FWCFB 9840
FAIR WORK COMMISSION
Modern Awards Review 2012—Apprentices, Trainees and Juniors
Fair Work (Transitional Provisions and Consequential Amendments) Act 2009
Item 6, Sch. 5—Modern awards review
JUSTICE BOULTON, SENIOR DEPUTY PRESIDENT
SYDNEY, 13 DECEMBER 2013
Review of all modern awards after two years - applications relating to apprentices, trainees and junior rates - non-common matters - National Training Wage Schedule - part-time trainees.
 In a decision of 28 November 2013, 1 the Full Bench finalised most of the “non-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). In that decision we indicated that the matters relating to part-time trainees would be the subject of a separate decision following the conclusion of conferences before Commissioner Roe.
 In two applications, the Motor Traders’ Association of New South Wales (MTANSW) applied to vary clause X.6.3 of the National Training Wage Schedule (NTWS) 2 as it appears in the Clerks - Private Sector Award 2010 and the Vehicle Manufacturing, Repair, Service and Retail Award 2010. Clause X.6.3 currently provides as follows:
“X.6.3 Time spent by a trainee, other than a trainee undertaking a school-based traineeship, in attending any training and assessment specified in, or associated with, the training contract is to be regarded as time worked for the employer for the purposes of calculating the trainee’s wages and determining the trainee’s employment conditions.”
 In the MTANSW applications, it was noted that part-time trainees whose training is conducted entirely off-the-job receive the full rates set out for part-time trainees in clauses X.5.2(a)-(c), while all other part-time trainees’ wages are discounted by 20% (see clauses X.5.2(f)(ii)-(iii)). It was further said that the rates in the wage tables for part-time trainees are 25% higher than those for full-time trainees. Therefore part-time trainees whose training is conducted entirely off-the-job are already compensated for the hours they spend at training by an hourly rate 25% higher than that for a full-time trainee or other part-time trainees.
 A number of state motor trades associations 3 (collectively, the MTA) said that time spent in training outside of working hours is clearly factored into the higher wages for part-time trainees whose training is entirely off-the-job. However, the MTA submitted that there is an anomaly or uncertainty in the NTWS because it is possible to read clause X.6.3 as requiring that all part-time trainees be paid for the actual time spent in training, notwithstanding that this time is already compensated for by the payment of a higher rate for time spent in work.
 Several conferences were held before Commissioner Roe in relation to the MTANSW applications. The Commissioner issued statements and directions in relation to the matters on 17 October, 7 November, and 21 November 2013. In the conferences, the parties also considered the application of any variation made to the NTWS in the awards covered by the MTANSW applications to the other modern awards before the Full Bench as part of the Transitional Review.
 The Commissioner’s statement of 21 November 2013 gave notice that the matter would be finalised by the Full Bench as follows:
“Subject to the consideration of any further submissions which may be made by 29 November 2013, I propose to report to the Full Bench that this matter should be resolved on the basis of submissions received in response to the Statement of 7 November 2013.
Submissions concerning the proposed variation and any submission as to why any variation determined by the Full Bench should not apply to all the modern awards before the Full Bench should be provided by 29 November 2013.” 4
 Various solutions to this anomaly or uncertainty were discussed at the conferences before the Commissioner. The MTANSW applications proposed that part-time trainees be excluded from the operation of clause X.6.3 as school-based trainees currently are. However, it was noted in the conferences that this would create two problems. First, the MTANSW’s initial approach would disentitle all part-time trainees to payment for time spent in training. This would include part-time trainees who undertake some or all of their training on-the-job, and who do not receive increased wages. Secondly, clause X.6.3 deals not only with wages, but also conditions of employment.
 The Australian Council of Trade Unions (ACTU) submitted that whatever variation might be made to clause X.6.3 with respect to wages should not remove the application of the provision that time in attending training should be regarded as time worked for the employer for the purposes of determining the trainee’s employment conditions. The Australian Industry Group (Ai Group) submitted that any variation should not disturb the meaning of clause X.6.3 more generally.
 The ACTU and the MTA jointly proposed a variation to clause X.6.3 on 11 October 2013. The Ai Group submitted that this proposed variation might have unintended consequences and change the meaning of other provisions of the NTWS. The following alternative variation was discussed at the conference on 6 November 2013 and was included in the 7 November 2013 statement:
“VARY X.6.3 by replacing the words ‘, other than a trainee undertaking a school based traineeship,’ with the words ‘, other than a trainee undertaking a part-time traineeship where the training is provided as specified in Clause X.5.2(f)(ii) or a school based traineeship,’”
 The ACTU submitted that this variation does not address the issue of ensuring that time spent in training is counted as time worked for the purposes of conditions of employment other than wages. It proposed a number of alternatives on 15 November 2013. For example the ACTU proposed that the following phrase could be added at the beginning of clause X.6.3:
“Subject to clause X.5.2(f)(ii) which prescribes the terms in relation to the calculation of wages for part-time trainees whose approved training is fully off-the-job,...”
 We are satisfied that the combination of clauses X.6.3 and X.5.2(f) does create an anomaly or uncertainty. It is possible to read clause X.6.3 as requiring that part-time trainees who already receive a wage premium as compensation for undertaking their training outside work hours also be paid for those hours as though they had been worked.
 In the interests of ensuring that clause X.6.3 remains as simple as possible, we consider that the most appropriate way to overcome this anomaly or uncertainty without otherwise altering award entitlements is to add a note at the end of clause X.6.3 in the following terms:
“Note: The time to be included for the purpose of calculating the wages for part-time trainees whose approved training is fully off-the-job is determined by clause X.5.2(f)(ii) and not by this clause.”
Variation of other awards before the Full Bench
 The parties were provided with the opportunity to make submissions as to why any variation determined by the Full Bench should not apply to all the modern awards before the Full Bench. As a result of an application by the Ai Group that was referred to the Full Bench, 5 this includes all awards that contain the NTWS.
 The Ai Group was the only party to submit that any variation we make to the NTWS should be limited to the awards named in the MTANSW applications. It submitted that:
“The current settled interpretation of clause X.6.3 of the NTW Schedule as a result of the Federal Court’s decision in CEPU v Excelior  FCA 638, necessitates that caution be exercised when considering a variation to this provision of the Schedule. If any unintended consequences arise, Ai Group’s proposed approach will ensure that these are quarantined to the two awards in question.”
 We consider that the variation which we have decided to make does not alter the meaning of clause X.6.3, but simply clarifies that the clause does not apply for the purpose of calculating wages for certain part-time trainees. It is important that the NTWS remain consistent across awards unless there are persuasive reasons related to a particular industry or occupation as to why there should be different provisions in a particular award. The schemes for the promotion and regulation of traineeships benefit from the application of consistent wages and conditions. Having identified that an uncertainty or anomaly does exist, we consider that it should be corrected in all of the awards before us.
 We will vary the awards before us to remove the uncertainty or anomaly by the addition of the note to clause X.6.3 of the NTWS.
 A determination will be made varying the various awards in accordance with this decision.
SENIOR DEPUTY PRESIDENT
1  FWCFB 9295.
2 Although the numbering of the NTWS subclauses is consistent from award to award, the letter given to the schedule itself varies. Throughout this decision the letter X is therefore used in place of the actual letter given to the schedule in each award.
3 The MTANSW, the Motor Trade Associations of Queensland, WA and SA, and the Victorian Automobile Chamber of Commerce.
4 Statement of Commissioner Roe dated 21 November 2013 (available on the Fair Work Commission website).
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