The MTFU and MTIA agree that a consultative mechanism and procedure clause is allowable pursuant to s.89A(6). The Full Bench in the hospitality decision did not deal with a provision such as that proposed by the parties. The Commonwealth and ACCI opposed the insertion of a clause on the grounds that the clause was not allowable under s.89A(2) or s.89A(6).
The parties argued that consultative provisions form part of the fabric of industrial relations in the metal industry. Further, the thrust to greater facilitation in the award supports the rationale for consultative mechanisms being established to underpin that approach. It is proposed clause 3.1 bears a relationship to a number of award provisions including clauses 2.1, 2.2 and 5.2.
I have formed the view that in the context of the proposed award a consultative mechanism is consistent with the provisions of s.89A(6) of the Act in so far as the mechanism specifies the award clauses to which it relates and the essential role of consultation can be identified as incidental to and necessary for the effective operation of the clause. These clauses include 2.1 and 2.2 in that a consultative mechanism is incidental to and necessary for the effective operation of those clauses. If the clause is to cover any additional issues this will be specified when the relevant clause is being considered later in this decision.
Turning to the terms of the clause sought the key differences in the parties' proposals relate to:
· Whether the clause is mandatory or discretionary
· Role of the unions
Consistent with the nature of this clause as being incidental to and necessary for the effective operation of the award provisions including enterprise flexibility provisions and facilitative clauses, the clause should be discretionary. I also prefer the MTIA version on role of unions subject to adding "and if appropriate an appropriate agent including a trade union" after the word "employee" in clause 3.1.1. This is consistent with the framework of enterprise flexibility agreements (clause 2.1) established in this decision and provides essential flexibility to reflect the disparate nature of the industry. I agree with the Commonwealth that clause 3.1.2 is not allowable having regard to Item 49(7). In addition clause 2.1 already provides for representation.
This clause will state:
"3.1 Consultative Mechanism and Procedure
At each enterprise covered by this award the employer and employees, and, if appropriate an appropriate agent including a trade union, may establish a mechanism and procedures which enables them to communicate and consult about matters arising out of this award, in particular clauses 2.1, 2.2 which they agree would assist in achieving and maintaining co-operative workplace relations and mutually beneficial work practices."
3.2 Dispute Resolution Procedure
A dispute resolution procedure is consistent with s.89A(2)(p) and the hospitality decision (p.11 and p.67, Appendix D).
Clauses 3.2.1 - 3.2.5(c) are agreed between the parties. They will be inserted in the following terms:
"3.2.1 A procedure for the avoidance or resolution of disputes will apply in all enterprises covered by this Award. The mechanism and procedures for resolving industrial disputes will include, but not be limited to, the following:
3.2.2 The employee/s concerned will first meet and confer with their immediate supervisor. The employee/s may appoint another person to act on their behalf including a shop steward or delegate of their union.
3.2.3 If the matter is not resolved at such a meeting the parties will arrange further discussions involving more senior management as appropriate. The employee may invite a union official to be involved in the discussions. The employer may also invite into the discussions an officer of the employer organisation to which the employer belongs.
3.2.4 If the matter remains unresolved, the employer may refer it to a more senior level of management or to a more senior national officer within the employer organisation. The employee may invite a more senior union official to be involved in the discussions. In the event there is no agreement to refer the matter to a more senior level or it is agreed that such a reference would not resolve the matter the parties shall jointly or individually refer the matter to the Australian Industrial Relations Commission for assistance in resolving the matter.
3.2.5 In order to facilitate the procedure in 3.2:
3.2.5(a) The party with the grievance must notify the other party at the earliest opportunity of the problem;
3.2.5(b) Throughout all stages of the procedure all relevant facts must be clearly identified and recorded;
3.2.5(c) Sensible time limits must be allowed for completion of the various stages of discussion. However, the parties must co-operate to ensure that the disputes resolution procedures are carried out as quickly as possible."
Clause 3.3 has been deleted in light of the hospitality decision.
3.4
The parties disagree on the wording of clause 3.4 (which should be renumbered 3.3).
The MTFU version of 3.4 particularly 3.4.1 is based on a `commitment' which goes beyond the scope of allowable matters (see for example the hospitality decision p.67). Deletion of this provision consequently weakens the clear intent of the provision, namely to identify the status of normal work during any industrial action. The MTIA proposal is consistent with the Hospitality Award dispute settling procedure (clause 12 of the Hospitality Award) determined by the Full Bench and is clearly expressed. It will be inserted into the award in the following terms:
"While the parties are attempting to resolve the matter the parties will continue to work in accordance with this award and their contract of employment unless the employee has a reasonable concern about an imminent risk to his or her health and safety. Subject to relevant provisions of any State or Territory occupational health and safety law, even if the employee has a reasonable concern about an imminent risk to his or her health or safety, the employee must not unreasonably fail to comply with a direction by his or her employer to perform other available work, whether at the same enterprise or another enterprise, that is safe and appropriate for the employee to perform."
3.5 Recognition and Duties of Employee Representatives
I reject the MTFU's argument that clauses 3.5.1 and 3.5.2 fall within the scope of s.89A(6) by forming part of the dispute settling procedure. The provision does not parallel clause 11 in the hospitality decision which provides for a paid entitlement of employees attending stop work meetings. The role of shop stewards can form part of certified agreements on a workplace level. In reaching my decision I have had regard to the Commonwealth Bank of Australia Officers Award Case decision as relied on in the hospitality decision (p.5):
"The list of allowable award matters is comprised of concepts of particular kinds of award benefits and conditions of employment. The construction of Section 89A(2) demands that each concept be given a meaning consistent with the use of the concepts in industrial relations practice in Australia. In its context, section 89A is not a provision for which there is a need for either a restrictive or a generous construction. The terms in it are to be given their ordinary meaning in regard to industrial relations usage.
Most of the allowable award matters listed are industrial concepts formulated around entitlements and conditions of employment ubiquitously the subject of award provisions in State and Federal industrial jurisdictions. Even within the standard award concepts, the formulation of an award provision covering employment entitlements and conditions has long allowed room for craft and drafting skills. Conceivably, some conditions of employment could be formulated in sufficiently various ways to bring the conditions within one, another, or more than one of the allowable award matters. The categories of allowable award matters are not mutually exclusive. However it is generally the case that established award provisions are of a sufficiently standard content and form to be identifiable as coming within one or occasionally, more of the allowable award categories, or as not coming within the category at all." [(1997) 74 IR 446 at 458-9]
In my view a role for shop stewards is not an adjunct to the dispute settling procedure, although a clause arguably could be constructed which recognises the representation role of shop stewards within the hierarchy of representation provided for in the clause (see hospitality decision p.67 which indicates that representation is an allowable matter under dispute settling procedures (s.89A(2)(p)). However, clauses 3.5.1 and 3.5.2 do not fall within this characterisation.
I am prepared to find however, that clause 3.5.3 is consistent with the hospitality decision (see p.28 and p.69) where the posting of the award in the workplaces is permitted. Clause 3.5.3 is within the scope of s.89A(6). It will be inserted into the award.
Clause 3.5.4 is an clause providing for right of entry for trade union officials. It is not an allowable matter as the hospitality decision makes clear (see p.28). Section 285G of the Act provides the only power available to be exercised governing right of entry.
