Training arrangement

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Employment limited to the duration of a training arrangement

Contains issues that may form the basis of a jurisdictional issue

The Fair Work Commission cannot consider whether an employee's dismissal was unfair if the employee's employment was limited to the duration of a training arrangement and the employment ceased at the end of that arrangement.^[1]

A training arrangement is defined by the Fair Work Act 2009 as 'a combination of work and training that is subject to a training agreement, or a training contract, that takes effect under a law of a State or Territory relating to the training of employees.'^[2]

The Commission will consider whether the employee was employed under a training arrangement and whether the employment was limited to the duration of the training agreement.^[3]

The employer has the responsibility to prove that the employee was employed under a training arrangement and the employee's employment was terminated at the end of that arrangement.^[4]

If an employee is covered by an employment contract prior to being offered a training arrangement, the Commission will consider the employment contract separately to the training arrangement.^[5] The employment relationship may continue even if the training arrangement has ended.^[6]

Training arrangements can be distinguished from vocational placements. A vocational placement is a placement where the person is not entitled to be paid, is undertaken as a requirement of an education or training course and is authorised under a law or administrative arrangement.

Employees on a vocational placement are not covered by the federal industrial relations system as they are excluded from the definition of a national system employee.^[7]

Case examples

Employment NOT limited to the duration of a training arrangement

Early termination

Turner v Mindar Holdings Pty Ltd T/A JTS Ladies & Mens Hairstylists [2011] FWA 8087 (Williams C, 29 November 2011).

It was accepted that the applicant's employment was limited to the duration of a training arrangement, which was expressed to last 36 months from a specified date. However, because the training arrangement was terminated by the employer well before the 36 month period expired, the training arrangement exclusion was held not to be applicable.

Pre-existing employment relationship

Anderson v TDK Investment P/L ATF Frost Family Trust PR968518 (AIRC, Thatcher C, 9 February 2006).

The applicant was employed as a store manager before agreeing to a traineeship. Soon after commencing the traineeship, the employee was advised that she would be expected to pay $500 in fees for the traineeship, and as a result the traineeship contract was cancelled. The employee ceased employment with the employer. It was held that the employment relationship was separate to and not limited in duration by the training contract, having commenced before the training contract and being intended to continue after it.

Employment continues after traineeship

Merrett v Fairlane Pty Ltd t/as The Gourmet Bakehouse PR904455 (AIRC, Eames C, 22 May 2001).

Upon the completion of the traineeship, the employee continued to be employed and paid adult wages for some weeks prior to termination. . It was held that the termination of the employment occurred after the completion of the traineeship and therefore training arrangement exclusion did not apply.

References

^[1] Fair Work Act s.386(2).

^[2] Fair Work Act s.12.

^[3] Anderson v TDK Investment P/L ATF Frost Family Trust, PR968518 (AIRC, Thatcher C, 9 February 2006) at para. 6.

^[4] ibid., at para. 20.

^[5] Kinniburgh v Printers Press Pty Ltd T/A Print City, Print P6340 (AIRC, Watson SDP, 30 October 1997).

^[6] ibid.

^[7] Fair Work Act s.13. See also Sharp v J.S. Plumbing Pty Ltd T/A Salmon Plumbing [2011] FWA 7076 (Cribb C, 21 October 2011) at para. 28.

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Last updated

15 January 2020

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