T9209
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TASMANIAN INDUSTRIAL COMMISSION Industrial Relations Act 1984 The Secretary, Department of Infrastructure, Energy and Resources and A.C.N 009 581 364 Pty Ltd
Industrial dispute - alleged breach of Restaurant Keepers Award - arbitrated - order issued REASONS FOR DECISION On 22 September 2000, The Secretary, Department of Infrastructure, Energy and Resources (the applicant), applied to the Acting President, pursuant to s.29(1C) of the Industrial Relations Act 1984, for a hearing before a Commissioner in respect of an industrial dispute between Samantha Clark and A.C.N 009 581 364 Pty Ltd (formerly Fee & Me Proprietary Limited A.C.N. 009 581 364) (the employer) arising out of an alleged breach of the Restaurant Keepers Award. On 11 October 2000, the Acting President convened a hearing at the Supreme Court, Cameron Street, Launceston, Tasmania before myself, to commence on Monday, 30 October 2000 at 11.00 am. At the hearing, Mr G Williams, with Mr G Thomas, appeared on behalf of the Secretary, Department of Infrastructure, Energy and Resources, and Mr A Cameron, of the Tasmanian Chamber of Commerce and Industry, appeared on behalf of the respondent employer. A document entitled "Agreed Facts" and signed by Mr Cameron on behalf of the employer and Mr Thomas on behalf of the Secretary (Department of Infrastructure, Energy and Resources) was handed up as an Exhibit, which said inter alia:
Background The employer conducts a restaurant in Launceston known as "Fee and Me", and Miss Clark was employed to work in the kitchen of the restaurant from 11 May 1997 until 31 March 1998. Miss Clark and the employer entered into an arrangement whereby she would be paid according to the "Apprentice" rates in the Restaurant Keepers Award, which does not contain a definition of "apprentice". The arrangement between the employer and Miss Clark was that she would commence at the first year apprentice rate, and every three months move up a level of the apprentice wage rates scale, that is, after three months she would be on the second year rate, after six months the third year rate, and so on. According to Miss Clark the movement would be automatic, but according to the employer, the increment would only apply when Miss Clark achieved the required competencies. In this way the parties believed that Miss Clark could become a trade qualified cook. No indentures or any other written form of contract of training was entered into between the parties to this arrangement. Miss Clark did not receive the first pay increment until after approximately six months and on 2 February 1998 she made a complaint to the Workplace Standards Authority. The applicant's claim is that, in the absence of indentures, there was no apprenticeship and that, therefore, Miss Clark should not have been paid as an apprentice. Based on the Restaurant Keepers Award, she should have been paid at the adult rates for a Food and Beverage Employee Grade 1 for the period 11 May 1997 to 2 November 1997, and Grade 2 for the period 3 November 1997 to 31 March 1998, amounting to a claim of $8559.79. The respondent claims that Ms Clark was an apprentice, on the basis that Miss Clark and her employer had entered into a training arrangement, which they agreed was an apprenticeship, and that such an arrangement met the common law understanding of what an apprenticeship is. In the absence of any requirement under the state legislation for the approval of training arrangements for apprentices, then the failure to enter into a written contract of training, approved by the Tasmanian Training Authority, did not render the apprenticeship arrangement invalid. History of Dispute This is a long-running dispute, with an application first being made to the Commission in 1998 (T7802). The matter was heard by Commissioner Imlach, who found:
Commissioner Imlach ordered that Ms Clark be paid the sum of $8555.79. That decision was appealed (T8040 of 1998) and the appeal was upheld on a technicality, which was that the original application had been brought by the Chief Executive of the Workplace Standards Authority, who did not have the power to make an application under sections 29(1)[C] or 43(1) of the Industrial Relations Act 1984. The Full Bench in their decision of 30 March 1999 found:
As a consequence of that finding a fresh application was made (T8374 of 1999) by the Secretary, Department of Justice and Industrial Relations, which was again assigned to Commissioner Imlach. When it came on for hearing on 17 August 1999, Mr Andrew Cameron, of the Tasmanian Chamber of Commerce and Industry, submitted that Commissioner Imlach should cease to hear the case because he had already heard the evidence and formed an opinion. Mr Cameron's submissions were accepted by Commissioner Imlach, who returned the file to the President, who then re-assigned the matter to Commissioner Watling. On 8 October 1999 Commissioner Watling commenced hearing the matter. The parties requested that the Commissioner adopt the transcript of Matter T7802 as evidence and submissions for the purposes of the new application. On 13 October 1999 Commissioner Watling issued an interim decision in which he said:
