Application by Queensland - Training and Employment Recognition Council [2013] FWCFB 5411 (22 August 2013) - FWCFB 2013 case summary

Fair Work Commission (Full Bench)|2013-08-22|Before: Commissioner Roe, Commissioner Whelan, Deputy President Senior, Deputy President Harrison, President Senior, President Harrison, Senior DP Senior

(#P122_2908) A glossary of terms used in this decision is included as Attachment A.

(#P125_3451) [2012] FWA 3514.

(#P128_4148) [2012] FWAFB 10395.

(#P134_4553) In this decision, the term "apprentices" refers to all apprentices other than adult apprentices.

(#P135_4767) The figure originally sought was $423.66 per week, but as a result of the Annual Wage Review 2012-13 decision ([2013] FWCFB 4000), the C10 rate was raised from $706.10 to $724.50 per week.

(#P138_4984) "Adult apprentice" in this decision refers to a person who is 21 years of age or older at the time of the commencement of an apprenticeship.

(#P199_10545) [2012] FWAFB 5600.

(#P284_18678) [2008] AIRCFB 1000.

(#P293_20312) [2009] AIRCFB 800 at [51].

(#P300_21617) See [2012] FWA 5102.

(#P303_21970) See [2012] FWAFB 9215.

(#P304_22182) See [2012] FWAFB10395.

(#P311_22540) 'A shared responsibility - Apprenticeships for the 21st Century'. Final Report of the Expert Panel, 31 January 2011 (the Apprenticeship Expert Panel Report).

(#P312_22963) The full terms of reference are set out at Appendix A of the Report, pp.98-99.

(#P321_25136) Apprenticeship Expert Panel Report, p.13.

(#P324_25533) The recommendations are set out in the Report at pp.14-15.

(#P340_27198) Exhibit CTH3: Letter to the FWA President, 23 May 2012, and attached "Scoping Paper for Fair Work Australia on Decision Points for Review of Apprentice and Trainee Wages and Conditions".

(#P357_29191) NCVER, 'The Apprenticeship and traineeship system's relationships with the regulatory environment', Report 3, 2011 (NCVER Report 3).

(#P360_30577) Ibid p.6.

(#P365_31881) Exhibit ACTU1, Attachment PT-1.

(#P366_32772) Ibid, pp.23-24.

(#P373_34242) Hanna Schutz, Michael Bittman, Sharni Chan, Michelle Jakubauskas and John Buchanan, 'The Changing Situation of Electrical Apprentices: Submission to the Modern Award Review, Fair Work Australia', Workplace Research Centre, University of Sydney (the WRC Report).

(#P376_34889) Ibid, p.53.

(#P379_35207) Ibid, p.54.

(#P382_35543) Ibid, p.55.

(#P387_36349) Exhibit T13, pp.95-114 (summary); Attachments M and N.

(#P398_38457) Excluding Tasmania and the Northern Territory.

(#P399_38924) Exhibit W4, Schedule ZJ.1, p.12.

(#P404_39756) The Centre for International Economics, "Increasing apprentice and trainee wages and conditions in the building and construction industry: Costing the impact of union applications". Prepared for Master Builders Australia and the Housing Industry Association, February 2013, p.5. See also Exhibit MBA8, p.6.

(#P407_40334) Exhibits MBA8 and MBA9 respectively.

(#P410_41008) Exhibit MBA3, p.3 para 13.

(#P435_47189) Exhibit T13, p.4 para 1.4.

(#P440_48456) Exhibit CTH1, pp.12-13 para 3.16.

(#P447_50176) NCVER, 'The cost of training apprentices', January 2009.

(#P450_50636) Exhibit AIG6, p.42 para 105.

(#P473_57382) The Chamber of Commerce and Industry of Western Australia Inc, the Chamber of Commerce and Industry Queensland, the South Australian Employers' Chamber of Commerce and Industry Inc (T/A Business SA) and the Victorian Employers' Chamber of Commerce and Industry.

(#P476_58183) CEPU v Excelior Pty Ltd [2012] FMCA 621; CEPU v Excelior Pty Ltd [2013] FCA 638.

(#P479_58691) Exhibit AIG3, p.7 para 17.

