Australian Building construction Employees and Builders' Labourers' Federation (Queensland Branch) Union of Employees v The Queensland Master Builders Association, industrial Organisation of Employers & Ors [1999] QIRC 63 (1999) 160 QGIG 250

250 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 19 March, 1999 -. QlJEE:'iSLAND INDUSTRIAL RELATIONS COMMISSION H-'orkplace Relations Acl ]997 - s. 127 - application for variation ~},,C, \ \ ·, ;J ,I ~.. ~,✓""'-~ ✓ Aust~ian Building c"nstruction Employees and Builders' Labourers' Federation (Queensland Bran•·b) l,mon of Employees AND Th~ Queensland Master Builders Association, lndust~ial Organisation of En1plo}'ers and Others (No. B579 of 1998) BUILDING CONSTRUCTION INDUSTRY A WARD - STATE COMMISSIONER FISHER 10 March 1999 19 March, 1999 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 251 Application for variation Trainee conditions of employment - BETA Traineeships Application refosed. DECISION An application has been filed by the Australian Building Construction Employees and Builders' Labourers' Federation (Queensland Branch) l~nion of Employees (BLF) seeking to vary the Building Construct10n Industry Award State by insertmg provisions dealing with tramee conditions or employment. In essence the application seeks to insert rates of pay for employees who are undertaking Building Employment Training Australia (BET A 1 train~eships. Al present trainees undertaking BET A traineeships who are engaged by employer:,; 1espondent to the National Building and Construction Industry Award are able to access the rates of pay now sought by the BLF in the present application. These pay rates are higher than the wage rates prescribed for other huildmg and construction industry trainees in the Training Wage A ward•- State. The Auslralian Worke1.s' lJnion of Employees, Queensland (AWll) did not oppose the application. TI1e Queensland \faster Builders Association. Industrial Organisation of Employers (QMBA), supported by the Queensland Chamber of Commerce and Industry Limited, Industrial Organisation of Employers (QCCI), opposed the apphcation. The State Training Council did not appear when the matter was listed for hearing. After considering the submissions put by the BLF and the QMBA in particular, the Commission decided to seek from the State Training Council clarification and further information on a number of issues that had been raised during the hearing. A second hearing date was also scheduled. In response to th,, Commission'.< request the State Training Council provided both written and oral submissions and remained equivocal about the application. The parties to the application were provided with the written submission in advance of the hearing and were given the opportunity to respond orally lo it. All parties, with the exception of the A WU which did not attend the hearing, availed themselves of that opportunity. 'TT1e State Training Council informed the Commission that at the national level. the BET A traineeships consist of the following courses of instruction: Certificate II (CWf) in Building and Construction (Fitout and Fuush) Certificate II (CWI) in Building and Construction (Structures) Certificate II in General Construction (Grade 2) These three traineeships were formally submitted to the State Tramrng Council through the auspices of Construction Training Queensland, the industry training advisory body. Of the three traineeships submitted Constrnction Training Queensland only supported the introduction of one, viz, Certificate II (CWI) in Building and Construction (Structures). Cunsequently, only this traim:eship was approved as an Apprnved Training Scheme in accordance with s. 68 of the Vocational Education, Training and Employment Act 199 I. The BETA traineeships are broad based generic programs unlike the concrete worker and steel fixer traineeships which have been also approved for this industry. Rates of pay for these traineeships were fixed by the Commission following an application from the Q\IBA. When that application was heard the BLF filed this prest.mt application and sought to have it joined with that of the Q~IB A, that course of action was refused. (Sec 157 QGIG 262 and 157 QGIG 321). In my decision on the QMBA application the Commission accepted the evidence of Mr Osterhager, the Training Manager of the QMBA, that BETA traineeships differed from the occupational specific traineeships sought by the applicant employer association. The evidence from Mr Osterhager was that BETA traineeships had generally not found favour with employers and the building industry as they were broad based. Employers rn Queensland preferred to develop traineeships designed to meet a specific