Tyco Australia Pty Limited
[2011] FWA 3783
•16 JUNE 2011
[2011] FWA 3783 |
|
DECISION |
Fair Work Act 2009
s.158 - Application to vary or revoke a modern award
Tyco Australia Pty Limited
(AM2011/13)
Plumbing industry | |
SENIOR DEPUTY PRESIDENT WATSON | MELBOURNE, 16 JUNE 2011 |
Application to vary Schedule B (Classification Definitions) of the Plumbing and Fire Sprinklers Award 2010 - employee engaged primarily as a Sprinkler systems tester.
Introduction
[1] On 23 February 2011, Tyco Australia Pty Limited (Tyco) made an application under s.158 of the Fair Work Act 2009 (the Act)to vary Schedule B (Classification Definitions) of the Plumbing and Fire Sprinklers Award 2010 1 (the modern award).
[2] The application was made with the support of:
- Chubb Fire and Security Pty Limited;
- Tyco (trading as Wormald);
- the National Fire Industry Association; and
- the Fire Protection Association of Australia.
[3] Given this support, reference to Tyco will incorporate those firms and Associations supporting the application and submissions of Tyco.
[4] The purpose of the application is to:
“(a) ensure that any employee engaged primarily as a Sprinkler systems tester is included within the coverage of the Award; and
(b) ensure that the Award contains classifications that appropriately deal with the circumstances of Sprinkler systems testers who have attained the qualifications necessary to work on an unsupervised basis, and those who have not.”
[5] Tyco submitted that Sprinkler systems testers are a group of employees whose function is required by employers in the industry - that is to say, employers in the industry require the services of persons who have certain qualifications and who are engaged primarily (or exclusively) in the testing of fire sprinkler systems rather than the installation and maintenance of those systems. It submitted that the need for such specialised employees is expected to increase as a consequence of the implementation of national fire safety regulations and in particular national licensing requirements, through a Council of Australian Governments (COAG) process, which will affect Sprinkler systems testers and which are mooted for implementation in the near future.
[6] Tyco submitted that this absence is inconsistent with the modern awards objective because:
“(a) it may lead to the conclusion that persons primarily engaged as Sprinkler Systems Testers do not fall within the coverage of the Award, which is likely to offend section 134(1)(d) and (g) of the modern award objectives stated in the Act; and
(b) Sprinkler Systems Testers are recognised by the Award, albeit within a classification that includes other role features, which would also be inconsistent with sections 134(1)(d) and (g) of the modern award objectives stated in the Act.”
[7] The variation proposed sought to add two new qualification definitions:
“B.1.5 Qualified Sprinkler Systems Tester means an employee primarily engaged in the testing of sprinkler systems and who:
(a) holds a Certificate III qualification recognised by the Australian Qualifications Framework; and
(b) works without supervision; and
(c) has completed the following modules;
(i) CPCPFS3020 - Conduct basic functional testing of water-based fire-suppression systems;
(ii) CPCPFS3021 - Inspect and test fire pumpsets; and
B.1.8 Sprinkler Systems Tester means an employee primarily engaged in the testing of sprinkler systems and who:
(a) holds a Certificate III qualification recognised by the Australian Qualifications Framework; and
(b) works under the supervision of a Qualified Sprinkler Systems Tester; and
(c) is undertaking training in the following modules;
(i) CPCPFS3020 - Conduct basic functional testing of water-based fire-suppression systems;
(ii) CPCPFS3021 - Inspect and test fire pumpsets.”
[8] The proposed variation also sought to add to the classification level Plumbing and mechanical services worker/Sprinkler fitting worker Level 1(d)“a Qualified Sprinkler System Tester”. The current Plumbing and mechanical services worker/Sprinkler fitting worker Level 1(d) classification definition states, in part:
“An employee who has fulfilled the substantive requirements of a Plumbing and mechanical services worker/Sprinkler fitting worker Level 1(d) as detailed below. An employee at this level will have:
(i) successfully completed a Services Stream Certificate (Plumbing and mechanical services/Sprinkler fitting) Level 1 consisting of 16 appropriate modules of structured training; or
(ii) obtained equivalent skills gained through work experience subject to competency testing to the prescribed standard covering the same content as the above modules of training.”
