Nicole Sanders v Skilled Workforce Solutions (NSW) Pty Ltd
[2023] FWC 3074
•23 NOVEMBER 2023
| [2023] FWC 3074 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.739—Dispute resolution
Nicole Sanders
v
Skilled Workforce Solutions (NSW) Pty Ltd
(C2023/4766)
| DEPUTY PRESIDENT SAUNDERS | NEWCASTLE, 23 NOVEMBER 2023 |
Application for the Commission to deal with a dispute under an enterprise agreement –suspension of trainee – entitlement of trainee to pay during traineeship
Introduction
Ms Nicole Sanders is in dispute with Skilled Workforce Solutions (NSW) Pty Ltd (Skilled) in relation to payments which she contends are owing to her in respect of her period as a trainee with Skilled (Dispute).
On 11 August 2023, the CFMMEU, on behalf of Ms Sanders, filed an application in the Fair Work Commission (Commission) pursuant to s 739 of the Fair Work Act 2009 (Cth) (FW Act) and the dispute resolution procedure in clause 39 of the Skilled Workforce Solutions (NSW) Pty Ltd Enterprise Agreement 2019 (Enterprise Agreement) for the Commission to deal with the Dispute. Ms Sanders was covered by the Enterprise Agreement during her employment with Skilled as a trainee.
Clause 39 of the Enterprise Agreement establishes procedures for dealing with disputes which relate to matters arising under the Agreement, matters pertaining to the employment relationship, and the National Employment Standards. The Dispute clearly falls within the scope of disputes which may be dealt with in accordance with clause 39 of the Enterprise Agreement.
There is no dispute that the preliminary steps set out in the dispute settlement procedure in clause 39 of the Enterprise Agreement have been met.
I conciliated the Dispute without success. The Commission has the power to arbitrate the Dispute pursuant to clause 39.6(ii) of the Enterprise Agreement.
I conducted a hearing in relation to the arbitration of the Dispute on 1 November 2023. Ms Sanders gave evidence in support of her case. Skilled adduced evidence from Mr Joel Cribb, General Manager – Mining East and Mr Glenn Learmont, HR Resource.
Employment relationship between Ms Sanders and Skilled
In Commonwealth Bank v Barker,[1] French CJ, Bell J and Keane J observed that “The employment relationship, in Australia, operates within a legal framework defined by statute and by common law principles, informing the construction and content of the contract of employment.”
Because Ms Sanders was employed by Skilled as a trainee, her terms and conditions of employment were not only governed by a contract of employment, an enterprise agreement and the FW Act; her engagement by Skilled was also governed by a training contract, a training plan, a vocational training order, and legislation pertaining to apprentices and trainees in New South Wales.
Apprenticeship and Traineeship Act 2001 (NSW) (A & T Act)
Apprentices and trainees are afforded statutory protections in New South Wales, as is the case in each State and Territory throughout Australia. In New South Wales, the A & T Act governs the engagement, suspension and termination of apprenticeships and traineeships. Some of the important features of the A & T Act are as follows:
(a)If an employer wishes to employ a person as an apprentice or trainee, the employer must apply to the Commissioner for Vocational Training for the establishment of the apprenticeship or traineeship.[2] The application must be accompanied by a proposed training contract and proposed training plan, must identify the industrial award or agreement that applies to the apprenticeship or traineeship, and, where an employer proposes to place the apprentice or trainee with a host employer, must indicate the name, address, ACN (if applicable) and ABN of the host employer.[3] The proposed training contract and training plan must be set out in the form approved by the Commissioner of Vocational Training and must be prepared in accordance with the relevant vocational training order.[4] Any variation of the training contract or training plan must be approved by the Commissioner for Vocational Training.[5]
(b)An application for the establishment of an apprenticeship or traineeship must be dismissed unless the Commissioner for Vocational Training is satisfied, amongst other things, that the employer can provide the work-based component of the required training planning in the relevant vocation, the employer will employ the apprentice or trainee under conditions that do not contravene the relevant industrial award or agreement, the employment provided by the employer complies with the relevant vocational training order, and, in the case of a host employer arrangement, the host employer is available to provide appropriate training to the apprentice or trainee.[6]
(c)A training contract has effect as if it were a deed duly executed by the employer and the apprentice or trainee. The training contract binds the employer and the apprentice or trainee from the time the employer is notified that the establishment of the apprenticeship or traineeship has been approved or from the end of the probationary period, whichever is the later, until the end of the term of the apprenticeship or traineeship.[7]
(d)The employer of an apprentice or trainee has a duty to take all reasonable steps to enable the apprentice or trainee to receive the work-based component of the required training and to obtain an appropriate qualification for their vocation.[8]
(e)An employer that places an apprentice or trainee with a host employer remains liable to fulfil the obligations imposed on the employer by the A & T Act, but is taken to have fulfilled those obligations if they have been fulfilled by the host employer.[9]
(f)An employer that places an apprentice or trainee with a host employer under a host employment arrangement must place the apprentice or trainee with host employers in a manner that ensures that the apprentice or trainee receives the work-based component of the required training in all aspects of the apprenticeship or traineeship, and must properly supervise any such host employer in its provision of the required training to the apprentice or trainee.[10]
(g)An employer of an apprentice or trainee must notify the Commissioner for Vocational Training if they place the apprentice or trainee with a host employer and any matter arises that is likely to have an adverse effect on the completion of the apprenticeship or traineeship by the apprentice or trainee, including any difficulties encountered by the employer in finding a host employer and any difficulties encountered by the apprentice or trainee in relation to any host employer, whether in relation to training or employment or otherwise.[11]
(h)An employer that employs a person as an apprentice or trainee must provide work-based training in accordance with the relevant vocational training order and must employ the person under conditions no less favourable than those set by the provisions of the relevant industrial award or agreement.[12]
If an employer or apprentice/trainee wishes to suspend or cancel an apprenticeship or traineeship, they must make an application to the Commissioner for Vocational Training. The Commissioner will not suspend or cancel the apprenticeship or traineeship unless both parties consent or the Commissioner is satisfied that it is reasonable in the circumstances to do so.[13]
(j)Part 4 of the A & T Act governs proceedings with respect to disputes and disciplinary matters. Under this Part, an employer or apprentice/trainee may make a complaint to the Commissioner for Vocational Training that the other party to the relationship has failed to discharge their obligations under the apprenticeship or traineeship.[14] If the Commissioner is satisfied that the gravity of a complaint justifies such action, the Commissioner may, without prior notice to the employer and apprentice or trainee, suspend the relevant apprenticeship or traineeship pending the hearing of the complaint.[15] In determining a complaint, the Commissioner for Vocational Training may (i) caution or reprimand the person against whom the complaint has been made, (ii) order the person against whom the complaint has been made to make such redress (otherwise than by way of damages for breach of contract) as the Commissioner considers appropriate, (iii) varying, suspending or cancelling the apprenticeship or traineeship, or (iv) dismiss the complaint.[16]
(k)If the Commissioner for Vocational Training dismisses a complaint made by an employer against an apprentice or trainee, the apprenticeship or traineeship has been suspended by the Commissioner pending the hearing of the complaint, and the employer has, under the terms of employment, failed to give the apprentice or trainee any right or benefit (whether by way of remuneration or otherwise) to which the apprentice or trainee would, but for the suspension, be entitled, then the Commissioner must direct the employer to pay to the apprentice or trainee an amount equal to the value of the right or benefit that the employer has failed to give.[17]
Relevant provisions of the Training Contract
On 23 May 2022, Ms Sanders and Skilled signed a standard form training contract for a traineeship in Mining – Surface Mining – Surface Extraction Operations Certificate III (Training Contract). The Training Contract includes the following preliminary statement and relevant ‘training contract declarations’:
“This contract forms a legally binding agreement between an employer and employee for the training of Apprentices and Trainees leading to a nationally recognised qualification. In signing this contract the parties are bound by the obligations detailed below and the legislation of the State or Territory in which this training contract is to be registered.
