| [2020] FWCFB 320 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.156—4 yearly review of modern awards
4 yearly review of modern awards – Architects Award 2010
(AM2018/16)
DEPUTY PRESIDENT GOSTENCNIK |
MELBOURNE, 22 JANUARY 2020 |
4 yearly review of modern awards – Architects Award 2010 – Award Stage – substantive issues.
Introduction
[1] On 12 September 2019 we issued a Decision 1 (the September 2019 Decision) in relation to the 4 yearly review of the Architects Award 2010 (the Architects Award). In that decision we rejected three award variations sought and agreed to three other variations sought by the Association of Consulting Architects Australia (ACAA). A Draft Determination reflecting the September 2019 Decision was appended to the decision.
[2] We expressed provisional views at paragraphs [34] and [38] of the September 2019 Decision in relation to the insertion of a new classification and associated pay structure for persons holding a “Completed Bachelor’s Degree with a pathway to a Master of Architecture” 2.
[3] Interested parties were provided with an opportunity to comment on the Draft Determination and the provisional views we expressed, by no later than 30 September 2019. Submissions were subsequently filed by the ACAA and the Association of Professional Engineers, Scientists and Managers, Australia (APESMA).
[4] This decision determines the issues which were the subject of the Draft Determination and our provisional views referred to above and should be read in conjunction with the September 2019 Decision.
Consideration
Graduate of Architecture
[5] In the September 2019 Decision we dealt with the claim for insertion of a new classification into the Architects Award, that of a ‘Bachelor’s Degree with a pathway to a Master of Architecture’. We agreed with the submissions of the ACAA and APESMA that there was a lack of clarity in the existing classification definition of ‘student of architecture’ in the Architects Award. Specifically, it did not recognise possession of a relevant design based Bachelor’s Degree qualification, that being a necessary step towards attainment of the ‘Approved Qualification’ of a Master of Architecture under the Architects Award.
[6] While accepting the claim, which was supported by APESMA, we identified a need to clarify the existing definition of ‘student of architecture’. We expressed our preliminary view on the claim in the following terms:
“[34] We consider the introduction of a new classification of ‘Bachelor’s Degree with a pathway to a Master of Architecture’, without clarifying the definition of ‘student of architecture,’ is likely to result in residual uncertainty. Specifically, there would be uncertainty as to the classification that would apply to an employee who holds a relevant Bachelor’s Degree and is enrolled in a Master of Architecture course. If the current ‘student of architecture’ definition were not amended it may lead to confusion whether such an employee is to be classified as a ‘student of architecture’ or as an employee with a ‘Bachelor’s Degree with a pathway to a Master of Architecture’. It is therefore our preliminary view that the following definitions should be included at clause 3 of the Architects Award:
“3. Definitions and interpretation
3.1 In this award, unless the contrary intention appears:
…
Bachelor’s Degree with a pathway to a Master of Architecture means an employee who holds a design based Bachelor’s Degree which would allow them to apply for enrolment in an approved Master of Architecture program qualifying them for admission to the Architectural Practice Examination (APE) for registration as an Architect under Australian legislation.
…
Student of Architecture is an employee who is normally enrolled full-time in a design based Bachelor’s Degree course of architecture and who is employed to gain experience in the practice of architecture.
…”
[35] These definitions would have the consequence that an employee who has completed a Bachelor’s Degree would be classified at the level of ‘Bachelor’s Degree with a pathway to a Master of Architecture’ regardless of whether the employee was enrolled in a Master of Architecture course. This would result in a 4 step classification structure as sought by ACAA and can be summarised as follows:
1. Student of Architecture (currently enrolled in a design-based Bachelor’s Degree course);
2. Bachelor’s Degree which allows the person to apply for enrolment in an approved Master of Architecture course;
3. Graduate of Architecture (Bachelor’s Degree and Master of Architecture); and
4. Registered Architect (Bachelor’s Degree, Master of Architecture and the Architectural Practice Examination).”
[7] We also went on to propose pay rates for the new classification in terms different to that proposed by the parties. Our provisional view on the new classification pay rates was set out at paragraph [38] of the September 2019 Decision as follows:
“[38] Based on our preliminary view, we propose to insert the following table of rates at clause 15.4(c) with consequent re-numbering of the current sub-clauses 15.4(c)-(g). Our reasons for proposing this clause structure rather than as proposed by the parties is that a number of the other sub-clauses in clause 15 also appear relevant to the proposed new clause 15.4(c) which would be as follows:
(c) Employees holding a Bachelor’s Degree with a pathway to a Master of Architecture will be paid the following minimum rate or percentage of the first year Graduate or Architecture rate of payment:
Service |
Minimum rate or % of Level 1—Entry rate |
1st year of experience |
85% |
2nd year of experience |
90% |
3rd year of experience |
95% |
[39] The final point we would raise in relation to the classification structure is that of the logic of preserving the current 4th, 5th and 6th year of experience rates for the ‘student of architecture’ classification in circumstances where we have proposed a revised definition of ‘student of architecture’ that clarifies that it applies only to employees enrolled in a Bachelor’s Degree course and not to those who may be enrolled in a Master of Architecture course. It appears to us that to preserve the existing progression levels of the 4th, 5th and 6th year of experience rates for ‘student of architecture’ would create anomalies with the 1st, 2nd and 3rd years rates of experience proposed for ‘Employees holding a Bachelor’s Degree with a pathway to a Master of Architecture’.”
