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TRANSCRIPT OF PROCEEDINGS
Fair Work Act 2009
DEPUTY PRESIDENT GOSTENCNIK
DEPUTY PRESIDENT CLANCY
COMMISSIONER HARPER-GREENWELL
s.156 - 4 yearly review of modern awards
Four yearly review of modern awards
(AM2016/14)
Manufacturing and Associated Industries and Occupations Award 2010
Sydney
11.01 AM, TUESDAY, 30 AUGUST 2016
PN1
DEPUTY PRESIDENT GOSTENCNIK: Yes, good morning. Mr Ferguson you continue your appearance for the Ai Group?
PN2
MR FERGUSON: Yes, I do, Deputy President.
PN3
DEPUTY PRESIDENT GOSTENCNIK: And Mr Tegg likewise for the AMWU?
PN4
MR TEGG: Yes, your Honour.
PN5
DEPUTY PRESIDENT GOSTENCNIK: We have the matter of dealing with the AMWU's witness so unless both - either party want to make opening submissions?
PN6
MR FERGUSON: No, we're content to move straight into the evidence, and that will be brief.
PN7
DEPUTY PRESIDENT GOSTENCNIK: Yes. Mr Tegg?
PN8
MR TEGG: Yes, I'm sorry.
PN9
DEPUTY PRESIDENT GOSTENCNIK: Call your witness.
PN10
MR TEGG: I call Mr Curry.
PN11
THE ASSOCIATE: Please state your full name and address?
MR I CURRY: Ian Ward Curry (address supplied).
<IAN WARD CURRY, AFFIRMED [11.02 AM]
EXAMINATION-IN-CHIEF BY MR TEGG [11.02 AM]
PN13
DEPUTY PRESIDENT GOSTENCNIK: Yes, thank you, Mr Curry. Take a seat. Yes, Mr Tegg?
*** IAN WARD CURRY XN MR TEGG
PN14
MR TEGG: Mr Curry, have you prepared a statement for these proceedings?‑‑‑I have.
PN15
Do you have a copy of that statement with you?‑‑‑I do.
PN16
Is this statement dated 1 August 2016 and is it 10 paragraphs long?‑‑‑It is.
PN17
Do you wish to make any changes to your statement?‑‑‑I've noted an error in paragraph 3 with the name of one of the bodies that I've been involved in. It's - in the document it's entitled "A grievance dispute resolution committee". It should in fact be "Grievance dispute mediation committee".
PN18
And that's the fourth line down as it appears on the page?‑‑‑That's the fourth line down in paragraph 3.
PN19
Are there any changes?‑‑‑No.
PN20
Is everything in your statement true and correct to the best of your knowledge?‑‑‑Yes.
PN21
Your Honour, I tender the statement.
PN22
MR FERGUSON: Your Honour, I'd seek to raise one objection in relation to the statement. It's in relation to paragraph 9. The paragraph amounts to what is in effect opinion or submission about what costs should appropriately be passed on to apprentices. It's not a statement of any evidence as such. It just goes to Mr Curry's opinion as to what would be appropriate or inappropriate, rather.
PN23
DEPUTY PRESIDENT GOSTENCNIK: Mr Tegg?
PN24
MR FERGUSON: And we'd seek that that be deleted or struck out.
PN25
DEPUTY PRESIDENT GOSTENCNIK: I understand.
*** IAN WARD CURRY XN MR TEGG
PN26
MR TEGG: Look, in our view this is a statement based on Mr Curry's experience, which is outlined in the document as being quite substantial and his views as someone who sits on a range of regulatory bodies as to how these systems and schemes should work, and in that capacity it helps to assist and inform the Commission as to the impact of the variation that's being sought.
PN27
DEPUTY PRESIDENT GOSTENCNIK: Yes, all right. I'm not sure that it carries much weight but we will allow the paragraph and the parties can make submissions as to why it (indistinct) on that basis.
PN28
MR TEGG: Nothing further, your Honour.
DEPUTY PRESIDENT GOSTENCNIK: We will mark the witness statement of Ian Curry, noting the amendment to paragraph 3, comprising 10 paragraphs and dated 1 August 2016 as exhibit 1.
EXHIBIT #1 WITNESS STATEMENT OF IAN CURRY WITH AMENDMENT TO PARAGRAPH 3, COMPRISING 10 PARAGRAPHS AND DATED 01/08/2016
DEPUTY PRESIDENT GOSTENCNIK: Yes, Mr Ferguson?
CROSS-EXAMINATION BY MR FERGUSON [11.05 AM]
PN31
MR FERGUSON: Thank you.
PN32
Mr Curry, my name is Mr Ferguson as you know. I just have a small number of questions in relation to matters associated with your statement. I take you to paragraph 3 of your statement. I'm correct to assume that your experience there involves only dealing with trainees in South Australia?‑‑‑And other places. I mean those particular bodies are South Australian bodies.
PN33
They only hear disputes, if I can call it that, from employee - from trainee - - -?‑‑‑Sorry, I'm just - - -
PN34
They only deal with disputes involving trainees based or working in South Australia?‑‑‑Those disputes, yes. Yes.
PN35
So as part of that role you don't deal with employees or trainees that are based in other States?‑‑‑I provide advice and policy assistance and industrial advice to officials all over the country in terms of disputes about apprentices and trainees.
PN36
Is that in terms of your broader role?‑‑‑Yes, that's in terms of my broader role.
*** IAN WARD CURRY XXN MR FERGUSON
PN37
Yes. Yes, and then in terms of your broader role am I right to assume that overwhelmingly it involves providing advice in relation to members of the AMWU?‑‑‑I don't specifically ask the question whether the people - the officials - - -
PN38
You don't know?‑‑‑I don't know whether they are or not.
PN39
You said you would provide to officials in relation to disputes involving trainees. Am I right to take it that your role now primarily involves advising officials as opposed to advising individual trainees?‑‑‑I do both.
PN40
I'll just take you to paragraph 5 of your statement. You there say it's your experience that:
PN41
taxpayers pay the bulk of training fees associated with traineeship and apprenticeship training through direct subsidies and that any residual costs of training, text books and travel are paid for by employers either directly or by reimbursement.
PN42
Now I understand that trainees might undertake two types of travel, if I can call it that, long distance travel and also short travel that is just within close proximity to where they live or work?‑‑‑Yes.
PN43
I take it you'd accept that employers don't ordinarily pay travel costs of trainees undertaking short travel which is close to their work or home?‑‑‑I would say that they would be paying for travel that was in excess of that which was normally incurred travelling to work. So maybe I could describe that as excess travel for those short travel requirements that I think you mean.
PN44
Do you know how many trainees are covered by the three awards the subject of this application?‑‑‑I don't know how many.
PN45
Well, in the context there's no further questions.
PN46
DEPUTY PRESIDENT GOSTENCNIK: Yes. Thank you.
PN47
Any re‑examination?
*** IAN WARD CURRY XXN MR FERGUSON
PN48
MR TEGG: No, your Honour.
DEPUTY PRESIDENT GOSTENCNIK: Mr Curry, thank you for your evidence. You're excused?‑‑‑Thank you.
<THE WITNESS WITHDREW [11.09 AM]
PN50
DEPUTY PRESIDENT GOSTENCNIK: Yes.
PN51
MR FERGUSON: Yes, sorry, I'm just - - -
PN52
DEPUTY PRESIDENT GOSTENCNIK: Yes, Mr Ferguson. That's all right. Before we get to your submissions, Mr Ferguson, Mr Tegg there are a number of documents that are attached to the submissions that you've filed.
PN53
MR TEGG: Yes, your Honour.
PN54
DEPUTY PRESIDENT GOSTENCNIK: Are you seeking that those documents be read as part of the submissions or separately tendered as evidence in these proceedings?
PN55
MR TEGG: I'm content for them to be considered with the submission, depending on how the Commission would like to - - -
PN56
DEPUTY PRESIDENT GOSTENCNIK: Well, it's a matter for you.
PN57
MR TEGG: I'm happy for them to be read as part of our submission unless there's any?[sic]
PN58
MR FERGUSON: No.
PN59
DEPUTY PRESIDENT GOSTENCNIK: Yes. Yes, Mr Ferguson?
PN60
MR FERGUSON: Thank you, your Honour. The Bench would be aware the Ai Group has proposed to amend three awards as part of these proceedings; the Manufacturing and Associated Industries and Occupations Award 2010, the Graphic Arts, Printing and Publishing Award 2010 and the Food, Beverage and Tobacco Manufacturing Award 2010. We've filed draft determinations in relation to the graphic arts and manufacturing award in April and then a subsequent draft determination in May for food and beverage. I trust the Bench has those.
PN61
DEPUTY PRESIDENT GOSTENCNIK: Yes.
PN62
MR FERGUSON: We've also filed detailed submissions dated 17 June in support of those applications. I rely on that material and I don't want to traverse all of the detail of that today. What I had proposed to do is really amplify some of the main points, build on some of the main points, address any questions that may fall from the Bench and respond to some of what has been put by my friend. Look, in essence we're seeking to vary a clause in each of the awards that deals with the training costs and is cast in relatively similar terms.
PN63
I think an appropriate starting point might be to take the Full Bench to the terms of the relevant - or the manufacturing award. I'll note I've handed up two folders of material. The first folder, volume 1, contains a copy of all the authorities that we've referred to in our written submissions. The second folder contains some material, being the three relevant awards, and a copy of three decisions that I was going to take the Bench specifically to today.
PN64
I take the Bench firstly to tab 2 of volume 2. That contains the manufacturing award. I note I intended to make submissions by reference to the award in its current form. There is an exposure draft for the manufacturing award but there are in fact multiple versions of the exposure draft so it seemed best to avoid getting involved with that document. Now if I take the Full Bench to clause 32.5 it there sets out the primarily relevant provision. 32.5(a) provides that:
PN65
Any costs associated with standard fees for prescribed courses, prescribed text books, excluding those text books which are available in the employer's technical library, incurred by an employee in connection with training agreed to by the employer must be reimbursed by the employer on the production of evidence of such expenditure by the employee provided that the reimbursement may be on an annual basis subject to the presentation of reports and satisfactory progress.
PN66
(b) then deals with travel costs and provides that:
PN67
Travel costs incurred by an employee undertaking training agreed to by the employer which exceed those normally incurred in travelling to and from work must be reimbursed by the employer.
PN68
Now (c) then provides in effect an exemption that relates to certain training undertaken by apprentices. It provides that:
PN69
Clause 32.5 does not apply to costs associated with training that are in connection with an apprentice's training contract. Such costs are subject to clause 15 and not this clause.
PN70
In effect we're seeking a further paragraph, or we are seeking a further paragraph, paragraph (d) that says:
PN71
Clause 32.5 does not apply to costs associated with training that are in connection with the trainee's training contract.
