This application was lodged by the Secretary, Department of Justice and Industrial Relations. The application as amended, without objection from the parties, sought an interpretation of subclause 4. Apprentices of Clause 8, Wage Rates, of the Restaurant Keepers Award. The application outlined the "circumstances of the interpretation" noting in particular that the interpretation was "in regard to the classification of Samantha Clark, who was employed from 11 May 1997 to 31 March 1998 (the relevant time) by ACN 009 581 364 Pty Ltd, formerly Fee & Me Proprietary Limited, ACN 009 581 364".
For the purpose of creating the background of the legislative and award provisions considered to be relevant to the interpretation, the applicant, represented by Mr G Williams and Mr G Thomas, took the Commission through a number of exhibits, the first of which was the Determination of the Restaurant Keepers Wages Board made in accordance with the Wages Boards Act 1920 and signed by the Deputy Chairman of Wages Boards, O H Pamplin, on 21 August 1975. The award, by that variation provided, for the first time, for apprentice rates of pay. That provision, contained in clause 8, was as follows:
That award became an award of the Tasmanian Industrial Commission when the Commission commenced operation on 1 January 1985. Apart from some minor change to its wording and an increase in the percentages, the provision retained similar wording until 1 April 1991. With effect from that date the provision was varied by expanding the number of trades covered by the award from just Cooking to three categories, namely Food and Beverage Trade, Greenkeeping Trade, and Kitchen/All Other Trades. Cooking was included in the category described as Kitchen/All Other Trades. The provision was constructed in the following manner:
With effect from the first full pay period on or after 1 January 1992, the preamble and conclusion to the provision dealing with apprentices were removed and the provision was subsequently varied in a manner which does not affect this interpretation. At 11 May 1997 the provision, with the exception of weekly wage rate figures, was as follows:
The above variation removed all text from the provision leaving only the percentage of the relevant adult classification to be applied to the weekly wage rate and in the earlier versions providing a weekly amount to be payable to an apprentice related to the time the apprentice had been employed.
The provision remains unchanged.
The applicant then took the Commission to the definition of an apprentice as contained in the Wages Boards Act 1920, as amended. "Apprentice" was defined as "any person bound by indentures of apprenticeship in accordance with the Apprentices Act 1942". With the introduction of the Industrial Relations Act 1975 the definition of "apprentice" disappeared. When the Industrial Relations Act 1984 (the Act) was proclaimed it, likewise, contained no definition of "apprentice".
The Apprentices Act 1942 defined "apprentice" as "a person bound pursuant to this Act (the Apprentices Act 1942) by indentures of apprenticeship to an employer in any trade to which this Act applies; and where applicable includes an applicant for apprenticeship employed on probation". The Commission was told that the Apprentices Act dealt with the conditions of an apprenticeship and prescribed the actual form of an indenture of apprenticeship.
The Industrial and Commercial Training Act 1985, which repealed the Apprentices Act 1942, changed the definition of "apprentice" to a "person whom another person had agreed to train in a trade in pursuance of a contract of training". A "contract of training" was defined as "a contract (including an indenture of apprenticeship) under Division 3 of Part III in respect of training in a trade or other declared vocation". A "declared vocation" was defined as
"(a) a trade; or
(b) an occupation declared by proclamation to be a declared vocation for the purposes of this Act."
"Trainee" was defined as "a person who another person has agreed to train in a declared vocation other than a trade, in pursuance of a contract of training".
The Commission was informed that under the Industrial and Commercial Training Act an employer could not undertake to train a person in a declared vocation except pursuant to a contract of training. Contracts of training were to be in a form approved by the Training Authority and were to be executed in triplicate.
In 1994 the Vocational Education and Training Act (the Training Act) came into force and repealed the Industrial and Commercial Training Act. It omits the definition of an apprentice and defines a "trainee" as meaning
"a person undergoing
(a) a training course under a training agreement or vocational placement agreement; or
A "training agreement" is defined as "an agreement or a contract between an employer and a trainee in force under Division 1 of Part 6". "Vocation" is defined as "including an occupation or trade".
