TRANSCRIPT OF PROCEEDINGS
Fair Work Act 2009 52917-1
SENIOR DEPUTY PRESIDENT WATSON
AM2011/24
s.160 - Application to vary a modern award to remove ambiguity or uncertainty or correct error
Application by Master Plumbers' and Mechanical Services Association of Australia, The
(AM2011/24)
Plumbing and Fire Sprinklers Award 2010
(ODN AM2008/15)
[MA000036 Print PR986378]]
Melbourne
2.18PM, WEDNESDAY, 15 JUNE 2011
THE FOLLOWING PROCEEDINGS WERE CONDUCTED VIA
TELEPHONE CONFERENCE AND RECORDED IN MELBOURNE
PN1
THE SENIOR DEPUTY PRESIDENT: Good afternoon. Who have we got appearing today? Appearances.
PN2
MR B. SHAW: I appear with MR C. HARNATH and MR K. GARDNER for the Master Plumbers and Mechanical Services Association of Australia.
PN3
THE SENIOR DEPUTY PRESIDENT: Thank you.
PN4
MS E. KANNIS: Your Honour, Kannis, E. Master Plumbers Association for Queensland.
PN5
THE SENIOR DEPUTY PRESIDENT: Thank you. Yes?
PN6
MR P. NAYLOR: Your Honour, Naylor, P. Master Plumbers and Mechanical Contractors Association New South Wales.
PN7
THE SENIOR DEPUTY PRESIDENT: Thank you.
PN8
MR P. McCRUDDEN: Your Honour, McCrudden, P, from the CEPU.
PN9
THE SENIOR DEPUTY PRESIDENT: Thank you. And in Sydney?
PN10
MR S. MEEHAN: If it pleases the tribunal, Meehan, initial S. Counsel with MR NAYLOR for the Master Plumbers and Mechanical Contractors Association of New South Wales. With me on the video link is MS PEACOCKE, solicitor, and MS YU.
PN11
THE SENIOR DEPUTY PRESIDENT: Thank you. Very well. What I propose to do today was to go through the proposed variations in order and deal with them seriatim, as it were, taking anyone's contribution as we went. And in doing that I'll take note of the change in control, as it were, of particular matters in the supplementary submission of the MPMSAA. So what I'm going to do is go to the appendix of the application and work my way through there dealing first with clause 3, the definition of the adult apprentice, which MPMSAA propose be deleted. At the same time I'll also deal with proposed variation 7, which was to vary the definition in 16.1 of the adult apprentice. Mr Shaw, do you want to say anything in relation to that?
PN12
MR SHAW: In respect of the variation to clause 3, I note that there are two opposing submissions in respect of that, one from the Master Plumbers and Contractors Association of New South Wales and one from the union. It's really a case of it was our view there should only be one definition in the award. We thought - - -
PN13
THE SENIOR DEPUTY PRESIDENT: And it should be the same definition under the current award.
PN14
MR SHAW: It should be the same definition, that's right. We're not going to sit here all afternoon arguing about that point. If it's more appropriate to keep it in clause 3 and take it out of clause 16, then it's really not a major issue as far as my client is concerned.
PN15
THE SENIOR DEPUTY PRESIDENT: The proposal from New South Wales - and I think it's supported by Queensland - is to add the words "or apprenticeship contract" which is within your proposed variation at 7 in any case. You've then deleted the additional words "to a trade within the scope of the award", which arguably is superfluous given the award only applies to persons within its scope - - -
PN16
MR SHAW: That's true.
PN17
THE SENIOR DEPUTY PRESIDENT: - - - but equally is innocuous at least. Am I right in thinking everyone is in accord that "apprenticeship contract" should be added to the definition?
PN18
MR SHAW: We do, yes.
PN19
THE SENIOR DEPUTY PRESIDENT: Yes, very well. Mr Meehan, do you want to say anything about that?
PN20
MR MEEHAN: Just this, your Honour; if it's convenient to the tribunal I won't stand - - -
PN21
THE SENIOR DEPUTY PRESIDENT: That would be more than convenient. It would allow me to see your head when you're addressing.
PN22
MR MEEHAN: Thank you, your Honour. We agree that it be a single definition. We had suggested it should be in clause 3. That seems to be the most convenient home, as it were, for the definition. The substantive issue between the association I represent and the applicant is dealt with in our written outline. I appreciate your Honour hasn't yet come to that.
PN23
THE SENIOR DEPUTY PRESIDENT: Yes.
PN24
MR MEEHAN: That's all I need to say at this stage.
PN25
THE SENIOR DEPUTY PRESIDENT: Ms Kannis, do you want to say anything on this?
PN26
MS KANNIS: No, nothing to add, your Honour, thank you.
PN27
THE SENIOR DEPUTY PRESIDENT: Mr McCrudden?
PN28
MR McCRUDDEN: No, we have no problem with the definition of terms in the definitions and we seek - - -
PN29
THE SENIOR DEPUTY PRESIDENT: Yes. Can I in that case borrow from the Act and suggest that the definition in clause 3 be amended to read, "Adult apprentice is defined in clause 16.1," so that if anyone goes to the definitions, they're directed then to the substantive provision and the definition therein; and that the definition within 16.1 would be the longer version, if you like, proposed in New South Wales. It's what's contained in the MPMSAA variation 7 but retaining the additional words "to a trade within the scope of this award". Does anyone have any significant objection to that course being followed? Very well. Let's move on, then.
