TRANSCRIPT OF PROCEEDINGS

---

Fair Work Act 2009 57317-1

VICE PRESIDENT WATSON

AM2011/34

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

Application by Australian Industry Group, The
(AM2011/34)
Airline Operations-Ground Staff Award 2010

(ODN AM2008/25)
[MA000048 Print PR988692]




Sydney

10.04 AM, FRIDAY, 15 JULY 2011

PN1

THE VICE PRESIDENT: May I have the appearances please?

PN2

MS V PERRY: If it pleases.

PN3

THE VICE PRESIDENT: Yes, Ms Perry?

PN4

MS PERRY: Perry, initial V, for the Australian Industry Group.

PN5

THE VICE PRESIDENT: Yes.

PN6

MR M BURNS: Your Honour, Burns initial M, for the TWU.

PN7

THE VICE PRESIDENT: Mr Burns.

PN8

MS Z ANGUS: If it please the Tribunal, Angus initial Z, on behalf of the Australian Workers Union.

PN9

THE VICE PRESIDENT: Ms Angus.

PN10

MR S TAYLOR: Taylor initial S, appearing for the AMWU and the CEPU.

PN11

THE VICE PRESIDENT: Ms Taylor.

PN12

MR G NORRIS: If it pleases your Honour, Norris G, on behalf of the ALAEA.

PN13

THE VICE PRESIDENT: Mr Norris. It's your application Ms Perry.

PN14

MS PERRY: Thanks, your Honour. The application is made pursuant to section 160 of the Fair Work Act to correct apparent errors contained in the Airline Operations Ground Staff Award. There are two elements to the application and we would seek to vary the award in two respects. The first being the inclusion of the standard national training wage provisions, and the second being rectifying a multiple shift allowance rate that's provided for at clause 29.6(b).

PN15

AI Group has standing to apply to vary the award and is an organisation that's entitled to represent the industrial interests of employers covered by the modern award. Your Honour, we have filed a draft submission and a draft determination in support of our application and I didn't intend on repeating those in any detail today. A copy of the application's submissions in support, and the draft determination, were served on the relevant union parties on 13 July and we have received responses from the AMWU, and just this morning from the ALAEA as well.

PN16

In relation to the first variation, on 4 September the modern award was made by the Industrial Relations Commission without the national training wage provisions. During stage 3 of the award modernisation process Qantas and AI Group submitted a draft of the modern award which did make provision for the national training wage schedule at clause 19 in schedule C. We note that the national training wage schedule was finalised in stage 4 of the award modernisation proceedings and it's likely that the industrial parties did not thoroughly consider the NTW provisions in the modern award at the time it was made as it had not yet been finalised by the Tribunal.

PN17

While they were not inserted into the modern award, the residual variations varied the coverage of the Airline Operations Ground Staff Award to include employers which provide group training services for apprentices and/or trainees engaged in the industry. Trainees are a feature of the aviation industry and therefore the national training wage provisions, we say, are an integral part of a proper safety net for the industry. The aviation traineeships are included in the appendix, the allocation of traineeships to wage levels to the standard National Training Wage Award.

PN18

We have no objection to the inclusion of the clause developed by Vice-President Lawler in relation to the retrospective application operation of this variation as sought by the AMWU, given that there is a proposed retrospective operative date of 1 January 2010. With regard to the AMWU's written submissions and the other issues contained in that, we do not agree to exclude traineeships relating to qualifications in the Manufacturing Skills Australia metal and engineering and the areas based training packages from the schedule. Traineeships relating to qualifications in those packages are included in the National Training Wage Award and the traineeships relating to those qualifications are also included in the schedule.

PN19

The list of qualifications and the alignment to the wage levels in the appendix E1 in the schedule was agreed between the ACTU, AI Group and ACCI during the award modernisation proceedings, and jointly submitted to the Tribunal. We submit that it would not be appropriate to exclude these trainees undertaking the above traineeships from the schedule, and existing trainees would be left without a safety net, and employers would be unable to engage new trainees. The AMWU in their proposals has left the qualifications relating to the Metal and Engineering and Aerospace Training Packages in its proposed version of appendix E1 but has excluded them through the wording which is proposed for E2 and E3. We say this isn't logical and offends the modern award objective in ensuring that modern awards are simple and easy to understand.

