TRANSCRIPT OF PROCEEDINGS

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Fair Work Act 2009 31637-1

VICE PRESIDENT LAWLER

AM2010/235

s.158 - Application to vary or revoke a modern award

Application by Australian Industry Group, The
(AM2010/235)
Telecommunications Services Award 2010

(ODN AM2008/18)
[MA000041 Print PR986383]




Melbourne

11.15AM, MONDAY, 22 NOVEMBER 2010

THE FOLLOWING PROCEEDINGS WERE CONDUCTED VIA
TELEPHONE CONFERENCE AND RECORDED IN MELBOURNE

PN1

THE VICE PRESIDENT: Mr Smith, I note your appearance for AIG; Mr Dwyer for the CPSU; Mr Benfell I think is in Sydney for the CPSU; Mr Kentish, I note that you are there with Mr Dwyer. I take it there's no opposition to this application. There being no opposition, it seems to me this is an application that ought be granted. Where trainees are employed in an industry, it's a necessary part of the safety net to have arrangements for trainees and it's probably the case that it was an oversight that this schedule and relevant provisions were not inserted at the time of the administrative clean-up of the modern awards.

PN2

The only issue I think, Mr Smith, is the operative date. You want to have it operate from 1 January 2010. That raises the prospect of people who are trainees being employed as ordinary full-time employees and having to pay money back. It seems like an unattractive proposition.

PN3

MR S. SMITH: Your Honour, in our experience and with the companies that we've spoken to, it appears that the companies have continued to pay trainees under the National Training Wage Schedule. The 2002 version - - -

PN4

THE VICE PRESIDENT: Well, can I say what I was proposing to do - and it was recognised that's a problem also - I was proposing to vary it so that it takes effect from 1 January 2010, but have an additional clause that says nothing in that order would have the effect of requiring any employee to repay to the employer wages that they were paid in that period, other than wages paid on a mistake that's unrelated to their status as a trainee.

PN5

MR SMITH: Yes, your Honour. I take it that would be wages actually paid - - -

PN6

THE VICE PRESIDENT: Yes.

PN7

MR SMITH: - - - as opposed to a debate about whether wages were paid.

PN8

THE VICE PRESIDENT: No, your wages actually paid. It's about trying to make sure that you quarantine any employees who may have been actually paid as a full-time employee and then have an employer turn around and say, "Oh, well, you were only entitled to training rates since 1 January, so now you've got to give us a whole lot of money back," but obviously if there has been some other mistake of the sort that gives rise to an overpayment, that shouldn't be caught by any quarantine.

PN9

MR SMITH: Yes, that sounds fine, your Honour. Of course the 2002 version of the award continues to sit there as an instrument that hasn't been terminated and that - - -

PN10

THE VICE PRESIDENT: So you think I'm jumping at shadows here; there's no real problem?

PN11

MR SMITH: I think that's right, your Honour, because anyone employed under the training arrangements would at the moment presumably have technically been employed under the provisions of the pre-modern instrument given that arguably they wouldn't have been under the scope of the modern instrument, but I think - - -

PN12

THE VICE PRESIDENT: Isn't the problem, Mr Smith, there's actually scope for debate about that which makes it desirable for there to be some certainty created by the order?

PN13

MR SMITH: Yes, your Honour. All we tried to achieve is a situation where all the people that have continued to be paid under the National Training Wage Schedule have been paid appropriately and in the interests of the employees and the employers, so we don't have any objection to the order adequately reflecting that. We haven't identified that this extra aspect is necessary, but on the surface of it we don't have any objection to it as long as it doesn't cause any - - -

PN14

THE VICE PRESIDENT: Well, what I suggest is that I send a draft order to the parties that have appeared today and give you a brief opportunity to comment or to say that there needs to be a further mention in the event that there needs to be some debate about it. I think we're on the same page about what we're trying to achieve. Anyone who has been engaged under a training arrangement under the previous Training Wages Schedules - - -

PN15

MR SMITH: Yes.

PN16

THE VICE PRESIDENT: - - - shouldn't be affected in any way, shape or form, neither employer nor employee. It will simply regularise arrangements from 1 January.

PN17

MR SMITH: Yes. Thank you.

PN18

THE VICE PRESIDENT: Mr Dwyer, anything you need to say?

PN19

MR D. DWYER: No, your Honour.

PN20

THE VICE PRESIDENT: Mr Benfell, anything from you?

PN21

MR L. BENFELL: Your Honour, we support your variation and we will look at the draft order when you send it.

PN22

THE VICE PRESIDENT: Fine. Thanks very much. If there's nothing further, the tribunal is adjourned.

<ADJOURNED INDEFINITELY [11.21AM]