[2013] FWCFB 9092 |
FAIR WORK COMMISSION |
DECISION |
Fair Work (Transitional Provisions and Consequential Amendments) Act 2009
Item 6, Sch. 5—Modern awards review
JUSTICE BOULTON, SENIOR DEPUTY PRESIDENT |
SYDNEY, 22 NOVEMBER 2013 |
Review of all modern awards after two years - applications relating to apprentices, trainees and junior rates - common matters - settlement of orders - appropriate reference rates - appropriate rates for adult apprentices - cap on textbook costs - incidental and drafting matters - insertion of apprentice provisions - group training coverage.
[1] In the decision of 22 August 2013, 1 the Full Bench determined the various “common matters” relating to apprentices, trainees and juniors arising in the review of all modern awards required by Item 6, Schedule 5 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (the Transitional Review). We directed the parties to confer about the variations to the relevant modern awards necessary to give effect to the decision and to provide draft variations by 30 September 2013.
[2] A series of conferences of the parties were convened by Commissioner Roe to assist with the settlement of the orders relating to the common matters and to consider the non-common matters. The outcomes of these conferences are set out in statements issued by the Commissioner and posted on the Commission’s website. In particular, the statements issued by the Commissioner on 7 and 17 October 2013 refer to the progress made in the settlement of the determinations relating to the common matters and to the opportunity provided to all interested parties to put any further submissions to the Full Bench before finalisation of the determinations.
[3] On 23 October 2013 the Full Bench issued a statement 2 in which we referred to the conferences before the Commissioner and to the progress made in the settlement of the determinations arising from the common matters decision. Having considered the statements issued by the Commissioner, we advised that we would proceed to finalise the determinations relating to the common matters as follows:
“(a) In respect to all matters other than those listed in (b) and (c) below, the determinations will be issued based upon the latest drafts provided by the parties (these are available on the Commission’s website). Any further submissions in relation to these matters should be provided by 30 October 2013.
(b) In respect to the following matters the determinations will be issued after consideration of the submissions received in accordance with the process outlined in the Statement of Commissioner Roe of 17 October 2013:
Any party wishing to make any further submission in relation to these matters should do so by 30 October 2013.
(c) In respect to the provisions concerning competency based wage progression in those awards where new provisions are to be introduced from 1 January 2014, there will be a further period for consultation between the parties as outlined in the Statement of Commissioner Roe of 17 October 2013. The determinations in respect to these provisions will be issued separately.”
[4] Several parties made further submissions regarding the settlement of the determinations. We have taken all the material into consideration in finalising the determinations. We note that in the conferences before Commissioner Roe, in which the main parties to the proceedings in the Transitional Review participated, various aspects of the determinations were discussed and a common position was achieved between the parties. On some of these matters we received additional submissions from parties which were not represented in the conferences. In relation to most of these matters we have, after considering the further submissions made, decided that the position reached and accepted by the main parties in the conferences before the Commissioner should be adopted in the settlement of the determinations. In particular, this relates to the following issues: 3 timing for the payment of training fees; excess travel costs for block release training; phasing of rates in the Plumbing and Fire Sprinklers Award 2010 (the Plumbing Award); and school-based apprentices. In relation to the provisions dealing with excess travel costs for block release training, we have also decided to include various suggested drafting changes proposed by the Australian Industry Group (the Ai Group) which add clarity to the relevant provisions.
[5] There are several matters upon which agreement has not been reached by the parties and which we need to determine in making the determinations.
[6] The first matter relates to the fourth year adult apprentice rate in the Electrical, Electronic and Communications Contracting Award 2010 (the Electrical Contracting Award). This award currently makes provision for adult apprentices only in Queensland. The rates for adult apprentices in Queensland apply until 31 December 2014, and the rate for the fourth year adult apprentice is 90% of the base trade rate (EW5) in the award.
[7] The decision of 22 August 2013 introduced adult apprentice rates into a number of awards which did not contain them. We set rates for first and second year adult apprentices and indicated that the rate for third and fourth year apprentices should not be less than the rate applicable to an apprentice who is a junior at that stage of an apprenticeship. In relation to awards which already provided for adult apprentices, we said that we would not disturb any higher rates for third and fourth year adult apprentices 4.