PN20

Their argument to exclude the traineeships relating to the Metal and Engineering and Aerospace Training Packages would appear to relate equally to trainees under the Manufacturing Award, the modern award Manufacturing Award. However the national training wage schedule doesn't have the unions' proposed limited coverage in that award, nor did they seek to limit that in that award. We would look to the decision of 22 December 2010 relating to the termination of modernisable instruments in which the Full Bench acknowledged the Commission's intention to insert the national training wage schedule in relevant modern awards. At paragraph 85, and I quote:

PN21

The Commission took the view that the national training wage schedule was generally appropriate for inclusion in any modern award covering an area in which trainees might be employed. This view seems appropriate, although the possibility of exceptional circumstances cannot be ruled out.

PN22

We would say that the AMWU has failed to demonstrate that any exceptional circumstances apply in this industry. With regard to the discussions referred to between the unions and AI Group regarding licensing issues, we can confirm that one meeting was held four months ago in March this year at the request of the unions. At the meeting the unions advised that they had not yet developed a full position and AI Group advised that they were not convinced that any award changes were necessary but we would of course consider any position that the union may put, and we have heard nothing to date with the exception of some discussions this morning in relation to that matter. We can see no link between the licensing issue and these proceedings. Licensed aircraft tradespersons are of course not covered under the national training wage schedule. If I can turn to the second element of our application your Honour.

PN23

THE VICE PRESIDENT: Just before you do, the AMWU seems to suggest that the apprenticeship system adequately deals with traineeships issues for the trades areas. But you're say that traineeships operate in the Manufacturing Award in the same way as you're proposing in relation to this award?

PN24

MS PERRY: Well, the similarity being that we are seeking the insertion of the standard national training wage provisions in the schedule, similar to that which is in the Manufacturing Modern Award.

PN25

THE VICE PRESIDENT: And you say that under that award, and for trades employees' employed under that award, the traineeship provisions operate?

PN26

MS PERRY: Yes they do in the full schedule without the exclusion as sought by the AMWU.

PN27

THE VICE PRESIDENT: Do they simply exist in the award or do they have practical effect for the trades' classifications?

PN28

MS PERRY: I think they have practical effect in so far as my knowledge, your Honour, yes.

PN29

THE VICE PRESIDENT: Yes, thank you. You were about to move to the second matter.

PN30

MS PERRY: Yes, your Honour, which as I understand is probably less controversial in that it seeks to amend an error in terms of the placement of a decimal point in clause 29.6(b) which relates to the multiple shift allowance in the modern award. As outlined in our submissions the parties' draft submitted to the Tribunal in the award modernisation proceedings specified a dollar amount in (a) being $3.29 and (b) being $3.53. The exposure draft subsequently released by the Commission did contain the multiple shift allowance, however as is the case with modern awards, expressed it as a percentage of the relevant standard rate rather than the amount of $3.53 proposed by Qantas, the ACTU and the TWU.

PN31

The Tribunal's exposure draft erroneously expressed it as 5.5 per cent of the standard rate. When the dollar amount proposed by Qantas, the ACTU and the TWU is expressed as a percentage of the standard rate, it amounts to 0.55 per cent not 5.5 per cent, and we say therefore it's clear that the insertion by the Industrial Relations Commission of 5.5 per cent in 29.6(b) is incorrect. More recently, your Honour, AI Group brought the error to the attention of Fair Work Australia on 17 June in response to the draft determination prepared by Fair Work to reflect the 2010/11 wage review.

PN32

It was acknowledged by Fair Work Australia that the inclusion of 5.5 per cent as opposed to 0.55 per cent in that clause may be an error, and the error results obviously in vastly different amounts for the allowances between (a) and (b), which we say was inconsistent with the parties' positions. In terms of the tenfold cost increase that may very well be the result of the award not being varied we would seek a retrospective operative date of 1 January in light of this error. If it pleases.

PN33

THE VICE PRESIDENT: Yes, to January 2010?

PN34

MS PERRY: Yes.

PN35

THE VICE PRESIDENT: Yes. Yes, thank you Ms Perry.

PN36

MS PERRY: Thanks your Honour.

PN37

THE VICE PRESIDENT: Ms Taylor would you like to start, or it's up to you?

PN38

MS TAYLOR: Thank you, your Honour. I might just start on the point that I understand you were querying Ms Perry on, because I think that's the nub of our whole submission and might make it clearer before I start on the submission proper. Yes there are traineeship provisions, the national training wage schedule, in the Manufacturing Award and we don't oppose that because there are vocational outcomes when one finishes a traineeship that are covered by the award. You have the C classification from C14 right the way through. The engineering traineeships that are in the national training wage schedule articulate at a minimum of C12 and then go up to C10, so C12, C11, C10. There is that vocational outcome. The employee doing the traineeship is covered by a classification covered by the award.

