31 The Joint Unions submitted that all other industrial parties with the exception of AFEI, had agreed to a compromise settlement proposed during conciliation by Australian Business Industrial ("ABI"). The Joint Unions noted also that the Australian Retailers Association, NSW Division ("ARA"), ABI, Aged and Community Services Association, the Catholic Commission for Employment Relations and the Aged Care Association Australia (the "Joint Employers") submitted that the Joint Unions' applications should be granted in the terms sought.
32 The Joint Unions outlined three options for disposing of the matters. Firstly, that the Full Bench determines that the applications comply with the Principles and Orders of the decision in State Wage Case 2008. Alternatively, if the Full Bench was to find against the Unions, it was submitted the Full Bench should find that this matter constituted a Special Case under Principle 10 of the Wage Fixing Principles and should vary the awards in accordance with the methodology advanced by the Joint Unions pursuant to s 17(3)(d) of the Act on the basis that the relevant Awards were past their nominal term and that it was not contrary to the public interest to do so. That alternative, it was submitted, would maintain the integrity of the consent arrangement put in place by the parties over the last decade. Finally, the Bench might elect to determine that the matters be disposed of on this occasion, as a one off solution, in the manner prescribed in the compromise solution (see below) proposed by the Unions with liberty to the parties to apply at the next Wage Case to more appropriately define the issue.
Joint Employers' submission
33 The Joint Employers confirmed that they supported both the Unions' applications in the terms sought as well as the compromise position proposed (see below) but did not put forward any submissions, either in writing or orally, in that regard.
Motor Traders' Association submission
34 The MTA explained that it had supported the compromise arrangement proposed in conciliation proceedings before Walton J, Vice-President on 12 August 2008 to apply the four per cent increase to the C10 tradesperson rate of pay as a starting point to derive the benchmark monetary amount in order to progress the variations expeditiously on the basis that the parties' positions would be reserved for final determination in the 2009 State Wage Case. However, its position was similar to that of the AFEI in that its primary support was for a four per cent increase across the board.
35 The MTA opposed the increase of trainee rates using the methodology advanced by the Joint Unions. Whilst the MTA acknowledged that the C10 rate had played a pivotal role in establishing relative skill levels both nationally and at a State level, reliance on it, on this occasion, was illogical as its application, in the manner proposed by the unions, would distort relativities between the relevant lower skill levels.
36 It was noted that skill level B was mainly applicable in the vehicle industry. The roles for which the trainees were being trained to perform led them to perform roles at non-trades levels in the Vehicle Industry - Repair Services and Retail (State) Award and the Motor Vehicle Salesperson (State) Award.
37 It was pointed out that the Unions had acknowledged in their submissions that the Training Wage (State) Award was a counterpart of the National Training Wage Award which, at Schedule C, provided under Wage Level B for "Automotive Industry Retail, Service and Repair" with relevant training at non-trades Certificate II and III.
38 It was also pointed out that the Unions further acknowledged that other rates of pay, including the rates of pay in training wage awards, have been determined "around" the C10 classification key rate of pay. The Unions had also acknowledged the national historical approach to wage fixation of rates for trainees.
39 It was submitted that Skill Level A had been set having regard to the C10 rate. The other skill levels had been set at a lower proportion of the C10 rate. Therefore, if a key rate was to be established, regard must be had to the national relationships that had been established for the roles being performed.
40 In addition, historically, rates for Skill Level B had been related to non-trade roles and, therefore, it would be inappropriate to determine rates for that level at the C10 trade rate. Therefore, if the Commission was minded to use a key rate in order to determine trainee rates, then it needed to establish an appropriate key rate in relation to those skill levels that related to non-trades roles.
41 The MTA pointed out that prior to the introduction of the amendments to the Workplace Relations Act 1996 (Cth) in March 2006, the Vehicle Industry - Repair Services and Retail (State) Award and the Motor Vehicle Salespersons (State) Award were state counterparts of the federal Vehicle Industry Repair, Services and Retail Award 2002 and the relevant rates of pay were identical. Under the classification structure of the federal award, the trade rate fell within the wage group level "R6" and level 4, a non-trade classification, fell within the wage group level "R4" which was set at 92.4 per cent of the trade rate.
