Modern Awards Review 2012—Apprentices, Trainees and Juniors
[2014] FWCFB 1675
•12 MARCH 2014
[2014] FWCFB 1675
The attached document replaces the document previously issued with the above code on 12 March 2014.
This document corrects an error in the header of the document.
Jimmy Li
Associate to Justice Boulton.
Dated 19 March 2014
[2014] FWCFB 1675 |
FAIR WORK COMMISSION |
DECISION |
Fair Work (Transitional Provisions and Consequential Amendments) Act 2009
Item 6, Sch. 5—Modern awards review
(AM2012/76)
JUSTICE BOULTON, SENIOR DEPUTY PRESIDENT | SYDNEY, 12 MARCH 2014 |
Review of all modern awards after two years - applications relating to apprentices, trainees and junior rates - non-common matters - variation to competency based wage progression provisions of the Manufacturing and Associated Industries and Occupations Award 2010
[1] In the decision of 22 August 2013, 1 the Full Bench determined various “common matters” relating to apprentices, trainees and juniors arising in the review of modern awards required by Item 6, Schedule 5 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (the Transitional Review).
[2] In the common matters decision we decided that:
“... those awards which are the subject of the AMWU and CFMEU applications will be varied to provide for CBWP from 1 January 2014. The variations should reflect the criteria for competency based completion currently found in clause 15.8 of the Manufacturing Award and will provide for progression through the wage rates for each year or stage of the apprenticeship based upon achievement of the relevant proportion of the competencies. We consider that there should be further discussions between the parties about the appropriate wording of the variations to the relevant awards.” 2
[3] Following several conferences of the parties convened by Commissioner Roe we finalised the determinations in respect to competency based wage progression (CBWP) in a decision on 12 December 2013 3 in respect to the Building and Construction General On-site Award 2010, the Joinery and Building Trades Award 2010, the Airline Operations - Ground Staff Award 2010, the Sugar Industry Award 2010 and the Graphic Arts, Printing and Publishing Award 2010.
[4] The application which is the subject of this decision was considered in the decision of 12 December 2013 as follows:
“[28] It may be appropriate to consider a variation to the CBWP provisions in the Manufacturing Award in light of our decision to include the above clause in a number of other awards. This relates to the Ai Group application to vary the Manufacturing Award which has been the subject of consideration in the conferences before Commissioner Roe. The Commissioner will conduct a further conference of the parties to consider this matter. We will determine the matter following receipt of a further report from the Commissioner.”
[5] Further conferences of the parties were held by Commissioner Roe. The Australian Industry Group (Ai Group) and the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (AMWU) made further written submissions. Evidence was heard from Mr Peter Canavan for the Ai Group and Mr Ian Curry and Ms Kate Luke for the AMWU. Mr Canavan and Mr Curry have extensive experience in the education and training system as it affects the manufacturing industry. The Construction, Forestry, Mining and Energy Union (CFMEU) made submissions in support of the position adopted by the AMWU. Australian Business Industrial (ABI) supported the clause introduced into the five awards as a result of the common matters decision provided that it gave an employer 21 days in which to raise any disagreement with an RTO’s assessment that a particular apprentice was competent. ABI submitted that this was consistent with the current position in New South Wales for early apprenticeship completion.
[6] The CBWP provisions in the Manufacturing and Associated Industries and Occupations Award 2010 (the Manufacturing Award) currently consist of two elements:
● The criteria for competency based completion currently found in clause 15.8 of the award; and
● A table which provides for progression through the wage rates for each year or stage of the apprenticeship based upon achievement of the relevant proportion of the total competencies required for the relevant qualification.
[7] The determinations which introduced CBWP in the five awards adopted these two elements from the Manufacturing Award but also introduced additional provisions dealing with the competency requirements for wage progression and how disputes concerning progression should be dealt with.