PN39

Our point with the Ground Staff Award is that there is no classification covering the trainee when they finish their traineeship. There has to be a vocational outcome at the end of the traineeship so that is why we say within the classification in the Ground Staff Award of a trades assistant, which is a C14 equivalent, there is no traineeship under the national training wage schedule that would articulate into that vocational outcome. It goes from a C14 to a C10. There is no C13, 12 of 11 equivalent in the Ground Staff Award. So Ms Perry says that is an issue because there are trainees in the industry of aerospace and engineering, and we don't dispute that. But they already have a safety net and that safety net is the Manufacturing Award operating as it does as an occupational award across a variety of industries. That really is the nub of our submission. So there's actually a jurisdictional problem there.

PN40

THE VICE PRESIDENT: So when they're a trainee they're covered by the Airline Operations Award?

PN41

MS TAYLOR: I beg your pardon?

PN42

THE VICE PRESIDENT: When they're a trainee they're covered by the Airline Operations Award?

PN43

MS TAYLOR: Well, no. We say when they're doing metal and engineering there are clerical - there may be transport traineeships covered under the aviation package which do equate to a classification in the Ground Staff Award. We don't dispute that. However the metal and engineering classifications in the award, which are at clause 15.3, do not have a classification that would cover a trainee after they articulated from their traineeship. The provisions of the National Training Wage Award as they appear at E.3 of AIG's application specify that - and this is the standard national training wage schedule, "The schedule applies in respect of an employee covered by this award". If you're doing a metal and engineering traineeship in the aerospace or the metal and engineering traineeships you can only articulate at a minimum of a C12, C11 or C10 outcome.

PN44

THE VICE PRESIDENT: So rather than using those letters that aren't in this award what is the application, do you say, of the national training wage in relation to the classifications in this award?

PN45

MS TAYLOR: We say it has no application in respect of the metal and engineering and aerospace qualifications because there is no classification. For the clerical - - -

PN46

THE VICE PRESIDENT: What classifications does it apply to - well, yes there are certain classifications in the maintenance and engineering stream.

PN47

MS TAYLOR: That's right, and you have a trades assistant classification.

PN48

THE VICE PRESIDENT: Yes.

PN49

MS TAYLOR: And that is the equivalent of a C14. It's the same entry level. It's the minimum federal wage minimum level. And then you go immediately to an aircraft maintenance engineer which is a qualified-based tradesperson who has done an apprenticeship. There is not a traineeship that would articulate into an apprentice outcome. But that's not the same - and we don't say it's the same - example at 15.1 for the aviation classifications. There's a range from level 1 to level 8. They may clearly - the aviation traineeships in the National Training Wage Award - have a vocational outcome within that structure. I haven't turned my head to that because that's more a logistics, a transport, and storage - as I understand it - classification structure. But for the maintenance and engineering stream there is no vocational outcome for any of the traineeships that are under the National Training Wage Award.

PN50

THE VICE PRESIDENT: When you say vocational outcome, you mean a classification?

PN51

MS TAYLOR: A classification. Yes, I do, your Honour. But we do say that trainees do have a safety net if they are in the occupation of metal and engineering operating in the aerospace industry because they have the coverage of the Manufacturing Award as it operates in its occupational status.

PN52

THE VICE PRESIDENT: Because they are trainees in relation to classifications covered by that award.

PN53

MS TAYLOR: Yes.

PN54

THE VICE PRESIDENT: So the simple issue really is which award covers those particular trainees. If they're training for transport or - - -

PN55

MS TAYLOR: Metal and engineering - - -

PN56

THE VICE PRESIDENT: - - - or a licensed aircraft maintenance position covered by this award then the traineeships provisions that might be inserted in this award would apply to them.

PN57

MS TAYLOR: No, your Honour, because the licensed aircraft maintenance engineers come through an apprenticeship and apprentices are not covered by the national training wage provisions.

PN58

THE VICE PRESIDENT: Okay, so there are none of those maintenance and engineering streams that are capable of being covered by traineeship provisions?

PN59

MS TAYLOR: No your Honour. Well I'll leave that question to ALAEA.

PN60

THE VICE PRESIDENT: Yes, and because of that position regarding award coverage what are you proposing exactly in relation to the schedule?

PN61

MS TAYLOR: Well in relation to the schedule this is at attachment A to the submission that was lodged quite late last night. I'm not sure if your Honour has a copy of our submission?

PN62

THE VICE PRESIDENT: Yes I do.

