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[Extract from Queensland Government Industrial Gazette,
dated 24 June, 2005, Vol. 179, No.8, pages 256-257]
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
Industrial Relations Act 1999 – s. 278 – power to recover unpaid wages
Department of Industrial Relations AND Marcus Charles Facer (No. W4 of 2005)
COMMISSIONER BECHLY 10 June 2005
REPORT ON DECISION (as edited)
In giving his decision from the Bench on 27 May 2005, Commissioner Bechly said:
“This is an application by Wendy Ussher of the Queensland Department of Industrial Relations for recovery of wage entitlements claimed to be due to Mr Michael Jesse, an apprentice employed by Mr Marcus Facer trading as BP EFI and Tuning Centre.
At the commencement of the hearing in Nanango on 26th of May 2005, approval was given to an application to amend the claim by deleting a claim for payment for certain periods when Mr Jesse was not in attendance at work and a claim for proportion of tool allowance which is now acknowledged as not falling due because of the curtailment of the period of apprenticeship.
The essential issue between the parties is the basis of calculation of wages due to be paid to Mr Jesse during his employment.
It is the department's contention that wages due to be paid should be calculated on the basis of the tradesman’s rate C10 as provided in the Engineering Award – State 2002 commencing at Level 2, which would result in a payment calculated at 80 per cent of the C10 rate.
This contention is drawn from the provisions of the Order – Apprentices’ and Trainees’ Wages and Conditions (excluding certain Queensland Government entities) 2003.
It is the respondent’s contention that Mr Jesse’s wage entitlements should be calculated on junior rates. These were not clearly identified during the proceedings but appear to be those specified in the Order at Schedule I clause 2. This contention is based upon the belief of the respondent that, although Mr Jesse was over 21 years of age when he commenced employment under a training contract with the respondent, there had been a previous contract commenced between Mr Jesse when he was under 21 years of age and another employer, and therefore the contract of apprenticeship should be deemed to have in effect been transferred to the respondent and continued as if it had been commenced with the respondent from the period when Mr Jesse was under 21 when the claimed junior rates would have been applicable. That previous contract had been cancelled prior to a new contract being later entered into between Mr Jesse and the respondent.
The respondent’s contentions were in part the product of his own experience quite some years ago apparently under prior legislation. While I empathise to a degree, the fact is that the law has changed and I must deal with this matter under the law now applicable relating to apprentices and trainees.
The contract between Mr Jesse and the respondent was entered into on 10 January 2003 and cancelled on the 21 September 2004.
The wage claim has now been calculated to 6 September 2004 because of the absence from work of Mr Jesse prior to the cancellation of the contract.
The contract was a contract of apprenticeship and was in the approved form referred to in Section 11 of the Vocational Education, Training and Employment Act 2000.
Mr Jesse was born on 2 April 1981 and was over 21 when the contract with the respondent was entered into. He therefore falls within the definition of an adult within the abovementioned order.
The previous contract was between Mr Jesse and the Wide Bay Group Training Scheme Limited and commenced on 27 August 2001. That contract was cancelled on 20 December 2002, but Mr Jesse had gained sufficient competencies during that period to enable him to commence with the respondent as a person with level 2 qualifications. Apart from achievement of relevant competencies, the previous contract is not relevant to the contract between the respondent and Mr Jesse. I compare this situation with competencies achieved during, for example, school-based training which enables apprentices to enter contracts at a higher level of wage rates and complete the apprenticeship within a shorter period than a person with no prior relevant competencies. (See also clause 4.2 of the abovementioned Order for similar situations.)
That Order at clause 4.9 provides for schedules of minimum wage rates to be paid to adult apprentices and trainees. Schedule III, Automotive Industry, applies to the issue now before me. It provides at clause 4.1.2 in the following terms:
‘New Adult Employees
When an adult person becomes an apprentice or trainee, and they were not employed by the employer immediately prior to becoming an apprentice or trainee, their minimum rate of pay shall be in accordance with the following tables.’.
The claim against the respondent is based on the table provided in that Order.
The respondent proposes Mr Jesse first became an apprentice before he was 21 years of age and the adult employee provisions cannot be applied.
I am of the view that the proper interpretation to be applied is that sought by the applicant. Mr Jesse was not employed with the respondent in any capacity prior to entering an apprenticeship and was 21 years of age at the time the contract commenced.
The respondent sought to rely on a variety of other documentation, forms, etc. to support his contention. However, the Act is sufficiently clear in my view to enable the claim to succeed.
I am informed that had the junior apprenticeship wage rates been applicable there would have been an underpayment of some $8,000 rather than that of $12,456.76, as now sought.
With respect to competencies, the respondent has challenged the level of competencies achieved at various times by MrJesse and claims a fraud has been perpetrated. It seems that some action has or is intended to be taken by the respondent to seek a review of competencies said to be achieved. I am informed that the basis of the claim made before me is on documented material certifying particular competencies achieved by Mr Jesse. Should, however, these prove to be incorrect, appropriate action would need to be taken to recover any overpayment that might be demonstrated.
I order that the sum of $12,456.76 be paid by the respondent to the applicant in the following manner:
The sum of $6,456.76 be paid within 22 days from the date of this decision and that the sum of $6,000 be paid within 30 days subsequent to that date.
The respondent has stated that Mr Jesse is indebted to it by an amount of $4,400, this representing a cash advance of $1,400 and purchase of goods to the value of $3,000. While I am unable to deal with such claims, it may be that direct consultation between the parties might resolve the issue without the further cost and inconvenience that would follow judicial proceedings for recovery.”.
Dated 10 June 2005.By the Commission,
Operative Date: 27 May 2005
[L.S.] G. D. SAVILL,
Industrial Registrar. / Appearances:
Ms W. Ussher for the Department of Industrial Relations.
Mr M. Facer on his own behalf.
Released: 10 June 2005
Government Printer, Queensland
ÓThe State of Queensland 2005.