[2011] FWA 7076 |
|
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Ben David Sharp
v
J.S. Plumbing Pty Ltd T/A Salmon Plumbing
(U2011/7977)
COMMISSIONER CRIBB |
MELBOURNE, 21 OCTOBER 2011 |
Application for unfair dismissal remedy – jurisdiction - apprentices - not at initiative of employer.
[1] Mr Ben Sharp (the applicant) made an application, on 18 May 2011, for an unfair dismissal remedy with respect to the termination of his employment with J.S. Plumbing Proprietary Ltd trading as Salmon Plumbing (the respondent). The application was made under section 394 of the Fair Work Act 2009 (Cth) (the Act) on the grounds that his dismissal was harsh, unjust or unreasonable.
[2] J.S. Plumbing Proprietary Ltd filed a Notice of Objection to the application, on 14 June 2011, on the grounds that the Tribunal does not have jurisdiction to deal with the application as the Act does not have provisions to deal with the appointment, suspension or cancellation of apprentices. Further, it was also alleged that the termination of Mr Sharp’s training contract had been by mutual consent. Therefore, the termination of the applicant’s employment could not have been at the initiative of the employer.
[3] The application was the subject of a telephone conciliation conference on 17 June 2011 but the matter was not settled.
[4] There was a hearing of the respondent’s jurisdictional objection on Tuesday 13 September 2011. Ms E Kannis from the Master Plumbers Association of Queensland (MPAQ) represented the employer and Ms R Michaletos, solicitor, represented Mr Sharp.
SUBMISSIONS
The Respondent
On behalf of the company, Ms Kannis submitted that the cancellation of Mr Sharp's training contract was not within the jurisdiction of Fair Work Australia. It was stated that Mr Sharp's employment was a separate legal matter and needed to be distinguished in this case. She said that the distinction between the training contract itself and the terms and conditions of employment was critical to the issue of jurisdiction. 1
[5] Ms Kannis stated that specific Queensland legislation covers training arrangements for apprentices - the Vocational Employment Training and Employment Act 2000 (VETE). It was argued that the referral powers from the Queensland government to the federal government did not transmit apprentice training arrangements to the Fair Work Act 2009. 2 The VETE was said to contain provisions for the cancelling of a training contract with the application to do so to be made to the Queensland Industrial Relations Commission and not to Fair Work Australia.3 Similarly, it was explained that the complaints process in relation to apprentices contains no reference to Fair Work Australia.4
[6] Further, Ms Kannis submitted that there are specific exclusions in the Act in relation to apprentices: sections 26, 27 and 30K. 5
[7] The company did not dispute that Mr Sharp had an apprenticeship (training contract) with the respondent. 6 The terms and conditions of employment of Mr Sharp were provided for by the Plumbing and Fire Sprinklers Award 20107 (the modern Award) with respect to wages, allowances, hours of work, reimbursement of certain expenses and provision for the National Employment Standards. There were said to be no provisions in the modern Award relating to the creation or termination of apprenticeships.8
[8] With respect to the Fair Work Act, it was not disputed that the respondent was a national system employer as set out in the Act. The contentious issue was said to concern the definition of a national system employee contained in section 13 of the Act. That an employee “on a vocational placement” was excluded from the definition was highlighted. “Vocational placement” and “training arrangement”, as set out in section 12 of the Act, were also referred to. 9 Ms Kannis stated that the arrangements that were put in place between the employer and Mr Sharp were consistent with the definition of “training arrangement” in the Act.10
[9] Ms Kannis made submissions regarding section 30B of the Act 11 and also section 30K. She highlighted the end of s.30K where it was indicated that any excluded matter was not included. “Excluded matters” were defined in s.30A and s.30A(g) provided for “training arrangements”.12 Accordingly, it was stated that apprentice training arrangements had remained in the Queensland jurisdiction.13
[10] With respect to s.386(2), Ms Kannis argued that, because the training contract had not ceased at the end of its duration, the circumstances of this matter did not fit that definition. She explained that the training contract commenced about two years prior and that it was enacted under Queensland legislation through an apprenticeship centre. It was said to have been for a nominal four year period. Ms Kannis contended that there could not be an employment contract without a training contract and that it was the training contract that had ceased. 14 As a consequence of this, Mr Sharp’s employment had also ceased. Ms Kannis indicated that there had been no understanding or agreement between Mr Sharp and the company that he would work beyond the end of his apprentice training - the employment contract was limited to the duration of the employment contract. She stated though that Mr Sharp’s employment was not terminated at the end of the training arrangement.15