Under section 33 of the Training Act the Minister has the power on the recommendation of the Training Authority to declare that "a vocation is a vocation in respect of which a training agreement must be made before an employer may provide a training course for a person".
The Commission was informed that any occupation declared as a trade or vocation by a proclamation in force under the previous Act is deemed to be a vocation declared under the current Act. Training agreements are to be in writing and contain certain provisions required by the Training Act. They must be forwarded to "the Training Agreements Committee for its approval within 14 days of making the agreement".
After the hearing the applicant provided the Commission and the parties with a copy of the training agreement forms in use at the relevant time.
A letter, dated 3 November 1999, from the Executive Officer (Client Support) of the Office of Vocational Education and Training in the Department of Education, was tendered in which the author confirmed that the "declared vocation of cooking was in existence during 11/5/97 to 31/3/98 (the relevant time) and the appropriate qualification that related to this, was Certificate III in Cookery (Commercial)".
The applicant also tendered an extract taken from the Oxford English Dictionary of the definitions of "apprentice" and "apprenticeship".
Mr Williams informed the Commission that Ms Clark had indicated that she wished to be an apprentice; that she had been an apprentice for nine months with a previous employer, and that she understood that apprenticeship documents had to be signed and registered.
The applicant's submissions, when distilled to their key points, are:
(1) that the award provision in question sets the rate of pay for certain apprentices
(2) that an apprentice is a person undergoing an apprenticeship
(3) that an apprenticeship may only be entered into in respect of a vocation declared for that purpose in accordance with the Training Act
(4) that no employer may provide a person with a training course in a declared vocation unless a training agreement has been completed in accordance with the Training Act, and
(5) it follows therefore that an apprentice must be a person who has entered into a training agreement with an employer in accordance with the Training Act.
Mr Cameron, who appeared on behalf of the Tasmanian Chamber of Commerce and Industry Limited (the TCCI) and the employer involved in the disputed matter, submitted that the employee concerned had agreed to be employed as an apprentice; that "during the time of her employment she was receiving training and induction in the skills of becoming a qualified cook or chef"; and that she had "agreed to the rates of pay as set out in the Restaurant Keepers Award".
Mr Cameron emphasised that the interpretation revolved around the single word "APPRENTICES" being the heading to the subclause. He drew attention to the use of other headings in Clause 8, noting that the heading "TRAINEES" appeared to distinguish trainees from apprentices.
The Training Act has no application to apprentices under the Restaurant Keepers Award or any other award of the State Commission, Mr Cameron submitted. In that regard Mr Cameron argued that section 42 of the Act only required the Commission to have reference to another Act if it dealt with the same subject matter as that before the Commission. But, Mr Cameron submitted, there had to be a "true correspondence of subject matter between the award and the Act in question" as decided by a Full Bench of this Commission in Matter T7585 of 1998 1. He submitted that the word "apprenticeship" in the Training Act and the use of the word "apprentices" in the award did not refer to the same subject matter. Therefore it was his contention that the provisions of the Training Act advanced by the applicant were "not relevant" to the interpretation of the provision for an apprentice.
Mr Cameron then took the Commission to the definition of "trainee" in the Training Act and submitted that the way the definition was constructed a trainee could be either someone undergoing a training course under a training agreement or someone undergoing an apprenticeship. He argued the two categories were "mutually exclusive of each other". He submitted that an apprentice was not covered by the definition of "trainee" in the Training Act but that a trainee could be "someone under an apprenticeship".
