2023 WAIRC 00900
REVIEW OF METAL TRADES (GENERAL) AWARD SCOPE CLAUSE PURSUANT TO S 37D OF THE INDUSTRIAL RELATIONS ACT 1979 (WA)
WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

COMMISSION IN COURT SESSION

CITATION : 2023 WAIRC 00900

CORAM
: COMMISSION IN COURT SESSION
CHIEF COMMISSIONER S J KENNER
SENIOR COMMISSIONER R COSENTINO
COMMISSIONER T EMMANUEL

HEARD
:
TUESDAY, 7 NOVEMBER 2023

DELIVERED : TUESDAY, 14 NOVEMBER 2023

FILE NO. : CICS 15 OF 2022

BETWEEN
:
COMMISSION'S OWN MOTION
Appellant

AND

(NOT APPLICABLE)
Respondent

CatchWords : Industrial Law (WA) – Commission’s Own Motion – s37D – Variation to scope of private sector award – Replacement of list of industries – New definition of metal trades and associated industries and occupations – Comprehensive industry and occupation coverage – Express application to labour hire organisations – Award scope varied
Legislation : Industrial Relations Act 1979 (WA)
Fair Work Act 2009 (Cth)
Result : Award varied
REPRESENTATION:

Mr B Entrekin on behalf of the Hon. Minister for Industrial Relations

Mr G McLaren on behalf of the Automotive, Food, Metals, Engineering, Printing & Kindred Industries Union of Workers - Western Australian Branch

Case(s) referred to in reasons:
Commission’s Own Motion v (Not Applicable) [2023] WAIRC 00801
Reasons for Decision