[11] Finally, it was the company’s contention that a Mutual Consent Form was signed by the applicant (and the employer) on 13 May 2011. The Form provided for the effective date of the cancellation of the training contract as 5 May 2011. There was said to be no evidence that the applicant complained about the termination and it was stated that the applicant had been given a week at home to consider whether he wanted to continue his apprenticeship. The company believed that Mr Sharp understood the consequences of his actions when he signed the Mutual Consent Form. 16 Accordingly, the company argued that there had not been a dismissal at the initiative of the employer. Therefore, the Tribunal did not have jurisdiction to deal with this matter.17
The applicant
[12] Ms Michaletos submitted, on behalf of Mr Sharp, that there was no dispute that the VETE Act and the modern award applied to Mr Sharp’s employment with the company. 18 The Tribunal was referred to Labour Law (fifth edition) by Creighton and Stewart where it was said that apprenticeships are regulated by State legislation and, amongst other things, restrict the circumstances in which such arrangements can be terminated by the employer. However, Creighton and Stewart stated that a trainee may make an unfair dismissal claim under the Fair Work Act except when their employment is terminated at the end of a training arrangement to which their employment was linked.19 It was argued that this exception is the one that is provided for in s.386(2)(b) of the Act. Apart from this, Ms Michaletos contended that there was no other provision in the Act which prevented an apprentice making an unfair dismissal claim.20 The circumstances of this case, whereby Mr Sharp was dismissed halfway through his apprenticeship, were stated to not fall within the exclusion set out in s.386(2)(b).21
[13] With respect to section 27(2)(f) of the Act, it was the applicant’s submissions that this confirms that State or Territory training laws apply to national system employers and employees. However, it was contended that Regulation 1.4 of the Fair Work Regulations 2009 provided that training laws cannot regulate employment conditions that are covered by the National Employment Standards (NES). 22 Ms Michaletos agreed that section 64 of the VETE Act specifies that parties may agree to cancel a training contract but said that that did not mean that an apprentice could not access protection from unfair dismissal.23
[14] Further, the applicant argued that apprentices can ordinarily be regarded as employees and that there was a distinction between apprentices and those undertaking work experience or on an unpaid vocational placement. 24
[15] In terms of the employer’s submissions regarding mutual intent, it was submitted that the circumstances surrounding Mr Sharp’s dismissal concerned his failing to lose 25kg in weight in three months. Ms Michaletos argued that, despite desperately trying to lose weight, he was told that he was being let go.
[16] It was stated, that in such a situation, the dismissal could not have been mutual. Further, Mr Sharp had signed the cancellation form thinking that it was a formal requirement of the Apprenticeship Board following the termination of his employment. The applicant contended that the Form, on its face, did not appear to be a form which confirmed mutual consent to his dismissal. 25
[17] The applicant agreed that there had been a letter from the Department of Education and Training (the Department) stating that the training contract had been cancelled by mutual consent. However, it was said that Mr Sharp was not aware of this letter. Further, no interviews with Mr Sharp had been conducted by the Department. 26
CONSIDERATIONS AND CONCLUSIONS
[18] The company has objected to the Tribunal dealing with Mr Sharp’s application on two grounds. The first ground was that the Tribunal does not have jurisdiction because the Fair Work Act 2009 (Cth) does not contain provisions dealing with the appointment, suspension or cancellation of apprentices. Secondly, the training contract was cancelled by mutual consent between Mr Sharp and the company so, therefore, there could not have been a termination of Mr Sharp’s employment at the initiative of the employer.
[19] I will deal with the first ground of the company’s jurisdictional objection.
[20] In essence, it was submitted by the company that, as a result of sections 26, 27(1)(f) Division 2B section 30K and 30(A), of the Act, the Tribunal did not have jurisdiction to deal with Mr Sharp’s application. Rather, it was the VETE Act which had retained that power despite the referral of certain industrial relations powers from the State of Queensland to the Federal Government.
