PR968518
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AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION
Workplace Relations Act 1996
s.170CE application for relief in respect of termination of employment
Emily Dawn Anderson
and
TDK Investments P/L ATF Frost Family Trust
(U2005/7077)
COMMISSIONER THATCHER |
PERTH, 9 FEBRUARY 2006 |
Termination of employment – jurisdictional objection – traineeship
EX-TEMPORE DECISION
[1] The following decision, now edited, was issued during proceedings conducted on 6 February 2006.
[2] Ms Emily Dawn Anderson has made application under s.170CE(1) of the Workplace Relations Act 1996 (the Act) on the grounds that her termination of employment by TDK Investments Pty Ltd ATF Frost Family Trust (the respondent) as the Manager, Subway, Dunsborough was harsh, unjust or unreasonable. Ms Anderson ceased employment on 3 December 2005.
[3] The respondent has moved for the dismissal of the application on the ground that it is outside the jurisdiction of the Commission because Ms Anderson was, at the relevant time, engaged as a trainee.
[4] Subsection of 170CBA of the Act relevantly provides:
“170CBA Exclusions
(1) Exclusions from Subdivisions B, D, E and F and sections 170CL and 170CM The following kinds of employee are excluded from the operation of Subdivisions B, D, E and F and sections 170CL and 170CM:
…
(e) a trainee whose employment under a traineeship agreement or an approved traineeship:
(i) is for a specified period; or
(ii) is, for any other reason, limited to the duration of the agreement;…”
[5] For the purposes of s.170CBA(1)(e) the following definitions in s.170CD(1) of the Act are relevant:
“trainee means an employee (other than an apprentice) who is bound by a traineeship agreement.
traineeship agreement means an agreement between an employer and an employee:
(a) that is consistent with the relevant training award; and
(b) that is registered:
(i) with the relevant State or Territory training authority; or
(ii) under a law of a State or Territory relating to the training of employees.
relevant training award, in relation to an agreement, means:
(a)…
(b) if the agreement commences on or after the commencement of this definition—whichever of the following is in force when the agreement commences:
(i) the award known as the National Training Wage Award 2000; or
(ii) a later award that covers substantially the same subject matter as is covered by the award referred to in subparagraph (i).
State or Territory training authority means a body authorised by a law or an award of a State or Territory for the purpose of overseeing arrangements for the training of employees.”
[6] Therefore for Ms Anderson to be in the excluded category, at the time of her termination of employment:
(a) she must have been employed as a trainee under a traineeship agreement or an approved traineeship; and
(b) she must have been employed for a specified period; or
(c) her employment must have been limited to the duration of the traineeship agreement.
The facts
[7] The Commission heard evidence from the following:
as to the establishment of the employment relationship and the training contract between Ms Anderson and the respondent.
[8] In early November 2004, Ms Anderson was engaged by the respondent as a part-time sandwich artist at the Dunsborough shop, with conditions of employment under an Australian Workplace Agreement (AWA). 1
[9] A Subway employee from Bunbury had been assisting the respondent manage the new Dunsborough shop until they could find someone more permanent. She moved to Busselton to assist the respondent open a new store and on 4 May 2005 Ms Anderson, who at the time was performing second in charge duties, was promoted to the full-time Manager’s position on an on-going basis. 2 No action was taken in relation to the AWA.
[10] Subsequently Mrs Frost and Ms Anderson discussed a traineeship, with Ms Anderson indicating that she would like to undertake one. 3 A Training Contract4 under which Ms Anderson became a trainee was signed by Mrs Frost and Ms Anderson on 15 August 2005 and commenced from that date. The level of qualification involved was shown as Certificate II in Retail Operations (WRR 20102). The nominal term of the training contract was shown as 12 months.
[11] The registered training organisation for Ms Anderson’s traineeship was shown on the training contract as the Apprenticeship and Traineeship Company (ATC). The pro forma document was filled out to indicate that Ms Anderson would be employed and trained in a full-time capacity for 38 hours per week. It indicated the type of employment arrangement as an AWA (Item 38). In response to the query “Prior to commencing THIS traineeship has the trainee worked for, or been hosted by/to the employer/host employer”, the document was marked “No” (Item 40).