Training Contract Declaration
We, the employer, apprentice/trainee and parent or guardian (where applicable) have read and understood the Training Contract Obligations outline below.
We declare that to the best of our knowledge the details entered on this Training Contract are true and correct. We understand that the giving of false or misleading information is a serious offence.
…We understand that this Apprenticeship/Traineeship Contract is legally binding in accordance with the Training Contract Obligations set out below and the legislation of the State or Territory in which this Training Contract is to be registered.
We understand that this Training Contract can only be terminated within the period of the probation and/or, in accordance with the requirements of the relevant State/Territory legislation, and that the probation periods are determined by the responsible State/Territory government department, authority or agency or relevant industrial award/agreement for this qualification and vocation.
We undertake to negotiate and sign a Training Plan with the chosen RTO as required by the relevant State/Territory government department, authority or agency.”[18]
The following ‘training contract obligations’ are set out on page 5 of the Training Contract:
“For the employer, apprentice or trainee, and parent or guardian (where applicable) We agree that:
a) the Contract commences from the stated date of commencement, provided that it has been registered or approved under the provisions of the relevant State/Territory legislation
b) the Contract can only be changed by our agreement and according to State/Territory legislation and the State/Territory government department, authority or agency must be informed of the proposed change/s. In some States/Territories approval for the change/s must be sought
c) the apprentice/trainee can see, and correct, any information about himself/herself in this Contract or held by the employer in relation to this Contract
d) we will try to resolve any dispute we have between us, and if we can't, we will contact our State/Territory government department, authority or agency to request assistance or to access the appropriate dispute resolution processes
e) the Contract can be audited by the relevant State/Territory government department, authority or agency or Australian Government Department In all states and territories except SA, the Qualification Title and Code may be varied by the Registered Training Organisation during the term of the Contract, where the qualification is superseded through a revision to the training package, and the variation is endorsed by the relevant State/Territory government department, authority or agency
In SA, the Qualification Title and Code may only be varied by the relevant State government department, authority or agency during term of the Contract, where the qualification Is superseded by an equivalent qualification through a revision to the training package, and where the variation has been endorsed by the responsible State government department, authority or agency, and the parties to the Contract are notified of that variation.
g) the Contract is successfully completed when there is agreement from the employer, Registered Training Organisation and apprentice/trainee, and/or an acknowledgement by the State/Territory government department, authority or agency, that the apprentice/trainee has attained all the required competencies
h) this Contract expires if it reaches the nominal term of the contract without the apprentice/trainee having attained all the required competencies or a request for an extension of the contract having been endorsed by a State/Territory government department, authority or agency
i) this contract may be terminated in accordance with the relevant State/Territory legislation.For the employer
I agree that I will:a) employ and train the apprentice/trainee as agreed in our Training Plan and ensure the apprentice/trainee understands the choices that he/she has
b) provide the appropriate facilities and experienced people to facilitate the training and supervise the apprentice/trainee while at work, in accordance regarding the training with the Training Plan
c) make sure the apprentice/trainee receives on-the-job training and assessment in accordance with our Training Plan
d) provide work that is relevant and appropriate to the vocation and also to the achievement of the qualification referred to in this Contract
e) release the apprentice/trainee from work and pay the appropriate wages to attend any training and assessment specified in our Training Plan
f) meet all legal requirements regarding the apprentice/trainee, including but not limited to, occupational health and safety requirements and payment of wages and conditions under the relevant employment arrangements
g) repay any payment I receive that I am not entitled to
h) work with our RTO and the apprentice/trainee to make sure we follow our Training Plan, keep training records up-to-date, and monitor and support the apprentice/trainee’s progress; and
i) let the relevant State/Territory government department, authority or agency and the RTO know within five working days (or when the local State/Territory legislation requires, if this is different) if our Training Contract has become jeopardised.
I acknowledge that it is an offence to use information in the Contract to discriminate against any person, including the apprentice/trainee.For the apprentice/trainee
I agree that I will:a) attend work, do my job, and follow my employer's instructions, as long as they are lawful
b) work towards achieving the qualification stated in our Training Contract
c) undertake any training and assessment in our Training Plan.For the parent or guardian I agree that I will:
uphold the responsibilities listed above for the apprentice/trainee until this person is 18 years of age.”
The balance of the Training Contract includes the following relevant ‘details’ and information:
“Apprenticeship/Traineeship Details
1. Title and level of qualification
Certificate III in Surface Extraction Operations – Certificate III
2. National Qualification Code
RII30120
3. Commencement date of Apprenticeship/Traineeship
23/05/2022
4. Nominal term of Training Contract (months)
24
5. The period of probation for this Apprenticeship/Traineeship (months)
2.0
6. Type of Apprenticeship/Traineeship
Traineeship
…
Employment and Training Details
(For apprentices/trainees employed through Group Training Organisations in NSW, TAS, WA, NT, VIC and ACT, provide the name and address of the first host employer)35. Name of workplace where apprentice/trainee will be employed
BHP MT ARTHUR
…
38. Type of employment arrangement
Certified agreement
Name of Agreement/Award
Skilled Workforce Solutions (NSW) Pty Ltd Enterprise Agreement 2019
39.Please indicate the number of hours of employment and training per week and whether this Apprenticeship/Traineeship is fulltime or part-time.
Number of hours work and training per week
44.0
Full-time
…
Information to Help Complete the Training Contract
…Question – Full-time/Part-time
Apprenticeships/traineeships may be undertaken full-time or part-time. A full-time apprentice/trainee is one whose ordinary hours of employment, including the training component, are not less than the usual hours of employment for a full-time employee in that occupation. Part-time provisions vary across Australia and across occupations. Averaging of hours may be possible in some jurisdictions. Please check with your State/Territory government, authority or agency or your Apprenticeship Network Provider. Ticking either the full-time or part-time boxes confirms the apprentice/trainee is not working under casual or sub-contracting arrangements whilst undertaking the apprenticeship/traineeship…”
Relevant provisions of the Training Plan
On 23 May 2022, Ms Sanders and Skilled signed a NSW Apprenticeship/Traineeship – Training Plan (Training Plan). The Training Plan relevantly provides:[19]
“Employer Trading Name: Skilled Workforce Solutions (NSW) Pty Ltd
Apprentice/Trainee Name: Nicole Sara
RTO Name: Programmed Skilled Workforce Limited
TCID TBA
ABOUT THE TRAINING PLAN
· The Training Plan describes what training is to be undertaken, who provides the training and conducts the assessments, and how, when and where this will occur.
· The Training Plan is developed by a Registered Training Organisation (RTO) in consultation/negotiation with the employer and apprentice/trainee. Under user choice e arrangements, the employer and apprentice/trainee have the right to decide which RTO will deliver their training, the units of competence and the sequence they will be delivered, and how, when, where and by whom training and assessment will be delivered.
· The Training Plan is a working document to be used for the duration of the Training Contract and must be updated as necessary to reflect the current status of training.
· A copy of the current Training Plan, including any updates, must be kept by the RTO, employer and apprentice/trainee, with a copy always accessible in the workplace and to Training Services NSW.
· Upon completion of this Training Plan the apprentice/trainee is eligible to be issued with the appropriate qualification.
· The RTO issues the qualification when the employer has verified that the apprentice/trainee is competent in the vocation to the required industry standard.
For further information on how to develop, implement or monitor a Training Plan, see Vocational Training Guideline – Training Plan at TO THE TRAINING PLAN
Cover -Provides basic information about training plans and details obligations and undertakings by each party to the Training Plan.
Part 1- Provides essential employer, learner and RTO details for the apprenticeship/traineeship.
Part 2-Identifies the units of competence (training) being undertaken, and how, when and by whom, training and assessment will be delivered/undertaken.
Part 3- Identifies support (eg. training materials, resources, facilities, supervision, etc.) that will be necessary to successfully undertake and complete the training.
Part 4-Is an addendum used to capture additional information required for school based apprenticeship and trainee arrangements.
Part 5-Is an addendum used to record the employer’s endorsement of competence.
