[2009] AIRCFB 863 |
|
DECISION |
Workplace Relations Act 1996
s.576H—Commission may vary modern awards
Hair and Beauty Australia Ltd
(AM2009/2)
HAIR AND BEAUTY INDUSTRY AWARD 2010
[MA000005]
JUSTICE GIUDICE, PRESIDENT |
MELBOURNE, 25 SEPTEMBER 2009 |
Award Modernisation.
[1] This decision concerns applications to vary the Hair and Beauty Industry Award 2010 1 by the Advanced Association of Beauty Therapists and Employers Association of Beauty Therapists (NSW) (AM2009/1) and Hair and Beauty Australia Ltd (HBA) (AM2009/2). The award in question is a modern award made during the priority stage of the award modernisation process being conducted by the Commission in accordance with Part 10A of the Workplace Relations Act 1996.
[2] The award is due to come into effect on 1 January 2010. From that date the award will replace a number of awards and Notional Agreements Preserving State Awards (NAPSAs) which currently apply across Australia to the Hair and Beauty Industry.
[3] The variations are generally sought by either the Advanced Association of Beauty Therapists and Employers Association of Beauty Therapists (NSW) or HBA. While there is an element of agreement between these employer groups, this is not the case in all respects. The union which operates in this area, the Shop, Distributive and Allied Employees Association (SDA), made submissions which supported the amendments in some but not all respects.
[4] The amendments sought are of a technical nature concerning the detailed operation of the award and classifications structure. It is convenient to deal with the matters sequentially in this decision.
Apprentices
[5] The amendments sought are as follows:
(a) Amendment to cl.19.1 to insert the word “hairdressing” before the word “apprentices”, including a provision for 4th year apprentices (if applicable) to be paid 90% of the standard rate.
(b) Insertion of an additional minimum rates table in cl.19.1 for beauty therapy apprentices as follows:
Year of apprenticeship |
% of standard rate |
1st year |
45 |
2nd year |
60 |
3rd year |
80 |
4th year (if applicable) |
90 |
[6] The amendments are supported by the SDA. We agree that they more appropriately deal with apprentice minimum rates of pay and will vary the award to reflect the proposed changes.
Diploma Holders
[7] The change sought is as follows:
Amendment to Schedule B replacing cll.B.4 and B.5 with the following:
“[B].4 Hair and Beauty Employee Level 4 means:
a. Beauty Therapist who holds a Certificate IV in Beauty Therapy (or equivalent)
b. a Hairdresser who holds a Certificate IV (or equivalent)
c. a Trichologist who is a hairdresser and holds a Certificate IV in Trichology (or equivalent)
[B].5 Hair and Beauty Level 5 means:
A Beauty Therapist who holds a Diploma in Beauty Therapy (or equivalent).”
[8] An alternative proposal was put forward concerning amendments to Schedule B. The alternative proposal was to maintain the existing classification structure, removing B.5(b) and inserting a new level B.6:
“[B].6 Hair and Beauty Employee Level 6 means a beauty therapist who holds a Diploma in Beauty Therapy (or equivalent).”
[9] The alternative proposal is supported by the SDA and we believe it is a more appropriate method of recognising the additional skills and experience of the holder of a Diploma in Beauty Therapy. We will vary the award in accordance with the alternative proposal. The wage rate for this level was subject to competing positions. In our view the appropriate rate having regard to the existing award relativities, the nature of the study involved and the rates of other awards and NAPSAs is $695.
Definition of Hair and Beauty Industry
[10] The change sought is as follows:
Deletion of the definition of hair and beauty industry in cl.3.1 and replacement with the following:
“hair and beauty industry means
a) performing and/or carrying out of shaving, haircutting, hairdressing, hair trimming, facial waxing, hair curling or waving, beard trimming, face or head massaging, shampooing, wig-making, hair working, hair dyeing, manicuring, eye-brow waxing or lash tinting, or any process or treatment of the hair, head or face carried on, using or engaged in a hairdressing salon, and includes the sharpening or setting of razors in a hairdressing salon;
and/or
b) performing and/or carrying out manicures, pedicures, nail enhancement and nail artistry techniques, waxing, eyebrow arching, lash brow tinting, make-up, analysis of skin development of treatment plans, facial treatments including massage and other specialised treatments such as lymphatic drainage, high frequency body treatments, including full body massage and other specialised treatments using machinery and other cosmetic applications and techniques, body hair removal, including (but not limited to) waxing chemical methods, electrolysis and laser hair removal, aromatherapy and the application of aromatic plant oils for beauty treatments, using various types of electrical equipment for both body and facial treatments.”