(#P570_68230) (1997) 74 IR 446.

(#P573_70643) Ibid at Part 4.4.

(#P576_70792) (1997) 75 IR 272 at 276.

(#P577_70969) These were decisions that arose out of the provisions of Schedule 5, Item 49 of the Workplace Relations and Other Legislation Amendment Act 1996.

(#P580_71384) AIRC Print P9311, 11 March 1998 (Metals Award Simplification Decision).

(#P581_71623) Exhibit T12, p.2; Exhibit T33.

(#P582_72286) Metals Award Simplification Decision at pp. 21-42.

(#P601_74458) Exhibit ACTU 5, para 5.

(#P604_74716) AIRC Print Q0702 (11 May 1998); [1998] AIRC 589.

(#P607_76491) Ibid at Part 4.2.

(#P610_76721) AIRC Print T0301 (7 September 2000); [2000] AIRC 290.

(#P621_79360) AIRC Print T4991 (29 December 2000); [2000] AIRC 722.

(#P626_81412) Ibid at [9].

(#P632_83405) Exhibit ACTU11, para 6.

(#P659_90885) Ibid para 7.

(#P686_95956) Exhibit ACTU5, para 16.

(#P687_96350) See also Modern Awards Review 2012 [2012] FWAFB 5600 at [38].

(#P692_96563) Unless otherwise indicated, any reference in this decision to a 'regulation' is a reference to the relevant part of the Regulations.

(#P753_101170) Explanatory Statement, Fair Work Regulations 2009 at [29]-[32].

(#P803_105341) Explanatory Memorandum, Fair Work Bill 2008 at [149].

(#P806_105913) [2012] FWAFB 10080.

(#P807_106483) Ibid at [8].

(#P808_106995) Ibid at [9].

(#P809_107236) Ibid at [13].

(#P820_109597) Set out at Exhibit ACTU4, p.4 para 24.

(#P831_110324) The ACTU application and submissions were also supported by the joint applicant unions (see fn. 4), as well as the Maritime Union of Australia and the Textile, Clothing and Footwear Union of Australia.

(#P840_111216) Annual Wage Review 2012-13 [2013] FWCFB 4000.

(#P841_111352) In awards where the C10 trade rate is not the relevant adult rate for the purpose of determining apprentice wages, the ACTU sought that the first year apprentice rate should also be $434.70, although expressed as an appropriate percentage of the relevant benchmark classification in the relevant award.

(#P854_112841) The Hospitality Industry (General) Award 2010, the Miscellaneous Award 2010, the Registered and Licensed Clubs Award 2010, the Restaurant Industry Award 2010, and the Higher Education Industry - General Staff - Award 2010.

(#P861_113770) NCVER Report 3, pp.50-58.

(#P862_114227) 'Paying Apprentices: The Market Responds', ACCI Review, February 2005, pp.5-9.

(#P863_114576) NCVER Report 3, p.54, table 16.

(#P866_114782) See "Summary of the current Australian Apprenticeships Incentives Program" as at 1 January 2011: Apprenticeship Expert Panel Report, Appendix Q, pp.126-128.

(#P867_115250) 2007 Active Apprenticeship Survey, Prepared by ABS Statistical Consultancy for SA DFEEST (the Active Apprenticeship Survey), p.17. Cited in Exhibit ACTU4, p.220, fn 94.

(#P884_116299) Michael Bittman, Ron Reavell, Greg Smith and Tim Battin, 'Living standards of apprentices: a report prepared for Group Training Australia by the centre of Applied Research in Social Science (CARSS)', October 2007 (Living Standards of Apprentices).

(#P887_117480) Ibid, p.8.

(#P892_117961) See WRC Report, pp.35-41 generally, and particularly p.36.

(#P895_118393) See e.g. Apprenticeship Expert Panel Report, pp.9, 21-25.

(#P896_118817) Active Apprenticeship Survey. Cited in Exhibit ACTU4 at pp.53-56, p.60 para 266.

(#P897_118951) Josie Misko, Nhi Nguyen and John Saunders, 'Doing an apprenticeship: what young people think', NCVER, 2 October 2007.

(#P898_119177) Huntly Consulting Group Pty Ltd, 'Exits from the Trades: Final Report', 2008 (Exits from the Trades).