[8] The Manufacturing Award provisions were an important consideration in our decision to introduce CBWP provisions in other awards. In the common matters decision we considered evidence about the implementation of CBWP particularly in the Manufacturing Award and reached the following conclusions:
“[276] Governments, the ACTU and peak employer bodies have supported competency based progression including CBWP for more than ten years. The Ai Group and the AMWU jointly proposed variations which introduced CBWP into the Metal, Engineering and Associated Industries Award 1998 in 2006. There have also been CBWP provisions in Queensland awards for all trades for a similar period. There was no evidence before the Commission of any significant problems created by these provisions. The evidence that was provided suggested that the CBWP arrangements generally have worked successfully and have facilitated earlier completion of apprenticeships. In this regard we note that the average duration of the engineering apprenticeship is now approximately three years as opposed to the nominal duration of four years.
….
[290] We consider that the proposed variations and the existing Manufacturing Award provisions make it clear that progression is based upon the achievement of the required proportion of the competencies, which is clearly something more than successful acquisition of knowledge and theory. In respect to the Manufacturing Award the industry parties have, through the relevant Industry Skills Council, developed guidelines to ensure that the RTO involves the employer and the apprentice prior to competency sign off so that it can be effective for the purposes of CBWP and completion.
[291] Mr Dean Arundell, who manages Australian Industry Group Training Services (a large group training scheme linked to the Ai Group) gave evidence that competency based progression works well in his group scheme and that it had some effect in accelerating the rate of progression through apprenticeships. Mr Arundell also said that the RTO, the employer and the apprentice are involved in decisions about whether competency had been achieved to justify progression and/or completion.
[292] We consider that CBWP will have greater impact if there are corresponding changes in the training system to maximise the opportunities for competency based training progression, including flexible delivery, industry level processes and partnerships for competency based sign off, complementary work by industry skills councils, and enhanced processes for recognition of prior learning and current competencies. Many of these matters are on the agenda of COAG. Some of the matters will be progressed through Australia’s eleven Industry Skills Councils. Other implementation details will require further discussions between industrial parties.
[293] Overall the evidence supports a conclusion that CBWP award provisions have achieved the objective of facilitating CBWP in those awards where they have been in existence for some time. The corresponding reforms to the training system and to industry culture are occurring progressively but are not yet complete.” 4
[9] In the common matters decision we found that the rationale advanced for CBWP is consistent with the considerations in the modern awards and minimum wages objectives. In particular, it was said that:
“[295] We are satisfied that it is consistent with the modern awards objective for the Commission to facilitate the introduction of CBWP for apprentices in awards where it is not already provided for. We agree with the submission of the Commonwealth that the adoption of CBWP in awards supports the modern awards objective of promoting flexible modern work practices and the efficient performance of work (s.134(1)(d) of the Act). We are also satisfied that such a provision will promote productivity in that it will facilitate a more skilled workforce (s.134(1)(f)).”
[10] Both the AMWU and the Ai Group submitted that it would be consistent with and necessary for the achievement of the modern awards and minimum wages objectives to vary the CBWP provisions in the Manufacturing Award to introduce the matters dealt with in the additional provisions included in the five awards. The AMWU and the CFMEU submitted that the variation should be consistent with that which was made to the five awards. The Ai Group submitted that to achieve the modern awards objective the variation should be consistent with the position that it advanced during the process of finalising the five awards.
[11] The additional CBWP provisions introduced into the five awards are as follow:
“X. Competency based progression
(a) For the purpose of competency based wage progression in clause Y 5 an apprentice will be paid at the relevant wage rate for the next stage of their apprenticeship if:
(i) competency has been achieved in the relevant proportion of the total units of competency specified in clause Y for that stage of the apprenticeship. The units of competency which are included in the relevant proportion must be consistent with any requirements in the training plan; and
(ii) any requirements of the relevant State/Territory apprenticeship authority and any additional requirements of the relevant training package with respect to the demonstration of competency and any minimum necessary work experience requirements are met; and
(iii) either:
(A) the Registered Training Organisation (RTO), the employer and the apprentice agree that the abovementioned requirements have been met; or
(B) the employer has been provided with written advice that the RTO has assessed that the apprentice meets the abovementioned requirements in respect to all the relevant units of competency and the employer has not advised the RTO and the apprentice of any disagreement with that assessment within 21 days of receipt of the advice.
