Ms Nicole Krause v Hastings Deering (Australia) Limited T/A Hastings Deering

[2019] FWC 7974

[2019] FWC 7974

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.739 - Application to deal with a dispute

Mr Jesse Hawke; Mr Jacob Price; Mr Ben Hinchliffe; Ms Nicole Krause
v
Hastings Deering (Australia) Limited T/A Hastings Deering
(C2019/4365; C2019/4789; C2019/4790; C2019/4791)

COMMISSIONER HUNT BRISBANE, 22 NOVEMBER 2019

Alleged dispute about any matters arising under the enterprise agreement and the NES;[s186(6)] – whether qualification offered to apprentices contravenes clause 15.4 of the Manufacturing and Associated Industries and Occupations Award 2010 – whether offered qualification is determined by a ‘successor’ to Manufacturing Skills Australia – whether offered qualification is ‘consistent with’ qualification established for vocation.

[1] Mr Jesse Hawke, Mr Jacob Price, Mr Ben Hinchliffe and Ms Nicole Krause (jointly, the Applicants) have made applications to the Fair Work Commission (the Commission) pursuant to s.739 of the Fair Work Act 2009 (the Act) to deal with disputes that each of them have with their employer, Hastings Deering (Australia) Limited T/A Hastings Deering, which is the Respondent in each of the matters C2019/4365, C2019/4789, C2019/4790 and C2019/4791.

Background

[2] Each of the disputes relates to changes or proposed changes to training packages offered by the Respondent to apprentice diesel fitter employees which would result in those apprentice employees obtaining alternative qualifications on the completion of their apprenticeship to what they originally agreed upon. The Applicants allege that the ‘new’ qualification is not a qualification that diesel fitters are required to hold, and the Respondent’s proposed changes to its training packages would contravene clause 15.4 of the Manufacturing and Associated Industries and Occupations Award 2010 (the Manufacturing Award). The Hastings Deering (Australia) Limited Enterprise Agreement 2018 (the Agreement) covers each of the Applicant’s employment, and clause 1.3 of the Agreement incorporates the Manufacturing Award into the Agreement. It is uncontested that it is necessary to determine the meaning of clause 15.4 of the Manufacturing Award to determine these disputes.

[3] Mr Hawke is employed as a diesel fitter by the Respondent in Rockhampton, QLD. He has been employed by the Respondent since 2004. In 2008 he obtained a ‘MEM30205 Certificate III in Engineering – Mechanical Trade’, qualifying him as a diesel fitter by trade. Each of Mr Price, Mr Hinchliffe and Ms Krause are first-year apprentice diesel fitters employed by the Respondent.

[4] The Agreement covers the Respondent’s operations conducted in Queensland and the Northern Territory, and employees of the Respondent appointed to work in classifications set out in the Agreement, which includes Tradespersons, Trades Assistants, Partspersons and Clerks. The Agreement was approved by the Commission on 5 March 2019 and commenced operation on 12 March 2019. The Agreement has a nominal expiry date of 14 September 2021. 1 In accordance with clause 1.2 of the Agreement and the decision approving the Agreement,2 the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) and the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) are parties covered by the Agreement.

Joining of matters

[5] On 17 July 2019 Mr Hawke’s application was made, noting that he was represented by Maurice Blackburn Lawyers, instructed by the AMWU. On 22 July 2019 I held a conference where the Respondent foreshadowed that a jurisdictional objection may be made to Mr Hawke’s application on the basis that Mr Hawke is not an apprentice employed by the Respondent and therefore he is not ‘an employee concerned’ by the matters raised in his application and does not have standing to bring his dispute before the Commission pursuant to the dispute resolution procedure set out at clause 4.4 of the Agreement. It was agreed that Mr Hawke and his representatives would consider whether a further dispute may be notified to the Respondent by an apprentice employee.

[6] On 2 August 2019 the applications of Mr Price, Mr Hinchliffe and Ms Krause were made, represented by the AMWU and by Maurice Blackburn Lawyers. The Applicants sought for their matters to be joined, which the Respondent did not oppose. I determined it appropriate to join these matters and deal with them together.

Jurisdictional objection to Mr Hawke’s application

[7] As noted above, the Respondent made a jurisdictional objection to Mr Hawke’s application on the basis that he is not an apprentice and would not be affected by any change to the training packages offered to diesel fitter apprentices within the Respondent’s enterprise and is therefore not an ‘employee concerned’ for the purposes of the dispute resolution procedure set out in clause 4.4(a)(i) of the Agreement. The Respondent submitted that he is not competent to raise a dispute.

[8] It is helpful to set out in part the relevant clause of the Agreement, which states:

“4.4 Dispute Resolution Procedure

(a) Where there is a dispute about matters arising under this Agreement or the NES, the following steps will apply:

(i) The Employee/s concerned will first discuss the issue with their immediate supervisor who will take all reasonable steps to resolve the matter within five working days.

…

...

(vi) In the event there is no resolution, the parties may jointly or individually refer the matter to the Fair Work Commission for conciliation and/or arbitration. This must occur within seven working days if either party considers the dispute unresolved.”

[9] The Applicants noted that given the applications of Mr Price, Mr Hinchliffe and Ms Krause, the jurisdictional objection to Mr Hawke’s application was moot in respect of resolving the question for arbitration. Nevertheless, the Applicants submitted that the Respondent’s submission that Mr Hawke must be an ‘employee concerned’ to raise the present dispute was misconceived. Alternatively, the Applicants submitted that Mr Hawke is an employee concerned.

[10] The Applicants submitted that the Respondent’s jurisdictional objection relied on an interpretation that the words ‘the Employee/s concerned’ within subclause 4.4(a)(i) of the Agreement mean that a dispute may only be brought by an individual where there is a material effect on the individual or their terms and conditions of employment. The Applicants submitted that the words ‘the Employee/s concerned’ should be given the meaning of the employee who notified the dispute or the employee party to the dispute.

[11] The Applicants referred to the decision of the Full Bench of this Commission in AMWU v Berri Pty Ltd (Berri) 3 and the Full Bench’s observations in Berri that the construction of an enterprise agreement “…begins with a consideration of the ordinary meaning of the relevant words. The resolution of a disputed construction of an agreement will turn on the language of the agreement having regard to its context and purpose”.4

[12] The Applicants noted that the Macquarie dictionary defines “concerned” as:

“adjective 1. Upset, worried: a concerned look. 2. involved: the children concerned should report to the office.”

[13] The Applicants submitted that the purpose of subclause 4.4(a)(i) of the Agreement is to identify the employee that discusses the dispute with their immediate supervisor and so notifies the dispute. The Applicants submitted that such an employee, and Mr Hawke in this matter, is a person who is upset, worried or involved with respect to the dispute and thus falls within the ordinary meaning of the words ‘the Employee/s concerned’. The Applicants submitted that had subclause 4.4(a)(i) intended to narrow the employees that can notify a dispute under clause 4.4, then subclause 4.4(a)(i) would have stated words to the effect of ‘the Employee/s materially affected’.

[14] The Applicants submitted in the alternative that were I to favour the Respondent’s interpretation of subclause 4.4(a)(i), Mr Hawke is in any case an employee concerned by the changes to the training packages because:

•  Mr Hawke is a diesel fitter employed by the Respondent and his qualifications and his calling will be devalued and he will be required to train apprentices who have received different training to himself; and

•  Mr Hawke is a delegate of the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) at the Respondent’s Rockhampton workshop and is required to represent the interests of member employees regarding potential contraventions of the Agreement, Award and industrial laws, including concerns about the changes to the training packages. 5

[15] My decision regarding this jurisdictional issue appears below at [197] – [204].

Background to dispute

[16] The dispute centres on clause 15.4 of the Manufacturing Award, which deals with apprentice training contracts and states:

“15.4 An apprentice may be engaged under a training contract approved by the relevant apprenticeship authority, provided the qualification outcome specified in the training contract is consistent with that established for the vocation in the training package determined from time to time by Manufacturing Skills Australia or its successors and endorsed by the National Skills Standards Council or its successor. Such apprenticeships include but are not limited to the following trades: Engineering Tradesperson (Mechanical), Engineering Tradesperson (Fabrication), Engineering Tradesperson (Electrical/Electronic), Higher Engineering Tradesperson and Advanced Engineering Tradesperson. An apprentice may also be engaged where the qualification outcome specified in the training contract is consistent with the qualifications established for electrical vocations within the relevant electrical/utilities training package and endorsed by the National Skills Standards Council or its successor.

[17] The Respondent is a ‘Registered Training Organisation’ (RTO) and as such is authorised to provide training and assessment regarding a range of training packages including the training packages relevant to these disputes. 6

[18] During February 2019 the Respondent took on a new cohort of first year apprentice diesel fitter employees, including Mr Price, Mr Hinchliffe and Ms Krause. Those diesel fitter apprentices agreed to complete apprenticeships with the Respondent to obtain the ‘MEM30205 – Certificate III in Engineering – Mechanical Trade qualification’ (the MEM30205 qualification). The MEM qualification falls within the broader ‘MEM – Manufacturing and Engineering Training Package’ (the MEM training package). On or about 26 June 2019, the MEM30205 qualification was superseded by the MEM31419 – Certificate III in Engineering – Fixed and Mobile Plant Mechanic (the MEM31419 qualification) offered under the MEM training package.

[19] After substantial consultation with the AMWU, but without the AMWU’s agreement, the Respondent decided to change the training package and qualification outcome offered to its first year apprentice diesel fitter employees to the ‘AUR – Automotive Retail, Service and Repair Training Package (the AUR training package) and the ‘AUR31216 – Certificate III in Mobile Plant Technology’ (the AUR qualification). The Respondent’s position is that the AUR qualification provides superior training outcomes when considered against the superseded MEM30205 qualification and the current MEM31419 qualification. 7

[20] The Applicants assert that the Respondent’s change or proposed change from the MEM30205 qualification and the MEM training package to the AUR qualification and AUR training package contravenes clause 15.4 of the Manufacturing Award because the AUR training package is not a training package determined by Manufacturing Skills Australia (MSA) or its successors, and the AUR qualification is not consistent with the qualifications established for the diesel fitter vocation.

[21] It was determined at the hearing that Mr Price, Mr Hinchliffe and Ms Krause had all signed new contracts for the training to be the AUR training package, and the qualification achieved to be the AUR qualification. By the date of the hearing this had been approved by the Queensland Government Department of Employment, Small Business and Training. 8

Dispute before the Commission

[22] Each of the parties filed submissions in support of their positions and proposing the appropriate question for arbitration in these matters. The Applicants proposed that the question for arbitration should be:

“Does the proposed change contravene clause 15.4 of the [Manufacturing and Associated Industries and Occupations Award 2010], incorporated by virtue of Clause 1.3 of the Agreement?”

[23] The Respondent in its submissions and at the hearing 9 submitted that a decision had been made and approved to change the relevant first-year apprentices to the AUR qualification and proposed that the question for arbitration should be:

“Did the change contravene clause 15.4 of the Manufacturing and Associated Industries and Occupations Award 2010 as incorporated by clause 1.3 of the Hastings Deering (Australia) Limited Enterprise Agreement 2018?”

[24] The Applicants maintained in submissions in reply and at the hearing that the proposed change to the training packages had not yet taken effect and the question for arbitration should therefore refer to a ‘proposed change’. However, the Applicants noted that on either of the formulations proposed, the crux of the Applicant’s argument is that the Respondent’s actions the subject of the dispute contravene clause 15.4 of the Manufacturing Award. 10

[25] Noting that following the hearing the three relevant Applicants commenced training in the AUR training package, with it having been approved by the department, the question for arbitration is:

“Does the change from the MEM qualification to the AUR qualification, and the training associated with such a change contravene clause 15.4 of the Manufacturing and Associated Industries and Occupations Award 2010, incorporated by virtue of Clause 1.3 of the Hastings Deering (Australia) Limited Enterprise Agreement 2018?”