The historical references relied on by the applicant applied at a time when an "apprentice" was clearly defined in legislation, Mr Cameron said. Given the "move towards trainees", he argued that those who drafted the relevant documents and legislation dealing with training matters had overlooked the existence of apprentices. Mr Cameron submitted that in the circumstances, in the absence of any legislation dealing with apprentices, it was necessary to rely on the common law meaning of the word. It was submitted that it was generally understood that an apprentice was someone "engaged by what was previously called a master who would hand down his skills and teach that employee"2 to become qualified as a tradesperson. Mr Cameron said it was not necessary that an agreement between the master and apprentice had to be in writing.
In support of this contention, Mr Cameron referred to the Macquarie Concise Dictionary of Modern Law which defines an apprentice as "one who is bound for a fixed period to serve a master in return for instruction in the trade". He submitted that Ms Clark was learning the skills required for her to become a chef from other chefs and cooks and from Ms Hoskens, who was the owner of the business. In Ms Clark's case, he said, it was her "opinion that she had done the necessary formal training to become suitably qualified (and) was merely serving out the time of an apprentice to receive her trade papers".3 Later he said that Ms Clark still had to complete one more TAFE course and she did not attend any "accredited training courses" during her employment at the restaurant. He submitted that the "facts and evidence" indicated that the relationship between Ms Clark and the company was one of employer and apprentice. He acknowledged there was no written training agreement but, in the absence of any statutory requirement for the need for a written training agreement for an apprenticeship to exist, an agreement between the parties to create a contractual relationship was all that was required. He said that it had been agreed between the parties that Ms Clark would be employed as an apprentice and that was all that was necessary. Mr Cameron asserted that Ms Clark "received the necessary training that was obligatory for the employer to provide over the time she was employed before she left of her own volition".4
Mr Cameron submitted that the heading, "APPRENTICES", as used in the award only refers to a "relationship between an employee and an employer where the employee is traditionally employed to learn the trade or skills that the employer can impart to facilitate that employee becoming suitably qualified in their own right".5 Mr Cameron also submitted that the requirements set out in the Training Act do not, and cannot, apply where there is no reference to apprentices in the Industrial Relations Act. He said the reference to apprenticeship in the Training Act was "very tenuous" in relation to the other requirements of that Act. Mr Cameron submitted that "the fact that apprentices previously were required to be under written agreements and written indentures, does not carry forward when the current legislation does not specifically provide so".6
Although Mr Cameron acknowledged that there was a need to address such issues he doubted the application of Division 1 of Part 6 of the Training Act to apprentices. He submitted that training agreements were only required for trainees doing a training course and they were not required for a trainee under an apprenticeship. He submitted that all that was necessary for an apprenticeship to exist was for an agreement between the parties and that "any agreement as such is binding".
Mr Cameron submitted that in matters of interpretation it is not appropriate to interpret the award "to suit the intention" of those responsible for its drafting. Nor, he said, was it appropriate to have regard to the public interest or to the merits of the case in an interpretation. There was no ambiguity in the words used in the award, he said, and the only interpretation available, when observing the principles of interpretation set out in T30 of 1985, is that an apprentice is a person fitting the definition that he had quoted from the Macquarie Dictionary of Modern Law.
Mr Tullgren, who represented the Australian Liquor, Hospitality and Miscellaneous Workers Union - Tasmanian Branch, submitted that "apprentice" and "apprenticeship" are common words and that they have a meaning in "industrial relations and training circles". He considered that whilst there may have been an agreement between the employer and Ms Clark, it was not one which bound the parties because an apprenticeship, historically, required an agreement concerning an apprenticeship to be reduced to writing in a document known as an "indenture". Such an agreement bound the parties to observe certain arrangements for a specific period. In this particular case there was no binding arrangement agreed by the parties, he said, and it appeared they had different views, at least in relation to rates of pay and to the period of the arrangement.