The hearing was adjourned sine die, to be reconvened following a finding arising out of an application under s.43 of the Act, which section enables an application to be made to the President for a declaration on how any provision of an award is to be interpreted. Section 43 (1A)(a) says that the President must, upon receipt of an application under s.43(1):
An application was made by the Secretary, Department of Justice and Industrial Relations, under s.43, (T8857 of 2000) and the matter was heard on 15 March 2000. President Westwood, after hearing extensive submissions, and considering evidence regarding the history of apprentices and the Restaurant Keepers Award, declared:
Commissioner Watling then issued a further decision in Matter T8374, dated 6 October 2000, in which he discontinued proceedings and dismissed the application, following correspondence from the Secretary, Department of Justice and Industrial Relations, requesting that the application be withdrawn. A fresh application was made by the Secretary, Department of Infrastructure, Energy and Resources, pursuant to section 29(1)[c] of the Act, which is the application the subject of this decision. The Evidence It was agreed between the parties that the transcript of T7802 of 19982 should form part of the evidence in this hearing, and, in particular, the evidence of Samantha Clark pages 3 - 19; Dynella Maree Simpson (Inspector with the Workplace Standards Authority) pages 20 - 26; Fiona Ann Hoskin, pages 37-47 and Peter James Crowe, pages 47-60, witnesses for the employer. That evidence established the nature of the arrangement that was entered into between Miss Clark and her employer, the details of their verbal agreement, Miss Clark's date of birth, her previous experience and training, the duties that she performed, the staffing arrangements in the restaurant kitchen, the hours that Miss Clark worked, the on-the-job training provided, the length of her service and the rate of pay she received. Miss Clark testified that her date of birth was 10 January 1974, making her 23 years of age when she commenced working for the employer. The evidence was that Miss Clark had approximately two years experience in the industry, plus six months of full time training at Drysdale (TAFE Tasmania).3 Mr Crowe's evidence was that, because of changes to the way training was being delivered and the move toward competency-based training modules, he believed that Miss Clark could become qualified based upon an assessment of her skills.4 Miss Clark's duties were, according to her evidence:
Fiona Hoskin's evidence was that Miss Clark's duties included breadmaking, vegetable preparation, sauce bases, cold larder, oysters, and later, plating and hot entrees, and that she was provided with training in relation to these duties.6 The Restaurant Keepers Award's classification of Food and Beverage Service Employee Grade 1 states:
Duties include any of the following:
On the day of the hearing before me, Mr Thomas introduced a number of documents into the evidence, which traced the history of the relevant legislation concerning apprentices, the Restaurant Keepers Award, and the history of this dispute. In relation to the history of apprentices and the award, the evidence was that the Restaurant Keepers Award contains a provision for the payment of rates to apprentices which was first inserted into the award by the Wages Board on 21 August 1975.8 The Wages Board Act defined "apprentice" as:
The Apprentices Act 1942 defined "apprentice" as:
That same Act defined what a trade was and what indentures were. The Act prohibited employers from taking on apprentices unless they were bound by indentures, which were required to be in the prescribed form. The evidence was that in 1982 "cooking" was proclaimed as an "apprenticeship trade."11 The Apprentices Act 1942 was repealed by the Industrial and Commercial Training Act 1985, which defined "apprentice" and "trade" and "declared vocation" in the following terms:
`declared vocation' means - (a) a trade; or
The Act prohibited an employer in a declared vocation from undertaking to train a person (as an apprentice or otherwise) except in pursuance of a contract of training. Further, it said that a contract of training must be in a form approved by the Training Authority of Tasmania.12 A Department of Industrial Relations Vocational Education and Training publication (undated) included "Cooking" in a list of declared trades, which, Mr Thomas said, showed that cooking was a declared trade under the Industrial and Commercial Training Act 1985.13 The Vocational Education and Training Act 1994, which had application at the time of Miss Clark's employment, does not define the term "apprentice". It defines "trainee" as: "...a person undergoing - (a] a training course under a training agreement or vocational placement agreement; or (b) an apprenticeship" Section 33 of that Act stipulates that, in the case of declared vocations, a training agreement must be entered into before the employer is able to provide a course of training for a person. Section 34 requires the training agreement to be approved by the Training Agreements Committee, which