Apprentices and trainees and WorkChoices: 2007 update

Analysis

Apprentices and trainees and WorkChoices: 2007 update

Some employers are unclear about the employment of apprentices and trainees, particularly since the introduction of WorkChoices.

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Some employers are unclear about the employment of apprentices and trainees, particularly since the introduction of WorkChoices.

The system of apprenticeships and traineeships is still, primarily, State-based, with the registration, authorisation and certification process usually administered by the relevant State Government technical education authority.

This employment system is governed, on the one hand, by the Federal industrial relations system with respect to wages and conditions of employment of apprentices and trainees and, on the other hand, by State Government instrumentalities with respect to the skill and technical development and accreditation of apprentices and trainees.

Because of the number of jurisdictions involved in regulating this employment system, there can be interacting provisions to which an employer may have to comply.

In addition, some State Governments have recently introduced child labour laws which operate independently of WorkChoices, although they are only usually applicable to a person under the age of 18 years.

What is an apprenticeship/traineeship?

This is a system of training that binds the apprentice or trainee to learn a particular trade or job for a specified period from an employer, who in turn is bound to teach that trade or job. Generally, an apprentice or trainee must be of school-leaving age, although there are school-based apprenticeships available.

Note - licensed premises

Apprentices working on licensed premises or gambling service areas would be subject to the relevant liquor and/or gambling licensing laws in the relevant State or Territory. However, this would not usually apply to apprentices working in the office, housekeeping or kitchen areas of such premises.

Some industries require 16 years

In some industries, in accordance with the requirements of the relevant occupational, health and safety legislation, or other child protection laws, apprentices may need to be more than 16 years of age if required to work on, or near, dangerous machinery, or after certain hours at night.

Employers' obligations

The employer must provide the apprentice with the required work experience, appropriate facilities and specified training, enrol the apprentice with an approved registered training organisation, provide on-the-job training and allow the apprentice to attend formal training.

All apprenticeships usually require the following:

  • a training contract that is signed by both the employer and the apprentice and approved by the relevant State authority
  • paid employment under an appropriate industrial arrangement, eg award or registered agreement
  • a training plan endorsed by a registered training organisation (RTO). The training plan must meet the requirements of the relevant vocational training order, and it must specify the training required in order to achieve the nationally recognised qualification relevant to the apprenticeship.

Two types of apprenticeships

There are usually two types of apprenticeships - 'indentured or full' and 'trainee'.

'Indentured or full ' is an apprenticeship under which the training contract binds the employer and the apprentice from the end of the probationary period until the completion of the term of the apprenticeship. It is a secure contract of employment where termination of the apprenticeship usually requires a more formal process than the unfair dismissal laws.

A 'trainee' apprenticeship mainly occurs in the construction and furnishing industries, in which the training contract can be broken by either party simply by giving notice as required under the relevant industrial instrument. Trainee apprenticeships are restricted to those trades in which the relevant industrial instrument makes specific provision for them.

Rates of pay for trainee apprentices may be slightly more than for other apprentices employed under the same industrial instrument because the mode of apprenticeship is less secure than an 'indentured or full' apprenticeship.

Probation period

The probation period for an apprenticeship or traineeship is usually three months.

School-based apprentices and trainees

School-based apprenticeships and traineeships normally allow high school students - typically Years 11 and 12 - to work with an employer as paid employees while studying for their senior certificate. At the same time, students undertake a training qualification with a registered training organisation chosen by both the employer and the student.

At work

At work, the person learns skills under the guidance of the employer, following a training plan drawn up between the employer, the apprentice or trainee, and the supervising registered training organisation. It is common for a school-based apprentice or trainee to spend a minimum of one day a week on the job with their employer.

Off-the-job component

The student is paid for their on-the-job work. For the rest of the week the student will complete the off-the-job component of their training as well as their other subjects. School-based apprentices and trainees continue to work and train full-time once having passed their secondary studies to gain certification and become a qualified tradesperson.

If no pre-reform award or NAPSA

Under WorkChoices, if a pre-reform award or NAPSA does not provide rates of pay for school-based apprentices or trainees, the minimum rates that apply are:

  • for school-based trainees - the school-based trainee rates under the National Training Wage Award 2000, and
  • for school-based apprentices - the formula in the standard clause approved by the Australian Industrial Relations Commission in 2000

These school-based apprentices and trainees also receive full-time conditions, adjusted on a pro rata basis as necessary according to the hours worked on-the-job.

Training requirements

Apprentices and trainees must be provided with appropriate work experience, appropriate facilities and training at work to acquire the knowledge and skills required to complete the apprenticeship or traineeship.

They must also be enrolled in an approved course of formal training with the RTO.

Apprentices must be allowed time off to attend formal training, which may involve attendance at a training institution, formal training in the workplace or self-paced learning.

The employer must complete the apprentice's or trainee's competency record book or work evidence which supports formal training.

Upon completion of a term of a training contract, the apprentice or trainee is usually eligible to receive one or more certificates (or similar documentation) issued by the relevant State training authority.