scope of work within the industry. Because training rates of pay are prescribed in the )/ational Building Construction Industry Award and some Queensland companies arc respondent to that award, BETA traineeships are able to be met through that avenue in Queensland. Those employers who are not respondent to the federal award and wh,) wish In engage BETA trainees have entered into certified agreements to ~ecify the terms and condition:,; of employment. According to statistics provided by the State Training Council. there are currently 44 trainees engaged in BET A traineeships. Of those slightly in excess of 90% are engaged in Aboriginal communities where certified agreements are m place. under the Order approved by the QlRC on 2 February 1998 relating to the building industry, l7 trainee steel fixers and 13 trainee cone.Teters have commenced. According to the BLF, the majority of these trainees are existing employees receiving rates of pay prescribed by the Award or certified agreements. These trainees arc currently going through the process of having their prior learning recognised. One of the intentions of the BLF' s application is to facilitate greater accessibility of BET A traineeships through the proposed Award variation. The State Training Council informed the Commission that any measures which introduce structured training into the non trade area of the building industry and which would facilitate the uptake of traineeships would be welcomed. Traditionally, the building industry has not been one where traineeships have flourished. Wage rates and the mode of delivery oftrarnmg were speculated as two of a number ofreasons for this, however, no research findings were put to the Commission. The QMBA did not believe that the provision of rates of pay for BET A trainees in the Award would make any diffcr.::nce to the take up rat-:: or acceptance of these traineeships by the industry. The consistent position put by the QMBA was that those trameeships did not provide the type of training required by the industry The Commission shares the view of the State Training Council that measures which assist the spread of traineeships in this industry and hence the enhancement of employment opportunities should be encouraged. At Jace value, the umon' s application would appear to have merit. A number of factors militate against its granting. "The first of these is that there is httle evidence before me to substantiate the view that the award variation, if granted, will have the effect claimed by the BLF. Although some greater take up rate might be expected, the two organisations representing employers in this industry have informed the Commission that the type of traineeship is inappropriate for their industry. As it is the employers who will be engaging trainees and paying the rates of pay sought, this view should be given weight. The Commission acknowledges that granting the application will ensure the State A ward remains a mirror of the Federal A ward. This '"mirror" status has traditionally been considered important and the Commission does not lightly step away from that position. The material before me mdicates ihat those employees wishing to engage BETA trainees are able to enter into certified agreements. :\'othing impedes an employer and the relevant union from adopting this approach. In fact, the Workplace Relations Act 1997 recognises the primacy of workplace agreements rather than Awards. The BLF ha., not put any information before the Commission to support a contention that the making of certified agreements has impeded the takeup of BETA traineeships in this industry such that an award variation is warranted. ::ODMA\GRPWISE\QlRC-DOM.lRO-PO1.GENERAL ! :28230. !QGIG 19/3/99 -- 1 of 2 -- 252 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 19 March, 1999 The pay rate"' sought by the application exceed those approved for the traine~shi s i • · · sought to prescribt>. them rather than the Traininu W-ge A . d St h. ,h, hp. n co11L1ete work and steel !Ixmg. In addition. a different instrument is . ., . . . . o " v.ar ate w IC as become th · standard 'h " · · · tram",.,es ma myriad ot mdustries. Although it i, 11.