PN30
"Types of employment" is the next issue. That brings up 3, 4, 5 and 6 in the MPMSAA application. The issue here is dealing with part-time employment. Mr Shaw, do you want to say anything in relation to those matters?
PN31
MR SHAW: There's probably no need to add to what's already in the written submissions. It was the view of my client that there were employees who wished to work part-time but didn't wish to lose the follow-the-job loading, which is the higher rate they get for being on daily hire. I note that a number of the other submissions have suggested that the nature of daily hire employment is inconsistent to have part-time employment. We respectfully disagree with that. Clearly what is classified now as daily hire in reality is a form of weekly hire. We have accruing RDOs over a period of 19 days, and so on. It's really a completely changed situation.
PN32
From the point of view of section 160 of the Act we believe that the full bench, by putting into an award which previously involved essentially daily hire people, the concept of part-time employment had created a position where either it would be people who would like to work part-time but it appeared they would have to lose their follow-the-job loading. I note again there are some objections to that, particularly from the union, which of course has to have equal standing to the rest of us in these proceedings.
PN33
THE SENIOR DEPUTY PRESIDENT: Yes.
PN34
MR SHAW: Rest of us put together. So it is probably arguable that this is a matter that might be best left for a review. I note that the CFMEU did object, I understand, to this whole concept. I understand that there was some possibility they might seek leave to intervene in this matter today. I also note as recently as yesterday we were informed that the Australian government will be signing the ILO part-time convention later this year. Of course, article 9 of that convention would give some strength indeed to our argument that it requires that measures will be taken to facilitate access to productive and freely chosen part-time work, provided there are all the safeguards, of course, that are provided by awards. Beyond that I've got nothing further to add.
PN35
THE SENIOR DEPUTY PRESIDENT: Can I ask you in your grounds why you say it is that the current provision would have the effect of preventing plumbing and mechanical services employees being engaged on a part-time basis?
PN36
MR SHAW: It's funny you should say that. We've been debating it here at the bar table just before you came in during the prolonged delay while the technological problems were corrected. Even though the two subclauses in clause 12 - 12.1 can be read separately, which could mean that sprinkler fitting classifications are engaged on a full-time weekly hire basis and that then there's another classification, "A full-time weekly hire employee works an average of 38 ordinary hours per week."
PN37
It's clearly arguable that enables a plumbing classification, notwithstanding clause 7, to be engaged on a weekly hire basis but not get the benefits of daily hire. But it's probably equally as arguable that that in itself has created a further ambiguity between clause 11 and clause 12. But I think I might have to concede that it's not impossible to employ a plumber or a mechanical tradesperson on a weekly hire basis, but clearly they wouldn't get the daily hire benefits.
PN38
THE SENIOR DEPUTY PRESIDENT: Yes, very well. Thank you. Does anyone else wish to put anything on that matter? Yes, Mr McCrudden.
PN39
MR McCRUDDEN: Your Honour, daily hire employees are excluded from some provisions of the National Employment Standards in that they don't get certain redundancies and that the notice of termination is eight hours' notice. So we would say the reason why the types of employment in the award are - it specifies in clause 10(c) of the award at the moment that it's for part-time weekly hire employees only. But we would agree that there's no reason why and employer could not change the conditions of employment for an employee and make them weekly hire and then employ them part-time.
PN40
The unions put up some argument during the award modernisation process and that the unions argued against part-time employment in daily hire. The master plumbers are people that argued - nobody argued at the time that there should be part-time for daily hire employees, so we say that the award should remain as it is.
PN41
THE SENIOR DEPUTY PRESIDENT: Very well. Anything from New South Wales? No.
PN42
MR MEEHAN: Your Honour, I have dealt with the matter in our written outline.
PN43
THE SENIOR DEPUTY PRESIDENT: Very well. Nothing further, then? All right, let's move on. We've already dealt with 7. That takes us to 8; the application of general conditions, the apprenticeship in clause 16.2 has been varied and replaced with the proposed wording. That goes to the question of operation of the transitional provisions, as I understand it. There seems to be some issue between various interested persons in relation to that. Mr Shaw, do you want to say anything in relation to that?
PN44
MR SHAW: Yes, your Honour. We have obviously had the opportunity now of reading the submissions essentially of other employers who are opposed to this. If I can just perhaps expand a fraction on our original submission. We take the point that that transitional provisions simply cannot apply to adult apprentices because there is no position of adult apprentice in the earlier instruments. I note that there is an argument - and it's certainly one that was put by the Fair Work ombudsman and appears to be accepted by New South Wales - that the act of employing an adult - a person over the age of 21 - as an apprentice somehow creates an award classification of adult apprentice.
PN45
We beg to differ on that. Our industrial relations system has, as you know, for 107 years been based on statute and based on specific powers of this tribunal and its predecessor. In my submission the only organisation or the only body that's empowered to include classifications in awards is Fair Work Australia or preceding that, the Industrial Relations Commission or the Arbitration Commission. The common law can't work to install or create a classification in an award. It would be similar if somebody employed a lawyer as a plumber, for example.
PN46
Apart from the fact that they might have found something useful for a lawyer to do, it wouldn't create the classification of plumber/lawyer. It might create a position in a company, of course. One would assume that there would be salary differences, et cetera, required, but it wouldn't create a classification. Having said that, we maintain that the transitional provisions can't apply to the way the award is currently worded. There is an ambiguity. We wanted to create a situation where it's quite clear that the new position of apprentice applies to people engaged under this award and the old provision continues to operate.