[8] In response to our provisional views and the Draft Determination, APESMA in its submissions dated 25 September 2019 expressed support for both the proposed variations to Clause 3. Definitions and Interpretation detailed at [34] and the proposed table of pay rates detailed at [38] of the September 2019 Decision. We propose a minor modification to the above table by deleting “minimum rate or %” and inserting “Percentage” in the heading of the second column.
[9] ACAA in its submission dated 30 September 2019 suggested a minor change to the definition of the new classification in clause 3 in the following terms:
“Bachelor’s Degree with a pathway to a Master of Architecture means an employee who holds a design based Bachelor’s Degree which would allow them to apply for enrolment or be enrolled in an approved Master of Architecture program qualifying for admission to the Architectural Practice Examination (APE) for registration as an Architect under Australian legislation. (our emphasis added).
[10] ACAA submits that the highlighted additional words “to be enrolled” are intended to make clear that the new classification covers employees working in an architectural practice who have completed the “design based Bachelor Degree”, and are enrolled in “an approved Master of Architecture program” as well as those employees working in an architectural practice who have completed the “design based Bachelor Degree” but are not enrolled in “an approved Master of Architecture program”.
[11] We have considered ACAA’s proposed insertion of the additional words “to be enrolled” and agree that they provide clarity. Insertion of the additional words give effect to the intention that the definition applies to employees with the relevant design based Bachelor’s Degree qualification regardless of whether an employee is enrolled in an approved Master of Architecture program. We intend to reflect the proposed wording in a revised Draft Determination.
[12] In further reviewing the proposed new classification definition we have also considered the need for consistency in the language used within the definitions of ‘Bachelor’s Degree with a pathway to a Master of Architecture’ and ‘Student of Architecture’. As a consequence, we consider that some further changes to the definitions are warranted and we propose to include the following definitions at clause 3 of the Architects Award:
“3. Definitions and interpretation
3.1 In this award, unless the contrary intention appears:
…
Bachelor’s Degree with a pathway to a Master of Architecture means an employee who holds a design based Bachelor’s Degree which would allow them to apply for enrolment or be enrolled in an approved Master of Architecture program qualifying for admission to the Architectural Practice Examination (APE) for registration as an Architect under Australian legislation..
…
Student of Architecture is an employee who is normally enrolled full-time in a Bachelor’s Degree with a pathway to a Master of Architecture and who is employed to gain experience in the practice of architecture.” (emphasis added)
…”
[13] The proposed insertion of the words ‘Bachelor’s Degree with a pathway to a Master of Architecture’ into the definition of ‘Student of Architecture’ would, in our view, properly align the language used in the definition of ‘Student of Architecture’ with that used in the definition of ‘Bachelor’s Degree with a pathway to a Master of Architecture’.
[14] A revised Draft Determination will be issued reflecting the above proposed changes on which interested parties will have an opportunity to make comments.
Progression from Graduate of Architecture to Registered Architect
[15] In the September 2019 Decision we also dealt with a claim for the insertion of revised Prescribed Competencies at clause 15.2(c) of the Architects Award. Clause 15.2(c) describes the Prescribed Competencies necessary for progression from Graduate of Architecture to a Registered Architect. We agreed to the claim and the revised Prescribed Competencies were included in the Draft Determination.
[16] In further written submissions received from ACAA on 17 December 2019, ACAA identified typographical errors in the Draft Determination with respect to the Prescribed Competencies. The errors identified were as follows:
• At clause 15.2(c)(ii) the ‘Design: Pre-Design’ competency included in error, the words “Application of principles controlling planning, development and design for the project site”. The inclusion was in error as those words are properly included at clause 15.2(c)(iii) and should not be duplicated at clause 15.2(c)(ii). The ACAA seeks removal of the above wording from sub-clause 15.2(c)(ii).
• Sub-clause 15.2(c)(iv) in the Draft Determination which describes the competency as ‘Design; Conceptual Design’ partially duplicates sub-clause 15.2(c)(iii) in error and should be removed according to ACAA. Removal of the partially duplicated sub-clause would require renumbering of subsequent sub-clauses.
[17] We have considered the typographical errors raised by ACAA and agree that it is appropriate to correct those apparent errors. A revised Draft Determination will be issued reflecting the proposed corrections on which interested parties will have an opportunity to make comments.
Next Steps
[18] The variations we propose to make are set out in a final draft variation determination which is attached to this decision (see Attachment A). We propose to provide interested parties with an opportunity to comment on the final draft variation determination. Any comments are to be made, in writing to amod@fwc.gov.au by no later than 14 February 2020. Any outstanding issues will be determined on the written material filed unless a request for an oral hearing is received by 14 February 2020.