[26] These matters were heard before me on 23 August 2019. Mr Patrick Turner, Associate of Maurice Blackburn Lawyers appeared for the Applicants. Mr Nick Le Mare, Partner of Corrs Chambers Westgarth appeared for the Respondent. Leave was granted pursuant to s.596 of the Act for the representatives to appear given the complexity of the matter.

Training authority bodies and successors

[27] A complex framework of authority bodies oversee the qualifications and training packages relevant to this dispute, and it is helpful to summarise the uncontested evidence and submissions of both parties regarding those bodies and the relationships between them before turning to each party’s evidence and submissions regarding the substantive issue in dispute. 11

[28] Prior to 2004, the Manufacturing Engineering and Related Services Industry Training Advisory Body (MERSITAB) was responsible for managing training standards over a subset of the light manufacturing and engineering industries. During 2004, 29 industry training and advisory bodies were consolidated into 10 Industry Skills Councils (ISCs), and as part of that action MERSITAB was consolidated into the Manufacturing Industry Skills Council (MISC).

[29] In 2005 MISC adopted the trading name of ‘Manufacturing Skills Australia’ (MSA). MSA had authority over training packages for the furnishing, metal and engineering, aerospace manufacturing and maintenance, process manufacturing in hydrocarbons, plastics, rubber and cable-making and mineral products industries. It was originally proposed that responsibility for the automotive industry should also fall within MISC’s scope, however those negotiations were not completed before the creation of MISC and management of the automotive industry’s training regimes remained separate.

[30] Similar to all ISCs, MSA was responsible for establishing necessary skills for the industries within its scope and overseeing the development of training packages to provide those skills. MSA was responsible for developing the MEM training package, the ‘MEM05 – Metal and Engineering Training Package’ (MEM05) and the ‘MSA07 – Manufacturing Training Package’ (MSA07). The training packages developed by the ISCs would be considered and endorsed by an overseeing body. On 1 July 2011 the National Skills Standards Council (NSSC) was established as the body responsible for endorsing training packages developed by ISCs.

[31] On 17 March 2009, then Minister for Education, Employment and Workplace Relations, the Hon. Julia Gillard determined that ISC coverage for the automotive industry should fall to MSA. 12 While responsible for the automotive industry, MSA maintained and continued to develop the ‘AUM08 – Automotive Manufacturing’ and ‘AUR05 – Automotive Industry Retail Service and Repair’ training packages.

[32] During 2009 the Hon. Steve Bracks reviewed the management of training practices within the automotive industry and recommended that the MSA form a wholly-owned subsidiary company to manage its functions with respect to the automotive industry. That recommendation was supported by the Federal government, and on 17 December 2010, Auto Skills Australia Ltd (ASA) was created as a wholly-owned subsidiary of MSA. From 17 December 2010 onward, MSA had no direct oversight over the development of training packages for the automotive industry. The ASA was responsible for developing the ‘AUR12 – Automotive Industry Retail, Service and Repair Training Package’ and its successor and the current training package, the AUR training package.

[33] On 1 August 2014 ASA separated entirely from MSA, and from that date was no longer a wholly-owned subsidiary of MSA. ASA became an ISC in its own right with responsibility for determining training packages for the automotive industry. 13

[34] During September 2014 the Federal government announced that the ISC framework would not be continued after June 2015. A new framework was proposed for ‘Industry Reference Committees’ (IRCs) to assume responsibility for development and management of training packages. The IRCs would be supported by Service Skills Organisations (SSOs) and the training packages developed by the IRCs would be approved by the successor to the NSSC, the Australian Industry Skills Committee (AISC).

[35] The IRC for the manufacturing and engineering industry was not finalised by June 2015. The Manufacturing and Engineering Industry Reference Committee (MEM IRC) was created as an interim successors to the MSA until a formal decision could be made establishing the IRC for the manufacturing and engineering industry. Until November 2016, MSA acted as a support body for the interim MEM IRC. On 10 November 2016, Innovation and Business Skills Australia (IBSA) was appointed as the SSO for the MEM IRC. IBSA supports the MEM IRC to exercise its functions but holds no decision-making power itself.

[36] The membership of the MEM IRC was finalised during 2017. As of the date of this decision, the MEM IRC is responsible for training package qualifications relevant to the conception, design, making, assembling, repair, packaging and sale of manufactured products, which includes the MEM, MEM05 and MSA07 training packages. 14

[37] Responsibility for the AUR training package did not fall to a single IRC after the transition to the IRC framework. The following five IRCs (the Automotive IRCs) hold responsibility for the AUR training package. PricewaterhouseCoopers’s (PwC) Skills for Australia is the SSO for each of the Automotive IRCs.

•  The Automotive Strategic IRC

•  The Automotive Light Vehicle IRC;

•  The Automotive Heavy Vehicle IRC;

•  The Automotive Vehicle Body Repair IRC;

•  The Automotive Allied IRC.

Evidence of the Applicants

Evidence of Mr Hawke

[38] Mr Jesse Hawke gave a witness statement in respect of the dispute. 15 Mr Hawke was not required for cross-examination during the hearing of these matters.

[39] As noted above at [3] and [14] Mr Hawke is a diesel fitter employed in the Respondent’s Rockhampton workshop and is a delegate of the AMWU. During 2018 Mr Hawke was an AMWU bargaining representative for the Agreement and participated in negotiations for the Agreement.

[40] Mr Hawke brought his application as he considered the changes or proposed changes to the training packages will impact on his role as a diesel fitter because:

•  The Agreement’s classification structure regarding diesel fitters is based on MEM training package competency standards. Mr Hawke considered that it would be difficult to assess the competencies and most suitable classification of employees that hold the AUR qualification within the Agreement’s MEM training package-based framework. Employees holding the AUR qualification may be disadvantaged with respect to the allocated classification, pay rate and opportunities for career progression;

•  Mr Hawke was required to obtain the MEM30205 qualification in order to become a diesel fitter, but the Respondent proposes to refer to apprentices who complete the AUR training package and hold the AUR qualification as diesel fitters. Mr Hawke stated that this will undermine and devalue the MEM30205 qualification and the diesel fitter profession; and

•  Mr Hawke has previously been required to train the Respondent’s apprentice diesel fitters and it is likely he will be required to train those apprentices in the future. Differences between Mr Hawke’s MEM30205 qualification and the AUR training package that apprentices are proposed to undertake will make it difficult for Mr Hawke to train apprentices completing the AUR training package.

[41] Mr Hawke stated that the change or proposed change to the training packages concerns him as an AMWU delegate because he considers that the Respondent is proposing to contravene a term of the Agreement, and Mr Hawke is required to address potential contraventions of the Agreement and represent the views and interests of the employees of the Respondent’s Rockhampton workshop that are members of the AMWU. Mr Hawke stated that several AMWU members had expressed concerns to him about the changes or proposed changes to the training packages.

Evidence of Mr Price, Mr Hinchliffe and Ms Krause

[42] Mr Jacob Price, Mr Ben Hinchliffe and Ms Nicole Krause (jointly, the Apprentices) all gave witness statements in respect of these matters and appeared and gave evidence at the hearing of these matters. 16 Each of the Apprentices stated that during February 2019 they executed a training plan with the Respondent regarding the training they were to receive through their apprenticeship with the Respondent. Each of the Apprentices produced a copy of their respective training plans and those training plans described that each of them would complete the MEM30205 qualification through their apprenticeship.

[43] In cross-examination, Mr Le Mare referred each of the Apprentices to a dispute notification form and letter that each of them had provided to their supervisor on 26 July 2019. Each of the letters were identical and asserted that the change or proposed change from the MEM training package to the AUR training package contravened clause 15.4 of the Manufacturing Award and Clause 1.3 of the Agreement. 17

[44] Mr Hinchliffe and Ms Krause confirmed when asked by Mr Le Mare that no other matters gave rise to their respective dispute other than the possible contravention of clause 15.4 of the Manufacturing Award and Clause 1.3 of the Agreement. 18 When asked the same question by Mr Le Mare, Mr Price stated that his dispute also concerned whether he and other apprentice diesel fitters of the Respondent were receiving the right training for the trade that they were in and whether they could be classified as diesel fitters after completing the AUR training package and obtaining the AUR qualification.

[45] Mr Le Mare asked Mr Price whether it would make any difference to him to know that he would still be able to do the same job with the Respondent as he had anticipated doing upon commencing his apprenticeship regardless of whether he obtained the MEM30205 qualification or the AUR qualification. Mr Price stated that he understood that he would be able to do the same job.

[46] Mr Le Mare asked Mr Price whether it would make any difference to him to know more about his future employability and marketability both within the Respondent’s organisation and with other employers as a result of whether he held the MEM30205 qualification or the AUR qualification. Mr Price stated that this would make no difference to him and he was not concerned about whether he would be constrained with whom he could work for depending on which of the qualifications he obtained. 19

Evidence of Mr Ian Curry

[47] Mr Ian Curry gave two witness statements in respect of these matters and appeared and gave evidence at the hearing. 20

[48] Mr Curry holds the position of ‘National Coordinator: Skills, Training & Apprenticeships’ for the AMWU and has held that position since 2002. Mr Curry is the current Chair of the MEM IRC. He was a founding board member of MSA and remains the Deputy Chair of MSA, a position he has held since in or about 2004. From in or about 2003 until the establishment of the MEM IRC, Mr Curry was the Chair of the Metal and Engineering training package board sub-committee of MSA (the MEM sub-committee), which was specifically responsible within MSA for managing the development and maintenance of the predecessor training packages to the MEM training package and MEM05. 21

[49] Mr Curry stated that during the transition period to the new IRC model, MSA coordinated activities for, provided staff to and generally supported the work of the then-interim MEM IRC. Mr Curry noted that MSA no longer has any role or responsibility regarding training in the manufacturing industry and is now a benevolent charity. 22

[50] Mr Curry stated that the scope of works for which the MEM IRC holds responsibility over the development and management of training packages, namely the conception, design, making, assembling, repair, packaging and sale of manufactured products, falls within the Manufacturing Award and the Manufacturing Award recognises the MEM, MEM05 and MSA07 training packages as forming the minimum training requirements or equivalent thereof for the classifications set out in the Manufacturing Award. 23

[51] By way of example Mr Curry noted that the Manufacturing Award describes a ‘C10 – Engineering/Manufacturing Tradesperson – Level I’ to have, amongst other example qualifications, a minimum training requirement of a ‘Certificate III in Engineering – Mechanical Trade’ which is awarded upon completion of the MEM training package. The Manufacturing Award describes a ‘C10 – Engineering/Manufacturing Tradesperson – Level I’ employee as an employee who holds a trade certificate or tradespersons rights certificate or equivalent as an ‘Engineering Tradesperson (Mechanical) – Level 1’, amongst other example trade certificates. Mr Curry noted that clause 15.4 of the Agreement, the subject of this dispute, expressly refers to apprenticeships for the trade of ‘Engineering Tradesperson (Mechanical)’. 24 It is his contention that the classifications set out in the Manufacturing Award were designed around and are linked with the qualifications awarded through the MEM training package, which is now determined by the MEM IRC.25

[52] Mr Curry produced a copy of a webpage published by the Queensland Government Department of Employment, Small Business and Training regarding the restricted calling of ‘Engineering Mechanical Trade (Maintenance – Diesel Fitting) 26 and noted that that webpage states regarding that calling:

“Qualification details

Name:

Certificate III in Engineering – Mechanical Trade

Qualification code:

MEM30205

Training package:

MEM05 – Metal and Engineering Training Package – MEM05

Status:

Current”

[53] Mr Curry produced an ‘implementation guide’ for the AUR package published by PwC’s Skills for Australia which stated in regards to the AUR training package: 27

“AUR – Review Process

This Training Package is aimed at satisfying the training needs of the Retail, Service and Repair (RS&R) sector of the automotive industry, including occupational areas covering:

•  Automotive Electrical

•  Bicycles

•  Marine

•  Mechanical and Specialisation

•  Mechanical Heavy Vehicle

•  Outdoor Power and Equipment

•  Sales, Parts, Administration and Management

•  Vehicle Body Repair”

[54] Mr Curry stated that work in the above occupational areas largely falls within the scope of the Vehicle Manufacturing, Repair, Services and Retail Award 2010 (the Vehicle Award).