Mr Tullgren referred to what he described as the standard text on interpretations, Statutory Interpretation in Australia, edited by D C Pearce and R S Geddes, and submitted that technical words were to be given their technical meaning. He said that if words have a technical meaning, consideration has to be given to the way the words have been used over time and the understanding of those words. He submitted the words "apprentice" and "apprenticeship" have a meaning in a commercial and trade sense. People in commerce or trade, where they have had apprentices, or required apprentices, and where apprenticeships were used, understood the words involved and the need for an agreement to which the parties would be bound. Mr Tullgren submitted that if the award is silent as to the definition of apprentice and of apprenticeship, then it is appropriate to go to the legislation that governs those matters. He asserted that the Industrial Relations Act and the Training Act were beneficial pieces of legislation. The Industrial Relations Act, he said, did not exclude apprentices from coverage and it contained a very broad definition of "employee". As to the effect of section 42 of the Act, Mr Tullgren claimed the Training Act did not deal with the same matters as the Restaurant Keepers Award because the award only regulates wages and conditions. The award does not regulate training, he said.
Mr Tullgren then dealt with the definition of "trainee" in the Training Act, and the effect of section 33 of that Act. He referred to the letter from the Office of Vocational Education and Training which, he said, was confirmation that cooking was a declared vocation for the purposes of section 33. He then dealt with the effect of section 34 which, he said, prohibits an employer from undertaking to train a person in respect of a vocation declared under section 33 without entering into a training agreement. He argued that the Training Act mentions apprenticeship; it provides that a trainee can be an apprentice; and it establishes vocations in which a trainee can be involved. He submitted that cooking had been declared to be a vocation for the purposes of the Act, and that a person cannot be trained in a declared vocation unless there is a training agreement.
He agreed with Mr Cameron that the Training Act, if not badly worded, was "perhaps inelegantly worded" to the point it needed amendment to make the intention of the Parliament more specific. He submitted, however, that the intent of the Training Act was reinforced by the Savings and Transitional Provisions which, amongst other things, provide that any "occupation declared as a trade or a vocation by a proclamation in force under the repealed Act (the Industrial and Commercial Training Act 1985) immediately before the commencement day is, on that day, a vocation declared under section 33 of the Act". Therefore, he submitted, the failure of the employer to enter into the agreement required by section 34 was fatal to the claim that there was a common law apprenticeship contract between the parties.
Mr Tullgren submitted that the Training Act was specific and prescriptive in respect of training matters and, given the absence of any definition in the Industrial Relations Act, the Commission could draw guidance from the former Act. Mr Tullgren said there had been a "specific legislative intent by the Parliament of Tasmania to displace the common law in relation to apprentices and apprenticeships by regulating them by statute" and, he argued, there had been no specific intent shown by the Parliament that the training of apprentices and the control of apprenticeships should no longer be regulated by statute or that such matters should revert to the common law.
Where the words to be interpreted are not defined, Mr Tullgren submitted the canons of interpretation allow the President, pursuant to section 43 of the Act, to look to other legislation for guidance. In this case it was appropriate to look to the Training Act which, he said, does not "cover the field", but does establish "a training regime". If I was against him on that point, Mr Tullgren submitted I should look at the general understanding of apprenticeship and its general application.
Mr Paterson, for the Australian Municipal, Administrative, Clerical and Services Union submitted there was a nexus between section 33 of the Training Act and the Restaurant Keepers Award. Section 33 provides for the declaration of a vocation in respect of which training agreements must be used, he said. As a vocation includes an occupation or trade and since the work of Ms Clark was in a trade which was a declared vocation, a training agreement had to be made, he said. Mr Paterson submitted that the subclause in question and the Training Act deal with the same matter in that they deal with what governs the rights, duties and responsibilities associated with an apprenticeship. He argued that when apprentices enter into a relationship with an employer that relationship is an apprenticeship. The training aspects of that relationship are dealt with by the Training Act and the employment conditions are dealt with by the relevant awards, Mr Paterson said. He submitted that if the requirements of the Training Act have not been adhered to, there can be no apprenticeship. He asserted that the reference to Apprentice-Kitchen Trade deals "with the same thing as an apprenticeship in the vocation of cooking as a trade". Failure to adhere to the requirements of Division 1 of Part 6 of the Training Act, to register a training agreement, voids the application of apprentice provisions in the award, he said.