[9] The application was dealt with by way of directions for the filing of written submissions to be placed on the modern award variations section of the Fair Work Australia website (the website). The fact of the application and the directions issued were advised to all parties who had registered an interest in the modern award.
[10] The only submission made in response to the initial directions was made by Tyco, on 16 March 2011. In it, Tyco relied on a witness statement of Mr Philip Darby, its National Industrial Relations Manager, dated 16 March 2011. His evidence was summarised by Tyco, as follows:
“(1) Tyco currently employs 158 employees who may be described as Sprinkler Systems Testers.
(2) In this regard, Tyco is typical of all employers in the fire sprinkler industry (being the industry in respect of which the Award applies).
(3) Presently, in Queensland and Victoria, delegated legislation requires each person who is employed in a Sprinkler Systems Tester capacity to hold certain qualifications.
(4) The Council of Australian Governments (COAG) is developing a national licensing regime (expected to take effect in building occupations in July 2013), which will create national regulations that will, relevantly, have the effect of requiring all Sprinkler Systems Testers (nationally) to hold certain qualifications (the National Regulations). That is, the qualification and licensing regime will be harmonised nationally.
(5) The terms National Regulations will require each person who is employed in a Sprinkler Systems Testing capacity to hold certain qualifications (similar to the prevailing Victorian/Queensland paradigm).
(6) The Applicants anticipate that this will lead to a situation where the existence of Sprinkler Systems Testing as a distinct specialised occupation is inevitable (consistent with other occupational callings that are subject to specific qualification and/or licensing regimes).
(7) As this occurs, it is inevitable that it will give rise to confusion and difficulties in understanding the coverage of the Award and the classifications within it.”
[11] A consultation occurred on Thursday, 31 March 2011. In the consultation, I asked if there was any need or benefit from adding the word “testing” to the definition of “fire sprinkler fitting” in clause 4.7(b) - Coverage. I also raised an issue concerning the level within the modern award classification structure in which the Qualified sprinkler system tester was proposed to be placed. It became apparent that:
• the Sprinkler systems tester classification was not included in any pre-modern award; 2
• the proposed Qualified sprinkler systems tester and the proposed Sprinkler systems tester definitionseach requires a Certificate Level III; but, in addition, the completion or undertaking of two specified testing modules respectively; 3
• the Certificate Level III referred to in the proposed definitions is in the nature of a trade certificate; 4
• the Certificate Level III was seen as a base upon which the undertaking and completion of the additional two modules required would occur. 5
[12] I specifically raised a concern about the level at which the variation sought placed the Qualified sprinkler system tester. The issue I raised was whether the Level 1(d) classification currently in the modern award is appropriate to comprehend the Qualified sprinkler system tester, in that the substantive qualification base at that level is a Services Stream Certificate Level 1 consisting of 16 appropriate modules of structured training, whereas the proposed classification definition for the Qualified sprinkler system tester required the holding of a Certificate Level III qualification recognised by the Australian Qualifications Framework (AQF). In this respect, Tyco submitted:
“At an objective level - and this is the second part of the answer - the level of qualifications required for the sprinkler system tester are calibrated by reference to what the national licensing scheme is going to require. The position has been defined with an eye to that to make sure that this arrangement is sufficiently durable, and it’s not necessary for the parties to have to keep coming back to seek variations to the award as the safety net regulatory system alters. The qualifications that are going to be required to meet the regulatory system are high. If one looks at the nature of the work and how it’s going to be carried out, and the circumstances under which it’s going to be carried out, those instructing me are of the view that that is appropriately comparable with the position of employees who fall within, if I can call it, the capital A part of that definition of level 1(d).” 6
[13] I also asked if it was an appropriate time to add a Sprinkler systems testerclassification to the modern award and whether such an addition would be assisted by knowing exactly what qualifications are required for licensing purposes within national fire safety regulations to be introduced in the future. 7
[14] In the consultation, I announced further directions for submissions in relation to that issue, which were published on the website and advised to parties with a registered interest.