PN72
And we're seeking the same in the Food, Beverage and Tobacco Manufacturing Award because the terms are cast in exactly the same terms and we're seeking in effect a similar provision in the Graphic Arts Award but there are some slight nuances in the structure of that which I'll come back to. I note that (c) was inserted during the course of the two year review as a product of an application or claim by the Ai Group seeking to exclude apprentices from the ambit of this clause.
PN73
I'll come back to that but I'll note that we did seek a similar provision in the context of that case in relation to trainees, but that claim wasn't granted and I'll address the reasons why. The other primarily relevant provisions or one of the other primarily relevant provisions is paragraph 15 or clause 15. If I can take the Bench to that briefly. Clause 15.11(b) and (c) are the provisions I was proposing to speak to. I won't read all of those provisions but what you can see there is that this clause provides for apprentices an entitlement to the payment of fees and text books for certain training that's associated with the training contract and there are some specific rules around when the payment will be provided or in what circumstances the payment could be provided and how it will operate.
PN74
It's a clause that fell out of those common issues proceedings in the two year review dealing with the apprentice common claims and it was a response to the claims advanced by the unions. (c) then deals with travel payment for block release training and again you can see it is a carefully crafted provision that deals with an entitlement to receive certain costs associated with certain training that's taken or undertaken in connection with their training contract but it's limited.
PN75
It's limited to block release training, it's limited to training that requires an overnight stay, and there are other specific limitations about what particular costs would actually be caught; and there's expression provision for example that the travel costs do not include payment for travelling time or expenses incurred while not travelling. So again it's quite a detailed provision and it has been specifically tailored to the needs of training undertaken by apprentices in relation to the training contract.
PN76
An important point is it's narrower than what 32.5 provides for so if we assume for a moment that 32.5 applies to trainees and to all training undertaken by them including training undertaken pursuant to the training contract, what this means is the award provides for a somewhat anomalous outcome whereby apprentices have a much narrower or reduced entitlement to training than trainees do. We say that clause 32.5 doesn't provide an obligation to pay costs for training undertaken in the course of a training contract, but if we're wrong on that we say that this is quite an anomalous and quite an unfair outcome and there can be no justification for continuing to give trainees greater entitlements than those which the Full Bench has deemed are necessary in the context of apprentices.
PN77
For completeness I take the Bench to clause 18. That is the provision that deals with trainees. I accept this provision doesn't afford a comparable entitlement to trainees that clause 15 does in relation to apprentices. That's in part a consequence of the fact that in the two yearly review the unions did not pursue an application to extend trainee entitlements. A claim sort of bubbled up towards the end of the proceedings but was not ultimately entertained by the Bench. They didn't mount an application and they haven't mounted an application here to extend the entitlements of trainees.
PN78
As I've said we're effectively intending to limit the application of the comparable clauses to 32.5 in all of the awards so that they don't apply to the training undertaken by trainees in connection with a training contract or they don't occur to costs - apply to costs associated with such training. I suppose one of the primary legs of argument or basis of argument that we're mounting our case on is a view that clause 35.2[sic] does not capture costs associated with training undertaken by an apprentice or training in accordance with a training contract when properly interpreted.
PN79
In support of that interpretation we point to the historical context underpinning these provisions in the manufacturing award. At paragraphs 5 to 50 we set out the relevant history of clause 32.5 of the award. This commences with an examination of the intention behind its insertion in the 1984 Metals Award in 1990 as part of the award restructuring process that was associated with the implementation of the structural efficiency principle. The history that we set out there in detail then moves through various iterations of the clause under the various forms of the award as it has evolved over time.
PN80
As I said, I don't propose to take the Bench through all of that history now given that we've carefully set it out, and we've included in there associated material that we say goes to the interpretation, including various publications that were released jointly by the relevant associations at the time and explained for the purpose of the relevant clause. I urge the Bench to visit that detail and I won't repeat it now. What we say is it's very clear from that history that it has never been intended that clause 32.5 applies to training undertaken by a trainee pursuant to a training contract.
PN81
A case for this application has never been accepted by the Commission or its predecessors. Rather, we say that the provision was intended to facilitate training that was linked to the 14 level classification structure in the award or introduction of that structure and associated approach of adopting competency based classifications and relevant career paths. In our submission, I don't think we squarely say why it's appropriate to have regard to this industrial history in considering the proper interpretation of the clause.
PN82
In our second volume of material or of authorities though we include key authorities relating to this matter - to this issue, and we say that the authorities provide that awards must be interpreted in the industrial context in which they are made and with reference to the history and context of the relevant provisions. I'll take the Bench first briefly to tab 4 of the second volume of authorities. We there include the decision of Amcor v CFMEU [2005] 222 CLR 241. It's a decision involving interpretation of an agreement but we - I propose to read an extract from the decision of Kirby J that we rely upon that was contained at paragraph 96. It spoke to the approach to be adopted. It there said:
PN83
The nature of the document, the manner of its expression, the context in which it operated and the industrial purpose it served combine to suggest that the construction to be given to clause 55.1.1 should not be a strict one but one that contributes to a sensible industrial outcome such as should be attributed to the parties who negotiated and executed the Agreement. Approaching the interpretation of the clause in that way accords with the proper way, adopted by this Court, of interpreting industrial instruments and especially certified agreements. I agree with the following passage in the reasons of Madgwick J in Kucks v CSR Limited, where his Honour observed:
PN84
"It is trite that narrow or pedantic approaches to the interpretation of an award are misplaced. The search is for the meaning intended by the framer(s) of the document, bearing in mind that such framer(s) were likely of a practical bent of mind: they may well have been more concerned with expressing an intention in ways likely to have been understood in the context of the relevant industry and industrial relations environment than with legal niceties or jargon. Thus, for example, it is justifiable to read the award to give effect to its evident purposes, having regard to such context, despite mere inconsistencies or infelicities of expression which might tend to some other reading. And meanings which avoid inconvenience or injustice may reasonably be strained for. For reasons such as these, expressions which have been held in the case of other instruments to have been used to mean particular things may sensibly and properly be held to mean something else in the document at hand."
PN85
We note that that above passage from Kucks v CSR Limited was quoted with approval by Callinan J in CFMEU v Amcor also and the decision of the Federal Court in Kucks v CSR can be found at tab 5 in volume 2 of the authorities, and I won't take you to it in any detail. We also rely in support of our proposition in relation to proper approach of interpretation on the judgment of Burchett J in the often cited authority of Short v Hercus Pty Ltd [1993] 40 FCR 511 at 518 and that's at tab 6 of our second volume of authorities. Can I take the Bench to page 518. I propose to read the second paragraph down where it was said that:
PN86
The context of an expression may thus be much more than the words that are its immediate neighbours. Context may extend to the entire document of which it is a part, or to other documents with which there is an association. Context may also include, in some cases, ideas that gave rise to an expression in a document from which it has been taken. When the expression was transplanted, it may have brought with it some of the soil in which it once grew, retaining a special strength and colour in its new environment. There is no inherent necessity to read it as uprooted and stripped of every trace of its former significance, standing bare in alien ground. True, sometimes it does stand as if alone. But that should not be just assumed, in the case of an expression with a known source, without looking at its creation, understanding its original meaning, and then seeing how it is now used. Very frequently, perhaps most often, the immediate context is the clearest guide, but the court should not deny itself all other guidance in those cases where it can be seen that more is needed. In literature, Milton and Joyce could not be read in ignorance of the source of their language, nor should a legal document, including an award, be so read.
PN87
Burchett J then went on to state elsewhere at pages 518 and 519 that:
PN88
But even if the language, read alone, appeared pellucidly clear, the tendency of recent decisions - and this is the other answer to the argument put - would seem to require the Court to look at the full context. Only then will all the nuances of the language be perceived
PN89
And I won't read on. I'm sure the Bench is familiar with this authority. The short point is that we say the context of the provisions arising from their history indicates the training referred to in that clause, or clause 32.5, is not training undertaken pursuant to a training contract. It was never contemplated when the awards were originally - the provisions were originally crafted, and so the reference to training contained in those provisions should be understood as not including that form of training. As I said - - -
PN90
DEPUTY PRESIDENT GOSTENCNIK: Mr Ferguson.
PN91
MR FERGUSON: Yes?
PN92
DEPUTY PRESIDENT GOSTENCNIK: The trainees that we're concerned with here are those to whom the National Training Wage applies.
PN93
MR FERGUSON: Yes.
PN94
DEPUTY PRESIDENT GOSTENCNIK: Yes. If one looks at schedule D of for example the manufacturing et cetera award, and in particular clause 6 which deals with employment conditions, in clause D.6.4 which provides that subject to D.3.5 which deals with issues of conflict as between the schedule and the award provision, 6.4 provides that:
PN95
All other terms and conditions of this award apply to trainees unless specifically varied by the schedule.
PN96
So that when we're here talking about context we also need to look at the award as a whole, and even if one were to accept the historic - if one were to accept your argument that the historic development of the provision were to confine the training costs provisions to persons other than trainees about whom this case is concerned, then isn't there an argument that clause 6 point - D.6.4 had the effect of applying those terms of the award to trainees?
PN97
MR FERGUSON: I understand the point. We say that this provision doesn't operate to extend the application of the term of the award that would not have had application in a particular context by its own force. It reserves the fact that those terms do apply subject to whatever is put in the schedule, and it deals with the overlapping issue. But our view is that D.6.4 does not operate to extend, if you will, the application of a clause to employees that would not by the force of that clause itself receive the benefit of the entitlement.
PN98
What we say is that when you then go back to the primary award clause you need to interpret it in the context of its history and that the proper approach is to conclude that the training there referred to does not include the training that is undertaken pursuant to a training contract. Now I seek your indulgence. If memory serves me there is some contemplation of this precise issue by the Full Bench in the Apprentices' Case. I might just clarify that, rather than keep you waiting, and then come back to that.
PN99
DEPUTY PRESIDENT GOSTENCNIK: Yes, that's fine. Whenever is convenient, Mr Ferguson.
PN100
MR FERGUSON: But we accept that you interpret it in the context of the statute as a whole, bearing in mind of course that these awards do evolve somewhat in a piecemeal manner.
PN101
DEPUTY PRESIDENT GOSTENCNIK: Yes, I understand.
PN102
MR FERGUSON: And it would be too wrong - it might be an incorrect approach to assume that it is always intended to work as a comprehensive whole in the sense that, you know, the effect that was contemplated by the framers of that provision D.6.4.
PN103
DEPUTY PRESIDENT GOSTENCNIK: Mr Ferguson?
PN104
MR FERGUSON: Yes?
PN105
DEPUTY PRESIDENT GOSTENCNIK: In your submissions at paragraphs 23 and 24 on pages 13 and 14 you look at the National Training Wage Award of 1994 and then 2000 and in particular turning on to page 14, clause 10.7:
PN106
Other terms and conditions of the relevant awards that are applicable to the trainee or would be applicable to the trainee.
PN107
I'm just trying to follow where did that go through the award modernisation process?