-,t 1·he DY ·l . . h " " c • mec amsm ior prov1dmg rates and conditions for •" , v""c usl\e mec amsm It Vi generally • · d h " · consistent rates of pay for traineeships across industrie.s" ' . " . recogmse as t e preferred opt1011 and it assists in ensuring In its initial submissions the BLF indicated that the variation to the Buildin Construe · • nexus """"1th its federal counterpart. Were the variation to b d t th T g . W t10n Industry Award State was sought 1D order to maintain the t d e ma e o e rarnmg age Award State instP d th th BLF wa8 o mtro uce appropriate rates of pay for this traineeship. . . - , . . .,a ' en e would not ohjecc the aim One effect of the A ward va•ialion if g · t ct - h h · • • ran e , 1s t at ot er tra111eeships approved for this · d tr , I'"' · the Award apply unless an applicarion was made to vary th- T" - - W A " m us ) wou u automaucally have the rates of pay prescribed by those current!v 1ixcd for two ,-pecific train"eships cone e iammg" adgc ward State and granted. Because of the ditterencc in the rates sought and h th , · · ~ , ern was expresse over the viability of other tr· · h" wh' h t e event e flexibility available under the Trainino Wage A d St . f arnees tps IC may be developed for industrv in ,.. war - , ate JS orgone. J The QMBA stressed the importance of I t· ·t" b . · · re a IV! 1es etween the oroposed traineesh· ~ d · · . • attractive to new entrants. The QMRA said th s " , ..• I ip. an apprenticeships to en"sure that aJI forms o_f training are elJUallv _ . t. issue was a1t1Ca to the development of the tr · · f · · ' steel fixer. The ()MBA expressed concern that ret~t1v1"t1· 's could be d"st I ·d . h ammg rates set or the trameesh1ps ot concrete worker and f " . '"' 0 1 ur le' rn t e event the LI ' r · o trammg may not be a~ attractive thus defeating one of" the 1· .h lT . ' " .mon s app ication was successful. As a result other forms _ . . " puq:xises o t e imon s apphcat10n that t f ·1· opponunmes m the industry. The State Training ('J t d h _ " . " , 1s, o_ acr ttate greater training and emplovment . .ounc1 s rcsse t e importance of estabh hi t h · ; out of the mdustry nor are they too low. s ng ra est at were neither too high so that people are kep< Information was provided to th e · b ~ e .,omm1ss10n y the State 1 raininv Council the BT '"""' · d h · · are about to be reviewed. The QMBA clearly ind1· cated th t th '°' t" d '1 ,r an t e QMBA that the tram mg packages available to the industry S T . . a e con mue re evance of BETA t · h" · · · " · tate rammg Council, whi""Je being more £eneral in its res . fl d h l ." ~amees ips m particular is bemg closely scrutinised. The C . _ . ~ ponse, ag 0 e t at t us type of trameesh h 1· · omrmssioD Ill more specific term~ of change~ to BETA tr . h "'h . . " Ip may ave a 1m1ted life. The BLF advised the state mechanisms. amees ips at t e national level, however, such changes still need to be processed through the Having considered all of the arguments I have decided to refuse the a lication forth . there has been no matenal put before the Comm1·ss,·t1r1 to.subst t" t thpp the followmg reasons. The applicant bears the onus and in this ca~e . • • . an 1a e e argument at th-- · l · f th · • trarnmg and employment opportunities Ind~ed the ~ut,rru· s - f th . 1 ., me us10n o e rates of pay sought would facilitate increased b f h d. . ~ ' . , s10ns o e emp over suggest that the prop d d . . ecause o t e isturbance of relativities in the industry. " ose awar vanation may have a contrary effect In reaching this position T am consciou< of the un· ' b · · " maintaining the State Award a.s a mirror ~f the Fed· iolnAs .~uirrulss10ns concermng the take up of BETA traineeships nationally and the practice of . 1 · 1era wan . n circumstance~ where the trainin . k b " . tramees ups such that they may have a linuted fi•-c I I"ttl l . " . g pac ages are emg reYJewed, includino the BETA employers who wish to engage employees on B1/rA t see. I h". value mbvarymg the Award. In addition, from the information available i~ ~eems that l N h - , ramees 1ps 1a ve een able to do so r)fovided · · d · · pace. " ot mg has been put before me to show that any i d. l . ·. appropnate rn ustnal relations arrangements are m " d · mpe 1ments 1ave e::usted to this approach and ·t h · is.mes ar equately catered from through the mechanism of c rffi,-d . c ' seem~ t at employers and trainees have their ~ e 1 1~ agieements" 1 or all of those reasons, the application is refused. Order accordingly. G.K. FISHER, Commissioner Appearances:- ~r P.. Kmght on behalf of the Queensland ~faster Builders nssocMt1011, lndustnal Org;misation of Employers. .\fr M.1:octor of the Queensland Chamber of Commerce and fntlustry t.muted, Industrial Organi:-;ation of Employers. Mr S. Maxwell and Mr R. Moxham for the Australian Building Con.stmction Employees and Builder~• Labourers' Federation (Queen.sland Branch) Union of Employees. Ms Y. D' Ath for The Australian Workers' Union of Emp!oyees Queensland ' Re!ea~ed: 10 March 1999 ################################################################################################################ft########## I 9 March, 1999 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 253 -- 2 of 2 --