PN63

MS TAYLOR: Yes. So the bold bits in attachment A identify the amendments to AIG's draft determination.

PN64

THE VICE PRESIDENT: There's a lot of bold. Each of the definition headings have bold.

PN65

MS TAYLOR: Okay, your Honour. At paragraph 2 of attachment A.

PN66

THE VICE PRESIDENT: 2(b)?

PN67

MS TAYLOR: A2(b), yes.

PN68

THE VICE PRESIDENT: Yes. So that's the Vice-President Lawler provision.

PN69

MS TAYLOR: That's correct, your Honour.

PN70

THE VICE PRESIDENT: And what other bold?

PN71

MS TAYLOR: If we turn over the page the definition - it's on the third page. I apologise for not having numbered pages. The definition of training package.

PN72

THE VICE PRESIDENT: Yes.

PN73

MS TAYLOR: The bold text in there following trainee package:

PN74

Training package means the competency standards and associated assessment guidelines excluding those from Manufacturing Skills Australia's Metal and Engineering and Aerospace Training Package.

PN75

Then further down at E3, Coverage, we again qualify that the coverage of the schedule subject to those clauses:

PN76

Applies in respect of an employee covered by this award who is undertaking a traineeship, whose training package, excluding those from Manufacturing Skills Australia's Metal and Engineering and Aerospace Training Packages.

PN77

Ms Perry is correct. Within the actual trainee packages identified at appendix E1 the Aeroskills Certificate II is still contained within that list. We would be happy to take it out or strike it through any other way that would make the award easy to comprehend and be easy to use. But we thought with those exclusions bold and up front that would be sufficient, but if there is another way of making our intent more clear we're certainly happy to look at the terms of that.

PN78

THE VICE PRESIDENT: How would those employees be covered by the award in the first place if there's no classification for them?

MS TAYLOR: Exactly, your Honour. But there seems to be, you know, some confusion about that.

PN79

THE VICE PRESIDENT: Yes, but the schedule only applies to an employee covered by the award.

PN80

MS TAYLOR: That's right, your Honour. We say that in fact the trainees aren't covered by this award and could not be covered by the award.

PN81

THE VICE PRESIDENT: That's what the standard clause says in clause E3, "The schedule applies in the employee covered by this award undertaking a traineeship".

PN82

MS TAYLOR: But the fact that the schedule is a standard schedule, it lists a variety of training packages which aren't relevant to the award, we thought we should make it abundantly clear - because there are some metal and engineering classifications in the award, that we should make it abundantly clear that the traineeship provisions do not apply. But I take your point. We say that they're not covered.

PN83

THE VICE PRESIDENT: My concern is with the national training wage schedule having been carefully prepared to apply on a uniform basis in all awards. To tinker with that may have unintended consequences or may simply be unnecessary. Wouldn't this be a problem in relation to other awards where parts of the national training wage schedule just don't apply but it's put in, in a standard form anyway, rather than change it each time it's put into an award?

PN84

MS TAYLOR: I think Mr Norris is going to address that question, but for my contribution those awards and those matters would be on their own merits at a particular point in time. But in this situation we have one party saying that the metal and engineering provisions actually do apply in that scenario you propose there may not be a party saying[sic], but the retail provisions apply in the Clerical Award. They're listed there, but nobody says that they actually apply. But that's not the circumstances in this matter.

PN85

THE VICE PRESIDENT: Well, there might be a different position regarding the classifications in the award - and Mr Norris, I assume, is going to address that - compared to the situation of classifications which aren't in the award in the first place, such as normal trades' employees, not the specific trades of licensed aircraft and maintenance engineers. But if those employees aren't covered by this award, you say they're covered by the Manufacturing Award and the coverage clause only applies in respect of an employee covered by the award, then I'm wondering whether there is any need for an exclusion if that point is clearly understood.

PN86

MS TAYLOR: If that point is clearly understood there may not be a need for an exclusion.

PN87

THE VICE PRESIDENT: Yes, and then I wouldn't be making changes to a schedule that I thought applied on a uniform basis and had been drafted to apply to multiple awards on a uniform basis, and apply in so far as it does apply to that award in that way.

PN88

MS TAYLOR: Yes, well that would be appropriate if it was - and I understand the dilemma.

PN89

THE VICE PRESIDENT: If it was clear.

PN90

MS TAYLOR: Yes.

PN91

THE VICE PRESIDENT: Yes. Okay.

PN92

MS TAYLOR: Thank you, your Honour.

PN93

THE VICE PRESIDENT: And you don't have any submissions in relation to the other application?