(#P899_119336) NCVER, '2010 Apprentices and Trainee Destinations: Australian vocational education and training statistics', 2010.

(#P902_119670) See e.g. Tom Karmel and Peter Mlotkowski, 'The impact of wages and the likelihood of employment on the probability of completing an apprenticeship or traineeship', NCVER, 2011.

(#P905_120565) Exhibit ACTU4, p.69, Table 7.

(#P908_121676) Ibid, Appendix 5.

(#P909_122381) WRC Report, p.43.

(#P910_122866) Exits from the Trades, p.29.

(#P913_123605) Melbourne Institute of Applied Economic and Social Research, 'Poverty Lines: Australia', ISSN 1448-0530, September Quarter 2012, p.1.

(#P916_125043) AIRC Print PR968890 (21 February 2006) (the Metals Award Decision 2006).

(#P919_125583) See ss.3(a) and (b), 134 and 284 of the Act.

(#P930_128461) See summary of evidence at Exhibit K20, para 21.

(#P933_128677) See evidence of Mark Osborne: Transcript of 20 March 2013, PN4536-PN4537 and PN4579; Mr Allen Hicks: Exhibit K2; Ms Cangie Edwards: Transcript of 22 March 2013, PN6440-PN6443 and PN6438-PN6439; Mr Stewart Munro: Transcript of 22 March 2013, PN6727-PN6768; Mr Phil Green: Transcript of 22 March 2013, PN6209-PN6218, Ms Ninette Markulis: Transcript of 4 April 2013, PN8260; Mr Stephen Kerfoot: Transcript of 4 April 2013, PN8867; and Mr David Pollock: Transcript of 3 April 2013, PN7356-PN7367.

(#P936_129304) See summary of evidence: Transcript of 1 May 2013, PN10883.

(#P959_136368) Chamber of Commerce and Industry WA, Chamber of Commerce and Industry Queensland, Business SA and the Victorian Employers' Chamber of Commerce and Industry.

(#P1000_145724) We note the comments made by the Minimum Wage Panel about the Henderson poverty line in the Annual Wage Review 2010-11 decision ([2011] FWAFB 3400 at [226]): "Our view at present is that this measure is not helpful to our task. Its origins in the 1960s, the inconsistency between its original construction and the way it is updated, and its focus on poverty rather than the needs of the low paid reduce its value as a tool for wage-setting." See also Annual Wage Review 2011-12 [2012] FWAFB 5000 at [179].

(#P1005_147482) Apprenticeship Expert Panel Report, p.88.

(#P1008_147866) See ss.134(1)(a) and 284(1)(c) of the Act.

(#P1011_148760) See ss.134(1)(d) and (f) and 284(1)(a) of the Act.

(#P1014_149740) See ss.134(1)(h) and 284(1)(a) of the Act.

(#P1017_150216) Apprenticeship Expert Panel Report, p.88.

(#P1020_150618) Ibid, p.21.

(#P1023_151148) See ss.134(1)(c), (f) and (g) and 284(1)(a) and (b).

(#P1032_154870) Metals Award Decision 2006 at [43].

(#P1037_157397) See ss.134(1)(g) and 284(1)(e) of the Act.

(#P1040_157710) See e.g. the Manufacturing and Associated Industries and Occupations Award 2010, clause 25.1.

(#P1043_158572) Apprenticeship Expert Panel Report, p.88.

(#P1050_160126) See ss.134(1)(g) and 284(1)(e) of the Act.

(#P1067_164135) See e.g. the maintenance and engineering stream of the Airline Award, the streams of the Sugar Award under which apprentices can be employed, and the Black Coal Award. Under all three awards the rate for an unapprenticed 18 year old is substantially higher than 55% of the C10 rate.

(#P1070_164712) See ss.134(1) and 284(1)(e) of the Act.

(#P1107_168332) NCVER, 'Historical time series apprenticeships and traineeships in Australia from 1963', Table 5 (Commencements in 12 months ending 30 June by trade occupation, 1963-2012), 2012 (NCVER Historical Time Series).

(#P1112_169668) Brian Knight, 'Evolution of apprenticeships an traineeships in Australia: an unfinished history' (NCVER, 2012) p.27; Australian Bureau of Statistics, 'Schools, Australia' (Catalogue Number 4221.0, 2012).