Part 4 Employment Relationship
4.1 Employee and Employer Duties
Clauses 4.1.1 and 4.1.2 are consent provisions. The parties also consent to the wording of clause 4.1.3 but both ACCI and the Commonwealth submit the clause is not allowable. The principle of the clause is consistent with clause 19.3 of the Hospitality Award. It comes within the scope of s.89A(6) as it is incidental to and necessary for the effective operation of the award classification structure (s.89A(2)(a)).
The clause will be in the following terms:
"4.1.1 An employer may direct an employee to carry out such duties as are within the limits of the employee's skills, competence and training consistent with the classification structure of this award provided that such duties are not designed to promote de-skilling.
4.1.2 An employer may direct an employee to carry out such duties and use such tools and equipment as may be required provided that the employee has been properly trained in the use of such tools and equipment.
4.1.3 Any direction issued by an employer under this clause is to be consistent with the employer's responsibilities to provide a safe and healthy working environment."
4.2 Employment Categories
4.2.1 Probationary Employment
This issue was not addressed in the hospitality decision. The parties agree to the wording of this provision which is opposed by ACCI and the Commonwealth as not being a "type of employment" under s.89A(2)(r) but a "phase within a type of employment". I note that s.89A(2)(r) is not exhaustive but illustrative in its scope. However, I do not need to finally conclude whether or not the clause falls under s.89A(2)(r) because I am satisfied on the submissions made by the parties that the provision falls under s.89A(6). I agree with the MTIA that there can be no distinction of substance between clause 4.2.1 and clause 4.2.5 Employment for Specified Period of Time or Specific Task or Tasks. It is agreed that clause 4.2.5 is allowable. Clause 4.2.1 will be included in the award in the following terms:
"4.2.1(a) An employer may initially engage a full-time or part-time employee for a period of probationary employment for the purpose of determining the employee's suitability for ongoing employment. The employee must be advised in advance that the employment is probationary and of the duration of the probation which can be up to but not exceed three months.
4.2.1(b) A probationary employee is for all purposes of the award a full-time or part-time employee.
4.2.1(c) Probationary employment forms part of an employee's period of continuous service for all purposes of the award, except where otherwise specified in this award."
4.2.2 Full Time Employment
4.2.3 Casual Employment
4.2.4 Part-time Employment
4.2.4(b)(iii)
This is a facilitative provision subject to the safeguards in clause 2.2.2 (Facilitation by Individual Agreement).
4.2.5 Employment for a Specific Period of Time or a Specific Task or Tasks
These matters fall under s.89A(2)(r). They are consistent with the hospitality decision (p.13 and Appendix D, p.68).
4.2.6 Apprentices
The Commonwealth opposed a number of provisions relating to apprentices and training being included in the award. ACCI also expressed reservations on the allowability of matters contained in these clauses having regard to the Act.
Before turning to clauses dealing with apprenticeships and training I make reference to the hospitality decision which was relied upon by both the parties and interveners to support their respective positions on the provisions contained in clauses 4.2.6 and 5.2. Despite such reliance it was generally recognised that given the terms of the Hospitality Award the issue of training was not exhaustively examined and determined in respect of the scope of s.89A. The relevant comments made in the decision state:
"37. Training
The employers asked us to delete this clause on the basis that training is not an allowable award matter. The LTU consented to its deletion but on the basis that the provision is obsolete, dealing with a training program which no longer exists. We do not accept that training can never be the subject of award prescription. For example, clauses 37.4 and 37.5 are allowable because they make provision for rates of pay and other benefits which are clearly allowable matters. Nevertheless, we have decided to delete the whole of the clause because it is obsolete. In any case where training is said to be an allowable award matter, careful examination of all of the circumstances will be required." (p.27)
On the basis of this statement I conclude that:
· there may be award provisions relating to training
· the terms of these provisions have not been exhaustively defined by the hospitality decision
· whether or not a training provision is allowable will be determined after a careful examination of all the circumstances
I have applied this approach to the various clauses, or parts thereof, which are said to contain a training element.
In opening, both the MTFU and MTIA submitted each provision in the new clause 4.2.6 is allowable or falls within the scope of s.89A(6). The MTIA supported the detailed submissions of the MTFU made in reply to the Commonwealth and ACCI's submissions. The Commonwealth and ACCI opposed those aspects of the clause which were not directly based on the list of allowable matters in s.89A(2).
The issue of proposed apprenticeship provisions in the new award must be viewed against the following factual background:
· The apprenticeship provisions represent a substantial revamping of clauses 14A, 14B and 14C of the current award:
"The commission would be aware of the major simplification of this clause which the parties had undertaken by agreement. When one compares this to the changes to the apprenticeship provision in the Hospitality Award, the scale of the exercise the parties have undertaken can be appreciated. Given the long history and the deep traditions associated with apprenticeship in this industry, this is a major achievement...Clause 14A has been made much more flexible with opportunities for new apprenticeship introduced. Clause 14B has been simplified and all the details of the contract of training have been removed, as these will be defined under state law.
The concept of a contract of training has been extended to the include training agreements, which are proposed under new apprenticeships. The requirement to receive the training in the agreement, which is the basis for the apprenticeship discount wages, has been retained in a simplified form. Clause 14C has been simplified to remove the Australian Industrial Relations Commission as an apprenticeship authority, as this may not have been allowable. 14D, has been simplified considerably. Clause 14E has been retained. Clause 14F has been deleted as unnecessary detail. 14G has been deleted, as it is not likely to be allowable. However, a simplified provision which is directly related to the delivery of the training has been retained. Clause 14H, the provisions relating to the period of apprenticeship have been simplified, consolidated, and flexibility provided for. Clause 14I, the provision for probationary period has been simplified and unnecessary detail has been removed. Clause 14J, has been simplified into the wages clause.
Clauses 14K and L have been retained. Clause 14M has been simplified. Clause 14N has been deleted as obsolete. Clause 14O has been retained and modernised. Clause 14P has been simplified, as has Clause 14Q. Clause 14R, has been deleted as unnecessary detail, and Clause 14S has been retained. Clause 14A, subparagraphs (a), (c), (e) and (g) have all been deleted, and Clause 15A to Q - all those subsections have also been deleted." (Tpt pp.313/4)
· Section 96 and s.152 of the Act have relevance in determining the statutory limitations upon apprenticeship matters in an award (see also s.111AAA of the Act).
· A separate scheme of the Act governs the requirements relating to apprenticeship matters in the certified agreements (s.170LZ).
· To be included in an award the proposed apprenticeship provisions must be allowable or within the scope of s.89A(6).
· Two levels of apprenticeship training coexist or will shortly coexist:
1. A new national training framework and new apprenticeships have been introduced with the following key features:
_ changes to the state legal framework
_ apprenticeships will be characterised by an industry approved qualification from within an endorsed training package
_ the nature and training agreement will define the nature of the employment and training arrangement including:
_ basis for variation of termination
_ requirement to attend and have access to training and appropriate work
_ minimum, maximum and nominal length of the training agreement
_ An agreement entitled "National Training Reforms on Apprenticeships" sets out the new training package adopted by the states (exhibit O17).
2. The state of New South Wales will maintain the existing apprenticeship scheme, having dissented from the above report.
· However, the parties submit that the award provisions:
_ meet the requirements of s.96 in that they take into account state laws
_ do not contain detail of the training regulation but provide "the necessary definitions and linkages" (see eg., cl. 4.2.6(1) and (2), subclause (d), (e), (f), (g), (h), (i) and (k)).