[15] The Master Plumbers and Mechanical Contractors Association of NSW (MPMCANSW) submitted that within the industry, recognition is really given to the Certificate Level III when the apprentices finish their trade over the four-year period and they complete the off-the-job training at TAFE for that Certificate Level III. That allows a transition to a qualified tradesperson. 8 It also submitted that the Plumbing and mechanical services worker Level 1(d) is usually for a Plumber’s labourer and it is usually used by an apprentice who has not finished his Certificate Level III or who has failed the subjects and they are usually put on as a Plumber’s labourer.9
[16] Following the further directions made, a further submission and an amended proposed variation were filed by Tyco on 8 April 2011.
[17] In its amended proposed variation, Tyco proposed the following new definitions:
“B.1.5 Qualified Sprinkler Systems Tester means an employee primarily engaged in the testing of sprinkler systems and who:
(a) does not fall within any of the classifications in B3.1(e) or above;
(b) holds a Certificate III qualification recognised by the Australian Qualifications Framework which is not in fire protection; and
(b) works without supervision; and
(c) has completed the following modules;
(i) CPCPFS3020 - Conduct basic functional testing of water-based fire-suppression systems;
(ii) CPCPFS3021 - Inspect and test fire pumpsets.
B.1.8 Sprinkler Systems Tester means an employee primarily engaged in the testing of sprinkler systems and who:
(a) does not fall within any of the classifications in B3.1(e) or above;
(b) holds a Certificate III qualification recognised by the Australian Qualifications Framework which is not in fire protection; and
(bc) works under the supervision of a Qualified Sprinkler Systems Tester; and
(cd) is undertaking training in the following modules;
(i) CPCPFS3020 - Conduct basic functional testing of water-based fire-suppression systems;
(ii) CPCPFS3021 - Inspect and test fire pumpsets.”
[18] In its further submission, Tyco addressed three issues raised in the consultation of 31 March 2011:
(1) The necessity for making the variation now (as opposed to in 2012 or 2014 as part of the reviews of the modern award mandated by legislation).
(2) The appropriateness of ranking the classification of “Qualified sprinkler systems testers” within the grade of “Plumbing and mechanical services worker/Sprinkler fitting worker Level 1(d)” (Level 1(d)), in view of the fact that the Qualified sprinkler systems testers must have a Certificate Level III qualification whereas other employees covered by Level 1(d) are required to hold a “Services Stream Certificate (Plumbing and Mechanical Services/ Sprinkler Fitting) Level 1 consisting of 16 appropriate modules of structured training” or equivalent skills.
(3) The appropriateness of ranking the Qualified sprinkler systems testers in Level 1(d) having regard to the provisions of certain collective agreements identified in the consultation.
[19] In relation to timing, Tyco set out the steps in progress for the National Regulation of Sprinkler systems testers which will culminate in regulations which will take effect on 1 July 2012.
[20] Tyco submitted that two testing modules - CPCPFS3020 – Conduct basic functional testing of water-based fire-suppression systems; and CPCPFS3021 – Inspect and test fire pumpsets - have been formulated specifically to contain the competencies required for licensing as a Tester. They are presently before the National Quality Council (NQC) for final approval (which was expected to be conferred in April 2011). It is expected that, after approval by the NQC, it will take between six to nine months for a sufficient number of individuals to obtain certification in each of the testing modules.
[21] Tyco submitted that in light of these temporal realities, if the applicants were to defer this application until the mandated 2012 modern award review to propose this variation, the matter would not be disposed of sufficiently before 1 July 2012 to allow for an orderly transition to the new system.
[22] On the second issue, Tyco submitted that its variation involves a new classification of Qualified sprinkler systems tester that is defined by reference to, among other things, the holding of a Certificate Level III qualification recognised by the AQF; and will be graded at Level 1(d). It submitted that the numerical levels (e.g. Certificate Level III) used in the modern award do not translate to the Roman numerals used in relation to AQF Certificates. It is not possible to provide an accurate correlation between the qualifications required for the modern award classifications and the AQF. It further submitted that the individuals who will take on the roles of testers will come from outside the ranks of the tradespeople in the fire sprinkler industry. In this regard, while each of the proposed tester classifications requires an AQF Certificate Level III, that certification is intended to relate to areas of competence outside the fire sprinkler industry. As such, the individual Qualified sprinkler systems tester or Sprinkler systems tester has lesser qualification, skills and experience in the fire sprinkler industry than those who fall within higher classification levels. Moreover, if an employee has an AQF Certificate Level III relevant to the fire sprinkler industry, they are likely to fall within the scope of a higher classification. Tyco concluded that a Certificate Level III qualification is necessary because it supplies a basis of skills which, with the addition of the testing modules, equips the person with the portfolio of skills to enable the employee to be an effective tester without direct supervision.
