STATEMENT

Fair Work Act 2009
s.160—Application to vary a modern award to remove ambiguity or uncertainty or correct error

Variation on the Commission’s Own Motion—Joinery and Building Trades Award 2020
(AM2021/67)

Building, metal and civil construction industries
COMMISSIONER BISSETT	MELBOURNE, 18 JUNE 2021

Joinery and Building Trades Award 2020–provisional view to correct error–minimum hourly rates for part-time adult traineeships–clause E.4.2(e)(ii).

Introduction

[1] On 7 December 2020, the Full Bench in AM2019/17 issued a determination finalising the technical and drafting review of the Joinery and Building Trades Award 2020 (the Award) as part of the 4 yearly review of modern awards, operative from 1 March 2021. 1 On 25 February 2021 a correction determination was issued by the Full Bench which took effect on 1 March 2021.2

[2] An error has been identified concerning the omission of hourly wage Level C rates of pay from Table 9 in clause E.4.2(e)(ii) of the Award, which provides for the minimum hourly rates of pay for part-time adult trainees undertaking an AQF Certificate Level IV traineeship.

[3] The President of the Fair Work Commission (Commission) has directed that I hear and determine the matter in accordance with ss.616(3D)(a) and 582 of the Fair Work Act 2009 (Cth).

[4] Table 9 of the Award currently sets out the minimum hourly rates of pay for part-time adult trainees undertaking an AQF Certificate Level IV traineeship for wage levels A or B as follows:

‘Table 9—Minimum hourly rate for part-time adult trainees (AQF Certificate Level IV traineeship)

Column 1 Wage level	Column 2 First year of traineeship	Column 3 Second and subsequent years of traineeship
	per hour	per hour
	$	$
A	23.52	24.45
B	22.68	23.56’

[5] The ‘error’ was introduced into the Award in the award-specific National Training Wage Schedule determination 3 issued by the Full Bench in AM2016/17 on 10 September 2020, which came into operation on 17 September 2020.

[6] A draft determination relating to the National Training Wage Schedule in the Award was first published as an attachment to a Statement 4 issued by the Full Bench on 28 August 2017 and was noted as a modified Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) draft. This draft determination did not include wage Level C rates (as the CFMMEU submitted that relevant training packages under this Schedule related to wage Level A and B only).5

[7] In a decision 6 issued 25 August 2020, the Full Bench determined that wage Level C should be retained in the National Training Wage Schedule for this Award, stating that:

‘We propose to vary the Joinery Award in accordance with the CFMMEU’s revised draft determination, with two additions. The additions concern the inclusion of the Sustainability Training Package and the Certificate I from the Manufacturing and Engineering Training Package; and the retention of wage level C. The retention of wage level C anticipates that future training packages may align with this level.’ 7

[8] On 27 August 2020, the CFMMEU filed a revised draft determination 8 which was published on the Commission’s website and on 4 September 2020 Master Builders Australia filed a submission9 advising the Commission that it agreed that the CFMMEU amended draft determination reflected the decision of the Full Bench on 25 August 2020. The CFMMEU draft determination inserted wage Level C into the proposed National Training Wage Schedule. This draft determination included minimum hourly rates of pay for part-time adult trainees undertaking an AQF Certificate Level IV traineeship at wage Level C at draft clause 4.2(e)(ii).

[9] On 10 September 2020, the Full Bench issued a decision 10 finalising the terms of the final variation determination to insert an award specific National Training Wage into the Award and stated that:

‘We are satisfied that the variation proposed is necessary to ensure that the Joinery Award achieves the modern awards objective. In reaching that conclusion we have had regard to the s.134 considerations. In particular we note that the variation proposed is consistent with the need to ensure that the modern award is ‘simple [and] easy to understand’ (s.134(1)(g)). The inclusion of only those training packages which are presently apposite to the work covered by the award is entirely consistent with the Commission’s obligation to ensure that modern awards provide a ‘fair and relevant minimum safety net of terms and conditions’.

A final variation determination is attached to this decision.’ 11

[10] The final variation determination issued concurrently with the 10 September 2020 decision omitted to include wage Level C rates for part-time adult trainees undertaking an AQF Certificate Level IV traineeship at clause E.4.2(e)(ii).

Statutory framework

[11] Section 160 of the Fair Work Act 2009 (Cth) (the Act) allows the Commission to make a determination varying a modern award to remove ambiguity, uncertainty or to correct an error. It provides as follows:

‘Variation of modern award to remove ambiguity or uncertainty or correct error

(1) The FWC may make a determination varying a modern award to remove an ambiguity or uncertainty or to correct an error.