[8] In the settlement of the determination, the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU), the National Electrical Contractors Association (NECA) and the Electrical Contractors Association (ECA) proposed that, having regard to the current rate for adult apprentices in Queensland under the award, the rate for a fourth year apprentice from 1 January 2015 should be 90% of the base trade rate (EW5). The Ai Group submitted that the rate should be the lowest adult classification in the award (namely EW1, which is approximately 87% of the EW5 rate) and that this should apply to adult apprentices who start their apprenticeship after 1 January 2014 (other than in Queensland) and to those who start their apprenticeship in Queensland after 1 January 2015. This was supported by the Chamber of Commerce and Industry of Western Australia and the South Australian Employers Chamber of Commerce and Industry (the State Chambers). Given that the determination will introduce adult apprenticeships in all States, we do not consider that the transitional rates applicable to Queensland are the appropriate rates to be applied. We have therefore decided to adopt the submission of the Ai Group. This is consistent with the decision of 22 August 2013.
[9] The second matter relates to the rates for adult apprentices in bulk terminal operations under the Sugar Industry Award 2010 (the Sugar Award). The Sugar Award currently provides for apprenticeships in trades and occupations under Part 8 - Milling, Distillery, Refinery and Maintenance and Part 9 - Bulk Terminal Operations. The rates of pay for apprentices are set having regard to the base tradesperson’s classification rates in the different parts of the award. Under Part 8, it is the C10 classification ($724.50 per week) and under Part 9 it is the BT6 classification ($783 per week). There is currently provision for adult apprentices under Part 8 of the award but not Part 9. The weekly rates for adult apprentices under Part 8 following our decision will be $579.60 in the first year (80% of the C10 rate), $622.20 in the second year (being the C14 rate, as presently provided), $640 in the third year (being the C13 rate, as presently provided) and $664.80 in the fourth year (C12 rate, as presently provided being 88% of the C10 rate).
[10] The parties agree that the reference rate for apprentices other than adult apprentices should be adjusted in line with the common matters decision so that the new percentages will apply to the C10 rate for apprentices under Part 8 and to the BT6 rate for apprentices under Part 9. In relation to the introduction of adult apprentices in Part 9 of the Sugar Award there is agreement between the Ai Group and the Australian Manufacturing Workers’ Union (AMWU) that the rate in the fourth year should be 88% of the BT6 rate, namely $689. However there is no agreement about the appropriate rates for first, second and third year adult apprentices. The AMWU proposes rates of $626 (80% of BT6), $645 (BT2), and $679.20 (BT3). The Ai Group proposes $579.60 (80% of C10), $622.20 (BT1) and $622.20 (BT1). Having regard to the approach adopted in the different parts of the Sugar Award in relation to apprentices, and the position regarding the fourth year adult apprentice rate under Part 9, we have decided that the appropriate rates for adult apprentices following the decision should be as follows: first year rate $626 (80% of BT6), second year rate $626 (BT1, but not lower than first year rate) and third year rate $645 (BT2 - provide progression as in Part 8 and a rate not lower than Part 8 third year rate).
[11] The third matter relates to the rate for second year adult apprentices in the Pulp and Paper stream of the Timber Industry Award 2010 (the Timber Award). In the decision of 22 August 2013 it was decided that the minimum rate for a second year adult apprentice should be the higher of the adult minimum wage or the lowest adult classification rate in the award. The rate for the first year adult apprentice under the Timber Award is to be $579 per week, or 80% of the C10 rate, which in both the General Timber stream and the Pulp and Paper stream under the award is the Level 6 classification. The parties have not been able to agree on the rate for second year adult apprentices. The ACTU proposed that the appropriate rate should be the lowest rate in the Pulp and Paper stream of the award ($654 per week). The Ai Group proposed that the rate should be the lowest classification rate in the award, namely the Level 1 rate in the General Timber stream ($622.20 per week). We are satisfied that the Ai Group proposal gives effect to the decision taken and the award should provide accordingly.
[12] There were several matters raised by the parties in relation to the Airline Operations - Ground Staff Award 2010 (the Airline Award). The first relates to the application by the AMWU to have various allowances payable to apprentices. This was based on the history of the award and the practice of Qantas in paying such allowances to apprentices. The application was opposed by the Ai Group, which submitted that it has not been shown that the failure to include provision for the payment of the allowances to apprentices was an oversight or error in the making of the modern award or that the provisions of the award are uncertain. It was also said that various allowances are only applicable to licence holders and could not be applied to apprentices. We consider that there is not adequate material before us as to the history of the allowances and their application to apprentices for this matter to be determined in relation to the settlement of orders. In these circumstances, the parties should have further discussions as to the appropriate application of allowances to apprentices and/or seek to raise this matter in the context of the four year review of the award.