PN47
I note that there's quite a long part of the New South Wales submissions quoting from the full bench. In fact, they are quite correct, I will concede that, in that the transition provisions do apply to all apprentices. But the effect of that, because of the lack of an adult apprentice provision in the earlier award, is that persons engaged over the age of 21 as apprentices will transition to the new position of apprentice but not the new position of adult apprentice.
PN48
THE SENIOR DEPUTY PRESIDENT: A person engaged prior to 1 January 2010.
PN49
MR SHAW: Yes, 2010, yes.
PN50
THE SENIOR DEPUTY PRESIDENT: There's no issue as to people after that point in time?
PN51
MR SHAW: Except what we would say is the way the award is presently worded, the new rates would apply in full. There wouldn't in fact be a transition to then either.
PN52
THE SENIOR DEPUTY PRESIDENT: For persons engaged after 2010.
PN53
MR SHAW: Yes.
PN54
THE SENIOR DEPUTY PRESIDENT: That's as I would understand it, yes.
PN55
MR SHAW: We do note the strong objections that have been raised by a number of parties. I know it's a bit late to table something, but it's something that's probably going to be hard for New South Wales to see what we're tabling, but Mr Naylor can. We put a bit of lateral thinking into this and believe it is possible to vary this current award to provide for the outcome that New South Wales employers and Queensland employers want. The Victorian employers aren't wedded to the position that was put.
PN56
It was simply a question of trying to avoid a situation where maybe people do apply transitional provisions to an adult apprentice engaged after 1 January 2010 and then find that in several years' time they find themselves facing a wage claim for underpayments that somebody could argue that they should have been paid at adult apprentice rate. If you do the quick sums you could be looking at a figure of about $20,000 per employee. The way around that as we see it is to in fact take the existing apprentice wages clause and add an extra column. I have some copies here but I don't know how we're going to let Mr Meehan see them.
PN57
THE SENIOR DEPUTY PRESIDENT: Okay, yes.
PN58
MR SHAW: In my submission the effect of that - it was only thought of yesterday morning when we were discussing ways to try and overcome this apparent impasse between employers - that by adding that third column which provides that apprentice - the rates for apprentice are the percentages expressed in the two columns for plumbing apprentices and sprinkler pipefitting apprentices, and that there is another column which simply says "over 21 years of age at engagement", that rate being the adult minimum wage.
PN59
That means that a person engaged as an apprentice under the previous instruments can transition into the apprentice wages under this instrument and would then have the transition applied from their - assuming they're over 21 at the time they would then have the transition applied to the difference between their apprenticeship rate under the previous instrument and the adult minimum wage under the present instrument. The problem with that hasn't been addressed here.
PN60
There is still a further problem, however, and that is that whilst the present adult apprenticeship clause - if my view is accepted at all while the present adult apprenticeship clause remains in the award there's still the argument that somebody who was engaged subsequent to 1 January 2010 could say that, "I should have received the lot and not been transitioned." There will probably need to be some provision that the new clause - present clause - in fact be effectively deferred in its operation until, say, 1 January 2015, and that at least the third column in this clause cease to operate after 31 December 2014, which would cover even the slowest transitional period for the slowest learning adult apprentice, I would have thought.
PN61
I appreciate we're throwing something on the table completely unexpected, but it does appear to be a way to overcome what in our submission is clearly an ambiguity that just can't be described any other way as what is currently existing. It may be that if the general argument is accepted, we need to put a bit more time into it, obviously, and perhaps some of the parties could get together and do that to assist the tribunal.
PN62
THE SENIOR DEPUTY PRESIDENT: That's one possible approach, that parties might have to defer the discussions and advise me of the outcome. Thank you for that. Mr Meehan.
PN63
MR MEEHAN: Yes, your Honour. Your Honour has, I hope, our written outline. We deal with the issues as we see them. Can I make the primary submission, we submit with respect to the full bench - that is the award modernisation full bench, of which I think your Honour was a member - - -
PN64
THE SENIOR DEPUTY PRESIDENT: Yes.
PN65
MR MEEHAN: - - - who issued the transitional provisions decision, that their Honours made no error in their decision. There is no ambiguity or uncertainty. That is the bench grapples with the very issues that are now being agitated; came to a principled view as to how best to deal with those, recognising a transition would impose some onerous obligations in respect of some existing apprentices; and came to the view on balance that the better course was to apply a phasing-in approach in respect of all apprentices, that is apprentices who were pre-existing apprentices prior to the coming into operation of the modern award and those that might be employed for the first time after the coming into operation of the modern award.
PN66
We say the statutory prerequisites under section 160 for making a determination are not engaged here. Can I address one of the points Mr Shaw made (indistinct) and that goes to this notion that the state instruments - I think he put it there's no position of adult apprentice in earlier instruments. Certainly in the case of New South Wales it may be accepted that there was no specific provisions for adult apprentices as a discrete category of apprentice, but it can't be said that there were not provisions in the state instruments binding employers in respect of apprentices, including adults. If there was no distinction between adults and juniors there was no provision for apprentices that applied to all apprentices.
PN67
It's not the case, certainly in respect of New South Wales, where there was a regulatory void in respect of apprentices, be they adult or juniors. That seems to be a fundamental premise upon which Mr Shaw's client seeks a variation. We say it's, with respect, a false premise, at least so far as New South Wales is concerned. I suspect the position is no different in the southern states in that there were provisions for apprentices but there was no different engagement - except perhaps in South Australia, I think - between adults and juniors. It doesn't mean there was a void in regulation.
