C2002/926, Transcript of Proceedings [2003] AIRCTrans 4505 (10 October 2003)

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TRANSCRIPT OF PROCEEDINGS


O/N 4801
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER SMITH

C2002/926
C2002/5778

METAL, ENGINEERING AND ASSOCIATED
INDUSTRIES AWARD 1998

Application under section 33 on the
Commission's own motion re school
based apprenticeship clause

NATIONAL BUILDING AND CONSTRUCTION
INDUSTRY AWARD 2000

Application under section 33 on the
Commission's own motion re school
based apprenticeship clause

MELBOURNE

10.00 AM, WEDNESDAY, 24 SEPTEMBER 2003

Continued from 23.9.03

PN1038

THE COMMISSIONER: Yes, Mr Harris.

PN1039

MR HARRIS: Thank you, Commissioner. ACCI supports the submission of Master Builders Australia and asks that the Commission vary the award to include a wages safety net for school based apprentices. There have been developments within the training system which have given rise to new forms of apprenticeship. It is our submission that it is vital that awards are appropriately supportive of these new training arrangements. Mr Balzary gave evidence yesterday on the range of problems which may arise where there is a lack of support within the award system for training arrangements which have arisen through the training reform process.

PN1040

The evidence of both Mr Balzary and Mr Wilson is that school based apprenticeships are a positive development and that they assist in the school to work transition. They allow students to combine education with the gaining of vocational skills and work experience. In this sense the varying of the aware will also clearly further the objects of the Act, in particular section 3AA. Commissioner, as Mr Calver has already stated, these proceedings should not be viewed in any sense as the trial of school based apprenticeships in construction. The debate regarding appropriate training arrangements in construction should proceed within the industry training bodies to which the CFMEU, Master Builders Australia and other industry representatives are party.

PN1041

To that end, Mr Fraser in his witness statement provided evidence of the range of training bodies on which he personally was represented. Much of the material submitted by the CFMEU goes to the detail of the training arrangements in their industry and we believe that material is best addressed by the industry parties within the industry training bodies to which they are a party. We are, however, in some agreement with the CFMEU regarding what we see as one of the critical issues of the case and I would like to take the unusual step of quoting from the CFMEUs submission - CFMEU2, paragraph 4.1. In that paragraph they state:

PN1042

The central issue in this matter is whether or not school based apprenticeships for the building and construction industry are provided for under the legislative arrangements in Tasmania, Western Australia, South Australia and Victoria.

PN1043

To that end we rely on the material which has been produced by the Australian National Training Authority and is included in the common exhibit, folder 2. This material supersedes the initial observations of ACCI in that regard which are contained in paragraph 5.6 and 5.7 of ACCI2. The material demonstrates that the only barrier in the majority of the jurisdictions, with the exception of Western Australia, to enter into a school based apprenticeship arrangement in construction is the lack of appropriately supported award arrangements. This also accords with the understanding of Mr Balzary as given in evidence, that the key barrier to the implementation of school based apprenticeships was the lack of supportive award arrangements.

PN1044

There are other positive reasons for the Commission to vary the award to include a wages safety net for school based apprentices. The evidence of both Mr Fraser and Mr Wilson in this regard accorded in that they both acknowledged the importance of the skill levels of employees in this industry. Mr Fraser also agreed that it was important to attract new entrants to the industry and that this was an industry which was prone to skill shortages. ACCI have included material relating to skill shortages in both our primary and reply submissions.

PN1045

This included the NCBR report at attachment C of ACCI1 in the DEWR national and state skill shortages lists for 2003 which is included at attachment D of our primary submission. The second page of that attachment lists several construction industry trades which were still in a state of national skill shortage as of December 2002. There is also evidence of demand from employers and employees for this kind of training arrangement where supportive award arrangements are in place. Queensland, where there are award provisions in place, there has been take-up of school based apprenticeships.

PN1046

Further, the evidence of Mr Wilson was that this is a form of training that industry finds desirable, and it was his evidence that it led to good outcomes from the perspective of both employer and employee. I should make it clear that it is ACCIs view that this is about providing choice and broadening pathways. Employers and employees may not see school based apprentices as being appropriate or desirable in all instances, but where there is demand for this kind of training arrangement, we believe the award system should contain appropriate rates of pay and conditions to support it.

PN1047

In this regard, we contend a variation of the award is supported by section 96 of the Workplace Relations Act 1996 which requires the Commission to have regard to forms of the apprenticeship. Commissioner, the CFMEU have also raised occupational health and safety matters as one of the grounds on which they oppose the variation of the award. Indeed they say at paragraph 6.2 of CFMEU1 that it is their primary concern. Mr Fraser, in his evidence, agreed that the duties and obligations of employers with regard to occupational health and safety will apply equally to apprentices and school based apprentices, and indeed he gave evidence of some initiatives being undertaken by state and territory occupational health and safety authorities to better inform employers and employees of their rights and obligations occupational health and safety law.

PN1048

He also admitted that he had no information on OHS outcomes for school based apprentices engaged in Queensland. Mr Fraser in his witness statement lists the wide range of occupational health and safety committees on which he personally participates. He refers to the Construction Reference Group as one of those committees, and Commissioner, a key point here would be that OHS issues in this industry are extremely well understood, but are being addressed, and the CFMEU can continue to raise and address those issues through those channels. We would also say, however, that the contentions of the CFMEU in section 6 of CFMEU are in large part incorrect or misleading.

PN1049

I will start by examining CFMEUs claim that the - at 6.3 of CFMEU1, that the construction industry had the highest frequency rate of new workers compensation cases. Unfortunately I believe this is slightly misleading. It would also contain diseases which result from repeated or long term exposure to an agent, or where there is long latency between exposure to an agent and the appearance of symptoms. Examples of those diseases, Commissioner, are asbestosis and other respiratory diseases such as silicosis and cancers. So in that regard, the statistics quoted by the CFMEU may not be an accurate picture of occupational health and safety performance in the construction industry in 2003.

PN1050

CFMEU also states that the construction industry had the second highest number of fatalities, and they base this on the NOHSC Compendium of Workers Compensation Statistics, which is a common exhibit at folder 3. In particular they base it on a table which is included at page 11 of that document. Unfortunately the table seems to be simply incorrect. It is incorrect for two reasons. Manufacturing seems to have been omitted, although if you look in figure 5, you can see that manufacturing has a higher rate of compensated fatalities by industry than construction.

PN1051

THE COMMISSIONER: Where do you say - I am sorry, where is this paper?

PN1052

MR HARRIS: I am sorry, Commissioner.

PN1053

THE COMMISSIONER: It is folder 3, is it, in the common exhibits?

PN1054

MR HARRIS: That is correct, and it is at tag E of that folder.

PN1055

THE COMMISSIONER: Tag E. Thank you. Yes, I have it now.

PN1056

MR HARRIS: And it is page 11 of that document.

PN1057

THE COMMISSIONER: Yes.

PN1058

MR HARRIS: It commences - it is strange, Commissioner, it seems that simply an error has been made in that manufacturing hasn't been included here. The table for some reason also doesn't include the mining industry. Luckily there is a table which gives a correct picture of the state of affairs, that is at page 36 of that document. And if you look at that document, Table 6, injury and poisoning cases 2000-2001, and we can see that construction there, if we take the total construction leads behind both mining and transport and storage in that total.

PN1059

There simply seems to have been an error in the document, Commissioner. And if we take a third look at 6.3, the construction industry had the highest percentage of all claims due to falls from a height, simply a function of the nature of work performed in the construction industry as opposed to other industries. It is then stated in paragraph 6.4 of CFMEU1 that the compendium has a breakdown of new compensation cases by age. There is a statement in the compendium that this may be due to the greater number of part time workers in this age group.

