T7802
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TASMANIAN INDUSTRIAL COMMISSION Industrial Relations Act 1984 Workplace Standards Authority and Fee and Me Proprietary Limited (A C N 009 581 364)
Industrial dispute - alleged breach of the Restaurant Keepers Award - Order issued REASONS FOR DECISION This was an application for a dispute hearing made under Section 29(1C) of the Act by the Chief Executive of the Workplace Standards Authority (the Secretary). The Secretary was in dispute with ACN 009 581 364 Proprietary Limited, trading as the Fee and Me Restaurant of Launceston (the Company) over an alleged breach of the Restaurant Keepers Award (the Award). The Secretary alleged that the Company had failed to pay to Samantha Clark, also of Launceston (the employee) the appropriate amount of wages specified in the Award. The employee commenced working with the Company on 11 May 1997 and resigned on 31 March 1998, a period of about 11 months employment. The employee came forward as a witness on her own behalf as did Mr Peter Crowe and Ms Fiona Hoskin for the Company. The Commission ascertained from the evidence that the employee had approached Mr Crowe seeking employment and had agreed to commence as an apprentice cook with the agreed aim of gaining her "papers", or, in other words becoming a trade qualified cook within a period of about 12 months. It was also agreed that the employee's pay would commence at the first year apprentice rate specified in the Award and her pay would then be "fast-tracked" up the scale of the apprentice classifications in the Award. The witnesses differed as to the basis for the movement up the pay scale: the employee said the movement to the top of the scale was agreed to be automatic over the period of 12 months whereas Mr Crowe said it was agreed any upward movement in pay depended on demonstrated competency in the skills appropriate to the year of service specified in the Award. The alleged agreed terms of the employee's "apprenticeship" were only settled verbally and none of it was put in writing. In fact, after about three months employment, the employee's pay was increased to the second year apprentice rate, but, was not increased at all after that. It was the Company's alleged failure to increase the employee's wages after each three months which caused the employee to apply to the Secretary for assistance. Citing the requirements of the Vocational Education and Training Act 1994 (the Training Act) the Secretary submitted that the employee could not possibly be considered an apprentice and, therefore, because of the age of the employee, her experience and the duties she had performed at the restaurant, she should have been classified and paid as an adult Food and Beverage Service employee under the Award initially at Grade 1 and then at Grade 2. The relevant or key words and passages in the Training Act referred to specifically by the Secretary were:
Cooking has been declared a vocation in accordance with Section 33. Other key requirements of the Training Act were that a training agreement be in writing and contain certain prescribed conditions. The Secretary submitted that because a training agreement between the employee and the Company was not signed and approved under the provisions of the Training Act she should have been paid appropriately as an adult Food and Beverage Employee under the Award. The Secretary also relied on a Western Australian Industrial Court case, Richardson v Sedemuda Pty Ltd (trading as South West Ceramics) Industrial Appeal Court of W.A. 1985. 418, which in essence upheld an appeal on a claim that an employee alleged to be an apprentice, but, not formally indentured under the relevant training legislation ought to be paid at the appropriate award classification rate. The Secretary also relied on a decision of the Commission in matter T5691 of 1995, Sutherland Nominees Pty Ltd (trading as Tidal Water Restaurant) which arose in similar circumstances and accepted the precedence of the Western Australian case. Relying on these two previous decisions the Secretary submitted that the employee should be paid the relevant Grade 1 and Grade 2 rates in the Award. The Tasmanian Chamber of Commerce and Industry Limited (the Chamber) appeared for the Company and, whilst acknowledging that the employee had been paid as an apprentice, submitted that the Company had not transgressed in any way because the Award was not specifically clear on the matter in that there was no definition of "apprentice" in the Award nor was there any cross-reference to the Training Act. The evidence from the witnesses for the Company went to details of days and hours of work, staffing levels and duties and the arrangements with the employee for her training. The Company's witnesses also spoke of the changes in training methods coming into vogue, especially the module training system and the flexibility in the period of time required for the gaining of skills. Having completed the requisite number of modules, a trainee or apprentice would need only to satisfy an approved employer as to his or her relevant skills attained and he or she could be 'fast-tracked" and awarded a certificate or apprenticeship in a shorter or longer time depending on the assessed capabilities of the trainee or apprentice. The Chamber pointed out that there was now no need for the strict three, four or five years apprenticeship period as required before. This change in practice was said to be acceptable to the Tasmanian State Training Authority (TASTA) and the signing of formal agreements or indentures prior to training was said now to be not necessary although a successful completion of the new requirements would result in the issuing of formal trade or training certificates. The two key elements of the new system were said to be the completion of formal training modules and successful skills acquisition working for an accredited employer, the period of training being flexible and not restricted to specific time periods. Both Mr Crowe and Miss Hopkin said in evidence that the employee had been trained and gained some skills whilst employed with the Company, but, not all the necessary skills. The employee had received some formal training previously as well, but, not sufficient. All these circumstances were the basis for the agreement as to training between the employee and the Company. In evidence also Mr Crowe confirmed that the Secretary's facts and figures in relation to the employee's work history, time books and other records were correct as were the Tax Office Group Certificates produced. Mr Crowe in evidence said that the Company had previously been involved in signed training agreement and apprenticeship papers, but, the last one had been in 1989. Mr Crowe went on to explain why that system had not been applied to the employee:
Mr Crowe also confirmed that no approach was made to TASTA over the employee's training. The Chamber submitted that the employee had been employed genuinely as an apprentice and because the Training Act did not define what an apprenticeship was there was no connection between the apprentice rate in the Award and the word apprentice appearing in the Training Act, hence it could not be said that an apprenticeship did not exist. As well as the Training Act not specifying what apprentices were to do the Chamber submitted that the Industrial Relations Act 1984 did not refer to apprentices and, therefore, the single pay structure reference to apprentices in the Award stood independently. The Chamber also submitted that references to apprenticeships and training agreements in the Training Act were specifically separated and it was not for the Commission to be ruling on breaches of the Training Act. Finally the Chamber said:
DECISION: I do not accept the Chamber's contention that the wages classification of Apprentice in the Award was somehow different and separate and not to be treated as the same type of apprenticeship as that referred to in the Training Act. Were the Commission to accept that argument it would be making a mockery of the Training Act. In any case the Commission is bound by reason of Section 42 of the Industrial Relations Act 1984 to give precedence to the Training Act. Section 42 of the Industrial Relations Act 1984 provides:
It is ludicrous to say that provisions for apprentices or apprenticeships in the Training Act do not apply to a wages classification for an apprentice specified in the Award. Accordingly I accept the submissions of the Secretary and I find that the employee who was employed nominally as an apprentice under the Award was not indentured as required by the Training Act and therefore must be paid under some other relevant classification in the Award. There was no dispute as to what that other classification might have been were I be find as I have. The employee should have been classified under the Award as an adult Food and Beverage Employee, initially at Grade 1 and then at Grade 2. ORDER In accordance with the power vested in me under Section 31(1) of the Industrial Relations Act 1984 in settlement of this dispute I hereby order that, within twenty-one (21) days from the date of this decision, A C N 009 581 364 Pty Ltd, trading as Fee and Me Restaurant, at Morton House, 190 Charles Street, Launceston, pay to Samantha Clark of 2 Trevallyn Road, Launceston, the sum of eight thousand five hundred and fifty five dollars and seventy nine cents ($8555.79) being arrears of wages due.
P A Imlach Appearances: Date and Place of Hearing: |