The applicant provided two witness statements together with a range of supporting documents.
The applicant commenced working for the respondent after transferring an existing part-time apprenticeship of only 15 hours a week. The apprenticeship transfer approval process of the Skills Commission did not extend to identification of when the 15 hours would be worked, or how many other hours would be worked for the employer and in what role.
The applicant's evidence is that the respondent offered full-time employment, but that only two days a week were to be the official part-time apprenticeship. Tuesdays were TAFE days, and he was to work on each other day plus Saturdays. The TAFE days were not counted or paid as workdays. Hours of apprenticeship duties were not specified, as all work was treated the same by the respondent.
The applicant's payment for Mondays was to be half of the revenue from the haircuts he did on those days. For Saturdays, payment was cash at the agreed hourly rate of $19, without the Saturday loading. This rate was also paid for work undertaken on Wednesdays, Thursdays and Fridays, with only that work and pay recorded on payslips. The applicant was concerned with this arrangement at the time of transfer but agreed.
The only part of this agreement that was recorded was the 15 hour a week apprenticeship in the transferred training contract.
The applicant's usual hours of work were 7.5 on Mondays; 6.5 at TAFE or the salon on Tuesdays; 7.5 on Wednesdays, Thursdays and Fridays; and 6.5 on Saturdays. These hours exclude unpaid meal breaks. He worked a total of 43 hours a week. His payslips showed annual leave accruals for only 22.5 hours. He took two days of annual leave during the employment.
The applicant tendered a series of 30 text messages between himself and the respondent. These were about issues arising when the applicant was working on all days of the week other than Sundays.
On Mondays, the respondent did not usually attend the business, but she observed the applicant and the other apprentice through surveillance cameras, occasionally giving instructions.
During TAFE breaks, the applicant worked in the business on Tuesdays.
The applicant was paid for 22.5 hours into his bank account and batches of payslips were provided every few months.
The applicant's Monday cuts were recorded by the respondent, but the records were not produced. No record of the cash payments for Mondays was produced. The applicant's best estimate is receiving an average of $50 for Mondays.
There is no record of the hours worked or cash payments for Saturdays, but the applicant says he was paid the hourly rate for 6.5-hour days.
The applicant was required to supply and use his own scissors and tools.
The applicant resigned in writing on 8 December 2024. He did not receive any pay for working on Monday 2 December 2024 or Saturday 7 December 2024. He did receive a final unexplained payment of $1,135 later in December.
The applicant received superannuation contributions of $1,406.08 by 16 December 2024, as verified by his member account statement.
Jacinta Bravington provided a signed witness statement.[2] Ms Bravington attended the respondent's premises in her role as a compliance officer for the SA skills Commission on Tuesday 3 December 2024. Ms Bravington observed the applicant working at that time.
The respondent submitted an unsigned statement, but it was not formally verified in court and the respondent was not available for cross examination. The issues raised in the statement were responded to by the applicant's oral evidence and documents.
The respondent asserted the business did not operate on Mondays, hence Public Holidays falling on Mondays were not relevant.
The respondent's attempt to submit personal references was rejected, as these are irrelevant to the issues for determination.
[2]
I commence my consideration of the dispute by accepting the evidence given by the applicant. The written and unchallenged oral evidence was thorough, precise and well supported by the objective evidence of the text communications and other documents.
Resolution of the issue of the numbers of hours worked each week is aided by s 557C of the FW Act. This provides that allegations of time worked will be accepted, subject to proof to the contrary, if an employer cannot produce mandatory time worked records without reasonable excuse.
I find time records did need to be kept as some entitlements were determined by the number of hours worked and when they were worked. No time records were produced, with no explanation.
As records of the agreed TAFE attendances and Saturday hours are absent, the applicant's allegations of working 6.5 hours on both days will be accepted subject to proof to the contrary. As there is no evidence to the contrary, and the applicant's evidence is accepted as credible, I accept the allegations of the TAFE, and Saturday hours.
Section 557C cannot be used to aid in resolving the dispute over whether any work was performed on Mondays, as no record is consistent with the respondent's defence of no work on any Mondays.
The respondent has asserted only 22.5 hours of employment, with 5.3 hours at TAFE and 4 hours on Saturdays, leaving 13.2 hours to be worked over Wednesdays, Thursdays and Fridays on her version. She has not produced any of her rostering or client booking, nor provided any payment records that would show when the applicant worked.
