FWA 10323
Fair Work (Transitional Provisions and Consequential Amendments) Act 2009
Sch. 5, Item 6 - Review of all modern awards (other than modern enterprise and State PS awards) after first 2 years
Confederation of A.C.T. Industry
MELBOURNE, 7 DECEMBER 2012
Modern Awards Review 2012 - application to vary the Architects Award 2010 and variations on own motion - classification draftsperson architectural - conversion annual to weekly rate - other corrections.
 In March 2012 the Confederation of ACT Industry T/A ACT & Region Chamber of Commerce and Industry (the Applicant) applied to vary the Architects Award 2010 (MA000079) (the Modern Award). The application was made under Item 6, Schedule 5 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (the Transitional Act) as part of the review of all modern awards which Fair Work Australia is required to conduct after the first two years of all modern awards coming into effect.
 This Decision also concerns matters in which Fair Work Australia (FWA) acts on its own initiative, pursuant to Schedule 5, Item 6, of the Transitional Act. FWA identified four technical and drafting matters. Interested parties were given the opportunity to comment upon these matters and the solutions suggested by FWA. These issues arose from the review of the Modern Award undertaken by the Tribunal as presently constituted as part of the proceedings in respect to AM2012/255.
 All interested parties agreed that I should deal with both the technical and drafting matters and the variation proposed in AM2012/255.
 On 19 September 2012 I conducted a conference in respect to these matters pursuant to Directions which were issued on 4 September 2012. The outcome of the conference was reflected in further Directions which were issued on 20 September 2012. Consistent with these Directions interested parties provided further submissions in respect to the technical and drafting amendments which resulted in a variation which was reflected in Further Directions of 28 September 2012. No further objection was received to the proposed technical and drafting amendments. In respect to AM2012/255 submissions were received pursuant to the Directions from the Applicant. A short letter in support of the Application was received from AC&A Architects Pty Ltd. Submissions were received opposing the Application from the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) and The Association of Professional Engineers, Scientists and Managers, Australia (APESMA). Platinum Employee Relations on behalf of the Association of Consulting Architects of Australia wrote in support of the AMWU submission and in opposition to the Application.
 A hearing was conducted on 3 December 2012 which was attended by Mr Scott for the Applicant, Ms Starr for the AMWU and Mr Butler for APESMA.
 Item 6, Schedule 5, of the Transitional Act provides:
“(1) As soon as practicable after the second anniversary of the FW (safety net provisions) commencement day, FWA must conduct a review of all modern awards, other than modern enterprise awards and State reference public sector modern awards.
(2) In the review, FWA must consider whether the modern awards:
(a) achieve the modern awards objective; and
(b) are operating effectively, without anomalies or technical problems arising from the Part 10A award modernisation process.
(2A) The review must be such that each modern award is reviewed in its own right. However, this does not prevent FWA from reviewing 2 or more modern awards at the same time.
(3) FWA may make a determination varying any of the modern awards in any way that FWA considers appropriate to remedy any issues identified in the review.
(4) The modern awards objective applies to FWA making a variation under this item, and the minimum wages objective also applies if the variation relates to modern award minimum wages.
(5) FWA may advise persons or bodies about the review in any way FWA considers appropriate.
(6) Section 625 of the FW Act (which deals with delegation by the President of functions and powers of FWA) has effect as if subsection (2) of that section included a reference to FWA’s powers under subitem (5).”
 Provisions of the Fair Work Act 2009 (the Act) are also applicable and relevant to the 2012 Review. Sections 134 and 138 provide as follows:
What is the modern awards objective?
(1) FWA must ensure that modern awards, together with the National Employment Standards, provide a fair and relevant minimum safety net of terms and conditions, taking into account:
(a) relative living standards and the needs of the low paid; and
(b) the need to encourage collective bargaining; and
(c) the need to promote social inclusion through increased workforce participation; and
(d) the need to promote flexible modern work practices and the efficient and productive performance of work; and
(e) the principle of equal remuneration for work of equal or comparable value; and
(f) the likely impact of any exercise of modern award powers on business, including on productivity, employment costs and the regulatory burden; and
(g) the need to ensure a simple, easy to understand, stable and sustainable modern award system for Australia that avoids unnecessary overlap of modern awards; and
(h) the likely impact of any exercise of modern award powers on employment growth, inflation and the sustainability, performance and competitiveness of the national economy.