"...are all provisions which are consistent with the linkages and reference back to the basic defining characteristics of the existing and new systems and are necessary for apprenticeship rates, types of employment and skills career path." (Tpt p.320)
· The Commonwealth and ACCI submit that the offending provisions are not allowable and the operation of the training package at a state level should be administered by the relevant vocational and educational authority and the award should regulate conditions of employment.
Against that general overview I turn to a consideration of the specific provisions of clause 4.2.6.
The first paragraph of 4.2.6(a) states:
"4.2.6(a) The terms of this award will apply to apprentices, including adult apprentices, except where it is otherwise stated or where special provisions are stated to apply. Apprentices may be engaged in trades or occupations provided for in this clause where declared or recognised by an Apprenticeship Authority."
The parties argued that the terms of this provision are consistent with the terms contained in clauses 16.4.1, 16.4.4 and 16.4.5 of the Hospitality Award where there is a direct description of the trades to which the award clause applies. The limitation of trades in clause 4.2.6(a) is said to be consistent with the limitation in the Hospitality Award definition of apprenticeship. The proposed limitation on trades in clause 4.2.6(a) is the trade or occupation recognised under state laws (and as such is consistent with the requirements of s.96). It was also submitted that this provision is necessary to ensure that the nature of apprenticeship qualifications and training are treated in a parallel fashion to the other classifications in the award structure.
The Commonwealth argued that the only definition of apprenticeship which should be inserted into the award is one that is designed to ensure that apprentices are employed in accordance with arrangements approved in the training system.
I am satisfied that the first paragraph of clause 4.2.6.(a) is an allowable matter under s.89A(6), as this is incidental to and necessary for the operation of the classification structure and is not inconsistent with the hospitality decision. Having thus determined I do not intend to pursue the Commonwealth's alternative definition.
The paragraph will be included in the award.
The second paragraph of clause 4.2.6 (a) states:
"An employer shall not employ an unapprenticed junior in a trade or occupation provided for in this clause. Leave is reserved to employer organisations respondent to this award to seek to vary this provision if such limitation is removed from State legislation in a particular State or States. In such proceedings, Section 96 of the Workplace Relations Act 1996 will be taken into account."
The MTFU argued this clause should not be characterised as limiting the proportion of junior employees to adult employees (see Hospitality Award 16.4.8(b) decision p.71), but was a reflection of the limitation imposed by state law: it is designed to have regard to state laws.
I disagree with the Commonwealth and ACCI that this award provision is an example of a limitation on employment in particular classifications which is not an allowable matter (s.89A(4)). Clause 4.2.6(b) makes clear the relationship between state law and the award and confusion may arise if it is not reflected in the award. It falls under s.89A(6). However, I agree with the Commonwealth and ACCI that the wording is inappropriate. The new paragraph will read:
"Subject to appropriate state legislation an employer shall not employ an unapprenticed junior in a trade or occupation provided for in this clause".
4.2.6(b) Operation of State Laws
This clause states:
"In any State in which any statute or regulation relating to apprentices is in force, that statute and regulation will operate in that State provided that the provisions of the statute or regulation are not inconsistent with this award in which case the provisions of this award will apply."
The Commonwealth and ACCI argued for the deletion of the clause because it states the law. The parties disputed the role of the clause submitting that the total terms on which apprentices are employed are found in the state law as well as the award. The MTIA stated:
"Similarly, because of lack of uniformity amongst the states and because of the importance of maintaining national training standards that will guarantee national portability, we have deemed it appropriate to include 4.2.6(b) and (c). Until the states get their act together, so to speak, and state regulation of relevant training arrangement is consistent with the industry's requirements, the parties to the award propose to continue to exercise some control. Hopefully these provisions will only be interim" (Tpt p.27)
I have formed the view that there is a need to state the relationship between the legal instruments governing the terms on which apprentices are employed.
It follows the clause is consistent with s.89A(2)(a) and/or (c) and s.89A(2)(r), but if I am wrong in this regard, I am satisfied it falls within the scope of s.89A(6) as incidental to and necessary for the operation of those provisions.
Clause 4.2.6(c) states:
"4.2.6(c) (i) Where it is consistent with State Legislation, an apprentice may be engaged under a Training Agreement approved by an Apprenticeship Authority, provided the qualification outcome specified in the Training Agreement is consistent with that established for apprenticeship in the trade training package determined from time to time by the Metal, Engineering and Related Services Industry Training Advisory Body (MERSITAB) and endorsed by the National Training Framework Committee or, is consistent with the electrical trades qualification established for apprenticeship from within a Utilities ITAB Training Package endorsed by the National Training Framework Committee.
(ii) Subject to subclause 4.2.6(a) an apprenticeship may be undertaken in any of the following trades:
(1) Engineering Tradesperson (Mechanical)
(2) Engineering Tradesperson (Fabrication)
(3) Engineering Tradesperson(Electrical/Electronic)
(4) Higher Engineering Tradesperson
For the trade of Higher Engineering Tradesperson the following will apply:
(A) the period of the apprenticeship will be four years or such other period as is approved by an Apprenticeship Authority on the basis of an approved competency based training program.
(B) apprentices in their first, second and third years are to be paid at a rate equivalent to that applying to an apprentice engineering tradesperson.
(C) apprentice higher engineering tradespersons in their fourth year are to be paid a rate of 88% of the C8 rate.
(D) the classification on completion of apprenticeship will be as a minimum C10. Where the apprentice is offered employment at the completion of their apprenticeship and such employment is in the area of the apprenticeship training, such that they are exercising or will be required to exercise the skills and knowledge gained during their apprenticeship necessary for a C8 level of work they shall be classified at C8.
(E) the training program for each apprentice is to be consistent with the minimum training requirement for the classification of C8 special class tradesperson and is to have an off the job training structure of 6 core modules, 10 stream modules and 14 elective modules.
(5) Electrical Trade
(6) Electronic Trade
(7) Instrument Trade (Industrial/Scientific)
(8) Farrier
(9) Moulding and/or coremaking - Jobbing trade
(10) Refrigeration/Airconditioning (Mechanic)
(11) Shipwright
The parties are examining the trades in the following list with a view to reducing the number of trades listed.
(12) Boilermaker and/or structural steel tradesperson, and/or welder -1st class.
(13) Brass finisher (except the making of parts by specialised processes and the assembling thereof).
(14) Electrical fitter and/or armature winder (except winding of armatures by specialised processes).
(15) Electrical mechanic.
(16) Electroplater - 1st class.
(17) Engraver - hand (New South Wales only).
(18) Engraving machinist (New South Wales only).
(19) Fitter and/or turner.
(20) Locksmith - making and/or repairing locks including those of safes and strong room doors but not including the making of parts by specialised processes and the assembling thereof.
(21) Machinists - 1st class and 2nd class.
(22) Motor mechanic.
(23) Patternmaker.
(24) Safe and strong room maker.
(25) Scale maker (except the making of parts by specialised processes and the assembling thereof).
(26) Scientific instrument maker.
(27) Sheet metal worker - 1st class
(28) Smithing - Blacksmith, Copper and/or brass smith.
(29) Spinner - 1st class.
(30) Welder - special class.
(31) Window frame fitter.
(32) Tradesperson, radio.
(33) Silverplate tradesperson (New South Wales and South Australia only).
(34) Drop hammer stamper who puts in die and makes force (New South Wales and South Australia only).
