An overview of legal procedure & case law
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]
[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.