[12] Mr Frost received written advice from ATC dated 25 August 2005 that it would be contacting him to seek his input into a Training Plan Outline (TPO) “which is an outline/plan of how the training and assessment is to occur for you”. 5 The TPO dated 6 September 2005, which was signed by Mrs Frost and Ms Anderson when ATC visited the workplace showed the estimated commencement date of training as September 2005. An ATC form identifies an employment start date of 15 August 2005 and a training start date as 6 September 2005.6 An ATC report indicated the next assessment date as 13 December 2005 and the next phone contact date as 28 October 2005.
[13] The respondent received correspondence dated 19 September 2005 from the WA Department of Education and Training (DET) advising that the Traineeship Training Contract with Ms Anderson had been registered. 7
[14] The telephone contact between ATC and Ms Anderson occurred on 16 November 2005. 8 The ATC documentation of that conversation indicates that Ms Anderson had stated that she had been too busy to undertake traineeship work. Also she had been absent on 3 week’s holiday. It was explained that she needed to have a Phase A completed for assessment on 13 December 2005. There is no record of any indication that Ms Anderson was unsure about continuing with the traineeship.
[15] In mid November 2005 a telephone conversation took place between Ms Anderson and Mrs Frost regarding the traineeship. Prior to that time Ms Anderson had spoken to Mr Frost indicating that she wasn’t sure if she wanted to continue with the traineeship 9 and he had suggested that she speak to Mrs Frost and the ATC.
[16] There were differing accounts of what transpired during the telephone conversation between Ms Anderson and Mrs Frost. Mrs Frost’s evidence was that she heard about Ms Anderson’s concerns indirectly. When she spoke to the ATC they suggested that when trainees experience some difficulty they just need to talk to them. When the conversation between them occurred, Mrs Frost advised Ms Anderson that she needed to talk to the ATC. 10
[17] Ms Anderson’s evidence was that she was very clear in advising Mrs Frost that she did not want to do the training any more (as she wished to avoid paying a fee of around $500) and that Mrs Frost said that she would sort it out and would telephone ATC as that would sound better. 11
[18] Nothing further occurred in respect of Ms Anderson’s training up until she ceased employment with the respondent on 3 December 2005 under circumstances that are not relevant to this jurisdictional objection.
[19] As a consequence of action by Mrs Frost to advise ATC of Ms Anderson’s cessation of employment, 12 on 30 December 2005 DET advised Ms Anderson that: “Further to advice that you are no longer continuing with your traineeship, I wish to inform you that the Training Contract has been cancelled.”13 Similar advice from DET was received by the respondent.14
Consideration
[20] The respondent bears the onus of demonstrating that the applicant is excluded from this jurisdiction. 15
[21] In respect of the necessary condition referred to in paragraph 6(a), whatever the conversation between Ms Anderson and Mrs Frost regarding Ms Anderson’s discontinuing her training, the training contract which commenced from 15 August 2005 remained registered with the relevant State training authority (DET) until it was cancelled subsequent to her cessation of employment.
[22] This raises the interesting issue of whether or not that conversation amounted to a termination of the “agreement between an employer and an employee … that is consistent with the relevant training award”, i.e., the National Training Wage Award 2000. 16 Clause 10.3 of that award provides that the termination of trainees is dealt with in the training agreement, or in the relevant State training legislation.
[23] One of the obligations included in the training contract between Ms Anderson and the respondent was:
“We agree that:
…
(g) this Contract is terminated if:
(i) we apply for it to be terminated and our local State/Territory Training Authority agrees; or
(ii) our State/Territory Training Authority orders its termination in accordance with relevant State/Territory legislation.” 17
[24] Whilst the Industrial Training Act 1975 (WA) provides for the cancellation of an apprenticeship 18 there is no provision in that Act or in subordinate legislation for the termination of traineeship agreements or approved traineeships – the two alternatives provided by s.170CBA(1)(e).
[25] For reasons that will become clear, it is not necessary to determine whether Ms Anderson’s traineeship agreement or approved traineeship was terminated prior to her cessation of employment.
[26] Putting that issue aside for the moment, in relation to the other necessary condition referred to in either subparagraphs 6(b) or subparagraph 6(c), in order to be excluded under s.170CBA(1)(e) of the Act, Ms Anderson would have had to have been employed as the Manager, Dunsborough for a specified period. Alternatively, her employment as Manager would have had to have been limited to the duration of the traineeship agreement.