OBLIGATIONS AND UNDERTAKINGS
Registered Training Organisation (RTO) I, the undersigned, on behalf of the nominated RTO, confirm that:
a. This Training Plan was developed in consultation with both the employer and apprentice/trainee.
b. This Training Plan will be kept up to date and a copy regularly provided to the parties.
c. Formal training and assessment will be undertaken in accordance with the requirements outlined in the Apprenticeship and Traineeship Act 2001, Vocational Training Guideline – Training Plan, and relevant Vocational Training Order and Training Package.
d. Regular updates will be provided to the employer and apprentice/trainee on the progress of training.
e. Training Services NSW will be notified of any issues that may jeopardise the successful completion of the training within 21 days of the matter arising, including any failure by the employer to allow apprentice/trainee to participate in training.
f. Employer endorsement that a learner is competent to industry standards in the vocation will be obtained BEFORE issuing a qualification for this apprentice/trainee.
g. Training Services NSW will be notified within 28 days when the apprentice/trainee is eligible to be issues with the appropriate qualification.
…
Employer, I the undersigned, on behalf of the nominated employer, agree to:
a. The employer responsibilities as outlined in this Training Plan.
b. Provide work and on the job training consistent with formal training provided under this Training Plan.
c. Provide this apprentice/trainee with the appropriately level of support and supervision.
d. Withdraw my apprentice/trainee from routine work duties, with pay, for a minimum of 3 hours per week, averaged over a 4 weeks period, for the purpose of undertaking formal training/assessment.
e. The RTO providing information to Training Services NSW as specified in € and (g) above.
f. Report/confirm learner competence in the vocation to the RTO as appropriate.
g. Information provided by the RTO in (f) above possibly being used to initiate competency based completion of the apprentices/traineeship.
…
Apprentice/Trainee I, the undersigned, agree that:
a. I am aware of and agree to my responsibilities as outlined in this Training Plan.
b. I will make every effort to successfully complete the training outlined in this Training Plan.
c. The RTO may provide information to Training Services NSW as specified in € and (g) above.
d. Information provided by the RTO in (g) above may be used to initiate competency based completion of the apprenticeship/traineeship.
…
1.2 Training Details
Contract Type New Entrant Trainee
Employment Type Full Time
TC Start Date 23/05/2022 TC End Date 22/05/2024
Qualification Title Certificate III in Surface Extraction Operations
Mode of Delivery Employment Based…”
Relevant provisions of the Vocational Training Order
The vocational training order for a Mining – Surface Mining – Traineeship (Vocational Training Order) relevantly provides:[20]
“Terms of traineeships
Full-time:
…
RII30120 Certificate III in Surface Extraction Operations
·24 months or until the relevant competencies are achieved
…
Part-time:
See part-time apprenticeships and traineeships (//node16524)
Probationary periods
Where the nominal term is:
·Up to and including 24 months duration – 2 months…”
Relevant provisions of the Employment Contract
On 23 May 2022, Ms Sanders and Skilled signed a Maximum Term Employment Contract (Employment Contract). The Employment Contract relevantly provides:[21]
“1. Assignments under this Contract
(a) The terms and conditions of employment contained in this Contract will apply if you are offered and accept an Assignment with Programmed. An 'Assignment' with Programmed involves you being offered short term employment by Programmed under the terms of this Contract to perform work at a client of Programmed on a labour-hire basis.
(b) Your employment with Programmed for each Assignment will be on a maximum term arrangement, with the term of your employment corresponding to the period of each Assignment that you are offered and accept. Accordingly, your employment with Programmed will commence on the date of each relevant Assignment, and will end at the conclusion of the period for each relevant Assignment, unless your employment is terminated earlier in accordance with this Contract. An Assignment may be extended by mutual agreement If Programmed offers you an Assignment, it will provide you with the following details relating to the from both parties
(c) Assignment:
1. the location of the work;
2. the applicable industrial instrument;
3. the type of work to be performed;
4. when the work is to be performed;
5. the work roster;
6. the wage rate;
7. the commencement and duration of the Assignment;
8. the entity within Programmed which is employing you for the purposes of the Assignment; and
9. any other requirements applicable to the particular Assignment.(d) Programmed may contact you regarding any current or potential work Assignments via telephone, SMS, email or postal mail.
(e) Within 24 hours of receiving an offer to undertake an Assignment, you must advise Programmed whether the offer is accepted.
(f) Programmed is not obliged to offer, and you are not obliged to accept, any particular Assignment or offer ofwork. However, if you accept an Assignment, the terms and conditions set out in this Contract, in conjunction with the relevant conditions of Assignment (as notified to you), will govern your employment for the duration of the Assignment. Therefore, once accepted, you must complete an Assignment unless you are absent from work for an authorised reason. Should you elect not to complete the Assignment for whatever reason, you must inform Programmed immediately.
(g) You agree that the terms of your initial Assignment are as follows:
INITIAL ASSIGNMENT CONDITIONS Work Location: BHP – Mt Arthur Applicable Industrial Instrument: SKILLED Workforce Solutions (NSW) Pty Ltd Enterprise Agreement 2019 Classification: Mineworker Level 1 – Trainee Year 1 Employment Status: (Full Time or Part Time) Full Time Hours of work You are required to work an average of 35 ordinary hours per week, plus reasonable additional hours
You agree to work shiftwork as required.Roster arrangement 12.67hr 7 Day Rotating Roster – Flat Pay Rate: $34.96 Stand down Programmed may stand you down from work without pay for any period that Programmed cannot usefully employ you because of a stoppage of work for any cause for which Programmed cannot reasonable be held responsible. This includes a stoppage of work by the client for any cause for which the client cannot reasonably be held responsible. Wage Rate: Base Rate: $22.11 Start Date: 23 May 2022 End Date: 22 May 2023 Report to Client Representative: Programmed Contract Manager:
Joel CribbPay/ Employment Queries to: 02 6575 5700 Employing entity: SKILLED Workforce Solutions (NSW) P/L (h)During an Assignment your regular roster or ordinary hours of work may be varied in accordance with the relevant industrial instrument that applies to the Assignment.
(i)During the period of an Assignment, you are supervised by, and must act in accordance with the directions given by, Programmed’s client with respect to working arrangements, safety regulations and the manner and proficiency in which you are to carry out your work.
(j)Programmed assesses the hazards and risk controls on each client work site which will identify minimum site based safety requirements. Many Assignments will require Personal Protective Equipment specific to be worn to reduce the risk of injury or incident. You must advise Programmed if you have any conditions that may affect your ability to correctly wear the necessary protective equipment.
(k)You acknowledge that an Assignment is subject to, and the days of work, hours and length of the Assignment are determined by, Programmed's client requirements from time to time. Therefore, although you may accept an Assignment from, and be informed of the expected days of work, hours and length of the Assignment by, Programmed, these are not guaranteed.
(l)Programmed will provide you as much notice as possible of any change to your Assignment arrangements.
2. Payment of Wages
(a)You agree that Programmed Skilled Workforce Limited, or such other related body corporate within the Programmed Group of companies (as advised to you from time to time) will pay your wages, regardless of which entity within the Programmed Group of companies employs you to undertake the relevant Assignment, and that such payment will discharge any liability which the employing entity has to make payment in respect of those wages.
(b)Programmed will pay your wages in accordance with company policy. Under current policy, payments are made weekly by electronic funds transfer into your nominated account. Payment will not be made until Programmed is provided with a timesheet within a timely manner and correctly completed by you and authorised by Programmed's client. Payment will be made in the week following the properly completed timesheet.
(c)Should any banking details you supply be incorrect, you acknowledge that payment of wages may be delayed or lost and Programmed is not responsible for any resulting delay or loss. Programmed accepts no responsibility for any incorrect allocation of any payment by a bank, building society or credit union. Delayed wages will not be reprocessed until Programmed has recovered them.
(d)In the event that you are overpaid by Programmed, you authorise Programmed to deduct the value of the overpayment from any future wages paid to you. Programmed will provide you with prior notice of the value of any such deduction for overpayment. Programmed may make the deduction by way of weekly instalments to ensure that the value of any weekly deduction does not exceed 10% of your post-tax weekly wages. You confirm that any such deductions for overpayments are principally for your benefit given the arrangement reduces the debt in an orderly and reasonable manner.