PN1060

It is a conjecture by the authors of the compendium, we would state, it is our information that the National Data Set, which is compiled by the National Occupational Health and Safety Commission, does not break down OHS data by employment status, that is part time, casual, full time. Finally with respect to OHS, Commissioner, the CFMEU state the statistics and information provided above highlight the dangerous nature of the construction industry and the risks of injury to young people, especially those under 20 years of age.

PN1061

There is no doubt that there are serious OHS issues in the construction industry but nevertheless if we look at the statistics and, Commissioner, what we did was the compendium is based on a data series called the NDS or National Data Set. That is available online in the NOHSC Online Statistics Interactive Database and we have pulled the figures from that database to look at - I will just get this right - the incidents of claims for traumatic injury and fatality in construction by age group. And on the back page of that document, which is double sided - - -

EXHIBIT #ACCI3 EXTRACT FROM NOHSC ONLINE STATISTICS

PN1062

MR HARRIS: And that has the rate of incidents of claims for traumatic injury and fatality by age group in the construction industry and it is immediately apparent there that persons under 20 are not in the group most likely to have made a claim for traumatic injury or fatality. Nevertheless in this regard we would turn to our primary point that we think these matters are being well addressed in the industry and continue to be addressed in the appropriate forms. Finally, Commissioner, I just seek to address the issue of the section 111(1)(g) application by the CFMEU.

PN1063

The first point in that application which is contained in CFMEU1, the article that was contained in CFMEU1 at paragraph 8.3, we have said in our submissions that we don't consider this school based apprenticeships to be a generalised form of part time apprenticeship. In terms of the process that has been undertaken to vary awards to include school based apprenticeship rates and provisions, there hasn't been any action taken by ACCI nor our member organisations to proceed with the more general part time apprenticeship clause, and that is because largely this process has proceeded on a consent basis with the ACTU quite in support of that.

PN1064

The common exhibit folder 3, tag A, this is transcript of the initial hearing, the Full Bench hearing that gave rise to the model clause - sorry, this is the CFMEU's version of the common exhibit.

PN1065

THE COMMISSIONER: Well, it is a common exhibit.

PN1066

MR HARRIS: Yes, Commissioner.

PN1067

THE COMMISSIONER: I mean, I - yes.

PN1068

MR HARRIS: Commissioner, if I take you to paragraph 30, I believe, down the page there. In that page, Mr Mansfield says:

PN1069

In regard to other applications which may be made in the near future...

PN1070

THE COMMISSIONER: On what page, I am sorry?

PN1071

MR HARRIS: I am sorry, Commissioner, at tag (a) - - -

PN1072

THE COMMISSIONER: Yes.

PN1073

MR HARRIS: - - - it is page 10 of the transcript.

PN1074

THE COMMISSIONER: Page 10, thank you.

PN1075

MR HARRIS: And paragraph 30.

PN1076

THE COMMISSIONER: Yes.

PN1077

MR HARRIS:

PN1078

In regard to other applications which may be made in the near future in relation to other awards, it is likely that they will initially relate to school based part time apprenticeships -

PN1079

rather than the broader application which is before the Commission today -

PN1080

which envisages not only school based part time apprenticeships but non-school based part time studies towards an apprenticeship.

PN1081

And, Commissioner, we are dealing with that more limited form of apprenticeship today. In regard to the argument that Vice President Ross has previously considered, the issue of part time work in the National Building and Construction Industry Award, we would say the same vein that this application is not a general part time application and Vice President Ross did not consider these issues in the decision. In regard to the CFMEU's claim that the proposed clause is a reduction in safety, we simply reject that. We say it is an extension of the safety net to cover a new form of apprenticeship. The next point:

PN1082

The proposed clause would be detrimental to the employment prospects of young people.

PN1083

Extensive evidence was provided by both Mr Wilson and Mr Balzary that that would not be the case, that it would assist the employment prospects of young people and in particular evidence was given regarding the Kids at Risk scheme in the Australian Capital Territory, which is a form of school based vocational training in the construction industry which is providing opportunities to children with particular forms of disadvantage. The evidence that school based apprenticeships are not suitable for the building and construction industry was rejected by Mr Wilson and we should also note that in Queensland for several years school based apprenticeships have been engaged successfully.

PN1084

The CFMEU also claim that a school based apprenticeship clause is unnecessary. In that regard we have the evidence both of the Master Builders Association and of - sorry, I apologise - from Mr Wilson, but also Mr Balzary gave evidence on the need for awards to be appropriately supportive of these arrangements for them to operate. I would note that Mr Maxwell will be expanding on the section 111(1)(g) application no doubt in his oral submission and we would reserve our rights to reply to those issues. If the Commission pleases, that ends our submission.

PN1085

THE COMMISSIONER: Thanks, Mr Harris. Mr Stewart.

PN1086

MR STEWART: If the Commission pleases. I would begin by seeking leave to tender the submissions that we have lodged with the Commission.

PN1087

THE COMMISSIONER: Yes.

PN1088

MR STEWART: The first is entitled Commonwealth Submission and it is August 2003.

PN1089

THE COMMISSIONER: The July?

PN1090

MR STEWART: Yes, it probably - - -

PN1091

THE COMMISSIONER: Yes, it is the letter sent on 30 July.

PN1092

MR STEWART: Yes.

EXHIBIT #COMMONWEALTH1 SUBMISSION

PN1093

MR STEWART: And the second document is the Commonwealth Reply Submission, and it is dated 29 August 2003.

EXHIBIT #COMMONWEALTH2 REPLY SUBMISSION

PN1094

MR STEWART: Thank you, Commissioner. The Commonwealth strongly supports the inclusion in the NBCIA of appropriate provisions for school based apprenticeships. If such provisions are not included, the employment of school based apprenticeships in the building and construction industry under this award will be prevented. The Commonwealth is grateful that the President initiated a systematic process of reviewing key apprenticeship awards so that consideration could be given to whether the model clause for school based apprenticeships should be included.

PN1095

The Commonwealth is also grateful that the Commission has systematically driven this process by moving of its own motion. The process is largely responsible for ensuring that at least 17 key apprenticeship awards now include the model school based apprenticeship clause. The peak industrial councils developed the model clause and have supported the process initiated by the President. The peak councils have recognised that the workplace relations system has a responsibility to ensure that awards contain training wage provisions that enable all of the types of apprenticeships and traineeships to be implemented.

PN1096

They have acted to ensure that the workplace relations system is not an impediment for the implementation of new types of training arrangements including school based apprenticeships. School based new apprenticeships are an important option that has been made available under new apprenticeships. New apprenticeships are a key element of the government's approach to maintaining a skilled and flexible workforce. New apprenticeships combine paid work with structured training to give people a nationally recognised qualification which is supported by a training contract between the employer and the new apprentice and registered with the relevant state or territory training authority.

PN1097

New apprenticeships have subsumed the traditional apprenticeship system as well as traineeships covered by the National Training Wage Award. School based new apprenticeships are also an important part of what is known collectively as vetting the school's arrangements. Vetting schools initiatives are aimed at increasing the availability of programs combining general and vocational education in secondary schools to provide school leavers with more pathways from school to work and further learning. The benefits of vocational education, training, and schools initiatives are many.

PN1098

Secondary school students can be prepared for employment by gaining general and specific skills for existing and future jobs. Students can graduate with full or partial vocational education and training qualifications as well as a senior secondary certificate improving their employment prospects and providing credit towards further vocational education and training. Research shows that people who do not undertake post-school education training are more likely to be unemployed than those who do, and are more likely to have a lower paid job, and are less likely to participate in further education and training later in life.

PN1099

School based new apprenticeships combine practical work, structured training, and a continuation of school studies towards year 12 completion. Typically a student combines periods of time on the job with the employer, time with a registered training provider for off the job training, and the balance of time at school pursuing their normal studies. In all other respects, a school based new apprenticeship is the same as a full time apprenticeship or traineeship other that in school's arrangements do not involve paid work with the employer, they generally include either work experience or unpaid structured work placements.

