Fair Work Act 2009
s.156 - 4 yearly review of modern awards

Variation to Modern Awards - application to vary awards to include employment conditions determined in Transitional Review decision relating to Apprentices, Trainees and Juniors - no opposition to variations - modern awards objective - fair and consistent safety net of apprentice conditions.

[1] The Australian Council of Trade Unions (ACTU) and affiliated unions have made application to vary the 37 modern awards referred to in Annexure A to include the conditions of employment determined by the Full Bench in its decision 1 of 22 August 2013 relating to Apprentices’ wages and conditions of employment (the Apprentices Decision).

[2] The applications have been the subject of conferences convened by Commissioner Roe in which substantial agreement has been reached between the union and employer parties. The Commissioner provided a report to the President and the Full Bench on 10 November 2014 outlining the agreement reached between the parties on the variations. 2

[3] The applications were listed for hearing before the Full Bench on 16 December 2014 and directions were issued for the filing of submissions and draft determinations by the ACTU and unions. Any party in opposition to the final draft determinations was required to file submissions explaining the nature of the opposition. No submissions in opposition to the applications were made.

[4] The ACTU submitted that the making of the variations to the awards would ensure there is a fair and consistent safety net standard of wages and conditions that apply to all apprentices covered by modern awards. The conditions sought by the ACTU are the same conditions determined in the Apprentices Decision. These deal with the following matters:

● Payment by employers of apprentices’ excess travel costs for attendance at block release training at a distant location requiring an overnight stay, except where the apprentice could attend a closer RTO; 3

● Reimbursement by employers for the cost of training fees and prescribed textbooks within 6 months of commencement of an apprenticeship, unless there is unsatisfactory progress; 4

● Providing that an apprentice is entitled to be released from work to attend off-the-job training and assessment, that the time spent by apprentices in off-the-job training and assessment is to be regarded as time worked for the purposes of wages, working conditions and leave entitlements, and that all other conditions of employment specified in the award should apply to apprentices – along the lines of existing clauses in the National Training Wage Schedule; 5

● Provisions to ensure that, except in an emergency, apprentices cannot be required to work overtime or shiftwork if doing so would interfere with their attendance at training; 6 and

● Deleting any clauses which purport to exclude apprentices from some National Employment Standards (NES) provisions (e.g. notice of termination). 7

[5] The ACTU did not seek to pursue provisions for competency based wage progression as a common claim across modern awards. However it is noted that the Australian Meat Industry Council filed an application to insert competency based provisions into the Meat Industry Award 2010 and that this application was not opposed by the Australasian Meat Industry Employees Union. The ACTU has included the proposed and agreed variations to this award in its draft determinations.

[6] In the proceedings before the Full Bench, Mr Shipstone for the ACTU submitted that around 70% of all apprentices in-training are covered by modern awards that have already been varied to provide the relevant conditions of employment as a result of the Apprentices Decision. It was said that the proposed variations to the 37 modern awards would bring the entitlements of apprentices covered by these awards into line with the entitlements already available to apprentices under other modern awards. This would ensure that modern awards provide a fair and relevant minimum safety net of terms and conditions for all apprentices, taking into account the range of factors set out in s.134 of the Fair Work Act 2009 (the Act).

[7] We have considered the submissions and draft determinations provided by the ACTU. We note that there is no opposition from the employer parties to the making of the variations to the awards. The parties have worked constructively through several conferences before Commissioner Roe to settle various drafting issues and to ensure that the final draft determinations accurately reflect the terms of the Apprentices Decision. In this regard, we note that there was a concern raised by Australian Business Industrial in relation to the payment and advancement of apprentices attending repeat courses. 8 It was agreed in the conferences that should evidence emerge that this is, or becomes, a significant problem it might be revisited at a later date.

[8] We have decided that it is appropriate and consistent with the modern awards objective to vary the relevant awards as sought by the ACTU. This will ensure that there is a fair and consistent minimum safety net of conditions for all apprentices across modern awards and, in this way, contribute towards attracting workers to undertake and complete apprenticeships and creating a more skilled and productive workforce.

[9] The variations to the awards will operate from 1 January 2015.

SENIOR DEPUTY PRESIDENT

Appearances:

T. Shipstone for the ACTU.

S. Taliana for the Shop, Distributive and Allied Employees Association.

B. Ferguson for the Australian Industry Group.

G. Johnston with K McKell for the Australian Meat Industry Council.

J. Arndt, solicitor, for Australian Business Industrial, NSW Business Chamber and Business SA.

Hearing details:

2014:

Sydney.

December 16.

Annexure A

 1   Modern Awards Review 2012 - Apprentices, Trainees and Juniors [2013] FWCFB 5411.

 2   PR557539.

 3   See Apprentices Decision at [326] - [331].

 4   Ibid at [345] - [362].

 5   Ibid at [342] - [343].

 6   Ibid at [375].

 7   Ibid at [417].

 8   PR557539 at [7].

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