DEPUTY PRESIDENT
Printed by authority of the Commonwealth Government Printer
| MA000079 PRXXXXXX |
DRAFT DETERMINATION |
Fair Work Act 2009
s.156—4 yearly review of modern awards
4 yearly review of modern awards
(AM2018/16)
ARCHITECTS AWARD 2010
[MA000079]
Technical services | |
DEPUTY PRESIDENT GOSTENCNIK |
MELBOURNE, XX MONTH 2020 |
4 yearly review of modern awards – Architects Award 2010 – Award Stage – substantive issues.
A. Further to the decisions issued by the Full Bench of the Fair Work Commission on 22 January 2020 [[2020] FWCFB 320] and 12 September 2019 [[2019] FWCFB 6138], the Architects Award 2010 is varied as follows:
1. By inserting the following definition in clause 3.1 in alphabetical order:
Bachelor’s Degree with a pathway to a Master of Architecture means an employee who holds a design based Bachelor’s Degree which would allow them to apply for enrolment or be enrolled in an approved Master of Architecture program qualifying for admission to the Architectural Practice Examination (APE) for registration as an Architect under Australian legislation.
2. By deleting the definition of “student of architecture” in clause 3.1 and inserting the following:
Student of Architecture is an employee who is normally enrolled full-time in a Bachelor’s Degree with a pathway to a Master of Architecture and who is employed to gain experience in the practice of architecture.
3. By deleting clause 15.2(c) and inserting the following:
(c) The Prescribed Competencies against which the experience is to be documented are as follows:
(i) Design: Project Briefing
• Establishment, analysis and evaluation of client project requirements and objectives.
• Identification of factors that may impact on client project requirements and objectives.
(ii) Design: Pre-Design
• Identification, analysis and integration of information relevant to siting of project.
(iii) Design: Conceptual Design
• Design response incorporates assessment of relevant legislation, codes and industry standards.
• Application of principles controlling planning, development and design for the project site.
• Ability to prepare drawings which communicate a scheme design.
• Consideration of material characteristics with regard to the design, durability and aesthetic qualities and environmental considerations.
(iv) Documentation: Detailed Design
• Evaluation and integration of regulatory environments.
• Exploration of and explanation of construction techniques and details suitable to a design.
(v) Documentation: Documentation
• Identification and adoption of a strategy, program and process of documentation integrated through all project stages to enable project delivery.
• Continuing coordination and integration of information and project material from relevant consultants, specialists and suppliers.
• Incorporation of the project requirements and objectives in accordance with Project Brief and approved Detailed Design.
• Timely completion and communication of accurate and comprehensible documents that will include, as required, drawings, models, specifications, schedules and other relevant modes of information.
• Project documentation is in accordance with, and appropriate to, the project contract and project procurement procedure.
• Engagement with manufacturer’s material systems instructions and guidelines.
• Preparation of drawings to explain how a project should be assembled.
(vi) Project Delivery: Procurement
• Identification of available procurement methods and assessment of relevance and application to the project.
(vii) Project Delivery: Construction Stage
• Identification and application of the process and administration systems needed to fulfil all obligations under project contract.
• Construction progress and quality is systematically reviewed and monitored as required under the contract provisions.
• Identification and application of all relevant processes required for certification of monetary claims, project variations, and extensions of time, project instructions or other administrative responsibilities under the contract provisions.
4. By deleting the table appearing in clause 15.4(a) and inserting the following:
Service |
% of Level 1—Entry rate |
First 13 weeks of employment |
35 |
Next 13 weeks of employment |
50 |
Next 26 weeks of employment |
65 |
2nd year of experience |
70 |
3rd year of experience |
75 |
5. By deleting the table appearing in clause 15.4(b) and inserting the following:
Service |
Minimum rate or % of Level 1—Entry rate |
Less than 3 years of experience |
$740.80 |
3rd year of experience |
75% |
6. By renumbering clauses 15.4(c) to (g) as clauses 15.4(d) to (h).
7. By inserting a new clause 15.4(c) as follows:
(c) Employees holding a Bachelor’s Degree with a pathway to a Master of Architecture will be paid the following minimum rate or percentage of the first year Graduate or Architecture rate of payment:
Service |
Percentage of Level 1—Entry rate |
1st year of experience |
85% |
2nd year of experience |
90% |
3rd year of experience |
95% |
8. By deleting clause 16.3 and inserting the following:
16.3 Equipment and special clothing allowance
(a) Where the employer requires an employee to provide relevant technical equipment or special clothing, the employer must reimburse the employee for the costs of purchasing such equipment.
(b) On occasion when required for on-site use, the employer must pay an allowance equivalent to the cost of necessary protective clothing.
(c) The provisions of clause 16.3(a) and (b) do not apply where the employer supplies such equipment and special clothing without cost to the employee.
9. By updating the cross-references accordingly.
B. This determination comes into operation from XX Month 2020. In accordance with s.165(3) of the Fair Work Act 2009 this determination does not take effect until the start of the first full pay period that starts on or after XX Month 2020.
DEPUTY PRESIDENT
Printed by authority of the Commonwealth Government Printer
2 Ibid at [34]-[38]