STATEMENT

Fair Work Act 2009
s.156 - 4 yearly review of modern awards

4 yearly review of modern awards – National Training Wage
(AM2016/17, AM2016/15)

JUSTICE ROSS, PRESIDENT

SYDNEY, 24 JULY 2017

4 yearly review of modern awards – National Training Wage Schedule – plain language re-draft – Miscellaneous Award 2010.

[1] This Statement outlines the next steps in dealing with the plain language drafting of the National Training Wage (NTW) Schedule in the Miscellaneous Award 2010.

[2] In a Statement 1 issued on 23 February 2017 the Full Bench announced that the NTW Schedule of the Miscellaneous Award 2010 would be re-drafted in plain language and a plain language draft of the NTW Schedule was published the same day. Interested parties were invited to make submissions on the draft.

[3] Submissions were received from the Australian Industry Group (Ai Group), the Australian Manufacturing Workers Union (AMWU), the Construction, Forestry, Mining and Energy Union – Construction and General Division (CFMEU), the Motor Trade Association of South Australia (MTA), Master Builders Australia (MBA) and the Housing Industry Association (HIA).

[4] A draft summary of submissions was published on the Commission’s website on 20 April 2017. Interested parties were invited to review the draft summary of submissions to ensure their submissions were accurately characterised. No comments or submissions were received.

[5] The draft summary of submissions has been sorted into outstanding and agreed issues. The revised summary of submissions is set out at Attachment A to this Statement. The outstanding contested issues appear at items 1 to 9. Agreed issues appear at items 10 to 24.

[6] A conference was held on Friday 21 July 2017 to discuss the outstanding issues with the NTW Schedule in the Miscellaneous Award 2010. The transcript of the conference is available on the Commission’s website.

[7] The parties in attendance at the conference confirmed the accuracy of the revised summary of submissions.

[8] As to the matters remaining in contention (items 1-9) the outcome of the conference was as follows:

Item 1: no longer pressed by Ai Group

Item 2: Ai group to clarify its position, in writing, by 4.00 pm Friday 28 July 2017

Item 3: unresolved, to be determined on the papers

Item 4: unresolved, to be determined on the papers

Item 5: unresolved, to be determined on the papers

Item 6: Ai Group drew attention to the judgment of Katzmann J in CEPU v Excelior Pty Ltd [2013] FCA 638 (28 June 2013)

Item 7: the proposal by MTA (SA) is opposed by both Ai Group and the AMWU on the basis that it would effect a change to existing entitlements. Unresolved, to be determined on the papers.

Item 8: Ai Group to contact MTA (SA) to ascertain whether this item and item 7 is pressed or not, and to advise the Commission (amod@fwc.gov.au)

Item 9: unresolved, to be determined on the papers

[9] To summarise, Ai Group was to clarify its position with respect to item 2 and to contact MTA (SA) to ascertain if they wish to press items 7 and 8, and to advise the Commission by 4.00 pm Friday 28 July 2017. The AMWU will advise my chambers (chambers.ross.j@fwc.gov.au) by 4.00 pm Monday 31 July 2017 if they wish to say anything in reply to the material filed by Ai Group.

[10] The present intention is that all unresolved issues will be determined on the basis of the submissions filed. If any party wishes to file further submissions, or seeks an oral hearing in respect of any unresolved issue they should contact amod@fwc.gov.au in writing by 4.00 pm on Friday 28 July 2017.

PRESIDENT

Printed by authority of the Commonwealth Government Printer

Attachment A—revised summary of submissions—plain language draft of NTW Schedule for Miscellaneous Award 2010

This table is a summary of submissions lodged on or before 5.00pm on 22 June 2017.