(e)Your wages are based on an hourly rate basis according to your classification. Programmed may offer a rate per hour for each Assignment. If you accept an Assignment, you are deemed to have accepted the rate, or any higher rate, which may be paid for the duration of that Assignment.
(f)Should you agree to accept an Assignment on a flat rate basis for all hours worked, that rate will include compensation for all entitlements, benefits or payments that might otherwise be due under any applicable industrial instrument or legislation including, without limitation, payment for ordinary hours, overtime, penalty rates, shift loadings, weekend work, meal breaks, leave loading and allowances. Accordingly, no overtime, special rates, loadings, or allowances will be payable.
(g)Should you agree to accept an Assignment other than on a flat rate basis for all hours worked (see clause 2(f) above), including on an annual salary basis, you agree and acknowledge that the total of all monetary amounts paid to you for the particular Assignment will include compensation for all entitlements, benefits or payments that might otherwise be due under any applicable industrial instrument or legislation, without, limitation, payment for ordinary hours, overtime, shift loadings, special rates weekend work, meal breaks, loadings, and allowances.
(h)Your Payment Summary (group certificate) information is available and can be accessed via the myGov website.
…
4. Your Undertakings
You agree:(a)To perform all work and associated functions in the safest possible manner, and in accordance with the directions given by Programmed or its client;
(b) To obey all lawful written and verbal health and safety instructions issued by Programmed or its client;
(c) To comply with the local site rules and requirements that may be issued, introduced or varied from time to time by Programmed or its client;
(d)To notify Programmed immediately if an offer of employment (either temporary or permanent) is made to you by a client where Programmed has placed you;
(e) To adhere strictly to all standard operating procedures and safe systems of work laid down by Programmed's client for particular equipment or tasks and to correctly use all personal protective clothing and equipment in the appropriate circumstances;
(f) To ensure that any necessary licence, ticket or certification of any type whatsoever (including, but without limiting the type of licence required, a valid driver's licence of any class) that is required to perform an Assignment, is current and valid during the period of the Assignment. You must immediately notify a representative of Programmed if such licence, ticket or permit expires or is revoked; You must carry any relevant licence on you at all times you are performing any work requiring such a licence.
(g) Programmed may immediately terminate your Assignment if you falsely claim to hold a vocational, academic or professional qualification that is necessary to perform the Assignment.
(h) To abide by the site requirements for wearing Personal Protective Equipment. You will ensure that your Personal Protective Equipment will be kept in good condition.
(i)To undertake police checks at your own expense, either whilst on an Assignment (at the request of Programmed or its client) or prior to being offered an Assignment if requested to do so by Programmed;
(j) To abide by the relevant road traffic legislation when operating any client-supplied plant or machinery. Any traffic infringements sustained whilst operating such plant or machinery will be your responsibility; and
(k) That you may, at the very least, be held responsible for any insurance excess in the event of any damage to a client's plant and or machinery caused by your negligence.
9. Termination
(a)Subject to clause 9(d), Programmed may terminate your employment during an Assignment by providing notice to you, or payment in lieu of notice, as set out in table below:
Years of Service Notice Period Not more than 1 year 1 week More than 1 year but not more than 3 years 2 weeks More than 3 years but not more than 5 years 3 weeks More than 5 years 4 weeks (b)If you are over 45 years of age and have completed more than two years continuous service with Programmed, then the amount of notice or payment in lieu of notice will be increased by one week.
(c)You may terminate your employment by giving Programmed the period of notice as specified in the table in clause 9(a). If you do not provide Programmed with the full period of notice, Programmed may deduct the difference between the notice required and the notice given from any monies owing to you on termination.
(d)Programmed may terminate your employment at any time, and without notice, if any of the following occurs:
i. serious misconduct, including but not limited to:
a. Wilful or deliberate behaviour by you that is inconsistent with the continuation of the contract of employment;
b. Conduct by you that causes imminent and serious risk to the health and safety of a person, co-worker or fellow employee, the reputation, viability or profitability of Programmed's business;
ii. theft:
iii. fraud;
iv. assault;
v. being under the influence of drugs or alcohol at work; returning a positive drug or alcohol test when tested at work;
vi. refusing to carry out a lawful and reasonable instruction that is consistent with your employment;
vii. failure to observe any safety and specified work practices mandated by Programmed or its client; or
viii. unlicensed driving of a vehicle, truck, or mobile plant.”
Relevant provisions of the Enterprise Agreement
The Enterprise Agreement includes the following relevant provisions:[22]
“8. MINIMUM CLASSIFICATIONS & WAGES
8.1 The wage rates are inclusive of all other allowances unless otherwise mentioned in this Agreement.
Employees will be paid one of the follow new wage rates, dependent on their position, for each ordinary hour worked. If a majority of employees vote to approve the Agreement, the new wage rates apply from the first full pay period after a successful vote.
8.1.1 EMPLOYEE ORDINARY HOURLY RATE
Classification Base Rate Casual Rate Mineworker Level 1 Trainee Cert II & Cert III Year 1 $20.24 NA Mineworker Level 1 Trainee Cert III Year 2 $22.49 NA Mineworker Level 2 $24.10 $30.12 Mineworker Level 3 $26.09 $32.61 8.1.2 FLAT RATES OF PAY
Indicative Flat Rates of Pay from commencement of this Agreement are detailed in the table below. Rates may vary depending on the client, roster and site. In circumstances where a flat rate of pay is implemented the flat rate of pay will not result in an employee being paid less than they would otherwise be entitled to under the Agreement.
Classification Roster Hourly Flat Rates Permanent Rates Hourly Flat Rates Casual Rates Mineworker Level 1 – Trainee Year 1 4 Panel 12hr Rotating Roster $31.99 N/A Mineworker Level 1 – Trainee Year 2 4 Panel 12hr Rotating Roster $35.54 N/A Mineworker Level 2 4 Panel 12hr Rotating Roster $38.09 $42.89 Mineworker Level 3 4 Panel 12hr Rotating Roster $41.09 $46.89 Mineworker Level 1 – Trainee Year 1 4 Panel 12.5hr Rotating Roster $32.38 N/A Mineworker Level 1 – Trainee Year 2 4 Panel 12.5hr Rotating Roster $35.98 N/A Mineworker Level 2 4 Panel 12.5hr Rotating Roster $38.56 $43.16 Mineworker Level 3 4 Panel 12.5hr Rotating Roster $41.60 $46.60 Mineworker Level 1 – Trainee Year 1 9hr Mon-Fri Day Shift Roster $24.81 N/A Mineworker Level 1 – Trainee Year 2 9hr Mon-Fri Day Shift Roster $26.81 N/A Mineworker Level 2 9hr Mon-Fri Day Shift Roster $28.73 $33.17 Mineworker Level 3 9hr Mon-Fri Day Shift Roster $30.99 $35.82 Mineworker Level 1 – Trainee Year 1 10.5hr Mon-Fri Day Shift Roster $25.73 N/A Mineworker Level 1 – Trainee Year 2 10.5hr Mon-Fri Day Shift Roster $28.59 N/A Mineworker Level 2 10.5hr Mon-Fri Day Shift Roster $30.64 $34.41 Mineworker Level 3 10.5hr Mon-Fri Day Shift Roster $33.07 $37.16
8.2 Classification Definitions
Mineworker Level 1 (Trainee): Indentured trainee who completes either a Certificate Il or Certificate III level traineeship. Trainees can complete either a one or two year traineeship and will remain in a Level 1 classification until they complete their indenture.
A Mineworker Level 1 (Trainee) is best described as an indentured trainee completing a Certificate II or III level traineeship.Mineworker Level 2: Entry level classification for an Employee who trains in and performs required tasks under direct supervision (other than a trainee as per. Mineworker Level 1). This classification applies to employees until assessed by the Company as meeting the requirements to be classified as a Mineworker Level 3.
