Australian Tank Engineering Pty Ltd T/A ATE Tankers

[2021] FWC 2195

[2021] FWC 2195

FAIR WORK COMMISSION

STATEMENT

Fair Work Act 2009
s.160—Variation of modern award

Australian Tank Engineering Pty Ltd T/A ATE Tankers
(AM2021/56)

COMMISSIONER BISSETT MELBOURNE, 21 APRIL 2021

Application by Australian Tank Engineering Pty Ltd to vary clause 20.1(f) of the Manufacturing and Associated Industries and Occupations Award 2020.

[1] The Commission has received an application which seeks to rectify an apparent issue with clause 20.1(f) of the Manufacturing and Associated Industries and Occupations Award 2020 (Manufacturing Award).

[2] Clause 20.1(f) of the Manufacturing Award provides as follows (with the current rates inserted):

20.1(f) An employee commencing work in the technical field who is without the appropriate qualification for the C10/V5 level or above (or who is undertaking training in the qualifications prescribed) and who has not met the equivalent standard in accordance with clause 20.1(e) but who otherwise meets the requirements of the relevant classification definition must be paid in accordance with the following formula:

Years of relevant experience	% OF C9/V6 LEVEL	Current rates
0	83%	$751.23
1	88%	$796.49
2	95%	$859.85
3	100%	$905.10

The Issue

[3] The issue, as identified by the applicant, is that an “[a]n individual without a Trade qualification cannot be better off than the individual with a Trade.” 1 An employee, to whom clause 20.1(f) applies, with 3 years of relevant experience will be paid at the rate of 100% of the C9/V6 level, regardless of whether they have actually obtained the relevant qualifications for that level.

[4] The applicant contends that clause 20.1(f) is:

…incongruous and disincentiv[ises] any individual from completing a Trade. An individual completing a trade takes four years. At the conclusion of 4 years th[ey] sit [at] a C10 level of pay, however, in this scenario, an individual, without qualification will sit at a C9 level after 3 years. This is in complete contradiction to the spirit of the Award and incentivising individuals to complete a trade. 2

[5] The Applicant’s concern is perhaps illustrated as follows, an adult apprentice who has completed their 4-year apprenticeship in accordance with clause 21 and commences work at the C10/V5 tradespersons rate ($877.60) will receive less than an employee covered by clause 20.1(f) who after 3 years will receive the full C9/V6 rate ($905.10) but may not have the relevant qualifications of a C9/V6 or C10/V5 classification.

History of clause 20.1(f)

[6] The provisions for clause 20.1(f) have remained virtually unchanged since its inclusion in the Draughting, Production Planners and Technical Workers Interim Award 1993 (see the final award here) by a consolidation dated 30 June 1998 (Q2687).

[7] In the award modernisation process the equivalent term was proposed in a Joint Ai Group and union draft award and subsequently incorporated (with minor changes in wording) in the Manufacturing and Associated Industries and Occupations Award 2010 at clause 24.1(e). The same clause was also used in the Vehicle Manufacturing, Repair, Services and Retail Award 2010 at clauses 45.8(b) and 59.3(b).

[8] The clause does not seem to have been subject to any other submission in either the award modernisation process or the 4 yearly review of modern awards.

Preliminary Comments

[9] It may be that the rates expressed in clause 20.1(f) are not inappropriate as this is the lowest classification level for an employee defined as a ‘technician’. Whilst an employee in the technical field could be working at a lower classification level (such as the ‘Laboratory Tester’ at C11)) clause 20.1(f) appears to operate only in relation to employees who are working at the C10/V5 level at a minimum but who do not have the relevant qualifications.

[10] The minimum training requirement for C9 under the ‘Engineering/Laboratory Technician—Level 1’ in clause A.3.1 is a Certificate III in Engineering—Technician (among other fields) or 50% towards a Diploma of Engineering, or equivalent.

[11] In comparison, the minimum training requirement for a C10/V5 level under the ‘Engineering/Manufacturing Systems Employee—Level V’ classification is a Certificate III in Engineering Production or Production Systems or equivalent. For an ‘Engineering/Manufacturing Tradesperson—Level 1’ classification, the minimum training requirement is a recognised Trade Certificate, or a Certificate III in Engineering—Mechanical Trade (among other fields), or equivalent.

Conference of interested parties

[12] A conference of interested parties will be convened by telephone to consider the issues raised in the application at 2.00pm Wednesday 5 May 2021.

[13] Any party wishing to participate in the conference should provide contact details to [e-mail] by 4.00pm Tuesday 4 May 2021. Correspondence in relation to the application should be sent to [e-mail].

[14] All correspondence will be issued via the website established in relation to the application. A dedicated subscription service called ‘Manufacturing and Associated Industries and Occupations Award 2020’ has been established for this matter. Interested parties are encouraged to subscribe to receive notifications on the subscription services page on our website. Any questions about the subscription service can be sent to [e-mail].

COMMISSIONER

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<PR728832>

 1   Response to question 2.3 of Form F46.

 2   Response to Q2.2 of Form F46.