ITEM	PARTY	DOCUMENT	CLAUSE (PLRDS)	SUMMARY OF ISSUE	THEIR REFERENCE	NOTES
Plain language re-draft of the NTW schedule—opposed and outstanding issues
1	Ai Group	Sub-24/03/17	A.1.1	Definitions In definition of approved training words ‘in relation to trainee’ should be deleted. Unnecessary and confusing.	Paras 7–10	Drafter comment: These words give context to the later reference to “the trainee”. It ensures the easy use later of references to the approved training of an employee.
2	Ai Group	Sub-24/03/17	A.1.2(c)	Definitions Clause should be amended as follows: not include any period during a calendar year ~~after the completion during that year of~~ in which a year of schooling is completed. The period of time during which the employee was in fact completing such schooling is no longer excluded. The legal effect of this clause is substantially different to the current NTWS. Would have significant effect on wage entitlements.	Paras 11–15	Drafter’s comment: The redrafted clause clearly excludes any period during a year after you have finished your year’s schooling.
2	AMWU	Reply sub-07/04/17	A.1.2(c)	The revised schedule would not have the effect the AIG claim as a period of schooling could not also be a period out of school.	Para 3–4
3	Ai Group	Sub-24/03/17	A.2.1	Coverage Clause should be amended to read: ‘…this schedule applies to in respect of an employee…’ NTW schedule creates entitlements for employees and obligations on employers in relation to those employees. Not appropriate that the application of the schedule be limited only to employees.	Paras 16–20	Drafter comment: prefers proposed wording of plain language draft.
4	MBA	Sub-17/03/17	A.4.1(a) – (d) A.4.2(a) – (c)	Minimum wages for full-time traineeships Minimum wages for part-time traineeships The following words at the end of these clauses, and after the word/s ‘column’ should be deleted as they have no relevance to the operation of the time-based progression provisions contained within the Miscellaneous Award NTW schedule ED and the Plain Language re-draft NTW schedule - ‘and the experience level of the trainee specified in column 1.’	3.4	Outstanding/opposed
	CFMEU	Reply submission – 06/04/17		Opposes deletion as words clearly relate to the title of Column 1 and have nothing to do with competency based progression.	Para 13
	AMWU	Reply sub-07/04/17		Opposes deletion on the basis that the reference to ‘the experience level of the trainee’ is not a reference to the competency of the trainee but to the ascribed experience accruing over time, post leaving school.	Para 17
5	Ai Group	Sub-24/03/17	A.5.1	Employment conditions The word ‘being’ should be deleted as follows: “A trainee undertaking a school-based traineeship may agree to be paid an additional loading of 25% on all ordinary hours worked instead of ~~being~~ paid annual leave…” Is unnecessary and apt to confuse. May lead to the trainee becoming entitled to ‘annual leave’ without pay.	Paras 43–46	Outstanding/opposed Drafter prefers wording of plain language draft.
5	AMWU	Reply sub-07/04/17	A.5.1	Word should remain. If trainees are not specifically excluded from an award provision, without pay, then they are entitled to access the entitlement.	Para 10–11
6	Ai Group	Sub-24/03/17	A.5.2	Employment conditions Clause should be amended to read: A trainee is entitled to be released from work ~~without loss of pay and~~ without loss of continuity of employment and to payment of the appropriate wages to attend any training and assessment specified in, or associated with, the training contract. These words may be interpreted to require the payment of any amount that would have been payable to the employee had they instead been working.	Paras 47–51	Outstanding/opposed
6	AMWU	Reply sub-07/04/17	A.5.2	Does not oppose the draft as whether travel allowances or other entitlements accrue under the terms ‘without loss of pay’ or ‘appropriate wage’, depends on the context of the modern award.	Paras 12–15	Outstanding/opposed
7	MTA	Sub-24/03/17	A.5.3	Amend clause to read ‘Time spent by a full-time trainee in attending any training and assessment specified in, or associated with, the training contract is to be regarded as time worked for the employer and in determining a full-time trainee’s employment conditions. The weekly wages in A.4.1(a) to (d) includes payment for time worked and time spent in training.’	Para 2.2.3	Outstanding/opposed
	AMWU	Reply sub-07/04/17		Oppose MTA submission. The existing clause only excludes ‘a trainee undertaking a school-based traineeship’ not all part-time trainees. Proposal would significantly extend scope of exclusion.	Para 19
	Ai Group	Reply sub – 11/04/17		Opposes MTA’s proposed re-wording of this provision (was subject of a decision of the Federal Court – does not support a change to the wording which could lead to a further round of costly litigation.	Para 10–12
8	MTA	Sub-24/03/17	A.5.3 – note	Also proposes that the ‘note’ after clause be replaced by new clause A.5.4 as follows: ‘The time to be included for the purpose of calculating the wages for part-time trainees (including a school-based trainee) is determined by A.4.2(f)(ii) and (iii) and not A.5.3. Renumber A.5.4 as A.5.5 accordingly.	Para 2.2.4 Para 2.2.5	Outstanding/opposed
8	Ai Group	Reply sub – 11/04/17		Opposes MTA’s proposed re-wording of this provision (was subject of a decision of the Federal Court – does not support a change to the wording which could lead to a further round of costly litigation.	Para 10–12	Outstanding/opposed
9	Ai Group	Sub-24/03/17	A.5.4	Employment conditions Clause should read as follows: ‘Subject to clause A.2.4, all other terms and conditions of this award apply to a trainee unless specifically varied by this schedule.’ Otherwise may have the effect of narrowing the scope of an employer’s prerogative as to how a specific provision is applied to its employees.	Para 59	Drafter comment: it is unnecessary to refer to ‘terms and conditions’. The word ‘expressly’ covers the need for an express variation.