PN108
MR FERGUSON: If memory serves me this is a difficulty that we tried to raise during the two yearly review. I think the wording "as applicable" - sorry, I withdraw that. Are you talking about paragraph 24, Deputy President, above it?
PN109
DEPUTY PRESIDENT GOSTENCNIK: Yes. Well, 10 point - - -
PN110
MR FERGUSON: Sorry, 10.7, yes.
PN111
DEPUTY PRESIDENT GOSTENCNIK: 10.7 and then yes, my question is where did that end up after the award - - -
PN112
MR FERGUSON: Yes. No, no, and this goes to the point I wanted to give some further consideration to. From memory those words fell out and they were the subject of an application that we ran in the context of the two yearly review to put them back in, if you will. But I think from memory the Full Bench found that there was no significant change that flowed from that, but I won't go further without checking. I'm certainly not aware of any deliberate intent to expand or alter the provision, its meaning.
PN113
I just want to turn back to the precise wording of clause 32.5 of the manufacturing award. Now the Bench will recall that in both (a) and (b) it only occurred - the provisions only applied in relation to:
PN114
Costs incurred by an employee in connection with training agreed to by the employer.
PN115
That's wording that's adopted in both (a) and (b). We say that that renders the clause inherently inappropriate for the regulation of costs associated with undertaking a traineeship, even if you were to take the approach of taking a strict interpretation of the precise words that are in the clause. We say that it's not clear and we don't accept that employers would in all instances have an obligation to pay the costs associated with all training that is undertaken by a trainee pursuant to the training contract because they won't in all instances agree to the specific training that's undertaken by the trainee pursuant to the training contract.
PN116
In support of that proposition I take you to the training contract that's attached to Mr Curry's statement. That training contract sets out what the obligations on employers actually are and unfortunately the attachment isn't numbered but if you go to what I think is the third page of the training contract it sets out the training contract obligations, and at paragraphs (a) to (i) it specifies the obligations that might be applicable in relation to the employer.
PN117
On reviewing that we don't see that there's any obligation as such to agree to each element of the training that is undertaken by a trainee. Obviously through entering the contract they agree to enter into the training arrangement and they commit themselves, the employer commits themselves, to certain things including, if we look at paragraph (e) under that "Training contract obligations for employer" to releasing an apprentice from work and to pay the apprentice appropriate wages to attend training assessments specified in the training plan.
PN118
But nowhere is there a compulsion to actually agree to all training that's undertaken in order to obtain the qualification. We say it's not enough to say that an employer has agreed to entering into a trainee arrangement or to a contract of training to accept that as a result all training that is undertaken by the trainee in the attainment of their qualification is agreed to. We say that it would very likely be in many instances that there will be certain core modules of training, if you will, that will always form part of a particular qualification and it's not open to the employer or it's not dependent on the employer agreement to that training.
PN119
This is why we say that this clause is inherently inappropriate to apply to the context of a training contract where there are specific qualifications; as opposed to applying in the context in which it was first initiated where an employer at the enterprise level agrees to specific training being undertaken by an employee following a process of consultation and an elaborate training program et cetera.
PN120
Ultimately it's a question of fact in each instance whether or not an employer has agreed to the training contract but we say it's going to be very hard to identify that, and we can't just assume that because of the fact that people have actually entered into a training contract that they've agreed to the apprentice undertaking all that training. So even on a strict reading of clause 32.5 we say you can't assume that it applies to all training undertaken, and that again we say is not a satisfactory outcome and warrants the amendment of this clause to clarify that it only serves the purpose for which it was first intended.
PN121
DEPUTY PRESIDENT GOSTENCNIK: Mr Ferguson, I think that you were looking for in the Apprentices' Case of the decision of 22 August 2013 is to be found at paragraph 470 where the Full Bench said:
PN122
Clause X.6.4 does not create any entitlement that would otherwise not apply to trainees if the NTWS did not exist.
PN123
MR FERGUSON: Yes.
PN124
DEPUTY PRESIDENT GOSTENCNIK: So your point is that on your construction that clause never applied, was not intended to apply to trainees, the inclusion of that provision did not extend the operation.
PN125
MR FERGUSON: That's right.
PN126
DEPUTY PRESIDENT GOSTENCNIK: Yes, I understand the point.
PN127
MR FERGUSON: That's right. Thank you, Deputy President, you've done my work.
PN128
DEPUTY PRESIDENT CLANCY: Just then looking at the training agreement, the employer talks about "as agreed in our training plan" so I'm just looking at training plans as it's defined further in the document there at about two pages on. Does that suggest to you that the employer does have input into it, or is your submission that the training plan is something that's largely set up by the RTO or regulated by the RTO?
PN129
MR FERGUSON: And I'm sorry I don't have relevant material to hand up to you in relation to this issue, but as I understand it, it may be developed in consultation with the employer and the approaches that different RTOs take differ. But it doesn't necessarily follow that each element is necessarily dependent on agreement from the employer in order to be included in the training plan. From the enquiries I've made - and there's no evidence, I accept - it seems that the approaches from specific RTOs in the context of different qualifications might differ. So we don't - and I missed the reference to "as agreed in the training plan" that you took me to, Deputy President, but - - -
PN130
DEPUTY PRESIDENT CLANCY: I'm just looking at where you look at the training contract obligations there that you took us to before for the employer and:
PN131
I will agree that:
PN132
(a) I will employ and train the apprentice/trainee as agreed in our training plan.
PN133
And then I go about two or three pages on to a section of it where it says "Information you need to know" about halfway down the page and there seems to be a definition or at least some expansion on what a training plan is.
PN134
MR FERGUSON: There is. I don't see anything there that establishes that all elements of that must be agreed.
PN135
DEPUTY PRESIDENT CLANCY: Yes.
PN136
MR FERGUSON: Taking you to the first obligation that talks about employing and training the apprentice as agreed in the training plan. That would, in my submission, capture on the job training that a traineeship does. So it's not talking about the employer training them at off the job training, nor is it talking about a compulsion to agree to certain off the job training being undertaken. As I understand it, I mean in an ideal world the intention is that the parties all work in a consultative way in relation to this and there will be some scope to ensure that elements of certain qualifications are tailored to the needs of the enterprise.
PN137
But it won't always be the case that all elements, as I'm instructed, for all qualifications are necessarily directly relevant to the employer. There might be some core elements of certain qualifications that must be completed in order to attain the relevant classification. Now that - all I'm putting really is firstly, on a strict reading you can't be satisfied on the material before you that all of the training that a trainee undertakes is agreed to by the employer, so falling within the ambit of this clause.
PN138
But the bigger point is that it just highlights why this provision is inappropriate in the context of the vocational training undertaken through the training contracts as opposed to the originally intended paradigm of employers agreeing to specific training that's relevant to their enterprise, and that goes to the interpretation point but also to the arguments for why this provision should be amended. There is guidance material provided by various State bodies in relation to the operation of training plans and so forth and there's of course a wealth of - or there's separate legislation in relation to the obligations underpinning that.
PN139
Unfortunately I can't take that further today, but we certainly don't accept that there's any obligation to agree to each element of the training plan or to each element of training. Of course we say that if Ai Group's interpretation of clause 32.5 of the award is accepted that the claim should be granted in order to clarify the operation of the clause. This is consistent with the modern awards objective as articulated in section 134(1) which speaks to the need to ensure that the system, the modern awards' system is simple and easy to understand. I think that's a straightforward enough point.
PN140
But we've also raised additional merit based arguments in favour of granting the application. They are set out at paragraphs 51 to 63 of our written submissions and I wasn't going to repeat all of the specific issues or merit based arguments that my organisation has identified, but I would highlight in particular paragraph 60 which drills down on the sort of adverse consequences that would result from just the provisions in relation to travel costs being interpreted in an expanse and, we say, inappropriate way. I won't take you through all of the specific arguments but suffice it to say we say that if the provision was interpreted in the manner proposed by the unions it would have a particularly unfair application on employers.
PN141
Part of considering what is a fair and relevant minimum safety net contemplates or requires this Full Bench to contemplate what is fair to employers as well. Of course that was a proposition that has been accepted by the Full Bench in the context of the annual leave common issues proceedings and we've referenced that at paragraph 62 of my written submissions; and we say to perpetuate, if that's the finding of the Full Bench, an outcome where trainees could receive entitlements would operate in a such a problematic and unintended way would be particularly unfair and couldn't be seen as necessary to form part of the safety net as contemplated by section 138.
PN142
We certainly say that it's not clear how it could be deemed necessary that they receive these more generous entitlements when the Full Bench of this Commission has already accepted that it's not necessary for apprentices to receive such broad ranging entitlements. There's no relevant distinction that establishes why a more generous outcome should flow to trainees. At paragraph 63 we there identify the elements of the modern awards objective that we say, having regard to the previous adverse consequences identified, weigh in favour of granting our claim.
PN143
Unless there are questions in relation to that, I just wanted to talk about the two yearly review and what transpired in the context of those apprentice common claims proceedings. I think in paragraph 15 of their written submissions the AMWU assert that the decision in the apprentice proceedings [2013] FWCFB 9295 confirms that clause 32.5 applies to trainees undertaking training pursuant to a training contract. Now we say that that - or we don't think that that was the conclusion of the Full Bench. We think the union's overstating the effect of the decision and I take the Bench to tab 10 of our first volume of authorities.
PN144
I think just to explain the history, as I appreciate that the members of this Bench weren't subject to the sage of these proceedings. What transpired essentially is that there were a series of common claims that were heard by the Full Bench relating to changes to I think all or most modern awards. That included changes the union were pursuing in terms of uniform or very similar provisions in relation to training costs, recovery of costs for fees et cetera, text books, et cetera. They were dealt with - all the common claims were dealt with in one tranche of proceedings. There was then a settlement of orders process that accompanied that before the variations being finalised.
PN145
Separate to that there were a series of other claims relating to apprentices and trainees that were dealt with in a second hearing by the Full Bench. Tab 10 deals with that second suite of matters that were pursued in the context of the proceedings and paragraphs 23 to 36 deal specifically with what was an Ai Group application to vary clause 32.5. In essence we were seeking that the provisions be amended to exclude their application to both trainees and apprentices, and I had proposed - I'm just mindful of time - but I had proposed to read paragraph 25 through to 36 just because it really goes to the heart of the issue before this Full Bench. At 25 it says:
PN146
It was submitted by the Ai Group that the variations sought would clarify the operation of clause 32.5. It was said that the subclause was originally introduced into the Metal Industry Award as part of a package of award changes associated with implementing a new skills based classification structure and career paths. The subclause was never intended to have application to training by apprentices and trainees as the provisions associated with such training are governed by other award provisions.
PN147
It was also submitted that the provision is inconsistent with existing training costs provisions in the award for apprentices and with the decision of 22 August 2013 dealing with training costs and travel costs for apprentices. The AMWU opposed the variations. It was said that there is nothing in the decision creating a modern award to the effect that clause 32.5 is not intended to apply to apprentices and trainees.
