It is important to understand that there are 2 aspects to consider when it comes to terminating the employment of an apprentice/trainee:
a. their general rights under the Fair Work Act; and
b. their rights under the particular apprenticeship/training legislation of each state.
Under the Fair Work Act, an apprentice is not able to commence a statutory unfair dismissal claim if their employment was limited to the term of the apprenticeship/traineeship and ends at the conclusion of that term. They are also subject to the standard minimum employment period requirement. So, if an apprentice/trainee is dismissed within the first 6 or 12 months of their employment (depending on whether the employer has 15 or more employees or less than 15, including any related businesses), they are unable to bring a statutory unfair dismissal claim.
Apprentices/trainees are otherwise in the same position as any other employee so they are able to commence a breach of general protections claim if there is some evidence that their termination had something to do with their workplace rights. Employers should also note that industrial awards may contain specific provisions about terms and conditions of employment and payrates for apprentices/trainees (and the Miscellaneous Award will apply if there is no specific award).
Quite separate to their rights under the Fair Work Act, the employer and apprentice/trainee are subject to state or territory apprenticeship/training laws. The comments made in this bulletin relate specifically to Queensland arrangements but similar principles exist in other states. Training contracts impose separate obligations to the general laws of employment and must be registered. In Queensland, the Department of Employment, Small Business and Training is an integral part of the training relationship. For example, disciplinary action (including reprimands and fines) can be taken by the Department for breach of obligations. This may include action against an apprentice/trainee for certain forms of misconduct. There is also a probationary period (which generally varies between 30 and 90 days) during which either party can terminate the training contract.
A training contract can be cancelled by agreement of the parties (subject to a cooling off period) and must be lodged with the Department. However, neither the employer nor the apprentice/trainee can unilaterally terminate a training contract. The Department can cancel a training contract at the request of one party in a range of circumstances which includes if there has been a substantial change in circumstances making it unlikely the contract will be completed. The Department must provide the parties with written notice of the proposed reasons for cancellation and give 14 days for a response before making a decision to cancel the training contract. Until a decision is made, the training contract is still binding and both the employer and apprentice/trainee must continue to honour their obligations. This includes continuation of employment, training and payment of wages. If either the employer or apprentice/trainee disagree with a decision made by the Department about the cancellation of a training contract, they can lodge an appeal with the Queensland Industrial Relations Commission in a limited range of circumstances. A complaint can also be lodged with the Department (but not if an appeal has already been lodged with the QIRC).
It should be clear that an apprenticeship/traineeship is not something to be entered into lightly by either an employer or apprentice/trainee and parties should take care to understand their rights and responsibilities under these arrangements. The separate nature of obligations under employment legislation (the Fair Work Act for private sector employers) and the state apprenticeship/training legislation should also be understood. Further information can be found through the Fair Work Ombudsman website – www.fairwork.gov.au and the training authority in each state and territory. In Queensland, go to https://desbt.qld.gov.au/training.
Please contact us if you would like any further help.