(35) Telegraph mechanic and/or serviceperson.
(36) Plumber.
(37) Plant mechanic (New South Wales only)."
The Commonwealth submitted that subparagraphs (i) and (ii) of the clause should be deleted as the conditions which must be met by apprenticeships are the responsibility of the training system, the proposed clause is a training issue and as such non allowable.
The MTFU submitted the clause describes the two streams of apprenticeship namely, the old vocational stream and the new apprenticeships based on increased flexibility consistent with aspects of the award simplification process.
The MTFU argued that in the absence of defining the declared vocations in clause 4.2.6(c)(i) "there would be no way of defining what sort of apprentice is entitled to (be) paid at the discounted rate under the award". (Tpt p.323)
In respect to clause 4.2.6(c)(i) the MTFU submitted:
"Under these new apprenticeships, the degree of regulation at a state level is dramatically reduced. There is no specific curriculum for example. It is essential so that this cause can be enacted that there be a training agreement, because this is the only place that the nature of the apprenticeship wage rate is to operate - that is why the trainee agreement is referred to in 4.2.621 (sic). Without this a person could be employed in something which was claimed to be an apprenticeship, but would not meet the minimum protections ministers and the industrial parties have agreed should apply. These protections are existing award provisions. This clause also specifies that the appropriate qualification by reference to the appropriate training package for the industry. This is an essential part of the specification and skills-based career path in the industry, and it is also necessary under the new apprenticeship to defining what apprenticeship the apprenticeship wage rate is applicable to. Therefore, necessary to the outcome of matters in Section 89SA2(a) (sic) or (c), and this is also essential to the nature of the apprenticeship which is a type of employment, Section 89A(2)(r).
It should be noted that this clause is identical in its format to the provision in the National Training Wage Award, which was inserted by variation under the present act." (Tpt pp. 323/4)
I accept that this provision is within the scope s.89A(2)(a) and (c) of the Act and it is also incidental to and necessary for the nature of apprenticeships, which is a type of employment pursuant to s.89A(2)(r).
4.2.6(c)(ii) 4 (A-E) Higher Engineering Tradespersons
The Commonwealth and ACCI submitted that (A) provision which deals with a term of the apprenticeship should be deleted. It is agreed that (B), (C) and (D) should be retained since they deal with wages and classification matters and therefore are allowable. However, the Commonwealth submitted they should be incorporated as part of clause 5.3 which deals with apprentice rates of pay (consistent with hospitality decision p.40/1).
B,C,D will be included in the award but will not be incorporated into clause 5.3 as proposed by the Commonwealth because of the integrated nature of the provision.
In relation to clause 4.2.6(c)(ii)(4)(A) the parties submitted the duration of the apprenticeships goes beyond a training matter because it relates directly to the underpinning for the discounted wage rates to apply to apprentices by specifying the period over which those rates will be paid. I concur with the view that this provision is incidental to and necessary for the effective operation of apprenticeships which is a type of employment under s.89A(2)(r).
Clause 4.2.6(c)(ii)(4)(E) is opposed by the Commonwealth and ACCI on the basis it is a training matter and therefore not allowable. The MTIA argued that the clause contains the only apprenticeships which apply to the discounted rate: it is the award not the training system which provides the access to the award rates. I am satisfied the clause provides the basis upon which the apprenticeship rates are determined. As such it is incidental to and necessary for the effective operation of the wages and classifications clause allowable under s.89A(2)(a). Clause 4.2.6(c)(ii) will be included in the award. The word "also" will be inserted between "may" and "be undertaken" to make clear the alternative definitions of apprenticeship in clause 4.2.6(c)(i) and (ii).
4.2.6(d)
"Apprenticeship Authority shall mean:
(i) In New South Wales the Commissioner of Vocational Training appointed under the Industrial and Commercial Training Act 1989, the Vocational Training Board constituted under the Act or the Industrial Relation Commission established by the Industrial Relations Act 1966.
(ii) In Victoria the State Training Board of Victoria.
(iii) In Queensland the State, Training Council of the State of Queensland Vocational Education, Training and Employment Commission.
(iv) In South Australia the Accreditation and Registration Council.
(v) In Tasmania the Training Authority of Tasmania."
As indicated under 4.2.6(a), I have declined to adopt the Commonwealth's definition of apprenticeship. This provision is allowable pursuant to s.89A(6). In the hospitality decision a linkage is made between apprentices and state authorities (see cl. 15.4.3, 15.4.4).
4.2.6(e)
"In order to undertake trade training in accordance with 4.2.6(c) a person must be a party to a contract of apprenticeship or a training agreement in accordance with the requirements of the Apprenticeship Authority or State legislation. The employer shall provide and/or provide access to, training consistent with the contract or training agreement without loss of pay."
There is no objection to the provisions of this clause which provide for:
· paid leave for training purposes
· the employer to provide or provide access to training consistent with the contract of training agreement without loss of pay
However, the Commonwealth argued that parts of this clause should be deleted on the basis they are training issues and not allowable. It submitted that the regulation of contracts of training is the responsibility of the training system.
The MTFU disputed the reasoning of the Commonwealth submitting that the essence of the clause is not about training but providing the basis upon which the appropriate classification or pay rate applies to an apprentice in the industry. It allows for payment during training. As such it is allowable.
I am satisfied this provision is allowable as it is incidental to and necessary for the effective operation of the award, namely, a type of employment which is part of the award.(s.89A(2)(r)).
4.2.6(f)
"An Apprenticeship may be cancelled or suspended only in accordance with the requirements of the contract of apprenticeship or training agreement and the requirements of State legislation and the Apprenticeship Authority."
The Commonwealth supports the deletion of this provision on the basis that it is not allowable and that the issues of conditions for the cancellation or suspension of apprenticeships are matters to be decided within the training system. The MTFU argued a link exists between this provision and clause 4.2.6(j) (second sentence), namely, the basis of which the exemption from termination and redundancy provision occurs in that apprenticeship is a type of employment under the Act under which protection is provided by the award, the Act and state legislation (for the period of the contract).
Given this integration I am satisfied that the clause is incidental to and necessary for the effective operation of the award (s.89A(2)(r), (n), (m) and (c)).
4.2.6(g)
"The probationary period of an apprentice shall be as set out in the training agreement or contract of apprenticeship consistent with the requirement of the apprenticeship authority and with State legislation but shall not exceed three months."
The Commonwealth sought the deletion of this clause on the basis that probationary employment is not allowable and that it is an issue dealt with by the training system. I have already determined probationary employment is allowable in the context of this award.
I am satisfied it has work to do in defining a limit on probation particularly given recent Victorian legislation which does not define the probationary period.
I am satisfied that the clause is incidental to and necessary for the effective operation of the clause.
4.2.6(h)
"Apprentices attending technical colleges or schools or registered training organisations or TAFE and presenting reports of satisfactory conduct shall be reimbursed all fees paid by them."
This clause is allowable under s.89A(2)(j) and will be included in the award.
4.2.6(i)
"The employer shall ensure that there are sufficient skilled tradespersons employed to ensure apprentices are able to satisfy the requirements of their training including on-the-job training and experience."