A Mineworker Level 2 Employee is best described as an inexperienced Mineworker or clean skin.
Mineworker Level 3: A Mineworker Level 3 is an employee who is assessed by the Company as competent to perform the required tasks in a variety of operating circumstances and under limited supervision.
A Mineworker Level 3 Employee is best described as an experienced Mineworker.
Trainer Classification: A casual Employee who is appointed by the Company and its client as an Operator Trainer will be paid no less than the flat rate of pay for Mineworker Level 3 (12 hour roster) in Clause 8.1.2 when flat rates are applicable on the mine site they are working on. If flat rates of pay are not applicable on the mine site they are working on then a reasonable rate, which recognises the duties of a trainer will be negotiated between the Company and the Employee before commencing as a Trainer.
8.3 Flat Payment Rates
The Company may calculate a combination of classification rate for ordinary hours, shift penalties, overtime (including triple time for public holidays) rates and any applicable allowances from this Agreement as a "flat rate" to apply at a particular site provided:
8.3.1 the flat rate results in the Employee being better off over all, and
8.3.2 the Company engages in consultation with the Employee, and
8.3.3 the Company provides at least 2 weeks' notice of any change.
Flat rates contained in clause 8.1.2 have been calculated based upon existing roster patterns at the time of making this agreement. Should roster patterns change or new patterns be implemented, flat rates will be calculated in accordance with the provisions of this clause.
9. TRAINEES
The following types of traineeship are available under this Agreement:
(a) A full-time traineeship based on an average of 35 ordinary hours per week over the roster cycle.
(b) A part-time traineeship based on an average of less than 35 ordinary hours per week over the roster cycle
9.1 Trainee Rates
9.1.1 Trainees will be engaged to complete a recognised traineeship program.
9.1.2 Trainee rates of pay are provided for in clause 8.14. HOURS OF WORK AND ROSTERING
14.1 The ordinary hours of work will be an average of thirty five (35) hours per week over the roster cycle.
14.2 The Company can determine the working arrangements to be worked including the types of rosters to be worked, hours of work, shift length, shift start and finish times.
14.3 Employees may be required to work rosters that enable coverage over a 24 hour period, 7 days per week, subject to industry Fatigue Guidelines.
14.4 Shift lengths may be up to 12.5 hours in duration.
14.5 The Company will provide an Employee with 24 hours' notice of a change in their roster.
14.6 Work will be arranged so that an Employee has ten (10) consecutive hours off between work on successive days.
14.7 The Company is required to provide notification of a cancelled shift, to the affected Employee, at least two (2) hours' prior to the rostered shift starting time. This includes both rostered and unrostered overtime shifts. In situations where the Company has not provided notification Casual Employees will be paid a minimum of four (4) hours as if they were at work. Employees, other than casuals, will be paid in accordance with clause 22.2.2.
14.8 The company will not change the start time of the shifts for casuals on these days to avoid the payment referred to in this clause.Safety Talks and Medicals
14.9 Where an employee is required to attend a safety talk, as advised by the Company, employees will be paid at double time for the duration of the safety talk. Safety talks are contained to a limit of 15 minutes in duration.
14.10 Employees participating in Order 43 Medicals outside their rostered hours will be paid for the time of attendance at the rate of double time for the duration of the appointment. The minimum payment for attendance at Order 43 Medicals will be 2 hours.22. STAND DOWN
22.1 The Company has the right to refuse payment to an Employee for any day or part day during which an Employee is stood down as a result of refusal of duty, neglect of duty or misconduct of the Employee, or the Employee cannot be usefully employed in the Employee's usual classification because of a strike or a breakdown of machinery.
22.2 Adverse Climatic Conditions
22.2.1 The Company may stand down an Employee during a period in which the Employee cannot perform his or her job at a Client site due to adverse climatic conditions and the Client has directed that the Company's Employees do not attend work. These conditions include wet weather, fires, wind and other extreme climatic conditions.
22.2.2 Employees, other than casual Employees, who have been stood down due to adverse climatic conditions will be paid their minimum ordinary hours over the roster cycle for that period these ordinary hours will be paid at the base rate, in accordance with applicable classification in Clause 8.1.1.
22.2.3 The Company will take all reasonable steps to minimise the need for standing down Employees, including, where practical, using adverse climatic condition days as training days.”
Relevant facts
Ms Sanders commenced her traineeship with Skilled on 23 May 2022. Skilled was both Ms Sanders’ employer and the registered training organisation (RTO) for her traineeship.
Ms Sanders was placed by Skilled with a host employer, BHP, to work at its Mt Arthur open cut coal mine located just outside Muswellbrook in the Hunter Valley (Mine). Ms Sanders worked a 12-hour shift, rotating roster at the Mine.
On 5 March 2023, Ms Sanders was involved in an incident at the Mine while operating a heavy-duty haulage truck on night shift. Ms Sanders failed to properly give way to a water truck at an intersection. Ms Sanders stopped and reported the incident. She concluded her shift and returned to work at the Mine for her next rostered shift on 10 March 2023.
On 10 March 2023, Ms Sanders was called into a meeting at the Mine with Mr Learmont, who informed her that a very serious matter had arisen that could result in her dismissal. Mr Learmont showed Ms Sanders in-cab footage of her putting a cleaning rag over the camera in the truck she was driving. The camera is located on the dash of the truck. Ms Sanders told Mr Learmont that she must have accidentally thrown the rag over the camera after cleaning the dash. Ms Sanders was told to return to work on Monday, 13 March 2023. Between 10 and 13 March 2023, Ms Sanders was rostered to work on 11 and 12 March 2023. She was informed that she would be paid while she was stood down.
Later on 10 March 2023, Ms Sanders received a letter (by email) from Mr Learmont. It informed her that she had tampered with a safety device and thereby breached Skilled’s Code of Conduct. Ms Sanders was asked to show cause as to why her employment should not be terminated. She was directed to attend a meeting at 11am on 13 March 2023. The letter also contained the following statement about Ms Sanders’ suspension:
“Programmed continues to temporarily suspend you from your employment, as per clause 22.1 of the Skilled Workforce Solutions (NSW) Pty Ltd Enterprise Agreement 2019 for misconduct for the duration of the investigation.”
BHP informed Skilled that Ms Sanders was not permitted to return to work at the Mine as a result of the incident on 5 March 2023.
On 10 March 2023, Skilled also informed Ms Jenna Doherty of Training Services NSW that Skilled was considering terminating Ms Sanders’ traineeship due to a serious safety incident.
On 12 March 2023, the CFMMEU, on behalf of Ms Sanders, sought an extension until 17 March 2023 for Ms Sanders to respond to the show cause letter. The extension was granted on the condition that Ms Sanders would only be paid until the date initially proposed for the show cause meeting (13 March 2023).[23]
On 14 March 2023, the CFMMEU asked Skilled to continue meeting its training obligations under Ms Sanders’ traineeship.[24]
On 14 March 2023, Ms Sanders made a complaint to the Commissioner for Vocational Training under Division 1 of Part 4 of the A & T Act. The complaint concerned Skilled’s failure to provide work and training to Ms Sanders in breach of her Training Contract. Ms Sanders took this course rather than responding to the show cause letter from Skilled.
On 17 March 2023, Ms Sanders attended a meeting with Ms Jenna Doherty from Training Services NSW (who had been appointed by the Commissioner for Vocational Training to look into the matter), Mr Learmont, Mr John Hamson, Contract Manager employed by Skilled, and Mr Chad Hanson of the CFMMEU (as Ms Sanders’ representative). The meeting failed to resolve Ms Sanders’ complaint.
On 22 March 2023, Skilled asked BHP whether Ms Sanders would be permitted to return to the Mine to complete her final assessment so that she could obtain her final competencies for her Certificate III. At the time Ms Sanders was stood down, she only needed to complete her light vehicle and haul truck assessments. It was estimated that these assessments would take less than one day to complete. BHP informed Skilled that Ms Sanders would not be permitted to return to the Mine to complete her final competency assessments.