[55] Mr Curry stated that there is no link between the AUR training package and the competencies, classifications, vocations and pay structures set out in the Manufacturing Award. No qualification obtainable through the AUR training package, including the AUR qualification, is referred to as a minimum training requirement for any of the classifications set out in the Manufacturing Award. 28

[56] Mr Curry stated that the Automotive IRCs do not perform any functions under the Manufacturing Award and gave his opinion that the Automotive IRCs are not successors of MSA for the purposes of clause 15.4 of the Manufacturing Award.
[57] Replying to Mr Torino’s evidence, a witness for the Respondent, Mr Curry stated Mr Torino did not use an appropriate methodology in his review comparison of the AUR qualification and the ‘MEM31419 – Certificate III in Engineering – Fixed and Mobile Plant Mechanic’ (MEM31419) qualification.

[58] Mr Curry stated that it appeared that Mr Torino had selected various units of competency available under the MEM31419 qualification as part of his review, but had omitted from his review a significant number of elective competency units available within the MEM31419 qualification. Mr Curry stated that it was unclear on what basis Mr Torino concluded that the AUR qualification meets and exceeds the units of competency under the MEM31419 qualification.

[59] Mr Curry noted that the Manufacturing Award sets out the recommended points of unit competency that a person should have successfully completed for each of the classification levels in the Manufacturing Award. 29 To obtain the MEM31419 qualification 96 points of unit competency must be completed; 63 point of core unit competencies and 33 points of elective unit competencies. Mr Curry stated that the MEM31419 qualification is packaged to meet the points requirement of the Manufacturing Award’s C10 classification and associated vocation of ‘Engineering/Manufacturing Tradesperson – Level I’.

[60] However, the AUR qualification does not assign a point value to its units; it simply requires the completion of 22 core units and 14 elective units.

[61] Mr Curry noted Mr Torino’s conclusion that the AUR qualification was superior to the MEM31419 qualification and the MEM31419 qualification would need to be supplemented by 7 additional units of competency to match the AUR qualification. Mr Curry stated that in the absence of a unifying system it is difficult to directly compare the MEM31419 qualification and the AUR qualification, a comparison between the two different systems was a measure of inconsistency and assuming that Mr Torino’s assessment was correct, an apprentice who obtained the AUR qualification should not be classified as a C10 – ‘Engineering/Manufacturing Tradesperson – Level I’ under the Manufacturing Award and it would be unclear what classification of the Manufacturing Award such a person would be classified as.

[62] Mr Curry produced copies of the qualification documents for each of the MEM31419 qualification and the AUR qualification and noted each document’s description of the purpose of the respective qualifications. The MEM31419 qualification is described as follows:

“Qualification Description

This qualification defines the skills and knowledge required of an Engineering Tradesperson – Mechanical specialising in diesel fitting and plant mechanics within metal, engineering, manufacturing and associated industries. The qualification has been specifically developed for apprentices in the above trade. The qualification packaging has been developed on an assumption that competency will be developed through a combination of on and off-the-job learning strategies such as those delivered through a formal apprenticeship. The qualification may also be achieved through formal skills recognition assessment processes.

The skills associated with this qualification are intended to apply to a wide range of trade work including manufacturing, assembly and commissioning of mobile and stationary plant, servicing, diagnoses and rectification of faults, condition monitoring and preventative maintenance.

This qualification is designed to provide an industry recognised skills profile related to trade work as a fixed and/or mobile plant mechanic. Skills development should be undertaken through an Australian Apprenticeship arrangement where the mix of on and off-the-job training would be specified in the Training Plan associated with the Contract of Training between the employer and apprentice.

…”

[63] The AUR qualification is described as follows:

“Qualification Description

This qualification reflects the role of individuals who perform a broad range of tasks on a variety of mobile plant machinery in the automotive retail, service and repair industry.”

[64] Mr Curry stated his opinion that the AUR qualification has no relation or connection to the scheme of training and classification system set out in the Manufacturing Award and has no connection to the industries covered by the Manufacturing Award, and was in fact designed for the industries covered by the Vehicle Award.

[65] Mr Curry stated that he had reviewed the clauses within the Manufacturing Award that continued to refer to MSA and stated that the MEM IRC is now responsible for the matters previously undertaken by MSA referred to in the following Clauses:

•  15.5(b), (c), 15.8;

•  17.2(a)(v);

•  Schedule B, B3.1(b);

•  28.1. 30

[66] In cross-examination, Mr Curry agreed that he was familiar with both the MEM and AUR training packages, but had much stronger technical expertise with the MEM training package. Mr Curry agreed that the MEM31419 qualification provided training with respect to a broader range of industries than the predecessor MEM30205 qualification, which was ‘nested’ within engineering. 31

[67] Mr Le Mare put to Mr Curry that for a person to work as a plant mechanic or diesel or fitter in Australia they would need to obtain certification under either MEM training package or the AUR training package, and different employers around Australia had different practices as to which of the MEM or AUR training packages they used. Mr Curry stated that the relevant job titles varied from state to state and, for example, he could not say what qualification a person might need to become a plant mechanic in Victoria or which qualification might be preferred.

[68] Mr Le Mare put to Mr Curry that employers operating within the relevant industries in Victoria would prefer the AUR qualification over the qualifications obtainable through the MEM training package, and for the states of New South Wales and South Australia the AUR qualification is the only practical option for apprentices to be trained in. Mr Curry could not respond to Mr Le Mare’s assertions about qualification preferences in states other than Queensland. Mr Curry stated that he understood the restricted calling of diesel fitter within Queensland required certification under the MEM training package, but conceded that Queensland employers are a ‘mixed bag’ and both the AUR and MEM training packages are used within Queensland. 32

[69] Mr Le Mare asked Mr Curry whether he had a view about the practicality of an industry dealing with two parallel training packages. Mr Curry stated his view that a decision about which training package may be the most appropriate in any given workplace should be based on whether the training package complies with the relevant regulatory environment. Mr Curry considered that choosing an appropriate training package should not be a complex process and stated that some employers “bring motivations [to the decision] which are less than ideal”, such as whether a qualification is fully funded or only partly funded. Mr Curry stated that both the AUR and MEM training packages have application within the industries they were designed for. 33

[70] In re-examination by Mr Turner, Mr Curry clarified that RTOs such as the Respondent receive funding from the Federal government for conducting training. The amount of funding that an RTO receives is generally determined based on the nominal hours of learning required to obtain a particular qualification. The MEM31419 qualification has a nominal completion time of 960 hours. The AUR31216 qualification has a nominal completion time of between 1,200 and 1,400 hours. Mr Curry stated that the MEM31419 qualification’s nominal hours for completion had been specifically designed to match the requirements of the ‘C10 – Engineering/Manufacturing Tradesperson – Level I’ classification within the Manufacturing Award. 34

[71] Answering Mr Turner, Mr Curry confirmed that it is difficult to align the AUR qualification within the Manufacturing Award’s classification structure because the AUR qualification does not use the same ‘points of unit competency’ structure as the MEM31419 qualification, whereas the MEM training package and qualifications offered within the MEM training package were designed to align with the classifications in the Manufacturing Award. 35

[72] I asked Mr Curry whether there was any concern that implementing the AUR qualification would dilute the qualifications of diesel fitters that had obtained qualifications through the MEM training package? Mr Curry denied that dilution of the MEM qualifications was a concern.

[73] Mr Curry again noted that the MEM31419 qualification is designed so that a person who obtains that qualification meets the minimum qualification requirements for the C10 classification within the Manufacturing Award. The next classification level up in the Manufacturing Award is the C9 classification and the minimum qualification requirement for the C9 level is defined as 12 points of unit competency higher than the C10 level. 36 The minimum qualification requirements for the next higher classifications levels, C8 and C7, are respectively defined as 24 and 36 points of unit competency higher than the C10 level. Mr Curry also noted that the C7 classification level is designed for persons holding a Certificate IV level qualification and is entitled to a wage rate at 115% of the C10 classification.37

[74] Mr Curry estimated that 36 points of unit competency equated to approximately nine units and 360 nominal hours of learning within the MEM training package framework, which is similar to the additional nominal hour requirement for the AUR qualification. Mr Curry’s concern was that the significantly higher nominal hours required by the AUR qualification may provide a level of competency above the C10 classification, but because the AUR qualification is still at the Certificate III, level persons holding the AUR qualification might be classified at the C10 level, despite being ‘over-competent’ for that classification. 38

Submissions of the Applicants

The MEM IRC is the successor to MSA

[75] The Applicants submitted that consideration must be given to the language used in clause 15.4 of the Manufacturing Award in light of its industrial context and purpose and referred to the following passage from the judgment of Street J in Geo A Bond & Co Ltd (in liq) v McKenzie [1929] AR(NSW) 498, 503:

“…it must be remembered that awards are made for the various industries in the light of the customs and working conditions of each industry, and they frequently result…from an agreement between the parties, couched in terms intelligible to themselves but often frames without that careful attention to form and draughtsmanship which one expects to find in an Act of Parliament. I think, therefore in construing an award, one must always be careful to avoid a too literal adherence to the strict technical meaning of words, and must view the matter broadly, and after giving consideration and weight to every part of the award, endeavour to give it a meaning consistent with the general intention of the parties to be gathered from the whole award”.

[76] The Applicants submitted that narrow or pedantic approaches to interpretation should be avoided and the task of interpretation requires identification of the meaning intended by the framers of document, who were likely of a practical bent of mind. 39

[77] During the hearing, the Applicants challenged the Respondent’s submissions that I should have regard only to the ordinary meaning of the words within clause 15.4 and do not need to consider any extrinsic materials. The Applicants submitted that extrinsic materials may be considered in interpreting the meaning of an industrial instrument such as the Manufacturing Award whether or not there is any ambiguity or uncertainty to the meaning of particular words. The Applicants referred to the following extracts from the judgment of French J in City of Wanneroo v Australian Municipal, Administrative, Clerical and Services Union [2006] FCA 813:

“[55] … Ambiguity or obscurity is not necessary to the application of s 15AB as extrinsic materials may be relied upon to ‘confirm’ that the ordinary meaning conveyed by the text is the true meaning of the provision [69].

[56] The attribution of purpose by reference to context in the wide sense does not await the discovery of an ambiguity in the text. The purpose or object underlying an Act is often determined by consideration of the statutory context. Nor does discovery of an ambiguity precede resort to extrinsic material under s 15AB. For as Dawson J said in Mills v Meeking (1990) 169 CLR 214 at 235 (speaking of s 35 of the Interpretation of Legislation Act 1984 (Vic) in almost identical terms to s 15AA):

‘The approach required by s 35 needs no ambiguity or inconsistency; it allows a court to consider the purposes of an Act in determining whether there is more than one possible construction. Reference to the purposes may reveal that the draftsman has inadvertently overlooked something which he would have dealt with had his attention been drawn to it and if it is possible as a matter of construction to repair the defect, then this must be done.’

[57] It is of course necessary, in the construction of an award, to remember, as a contextual consideration, that it is an award under consideration. Its words must not be interpreted in a vacuum divorced from industrial realities. There is a long tradition of generous construction over a strictly literal approach where industrial awards are concerned [case references omitted]”.

[78] The Applicants submitted that in any case, their submissions turned not on ‘extrinsic materials’ but on clause 15.4’s predecessor clauses in other industrial instruments and on other clauses within the Manufacturing Award itself. 40

[79] The Applicants submitted that clause 15.4 of the Manufacturing Award must be considered in light of its predecessor, sub-clause 4.2.6(c)(i) in the Metal, Engineering and Associated Industries Award 1998 (the MEA Award). Following is the original form of sub-clause 4.2.6(c)(i):

“4.2.6(c)(i) Where it is consistent with State Legislation, an apprentice may be engaged under a Training Agreement approved by an Apprenticeship Authority, provided the qualification outcome specified in the Training Agreement is consistent with that established for apprenticeship in the trade training package determined from time to time by the Metal, Engineering and Related Services Industry Training Advisory Body (MERSITAB) and endorsed by the National Training Framework Committee or, is consistent with the electrical trades qualification established for apprenticeship from within a Utilities ITAB Training Package endorsed by the National Training Framework Committee.”