PN94

MS TAYLOR: To the allowance? No, your Honour, that did not come from an award which the AMWU had members employed under.

PN95

THE VICE PRESIDENT: Yes. Thank you Ms Taylor. Who would like to go next? Mr Norris?

PN96

MR NORRIS: Yes. Thank you, your Honour. If I might just address the question that you raised in regard to the carefully designed national training wage structure. Your Honour, the anomaly here is that the classifications as they were inserted into the modern award at the time are limited effectively to the AQF3 level. The AME rate that was struck in the Ground Operations Award is the C10 rate. Now that's a carryover from the old GA Award and it was easier at the time, I think, for that to be carried over rather than to get into the debate of whether the rate or not was relevant to the industry at the time.

PN97

At the time we made submissions that in the award modernisation process that we should be taking into account what was relevant at the time, what was imminent, and that was the review of the competencies throughout the industry in regard to the different HUF levels and how they would relate to an appropriate rate. Now if I may then jump back to the national training wage, as I understand it the national training wage schedule is effectively designed around the metal structure in regard to the various C levels, and that it is, could I say, amortised back across various industries; because ever since I think the late 80s, of the structural efficiency decisions and the multi skilling principles, that most awards were based on the C10 rate.

PN98

However the world has changed. The metal structure in effect encompasses all the AQF levels all the way through to effectively ACF6 now, and where the Ground Operations Award falls foul of the national training wage schedule is that the national training wage schedule is in fact a modern structure, whereas the structure in the Ground Staff Award is an ancient structure. The old trade level qualification popped an apprentice out at the C10 rate, which is now equivalent to AQF3.

PN99

But since 1996 the industry has been revising all the competencies and CASA has now changed the regulations which came into effect on 1 July this year, where above the appropriate competency and standard for an AME in the industry is the AQF4 rate, which is effectively the C7 rate in the Metals Award. And when you articulate through the various stages of an apprenticeship, being AQF2, AQF3, AQF4, with the intention that you stack all these together to become a tradesperson in a vocational trade, you can only pop out at an AQF4 now.

PN100

I say that on the basis that the industry as sitting out here has gone that far on a qualitative basis in the level of competency of the tradesperson and an effective equivalent rate that they pop out at, whereas the Ground Operations Award hasn't caught up with that. Now the parties are meeting in regard to that, which was mentioned by Ms Perry, to look at the overall structure of the Ground Operations Award in regard to engineering to, in effect, more modernise it as such, to take into account the latest CASA regulations and the way the industry has moved in general.

PN101

What it means though in practical terms in regard to coverage is that the national training wage is designed to cater for trainees who may articulate through various stages towards AQF4 certificate level. There is no AQF classification in the Ground Staff Award. So effectively there's no level to aspire to for the way it's structured, the way the national training wage is structured, hence the argument that there's not a relevant classification in the award for people to aspire to. Your Honour, I prepared a very brief submission of some five pages very late yesterday afternoon. I haven't had a chance to file it, but if I could hand that to you.

PN102

THE VICE PRESIDENT: Have you had a chance to speak to the AIG about these matters?

PN103

MR NORRIS: Well that was going to be my last line of my submission, your Honour, and I'll maybe cut to the chase. It may suit your Honour to adjourn this matter today and direct the parties to meet to canvass the issues between them, because obviously we're a long way, away here today and on two different approaches to the way things should be done. It may be appropriate to take maybe a fortnight for the parties to meet and confer and hopefully come back with an agreed position on the way it should be dealt with.

PN104

THE VICE PRESIDENT: Are your only issues the application of the training schedule to the engineering stream?

PN105

MR NORRIS: Engineering, yes.

PN106

THE VICE PRESIDENT: And if there's any relevance of the training schedule to other streams are there any problems with the training schedule being inserted for those other purposes?

PN107

MR NORRIS: Not at all, and as a matter of fact in simplistic terms, given the way their application is worded, we say it's very simple to do and you just delete out of the schedule the reference to the aeroskills package. Then we would put on the record that the - we would support then that the appropriate safety net for traineeships travelling towards the maintenance and repair industry as such, versus the manufacturing aerospace side of things, would rightfully rest the trainee within the Metal Trades Modern Award until such time as effectively they took out an apprenticeship, which they'd have to do then to go to the other levels, if you know what I mean, in the industry.