Skilled contacted several of its other clients to see whether they would permit Ms Sanders to attend their workplace to complete her final competency assessments. Skilled could not find another worksite where Ms Sanders could complete her competency assessments. Skilled did not have the machinery or premises to undertake the assessment itself.
By email sent on 24 March 2023, Ms Doherty asked Ms Sanders whether she was willing to consent to a suspension of her traineeship. Ms Sanders did not consent to that course of action.
On 28 March 2023, Skilled made an application through Training Services NSW to cancel Ms Sanders’ traineeship.
On 3 April 2023, the CFMMEU, on behalf of Ms Sanders, wrote to Training Services NSW and indicated that Ms Sanders did not consent to the cancellation of her traineeship proposed by Skilled.
On 4 April 2023, the CFMMEU, on behalf of Ms Sanders, wrote to Training Services NSW and indicated that Ms Sanders wanted to work in accordance with her Training Contract and referred to the ‘hundreds of mining operator roles now open’ with Skilled. The correspondence also referred to the fact that Ms Sanders was not being paid her wages.
On 6 April 2023, Ms Doherty sent an email to the CFMMEU and indicated that the wage issue was a matter for the Fair Work Commission.
On 20 April 2023, Ms Sanders responded to a number of questions asked by Ms Doherty as part of her investigation.
In the period between 26 April 2023 and 17 August 2023, Ms Sanders was employed by MBC Recruitment.
In the period between 2 May 2023 and 3 June 2023, Ms Sanders was holidaying on her honeymoon.
On 5 June 2023, Ms Sanders attended a mediation with Skilled. The mediation was conducted by Ms Doherty. Skilled indicated that it was going to withdraw its application to terminate Ms Sanders’ traineeship. The mediation did not resolve Ms Sanders’ complaint that she was not being provided with work and training.
On about 9 June 2023, Skilled agreed to withdraw its unilateral application to terminate Ms Sanders’ traineeship and made a fresh application to suspend the traineeship by consent.
On 27 June 2023, Ms Sanders received correspondence from the Commissioner for Vocational Training, informing her that it had received an application by Skilled to suspend her traineeship from 5 June 2023 to 5 July 2023.
On 30 June 2023, Ms Sanders wrote to the Commissioner for Vocational Training and stated that she did not agree to the suspension of her traineeship. Ms Sanders also asked that her concerns about Skilled be addressed.
Further communications took place between the CFMMEU, on behalf of Ms Sanders, and Training Services NSW in July 2023 but no resolution was reached.
At no time was Ms Sanders’ traineeship suspended or terminated by the Commissioner for Vocational Training.
On 15 August 2023, Ms Sanders was informed that she was to attend the Mine on 17 August 2023 to complete her training and be assessed. BHP had changed its stance and was willing to permit Ms Sanders to attend the Mine to complete her competency assessment. Mr Cribb informed Mr Hanson of the CFMMEU that Ms Sanders would not be paid for the time that she attended the Mine on 17 August 2023 to undertake her competency assessment because she was no longer engaged on an assignment with Skilled and her suspension with Skilled had not been lifted.
Ms Sanders attended the Mine ready to commence her training and assessment at 9am on 17 August 2023. She operated a heavy vehicle and a light vehicle at the Mine. Ms Sanders was then informed that her traineeship had been completed. Ms Sanders completed her training and assessment at the Mine at about midday on 17 August 2023 and then left the Mine. Shortly after leaving the Mine, Skilled called Ms Sanders and asked her to return to the Mine to sign a document, which she did. After returning to the Mine and signing the document, Ms Sanders left the Mine for the final time at about 12:30pm on 17 August 2023.
On 7 September 2023, Ms Sanders received an email from Skilled informing her that she had completed her Certificate III in Surface Extraction Operations. Ms Sanders was provided with a document certifying that she had completed the requirements of her traineeship on 17 August 2023.[25]
Ms Sanders received what she believed to be correct payments for the pay weeks ending 11, 18 and 25 March 2023. In the period from the pay week ending 1 April 2023 until 22 May 2023, Ms Sanders received some payments but does not believe that they match what she would have been paid had she worked her rostered shifts at the Mine during that period. The payslips provided to Ms Sanders in respect of this period of time refer to ‘ordinary time’ earnings at a pay rate of $22.1186 per hour.
Apart from paying Ms Sanders her accrued annual leave on 10 July 2023, Skilled did not make any payments to Ms Sanders in respect of the period from 23 May 2023 until 17 August 2023. Ms Sanders was not paid for her attendance and training at the Mine on 17 August 2023.
Skilled took the view that because it had stood Ms Sanders down under clause 22.1 of the Enterprise Agreement, it had no obligation to pay her during the period of the stand down from 10 March 2023 until the Employment Contract concluded on 22 May 2023. However, in light of the fact that the show cause process was originally scheduled to occur on 13 March 2023, and to ensure that Ms Sanders was not out of pocket for the period from 10 to 13 March 2023, Mr Learmont says he authorised a discretionary payment to Ms Sanders at her flat rate of pay. At a later point in time, Skilled made a decision to reduce the discretionary payments which it says it was making to Ms Sanders to her base rate of pay. A subsequent decision was also made by Skilled to cease all discretionary payments to Ms Sanders from about the end of March 2023, but following discussions with the CFMMEU, Skilled agreed to pay Ms Sanders at her base rate of pay, and a back payment was made to her on 11 May 2023.
Ms Sanders spent the money paid to her by Skilled in the period from 10 March 2023 until 22 May 2023 by making mortgage repayments and paying for other household expenses.
Consideration
It is clear from the Training Contract, underpinned by the provisions of the A & T Act which I have summarised above, that Skilled was obliged to continue to employ, train and provide work to Ms Sanders during the term of her traineeship under her Training Contract, unless and until the traineeship was suspended or cancelled by the Commissioner for Vocational Training. At no time did the Commissioner for Vocational Training suspend or cancel Ms Sanders’ traineeship.
I reject Skilled’s contention that the Training Contract did not require Skilled to employ Ms Sanders throughout the duration of the Training Contract and instead permitted Skilled to employ Ms Sanders from time to time during the Training Contract, provided the employment was sufficient to enable Ms Sanders to obtain the necessary training competencies prior to the conclusion of the Training Contract. There are four answers to these novel contentions by Skilled. First, as a matter of construction, the Training Contract obliged Skilled to “employ and train the trainee” and “provide work that is relevant” to Ms Sanders.[26] These obligations were imposed by a Training Contract which was for a nominal term of 24 months but could be completed at an earlier time if Ms Sanders met the required competencies. Any reasonable person construing these provisions in context would readily conclude that the obligations imposed on Skilled to employ, train and provide work to Ms Sanders as a trainee continued to apply throughout the term of the Training Contract. There are no linguistic or contextual considerations which suggest that these obligations only applied from time to time during the term of the Training Contract. Secondly, the Training Contract required Skilled to “employ and train the trainee as agreed in our Training Plan”, “provide the appropriate facilities and experienced people to facilitate the training and supervise the trainee while at work, in accordance with the Training Plan”, and “make sure the trainee receives on-the-job training and assessment in accordance with our Training Plan”. One of the essential ‘training details’ set out in Part 1 of the Training Plan entered into by Skilled and Ms Sanders states that her “employment type” is “full time”.[27] It follows that the obligations imposed on Skilled under the Training Contract to employ and train, provide appropriate facilities etc, and make sure the trainee receives on-the-job training “in accordance with the Training Plan” applied to Ms Sanders in her capacity as a full time employee of Skilled during the term of the Training Contract. Thirdly, s 17 of the A & T Act imposed an obligation on Skilled to “provide work-based training in accordance with the relevant vocational training order for that vocation”. The Vocational Training Order applicable to Ms Sanders’ vocation of “Mining – Surface Mining” permits the terms of the traineeship to be “full-time”, in which case a “certificate III in Surface Extraction Operations has a term of “24 months or until the relevant competencies are achieved”, or “part-time”.[28] The Vocational Training Order does not provide for casual or intermittent employment during the traineeship, nor does the Enterprise Agreement (see clause 9 thereof). Fourthly, if Skilled were permitted under the terms of the Training Contract to employ, provide work and train Ms Sanders from time to time during the term of the Training Contract rather than throughout the term of the Training Contract, Skilled would in effect have the power to suspend the traineeship for periods of time of its choosing prior to the conclusion of the traineeship under the Training Contract. But under s 22 of the A & T Act only the Commissioner for Vocational Training has the power to suspend or cancel a traineeship and the Commissioner must not exercise that power unless the Commissioner is satisfied that both the employer and the trainee consent to the suspension or cancellation or it is reasonable in the circumstances to suspend or cancel the traineeship. An employer does not have the unilateral right to suspend a traineeship, whether under a training contract, the A & T Act, an enterprise agreement, or otherwise.