[80] The Applicants referred to the following statement from the judgment of Senior Deputy President Marsh in considering that sub-clause and accepting that it should be inserted into the MEA Award. The Senior Deputy President first considered the following submissions of the industry and union parties: 41

“…This clause also specifies that the appropriate qualification by reference to the appropriate training package for the industry. This is an essential part of the specification and skills-based career path in the industry, and it is also necessary under the new apprenticeship to defining what apprenticeship the apprenticeship wage rate is applicable to. Therefore, necessary to the outcome of matters in Section 89SA2(a) (sic) or (c), and this is also essential to the nature of the apprenticeship which is a type of employment, Section 89A(2)(r)”.

[81] The Senior Deputy President accepted those submissions and considered that sub-clause 4.2.6(c)(i) was “incidental to and necessary for the nature of apprenticeships”. 42

[82] On 17 January 2005 sub-clause 4.2.6(c)(i) was deleted from the MEA Award and replaced with the following sub-clause: 43

“4.2.6(c)(i) Where it is consistent with State Legislation, an apprentice may be engaged under a Training Agreement or Contract of Training approved by the relevant State or Territory Authority, provided the qualification outcome specified in the Training Agreement or Contract of Training is consistent with that established for the vocation in the training package determined from time to time by the Manufacturing Industry Skills Council (MISC) or its successors and endorsed by the relevant Training Authority or, is consistent with the qualifications established for electrical vocations within the relevant electrical/utilities Training Package endorsed by the National Training Quality Council or its successor.”

[83] The Applicants noted that simultaneous amendments were made to the MEA Award’s classification definitions in Schedule D by deleting references to MERSITAB and inserting references to the ‘Manufacturing Industry Skills Council’ and ‘Metal and Engineering Competency Standards as developed and maintained by Manufacturing Industry Skills Council or its successor’. 44

[84] The Applicants noted that the original form of clause 15.4 within the Manufacturing Award read: 45

“An apprentice may be engaged under a training agreement approved by the relevant apprenticeship authority, provided the qualification outcome specified in the training agreement is consistent with that established for the vocation in the training package determined from time to time by Manufacturing Skills Australia or its successors and endorsed by the National Quality Council or its successor...”

[85] The Applicants noted that it was not contested that the MERSITAB was succeeded by the MISC, which was in turn succeeded by MSA, and responsibility for the MEM training package was assumed by each of those organisations in turn. It was submitted that the MEM IRC is a successor to MSA and has assumed responsibility for the MEM training package.

[86] The Applicants submitted that throughout the various iterations of clause 15.4 of the Manufacturing Award and its predecessor in the MEA Award, it has remained constant that the appropriate body to determine the contents of a training package is the training body responsible for the training package relevant to the industry covered by the relevant industrial instrument. The Applicants submitted that the intended purpose of inserting the words ‘or its successors’ into then sub-clause 4.2.6(c)(i) of the MEA Award was that a successor should be a training body responsible for the training package relevant to the industry covered by the relevant industrial instrument.

[87] The Applicants submitted that the simultaneous amendments to the MEA Award’s classification definitions to refer to ‘Metal and Engineering Competency Standards as developed and maintained by Manufacturing Industry Skills Council or its successor’ reflected a similar intention to link maintenance of those competency standards to the MISC or its successors as the training body responsible for the training package for the relevant industry.

[88] The Applicants contrasted this position with the AUR training package, which the Applicants submitted is determined by the Automotive IRCs assisted by PwC Skills for Australia, and the AUR training package is designed to meet the needs of the industries covered by the Vehicle Award. 46

[89] The Applicants submitted that the industrial context of clause 15.4 of the Manufacturing Award must be considered with regard to its appearance in an industrial instrument purporting to cover the manufacturing industry [my emphasis], and not other industries, such as the industries covered by the Vehicle Award. The Applicants submitted that the clear intention of referring to a training body or its successors within an award covering a specific industry would be to refer to the training body or its successors which determine training packages for that specific industry.

[90] The Applicants noted that the Manufacturing Award repeatedly identifies MSA specifically as holding responsibility for the determination of training packages and demonstration of competency for the purposes of classification of individuals under the Manufacturing Award. 47 The Applicants submitted that the MEM IRC now holds responsibility for many of the functions previously performed by MSA under the Manufacturing Award, including but not limited to:

•  Determining the minimum training requirements for the C5 and C7 classifications within the Manufacturing Award; 48

•  Determining the requirements for demonstrating minimum competency and work experience levels for the completion of apprenticeships in periods of time shorter than the nominal completion period; 49

•  Determining training packages for ‘Technology Cadets’ and ‘Technology Cadetships’; 50

•  Determining the minimum training and/or competencies required with respect to whether other training completed or competencies held by a person is equivalent to the minimum training requirement for a particular classification. 51

[91] The Applicants submitted that neither the Automotive IRCs nor PwC Skills for Australia perform any of the above functions originally performed by MSA and now performed by the MEM IRC.

[92] The Applicants submitted that substituting references to MSA within the Manufacturing Award with the Automotive IRCs or PwC Skills for Australia would undermine the Manufacturing Award’s classification structure and the assessment of competencies within that structure, as the AUR training package and AUR qualification have no link to the Manufacturing Award’s classification structure. The Applicants submitted that it would be an illogical outcome that apprentices could be engaged to complete the AUR qualification when the Automotive IRCs and PwC Skills for Australia hold no responsibility at all for the matters accorded to MSA under the Manufacturing Award and no qualification obtainable through the AUR training package is described within the minimum training requirements for the Manufacturing Award’s different classifications.

[93] The Applicants noted that MSA only became responsible for the automotive industry with respect to its functions in 2009 and at the direction of the Federal government. The Applicants submitted that at the time the Manufacturing Award was made on 19 December 2008, the industry and union parties to the Manufacturing Award could not have contemplated that the Federal government would determine MSA should take responsibility for the automotive industry. Accordingly, it could not have been contemplated that entities responsible for determining training packages for the automotive industry, such as the Automotive IRCs or PwC Skills for Australia, could be successors to MSA.

[94] During the hearing, the Applicants submitted that the line of descent from MSA to the Automotive IRCs was ‘convoluted’, and noted that the Respondent’s own position as to the successors to MSA had changed over the course of these matters. The Applicants referred to a letter sent by the Respondent to my chambers on 24 July 2019 which stated in part, “IBSA is the supporter of the Manufacturing and Engineering Industry Reference Committee, and therefore a successor of MSA. However, it is not the only successor. PwC for Australia, as the supporter of the various automotive Industry Reference Committees, is equally a successor of MSA”. The Applicants noted that the Respondent’s submissions later changed to identify the Automotive IRCs as successors of MSA. The Applicants maintained that both propositions should be rejected. 52

[95] During the hearing, the Applicants noted that the Respondent’s submissions to the effect that during 2005, clause 15.4’s predecessor clause in the MEA Award was amended to referred to MISC’s plural ‘successors’, while referring to the NSSC’s singular ‘successor’, a construction which carried through to clause 15.4 in the Manufacturing Award (see below at [173]). The Applicants submitted that the intended successors to MSA should be training bodies responsible for the training package that is ‘rolled into’ the industry led by the relevant industrial instrument. The Applicants submitted that considering the Manufacturing Award as a whole and the responsibilities it conferred upon MSA relevant to the manufacturing industry, any successor to MSA under clause 15.4 should be a body concerned with the manufacturing industry. The Applicants submitted that it would be ‘an incongruent outcome’ for bodies connected with the automotive industry, such as the Automotive IRCs, which have no responsibility for or stake in the manufacturing industry to be able to determine training packages for the purposes of the Manufacturing Award, and submitted that it is pertinent that the Manufacturing Award’s classification structure includes minimum training requirements that are linked to qualifications provided through the MEM training package. 53

[96] Further, the Applicants submitted that the intended use of the plural ‘successors’ in relation to MSA within clause 15.4 was to prevent the need to amend the Manufacturing Award every time that the relevant training body changes. 54

[97] During the hearing, the Applicants noted the Respondent’s submissions that clause 15.4 allows an apprentice to be engaged under a training contract for apprenticeships and trades other than those set out in the Manufacturing Award’s classification structure and in entire trades other than engineering, by virtue of the words “Such apprenticeships include but are not limited to…”, and that the AUR qualification is the qualification outcome established for the vocation of ‘mobile plant mechanic’ which the relevant apprentices will be qualified to engage in upon completion of the AUR qualification. The Applicants submitted that the end of the Respondent’s reasoning is that any qualification available under the AUR training package is capable of satisfying clause 15.4. The Applicants noted that the AUR training package includes qualifications regarding ‘motor sport technology’ and ‘automotive sales’ and submitted that it was clearly not intended that apprentices engaged in the manufacturing industry pursuant to clause 15.4 could receive qualification outcomes so far removed from the manufacturing industry, including the AUR qualification. 55

Ordinary meaning of ‘successor’ and ‘succeed’

[98] The Applicants agreed with the Respondent’s definitions of ‘successor’ and ‘succeed’, as set out below at [172].

[99] The Applicants submitted that in light of the industrial context of clause 15.4 and considering the ordinary meaning of ‘successors’, clause 15.4 is intended to refer to the entity which takes the place of or replaces another. The clear intention, it was submitted, was for a successor entity to be an entity which replaces the functions MSA performed pursuant to clause 15.4, namely, the determination of a training package which is an appropriate training package for the industry the subject of the Manufacturing Award. The Applicants submitted that the Automotive IRCs and PwC Skills for Australia do not perform that function.

[100] The Applicants opposed the Respondent’s submissions that ASA succeeded MSA. The Applicants noted that even while ASA was a wholly-owned subsidiary of MSA it held sole responsibility for the determination of training packages for the automotive industry. Later, it later become entirely independent of MSA and was established as an ISC for the automotive industry in its own right and did not assume responsibility for determining any of the training packages relevant to the industries covered by the Manufacturing Award, which remained the responsibility of MSA.

[101] The Applicants submitted on those bases that ASA did not ‘follow’ or ‘supplant’ and was not a ‘successor’ of MSA for the purposes of clause 15.4. The Applicants submitted that were I not to accept their above submissions and determine that ASA was a ‘successor’ to MSA while it was a wholly-owned subsidiary of MSA, then at the latest the chain of succession was broken when ASA became an independent company from MSA.

[102] In the Applicants’ submission, it follows that the Automotive IRCs and PwC Skills for Australia have no relationship to MSA at all; ASA either never succeeded MSA at all or its chain of succession was broken when it became an independent company and ISC, and the genesis of the Automotive IRCs and PwC Skills for Australia can be traced back no further than the transition from ASA and the ISC model to the IRC and SSO model.