ITEM	PARTY	DOCUMENT	CLAUSE (PLRDS)	SUMMARY OF ISSUE	THEIR REFERENCE	NOTES
Plain language re-draft of the NTW schedule—agreed and not opposed issues
10	AMWU	Sub-24/03/17	A.1.1	Definitions Terms need to be updated. In the traineeship definition, ‘Industry Skills Council’ and ‘National Quality Council’ should be replaced with ‘Skills Service Organisation’ and ‘Australian Industry and Skills Committee’.	Para 3	Agreed
	CFMEU	Reply submission – 06/04/17		The changes in definitions proposed by the AMWU are generally supported.	Para 18
	Ai Group	Reply sub – 11/04/17		Does not oppose the updating of terminology as proposed by AMWU	Para 4
11	AMWU	Sub-24/03/17	A.1.1	Definitions The definition ‘relevant Ministers’ has been deleted to reflect current arrangements.	Para 4	Definition has been re-inserted.
12	Ai Group	Sub-24/03/17	A.3(b)	Types of traineeship The following words should be reinserted ‘solely on-the-job or partly on-the-job and partly off-the-job, or where training is fully off-the-job.’ The current clause aids in understanding the basis upon which a part-time traineeship may be undertaken.	Paras 24–25	Agreed
	MBA	Sub-17/03/17		Agrees with Ai Group	3.3
	CFMEU	Reply submission – 06/04/17		Wording is not necessary in the clause. Only time the different types of training for part-time trainees is relevant is in calculating the wage rates as set out in A.4.2(f) – words are already contained within that clause.	Para 12
	AMWU	Reply sub-07/04/17		Agree with Ai Group that the terms should be deleted.	Para 6
	Ai Group	Reply sub – 11/04/17		Agree with MBA’s submission. Refers to Paras 21-25 of submission.	Para 5–6
13	Ai Group	Sub-24/03/17	A.4.1(a)	Minimum wages for full-time traineeships – Wage level A For clause to be ‘simple and easy to understand’ should be amended to make clear that it operates subject to clause A.4.3.	Para 29	Agreed
13	AMWU	Reply sub-07/04/17	A.4.1(a)	Agree with Ai Group.	Para 7-9	Agreed
14	Ai Group	Sub-24/03/17	A.4.1(b)	Minimum wages for full-time traineeships – Wage level B Clause should be amended to make clear that it operates subject to clause A.4.3.	Para 30	Agreed
14	AMWU	Reply sub-07/04/17	A.4.1(b)	Agree with Ai Group.	Para 7–9	Agreed
15	Ai Group	Sub-24/03/17	A.4.1(c)	Minimum wages for full-time traineeships – Wage level C Clause should be amended to make clear that it operates subject to clause A.4.3.	Para 31	Agreed
15	AMWU	Reply sub-07/04/17	A.4.1(c)	Agree with Ai Group.	Para 7–9	Agreed
16	Ai Group	Sub-24/03/17	A.4.1(d)(i)	Minimum wages for full-time traineeships - AQF Certificate Level IV traineeships Clause should be amended to make clear that it operates subject to clause A.4.3.	Para 32	Agreed
16	AMWU	Reply sub-07/04/17	A.4.1(d)(i)	Agree with Ai Group.	Para 7–9	Agreed
17	Ai Group	Sub-24/03/17	A.4.1(d)(ii)	Minimum wages for full-time traineeships – AQF Certificate Level IV traineeships Clause should be amended to make clear that it operates subject to clause A.4.3.	Para 33	Agreed