COMMISSION IN COURT SESSION:
1 In reasons for decision concerning the s 37D review of the Restaurant, Tearoom and Catering Workers’ Award scope clause in CICS 5 of 2022, the Commission in Court Session set out the process for identifying awards suitable for a scope review, and for reviewing that award’s scope: Commission’s Own Motion v (Not Applicable) [2023] WAIRC 00801 (CICS 5 Reasons). It also set out the reasons for and intention behind the scope variations which were made to that award.
2 The Metal Trades (General) Award was another of the awards identified as suitable for scope review, as a result of the process described in the CICS 5 Reasons.
3 The Commission published notice of the proposed variations to the Metal Trades (General) Award, and of the opportunity to be heard in relation to them, in the Industrial Gazette and on the Commission’s website. It also gave notice to the Hon. Minister for Industrial Relations, UnionsWA, the Chamber of Commerce and Industry of Western Australia (Inc) (CCI) and the Australian Resources and Energy Employer Association, formerly known as the Mines and Metals Association.
4 It directed that the following parties to the Award and other organisations be given notice:
(a) the Automotive, Food, Metals, Engineering, Printing & Kindred Industries Union of Workers  Western Australian Branch (AMWU);
(b) Electrical Trades Union WA;
(c) Motor Trades Association of Western Australia (MTA);
(d) four named employer respondents to the award, three of whom are local government authorities; and
(e) four other private sector businesses likely to be state system employers.
5 The Commission directed the four private sector businesses be given notice, as being a sample of employers which the Commission considered were reasonably representative of the employers who would be bound by the proposed variations.
6 No individual, organisation or employer has advised the Commission of any opposition to the proposed variations. The Minister, the AMWU and the MTA each told the Commission they supported the proposed variations.
7 The proposed variations adopt changes drafted by Mr Brendon Entrekin and his colleagues from the Department of Energy, Mines, Industry Regulation and Safety, Private Sector Labour Relations Division on behalf of the Minister. The Commission is grateful to Mr Entrekin and his colleagues for the valuable assistance they have provided to the Commission in this regard.
8 The Metal Trades (General) Award’s scope provision is currently defined by reference to businesses engaged in one or more of the industries listed in clause 19 of the award. Most of the list of industries has not changed since the award was made in the 1960s.
9 The clause 19 list of industries is long, but it is not comprehensive. Whether because of the passage of time and the natural evolution of the metals, manufacturing and engineering industries in Western Australia, or for other reasons, there are gaps in coverage. There are some employers and employees who are engaged in the metal trades and associated industries who are currently awardfree, even though the work done by them is similar to the types of work done in one or more of the 107 listed industries that are covered.
10 Accordingly, the proposed amendments are intended to create comprehensive coverage by reference to a definition of ‘metal trades and associated industries and occupations’. The amended scope clause ensures the award applies, as an occupational and industrybased award, to all employees employed in any classification mentioned in the award in the ‘metal trades and associated industries and occupations’.
11 The definition is largely modelled on the scope clause of the federal Metal, Engineering and Associated Industries Award 1998, which is a premodern federal award that is no longer in force but previously had a close nexus with the Metal Trades (General) Award.
12 To ensure that there is no unintended omission of industries currently covered by the Metal Trades (General) Award as a result of the revised scope, the variation includes a safeguard provision to clarify that all industries previously covered by the award continue to be covered.
13 Further variations are intended to:
(a) expressly refer to the fact the award applies to labour hire organisations that supply employees to host employers to perform work that is otherwise covered by the award; and
(b) expressly state that the award does not apply to employers and employees that are national system employers and national system employees under the Fair Work Act 2009 (Cth).
14 These purposes are common to the rationale and intent of the variations in the CICS 5 Reasons. The CICS 5 Reasons should be referred to for elaboration about the purpose of the variations.
15 There are also minor variations to locate the old list of industries as an appendix to the award, and to update the Traineeship provisions to reflect the amended definition of metal trades and associated industries and occupations.
MTA’s proposed further variations
16 The MTA asked the Commission to consider a further variation to include an express reference in the definition of ‘metal trades and associated industries and occupations’ the following industry:
The selling and/or handling and/or retreading and/or storing/distribution and/or fitting and/or repairing of tyres or the like made of any material.
17 The MTA submitted that this addition would provide greater clarity and remove any doubt that its members who operate tyre shops are covered by the award. The MTA notes that the award identifies tyre dealers, retreaders and manufacturers in the current list of industries, although it does not expressly refer to ‘tyre fitters’. The variation proposed is, therefore, not intended to alter the current scope in this regard, but to make it easier for employers and employees to understand the scope of the award.
18 The Minister and the AMWU supported the MTA’s proposed further variation. No party opposed it.
19 The MTA did not appear in person at the hearing of this matter. The Commission was unable to clarify what was intended by the proposed variation’s reference to ‘tyres or the like’ or what products might be considered ‘like’ tyres. While the Commission is satisfied that the scope should be varied with express reference to this industry, the variation we adopt is slightly different to that proposed.
Conclusion and Order
20 We note that in the course of these proceedings, the Minister has identified three other State awards to which the AMWU is a union party, that could potentially be consolidated into the Metal Trades (General) Award. We do not intend that this matter limit the possibility of further scope variations to achieve consolidation in the future, if consolidated is supported by the AMWU.
21 The Commission orders that the Metal Trades (General) Award be amended in accordance with the Schedule attached to these reasons, such variations to take effect from the date of the Commission’s order.

SCHEDULE

1. Delete the following text in Clause 1.2:

19. INDUSTRIES

2. INSERT THE FOLLOWING TEXT UNDER ‘APPENDIX 4  ARCHITECTURAL ALUMINIUM FABRICATION CLASSIFICATION’ IN CLAUSE 1.2:

APPENDIX 5  OLD LIST OF INDUSTRIES

3. Delete Clause 1.3 in its entirety and insert in lieu thereof:

1.3  AREA AND SCOPE

1.3.1

(a) This Award applies to employers in the “metal trades and associated industries and occupations” and to all employees employed by those employers in any classification mentioned in Clause 4.8  Wages and Supplementary Payments of PART 1  GENERAL or Clause 13.  Wages of PART 2  CONSTRUCTION WORK of this Award.

(b) For the avoidance of doubt, this Award also continues to apply to all employers and employees who were previously bound by the Award prior to CICS 15 of 2022.

Note: A list of the industries the Award previously applied to prior to CICS 15 of 2022 is included at Appendix 5.

1.3.2 This Award also applies to:

(a) employers that supply labour on an onhire basis to host employers in the “metal trades and associated industries and occupations” in respect of onhire employees employed in the classifications mentioned in this Award, and those onhire employees, while engaged in the performance of work covered by this Award; and

(b) employers that provide group training services for apprentices and/or trainees in the “metal trades and associated industries and occupations” in respect of apprentices and/or trainees employed in one or more of the classifications mentioned in this Award, and those apprentices and/or trainees, while engaged by a host employer in the performance of work covered by this Award.