[23] Tyco submitted that it is not its intention, through the variation, to create a situation whereby a person who holds a Certificate Level III qualification in fire protection would be graded at Level 1(d). Such persons are very unlikely to ever apply to be testers (because of the restricted nature of that role), nor would such a person be directed to be a tester. However, to overcome any possible concerns in this area, it included some further words in the proposed variation.
[24] Tyco submitted that the treatment of testers in collective agreements sheds no light on its application to vary the modern award.
[25] A submission in response was filed by the MPMCANSW on 15 April 2011. MPMCANSW submitted that COAG is currently reviewing national licensing arrangements for various industry categories, of which Plumbing and Gasfitting is one. It covers the areas of water plumbing and fire protection. It submitted that the creation of a sub-class of fire sprinkler employees who engage in testing will form a precedent in the modern award that is of major concern in respect of the considerations of the national licencing system yet to be completed.
[26] MPMCANSW expressed concern that the determination of the current application in advance of the release of the National Licencing Consultation Regulation Impact Statement (RIS), due in July 2011 for industry consultation as part of the COAG process, could lead to inconsistent outcomes with the National Licensing objectives. It submitted that the application should be stood down until the draft regulations and RIS are released and industry consultations about the proposed national licensing outcomes can occur.
[27] A reply submission by Tyco was filed on 21 April 2011. In it, Tyco put a secondary position as to the placement of the Sprinkler systems testers and Qualified sprinkler systems testers within the classification structure of the modern award, placing Sprinkler systems testers at the Level 1(d) classification and Qualified sprinkler systems testers at the Plumbers and mechanical services worker/Sprinkler fitting workers Level 2 classification. The Level 2 classification definition provides:
“A Plumbing and mechanical services worker/Sprinkler fitting worker Level 2 is an employee who has:
(i) successfully completed a Services Stream Certificate (Plumbing and mechanical services/Sprinkler fitting) Level 2 consisting of 24 appropriate modules of formal structured training; or
(ii) obtained equivalent skills gained through work experience subject to competency testing to the prescribed standards covering the content of the above agreed modules of training.”
[28] The Level 2 classification rate is at the level of the tradesperson rate within the modern award.
[29] Further consultations occurred on 27 May 2011, following the receipt of additional submissions of interested parties.
The legislation
[30] Section 157 of the Act relevantly provides that:
“(1) FWA may:
(a) make a determination varying a modern award, otherwise than to vary modern award minimum wages; or
(b) make a modern award; or
(c) make a determination revoking a modern award;
if FWA is satisfied that making the determination or modern award outside the system of 4 yearly reviews of modern awards is necessary to achieve the modern awards objective.”
[31] The modern awards objective is set out in s.134 of the Act. It provides as follows:
“(1) FWA must ensure that modern awards, together with the National Employment Standards, provide a fair and relevant minimum safety net of terms and conditions, taking into account:
(a) relative living standards and the needs of the low paid; and
(b) the need to encourage collective bargaining; and
(c) the need to promote social inclusion through increased workforce participation; and
(d) the need to promote flexible modern work practices and the efficient and productive performance of work; and
(e) the principle of equal remuneration for work of equal or comparable value; and
(f) the likely impact of any exercise of modern award powers on business, including on productivity, employment costs and the regulatory burden; and
(g) the need to ensure a simple, easy to understand, stable and sustainable modern award system for Australia that avoids unnecessary overlap of modern awards; and
(h) the likely impact of any exercise of modern award powers on employment growth, inflation and the sustainability, performance and competitiveness of the national economy.”
[32] It may be noted that s.6 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (the Transitional Act) also provides for a review of all modern awards (other than modern enterprise awards and State reference public sector modern awards) after the first two years:
“(1) As soon as practicable after the second anniversary of the FW (safety net provisions) commencement day, FWA must conduct a review of all modern awards, other than modern enterprise awards and State reference public sector modern awards.
Note: The review required by this item is in addition to the annual wage reviews and 4 yearly reviews of modern awards that FWA is required to conduct under the FW Act.
