Hynes & Auscro Pty Limited [2001] NSWIRComm 1039 (7 June 2001)

Last Updated: 31 January 2002

INDUSTRIAL RELATIONS COMMISSION

OF NEW SOUTH WALES

CORAM: CONNOR C

Thursday, 7 June, 2001

Matter No. IRC 126 of 1999

IN THE MATTER of a claim for relief relating to the dismissal of Dane Roland Hynes by Auscro Pty. Limited.

D E C I S I O N

Mr D R Hynes was engaged as an apprentice pastrycook by Auscro Pty Limited. His services terminated from that position on Wednesday, 10 September, 1998 and, pursuant to the provisions of Part 6, Unfair Dismissals, of Chapter 2, Employment [Ss.83 to 90] of the 1996 Industrial Relations Act, he lodged an application with the State Industrial Registrar. In his Part 6 application he sought his reinstatement, re-employment or, alternatively, monetary compensation in lieu thereof.

Mr Hynes lodged his Part 6 application on Monday, 12 January, 1999, ie substantially outside the 21 day time limit prescribed by S.85(1). More importantly, in this State an indentured or trainee apprenticeship is a special relationship, regulated by the provisions of the 1989 Industrial and Commercial Training Act. They are not in the same position as other employees. The remedies for unfair dismissal are not available to trainees or apprentices. S.83(3) makes that situation clear, viz:

"This Part does not apply to the dismissal of any such employee who is an apprentice or trainee (within the meaning of the Industrial and Commercial Training Act, 1989)..."

An indentured apprenticeship is a special relationship, regulated under the Industrial and Commercial Training Act. He is not in the same position as other employees and the remedies which flow from Part 6 are expressly excluded for him.

However, that was not necessarily the end of the matter. Whilst Mr Hynes was engaged and paid as an apprentice pastrycook, his indentures had not been completed. Enquiries revealed that registration forms had been forwarded to Auscro but they had not been completed and returned and, consequently, Mr Hynes's apprenticeship had not been registered. That clearly affects Mr Hynes's status to this extent: if he is not an indentured apprentice, he still performed work for Auscro as an employee and, as such, would be within jurisdiction under Part 6.

I have in mind the type of approach taken by Kinsella J of the former State Industrial Commission in Hill v. Buckley (1948) AR 377 at p.380, viz:

"...It was contended in the court below that this belated approval of the Apprenticeship Council gave retrospective validity to an arrangement between the employer and employee which previously had been illegal. The magistrate rejected this contention and rightly did so. Where an act or transaction is expressly forbidden by law unless certain requirements have first been complied with, the act or transaction done or undertaken without such compliance is a nullity from its inception, and nothing exists in the eyes of the law which is capable of revival by a subsequent compliance with requirements. The Chief Industrial Magistrate accurately and adequately summarised the position when he said: `The employee was never, in fact or in law, an apprentice or a probationer..."

Without the approval of the Commissioner for Vocational Training or the Board under S.27 of the Industrial and Commercial Training Act, no valid apprenticeship relationship may legally be created in this State, although in Barclay v. MacMichael (1952) AR 462 the Full Bench of the State Industrial Commission (Taylor P, Webb and DeBaun JJ) took the view (at pp.470 and 471) that an apprenticeship may be retrospectively approved by the apprenticeship council (a precursor of the current statutory bodies). But I do not believe that such approval is likely after the working relationship between a purported apprentice and his employer has concluded.

That having been said, the matter was allocated to me and it was the scheduled for a preliminary hearing before me on Wednesday, 24 February, 1999. There has been an extraordinary delay in processing the matter due to unresolved issues related to workers compensation. Mentions were convened on Friday, 19 March, 1999, Friday, 23 April, 1999, Monday, 10 May, 1999, Monday, 12 July, 1999, Tuesday, 9 November, 1999, Monday, 13 March, 2000, Wednesday, 7 June, 2000, Wednesday, 18 October, 2000, Wednesday, 15 November, 2000, Thursday, 14 December, 2000, Thursday, 15 May, 2001 and Thursday, 7 June, 2001.

Ultimately, I was informed by a letter dated Wednesday, 6 June, 2001 by Mr Grant, who has represented Mr Hynes in the proceedings, that Auscro has:

"...gone out of business, I think into liquidation. This matter has always been pursued and, of course, the owner of the business was the person against whom orders would be made in reality. He has, no doubt, his own funds available. At the mention tomorrow I would seek a listing for an application to have extended the time for adding a new respondent, namely the original owner of the business..."

That application was rejected by Ms Cooke, representing Auscro and the Baking Industry Association of New South Wales in the proceedings. Ms Cooke confirmed that Auscro had ceased trading. She was not able to indicate at that time whether Auscro had actually been placed liquidation and an administrator appointed, but I formed the view that the liquidation was in train. In any event, reinstatement was no longer an option if the business was not trading and, according to Ms Cooke, there were insufficient funds held by Auscro to meet any claim of monetary compensation by Mr Hynes.

It was Auscro that engaged Mr Hynes - either as an apprentice or an employee - and with its demise, Mr Hynes claim fails also. I have no power to lift the corporate veil and sheet home to individual directors of a separate corporate entity responsibility for the debts of that corporate entity [Salomon v. Salomon and Company Limited (1897) AC 22 and Lee v. Lee's Air Farming Limited (1961) AC 12]. I therefore believe that the only appropriate course for me to adopt is dismiss the Part 6 application and I do so.

P J CONNOR

Commissioner