T4493
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TASMANIAN INDUSTRIAL COMMISSION Industrial Relations Act 1984 The Australasian Meat Industry Employees Union MEAT TRADES AWARD
Award variation - $1,000 payment to apprentices on completion of probationary period REASONS FOR DECISION This application by The Australasian Meat Industry Employees Union, Tasmania Branch (AMIEU) was to include a provision in the Meat Trades Award for a $1,000 payment to be made to apprentices on completion of a three months probationary period. The specific clause provisions were detailed in the following terms: " - New Clause 10(i): (i) Where an apprentice has successfully completed the required pre-apprenticeship training course prior to his/her employment, the employer shall pay $1,000.00 to that apprentice upon receipt of the first instalment ($1,500) of the Australian Training Incentive Grant from the Federal Department of Employment Education and Training. This payment shall be for skills acquired during the successful completion of the pre-apprenticeship training course and the achievement of the required training outcomes." Transcript p.3 It was not able to be established to the satisfaction of the Commission how an award obligation could be created to provide for a one off payment for skills acquired before the employment contract has commenced. Mr Edwards appearing for the Tasmanian Chamber of Commerce and Industry Limited (TCCI) put it succinctly in the following terms: "... the claim that is before you constitutes a claim for a payment to persons who are undertaking a course of pre employment training and subsequently become employees, and the claim seeks to regard them for the 10 weeks during which they were not employees but during which time they were undertaking some pre employment training" and later "...what the claim is really about fell this morning from Mr Flynn when Mr Flynn, when asked by you, sir, what the $1,000 was for said very plainly that the $1,000 was being paid because these people were not paid during the 10 weeks of the pre apprenticeship period ..." Transcript p.36 In that regard Mr Edwards contended that in the period in question there was no employer/employee relationship and accordingly the issue in question was not an industrial matter. Also that during the period of pre vocational training, for which the $1,000 payment was being sought, those undertaking the training are not employees for the purposes of the Act. To further illustrate the point Mr Edwards highlighted several exhibits tendered by Mr Flynn appearing for the Meat and Allied Trades' Federation of Australia (Tasmanian Division) (MATFA) to show that the payment being sought to be made by MATFA and the AMIEU to apprentices engaged by employers related to the period when no employee/employer relationship existed. In particular Exhibit MATFA 5 showed: "Where pre-apprentices have been indentured after the initial ten weeks training period and therefore not paid for the ten weeks whilst at the college. A payment of $1000 must be made to the apprentice upon the receipt of the Australian Training Incentive Grant of $1500 which is payable to the employer at the end of the probation period. This is an arrangement that was agreed to by all members of MATFA and other meat industry employers together with the AMIEU. Default of this payment to an apprentice may lead to the termination of this method of training by the Training Authority of Tasmania." Mr Edwards stated in respect of the foregoing Exhibit: "Again it's not recognition of prior learning, it's not talking about the imposition of any measurement of an employee's or non employee's progress through this particular course. It talks about the payment only going to those people who are not paid whilst undertaking this particular course. And that is the true nub of the claim. The designation of a claim going to the question of prior learning is, in my submission, merely colouration and it's really a mechanism being used to try and place this matter in the award by making it something that it is not, and that is an industrial matter. Because this is not an industrial matter. The payment is really for the 10 weeks of the pre apprenticeship course." Transcript p.39 Mr Edwards emphasised: "Accepting that the Tasmanian Industrial Commission does not have authority or power to make an obligation on any person who is not in an employment relationship, the powers of the Commission are those that are derived from the definition of an industrial matter. If it is necessary I can take the Commission to the relevant provisions in the Act that require that the Commission deal with industrial matters. I think the important arises at division 2 at section 19 of the Act which says: Subject to this Act, the Commission has jurisdiction to hear and determine any matter arising from, or relating to, an industrial matter. But the pre condition that binds the Commission is the term 'industrial matter'. Industrial matter is one relating to the relations between employers and employees, if I can use the very most broadest definition that's available. In this instance there is a very clear absence of that master-servant or employer-employee relationship which would be necessary to give rise to a jurisdiction in the Commission, and I frankly feel, Commissioner, that you have no alternative but to dismiss this application as being one that is beyond the general power of the Commission to deal with because it doesn't relate to an employer-employee relationship." Transcript p.42 I concur with Mr Edwards that the award obligation endeavoured to be established by the AMIEU and MATFA relates to a period when an employer-employee relationship does not exist. Whilst it is not part of my reasons for decision in this matter I nevertheless question how the AMIEU and MATFA can seek to solicit a $1,000 payment from an employer based upon the receipt by that employer of Federal Government CRAFT funds. Exhibit TCCI 1 indicates that this clearly was the intention of those two organisations. The relevant extract from that Exhibit was as follows: "Students successfully completing the pre apprenticeship course will be compensated by employers upon receipt of the first CRAFT payment by way of an allowance at a rate agreed to by the AMIEU and MATFA." Mr Edwards submitted: "A number of questions arise from that passage like compensated for what and the fact that it is called an allowance; it's not sought to be a payment that rewards an employee for prior learning. It's an allowance which is payable for the pre apprenticeship course. That, as has been highlighted by Mr Flynn, caused some questions to be asked by a number of employers in the state and, most particular, amongst those was Coles Supermarkets. In that regard I'd like to table another exhibit, if I might. and later "TCCI 2, Commissioner, is a copy of a letter sent by Mr Kevin Gee, State Manager, Coles to Mr John Forster, Senior Executive Officer, TAT, and the important question that's been raised is at point number 5 which says: What legal status does the proposed payment of $1,000 to apprentices have under the relevant award and regulations affecting apprentices? What government approval has been given on this? Transcript p.40 Subsequently the Training Authority of Tasmania acknowledged that it could not impose any legal obligation on any employer to make any payment whatsoever. From all of the evidence available to the Commission it is apparent that an accommodation was reached between the AMIEU and MATFA regarding the payment of $1,000 to apprentices. Apparently employers who refuse to pay do not have access to those trainees who have acquired the stipulated skills. The Commission is unsure how that is regulated and indeed the legality of it. What ever the arrangements are between the two organisations in question, the Commission, for reasons stated earlier, declines to endorse them by including them in the award.
R K Gozzi Appearances: Date and Place of Hearing: |