[103] The Applicants submitted that from a proper interpretation of the words of clause 15.4 and considering its industrial context, none of ASA, the Automotive IRCs or PwC Skills for Australia can be deemed ‘successors’ of MSA for the purposes of clause 15.4 of the Manufacturing Award. 56

The AUR qualification is not ‘consistent with’ the MEM31419 qualification

[104] The Applicants noted that the words ‘is consistent with’ appeared in clause 15.4’s predecessor in the MEA Award. 57 The Applicants repeated their submissions set out above at [89]; that the unchanged intention of clause 15.4 and its predecessor sub-clause is to ensure that a qualification completed by an apprentice is an appropriate qualification by reference to the training package for the industry, being the industry covered by the relevant industrial instrument and not another qualification under a different training package for a different industry and produced by bodies with responsibility for another industry. The Applicants submitted that clause 15.4 cannot support the Respondent simply using its status as an RTO to determine for itself that the AUR qualification is consistent with the MEM31419 qualification.58

[105] The Applicants submitted that the Respondent’s argument that the AUR qualification is consistent with the MEM31419 qualification must fail if I determine that the Automotive IRCs are not successors to MSA, and if the AUR training package was developed for a different industry than that covered by the Manufacturing Award. 59

[106] The Applicants submitted that if I accepted that a qualification could be ‘consistent with’ a qualification determined by MSA or its successors despite not being found within a training package developed by MSA or its successors, then nonetheless the AUR qualification does not meet that bar and is not consistent with the MEM31419 qualification, for the following reasons:

•  The MEM31419 qualification was developed with the express purpose of meeting the points of unit competency requirements for the Manufacturing Award’s ‘C10 – Manufacturing and Engineering Tradesperson – Level 1’ classification, as set out above at [59]. The AUR qualification was not developed with that purpose. Rather, the AUR qualification, “…reflects the role of individuals who perform a broad range of tasks on a variety of mobile plant machinery in the automotive retail, serve and repair industry”, 60 and the automotive retail, serve and repair industry is not covered by the Manufacturing Award;

•  The AUR qualification does not assign points of unit competency to the units that make up that qualification, dissimilar to the points of unit competency system used by the MEM31419 qualification and contemplated by the Manufacturing Award;

•  On Mr Torino’s assessment (see below at [156]), the AUR qualification provides a superior level of competency to the MEM31419 qualification, and the MEM31419 qualification would need to be supplemented by seven additional units of competency to be equivalent to the AUR qualification;

•  Assuming Mr Torino is correct in his assessment of the two qualifications, an apprentice holding the AUR qualification should not be classified as a ‘C10 – Manufacturing and Engineering Tradesperson – Level 1’, although it is not clear what classification such an apprentice should be classified as;

•  The full titles of the relevant qualifications are the ‘MEM31419 – Certificate III in Engineering – Fixed and Mobile Plant Mechanic’ and the ‘AUR31216 – Certificate III in Mobile Plant Technology’. A person holding the MEM31419 qualification can perform work on fixed and mobile plant within the metal, engineering, manufacturing and associated industries. A person holding the AUR qualification can perform work on mobile plant (not fixed) within the automotive retail service and repair industries. Those qualifications therefore provide distinct outcomes with respect to the industries that persons holding one of those qualifications can work in. 61

[107] The Applicants submitted that Mr Torino had used an inappropriate methodology to conduct his review between the MEM31419 and AUR qualifications on the basis that he had started with the AUR qualification and attempted to build a training plan for the MEM31419 qualification which matched as closely as possible the AUR qualification. The Applicants submitted that the correct starting point for Mr Torino’s review should have been the MEM31419 qualification, for it is that qualification with which the AUR qualification must be consistent. The Applicants noted that Mr Torino himself had identified significant differences between MEM31419 and AUR qualifications. Further, the Applicants noted the evidence of Mr Curry regarding other issues resulting from attempting to align the AUR qualification within the Manufacturing Award’s classification structure. 62

[108] The Applicants submitted that accepting the Respondent’s contention would also be accepting that any IRC responsible for any industry can develop a training package which apprentices covered by the Manufacturing Award could be engaged under as long as such a training package was sufficiently ‘consistent with’ a qualification under the MEM training package, such as the MEM31419 qualification. The Applicants submitted this would defeat the purpose of the IRC framework, which is to establish “…committees made up of people with experience, skills and knowledge of particular industry sectors which will ensure that training packages meet the needs of employers”. 63

[109] During the hearing, the Applicants noted the Respondent’s submissions that consideration of the Manufacturing Award’s classification structure is irrelevant because the Agreement sets out its own classification structure which ‘covers the field’ and the Manufacturing Award’s classification structure does not apply to the Respondent’s enterprise. The Applicants clarified that their submissions did not rely on the Manufacturing Award classification structure’s application in the Respondent’s enterprise, but rather referred to the intrinsic relationship between MSA and the Manufacturing Award evident throughout the Manufacturing Award as a whole, including within the classification structure. The Applicants submitted that the Manufacturing Award’s classification structure supported their overarching argument that the intent and the industrial purpose of the framers of clause 15.4 of the Manufacturing Award was to ensure that the successors of MSA were ones that were dealing with the manufacturing industry and not some other industry. 64

Industry practice to engage apprentices under the AUR qualification

[110] The Applicants noted the Respondent’s submissions and the enterprise agreements produced during the hearing regarding several other employers within the Respondent’s industry where those employers have completed similar transitions to the AUR qualification, discussed below at [194], and the Respondent’s submissions that the interpretation of clause 15.4 put forward by the Applicants would lead to ‘an absurd outcome’. The Applicants submitted that the training arrangements of other entities are not relevant to the determination of the question for arbitration in this matter. The Applicants submitted that the interpretation of clause 15.4 advanced by them was consistent with the purpose of clause 15.4, and noted that the Respondent had agreed for the Award to be expressly incorporated into the Agreement. 65

[111] Given that the Respondent only produced copies of the other employers’ enterprise agreements during the hearing I allowed the Applicants an opportunity following the hearing to make further submissions regarding those enterprise agreements. The Applicants elected not to make any further submissions regarding those enterprise agreements following the hearing.

[112] The Applicants submitted that the proposed change for the Respondent’s diesel fitter apprentices to complete the AUR qualification would contravene clause 15.4 of the Award and consequently would contravene Clause 1.3 of the Agreement. The Applicants submitted that the question for arbitration should be answered in the affirmative.

Evidence of the Respondent

Evidence of Ms Scott

[113] Ms Julia Scott, Law Graduate of Chambers Corrs Westgarth gave a witness statement in respect of these matters. 66 Ms Scott was not required for cross-examination. Ms Scott’s evidence was limited to the results of her research regarding these matters and annexed to her statement were several documents relevant to these matters and referred to by both parties.

Evidence of Mr Rigbye

[114] Mr Peter Rigbye gave a witness statement in respect of these matters and appeared and gave evidence at the hearing of this matter. 67 Mr Rigbye is employed by the Respondent as Manager – Human Resources.

[115] As at 19 August 2019, the date of Mr Rigbye’s statement, the Respondent employed 95 apprentice diesel fitters within its Queensland and Northern Territory enterprises. Of those apprentices, 35 are first year apprentices that commenced their apprenticeship with the Respondent on or about 4 February 2019. Comprised in that group are Mr Price, Mr Hinchliffe and Ms Krause.

[116] During August 2017 the Respondent commenced an internal review of the commercial viability of maintaining its registration as an RTO. Ms Katrina Shaw, Manager – Capability and Ms Shirley Brown, Capability Specialist of the Respondent were principally responsible for the review.

[117] On 3 August 2017 Ms Shaw met with representatives of TAFE Queensland to discuss training outsourcing models and other approaches to training within the Respondent’s industry. On 11 August 2017 Ms Brown emailed Ms Shaw a summary of TAFE Queensland’s views as to the differences between the MEM30205 qualification and the AUR qualification and outlined several ‘key advantages’ of the AUR qualification. Mr Rigbye produced a copy of Ms Brown’s email and noted the following statement within that email: 68

“Currently the two qualifications most commonly used nationally for heavy equipment fitters/mechanics are MEM30205 – Certificate III in Engineering (Diesel Fitter) and AUR31216 – Certificate III in Mobile Plant Technology. There has been an increasing trend for large employees in the mining and civil construction sectors to transition from the Metals and Engineering (MEM) Training Package to the Automotive (AUR) Training Package in order to skill their mechanical service tradespersons and technicians.”

[118] Mr Rigbye produced a copy of a document prepared by Ms Brown on 28 August 2017 titled ‘Transition of Apprenticeship Program’ (the Transition document). 69 The Transition document proposed to, “Transition our Diesel Fitters Apprenticeship program from Cert III Metals and Engineering – MEM30205 to Cert III in Mobile Plant Technology – AUR31216” and identified 11 ‘support levers’ for transitioning to the AUR qualification.

[119] During September 2017 the Respondent determined to maintain its RTO registration.

[120] Mr Rigbye produced a copy of an email dated 13 September 2017 from Mr Chris Koehn of TAFE Queensland to Ms Brown, which enclosed a spreadsheet document listing the preferred qualification outcomes of 14 large employers throughout different states or nationally for their diesel fitter employees. It is noted that 12 of the 14 employers preferred the AUR qualification. Only the Respondent and one other employer preferred the MEM30205 qualification. The two employers which preferred the MEM30205 qualification were also the only employers described as operating in Queensland. 70

[121] On 1 and 2 November 2017 Mr Rigbye attended a National Consultative Committee meeting between the Respondent, the AMWU and other relevant persons. The purpose of the meeting included commencing planning for enterprise bargaining for the Respondent’s enterprise which was anticipated to commence during 2018. During that meeting Ms Shaw gave a presentation regarding the Respondent’s consideration of the MEM30205 qualification and the AUR qualification. Mr Rigbye produced a copy of Ms Shaw’s presentation slides which were forwarded to all attendees of the meeting and which included the following statements: 71

•  “AUR Package offers simpler and direct articulation into second trades and dual trades

•  Increasing trend by large employers in mining and civil transitioning from the MEM training package to AUR to skill mechanical service tradesperson and technicians.

•  Direct career pathway into higher level skill technicians – Cert IV in Mechanical Diagnosis – AUR Cert IV offers skill sets of Advanced Hydraulics; Air Conditioning; electronic and vehicle management system diagnostics

•  In future could this career pathways support Hastings Deering for HiPOs, Dual and Second Trades for future capability development?”

Discussions with AMWU and decision to transition to the AUR qualification

[122] The relevant issues in this matter did not arise again until November 2018 when the AMWU became involved in the matter. On 9 November 2018 Mr Rigbye received a letter from Mr Rohan Webb, Queensland State Secretary of the AMWU regarding several matters that had been discussed at the National Consultative Committee meeting. Mr Webb’s letter stated relevant to the MEM and AUR training packages: 72

“Dear Mr. Peter,

Re: Competency Standards & Classification Process

Members of the AMWU at Hastings Deering (‘the Company’) have raised several concerns about the way in which the Company is proposing to undertake the reclassification process. At this stage the AMWU is seeking a written response from the Company to answer these inquiries.

…

...the AMWU has been made aware that trainers delivering the MEM package are in the process of having Recognised Prior Learning (RPL) to deliver the AUR competency standards. As you are aware, employees have raised this issue in the past and you have indicated that you were only looking into this process and that no final determination had been made. The AMWU is seeking clarification on why the Company has made the decision to RPL these trainers without first consulting with the relevant consultation committees. [sic] [emphasis retained]”

[123] On 16 November 2018 Mr Rigbye wrote to Mr Josh Blundell-Thornton of the AMWU in response to Mr Webb’s letter. Mr Rigbye’s letter relevantly stated: 73

“Dear Joshua

In reply to your correspondence of 9 November 2018, we provide the following responses against each of the respective paragraphs:

…

Hastings Deering will be welcoming 61 new apprentices in 2019. We have identified that AUR 31216 Certificate III in Mobile Plant Technology is better suited to the continuous and rapid change in technology that we are seeing in machines we sell and service. We have also identified that this package is the standard for many of our customers and competitors.

We are therefore preparing our trainers to train our 2019 apprentices in accordance with this package. There will be no involuntary change or impact to any other employee, nor will this bring about a change to the competency standards process.

In light of our proposal to hold the NCC and Competency Steering Committee meeting in February, we suggest that it may be pertinent to hold a teleconference with Employee Representatives in the coming weeks to outline this approach.”

[124] On 22 November 2018 Mr Rigbye received a letter from Mr Webb which stated relevant to the MEM and AUR training packages: 74

“Dear Mr. Peter,

Please find below the AMWU’s response to your letter dated 16 November 2018:

…

The AMWU has serious concerns with this use of the AUR training package for new apprentices. The AMWU does not agree with your assertions that the AUR is the training standard for your customers and competitors. Moreover, the AMWU notes that no consultation has occurred about this major workplace change. The AMWU is currently reviewing this matter and will take appropriate action once the review of this decision is completed.

…

For clarity, at this time the AMWU is reviewing Hastings Deering’s decision to introduce the AUR training package for apprentices and will advise Hastings of its position on this decision in due course. [sic]”

[125] On 30 November 2018 Mr Rigbye wrote to Mr Josh Blundell-Thornton of the AMWU in response to Mr Webb’s second letter. Mr Rigbye’s letter relevantly stated: 75

“We are responding to your letter of 22 November 2018.

