Apprentices (War Service) Act 1939 (NSW)

APPRENTICES (WAR SERVICE)

ACT.

Act No. 35, 1939.

An Act to make certain provisions in relation to apprentices and trainee apprentices who are absent from their usual employment owing to war service; to amend the Apprentices Act, 1901, and certain other Acts in certain respects ; and for purposes connected there­ with. [Assented to, 13th November, 1939.]

BE it enacted by the King ' s M o s t Excel len t

Majes ty ,

by and wi th t he advice and consent of t h e Legis­ lat ive Council and Legis la t ive Assembly of N e w Sou th

W a l e s in P a r l i a m e n t assembled, and b y t h e au tho r i t y of

t h e same, as follows :—

1. (1) This Act may be cited as the " A p p r e n t i c e s

( W a r Service) Act, 1939."

(2) This Act shall be read and construed with the

Indus t r i a l Arb i t r a t ion Act, 1912, as amended by subse­

quent Acts .

(3) This Act shall commence upon a day to be appointed by the Governor and notified by proclamat ion published in the Gazette.

(2)

2. This Act shall extend to and be binding upon the Crown.

3. (1) A reference in any provision of this Act to the apprent iceship council shall, in the applicat ion of tha t provis ion to and in respect of a pa r t i cu la r apprent ice or t ra inee apprent ice , be construed as a reference to the apprent iceship council const i tuted for the indus t ry in which the apprent ice or t ra inee apprent ice is engaged, or if no apprent iceship council is const i tuted for tha t

i ndus t ry	such apprent iceship	council as the	Indus t r i a l
R e g i s t r a r	may nominate for	the	purpose .

(2) In this Act the expression " w a r s e rv i ce" shall have the meaning ascribed to that expression in the Defence Act, 1903-1939, of the Commonwealth of Aus t ra l ia .

4. W h e r e an apprent ice or t ra inee apprent ice , whether

before or after the commencement of this Act, is or has been absent from his usual employment owing to war service for a period of more than one week, his contract of apprent iceship or contract of employment as the case may be, shall be deemed to have been and to be suspended dur ing the period of such absence and shall remain suspended unt i l it is revived or cancelled in accordance with the provis ions of this Act.

5. (1) W h e r e an apprent ice has been absent from his usual employment owing to war service for a period which does not exceed four months at any one time, the contract of apprent iceship shall be revived immedi­ ately af ter the expiry of such period and in such case the per iod dur ing which the apprent ice was so absent shall not be taken into account as por t ion of the t e rm of

his apprent iceship .

(2) (a) An apprent ice , who has been absent from his usual employment owing to war service for any per iod which exceeds four months at any one t ime, may within two months af ter the expiry of tha t period make applicat ion for the revival of his contract of apprent ice­ ship.

(b) Such applicat ion shall be in wr i t ing and shall be sent to or lodged with the Indus t r i a l Reg i s t r a r , who shall refer the appl icat ion to the apprent iceship council for hea r ing and de te rmina t ion and shall notify

the mas te r of the receipt of the applicat ion and the reference.

(c) The Indus t r i a l R e g i s t r a r shall notify the

appren t ice and the mas te r of the da te fixed for the
hea r ing of such application.

(d) Upon the hea r ing of the applicat ion the apprent icesh ip council shall, subject to p a r a g r a p h (f) of this subsection, order tha t the contract of apprent ice­ ship shall as from a da te to be specified in the order be revived. The apprent iceship council may by such order

v a r y

va ry the provisions of the contract of apprent iceship in such manner and to such extent as it may deem jus t and equitable.

(e) As from the da te specified in such order , the contract of apprent iceship shall be revived and shall have effect subject to the var ia t ions , if any, made by the order .

(f) No such order for the revival of a contract of apprent iceship shall be made by the apprent iceship council if the mas te r proves to the satisfaction of the apprent iceship council tha t he no longer possesses the facilities for the p rope r t r a in ing of the apprent ice or tha t he no longer employs the requisi te number of journeymen to w a r r a n t the re-employment of the apprent ice .