[21] On the other hand, the applicant argued that the only provisions of the Act which excluded apprentices was section 386(2)(b) which prevented apprentices making a claim when their employment was terminated at the end of the set duration of a training arrangement. It was stated that this did not apply to Mr Sharp as he had been dismissed halfway through his apprenticeship.
[22] I have carefully considered the submissions of the parties. The first point to be made is akin to the one made by Ms Kannis in her oral and written submissions and that is that a distinction may be drawn between a training contract and a contract of employment. 27 However, I disagree with Ms Kannis when she said that the application before the Tribunal concerns the training contract (not the employment contract) and the way in which the cancellation of the training contract occurred. It is my view that the application before the Tribunal concerns the termination of Mr Sharp’s employment and whether his dismissal from Salmon Plumbing was harsh, unjust or unreasonable.
[23] The respondent made detailed submissions to the effect that “training arrangements” as set out in section 30A(g) were excluded from the Fair Work Act by the operation of section 30K.
[24] Sections 26 and 27 of the Act set out the interaction between the Fair Work Act 2009 (Cth) and State and Territory industrial laws. As the Explanatory Memorandum 28, explains:
“128. The Bill is intended to cover the workplace relations field by excluding the application of State and Territory industrial laws to national system employers and their employees. This approach was upheld by the High Court in New South Wales v Commonwealth (2006) 219 CLR 1.
129. However, the Bill does not exclude State and Territory laws that impose obligations on national system employers and employees in relation to matters outside the central area of workplace relations.”
[25] Section 26 sets out all of the State and Territory industrial laws that are excluded by the Fair Work Act and which, therefore, do not apply to national system employers and national system employees. 29
[26] The operation of section 27 is described in the Explanatory Memorandum as follows:
“Clause 27 - State or Territory industrial laws that are not excluded
138. Clause 27 'saves' certain State or Territory laws that might otherwise be excluded by making clear that they are not part of the field covered by clause 26 and are intended to apply to national system employers and national system employees.”
.............
142. Paragraph 27(1)(c) saves State or Territory laws dealing with the following non-excluded matters, which are set out in subclause 27(2):
.............
* training arrangements (such as the administration of training contracts and the award of training qualifications), but not terms and conditions of employment dealt with by the NES or that can be included in modern awards (such as classifications and rates of pay, certain monetary allowances and penalty rates);”
[27] Therefore, it can be seen from the Explanatory Memorandum that training arrangements (the administration of training contracts and the awarding of training qualifications) remain the subject of State legislation. What was not “saved” from exclusion from the Fair Work Act were the terms and conditions of employment dealt with by the NES or the Modern awards.
[28] It was agreed by the respondent that Salmon Plumbing was a national system employer. Issue was taken, however, with whether Mr Sharp was a national system employee in accordance with s.13 of the Act. This was on the basis that employees on a vocational placement were excluded. “Vocational placement” is defined by section 12 of the Act as:
“vocational placement means a placement that is:
(a) undertaken with an employer for which a person is not entitled to be paid any remuneration; and
(b) undertaken as a requirement of an education or training course; and
(c) authorised under a law or an administrative arrangement of the Commonwealth, a State or a Territory.”
[29] It is clear from the evidence that Mr Sharp was not on a vocational placement with the employer but under a “training arrangement” as also defined in section 12 of the Act:
“training arrangement means a combination of work and training that is subject to a training agreement, or a training contract, that takes effect under a law of a State or Territory relating to the training of employees.”
[30] There was no dispute that there was a training contract entered into between Salmon Plumbing and Mr Sharp and that the training contract was made pursuant to the VETE Act.
[31] Accordingly, I find that Salmon Plumbing was a national system employer and Mr Sharp a national system employee.
[32] Further, it was agreed that Mr Sharp’s terms and conditionals were those set out in the Plumbing and Fire Sprinklers Award 2010. 30
[33] Accordingly, as the terms and conditions of employees on training arrangements (training contracts) is not excluded by the operation of sections 26 and 27 of the Act, I find that the provisions of the Fair Work Act 2009 (Cth) apply to Mr Sharp with respect to the terms and conditions of his employment by Salmon Plumbing whilst there was a training arrangement (training contract) in place between the two parties.