42 The MTA submitted that, in establishing a key rate, regard must be had to the original counterpart nature of the trainee rates in New South Wales and Skill Level B should reflect this historical relationship. It was submitted that would overcome the problem identified by the applicant Unions of having different outcomes for different awards and industries and thereby fracturing the common rates enjoyed under all training wage awards across this State.
43 It was suggested that the approach proposed by the Joint Unions ran counter to the approach espoused by the Full Bench in the State Wage Case 2008, as it would distort internal relativities established as a result of the consent variations made in the flow on of the State Wage Case 2007 decision.
44 Finally, it was submitted that the correct methodology was to apply a four per cent increase to each individual trainee rate, which would have the clear mathematical benefit of exactly maintaining the agreed relativities set when the trainee rates were last varied by consent as a consequence of the State Wage Case 2007.
Australian Federation of Employers and Industries submission
45 The AFEI offered a number of reasons in support of its position, the most significant of which was that it was entirely consistent with the intent of the Full Bench in its decision in the State Wage Case 2008, particularly in relation to Order (2) and Principle 8(d) wherein "trainees" were specifically mentioned. The Full Bench granted a percentage increase on this occasion having accepted the submission by Unions NSW that a succession of flat dollar increases had, over the years, compressed the relativities between skill levels in awards. Nowhere in that decision did the Commission consider a quantum in excess of four per cent. Indeed, Principle 8(d) contemplated a lesser amount being applicable to trainees.
46 The applications, for which there was consent amongst some employer groups, sought to increase trainee rates by in excess of four per cent in every case - ranging from 4.005 per cent up to 4.7 per cent.
47 The proposal espoused by the Joint Unions for variation of the training wage was inconsistent with the submissions they put before, and which found favour with, the Full Bench in the State Wage Case 2008. The Commission, as currently constituted, was being asked to depart from one of the fundamentals in that decision.
48 The AFEI further submitted, and demonstrated with use of a table, that the Joint Unions' proposal would result in not only further compression of relativities between the Skill Levels within the Training Wage Awards, but also further compression of the relativities between the pay rates for skills levels in Training Wage Awards and the C10 Metals pay rate.
49 The AFEI pointed out that the Joint Unions' submission acknowledged that the training outcomes associated with Training Wage awards sat above or below the C10 (tradesperson) Metal rate. It was submitted, therefore, that the arbitrary selection of that rate, as a basis for deriving the 2008 training wage increases, was not justified. This was so, particularly when one took into account that the training outcomes were not at the C10 level and the fact that the Training Wage (State) Award stipulated that "the wage rates prescribed by this clause [Clause 7(b)] do not apply to complete trade level training which is covered by the Apprenticeship system."
50 A compromise proposal designed to split the difference between the four per cent (as proposed by AFEI) and the proposal put by the Unions was not, it was submitted, an appropriate way of determining, in a settled sense, the manner for setting trainee rates for the future.
51 The consent arrangement entered into in previous years was predicated on the fact that flat dollar amounts were granted to adults and percentage increases to juniors and apprentices to ensure the maintenance of the relativities between juniors and adults, apprentices and tradespersons. The AFEI argued that such an arrangement was not contrary to the Wage Fixing Principles in existence at that time because those Principles permitted there to be an increase of the full quantum awarded, or a lesser amount as agreed between the parties, or as determined by the Commission.
52 The AFEI further argued that the orders sought by the Unions, in other words, their primary submission, as well as their compromise submission, were not available elsewhere in the Principles other than as a Special Case with its attendant principles.
53 The AFEI submitted that the most appropriate method of flowing on the increase to the training wage was to apply the percentage increase in full to the training rates thereby negating the necessity, or justification, for a special formula.
Conclusions regarding the claim