PN1100

School based new apprenticeships are generally considered to provide higher quality practical experience because they include actual paid work. Since their introduction in 1998, school based new apprenticeships have continued to grow in popularity with employers, students, their parents, and school communities. At the end of 1998 there were nearly 1600 school students participating in a new apprenticeship, and by 2000 over 4200 school students. According to the report of the Ministerial Council on Education, Employment, Training and Youth Affairs, which is the MCEETYA body, and their report in July 2003, over 7000 school students commenced school based new apprenticeships in 2002.

PN1101

The building and construction industry has not yet shared in the growth in school based new apprenticeships. The great majority are employed in Queensland, very few are employed in other states or territories. This is because general wage arrangements for school based apprenticeships do not exist outside Queensland. By making appropriate workplace relations arrangements available, Queensland has demonstrated the existence of demand from both employers and school students for school based new apprenticeships in the building and construction industry.

PN1102

Over 500 are employed in Queensland and if workplace relations arrangements were universally accessible in other jurisdictions and the same proportion were employed, there would be over 2700 employed in the building and construction industry nationally. The key points that we make in support of our position are firstly school based apprentices are an important and valuable option made available by the school system and the vocational training system that is part of the new apprenticeship scheme. School based apprentices provide benefits to young people, to employers, and to industry.

PN1103

They are an important element of a national approach to improving employment outcomes for school leavers and assisting in meeting industry skill needs. Where appropriate, minimum wages exist for school based apprentices in the building and construction industry, employers and school students have taken advantage of the valuable opportunities that they provide. Secondly, the current provisions of the NBCIA effectively preclude the employment of school based apprentices under the award. There is a demonstrable need for appropriate provisions to be included in the NBCIA to enable employers and school students to use school based apprenticeships where they choose to do so.

PN1104

The structuring of the NBCIA so that it effectively prevents the employment of school based apprentices is inconsistent with the provisions of the WR Act, in our view, and inappropriate. The existing provisions of the NBCIA do not provide a safety net of fair minimum wages and conditions of employment for school based apprentices. Thirdly, central provisions of the Workplace Relations Act strongly support the inclusion of arrangements for school based apprentices in the award. There is a very strong public interest in providing appropriate training, wages and awards and this is recognised in the Workplace Relations Act in a number of places that are detailed in our written submissions.

PN1105

The appropriate wage arrangements for school based apprentices in our view are the model provisions endorsed by the Full Bench on 6 March 2000. These have now been included in at least 17 key federal awards covering traditional apprentices. We will now turn to the key issues raised by the CFMEU in opposition to our position. First, the CFMEU argues that the recent decisions of the Commission that rejected general provisions of part time work in the NBCIA should be taken as rejections of provisions to school based apprenticeships. In our view, this argument does not stand up to scrutiny because firstly the decisions that have rejected part time provisions have not dealt with school based apprenticeships.

PN1106

In none of the cases has material on school based apprentices been put before the Commission and certainly in none of those cases has anywhere near the material that is before the Commission in this case been before the Commission. Secondly and most importantly, the reasons given by the Commission for rejecting general part time provisions do not apply to school based apprenticeship provisions. The inclusion of provisions for school based apprenticeships would not conflict at all with the recent decisions rejecting general part time provisions for the NBCIA.

PN1107

In all those decisions, the applications were rejected on the basis that there was insufficient evidence of any need or demand for part time provisions. As we have demonstrated, and as the evidence before the Commission reinforces, this reasoning does not apply to provisions for school based apprentices. The second major argument raised by the CFMEU was that any variation of the NBCIA would have no effect. They based this assertion on two propositions. First the CFMEU asserts that there are currently no arrangements within the vocational education and training systems in the relevant states that allow for school based apprenticeships in the building and construction industry.

PN1108

Second, the CFMEU asserts that no certificate III from the general construction training package has been recognised as part of the senior school certificate in the states of Victoria, South Australia, Western Australia, or Tasmania. The CFMEU is wrong about this. In large part, the CFMEU has got it wrong because it appears to have relied on its interpretation of material placed on government websites.

[10.30am]

PN1109

It does not appear to have bothered to check its interpretations, either with the relevant state training authorities, or with education bodies. We asked ANTA to do this for us, for each of the States in question. The response we received from the Australian National Training Authority on these issues is in common exhibit 1, in folder 2, and I will refer the Commission to that. In particular, the ANTA advice is at tab 2. The advice from ANTA is in the form of a letter with a substantial number of attachments. It was signed by Adrian Stephens, the Acting General Manager of ANTA.

PN1110

I just briefly refer the Commission to a number of key paragraphs in that letter, firstly to the second paragraph, which states that:

PN1111

All States and Territories are firmly committed to the introduction of school based new apprenticeships. This commitment is reflected in resolutions made ...(reads)... facilitate the introduction of school based new apprenticeships.

PN1112

I end my quote there. The letter then goes on to examine a number of key resolutions of important ministerial councils about school based new apprenticeships and new apprenticeships more generally. They are resolutions of the ANTA, MINCO and of MCEETYA. Moving over the page, we then move to where ANTA obtained specific advice from the relevant bodies in each of the States in question about the availability of school based new apprenticeships in the building and construction industry in those States. Firstly I would refer to the material headed Victoria, and I quote:

PN1113

The Office of Training and Tertiary Education (OTTE) from the Victorian Department of Education and Training, has advised that once an industrial arrangement ...(reads)... apprenticeship would flow, and no further approval processes would be required.

PN1114

I end my quote there. What the State bodies were asked to do was to provide documentary support for the advice that they provided to ANTA, and that is in a number of attachments, and in particular attachment D outlines the position in Victoria in relation to block credit arrangements for - not only that exist that for Building and Construction Certificate IIs and IIIs, but also for all other certificate IIs and IIIs that are in approved training packages. And attachment D was advice that was sent by the relevant Victorian body to New Apprenticeship Centres and group training companies, so that they would know basically that where a training package has been approved, then it is accepted as part of the Victorian schooling system.

PN1115

I then move to the South Australian position, and I quote:

PN1116

The Department of Education and Children's Services (DECS) advise that once industrial relations arrangements are available, such as appropriate variation ...(reads)... conjunction with the South Australian Certificate of Education (SACE).

PN1117

End my quote there, and move down to the third paragraph:

PN1118

DECS also confirmed that no additional approvals would be required under either the South Australian VET system or school arrangements, once the industrial arrangements were available.

PN1119

I end my quote there and mention again that there is in - the material refers to a number of attachments that have been provided by the South Australian bodies that substantiate that position. Tasmania, the advice is, and I quote:

PN1120

The Tasmanian Office of Post-compulsory Education and Training has advised that school based apprenticeships are not approved under Tasmanian arrangements ...(reads)... to have the school based apprenticeships approved.

PN1121

And then moving down to point (e) in relation to Tasmania:

PN1122

The education system in Tasmania does not require any additional or separate approvals for school based apprenticeships to be implemented.

PN1123

In relation to Western Australia:

PN1124

The Department of Education and Training has advised that part-time, including school based traineeships, are available in Western Australia. School based traineeships are available at Certificate II, and are undertaken as part of the broader study towards the Western Australian Certificate of Education.

PN1125

Moving down to the final sentence in relation to Western Australia:

PN1126

However the Industrial Training Act 1975, which regulates the employment and training of apprentices and industrial trainees in Western Australia, does not yet make provision for part-time, including school based apprenticeships.

PN1127

And I end my quote there. The position in Western Australia, Commissioner, is that their interpretation of their existing legislation is that it doesn't yet permit - it doesn't as currently framed permit part-time or school based apprenticeships, and they will have to change their legislation for that to occur.