PN68
The full bench understood that. When reference was made to the pre-award minimum wage instruments the full bench no doubt had in mind the NAPSAs and the other preserved instruments that govern all apprentices; not just adults and not just juniors. And so the position has been, in my submission, comprehensively dealt with by the full bench and there is no ambiguity arising under schedule A in this particular modern award.
PN69
THE SENIOR DEPUTY PRESIDENT: Yes, very well. Anyone else wish to be heard on that? All right. I'll have regard to what has been put to me. The parties of course are at liberty to have further discussion in relation to what Mr Shaw has advanced today. I'll provide a period until 21 June for that to occur. If by that time there's a view amongst sufficient interested parties that some further time is required for the parties to address the matter, such further time can be sought. There is at least that period in which the parties can safety have further discussions.
PN70
If there is anything further which needs to be put to me it can be put to me and it will be posted publicly on the Net the same way as everything else has been to date. The next variation was 9, the effect of which was to exclude the application of the special fixed allowance in clause 20.2. Is there anything more you want to say in relation to that, Mr Shaw?
PN71
MR SHAW: I notice that certainly all the employers are in furious agreement on this particular point. Perhaps a bit wasn't put in. When the award was first made, my client when looking at it looked at the issue of the special fixed allowance and it didn't ring any alarm bells at all. If you look at clause 21.1(d) it starts off, "All employees in the plumbing and mechanical services classifications must be paid." Going back further into the award at clause 20.1 where there is a general issue of minimum wages, you'll see that 20.1 deals with - it's headed Classifications and refers to plumbing and mechanical services worker, sprinkler fitting worker, and so on; and then 20.2 deals with apprentice wages.
PN72
My client interpreted 21.1(d) as in fact confining that allowance to the plumbing grades that were listed in 20.1. There was subsequently an opinion expressed by our friend the Fair Work ombudsman which took a different view and believed that that indeed was an allowance that ought to apply to apprentices. It had not applied to apprentices in the Plumbing Trades Southern States Award, although there is a bit of a possible confusion here as certainly in some states it applied as a percentage, not the full $7.70. But those states didn't get - under the pre-existing awards they didn't get tool allowance or the plumbing trade allowance which had been paid under the Southern States Award and which the full bench picked up.
PN73
We say this has in fact created certainly an ambiguity and is indeed an error. Probably an error on the part of the Fair Work ombudsman, but the best way to fix that and to make it absolutely clear is to insert the words that we suggest, and I think the words that New South Wales suggests are almost identical. There's nothing further to add to that.
PN74
THE SENIOR DEPUTY PRESIDENT: Mr McCrudden, I think you expressed a view on this in your written submissions.
PN75
MR McCRUDDEN: Yes, your Honour. Apprentices in four of the states, South Australia, Western Australia, Queensland and Tasmania did have access to the special fixed allowance. I know some of them in particular only got the aggregate. In discussions with the CFMEU regarding this they have basically the same clause in their award and so we oppose the removal of the - or any changes to the award regarding the special fixed allowance. I suggest that there were swings and roundabouts when the award was modernised.
PN76
The apprentices in other states had different aggregates in the Southern States Award and there were different aggregates around the country, so there was a process that went through that sort of decided what the aggregates were. I guess that was taken into account when the special fixed allowance was worded in the way it was under the modern award, as it is now. We suggest that it remains the same.
PN77
THE SENIOR DEPUTY PRESIDENT: Thank you. Mr Meehan, do you want to say anything on that point?
PN78
MR MEEHAN: Thank you, your Honour. We support the carve-out of apprentices from that provision. We've dealt with it very briefly in our written outline. I don't wish to add anything more than what is said there.
PN79
THE SENIOR DEPUTY PRESIDENT: Yes, thank you. Anyone else on that point? The variation proposed in respect to variation 10 proposed by the MPSAA is one of those which I think they've deferred to New South Wales in relation to. Mr Meehan, do you want to say anything in addition to your submission in relation to that point?
PN80
MR MEEHAN: I do, your Honour. If I'm understanding correctly this is dealing with the - - -
PN81
THE SENIOR DEPUTY PRESIDENT: The new sub-clause in relation to trainee apprentices - - -
PN82
MR MEEHAN: Yes, trainee apprentices.
PN83
THE SENIOR DEPUTY PRESIDENT: In New South Wales.
PN84
MR MEEHAN: For that purpose - I'm sorry, your Honour.
PN85
THE SENIOR DEPUTY PRESIDENT: Yes, go ahead.
PN86
MR MEEHAN: For that purpose I seek to tender a statement of Mr Paul Naylor which I understand has at least been filed electronically with the tribunal and, I hope, served on the relevant parties.
PN87
THE SENIOR DEPUTY PRESIDENT: Yes.
PN88
MR MEEHAN: Mr Naylor of course is present before the tribunal now.
PN89
THE SENIOR DEPUTY PRESIDENT: Does everyone have that? That's the calculations for percentages of - no, it's another document, sorry. I have printed the statement. Yes, I have that. Does everyone have a copy?
PN90
MR MEEHAN: It's a statement made on 10 June 2011 and has an annexure to it.
PN91
THE SENIOR DEPUTY PRESIDENT: Yes.
PN92
MR MEEHAN: I seek to tender that in these proceedings in support of the application.
PN93
THE SENIOR DEPUTY PRESIDENT: That will be treated in the normal way as one of the documents which forms part of the proceedings. We'll check whether anyone wishes to challenge anything in the statement. That will be largely by way of submission unless there is some need to have evidence actually called, otherwise it will be admitted as material in the matter on the basis that it hasn't been challenged if there is no challenge to any of the factual matters.