(g) Where , pu r suan t to p a r a g r a p h (f) of this

subsection the contract of apprent iceship is not revived the apprent iceship council shall, at the request of the mas te r , make an order cancelling the contract and such order shall have effect accordingly.

(1) A t ra inee apprent ice who has been absent from his usual employment owing to war service for a period of more than one week may make applicat ion for the revival of his contract of employment.

6.

(2) Such applicat ion shall he in wr i t ing and shall be sent to or lodged with the Indus t r i a l Reg i s t r a r—

(a)	where the period of such absence does not exceed four months at any one t ime—within
two weeks after the expira t ion of tha t pe r iod ;
(b)	where the period of such absence exceeds four months at any one t ime—within two months after the expira t ion of tha t period.

(3) The Indus t r i a l Reg i s t r a r shall refer the

applicat ion to the apprent iceship council for hea r ing and determinat ion, and shall notify the t ra inee employer of the receipt of the application and the reference.

(4) The Indus t r i a l R e g i s t r a r shall notify the

t ra inee apprent ice and the t ra inee employer of the da te

fixed for the hear ing of such application.

(5)

(5) Upon the hea r ing of the applicat ion the

apprent icesh ip council shall, subject to subsection seven of this section, order t ha t the contract of employment shall, as from a da te to be specified in the order , be revived. The apprent iceship council may, by such order , v a r y the provis ions of the contract of employment in such manne r and to such extent as it may deem jus t and equitable.

(6) As from the da te specified in such order , the
contract of employment shall be revived and shall have
effect subject to the var ia t ions , if any, made by the order .

(7) Xo such order for the revival of a contract of employment shall be made by the apprent iceship council if the t ra inee employer proves to the sat isfaction of the apprent iceship council t ha t he no longer possesses the facilities for the p rope r t r a in ing of the t ra inee apprent ice or tha t he no longer employs the requisi te number of journeymen to w a r r a n t the re-employment of the

t ra inee	apprent ice .
(8) Where , p u r s u a n t to subsection seven of	this

section, the contract of employment is not revived, the apprent iceship council shall, a t the request of the t ra inee employer, make an order cancelling the contract , and such order shall have effect accordingly.

7. (1) If any apprent ice fails to make the appl icat ion re fe r red to in section five of th is Act within the t ime prescr ibed in tha t section the apprent icesh ip council shall, on appl icat ion by the mas te r , cancel the contract of apprent iceship unless the apprent icesh ip council is sat is­

fied t ha t the failure to give such notice was occasioned	by mistake, absence from the S ta t e or other reasonable
cause.
(2) If any t ra inee apprent ice fails to make the appl icat ion re fe r red to in section six of this Act within the t ime prescr ibed in tha t section the apprent icesh ip council shall, on appl icat ion by the t ra inee employer, cancel the contract of employment unless the appren­ t iceship council is satisfied t ha t the fai lure to give such notice was occasioned by mis take, absence from the S t a t e or other reasonable cause.

8. The apprent iceship council shall, in the considera­ t ion of any applicat ion made under this Act, have due r e g a r d to the in teres ts both of the apprent ice or t ra inee apprent ice , and of the mas te r or t ra inee employer, as the case may be, and, in deciding whether or not the per iod du r ing which the apprent ice or t ra inee apprent ice was absent from his usua l employment owing to w a r service or any p a r t of such per iod shall be taken into account as por t ion of his t e r m of apprent iceship or his t e r m as a t ra inee apprent ice , the apprent iceship council m a y take into considerat ion the na tu re of the war service and the extent to which it might be of value in relat ion to the t r a in ing in the par t i cu la r indus t ry in which the apprent ice or t ra inee apprent ice is engaged.