PN1128

THE COMMISSIONER: Why?

PN1129

MR STEWART: The legislation preceded the introduction of part-time and school based apprenticeships, and - - -

PN1130

THE COMMISSIONER: If you have got a federal award which permits that - - -

PN1131

MR STEWART: Yes - - -

PN1132

THE COMMISSIONER: Doesn't that, to the extent of inconsistency, override the State Act?

PN1133

MR STEWART: That would be the case, Commissioner, but I think that the arrangements needed to implement a part-time or school based apprenticeship include - - -

PN1134

THE COMMISSIONER: I see. There are other administrative arrangements that would need to be done as well.

PN1135

MR STEWART: That is right.

PN1136

THE COMMISSIONER: Accreditation - - -

PN1137

MR STEWART: Arrangements to register the contract of training.

PN1138

THE COMMISSIONER: Yes, I follow.

PN1139

MR STEWART: And so on, yes.

PN1140

THE COMMISSIONER: I follow.

PN1141

MR STEWART: So in conclusion, we submit that the CFMEU has got it very wrong when it says that the inclusion in the NBCIA of suitable provisions for school based apprenticeships will have no effect. The CFMEU asserts that school based apprenticeships are unsuitable for the building and construction industry, because of OHS problems, and because school based apprenticeships cannot deliver effective training. These are issues primarily for the OHS system and for the training system. Neither of these systems have accepted the CFMEU argument that school based apprenticeships should be precluded in the building and construction industry, either for OHS issues or for training quality issues.

PN1142

Although some reports and reviews prepared by the VET system have identified some issues about some forms of school based apprenticeships, these are part of continuous improvement processes. They are far from any indication that the VET system is about to discontinue school based apprenticeships. Importantly, the fact that both school based apprenticeships and traineeships are already operating effectively in the building and construction industry demonstrates that the CFMEU is wrong about their unsuitability.

PN1143

The CFMEU has not presented any evidence that the school based apprenticeships and traineeships in Queensland, or the school based traineeships in the ACT have encountered any serious OHS or training quality problems. To the contrary, all the indications are that these have been a significant success. Mr Fraser conceded he had no knowledge of any OH&S problems with school based apprenticeships in the building and construction industry in Australia.

PN1144

In its submissions, the CFMEU has also criticised the Royal Commission into the Building and Construction Industry. The Commonwealth reaffirms that this has been a model Royal Commission, thorough, efficient, and above all, fair. The Commission conducted Australia-wide public hearings from October 2001 until October 2002 with 171 public sitting days. Some 16,000 pages of transcript were taken from 765 witnesses, while some 1900 exhibits and 162,000 documents were tendered. I think we are beginning to know how they felt, but - in this case. Interested parties made 169 submissions to the Commission, and over the duration of the Commission, nearly 1500 summonses and 1700 notices to produce were issued.

PN1145

The CFMEU seeks to impugn the findings and recommendations of the Royal Commission for its own ends, as it opposes reform within the building and construction industry. The Government is committed to reforming the industry to the benefit of employees and employers in the industry, and all Australians. The CFMEU also implies in its submissions that the Royal Commission recommendations were the views of one uninformed individual.

PN1146

The Commonwealth firmly holds that findings and recommendations were based on thorough investigation and consideration of the evidence placed before the Royal Commission. In developing its recommendations relating to training issues, the Royal Commission invited submissions from interested parties. These submissions provided comment on relevant issues addressed in discussion papers released by the Commission and formed the basis of recommendations made.

PN1147

In its preparation of discussion papers 3 and 10, the Royal Commission examined the most significant reviews and research undertaken over the past five years in relation to training issues within the building and construction industry. The Royal Commission received 17 submissions in response to discussion paper 10, which was entitled Training Issues in the Building and Construction Industry, and eight submissions were received for paper 3, entitled Productivity and Performance in the Building and Construction Industry. Submissions made by the CFMEU itself to both papers were among those considered by the Royal Commission.

PN1148

That brings me to the next issue, which concerns the MBAs draft order, where I don't think we have a significant difference with the CFMEU. Our submissions and the MBAs submission on the intended coverage of the MBA draft order have apparently confused the CFMEU. To clear up any misunderstanding, we state that we support the intent of the draft order proposed by the MBA. This is based on our understanding that the draft order intends to deal only with traditional apprentices that are currently covered by the NBCIA, and not with traineeships, including those that are dealt with elsewhere in the award.

PN1149

The CFMEU also makes a number of criticisms in its submissions of the model clause. They assert that the model clause over pays school based

PN1150

apprentices, because it progresses school based apprentices too quickly through the wage scale, and they also assert that it does not pay them for the actual hours that the school based apprentices spend in off the job training, instead deeming the off the job training to be 25 per cent and paying them for that.

PN1151

As we have pointed out in our submission, the payment to school based apprentices of a 25 per cent loading for off the job training means that they would be paid the same proportion for off the job training as are typical full time apprentices. The CFMEU's submission itself gives figures on the amount of off the job training performed by full time apprentices over the first three years of an apprenticeship, and basically that shows that on average, the full time apprentice spends 80 per cent of time in productive work, 20 per cent of time in off the job training.

PN1152

So in fact, if the formula in the model clause is used to calculate the wages for a typical full time apprentice, it produces the current full time apprentice wage. It comes up with exactly the same result. This shows that the formula in the model clause effectively pro-rates the existing full time apprentice rate in the award. This is clearly consistent with standard wage fixing principles in relation to calculating wage rates for part time employees.

PN1153

We argue in our submission that the model clause should be followed, for the following key reasons. It is consistent with sound wage fixing principles. Second, the wage rates in the model clause embody the same principles that were used to set the school based traineeship rates in the National Training Wage award. Thirdly, the model clause was developed and agreed by the peak councils, including the ACTU. Fourthly, it has been endorsed by a Full Bench of the Commission. And finally, the model clause has now been included in at least 17 key federal awards that cover traditional apprentices.

PN1154

Finally, Commissioner, even though copious material has been put forward in this case, in our view the central issue is very simple. The CFMEU in paragraph 4.4 of its original submission suggests that under the current provisions of the NBCIA, school based apprentices are entitled to the full weekly wage rates. The CFMEU states, and I quote:

PN1155

Any proposal to allow apprentices to receive less than the weekly rates prescribed by the NBCIA is a reduction in wages and conditions.

PN1156

And I end the quote. The CFMEU apparently wants the Commission to retain these provisions of the NBCIA. The CFMEU wants school based apprentices, if they are employed by employers bound by the NBCIA to be paid full weekly wage rates. If a school based apprentice works on average one day a week, the CFMEU wants them to be paid for five days work.

PN1157

The CFMEU has moved considerably beyond the principle of a fair day's pay for a fair day's work. They want to establish the principle of five fair days' pay for one fair day's work. Apparently the CFMEU considers that the provision of full weekly wage rates for part time, school based apprentices constitutes a safety net of fair minimum wages and conditions of employment for school based apprentices. We disagree. We say that the current provisions of the NBCIA do not constitute a fair safety net for school based apprentices. Five days wages for one day's work is not an appropriate safety net.

PN1158

In our view, the award cannot be left as it is. The award should be changed. It currently does not provide an appropriate safety net for school based apprentices. It needs to be varied so that it does. The current provisions significantly overprice school based apprentices, effectively preventing their employment under the award. In our submission this is against the public interest and against other key provisions of the Workplace Relations Act that promotes skill formation for employees, particularly for young workers.

PN1159

In our submission, an appropriate safety net for school based apprentices is the model clause that has been developed by the peak industrial councils, including the ACTU, that has been endorsed by a Full Bench, and that has been inserted in at least 17 key federal awards covering traditional apprentices. If the Commission pleases.