is a committee of the Tasmanian Training Authority [TASTA], established under Part III of the Vocational Education and Training Act. Section 35 says that the agreement must be in writing and must contain certain particulars.14 Mr Thomas tendered some correspondence between himself and officers of the Office of Vocational Education and Training [OVET], which, he said, established that there was no record of an approved training agreement between Samantha Clark and the respondent employer.15 There was further correspondence between Mr Thomas and OVET, confirming that "Cooking" was a declared vocation during the period of time Miss Clark was employed by the employer.16 The Applicant's Submissions Mr Thomas submitted that the President's declaration in T8857 of 2000 is binding, and means that Samantha Clark was not an apprentice. She was not bound by indentures in accordance with the Apprentices Act 1942 or any repealing or subsequent legislation. The employer and the employee had not completed any apprenticeship papers, no papers had been supplied to TASTA, nor had the training arrangements been approved by the Training Agreements Committee as required under the Vocational Education and Training Act, he said. Mr Thomas said that "The apprenticeship did not exist. It never happened."17 Miss Clark, he said, should be paid based upon the duties she performed, and her duties related to the classifications of Grade 1 and Grade 2 Food and Beverage Employee, which was the basis for the calculation of the claim. According to Mr Thomas, the provision in the Restaurant Keepers Award sets out the rate of pay for apprentices, and an apprentice is a person undergoing an apprenticeship. Under the Vocational Education and Training Act an apprenticeship can only apply to a declared vocation under the Act. Cooking is a declared vocation, and no employer can provide a person with a training course unless a training agreement has been completed under the Act, which stipulates that a training agreement must be completed and forwarded to the Training Agreements Committee within 14 days. Mr Thomas said that as there was no completed agreement for Samantha Clark there was no apprenticeship in place. The verbal agreement has no legal standing and therefore does not apply. There is no choice because a training arrangement must be formalised by the completion of the contract of training papers Mr Thomas submitted, as authority, a decision of the Industrial Appeal Court of Western Australia, Richardson v Sedemuda Pty Ltd (T/as South West Ceramics) dated 18 October 1985.18 In that case a verbal agreement had been entered into that a five year apprenticeship arrangement would apply. The employee was paid as an apprentice according to the relevant award. No papers were signed as required by the Industrial Training Act 1975, the West Australian legislation applicable at the time. The decision of the Appeal Bench was that the employee was not an apprentice for the purposes of the Act and was therefore covered by the appropriate award rates. A second case was tendered as authority, a decision of the Tasmanian Industrial Commission, T5691 of 1995, Minister for Industrial Relations and Sutherland Nominees Pty Ltd (trading as Tidal Water Restaurant). The employee in question had entered into a verbal agreement that he would be employed as an apprentice cook on a probationary basis. At the end of the probationary period the employee's employment was terminated. The requirements of the relevant Act regulating training at the time were that a contract of training authorised by the Training Authority of Tasmania had to be in place. The decision of Imlach C was that in the absence of such a contract of training the relevant junior rates in the award applied. In reaching his decision the Commissioner accepted Richardson v Sedemuda as a precedent. An Order was issued for payment of arrears of wages. Mr Thomas said that, in the instant case, as there were no signed papers, and no contract of training, then, in settlement of the dispute the employer should pay the amount sought, and that the Commission should issue an order payable within seven days. The Respondent's Submissions Mr Cameron said that, from the employer's point of view, the employer and Miss Clark had validly entered into an employer-apprentice situation at the time of engagement. Part of that agreement was that the pay rates would be in accordance with the apprenticeship rates in the award, and that she would progress at an accelerated rate following a review of her work. The dispute arose, he said, because the employee had made a complaint to the Workplace Standards Authority as a result of not obtaining pay increases, and it was only as a result of that investigation that the question of no signed apprenticeship papers arose. The transcript from T7802 showed clearly that Miss Clark understood that she was an apprentice. Mr Cameron said that because of Miss Clark's prior work experience and competencies it was envisaged that, through a combination of work with the employer and a course at Drysdale, she would be suitably qualified to obtain trade papers, which was discussed and agreed at the