Australian Manufacturing Workers' Union

 

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Apprentices and COVID-19 - know your rights

COVID-19 is an unprecedented challenge to our world. Communities, safety in the workplace, industries, training and skills, your pay: all are in play in the situation we find ourselves in. This web-page sets out specific advice to apprentices. It should be read in conjunction with other advice provided by the union about general pay and conditions matters, and health and safety, as well as advice available from governments, training providers and your employer about the situation confronting all Australians in employment. Above all else though, you should know that you have a right to a safe and healthy work and learning environment.

Your Training Contract

As an apprentice, your Training Contract is a contract between you and your employer for employment and training for the duration of your apprenticeship. Once you have completed your probationary period, the Contract cannot be terminated without the approval of the relevant state/Territory apprenticeship Authority unless both you and your employer agree to terminate it. Your Training Contract outlines your rights and obligations as well as those of your employer. These rights and obligations are in addition to those that apply to all workers. Your Training Contract should identify the duration of the Contract, the trade, the qualification you will study, the hours of work, who will deliver and assess your progress, how and when the training will be delivered, and the Award or Enterprise Agreement that will specify other conditions of employment such as wages, penalty rates, leave etc.

Government Wage Subsidy for Apprentices

The Commonwealth government has made wage subsidies available to employers of apprentices to assist in the retention of workers in this difficult time. Eligible employers can register to receive a 50 percent subsidy for wages paid to apprentices between January to March this year. This will provide urgent financial assistance to help businesses retain their existing apprentices and trainees through the Government’s $1.3 billion Supporting Apprentices and Trainees package. You should check to see if your employer is eligible for the subsidy or ask your AMWU delegate to do that for you. See further details here: https://www.australianapprenticeships.gov.au/node/3940

COVID-19

The AMWU is concerned that some employers may use the COVID-19 pandemic as an excuse to terminate your apprenticeship, stand you down from your apprenticeship without pay, suspend your apprenticeship, reduce your hours of work or rearrange your training schedule or even prevent you from attending your training. Because you are an apprentice, these things cannot be done without discussion. This is because your Training Contract confers special rights upon you as an apprentice. These vary state by state, but the basics are as follows:

Your apprenticeship

Your apprenticeship lasts for the period nominated in the contract, usually 4 years. Most apprenticeships allow for the period of an apprenticeship to be extended or shortened depending on your progress, or in certain circumstances, like you break a leg, or need time off to care for a partner or a sick child.

It is possible for apprentices to be assessed as competent tradespeople before the nominal (usually four year) period. However, in the current circumstances, we are concerned that some employers may be tempted to have you assessed as competent before you’re ready so they can say that you have successfully completed your apprenticeship, then terminate your employment without your agreement.

It may of course be the case that you are a competent tradesperson. In that is the case, well done and welcome to your future! However if you don’t believe that you are competent, or a person who you respect like your AMWU delegate, a tradesperson you work with or your parent or guardian believes that this is not the case, then you are entitled to question that suggestion. To be completed, you must sign the contract off as well as your training provider and your employer. Do not sign if you doubt this; you can seek advice from the State Apprenticeship Authority in your state or territory. Contact information should be listed in your Training Contract. Otherwise go here.

If there is a shortage of work to practice your skills on, your employer may seek to “front load” classroom theory classes. This may also have the advantage of being able to be delivered via technology like Zoom or WhatsApp. Many TAFEs are currently teaching through “virtual classroom” processes, and this has the advantage of also maintaining current social distancing requirements. This sort of training must happen in paid time; you should never accept that time spent in formal training for your trade be unpaid.

Your Rights

Beyond the rights conferred specifically under a Training Contract, the rights of apprentices are no different to the rights that apply to all employees.

If your employer is instructing you to stay at home then your employer should pay you as if you are at work. You cannot be made to take personal leave if you are not unfit for work because of an illness or injury. You should also check to see if you are entitled to the JobKeeper payment, which is a government subsidy for wages paid under certain circumstances. For more information go here.

You cannot be compelled to take annual leave without agreement. You may be directed to take excessive accrued annual leave, but this is unlikely in the case of an apprentice. If you do have excessive leave then there are certain rules that apply before you can be forced to take it. 

The Fair Work Act allows an employer to stand down employees if there is a “stoppage of work for which the employer cannot be held responsible.” A downturn in business does not automatically mean there are grounds for a stand down. If you are sent home but your fellow workers continue to work that may not be a valid stand down, because there is still work to be done.

If the employer cannot have work done because of Government orders, that may become a ‘stoppage’ but it will depend of the type of work, the nature of the government orders and what the circumstances are.

You cannot be asked to do work other than what you have been employed to do. The terms of your employment are determined by the relevant EBA, award and your Training Contract. The employer should treat you with dignity and respect, particularly at a time of crisis such as this.

In most states and territories apprenticeships are regulated by legislation. This generally requires that any variation to the training contract, including a change in the duties performed as specified in the training contract must be applied for by either the employer, the apprentice or both. The changes must be approved. If there is a change to the nature of employer’s business and it effects their ability to provide appropriate work for the apprentice and their ongoing traineeship, they must inform the relevant apprenticeship authority. This is true also if the employer becomes aware of anything else that could jeopardise the training contract.

If your employer qualifies for the JobKeeper scheme, they may have increased rights to stand down employees, direct employees to perform different duties or perform duties at different places and times, and request employees take annual leave (which an employee must not unreasonably refuse). If your employer tries to make you do any of these things, please contact the AMWU for advice and assistance. These measures have been introduced as a short term response to COVID-19, but are only applicable to employers eligible for JobKeeper payments.

There may be circumstances where you may be subject to dismissal. Dismissal is a very serious matter. Generally dismissal is difficult to succesfuly dispute in cases where an apprentice has engaged in serious and willful conduct. Violent behaviour and theft are often quoted as being serious and willful misconduct. You are entitled to dispute an attempt by your employers to dismiss you. You should seek urgent advice from the AMWU if you are dismissed or at risk of dismissal.

If you are dismissed, it is not usual for apprentices be paid redundancy benefits, unless this is provided for by another agreement, but you must be paid all of your existing entitlements including any outstanding wages, including overtime, any accrued annual or long service leave, and other payments/reimbursements associated with your apprenticeship, including fees, travel costs to attend block release and necessary textbooks.

These are unusual times. Covid-19 has exposed our society to some major stresses, not seen in most worker’s lifetimes.

Trade unions are in the fight, demanding fairness for members. The AMWU is standing up for manufacturing, as the engine of growth in this society. We need apprentices like yourself to be trained, and to complete that training, for the future of industry as well as the harnessing of your skills and talents. If you are in need of assistance or have any questions call the AMWU Helpdesk on 1300 732 698.

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