PN1160

THE COMMISSIONER: Thanks, Mr Stewart. We will take a five minute break. The matter is adjourned briefly.

SHORT ADJOURNMENT [10.49am]

RESUMED [11.05am]

PN1161

THE COMMISSIONER: Yes, Mr Maxwell.

PN1162

MR MAXWELL: Thank you, Commissioner. Commissioner, in these proceedings, the CFMEU will seek to rely on its written submissions, and written submission reply contained in exhibits I think CFMEU1, CFMEU2. Commissioner, one of the issues that needs to be addressed in these proceedings is the importance of the decision of Vice President Ross in regard to part time work.

PN1163

Now, the ACCI seem to claim that school based apprenticeships are not part time apprenticeships, and I would refer to section 2.3 of their submission in reply. Also the MBA put forward this point of view, and that is found in points 2.6 and 7.3 of their response. Now, we have already shown, in our submissions, that school based apprenticeships are part time apprenticeships, and indeed further proof of that can be found in the documentation provided by ANTA.

PN1164

And if I can refer you to tab 2 of folder 2 of the common exhibits, and if I can take you to page 4, which is attachment A of the letter from Mr Stephens, at the bottom of page 4 it deals with the April meeting of MCEETYA, and the second dot point states that the issues that the Minister has requested ANTA to address were:

PN1165

the nature, short to long term support arrangements necessary to be provided to ensure the coordination, promotion and supervision of arrangements for high quality programs for part time apprentices who are secondary school students.

PN1166

So it is quite clearly recognised by MCEETYA, by ANTA, by the submissions dealing with the model clause in 2001, that school based apprenticeships are part time apprenticeships.

PN1167

Now, we submit that the Commission has already decided the issue of a part time clause in regard to the NBCIA, and that is found in a decision of Vice President Ross found in print PR929454, which we refer to in our list of authorities. Now, on page 3 of that decision, in regard to the submissions of the MBA, under paragraph 9 of that decision, the third dot point includes - states:

PN1168

There are more reasons for having part time employment than just parental care in the first two years of a child's life. For example, ongoing caring responsibilities, medical constraints, undertaking further study.

PN1169

So it is quite clear that that was one of the issues that was live before the Commission in deciding the part time case.

PN1170

Now, in that decision, Vice President Ross decided to refrain from hearing the matter, and his reasons for decision are set out in paragraph 103 of that decision, and they include that:

PN1171

the issue of a general part time work provision in respect of this award was considered and rejected by Commissioner Merriman in 1999, that the changed circumstances since Commissioner Merriman's decision fall far short of being sufficient to satisfy me that I should reach a different conclusion from that reach by the Commissioner, and thirdly that the MBA's application to vary lacks sufficient merit to want it being granted.

PN1172

Now, Commissioner, we believe that you are in the same position, in that you now have another decision that deals with part time work. A more recent decision that was only made approximately six months ago that rejected the inclusion of part time. Now we point out that that decision was not appealed by the Master Builders' Association or any of the other employer organisations. The fact that they didn't advance any evidence in regard to school based apprenticeships is really the fault of the Master Builders' Association for not properly prosecuting their case.

PN1173

And we submit that it should not be open to the Commission to allow them to have a second bite at the cherry where they have failed to prosecute their case. And the reason why there is no reference to the submissions of the CFMEU in regards to school based apprentices is because we were not required to do that in regard to replying to the case presented.

PN1174

Now Commissioner, the other major issue that we believe why the Commission should refrain from determining this matter is in regard to the issue of the safety net. We believe that this is one of the most important issues that the Commission has to address. Now, we have submitted that in regard to the NBCIA that there is no part time work and therefore to introduce part time work is a reduction in the safety net.

PN1175

Secondly, the clause submitted by the Master Builders' Association, based on the model clause, seeks to reduce the amount of training time that is paid for. Now, the Commonwealth has said that the model clause says that people are paid 25 per cent of the time spent on the job for training, and that equates to the training time that would be paid on a pro-rata basis under a traditional apprenticeship. Well, if they believe that the training time is paid for, then they should not object to specifying in the clause all the training time is paid for.

PN1176

Now, we believe that given the requirement of section 96 of the Act, which states that:

PN1177

In determining an industrial dispute in which the rates of pay or conditions of employment applying to apprentices are in question, the Commissioners will take into account any scheme of apprenticeship provided by or under the law of a state or territory.

PN1178

Now, Commissioner, if we look at the situation in the various states, and if I can refer again to tab 2 of folder 3, which is the information provided by ANTA. Commissioner, if we can first of all deal with the situation in Victoria. We have already provided in our written submission an extra of the Victorian Education and Training Act, if I can just briefly refer this - Commissioner, in 4.7 of our written submission, we provide the relevant section of the Victorian Education and Training Act 1990, which states the following, at 54.2:

PN1179

Attendance at work. If an apprentice under a training agreement attends a vocational education and training course provided by a registered training organisation in accordance with an approved training scheme during normal working hours, that attendance shall be deemed to be attendance at work for the purposes of any employment agreement or contract of employment.

PN1180

So it quite clearly is implied that whilst they are undertaking training, the training time is paid for. And if we go to the material provided by ANTA in regard to the various states - now, attachment C to the letter from ANTA deals with the issue of part time apprenticeships. And if I can take you to that attachment - Commissioner, if you look at approximately just over half way down the page, it states that

PN1181

The apprentice/trainee must be employed and paid for a minimum of 15 hours per week (including structured training) which may be averaged over a one, two or four week period.

PN1182

So it is quite clear that the arrangements in Victoria envisage that the structured training is to be paid for.

PN1183

Commissioner, just on that point in regard to Victoria, Mr Stewart has claimed that there would be no impediments to the introduction of school based apprenticeships in Victoria. We would point out that part of the requirement of school based apprenticeships are that the course of study, or the vocational training, is approved by the appropriate educational authority to be included as part of the VCE. And in our submission in reply, we have provided the Commission with the course of study that is currently approved in Victoria for inclusion in the VCE, and that is the Certificate II qualification approved by the Victorian Training Authority which is a pre-apprenticeship course in Victoria; it is not a certificate III.

[11.15am]

PN1184

So, therefore, for any school based apprenticeships at a Certificate III level to be approved in Victoria we will require approval by I think it is the V Council, or the VCAA, for inclusion as part of the VCE for such a scheme to be introduced. Commissioner, if I can then turn to the situation in South Australia, and if we go - attachment C deals with the policy statement of the Senior Secondary Assessment Board of South Australia in regard to recognition of better outcomes towards the SACE. Now, Commissioner, if you can turn to section 5 that deals with policy procedures, at the second page of that section, it states at the first dot point at the top of the page:

PN1185

The maximum possible number of units that can contribute to SACE completion requirements will be eight.

PN1186

So, therefore, in South Australia there is a limit on the vocational subjects that can be included in the South Australian Certificate of Education. We would also point out more importantly if you go to attachment F, which is the - sorry, not attachment F, attachment G, sorry, and at page 14 of attachment G, Commissioner, on page 14 under section 5.11 it deals with the question of what are the wages structures applicable to school based new apprenticeships, and the second sentence states:

PN1187

According to the Training and Skills Development Act 2003 employees signed on to a contract of training are to be paid for time spent ...(reads)... related to the contract of training.

PN1188

So, therefore, it is quite clear that under the South Australian Training and Skills Development Act 2003 apprentices including school based new apprentices are required to be paid for time spent for the time spent in training. I would also refer you to section 5.12 of that same page which deals with the issue of workers' compensation arrangements. And it states:

PN1189

According to the Training and Skills Development Act the employer is liable for WorkCover while a student is completing the off the job ...(reads)... related to the contract of training.