. . .
A modern award may include terms that it is permitted to include, and must include terms that it is required to include, only to the extent necessary to achieve the modern awards objective and (to the extent applicable) the minimum wages objective.”
 The Application seeks to insert a new classification of Draftsperson Architect and associated classification definitions and pay rates. The Application is made on the basis that the Applicant contends that the Modern Award does not cover draftspersons who support qualified architects as defined in the Modern Award and such draftspersons are not covered by another Modern Award. The Applicant argues that draftspersons who are engaged in manufacturing or building and construction are covered by the Manufacturing & Associated Industries and Occupations Award 2010 (the Manufacturing Award) and/or the Building & Construction General On Site Award 2010 but other architectural draftspersons do not necessarily work in those industries.
 The distinction between industry and occupational coverage was described by the Full Bench of the Australian Industrial Relations Commission as follows:
“ Clause 4 of the Minister’s request indicates that the Commission is to make modern awards primarily along industry lines but may also create modern awards along occupational lines as it considers appropriate. In context the reference to industry awards is to awards based on the industry of employers. By contrast, the reference to occupational awards is a reference to awards based on the occupation or calling of an employee. The request therefore provides that modern awards should primarily be industry awards, although the Commission may also make occupational awards.” 1
 Occupational coverage therefore refers to coverage of work of a specific kind that extends beyond the confines of one industry. Generally, under the modern awards system, an award with occupational coverage will cover particular occupations, unless a relevant industry award contains a classification which is more appropriate to the work performed by the employee.
 I am satisfied that the Manufacturing Award is both an industry and occupational award that covers draughtspersons irrespective of the industry within which they work. The coverage clause provides:
“4.9 Manufacturing and Associated Industries and Occupations means:
(a) the following industries and parts of industries:
(b) the provision of any of the operations or services set out in clause 4.9(a) on a contract basis by one business to another business, where the first business is independent of the second business.
(c) the following occupations:
(i) maintenance employees in the engineering streams.
(ii) technical workers.
(iv) production planners.
(v) trainee engineers.
(vi) trainee scientists.
(vii) engine drivers.”
 The term ‘draughtsperson’ is very broadly defined in clause 3.1 of the Manufacturing Award (under ‘tracers and draughtspersons’) as “employees who are or who are mainly engaged in the making of drawings from sketches or other data”.
 Under the classification structure of the Manufacturing Award, draughtspersons are considered an ‘Engineering Associate/Technician’ which is again broadly defined (at Schedule B.3.1(b)(iii)) as “a generic term which includes technical officers in a wide range of disciplines including laboratories and quality assurance, draughting officers, planners and other para-professionals.” This definition contemplates the broad range of drafting disciplines covered by the Manufacturing Award.
 The classification structure covers a hierarchy of grades of draftsperson covering the full range of draughting qualifications and work.
 Draughtspersons are covered by the Manufacturing Award, regardless of the industry, discipline or location in which they work.
 The history of the development of the Modern Award confirms that the pre-reform draughting, planners and technical employees awards were included within the scope of the Manufacturing Award. These Awards included the: Draughting and Technical Employees (Private Industry) Award (AN170027); Draughting and Technical Employees (Private Industry) Award (AN170027); Draughting Employees, Planners, Technical Employees, &c (State) Award (AN120185); Draughtsmen's, Tracers', Planners' and Technical Officers' Award 1979 (AN160100); Draughtspersons Planners Technical Officers (Consolidated) Award (AN150047); and Draughtspersons, Planners and Technical Officers (Australian Capital Territory) Award 2000 (AP778701).
 The Full Bench noted that:
“ The draft manufacturing Award substantially reflects the draft Award prepared by the Australian Industry Group (Ai Group) and the union parties to the current Metal Industry Award. However, the opportunity has been taken to amalgamate the various parts of the draft Award prepared by those parties, so that there are not separate parts for different occupations. Further, differing terms and conditions of employment between occupations have been rationalised as much as possible.” 2
 There were subtle differences in the scope of coverage of draftspersons between the pre-reform awards. An examination of those pre-reform awards reveals that none of the definitions of draftsperson in those awards is broader than the scope in the Modern Award. I am satisfied that the scope of coverage of draughtspersons in the Modern Award is therefore broader than the scope produced by a combination of the pre-reform awards.