[11] The change is supported by the SDA and more fully identifies different elements of the industry. We will make the variation sought.
Pre-apprentices
[12] The change sought is as follows:
Deletion of cll.19.2 and 19.3 and insertion of the following new clauses:
“19.2 The minimum wages payable to a person who is completing (but has not yet completed):
(a) a Commercial Certificate III in Hairdressing (within the definition of the Australian Hairdressing Training Package); or
(b) a Certificate IV in Beauty Therapy (within the definition of the National Beauty Training Package),
through institutional based learning, not being a person who is also completing an apprenticeship, for hours worked that do not form part of the minimum ‘on-the-job’ component of the course as offered by the relevant Registered Training Organisation, shall be one thirty-eighth of the appropriate weekly rate for a 2nd year apprentice, as the case may be, plus a casual loading of twenty-five percent.
19.3 The minimum rate of pay for a person that has completed a Certificate III in Beauty Services, other than a person who is completing or has completed their apprenticeship as a beauty therapist, shall be the following percentages of the wage prescribed for a beautician (Hair and Beauty Employee Level 3):
Percentage per week | |
First 12 months after completion |
80% |
Thereafter |
100% |
Provided that the minimum rate of pay for a person who has completed a Certificate III in Beauty Services (within the definition of the National Beauty Training Package) shall be paid 100% of a beautician (Hair and Beauty Employee Level 3) once the person attains the age of 21.
19.4 The minimum wages payable to a person who has completed:
(a) a Commercial Certificate III in Hairdressing (within the definition of the Australian Hairdressing Training Package); or
(b) a Certificate IV in Beauty Therapy (within the definition of the National Beauty Training Package),
through institutional based learning other than a person who is completing or has completed their apprenticeship as a hairdresser or beauty therapist, shall be the following percentages of the wage prescribed for a hairdresser (Hair and Beauty Employee Level 3) or a beauty therapist (Hair and Beauty Employee Level 4), as the case may be:
Percentage per week | |
First 12 months after completion |
80% |
Thereafter |
100% |
Provided that the minimum rate of pay for a person who has completed a Certificate IV in Beauty Therapy (within the National Beauty Training Package) shall be 100% of a beauty therapist (Hair and Beauty Employee Level 4) once that person attains the age of 21.”
[13] The change is sought because of a concern that the current wording is ambiguous and will create an obligation for training colleges to pay students for on the job training. Such a consequence is contested by the SDA, which also submits that the change will have the effect of reducing rates of pay. We agree that the award does not have the effect contended for by the HBA. The award is an industry award applying to employers who operate in the industry so described in relation to their employees falling within the award’s classifications. In the light of this view we do not see any need for the variation.
Maximum Hours in a Day
[14] The change sought is as follows:
Deletion of cl.27.3 and insertion of replacement clause as follows:
“27.3 Maximum hours on a day
An employee may be rostered to work up to a maximum of nine hours on any day, except that an employee may be rostered to work up to 12 hours on one day per week.”
[15] The change is sought on the basis that the current wording restricts employees working longer hours even if on overtime. This interpretation is misconceived. The award merely governs the working of ordinary hours of work. The longer shift sought is not reflective of existing awards and NAPSAs. We reject this variation.
Short term Apprentice
[16] The change sought is as follows:
“Removal of the words “short term apprentice” from the definition of Hair and Beauty Employee Level 1, in Schedule B.”
[17] We agree that the change is appropriate and will vary the award accordingly.
Conclusions and Order
[18] An order reflecting this decision is issued in conjunction with it. 2
BY THE COMMISSION:
PRESIDENT
1 MA000005.
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