[2013] FWCFB 9603 |
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, 12 DECEMBER 2013 |
Review of all modern awards after two years - applications relating to apprentices, trainees and junior rates - common matters - settlement of orders - competency based wage progression.
[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] Several 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. On 22 November 2013 the Full Bench issued a decision settling the determinations varying the modern awards to reflect the common matters decision except in respect of the provisions concerning competency based wage progression (CBWP) in those awards where new provisions are to be introduced from 1 January 2014. 2 We decided that the determinations in respect to the CBWP provisions would be issued separately following the conclusion of the process before Commissioner Roe.
[3] In the common matters decision we decided that:
“... those awards which are the subject of the AMWU and CFMEU applications will be varied to provide for CBWP from 1 January 2014. The variations should reflect the criteria for competency based completion currently found in clause 15.8 of the Manufacturing Award and will provide for progression through the wage rates for each year or stage of the apprenticeship based upon achievement of the relevant proportion of the competencies. We consider that there should be further discussions between the parties about the appropriate wording of the variations to the relevant awards.” 3
[4] The CBWP provisions in the Manufacturing and Associated Industries and Occupations Award 2010 (the Manufacturing Award) consist of two elements:
[5] We note that there is no disagreement as to how these elements should be included in the variations. In our decision we left open the possibility that there might be some other elements in the finalisation of the variations following further discussions between the parties.
[6] In the conferences before the Commissioner the employer representatives expressed the view that an additional provision was required which reflected the following comments made by the Full Bench:
“We consider that the proposed variations and the existing Manufacturing Award provisions make it clear that progression is based upon the achievement of the required proportion of the competencies, which is clearly something more than successful acquisition of knowledge and theory. In respect to the Manufacturing Award the industry parties have, through the relevant Industry Skills Council, developed guidelines to ensure that the RTO involves the employer and the apprentice prior to competency sign off so that it can be effective for the purposes of CBWP and completion.” 4
[7] It was submitted that there should be a third element, not contained in the Manufacturing Award, which sets out the competency requirements for wage progression and how disputes concerning progression should be dealt with.
[8] Following the conferences, the Commissioner issued a statement on 19 November 2013. A draft proposal was put forward which sought to achieve a compromise between the position of the various employer and union parties. The parties were given an opportunity to make further written submissions on the statement and the draft proposal. It was indicated that the matter would be finalised by the Full Bench after consideration of the submissions received.
[9] The draft clause is set out in the statement as follows:
“Competency based progression
(a) For the purpose of competency based wage progression in clause (INSERT CLAUSE X WHICH CONTAINS CBWP TABLE) an apprentice will be paid at the relevant wage rate for the next stage of their apprenticeship if:
(i) the relevant proportion of the total competencies specified in clause X for that stage of the apprenticeship is successfully completed. The units of competency which are included in the relevant proportion must be consistent with any requirements in the training plan; and
(ii) any requirements of the relevant State/Territory apprenticeship authority and any additional requirements of the relevant training package with respect to the demonstration of competency and any minimum necessary work experience requirements are met; and
(iii) the employer has been provided with advice that the RTO has assessed that the apprentice meets the requirements in paragraphs (i) and (ii) in respect to all the relevant units of competency and the employer has not advised the RTO and the apprentice that they disagree with that assessment within 14 days of receipt of that advice;
(iv) where the employer disagrees with the assessment and the dispute cannot be resolved by agreement between the RTO, the employer and the apprentice, the matter may be referred to the relevant State/Territory apprenticeship authority for determination. If the matter is not capable of being dealt with by such authority it may be dealt with in accordance with the dispute resolution clause in this award;
(v) for the avoidance of doubt disputes concerning other aspects of the apprenticeship progression provisions of this award may be dealt with in accordance with the dispute resolution clause in this award.
[10] The conferences before the Commissioner also considered the related non-common matter which is an application by the Australian Industry Group (Ai Group) to vary the CBWP provisions in the Manufacturing Award.
Submissions and proposed amendments
[11] The submissions received from the various parties propose a number of amendments to the draft clause.
[12] The Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (AMWU) and the Construction, Forestry, Mining and Energy Union (CFMEU) submitted in respect to paragraph (a)(i) of the draft clause that the second sentence be deleted. They opposed the requirement that the units of competency which are included in the relevant proportion must be consistent with any requirements in the training plan. It was said that if units of competency are included in the training plan which are no longer offered by the Registered Training Organisation (RTO), or which do not support the pre-requisite rules of the training package or which exceed the relevant proportion of the total competencies required for the qualification, this could artificially delay progression. The unions submitted that the training contract sets out and regulates the training obligations including the requirement to follow the training plan. The CFMEU also said that the tables in the draft orders for the Building and Construction General On-site Award 2010 (the Building Award) and the Joinery and Building Trades Award 2010 (the Joinery Award) already make reference to the requirements of the training plan.
[13] The CFMEU opposed the inclusion of paragraph (a)(ii) in the Building and Joinery Awards because there are no such additional requirements in the construction industry training package, and also because the inclusion of the paragraph may in these circumstances be confusing or may encourage State/Territory apprenticeship authorities to insert such requirements.