(b) If the employer disagrees with the assessment of the RTO referred to in clause X(a)(iii)(B) above, and the dispute cannot be resolved by agreement between the RTO, the employer and the apprentice, the matter may be referred to the relevant State/Territory apprenticeship authority for determination. If the matter is not capable of being dealt with by such authority it may be dealt with in accordance with the dispute resolution clause in this award. For the avoidance of doubt, disputes concerning other apprenticeship progression provisions of this award may be dealt with in accordance with the dispute resolution clause.
(c) For the purposes of this clause, the training package containing the qualification specified in the contract of training for the apprenticeship, sets out the assessment requirements for the attainment of the units of competency that make up the qualification. The definition of “competency” utilised for the purpose of the training packages and for the purpose of this clause is the consistent application of knowledge and skill to the standard of performance required in the workplace. It embodies the ability to transfer and apply skills and knowledge to new situations and environments.
(d) The apprentice will be paid the wage rate referred to in clause X(a) from the first full pay period to commence on or after the date on which an agreement or determination is reached in accordance with clause X(a)(iii) or on a date as determined under the dispute resolution process in clause X(b).”
[12] It would seem that the essential difference between the variation proposed by the Ai Group for the Manufacturing Award and the variations made to the other awards is the provision at clause (X).(a)(iii)(B). 6 If we agreed with the Ai Group submission that clause (X).(a)(iii)(B) should not be included in the Manufacturing Award there would need to be a consequential amendment to clause X.(b).
[13] The AMWU and the Ai Group sought that we take into account the submissions that they made in the context of the Full Bench consideration of the additional provisions in respect to the five awards.
[14] The Ai Group submissions were considered in the decision of 12 December 2013 as follows:
“[14] The Ai Group submitted with respect to paragraph (a)(iii) of the draft clause that an apprentice should not be able to progress unless the RTO, the employer and the apprentice agree that the apprentice has achieved the necessary competencies. The Ai Group submitted that the draft clause will be less effective than its proposal, which would require positive employer agreement prior to progression. It was also submitted that the requirements with respect to competency based completion in clause 15.8 of the Manufacturing Award should apply to progression through each stage of the apprenticeship.
[15] The Housing Industry Association (HIA) and Master Builders Australia (MBA) agreed with the Ai Group with respect to paragraph (a)(iii) but proposed as an alternative that the draft clause be adopted with modifications. The HIA proposed a modification so that the advice provided to the employer is required to be in writing. MBA proposed that progression occur where the RTO and the employer agree that the apprentice meets the competency requirements or, failing this, that the question of progression be determined through the following process: where the RTO or the employer advises that the apprentice meets the competency requirements, any disagreement must be notified within 14 days of receipt of the advice and the matter will then subject to the dispute resolution procedure. Australian Business Industrial (ABI) proposed that employers be provided 21 days to raise any disagreement.
….
[19] The Ai Group submitted that a provision requiring three way sign off of competency prior to wage progression should be included in the clause. This would be consistent with the “Principles for competency-based wage progression for Australian Apprentices” (CBWP Principles) which are supported by the peak industry councils. The principles refer to competency assessment as a three way process between the employer, the apprentice and the RTO and for the three parties to agree that the apprentice “possesses the necessary competency requirements covered by the training agreement and relevant industry training package”.
[20] Not all aspects of competency-based progression are regulated by the award system. Aspects of competency assessment and sign off and the involvement of the RTO, the employer and the apprentice in that process will be regulated through the training system and the industry skills councils. We noted this in the common matters decision:
“We consider that CBWP will have greater impact if there are corresponding changes in the training system to maximise the opportunities for competency based training progression, including flexible delivery, industry level processes and partnerships for competency based sign off, complementary work by industry skills councils, and enhanced processes for recognition of prior learning and current competencies. Many of these matters are on the agenda of COAG. Some of the matters will be progressed through Australia’s eleven Industry Skills Councils. Other implementation details will require further discussions between industrial parties.”