(#P1115_170213) Apprenticeship Expert Panel Report, Appendix F, p 122.

(#P1118_170662) Ibid p.90.

(#P1123_171341) Ibid. See also at pp.96-7.

(#P1128_172737) NCVER Historical Time Series, Table 3 (In-training at 30 June by trade occupation, 1963-2012).

(#P1133_173665) Exits from the Trades p.76, referred to in Exhibit ACTU4, para 325.

(#P1134_173963) Exhibit T1, para 10, and Exhibit T2.

(#P1135_174038) See for example the evidence on transcript of Allan Hicks (5 March 2013, PN1454 and PN1457) and Omar Merhi (21 March 2013, PN5212).

(#P1138_174332) Exhibit ACTU3 (It's not about age).

(#P1139_174940) Ibid, pp.5 and 31.

(#P1144_175613) See also the Apprenticeship Expert Panel Report, p.88, and Queensland Government, 'Queensland's proposed responses to the challenges of skills for jobs and growth' (Green Paper, 2005) p.16.

(#P1147_176569) See generally Exhibit ACTU4, para 246; Living Standards of Apprentices; and the WRC Report.

(#P1148_176834) For the ages of the witnesses see Exhibit K21, para 87(d).

(#P1149_177036) See summary in Exhibit K21, paras 126 and 127, and see Exhibit T29 evidence of Ms Mayer.

(#P1152_177336) Exhibit ACTU4, paras 296-307 and Exhibit T13, paras 2.8-2.10. The ACTU and AMWU appear to rely on unpublished NCVER data for their estimates.

(#P1155_177897) Transcript of 8 May 2013, PN12484-PN12488.

(#P1162_180772) AMMA Submission in Reply, February 2013, paras 27, 28 and 31.

(#P1165_181008) Exhibit MTA8, paras 101-103. See also the evidence of Mr Chapman: Transcript of 20 March 2013, PN4078- PN4081. However it is noted that a small majority of the employer respondents to the MTA employer survey support increasing adult apprentices' wages to the adult minimum rate of pay under the Vehicle Award: see Exhibit MTA8, para 99.

(#P1166_181668) Exhibit MTA8, Attachment B.

(#P1175_183774) Damien Oliver, 'An Examination of Award Wages among Australian Apprentices and Trainees', Australian Bulletin of Labour Vol. 38 No 2, 2012, pp.166, 170.

(#P1176_184109) See ss.134(1)(a) and 284(1)(c) of the Act.

(#P1195_189424) [2009] AIRCFB 345 at [100].

(#P1204_190351) This was accepted by Mr Nixon Apple for the AMWU: Transcript of 9 May 2013, PN12983-PN12986.

(#P1245_198204) Minimum Standard for Remuneration [2006] SAIRComm 13 at [94].

(#P1254_200816) Apprenticeship Expert Panel Report, pp.95-96.

(#P1257_201388) Manufacturing Skills Australia, Response to the Expert Panel Report, April 2011, p.10.

(#P1279_203074) It is not intended that the commencement rate in the Black Coal Award be varied by this decision.

(#P1302_207300) Apprenticeship Expert Panel Report, Recommendation 12, p.94.

(#P1327_210558) Mary Dickie, Rod McDonald and Fadil Pedic, "A fair deal: Apprentices and their employers in NSW". Integrated Research Report. Quay Connection, Ithaca Group and the Research Forum. Prepared for the NSW Board of Vocational Education and Training. November 2011. pp.15-6 (BVET Report).

(#P1338_214486) Group Training Australia Submission, 9 July 2012, para 16.

(#P1345_215096) Cover letter to submission of NSW Government, acting through its State Training Services, 29 January 2013.

(#P1350_215636) Exhibit CTH7.

(#P1353_215925) Exhibit CTH3, Attachment 1, principles 4 and 5.

(#P1362_217184) Workplace Research Centre, 'A step into the breach: Group Training initiatives and innovations using competency-based progression', Final Report, June 2012.

(#P1381_222633) COAG, National Partnership Agreement on Skills Reform.