PN148
Further it was said that the rationale underlying the promotion of training and career progression in the award has application to apprentices even if they are not formally a part of the classification structure. We have considered the submissions of the parties and have examined the history of the relevant award provisions. The examination has included the decision leading to the introduction of the training costs provision in predecessor awards and the various publications advising employers and workers about the implementation of the new classification structure and associated training commitments.
PN149
We have also considered the situation in other awards and apprenticeship provisions which included provisions similar to clause 32.5. In relation to apprentices we note that the Manufacturing Award provides for the reimbursement of training fees upon satisfactory progress and as a result of the decision of 22 August 2013 we will provide for reimbursement of the costs of prescribed text books and for the payment of excess travel costs for attendance at block release training which requires overnight stay. We also note that clause 15.1(1) of the award provides that:
PN150
"Except as provided in clause 15 apprentices, or where otherwise stated, all conditions of employment in this award apply to apprentices".
PN151
Having regard to these matters, including the history relating to the introduction of the present clause 32.5 of the award, we consider that it is appropriate to clarify the application of the subclause in relation to apprentices. We consider the provision introduced or varied as a result of the decision of 22 August 2013 are now the relevant entitlements for apprentices in relation to reimbursement of course fees and text books and payment for travel costs associated with training which is in connection with an apprentice's training contract.
PN152
It is appropriate to avoid confusion between the entitlements and entitlements under clause 32.5. This is consistent with the modern awards objective in section 134(1)(f) and (g).
PN153
At paragraph 30 it then goes on to - the Full Bench goes on to say that that variation should be made as proposed by the Ai Group, or in a slightly different form to the manufacturing award and the graphic arts award. I think the point is here we say that if you look at those clauses, and particularly paragraph 29, the Full Bench identified that it had looked at the history and having regard to that it was appropriate to clarify the application of the clause.
PN154
We have to accept although we'd say that that paragraph suggests that there are sympathetics to the arguments we raised, it ultimately was able to exclude apprentices because of the fact that they had decided what the entitlements for training costs would be for those apprentices in another clause; and so it then made clear that 32.5 did not apply because it was the other provision that specifically dealt with vocational training, the more specific provision, that applied.
PN155
Now it doesn't - we say that the Full Bench obviously factored in the history and was sympathetic to the arguments we advanced but in any event circumstances somewhat overtook the matter. But clearly it shows that they didn't accept that it was necessary to maintain an entitlement to 32.5 for apprentices. At 31 to 36 they go on to deal with the position in relation to trainees and I'll read paragraphs 34 and 35. Paragraph 34 provides that:
PN156
In the decision of 22 August 2013 we noted that there is no specific provision about payment of course fees or travel costs in the National Training Wage Schedule and that the only provision which could apply to trainees are those which would otherwise be applicable under the award. In this regard we refer to the recent decision of the Federal Court.
PN157
In these circumstances and without further material related to the application of clause 32.5 to trainees and the practical implications of the variations proposed by the Ai Group for trainees, we are not persuaded that it should be consistent with the modern awards objective including the need to ensure a stable and sustainable modern award system to make the variation proposed.
PN158
We are not satisfied that such variations in relation to trainees is necessary to ensure that the modern award is operating effectively without anomalies or technical problems arising from the award modernisation process. Accordingly we have decided not to make the variation sought by the Ai Group.
PN159
Now the point is we say that those paragraphs don't amount to a finding in any sense that 32.5 necessarily does apply to extend training cost entitlements, if you will, to trainees.
PN160
DEPUTY PRESIDENT GOSTENCNIK: On one view the Full Bench is saying the provision is not anomalous, without actually telling us what it means.
PN161
MR FERGUSON: And you have to think back to the context of that review. It was a narrower review and you're right it doesn't - there's not much there. I don't want to say it dodged the question but in that review it was a narrower review and it was looking at anomalies or issues with the award not operating effectively, technical problems that are arising from the modern award proceedings, and from memory we all had to grapple with a myriad of cases where parties argued one way or another whether or not the anomalies arose from the award modernisation proceedings or whether they were just a perpetuation of an existing anomaly.
PN162
It may well be that they, having regard to the nature of that review, formed the view that they were not persuaded that in that context they could make this variation, and obviously they have taken the view that we hadn't put sufficient material to establish that it was otherwise necessary. I might say we've now gone to great lengths to put on much more material explaining the history and the relevant context of the award provision. We've also sought to identify what we say are the effects of the clause operating in the manner proposed by the unions.
PN163
Of course we say that the clause doesn't have that effect now so we don't state - or that it doesn't grant an entitlement to trainees now, so that there would be no particular adverse effect on trainees of removing the provision, it would just clarify the proper operation of the award. But as we can see, the decision really doesn't give us clear guidance as to the view that was taken. It effectively avoided the matter. Of course we say that in the context of this broader review it's incumbent on this Bench to consider the matter and reconsider whether or not these provisions are appropriate.
PN164
DEPUTY PRESIDENT GOSTENCNIK: But on your primary proposition the variation that you seek is non-necessary, is it? On your primary proposition, that is that the provision doesn't apply to trainees, the variation you seek is not necessary other than for avoidance of doubt?
PN165
MR FERGUSON: For clarity. Well, an element of the modern awards objective goes specifically to making sure the award system is simple and easy to understand. Now what we've got here is major industrial parties with a lengthy history in relation to the application of this provision taking different views of the application. You've got a decision of the Commission that is clearly far from definitive on the proper approach and we say that on any sensible view it's not a provision that is simple and easy to understand. But I take your point. We say that if you don't vary it, it doesn't change the entitlement. We say that there is no entitlement, but having regard to that specific element of the modern awards objective we say it dictates that it is necessary to vary the award in order to make it simple and easy to understand.
PN166
DEPUTY PRESIDENT GOSTENCNIK: Yes, I understand.
PN167
MR FERGUSON: That then takes us to some of our broader arguments that we've advanced in support of our claim and to the union's criticism of the absence of an evidentiary case, or a significant evidentiary case beyond documentation that we've filed, being led by employers. Now we've obviously based our case on what we say is the proper interpretation primarily of the clause. Beyond that we've based it on merit based arguments having regard to the nature of the Act and other - sorry, the nature of section 134(1) and other broad considerations of industrial merit.
PN168
We say that the history that we've set out warrants the variation and shows that having an award clause that operates in an entirely unintended manner, in a very generous unintended manner compared to what other comparable employees receive, is inherently unfair. We do say in our submissions that industry practice is not to apply clause 32.5 to training undertaken by trainees. We accept we haven't advanced evidence in support of that proposition and that of course colours the weight that could go in support of that.
PN169
Although we had not anticipated that it would be so vehemently opposed by the unions, particularly given the context of the Apprentices Case in which they argued that there were specific provisions required in order to ensure apprentices were actually recovering these costs, and they tried to advance evidence of apprentices at the very least suffering purported hardship because of an inability to recover various costs, and I don't take that far, but we accept that we haven't advanced evidence.
PN170
They go one step further and suggest that per the rule in Jones v Dunkel it would be open to the Commission to conclude that the reason no witness evidence was called in support of a claim regarding industry practice is because the evidence would be harmful to the case. We say the union misunderstands the rule in Jones v Dunkel and that in any event the Commission should not in the current context exercise its discretion to draw such an inference.
PN171
I was going to just hand up one authority in relation to the application of the rule. This the authority of Xiu Zhen Huang v Rheem Australia Pty Ltd PR954993 which deals with the nature of the rule at paragraphs 33 and 34, and I'll read those provisions:
PN172
The rule in Jones v Dunkel is a rule of common sense and fairness in relation to the fact-finding process. The rule was considered at length by a Full Bench of the Commission in Tamao(?) v Alsco Linen Services Pty Ltd and we respectfully endorse that analysis. The rule is breached by the unexplained failure of a party to call evidence on a fact in issue that the party might reasonably have been expected to call. It is most usually invoked in relation to the unexplained failure of a party to call a witness who is in the party's camp. However, the rule also extends to an unexplained failure to tender documents within the party's control. A breach of the rule in Jones v Dunkel may lead to the drawing of an adverse inference. The inference that may be drawn is ordinarily an inference that the uncalled evidence would not have helped the party's case, not an inference that the uncalled evidence would have been positively unfavourable to the party's case, or positively favourable to the opposing party's case. A breach of the rule in Jones v Dunkel may also result in a more ready acceptance of the opposing party's evidence on the fact in question. However, a breach of the rule does not automatically prevent a finding being made that is favourable to the party who has failed to call relevant evidence on the question. Other evidence may properly support the finding, notwithstanding such failure. The impact on the fact-finding process of an unexplained failure by parties to tender apparently relevant evidence within the parties' control is ultimately a matter in the discretion of the member hearing the case at first instance. That discretion is to be exercised in accordance with the dictates of common sense and fairness.
PN173
And I won't read on. We say that, firstly, even if the rule was applied, it's not open to the Commission to draw an inference that the evidence we may have led from employers would have positively been harmful to the case, we suggest, as suggested by the union. But regardless, and probably more importantly, we say that there are various reasons why the Commission should not apply its discretion to draw such an inference in the current context.
PN174
Now, the first of these is the nature of the review. We doubt that it would ever by appropriate to apply the rule in the context of the review. This is not a party/party matter in the ordinary sense. Parties such as the Ai Group are, of course, assisting the Commission in what is essentially it's exercise of a statutory function associated with the conduct of the review. In that context, we can't say - we say there can't be an expectation that participants in the review will always have the resources available to prepare detailed evidence for each of the matters being heard as part of the review.
PN175
Members of this Bench may be aware, the workload of the review is, in reality, stretching the resources of employers and, of course, all those associations that represent them. It's having a bearing on the material that we can advance in the context of every single case. It's simply not within our capacity to advance detailed and voluminous material in all instances.
PN176
And in this case, we say that we've largely based our arguments on merit-based arguments, or merit-based grounds, or issues associated with the history of the award, and that should be sufficient, rather than relying solely on that factual proposition about what industry practice is.
PN177
The other point we'll make is that we don't have the capacity to simply require employers to readily attend and give evidence in these sorts of proceedings. They're not within our control, as much as the unions may think they are, and there are obvious reasons why employers are reluctant to appear in these sorts of proceedings. Obvious reasons such as concern that they'll be targeted by unions or the media for sticking their head above the parapet, if you will. And in the context of these proceedings, the Full Bench would appreciate, kind of all we're arguing about is the proper interpretation of the clause.
PN178
So, if an employer, or employers do advance evidence, consistent with what we say the practice is, of not paying these costs, they'll be exposing themselves, not only to underpayment claims but also, of course, negative media as a result of voluntarily coming forward and participating. We say it's quite understandable in that context why parties, such as ourselves, would not be able to, in all instances, call that sort of evidence.