[21] Effective implementation of CBWP will occur where there is a three-way process involving the RTO, the employer and the apprentice. Accordingly we will make provision for wage progression where there is agreement between all the relevant parties. However we will also make provision for circumstances where there might be inadequate communication between the parties or a failure to notify promptly a position on competency assessment. This will ensure that wage progression is not unreasonably delayed where apprentices have achieved the relevant competencies. It will also assist in facilitating the timely referral of any disputes about competency assessment for resolution through relevant State/Territory apprenticeship authorities or award processes. In finalising these provisions, we have had regard to the suggested amendments of the Ai Group, the HIA, MBA and ABI.” 7
[15] The Ai Group submitted that progression should not occur unless and until the Registered Training Organisation (RTO), the employer and the apprentice agree that the competency requirements have been met. In the event of disagreement, the disputes settlement process in clause X.(b) can be utilised. It was said that proposed clause X.(a)(iii)(B) “would operate to disenfranchise employers from their central role in assessing the competency of the apprentices they employ, while at the same time increasing red tape, administration and costs for employers.” It was also said that the provision “would significantly water down the role of the employer in the apprenticeship system under the Award.” 8 It was submitted that there is no evidence of employers deliberately delaying progression by failing to respond to RTOs.
[16] The Ai Group submitted that the agreement between the industrial parties in 2005/6 which was the basis for the introduction of competency based wage progression in the Manufacturing Award included agreement that progression would only occur where there was a three way sign off. Mr Canavan, National Manager Apprenticeship Project for the Ai Group, gave evidence that the current model of competency based progression requires that there be a three way sign off between the employer, apprentice and RTO before the apprentice is assessed as competent to progress to the next stage. Mr Canavan cited clause 15.8 of the Manufacturing Award, the shared understanding between the industrial stakeholders and requirements in State apprenticeship regulation in support of this contention.
[17] Mr Canavan referred to the requirement in the NSW Apprenticeship Training Plan that the RTO operate in accordance with the Training Plan Guidelines and that the employer regularly report/confirm employment based competence to the RTO. 9 The Training Plan Guidelines require that the RTO “confirm an apprentice’s or trainee’s achievement of competence with the employer” and that the RTO should “record the employer’s support for competency assessments on the Training Plan”. They also require that the employer representative is required to confirm the apprentice’s competence by signing against the relevant unit on the Training Plan and that the apprentice is not deemed competent until this has occurred.10 Mr Canavan gave evidence that similar requirements in respect to confirmation of competency for apprentices and trainees are in place in Queensland, Victoria and Tasmania.
[18] It was accepted that it is the RTO not the employer who is responsible for and determines competency assessment. Mr Canavan agreed that the employer cannot be expected to consider whether all the detailed requirements of a competency unit have been met, although it was said that the employer can confirm the application of some of the units in the workplace. The employer does not generally have the skills and training required to conduct assessments for the purposes of qualifications as set out in the Standards for Registered Training Organisations and not all workplaces have the variety of work to enable all units of competency to be demonstrated in the workplace setting. In such cases the RTO processes of training and assessment are relied upon.
[19] Mr Canavan gave evidence that RTOs will sometimes regard the employer’s signature in a log book, or signature on a statement that the apprentice has demonstrated the necessary skills in the workplace, as confirmation of competency. He expressed concern that in practice the RTOs often do not observe the requirement for employer confirmation of competency and that in many cases RTOs fail to adequately involve employers in training and assessment. He cited an example where an apprentice had completed the technical skills for a competency at TAFE but took far too long to carry out the task in the workplace. He also suggested that it is common in Victoria for RTOs to send notifications to employers that an apprentice has achieved competency to enable progression just before Christmas when it may be difficult for the employer to respond. It was also suggested that in some cases employers may confirm competency without being fully aware of the implications. Mr Canavan also suggested that, as RTOs generally schedule apprentice training over three years, they may seek to sign off on one third of competencies each year thus shortening the apprenticeship period to three years.