PN1190

So, it quite clearly envisages in South Australia that any school based new apprenticeship arrangement is under contract of employment, and that employment includes the time spent in training. And we would say therefore that it should be paid for as required under the Training and Skills Development Act 2003. If I can then deal with the issue of Tasmania, and take you to attachment H of the ANTA letter, and if I can refer you to the - it is I think page 3 of 6 at the bottom of the page, which is the third page. It deals with part-time conditions. And it states:

PN1191

The following conditions apply to part-time contracts unless otherwise approved by the Tasmanian Training Agreements Committee.

PN1192

And the fourth dot point is:

PN1193

The training time is paid employment time.

PN1194

So, Commissioner, in three of the states where school based apprenticeships are allowed for, there is a requirement that all the training time be paid for. Now, we submit to ensure that these students are not disadvantaged, our belief is that the 25 per cent arrangement agreed to in the model clause is inappropriate, and the basis for that is under the school based arrangements it is normal practice that the students would spend a day or more instructed training, and if that is the case then paying them for 25 per cent of time on the job will not equate with the total time they spend in training.

PN1195

Now, if the Commonwealth is serious in saying that school based new apprenticeships should not be disadvantaged compared to traditional apprenticeships, then they should have no problem in agreeing to all the training time undertaken by school based apprentices being paid for. Now, in regard to Western Australia, and this is where we say that section 96 is important, the correspondence from ANTA which Mr Stewart has referred to states that the Industrial Training Act 1975 which regulates the employment of training of apprentices and industrial trainees in Western Australia does not yet make provision for part-time, including school based apprenticeships.

PN1196

We would therefore submit that in regard to Western Australia in particular it would be inappropriate for the Commission to vary the award when those arrangements are not allowed for under the state employment provisions that deal with apprentices in that state in accordance with section 96 of the Workplace Relations Act. Commissioner, another area in which we say that the model clause seeks to reduce the safety net is in regard to the payment of the fares and travel allowance. The MBA have conceded that the fares and travel allowance should be paid when a school based apprentice is at work.

PN1197

However, they seek to refuse the payment of the fares and travel allowance when they are in training, and we submit that that is a reduction of the safety net, because under the existing award provision in regard to apprentices when they attend the off the job training, whether it be at a TAFE college or an RTO they are paid the fares and travel allowance, and school based new apprentices should be treated no differently. And I would also refer to the evidence of Mr Wilson yesterday where he was talking or referring to the scheme in operation in the ACT and the scheme operated by the Master Builders Association.

PN1198

He said that the training provided by the Master Builders Association was in some circumstances conducted away from the school at the MBAs training centre. Well, we say that in those situations such students should definitely be paid the fares and travel allowance allowable under the award. Another issue in regard to the reduction in the safety net is the proposal that the school based new apprentices be paid a proportion of the tool allowance. Now, in our submission, we have already referred to the decision in 1978 of the Commission which said that the full tool allowance should be applied to apprentices. Now, we say that if a school based apprentice - - -

PN1199

THE COMMISSIONER: It is a reimbursement expense, isn't it?

PN1200

MR MAXWELL: Well, it is, and under the award it allows for - - -

PN1201

THE COMMISSIONER: Which tools are they allowed to get, if it is only a proportion?

PN1202

MR MAXWELL: Well, that is the issue. I mean, Commissioner, under the award at the moment I think the tool allowance is in the vicinity of about $20 a week, and so if they are only getting one-fifth of that tool allowance for the time they spend on the job, they are getting $4 a week. How many tools are they able to purchase with that amount of money? And the decision we refer to in our written submission quite clearly states the importance of an apprentice being able to acquire a tool kit as soon as possible.

PN1203

THE COMMISSIONER: Well, the award, no doubt, provides that in line with the simplification provisions where tools are not provided by the employer, does it?

PN1204

MR MAXWELL: Yes, Commissioner. Well, there are two provisions under the NBCIA. One is that the employer can agree to provide tools and then not pay the tool allowance until the cost of the tools is met. The other option is that it allows for the - that where the employees provide the tools and they are reimbursed the cost, but in my understanding what is being proposed here is that they don't seek to include that arrangement. Commissioner, I would also point out that in regard to Queensland under the general order in Queensland there is a provision found in - and this is contained in appendix E of our written submission in E5, that the Queensland Industrial Relations Commission Order for Apprentices and Trainee Wages and Conditions excluding certain Queensland Government entities 2003 and under schedule 4 which is I think about a fifth of the way through that document - - -

PN1205

THE COMMISSIONER: What appendix was it, I am sorry?

PN1206

MR MAXWELL: Appendix E.

PN1207

THE COMMISSIONER: E. Right. Thank you.

PN1208

MR MAXWELL: Commissioner, if I can take you to 2.3.1 of schedule 4, which is on the third page of the schedule, at the top of the page it has:

PN1209

2.3.1 Provision of tools of trade.

PN1210

It states:

PN1211

The provision of tools of trade for eligible apprentices will be in accordance with the Order of the Commission Supply of Tools Apprentices as amended from time to time.

PN1212

It then states:

PN1213

This will not prevent an employer from supplying a part-time and/or school based apprentice with a starter kit containing basic tools which will allow ...(reads)... when they become due.

PN1214

So, there is quite clearly a recognition in Queensland that there is a need to provide apprentices including school based apprentices with a supply of tools when they begin their course. Commissioner, another supplemental way in which this application seeks to reduce the safety net and I am surprised given that Mr Calver's assertion that the MBA spent so much time carefully drafting this order, is that the amended draft order as supplied seeks to actually reduce the wage rates for existing apprentices. Commissioner, if I can take you to just for example the third page of that draft order which deals with the apprentice rates, the wage rates are all based on a variation from May 2002.

PN1215

Now, Commissioner, I would point out for the benefit of the other parties that the National Building and Construction Industry Award was varied by Commissioner Cargill on 26 May this year for the safety net adjustment allowance available under the May 2003 safety net decision, and the wage rates of apprentices were increased. And that variation is found in print PR932055. So, Commissioner, this is another area where the draft order seeks to reduce the safety net which is a fundamental issue in regard to, specially in regard to existing apprentices.

PN1216

Now, we submit that the proceedings leading to the insertion of the model clause was not a test case, and further point out that none of the issues raised by the CFMEU in this matter have been addressed by the Commission, and that was recognised in the submissions of the MBA and the ACCI and others. Commissioner, I would also point out that the parties agreed on the model - sorry, the Commonwealth has submitted that the model clause for school based apprenticeships was based on the model clause for school based traineeships which was inserted into the National Training Wage Award.

PN1217

Now, we point out the significant difference, that in regard to the National Training Wage Award there is no requirement to deal with section 96 of the Workplace Relations Act because section 96 only deals with apprentices, it doesn't deal with trainees. However, in regard to the issue now before you, we are stating that section 96 has a direct bearing on this matter because of the requirement to take into account those state laws that deal with apprentices. And we believe that there was a failure of the parties when they sought to insert the model clause to address the Commission on that point, and that is a matter that those parties will need to consider at some time.

PN1218

Commissioner, we would also point out that we do have other concerns in regard to the draft order submitted by the Master Builders Association. There is an issue in regard to the scope clause, in regard to 20.1.1(b) that we believe - which I think was raised by yourself yesterday that what the meaning was of the division except where qualification can normally be completed through a training agreement, but we believe that the scope clause should quite clearly set out what qualifications a school based apprenticeship clause would apply to in regard to the building industry, that the clause has - is somewhat ambiguous and can lead to confusion, so that if the Commission were of a mind to grant a variation, that clause specifically would need to be addressed.