The Commonwealth opposed this clause on the basis it was not an allowable matter and relied on s.89A(4)(a) which states:
"The Commission's power to make or vary an award in relation to matters covered by paragraph 2(r) does not include:
(a) the power to limit the number or proportion of employees that an employer may employ in a particular type of employment; or"
It relied also upon the hospitality decision (p.72)
The parties argued that the provision is necessary to ensure that the conditions of employment are such that the training agreement can be delivered. This is distinguishable from the specification of quotas and ratios found in the Metal Industry Award.
I do not accept that this is an allowable matter either under s.89A(4) or s.89A(6). I accept the submission of the Commonwealth that under the reform of the vocational education and training system there is a provision which ensures the ability of the employer to comply with the training contract or agreement (see examples cited in exhibit C2). This clause will not be included in the award.
4.2.6(j)
"Except as provided in this clause or where otherwise stated all conditions of employment specified in the Award shall apply to apprentices. Notice of termination and redundancy provisions shall not apply to apprentices. The ordinary hours of employment of apprentices shall not in each enterprise exceed those of the relevant tradesperson."
There is no opposition to the insertion of this clause into the award which is allowable pursuant to s.89A(6).
4.2.6(k)(i)
"(i) Subject to 4.2.6(n) the period of apprenticeship shall be four years."
On the basis of the reasoning applied in respect of clause 4.2.6(c)(ii)(4)(A), I accept this provision is incidental to and necessary for the effective operation of the wages classification based on discounted wages.
4.2.6(k)(ii) and (iii)
"(ii) The period may be varied with the approval of the Apprenticeship Authority provided that any credits granted shall be counted as part of the apprenticeship for the purpose of wage progression under clause 5.3.
(iii) Further, the period may be varied to such other period as is approved by an Apprenticeship Authority on the basis of an approved competency based training program."
I accept that, in the context of a wage clause based on progression the period to which the progression relates must defined. This is an integrated clause which is incidental to and necessary for the operation of competency based wage progression. It thus falls within the scope of s.89A(6).
4.2.6(k)(iv)
"(iv) The wage rates mentioned in clause 5.3 may be varied with the approval of the relevant parties to this Award according to the apprentice affected, and the relevant apprenticeship authority to allow for progression between wage levels based on the gaining of agreed competencies and/or modules instead of the year of the apprenticeships. For example the appropriate proportion of the minimum training requirement associated with the year of the apprenticeship could only be used to identify progression from one percentage rate to the next."
This provision is not opposed. It is allowable pursuant to s.89A(2)(c) (cl. 15) and meets the requirements of Item 49(8)(c) and (d).
4.2.6(l)
"No apprentices under the age of 18 years shall be required to work overtime or shift work unless they so desire. No apprentice shall, except in emergency, work or be required to work overtime or shift work at times which would prevent their attendance in training consistent with the contract or training agreement."
This provision is not opposed. It is consistent with the hospitality decision.
4.2.6(m)
"No apprentice shall work under a system of payment by results."
This provision is not opposed. It is allowable under s.89A(2)(c) or s.89A(6).
4.2.6(n) Lost Time
"Apprentices are required to serve an additional day for each day of absence during each year of their apprenticeship, except in respect of absences due to annual leave or long service leave. The following year of their apprenticeship does not commence until the additional days have been worked. However, any time that has been worked by the apprentice in excess of their ordinary hours shall be credited to the apprentice when calculating the amount of additional time that needs to be worked in the relevant year."
The Commonwealth opposed the insertion of this provision on the basis that it is a training matter and as such is the responsibility of the training system. I accept the parties' view that the basis of this clause extends beyond training issues by protecting both the employers' and employees' rights and obligations in respect of payment of the higher rate commensurable with the skill and the experience of the employee.
The provision falls within the scope of s.89A(6) as being incidental to and necessary for the effective operation of the wage rate clause .
4.2.6(o) Transition Provisions
"Any person engaged as an apprentice at the date this award commenced operation shall be deemed to be an apprentice for all purposes of this award until the completion or cancellation of their apprenticeship contract."
This provision is not opposed. It falls within the scope of s.89A(6).
4.2.6(p)
"To provide for genuine career path development ,in selecting adult apprentices the employer should first consider applicants who are currently employed by the employer."
The Commonwealth argued this clause should be deleted because it is not allowable and could not be characterised as necessary for the operation of career based skill paths. I accept this argument. It is a matter best dealt with at the workplace or enterprise level. It will not be included in the award.
4.2.6(q)
"Where an employer proposes to employ adult apprentices there shall be consultation in accordance with clause 3.1 in respect to any effect on the number of junior apprentices traditionally employed at that enterprise."
The Commonwealth argued that this clause should be deleted on the basis that neither consultation nor the subject matter of the consultation is allowable. I have already decided in favour of a specific clause 3.1. However, I do not agree that this clause is allowable having regard to the terms of s.89A(4) or that it is incidental to and necessary for the effective operation of the award clauses governing apprenticeships. It may be implemented at the workplace level.
In conclusion the provisions governing apprenticeships are based on new apprenticeship arrangements and provide a portability and mobility across states. They will require consistent monitoring to ensure they properly reflect changing state laws and are adapted to delete provisions which may be of a transitional or interim nature. I also note that submissions were made by a number of parties which draw comparisons with the National Training Wage Award 1994 [Print P2730]. In light of submissions made by the Commonwealth and ACCI foreshadowing a review of the award to meet award simplification requirements, I have not placed weight upon any submissions seeking to rely on the terms of this award.
4.2.7 Trainees
4.2.8 Unapprenticed Juniors
These matters fall within the scope of s.89A(2)(r) and are consistent with the hospitality decision. They will be inserted into the award.
4.3 Termination of Employment
4.3.1 Notice of Termination by Employer
4.3.2 Notice of Termination by Employee
4.3.3 Summary Dismissal
4.3.4 Time off during notice period
This clause was substantially amended by the parties in light of the hospitality decision. The final wording is reflected in exhibit O14. As framed it is consistent with the relevant provision (cl. 17) in the Hospitality Award and meets the requirement of s.89A(2)(m) and (n) and s.89A(6). It is consistent with the hospitality decision (p.17 and Appendix D, p.67). It will be inserted into the award.
4.4 Severance Pay
4.4.1 Severance Pay Entitlement
This clause is consistent with the hospitality decision (p.16 and Appendix D. p.67) and falls within the scope of s.89A(2)(m). It will be included in the award.
4.4.2 Transmission of Business
This clause is consistent with the hospitality decision (p.8) and falls within the scope of s.89A(6). However for reasons given by the parties this clause will remain as part of Part 4 rather than being transferred to clause 1.7 (see p.9 of hospitality decision).
4.4.3 Employees Exempted
4.4.4 Employers Exempted
4.4.5 Incapacity to Pay
4.4.6 Alternative Employment
These provisions are within the scope of s.89A(2)(n) and s.89A(6). They reflect test case provisions and are consistent with similar provisions which were found to be allowable by the hospitality decision (p.67).
4.4.6(b)
MTIA seeks an additional clause:
"Regardless of 4.4.6(a) above in the event that an employer and an employee agree that acceptable alternative employment has been obtained for the employee and on the severance pay, if any, to be provided then the agreed arrangements may be implemented without the involvement of the Commission."
I reject this clause for the following reasons:
· it is tantamount to opting out of an award entitlement and fails to meet the definition of facilitative clause which must include the framework within which agreement can be reached
· its merit was not fully justified in light of the circumstances of the industry
· there was no evidence led to the effect that the provisions in clause 4.4.6(a) has placed an onerous pressure on employers or has inhibited mutually beneficial and flexible outcomes
· applications have been made to vary the Termination, Change and Redundancy Test Case provisions. Those matters will be dealt with by a Full Bench. It is open to the MTIA to pursue an application in those proceedings.