[20] Mr Canavan said that in most States there are State Training Authority arrangements which require that RTOs confirm competency with the employer for the purposes of completion of the apprenticeship. However, it is only in Victoria where there are procedures which require this prior to progression through the stages of the apprenticeship in areas covered by the Manufacturing Award. He said that in both cases there are default provisions where the employer fails to respond within a specified time frame. These were introduced as a result of the introduction of CBWP provisions in the Manufacturing Award and have been in place for a number of years. Mr Canavan also referred to the situation in Queensland where Government funding associated with the completion of a qualification did not flow to the RTO until the employer had confirmed that the apprentice had met the competencies for completion. He said that this meant that pressure was placed on employers for sign off. Further, Mr Canavan referred to the results of an Engineering Excellence Survey which he said demonstrated employer opposition to provisions allowing for the determination of competencies without seeking sign off by employers. 11
[21] The AMWU submitted that presently there is no requirement in the Manufacturing Award for employer agreement prior to competency based wage progression. The AMWU submitted that the variation introduced in 2006 reflects the agreement reached between the Ai Group and the AMWU and that the decision of Senior Deputy President Marsh making the variation confirms this. 12 The AMWU in its submissions pointed to a number of shortcomings in the Engineering Excellence employer survey including a low level of understanding of the award provisions and that the questions asked did not accurately reflect the proposed award provisions.
[22] Mr Curry, AMWU National Coordinator Skills, Training & Apprenticeships, gave evidence that the AMWU has consistently supported employer involvement in decisions on CBWP. He said that the National Training System only requires that RTOs consult employers about assessment judgements. Mr Curry said that the rationale of competency standards and training packages is that theory and practice are integrated not separated. It is the responsibility of the RTO to assess that competency has been achieved before signing off a competency. This includes the requirement for “consistent application of knowledge and skill to the standard of performance required in the workplace”. Mr Curry emphasised that the term “workplace” in this context is about the generic workplace in industry not the particular requirements of a single workplace. The requirements are specified in the assessment guidelines for the competency unit and there is no second or additional assessment requirement.
[23] Mr Curry expressed concern that if employers have an absolute veto they may insert standards into the assessment process which go beyond those required by the industry competency standard. He said that the requirements in the NSW Training Plan Guidelines do not override the National Training System requirements which provide that RTOs are responsible for assessment. He also suggested that the words considered in the context of the National Training System do not mandate employer agreement with each RTO assessment.
[24] Ms Luke, AMWU Apprentice Coordinator, gave evidence of the difficulties apprentices reported in achieving CBWP and concerns that employers are holding apprentices back to stop wage progression. Ms Luke also considered that many apprentices do not have the confidence or the knowledge to seek to challenge their employer in a situation where progression is being delayed.
Conclusions
[25] We have carefully considered all the evidence and submissions presented and have reached the following conclusions.
[26] The evidence before us does not support a conclusion that there is an existing model which mandates a three way sign off prior to any CBWP under the Manufacturing Award. The award provision which was inserted based on the agreement of the industrial parties has only ever required this for completion, not for progression. In this regard we accept the evidence presented concerning assessment responsibilities in the National Training System. The RTO is responsible for assessment including that the requirement for “consistent application of knowledge and skill to the standard of performance required in the workplace” is met. Further, the evidence does not show that a three way sign off is mandated in practice by any of the State systems. In this regard we note that the provisions in the Training Plan Guidelines in NSW require the RTO to seek confirmation and recording of competency from the employer. This does not alter the requirements of the National Training System that it is the RTO not the employer which is responsible for and determines assessment. In this context it is not clear that the NSW Training Plan Guidelines mandate employer agreement with each RTO assessment.
[27] The practices referred to in the evidence whereby RTOs seek that employers sign log books or other statements confirming an apprentice’s practice of a skill in the workplace are consistent with requiring that RTOs seek employer involvement in assessment of competency rather than mandating a three way sign off process for each competency.