PN108

I think that's a cleaner way to do it, and part of our submission also goes to the dichotomy it sets up in regard to rates for an apprentice and a trainee, which could be confusing in general for the industry and create a situation where we have effectively the same quality and level of labour with two different rates. Which we would think that wouldn't be equitable either way, because you'd have people doing an apprenticeship in years one and two who are effectively getting less money, travelling towards an AQF 2 part qualification, where the trainees effectively are getting more money.

PN109

Then you could also have the situation of a trainee going through to AQF4 on a traineeship effectively, although we say that that's probably not allowed under the New South Wales Apprenticeships and Traineeship Act 2001. But in the later stages of that training, effectively the trainee gets less than the apprentice. So in inserting the training wage in there you set up that dichotomy within the actual award itself for virtually the same qualification. So we say the cleaner way to do it is to say, "Okay, well look, traineeships rightfully exist under the MAA, the Metal Trades Award, and the apprenticeship area for aerospace exists under the Ground Operations Award, because the Travel Award is maintenance and repair".

PN110

Then we would reserve our rights in regard to the parties negotiating encompassing maintenance and repair type traineeships' rates into the modern award once the parties reach a consensus on how to vary it, to take into account the modern competency structure which has resulted from the change in the CASA regulations and civil aviation regulations. Having said that, your Honour, we propose that an adjournment for, say, a fortnight where we could meet with the AIG, hopefully run through those scenarios with the appropriate people - I'm sure Qantas has an interest in this - and if we set a date further to come back and hopefully we've got an agreed position.

PN111

THE VICE PRESIDENT: Does the ALAEA have any interest in the other allowance issue?

PN112

MR NORRIS: Yes, your Honour. We just say in principle that in regard to the retrospectivity we think that would be highly unusual. If the award at some stage stated, even by error, that this was the rate and people were paid the rate, if it was retrospectively made the employer may have a right to then recoup the money that people thought they were entitled to in the first place. And there may be some employees out there who would in a way be disadvantaged because of effectively a mistake of the Commission. We'd say that that shouldn't happen. That if anything, whatever may have been paid was legally paid at the time and there shouldn't be any retrospectivity.

PN113

THE VICE PRESIDENT: Yes. Ms Angus?

PN114

MS ANGUS: Thank you, your Honour. Your Honour, the issues of concern I think have been well put by the AMWU and the ALAEA. From our perspective, supporting what both past two speakers have said, we don't in principle oppose the application and the principle of providing a safety net for trainees, but so long as any variation to the award makes clear that the national training wage only applies to those employees who are covered by that award. In that respect we'd support the proposal that has been put by the AMWU, which makes it clear it's not in effect an exclusion, it's just making it plain that it doesn't apply to the Metal and Engineering and Aerospace Training Packages. If there is a greater way to finesse that then we'd also support the proposition that perhaps the parties have a fortnight or so to confer about wording.

PN115

But we wouldn't support the application if the result is to vary the award to create an ambiguity, so that people on the face of the award may be confused in thinking that the training wage does apply to engineering people. So if you're inclined to push ahead we would support the application, subject to the amendments proposed by the AMWU. But we have no objection to perhaps providing the parties with some further time to work out a better way to draft it, in light of your comments about some consistency in the schedules. In other respects we don't oppose the application, but subject also to the comments made about providing protections for employees, to not seek to recover money that was in good faith provided to employees. They're our submissions, your Honour.

PN116

THE VICE PRESIDENT: Thank you. Mr Burns?

PN117

MR BURNS: Thanks, your Honour. Firstly I'll just deal with the decimal point issue. The TWU doesn't oppose that part of the application. That's an obvious mistake, however again we submit that VP Lawler - a retrospective caveat maybe should be put in so that employees aren't subjected to a back pay issue with their employer. In relation to the application generally we have the benefit of the modern awards being more than a year down the track now where we're almost at the stage where we're going to go through the two yearly review.

PN118

We've all seen over the last year - we've had the benefit of seeing over the last year and a half that the merging of all the awards into a limited number of awards had not ended up in awards that are satisfactory for everyone. There are little mistakes here and there, there are little anomalies, and there are some confusion issues that have been caused. In this case the traditional award that became the current Airline Operations and Ground Staff Award was a non technical Airlines Operation Award under the old system. So the bringing in of technical provisions going forward has meant some duplications and some other broader (indistinct) from the industry awards as well.

PN119

So we have the benefit of when applications are made to just apply a schedule of the national training wage schedule just for the sake of applying it for consistency, we have the benefit of seeing how the awards have moved over the last year and a half, and so we do have potentially the benefit to do something about that now; since the AIG hasn't waited till February for the award review process to deal with this particular issue, which I think would've been the more appropriate place to deal with this. In relation to the discussions it does appear that today is the first time the parties have all discussed this particular variation. This is the first time I've discussed this with anyone here at the table.