[34] The unfair dismissal provisions of the Act provide for a number of exclusions, one of which pertains to employees who are subject to a training arrangement. The relevant section is s.386(2), which provides:
“(2) However, a person has not been dismissed if:
(a) the person was employed under a contract of employment for a specified period of time, for a specified task, or for the duration of a specified season, and the employment has terminated at the end of the period, on completion of the task, or at the end of the season; or
(b) the person was an employee:
(i) to whom a training arrangement applied; and
(ii) whose employment was for a specified period of time or was, for any reason, limited to the duration of the training arrangement;
and the employment has terminated at the end of the training arrangement; or.....”
[35] In terms of the facts of this matter, it was not disputed that there was a training arrangement applying to Mr Sharp (section 386(2)(b)(i)). Secondly, it was Ms Kannis’ submission (as defined in section 12) that the employment of Mr Sharp was limited to the duration of the training contract ie. there was no agreement that Mr Sharp would work beyond the end of his apprenticeship (section 386(2)(b)(ii)). Mr Sharp’s employment with Salmon Plumbing did not cease at the end of the training arrangement but halfway through it.
[36] Therefore, I find that Mr Sharp is not excluded from Division 3, Part 3 - 2 of the Act - the unfair dismissal provisions and that aspect of the respondent’s jurisdictional objection is dismissed.
[37] The second aspect of the respondent’s jurisdictional objection was that the termination was not at the initiative of the employer. It was argued that the training contract had been cancelled by mutual agreement.
[38] The respondent was of the view that it was not appropriate to go into the merits of the case, at that time. 31 As this objection had been included in the respondent’s submissions, the applicant addressed this ground and provided a witness statement from Mr Sharp.32
[39] As there is little material or any from the employer regarding this objection, I am unable to make a finding regarding the Tribunal’s jurisdiction or otherwise on this ground.
[40] Accordingly, the respondent is requested to advise the Tribunal and the applicant, within 14 days of the date of this decision, as to whether they continue to press the second ground of their objection. If the objection is not pressed further, the application will be referred for conciliation. If the company decides otherwise, Directions and a date for a further hearing, to determine whether or not there was a termination of Mr Sharp’s employment at the initiative of the employer, will be issued.
COMMISSIONER
Appearances:
Ms R Michaletos, on behalf of the Applicant.
Ms E Kannis, of MPAQ for the Respondent.
Hearing details:
2011.
Brisbane:
June 14.
1 Exhibit R1 at paragraph 2 and Transcript PN 10 - 11
2 Ibid at paragraph 2 and ibid PN 19
3 Ibid at paragraphs 3, 4 and 10 and ibid at PN 20 - 21
4 Ibid at paragraph 10 and ibid at PN 21
5 Ibid at paragraph 5
6 Transcript PN 18
8 Exhibit R1 at paragraph 6 and ibid PN 19
9 Transcript PN 22 - 25 and 34 - 35
10 Ibid PN 34 - 35
11 Ibid PN 27 - 33
12 Ibid PN 33
13 Ibid PN 26 - 33
14 Ibid PN 34
15 Ibid PN 85 - 104
16 Ibid PN 21 and Exhibit R1 at paragraphs 10 - 12 and 14
17 Exhibit R1 at paragraph 14
18 Exhibit A1 at paragraph 3
19 Transcript PN 148 - 151
20 Ibid PN 152 and Exhibit A1 at paragraph 6
21 Exhibit A1 at paragraph 7
22 Ibid at paragraph 4
23 Transcript PN 153
24 Exhibit A1 at paragraph 5
25 Ibid at paragraphs 12 and 14 and Transcript PN 154 - 156
26 Ibid at paragraph 13 and ibid PN 155
27 Transcript PN 11 and Exhibit R1 at paragraph 2 and see Brown v AQA Victoria Ltd [PR950317] 2 August 2004, Williams SDP
28 Explanatory Memorandum to the Fair Work Bill 2008
29 Ibid at paragraph 131 - 137
31 Exhibit R1 at paragraph 15
32 Exhibit A1
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