Ms Fitzgerald for the Tasmanian Trades and Labor Council referred to the need to ensure that skills acquired and qualifications obtained by Tasmanian workers were consistent with the national framework for the recognition of skills and for awarding qualifications. If national and state industry training standards were not observed, investment in Tasmania and, by extension, employment levels in this State would be affected adversely, she said. Ms Fitzgerald argued that it could not be left to individual employers and employees to determine the relevant skills to be acquired and the training to be provided to attain a nationally recognised qualification. She submitted that it would be inappropriate for an award of this Commission to purport to prescribe provisions which were inconsistent with an Act of Parliament, in this case the Training Act. Ms Fitzgerald said the Training Act and the award deal with the same subject matter, "although different elements of it", and that the apprentice provisions of the award cannot have a meaning that is in conflict with the Training Act.
Findings
As submitted by Mr Cameron, this interpretation revolves around the single word heading of paragraph 4. APPRENTICES, in Clause 8 of the award. The heading gives the reader no further explanation as to its meaning and the paragraph as a whole simply provides for percentages, presumably of the wage rates of certain classifications, to be paid during certain periods of employment.
At the time this particular format of the provision prescribing pay rates for apprentices was inserted in the award, i.e. in 1991, the word "apprentice" was not defined in the Industrial Relations Act 1984. However, "apprentice" was defined in the Industrial and Commercial Training Act 1985 as a "person whom another person has agreed to train in a trade in pursuance of a contract of training". A "contract of training" was also defined. As pointed out by the applicant, the Wages Boards Act 1920, (repealed by the Industrial Relations Act 1975 which received Royal Assent on 22 December 1975) contained a definition of apprentice. An apprentice for the purpose of the Wages Boards Act was any person bound by indentures of apprenticeship in accordance with the Apprentices Act 1942. That definition was in place from 21 August 1975, the time the first provision for apprentice rates of pay was inserted in the Determination of the Restaurant Keepers Wages Board which, by virtue of the transitional provisions in the subsequent legislation, became an award of this Commission.
As recorded earlier, the Apprentices Act 1942 defined an apprentice as a person bound, pursuant to the Act, by indentures of apprenticeship to an employer in any trade to which the Act applied. It is quite clear therefore that at the time the apprentices provision in the Restaurant Keepers determination was made it applied to apprentices bound pursuant to the Apprentices Act by indentures of apprenticeship.
Even though the legislation regulating industrial relations matters has since had deleted from it any mention of apprentices, I consider that the word "apprentices" in the award can have no other meaning than that assigned to it by the combination of the definitions contained in the relevant statutes, i.e. the Wages Boards Act 1920 and the Apprentices Act 1942.
In reaching that conclusion I have considered Mr Cameron's submission that I should have no regard to the intentions of those who drafted the provision. However since the legislation applying at the time the award was made clearly defined an apprentice I have no doubt as to its meaning at that time. I have also considered Mr Cameron's submission that the heading "APPRENTICES" refers to the relationship between an employee and an employer where the employee is traditionally employed and instructed in the trade or skills that the employer can impart. I also have no doubt that such a relationship is the basis of an apprenticeship, as put by Mr Cameron. That relationship is dealt with, in part, in the definition of "trainee" in the current Training Act.
However, I do not believe that the legislation replacing the Apprentices Act, i.e. the Industrial and Commercial Training Act, and then the Vocational Education and Training Act, had, or can have, as the case may be, any significance in these deliberations given
(1) the absence of any direction to that effect in the Industrial Relations Act 1984 and
(2) the disappearance of the word "apprentice" from both the Industrial Relations legislation and the Vocational Training legislation of this State.