Exclusion to scope clause

1.3.3 This Award does not apply to:

(a) employees who are onhired to electrical contracting businesses or to employers who are engaged in the electrical contracting industry as defined under the terms of the Electrical Contracting Industry Award R 22 of 1978.

(b) employers and employees who are subject to the national industrial relations system.

4. Insert the following text as a new definition in subclause 1.6.1 of Clause 1.6:

1.6.1 General:

“Metal trades and associated industries and occupations” means the metal working and engineering and fabricating industries, including any of the following:

(1) mechanical and electrical engineering.

(2) smithing, welding, metal moulding, metal machining, metal pressing and stamping, boilermaking, diecasting, galvanising, tinning, steel pickling and plastic moulding.

(3) casting or fabricating in synthetic resins, or similar materials and including the production of synthetic resins, powders, tablets, etc, as used in such processes.

(4) tool, die, gauge and mould making.

(5) porcelain enamelling, and the manufacture of porcelain enamels, oxides, glazes and similar materials.

(6) electroplateware manufacturing and electroplating of all types.

(7) japanning, enamelling, painting etc, of metallic articles.

(8) drawing and insulation of wire for the conducting of electricity.

(9) generation and distribution of electric energy.

(10) production by mechanical means of industrial gases.

(11) making, assembling, repairing and maintenance of vehicles and metal motor body parts.

(12) making, repairing, reconditioning and maintenance of motor engines, and/or parts thereof, and of the mechanical and electrical parts including the transmission and chassis of motor cars, motor cycles and other motor driven vehicles.

(13) selling, handling, retreading, storing, distributing, fitting, and/or repairing of tyres made of any material.

(14) hand and machine engraving.

(15) installation of all classes and types of electrical wiring equipment and plant, and the repair and maintenance thereof.

(16) manufacture of ceramic articles for use in the metal trades industries.

(17) the manufacture, making, construction, assembling, erection, reconditioning, installation, maintenance, testing and/or repair of:

(a) agricultural implements.

(b) badges and nameplates (including chemical engraving).

(c) bicycles.

(d) bolts, nuts, screws, rivets, washers and similar articles.

(e) bridges and girders.

(f) bright steel bars, rods, shafting, etc.

(g) electrical advertising equipment (including neon signs).

(h) electrical machinery, apparatus and appliances (including valve and globe manufacturing).

(i) fluorescent lighting.

(j) insulation materials and articles.

(k) lifts and elevators.

(l) metal furniture.

(m) perambulators.

(n) radios, telephones and Xray machines.

(o) recording, measuring and controlling devices for electricity, fluids, gases, heat, temperature, pressure, time, etc.

(p) refrigerators, stoves and ovens.

(q) safe and strongrooms.

(r) scales and machines for measuring mass and equipment.

(s) ships and boats.

(t) ventilating and airconditioning plant and equipment.

(u) watches and clocks, including cases.

(v) water fittings.

(w) wet and dry batteries.

(x) window frames.

(18) The manufacture, making, assembly, processing, treatment, fabrication and preparation of all products made from, or containing, steel, iron, metal, sheet metal, tin, brass, copper and nonferrous metal.

(19) Making, manufacture, treatment, installation, maintenance, repair and reconditioning of any articles, part or component, whether of metal and/or other material in any of the above industries.

(20) Making, manufacture, installation, construction, maintenance, repair and reconditioning of plant, equipment, buildings and services (including power supply) in establishments connected with the industries and work described in this clause and maintenance work generally.

(21) Every operation, process, duty and function carried on or performed in or in connection with or incidental to any of the above industries.

5. Delete subclause 4.9.1 of Clause 4.9 and insert in lieu thereof:

4.9.1 Scope:

(1) This clause shall apply to persons:

(a) who are undertaking a Traineeship (as defined); and

(b) who are employed in the “metal trades and associated industries and occupations” and in a classification covered by this Award.

6. Delete Clause 19 in its entirety.

7. Insert a new appendix after ‘Appendix 4  Architectural Aluminium Fabrication Classification’ as follows:

APPENDIX 5  OLD LIST OF INDUSTRIES