Industrial Relations Commission of New South Wales CITATION : Confectioners (State) Award [2001] NSWIRComm 211 Applicant: PARTIES : Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union Respondent: Australian Business Industrial FILE NUMBER: IRC4875 of 2001 CORAM: Kavanagh J CATCHWORDS : Application by the AMWU to vary the Confectioners (State) Award to reflect the decision of the Industrial Relations Commission of NSW in the State Wage Case 2001 - The Commission allowed a $13.00 wage rate increase - The application adds to the Level 5 rate of pay an increase above the $13.00 allowed - The Level 5 rate of pay is for Trainees - Principle 9 of the State Wage Case 2001 allows a trainee's rate to be exempted from the minimum rate of pay allowed for an adult of $413.40 - Noted the Award allows for trainees to serve a Probationary Period - Any breach of the section and conditions should be appropriately notified - Level 5 rate of pay increased by $13.00 - Difference between probationary rate of pay and probationary period of employment distinguished CASES CITED : State Wage Case 2001 105 IR 438 HEARING DATES: 08/08/2001; 08/23/2001 EXTEMPORE JUDGMENT DATE : 08/27/2001 Ms S Terpstra Automotive, Foods, Metals, Engineering, Printing and Kindred Industries Union LEGAL REPRESENTATIVES: Ms M McDonnell Australian Business Industrial JUDGMENT: - 3 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: KAVANAGH J Date: 27 August 2001 IRC4875 of 2001 CONFECTIONERS (STATE) AWARD Application by the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union for variation re State Wage Case 2001 EX TEMPORE DECISION 1 HER HONOUR: An application has been made by the Australian Manufacturing Workers Union ("the AMWU") to vary the Confectioners (State) Award ("the Award") to give effect to wage increases in accordance with the State Wage Case 2001, a decision of the Full Bench of the Industrial Relations Commission of New South Wales on 31 May 2001. 2 There is agreement by the parties as to all wage rates except that related to Level 5. The Commission on 27 August 2001 approved the Levels 1, 2, 3 and 4 wage rates in accordance with the application for variation. The Commission made the approval on that date because of the provision 8(a), as contained in the decision of the State Wage Case 2001. In accordance with the Principals established for effect of the above Decision under the heading "Wage Fixation" the Commission stated as to the increase it granted: 8(a) The operative date will be no earlier than the date of the variation to the award. 3 When the matter was first listed for hearing on 8 August 2001 a disagreement between the AMWU and Australian Business Industrial ("the ABI") as to the Level 5 rate of pay became apparent. The AMWU contended the rate of pay prescribed for Level 5 employees should not be below the Award classification rate prescribed in the State Wage Case 2001 that rate being the figure of $413.40. The application for variation reflects that rate. In the schedule , the Level 5 pay rate reads: $413.40. 4 The ABI does not consent to the proposed increase to the Level 5 wage rate. The ABI submits the Level 5 rate should be increased from $392.10 to $405.10, an increase of $13.00 in accordance with the rate allowed in the State Wage Case 2001 decision. 5 The Level 5 rate in the Confectioners (State) Award (which Award was reviewed by Grayson DP on 21 May 2001) is defined as follows: Classifications Level 5 - trainee entry level A new employee, that is, one who is within the first six months of continuous employment undertaking training which may include, for example, food hygiene and basic quality control. 6 The AMWU in support of its application places before the Commission the history of this Award and notes, in the Award Review under s19, the definition of a Level 5 worker was altered in that a sentence was removed namely: During the first month of this probationary period, employment may be terminated by either party on one hour's notice; thereafter, one week's notice will apply. I am unable to see how this deletion affects this application. 7 Relevantly, in the State Wage Case 2001, some Principles regarding the application of the Decision were enunciated. The following statement appears under the heading "Award Review Classification Rate": 9. The Award Review Classification Rate of $413.40 shall be the rate below which no full time adult employee (excluding trainees, apprentices and employees on a supported wage or on a probationary rate), should be paid under the relevant award. 8 I find, from an examination of the Award, the Level 5 rate of pay falls into the exemption that is acknowledged in the principles under clause 9, that is, it reflects a rate of pay for a trainee which rate can, under the exemption, fall below the minimum rate for an adult full time worker of $413.40. 9 I find therefore an employee who is training at an entry level, as defined in the Confectioners (State) Award, can be paid a rate below $413.40. It is, however, proper any such employee have the benefit of the decision of the State Wage Case 2001 and accordingly a worker employed at Level 5 should receive the appropriate increase and that increase would be the sum of a further $13.00. I therefore approve a Level 5 rate of pay at $405.10. 10 I have considered the submissions of the AMWU, particularly those submissions relating to probationary rates. The submission incorporates into the dispute related to probationary rates the concept of a probationary period. There is a distinction. The AMWU acknowledges some industries employ persons on the Level 5 rate of pay. 11 The AMWU expresses what is a serious industrial concern, namely, that some employers choose to persist in paying the Level 5 rate of pay for lengthy periods of time. If such an industrial incident is found a proper application should be brought to challenge such a practice. The definition of Level 5 is, in itself, restrictive. It refers to a new employee. It refers to that employee undertaking training and it refers to an employee who is within the first six months of continuous employment. Any breach of condition, as to this level of employment under the Award, should be brought before the Commission in the appropriate form. 12 I reject the application to amend the Level 5 rate of pay to $413.40. 13 I reject the alternate application of the AMWU to delete the said Level 5 from the Award. The AMWU concedes there are workers in NSW employed within this category of the Award. 14 I find the Level 5 rate of pay in the Confectioners (State) Award should be $405.10. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.