[13] The second matter relating to the Airline Award concerns the appropriate reference rate for determining the rates of pay for apprentices. As part of the Transitional Review, several new classifications were introduced into the maintenance and engineering stream of the award. 5 A new classification of Tradesperson was introduced for employees with a Trade Certificate III in Engineering or equivalent. The rates and qualifications for the classification of Aircraft Maintenance Engineer (AME) were increased so as to apply to a tradesperson who holds a Certificate IV or equivalent in the Aeroskills Training Package MEAA 11 and is engaged in aircraft maintenance.6
[14] The award provides for apprentice rates of pay to be determined by reference to the rates prescribed for an AME. The award does not presently provide for adult apprenticeships. The Ai Group and the AMWU have proposed that the award should provide for apprenticeships leading to the attainment of AQF III and AQF IV qualification outcomes and that the rates for apprentices, other than adult apprentices, undertaking an AQF III apprenticeship should be determined having regard to the base tradesperson rate. However there was no common position between the parties as to the appropriate rate for AQF IV apprentices and for adult apprentices.
[15] In relation to AQF IV apprentices, we are not persuaded on the material presented that first and second year apprentices should be paid a different rate than AQF III apprentices. We therefore adopt the approach proposed by the Ai Group that the rates for first and second year AQF III and AQF IV apprentices should be determined by reference to the base tradesperson classification. We accept the position of the Ai Group and the AMWU that the rates for third and fourth year AQF IV apprentices should, as at present, be calculated by reference to the AME rate.
[16] Consistent with the approach adopted in the common matters decision to phasing of increases, the following shall apply in the Airline Award:
● The rates from 1 January 2014 for AQF IV apprentices in the first year will be 50% regardless of school completion and will be 50% and 55% depending upon school completion from 1 January 2015; and
● The rates for second year apprentices will be 60% and 65% depending upon school completion from 1 January 2014 and unchanged from 1 January 2015.
[17] In relation to adult apprentices, there has been no substantive evidence or submissions presented to justify departing from the principles established in the common matters decision, namely where adult apprentice rates are being introduced into an award the minimum rate for the first year should be 80% of the base trade rate and the minimum rate for the second year should be the lowest classification rate in that award. It has not been shown that an AQF IV adult apprentice should be paid a different rate to an AQF III adult apprentice or that we should consider that the rate for the AME classification with AQF IV certification is a base trade rate. Accordingly, we accept the Ai Group submission that the first year adult apprentice rate for both types of apprentice should be 80% of the tradesperson rate. The rate for the second year adult apprentice will be the rate for the Aircraft Worker 1 classification.
[18] We accept the submission of the AMWU and the Ai Group that an AQF III adult apprentice in the third year should be paid the minimum rate of the Aircraft Worker 2 classification. This shall also apply to third year AQF IV adult apprentices. The adult apprentice in the fourth year who is undertaking an AQF III apprenticeship should be paid the minimum rate of the Aircraft Worker 3 classification. The adult apprentice in the fourth year who is undertaking an AQF IV apprenticeship should be paid a minimum rate of 88% of the AME rate.
[19] The final matter relates to the proposed cap on the reimbursement of textbook costs under the Electrical Contracting Award, the Plumbing Award, the Building and Construction General On-site Award 2010 (the On-site Award) and the Joinery and Building Trades Award 2010 (the Joinery Award). As referred to in Commissioner Roe’s statement of 17 October 2013, most of the issues relating to the clauses dealing with the payment of fees and expenses were resolved in the conferences of the parties. The outstanding issue relates to the proposed cap on textbook costs in the abovementioned awards.
