T9359
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TASMANIAN INDUSTRIAL COMMISSION Industrial Relations Act, 1984 A.C.N. 009 581 364 Pty Ltd and The Secretary, Department of Infrastructure, Energy and Resources
Appeal - decision by Commissioner PC Shelley in Matter T9209 of 2000 - Appeal upheld - Order revoked REASONS FOR DECISION Introduction [1] These proceedings concern an appeal against a decision of Commissioner Shelley on 11 December 2000.1 The hearing at first instant dealt with an application, lodged by The Secretary, Department of Infrastructure, Energy and Resources (the applicant), pursuant to s.29(1C) of the Industrial Relations Act 1984, for a hearing 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. Background [2] The background to the dispute is described in Commissioner Shelley's Decision as follows:
[3] Arising out of an application2 made by the Secretary, Department of Justice and Industrial Relations, pursuant to s.43 of the Act, the then President Westwood, in his decision dated 30 June 2000, declared:
Findings of the Commissioner [4] Simply stated Commissioner Shelley found: 1. the traditional meaning of "apprentice" was a person who enters into an arrangement to learn a trade and who, as part of that arrangement, was indentured. 2. that an indenture was a deed made between two or more parties and at common law, a deed must be in writing. 3. the arrangement between Miss Clark and the employer bore 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. 4. in determining the issues in dispute, she need only consider:
5. Miss Clark was not a person bound by indentures of apprenticeship according to the Declaration by the President in Matter T8857 of 2000 and 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. 6. Miss Clark 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. Grounds of Appeal [5] The employer now appeals that decision, contending: That the Commissioner erred: 1. by taking into consideration orders of the Commission in T. No. 7802, T. No. 8040 of 1998 and T. No. 8374 of 1999; 2. in the application and interpretation of the declaration of the President in T. No. 8857 of 2000 as it applied to this matter and generally; 3. at law by holding that an indenture is a deed; 4. at law by ignoring common law principles; 5. by finding that an apprenticeship must be evidenced in writing; 6. by finding that apprentices in Tasmania must be regulated by legislation. [6] To be successful in an appeal, the appellant is required to demonstrate that the Commissioner at first instant:
[7] Mr A Cameron, appearing for the Tasmanian Chamber of Commerce and Industry Limited (the TCCI) on behalf of the employer, referred to the principles established in the decision of the High Court in House v The King (1936) [55 CLR 499, at 504-505 per Dixon, Evatt and McTiernan] which provides:
[8] We support and adopt those principles. Ground 1 [9] The subject matter of the dispute which gave rise to the application before Commissioner Shelley, has been central to past applications before the Commission. Indeed, the Commissioner was requested by the parties to adopt the transcript and witness evidence arising out of T7802 of 1998 in the proceedings before her. For various reasons, those applications did not settle the dispute. [10] In her Reasons for Decision, Commissioner Shelley outlined the history of the dispute. [11] Mr Cameron, when addressing this ground of appeal, submitted that the Commissioner erred by taking into consideration orders of the Commission in T. No. 7802, T. No. 8040 of 1998 and T. No. 8374 of 1999. [12] It was his submission that the matter should have been heard afresh, without reference to any previous decisions in the same factual situation. [13] He maintained that reference to those previous applications, in the Commissioner's decision, indicates that the decision was not approached with an open mind and the Commissioner was influenced by matters not before her in hearing. [14] In that regard, Mr Cameron referred us to s.20(4) of the Act which provides that:
[15] That opportunity, he said, was not provided to the employer and if the employer had known the Commissioner was going to refer to the previous decisions, they would have sought to be heard on the issue. Finding [16] Having reviewed the original decision and considered the submissions of the appellant, we would have to conclude that there is no evidence to substantiate a claim that Commissioner Shelley was influenced by the history of the dispute as outlined on pages 2 - 4 in her decision. We believe the overview of the dispute was nothing more than to assist the understanding of those who read the decision. [17] The decision clearly shows the things that influenced the Commissioner when she stated:
[18] Given our finding, we dismiss this ground of appeal. Ground 2 [19] In respect to Ground 2, it was Mr Cameron's contention that the Commissioner erred in the application and interpretation of the declaration of President Westwood in T No 8857 of 2000 as it applied to this matter and generally. We summarise his position as follows. [20] Mr Cameron submitted that, for the period of enforcement of the Apprentices Act 1942 it was clearly the case that written indenture of apprenticeship were required. [21] A similar situation applied, he said, during the period of operation of the Industrial and Commercial Training Act 1985, where apprenticeships needed to be in writing, in triplicate, and lodged with an appropriate authority for registration. [22] He further submitted that the Industrial and Commercial Training Act 1985 and subsequent amending Acts were specifically repealed by s.86 of the Vocational Education and Training Act 1994, (VET Act) subject to a savings provision that provided for a carry over of any apprenticeships or other training agreements in place under the Industrial and Commercial Training Act 1985. [23] However, once the VET Act came into force there was no requirement for an apprenticeship to be in writing, and nowhere in the President's interpretation and declaration does it say that an apprenticeship must be in writing. [24] Mr Cameron said, nowhere in the VET Act, was there a requirement or mention of an apprentice. It only defines "trainee" as follows: ""Trainee" means a person undergoing -
[25] In addition, Mr Cameron said, the VET Act did not (a) require an apprenticeship to be in accordance with a training agreement or indentures or any other written documentation, nor (b) refer to any requirements affecting an apprentice or an apprenticeship. It was his contention that the VET Act had no application to apprentices. [26] While there were no statutory rights, he said, there were still common law rights which apply to the relationship of master and apprentice. [27] Mr Cameron said, the then President Westwood, despite his best intentions could not bring back into force an Act that has been repealed. All that can be looked at is an Act that was in place. He said, from 1975 to 1985 it was the Apprentices Act 1942, and from 1985 to 1994 it was the Industrial and Commercial Training Act 1985, and then after, the VET Act, but that Act, he said, was silent on apprentices. [28] Mr Cameron further submitted the retrospectivity of the declaration to the 21 August 1975 confirms the reference to the Apprentices Act 1942, and the application of that Act only to relevant times of the award and not past the repeal of that particular legislation, especially when the declaration states "... or any repealing or subsequent legislation". Mr Cameron contended that, once an Act was repealed (apart from any savings provisions therein and apart from the protection by the Acts Interpretation Act 1931) that was the end of that legislation. It had no further force, he said, and could not be relied upon by any party, unless the dispute arose during the term of that legislation. Subsequent legislation, he said, must be looked at on its own and not in conjunction with previous legislation. [29] Mr Cameron contended that just because there was no statutory requirement or definition of apprentices, or the setting out of regulations affecting them, does not mean that you cannot still have apprentices. [30] Mr G Williams, for The Secretary, Department of Infrastructure, Energy and Resources, submitted the Commission, by virtue of s 43(7)of the Act, was bound by the declaration of the then President Westwood with respect to the matter the subject of the declaration. [31] He said application T9209 of 2000 was such a matter and involved the same award and the same set of circumstances, that is, an adult employee working in a kitchen of a restaurant, paid as an apprentice without any apprenticeship papers being signed or registered. [32] Mr Williams contended that the Commissioner did not err in the application of the interpretation and in fact on page 13 of the decision, found that Miss 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 was not an apprentice as per the award. [33] At the same time, Mr Williams also held the view the legislation that regulated training in Tasmania at the time of this dispute was the Vocational Education and Training Act 1994 and that Act regulated the training of apprentices. Finding [34] We agree with Mr Williams that the Commission, by virtue of s. 43(7) of the Act, is bound by a declaration made pursuant to s.43 of the Act, with respect to the matter the subject of the declaration. However, this Ground of Appeal challenges Commissioner Shelley's application and interpretation of the declaration arising out of application T8857 of 2000. That decision dated 30 June 2000, declared:
[35] Whilst the declaration says that `apprentices', for the purposes of the award, are persons bound by "indentures of apprenticeship in accordance with the Apprentices Act 1942, or any repealing or subsequent legislation which regulates the training of apprentices.", we believe that to mean, indentures of apprenticeship in accordance with the Apprentices Act 1942 and is silent on the contractual arrangements under any repealing or subsequent legislation which regulates the training of apprentices. [36] During the enforcement period of the Apprentices Act 1942 apprentices were bound by indentures of apprenticeship and this was consistent with the declaration. [37] In 1985 the Industrial and Commercial Training Act 1985 came into effect. Later on there was amending legislation, however, at all times apprentices were defined in that Act and the apprenticeships were required to be in writing and lodged with an appropriate authority for registration. This in our view was "subsequent legislation" consistent with the declaration. [38] The Vocational Education and Training Act 1994 received Royal assent on 16 December 1994. Section 86 of that Act repealed the Industrial and Commercial Training Act 1985 and the amending Acts. [39] To satisfy the declaration there is a need to consider the affect of the Vocational Education and Training Act 1994 (VET Act) on those previously known as apprentices in order to establish whether the VET Act was "repealing or [is] subsequent legislation which regulates the training of apprentices". [40] The VET Act defines "trainee" as follows: ""Trainee" means a person undergoing -
[41] We are of the view that the VET Act regulates those persons previously known as apprentices. Even though they are now known as a trainees under the VET Act, nevertheless, they are persons undergoing an apprenticeship. Therefore, we would have to conclude the VET Act is "subsequent legislation" consistent with the declaration. [42] A trainee undergoing training in accordance with (a) of the definition of "trainee" is required to enter into a training agreement (as defined under the VET Act). There is, however, no such requirement for a trainee being a person undertaking an apprenticeship. Therefore the provisions contained in Division I of Part 6 of the VET Act, relating to the agreement or contract between the employer and the trainee [undergoing an apprenticeship] do not apply. If we are wrong on that point, nevertheless, those provisions do not have any mandatory application. [43] Therefore it must follow that we now turn to the nature of Miss Clark's Contract of Employment. [44] It was agreed between the parties that the transcript of T7802 of 1998 should form part of the evidence in the matter under appeal. Commissioner Shelley described this evidence in the following terms:5
[45] So far as it relates to this question, the following comments and observations by the Commissioner are relevant:
[46] The following extracts from the evidence of Miss Clark in T7802 of 1998 also throw light on the intention of the parties at the time the contract commenced.
[47] When questioned as to the reason Miss Clark left her previous position she said:9
[48] There can be no question that both parties freely used the expression of apprentice or apprenticeship. There was an agreement that the Apprentices clause in the award would be the basis for determining Miss Clark's rate of pay. The only disagreement was whether the incremental adjustments would apply automatically every 3 months or be based on the achievement of competencies. [49] There can be no doubt that the parties agreed that training would be provided and undertaken and that the anticipated end result would be the grant of "trade papers". [50] Whilst there was some equivocation as to the anticipated time frame of the contract it can reasonably be assumed that, all things being equal, both parties expected that the time frame would be 12 months. Any equivocation on the employer's part related to concept of competency based training rather than the more traditional time based arrangements. [51] There was no suggestion in the evidence that the arrangement was some sort of device aimed at circumventing the award. [52] We are satisfied that the arrangement was a genuine agreement to provide and undertake training in a work environment with the objective of achieving trade status at the end of the term. [53] The only missing element is a written training agreement registered with the relevant training authority. As we have found earlier, this is not a mandatory requirement for a trainee being a person undertaking an apprenticeship. [54] For all the above reasons we believe the Commissioner erred in the application and interpretation of the declaration of President Westwood in T No 8857 of 2000, therefore we uphold this ground of appeal and revoke the Order in matter T9209 of 2000 issued 11 December, 2000 pursuant to s.71(13)(a) of the Act. [55] In the circumstances it is unnecessary to address grounds 3 to 6 inclusive.
P L Leary Appearances: Date and Place of Hearing: 1 T9209 of 2000. |