(2) In the review, FWA must consider whether the modern awards:
(a) achieve the modern awards objective; and
(b) are operating effectively, without anomalies or technical problems arising from the Part 10A award modernisation process.
(2A) The review must be such that each modern award is reviewed in its own right. However, this does not prevent FWA from reviewing 2 or more modern awards at the same time.
(3) FWA may make a determination varying any of the modern awards in any way that FWA considers appropriate to remedy any issues identified in the review.
Note: Any variation of a modern award must comply with the requirements of the FW Act relating to the content of modern awards (see Subdivision A of Division 3 of Part 2-3 of the FW Act).
(4) The modern awards objective applies to FWA making a variation under this item, and the minimum wages objective also applies if the variation relates to modern award minimum wages.
(5) FWA may advise persons or bodies about the review in any way FWA considers appropriate.
(6) Section 625 of the FW Act (which deals with delegation by the President of functions and powers of FWA) has effect as if subsection (2) of that section included a reference to FWA’s powers under subitem (5).”
Consideration
[33] It is necessary to determine whether the making of the determination sought by Tyco to vary the modern award outside the system of four yearly reviews of modern awards is necessary to achieve the modern awards objective.
[34] Tyco relied on s.134(d) - “the need to promote flexible modern work practices and the efficient and productive performance of work” and s.134(g) - “the need to ensure a simple, easy to understand, stable and sustainable modern award system for Australia that avoids unnecessary overlap of modern awards.”
[35] The Sprinkler tester functions are currently undertaken by Sprinkler pipe fitters, classified as Tradesperson Level 1.The variation proposed by Tyco is directed to inserting “a distinct, exclusive sprinkler testing vocation” 10 into the modern award, which contains a skill-based classification structure.11 The Tyco variation envisages that this distinct vocation would be undertaken by persons with Certificate Level III qualifications (other than in fire protection) and who have completed (Qualified sprinkler systems tester) or are undertaking (Sprinkler systems tester) additional modules specific to the testing function.
[36] An accommodation of the work of a sprinkler tester within the modern award in the context of a skill-based classification structure would require that the classification structure recognises the necessary skills and qualifications.
[37] The proposal of Tyco is limited to the “distinct, exclusive sprinkler testing vocation” 12 positions it proposes, with the classification definitions it proposes not applying to testers who already fall within the scope of the award - Sprinkler pipe fitters - holding a Certificate Level III qualification in fire protection.
[38] I am not satisfied that the variation proposed by Tyco in its amended form, with its primary position as to the placement of Sprinkler systems testers and Qualified sprinkler systems testers within the classification definitions, properly reflects the skills and qualifications required by its proposed definitions. The definitions of the Sprinkler systems tester and Qualified sprinkler systems tester in each case require the holding of a Certificate Level III qualification recognised by the AQF, albeit not in fire protection, together with the completion (Qualified sprinkler systems tester) or undertaking (Sprinkler systems tester) of specific testing modules. The placement of the Qualified sprinkler systems tester at the level of Plumbing and mechanical services worker/Sprinkler fitting worker Level 1(d), consisting of 16 appropriate modules of structured training (or equivalent skills gained through work experience subject to competency testing) of a person required to hold a Certificate Level III qualification recognised by the AQF - in the nature of a trades qualification, 13 albeit it not in fire protection, does not properly reflect the skills and qualifications contained in the definitions. Whilst Tyco submitted that the individuals who will take on the roles within the proposed classifications of Sprinkler systems testers and Qualified sprinkler systems tester will come from outside the ranks of the tradespeople in the fire sprinkler industry, under its proposal each classification requires an AQF Certificate Level III qualification in order to supply a base of skills which, with the addition of the testing modules, equips the person with the portfolio of skills to enable the employee to be an effective tester without direct supervision14 or, put another way, provides a platform of mature skills in the trades area.15
[39] There is an express requirement for an AQF Certificate Level III qualification within the definitions proposed by Tyco (albeit not in fire protection) and that qualification is seen by Tyco as necessary to provide a skills base to allow both Sprinkler systems testers and Qualified sprinkler systems testers to perform their work, which is not reflected in the classification level in which Tyco has placed the testers in its primary proposal.