(#P1424_229582) See e.g. the Education and Training Reform Act 2006 (Vic) s.5.58(2); Training and Skills Development Act 2008 (SA) s.46(10)-(11); Vocational Education and Training Act 1996 (WA) s.60E(1)(a)(iv); Apprenticeship and Traineeship Act 2001 (NSW) s.19.

(#P1429_230444) [2007] FCAFC 165.

(#P1430_230959) Ibid at [13].

(#P1431_231727) Ibid at [20].

(#P1434_231810) [2012] FMCA 621.

(#P1435_232349) Ibid at [58]-[59].

(#P1436_232611) CEPU v Excelior Pty Ltd [2013] FCA 638 (Katzmann J).

(#P1451_235961) Mr Nigel Muller also referred to having witnessed apprentices sleeping in cars overnight during his time as a trainer at Box Hill TAFE in Victoria: Transcript of 4 April 2013, PN8545.

(#P1468_240430) [2012] SAIRComm 7.

(#P1515_250309) Exhibit ACTU7.

(#P1520_251064) Ibid.

(#P1539_255238) PIAA Outline of Submissions in Response to application by AMWU, paras 17.1-17.4.

(#P1618_270331) Exhibit ACTU4; Apprenticeship Expert Panel Report, Appendix N, p.121.

(#P1677_281180) BVET Report, p.21.

(#P1694_285909) Apprenticeship Expert Panel Report, p.21.

(#P1695_286254) Ibid, pp.9, 30-31.

(#P1696_286744) Ibid, p.33.

(#P1715_288727) See e.g. s.13 of the Apprenticeship and Traineeship Act 2001 (NSW), which states:

"13 Duties of employers under apprenticeships and traineeships

(1) The employer of an apprentice or trainee must, in accordance with the relevant training plan, take all reasonable steps:

(a) to enable the apprentice or trainee to receive the work-based component of the required training, in particular by providing all necessary facilities and opportunities to acquire the competencies of the vocation concerned; and

(b) to enable the apprentice or trainee to obtain an appropriate qualification for that vocation, in particular:

(i) by releasing the apprentice or trainee as required for attendance at the relevant registered training organisation, and

(ii) by liaising with the relevant registered training organisation in relation to the apprentice's or trainee's attendance and participation in the training provided by the relevant registered training organisation.

(2) The employer of an apprentice or trainee must discharge his or her obligations under the relevant apprenticeship or traineeship as an employer of the apprentice or trainee."

(#P1716_289920) See e.g. s.19 of the Work Health and Safety Act 2011 (NSW).

(#P1721_291157) See ss.26-29 of the Act, which deal with the interaction between the Act and modern awards on one hand and State and Territory legislation on the other.

(#P1722_291511) See in particular s.134(1)(d) and (f) of the Act.

(#P1739_293719) Apprenticeship Expert Panel Report, p.33.

(#P1758_296783) The relevant legislation is referred to in numerous exhibits and submissions. See for example Exhibits CTH6 and AIG4.

(#P1783_301275) See s.123(4) of the Act. We do not intend to alter any entitlement to redundancy pay which an apprentice may have under a modern award or enterprise agreement.

(#P1850_316851) Clause 15.2(c).

(#P1927_332527) [2007] FCAFC 165.

(#P1934_333619) [2012] SAIRComm 7.

(#P1939_334875) [2012] FMCA 621.

(#P1940_335369) [2013] FCA 638 at [65].

(#P1957_337876) [2009] AIRCFB 345.

(#P1976_341106) Group Training Australia also made a similar application to vary the Fast Food Industry Award 2010, but withdrew the application by letter dated 6 August 2013.

(#P1993_344255) See Exhibits ACTU7 and ACTU8.

Printed by authority of the Commonwealth Government Printer

Work (Transitional Provisions and Consequential Amendments) Act 2009

Work Regulations 2009

Skills Development Act 2008

Traineeship Act 2001

Relations and Other Legislation Amendment Act 1996

Training Reform Act 2006

Education and Training Act 1996

Health and Safety Act 2011

Application by Queensland - Training and Employment Recognition Council [2013] FWCFB 5411 (22 August 2013)

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Judgment (176 paragraphs)

Legislation Cited (10)

Cases Cited (2)