time. The course she wished to do was not available at the time, but the fact that she did not attend a course means nothing in terms of confirming or denying the existence of an apprenticeship. This view, he said, was confirmed in a decision of the President in relation to the Abattoirs Award, in T6257 of 1996, where it was indicated that it does not matter when training courses are done, as long as they are done at some stage during the apprenticeship. This decision was confirmed on appeal in T6639 of 1996. At the time of Miss Clark's employment there was a move away from structured training to competency-based training and this had caused some confusion in the minds of both parties, he said. The employer was still of the view that Miss Clark had been paid correctly; at the end of the day she was on year 2 apprenticeship rates, after less than one year of employment with the employer. Referring to the Oxford English Dictionary's definition of "apprentice", which had been tendered by Mr Thomas, Mr Cameron said that the words:
did not mean that the legal agreement needed to be in writing. The President's Interpretation (in T8857 of 2000) did not clarify the issue in dispute because the Apprentices Act 1942 had been repealed by subsequent legislation, which means that it no longer has application and cannot be used for any purpose, Mr Cameron said. The Apprenticeship Act was repealed by the Industrial and Commercial Training Act in 1985, which was repealed by the Vocational Education and Training Act 1994. In Mr Cameron's submission, working through the Acts, in accordance with the President's interpretation the current Act is the Vocational Education and Training Act. The Vocational Education and Training Act says that: "A trainee means a person undergoing;
(b) an apprenticeship" Mr Cameron argued that the requirement to be under a training agreement applied where there was a training course under a training agreement, not an apprenticeship under a training agreement. Because the Vocational Education and Training Act is the only legislation in place currently and because the definition of trainee means that a trainee is either training under a training agreement with all of the requirements relating to documentation, or an apprenticeship, then the legislation is not applicable to apprentices.20 In Mr Cameron's submission the Vocational Education and Training Act does not cover apprentices to the extent of setting out any requirements at all for the registration of indentures of apprenticeship or for anything to be actually reduced to writing between the parties.21 The President had said, at page 10 of the Interpretation decision:
Mr Cameron said that in the absence of a clear definition and application of the Vocational Education and Training Act, no other legislation is currently applicable. With the repeal of both the Apprentices Act 1942 and the Industrial and Commercial Training Act, it is the common law which must be looked to to find out what an apprentice is. In answer to a question from the Commission as to what would make Miss Clark an apprentice according to a common law understanding of what that was, Mr Cameron said that basically an apprentice is a learner of a craft, who is bound by a legal agreement, who is in an employment relationship, and where the employer is reciprocally bound to instruct the employee. The arrangements between the employer and the employee complied with that, he argued; the evidence of Ms Clark was that she was there to learn, to get the qualifications and skills necessary; Ms Hoskin's and Mr Crowe's evidence was that Miss Clark received training and tuition.22 Insofar as the Tidal Waters case was concerned, Mr Cameron said that was easily distinguished from the instant case because at the time the relevant legislation was the Industrial and Commercial Training Act, which set out the requirements for apprentices, including the requirement for the registration of indentures. The case of Richardson v Sedemuda Pty Ltd was similar, in that it was determined under the auspices of the West Australian legislation, which required that an agreement regarding apprenticeship training in a prescribed trade be registered, he said. This distinguishes that case from the present one, in that there was specific legislation covering the requirements for apprentices and the legislation was different to that which applied in Tasmania. Findings There was some argument as to whether the declared vocation of "Cooking" referred to in the evidence applied in the present case because, Mr Cameron said, the award referred to kitchen trades, which are not defined anywhere as prescribed trades. It is outside of my jurisdiction to decide whether or not the trade of "Cooking" includes "Kitchen Trades". However, in view of my findings, which follow, the question becomes irrelevant. The authorities referred to by Mr Thomas - Richardson and Sedemuda and Minister for Industrial Relations and Sutherland Nominees (trading as Tidal Water Restaurant) - are not helpful in deciding this matter, as those matters were decided according to the relevant Training Acts in place, which Acts do not apply in this instance. Whilst the substantial information provided in relation to the history of apprentices and the Restaurant Keepers Award is informative, in my opinion, in determining this matter, I need only consider: the President's declaration in T8557 as to the meaning of "apprentice" in the Restaurant Keepers Award; the legislation governing apprentices since the repealing of the Apprentices Act 1942; the evidence as to the nature of the work performed by Miss Clark; and the evidence concerning her hours of work and rate of pay. The President declared:
I reject Mr Cameron's arguments regarding the common law meaning of apprentice. In my opinion, the traditional meaning of "apprentice" is a person who enters into an arrangement to learn a trade and who, as part of that arrangement, is indentured. The legal meaning of indenture is a deed made between two or more parties. At common law, a deed must be in writing. The CCH Macquarie Dictionary of Employment and Industrial Relations defines an "apprentice" as:
Similarly, the Oxford English Dictionary, Second Edition, Volume 1, 198923 defines "apprentice" as:
Mr Cameron referred to the definition of "apprentice" Macquarie Concise Dictionary of Modern Law, quoted in the CCH Labour Law Reporter, which says that an apprentice is one who is bound for a fixed term to serve a master in return for instruction in the trade (my emphasis). In my view, the words "bound for a fixed term" suggest being bound by indentures. I am of the view that the arrangement between Miss Clark and the employer bears little resemblance to the above definitions of "apprentice", because of the absence of any binding written contract of training, whether called "indentures" or by any other name. Mr Cameron's arguments that Miss Clark was an apprentice according to the common law meaning of the term are not persuasive. Returning to the President's declaration, the evidence put before me was that the Apprentices Act 1942 was repealed by the Industrial and Commercial Training Act 1985, which in turn was repealed by the Vocational Education and Training Act 1994. The Vocational Education and Training Act, according to Mr Cameron's submissions, does not regulate the training of apprentices, only trainees. It is not up to me to decide whether that Act does or does not regulate apprentices' training. If Mr Cameron's contentions in relation to the Vocational Education and Training Act are correct, and the Act cannot be read to include apprentices, then, whilst there is repealing legislation, there is no current legislation which regulates the training of apprentices. The President's declaration is clear - in order to be paid the "Apprentice" rates under the terms of the Restaurant Keepers Award, a person must be bound by indentures in accordance with the Apprentice Act 1942 or any subsequent or repealing legislation which regulates the training of apprentices. If there is no current legislation, then no-one can be paid the "Apprentice" rates under the award, and the applicant's case must succeed. If, however, Mr Cameron's contentions in this respect are incorrect, and, under the terms of the Vocational Education and Training Act "trainees" and "apprentices" are interchangeable terms used to describe a mix of work and training resulting in the award of a recognised qualification, and requiring an approved training agreement, then the applicant's case would still succeed, because, in the absence of an approved training agreement, as required under the Act, then she cannot be paid the "Apprentice" rates in the award, for the reason that the President has declared that those rates apply to persons bound by indentures of apprenticeship, in accordance with the Apprentices Act 1942, or any repealing or subsequent legislation, and Miss Clark was not so bound. I find that Ms Clark was not a person bound by indentures of apprenticeship according to the Declaration by the President in Matter T8857 of 2000 and that therefore she is not a person to whom the wage rates set out in subclause 4. APPRENTICES, of Clause 8, Wage Rates, of the Restaurant Keepers Award apply. Having considered the evidence in relation to the work performed by Ms Clark whilst she was employed by the employer, I find that she should have been classified as a Food and Beverage Employee Grade 1 for the period 11 May 1997 to 2 November 1997 and as a Food and Beverage Employee Grade 2 for the period 3 November 1997 to 31 March 1998, and that she should have been paid at the appropriate adult rates for those classifications. ORDER PURSUANT TO the power conferred on me by Section 31[1] of the Industrial Relations Act 1984 I HEREBY ORDER that, in settlement of the industrial dispute referred to in Matter T No 9209 of 2000 that A.C.N. 009 581 364 Pty Ltd (formerly Fee and Me Proprietary Limited A.C.N 009 581 364), Registered Office 33 George Street, Launceston, Tasmania 7250, pay to Samantha Clark, 2 Trevallyn Road, Launceston, Tasmania 7250, the sum of Eight Thousand Five Hundred and Fifty Five Dollars and 79 Cents, in full settlement of the dispute, such payment to be made on or before the close of business 2 January 2000.
P C Shelley Appearances: Date and place of hearing: 1 Exhibit T1 |