[14] The Ai Group submitted with respect to paragraph (a)(iii) of the draft clause that an apprentice should not be able to progress unless the RTO, the employer and the apprentice agree that the apprentice has achieved the necessary competencies. The Ai Group submitted that the draft clause will be less effective than its proposal, which would require positive employer agreement prior to progression. It was also submitted that the requirements with respect to competency based completion in clause 15.8 of the Manufacturing Award should apply to progression through each stage of the apprenticeship.
[15] The Housing Industry Association (HIA) and Master Builders Australia (MBA) agreed with the Ai Group with respect to paragraph (a)(iii) but proposed as an alternative that the draft clause be adopted with modifications. The HIA proposed a modification so that the advice provided to the employer is required to be in writing. MBA proposed that progression occur where the RTO and the employer agree that the apprentice meets the competency requirements or, failing this, that the question of progression be determined through the following process: where the RTO or the employer advises that the apprentice meets the competency requirements, any disagreement must be notified within 14 days of receipt of the advice and the matter will then subject to the dispute resolution procedure. Australian Business Industrial (ABI) proposed that employers be provided 21 days to raise any disagreement.
[16] In relation to the dispute resolution process in paragraphs (a)(iv) and (v) of the draft clause, the HIA submitted that there is no need to refer to any process other than that involving the State/Territory apprenticeship authority. In the alternative, it submitted that the reference in paragraph (a)(v) to “other aspects of the apprenticeship progression provisions” should be replaced with “other aspects of the apprenticeship provisions.” ABI also sought greater clarity about the scope of paragraph (a)(v). The Ai Group proposed that the words “aspects of the apprenticeship progression provisions” be replaced with “other apprenticeship progression provisions” in the paragraph.
[17] ABI and the Ai Group sought to better link the definition of competency in sub-clause (b) to the requirements in sub-clause (a). ABI suggested this is best achieved by reference to “units of competency” rather than “competencies”. The Ai Group used the expression “competency units” in paragraph (a)(i) and the expression “has achieved competency in all the units referred to” in paragraph (a)(iii). The Ai Group also sought to make some changes to the drafting of sub-clause (b) and to add a new sub-clause that provides that the higher rate will apply from the first full pay period on or after the date on which agreement or determination is reached.
Consideration
[18] We have carefully considered the submissions of the parties in response to the statement made by the Commissioner and the draft proposed clause dealing with CBWP which is to be inserted into the relevant awards. Generally we are satisfied that the draft clause is appropriate and consistent with the common matters decision. However we have decided to make some changes to the clause as sought by the parties.
[19] The Ai Group submitted that a provision requiring three way sign off of competency prior to wage progression should be included in the clause. This would be consistent with the “Principles for competency-based wage progression for Australian Apprentices” (CBWP Principles) which are supported by the peak industry councils. The principles refer to competency assessment as a three way process between the employer, the apprentice and the RTO and for the three parties to agree that the apprentice “possesses the necessary competency requirements covered by the training agreement and relevant industry training package”.
[20] Not all aspects of competency-based progression are regulated by the award system. Aspects of competency assessment and sign off and the involvement of the RTO, the employer and the apprentice in that process will be regulated through the training system and the industry skills councils. We noted this in the common matters decision:
“We consider that CBWP will have greater impact if there are corresponding changes in the training system to maximise the opportunities for competency based training progression, including flexible delivery, industry level processes and partnerships for competency based sign off, complementary work by industry skills councils, and enhanced processes for recognition of prior learning and current competencies. Many of these matters are on the agenda of COAG. Some of the matters will be progressed through Australia’s eleven Industry Skills Councils. Other implementation details will require further discussions between industrial parties.” 5
[21] Effective implementation of CBWP will occur where there is a three-way process involving the RTO, the employer and the apprentice. Accordingly we will make provision for wage progression where there is agreement between all the relevant parties. However we will also make provision for circumstances where there might be inadequate communication between the parties or a failure to notify promptly a position on competency assessment. This will ensure that wage progression is not unreasonably delayed where apprentices have achieved the relevant competencies. It will also assist in facilitating the timely referral of any disputes about competency assessment for resolution through relevant State/Territory apprenticeship authorities or award processes. In finalising these provisions, we have had regard to the suggested amendments of the Ai Group, the HIA, MBA and ABI.
[22] In relation to the requirements for competency progression, we note that the Manufacturing Award provides for progression upon the attainment of the relevant proportion of the total competencies for the relevant Australian Qualification Framework (AQF) qualification specified in the training plan. The award requires access to training in accordance with the training contract and the training contract requires assessment and training in accordance with the training plan. We are satisfied that read in context this means that the units of competency which are included in the AQF qualification must be consistent with any requirements in the training plan. We accept that, particularly in industries where the training package does not give weighting to units of competency, it is appropriate that the award require that the units of competency which are included in the relevant proportion must be consistent with any requirements in the training plan. In this respect we reject the submissions of the CFMEU and AMWU seeking to vary paragraph (a)(i) of the draft clause. However, we recognise that the primary requirement is that the relevant proportion of the total competencies for the AQF qualification is achieved. The training plan cannot be utilised to require completion of competencies in excess of such requirement.