…

Regarding our preparation of our trainers to deliver the proposed change to the training package for apprentices commencing in 2019, we remain open to receiving feedback from the AMWU on this proposal. You may recall that we have been proposing this change, since first presenting this to the AMWU and employee representatives at the National Consultative Committee in November 2017. I have enclosed that presentation for your reference, which was also emailed to all committee members on 3 November 2017.

We request that the AMWU explain the reason for having ‘serious concerns’ with the use of the AUR training package and further explain why it rejects our evidence that this training package is used by many of our customers and competitors. Please provide this by 7 December 2018 and be in a position to discuss the AMWU’s position during the allocated time at the Competency Steering Committee meeting.”

[126] On 7 December 2018 Mr Rigbye received a letter from Mr Webb outlining the AMWU’s concerns regarding the AUR training package, and stating: 76

“Dear Mr. Peter.

I write in response to your correspondence dated 30 November 2018.

The below list identifies some of the reasons why the AMWU has serious concerns about Hastings Deering’s plan to have their 2019 apprentices trained under the AUR training package, instead of the MEM training package.

1. Inconsistent with Competitors and Clients

Through previous discussion on this matter, Hastings Deering has consistently stated that one of the main reasons for this change in apprentice training package was to bring Hastings Deering inline with competitors and clients. In the 2017 presentation, Hastings Deering has claimed that several other companies are using the AUR Training Package.

The AMWU has undertaken its own research on this claim and has found inconsistencies with Hastings Deering’s claim. The AMWU is aware that one of your main competitors, Komatsu, still use the MEM Training Package, and at least some of Hastings Deering client’s, Batch fire Resources at Callide Mine and BMA Goonyella, still use the MEM Training Package.

Based on this information, the AMWU has concerns that this move by Hastings Deering to the AUR Training Package is inconsistent with competitors and clients. This move to the AUR Training Package could place these apprentices outside the industry standard training package and disadvantage them.

2. Difficulty in mentoring apprentices through AUR

From previous correspondence, it is understood that the apprentice trainers at Hastings Deering have been trained in the ability to provide the AUR Training Package. However, the AMWU has concerns with how these apprentices will receive appropriate on the job training from the trades people at Hastings Deering. The current qualified trades people at Hastings Deering would have been trained in the MEM Training Package. This will make it difficult for these trades people to mentor and guide these apprentices as the apprentices will be undertaking a training plan that these trades people have no experience in. This could lead to inconsistencies and gaps in the on the job training and mentoring provided to these apprentices.

3. Inconsistency with existing competency standards

The concerns in point 2 flow on to issues surrounding these apprentices once they have finished the apprenticeship. At the completion of their apprentices, these trades people must engage in competency standard and classification process that is underpinned by the MEM, not AUR. This could result in difficulty for these newly qualified trades people being able to progress their career through Hastings Deering. Hastings Deering will then have two (2) distinct groups of employees, with different qualifications and training knowledge, trying to use the same competency and reclassification system. This will generate significant disfunction and limit both employee groups in their career progression.

4. Lesser vocational outcomes

The AMWU is aware that Hastings Deering is advertising the fact that the 2019 apprentices will be undertaking apprenticeships to become Diesel Fitters, Boilermakers and Fitter Machinists. In the slideshow from 2017, Hastings Deering states that the intention is to use the AUR31216 Mobile plant Training Package. This qualification does not provide these apprentices with the ability to have vocational recognition as a Diesel Fitter. Only the MEM Training Package provides the ability for an apprentice to become a recognised Diesel Fitter.

This is the same for Boilermakers and Fitter Machinist. The AMWU has serious concerns with these apprentices will be undertaking an apprenticeship that they believe will qualify them as a Diesel Fitter or Boilermaker, yet this will not be correct.

In addition, the AMWU is aware that on Tuesday 5 December 2018 the latest version of the MEM training package was endorsed by the Australian Industry and Skills Committee (‘AISC’). In this latest version there has been additional competencies created in the Diesel Fitting field. The new package has created the ability to have a dedicated Certificate IV in Diesel Fitting which has new higher-level diesel fitting competencies available. This would indicate that the MEM training package is continuing to evolve and can provide improved competencies for one of Hastings Deering’s most crucial trades, this being Diesel Fitting.

The AMWU is willing to discuss these concerns further at the Competency Steering Committee on Monday 17 December 2017. In the interim, the AMWU is seeking a written response to the above point by 4:00pm Thursday 13 December 2018. [sic]”

[127] On 3 December 2018 Mr Rigbye emailed several Respondent employees, the AMWU and employee representatives inviting them to attend a Competency Steering Committee meeting on 17 December 2018. Mr Rigbye provided an agenda for the meeting, which included an item to review the proposed change from the MEM training package to the AUR training package for new apprentices. 77

[128] From 5–7 December 2018 representatives of the AMWU lawfully entered several of the Respondent’s workplaces in Mackay, QLD. On 7 December 2019 Mr Rigbye was advised that Mr Jason Lund, a representative of the AMWU had, during one of those visits, advised the Respondent’s employees that the 2019 apprentices would not receive a nationally recognised certificate of competency. On 10 December 2018 Mr Rigbye wrote to Mr Blundell-Thornton and Mr Lund and stated that the Respondent considered those statements to be false and misleading and requested the AMWU to retract those statements. On 12 December 2018 Mr Blundell-Thornton emailed Mr Rigbye and stated that the AMWU would ensure that no false or misleading information was distributed about the proposed change to the AUR training package.

‘Consistent with’ outcomes established for the vocation and classification structure under the Manufacturing Award

[182] The Respondent submitted in the alternative that the change or proposed change to the AUR qualification did or would not contravene clause 15.4 of the Manufacturing Award because, in accordance with clause 15.4, the outcomes specified in the AUR qualification and AUR training package are “…consistent with that established for the vocation in the training package determine from time to time by Manufacturing Skills Australia or its successors and endorsed by the National Skills Standards Council or its successor.”

[183] The Respondent submitted that the ordinary meaning of the words ‘is consistent with’ is for something to be accordant, compatible, not self-opposed or not contradictory, and does not require something to be equivalent or identical. 122 The Respondent noted that clause 15.4 lists some apprenticeships that fall within clause 15.4 and states, “…Such apprenticeships include but are not limited to the following trades: Engineering Tradesperson (Mechanical)…”.

[184] The MEM31419 qualification is contained within the MEM training package determined by the MEM IRC, which the Respondent agrees is a successor to MSA. The Respondent relied upon Mr Torino’s evidence that the AUR qualification’s units of competency meet and exceed the units of competency provided by the MEM31419 qualification and that he would consider completion of units within the AUR qualification as satisfying recognised prior learning going towards completion of the MEM31419 qualification. Further, the Respondent submitted that the words “...include but are not limited to…” within clause 15.4 favour the interpretation that clause 15.4 was not intended to capture only the apprenticeships listed within that clause but any apprenticeship that provides a qualification outcome consistent with that established for the vocation, whether such apprenticeship is found in the MEM training package or some other training package, such as the AUR training package. The Respondent submitted that the AUR qualification is consistent with the qualification outcome established for the vocation, being the MEM31419 qualification. 123

[185] The Respondent disagreed with the Applicants’ submissions that the correct interpretation of clause 15.4 of the Manufacturing Award requires that a qualification outcome must align with the classification structure set out in the Manufacturing Award, which contains the relevant ‘vocations’ for the purposes of clause 15.4.

[186] The Respondent submitted that ‘vocation’ is not defined within the Manufacturing Award and must be given its ordinary meaning, and relied on the following definitions: 124

“noun 1. A particular occupation, business, or profession; a trade or calling. 2. A calling or summons, as to a particular activity or career.”

[187] The Respondent submitted that the ordinary meaning of ‘vocation’ refers to an occupation or trade and as ‘vocation’ appears within clause 15.4 of the Manufacturing Award it does not refer only to the classifications set out within the Manufacturing Award. The Respondent submitted that on a correct interpretation of clause 15.4, all that is required is that a qualification outcome specified in an apprentice’s training contract is consistent with that established for their occupation or trade. The Respondent submitted that the relevant apprentices’ trade is a Mobile Plant Mechanic, and the AUR qualification is consistent with that occupation. 125

[188] The Respondent submitted that even if, for argument’s sake, clause 15.4 of the Manufacturing Award expressly referred to the classifications set out in the Manufacturing Award, then the AUR qualification is equivalent to the minimum training requirements specified for the relevant classification, the ‘C10 – Engineering/Manufacturing Tradesperson – Level I’. The minimum training requirement for that classification is: 126

“Recognised Trade Certificate, or Certificate III in Engineering—Mechanical Trade, or Certificate III in Engineering—Fabrication Trade, or Certificate III in Engineering—Electrical/Electronic Trade, or equivalent”.

[189] The Respondent noted that the phrase ‘or equivalent’ is defined to mean: 127

•  “any training which a registered provider (e.g. TAFE), or State recognition authority recognises as equivalent to a qualification which Manufacturing Skills Australia recognises for this level, which can include advanced standing through recognition of prior learning and/or overseas qualifications; or

•  where competencies meet the requirements set out in the Manufacturing Skills Australia competency standards in accordance with the National Metal and Engineering Competency Standards Implementation Guide.”

[190] The Respondent submitted it is a registered provider and it recognises that training received under the AUR qualification meets the competency requirements of the MEM31419 qualification and the minimum training requirements for the ‘C10 – Engineering/Manufacturing Tradesperson – Level I’ classification are capable of being met by attaining the AUR qualification. 128

[191] Further, the Respondent submitted that the Applicants’ submissions regarding the Manufacturing Award’s classification structure are irrelevant in any case because the Agreement sets out its own classification structure. Clause 1.3(b) of the Agreement states, “Where there is an inconsistency between the terms of this Agreement and the Award, this Agreement prevails. For the avoidance of doubt and except where otherwise provided, where this Agreement provides for a particular term or condition of employment, it covers the field with respect to that particular term or condition of employment and the Award provision will not apply”. The Respondent submitted that the classification structure set out in Appendix 1 to the Agreement ‘covers the field’ and therefore the Manufacturing Award’s classification structure does not apply to the Respondent’s enterprise and should not be considered in determining these matters. 129

‘Diesel Fitter’ restricted calling

[192] The Respondent noted Mr Curry’s evidence regarding the restricted calling of ‘Diesel Fitter’ within Queensland. The Respondent noted that s.64(2) of the Further Education and Training Act 2014 (Qld) states:

“64 Declaration of restricted calling

(1) The chief executive may, by notice published on the department’s website, declare a calling to be a restricted calling.

(2) An employer must not employ a young person in a restricted calling unless the young person –

(a) has completed a qualification or statement of attainment relevant to the calling; or

(b) is employed by the employer as an apprentice or trainee in the calling under a registered training contract.

…”

[193] The Respondent submitted that the above section does not prevent an employer employing a person in the occupation of ‘Diesel Fitter’ if they do not hold the MEM31419 qualification. Further, the Respondent submitted that each of the relevant first-year apprentices upon obtaining the AUR qualification will be employed in a different restricted calling, that of an ‘Automotive Mechanic (Heavy Vehicle Mobile Plant)’ , and the qualification required to be employed in that restricted calling is the AUR qualification. 130

Industry practice to provide AUR qualification

[194] The Respondent noted Mr Rigbye’s evidence set out above at [117] – [121] that several other large employers within the Respondent’s industry had already transitioned their new apprentices to the AUR qualification. Those employers included customers and competitors of the Respondent, as well as employers in different States authorised to deal with ‘Caterpillar’ heavy machinery. The Respondent submitted that several of those other employers also incorporated the Manufacturing Award into their respective enterprise agreements, and during the hearing produced extracts from several of those enterprise agreements. The Respondent submitted that I should give weight to the document of Mr Koehn produced by Mr Rigbye describing other large employers within the Respondent’s industry that use the AUR qualification. 131

[195] The Respondent submitted that were I to accept the Applicants’ submissions, employers would be limited from engaging apprentices under training contracts for any qualification outcome provided by the AUR training package, which would reduce apprenticeship opportunities and would represent ‘an absurd outcome’.

