intention of the TCR decisions and the Industrial Relations Reform Act 1993 was to exclude fixed term employees from entitlement to retrenchment benefits.

The main grounds relied upon by the PTC may be summarised as follows:-

(i)The relevant clauses in the logs of claims served by the unions have no application to the PTC apprentices. These clauses deal with termination of employment and redundancy and only relate to employees on open-ended contracts of employment. They do not relate to employees such as apprentices on fixed term or fixed task contracts because their employment would not be terminated by the employer. Further the clauses have no applicability to apprentices who are dealt with as a discrete topic in the logs. In this regard, reference was made to provisions in various railway awards which treat apprentices as a discrete category

with their own special conditions of employment and which provide for a period of apprenticeship of four years and to legislative provisions relating to vocational training in Victoria. Further it was said

that the logs were served following the decisions in the TCR Cases and that as there is a specific

exclusion from the TCR redundancy provisions for "apprentice employees engaged for a specific period of

time" any reasonable reading of the logs would assume that apprentices or fixed term employees are not

covered by the claims in the logs. It was submitted that the notifications of dispute concerning the non-

employment of the apprentices was an intra-state dispute and that the 1986 and 1991 logs of claims

served by the unions, when properly construed and having regard to the industrial background from which

they stemmed, do not provide a jurisdictional base for the Commission to deal with the dispute concerning the PTC apprentices.

(ii) It was submitted that the amendments made to the Act by the Industrial Relations Reform Act 1993 dealing with termination of employment also precluded the Commission from making the award sought by the unions. It was said that the provisions of the Act provided a code as to the way in which the Commission

should make orders with respect to termination of employment having regard to the Termination of

Employment Convention 1982 (see Schedule 10 of the Act) and that any award or order of the Commission which is

inconsistent with the Convention would be of no effect (see s.170HA of the Act). Provision is made in the Act

for specified employees to be excluded from the operation of the termination of employment provisions

(s.170CC) and under the Regulations employees engaged under a contract of employment for a specified period of time (entered into before 16 November 1994 - see reg. 30B(1)(a) and (aa)) have been excluded.

We note that submissions relating to jurisdiction were also put to the Full Bench dealing with the interim award application and that these are dealt with in the decision of 16 February 1993 [Print K6695]. However the arguments now put differ from the earlier submissions. Submissions similar to those made in the present proceedings regarding jurisdiction were put by counsel for the PTC in the High Court proceedings. The Court noted that the submissions had not been pressed by the PTC before the Commission and decided that it was not necessary or appropriate for the Court to deal with those submissions in reaching its decision.

In written submissions by the PTC and the State of Western Australia in the present matters, a further jurisdictional argument was relied upon. It was put that the PTC is an agency of the State of Victoria established to provide a public service, namely the provision of public transport, and thus comes within the protection accorded by the implied limitation in the Constitution on the exercise of Commonwealth legislative powers (Re AEU). It was submitted that by virtue of the implied limitation the Commission does not have power to make an award that would restrict the PTC's right to terminate the services of its apprentices on redundancy grounds or that would regulate or restrict the offer of VDPs to those apprentices.

In the present proceedings the State Rail Authority of New South Wales (SRA) also put submissions similar to those of the PTC. In particular the SRA submitted that the dispute between the PTC and the unions about payments to PTC apprentices is a wholly intrastate dispute. Further it was submitted that the clauses in the two logs of claims which propose a regime for managing redundancy and retrenchment must be read as excluding apprentices from their scope. A similar argument was also put by counsel for the Western Australian Government, Westrail and Transperth.

In reply to the PTC's submissions, the unions submitted that the disputes found in matters C No. 3350 of 1986 and 21624 of 1991 provided jurisdiction for the Commission to deal with the claim made on behalf of the PTC apprentices.

It was said that the letters of demand related to all employees and made no distinction between different types of employees. It was also said that where apprentices were to be treated differently this was set out in the logs of claims (e.g. in relation to wages) and in other respects (e.g. in relation to termination of employment) it was intended that they receive the same treatment as other employees. Indeed it was pointed out that the MEWU's log sought for apprentices "the same special rates and conditions which apply to tradesmen". The demands were made in ambit logs of claims which should not be read narrowly: Re Federated Storemen and Packers Union of Australia; Ex parte Wooldumpers (Victoria) Limited (`Wooldumpers') [1989] HCA 10; (1989) 166 CLR 311, at 315.