[40] I am not satisfied that the variation sought is necessary to achieve the modern awards objective. Indeed, in my view, given the proposed levels within the classification structure at which Qualified sprinkler systems testers and Sprinkler systems testers are placed in Tyco’s primary position, the variation is inconsistent with the modern awards objective which requires Fair Work Australia to ensure that modern awards, together with the National Employment Standards, provide a fair and relevant minimum safety net of terms and conditions (emphasis added).
[41] The secondary position advanced by Tyco in its 21 April 2011 submission was to place the Sprinkler systems tester at the Level 1(d) classification and the Qualified sprinkler systems tester at the Plumbing and mechanical services worker/Sprinkler fitting worker Level 2. The classification rate at Level 2 is the same as for the base trades classification - the Plumbing and mechanical services tradesperson/Sprinkler fitter tradesperson Level 1.
[42] Putting aside the distinction Tyco draws between Certificate Level III qualifications in fire protection and Certificate Level III qualifications generally, the secondary position as to placement of Sprinkler systems testers and Qualified sprinkler systems tester in the classification level seems not to appropriately reflect qualifications. A Sprinkler systems tester, required to hold a Certificate Level III qualification, would seem better placed within the Plumbing and mechanical services worker/Sprinkler fitting worker Level 2 or the Plumbing and mechanical services tradesperson/Sprinkler fitter tradesperson Level 1, which requires a trade qualification. A Qualified sprinkler systems tester, required to hold a Certificate Level III qualification and have successfully completed the two specific testing modules, would seem to better fit the Plumbing and mechanical services tradesperson/ Sprinkler fitter tradesperson Level 2 classification which requires a trade qualification and the successful completion of three appropriate modules. The secondary position of Tyco as to placement of the Sprinkler systems tester and Qualified sprinkler systems tester classifications is at odds with the placement of employees with trades qualifications within classification structures generally within modern awards.
[43] However, the position of Tyco is based upon the proposition that the Certificate Level III qualification required of Sprinkler systems testers and Qualified sprinkler systems testers in its proposed variation is not in fire protection and the skills associated with the Certificate Level III qualification would not be directly utilised in the work of a Sprinkler systems tester or Qualified sprinkler systems tester, but are required in order to equip the person with the portfolio of skills to enable the employee to be an effective tester without direct supervision, 16 once having completed the specific testing modules. Thus the Certificate Level III skills of an employee, not in fire protection, of a Carpenter or Fitter or Plumber (beyond those relevant to fire protection) would not be utilised in the job but be required as a platform of mature skills in the trades area.17 The concept that a Certificate Level III qualification is required but not utilised is at odds with the general placement of trades qualified employees in classification structures within modern awards and one which does not lend itself to easy incorporation into a skills-based classification structure.
[44] The qualifications within the classification structure in the modern award are all referable to Services Stream Certificate (Plumbing and mechanical services/Sprinkler fitting) qualifications. This no doubt led to the motivation of Tyco to make its application, in part, to ensure that any employee, other than a Sprinkler pipe fitter, engaged primarily as a Sprinkler systems tester is included within the coverage of the modern award in order to accommodate the outcome of the COAG national occupational licensing system (NOLS) process as it applies to Sprinkler systems testers. At the same time, the application creates a difficulty in determining the appropriate placement of Testers within the modern award classification structure.
[45] That difficulty is exacerbated by the fact that the Tyco application is directed to anticipating and preparing the modern award for the outcome of the NOLS process which is far from complete.
[46] According to the Plumbing and Gasfitting Occupations Interim Advisory Committee (PGOIAC)Communiqué 4, 18 NOLS is being developed to remove licensing inconsistencies across state and territory borders and provide for a more mobile workforce. Interim Advisory Committees (IACs) were established to provide policy advice to the COAG National Licensing Steering Committee (NLSC) in the development of national licensing for each occupational area, including the PGOIAC, which covers sprinkler systems testing. A Consultation Regulation Impact Statement (RIS) for Plumbing and Gasfitting Occupations will be released in the second half of 2011. Following public consultation, a Decision RIS will need to be agreed by jurisdictions through the Ministerial Council for Federal Financial Relations (Ministerial Council). It is anticipated that the NOLS for plumbing and gasfitting will commence on 1 July 2012.