[27] The potential difference between an employment contract and a traineeship arrangement has been discussed in a number of decisions of this Commission. 19 In Kinniburgh v Printers Press Pty Ltd,20 Williams SDP said:
“In my view, although an apprentice may perform duties under a contract, the primary purpose of which is to provide training in a particular vocation, a distinction may be drawn between the ‘contract of employment’ and the ‘contract of training’. Whilst the two may coexist and operate in tandem, it is not necessary that the terms of both coincide. Clearly in this case, the applicant was engaged under a contract of training. He was, however, also engaged under a ‘contract of employment’. The contract of training was an agreement between the respondent and the applicant whereby the former agreed to provide the latter with vocational education. The contract of employment was an agreement between the respondent and the applicant whereby the former agreed to employ the latter and the latter agreed to work for the former. In so far as any time period might have been specified, that time period related to the period of training, not the period of employment.
It follows from the existence of the distinction between the two that the fact that a contract of training is for a specified period does not necessarily mean that the contract of employment is for the same period. Whether or not the periods are the same will depend upon the circumstances of each case.”
[28] Accordingly, in order for the applicant to be excluded there must not only be the existence of a training agreement (within the meaning of that term) or an approved traineeship, but also a co-existing employment relationship the terms of which specify its duration or limit the duration of the employment to the life of the traineeship agreement.
[29] In this case the evidence is that Ms Anderson was not employed for a specified period or for a period that was limited to the duration of the training contract. On the contrary, I am satisfied that the parties entered into an employment relationship such that Ms Anderson was engaged as the Manager, Dunsborough on 4 May 2005, before the traineeship was contemplated. Further it has intended that her employment in that capacity would be on an ongoing basis and continue beyond the training contract period.
[30] Accordingly, even if I were satisfied that the applicant was at the time of her cessation of duty a trainee employed under either a traineeship agreement within the meaning of the Act or an approved traineeship, the balance of the requirements for the exclusion have not been established.
Conclusion
[31] For reasons outlined above, I am not satisfied that the respondent has demonstrated that the applicant is excluded by virtue of s.170CBA of the Act. Accordingly, I have decided that there is no basis for the respondent's objection on the jurisdictional grounds of s.170CBA(1)(e).
[32] Therefore the application will proceed to conciliation in accordance with s.170CF of the Act.
BY THE COMMISSION:
COMMISSIONER
Appearances:
B Anderson for the applicant
K Frost and C Frost for TDK Investments P/L ATF Frost Family Trust
Hearing details:
2006.
Perth:
February 6.
Printed by authority of the Commonwealth Government Printer
<Price code C>
1 Exhibit F6.
2 Evidence of Mrs Frost, transcript of proceedings on 6 February 2006, PN85, PN87 and PN89.
3 Evidence of Mrs Frost, transcript of proceedings on 6 February 2006, PN88. Evidence of Ms Anderson, transcript of proceedings on 6 February 2006, PN167 and PN168.
4 Exhibit F1.
5 Exhibit F3.
6 Exhibit F10.
7 Exhibit F2.
8 Exhibit F10.
9 Evidence of Mr Frost, transcript of proceedings on 6 February 2006, PN124. Evidence of Ms Anderson, transcript of proceedings on 6 February 2006, PN174 and PN175.
10 Evidence of Mrs Frost, transcript of proceedings on 6 February 2006, PN110 and PN112.
11 Evidence of Ms Anderson, transcript of proceedings on 6 February 2006, PN176-PN179, PN190 and PN192.
12 Evidence of Mrs Frost, transcript of proceedings on 6 February 2006, PN115. Also, Exhibit F10.
13 Exhibit A2.
14 Exhibit F5.
15 Egan v Botanic Gardens Management Service Pty Ltd, Print S4512, 28 March 2000, per Ross VP, Watson SDP, Holmes C, at paragraph 16.
16 Refer to definition of traineeship agreement in s.170CD(1) of the Act.
17 Exhibit F1.
18 Section 13.
19 For examples see: Curran v Thomas Jewellers Aust Pty Ltd, Print P6275, 28 October 1997, per SDP Williams; Kenny v Tyre Marketers (Aust) Limited trading as Beaurepairs, Print S2182, 22 December 1999, per Lewin C; Manchee v Envogue Hair Design, PR943655, 13 February 2004, per Foggo C; Crawford v Griffin Press Ltd, PR918769, 11 June 2002, per O’Callaghan SDP; Redman v Leafclue Pty Ltd t/as Supercuts, PR944675, 18 March 2004, per Hampton DP; Browne v AQA Victoria Ltd, PR950317, 2 August 2004, per Williams SDP.
20 Print P6340 …..