4.4.7 Employee Leave during the Notice
4.4.8 Time off During Notice Period
These provisions are consistent with clauses in the hospitality decision and allowable pursuant to s.89A(2)(m), (n) and s.89A(6) and will be inserted into the award.
4.5 Absence from Duty
4.6 Standing Down Employees
4.7 Abandonment of Employment
Clause 4.6 is an allowable matter and consistent with the hospitality decision. Clauses 4.5 and 4.7 were not addressed in the hospitality decision.
No party or intervener argued that these agreed matters are not allowable. I am satisified they are allowable pursuant to s.89A(2)(n) and s.89A(2)(c) or s.89A(6). They are current award provisions and will be included in the new award.
Part 5 Rates of Pay and Related Matters
5.1 Classification and Rates of Pay
5.1.1 Rates of Pay for Adult Employees
5.1.2 Classification Definitions and Skill Based Career Paths
These clauses are allowable under s.89A(2)(a) and (c) or s.89A(6) and are consistent with the hospitality decision and will be inserted into the award.
5.1.3 Procedure for Classifying Employees
5.1.3(a), (b), (c), (d), (e) and (f)
This clause has been amended in light of the hospitality decision to delete former clause 5.1.3(g) (exhibit B1) which fell into the category of an objective or philosophy rather than establishing an entitlement (see hospitality decision p.8). The parties have also agreed to delete Schedule G (Implementation Guide for Competency Standards in the Metal and Engineering Industry) as forming part of the award.
It is the parties' contention however, that a reference to this guide should be allowed to form part of the award given the guide's central importance to the operation of the classification structure.
The new clause 5.1.3 must be considered against the background of deleting the schedule as an award provision. The parties contend that the reformatted clause 5.1.3 is consistent with the thrust of clause 3.8.2(a) and (b) of the Hospitality Award which refer to similar external processes under the direction of an industry training advisory board and the impact on the classification structure.
The Commonwealth and ACCI oppose the insertion of 5.1.3 into the award because it deals with non allowable matters and is inconsistent with Item 49(7). The Commonwealth stated in exhibit C1:
"If the Commission is persuaded to continue the clause (or parts thereof), in the Commonwealth's view it would be essential to identify what is uniquely different about the Metal Industry Award (or the present circumstances affecting the award) to justify its inclusion, either on a temporary or ongoing basis."
I have formed the view that the parties have met this requirement as demonstrated through the evolution of the clause and the work the clause is required to do in providing a link between competency standards and their implementation consistent with the Guide. I also accept that the intent of clause 5.1.3 is not inconsistent with the intent of clauses 3.8.2(a) and (b) in the Hospitality Award which the Full Bench has found is allowable. I have also taken into account the finding of Commissioner Simmonds in Print N8926:
"In their submissions the parties agreed the application dealt with an allowable matter pursuant to s.89A(2) or was incidental to such a matter and necessary for the effective operation of the award pursuant to s.89A(6). The particular allowable award matter was that specified in s.89A(2)(a), namely the provision of classifications of employees and skill-based career paths." (p.8)
Nothing in subsequent decisions including the hospitality decision challenge this finding.
5.1.3(g) Board of Reference - Competency Standards Implementation
The hospitality decision rejected the inclusion into the award of a general clause establishing a Board of Reference (p. 11/12). Clause 5.1.3(g) Board of Reference Competency Standards Implementation is a crucial and established mechanism for dealing with disputes over the implementation of competency standards in the metal industry. The clause is distinguishable from the deleted provision in the hospitality award because it is specific in character and serves a useful purpose. This clause is consistent with the thrust of clause 23.3.6 of the Hospitality Award where a specific board of reference to determine disputes over protective clothing is included. The clause will be included in the award. It falls within the scope of s.89A(2)(p).
5.1.4 Mixed Functions
It is agreed that this provision is allowable consistent with the hospitality decision (p.17 and p.131). The clause will be inserted into the award.
5.2 Training
The Commonwealth supported the deletion of this provision with the exception of those subclauses which directly relate to entitlements which it agrees are allowable matters.
The parties support the inclusion of the clause which is identical to clause 6C in the current award. In doing so they rely upon a decision of Senior Deputy President Watson in the restructuring of the National Metal and Engineering On Site Construction Award 1989 (MECA Restructuring Print P4026) where he found that training clause, in similar terms to the clause now sought, was an allowable matter.
His Honour stated:
"I am satisfied, on the submissions put to me, that the order proposed in the exhibit MTIA 1 falls within the allowable matters prescribed in s.89A. The order seeks to give effect to a new skill based classification structure pursuant to the August 1989 Structural Efficiency Principle. Each of its provisions is directly associated with or is incidental to and necessary for the operation of provisions dealing with the awards before me of classification of employees and skills based career paths. Considered in the context of ordinary industrial usage, I am satisfied that the training provision proposed is incidental to and necessary for the operation of the provisions which give effect to skill based career paths as envisaged by the Structural Efficiency Principle.
I note that in Print N8926, Simmonds C approved supportive provisions, associated with the operation of a skills based classification structure, as allowable matters under the Act.
Whilst I am satisfied that the training provision is an allowable matter on the basis of the submission put to me in the current proceedings, the parties will have the opportunity to more closely examine the application of s.89A to the Award more generally in the context of a s.89A review of the award to be undertaken by a member of the building industry panel".
The clause now sought by the parties (exhibit O14) has been modified in light of the hospitality decision. Training provisions were inserted into the Metal Industry Award as part of the package of proposals identified as providing a basis for the proper operation of the skill based career path which was an objective of the structural efficiency principle. The identification of skills needed within an enterprise, ie., skills `acquired and used' is achieved in a non prescriptive manner through the operation of the provisions in clauses 5.2.1 and 5.2.2. As such it is argued clauses 5.2.1 and 5.2.2 provide mechanisms which "flow from and are incidental to an effective identification of skills needed within the enterprise which is a logical part of the implementation of a skill based classification structure". (Tpt p.372)
Consistent with comments made in the hospitality decision on training I have adopted the approach outlined earlier in this decision namely, the particular context in which training provisions has been examined.
5.2.1
"Following proper consultation in accordance with clause 3.1, which may include the establishment of a training committee, an employer shall develop a training program consistent with:
· the current and future skill needs of the enterprise;
· the size, structure and nature of the operations of the enterprise;
· the need to develop vocational skills relevant to the enterprise and the industry through courses conducted by accredited institutions and providers."
The decision on this clause needs to be addressed in light of my determination on clause 3.1
I am satisfied the terms of 5.2.1 provide an underpinning for the establishment of skill based career paths at the enterprise level. The development of a training program by an employer is an award obligation designed to implement the award's skills based classification structure at the enterprise level. The establishment of a training committee with a specific role is a way of carrying out the obligation. I am satisfied the clause falls within the scope of s.89A(6), ie., it is incidental to and necessary for giving full effect to the award provisions providing for a skills based classification structure (s.89A(2)(a)). Clause 3.1 will relate specifically to this clause (in addition to clauses 2.1 and 2.2).