[23] The CFMEU also proposed that paragraph (a)(ii) of the draft clause not be included in the Building and Joinery Awards. However we consider that the paragraph should be included in those and other awards in order to ensure that there is consistency between any requirements in the training system and the requirements under the awards.
[24] We consider that the definition of competency currently utilised for the purpose of qualifications in the training system should be the definition utilised for the purpose of wage progression. If an apprentice is recognised as competent for the purposes of the nationally recognised qualification they should also be recognised as competent for the purpose of CBWP. The definition of competency includes the capacity to apply skills and knowledge in industry. We consider that the award should ensure that the employer has the capacity to challenge decisions about whether or not competency has been achieved particularly given that it will be utilised for the purposes of CBWP. This will complement arrangements in the training system, such as those which exist in the metals and engineering sector, which encourage the RTO to involve the employer and the apprentice prior to competency sign off. However we would stress that the process under awards should not lead to complexity or delay which would frustrate one of the purposes of CBWP, namely, to encourage and recognise progress through the training system by providing for wage progression when competency is achieved.
[25] We accept that there should be some modifications to the drafting of the linkage between the definitions in sub-clause (b) of the draft clause and the provisions in sub-clause (a). We will also make some other minor corrections in response to the submissions received. We will include a provision concerning the date upon which any wage increase based on competency based progression will take effect.
[26] In the common matters decision we recognised the need for further work to be done by those involved in the apprenticeship training system to ensure the proper implementation of CBWP. We continue to encourage the parties to engage in constructive dialogue to ensure the successful implementation of CBWP. In this regard we also recognise that there may need to be modifications to the award provisions in the light of the experience with implementation.
Conclusion
[27] We have decided that the provision which will form part of the variations to the relevant awards is as follows:
“X. Competency based progression
(a) For the purpose of competency based wage progression in clause (INSERT CLAUSE Y WHICH CONTAINS CBWP TABLE) an apprentice will be paid at the relevant wage rate for the next stage of their apprenticeship if:
(i) competency has been achieved in the relevant proportion of the total units of competency specified in clause Y for that stage of the apprenticeship. The units of competency which are included in the relevant proportion must be consistent with any requirements in the training plan; and
(ii) any requirements of the relevant State/Territory apprenticeship authority and any additional requirements of the relevant training package with respect to the demonstration of competency and any minimum necessary work experience requirements are met; and
(iii) either:
(A) the Registered Training Organisation (RTO), the employer and the apprentice agree that the abovementioned requirements have been met; or
(B) the employer has been provided with written advice that the RTO has assessed that the apprentice meets the abovementioned requirements in respect to all the relevant units of competency and the employer has not advised the RTO and the apprentice of any disagreement with that assessment within 21 days of receipt of the advice.
(b) If the employer disagrees with the assessment of the RTO referred to in clause X(a)(iii)(B) above, and the dispute cannot be resolved by agreement between the RTO, the employer and the apprentice, the matter may be referred to the relevant State/Territory apprenticeship authority for determination. If the matter is not capable of being dealt with by such authority it may be dealt with in accordance with the dispute resolution clause in this award. For the avoidance of doubt, disputes concerning other apprenticeship progression provisions of this award may be dealt with in accordance with the dispute resolution clause.
(c) For the purposes of this clause, the training package containing the qualification specified in the contract of training for the apprenticeship, sets out the assessment requirements for the attainment of the units of competency that make up the qualification. The definition of “competency” utilised for the purpose of the training packages and for the purpose of this clause is the consistent application of knowledge and skill to the standard of performance required in the workplace. It embodies the ability to transfer and apply skills and knowledge to new situations and environments.
(d) The apprentice will be paid the wage rate referred to in clause X(a) from the first full pay period to commence on or after the date on which an agreement or determination is reached in accordance with clause X(a)(iii) or on a date as determined under the dispute resolution process in clause X(b).”
[28] It may be appropriate to consider a variation to the CBWP provisions in the Manufacturing Award in light of our decision to include the above clause in a number of other awards. This relates to the Ai Group application to vary the Manufacturing Award 6 which has been the subject of consideration in the conferences before Commissioner Roe. The Commissioner will conduct a further conference of the parties to consider this matter. We will determine the matter following receipt of a further report from the Commissioner.
[29] In accordance with this decision, determinations will be made varying the Building and Joinery Awards, the Airline Operations - Ground Staff Award 2010, the Sugar Industry Award 2010 and the Graphic Arts, Printing and Publishing Award 2010.
SENIOR DEPUTY PRESIDENT
1 Re Modern Awards Review 2012 - Apprentices, Trainees and Juniors [2013] FWCFB 5411.
3 [2013] FWCFB 5411 at [299].
4 Ibid at [290].
5 Ibid at [292].
6 AM2012/76.
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