PN179
But in any event, I genuinely hadn't anticipated that this proposition would be serious contestable, contested as strongly as the unions are. And, of course, the directions didn't contemplate us filing any material in reply, and we've batted on with those directions. But all of that, we say, weighs in favour of this Full Bench not exercising its discretion to draw such an inference.
PN180
That then leads me into the evidence of Mr Curry. Now, they rely on Mr Curry - I think they rely on Mr Curry, or purport to, to establish what they say is the industry practice of people paying these relevant costs to apprentices. If you think about what the evidence was though, it doesn't get you there. Mr Curry has worked at the AMWU for a long time, but we don't know how many employees he's actually dealt with during that time - none of that was set out in his evidence.
PN181
We don't know how frequently he actually deals with the issues of trainees being reimbursed their training costs. We don't know how he verifies that there's purportedly this practice. Is it just something that he's told by other people, by way of hearsay, or does he go and do the audit to check what people get paid? The union have chosen not to put any of that material in evidence.
PN182
And I think, at its highest, the evidence of Mr Curry, only speaks to his experience. It doesn't establish what the industry practice is and I don't think Mr Curry purports to give that evidence. He doesn't even know how many trainees are actually covered by these relevant awards, so he couldn't form any view as to what proportion of the industry he's been dealing with in the context of the present proceedings. And accordingly, this Full Bench can't.
PN183
So we don't know what weight can be given to Mr Curry, other than the fact that he's worked for the AMWU for quite a long time and he talks to trainees. And I'm not sure of the basis, but he has an understanding that overwhelmingly, they receive such costs. And I think in the statement, the reference to "overwhelmingly" suggests that it does not always happen. So we say that his evidence can't make good the union's submissions on this point.
PN184
There's also a reference to a letter from the State Government or from a Minister in the South Australian State Government 2006, which is attached to his statement and talks to an expectation or intention of the Government that certain specific costs won't be passed on to the apprentices or trainees. I don't want to take that very far. The intentions of a State Government 10 years ago, as established through a letter, really don't take this matter very far at all. If the State Government still have a view in relation to those things, it could have participated in these proceedings, but it hasn't. Then we say that really carries no weight.
PN185
There is also a reference to certain survey results or analysis that the AMWU has purported taken in relation to a recent survey of apprentices. Firstly, there's the obvious point that it's unclear to us what relevance that has given if it's a survey of apprentices. But in any event, the union has chosen not to give us the raw data so that we can analyse the survey, but it's just attached its analysis. Now, it equally hasn't put that material into evidence, hasn't call a witness to talk about how the survey was conducted. It's chosen to keep all of that a secret, so we can't test it.
PN186
There seems to be a pattern in these proceedings with the AMWU, but it puts the other parties in a position where they can't possibly test the accuracy of any of the analysis. So, we say that this secret survey that the unions analysed, it shouldn't be given any weight. We did ask for a copy of the results. I don't think, to be fair, my friend even has a copy. So he wasn't able to furnish us with them. On the basis of that, really, no weight can be given to the survey at all.
PN187
Just coming then to the last few points. Paragraph 53, the AMWU requests an opportunity to make further submissions, in the event that the Commission finds that the relevant clauses should be interpreted in the way has been proposed. We don't really know what the justification for that is, and I'm sure my friend will elaborate on that and perhaps we will come back to it. But the point is, it seems to be likely that it is just a blatant request to have a second bite at the cherry.
PN188
I mean, they've known what our claim is for some time. This claim shouldn't have been a surprise. It was ventilated in the two yearly review. They've had the draft determinations from early this year. If the union wanted to oppose our plan on some ground, or to make a counter application, they could have and should have, earlier on. They shouldn't be given another opportunity to now.
PN189
And I think the other point is, the AMWU request overlooks the fact that we're not just arguing about the interpretation here. We're saying that yes, the interpretation is in favour of us and that should warrant the clause being varied. But we're saying, even if that wasn't the case, the effect of the clause is unfair. The effect of the clause does not accord with what other comparable employees get in the award. It does not accord with what the intent of the provision was. And all of those reasons, and the other merit-based grounds we set out, justify changing it, regardless of whether or not the Full Bench agrees with our interpretation.
PN190
We say it would be particularly unfair for Ai Group to now have to mount the second case in opposition to our claim. We've had to best case that we can in time. So should they. Of course, we do accept that it would be open to the AMWU at any time, to make an application under section 157, seeking to address what they say should be the terms and conditions for trainees, if the Commission grants the application that we've advanced. And that's an application that can be made outside of the system of four yearly reviews.
PN191
That then really takes me to the position in the alternate that we've advanced in relation to each of the awards. I might say that we do very strongly press our primary claim, but in the event that the Commission finds that it is not willing to vary the relevant provisions, in order to potentially take away entitlements of trainees, we've suggested that an alternate approach would be effectively to align the entitlements of trainees to those provided for apprentices.
PN192
And we've suggested, in our written submissions, that basically the clauses relating to training costs and relating to - sorry, the specific training costs and travel costs contemplated in the apprentice provisions, now be replicated in the clauses of each of the awards dealing with trainees. Again, we say that that is very much put in the alternate. We're not calling for that, but it is an option available to this Full Bench, noting that, of course, the Full Bench isn't bound to grant a remedy in the terms that we've advanced in our draft determinations.
PN193
Now of course, the Full Bench will be aware that in the context of the Annual Leave provisions, employers called for remedies to address excessive leave accruals. Our claims were granted but not in anywhere near the terms we sought. The Commission went through a process of then developing its own clause that addressed the underlying problem and it went through a process of successive hearings associated with the settlement of that clause. And of course, that is an option that is available.
PN194
But in any event, we've put our alternate clause in full to the unions, in the context, and to the Full Bench. The unions haven't, on my reasoning, identified anything really in opposition to that clause and we say that's not really surprising, given that in the context of a two yearly review, in the submissions Mr Tegg attaches to his submissions. The AMWU argues at paragraph 4.11 that:
PN195
The AMWU submits that the AiG's application be dismissed and that trainees have the same entitlements regarding the payment of training-related travel costs as for apprentices.
PN196
So they've essentially called for alternate position in the two yearly review and they're not opposing it now. And it may be that they don't want to openly oppose it out of a concern that there is some loss to those members. But in any event, we haven't seen anything put against it. And, of course, some alignment of employee apprentice entitlements would assist in making the award simpler and easier to understand.
PN197
That then, in wrapping up, brings me just to the chapters dealing with the other claims, apart from the Manufacturing Award. I wasn't going to take the Full Bench through our submissions in detail on that point. The essential contention is that we say that the relevant provisions in the prospective awards are relevantly similar and to the same logic underpinning our submissions - even the Manufacturing Award - applies with equal force to those awards.
PN198
I do, however, want to note some nuance in the Graphic Arts Award. I take the Bench to tab 1 of our second volume.
PN199
DEPUTY PRESIDENT GOSTENCNIK: Sorry, before you go on. Just in relation to your secondary position.
PN200
MR FERGUSON: Yes.
PN201
DEPUTY PRESIDENT GOSTENCNIK: If I go, for example, to paragraph 65 of your submission where you say - in your provision dealing with apprentices being inserted into the existing clause 18, which deals with - sorry, a new provisions for trainees which is modelled on the apprentice clause. And if I look at paragraph C(iii) and the reference there, I was going to ask you a question about whether or not there is a Government assistance scheme, presumably State Government scheme dealing with traineeships. But that references Apprentice Assistance Scheme.
PN202
MR FERGUSON: And I tried to make more inquiries of this last night, and I might take that on notice, if you think it will assist the Bench. There were training - such schemes in relation to apprentices that were at play in the context of the Apprentice case. And from memory, if I cast my mind back, is that those things come in and out of play, depending on the will of governments. I haven't been able to identify whether there are the same or comparable schemes applicable to trainees. Now, it- - -
PN203
DEPUTY PRESIDENT GOSTENCNIK: But the effect of the clause is to avoid double-dipping, if you like, so that one option would simply be that provision reference any particular Government assisted scheme which applies to a trainee and to which the trainee has access, etc, or something to that effect.
PN204
MR FERGUSON: Yes. So there might be- - -
PN205
DEPUTY PRESIDENT GOSTENCNIK: Which operates from time-to-time.
PN206
MR FERGUSON: That's right. So there may be some way to cast that in slightly broader terms or terms that might be contingent upon some scheme operating. That would probably be preferable to just looking, you know, at a point in time and saying, "Is there something in play now?" And if not, not including it. It may be that, and you know, given this is not element of the claim that goes to the heart of the claim in any sense, that that's a matter that could be dealt with through a settlement clause- - -
PN207
DEPUTY PRESIDENT GOSTENCNIK: It seems to me that the current Apprentice clause is couched in the generalised border term because it talks about training under a government Apprentice Assistance Scheme.
PN208
MR FERGUSON: Yes.
PN209
DEPUTY PRESIDENT GOSTENCNIK: However described it was.
PN210
MR FERGUSON: How cast in general terms. Look, it was a process of a drafting by a committee, to an extent. And it was a lengthy process.
PN211
DEPUTY PRESIDENT GOSTENCNIK: Yes.
PN212
MR FERGUSON: And the difficulties at some points has been that there are different schemes that apply in different States, etc. But I think that we could cast it, or that the Full Bench could cast it in broad terms that could apply, in the event that such a scheme was at play.
PN213
DEPUTY PRESIDENT GOSTENCNIK: Yes.
PN214
MR FERGUSON: And I don't think anyone - I don't anticipate the union would seriously argue against a clause that was aimed at ensuring there wasn't double-dipping. But some real thought did go into the mechanics of this particular provision, so I take your point. It may be we need to look again.
PN215
I'm happy to take on notice though, that question about whether or not trainees currently get any sorts of programs, because I did note in some of our submissions, we talk about apprentices and we don't go to trainees specifically. But I just couldn't get an answer last night to that.
PN216
Look, just coming to a minor issue, but in relation to the Graphic Arts Award, I take the Bench to 25.4, which deals with the training provision. It's clear that this award doesn't include, in this provision, an exemption for apprentices even. Now, we've claimed for an exemption in relation to training undertaken pursuant to the training contract, for trainees and apprentices, in our draft determination. But I'm not sure why, given the decision of the Full Bench identified at tab 10 of the November 2013 decision, there's not an exemption contained in this clause for apprentices.
PN217
But I think, if we go to clause 13.10, it gives us a possible indication as to the answer. At 13.10, it includes at (c), a provision that:
PN218
Costs associated with training that is not in connection with apprentice training are the subject to 25.4 and not this clause.
PN219
So, it may be that they've just taken a different approach to skin the cat. We say that it would better to include a provision in the other clause to make it clear that it does not apply, because the other difficulty you've got is that the provision at 13.10(c) is not replicated in the provisions dealing with travel payment for block release training, at 13.14.
