Simon v Ingleburn Sheet Metal Pty Limited [2004] NSWIRComm 1127 (17 December 2004)

Last Updated: 12 January 2005

NEW SOUTH WALES INDUSTRIAL RELATIONS COMMISSION

CITATION : Simon v. Ingleburn Sheet Metal Pty Limited [2004] NSWIRComm 1127

FILE NUMBER(S): 3892

HEARING DATE(S): 14/12/2004

DECISION DATE: 17/12/2004

PARTIES:

APPLICANT

Gary Simon

RESPONDENT

Ingleburn Sheet Metal Pty Limited

JUDGMENT OF: Connor C

LEGAL REPRESENTATIVES

APPLICANT

applicant appeared in person

RESPONDENT

Elizabeth Dalyell

Kell The Lawyers

CASES CITED: Papantoniou v. Bestway Marble and Granite Pty Limited [2004] NSWIRComm 1112

Barclay v. MacMichael (1952) AR 462

Hill v. Buckley (1948) AR 377

LEGISLATION CITED: Industrial Relations Act 1996

Industrial and Commercial Training Act 1989

JUDGMENT:

INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

CORAM: CONNOR C

Friday, 17 December, 2004

Matter No IRC 3892 of 2004

Gary Simon and Ingleburn Sheet Metal Pty Limited

Application under S.84 of the Industrial Relations Act, 1996

PRELIMINARY DECISION

[2004] NSWIRComm 1127

1 Pursuant to the provisions of Part 6, Unfair Dismissals, of Chapter 2, Employment [Ss.83 to 90] of the 1996 Industrial Relations Act, Mr Gary Simon has lodged an application concerning the termination of his services as a fabricator with Ingleburn Sheet Metal. Mr Simon commenced working for Ingleburn Sheet Metal on Thursday, 11 December, 2003. His services were terminated on or about Monday, 7 June, 2004 - and because he lodged his Part 6 application on Friday, 2 July, 2004 his claim is outside the 21 day time limit prescribed by S.85(1). Mr Simon has claimed in his Part 6 application that the termination of his services was unfair and he has sought monetary compensation over it.

2 The matter was allocated to me and it was the subject of a preliminary hearing before me on Tuesday, 24 August, 2004 in the Commission’s premises in 90 Crown Street, Wollongong. Conciliation failed to settle Mr Simon's Part 6 application and I programmed it for arbitration. The status of Mr Simon when he worked for Ingleburn Sheet Metal - as an apprentice or an employee - is an issue of some substance to resolve and I addressed it as a threshold issue in a hearing on Tuesday, 14 December, 2004 (in Wollongong). Ms Dalyell represented Ingleburn Sheet Metal in the hearing. A solicitor (Mr Milson) had represented Mr Simon during the conciliation and programming of this matter. He did not subsequently provide any notice that he was ceasing to act for Mr Simon but that is the position. I understand that Mr Simon was unable to obtain the assistance of legal aid to present his Part 6 claim and ultimately he was represented by his mother in the hearing on Tuesday, 14 December, 2004.

3 S.83(3) limits the jurisdiction for Part 6 applications as far as apprentices are concerned. It reads as follows:

"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)..."

In those circumstances, the status of Mr Simons when he worked for Ingleburn Sheet Metal is crucial to my jurisdiction: if he were engaged as an apprentice, he would not fall under Part 6.

4 As I indicated in my unreported decision of Wednesday, 10 November, 2004 in Papantoniou v. Bestway Marble and Granite Pty Limited [Matter No.IRC 6923 of 2003 at p.2], indentured or trainee apprentices are in a special relationship, regulated under the Industrial and Commercial Training Act: they are not employees and the remedies which flow from Part 6 are expressly excluded for them by S.83(3). The rationale for apprenticeship is not primarily employment for which a wage is paid but training in a particular skill. Apprenticeship invariably produces a reduced level of remuneration and the quid pro quo for that reduced level of remuneration is the training in certain skills which the apprentice receives.

5 Mr Simon was a student at Batemans Bay High School. He responded to an advertisement placed by Ingleburn Sheet Metal in the high school daily bulletin on Tuesday, 25 November, 2003, viz:

"...A four year apprenticeship in sheet metal and light fabrication is available starting next year 2004..."