(2) The FWC may make the determination:

(a) on its own initiative; or

(b) on application by an employer, employee, organisation or outworker entity that is covered by the modern award; or

(c) on application by an organisation that is entitled to represent the industrial interests of one or more employers or employees that are covered by the modern award; or

(d) if the modern award includes outworker terms--on application by an organisation that is entitled to represent the industrial interests of one or more outworkers to whom the outworker terms relate.’

Consideration

[12] The principles applicable to the interpretation and application of s.160 were set out by Asbury C (as she then was) in Property Sales Association of Queensland, Union of Employees re Real Estate Industry Award 2010 12 as follows (footnote omitted):

‘[14] The power in s.160 of the Act to vary a modern award is discretionary. The exercise of the power first requires consideration of whether there is an ambiguity, uncertainty or error in an award. If it is established that this is the case, further consideration is required as to whether the discretion should be exercised. Where there is no ambiguity or uncertainty, or where the Tribunal is not satisfied that there is an error in the terms of an award, there is no jurisdiction to vary a modern award under s.160 of the Act. This is consistent with the clear intention of the legislature to limit the circumstances under which modern awards can be varied outside 4 yearly and annual wage reviews.’

[13] In the 4 yearly review of modern awards — Vehicle Manufacturing, Repair Services and Retail Award 2010 13 the Full Bench said the following in relation to whether an error was established in that matter for the purpose of s.160 of the Act:

‘[73] With respect to the SDA, this is not demonstrative of any error. It only demonstrates that a methodology was used which the SDA, with the benefit of hindsight, would prefer not to have been used. Nothing was placed before us to suggest that the AIRC did not intend to use that methodology, or that some mathematical error was made in calculating the rates in accordance with that methodology. We do not accept that disagreement - even a well-founded disagreement - with a previous decision is sufficient to establish an error for the purposes of s.160. What is necessary is to show that some sort of mistake occurred, in that a provision of the award was made in a form which did not reflect the tribunal’s intention.’

[14] Under s.616(3D)(a) of the Act, the President may direct a single Member to perform a function or exercise a power under s.160 of the Act varying a modern award.

[15] My provisional view is that Table 9 in clause E.4.2(e)(ii) of the Award omits the wage Level C minimum hourly rates of pay for adult part-time trainees undertaking an AQF Certificate Level IV traineeship and this constitutes an error for the purposes of s.160 of the Act.

[16] My provisional view is that Table 9 at clause E.4.2(e)(ii) be amended as follows:

Table 9—Minimum hourly rate for part-time adult trainees (AQF Certificate Level IV traineeship)

Column 1 Wage level	Column 2 First year of traineeship	Column 3 Second and subsequent years of traineeship
	per hour	per hour
	$	$
A	23.52	24.45
B	22.68	23.56
C	20.67	21.45

[17] A draft determination will be issued with this Statement.

[18] Section 165 of the Act specifies when variation determinations come into operation (other than determinations setting, varying or revoking modern award minimum wages), and provides that:

‘When variation determinations come into operation, other than determinations setting, varying or revoking modern award minimum wages

Determinations come into operation on specified day

(1) A determination under this Part that varies a modern award (other than a determination that sets, varies or revokes modern award minimum wages) comes into operation on the day specified in the determination.

Note 1: For when a modern award, or a revocation of a modern award, comes into operation, see section 49.

Note: For when a determination under this Part setting, varying or revoking modern award minimum wages comes into operation, see section 166.

(2) The specified day must not be earlier than the day on which the determination is made, unless:

(a) the determination is made under section 160 (which deals with variation to remove ambiguities or correct errors); and

(b) the FWC is satisfied that there are exceptional circumstances that justify specifying an earlier day.”

Determinations take effect from first full pay period

(3) The determination does not take effect in relation to a particular employee until the start of the employee’s first full pay period that starts on or after the day the determination comes into operation.’

[19] My provisional view is that the determination will operate from 24 June 2021.

Next steps

[20] Any submission opposing my provisional view should be filed by 4pm (AEST) on Tuesday 22 June 2021. Submissions should be sent to amod@fwc.gov.au.

[21] If any submissions are filed opposing my provisional view then a hearing will be scheduled.

[22] If no submissions are filed opposing my provisional view then a determination in the form set out in the draft determination will be issued.

Seal of the Fair Work Commission with member's signtaure.