[196] The Respondent submitted that the change or proposed change to the AUR qualification did not or would not contravene clause 15.4 of the Manufacturing Award and the question for arbitration should be answered in the negative.

Consideration

Jurisdictional objection to Mr Hawke’s application

[197] Whether there is jurisdiction for Mr Hawke to bring his application rests on whether he is an employee concerned about the changes made by the Respondent to its first year apprentice employees in 2019.

[198] I accept that Mr Hawke has an interest in the matter for the reasons stated by him at [14]. His interest is enlivened because of fears that he has about what this might mean in the future about his calling, his requirement to train the apprentices in an alternative apprenticeship, and his duties as an AMWU delegate.

[199] In my view, to be an employee concerned, it is not necessary for the employee to be demonstrably materially affected; I do not think it is necessary to take it as far as that. I do, however, find that being an employee concerned requires more than an interest.

[200] In the situation where refurbishment of a female amenities block was being undertaken, would the Commission accept that a male employee, who would not use the female amenities, be an employee concerned? I do not accept that in such a scenario, a male employee would be accepted as an employee concerned, even if the employee is a union delegate purportedly acting on behalf of other members directly affected.

[201] I consider that there has to be something greater than an interest to be an employee concerned. It need be some impact on the employee, but I do not consider that it is necessary to demonstrate a material effect on the employee.

[202] In the case of Mr Hawke, there is no evidence before the Commission that apprentices receiving the AUR qualification will diminish the standing of the calling of a diesel fitter. In fact, Mr Curry denied that dilution of the MEM qualifications was a concern. Mr Hawke stated that he is concerned to be training apprentices in a different apprenticeship than his own, but I do not accept that as a valid concern to enliven the Commission’s jurisdiction as I do not accept that there is any impact on him.

[203] As to whether he is an employee concerned by virtue of him being an elected representative of employees, I do not find that he is an employee concerned, particularly when three directly affected employees have made an application over the same issue. It is not necessary, in the present matter to determine if Mr Hawke would have jurisdiction in the absence of the three other Applicants.

[204] I do not find that Mr Hawke has jurisdiction to bring his application for determination by the Commission.

The applicable question for arbitration

[205] Having regard to the matters put by the parties, I have determined that the applicable question for arbitration is:

“Does the change from the MEM qualification to the AUR qualification, and the training associated with such a change contravene clause 15.4 of the Manufacturing and Associated Industries and Occupations Award 2010, incorporated by virtue of Clause 1.3 of the Hastings Deering (Australia) Limited Enterprise Agreement 2018?”

The successor/s to MSA

[206] The Full Bench of the Commission in Berri summarised the principles that must be observed in interpreting the meaning of terms in enterprise agreements. In these matters, it is not contested that clause 1.3 of the Agreement has the effect of incorporating the Manufacturing Award into the Agreement, and it is clause 15.4 of the Manufacturing Award that requires interpretation.

[207] The following observations of Madgwick J in Kucks v CSR are relevant to these matters: 132

“It is trite that narrow or pedantic approaches to the interpretation of an award are misplaced. The search is for the meaning intended by the framer(s) of the document, bearing in mind that such framer(s) were likely of a practical bent of mind: they may well have been more concerned with expressing an intention in ways likely to have been understood in the context of the relevant industry and industrial relations environment than with legal niceties or jargon. Thus, for example, it is justifiable to read the award to give effect to its evident purposes, having regard to such context, despite mere inconsistencies or infelicities of expression which might tend to some other reading. And meanings which avoid inconvenience or injustice may reasonably be strained for. For reasons such as these, expressions which have been held in the case of other instruments to have been used to mean particular things may sensibly and properly be held to mean something else in the document at hand.

But the task remains one of interpreting a document produced by another or others. A court is not free to give effect to some anteriorly derived notion of what would be fair or just, regardless of what has been written into the award. Deciding what an existing award means is a process quite different from deciding, as an arbitral body does, what might fairly be put into an award. So, for example, ordinary or well-understood words are in general to be accorded their ordinary or usual meaning.”

[208] I do not consider it necessary to look at earlier award clauses to understand the history of how the present award clause came about. I do not accept that there is necessary ambiguity within clause 15.4 of the Manufacturing Award to do so.

[209] It is uncontested that the MEM IRC is a successor to MSA. Clause 15.4 of the Manufacturing Award relevant to successors of MSA notes in the plural, meaning there could be more than one successor of MSA.

[210] I thank the parties for their thorough chronology of the various bodies that have been looking after the manufacturing and automotive industries in the last two decades. On the information before the Commission, it appears that at the time the Manufacturing Award came into force from 1 January 2010, MSA had responsibility for the automotive industry. MSA maintained and developed the AUR05 Automotive Industry Retail Service and Repair training packages.

[211] On a recommendation accepted by the Federal Government and by MSA, ASA became a wholly-owned subsidiary of MSA, and later from 1 August 2014, ASA became an ISC in its own right.

[212] I find that from 1 August 2014 MSA had no responsibility over the automotive industry. On the evidence before the Commission, ASA became an ISC in its own right with responsibility for determining training packages for the automotive industry. It is at this point the oversight or governance between the two industries of manufacturing and automotive industries was directly severed.

[213] To be a successor of a body or a person, it is true that the original must not exist in its substantive or authoritative form. The earlier body or person must no longer hold a title in current terms, or the body not have the earlier powers it once had. There must have been a succession.

[214] For this reason, and because of the severance of ASA, I do not accept that from 1 August 2014 ASA became a successor of MSA. I do not accept the Respondent’s submissions that ASA became a successor of MSA by descent and continued to perform some of MSA’s former functions. Further, I do not accept that any of the five automotive IRC’s, administered by PwC Skills for Australia became a successor of MSA.

[215] I find that MEM IRC is the only successor of MSA.

Is the AUR qualification consistent with the MEM31419 qualification?

[216] Having found that ASA and the subsequent automotive IRC’s did not become a successor of MSA, it is necessary to determine, pursuant to clause 15.4 of the Manufacturing Award if the qualification outcome, being the AUR qualification is consistent with the MEM31419 qualification having regard to the vocation.

[217] I have not had regard to any of the letters sent between the Respondent and the AMWU citing their respective positions. It is a matter for the Commission to determine if the AUR qualification is consistent with the MEM31419 qualification without regard for the legitimate and partisan communications sent between the parties.

[218] Further, I have not been influenced by the fact that many other large companies in the industry and competitors of the Respondent have decided to use the AUR qualification. It is clearly a matter for each of those employers, and it is not necessary for the Commission to determine the legitimacy of each of those employers to see if they are undertaking that course of action as a result of terms within their respective enterprise agreements which do not adopt clause 15.4 of the Manufacturing Award, or if they are doing so in the same manner as the Respondent.

[219] I have not had any regard to the logistics of the Respondent with respect to how it has commenced training apprentices in the AUR qualification and the money it has expended doing so. Nor have I had regard to the evidence and submissions of the Respondent as to what it would be required to do in the event the Commission is not with the Respondent in this matter.

[220] The Applicants contended that if I determined that the automotive IRC’s are not successors to MSA, which I have so done, the Respondent’s argument that the AUR qualification is consistent with the MEM31419 qualification must fail essentially because the AUR training package was developed for a different industry than that covered by the Manufacturing Award. I do not agree. The relevant clause would not provide an alternative route, and use expressions such as “include but not limited to” and “consistent with” if that was the case. It would use expressly closed wording if that was the case.

[221] The qualification achieved in completing the AUR qualification path is a mobile plant technician or mobile plant mechanic. The MEM qualification provides for qualified tradespersons to perform work on both fixed and mobile plant, however no evidence was led on the propensity of work on fixed plant. Further, I note the title of the MEM qualification, providing for both fixed and mobile plant was only recently established. The Respondent’s evidence was enthusiastic as to the benefit to employees working on mobile plant and the potential opportunities to broaden in a shorter period of time into air conditioning trades. 133

[222] I find that the term “consistent with” does not mean that it needs to be identical to or even equivalent to. I find that it requires the two matters being compared to be compatible or similar to each other. I find, however, that the term “consistent with” can include the second item being compared to be better than the first item. Simply because it might be considered to be better does not mean that it cannot be consistent with the first item.

[223] I accept Mr Torino’s evidence that apprentices undertaking the AUR qualification are tasked with more critical thinking, and it better prepares apprentices to adapt skills to different applications. Where at [154] a unit within the MEM31419 qualification teaches an apprentice to dismantle, clean and assess parts, a unit within the AUR qualification at [155] requires the apprentice to apply knowledge and demonstrate how to fulfil the relatively complex task.

[224] It takes approximately 960 hours to fulfil the training requirements of the MEM qualification, and approximately 1200 – 1400 hours to fulfil the training requirements of the AUR qualifications.

[225] In questioning from me, Mr Curry held concerns that apprentices would be trained longer but not necessarily rewarded in the classification upon being qualified. 134 The following was discussed:135

Commissioner:

“But it's not the case that the union has the concern that the AUR classification provides less competency than the MEM.  It in fact provides more competency?

Curry:

That goes to the question of whether it's consistent and yes, it is.  They are not the same and one contains, on the face of it, and on the submissions, a superior outcome when it should be consistent.

…

Commissioner:

…do you agree that the AUR provides a superior outcome?

Curry:

I don't have the technical knowledge of the skills contained in each competency to make that judgement.  But based on those assertions and the nominal hours and why would you train people in 300 or 400 hours more training if you're not looking to get more knowledge and skill?  So I think these are reasonable conclusions that I've drawn.  Others will decide whether they matter or not.  So I don't have the technical ability to do the unit-by-unit comparison and you couldn't do a unit-by-unit comparison anyway.”

[226] I understand from Mr Curry’s evidence above that he doesn’t necessarily agree that the AUR is a superior outcome, but he understands it to be the Respondent’s contention that it is. He held concerns with respect to an employer requiring 300 – 400 hours of training greater than that required in the MEM qualification, yet the employee at the conclusion of the training being paid the equivalent of a C10 in the Manufacturing Award.

[227] It was submitted by the Applicants at [97] that an employer could use the same argument as the Respondent and train people in motor sport technology or automotive sales. In my respectful view, those vocations are far too remote to be consistent with a diesel fitter, and the Applicants’ submissions fail on this point.

[228] I have had particular regard to the comparison document in Mr Torino’s evidence, where he described like-for-like units between the AUR and MEM31419 training requirements. 136 The document assists with each of the units and it is clear on a very large number of titles of units only, the units are very comparable. Where there is reference to following safe working practices in the automotive industry as opposed to working safely and effectively in manufacturing and engineering, I do not consider that to be a significant difference. The notes to assist with this unit explain that 80% of the MEM unit is concerned with quality systems, planning own work and working with others. Mr Torino’s evidence is that approximately 20% of the unit deals with safety issues.

[229] Repeatedly throughout the document, the notes provided by Mr Torino demonstrate that the AUR units provide greater training that the MEM units. For example:

“AUR – Carry out oxyacetylene welding, thermal heating and cutting

MEM – Perform manual heating and thermal cutting

Notes: AUR includes oxyacetylene welding. MEM does not. AUR prescribes 4 x welds, 1 x heating and 1 x cutting. MEM prescribes 2 x heating and cutting tasks”

[230] There are a significant number of examples within the document demonstrating very comparable unit titles and Mr Torino’s uncontested evidence as to the differences between the two units and almost always, the greater application of skills and knowledge within the AUR unit.

[231] On the evidence before the Commission relevant to the hours of training required across the two qualifications, and having regard to the various modules of training, on those points alone, I am satisfied that the AUR qualification is consistent with, and in all likelihood, better for the indentured employee than the MEM qualification. It matters not whether it is marginally better, or substantially better for the employee, if it all. What I consider to be most important is that the AUR qualification is not sub-standard when compared with the MEM qualification. Being as good as or perhaps even better is, in my view, equal to “consistent with”. Respectfully I do not subscribe to Mr Curry’s view that because the employee completes the training with substantially more hours of training when they might receive the same classification result of C10, there should be some resistance to embrace the greater training provided under the AUR qualification.