PN220
Now, my friend may have a different view, but it may be that this was just an anomaly in the settlement of orders process. I can't think of a logical reason why one provision would apply and one would not. And in any event, if the intent is to deal with the interaction of the two, we say best to deal with it in the clause that has been the source of all the controversy, which is the training cost provision, and make it abundantly clear to everyone that that's not what applies. But our draft determination does rectify this.
PN221
In our written submissions, we've suggested alternate wording in the event that, contrary to our submissions, the Bench doesn't adopt our primary provision, and instead, entertains the alternate. There are some consequential amendments to the relevant training provisions.
PN222
They are the submissions, unless there are any further questions.
PN223
DEPUTY PRESIDENT GOSTENCNIK: No, thank you, Mr Ferguson.
PN224
Mr Tegg? Do you want a few minutes to organise yourself, or are you happy to- - -
PN225
MR TEGG: No, I should be okay, your Honour.
PN226
Your Honours, thank you for the opportunity to put the case for the AMWU in response to the variation sought by the Australian Industry Group in these proceedings. Today, I intend to briefly walk you through what the AMW believes are the relevant sections of the AiG submission, the AMW submission and the previous decisions of the Commission, as they apply to the issue of training costs for trainees.
PN227
I begin briefly by outlining how I believe that the issue before the Commission should be understood. Contrary to the position being put by the AiG, it is not an esoteric legal question which can be entirely resolved by close reading of a history of an award clause. It is about the role of the Modern Award as a fair and relevant safety net for trainees. Specifically, it's about the ability of trainees to continue to have their course fees, text books and travel costs for training undertaken in connection with their training contract, paid for by their employer.
PN228
The outline of our position is simple. Trainees covered by the Manufacturing and Associated Industries and Occupations Award 2010, the Food, Beverage and Tobacco Manufacturing Industry Award 2010 and the Graphic Arts, Printing and Publishing Award 2010, currently have their training costs paid by their employers and that they have always been required to do so.
PN229
This takes place because, on a straight forward, plain language reading of the awards, the employers are required to do so under the training costs clause of the relevant Modern Awards. Any change to this status quo is likely to have significant impacts on the trainees personally, the manufacturing generally, and the safety net in particular.
PN230
In deciding what test the AiG needs to meet to support its variation, I believe it's instructive to look at the decision that led to us being here today. Specifically, paragraphs 34 and 35 of the Apprentices, Trainees and Juniors case 2013 FWC FB9295. Here, in paragraph 34, the Full Bench notes that:
PN231
There are no specific provisions about payment fore course fees or travel costs in the NTWS and that the only provisions which could apply to trainees are those which would be otherwise applicable under the award.
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Then, in paragraph 35, they continue:
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In these circumstances, and without further material relating to the application of clause 32.5, the trainees, and the practical implications of the variation proposed by the Ai Group for trainees, we are not persuaded that it would be consistent with the Modern Award's objective.
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And it continues, and we've covered that previously.
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But here, the two issues highlighted by the Full Bench as their reasons for rejecting the AiG's previous identical claim was not a lack of understanding on the part of the Bench, but the historical foundation of the current training cost clause in the Manufacturing Award, but its application and the practical implications of the variation proposed.
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Now, by our submission, AiG has presented no evidence to the Commission about how this clause currently applies, in practice, nor provided any evidence about the practical implications of the variation that they seek. The AMWU has presented evidence to the Commission on both of these issues
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Now, in relation to the practical implications, the AMWU has presented the Commission with our submissions to the Apprentices, Trainees and Juniors case which includes a statement from Ms Timberall at attachment A to our attachment A, about the impact of travel costs on trainees under the Manufacturing Award. We provided a survey result showing that travel costs remain a concern for apprentices, despite them having an award entitlement to recover those costs. And we rely on the evidence of Mr Curry, who has highlighted the substantial cost that would be borne by trainees if the AiG variation was granted.
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On the other hand, the AiG has presented no evidence of the practical implications of their claim, instead relying on a laundry list of supposed adverse consequences in paragraphs 58 and 60, that are without basis in any evidence presented to the Commission. As mentioned in our submission, AiG does not attempt to present a balanced picture of the impact of their proposed variation to the Commission. They make no attempt to understand the impact that the removal of this entitlement would have on trainees, that currently have their training costs paid by their employer for training that takes place in connection with their training contract.
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In relation to the application of the training cost clause, the AMWU has presented evidence from Mr Curry about the near ubiquitous nature of employers paying the training costs of their trainees. The role of the award in this regard, was noted by the Full Bench, at paragraph 477 of 2013 FWC FB5411, which states:
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In respect to trainees, there is an additional proviso in clause X.6.4, that is, unless specifically varied by this schedule. There is no specific provision about the payment of course fees or travel costs in the NTWS, therefore, the only provision which could apply are those which would otherwise be applicable under the award.
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The AMWU has also shown that the payment for training costs for trainees does not derive from an explicit requirement to do so, under the standard training contract. So, there is evidence that trainees covered by these awards, are having their training costs paid. As such, the AMWU submits that there is no requirement for employers to pay the training costs for these trainees, except under the training costs clause in the relevant awards.
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So rather than engaging with whether or not the training cost clause applies to trainees in practice, AiG simply assert, at paragraph 43, that as an industry standard, that it does not. They've provided no evidence to support this assertion that it is not an industry standard. On the other hand, the Commission has heard evidence from Mr Curry to support our claim that it is an industry standard.
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Certainly, a simple reading of the relevant clauses of the Manufacturing Award would explain why. The relevant clauses are 18.1, which covers trainees and which reads:
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The terms of this award apply to trainees covered by the National Training Wage provisions, trainees in the technical field, trainee engineers and trainee scientists, except where otherwise stated in this award.
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Combined with a simple reading of clauses 32.5(a) and (b), which I'll spare the Commission, having covered them earlier this morning. And was point out by the Commissioner, clause D.6.4. Now, read together, they lead us to a very simple conclusion, that clause 32.5 covers trainees because clause 18.1 says so. As such, an employer - the employer is currently responsible for the training costs for their trainees that are engaged in training connected with their training contracts. If someone were to pick up the award today and read those clauses, they would quite simply reach that conclusion, which in our submission, explains why that is the case.
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As previously mentioned, the Full Bench in the Apprentices, Trainees and Juniors case, also came to the same conclusion regarding the National Training Wage Schedule and noted that the provision of the award were determined to be applicable to trainees, unless specifically excluded. As such, the only evidence of the training cost clause before the Commission are these.
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That the overwhelming majority of trainees under these awards, currently have their training costs paid by their employers, and that a simple reading of the relevant clauses indicates that the training costs clause applies to trainees. Therefore, there are simply no facts before the Commission that could lead it to concluding that the training costs clause in the relevant awards do not currently apply to trainees.
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DEPUTY PRESIDENT CLANCY: Mr Tegg.
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MR FERGUSON: Yes.
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DEPUTY PRESIDENT CLANCY: Your submission is that we should read trainees in clause 18.1 to mean the same thing as an employee undertaking training. They are the same thing?
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MR FERGUSON: That a - yes. That a trainee, when they undertaking training, are doing so and have the same rights that would accrue to a normal - any other employee under clause 32.5.
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DEPUTY PRESIDENT CLANCY: Yes.
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MR TEGG: So, to assist the Commission, it's worth briefly revisiting the submission made by AiG to review the historical technical arguments that the training costs clause do not apply to trainees. Firstly, the AiG submission traces the origins of the current clause, 32.5, back to clause 6(c) of the Metal Industries Award 1984, which was inserted in April 1990. They also detailed some explanatory material that accompanied this new clause.
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They concluded, at paragraph 11 of their submission, that clause 6(c) was directly linked to the 14 level classification structure. However, this conclusion is not directly linked to any part of the text inserted into the award, nor to the explanatory material that they highlight to demonstrate this point. Clause 6(c) begins with the text:
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The parties to this award recognise that in order to increase the efficiency, productivity and international competitiveness of industry, a greater commitment to training and skill development is required.
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Now, this general statement sets the tone for a clause which is quite broad in its goals and application. There is nothing in the text of 6(c) that limits its application to the training requirements related to the new classification structure.
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In relation to the explanatory material produced by the AiG, the first quote in their submission at paragraph 8 reads:
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The first part of this new provision contains a commitment by all parties to training and skill development including the removal of barriers to skill acquisition.
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All of the material presented in this section of the AiG submission can easily be understood to apply broadly to the methods that are used by employers to improve the skills of their employees by removing barriers to training. There is no reason that the Commission should adopt the AiG's narrow interpretation of the wording of these clauses and accept their conclusion that they were drafted to relate only to the training that was required under the transition to the new classification structure. Indeed, to do so would be contrary to the spirit of these clauses, which were intended to improve training outcomes across the industry.
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The sections highlighted at paragraphs 12 and 13 of the AiG submission continue this trend of highlighting the broad role of clause 6(c) and encouraging training development skills and encouraging skill-based career pathways. Both of these objectives can be achieved through the use of trainees.
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Now, I've just provided some material to the Bench earlier today. It's print J0730. It's an order from Keogh DP in relation to the Metal Industry Award. Now, looking at the history of traineeships under the Metal Industry Award 1984, it was first entered into the award with this order from Keogh DP in December 1989. And on page 2 of this order, at what would become clause 13(a)(c)(iv), it states:
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All other terms and conditions of the award shall apply unless specifically varied by this clause.
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As noted in the AiG submission, clause 6(c), which includes the training costs clause that we're talking about, was introduced into the Metals Award by Keogh DP in April of 1990. So here we can see that the training costs clause was originally added to the Metal Industry Award by the same Deputy President that had only months earlier, added a clause for trainees that specifically stated that every clause in the award applied to them and that the Deputy President did not specifically exclude trainees from the operation of clause 6(c).
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The AMWU submits that these two clauses were added as part of the same process to drive training, improve skills and increase productivity in the manufacturing industry. These two clauses should be read as they were intended to work together with the terms of the training clause 6(c) clearly applying to the trainees in clause 13(a).
PN265
On this evidence, it appears that trainees have had explicit access to the training costs clause since it was first entered into the Metal Industry Award in 1990. To continue following the AiG history of the clause, we note that clause 9(f) of the National Training Wage Award in 1994 states:
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All other terms and conditions of the relevant awards that are applicable to the trainee or would be applicable to the trainee, but for this award, shall apply unless specifically varied by this award.
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Now, in their submission, AiG rely on the term "that are applicable to the trainee" in an attempt to explain the obvious flaw in their case, that there was no exemption from the training costs clause in the National Training Wage Award, as was required under clause 9(f) of that award. Now, it should be noted that that caveat that are applicable to the trainee, did not appear in clause 13(a)(c)(iv) of the Metals Industry Award, giving us no reason to believe that the inclusion of this caveat was intended to exclude the training costs clause which had not been specifically excluded prior to the development of the National Training Wage Award.