In the circumstances, Mr Cameron's submission that I should apply a common law meaning to the apprentices provision in the award has some superficial attraction. However, I do not consider it would be appropriate to adopt that approach as it would ignore the express meaning of the words used in the award and the clear intention of the award makers when the provision was inserted in the award in 1975 which, because of the definitions of apprentice in the Wages Boards Act and the Apprentices Act, required that apprentice rates were payable to those persons legally bound by indentures entered into pursuant to the Apprentices Act.
It follows that I consider that paragraph 4. APPRENTICES, of Clause 8, Wage Rates of the Restaurant Keepers Award applies to a person legally bound by indentures entered into pursuant to the Apprentices Act 1942.
It is possible that the Parliament intended the industrial and vocational training Acts which followed the Apprentices Act to have the same application. However Mr Cameron has highlighted the lack of clarity in the current Training Act, and I am inclined to agree with him. That lack of clarity might mean that a being such as an apprentice is no longer recognised by Tasmanian law, but I hasten to add that this Commission is not in a position to make such a finding. As it is possible that an apprentice is no longer recognised in the current relevant legislation and since the award provision contains no other guidance as to its meaning, it is possible that the provision under examination has no application, either in the current circumstances or in the circumstances applying at the relevant time. Even if that is the case, in my opinion the provision could not be interpreted to apply in the manner proposed by Mr Cameron.
Section 43(1A)(a) of the Act requires me to declare retrospectively or prospectively how the provision in question is to be interpreted and, if the declaration requires it, to vary any provision of the award to remedy any defect in it or to give full effect to it. As an alternative paragraph (b) of subsection 43(1A) provides that the President, if satisfied that a declaration would be inappropriate may, by order, direct that an application be made to clarify the provision.
Because I have expressed the view that it is possible the provision in question has no application, I have considered the alternative provided by section 43(1A)(b). However, as I cannot be certain about that conclusion and in order to meet my statutory obligations and to ensure, so far as is possible, that apprentices and employers of apprentices are afforded such protection as the award allows, I intend to declare how the award is to be interpreted.
Accordingly I declare, pursuant to section 43(1A)(a), that subclause 4. APPRENTICES, of Clause 8, Wage Rates, of the Restaurant Keepers Award means that the wage rates or percentages of wage rates set out therein are to be paid to persons who are employed in the industries prescribed in the Scope clause of the award who are bound by indentures of apprenticeship in accordance with the Apprentices Act 1942, or any repealing or subsequent legislation which regulates the training of apprentices. Such declaration to take effect from 21 August 1975.
Notwithstanding this declaration, the parties are urged to make application to vary Clause 8 - Wage Rates, of the Restaurant Keepers Award for the purpose of providing, in a manner which is relevant and unambiguous, for rates of pay for those persons who are employee parties to a training agreement entered into pursuant to the Vocational Education and Training Act 1994 and who are excluded from the operation of the National Training Wage (Tasmanian Private Sector) Award.
F D Westwood
PRESIDENT
Appearances:
Mr G Williams with Mr G Thomas of the Department of Infrastructure, Energy and Resources, Workplace Standards Tasmania, for the Secretary, Department of Justice and Industrial Relations
Mr P Tullgren for the Australian Liquor, Hospitality and Miscellaneous Workers Union - Tasmanian Branch
Mr A Cameron for the Tasmanian Chamber of Commerce and Industry Limited and for the company ACN 009 581 364 Pty Ltd
Ms L Fitzgerald for the Tasmanian Trades and Labor Council
Mr I Paterson for the Australian Municipal, Administrative, Clerical and Services Union
Mr P Noonan for the Shop, Distributive and Allied Employees Association, Tasmanian Branch
Date and place of hearing:
2000
March 15
Hobart
1 Full Bench decision 24.8.98 - Appeal against interpretation decision by President in T6540 of 1996 in the Restaurant Keepers Award in respect of the phrase "continuous service"
2 Transcript p.41
3 Transcript p.42
4 Transcript p.45
5 Transcript p.45
6 Transcript p.45