[28] We note that to the extent that Government regulation, either now or in the future, requires steps be taken prior to competency being achieved this is reinforced by the provision inserted by the common matters decision at clause X.(a)(i) and (ii). Whatever the industrial parties are able to achieve in the training system to strengthen the competency based progression system will be reflected in the Award through that mechanism.
[29] The existing competency based completion provision which requires employer agreement prevents RTO funding pressures from leading to inappropriate early completion. Where an RTO seeks to sign off a third of competencies at the end of each calendar year this would mean that an apprentice would move to second stage wages at the end of the first year and to third stage wages at the end of the second year, which is normal time based progression, not accelerated progression. If the RTO then sought to sign off completion at the end of the third year the existing award provision would require employer sign off.
[30] The evidence presented in the proceedings as to problems with CBWP in the Manufacturing Award was not particularly strong. However, it was sufficient to demonstrate that the level of take up is less than optimal. We also accept that the failure of the award provisions to clearly specify the requirements which need to be met for progression and the mechanism for making necessary decisions and for resolving disputes is hampering the effective implementation of CBWP in the Manufacturing Award. As a result there are situations where apprentices do not progress when they should. There are also situations where the provisions are not working appropriately because of inadequate engagement between the employer and the RTO.
[31] We are satisfied that it is consistent with and necessary in order to achieve the modern awards and minimum wages objectives to vary the CBWP provisions in the Manufacturing Award to include the additional provisions introduced into the other five awards. In this regard we note the submissions of the Ai Group and the AMWU relating to the consideration of the practical operation of the existing CBWP provisions in the Manufacturing Award having regard to developments in other awards. We also note the general desirability of having a broadly consistent set of processes for the implementation of CBWP and the resolution of disputes regarding progression in major awards and in all States.
[32] We are satisfied that the additional provisions strike an appropriate balance. We consider that the provisions will encourage RTOs to seek more involvement and input from employers into competency assessments. It is clear from these provisions that the desirable pathway to progression is to achieve agreement between the apprentice, the employer and the RTO. This will also be the pathway which is most positive for the ongoing RTO relationship with the employer.
[33] Despite this recognition, it is also appropriate that provision be made for circumstances where agreement is not able to be achieved within a reasonable timeframe. We accept that apprentices will not necessarily have the required information or confidence to be able to navigate a system which requires them to initiate a dispute where an employer fails to respond to advice that an RTO believes that competency required for progression has been achieved. We are satisfied that it is appropriate to make provision for circumstances where there might be inadequate communication between the parties or a failure to notify promptly a position on competency assessment. This will ensure that wage progression is not unreasonably delayed where apprentices have achieved the relevant competencies. It will also assist in facilitating the timely referral of any disputes about competency assessment for resolution through relevant State/Territory apprenticeship authorities or award processes.
[34] For all these reasons we have decided that the Manufacturing Award will be varied to insert provisions similar to those which have been inserted into the other five awards.
SENIOR DEPUTY PRESIDENT
Appearances:
B. Ferguson for the Ai Group.
S. Taylor for the AMWU.
S. Maxwell for the CFMEU.
Hearing details:
2014
Sydney
February 19
1 ReModern Awards Review 2012 - Apprentices, Trainees and Juniors [2013] FWCFB 5411.
2 [2013] FWCFB 5411 at [299].
3 [2013] FWCFB 9603.
4 [2013] FWCFB 5411.
5 This refers to the relevant clause in the award which contains the CBWP table.
6 Attachment C to the submissions of the AMWU dated 12 February 2014 provides a comparison of the Ai Group proposed clause and the common matters decision clause.
7 [2013] FWCFB 9603.
8 Ai Group Submission of 20 January 2014, at paras 3.2 and 3.6.
9 Exhibit Ai Group 1.
10 Exhibit Ai Group 2. at paras 3.3, 8.4.3, and 8.4.4.
11 Exhibit AMWU 2.
12 PR968890.
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