T6257
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TASMANIAN INDUSTRIAL COMMISSION Industrial Relations Act 1984 Tasmanian Chamber of Commerce and Industry Limited ABATTOIRS AWARD
Award interpretation - Abattoirs Award - declaration made that accredited off-the-job training in slaughtering be provided for apprentice slaughtermen - if no course available apprentices to be paid at relevant tradesperson's rate - operative 27.1.94 REASONS FOR DECISION The Abattoirs Award at Clause 8 - Wage Rates, Division I - Apprentices, provides that apprentices must be paid certain percentages of the tradesperson's weekly award wage rate as set out in Division A of Clause 8, depending on the length of time they have served in their apprenticeships. There is a proviso to Division I which is as follows:
The Australasian Meat Industry Employees Union, Tasmanian Branch, in separate proceedings under Section 29 of the Industrial Relations Act 1984 which have been adjourned pending this interpretation, claimed that no "accredited off-the-job technical training" had been made available to apprentices in slaughtering engaged by Devonport City Abattoir Pty Ltd (the company) and accordingly the apprentices should be paid the relevant tradesperson's rate. As a consequence of those proceedings, the Tasmanian Chamber of Commerce and Industry Limited (the TCCI) pursuant to section 43 of the Act applied for an interpretation of Division I of the Wage Rates clause. The TCCI submitted that the company had been persuaded by outside sources early in 1995 to provide apprenticeships in slaughtering and at that time it had been unaware that no structured off-the-job training existed for slaughtering apprentices. To overcome this deficiency the company had engaged its own consultant to develop a training course for slaughtering and to gain recognition of the company from the appropriate training authority as a training provider. The company's management anticipated that accreditation for the training and approval of the employer as a training provider would be forthcoming in a relatively short time. It was claimed however that off-the-job technical training in areas such as occupational health and safety, knife sharpening, and fire safety had already been provided and that this training met the requirements of the proviso. It was submitted that contracts of training for all the apprentices concerned had been entered into early in February 1995 for a period of four years. A number of those apprentices immediately prior to February 1995 had been engaged as Career Start Trainees. Those traineeships were terminated. Certified copies of all the contracts of training relevant to these proceedings were tendered as exhibits. The contracts of training for the apprentices provide that the parties -
In the contracts "apprentice/trainee" is used to identify the employee involved. A scheme is defined elsewhere in the contract as a trade or declared vocation. The contracts also provide that a Training Schedule, if defined, will form part of the contract. "Trades and Declared Vocations" which have a Training Schedule are identified in an attachment to the contract. The employer agrees "to ensure the apprentice/trainee receives workplace training according to the requirements of (the) Scheme of Training and to provide the appropriate facilities for the provision of workplace instruction" and, "where necessary, to release the apprentice/trainee as required by the Training Authority of Tasmania and to give every encouragement to the apprentice/trainee to achieve the required standard of off-the-job training". The employee agrees "to attend and participate in off-the-job training in accordance with (the) Scheme of Training" and "to undertake the tasks and achieve competence in the occupation for which training is provided". The parties agree that "the conditions of employment, including remuneration, shall be as prescribed from time to time by the appropriate industrial award, order, industrial agreement or the provision of the Tasmanian Industrial and Commercial Training Act 1985, Section 37". (Now replaced by the Vocational Education and Training Act 1994 which validated training agreements entered into under the repealed Act). The TCCI submitted that the wording of the proviso to Division I was vague and imprecise. The term "apprentices" was not defined in the award nor the Vocational Education and Training Act. The term "accredited" lacked any qualification in the award as to what authority if any would perform the accreditation. "Off-the-job" was not defined and was said to be capable of meaning either remote from the work site or remote from the "workface"; and there was no definition of "technical training". The words "who do not receive" were said to be capable of being applied to the past, present or future. It was submitted on this latter point that there were a number of possible outcomes. Mr Edwards said:
Transcript, page 8 Mr Edwards also said:
Transcript, page 14 Mr Cameron who represented the TCCI on the last day of hearing, in summarising the employer's position on this matter submitted that there was no time limit on when the apprentices had to attend and complete their training modules as training was now competency based, not time based. Other provisions in the award dealt with apprentice conditions based on hourly, daily, weekly or yearly events which provided no lead as to how the proviso should be read and further added to the ambiguity. It was submitted that it would severely disadvantage the employer if the award was interpreted to mean apprentices must be paid the tradesperson's rate if accredited off-the job technical training was not provided say on an hourly, daily or weekly basis. Such an interpretation would also impact on employers who engaged apprentices whose only accredited off-the-job technical training was done by block release. I have considered the employer representative's submissions on that point and notwithstanding Mr Edwards' remarks at page 8 of transcript, I agree with Mr Cameron's view that there is no time limit on when training is to be provided to an apprentice. So long as the training is provided during the period the contract of training is in force the award requirement is met. Mr Swallow for the Australasian Meat Industry Employees Union, Tasmanian Branch (the AMIEU) argued that the words had a well known and accepted meaning and that unless formally accredited training in the trade of slaughtering was provided to the apprentices, the employer should pay the tradesperson's rate. There was no dispute as to what was meant by the words "shall be paid the relevant tradesperson's weekly wage rate as set out in Clause 8 - Wages", and I too consider the words are clear and unambiguous. Having considered the submissions of the employers' representatives and Mr Swallow I am in no doubt as to the meaning of the other key words in the proviso. I am satisfied that an "apprentice", although not defined in the Vocational Education and Training Act 1994, nor in the award, refers to an employee, subject to a contract of training entered into in accordance with the Vocational Education and Training Act, who is engaged for a specific period of time, usually four years, during which the employer undertakes to impart the skills of his or her particular trade or vocation and the employee/apprentice undertakes to absorb and, with practice, learn to apply those skills. In most cases an apprentice would be required to attend formal off-the-job technical training. I am satisfied that "accredited" means approved by the Authority in this State which, pursuant to the Vocational Education and Training Act, has as one of its functions "to accredit training courses". As to the term "technical training" in this context I consider the words refer to formal training in and by a recognised training institute such as a TAFE College or by an approved training provider in approved premises using approved equipment as required in accordance with the Vocational Education and Training Act. To import any other meaning would be to ignore current and past practice. In my opinion the words have a well accepted meaning in common usage in the industrial community of this State. I am satisfied that "off-the-job" means away from the normal room, building or site in or on which the employee's day to day work occurs. In this case some off-the-job training for employees of Devonport City Abattoirs is said to have occurred in the company's amenities block which is not where the employees perform their normal duties. If, pursuant to the Vocational Education and Training Act, the amenities block is regarded by the Accreditation and Recognition Committee as suitable for the conduct of accredited off-the-job training courses it will meet the requirement of the award for off-the-job training. With regard to the expression "who do not receive", I agree with the employer's representative that it lacks precision. However, given the system of technical training which has applied in this State for some time, and which has been a mixture of day release and block release training, it seems clear to me that provided an apprentice is provided the opportunity to undertake a full course of accredited training in the trade or vocation to which he or she is contracted during the period of the contract, the terms of the award will have been met. It follows that I do not accept the assertion by the employer that the training courses in occupational health and safety, knife sharpening and fire safety as outlined previously, which already have been provided for the slaughtering apprentices and others at the workplace, are "accredited off-the-job technical training" courses for the purposes of the award. In the circumstances if the Accreditation and Recognition Committee accredits a training course in slaughtering and there is sufficient time within the period of the contracts of training for the course to be provided to the apprentice, the employer's obligations will have been met and the payment of tradesperson's rates in accordance with the proviso will not be required. If no training course is accredited by the Accreditation and Recognition Committee or if such training is accredited but not provided during the period of the contract of training the employer will be required to pay the apprentices the tradesperson's rate for the full period of the contract in accordance with the award. Given the forgoing, in accordance with Section 43(1A) of the Industrial Relations Act, I declare that the proviso to Division I, Apprentices, Clause 8 Wage Rates of the Abattoirs Award is to be interpreted in the following manner with effect from the first full pay period to commence on or after 27 January 1994:
F D Westwood Appearances: Dates and places of hearing: |