The unions also relied upon the whole of the circumstances of the disputes which arose out of the service of the two logs and the parties bringing the issues relating to the downsizing programme and the restructuring of the Victorian public transport system to the Commission in November/December 1992. In this regard, reference was made to the s.99 notification of an

industrial dispute by the PTC in December 1992 (C No. 32507 of 1992) and other notifications, to the industrial action taking place or threatened and the bans in place and to the implications of this action for the PTC. It was said that the industrial situation relating to the PTC was not totally reflected in the demands made in the two logs in 1986 and 1991. An industrial dispute may be enlarged or altered during proceedings in the Commission or at any stage during the course of the dispute: Re Printing & Kindred Industries Union; Ex parte Vista Paper Products Pty Ltd [1993] HCA 81; (1993) 67 ALJR 604, at 613. If the logs of claims did not deal with apprentices as submitted by the PTC, then it was said that the disputes in C Nos. 3350 of 1986 and 21624 of 1991 were altered or enlarged so as to include the interests of apprentices as a consequence of the industrial disputation in late 1992 and early 1993 and the concern of remaining employees about the problems with respect to the apprentices (see Re Ranger Uranium Mines Pty Ltd; Ex parte Federated Miscellaneous Workers' Union of Australia [1987] HCA 63; (1987) 163 CLR 656 at 661).

In relation to the PTC's submissions regarding the TCR Cases, the unions submitted that the TCR claims in the logs were ambit claims, did not provide any limitation with respect to apprentices and should not be read down by reason of the redundancy standards prescribed by the decisions in the TCR Cases. One additional reason why the claims should not be so read down is because variations to the TCR standards may be considered to meet the needs of particular industries (e.g. in the meat industry: see Print H8683).

Even if it was appropriate to read the claims made in the logs having regard to the TCR decisions, it was said that the position of PTC apprentices would be distinguishable. This was because of the custom and practice within the PTC of treating apprentices as having on-going employment. Also it was disputed that PTC apprentices were fixed term employees because, although their apprenticeships may come to an end, their employment had been treated as on-going. Finally it was put that the exclusions for apprentices etc. in the TCR provisions do not apply to the unfair dismissal

protections and that the award sought by the unions in the present matters may be appropriate as compensation for the unfair treatment by the PTC in denying the apprentices benefits given to other employees.

In relation to the amendments made by the Industrial Relations Reform Act 1993, it was said that the relevant amendments came into effect on 30 March 1994. The unions submitted that these amendments were not given retrospective operation and would not therefore cover the period of operation of the award sought, namely from January 1993. In any event, it was submitted that the legislation was intended to be remedial and not to remove benefits more generous than those provided under its terms.

We have carefully considered the submissions relating to the jurisdiction of the Commission to deal with the dispute relating to the PTC apprentices and to make an award dealing with the subject matter of the dispute. We have reached the conclusion that the matter may be dealt with as part of the disputes found by the Commission in matters C No. 3350 of 1986 and 21624 of 1991. We consider that the demands in the logs served by the unions extend

to apprentices of the PTC and that, in any event, the disputes found by the Commission in those matters were enlarged and extended in the circumstances of late 1992 and early 1993 to include the issues concerning the non-retention of the PTC apprentices.

The 1989 and 1991 logs of claims are ambit logs and contain claims with respect to termination of employment and redundancy similar to those considered in the TCR Cases and pursued by many other unions. The claims on these subjects do not on their face provide any exclusion for apprentices or employees on fixed term contracts. Indeed the only

differentiation with respect to apprentices in the logs relates to wages. The MEWU's log specifically claims for apprentices the same conditions as apply to tradesmen.

It was argued by the PTC and the SRA that the claims in the 1986 and 1991 logs had to be read down, having regard to the decisions in the TCR Cases in 1984 and 1985 so as to exclude apprentices and employees engaged for a specific period of time from the application of the standard redundancy clause. It was said that employers served with the logs would reasonably understand the purpose of the logs to be to introduce, into the award regulation of its workforce, the regime for managing redundancies which was formulated in the TCR Cases. It was said that the natural and obvious understanding of the logs was that the regime proposed for redundancy and retrenchment would not apply to apprentices.