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So, despite the history of this clause, the AiG expect the Commission to believe that the drafters of the Metals Industry Award, after the establishment of the National Training and Wage Award, did not explicitly exclude trainees from the training section of the award because they believed it was commonly understood that it did not apply to these employees.
PN269
So, looking forward at the 1990 Metal and Engineering Award, nowhere in clause 5.2, which is the successor clause to 6(c) in relation to training costs, does it explicitly, or the AMWU submits implicitly, exclude trainees from the operation of the training costs clause. Clause 5.2.1 allows for training committees to formulate a training program, including available training courses and career opportunities.
PN270
There is nothing in the award that would prevent a training program from including traineeships. Nor has the AiG presented any evidence to the Commission that would allow it to reach that conclusion. So, given the ease with which the drafters of the National Training Wage Award in 1994 or in 2000, could have excluded the training costs clause from operation and the mental gymnastics that is required to retrospectively explain why they did not, the AMWU submits that the Commission cannot make a finding of fact to support the claims made by AiG that the training costs clause has not historically applied to trainees.
PN271
In relation to the comments made by AiG in relation to award simplification, it should be noted that the relevant training costs section in clause 5.2, as outlined in Marsh SDP's decision, were considered to be allowable because they were allowances, and as such, were allowable under section 89(a)(ii)(j) of the Workplace Relations Act 1996, and for no other reason.
PN272
During award modernisation, the drafters continued to use this direct and clear assertion that all terms of the award apply to trainees unless specifically excluded, just as they had since 13(a) was included in the Metal Industry Award in 1989.
PN273
Clause 18.1 of the Manufacturing Industry Award uses the clearest possible language, and the decision to insert 18.1, would have considered the impact of the use of this direct language. It is apparent, on a plain reading, of all the relevant training costs clauses, in conjunction with all the relevant traineeship clauses, that training costs have always applied to trainees. Which brings us back to the AMWU case, which is that the objective of the training provision is, and always has been, removing barriers to training, to increase skills with the aim of improving productivity in the manufacturing industry.
PN274
To exclude trainees from this provision with no safety net, as existed for apprentices, is nonsensical. There is no reason for the Commission to believe that clause 32.5 should be limited in its scope. If that were the case, it would have been clearly identified at the outset, and it was not. Or at, indeed, at any point since its original insertion.
PN275
The union submits that the training costs clause has applied to trainees since its inception, that it continues today, based on a plain reading of the text of the Modern Award and a reasonable interpretation of its history. To move from that plain reading position would be to rip away an entitlement that trainees have had access to, based entirely on an abstract and lopsided interpretation of the award's history.
PN276
The Commission has been provided with sufficient evidence by the union to establish that it is current industry practice and a concrete entitlement that is enjoyed by employees. For the Commission to remove this entitlement, it must be satisfied that to do so would be to achieve the Modern Award objectives.
PN277
The final piece of evidence confirming that an obligation on employers to pay the training costs of trainees, is the secondary position put in the AiG's submission. Even the AiG admit, through this secondary position, that a fair and relevant safety net for trainees should include the provision of training costs by the employer. The Commission cannot ignore the real ramifications of a change in the safety net, as it currently applies to trainees.
PN278
And just to cover the issue that was raised by my friend. In the event that the Commission seeks to remove the training costs entitlement, as we would describe it, and find for the AiG, the AMWU submits that the Commission is not bound by the proposals put forward by the parties, and that there is scope to make up its own mind about what it considers to be a fair and relevant safety net.
PN279
Noting that a decision in favour of the AiG's case, would leave trainees under these awards, for training undertaken in relation to their training contract, as the only class of employees to undertake some training agreed to by their employer without some recourse to costs. All employees are unequivocally covered under 32.5, with the exception of apprentices, for some of their training, which is covered under 15.1, and by our submission, trainees are included under 32.5. And even under the AiG's submission, trainees would be covered by 32.5 for all training that they undertake, not in relation to their training contract, which is a position which we'd obviously agree with.
PN280
So this decision, if it finds in favour of the AiG, would leave this type of training by this group of employees, people who are specifically described as undertaking training, as the only type of employee that would not be covered and have some recourse to costs for training. Now, we've set out why we thing- - -
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DEPUTY PRESIDENT GOSTENCNIK: What's the case for their being a differential entitlement as between apprentices under a training contract and trainees under a training contract?
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MR TEGG: Well, by our submission, that difference has always applied.
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DEPUTY PRESIDENT GOSTENCNIK: I understand that.
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MR TEGG: So, whether there's merit in continuing that, is obviously a decision for the Commission.
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DEPUTY PRESIDENT GOSTENCNIK: Well, save that the difference wouldn't have always applied, the introduction of the apprentices' provision in 2013, wasn't it?
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MR TEGG: Yes, sorry.
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DEPUTY PRESIDENT GOSTENCNIK: The apprentices' provision caused that differential, because on your analysis, the original provision applied to both apprentices and trainees, and there was a change then in relation to apprentices.
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MR TEGG: Yes, that's the case, although there has always been specific provisions that dealt with apprentices and so there would have been previously an interaction- - -
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DEPUTY PRESIDENT GOSTENCNIK: Including travel costs?
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MR TEGG: I do not know the answer to that question on travel costs. Certainly, I wouldn't pretend to. But there's always been - I mean for decades - there's been provisions that dealt with apprentices which were a class of employee that were understood to be undertaking training. It was only in 1990 that the concept of training was inserted into the Metals Industry Award, so whether there was any meaningful difference between apprentices and trainees under 13(a) and 14 of that award, I do not wish to venture an opinion, because I would be speaking beyond my know.
PN291
But there's always been separate clauses for apprentices. 6(c) was put in at the same time as - effectively the same time as 13(a) and so, since that time, those training costs provisions have applied to trainees. As to the current reality that even by our own assertion, there is a differential between the two, again we come to the point that, as my friend has highlighted, the entitlements under 32.5, in some readings, are superior to that under 15.11.
PN292
And so, as a result, the trainees in question may well find themselves worse off and whether it would be beneficial on some parts in the Modern Award objective to make those employees worse off in order to improve the Modern Award objective in other areas, to make it more consistent is a question for the Commission. I'm not sure it's a question that we've put any - we certainly haven't put any submissions to that question. Certainly the AiG haven't. And so that may well be, as I'm about to conclude, you know, in relation to, as my friend pointed out, the ability of the Commission to- - -
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DEPUTY PRESIDENT GOSTENCNIK: Well, what I'm trying to understand, Mr Tegg, is this. That if, as you say, the training provisions have always applied to apprentices and trainees, why is it that in the 2012 Modern Awards Review case, the ACTU sought a specific provision dealing with travel allowances etc, for off the job apprentice training?
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MR TEGG: That was well before my time and so I can't answer the question as to what the motivations were behind what was sought by the various parties in the 2012 case. I mean, obviously we've included the submission. I'm aware of what we had said at the time, but I'm certainly not of the view - and in relation to some parts of, as my friend has pointed out, in some parts of our submission we argue that apprentices should have the same as trainees. In other parts of that submission, paragraph 3.13 I believe, we make the argument that trainees should have no less than apprentices.
PN295
So whether our position - I wouldn't classify our position as always having been that it should be the same between trainees and apprentices, and certainly our position at the moment is that it is not the same between trainees and apprentices.
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DEPUTY PRESIDENT GOSTENCNIK: That is, in fact, that one consequence of that position is that there appeared to be an apparent need for a specific provision dealing with trainees and you say, apprentices in 2012/2013, dealing with those costs. Yet you say here today that the history of the training provisions in the award show that they always applied.
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MR TEGG: I suppose as - I would probably draw you to paragraph - I mean, the reason for our submission was that our submission focuses squarely on the primary position put by AiG, because we believe that would be the most deleterious to the safety net and to trainees. We have not sought to engage with the separate question, and that's why we, in the last paragraph of our submission, sought an opportunity to do so in future, on the issue of if it's not going to be 32.5, what should it be?
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DEPUTY PRESIDENT GOSTENCNIK: The opportunity has been given to you in the directions to file reply submissions in relation to the AiG submissions, and they have, at the outset, always maintained that secondary position.
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MR TEGG: I accept that, your Honour. But with the limited time and resources available, we thought it better to make sure we didn't lose the case on the primary - the primary case rather than putting resources into considering - but that was a decision for our union and that's why we filed the way we did.
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DEPUTY PRESIDENT GOSTENCNIK: So, do I understand the position of the AMWU to be this, that it would not oppose a training costs clause which is in terms - gives trainees in terms the same entitlements to apprentices?
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MR TEGG: The position that I have been - the position of the AMWU is that clause 32.5 has, does and should continue to apply and that in relation to the question about the application of an identical clause that currently applies to trainees, being - applies to apprentices being applied to trainees, that we would like an opportunity to make a submission, if that's what the Commission decides.
PN302
DEPUTY PRESIDENT GOSTENCNIK: I understand that point. But the difficulty is that you've been given the opportunity and you haven't. You're effectively asking for, in the event - I mean, in the event that we find the clause doesn't apply, then you might find yourself find yourself in a different position, so far as the AiG is concerned, in three or four months' time when we get around to convening about that issue. The AiG might say well, it's winner takes all.
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MR TEGG: And that's obviously a risk and that's up to the Commission, if that's how they decide to proceed. But - - -
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DEPUTY PRESIDENT GOSTENCNIK: Well, you're asking us to proceed that way.
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MR TEGG: And as I think I indicated in directions, I have - - -
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DEPUTY PRESIDENT GOSTENCNIK: I'm giving you an opportunity - - -
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MR TEGG: - - - for that. In our view, whether or not clause 32.5 currently applies to trainees is a threshold issue. If it does apply to trainees, then the secondary position put by the AiG and one which, even under those circumstances, may be pursued by the Bench, would be- submissions in that would be relating to whether the diminution in entitlement was worth the other benefits that would take place in relation to the Modern Award objective, as AiG would no doubt submit, and as- - -
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DEPUTY PRESIDENT GOSTENCNIK: So, as I understand AiG's position, it's two-fold. That their prime position is that the award provision doesn't apply. It is also contemplating a position which is, as I understand it, two‑fold. Either we find that the award provision does apply and AiG says it should be varied in any event. Or alternatively, we find that the award provision doesn't apply, but that creates another anomaly as between trainees and apprentices, and we mightn't be minded to allow that from a safety net point of view and therefore include this differential positon. That's the position, isn't it?
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MR FERGUSON: Yes. And the last point, to be clear, in the event that you find that the provision does apply, that the Bench finds that it's not prepared to remove that, notwithstanding the grounds that we've established- - -
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DEPUTY PRESIDENT GOSTENCNIK: Yes, yes.
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MR FERGUSON: - - -that an alternate position might be to align the two clauses.
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DEPUTY PRESIDENT GOSTENCNIK: Yes.
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MR FERGUSON: But it's only in that narrow construct that you find that a case is not made out for removal of the provision.