The respondent's assertions that the business was not open on Mondays and the applicant never worked on Mondays is directly inconsistent with two text messages from her to the applicant about his work on Mondays.
I find the applicant worked 7.5 ordinary hours on each Monday. I accept the applicant's evidence of receiving an average of $50 for Monday work. He is entitled to the difference of $92.50 for each Monday.
It follows that the applicant was entitled to his normal pay of $285 for the two Public Holidays that fell on Mondays when he would otherwise have worked. This basic entitlement is set out by s 114 of the FW Act.
The applicant's evidence of working in the business when TAFE was in recess was supported by the unchallenged observations of Ms Bravington, which I accept.
I find the applicant is owed apprentice wages for all TAFE attendance times. This time is clearly specified as paid work in accordance with
[3]
An employer must release an apprentice from work to attend training or any assessment in accordance with their training agreement without loss of pay or continuity of employment.
[4]
I conclude that the applicant's allegations of the average numbers of hours he worked on each day of his full-time employment is to be accepted as accurate. I find this was a total of 43 hours a week.
I find the applicant is entitled to the agreed hourly rate for hours up to 38 hours a week. I find he is also entitled to 150% of the minimum Award rate for the next three hours, and 200% for the final two hours, in accordance with cl 22.5(a).
As the applicant was entitled to apprentice rates only during the 15 hours of the Training Contract and to the higher HBE1 rate for the balance of his ordinary weekly hours, it is necessary to determine when the 15 apprenticeship hours were worked during each week. That information is required to identify the correct rate for the Saturday work and for the weekly hours in excess of 38 hours.
There is no evidence of any difference in the applicant's duties on different days, other than Tuesdays which were for external training at TAFE. Based on 6.5 hours for Tuesdays, there were only 8.5 apprenticeship hours remaining in each week.
The only relevant evidence is the respondent paying the same hourly rate of $19 for the 22.5 hours of work that was recorded on payslips. None of those weekly hours were paid for at the minimum rates applicable to Saturday work. The minimum Saturday rates for a second-year apprentice were $22.64 until 1 July 2024 and $23.49 after then.
Based on the payslips, I infer the respondent did not intend the applicant to perform any of his apprenticeship hours on Saturdays, with work on that day intended to be undocumented employment 'off the books'. As such it could not have been included in a training contract, and thus the lower apprentice rates did not apply.
I find the first 1.5 of the 6.5 hours of Saturday work at the HBE1 classification were ordinary hours and should have been paid at Saturday rates. This was the rate of $24.73 until 1 July 2024, and $25.65 after then.
The remaining Saturday hours were all in excess of 38 hours for the week. For the next 3 hours of Saturday work, the applicant was entitled to $37.10 until 1 July 2024, and $38.48 after then. For the remaining 2 hours of Saturday work, the applicant was entitled to $49.46 until 1 July 2024, and $51.30 after then.
I find the applicant was entitled to the tool allowance as he was required to use his own tools. The allowance was $10.29 per week to 1 July 2024, and $10.52 after then.
I find the applicant was entitled to accrue annual leave and leave loading based on full-time employment, to be paid at the two rates in proportion to the different work status.
The period of employment was exactly 32 weeks. The annual leave accrual was 2.4615 weeks of the final week's pay, plus 17.5%.
The agreed apprentice rate of $19 is applied to 15 hours a week of this entitlement, and the final HBE1 rate of $25.65 is applied to the remaining 23 hours. The final weeks' pay was therefore $874.95. I conclude the full annual leave entitlement was $2,153.69 and the leave loading entitlement was an additional $376.90. Of this, $285 was paid for 15 hours of leave at $19 during the employment.
I find the applicant was entitled to complying superannuation contributions based on all ordinary time earnings of $853.79 until 1 July 2024, and $874.95 after then, with credit for the contributions that were paid. The contribution rates were 11% to 30 June 2024, and then 11.5% until 1 July 2025.
I conclude the applicant is to be paid the shortfall between the minimum Award rates for this work and what he was paid. I invite calculations of final entitlements to be filed and served by each party within 14 days.
Parties
Applicant/Plaintiff:
Bolton
Respondent/Defendant:
Kaponias [2025] SAET 136
Legislation Cited (2)
Work Act 2009
Australian Skills Act 2008
Cases Cited (1)
Bolton v Kaponias [2025] SAET 136 (9 December 2025)