 I am also satisfied that there is no justification, based on the nature of the work performed, that draughtspersons who work in an architectural firm should be distinguished from other draughtspersons and excluded from coverage under the Manufacturing Award and transferred to coverage under the Architects Award.
 The Applicant argues that the work performed by draughtspersons within an Architectural firm is “not related to either the manufacturing or building & construction”. I accept that it can be a regarded as a different discipline of draughting, however the occupational coverage of draughting under the Manufacturing Award is not limited to manufacturing and engineering.
 I am satisfied that the following draughting work described by the Applicant at paragraph 14 of its submission is in fact covered under the Manufacturing Award:
“A draughtsperson is predominately engaged in the making of drawing of major designs relating to environment, landscape, building and structures. These activities include the preparation of plans and illustrations from architect’s detailed sketches and specifications. Depending upon the draughtsperson experience, knowledge and skills, the activities performed may also include calculations to complete the plans and schedules”
 At paragraph 15 of their submission the Applicant argues that:
“This lack of clarity of award coverage has a direct effect on the business’s employment capability due to the uncertainty in regards to employment classifications, remuneration levels and entitlements.”
 I am not satisfied that the coverage of draftspersons in unclear or in any way ambiguous. I am also not persuaded that there are inadequacies of the classification structure or definitions in the Manufacturing Award that would necessitate the inclusion of a different classification structure for draughtspersons in the occupational Architects Award.
 The variations are not necessary and in particular they are not needed to either ensure the award meets the modern awards objective or to correct an anomaly or technical problem.
 The Application is dismissed.
Technical and drafting amendments
Rates of pay
 The award does not include a method for converting annual wages to weekly rates for the purposes of adjustments to wages in line with an annual wage review. This is needed in cases where a flat $ amount increase is awarded rather than a % increase.
 The method used in previous Annual Wage Reviews which granted a flat $ amount has been to apply the weekly increase multiplied by 52 to determine the increase to the annual rate. However, I consider that the most appropriate approach to adopt in the Modern Award to be that suggested by the Australian Federation of Employers and Industries which would involve multiplying the employee’s annualised rate of pay by 6 and dividing the result by 313. This approach is consistent with Regulation 7.5 of the Workplace Relations Regulations.
 Clause 15.1(b) in the award currently states:
“(b) In calculating the rates of wages, the amounts will be taken to the nearest ten cents on weekly rates.”
 The Architects Award 2010 will be varied to provide an additional sub-clause in 15.1(b) as follows:
“(b) In calculating the rates of wages:
(i) the amounts will be taken to the nearest ten cents on weekly rates;
(ii) the weekly rate of pay for an employee will be determined by multiplying the employee’s annualised rate of pay by 6 and dividing the result by 313.”
Clause 11.1(c) Full-time and Part-time employment
 The present clause 11.1(c) contains an obvious error in that the word “equal” is missing in the phrase “a part-time employee will be paid an amount to 1/38th of the weekly wage...”
 Clause 11.1 concerns Full-time and Part-time employment. The Architects Award 2010 will be varied to add the word “equal” between the words “amount” and “to” in Clause 11.1(c).
Clause 15.4(d) Calculation of Service
 This clause concerning the calculation of service contains an obvious error in two places where the word “weeks” and ”years” are in the plural when it is obvious that the context demands the singular “week” and “year”.
 Clause 15.4(d) of the Architects Award 2010 will be varied to alter the word “weeks” to “week” on the first two occasions on which the word appears, and to alter the word “years” to “year” in the first sentence of Clause 15.4(d).
Clause 12.1 Notice of Termination
 This provision of the Award may be inconsistent with the NES and Section 117(3) of the Fair Work Act 20009 in particular. The Award currently provides as follows:
 The NES provides for 5 weeks notice in the case of an employee aged 45 years or older with at least two years’ continuous service. To remove uncertainty I consider it appropriate to vary the Award.
 Clause 12.1 of the Architects Award 2010 will be varied to add the words “except where the NES provides a longer period of notice” at the end of Clause 12.1.
 I have dismissed the Application for variation to the Architects Award 2010 in AM2012/255. I have determined that a number of variations to correct errors and uncertainty should be made. A separate Determination (setting out the variations to the Modern Award) will be issued in conjunction with this Decision.
Mr Scott for the Applicant.
Ms Starr for the AMWU.
Mr Butler for APESMA.
1  AIRCFB 550 at .
2  AIRCFB 717.
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