PN94
MR MEEHAN: Thank you, your Honour. In a formal sense the application so far as the provisions excluding the wage amounts is concerned is brought pursuant to section 157 of the Act.
PN95
THE SENIOR DEPUTY PRESIDENT: Yes.
PN96
MR MEEHAN: We've dealt by way of outline in our written submissions with the factual basis for the application. We do draw the tribunal's attention to a decision your Honour made in respect of the Electrical, Electronic and Communications Contracting Award 2010, which is reported (2010) FWA 4410, which was a similar application. In a very real sense we appeal to the same reasoning which includes the New South Wales legislation, namely the Apprenticeship and Traineeship Act 2001, which regulates in part the engagement of apprentices in New South Wales.
PN97
One of the concerns my client has - and this was, it appears, a concern raised in support of the application in the electrical award to which I referred, is that unless there is a provision in this modern award empowering the engagement of trainees then the application process under the state legislation may well be impaired or indeed totally undermined such that the ability of an employer bound by this award to engage a trainee in New South Wales may no longer be available. We have drawn the tribunal's attention to at least one of the provisions in that New South Wales legislation which makes specific reference to the industrial award which permits - provides the trainee apprenticeship.
PN98
It's that section, section 7 subsection (3)(d), and also subsection (3)(b) of the Act that gives rise to my client's concern. Mr Naylor, in his statement, you will see deals with, as best he can based on his estimation of the incidence of trainee apprenticeships in New South Wales. The estimation in paragraph 14 is that the number of trainee apprentices varies between 10 to 20 per cent of total apprentices in New South Wales. That, in my submission, is a significant proportion. Mr Naylor also deals with the prevalence of trainee apprenticeships in rural areas and the significance of (indistinct) employers to engage trainees.
PN99
I'm told - although it's not in Mr Naylor's statement - that there are approximately 4692 apprentices in New South Wales. So a 10 to 20 per cent proportion of those in my submission is a significant number. Your Honour, we also seek to include, as you will have seen, minimum rates for trainee apprentices. Your Honour may have observed that they are higher than the rates otherwise applicable for apprentices. The calculations are set out in the annexure to Mr Naylor's statement and in the annexure to our outline of submissions.
PN100
They're perhaps a bit more complicated than in truth they are. The principle that underpins the calculation is the idea that there should be a preservation of the pay parity under the state wage instrument - that is the pre-modern award state wage instrument - between indentured apprentices and trainee apprentices. That is underpinned in the relevant percentages. If the tribunal would be assisted by some further submissions in relation to calculations we will of course accommodate that.
PN101
THE SENIOR DEPUTY PRESIDENT: The annexure to Mr Naylor's statement is headed Calculations for Percentages Applied to Trainee Apprentices. Is that the one?
PN102
MR MEEHAN: It is. Unless one is mathematically inclined, perhaps it's not obvious how the rates are arrived at, it's for that reason we would accommodate, if the tribunal would be assisted with some further submissions about that.
PN103
THE SENIOR DEPUTY PRESIDENT: Yes, certainly I'd be interested in how the rates were derived. So you've set out the all-up rate, if you like, for indentured apprentices as percentages for each year. That's been calculated from what is above the box at the bottom of the first page. You have then made similar calculations for trainee apprentices. You've then got the proportion - identified the excess (indistinct) trainee apprentices as a percentage and then applied that percentage at each year to the general apprentices' percentages in the modern award. Is that - - -
PN104
MR MEEHAN: Indeed, in the (indistinct). It's based on, as I understand it, the pre-modern award state instrument, namely the Plumbers and Gasfitters State Award, and the relevant classification against which the indentured apprentice and trainee apprentice rates are benchmarked is the journeyperson plumber, which is probably the equivalent of a plumbing and mechanical services tradesperson in the modern award. The underpinning idea is to preserve the parity between the relationship of an indentured apprentice in terms of the rate for a journeyperson plumber on one hand and the trainee apprentice to the journeyperson plumber on the other.
PN105
By and large your Honour will see on the second page of that schedule the relationship is generally around 110 per cent. You'll see in year 1 it's 110 per cent; year 2, 111 per cent; year 3, 110 per cent; and year 4, 106 per cent. I think your Honour's interpretation is right.
PN106
THE SENIOR DEPUTY PRESIDENT: That's done in effect to maintain the margin to reflect the ability to terminate at short notice and the other conditions that are - lesser conditions attached to the trainee apprentice in New South Wales?
PN107
MR MEEHAN: That's correct, your Honour.
PN108
THE SENIOR DEPUTY PRESIDENT: Yes, I understand the approach taken. Thank you.
PN109
MR MEEHAN: Unless your Honour has any further questions, they are my submissions on the traineeship provisions.
PN110
THE SENIOR DEPUTY PRESIDENT: Very well. Does anybody else wish to say anything in relation to that? No. Very well, thank you. We'll move then to variation 11 proposed by MPMSAA. That was a variation to clause 20.3 to delete industry disability allowance as prescribed and to insert in instead of, clause 21.1(a) industry allowance. Mr Shaw?
PN111
MR SHAW: There's no need to add to the written submissions.
PN112
THE SENIOR DEPUTY PRESIDENT: Anybody else wish to express a view on that variation? Okay. The next one was variation 12, clause 21.1. They are variations to the all-purpose allowance provision. Can I ask you in relation to that, Mr Shaw, in the proposed new provision, what's happened to (c), the registration allowance; the plumbing trades allowance? (a) is the definition; that's been included. That then moves the current (a) out to industry allowance up to (b); the current (b), plumbing trade allowance, to (c). What then happens to the subsequent clauses? Do they have to be renumbered?
