T5691
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TASMANIAN INDUSTRIAL COMMISSION Industrial Relations Act 1984 Minister for Industrial Relations and Sutherland Nominees Pty Ltd
Industrial dispute - employees rate of remuneration - arbitrated REASONS FOR DECISION This was an application for a dispute hearing made under Section 29 of the Industrial Relations Act 1984 (the Act) by the Minister for Industrial Relations (the Minister). The dispute was with Sutherland Nominees Pty Ltd (the employer), trading as Tidal Water Restaurant, St Helens (the restaurant) and it related to the rate of remuneration due to Mr John Elliott Wiseman (the employee) under the Restaurant Keepers Award (the Award). The Minister claimed that the employer had breached the Award in that for the period of his employment by the employer the employee was paid as an apprentice cook whereas he should have been paid as a 19 year old junior as there had been no contract of training made between the employer and the employee as required under the Industrial and Commercial Training Act 1985 (the training Act). It was not disputed by anyone at the hearing that a verbal agreement had been made between the employee and the employer that he would be employed as an apprentice cook in the first instance for a probationary period of three months (the arrangement). At approximately the end of the probationary period the employer advised the employee that the arrangement would not be continuing and the employee's employment was terminated. The following facts were made out in detail by the Minister and not disputed by the employer:-
The Minister submitted that a decision on 18 October 1985 in the Industrial Appeal Court of Western Australia, Richardson v Sedemuda Pty Ltd (Trading as South West Ceramics), supported his application in that it was confirmed there, on the final appeal, that unless an employee was registered under the training Act in that State he could not be employed as an apprentice. The Minister sought an order from the Commission under Section 31 of the Act that the employer pay the employee within 14 days, $1790.68 for arrears of wages and $145.72 for superannuation contributions not made. The employer in response said that he had been in the restaurant business for over 20 years and had supervised four other apprentices under the authority of the Apprenticeship Commission and they had all undergone three months probation in the same way: he claimed that it had never been put to him that it was compulsory for the apprenticeship probationers to be signed up formally within 14 days. The employer said he was unaware of the laws relating to the apprenticeship probationary period and he considered that someone should have advised him of his obligations. On the basis the employer and the employee had agreed verbally that the employee would be employed as an apprentice cook, initially for three months on probation, the employer submitted that he was not liable to pay the employee as a junior for that period. The employer assured the Commission that he had never intended to act contrary to requirements of the relevant Act. As to the Western Australian case quoted by the Minister in support of his submissions the employer submitted that it did not provide any sort of precedent because the employee in that case had been taken advantage of, whereas, in this case all parties had been amenable and there had been an amicable separation. At that late stage in proceedings the employer sought to settle the dispute by having the probationary period credited to the employee's training time but, the employee would not agree to the joint application required so that approach failed. The employer also made submissions that the relevant provisions of the Industrial and Commercial Training Act 1985 allowed for contracts of training to be made after the period of probation and for the probationary period in such cases to be deemed part of the training process: therefore, there was no need in this case for a formal contract to be signed. DECISION There was a little confusion at the hearing as to which act applied in this case, but I am satisfied and confirm that the period of the employee's employment (November 1994 - March 1995) was covered by the training Act and also that the Minister specifically relied on the training Act in his submissions and exhibits. The latest act, the Vocational Education and Training Act 1994, did not commence until July 1995. I accept the Minister's submissions that the employee should have been paid as a junior for the period of his employment: this is on the basis that the arrangement was illegal since the specific requirements of the training Act forbade such verbal agreements. In this context I accept as a precedent, the West Australian case quoted by the Minister. It is also not acceptable for the employer to claim ignorance of the requirements of the training Act, it is his responsibility to know the law in that regard. I am satisfied that the Minister's case was made properly and all relevant information was put before me. ORDER Accordingly, I hereby order that, within 21 days from the date of this decision, Sutherland Nominees Pty Ltd pay to John Elliott Wiseman the sum of $1790.68 being arrears of wages due, plus the sum of $145.72 being for superannuation contributions not made.
P A Imlach Appearances: Date and place of hearing: |