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Workplace Relations Amendment (Work Choices) Bill 2005

Schedule 3 School-based apprentices and trainees

   

Workplace Relations Act 1996

1  After Part XVI

Insert:

Part XVII School-based apprentices and trainees

Division 1 Preliminary

550   Definitions

                   In this Part:

additional condition means a condition under a wage instrument other than a rate of pay.

employee means an individual so far as he or she is employed, or usually employed, as described in the definition of employer in this section, by an employer, except on a vocational placement.

employer means:

                     (a)  a constitutional corporation, so far as it employs, or usually employs, an individual; or

                     (b)  the Commonwealth, so far as it employs, or usually employs, an individual; or

                     (c)  a Commonwealth authority, so far as it employs, or usually employs, an individual; or

                     (d)  a person or entity (which may be an unincorporated club) so far as the person or entity, in connection with constitutional trade or commerce, employs, or usually employs, an individual as:

                              (i)  a flight crew officer; or

                             (ii)  a maritime employee; or

                            (iii)  a waterside worker; or

                     (e)  a body corporate incorporated in a Territory, so far as the body employs, or usually employs, an individual; or

                      (f)  a person or entity (which may be an unincorporated club) that carries on an activity (whether of a commercial, governmental or other nature) in a Territory in Australia, so far as the person or entity employs, or usually employs, an individual in connection with the activity carried on in the Territory.

full-time apprentice means a person employed on a full-time basis who is recognised, under the wage instrument that covers his or her employment, as an apprentice.

full-time trainee means a person employed on a full-time basis under a training arrangement who is not a full-time apprentice.

school-based apprentice means an employee:

                     (a)  whose employment is part of a school-based training arrangement; and

                     (b)  who would, if employed full-time under a training arrangement to do the same kind of work, in the same location and for the same employer, be a full-time apprentice.

school-based trainee means an employee, other than a school-based apprentice, whose employment is part of a school-based training arrangement.

school-based training arrangement means a training arrangement undertaken as part of a course of secondary education.

State or Territory training authority means a body authorised by a law or award of a State or Territory for the purpose of overseeing arrangements for the training of employees.

training arrangement means a combination of work and training that is subject to a training agreement or a training contract between the employee and employer that is registered:

                     (a)  with the relevant State or Territory training authority; or

                     (b)  under a law of a State or Territory relating to the training of employees.

wage instrument means:

                     (a)  an award (as defined in subsection 4(1)), but not including:

                              (i)  an order under section 120A; or

                             (ii)  an award under section 170MX; or

                     (b)  a law, or a provision of a law, of the Commonwealth, being a law or provision that is specified, or is of a kind specified, in regulations made for the purposes of this paragraph; or

                     (c)  an instrument made under a law, or a provision of a law, of the Commonwealth, being an instrument that is specified, or is of a kind specified, in regulations made for the purposes of this paragraph; or

                     (d)  a State award (as defined in subsection 4(1)); or

                     (e)  a law, or a provision of a law, of a State or Territory, being a law or provision that entitles employees, or a particular class of employees, to payment of a particular rate of pay; or

                      (f)  a law, or a provision of a law, of a State or Territory, being a law or provision that is specified, or is of a kind specified, in regulations made for the purposes of this paragraph; or

                     (g)  an instrument made under a law, or a provision of a law, of a State or Territory, being an instrument that is specified, or is of a kind specified, in regulations made for the purposes of this paragraph.

work on-the-job , in relation to a school-based apprentice or school-based trainee, means work that contributes directly to the productive output of the employer of the school-based apprentice or school-based trainee.

Note:          So, for example, time spent studying or in other off-the-job training or education would not be work on-the-job for the purposes of this Part.

Division 2 Concurrent operation of State and Territory laws

551   Concurrent operation of State and Territory laws

                   This Part does not apply to the exclusion of a law of a State or Territory to the extent that the law is capable of operating concurrently with this Part.

Division 3 School-based apprentices

552   Pay for school-based apprentices

Rate of pay is an hourly rate for work on-the-job

             (1)  The rate of pay for a school-based apprentice is an hourly rate paid only for hours worked on-the-job and calculated using the formula:

where:

full-time first-year apprentice hourly rate means:

                     (a)  the hourly rate of pay specified, in the applicable wage instrument, for a full-time first-year apprentice doing the same kind of work, in the same location and for the same employer as the school-based apprentice; or

                     (b)  if the rate of pay specified in the applicable wage instrument is not an hourly rate—that rate converted into an hourly rate.

This section does not limit pay

             (2)  To avoid doubt, this section does not operate to prevent the school-based apprentice from receiving a rate of pay more generous than the rate calculated in accordance with subsection (1).