PN113
MR SHAW: I don't think that's really involved, is it? The short answer is yes, your Honour.
PN114
THE SENIOR DEPUTY PRESIDENT: Okay. Is there anything further you want to say in relation to that?
PN115
MR SHAW: No, your Honour.
PN116
THE SENIOR DEPUTY PRESIDENT: Anyone else wish to be heard in relation to the variation 12 proposal in the application? Very well. I'll move to 13, which is the inclusion in 21.1(d) of an exclusion in relation to apprentices. That relates back to the earlier variation.
PN117
MR SHAW: Yes, that relates to variation 9.
PN118
THE SENIOR DEPUTY PRESIDENT: Sorry?
PN119
MR SHAW: That relates back to variation 9. It's the same argument. We've had that.
PN120
THE SENIOR DEPUTY PRESIDENT: So 9 and 13 have been dealt with together. Then we come back to another matter which I understand that MPA New South Wales now has carriage of, and that's proposed variation in respect to clause 21.1(h)(i), replacing the reference to the Plumbers, Gasfitters, Drainers Board with "the relevant state or territory body registered under the relevant state or territory legislation". Does anyone wish to say anything in relation to that?
PN121
MR MEEHAN: Yes, your Honour, only as I understand it, that that board no longer exists. I draw that to the tribunal's attention.
PN122
THE SENIOR DEPUTY PRESIDENT: Yes, very well. There doesn’t seem to be any controversy about that matter. Variation 15 proposed dealt with clause 21.5(b) and added words in relation to Tasmania. I'll just bring it up. That gives paragraph (ii) effect only in Tasmania. That's the effect of that. Mr Shaw?
PN123
MR SHAW: Yes, that's correct. That is the intention.
PN124
THE SENIOR DEPUTY PRESIDENT: That's done on a transitional basis?
PN125
MR SHAW: Yes. I've got nothing to add to the written submissions.
PN126
THE SENIOR DEPUTY PRESIDENT: Anything further on that proposal? Very well. Variation 16 in respect of clause 21.6, disability allowances. That was intended, as I understood the grounds, to provide clarity as to the entitlement of the particular allowances on an incidence basis.
PN127
MR SHAW: That's correct. There's nothing to add to that.
PN128
THE SENIOR DEPUTY PRESIDENT: Nothing further to it than that? Any other submissions in relation to that matter? Very well. Clause 21.7, variation 17, is related to the earlier variation, clauses 21.1, 21.6, and that puts the various allowances in alphabetical order. Nothing further to it than that?
PN129
MR SHAW: No. The two go together, as you say. I've nothing to add to the written submissions.
PN130
THE SENIOR DEPUTY PRESIDENT: Yes, very well. Good. Nobody else wishes to be heard? Good. That takes us to variation 18 in respect to weekend work. That's a variation in respect to overtime providing 150 per cent for the first two hours other than in the state of Victoria where the award was expressed as 150 per cent for the first hour and 200 per cent thereafter. That is addressed to correct an error whereby the Victorian only provision was applied generally under the award.
PN131
MR SHAW: That's correct. I've got nothing to add to what's already been submitted.
PN132
THE SENIOR DEPUTY PRESIDENT: Yes. Mr McCrudden, did you have anything on that?
PN133
MR McCRUDDEN: No, your Honour.
PN134
THE SENIOR DEPUTY PRESIDENT: Yes, anyone else?
PN135
MS KANNIS: Just to point out the importance of this clause and employers have noted it and are very, very concerned (indistinct)
PN136
THE SENIOR DEPUTY PRESIDENT: Very well. Thank you, Ms Kannis. Mr Shaw, the Victorian provision could only be maintained were it not on a transitional basis?
PN137
MR SHAW: I think that's the effect of the Act, your Honour.
PN138
THE SENIOR DEPUTY PRESIDENT: Very well. That's certainly something that's occurred to me, so I'll give consideration to the matter. The full bench dealt with those matters in considering that variation. Weekend work. Now, the two variations, 19 and 20, have both dealt with the schedule B classification definitions. I think the New South Wales association was taking carriage of these matters. Is that correct?
PN139
MR MEEHAN: There is a provision we seek to have inserted in schedule B, your Honour. That is outlined in section 13 of our outline. It seeks the insertion of a new subclause (b) at 1.10. If it's convenient, your Honour will see in the draft award that we have provided - that is the draft marked award, K67 deals with this.
PN140
THE SENIOR DEPUTY PRESIDENT: 67, yes.
PN141
MR MEEHAN: The provision we seek is in these terms:
PN142
Employees shall be paid in accordance with the level of skills required to perform the work of a particular position or job offered by an employer.
PN143
We've set out in our outline the basis for which we seek that insertion. That's dealt with specifically at paragraph 13.2 of our outline.
PN144
THE SENIOR DEPUTY PRESIDENT: Yes. That, you say, is to provide clarity.
PN145
MR MEEHAN: It is, and to - that's so, your Honour, to make clear that the skill requirements of the employer are reflected in what is required to be paid.
PN146
THE SENIOR DEPUTY PRESIDENT: Yes. Does anyone wish to be heard on that? Mr McCrudden.
