D.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 D.4.3 for other minimum wage provisions that affect this paragraph.

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 or B by clause D.6 or by clause D.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)

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

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

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

D.4.3 Other minimum wage provisions

D.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 D.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.

D.5 Employment conditions

D.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.

D.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.

D.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.

D.5.4  The time to be included for the purpose of calculating the wages for part time trainees whose approved training is wholly off-the-job is determined by clauses D.4.2(f)(ii) and (iii) and not by clause D.5.3.

D.5.5  Subject to clause D.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.

D.6 Allocation of traineeships to wage levels

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

D.6.1 Wage level A

D.6.2 Wage level B

B. This determination comes into operation from [date of operation]. In accordance with s.165(3) of the Fair Work Act 2009, this determination does not take effect until the start of the first full pay period that starts on or after [date of operation].

PRESIDENT

ATTACHMENT B

DRAFT DETERMINATION


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

4 yearly review of modern awards – National Training Wage – Award Specific Schedules
(AM2016/15; AM2016/17)

MOBILE CRANE HIRING AWARD 2010
[MA0000XX]

Building, metal and civil construction industries

JUSTICE ROSS, PRESIDENT
VICE PRESIDENT HATCHER
COMMISSIONER HUNT

DATE, PLACE OF SIGNING

4 yearly review of modern awards – National Training Wage Schedule.

A. Further to the Full Bench decision [[2020] FWCFB XXXX], issued by the Fair Work Commission on XX XX 2020, the above award is varied as follows:

1. By deleting Schedule C—National Training Wage and inserting the following:

Schedule C—National Training Wage

C.1 Definitions

C.1.1  In this schedule:

adult trainee means a trainee who would qualify for the highest minimum wage in wage level A or B 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).

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

traineeship means a system of training that:

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 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 or B, see clause C.4.

Year 10 includes any year before Year 10.

C.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:

C.2 Coverage

C.2.1  Subject to clauses C.2.2 to C.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 C.6 or by clause C.4.4.

C.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 C.6.

C.2.3  This schedule does not apply to:

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

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

C.3 Types of traineeship

The following types of traineeship are available:

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

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

C.4 Minimum rates

C.4.1 Minimum weekly rates for full-time traineeships

The minimum rate for a full-time trainee undertaking an AQF Certificate Level I–III traineeship whose training package and AQF certificate levels are allocated to wage level A by clause C.6.1 is the weekly rate specified in Column 2 of Table 1—Wage level A minimum weekly 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 rate for full-time trainees (AQF Certificate Level I–III traineeship)

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

(b) Wage level B

The minimum rate for a full-time trainee undertaking an AQF Certificate Level I–III traineeship whose training package and AQF certificate levels are allocated to wage level B by clause C.6.2 or by clause C.4.4 is the weekly rate specified in Column 2 of Table 2—Wage level B minimum weekly 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 rate for full-time trainees (AQF Certificate Level I–III traineeship)

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

(c) AQF Certificate Level IV traineeships

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

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

C.4.2 Minimum hourly rates for part-time traineeships

(a) Wage level A

The minimum hourly rate for a part-time trainee undertaking an AQF Certificate Level I–III traineeship whose training package and AQF certificate levels are allocated to wage level A by clause C.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 C.4.3 for other minimum wage provisions that affect this paragraph.

(b) Wage level B

The minimum hourly rate for a part-time trainee undertaking an AQF Certificate Level I–III traineeship whose training package and AQF certificate levels are allocated to wage level B by clause C.6.2 or by clause C.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 C.4.3 for other minimum wage provisions that affect this paragraph.

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 C.6 or by clause C.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)

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

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

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

C.4.3 Other minimum wage provisions

C.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 C.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.

C.5 Employment conditions

C.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.

C.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.

C.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.

C.5.4  The time to be included for the purpose of calculating the wages for part time trainees whose approved training is wholly off-the-job is determined by clauses C.4.2(f)(ii) and (iii) and not by clause C.5.3.

C.5.5  Subject to clause C.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.

C.6 Allocation of traineeships to wage levels

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

C.6.1 Wage level A

C.6.2 Wage level B

B. This determination comes into operation from [date of operation]. In accordance with s.165(3) of the Fair Work Act 2009, this determination does not take effect until the start of the first full pay period that starts on or after [date of operation].

PRESIDENT

 1   [2016] FWC 4495.

 2   [2017] FWCFB 1095

 3   Ibid at [8]

 4   [2017] FWCFB 3176

 5   Ibid at [3]

 6   [2017] FWCFB 4174.

 7   PR596939.

 8   [2017] FWCFB 4457.

 9   [2017] FWCFB 4174 at [69]; [2017] FWCFB 4457 at [11] and [12].

 10   Transcript, 23 August 2019.

 11   CFMMEU - Report to the Full Bench, 15 November 2019.

 12   [2019] FWCFB 8572.

 13   CFMMEU – Construction Division submission, 4 February 2020 at para [6].

 14   CFMMEU – Construction Division submission, 4 February 2020 at para [9].

 15   CFMMEU – Construction Division submission, 4 February 2020 at para [11].

 16   CFMMEU – Construction Division submission, 4 February 2020 at paras [13] – [17].

 17   See Australian Government – Training website, Sustainability Training Package.

 18   CFMMEU – Construction Division submission, 4 February 2020 at para [32].

 19   Witness Statement of Stuart Maxwell dated 4 February 2020.

 20   Witness Statement of Ian Curry dated 3 February 2020.

 21   Witness Statement of Yvette Nash dated 4 February 2020.

 22   Witness Statement of Barry Kearney dated 4 February 2020.

 23   [2017] FWCFB 344 at para [20].

 24   Plain language re-drafting guidelines, published 20 June 2017 at page 5.

 25   Ai Group submission, 23 February 2020.

 26   CFMMEU, Report to the Full Bench, 14 November 2019.

 27   [2017] FWCFB 1095 at [8]

 28   [2017] FWCFB 3176 at [3]

 29   HIA submission, 3 March 2020. HIA also relies on submissions previously filed: 17 March 2017; 8 September 2017; 22 November 2019.

 30   HIA submission, 3 March 2020 at para 3.1.3.

 31   HIA submission, 3 March 2020 at para 3.1.4.

 32   HIA submission, 3 March 2020 at para 3.1.5.

 33   HIA submission, 3 March 2020 at paras 4.3.1 – 4.3.6.

 34   MBA submission, 3 March 2020.

 35   [2014] FWCFB 1788.

 36   MBA submission, 3 March 2020 at para 22.