School-based apprentices not covered by this section

             (3)  This section does not apply to a school-based apprentice if:

                     (a)  a wage instrument covers the work of the school-based apprentice; and

                     (b)  the wage instrument specifies the rate of pay for the school-based apprentice; and

                     (c)  the wage instrument does so by making specific provision for school-based apprentices.

553   Additional conditions for school-based apprentices

Additional conditions adjusted as necessary

             (1)  A school-based apprentice is entitled, in accordance with subsection (2), to any additional conditions (the full-time conditions ) to which a full-time apprentice doing the same kind of work, in the same location and for the same employer would be entitled.

             (2)  The school-based apprentice is entitled to the full-time conditions adjusted as necessary in proportion to the hours worked on-the-job by the school-based apprentice.

             (3)  For the purposes of subsection (2), the regulations may determine, or make provision for determining, either or both of the following:

                     (a)  whether particular full-time conditions should be adjusted in proportion to the hours worked on-the-job by the school-based apprentice;

                     (b)  the method for adjusting particular full-time conditions in proportion to the hours worked on-the-job by the school-based apprentice.

This section does not limit additional conditions

             (4)  To avoid doubt, this section does not operate to prevent the school-based apprentice from receiving conditions more generous than those provided by this section.

School-based apprentices not covered by this section

             (5)  This section does not apply to a school-based apprentice if:

                     (a)  a wage instrument covers the work of the school-based apprentice; and

                     (b)  the wage instrument specifies the rate of pay for the school-based apprentice; and

                     (c)  the wage instrument does so by making specific provision for school-based apprentices.

554   Pay for apprentices who were school-based apprentices

             (1)  Subsection (2) applies for the purposes of determining the rate of pay under a wage instrument for a full-time apprentice doing the same kind of work he or she did as a school-based apprentice.

             (2)  The person’s time as a full-time apprentice is taken to include the period calculated using the formula:

where:

time as a school-based apprentice means the time for which the person was a school-based apprentice.

Division 4 School-based trainees

555   Pay for school-based trainees

Rate of pay is an hourly rate for work on-the-job

             (1)  The rate of pay for a school-based trainee is the rate as follows, paid only for hours worked on-the-job:

                     (a)  for a calendar year in which the school-based trainee is enrolled in a Year up to and including Year 11—$7.27 per hour;

                     (b)  for a calendar year in which the school-based trainee is enrolled in Year 12 or a later Year—$7.99 per hour.

This section does not limit pay

             (2)  To avoid doubt, this section does not operate to prevent the school-based trainee from receiving a rate of pay more generous than the rate specified by subsection (1).

School-based trainees not covered by this section

             (3)  This section does not apply to a school-based trainee if:

                     (a)  a wage instrument covers the work of the school-based trainee; and

                     (b)  the wage instrument specifies the rate of pay for the school-based trainee; and

                     (c)  the wage instrument does so by making specific provision for school-based trainees.

556   Additional conditions for school-based trainees

Additional conditions adjusted as necessary

             (1)  A school-based trainee is entitled, in accordance with subsection (2), to any additional conditions (the full-time conditions ) to which a full-time trainee doing the same kind of work, in the same location and for the same employer would be entitled.

             (2)  The school-based trainee is entitled to the full-time conditions adjusted as necessary in proportion to the hours worked on-the-job by the school-based trainee.

             (3)  For the purposes of subsection (2), the regulations may determine, or make provision for determining, either or both of the following:

                     (a)  whether particular full-time conditions should be adjusted in proportion to the hours worked on-the-job by the school-based trainee;

                     (b)  the method for adjusting particular full-time conditions in proportion to the hours worked on-the-job by the school-based trainee.

             (4)  Subsection (2) has effect subject to section 557.

This section does not limit additional conditions

             (5)  To avoid doubt, this section does not operate to prevent a school-based trainee from receiving conditions more generous than those provided by this section.

School-based trainees not covered by this section

             (6)  This section does not apply to a school-based trainee if:

                     (a)  a wage instrument covers the work of the school-based trainee; and

                     (b)  the wage instrument specifies the rate of pay for the school-based trainee; and

                     (c)  the wage instrument does so by making specific provision for school-based trainees.

557   Loading in lieu of certain conditions

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

             (2)  The loading is payable for all hours worked on-the-job and is calculated using the formula:

where:

hourly rate means the hourly rate paid to the school-based trainee apart from this section.

Note:          The loading does not compensate for work done on a public holiday. A school-based trainee who works on a public holiday would be paid the applicable hourly rate for such work.

Division 5 Enforcement

558   Enforcement

                   Part VIII has effect, in relation to a school-based apprentice or a school-based trainee who is entitled to be paid, or provided additional conditions, in accordance with subsection 552(1), 553(2), 555(1) or 556(2), as if the subsection were a term of an award:

                     (a)  that bound the employer of the school-based apprentice or school-based trainee; and

                     (b)  to which the employment of the school-based apprentice or school-based trainee was subject.