If Skilled had a serious concern in relation to a disciplinary matter pertaining to Ms Sanders in her role as a trainee, it had the right under Part 4 of the A & T Act to make a complaint to the Commissioner for Vocational Training and ask the Commissioner to suspend the traineeship pending the hearing of the complaint. Had the Commissioner acceded to such a request, Skilled would have been entitled to cease paying Ms Sanders during the period of the suspension. However, this would have been at the risk of the Commissioner directing Skilled to pay the remuneration foregone by Ms Sanders during the period of the suspension if the Commissioner ultimately decided to dismiss Skilled’s complaint after hearing it.[29] These features of the A & T Act reflect an obvious concern on the part of the legislature in New South Wales that apprentices and trainees are vulnerable employees who need protections over and above those afforded to other employees under industrial instruments and legislation.
Nor do I accept that Skilled had a right to suspend Ms Sanders without pay during her traineeship. The purported right exercised by Skilled to stand Ms Sanders down for misconduct arose from clause 22 of the Enterprise Agreement. However, such a right, in the context of a trainee, is inconsistent with the A & T Act, in particular the fact that only the Commissioner for Vocational Training has a right to suspend a traineeship. It follows that the right to stand down under clause 22 of the Enterprise Agreement was unenforceable with respect to trainees such as Ms Sanders.[30]
Ms Sanders’ Employment Contract came to an end by the effluxion of time on 22 May 2023. Save in respect of the single part-day of training provided to Ms Sanders on 17 August 2023, Skilled did not enter into another contract of employment with Ms Sanders after 22 May 2023. Skilled did not employ Ms Sanders in the period from 23 May 2023 until 16 August 2023. Ms Sanders completed her traineeship on 17 August 2023 because she attained the remaining required competencies on that date. It follows that her Training Contract came to an end on 17 August 2023.
By failing to continue to employ, train and provide work to Ms Sanders between 23 May 2023 and when she returned to work on 17 August 2023, I am satisfied that Skilled breached its obligations under the Training Contract. This gave Ms Sanders a right to claim damages for breach of the Training Contract. However, this Dispute does not include a claim by Ms Sanders that she is entitled to damages for breach of the Training Contract or any other obligation. Ms Sanders has expressly disavowed any claim for damages. So much is clear from her reply submissions: “… the Applicant does not seek damages”.[31] Instead, Ms Sanders seeks “wages that were lawfully required to be given to [her] in circumstances where [she] was ready, willing and able to work … the Respondent had an obligation to pay wages at a minimum amount under the Enterprise Agreement, the Maximum Term Contract and the Training Contract”.[32] Such a claim for the payment of wages is in the nature of an action for the recovery of a debt, as distinct from a claim for unliquidated damages flowing from a breach of contract.[33]
Automatic Fire Sprinklers Pty Ltd v Watson[34] is one of the leading authorities on a claim for wages in circumstances where the employee has not provided the service which would ordinarily entitle them to payment of their wages. In October 1938, Mr Watson was employed as a general manager under a contract for a term of six years. On 29 September 1944, Mr Watson was given one month’s notice of dismissal. The situation was complicated by the fact that Automatic Fire Sprinklers was a protected undertaking, and was therefore subject to the provisions of the National Security (Man Power) Regulations (Man Power Regulations). Regulation 14(1) of the Man Power Regulations provided that an employer carrying on a protected undertaking should not, except with the permission in writing of the Director-General or of a person authorised by him, terminate the employment in the undertaking of any person employed therein, and Regulation 14(2) provided that a person employed in a protected undertaking should not, without permission, change or terminate his employment. The Man Power Regulations were in force on 29 September 1944, and the employer made an effort to comply with them by stating in a letter sent to Mr Watson informing him of his dismissal from the position of general manager that the determination of the contract did not terminate his employment with the company, and that until further notice his position and duties would be New South Wales manager at a salary of 10 pounds per week. The company also informed Mr Watson that it had decided to give him six months’ leave of absence. Mr Watson did not accept the purported dismissal as putting to an end his contract of employment and he continued to offer his services as general manager. He attended the office of his employer and was ready, willing and able to perform the duties of general manager. On 19 September 1945, after the employer had ceased to be a protected undertaking (so that the Man Power Regulations were no longer applicable), Mr Watson was excluded by his employer from its offices, and it was found that he was wrongfully dismissed on that date. Mr Watson claimed an entitlement to his full salary as general manager from 29 September 1944 until 19 September 1945.
Justice Dixon wrote what has been regarded as the leading judgment. His Honour reasoned as follows in relation to the position at common law:
“In certain forms of executory contract where the promise of one party is to pay the other money in consideration of his transferring property, of his doing work, of his serving the former as his master, and, perhaps, of his providing other tangible things or definite services, the money to be paid is regarded as the price of or reward for the property or service when and so often as the transfer of the one or the performance of the other affords an executed consideration. In these contracts the promise to pay the price or reward is not construed as a simply obligation to pay a sum or sums at a future date supported solely by a consideration consisting in the corresponding promise to transfer the property, do the work, serve, or provide the things or services by the other party, so that a mere readiness and willingness on the one side of the latter to perform his part is enough to entitle him to the payments, notwithstanding that, whether owing to the fault of the former, or without fault on either side, the property is not transferred, the work is not done, the relationship of master and servant ceases, or the things or services are not provided…
A contract for the establishment of the relation of master and servant falls into the same general category of agreements to pay in respect of the consideration when and so often as it is executed, and is, therefore, commonly understood as involving no liability for wages or salary unless earned by service, even though the failure to serve is a consequence of the master’s wrongful act.
It is, of course, possible for the parties to make a contract for the payment of periodical sums by the master to the servant independently of his service… But, to say the least, it is not usual. The common understanding of a contract of employment at wages or salary periodically payable is that it is the service that earns the remuneration and even a wrongful discharge from the service means that wages or salary cannot be earned however ready and willing the employee may be to serve and however much he stand by his contract and decline to treat it as discharged by breach…
His only remedy is in unliquidated damages for wrongful dismissal…
Some difficulty has been felt in saying what is the service which carries wages. The wages are an incident to the subsisting relationship of master and servant. A master who sends his servant upon a holiday on full pay can be sued for wages under the contract, although not on a common count for work and labour done. They also serve who only stand and wait… But, broadly speaking, it is enough to say that wages are for the service reasonably demanded under a subsisting relationship of master and servant…
In the present case the question for decision is, in substance, whether the general manager of two companies which, without justification, purported to dismiss him from that position can recover wages for a period in which he continued to proffer his service, or must be content with unliquidated damages… in my opinion, the terms include no provision which could take the employment out of the category I have discussed. That is to say, there is nothing in the agreement which makes the payment of salary independent of service…
There is nothing in the special terms of the contract in this case entitling the employee to salary in respect of a period in which he did not serve and, therefore, apart from the effect of the Man Power Regulations, the employee’s remedy would from 29th September 1944 be for unliquidated damages.”
Justice Dixon then considered the impact of the Man Power Regulations and concluded as follows:
“I am afraid that, but for the guidance of authority, I should have regarded the Regulations as attempting to prevent the unpermitted discharge of a man from employment only by penalizing it and not as making the relationship legally infrangible. But I think that we should apply the two [English] decisions I have mentioned to the Man Power Regulations…
I am, therefore, of opinion that we should hold that the employee in the present case is entitled to salary or remuneration until the Man Power Regulations went out of operation.”