5.2.2
"Where it is agreed that a training committee be established, the number of employee representatives on the committee should be no less than the number of employer representatives and the committee should have a charter which clearly states its role and responsibilities, for example:
· formulating a training program including available training courses and career opportunities;
· disseminating information on the training program and the availability of training courses and career opportunities for employees;
· recommending individual employees for training and reclassification; and
· monitoring and advising management and employees regarding the on-going effectiveness of the training."
I am not satisfied that the first sentence of clause 5.2.2 can be characterised as incidental to and necessary for the effective operation of the award even if related to clause 5.2.1. Moreover, the "examples" which follow do not meet the requirements of Item 49(7) and are beyond the scope of s.89A(6).
A defined role for the committee reflecting the first, third and fourth dot points may be capable of meeting these tests. The parties are directed to confer on such a clause which can, if appropriate, be dealt with at the time the order is settled.
5.2.3(a)
"Where as a result of such consultation, including with the employee concerned, it is agreed that additional training should be undertaken by an employee, that training may be undertaken either on or off the job. If the training is undertaken during ordinary working hours, the employee concerned shall not suffer any loss of pay. The employer shall not unreasonably withhold such paid training leave. This shall not prevent the employer and employee(s) agreeing to paid leave for other relevant training."
This is an existing entitlement the terms of which are agreed. It is allowable pursuant to s.89A(2)(g). The clause will be included in the award.
5.2.3(b) & (c)
"(b) Any costs associated with standard fees for prescribed courses and prescribed textbooks (excluding those textbooks which are available in the employer's technical library) incurred in connection with the undertaking of training shall be reimbursed by the employer upon production of evidence of such expenditure. Provided that reimbursement may be on an annual basis subject to the presentation of reports of satisfactory progress.
(c) Travel costs incurred by an employee undertaking training in accordance with this subclause which exceed those normally incurred in travelling to and from work shall be reimbursed by the employer."
It is agreed these items constitute reimbursement of allowances which are allowable pursuant to s.89A(2)(j) and are consistent with the hospitality decision (p.19 & p.66). It will be inserted into the award.
5.3 Apprentice Rates of Pay
5.4 Adult Rates of Pay
5.5 Unapprenticed Junior Rates of Pay
5.6 Trainee Rates of Pay
5.7 Payment by Results
These clauses are agreed and are allowable pursuant to s.89A(2)(a) and (c). They are consistent with the Principles enunciated in the hospitality decision and will be included in the award.
5.8 Supported Wage System for People with Disabilities
This clause is consistent with the hospitality decision (p.15) and is allowable pursuant to s.89A(2)(c). It will be inserted into the award.
5.9 Allowances and Special Rates
5.9.1 All Purpose Allowances
5.9.2 Other Allowances
The allowances set out in these clauses represent a substantial restructuring, rewording and deletion of obsolete provisions when compared with the Metal Industry Award. Subject to specific exceptions the parties consent to the allowance clause being inserted into the award. The allowances are agreed to by the parties. They meet the requirements of s.89A(2)(j) or s.89A(6).
The exceptions to this general conclusion which require consideration are:
· 5.9.1(d)(iii)
· 5.9.1(h)
· 5.9.2(b) last sentence
· 5.9.2(f), (g) and (h)
5.9.1(d)(iii)
To fully comprehend this new provision sought by MTIA it must be considered in the context of clause 5.9.1(d)(i) and (ii) which state:
"(i) Except as provided elsewhere in this sub- paragraph tradespersons shall be paid an allowance of $9.60 per week for supplying and maintaining tools ordinarily required in the performance of their work as tradespersons.
(ii) This allowance shall not apply to the following employees:
(1) Employers who had a practice as at 5 November 1979 of providing all tools required by tradespersons or apprentices in the performance of their work. (Such employers are entitled to continue this practice).
(2) Employees covered by clauses 3.3 or 3.4 of Schedule C (concerning the air conditioning industry in Queensland and South Australia)."
The proposed 5.9.1(d)(iii) states:
"(iii) In relation to employers not referred to in 5.9.1(d)(ii)(1), these employers may reach agreement with an individual tradesperson or apprentice to provide all of the tools required by them in the performance of their work. In such circumstances, the tool allowance shall not be payable."
The MTFU opposed the insertion of this provision. I note this provision:
· is facilitative in nature ie., agreement is required
· does not reduce an entitlement since the allowance is in the nature of a reimbursement for supplying and maintaining tools required for performing the work
Subject to this clause falling within the framework of clause 2.2.2 (Facilitation by Individual Agreement) the provision can not be viewed as opting out of an entitlement and sufficient safeguards attach to justify its introduction. The clause will be inserted into the award.
Clause 5.9.1(h) states:
"5.9.1(h) Trainer/Supervisor/Coordinator
It has been agreed in principle that a trainer/supervisor/ co-ordinator who acquires additional accredited technical training which is relevant to the performance of his/her work shall receive additional recognition through a method to be negotiated between the parties."
The Commonwealth and ACCI both opposed the inclusion of this clause in the award on the basis it is a matter of intent (see p.19 hospitality decision and p.71). I agree with this submission. The clause will not be included in the award. I note the commitment of MTIA on page 373 of transcript that reaffirms the intent of the clause.
"5.9.2(b) First Aid Allowance
An employee who has been trained to render first aid and who is the current holder of appropriate first aid qualifications such as a certificate from the St. John's Ambulance or similar body shall be paid a weekly allowance of $9.00 if appointed by their employer to perform first aid duty. Employers shall endeavour to have at least one employee trained to render first aid in attendance when work is performed."
ACCI submitted that the last sentence should be deleted from the clause. The sentence does not fall within the scope of s.89A(6) as being incidental to and necessary for the effective operation of the clause providing for an allowance for a first aid officer. It is in the nature of an objective not an award obligation. This sentence shall not be included in the clause.
5.9.2(f), (g) and (h)
MTFU seeks the insertion of the following allowances:
"5.9.2(f) Protective Clothing and Equipment Allowance
For each employee specified in Schedule C - 4.4, an employer shall make an allowance of protective clothing and equipment to be supplied as stipulated by the relevant law operating in a state or territory covered by this award. If an employer fails to provide the allowance they shall pay the employee an allowance commensurate with the monetary value of the protective clothing and equipment so stipulated.
5.9.2(g) Water Allowance
(i) employers shall make an allowance of boiling water at meal times to employees;
(ii) if an employer fails to provide the above allowances they shall pay employees an allowance commensurate with the monetary value of the water specified in (i) above.
5.9.2(h) Locker Allowance
(i) employers should provide an allowance of lockers or hanging facilities which afford reasonable protection for employees clothes;
(ii) employers may alternatively pay employees an allowance commensurate with the monetary value of the lockers and facilities referred in (i) above to enable employees to provide reasonable protection for their clothes."
Each of these provisions is opposed by the MTIA, the Commonwealth and ACCI as not being allowable, although the Commonwealth submitted that proposed clause 5.9.2(f) could be redrafted having regard to the hospitality decision (p.19).