Record keeping

Apart from the relevant time and wage record and pay slip requirements, the employer is usually required to retain the following details with respect to the employment of an apprentice or trainee:

  • the approval letter from the relevant State authority containing the Training Contract ID number once the training contract has been approved
  • the copy of the training contract
  • the copy of the training plan (as agreed with the RTO)
  • records of time worked and wages paid to the apprentice/trainee
  • results of on and/or off-the-job formal training undertaken by the apprentice/trainee with the RTO
  • a copy of the apprentice's progress card (where relevant)
  • the apprentice's/trainee's attendance details from the RTO
  • a copy of the industrial instrument under which the apprentice/trainee is employed

Terminating an apprentice/trainee

Generally, the termination of an apprentice or trainee is governed by the relevant State legislation covering the administration of apprentices and trainees. This usually involves an approach by the employer to the relevant State training authority seeking formal cancellation of the apprenticeship or traineeship.

Justification considered

This may not be a straightforward exercise for the employer as a number of different tribunals may be asked to consider the employer's justification for doing so, and whether a fair and reasonable disciplinary process was applied if the reason for seeking cancellation of the apprenticeship is due to poor performance.

In many cases where the apprentice feels their skills set is inappropriate to the chosen trade, the apprenticeship may be cancelled mutually by both parties, usually after consultation with the apprentice's government training officer.

Discipline

When disciplining an apprentice, the employer should also contact the apprentice's appointed government training officer as other options, including the arrangement of a transfer to a mutually acceptable employer may be deemed appropriate, particularly if the on-the-job work is not relevant for the apprentice.

State and Territory laws continue - constitutional corporations

Where an apprentice or trainee is engaged by a constitutional corporation (ie covered under WorkChoices), State or Territory industrial laws that provide for the termination of employment continue to apply to prevent unauthorised termination or suspension of the training contract.

Conclusion of apprenticeship/traineeship

Unfair dismissal legislation generally provides an exemption for an employer to terminate an apprentice or trainee at the end of their training contract where the employment is for a specified period of time or is, for any other reason, limited to the duration of their apprenticeship.

However, if the apprentice or trainee continues working with the same employer after the apprenticeship or traineeship concludes, the employee may have access to unfair dismissal laws.

Completion date - important note

Employers should be mindful of the completion date of the apprenticeship or traineeship to avoid this problem and this should be communicated to the apprentice or trainee before the apprenticeship or traineeship expires.

Note that there must be a co-existing employment relationship whose terms specify the duration of the employment to the life of the apprenticeship or traineeship. To avoid confusion, the employer should state in the apprentice's letter of appointment there is no guarantee of further employment beyond the completion of the apprenticeship/traineeship.

WorkChoices - non-allowable matters

Under WorkChoices, a provision in a pre-reform Federal award that restricts the range or duration of apprenticeships or traineeships is a non-allowable award matter, and therefore unenforceable. For example, a pre-reform Federal award that states that the duration of an apprenticeship shall be four years is not allowable.

This means that provisions that previously restricted the operation of part-time or school-based apprenticeships or traineeships, or that prevented the introduction of shorter apprenticeships or traineeships (including competency-based training arrangements), no longer have effect.

Another 'non allowable award matter' is a reference in a pre-reform award to 'the number or proportion of employees that an employer may employ in a particular type of employment'. In the case of apprentices, a provision that restricts the number of apprentices in a workplace to a proportion of one apprentice to every (say) four tradespersons, is unenforceable.

NAPSAs and pre-WorkChoices agreements continue

It should be noted that a provision contained in a NAPSA (previous State award) or pre-WorkChoices agreement that restricts either the employment or the range or duration of apprentices or trainees will continue to be enforceable.

With respect to school-based apprentices and trainees, such people are paid and employed under the terms and conditions applicable under the relevant pre-reform Federal award or NAPSA. However, in the absence of such a provision, WorkChoices provides for certain conditions to apply.

Loading in lieu of paid leave - school-based trainees

The employer of a school-based trainee may, with the written agreement of the school-based trainee, pay a loading in lieu of paid annual leave, paid sick leave, paid personal/carer's leave and payment for public holidays.

The loading is payable for all hours worked on-the-job and is calculated using the formula: hourly rate x 20/100. The loading does not compensate for work performed on a public holiday.

Pay increases by AFPC

Under WorkChoices, increases to the minimum pay for apprentices and trainees are determined by the Australian Fair Pay Commission.

The minimum rates for apprentices and most trainees will be increased on the basis of the formulas contained in the relevant pre-WorkChoices wage instruments.

This will generally pro rate the increase, maintaining the relativity of the basic periodic rates of pay for, in the case of apprentices, with those applying to the relevant tradesperson rates.

In circumstances where there is no formula or method in the pre-WorkChoices wage instrument for calculating an apprentice rate, the general increase will be pro rated so that the rate maintains its relativity to the base tradesperson's rate of pay in the Pay Scale for the trade to which the apprentice rate applies.

State child employment laws apply

Under WorkChoices, certain State laws are exempt from the Federal legislation, including laws relating to child labour.

Child labour laws were recently introduced in NSW and Queensland that cover employers under WorkChoices who employ young persons (under 18 years of age) under an agreement or arrangement which is entered into on or after 27 March 2006.

The legislation requires that the young employee's conditions of employment under the agreement or arrangement satisfy the requirement that there is 'no net detriment' when they are compared against the conditions provided by the State award and other State-based employment legislation that would apply to the employee if the employer was under the relevant State system.

This would apply to any apprentice or trainee under the age of 18 years, meaning an employer may be exposed to two separate employment jurisdictions during the life of the apprenticeship or traineeship. State child employment laws override the WorkChoices legislation and must be complied with by employers in the relevant jurisdiction.

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