PN1219

We also have a concern in regard to the issue of the inclusion of the Boral's Lining Qualification. It is our understanding that under the revised training package that qualification will no longer exist and will be replaced by the Certificate III in General Construction - sorry, I will try and get the correct name of the qualification. Yes, Certificate III in General Construction, Wall and Ceiling Lining is the qualification that will replace that. Commissioner, in regard to the issue of the detrimental effect on the future employment prospects of young people, that issue has been dealt with in our written submissions and we would refer you to the CITEA report that the arrangements there are not seen by CITEA as being equivalent to the first year of an apprenticeship.

PN1220

We would also say that the MBA appears to be confused, because on the one hand according to Mr Wilson they seek school based apprenticeships at Certificate III level as entry to the industry, and according to Mr Wilson they do not see the school based apprenticeships as being a taster for the industry as some teachers and others see them, yet if you look at 3.4 of the MBA submission - sorry, their submission in reply, Commissioner, in section 3.4 of the MBA submission in reply which is found on page 6 of that submission, they state halfway through:

PN1221

School based apprenticeships operate as a form of pre-trade work experience helping young people to decide whether they are suited to the building ...(reads)... and schools program.

PN1222

Also, further in 4.3 of the same submission which is found on page 10 of their submission, halfway through that paragraph they state:

PN1223

School based apprenticeships complement traditional apprenticeships by providing young people with the opportunity of assessing their future career paths.

PN1224

So it is quite - in their submission that they seem to imply that these school based apprenticeships arrangements are a taster to see if people are suited to the industry, and yet on the evidence of Mr Wilson he says, well, they are not, they are to provide employment, the entry for people into the industry, and he rejected the proposition that I put to him that a number of people see them as being tasters for the industry.

PN1225

We would also point out in regard to the evidence of Mr Wilson that he conceded that in some jurisdictions once a person has entered into a training contract with a Certificate III outcome if they - I am trying to recall the words he used, he said it wasn't failed, it was something else, but if they withdrew from the course he agreed that they would not be eligible for funding for another Certificate III training contract, and we believe that is a significant issue in regard to the possible detrimental effects to young people.

PN1226

Commissioner, we have also pointed out that there have been no variations to the state awards providing for the employment of school based new apprenticeships in the building industry, and that is dealt with in our submission. Commissioner, overall we believe that there are sufficient justifications based on the fact that the issue of part-time work has already been decided by Vice President Ross, that the proposed variation is a reduction in the safety net, that there are detrimental effects, well, possible detrimental effects to young people if the variation is applied, and that there are sufficient grounds for the Commission to refrain from hearing this matter.

PN1227

THE COMMISSIONER: And if not, dismiss it.

PN1228

MR MAXWELL: And if not, dismiss it. If the Commission pleases.

PN1229

THE COMMISSIONER: Thank you. Mr Calver.

PN1230

MR CALVER: If it please the Commission, thank you. I will start with the draft order, Commissioner. Yes, the wage rates could be re-examined and we take that on notice. However, Mr Maxwell has had the draft order for some time, and the carping in relation to it is extraordinary. That is a very simple matter to fix. It is more the structure of how it fits with the architecture that was carefully drafted. Obviously those wage rates need to be looked at. And we would be quite happy to have a conference if you find in favour of us where the draft order is settled, co-operatively and to make sure that it doesn't contain incorrect wage rates.

PN1231

So far as Boral is concerned, the revision that would require the removal of that training package has not yet occurred, and if it does occur before any draft order in respect of this matter or any order is finalised, then appropriate action can be taken. None of the matters expressed in the draft order a final. They are merely as I underline conservatively drafted so that this is the first small step on the way to recognition of school based apprenticeships. Mr Maxwell started by saying that the decision of Vice President Ross in PR929454 indicated that the same grounds as are being covered in this matter had already been considered by the Commission. That is wrong.

PN1232

The matter did not deal with part-time apprenticeships or any form of apprenticeship. Mr Maxwell was clutching at straws when he said that one of the issues was the ability of people to undertake further study in paragraph 9 of PR929454, undertaking further study probably, and I would argue clearly covers the situation where a building worker wants to work part-time and perhaps go to university to finish a building degree or wants to upgrade their qualifications to go to a higher classification level.

PN1233

Undertaking further study in the context of the award does not embrace part-time apprenticeships, does not embrace particularly school based apprenticeships, and none of the sorts of evidence and detail that are before you were considered before Vice President Ross. In any event, paragraph 103 of Vice President Ross's decision says that the section 11(1)(g)(iii) application was granted in respect of a general part-time provision, a general part-time provision.

PN1234

Even if the CFMEU is right that the case traversed the same ground, which it has not, this is a new matter with new evidence, and where the public interest can be re-examined and the public interest, we say, is clearly advanced by the introduction of school based apprenticeship provisions, for all of the reasons we have gone to both to benefit the industry, to benefit young people and to ensure that the industry remains vibrant in the long term.

PN1235

In respect of the alleged reduction of the safety net we say we have dealt with these matters in paragraphs 3.6 to 3.11 of MBA3, and nothing, nothing that Mr Maxwell has said refutes any of the arguments that stand there. Further, the contrary argument that we had, the fall-back argument we had about principle 11, hasn't been addressed at all by him, and we rely on those paragraphs. In respect of all of the carping that was made in relation to tab 2 of exhibit 2, that is the ANTA letter, the overwhelming conclusion that is drawn from both the ANTA letter and from its attachments is that as a precursor to the roll-out of school based apprenticeships, suitable industrial arrangements need to be put in place.

PN1236

And that is in fact what is blocking, the principal block on school based apprenticeships being achieved, and therefore highlights the importance of this case, highlights the importance of recognising school based apprenticeships in the public interest, and it has subsumed all of the other carping and inaccuracies that the CFMEU wishes to put up. The formula, the 25 per cent arrangement agreed in the model clause, is entirely appropriate for the reasons that have been adumbrated by the Commonwealth to you, sir, and there is - not one shred of evidence was adduced by the CFMEU to show that the formula is not suitable for the building and construction industry.

PN1237

Their assertions in that regard should not be given any weight. So far as the fares and travel allowance is concerned, we have drafted the provision so that school based apprentices are treated fairly, they will be paid the allowance when they are working on the job. They will be paid the allowance at the same pro rata rate as is allowed for other apprentices, and we have no closed mind on that issue. If Mr Maxwell wants to provide us, and/or the Commission with wording where he believes the position of school based apprentices would be advanced, we are open to listen to that and to seek to have the draft order or any final order modified.

PN1238

So far as the full tool allowance is concerned and other allowances in that heading, as you so rightly pointed out, Commissioner, these are principally reimbursement allowances. I will just take you to one example, and it is the example of boots. After six weeks of employment and on request of the employee an allowance of $61 shall be provided for the purchase of boots. But the allowance is not payable under clause 24.3.4(b) where the employer provides boots. Now, you know, if you are going to have young people coming on to your building site and you want them to be safe you will provide them with boots.

PN1239

It is a reimbursement allowance, and if there is again - if there is a way in which the CFMEU wishes to seek to modify the draft order we will keep an open mind on that matter, Commissioner, and urge the Commission to do the same, and if you find against the CFMEU and in favour of us, as I reiterate we would be happy to participate in a conference before you to settle the draft order. All in all, this matter is about - given the CFMEUs application, weighing up competing public interest considerations. MBA, ACCI and the Commonwealth have clearly shown that it is in the public interest to make the variations sought.

PN1240

It is in the public interest because it will assist young people in all of the ways that have been enumerated. It is in the public interest because it will assist the industry in all the ways that have been enumerated, including an industry suffering from a skill shortage, an industry that has a preponderance of skilled trades as its work force. This is a minor step on the path of greater recognition of flexible pathways into training. This is a small step on the way to have the award recognise arrangements that will help the industry or help young people, and in that regard we urge you to make the variation, if it please the Commission.

PN1241

THE COMMISSIONER: And to distinguish between small steps and thin ends of wedges.

PN1242

MR CALVER: Thank you, Commissioner.

