TRANSCRIPT OF PROCEEDINGS
Fair Work Act 2009 31637-1
VICE PRESIDENT LAWLER
s.158 - Application to vary or revoke a modern award
Application by Australian Industry Group, The
Telecommunications Services Award 2010
[MA000041 Print PR986383]
11.15AM, MONDAY, 22 NOVEMBER 2010
THE FOLLOWING PROCEEDINGS WERE CONDUCTED VIA
TELEPHONE CONFERENCE AND RECORDED IN MELBOURNE
THE VICE PRESIDENT: Mr Smith, I note your appearance for AIG; Mr Dwyer for the CPSU; Mr Benfell I think is in Sydney for the CPSU; Mr Kentish, I note that you are there with Mr Dwyer. I take it there's no opposition to this application. There being no opposition, it seems to me this is an application that ought be granted. Where trainees are employed in an industry, it's a necessary part of the safety net to have arrangements for trainees and it's probably the case that it was an oversight that this schedule and relevant provisions were not inserted at the time of the administrative clean-up of the modern awards.
The only issue I think, Mr Smith, is the operative date. You want to have it operate from 1 January 2010. That raises the prospect of people who are trainees being employed as ordinary full-time employees and having to pay money back. It seems like an unattractive proposition.
MR S. SMITH: Your Honour, in our experience and with the companies that we've spoken to, it appears that the companies have continued to pay trainees under the National Training Wage Schedule. The 2002 version - - -
THE VICE PRESIDENT: Well, can I say what I was proposing to do - and it was recognised that's a problem also - I was proposing to vary it so that it takes effect from 1 January 2010, but have an additional clause that says nothing in that order would have the effect of requiring any employee to repay to the employer wages that they were paid in that period, other than wages paid on a mistake that's unrelated to their status as a trainee.
MR SMITH: Yes, your Honour. I take it that would be wages actually paid - - -
THE VICE PRESIDENT: Yes.
MR SMITH: - - - as opposed to a debate about whether wages were paid.
THE VICE PRESIDENT: No, your wages actually paid. It's about trying to make sure that you quarantine any employees who may have been actually paid as a full-time employee and then have an employer turn around and say, "Oh, well, you were only entitled to training rates since 1 January, so now you've got to give us a whole lot of money back," but obviously if there has been some other mistake of the sort that gives rise to an overpayment, that shouldn't be caught by any quarantine.
MR SMITH: Yes, that sounds fine, your Honour. Of course the 2002 version of the award continues to sit there as an instrument that hasn't been terminated and that - - -
THE VICE PRESIDENT: So you think I'm jumping at shadows here; there's no real problem?
MR SMITH: I think that's right, your Honour, because anyone employed under the training arrangements would at the moment presumably have technically been employed under the provisions of the pre-modern instrument given that arguably they wouldn't have been under the scope of the modern instrument, but I think - - -
THE VICE PRESIDENT: Isn't the problem, Mr Smith, there's actually scope for debate about that which makes it desirable for there to be some certainty created by the order?
MR SMITH: Yes, your Honour. All we tried to achieve is a situation where all the people that have continued to be paid under the National Training Wage Schedule have been paid appropriately and in the interests of the employees and the employers, so we don't have any objection to the order adequately reflecting that. We haven't identified that this extra aspect is necessary, but on the surface of it we don't have any objection to it as long as it doesn't cause any - - -
THE VICE PRESIDENT: Well, what I suggest is that I send a draft order to the parties that have appeared today and give you a brief opportunity to comment or to say that there needs to be a further mention in the event that there needs to be some debate about it. I think we're on the same page about what we're trying to achieve. Anyone who has been engaged under a training arrangement under the previous Training Wages Schedules - - -
MR SMITH: Yes.
THE VICE PRESIDENT: - - - shouldn't be affected in any way, shape or form, neither employer nor employee. It will simply regularise arrangements from 1 January.
MR SMITH: Yes. Thank you.
THE VICE PRESIDENT: Mr Dwyer, anything you need to say?
MR D. DWYER: No, your Honour.
THE VICE PRESIDENT: Mr Benfell, anything from you?
MR L. BENFELL: Your Honour, we support your variation and we will look at the draft order when you send it.
THE VICE PRESIDENT: Fine. Thanks very much. If there's nothing further, the tribunal is adjourned.
<ADJOURNED INDEFINITELY [11.21AM]