Ms Wendy Denise Ussher of Department of Industrial Relations Acting on Behalf of Mr Joshua

[Extract from Queensland Government Industrial Gazette,

dated 5 August, 2005, Vol. 179, No.16, pages 673-675]

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

Industrial Relations Act 1999– s. 278 – power to recover unpaid wages

Department of Industrial Relations AND Favroid Pty Ltd (No. W162 of 2004)

COMMISSIONER BECHLY25July 2005

DECISION

Ms Wendy Denise Ussher of Department of Industrial Relations acting on behalf of Mr Joshua Davis has sought recovery of wages said to be due under a registered training contract made between Mr Davis, his father as guardian and Favroid Pty Ltd trading as Beach House Bar and Grill. At the request of the respondent and with the acceptance of the applicant the matter was dealt with on the affidavit evidence only and written submissions.

In summary what occurred was that Mr Davis, while still at high school, gained a Certificate 2 in Hospitality (Operations) THH21897 and on 10 October 2003, gained employment with the respondent on weekends and after school during the week on an occasional day as an apprentice on a part-time basis. He commenced on 15 October and was paid at second year level because of his previous experience. Mr Davis proposes that the arrangement was to become a full-time apprenticeship upon his leaving school. He completed his high school education on 30 November 2003. He attended “schoolies” week and was absent for a further two weeks because of illness or injury for which he states he was paid one day’s pay, that being all of his accrued sick leave. He appears to have recommenced part-time work on Sunday 21 December 2003 and worked for approximately five hours in that pay week.

Unfortunately no registered training contract was entered into in October and it was not until agitation from his fatherthat a contract was entered into on 28 January 2004in an attempt to have the arrangement between the parties formalised. MrDavis senior signed that contract as guardian for his son. Queensland Apprenticeship Services assisted in the making of the contract.

It appears that the form of contract was only partially completed by the parties when signed. The operative date was not included, that being left to the employer to provide at a later time. The date, when inserted, was apparently not made known to MrDavis or his father.

The relevant aspects of the first formalised arrangement between the parties were:

commencementdate of apprenticeship 28 January 2004;
apprenticeship to be full-time based with 38 hours training and work per week;
the nominal duration of the training contract was to be forty-eight months;
prior employment with respondent was stipulated as a casual working fifteen hours work per week rather than as a part-time apprenticeship; and
the employment arrangement to be governed by the terms of the state Award nominated as “Restaurant Catering

and Allied Establishment”.

On 28 February the respondent wrote to MrDavis informing him in the following terms:

“As we are currently in a quiet period I wish to advise thatyour hours will now classify you as a part-time employee (your apprenticeship is still on foot).”

Certain issues arose between MrDavis and the respondent and on 19 March 2003 the respondent acted unilaterally to terminate the contract. MrDavis ceased work on that date but did not consent to the cancellation of the contract. There then followed various discussions between the parties with the assistance of officers of the Department of Employment and Training and in late June 2004 an arrangement was entered into to amend the contract.

The changes proposed were as follows:

thecommencement date of the contract was backdated from 28 January 2004 to 15 October 2003 by simply striking out the original date and writing in the new date.
the contract was changed from full-time employment to part-time employment by simply striking out the original full-timetick off box and then ticking the part-time box. At the same time, by way of a MajorAmendment of Registered Contract, the contract was reverted to a full-time contract with an effective date of 1 December 2003.
the reference to previous casual employment from 15 October 2003 to 27 January 2004 was deleted.
acessation date of 26 March 2004 was mutually agreed between the parties.

Inconsistently with the change to a part-time contract, the nominated number of hours of employment and training per week remained at thirty-eight. Question 40 on the contract deals with the definition of a full-time or part-time traineeship and refers to varying provisions for part-time arrangements.

One of the descriptors of part-time employment contained at clause 4.2 in theHospitality Industry – Restaurant, Catering and Allied Establishments Award – South-Eastern Division requires that the employment be of less than thirty eight hours each week but not less than 10 hours per week. However it is clear from the affidavit evidence of the parties that each regarded the purpose of the amendment to be to change the contract from full-time to part-time for a limited period. Both MrDavis and his father state in their affidavits that the purpose of the amendment was to indicate that the apprenticeship commenced on a part-time basis from 15 October 2003. On that basis the retention of thirty eight hours training per week appears to have been an oversight. If that is the case a difficulty created is that the agreement contains no nominated part-time hours of training. It can only be taken,for the purposes of the matter before me and in the absence of any nominated number of part-time hours that the part-time hours worked were to be the part-time hours contracted unless fewer than ten hours were worked in any week. In such a case ten hours would be required to be paid for unless there was an agreed absence from work as in the case of schoolies week or sick leave where there was no accrued leave entitlement.

It would be helpful in the overall understanding of the matter to record the actual hours worked by MrDavis from the time he commenced employment including the period when he was attending school.These hours, listed below, are taken from Department worksheets provided as part of submissions:

Week Ending / Hours
19/10/03 / 9.5
26/10/03 / 17.25
02/11/03 / 11
09/11/03 / No record
16/11/03 / 7.5
23/11/03 / No record
30/11/03 / No record
07/12/03 / 16.75
14/12/03 / Sick/injured
21/12/03 / 5.25 and sick/injured
28/12/03 / 30.75
04/01/04 / 34
11/01/04 / 27.25
18/01/04 / 37.75
25/01/04 / 50.25
01/02/04 / 22.5
08/02/04 / 25.75
15/02/04 / 16.5
22/02/04 / 23.5
29/02/04 / 22.75
07/03/04 / 19.5
14/03/04 / 8.25

The first contract exposed the respondent to a claim for casual rates of pay at higher rates than those paid for the hours worked prior to 28 January 2004. Additionally the contract exposed the respondent to payment for the difference between hours actually provided each week and the contracted thirty-eight hours each week. That contract came to an end on 19 March 2004 when it was terminated unilaterally by the respondent. Because it was terminated within the ninety day probation period no approval by the Training Employment and Recognition Council was required.

