VIC Skilled Adult Apprentices and Employment Contract - Entitled to Higher Pay?

[aussie_64]

Hi,
My wife, who's 50 years old, last year signed an employment contract (full-time) with her former employer (Winery/Restaurant) and three months later entered into a training agreement (apprenticeship) with the same employer. When she decided to quit in February this year due to a breakdown caused by her working very long hours (60-65 hours/week), she discovered she could not even receive any compensation (excessive overtime, missing breaks and days off) since the applicable minimum wage would be the apprentice's one!

Now, how is it possible that entering into a training agreement, with the only purpose to acquire "formal" qualifications (like a Certificate IV – no more than a piece of paper) and NOT skills she already had, may affect your previous status and your pay for the worse? She effectively performed all the duties a chef would perform and, in all respects, her level was equivalent to a “Cook grade 4” (Restaurant Industry Award 2010).
Could those claims be enforced in a court of law?

Thank you. Any help will be greatly appreciated.

 

[Sarah J]

Hi Aussie_64,

There are a few questions you or your wife need to clarify first:

1. By "compensation", is your wife trying to claim overpay, vacation time and other entitlements? Or monetary damages for anxiety, loss etc?

2. If so, is she claiming under her former (full-time) agreement? As in, does she have unpaid employee entitlements that they have not paid her before she started her traineeship? Or is she claiming under the traineeship agreement?

3. If she believes that her full-time entitlements would be kept and passed on in her traineeship period, then the question is: did your wife enter into a new employment agreement to undertake the traineeship? If so, did her employer tell her what she would effectively be doing? In other words, did your wife know that she was effectively terminating her full-time agreement and was entering into a new agreement?

I am not familiar with employment law, but if you haven't already done so, try and contact the Fair Work Ombudsman. They a free service that offers advice and dispute resolution services for disputes between employers and employees. They have limited jurisdiction but they may be able to help your wife or refer her on to someone who can help. This would be a cheaper option to suss out if your wife has any statutory grounds for her situation.

 

[aussie_64]

Hi Sarah, thanks for your reply.
Her employer didn't tell her anything at all! That's the first problem.
As I mentioned in my post, we've already tried Fair Work Ombudsman: the mediation was totally useless, a farce.
I understand all that you're saying but my point here is: she is trying to claim overpay under her previous agreement; is there any possibility for her skills to be acknowledged and, if so, for her to be entitled to a higher pay rate? In other words: it doesn't make any sense to me that someone is paid as unskilled and unqualified if they can perform exactly the same tasks qualified workers would do! No matter what agreement they're under! Is there any chance this could be enforced in a court of law?

 

[Sarah J]

Hi aussie_64,

I am not familiar with employment law as it's not my area of expertise. It would be best to contact an employment lawyer for a preliminary consultation. Have you tried your local community legal centre (or Fitzroy which has drop-in sessions)?

Being overqualified for a job would not itself entitle her to more pay as she was undergoing training as part of her traineeship. People enter into jobs that they are overskilled for all the time. However, there may be an argument in that she did not agree or even understand that she was being "let go" from her full-time position for a lesser paid training position. Her employer should have explained this to her at the beginning (or given her paperwork/contracts for her to read through and an opportunity to give her full consent) before getting her to sign. In other words, you may have an action in (i) the conduct of the employer; and (ii) your wife did not understand what she was signing to get out of the second training contract. The fact that she's accepted a lesser paid training contract that she is overskilled for when in fact she is doing the same work may be evidence toward those two points.

Questions:

• did her fixed-time contract have a fixed duration (e.g. three months)?
• what exactly were the circumstances that led to her signing a second contract?
• if she had not signed the second contract, would her first contract still be in place? (for this, read your wife's two employment contracts)
• if your wife was not told what she was signing, then you'll need to figure out exactly what she was told, at the time and leading up to the signing of the second contract. And then, was she given a copy of the contract to look over? If so, did it specify the level of pay, entitlements, that this would terminate the first contract (if the first contract was for a fixed term duration)?

There may be other actions under the employment act or employment law so best to contact an employment lawyer about this. Must of it will depend on the circumstances surrounding the signing and the content of the two contracts.

 

[aussie_64]

Thanks Sarah for your clarifications and suggestions.
I will certainly follow your advice.
Happy Easter.

 

[Rod]

Find out what award your wife was on as an apprentice. The FWO should have told you what pay rates your wife would have been on. Some awards have special provisions and possibly different pay rates for Adult apprentices.

I agree with Sarah in that being over qualified does not entitle her to higher wages.

Does she have payslips? Is there accurate accounting for overtime?

 

[aussie_64]

Hi Rod,

She does have payslips but there is no mention of overtime in any of them!

 

[Rod]

Did she clock-in and out?

Keep a weekly roster?

 

[aussie_64]

Unfortunately she didn't clock-in and out (nor any other kitchen staff did).
The employer didn't keep an official weekly roster either! A lot of irregularities, I can tell you.

 

[Rod]

OK, not good for your wife. You need proof otherwise no-one will listen to the claim.

What award was she under? And did the FWO say she was underpaid?