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IN THE TASMANIAN INDUSTRIAL COMMISSION

Industrial Relations Act 1984
s.43 application for interpretation of an award

Tasmanian Confederation of Industries
(T.2589 of 1990)

MEAT TRADES AWARD-

PRESIDENT

4 October 1990

Rate of pay - 20-year old first-year apprentice

INTERPRETATION

In accordance with Section 43 of the Act, the Tasmanian Confederation of Industries (TCI) sought an interpretation of the Meat Trades Award to establish the correct rate of pay for a 20-year old, first-year apprentice Butcher.

Under the award, rates of pay for apprentices are provided in Division G of Clause 8 - Wage Rates - in the following manner:

    "The minimum weekly rate of wages for apprentices shall be the undermentioned percentages of the tradesman's wage:

          Percentage of Wage
          Rate of Classification 4
          of Division A Subdivision A1
          %
    First year 35 ($140.14)
    Second year 55 ($202.84)
    Third year 72 ($265.54)
    Fourth year 87 ($320.86)"

Mr. Edwards, for the TCI and the Meat and Allied Trades Federation of Australia, Tasmanian Branch, informed the Commission that the apprentice in question was formally indentured in accordance with the requirements of the Training Authority of Tasmania and accordingly only the above percentages could apply.

He submitted that the Minimum Wage provision, Clause 8 (2)(a), which states:

    "Notwithstanding the provisions of subclause (1) of Clause 8 no adult employee shall be 1aid less than the rate of $241.10 per week."

did not apply in this case because the employee, in his opinion, was not an adult for the purposes of the award.

Mr. Edwards went on to deal with other clauses in the award which indicated a lack of consistency as to the treatment of adult employees. He noted that there was no definition of an adult employee in the award. Mr. Edwards suggested that the award was deficient in this regard and specifically in relation to apprentices who were older than traditionally had been the case.

It was also noted that Division H - Junior Workers other than Apprentices - had the peculiar provision that junior workers of 19 to 20 years of age should receive 100% of the wage for the "All other" classification but at 20 years of age should receive the "minimum adult wage". If applied to the letter, that provision would result in an employee over 20 years receiving less than a 19 - 20 year old.

It was further noted that Division I - Clerks - provided that juniors shall be paid a percentage of the adult rate which, for 20 - 21 year old employees, is 90%.

Mr. Edwards suggested that the parties needed guidance on the matter and that I should not make a formal declaration but simply indicate what I considered the award to mean and issue a directive to the parties to confer for the purpose of devising an appropriate variation to the award to clarify the situation.

Mr. Newton submitted that the minimum wage provision, Clause 8(2)(a), should apply because, he maintained, the provision did not exclude apprentices. He relied also on a legal opinion given to his Department which, he said, contended that:

(a)  adult apprentices may be paid the minimum wage set out in an award for all adult employees, provided the award made no provision to the contrary, and

(b)  an apprentice became an adult on attaining the age of 18 years in accordance with the Age of Majority Act 1973.

I reject the submission that that Act has application in this matter. The Act, at Subsection (11) of Section 6, specifically provides that nothing in the Act affects:

    "(a)  conditions of employment or rights or obligations arising from employment; or

    (b)  the construction of

      (i)  an industrial award, order or determination; or

      (ii) any instrument that is executed or entered into pursuant to an enactment and that prescribes or regulates wages or other conditions of, or relating to, apprenticeship."

I understand that provision to mean that the Age of Majority Act shall not be applied in a manner which conflicts with or impacts on industrial relations matters, including awards, and apprenticeship matters in particular. Therefore the Act has no application in this matter. I will continue to hold that belief until a court of competent jurisdiction determines that my understanding is incorrect.

Whilst I have some sympathy for the primary position advanced by Mr. Newton, I consider that Division G - Apprentices - of the Wage Rates clause, like the previously mentioned provisions, is self contained and has been drafted either in ignorance of the possibility of adult apprentices being employed or, if adult apprentices had been contemplated, on the basis that adult apprentices should be paid in accordance with the year of their apprenticeship, regardless of age.

Whichever is the case, the Division, in my opinion, stands alone and is capable of being interpreted without recourse to any other provisions of the award for the purpose of determining the base rate of pay for an apprentice.

Having come to that conclusion, I direct the parties to confer for the purpose of clarifying the rate to be paid to adult apprentices and to make application, in due course, to vary the award accordingly. In addition, it should be recognised that other awards of this Commission are similarly deficient in respect of conditions for adult apprentices and I suggest that other organisations could well give some attention to the matter.

For the purpose of assisting the parties I make the following observations about the rate which should be applied to an adult apprentice. These are merit observations and have no bearing on the interpretation considerations.

  • It seems to me inappropriate to pay adult or "over age" apprentices rates such as 38% or 55% of the tradesperson's rate in their first and second year of apprenticeship, if those rates are less than the adult minimum wage.

  • Similarly, it seems inappropriate to pay the full tradesperson's rate to such an apprentice.

  • The appropriate rate which seems to me to be the most relevant in these cases is the adult minimum wage.

  • The most difficult task will be to determine the age at which an apprentice should become entitled to the adult minimum wage, and I leave that issue to the parties to negotiate.

 

F. D. Westwood
PRESIDENT

Appearances:
Mr. T. J. Edwards with Mr. M. D. Flynn for the Tasmanian Confederation of Industries and the Meat and Allied Trades Federation of Australia
Mr. B. P. Newton for the Secretary of the Department of Employment, Industrial Relations and Training

Date and place of hearing:
1990.
Hobart:
September 14