IN THE TASMANIAN INDUSTRIAL COMMISSION

Industrial Relations Act 1984

Each of the three applications before the Commission seek inclusion in the Restaurant Keepers, Hotel and Motel Keepers, and Licensed Clubs Awards of a specific set of prescriptions intended to cater for the employment of trainees under the umbrella of each of the recited awards.

The underlying philosophy of the initiative springs from the now well-settled and generally approved Australian Traineeship System.

The scheme is comprised of a balanced programme available to young people within the broad age group 15 to 18 years who have not completed school year 12. These are the broad parameters and will suffice for the purposes of introducing the decision which follows.

The purpose of the scheme is to provide a structured "hands on" and a "hands off" working and study programme including 39 weeks' work experience and 13 weeks' TAFE training.

On completion of the programme the participant is expected to (hopefully) be retained in employment, although this is by no means mandatory. But more especially the trainee at that stage is expected to be in a position to offer himself or herself to a prospective employer as a one-year trained certificated applicant whose training has been both operative and, in a sense, speculative. More importantly, it will have been work orientated.

There was no disagreement between the parties regarding inclusion of such a provision in each of the three awards. The only area of disagreement was in deciding the matter of remuneration or, to be more correct, the method of calculating the appropriate training rates.

The general rule to be applied is to pay a trainee 75% of the appropriate adult rate for the full year. This includes 13 weeks' off-the-job training under the auspices of TAFE. The usual formula is expressed as: Adult weekly rate multiplied by 39 divided by 52.

Once again the parties did not take issue with the fundamental proposition of payment at the rate of 39/52nds of the rate. What was in issue was the a. rate to be applied in each case.

Mr. Sherry presented persuasive argument for an average rate in each age group. The particular averages requested by him were "borrowed" from Federal awards covering the same classes of labour in the hospitality industry. He argued that trainees will be gaining work experience and training across a wide range of classified positions. In order to avoid administrative inconvenience by having to establish a training rate for each award classification, a rationalised system of averaging could and should apply. The actual averaging had regard for the appropriate time the trainee would spend in jobs of various categories, including Bar Attendant, for which the award currently provides adult rates at age 18.

However, the actual rates chosen by Mr. Sherry were, as mentioned, taken from counterpart Federal awards and not the awards now under consideration.

Mr. Brotherson objected to this approach. He, along with Mr. Evans, opted for the standard arrangement of 75% of the appropriate award rate. However, the fall-back or alternative position seemed to be one that was receptive to an average rate being struck. But that rate should have regard for State award rates and not Federal.

Mr. Sherry, in reply, pointed out that the respondent employers' preferred position of 75% of the relevant award classification was too unwieldy. He maintained his preference for an average rate, preferably the same as has already been struck in Federal awards.

In my opinion, because of the popularity of the traineeship system, over time there will be many awards having a multiplicity of classifications in which provision for traineeships will need to be made. On the one hand, Mr. Sherry's proposition has attraction, bearing in mind there is a single Federal rate struck below which (in theory, if not at law) no trainee may be paid. On the other hand, Mr. Brotherson's argument seems logical and uncomplicated, bearing in mind the stated intention of the initiators of the system; that is to say that a trainee should be paid 75% of the relevant award rate for 39 weeks (in practice, 52).

In determining the matter, when considering the narrow issue of rate for age, no trainee should be paid more per hour than a full time junior of similar age employed in the same industry. For that reason I believe that whatever rate is eventually struck for trainees in each of the three awards, regard should be had for existing rate-for-age juniors where prescribed.

However, I propose to stop short of actually deciding which of the options canvassed should be utilised. If it was left entirely to me I would probably decide the matter by reference to existing junior rates where prescribed. Where no junior rates were prescribed I would strike a notional rate having regard for the ratio juniors in other awards bear to adult classifications of approximately the same money level.

While I accept Mr. Sherry's suggestion that juniors carrying out bar work could create a problem, I reject the assertion or inference that the "mixed functions" concept could apply to juniors. Admittedly this was not pursued by Mr. Sherry; in fact he agreed that the mixed functions clause would have no application.

Nevertheless, his concern about juniors working across a multiplicity of classifications did imply, I felt, some concern for the mixed functions-type reasoning in establishing an average rate. If that was in Mr. Sherry's mind, I would reject any such notion. Juniors, while undergoing training, do not attract mixed functions or higher duties allowances unless specifically required to relieve or replace an adult.

The whole scheme is based upon an understanding that no full time employee will be replaced as a consequence of the appointment of a trainee. I therefore feel that a reasonable training rate not exceeding 75% of the relevant adult classification would be the fairest method of striking an appropriate rate of remuneration.

However that may be, I concede Mr. Sherry's point that the structured training course embraces many functions traditionally performed by a number of differently classified individuals. For that reason I would also endorse an average rate based upon State classification rates.

Having now indicated my views, I leave the final option to the parties, as I believe they are more familiar with any likely administrative implications than the Commission as presently constituted. But in coming to a decision on this question I strongly recommend to the parties that they keep in mind the fundamentals of the scheme. These precepts are set out in the wealth of material published on the subject by the Commonwealth and State agencies.

If the parties were to include a separate section or sections in the three awards relating to trainees, it would be desirable in drafting the appropriate instrument to either identify, as Mr. Sherry has suggested, each award clause that will apply to trainees or, alternatively, as the Commonwealth material suggests, indicate clearly that all relevant clauses apply. In the latter case obviously the mixed functions clause would not apply.

For the reasons given during proceedings the operative date is of no major concern. That being the case I determine that 1 August is the date from which any agreed provision should operate. That date may, by agreement, be varied to meet any circumstances not within the knowledge of the Commission at the time this matter was heard.

As discussed during proceedings the variation to the Hotel and Motel Award will not at this stage extend to the Motels section of the award unless, as mentioned in the preceding paragraph, the circumstances outlined by Mr. Sherry on 12 April have now changed.

L.A. Koerbin
PRESIDENT