[20] In the common matters decision we referred to the limited evidence as to the actual cost of textbooks generally associated with each of the trades and the extent to which such costs are currently part of the fees charged by Registered Training Organisations (RTOs). We decided to vary awards to provide for reimbursement for the cost of prescribed textbooks and said that:
“The variations will be subject to similar qualifications as in the Manufacturing Award. We also consider that it may be appropriate to include a cap on the level of reimbursement for textbooks in particular awards. This will be considered in the settlement of the award variations.” 7
[21] In the statement of 23 October 2013 we indicated that we would finalise this matter after considering any submissions filed by the parties. The National Electrical and Communications Association advised that further discussion and information was required in relation to the Electrical Contracting Award and that it would no longer pursue the proposed cap as part of the Transitional Review, but may pursue it at a later date. Submissions were received from Master Builders Australia (MBA), the Housing Industry Association (HIA), the State Chambers, Australian Business Industrial (ABI), the AMWU, the CEPU and the CFMEU. MBA and the HIA proposed a $200 cap on the basis that placing a cap on the reimbursements for textbooks was sensible in order to avoid cost shifting by training providers and would provide some certainty as to cost expectations for employers when employing apprentices. The State Chambers and ABI supported the MBA submissions. The unions opposed a cap being inserted into the awards and noted that various employer representatives were no longer seeking the insertion of a cap. The unions submitted that in the absence of reliable evidence of RTOs loading-up textbook costs or consent, it is not appropriate to include a cap. It was also said that a cap of $200 might be unreasonable in some circumstances where the costs of required textbooks are higher.
[22] We have considered the submissions and positions taken by the various parties in relation to a cap on reimbursement for textbooks. We have decided that at this stage and without further evidence it would be inappropriate to impose a cap. If problems arise, then the issue may need to be considered again.
Other matters to be included in common matters determinations
[23] A number of variations referred to in Commissioner Roe’s statements of 7 and 17 October 2013, which relate to matters in Attachment A of an earlier statement, 8 are incorporated in the determinations that we will issue with respect to the common matters. These variations correct terminology, remove uncertainty or achieve clarity or consistency with earlier Award Modernisation decisions.9
[24] We have also considered the submissions of Group Training Australia (GTA) of 12 September 2013 and the revised draft determinations provided by GTA on 27 September 2013. The GTA applications 10 were not opposed by any party. We accept the submissions and have decided, for the reasons summarised in Commissioner Roe’s statement of 7 October 2013, to make the variations sought. We consider that it is consistent with the modern awards and minimum wages objectives to vary the awards to insert apprentice provisions and group training service coverage provisions.
Determinations
[25] The determinations varying the modern awards dealt with in the common matters decision and as referred to above are published together with this decision. A separate decision will be issued dealing with the non-common matters relating to apprentices arising in the Transitional Review.
[26] We note that consideration is still being given to several issues relating to competency based wage progression in five awards 11 and that further determinations varying those awards will need to be made. The further determinations will be made when these issues have been resolved.
SENIOR DEPUTY PRESIDENT
1 Re Modern Awards Review 2012 - Apprentices, Trainees and Juniors [2013] FWCFB 5411.
3 See statement of Commissioner Roe dated 17 October 2013 at [5].
4 See [2013] FWCFB 5411 at [259]-[262].
5 Re Airline Operations - Ground Staff Award 2010 [2013] FWC 458.
6 The previous definition of Aircraft Maintenance Engineer (AME) referred to “any tradesperson who is engaged in the maintenance, repair, overhaul, modification, assembly and/or testing of aircraft, aircraft systems, aircraft components, aircraft engines and/or associated equipment.”
7 [2013] FWCFB 5411 at [362].
8 Statement of 28 August 2013, [2013] FWC 6248. Revised attachments were issued in an Explanatory Note on 17 September 2013.
9 The applications are: AM2012/140, AM2012/48 (except in relation to clause 15.2(c)), AM2012/141, AM2012/24, AM2012/109 (except in relation to junior rates), AM2012/152 (except in relation to the tool allowance), AM2012/53 (except in relation to part time trainee wage calculations) and AM2012/247.
10 The applications are: AM2012/60 (apprentice provisions and group training service coverage in the Aged Care Award 2010), AM2012/58 (apprentice provisions and group training service coverage in the Health Professionals and Support Services Award 2010), AM2012/61 (group training service coverage in the Higher Education Industry - General Staff - Award 2010), AM2012/55 (group training service coverage for trainees in the Labour Market Assistance Industry Award 2010), AM2012/54 (group training service coverage for trainees in the Nurses Award 2010), AM2012/57 (group training service coverage for trainees in the Social, Community, Home Care and Disability Services Award 2010) and AM2012/56 (group training service coverage for trainees in the Surveying Award 2010).
11 The On-site Award, the Joinery Award, the Sugar Award, the Airlines Award, and the Graphic Arts, Printing and Publishing Award 2010.
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