PN120

The TWU wasn't involved in the original discussions four months or so ago, but bearing in mind the TWU's position is a little bit different because we're non technical aspects of the Airline Operations Ground Staff Award, the baggage handling, fleet presentation, transport provisions, the tugs et cetera. As part of the application in general we don't have an issue with it, as opposed to our employees however in relation to the award generally we support the submissions of the AMWU and the ALAEA in relation to we do have the benefit of having awards that have operated.

PN121

So therefore rather than just applying the schedule for the sake of applying it, we should look at our experience and make adjustments where necessary too, so we don't end up building ambiguity into the award. I agree with the stand that perhaps some consultation should occur. I've done many variations of the Road Transport Awards that come through in front of Senior Deputy President Harrison in particular, and it's very rare that these matters get dealt with on the first occasion.

PN122

Usually this is dealt with essentially as a first return of the matter, where the parties first have the opportunity to air their views about the application, and the parties are maybe sent away for discussion before the matter is actually listed for a proper full hearing with evidence on two bases; one on the issue of whether there's an ambiguity or an error, or whether a discretion should be applied to vary the award on that up front basis; and secondly whether there's merit behind the application as well. So I think, before we get into a full hearing of the matter, the matter would benefit from more discussion between the parties in relation to the technical aspects of the application.

PN123

THE VICE PRESIDENT: When you say the technical aspects of the application does that - - -

PN124

MR BURNS: I mean in relation to the aspects of the - as I say, the TWU does not oppose the application as it applies to its members.

PN125

THE VICE PRESIDENT: Yes.

PN126

MR BURNS: It doesn't appear to - we do have training under the AQF qualifications. There are under the aviation stream certificate IVs in aviation and ground operations and service which our members may be entitled to. However those seem discrete. There's no overlap between this award and other awards in relation to the actual - our union coverage. But in relation to the technical trades that the other unions are speaking with, there is some overlap because of the nature of the industry award versus the Ground Staff Award. So I think it - - -

PN127

THE VICE PRESIDENT: So from your point of view is that the only area where there is the overlap and desirability of further discussions before there's any variation to the award; the application of the national training wage schedule to the classifications in clause 15.3 of the award?

PN128

MR BURNS: That's what I would say, yes. Unless my friends disagree.

PN129

THE VICE PRESIDENT: Yes.

PN130

MR BURNS: Then that would be consistent with - - -

PN131

THE VICE PRESIDENT: Yes. Thank you Mr Burns.

PN132

MR NORRIS: Your Honour, just on one point, and it's only a very small technicality.

PN133

THE VICE PRESIDENT: Yes, Mr Norris?

PN134

MR NORRIS: The copies of the awards that we've effectively been able to download as of yesterday don't contain the National Wage Case rise as of 1 July, and as we understand the application the rates that are being used in the application may include that rise. So we're not sure whether the rise has been included or not in the trainee schedule as proposed, that's all.

PN135

THE VICE PRESIDENT: What wage rate for a trades assistant do you have?

PN136

MR NORRIS: We have the C10 rate as 686 - the trades assistant?

PN137

MS TAYLOR: Is five - - -

PN138

MR NORRIS: 589.30 and the aircraft maintenance engineer at 686.20.

PN139

THE VICE PRESIDENT: The copy I've got says that that is varied from the first pay period commencing 1 July 2011.

PN140

MS TAYLOR: Yes. This is - - -

PN141

MR NORRIS: Yes, so that - - -

PN142

MS TAYLOR: This is the current rate for - - -

PN143

MR NORRIS: Okay.

PN144

MS TAYLOR: Yes.

PN145

MR NORRIS: So that is the current rate then?

PN146

MS TAYLOR: Yes. That's right.

PN147

MR NORRIS: Okay. Right. Thanks, your Honour.

PN148

THE VICE PRESIDENT: Yes, thank you.

PN149

MR NORRIS: On that basis, your Honour, I'd say that in our submission, the ALAEA's submission, that the apprenticeship figures in comparison to the traineeship figures are on an equal basis.

PN150

MR BURNS: Sorry, your Honour. If I just might add that the retrospectivity argument also applies to the schedule part of the application, rather than just to the decimal point part of the application.

PN151

THE VICE PRESIDENT: Yes, I think you were the first to raise it in relation to the decimal point issue. But you - - -

PN152

MR BURNS: I think the LAMEs are with me on that.