9., (1) Subject to the provisions of any award made af te r the commencement of this Act—

(a)

a master may, during the suspension of a con­ t rac t of apprent iceship under this Act, make appl icat ion to the apprent iceship council for permiss ion to take and employ another apprent ice in the place of the one whose contract of apprent iceship has been suspended;

(b)

in determining the number of apprentices, or p ropor t ion of apprent ices to journeymen under any a w a r d or indus t r ia l agreement made pr io r to the commencement of this Act, any apprent ice whose contract of apprent iceship has been suspended under this Act shall, du r ing the per iod of such suspension, be excluded; and any jou rneyman absent f rom his employment on war service, but enti t led to r e t u r n there to on

the te rminat ion of such w a r service, and not

t empora r i ly replaced, shall be r ega rded as a

j ou rneyman in the employment of the master .

(2) The provis ions of subsection one of this section shal l apply, muta t i s mutandis , to and in respect of a t ra inee apprent ice and his employer, in the same manner a n d to the same extent as those provisions apply to and in respect of an apprent ice and his m a s t e r ; and for the purposes of such applicat ion a reference to a contract of apprent icesh ip shall be const rued as a reference to a cont rac t of employment.

10. (1) (a) W h e r e a contract of apprent iceship or

a contract of employment is revived by or under this Act the apprent ice or t ra inee apprent ice shall be entitled to resume his employment under the contract and shall have absolute preference in such employment over any apprent ice or t ra inee apprent ice who may have been engaged dur ing his absence owing to war service.

(b) Any m a s t e r or t ra inee employer who

refuses to permi t such apprent ice or t ra inee apprent ice to resume his employment shall bo liable to a penal ty not exceeding fifty pounds.

(2) W h e r e a contract of apprent iceship or a contract of employment is revived by or under this Act the apprent iceship council may, if it considers it necessary so to do in order to protect the in teres ts of any apprent ice or t ra inee apprent ice engaged dur ing the per iod in which such cont rac t was suspended, exempt the mas t e r or t ra inee employer, as the case may be, from any provision of any award or indust r ia l agreement which limits the number of apprent ices or t ra inee apprent ices who may be employed by such mas te r or t ra inee employer.

1 1 . F r o m and af ter the commencement of this Act—

(a) the jurisdiction and powers of justices under the provis ions of the Appren t ices Act, 1901, re la t ing to the ass ignment of indentures of apprent iceship , the discharge of apprent ices from the service of their mas te r s , the cancella­ tion of indentures of apprent iceship or assign­ ments thereof and the set t lement of differences or disputes between mas t e r and apprent ice

ar i s ing under any indenture or ass ignment , o ther

than the imposit ion of fines, shall be vested in and exercised exclusively by the a p p r o p r i a t e

apprent icesh ip council const i tuted under the

Indus t r i a l Arbi t ra t ion (Amendment ) Act, 1932;

(b) the jur isdict ion and powers of just ices u n d e r

the provis ions of the Apprent ices Act, 1901, re la t ing to the imposit ion of fines for any p roved misconduct or breach of contract shall be vested in and exercised exclusively by indus t r i a l mag i s t r a t e s .

1 2 . (1) Any penalty imposed by this Act may be recovered summarily before an industrial magistrate appointed under the Industrial Arbitration Act, 11)12, as amended by subsequent Acts.

(2) The provisions of the Industrial Arbitration Act, 1912, and of any Act amending that Act, and the regulations made thereunder relating to proceedings for the recovery of a penalty before an industrial magistrate and to appeals from any decision in any such proceed- ings to the Industrial Commission of New South Wales shall apply, mutatis mutandis, to proceedings for the recovery of any penalty under this section.

1 3 . (1) An appeal shall lie to the Industrial Com- mission of New South Wales from any order made by the apprenticeship council under this Act.

(2) An apprenticeship council or the Apprentice- ship Commissioner may submit any question arising on any application made under this Act to the Industrial Commission of New South Wales for its opinion and direction.

(•')) The provisions of the Industrial Arbitration Act, 1912, and of any Act amending that Act and the regulations made thereunder, relating to appeals from apprenticeship councils to the Industrial Commission of New South Wales, shall apply, mutatis mutandis, to appeals under this section.