[2009] AIRCFB 896

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AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

DECISION

Workplace Relations Act 1996
s.576H—Commission may vary modern awards

NURSERY AWARD 2010
[MA000033]

JUSTICE GIUDICE, PRESIDENT VICE PRESIDENT LAWLER VICE PRESIDENT WATSON SENIOR DEPUTY PRESIDENT WATSON SENIOR DEPUTY PRESIDENT HARRISON SENIOR DEPUTY PRESIDENT ACTON COMMISSIONER SMITH

MELBOURNE, 9 NOVEMBER 2009

Award Modernisation.

[1] On 31 August 2009, the Australian Federation of Employers and Industries (AFEI) applied to vary the Nurseries Award 2010 1(the modern award) in two respects. First, AFEI sought the inclusion of minimum wages for apprentices. Secondly, AFEI sought to amend the higher duties clause so that an employee engaged for four hours on duties attracting a higher minimum wage would be entitled to payment for the rest of the day at the higher wage. The modern award currently provides that an employee engaged on duties attracting a higher minimum wage for two hours is entitled to the higher wage.

[2] The relevant part of the application reads:

“1. Insert a new clause concerning Apprentices in the following terms, and to renumber accordingly the remaining clauses:

‘Clause 16. Apprentices

16.1 An apprentice, other than as provided in 16.2, must be paid the following percentage of the Grade 4 rate of pay:

Year of apprenticeship	%
1st year	48
2nd year	60
3rd year	75
4th year	90

16.2 A trainee apprentice in New South Wales must be paid the following percentage of the Grade 4 rate of pay:

Year of apprenticeship	%
1st year	58
2nd year	67
3rd year	76
4th year	91

(b) Clause 16.2 will cease to operate on 31 December 2014.’

2. Amend Clause 15.4 Higher Duties to read as follows:

‘An employee engaged for more than four hours during one day on duties carrying a higher minimum wage than their ordinary classification must be paid the higher minimum wage for such day or shift If an employee is so engaged for four hours or less during one day, they must be paid the higher minimum wage for the time so worked.’”

[3] AFEI was the only party to make submissions with respect to the proposed variations.

The claim for apprentice wages

[4] In relation to the application to include wages for apprentices, AFEI submitted that:

• the modern award contains classifications and pay rates for nursery tradespersons, but does not contain classifications and pay rates for apprentices;



• the industrial instruments which currently apply to nursery employees in New South Wales, Victoria, South Australia, Western Australia and Tasmania contain classifications and pay rates for apprentices and the industrial instrument which applies to the employment of nursery tradespersons in Queensland provides for trainee rates of pay;



• the industrial instrument which currently applies to nursery employees in New South Wales also provides rates of pay for trainee apprentices;



• if the modern award does not contain provisions for apprentices there will be unintended and inappropriate consequences; and



• the apprentice rates proposed reflect a balanced approach to setting apprentice pay rates in the modern award based on the current disparity in apprentice pay rates.

[5] The relevant award-based transitional instruments are:

• Nurseries Employees (State) Award (New South Wales); 2



• Agriculture, Forestry and Fishing Industry Sector Minimum Wage Order – Victoria – 1997; 3



• Horticulture Industry (Nursery and Landscape) Award (South Australia); 4



• The Horticultural (Nursery) Industry Award No. 30 of 1980 (Western Australia); 5



• Nursery Award – State 2003 (Queensland);  6



• Plant Nurseries Award (Tasmania). 7

[6] AFEI set out the current apprentice wages, from those instruments, as follows:

Year of Apprenticeship	NSW Indentured Apprentice	Western Australia	Tasmania	Queensland (Trainee)	Victoria	South Australia
	%	%	%	%	%	%
First	55	42	42	50	49.9	50
Second	65	55	55	70	63.1	60
Third	75	75	75	90	79	75
Fourth	90	88	88	100	100	90

[7] We accept that in circumstances where apprenticeships are undertaken in the industry and existing instruments provide for apprentice rates, the modern award should also provide for such rates.

[8] Having regard to the apprenticeship rates in the relevant instruments, we have decided to adopt the proposal advanced by AFEI, save that the weight of regulation supports percentages of 50% for the first year and 63% for the second year. We will adopt the AFEI proposal for trainee apprentices in New South Wales, as a transitional provision.

[9] We will vary the modern award to add the following clauses, with consequent renumbering of other clauses.

“16.1 An apprentice, other than as provided in 16.2, must be paid the following percentage of the minimum wage for Grade 4:

Year of apprenticeship	%
1st year	50
2nd year	63
3rd year	75
4th year	90

16.2 A trainee apprentice in New South Wales must be paid the following percentage of the minimum wage for Grade 4:

Year of apprenticeship	%
1st year	58
2nd year	67
3rd year	76
4th year	91

The higher duties claim

[10] AFEI pointed out that cl.15.4 of the modern award in its current form is contradictory. The clause reads:

“An employee engaged for more than two hours during one day on duties carrying a higher minimum wage than their ordinary classification must be paid the higher minimum wage for such day or shift. If an employee is so engaged for four hours or less during one day, they must be paid the higher minimum wage for the time so worked.” (emphasis added)

[11] We accept that cl.15.4, in its current terms, is contradictory and should be amended. However, we have decided that the period after which higher duties are paid for a full day should be more than two hours rather than the four hours proposed by AFEI. Our decision is based on the terms of the relevant award-based transitional instruments applying in New South Wales, Tasmania and the Northern Territory Gardening, Nurseries and Greenkeeping (Northern Territory) Award 1998. 8 Only the Nursery Award – State 2003 (Queensland) prescribes four hours.

[12] We will vary the modern award to replace cl.15.4 with the following:

“An employee engaged for more than two hours during one day on duties carrying a higher minimum wage than their ordinary classification must be paid the higher minimum wage for such day or shift. If an employee is so engaged for two hours or less during one day, they must be paid the higher minimum wage for the time so worked.”

BY THE COMMISSION:

PRESIDENT

 1   MA000033.

 2   AN120379.

 3   AP767376.

 4   AN150065.

 5   AN160158.

 6   AN140192.

 7   AN170077.

 8   AP782197.

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