17	AMWU	Reply sub-07/04/17	A.4.1(d)(ii)	Agree with Ai Group.	Para 7–9	Agreed
18	MTA	Sub-24/03/17	A.4.2	Minimum wages for part-time traineeships Amend title to read ‘Minimum hourly rates for part-time traineeships’. The rates in subclauses are not the minimum wages and the calculation of the actual minimum wages is dealt with in A.4.2(f).	2.2.1	Agreed. Changes to terminology have also been made to other clauses for consistency.
18	Ai Group	Reply sub – 11/04/17	A.4.2	Although amendment is not necessary, does not oppose the change proposed by MTA.	Para 7
19	Ai Group	Sub-24/03/17	A.4.2(a)	Minimum wages for part-time traineeships – Wage level A Clause should be amended to make clear that it operates subject to clause A.4.3. Further amended to make clear that it operates subject to clause A.4.2(f).	Para 34 Para 39	Agreed
19	AMWU	Reply sub-07/04/17	A.4.2(a)	Agree with Ai Group Para 34	Para 7–9	Agreed
20	Ai Group	Sub-24/03/17	A.4.2(b)	Minimum wages for part-time traineeships – Wage level B Clause should be amended to make clear that it operates subject to clause A.4.3 and A.4.2(f).	Para 40	Agreed
21	Ai Group	Sub-24/03/17	A.4.2(c)	Minimum wages for part-time traineeships – Wage level C Clause should be amended to make clear that it operates subject to clause A.4.3 and A.4.2(f).	Para 41	Agreed
22	Ai Group	Sub-24/03/17	A.4.2(d)	Minimum wages for part-time traineeships - School based traineeships Cross reference to cl. A.4.1 should be replaced with reference to cl.A.4.3.	Para 42	Agreed
23	MTA	Sub-24/03/17	A.4.2(f)(i)	Calculating the actual minimum wage Amend initial reference to ‘hourly minimum rate’ to ‘minimum hourly rate’ This will provide better consistency in terminology in all three sub-clauses (i)-(iii) and also with A.4.2	2.2.2	Agreed
23	Ai Group	Reply sub – 11/04/17	A.4.2(f)(i)	Although amendment is not necessary, does not oppose the change proposed by MTA.	Para 8	Agreed
24	MBA	Sub-17/03/17	A.5.3	Employment conditions In the Note, ‘clause 0’ should read ‘clause A.4.2’	Para 3.5	Agreed. Correct clause reference is A.4.2(f)(ii).
	AMWU	Sub-24/03/17		Reference to ‘clause 0’ at A.5.3 should be replaced with ‘clause A.4.2(f)(ii)	Para 5
	Ai Group	Sub-24/03/17		Agrees with AMWU.	Para 60
	CFMEU	Reply submission – 06/04/17		Agrees with MBA.	Para 14
	Ai Group	Reply sub – 11/04/17		Agree with AMWU and MBA that reference to ‘clause 0’ should be amended.	Para 9

List of abbreviations (in alphabetical order)

Ai Group	Australian Industry Group
AMWU	Australian Manufacturing Workers’ Union
CFMEU	Construction, Forestry, Mining and Energy Union (Construction & General Division)
HIA	Housing Industry Association
MBA MTA	Master Builders Australia Motor Trade Association of South Australia
NTW	National Training Wage
PLRDS	Plain Language Re-draft of Schedule

1 [2017] FWCFB 1095