The second or amended contract removed the exposure to the liability to pay casual rates but created an added liability to pay wages for thirty eight hours each week from 1 December 2003 rather than from 28 January 2004. The back-dating of the contract to 15 October 2003 took the contract out of the ninety day probationary period and exposed the respondent to a claim to payment of contracted wages from date of unilateral cancellation until approval from the Training and Employment Recognition Council. In the light of the manner in which the contracts between the parties have been dealt with I have some reservations as to whether such a claim would be sustainable. This contract came to an end by mutual agreement on 23 March 2004 and thus exposed the respondent to payment of an additional thirty-eight hours wages beyond the last week actually worked. The mutual cessation date then negotiated removed the respondent from any possible exposure to payment until approval from the Training and Employment Recognition Council was secured for cancellation of the contract but retained an obligation to payment for an additional week’s pay beyond the last day worked.

The respondent argues that it was never the intention that the contract be one of full-time training and that its intention always was that the training be of a part-time nature. It further argues that it is the intention that should be the determinant in this matter. Mr Davis argues that it was always the intention that the contract be part-time from October 2003 and then become one of full-time training upon completion of schooling.

On a consideration of all the material I am satisfied that it was the intention of the parties that the apprenticeship would be of a part-time nature while MrDavis was attending school and would later become one of a full-time nature.

There have been a number of directors of the respondent and related persons involved in the making of the contract. It is said by the respondent that the director who signed the first contract was not the appropriate director to do so.

Mr Clayton Williams was the first point of contact by Mr Davis when he was first seeking employment and it was he who offered the apprenticeship employment. It was at that time that the contract should have been entered into. Subsequent to the action by MrDavis senior and with the assistance of Queensland Apprenticeship Services, a contract was prepared and, in an uncompleted state was signed by MrNicholas Rosato, a director of the respondent. It is said that the signing of a training contract was not within MrRosato’s range of responsibilities. However MrRosato is a director and did not refer the matter on to another director of the respondent. On the evidence a sister of another director later provided a start date for the contract. It is reasonable to assume that some thought was given to this matter at the responsible level. It was known by the respondent that second year apprenticeship rates were then being paid and that Mr Davis had been employed for some months in a part-time capacity. It is a reasonable conclusionon the material that the provision of a start date of28 January 2004 was a considered action of the respondent just as was the contract term offull-time training from that date. What was intended to be done, at that time, about the prior training and payment remains a mystery. It is of interest that MrDavis worked 37.75 hours and 50.25 hours in the two weeks prior to that date. That, in combination with the letter of the respondent of 28 February 2004, suggests to me that there was an attempt to change the nature of the original contract from full-time to part-time at that date. On the wording of that letter there appears to be no other construction available notwithstanding the statement from MrWilliams in this regard.

In June 2004 all of the parties were well aware that the arrangements mutually entered into would result in additional payments being required of the respondent to MrDavis. Apart from the evidence of the respondent the amending document requires an acknowledgement to that effect. A director of the respondent signed the amendment.

In contention is a financial incentive which the respondent states it was provided with information about during discussions with an officer of the Department of Employment and Training and which it states influenced its decision to sign the major amendment to the contract with the associated additional wage payments to MDavis. This refers to a Commonwealth Government scheme which requires compliance with time guidelines for training plans. It was proposed initially by the respondent that access to such funds was offered as an incentive to enter into the major amendment to the contract. The use of the term “incentive” was subsequently withdrawn.

There is no reference to this funding in the amendment proposals. Although it may have arisen during discussions about the complicated resolution processes adopted to extricate the parties from the difficulties they found themselves in it seems that entitlement to the incentive was always dependent upon certain criteria being met. The arrangements entered into meant that criteria could not be met. Whether the criteria could ever have been met is debateable because the contract in its original form was not capable of registration because of the incorrect information contained therein.

I determine that the respondent is required to pay a minimum of thirty-eight (38) hours each week for the period 1 December 2003 to 23 March 2004 as a full-time apprentice in second year. I further determine that the respondent is required to pay a minimum of ten hours per week during the period 15 October 2003 to 30 November 2003 except for any period when MrDavis was absent from work when sick and without any sick leave accrual available. I further determine that no payment is due for the period of approved absence during “schoolies week”. MrDavis is uncertain of the duration of this absence. He suggests one week. Apparently “schoolies week” extended from 19 to 28 November 2003. There are no hours of attendance recorded for the two pay periods surrounding this time. It would be unsafe to order payment for these two pay periods. On the evidence it would also be unsafe to order any penalty payment for the alleged absence of required meal breaks. This I understand is also now the position of the applicant.

I order that the applicant Ms Wendy Ussher revise the details of claim in accordance with the above determinations and file in the Registry, with a copy to the respondent, within twenty-one days to enable a formal order as to payment to be made.

R.E. BECHLY, Commissioner.
Hearing details:
2005 16May
Released: 26 July 2005 / Appearances:
Mr R. Whitson, for the Applicant.
Mr A. Rosarto, for the Respondent.

Government Printer, Queensland

The State of Queensland 2005.