[232] As I understand it, with additional modules of training completed under the AUR qualification, it has the potential to push the qualified employee closer to a higher classification, in time, dependent upon the industrial terms the employee is employed under at the time with the relevant employee’s employer.

[233] The Applicants submitted that because the MEM qualifications squarely match up with the classifications within the Manufacturing Award, and the AUR qualifications do not, the Commission should find the classification structure within the Manufacturing Award is intrinsic with MSA and the framers of clause 15.4 of the Manufacturing Award. I find that the question for clause 15.4 of the Manufacturing Award is not relevant to the Respondent’s classification structure within the Respondent’s Agreement and it need not be considered.

[234] Given the expression within clause 15.4 relevant to the Engineering Tradesperson qualifications being included but not limited to the qualifications listed, it cannot be said that unless the apprentice receives the nominated qualification, clause 15.4 is not met. The clause is not exhaustive; it is far from it.

[235] I note that the Manufacturing Award stipulates the C10 classification requiring the following minimum training requirement: 137

“Recognised Trade Certificate, or Certificate III in Engineering—Mechanical Trade, or Certificate III in Engineering—Fabrication Trade, or Certificate III in Engineering—Electrical/Electronic Trade, or equivalent.” (my emphasis)

[236] I am satisfied that the term “or equivalent” is expansive and can and does include the AUR qualification – Certificate III in Mobile Plant Technology. The vocation of diesel fitter as opposed to mobile plant technician or mobile plant mechanic is not so extreme; they can each be and they are a C10 classification on completion of the qualification. I do not support the Applicants’ submission that because it is an automotive qualification that is achieved, and an automotive-titled vocation that it doesn’t have a place in the Manufacturing Award.

[237] Relevant to the concern that the Respondent’s employees will not be able to be called diesel fitters upon achieving their AUR qualification, I note that it is not necessary to determine whether a failure to hold the MEM31419 qualification will prevent an employee from being called a diesel fitter as the Respondent has indicated that the relevant first year apprentices, once qualified, will be employed in a different restricted calling, that of an Automotive Mechanic (Heavy Vehicle Mobile Plant).

Conclusion

[238] The question for arbitration is:

“Does the change from the MEM qualification to the AUR qualification, and the training associated with such a change contravene clause 15.4 of the Manufacturing and Associated Industries and Occupations Award 2010, incorporated by virtue of Clause 1.3 of the Hastings Deering (Australia) Limited Enterprise Agreement 2018?”

[239] In accordance with my reasons above, I find that the question is answered in the negative.

[240] The disputes as notified are resolved in accordance with this decision.

COMMISSIONER

Appearances:

P Turner, Maurice Blackburn Lawyers, for the applicant.

N Le Mare, Corrs Chambers Westgarth, for the respondent.

Hearing details:

2019.

Brisbane.

August 23.

Final written submissions:

Applicant, 20 August 2019.

Respondent, 16 August 2019.

Printed by authority of the Commonwealth Government Printer

<PR714525>

 1   Hastings Deering (Australia) Limited T/A Hastings Deering [2019] FWCA 1427.

 2   Ibid.

 3   [2017] FWCFB 3005.

 4   Ibid, [114].

 5   Statement of Mr Jesse Hawke, 5 August 2019, Exhibit A2, [6].

 6   Statement of Mr Peter Rigbye, 19 August 2019, Exhibit R1, [3] – [5], Annexure PR1.

 7   Statement of Mr Nicholas Torino, 15 August 2019, Exhibit R2.

 8   PN107 – PN108.

 9   PN103 – PN108; PN128.

 10   Applicants’ outline of submissions in reply. 20 August 2019, [18] – [21]; PN86 – PN118.

 11 Statement of Mr Ian Curry dated 5 August 2019, Exhibit A6, [4] – [62]; Respondent’s outline of submissions, 16 August 2019, [30] – [53].

 12   Statement of Ms Julia Scott, 16 August 2019, Exhibit R3, Annexure JS1.

 13   Statement of Mr Ian Curry, 5 August 2019, Exhibit A6, [21] – [23]; PN916 – PN940.

 14 Ibid, [42] – [44].

 15   Statement of Mr Jesse Hawke, 5 August 2019, Exhibit A2.

 16   Statement of Mr Jacob Price, 5 August 2019, Exhibit A3; Statement of Mr Ben Hinchliffe, 5 August 2019, Exhibit A5; Statement of Ms Nicole Krause, 5 August 2019, Exhibit A4.

 17  Transcript of hearing, 23 August 2019, PN303 – PN304; PN355 – PN358; PN407 – PN409.

 18   PN359 – PN360; PN409 – PN410.

 19   PN305 – PN310.

 20  Statement of Mr Ian Curry, 5 August 2019, Exhibit A6; Statement in Reply of Mr Ian Curry, 20 August 2019, Exhibit A7.

 21 Statement of Mr Ian Curry, 5 August 2019, Exhibit A6, [4] – [5].

 22 Ibid, [32] – [35].

 23   Manufacturing and Associated Industries and Occupations Award 2010 [MA000010], Schedule B, B.2.

 24   Ibid, [46] – [47]; Manufacturing and Associated Industries and Occupations Award 2010 [MA000010], 15.4, Schedule B, B.2.1, B.3.7.

 25 Statement of Mr Ian Curry, 5 August 2019, Exhibit A6, [67] – [71].

 26   ‘Engineering Mechanical Trade (Maintenance – Diesel Fitting)’, Department of Employment, Small Business and Training, Queensland Government, last updated 5 August 2019.

 27   Statement of Mr Ian Curry, 5 August 2019, Exhibit A6, Annexure IC4.

 28 Ibid, [72] – [75].

 29   Manufacturing and Associated Industries and Occupations Award 2010 [MA000010], 24.3(b)(v).

 30   Note: Clause 28.1 of the Manufacturing Award refers to the ‘Manufacturing Skills Council’, which Mr Curry considered to be an erroneous reference to the MISC.

 31   PN452 – PN463.

 32   PN478 – PN487.

 33   PN488 – PN490.

 34   PN508 – PN516.

 35   PN523 – PN524.

 36   Manufacturing and Associated Industries and Occupations Award 2010 [MA000010], 24.3(b)(v).

 37   Ibid, 24.3(b)(v), Schedule B, B.2.1; PN359.

 38   PN516 – PN520; PN529 – 539.

 39   Kucks v CSR Limited (1996) 66 IR 182, 184.

 40   PN1200 – PN1204.

 41   Re Application by Metal Trades Industry Association of Australia to vary Metal Industry Award 1984 Pt 1, Print P9311.

 42   Ibid.

 43   PR955055.

 44 Ibid, [20] – [21].

 45   PR985120.

 46   PN148.

 47   Manufacturing and Associated Industries and Occupations Award 2010 [MA000010], 15.5(b), (c), 15.8, 17.2(a)(v), 24.3(b)(i), (iv), Schedule B, B.3.1(b).

 48   Ibid, 15.5(b), (c),

 49   Ibid, 15.8.

 50   Ibid, 17.2(a)(v).

 51   Ibid, Schedule B, B.3.1(b).

 52   PN144 – PN145.

 53   PN177 – PN179.

 54   PN1220 – PN1221.

 55   PN181 – PN183.

 56   PN185 – PN189.

 57   Metal, Engineering and Associated Industries Award 1998, 4.2.6(c)(i).

 58   PN1222 – PN1228.

 59   PN190 – PN192.

 60   Statement in Reply of Mr Ian Curry, 20 August 2019, Exhibit A7, [4(n)].

 61   PN196 – PN197.

 62   PN1228 – PN1235.

 63   Statement of Ms Julia Scott, 16 August 2019, Exhibit R3, Annexure JS15, ‘New Arrangements for Training Product Development for Australian Industry”, Department of Education and Training, Australian Government, undated.

 64   PN1205 – PN1213.

 65   PN983 – PN1041.

 66   Statement of Ms Julia Scott, 16 August 2019, Exhibit R3.

 67   Statement of Mr Peter Rigbye, 19 August 2019, Exhibit R1.

 68   Ibid, Annexure PR3.

 69   Ibid, Annexure PR4.

 70   Ibid, [19]. Annexure PR5, PR6.

 71   Ibid, Annexure PR9.

 72   Ibid, Annexure PR11.

 73   Ibid, Annexure PR12.

 74   Ibid, PR13.

 75   Ibid, PR14.

 76   Ibid. PR17.

 77   Ibid, [33] – [35]; Annexure PR15, PR16.

 78   Ibid, [40].

 79 Ibid, [48] – [49].

 80 Ibid, [50] – [51].

 81   Ibid, Annexure PR26.

 82   Ibid, [56] – [57], Annexure PR27, PR28, PR29.

 83   Ibid, PR30.

 84   Ibid, PR32.

 85   Ibid PR33.

 86 Ibid, [65] – [75].

 87 Ibid, [76] – [79].

 88   PN592 – PN599.

 89   Statement of Mr Peter Rigbye, 19 August 2019, Exhibit R1, Annexure PR4.

 90   PN600 – PN626.

 91   PN635 – PN647.

 92   PN666 – PN670.

 93 Statement of Mr Nicholas Torino, 15 August 2019, Exhibit R2, [3] –[7].

 94   Ibid, [13].

 95   Ibid, Annexure NT1.

 96 Ibid, [14] – [17], [24].

 97   Ibid, [18], NT2.

 98   Ibid, [20] – [21], NT3.

 99   Ibid, [23].

 100   Ibid, [25].

 101   PN713 – PN723.

 102   PN807 – PN809.

 103   PN724 – PN746.

 104   PN747 – PN769.

 105   PN770 – PN781.

 106   PN782 – PN793.

 107   PN794 - PN795; PN806.

 108   PN796 – PN804; Statement of Mr Nicholas Torino, 15 August 2019, Exhibit R2, NT1.

 109   PN817 – PN837.

 110   PN839 – PN843.

 111   PN813 – PN815.

 112 Respondent’s outline of submissions, 16 August 2019, [24] – [29].

 113   Macquarie Dictionary (online at 16 August 2019), ‘successor’ 1, 2.

 114   Ibid, (online at 16 August 2019), ‘succeeds’, 5, 6, 7, 8.

 115   Respondent’s outline of submissions, 16 August 2019, [34].

 116   Statement of Ms Julia Scott, 16 August 2019, Exhibit R3, Annexure JS12.

 117   PN887 – PN941.

 118 Respondent’s outline of submissions, 16 August 2019, [45] – [50].

 119   Ibid, [51].

 120   PN1105 – PN1110.

 121   PN1123 – PN1127.

 122   PN1139 – PN1140.

 123   Respondent’s outline of submissions, 16 August 2019, [54] – [58]; PN1137 – PN1157.

 124   Macquarie Dictionary (online at 16 August 2019), ‘vocation’ 1, 2.

 125 Respondent’s outline of submissions, 16 August 2019, [63] – [64].

 126   Manufacturing and Associated Industries and Occupations Award 2010 [MA000010], Schedule B, B.2.1, Classification level C10, Engineering/Manufacturing Tradesperson – Level I, Minimum training requirement.

 127   Ibid, Schedule B, B.3.1(b)(i).

 128   PN1065 – PN1085.

 129   Respondent’s outline of submissions, 16 August 2019, [69] – [72]; PN1086 – PN1104.

 130   Statement of Ms Julia Scott, 16 August 2019, Exhibit R3, Annexure JS26.

 131   PN964 – PN1041.

 132   Kucks v CSR Limited (1996) 66 IR 182, 184.

 133   See for example statement of Mr Peter Rigbye, 19 August 2019, Exhibit R1, [22], Annexure PR3, PR4, PR9.

 134   PN521.

 135   PN564 – PN567.

 136   Statement of Mr Nicholas Torino, 15 August 2019, Exhibit R2, NT1.

 137   Manufacturing and Associated Industries and Occupations Award 2010 [MA000010], Schedule B, B.2.1.