The hospitality decision states in Principle 8:
"There is no requirement that an award contain provisions in respect of each of the allowable award matters. Claims for new award provisions may be dealt with by application in the usual way under Part VI of the WR Act. Claims for new allowances should be the subject of a separate application unless the principle of the payment of an allowance already exists in the award in relation to the same or a similar entitlement. Even in those cases the form and amount of the allowance must be justified on the merits." (p.33)
On the issue of Amenities the decision stated:
"We have concluded that this clause is not allowable. In substance it requires an employer to provide certain kinds of premises for its work force. The LTU proposed a redrafted clause but we have decided that proposal is not appropriate. The LTU's draft would have had the effect of removing the right to make any deduction for the provision of accommodation where adequate "heating and cooling devices" are not provided. If an inadequacy exists in particular premises application might be made for an allowance to cover the alleged disability." (p.27)
I turn, for convenience firstly to clauses 5.9.2(g) and (h). As constructed these clauses:
· Provide for allowances in kind. The MTFU argues they are justified as allowable pursuant to s.89A(2)(j). I do not agree (see hospitality decision p.19 1st dot point).
· Seek recompense in monetary terms if that allowance in kind is not provided. The amount of the monetary allowance is not specified. It is neither a reimbursement of expenses nor a claim for an ascertainable payment of incurred expenses (see Print P1297 CBOA Full Bench). It is a monetary payment to compensate for the failure to provide a particular amenity at the work place. This is a new concept being introduced into the clauses.
· Do not rectify the actual inconvenience or disability which will occur if the `allowance in kind' is not provided by the employer. In this regard I note the MTIA's submissions on relevant occupational health and safety legislative requirements operating outside the scope of the award.
Proposed clauses 5.9.2(g) and (h) will not be included in the award in the terms sought by the MTFU. However, it remains open to the unions to seek to vary the award in a manner consistent with Principle 8 of the hospitality decision to meet the objective of either or both of the provisions.
In respect of proposed clause 5.9.2(f) Protective Clothing, having regard to:
· the clauses of the Metal Industry Award on which the new clause is based; and
· the hospitality decision's treatment of protective clothing (p.19)
· "we have decided to adopt the substance of the LTU's proposal that clause 41 - Clothing, Equipment and Tools, should be incorporated into the allowances clause. We reject the employers' submission that the existing clause 41.1 is not an allowable award matter. The provision of an allowance in lieu of clothing or services where bona fide and justifiable on the merits is consistent with s.89A(2)(j). The new clause does no more than extend the concept already implicit in clause 41.1; and"
I have formed the view this clause is distinguishable from proposed clauses 5.9.2(g) and (h).
The Full Bench commented:
"The provision of an allowance in lieu of clothing or services where bona fide and justifiable on the merits is consistent with s.89A(2)(j) the new clause does not more than extend the concept already implicit in clause 41.1..." (p19)
Clause 41.1 of the current Hospitality Award states:
"41.1 Where the employer requires any special clothing such as coats, dresses, caps, aprons, cuffs and any other articles of clothing to be worn by the employee they shall be purchased and laundered at the employer's expense. By agreement the employee may be required to wash and iron the special clothing and an agreed sum of money shall be paid to the employee each week by the employer provided that in the event of dispute the amount shall be determined by the Board of Reference."
The clothing, equipment and tool allowance in clause 23 of the Hospitality Award:
"23.3.2 Where the employer requires an employee to wear any special clothing such as coast, dresses, caps, aprons, cuffs and any other articles of clothing, the employer must reimburse the employee for the cost of purchasing such special clothing. The provisions of this clause do not apply where the special clothing is paid for by the employer.
23.3.3 Where the employees is responsible for laundering the special clothing the employer must reimburse the employee for the demonstrated costs of laundering it." (p135)
The concept extended is one of reimbursement for the `demonstrated cost' of providing protective clothing. This concept is distinguishable from clauses 5.9.2(g) and (h) whereby an unspecified monetary amount is sought to be substituted for the failure to provide a locker or boiled water. Under clause 5.9.2(f) protective clothing is not substituted for money. It is provided for by either the employer or by the employee and worn by the employee in accordance with legal requirements.
I agree with the Commonwealth that clause 5.9.2(f) could be redrafted having regard to the Full Bench comments. A new clause 5.9.2(f) will be inserted into the award in the following terms:
"(i) For each employee specified in Schedule C - 4.1 where an employee is required to wear protective clothing as stipulated by the relevant law operating in a state or territory covered by this award, the employer must reimburse the employee for the cost of purchasing such special clothing. The provisions of this clause do not apply where the clothing is paid for by the employer."
5.10 Extra Rates not Cumulative
This clause is allowable pursuant to s.89A(6) and will be included in the award.
5.11 Payment of Wages
5.11.1 Period of Payment
5.11.1(a) states:
"Wages shall be paid weekly or fortnightly, either:
(i) according to the actual ordinary hours worked each week or fortnight; or
(ii) according to the average number of ordinary hours worked each week or fortnight."
This is an agreed clause. It falls within the scope of s.89A(6) and is consistent with the hospitality decision. The MTIA proposes the inclusion of an additional provision:
5.11.1(b) states:
"(i) By agreement between the employer and the majority of employees in the relevant enterprise, wages may be paid three weekly, four weekly or monthly.
(ii) Without detracting from 5.11.1(b)(i), an employer and individual employee may agree to the employee being paid over a different period to the pay period implemented for most employees in the enterprise, provided the period is one referred to in 5.11.1(a) or 5.11.1(b)(i)."
MTFU oppose the wording of 5.11.1(b).
5.11.1(b)(i)
This is a facilitative clause which if introduced may provide greater flexibility at the workplace level and greater convenience to employees. Clause 5.11.1(b)(i) is consistent with the hospitality decision (at p.18) and will be subject to clause 2.2.3 (Facilitation by Majority Agreement). However, given the wide span of facilitation provided by the clause it will also be subject to the additional requirements of clause 2.2.3(c).
This additional protection will not restrict the operation of the clause in non union workplaces.
5.11.1(b)(ii)
Turning to clause 5.11.1(b)(ii), I am satisfied that the insertion of this clause into the award is justified and it will be subject to clause 2.2.2 (Facilitation by Individual Agreement).
5.11.2 Method of Payment
5.11.3 Payment of Wages on Termination of Employment
5.11.4 Day off coinciding with pay day
5.11.5 Wages to be paid during working hours
5.11.6 Details of payment to be given
5.11.7 Absences from Duty Under an Averaging System
Except for clause 5.11.6 each of these provisions are agreed between the parties as being allowable pursuant to s.89A(2)(c) or s.89A(6).
The Commonwealth and ACCI oppose the inclusion of 5.11.6 Details of payment to be given.
The hospitality decision deleted a similar provision (cl. 22.8) from the Hospitality Award on the basis of the requirements set out in Reg. 132B of the Workplace Relations Regulations (p.26). I agree with the Commonwealth and ACCI that this provision is superfluous and it will not be included in the new award. The other clauses will be inserted into the award.
Part 6 Hours of Work, Shift Work, Meal Breaks and Overtime
The provisions in this part simplify current award provisions and introduce greater access to facilitation. It is agreed that the clauses are allowable (s.89A(2)(b) or s.89A(6)) and generally consistent with the hospitality decision. However, the provisions have as their starting point existing entitlements of the Metal Industry Award which differ from the corresponding provisions in the Hospitality Award. The parties disagree on the terms of the proposed clause in respect of a number of key aspects necessitating a review of each subclause. The essence of the differences between the parties is how the appropriate balance should be struck between effecting greater flexibility in the operation of hours of work at the enterprise ensuring no unfairness to employees. I have taken all the material into account including the evidence of Ms. Alcorso and applied the framework to facilitation determined in clause 2.2 Facilitative Provisions.
6.1.1 Ordinary Hours of Work - Day Workers
6.1.1(a)