[47] The PGOIAC Communiqué proposed that there be three different types of licence covering the Plumbing and Gasfitting Occupations: work categories authorised by a licence (supervised) or a certifier’s licence, determined by which work categories are covered by the qualifications/competencies that an applicant possesses and a contractor licence.
[48] Table 3 in the PGOIAC Communiqué sets out the proposed skill-based eligibility requirements for licence types:
• A licence (supervised): Predominately Certificate Level III qualifications, but with some work categories having Certificate Level II pathways to a licence (in some cases additional Certificate Level III competencies are required in addition to the Certificate Level II qualification).
• A certifier licence: Certificate Level III qualifications, plus specified Certificate Level IV competencies.
• A contractor licence: No skill-based eligibility requirements are proposed.
[49] The PGOIAC proposal for the licence and certified licence types have some similarity to the classification definitions proposed by Tyco for the Sprinkler systems tester and the Qualified sprinkler systems tester and perhaps inform the proposal advanced by Tyco. However the proposal represents the advice of the PGOIAC, not the outcome of the NOLS review, and is a generalised proposal, rather than being specific to Sprinkler systems testers. Further, it sheds no light on the relevance of Certificate Level III qualifications held in areas other than the immediate occupation of a licence holder.
[50] The PGOIAC proposal will inform the policy considerations of the NLSC and the advice it provides to the Ministerial Council. The policy will then be subject to public consultation. Following public consultation, a Decision RIS will need to be agreed by jurisdictions through the Ministerial Council. Accordingly, the final outcome of the NOLS process and the final licensing requirements of Sprinkler system testers is unknown at this point in time.
[51] In that circumstance and given my reservations as to the placement of the Sprinkler system testers in the modern award classification structure by Tyco, I have come to the conclusion that the application to vary the modern award to reflect licensing requirements for Sprinkler systems testers which will arise from the COAG processes is premature. The application is largely premised on the development of a national licensing regime, expected to take effect in July 2012, 19 which will include Sprinkler systems testers. In my view, an award variation to reflect the skill requirements for Sprinkler systems testers arising out of national licensing regulations could not be sensibly made until they are known.
[52] I am not satisfied on the currently incomplete information as to the qualification requirements for licencing of Sprinkler systems testers that the proposed variation is necessary or appropriate to achieve the modern awards objective at this time.
[53] The application is therefore refused. The application is refused without prejudice to the rights of Tyco or any other party to apply to make an appropriate variation in respect of Sprinkler systems testers at some point in the future when the outcome of the NOLS process in respect of that vocation is known or, if appropriate, revisit the issue in the two year or four year review of modern awards.
SENIOR DEPUTY PRESIDENT
Appearances:
D. Cross for Tyco Australia Pty Limited.
C. Coate for the National Fire Industry Association.
R. Krajewski for Chubb Fire and Security Pty Limited.
R. Sutton and S Williams for the Fire Protection Association of Australia.
E. Setches, S McCarney and P McCrudden for the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia - Plumbing Division.
K. Yu and P Naylor for the Master Plumbers and Mechanical Contractors Association of New South Wales.
Hearing details:
2011.
Melbourne and Sydney (video hearing):
March 31;
May 27.
1 MA000036.
2 Transcript, at para 25.
3 See definitions as proposed in the application in paragraph 7 of this decision.
4 Transcript, at para 46.
5 Transcript, at paras 52, 73 and 79-80.
6 Transcript, at para 44.
7 Transcript, at para 178.
8 Transcript, at para 110.
9 Transcript, at para 140.
10 Transcript, at para 79.
11 [2009] AIRCFB 50, at paras 51 and 52.
12 Transcript, at para 79.
13 Transcript, at para 46.
14 8 April 2011 submission of Tyco, at paras 3.2-3.3.
15 Transcript, at paras 35 and 79.
16 8 April 2011 submission of Tyco, at paras 3.2-3.3.
17 Transcript, at paras 35 and 79.
18 Attached to the MPMCANSW submission of 15 April 2011.
19 Page 6, National Occupational Licencing System Plumbing and Gasfitting Occupations Interim Advisory Council Communiqué 4 on Progress Frequently Asked Questions, attached to the MPMCANSW submission of 15 April 2011.
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