PN153

THE VICE PRESIDENT: Yes.

PN154

MR BURNS: Thank you, your Honour.

PN155

THE VICE PRESIDENT: Well I think you had proposed the Vice-President Lawler clause, whereas the other unions had opposed retrospectivity, so maybe a slightly different position that might amount to the same thing.

PN156

MS TAYLOR: If I could - - -

PN157

MR NORRIS: We oppose the retrospectivity then in principle.

PN158

MS TAYLOR: Your Honour?

PN159

THE VICE PRESIDENT: Very well.

PN160

MS TAYLOR: We didn't oppose it with the protection.

PN161

MS ANGUS: Yes, the same position that it's - - -

PN162

THE VICE PRESIDENT: Yes.

PN163

MS ANGUS: I mean, I'm not sure that much particularly turns on it but in our position we don't oppose retrospectivity so long as the protections apply in both instances of the decimal point issue and the wages issue.

PN164

THE VICE PRESIDENT: Yes. I think the same practical effect arises.

PN165

MS ANGUS: Yes.

PN166

THE VICE PRESIDENT: Ms Perry?

PN167

MS PERRY: Your Honour, if I could just say in terms of the retrospectivity we don't oppose it in relation to the first variation regarding the national training wage, subject to the Tribunal's views. But in relation to the incorrect placement of the decimal point we would seek an operative date of 1 January 2010 in light of the fact that it is a clear error, and it seemed an anomaly in terms of the tenfold increase in costs, if it were to stand.

PN168

THE VICE PRESIDENT: It would appear to have already occurred, if it has had application. It's a question of who bears the penalty, as it were, of a retrospective change.

PN169

MS PERRY: Yes, your Honour, and I'm not of course aware in terms of any action that employers may take in terms of the correction of that error, or indeed the practices that they may have taken in the past. But we would say that 1 January 2010 would be the appropriate operative date in light of that error.

PN170

THE VICE PRESIDENT: And you'd oppose a clause such as that proposed by Vice-President Lawler in relation to that?

PN171

MS PERRY: Yes, we would. Yes, that's correct. In relation to I guess some of the other issues raised by my friends, AI Group's position is in the primary instance that we would not agree to the exclusion as proposed. The standard schedule we say is appropriate and do not see the exceptional circumstances needed to vary that. In relation to the discussions held four months ago that have been mentioned, we see that as quite clearly a very separate issue to this application.

PN172

Those discussions were in relation to licensing issues and we are not convinced of the need to change the Airline Operations Ground Staff Award in light of those issues as yet. As I mentioned, we've heard nothing from the unions from that date, but of course we would consider any application or certainly discussions, or any proposal that they may provide to us in relation to that. So we see that as a separate issue, and urge the Commission to vary the award in the terms sought in the draft determination. If it pleases.

PN173

THE VICE PRESIDENT: There are two variations sought to the Airline Operations Ground Staff Award 2010. The first relates to the insertion of the national training wage appendix. There is generally not opposition to the insertion of that appendix, however concerns have been raised as to its application to the maintenance and engineering stream, and the coverage of the employees performing maintenance and engineering work in this industry as to the coverage of this award or the Manufacturing Award.

PN174

I would propose to make the variation to this award to insert the national training wage schedule, however I will provide that it has no application, pending further order of the Tribunal, to the maintenance and engineering stream. My intent in that exclusion would be that the parties concerned with the maintenance and engineering work have discussions concerning the matters that have been raised today, with a view to reaching an agreed position regarding the relevance and possible application of the national training wage schedule to the maintenance and engineering stream.

PN175

I would also add in the variation a clause that has been inserted in other awards concerning the retrospective variation. So the variation would apply from 1 January 2010 but that would be subject to a clause as proposed by the AMWU in clause 2(b) of the draft determination provided to the Tribunal.

PN176

As far as the other application is concerned I propose to grant the application. It does appear that that variation arises from an error in the modern award. I propose to make that variation with effect from 1 January 2010, and I would also propose to insert a clause whereby employees who may have been paid in accordance with the award as it currently stands not be required to repay those amounts, in line with the provision again proposed by the AMWU in relation to the training wage.

PN177

I would direct the AIG to prepare a revised draft award draft determination giving effect to the decision that I've announced, and I request the parties to have further discussions regarding the training wage and engineering stream issue that I have identified. The matter can be re-listed at the request of any party for the purposes of further consideration of that aspect of the application.

PN178

The proceedings are now adjourned.

<ADJOURNED ACCORDINGLY [10.58AM]