PN147
MR McCRUDDEN: Yes, your Honour, I'd like to object to that. The point is the employed plumber should be paid for the skills that he has. What's to say that an employer could say to an employee, "Look, mate, I don't need you today to do plumbing work. I'll just pay you as a labourer." So I suggest that employees should be paid for the skills that they have and not what the employer wants to pay them as. We believe that if the employee has got the skills then he should be paid for the level of skill that he's got.
PN148
THE SENIOR DEPUTY PRESIDENT: Anyone else? Anything further on that point? Very well. The final one, before I get to a couple of additional ones, arose in the New South Wales submission, was clause 20. This is again a particular New South Wales provision, a registered drainer. That's simply an addition, is it, Mr Meehan, to identify the registered drainer in New South Wales for the purpose of translation?
PN149
MR MEEHAN: It is, your Honour. It seems to have been an oversight.
PN150
THE SENIOR DEPUTY PRESIDENT: Yes. Nothing more need be said about that. Yes, very well. That brings me then to two additional matters - is that correct, Mr Meehan - raised by MPA New South Wales, the attendance at technical school matter, clause 15.10.
PN151
MR MEEHAN: Yes. There is another matter in the clause that your Honour is just dealing with. It's only a minor one.
PN152
THE SENIOR DEPUTY PRESIDENT: I see.
PN153
MR MEEHAN: In addition to the registered drainer there is a roof plumber reference in the same provision, that is in (b) 2.1(c).
PN154
THE SENIOR DEPUTY PRESIDENT: I see, yes. Again, there's no issue with that? Very well. So there are actually two matters involving clause 15.10, replacement of "technical schools" with "registered training organisations" in the title and in paragraph 15.10(a). I see, the insertion in clause 3, the definitions, after the definition of plumber's labourer, a variation in respect to the plumber's labourer. And in 15.10(b) the issue was again "registered training organisation" is replacing "technical colleges or schools". So three of them deal with the replacement of "technical college" with "registered training organisation".
PN155
MR MEEHAN: Yes.
PN156
THE SENIOR DEPUTY PRESIDENT: That's right, Mr Meehan. And then there's the additional - - -
PN157
MR MEEHAN: It is, your Honour.
PN158
THE SENIOR DEPUTY PRESIDENT: Can I deal first with that change. Is there any issue about that in the title in clause 15.10 - in clause 15.10(a) and 15.10(b) - of replacing "technical college" with "registered training organisation"? Any issue about that?
PN159
MR MEEHAN: There's no issue from our point of view.
PN160
THE SENIOR DEPUTY PRESIDENT: Yes.
PN161
MR MEEHAN: Quite sensible.
PN162
THE SENIOR DEPUTY PRESIDENT: Very well, that makes sense. Now, I'll just go to clause 3, if I can. "Plumber's labourer" currently means - I see, it's nothing to do with a plumber's labourer, it's a new definition which follows the plumber's labourer definition. That is:
PN163
The registered training organisation means a training organisation registered by ASCRA or under state or territory legislation.
PN164
That's necessary because of the variations proposed to clause 15.10. Is there any issue about that definition? Very well. Are there any other matters that I've passed over or ignored? Are there any other matters - - -
PN165
MR SHAW: There is the issue of the operative date.
PN166
THE SENIOR DEPUTY PRESIDENT: Yes, I'm sorry, that was a significant matter. The operative date. Mr Shaw, is there anything further you want to say in respect of the operative date?
PN167
MR SHAW: Probably not, although I made the point in the written submissions that some of the variations could have already created a liability if it's not backdated. For example, the weekend work in other states. At least parts of it should be made operative from the date suggested. Obviously in my submission it all should be made operative from those dates. Ironically, it's not going to affect the majority of my client's members, but it will affect people in other states.
PN168
THE SENIOR DEPUTY PRESIDENT: Very well. Anyone else? Did you want to say anything on that issue, Ms Kannis?
PN169
MS KANNIS: Only to support (indistinct)
PN170
THE SENIOR DEPUTY PRESIDENT: Mr McCrudden, did you want to say anything? No. Mr Meehan?
PN171
MR MEEHAN: Yes. If I may, your Honour.
PN172
THE SENIOR DEPUTY PRESIDENT: Certainly.
PN173
MR MEEHAN: The issue of the operation of any variations will, at least as far as my client is concerned, will take on importance or not depending on the outcome of the clause 16.2 issue. That is the transitional provision. If the tribunal comes to the view that the variation sourced by the association represented by Mr Shaw should be made then my client would want to be heard in relation to the date upon which any variation would take effect.
PN174
That is because the operative date would have a profound effect on its members insofar as the rate that applied and should have applied pursuant to the transitional provisions. If the tribunal does accede to proposition of Mr Shaw's client in relation to that clause then the concern about the date of operation falls away.
PN175
THE SENIOR DEPUTY PRESIDENT: So your position is that the MPMSAA proposition in respect to clause 16.2, the transitional provisions in relation to apprentices, if acceded to, would have a significant effect on your clients, at least, and in those circumstances retrospectivity would not be appropriate. Is that in essence - - -
PN176
MR MEEHAN: It is my submission. May I respectfully illustrate the reason why?
PN177
THE SENIOR DEPUTY PRESIDENT: Yes, certainly.
PN178
MR MEEHAN: What I'm endeavouring to do of course is to address the proposal Mr Shaw has advanced as an alternative because I haven't seen it. No doubt my client will take up that opportunity to (indistinct) but leaving that aside, if the tribunal acceded to the initial application the effect would be that transitional provisions would not apply to adult apprentices employed on or after 1 January 2010. My client's members, one would expect, have taken the approach on their understanding of the full bench's decision and the modern award that rates of pay for such employees would be transitional in accordance with schedule A.