Justices Rich, McTiernan and Williams agreed with Justice Dixon. Chief Justice Latham and Justice Starke dissented, but only on the impact of the Man Power Regulations.
The decision of the majority in Automatic Fire Sprinklers v Watson insofar as it concerns the impact of the Man Power Regulations is no longer good law. This point was explained by the Full Bench of the Commission in Metropolitan Fire and Emergency Services Board:[35]
“This aspect of the majority’s judgment in Automatic Fire Sprinklers is no longer good law. In Byrne, the majority (Brennan CJ, Dawson and Toohey JJ) preferred (at 428) the reasoning of the minority (Latham CJ and Starke J) on this point:
‘There is no reason to doubt that in the present case the dismissal of the appellants by the respondent rightly or wrongly put an end to the employment relationship. In Automatic Fire Sprinklers Pty Ltd v Watson the majority felt constrained by authority to say that the regulation in question prevented that from happening. We are bound to say that we prefer the reasoning of the minority to the contrary on the point. As Latham CJ said: ‘the fact that a statute prohibits the doing of an act under a penalty does not show that the act cannot be done’. Indeed, as Mason J said in Yango Pastoral Company Pty Ltd v First Chicago Australia Ltd:
‘There is much to be said for the view that once a statutory penalty has been provided for an offence the rule [role?] of the common law in determining the legal consequences of commission of the offence is thereby diminished.’”
In the present case, the Training Contract did not confer on Ms Sanders any right to the payment of wages or remuneration. So much is apparent from the obligation in the Training Contract for Skilled to “meet all legal requirements … including … payment of wages and conditions under the relevant employment arrangements”.[36] Ms Sanders’ entitlement to the payment of wages arose under the Employment Contract and the Enterprise Agreement. Both of those instruments make clear that the service which Ms Sanders must provide to become entitled to wages is the performance of work (measured in hours).[37] Accordingly, under the work-for-wage bargain to which Ms Sanders was a party, she needed to perform work in order to become entitled to wages. It was not enough for Ms Sanders to be ready, willing and able work. Ms Sanders did not perform work for Skilled or any of its clients in the period from 10 March 2023 to 16 August 2023.
I do not accept the argument put on behalf of Ms Sanders that Skilled waived the usual requirement for her to perform work in order to earn wages when Skilled directed Ms Sanders not to attend work and training in the period from 10 March 2023 to 22 May 2023.[38] Skilled did not inform Ms Sanders, explicitly or implicitly, that she was not required to perform work to become entitled to wages during the period in question. Skilled stood Ms Sanders down under clause 22 of the Enterprise Agreement and exercised its discretion under that clause to make some payments to Ms Sanders during the period of her stand down. Although I have concluded that Skilled did not have the right to stand Ms Sanders down during her traineeship, it could not be concluded on the facts of this case that Skilled waived the requirement for Ms Sanders to perform work in order to earn wages.
Ms Sanders did perform work for 3.5 hours on 17 August 2023 when she attended the Mine and undertook competency assessments. Ms Sanders has not been paid for that work. I am satisfied that Ms Sanders is entitled under both the Employment Contract and the Enterprise Agreement to payment of her wages for 3.5 hours’ work on 17 August 2023.
I do not accept Skilled’s argument that it should be entitled to set-off the wages earned by Ms Sanders on 17 August 2023 against the wages she was provided between 10 March 2023 and 22 May 2023. Skilled contends that those wages have unjustly enriched Ms Sanders – no service was rendered in exchange. Skilled also contends that the “equity, good conscience and the merits of the matter”[39] means that set off should operate on the Commission’s findings in the exercise of its arbitral power.
Skilled did not inform Ms Sanders that it would or might seek to set-off the payments (in the nature of wages) made to her in the period from 10 March 2023 to 22 May 2023 against her future entitlements to wages. The payslips provided to Ms Sanders in respect of this period of time simply refer to the payment of ‘ordinary time’ or ‘flat hourly rate’.[40] Skilled had the right to seek a suspension of Ms Sanders’ traineeship by the Commissioner for Vocational Training. It did not pursue this option, at least not to finality. Instead, Skilled stood Ms Sanders down, thereby effectively suspending the traineeship. As noted above, Skilled had no right to do this, but even assuming that Skilled was exercising an enforceable right to stand Ms Sanders down under clause 22.1 of the Enterprise Agreement, it had a choice under that provision to ‘refuse payment’ during the period of the stand down. Skilled made an informed and conscious decision to make payments (albeit at the lower base rate of pay) to Ms Sanders during the stand down period. Not surprisingly, Ms Sanders used the payments made to her during that period to pay for living expenses and repay her mortgage. Having regard to all the circumstances, I am satisfied that it would be unjust, unfair and contrary to equity, good conscience and the merits of the matter to permit Skilled to set-off the wages earned by Ms Sanders on 17 August 2023 against the payments (in the nature of wages) it voluntarily made to her in the period from 10 March 2023 to 22 May 2023.[41]
Because Ms Sanders has not pursued a claim for unliquidated damages as part of this Dispute, I do not need to consider whether she had mitigated her loss, or acted reasonably to do so, or whether she was ready, willing and able to work for Skilled in the period from 10 March 2023 to 22 May 2023.
Conclusion
For the reasons given, I determine by arbitration that:
(a)Ms Sanders is not entitled to wages, or a payment in the nature of wages, in respect of the period from 10 March 2023 to 16 August 2023; and
(b)Ms Sanders is entitled to the payment of wages for the 3.5 hours’ work she performed on 17 August 2023. If there is any dispute about the quantum of the payment to be made by Skilled to Ms Sanders in respect of this debt, the matter may be relisted for conciliation and potentially arbitration.
DEPUTY PRESIDENT
Appearances:
Mr K Endacott, Industrial Officer of the CFMMEU, for the Applicant
Mr L Howard, Counsel, for the Respondent
Hearing details:
2023.
Newcastle
1 November.
[1] (2014) 253 CLR 169 at [1]
[2] s 7(1) & (2) of the A & T Act
[3] s 7(3) of the A & T Act
[4] s 7(5) of the A & T Act
[5] s 21 of the A & T Act
[6] s 9 of the A & T Act
[7] s 12 of the A & T Act
[8] s 13 of the A & T Act
[9] s 14 of the A & T Act
[10] s 14 of the A & T Act
[11] s 15(1)(e) of the A & T Act
[12] s 17 of the A & T Act
[13] s 22 of the A & T Act
[14] s 39 of the A & T Act
[15] s 41 of the A & T Act
[16] s 51 of the A & T Act
[17] s 52 of the A & T Act
[18] Court Book at p 137
[19] Ex R3
[20] Court Book at pp 474-476 and Ex R5
[21] Court Book at pp 353-358
[22] Court Book at pp 370-378
[23] Court Book at p 159
[24] Court Book at p 162
[25] Court Book at p 235
[26] Skilled’s submissions accept that the Training Contract imposed these obligations on Skilled: Court Book at pp 287-8 [19(b)]
[27] Ex R3
[28] Court Book at pp 475-6
[29] s 52 of the A & T Act
[30] Byrne v Australian Airlines Ltd (1995) 185 CLR 410 at 420-421
[31] Court Book at p 470 [24]
[32] Ibid
[33] Byrne v Australian Airlines Ltd (1995) 185 CLR 410 at [15]
[34] (1946) 72 CLR 435
[35] [2017] FWCFB 4878 at [25]
[36] Court Book at p 340
[37] Clauses 1(g) and 2(e) of the Employment Contract; clause 8.1 of the Enterprise Agreement
[38] Csomore v Public Service Board of New South Wales (1986) 10 NSWLR 587 at 595; Grady v The Commissioner of Railways (New South Wales) (1935) 53 CLR 229 at 233
[39] Sections 577(a) and 578(b) of the FW Act
[40] Court Book at pp 253-264
[41] David Securities Pty Ltd v Commonwealth Bank of Australia (1992) 175 CLR 353
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