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DEPUTY PRESIDENT GOSTENCNIK: Yes, I understand. In any event, I mean it's a matter for you, Mr Tegg, how you want to run your case. But there is an opportunity now for you to state clearly what your position on that issue is.
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MR TEGG: I believe that I have.
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DEPUTY PRESIDENT GOSTENCNIK: Yes, all right.
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MR TEGG: Just before I take a seat. I just want to quickly turn to the issue of the training contract that was raised by Mr Ferguson. In it, he raised conjecture about whether or not all the training undertaken by trainees in connection with a training contract would be agreed by the employer. Now, in - as we look back to the section that he drew us to, under clause (a) says:
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For the employer, I agree that I will employ and train the apprentice as agreed in our training plan.
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So, if to sign this statement and to enter into this contract - - -
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DEPUTY PRESIDENT GOSTENCNIK: Sorry, Mr Tegg, which document?
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MR TEGG: So, this is the training contract. It was attached to Mr Curry's statement. It was also attachment B to the AMWU's submission.
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DEPUTY PRESIDENT GOSTENCNIK: Yes.
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MR TEGG: So we're looking again at - the third page of that document.
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DEPUTY PRESIDENT GOSTENCNIK: Yes.
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MR TEGG: Yes, so I'll just draw your attention back to the section of the document we were looking at previously and as your Honour pointed out, a training plan is a document worked up, with conjecture, between the employer, the employee and the training organisation. Now, in order to sign this contract and enter into a training contract with this trainee, the employer has to sign on the following terms. For the employer:
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I agree that I will employ and train the apprentice/trainee as agreed in our training plan.
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Under point (a). And that under point (e) that they:
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Will release the trainee from work at the appropriate wages to attend training and assessment.
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So, whether the training is agreed or not is literally, in the first point, mentioned twice and read together with the introduction and point (e), specifically mentioned again. That the employer must agree to release someone for training. They must agree to train them, as set out in the training plan. So there can certainly be no conjecture before the Commission that for the purpose of clause 32.5, any training which takes place under a training contract has been agreed to.
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I mean, this is not a verbal agreement, this is not a sort of a mate's agreement. This is literally a signed contract in which the word "agree" is required before the contract can be entered into. Unless there's any further questions, that's my submission.
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DEPUTY PRESIDENT CLANCY: So just back to your proposition that plain reading of clause 32.5(b), for example.
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MR TEGG: Yes.
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DEPUTY PRESIDENT CLANCY: That it covers trainees. The expression there is, "An employee undertaking training agreed to by the employer". How do you reconcile that with the definition of "trainee" in schedule D, in clause D.2 of schedule D? The definition of "trainee":
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A trainee is an employee undertaking a traineeship under a training contract.
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MR TEGG: Well, your Honour, a trainee is, I would submit, a subclass of employee. That they are, for all intents and purposes under the award, as is seen in clause D6.4 - sorry, I'm looking at the wrong one. Yes, clause D6.4, entitled to all other - all clauses of the award that would normally apply.
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DEPUTY PRESIDENT CLANCY: So it's specifically varied by the schedule.
PN337
MR TEGG: Yes.
PN338
DEPUTY PRESIDENT CLANCY: Now, if a trainee is defined as an employee undertaking a traineeship under a training contract, how can clause 32.5(b) apply to a trainee?
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MR TEGG: Well, because the training contract is a type of training which has been agreed to by the employer.
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DEPUTY PRESIDENT CLANCY: I mean, I'm just asking, why wouldn't the clause say, "An employee undertaking training agreed to by an employer or a traineeship"?
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MR TEGG: I mean, it could say that, and certainly prior to the decision in the Apprentices case, it could have included apprentices as well, but they seem to be excessive clarity without - where we would argue, no confusion exists. Thank you, your Honour.
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DEPUTY PRESIDENT GOSTENCNIK: Sorry, just before you sit down, Mr Tegg.
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MR TEGG: Certainly.
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DEPUTY PRESIDENT GOSTENCNIK: The award also provides for cadets.
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MR TEGG: Some of the - one of the awards to.
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DEPUTY PRESIDENT GOSTENCNIK: The Manufacturing Award, I think, provides for cadets.
PN347
MR TEGG: Yes. Clause 17.
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DEPUTY PRESIDENT GOSTENCNIK: Clause 17, I think it is, yes.
PN349
MR TEGG: Yes.
PN350
DEPUTY PRESIDENT GOSTENCNIK: Seventeen. So there is another class of person who undertakes some form of training, both school-based and experience-based which could be the subject of these proceedings at all. But, on your analysis, that clause also provides to - clause 32 also sets out the entitlements for cadets undertaking training.
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MR TEGG: I mean, 17.1 starts the same way as 18.2.
PN352
DEPUTY PRESIDENT GOSTENCNIK: Yes.
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MR TEGG: The whole award applies, unless specifically - and I'm not an expert in clause 17, so unless there was some provision in here of which I am not aware, and there may be, that would describe a different process for training, then in our submission, yes, 32.5 would apply, because this person is an employee, this person is undertaking training that, by virtue of their having been engaged by the employer for a position that both grants lower wages, but also has a training requirement, the clauses of the award would apply to cades, as they would to apprentices. And as they had previously had to other employees.
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DEPUTY PRESIDENT GOSTENCNIK: Thank you, Mr Tegg. Anything in reply, Mr Ferguson?
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MR FERGUSON: Maybe just a small number of points. Firstly, my friend in various ways, suggested that the evidence of Mr Curry establishes the factual proposition that it's industry practice that trainees recover the relevant costs. We've obviously made submissions already about the weight that could be afforded to Mr Curry's evidence and we say that it falls well short of establishing that factual proposition, for reasons that I've articulated.
PN356
But in any event, that doesn't establish what the proper interpretation of the relevant clause is. Now, we don't know if the trainees Mr Curry is talking to are all covered by collective agreements. It's a factual proposition. It may go to the impact of the claim at its highest, but in any event, the evidence or paucity of the evidence is so severe that we really can't - the Full Bench can't draw any real conclusions about that.
PN357
And we don't dispute that some employers may pay over award entitlements or that union, if it held the view that it has about the interpretation of the award, has been successful in securing or convincing some employers of its members, to provide what we say are, in effect, over award entitlements. But it doesn't have a bearing on the relevant interpretation question, in our submission.
PN358
Going to the comments in relation to the obligations flying from the training contract, my friend took us to paragraphs (a) and (e) of the obligations that relate to employers. Just, on a simple reading, it talks about an obligation or an agreement that they:
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Will employ and train the apprentice training as agreed in our training plan and ensure the apprentice training understands the choice that he has regarding the training."
PN360
There is nothing in that that suggests that the employer is agreeing to particular off-the-job training, if you will. Of course a trainee is undertaking training with their employer. That's the nature of the relationship as well, and they do have a role to play in training them. But this clause is about training that occurs elsewhere. That paragraph does nothing to assist my friend.
PN361
And in relation to (e), that's an obligation to release the apprentice trainee from work and pay the appropriate wages. Again, that has nothing to do with whether training has been agreed, as contemplated by the award clause, and we really say that this comes back to the proposition that this clause was developed in a different time in order to deal with training that was specifically agreed by the employer, in the context of that original and much longer clause that was asserted in the first awards and contemplated, you know, a detailed program being developed and it tailored the training to the particular enterprise.
PN362
It wasn't intended to deal with training that arises at the industry or the occupation level. It was all about training at the enterprise, it was all about the award (indistinct) process and the relevant principles, which - the name has eluded me. The structural efficiency principles, which I've already rabbited on about endlessly. So we say that really doesn't take my friend any further.
PN363
I'll just respond, if I may, to the questions from the Deputy President to my friend in relation to the differences in terminology between clause 32.5 and the provisions dealing with trainees, and for that matter, I might also identify the provisions dealing with apprentices. Obviously the fact that the framers of the award have elected, in some instances, to specifically identify these employees by reference to a different terminology is a textural indicator that it was not intended that these necessarily be caught by clause 32.5. I don't know that I can put it much higher than that.
PN364
Obviously, part of the point is that, we say, this clause 32.5 harks back to a time where it was never contemplated that they'd be caught, the trainees and apprentices. Obviously it's a matter that could have been dealt with easily by the framers of the award but in any event, we say that the broader historical context is the surer guide and demonstrates that it was never intended to capture training, pursuant to a training contract.
PN365
The only other matter that I really want to deal with is this order that has been tabled. My friend just sent it to me last night, but I'll confess, I wasn't able to get instructions in relation to it, and some in my organisation have very long memories about this award and feel very strongly about what occurred at various points in time.
PN366
I only seek to make an application, if I may, for some period of time to consider whether there is any significance in relation to this and respond, if I can, in writing. No, I've raised that with my friend before the proceedings and I understand he has no objection. But I'm in the Bench's hands.
PN367
MR TEGG: That's fine with us.
PN368
DEPUTY PRESIDENT GOSTENCNIK: How long would you need, Mr Ferguson?
PN369
MR FERGUSON: It may be that there is no lengthy submission that falls from this. The difficulty I have is that there are two other major common claims proceedings on foot over the next couple of weeks, so I probably won't get to it till a third week. But I don't know if that's within the timeframes the Bench has in mind and it may be that- - -
PN370
DEPUTY PRESIDENT GOSTENCNIK: Well, if we were to give you four weeks, would that be sufficient?
PN371
MR FERGUSON: That would be sufficient and it may be that another organisation could assist.
PN372
DEPUTY PRESIDENT GOSTENCNIK: And in fairness to Mr Tegg, then a further week or so after that, to put on anything in reply.
PN373
MR TEGG: That would satisfy us, your Honour.
PN374
DEPUTY PRESIDENT GOSTENCNIK: Yes. We will make directions to that effect.
PN375
MR FERGUSON: There are no other matters arising. We intend to rely on what we've put already, Deputy President.
PN376
DEPUTY PRESIDENT GOSTENCNIK: All right. We thank the parties for their helpful submissions. We will reserve our decision and giving leave to the Ai Group to file any further submissions on the order of Keogh J, within four weeks from today and with leave to the AMWU to follow any submissions in reply to any submissions made by AiG on that issue, within seven days after those submissions are filed and served. Thank you. We will adjourn.
ADJOURNED INDEFINITELY [1.03 PM]
LIST OF WITNESSES, EXHIBITS AND MFIs
IAN WARD CURRY, AFFIRMED...................................................................... PN12
EXAMINATION-IN-CHIEF BY MR TEGG...................................................... PN12
EXHIBIT #1 WITNESS STATEMENT OF IAN CURRY WITH AMENDMENT TO PARAGRAPH 3, COMPRISING 10 PARAGRAPHS AND DATED 01/08/2016 PN29
CROSS-EXAMINATION BY MR FERGUSON................................................ PN30
THE WITNESS WITHDREW.............................................................................. PN49