PN1243

THE COMMISSIONER: Yes, Mr Harris.

PN1244

MR HARRIS: Commissioner, I will be brief, since many of the issues have been traversed by my friend. We reject the assertion of the CFMEU that this is a form of part-time work. We have provided support for our position. We have taken the Commission and our friends here to the transcripts where Mr Mansfield in the full bench decision spoke about the - - -

PN1245

THE COMMISSIONER: As he then was.

PN1246

MR HARRIS: Yes, as he then was, spoke about the difference between proceeding with a generalised part-time provision clause than the more limited school based clause which is the matter before us today. At page 4 of ACCI2 we also give some detail on the history of the decisions which have led to this point, and we do quote you, sir, in your decision in print number T1952, November 2000. We also think it is misleading for the CFMEU to suggest that the National Building and Construction Industry Award does not contain part-time work.

PN1247

The award does allow for part-time work in specific circumstances, and that is clause 34.1.1, which is part-time work in relation to, I believe, return to work after a period of parental leave. If the Commission was mindful to accept that this is a form of part-time work we would say at the very most it is a form of specific part-time work and not a general part-time work clause in relation to apprenticeships.

PN1248

THE COMMISSIONER: We will keep the analogy away from young children, I think.

PN1249

MR HARRIS: In relation to the range of issues raised by the CFMEU around fares, allowances etcetera, these are not arguments against the clause being varied; they are merely arguments about appropriate award architecture and Master Builders Australia have indicated their willingness to enter into discussions on those issues. Let us not say anything more about those than that.

PN1250

We reject the assertion of the CFMEU that this is a reduction of the safety net and if we look at the take-up of school based apprentices in Queensland as opposed to the complete lack of take-up of school based apprentices in other states, we would say that in itself is evidence that there is no appropriate safety net for school based apprentices in those states covered by the National Building and Construction Industry Award.

PN1251

We also think the CFMEU is incorrect in saying that issues of this kind haven't been raised in the past in other matters which related to the inclusion of school based apprentices clauses in awards. In particular, there is a range of issues relating to the modification of the model clause to suit the baking and pastrycook industry and in that matter, which - I am sorry I don't have the print number of the decision with me, but in those matters the parties sought modification of the model clause rather than outright rejection to reflect their industry circumstances. But this is not something that the CFMEU has sought on this occasion.

PN1252

Commissioner, in summary, we think that this matter is fairly simple. It is about the award system reflecting changes in the training system rather than dictating them and it is simply about providing an appropriate rate of pay in those circumstances where employers and employees consider it appropriate to enter into a school based apprenticeship in the construction industry. If the Commission pleases.

PN1253

THE COMMISSIONER: Thanks, Mr Harris. Mr Stewart.

PN1254

MR STEWART: Commissioner, I will restrict my comments to matters that the CFMEU raised in relation to the advice from ANTA. Firstly, the CFMEU pointed to various parts of the advice from ANTA which indicated that state training authority legislation, in some states at least, requires time spent in off the job training to be paid. We would point out in relation to that that the model clause does not conflict with that. The model clause does provide for time spent off the job in training for school based apprentices to be paid and it deems that time to be 25 per cent.

PN1255

The reason why it deems that time to be 25 per cent is because that is the proportion, on average, spent by full-time apprentices in off the job training. Further, the reason why it is handled through deeming rather than actual counting of time spent in off the job training is that it is impractical to extricate and identify exactly the time spent in off the job training at school because the time spent in training at school is inextricably interwoven with the other schooling that a student does. That is why the parties, in developing the model clause, couldn't take the simple path of having the time spent in off the job training counted. That would cause disputation because of the difficulty in identifying with it. So the 25 per cent solves that problem.

PN1256

Finally, we say in relation to that that the 25 per cent approach is tested both in relation to school based traineeships as well as school based apprenticeships under the various awards that this Commission has already varied because those awards apply in relation to school based apprenticeships in conjunction with the state training arrangements and no problems have arisen.

PN1257

THE COMMISSIONER: Mr Stewart, do you say that it would give rise to disputes because of the interface between the general education and the vocational education directed towards employment?

PN1258

MR STEWART: Commissioner, it would give rise to disputes because of the difficulty in examining the school week of the student and extricating from that the time that was spent in actual training associated with the apprenticeship versus other schooling activities. In the case of a full-time apprenticeship, it is very easy to identify when they are off the job in training because they go off to TAFE and it is quite separate from everything else they are doing. In the case of a school student undertaking a school based apprenticeship, that is not necessarily the case. The off the job training is not necessarily done in a TAFE situation separate from school, separate from the work. It can be interwoven with the school program.

PN1259

THE COMMISSIONER: I see.

PN1260

MR STEWART: Commissioner, the other matter raised by the CFMEU concerning the ANTA letter was that Mr Maxwell referred to a number of places in the attachment where he suggested that it indicated that the Certificate III qualification in Building and Construction had not been approved as part of the senior qualification in particular states. I would refer briefly to that document, the ANTA letter, which is at tab 2 in folder 2 of common exhibit 1, and draw attention to the fact that the advice from Victoria, South Australia and Tasmania, which summarises the position in each state, is explicitly that no further approvals are required in the school system and, in particular, in attachment D, which relates to the Victorian situation, it explicitly contradicts the conclusion that Mr Maxwell drew.

PN1261

Mr Maxwell suggested that the VCAA, the Victorian Curriculum Assessment Authority, had not approved the Certificate III in Building and Construction for schooling arrangements when, in fact, that attachment D says:

PN1262

The VCAA has put in place block credit arrangements that will provide credit towards satisfactory completion of the VCE for all qualifications at AQF level II and above.

PN1263

Then missing one paragraph, it says:

PN1264

Previously, credit towards satisfactory completion of the VCE was available in 14 approved part-time apprenticeships and traineeship programs. Recognition for credit in the VCE for any of the 900 apprenticeship or traineeship pathways and all other qualifications at AQF level II and above is now available.

PN1265

And it is a similar position in the other states, as I referred to, Commissioner. Finally, in relation to Western Australia, we would request that the award be varied in relation to Western Australia even though under their current legislation school based apprenticeships are not possible. Commissioner, working in the workplace relations area on trainee wages, the workplace relations system is often accused of not keeping pace with training reforms. This is one case in which the workplace relations system could get ahead of and prepare the way for the training system and we would, therefore, request that Western Australia be included in the variation of the award if you so decide. Thank you, Commissioner.

PN1266

THE COMMISSIONER: Thanks, Mr Stewart. Yes, Mr Maxwell.

PN1267

MR MAXWELL: Commissioner, I just wish to briefly address you on this issue about whether you can identify the time spent by school students on vocational education and training. As any parent would know, schools adhere to fairly strict timetables and those timetables state when a student is studying English, when they are studying maths or when they are involved in vocational education and training. So, therefore, it is not difficult at all to extricate the time that school students spend on vocational education and training as part of the school based apprenticeship.

PN1268

THE COMMISSIONER: Thank you. These are matters that I have called on of my own motion and nobody should take from that that there is any predisposition to any particular view when matters are called on at the Commission's own motion. One thing I have had the benefit of, and I am very grateful to the parties for this, is notwithstanding the fact that the Commission initiated the proceedings, the parties have provided a wealth of information and have given extensive submissions over the last two days, which will assist in me considering the advantages or disadvantages to young people of the proposal that has been considered. So I thank the parties for their cooperation in the matter and I thank them for the materials they have provided. I will simply reserve my decision. The matter is adjourned.

ADJOURNED INDEFINITELY [11.55am]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #ACCI3 EXTRACT FROM NOHSC ONLINE STATISTICS PN1062
EXHIBIT #COMMONWEALTH1 SUBMISSION PN1093
EXHIBIT #COMMONWEALTH2 REPLY SUBMISSION PN1094