PN179
That is to say the four modern award rates would not be applicable to those apprentices during the transition period. If the tribunal acceded to Mr Shaw's submission and backdated its decision it would mean from 1 January that members of my client in New South Wales may be exposed to the difference between the base phased-in rate and the full modern award rate. That could be very significant for a large number of employers in respect of a very large number of apprentices. A retrospective operation of that variation would mean at least notionally members of my client would be exposed to underpayment.
PN180
THE SENIOR DEPUTY PRESIDENT: Yes.
PN181
MR MEEHAN: In a way it seems I'm repeating myself. We respectfully submit the full bench intended by its decision to overcome by the very transitional provisions that are in 7.
PN182
THE SENIOR DEPUTY PRESIDENT: Very well. Anyone further on that?
PN183
MS KANNIS: Only to support the principle that's been espoused by the representative for New South Wales. I guess from Queensland's perspective I was looking at retrospectivity on the basis of all of the other issues that we've been discussing. Having quite put my mind to the very - unanswered question of how your Honour will deal with the dilemma that we face ourselves with. But we agree that there will certainly be issues either way, whichever answer we come out with. It will certainly be a dilemma for our members and obviously costs as well.
PN184
THE SENIOR DEPUTY PRESIDENT: Very well. Do you want to say anything more, Mr Shaw?
PN185
MR SHAW: Not really. It's the effect of - - -
PN186
THE SENIOR DEPUTY PRESIDENT: You don't have to.
PN187
MR SHAW: Our submission really is - as I hope is being understood - is that the situation that New South Wales fear coming out of these proceedings already exists. Unless something is done to correct it - perhaps the alternative proposition I put up today which hasn't been seen by Mr Meehan may lead us somewhere - to agreement.
PN188
THE SENIOR DEPUTY PRESIDENT: Very well. Is there anything - subject only to the caveat that it's remotely relevant - that anyone else wants to say before I adjourn?
PN189
MR MEEHAN: One item if I may, your Honour. There is one additional matter, and that is the tool allowance in clause 11 in our outline of submissions.
PN190
THE SENIOR DEPUTY PRESIDENT: I'm sorry. Just let me unpack my papers. So it's in your submission?
PN191
MR MEEHAN: On page 9 at paragraph 11.18 under heading Tool Allowance.
PN192
THE SENIOR DEPUTY PRESIDENT: Yes, okay.
PN193
MR MEEHAN: In our marked up form your Honour will see the proposed changes on page 20.
PN194
THE SENIOR DEPUTY PRESIDENT: I see. That's related - you go and explain it rather than me try to explain it to you.
PN195
MR MEEHAN: Thank you, your Honour. The principal proposition is that apprentices and trainees and trainee apprentices in New South Wales have traditionally received a full tool allowance. The way the provision appears to operate is if one looks at clause 20.2(b)(ii), the aggregation of apprentice minimum weekly wage rates includes a proportion of both plumbing trade allowance and tool allowance, and you'll see by reason of the proportional rates that the effect of it is they don't get the full measure of the tool allowance which they currently would in New South Wales.
PN196
What has been attempted to be done with the variation is to carve New South Wales out from the aggregation provision but to retain their entitlement to the full tool allowance. Neither component of their aggregation wage per day stems from time before the transitional period.
PN197
THE SENIOR DEPUTY PRESIDENT: That being reflected in the proposed 20.2(b)(iv). Is that correct?
PN198
MR MEEHAN: Yes.
PN199
THE SENIOR DEPUTY PRESIDENT: Yes, I understand what you're seeking to achieve. So in effect you've removed New South Wales from the general aggregation of allowances provision and by virtue of the new 20.2(b)(iv), put your own New South Wales-specific transitional provision in respect of how those allowances are treated.
PN200
MR MEEHAN: Yes, your Honour. That would provide for the full amount of the tool allowance in clause 21.2(a).
PN201
THE SENIOR DEPUTY PRESIDENT: Yes.
PN202
MR MEEHAN: So it's really placing the New South Wales apprentices in the position they were, and that is a more favourable position.
PN203
THE SENIOR DEPUTY PRESIDENT: Yes, very well. Anyone wish to comment on that? No? Thank you for that, Mr Meehan. Is there anything further I've overlooked?
PN204
MR MEEHAN: No, your Honour.
PN205
MR McCRUDDEN: The fares.
PN206
THE SENIOR DEPUTY PRESIDENT: Mr McCrudden.
PN207
MR McCRUDDEN: The draft changes to the fares, I think Mr Shaw lodged a document. I think it's a draft determination. I think your Honour posted one on 2 June.
PN208
MS KANNIS: Perhaps if I could help, your Honour. Application number is 2011/30, instead of - - -
PN209
THE SENIOR DEPUTY PRESIDENT: 2011/30.
PN210
MS KANNIS: Yes, 2011 of 30, not - this one is 24.
PN211
THE SENIOR DEPUTY PRESIDENT: Yes, that's a separate matter. If you've got any views on that you could just put them in writing and submit them and they'll be posted. Your views will be taken account of, Mr McCrudden. Very well. I thank you for your assistance. I'll adjourn the consultation. As I indicated, if the parties wish to confer in respect to the issues earlier identified prior to 21 June, they may do so. If they require more time they can be sought. I'll await any further advice. Anything further they receive in relation to that matter will be posted on the web site so everyone is aware of it. I'll now adjourn.
<ADJOURNED INDEFINITELY [3.40PM]