And he commenced his engagement with Ingleburn Sheet Metal on Thursday, 11 December, 2003. Originally he was engaged as an employee but his purported apprenticeship period commenced on Monday, 5 January, 2004. Mr Simon worked under the supervision of a tradesman, learning the manufacture of air conditioning ducts and performing general sheetmetal work. He commenced a course in engineering at the Canbera Institute of Technology on Tuesday, 10 February, 2004. But he apparently did not always attend that course.

6 Mr Simon's services were terminated on Thursday, 10 June, 2004. The employment separation certificate which Mr Simon was provided when his services were terminated records that the termination of his services arose because of his unsatisfactory work performance, viz:

"...Attendance at TAFE unsatisfactory. Arrive late/leave early to work or no attendance at all. Not following instructions when directed..."

Mr Simon's disputes those allegations. (That remains the substantive argument between the parties and it is a matter which must be addressed in subsequent proceedings, depending upon the resolution of this jurisdictional issue now before me.)

7 But Mr Simon also denies that he was actually engaged as an apprentice by Ingleburn Sheet Metal. A letter which Ingleburn Sheet Metal provided to Mr Simon on Thursday, 29 April, 2004 seems to confirm the fact that Mr Simon was engaged as an employee. That letter reads simply as follows:

"...This is to state that Garry Simon has been an employee of Ingleburn Sheet Metal Pty Limited since Thursday, 11 December, 2003 and has a gross weekly wage of $279.00 for this period..."

My emphasis. Ms Dalyell suggested to me that I should not be influenced by that letter: its purpose was to identify the weekly wage that Mr Simon received and the word "employee" contained in the letter was not intended to establish an employment relationship in a legal sense between Mr Simon and Ingleburn Sheet Metal.

8 Mr Simon had initially applied for the position of apprentice advertised in the school bulletin, attended a course in engineering and signed an apprenticeship training plan. Ingleburn Sheet Metal had also signed an "Employer Sponsorship Authority" and paid for two semesters for Mr Simon for his engineering course. Those are all pointers to the true nature of his engagement with Ingleburn Sheet Metal, ie as an apprentice. I am satisfied that in the first place it was both the intention of Mr Simon and Ingleburn Sheet Metal to engage Mr Simon as an apprentice and not an employee. Clearly, Ingleburn Sheet Metal was proceeding on the assumption that an apprenticeship relationship had been created. So too, I believe, was Mr Simon, despite the views expressed by his mother in her submissions to me on Tuesday, 14 December, 2004. But was an apprenticeship actually created?

9 At the time that Mr Simon's services were terminated, his indentures had not been signed: there was a delay in that respect for what Ms Dalyell described as "...logistical reasons..." and because of problems Ingleburn Sheet Metal perceived in Mr Simon's attendance at the engineering course and his absences from work. The question is whether what was clearly a de facto apprenticeship is sufficient to bring it under the exception in S.83(3).

10 I accept that there may still be a proper apprenticeship formed notwithstanding the fact that all the formal requirements for apprenticeship, ie the signing of the necessary indentures or traineeship documents, are not completed at the point that the services are terminated. Retrospective approval of an apprenticeship may still be valid [Barclay v. MacMichael (1952) AR 462]. But that approval, among other things, is dependent upon the written consent of the purported apprentice and Mr Simon is apparently not now willing to give such written consent. As I understand the position, it is only with the signature of the apprentice on the indentures which gives an apprenticeship its effect. Without the completion of the indentures or the traineeship documents and the consent of the purported apprentice, any such apprenticeship would be both a nullity and something which it would not be possible to be retrospectively corrected. That would be the position in spite of what was so clearly the intention of the parties from the outset.

11 No person may be bound as an apprentice unless and until he has formally committed himself to be so bound. And that must inevitably mean that any purported apprentice in such a situation would be categorised as an employee for the purposes of S.84(1) and consequently within jurisdiction under Part 6. Kinsella J of the former State Industrial Relations Commission in Hill v. Buckley (1948) AR 377 summarised the position (at p.380) as follows:

"...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'..."

12 For that reason, I conclude that Mr Simon was not an apprentice for the purposes of S.83(3) and - and cannot now be made one. Consequently, his Part 6 application falls within jurisdiction because I believe I am obliged to regard the period he worked with Ingleburn Sheet Metal as a contract of employment. I propose to list this matter for a further mention for further programming at 9.00am on Wednesday, 9 February, 2005 (in Wollongong) in the light of this preliminary decision.

P J CONNOR

Commissioner

LAST UPDATED: 17/12/2004