Application by Association of Consulting Architects Australia

[2023] FWC 2621

[2023] FWC 2621

FAIR WORK COMMISSION

STATEMENT

Fair Work Act 2009

s.158—Application to vary or revoke a modern award

Application by Association of Consulting Architects Australia

(AM2023/15)

JUSTICE HATCHER, PRESIDENT SYDNEY, 10 OCTOBER 2023

Application to vary the Architects Award 2020.

1. On 26 June 2023, the Association of Consulting Architects Australia (ACAA) lodged an application to vary clause 13.3(d) of the Architects Award 2020 (Award). Its application concerns the mode of progressing through the classification structure in the Award.

1. Clause 13.1 sets out the minimum rates of pay under the Award by reference to three classifications: Level 1—Graduate of Architecture, Level 2(a)—Graduate of Architecture and Level 2(b)—Registered Architect. Clause 13.3 sets out the process by which Graduate Architects can progress to becoming a Registered Architect. Clause 13.3(d) sets out prescribed competencies against which the experience of Graduates of Architecture is to be documented as part of this progression. The competencies in clause 13.3(d) are derived from the National Standard of Competency for Architects (NSCA), which is maintained by the Architects Accreditation Council of Australia. Clause 13.3(d) currently provides as follows:

13.3Progression from Graduate of Architecture to Registered Architect

…

(d)The Prescribed Competencies against which the experience is to be documented are as follows:

(i)Design: Project Briefing

·  Establishment, analysis and evaluation of client project requirements and objectives.

·  Identification of factors that may impact on client project requirements and objectives.

(ii)Design: Pre-Design

·  Identification, analysis and integration of information relevant to siting of project.

(iii)Design: Conceptual Design

·  Design response incorporates assessment of relevant legislation, codes and industry standards.

·  Application of principles controlling planning, development and design for the project site.

·  Ability to prepare drawings which communicate a scheme design.

·  Consideration of material characteristics with regard to the design, durability and aesthetic qualities and environmental considerations.

(iv)Documentation: Detailed Design

·  Evaluation and integration of regulatory environments.

·  Exploration of and explanation of construction techniques and details suitable to a design.

(v)Documentation: Documentation

·  Identification and adoption of a strategy, program and process of documentation integrated through all project stages to enable project delivery.

·  Continuing coordination and integration of information and project material from relevant consultants, specialists and suppliers.

·  Incorporation of the project requirements and objectives in accordance with Project Brief and approved Detailed Design.

·  Timely completion and communication of accurate and comprehensible documents that will include, as required, drawings, models, specifications, schedules and other relevant modes of information.

·  Project documentation is in accordance with, and appropriate to, the project contract and project procurement procedure.

·  Engagement with manufacturer’s material systems instructions and guidelines.

·  Preparation of drawings to explain how a project should be assembled.

(vi)Project Delivery: Procurement

·  Identification of available procurement methods and assessment of relevance and application to the project.

(vii)Project Delivery: Construction Stage

·  Identification and application of the process and administration systems needed to fulfil all obligations under project contract.

·  Construction progress and quality is systematically reviewed and monitored as required under the contract provisions.

·  Identification and application of all relevant processes required for certification of monetary claims, project variations, and extensions of time, project instructions or other administrative responsibilities under the contract provisions.

1. By its application, the ACAA seeks to update the competencies listed in clause 13.3(d) of the Award to reflect the updated version of the NSCA, the National Standard of Competency for Architects 2021, which is due to come into force from 1 January 2024, by inserting a list of competencies from that updated document into clause 13.3(d). The ACAA submitted that varying the Award in this way would meet the modern awards objective in s 134(1)(d) of the Fair Work Act 2009 (Cth) (FW Act) by ensuring the Award contained a fair and relevant minimum safety net of terms and conditions by referring to the current competencies.

1. The matter was listed for directions before me on 12 July 2023. At this hearing the ACAA’s representative confirmed that a consent position had been reached with the Association of Professional Engineers, Scientists and Managers, Australia (APESMA) the relevant employee organisation, as to the proposed variation to the Award, subject to a transitional arrangement being agreed.

1. Pursuant to written directions issued following the directions hearing, the ACAA filed a revised draft order on 19 July 2023. In this revised draft order the ACAA sought that the following note be inserted into the Award before the proposed new clause 13.3(d):

Note: On 1 January 2024, the Prescribed Competencies will be replaced. The Commission has issued an order varying this clause effective [from] that date. For information on these new competencies, see [insert PR number of this order, and hyperlink]. For Graduates of Architecture who will sit their Architectural Practice Examination after 1 January 2024, the new Prescribed Competencies may apply. Affected persons should consult with their state registration board about how their circumstances may be affected.

1. The APESMA filed a response to the revised draft order on 2 August 2023. It submitted that the ACAA’s revised draft order addressed its concerns about transitional arrangements by ensuring the current and proposed new competencies would be published and publicly available prior to and after the commencement of any revised clause 13.3(d). The APESMA submitted it did not oppose the ACAA’s application.

1. It is my provisional view that the proposed variation to the Award, as revised, is necessary to meet the modern awards objective in s 134(1) of the FW Act and that the variation should be made pursuant to s 157(1) of that Act.

1. A draft determination giving effect to my provisional view is published together with this decision. Interested parties may file any response to my provisional view by 4:00 pm (AEDT) on Tuesday, 24 October 2023. If no submissions are received in opposition to my provisional view, the Award will be varied in accordance with the draft determination.

PRESIDENT

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