[2020] FWCFB 4833
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, 10 SEPTEMBER 2020

4 yearly review of modern awards – National Training Wage – award-specific schedules – Joinery and Building Trades 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 (Mobile Crane Award). It should be read in conjunction with decisions issued on 14 July 2020, 1 21 May 2020,2 15 August 2017,3 9 June 20174 and 25 August 2020.5

[2] In our decision of 25 August 2020 6 we said:

‘We reject the primary position advanced by the MBA and HIA, which in essence seeks the retention of the standardised NTW Schedule, in totality. It is apparent on face of the standard NTW Schedule (found in the Miscellaneous Award) that a number of training packages have no application, or potential application, to employees covered by the Joinery Award. Examples of such training packages include Aeroskills, Beauty, Floristry, Museum, Library and Library/Information Services and Music.

Contrary to the submissions advanced by the MBA and HIA we are not persuaded to incorporate a ‘catch all’ provision referring to the Miscellaneous Award. Nor are we persuaded that the CFMMEU’s proposed NTW Schedule removes an opportunity for ‘future proofing’ the schedule to meet any future needs of apprentices covered by the Joinery Award. There is no impediment to an interested party seeking to vary the NTW Schedule in response to changes in the training environment.

We propose to vary the Joinery Award in accordance with the CFMMEU’s revised draft determination, with two additions. The additions concern the inclusion of the Sustainability Training Package and the Certificate I from the Manufacturing and Engineering Training Package; and the retention of wage level C. The retention of wage level C anticipates that future training packages may align with this level…

The CFMMEU is directed to file an amended variation determination giving effect to our decision. The amended draft variation determination is to be filed by 4pm Tuesday, 1 September 2020. We will publish the amended draft variation determination and interested parties will have 7 days to comment.’ 7

[3] On 27 August 2020 the CFMMEU filed an amended draft variation determination, 8 which was published on the Commission’s website for comment. On 4 September 2020 the MBA filed a submission9 stating it agreed the CFMMEU’s draft determination reflects the 25 August 2020 decision. No other comments were received.

[4] We are satisfied that the variation proposed is necessary to ensure that the Joinery Award achieves the modern awards objective. In reaching that conclusion we have had regard to the s.134 considerations. In particular we note that the variation proposed is consistent with the need to ensure that the modern award is ‘simple [and] easy to understand’ (s.134(1)(g)). The inclusion of only those training packages which are presently apposite to the work covered by the award is entirely consistent with the Commission’s obligation to ensure that modern awards provide a ‘fair and relevant minimum safety net of terms and conditions’.

[5] A final variation determination is attached to this decision.

PRESIDENT

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Attachment

MA000029  PR719630

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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)

JOINERY AND BUILDING TRADES AWARD 2010
[MA000029]

Building, metal and civil construction industries

JUSTICE ROSS, PRESIDENT
VICE PRESIDENT HATCHER
COMMISSIONER HUNT

MELBOURNE, 10 SEPTEMBER 2020

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

A. Further to the Full Bench decision [[2020] FWCFB 4833], issued by the Fair Work Commission on 10 September 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, 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 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.

wage level A, B or C, 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.2.1 Subject to clauses D.2.2 to D.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 D.6 or by clause D.4.4.

D.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 D.6.

D.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.

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

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

D.3 Types of traineeship

The following types of traineeship are available:

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

D.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.

D.4 Minimum rates

D.4.1 Minimum weekly rates for full-time traineeships

(a) Wage level A

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 clause D.4.1(a).

(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 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 clause D.4.1(b).

(c) Wage level C

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 C by clause D.6.3 is the weekly rate specified in Column 2 of Table 3—Wage level C 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 3—Wage level C 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 clause D.4.1(c).

(d) AQF Certificate Level IV traineeships

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 clause D.4.1(d).

D.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 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 clause D.4.2(f) for calculating the actual minimum wage. See also clause D.4.3 for other minimum wage provisions that affect clause D.4.2(a).

(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 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 clause D.4.2(f) for calculating the actual minimum wage. See also clause D.4.3 for other minimum wage provisions that affect clause D.4.2(b).

(c) Wage level C

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 C by clause D.6.3 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 clause D.4.2(f) for calculating the actual minimum wage. See also clause D.4.3 for other minimum wage provisions that affect clause D.4.2(c).

(d) School-based traineeships

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 clause D.4.2(f) for calculating the actual minimum wage. See also clause D.4.3 for other minimum wage provisions that affect clause D.4.2(d).

(e) AQF Certificate Level IV traineeships

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

NOTE: See clause D.4.2(f) for calculating the actual minimum wage. See also clause D.4.3 for other minimum wage provisions that affect clause D.4.2(e).

(f) Calculating the actual minimum wage

D.4.3 Other minimum wage provisions

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

(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 clause D.4.3(b), 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.

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

NOTE: The above training packages include any relevant replacement training package.

D.6.2 Wage level B

NOTE: The above training packages include any relevant replacement training package.

D.6.3 Wage level C

B. This determination comes into operation from 17 September 2020. In accordance with s.165(3) of the Fair Work Act 2009 this determination does not take effect in relation to a particular employee until the start of the employee’s first full pay period that starts on or after 17 September 2020.

PRESIDENT

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 1   [2020] FWCFB 3642.

 2   [2020] FWCFB 2620.

 3   [2017] FWCFB 3176

 4   [2017] FWCFB 4174.

 5   [2020] FWCFB 4407.

 6   [2020] FWCFB 4407.

 7   [2020] FWCFB 4407 at [35] – [37], [39].

 8   CFMMEU, submission – amended draft variation determination, 27 August 2020.

 9   MBA, submission, 4 September 2020.