We consider that this argument must be rejected for several reasons. The claims are made in an ambit log and such logs should not be read narrowly: see Wooldumpers [1989] HCA 10; (1989) 166 CLR 311, at 315. The claims do not seek any exclusion with respect to apprentices. Indeed the only area in the logs where it is sought to differentiate the claims made with respect to apprentices and other employees is in relation to wages. Although an exclusion for apprentices was included in the standard redundancy clause determined in the TCR Cases, this cannot reasonably be taken as importing some limitation on what was being claimed by the unions in their logs. This is because the purpose of the service of an ambit log is in part to provide a basis for the achievement through awards of improvements in wages and

conditions of employment over time. This might include applications for the insertion of redundancy clauses in relevant railway awards in the terms of the standard TCR clause or with appropriate variations being made, now or in the future, to the standard clause having regard to the particular circumstances of the industry or area of employment. It might also include the extension of redundancy entitlements to apprentices in circumstances such as arose with respect to the PTC apprentices in 1993. Further it would seem that the relevant awards have not in any event been varied or sought to be varied by the unions to include the standard TCR redundancy clause. This is not unusual in areas of employment including public employment where redundancy protection achieved through agreements or under legislation may be considered to be superior to
that determined as a minimum award standard in the TCR Cases. In these circumstances we cannot accept that the scope of the ambit claims served by the unions could reasonably be understood or read down as submitted by the PTC.

On the view we have taken of the redundancy claims in the logs, it is not necessary for us to consider or to reach a final conclusion about the alternative arguments put by the unions in support of the Commission's jurisdiction. It may be that the award sought by the unions relates to the termination of employment claims in the logs rather than the redundancy provisions. This would provide a further basis for the Commission dealing with the issues relating to the PTC apprentices.

In the event that the logs served were held not to cover the circumstances which arose with respect to the PTC apprentices, it would be necessary

to consider whether the disputes found in relation to those logs had been enlarged or altered during the proceedings in the Commission or in the course of the disputes so as to cover these circumstances: see R v Bain; Ex parte Cadbury Schweppes Australia Ltd. [1984] HCA 9; (1984) 159 CLR 163 at 168; Vista [1993] HCA 81; (1993) 67 ALJR 604 at 613. It would seem to us strongly arguable that the disputes have been enlarged as a result of the industrial action which took place in late 1992 and early 1993 concerning the treatment of apprentices by the PTC and the concern of the remaining PTC employees about the treatment of the apprentices. The unions sought to pursue the issues relating to the PTC apprentices by, in the case of the ARU, requesting the Commission to relist C No. 21624 of 1991 and seeking that an interim award be made with respect to the apprentices and, in the case of the MEWU, making application for an interim award (C No. 30096 of 1993) under s.111(1)(b) of the Act in relation to the industrial dispute found in matter C No. 3350 of 1986. In both cases, the interim award and now the award have been sought by the unions in settlement or part settlement of interstate industrial disputes

already found by the Commission. Although it is not necessary to express a concluded view on this matter or at this stage to vary the relevant dispute findings, we consider that the circumstances surrounding the proceedings in the Commission, especially in early 1993, leave no doubt that the nature and scope of the disputes include issues relating to the employment of apprentices

It was also submitted by the PTC that the amendments made by the Industrial Relations Reform Act 1993 preclude the making of an award dealing with termination benefits for the apprentices. However we doubt that the exclusion

of certain employees engaged under contracts of employment for a specified period of time (s.170CC and reg. 30B(1)(a) and (aa)) is intended to preclude the Commission from making any award with respect to the termination of apprentices in circumstances such as those relating to the PTC. We also doubt that any award so made would be inconsistent with the requirements of the Termination of Employment Convention (see s.170HB of the Act) as the Convention merely provides that a member State "may" exclude certain categories of employed persons from the provisions of the Convention. In this regard we note that s.170HB provides that Division 3 - Termination of Employment - of Part VIA of the Act is "not intended to limit any right that a person or trade union may otherwise have to appeal against termination of employment or to secure the making of awards or orders relating to the termination of employment." Part VIA of the Act was introduced into the Act by the Industrial Relations Reform Bill 1993 and is headed "Minimum Entitlements of Employees". The outline of the Bill in the Explanatory Memorandum states that the Bill provides for (inter alia) "the maintenance and strengthening of the safety net for employees, through the award system and through minimum entitlements that give effect to certain treaty obligations". In his Second Reading Speech, the Minister for Industrial Relations said:

" ... employees can be assured that their conditions will be protected, protected by way of the award system, protected by way of the no disadvantage test in the federal act. Those who cannot have access to such protection in federal awards will at least enjoy fair national minimums based on standards prescribed by the UN's International Labour Organisation." (Hansard, House of Representatives, 28 October 1993, p.2778)

The provisions of Part VIA of the Act ensure that workers have access to minimum standards of protection based on international treaties which operate as a safety net and cannot in our view be construed as precluding the Commission, as a matter of jurisdiction, from considering the making of awards to provide other entitlements or entitlements for excluded groups of employees.

Apart from this, on the evidence before the Commission we have reservations as to whether the PTC apprentices concerned were engaged under contracts for a specified period of time and would therefore be covered by the exclusion in reg. 30B. There is ample evidence to suggest that the apprentices were treated by the PTC as having on-going employment.

For these reasons we do not consider that the provisions of Part VIA of the Act preclude, as a matter of jurisdiction, the consideration by the Commission of the making of an award dealing with the termination of the PTC apprentices.

Apart from the above matters we note that in the proceedings before the previous Full Bench various other grounds relating to the jurisdiction of the Commission were raised by the PTC. On the material and submissions presently before the Commission we are not persuaded that we should depart from the conclusions reached by the previous Bench on these grounds and, to the extent necessary for the purposes of this decision, we adopt the reasoning and conclusions in the earlier decision.

Finally we refer to the recent decision of the High Court in Re Australian Education Union; Ex parte The State of Victoria [1995] HCA 71; (1995) 128 ALR 609. In that decision the Court considered whether the implied limitation on the exercise of Commonwealth legislative power meant that federal awards could not be made in relation to the terms and conditions of employment of employees of State governments.

The majority of the Court decided that federal awards could be made in relation to certain categories of State employees such as school teachers and health workers as the operation of such awards would not destroy or curtail the existence of the State or its capacity to function as a government. The majority (Mason CJ, Brennan, Deane, Toohey, Gaudron and McHugh JJ.) said:

" The fact is that the existence of the States and their Constitutions and their capacity to function as governments

would not be impaired by the operation of federal awards made in respect of the vast majority of the employees sought to be covered by the logs of claims, at any rate if the award provisions were confined to minimum wages and

working conditions which take appropriate account of any special functions or responsibilities which attach to them.

The freedom of State governments to determine terms and conditions of employment of employees would be restricted

but that is a consequence of the application of the arbitration power to States. Whether the making of a comprehensive award would result in a relevant impairment is another question which we leave for later discussion." (p.628)

" It seems to us that critical to that capacity of a State is the government's right to determine the number and identity of the persons whom it wishes to employ, the term of appointment of such persons and, as well, the number and identity of the persons whom it wishes to dismiss with or without notice from its employment on redundancy grounds.

An impairment of a State's rights in these respects would, in our view, constitute an infringement of the implied limitation. On this view, the prescription by a federal award of minimum wages and working conditions would not

infringe the implied limitation, at least if it takes appropriate account of any special functions or

responsibilities which attach to the employees in question. There may be a question, in some areas of employment,

whether an award regulating promotion and transfer would amount to an infringement. That is a question which need not be considered. As with other provisions in a comprehensive award, the answer would turn on matters of degree, including the character and responsibilities of the employee." (p.630)

In relation to persons at higher levels of government, the majority decided that the relationship between them and their State government was outside federal arbitral power by reason of the implied limitation:

" In our view, also critical to a State's capacity to function as a government is its ability, not only to determine the number and identity of those whom it wishes to engage at the higher levels of government, but also to determine the terms and conditions on which those persons shall be engaged. Hence, Ministers, ministerial assistants and advisers, heads of departments and high level statutory office holders, parliamentary officers and judges would clearly fall within this group. The implied limitation would protect the States from the exercise by the Commission of power to fix minimum wages and working conditions in respect of such persons and possibly others

as well ... And, in any event, Ministers and judges are not employees of a State." (pp.630-631)

Although the Court's decision has important implications for many State employees, we consider that the position of State railway workers and, in particular, the PTC apprentices is clearly distinguishable from the matters before the Court. Firstly, the terms and conditions of employees of State railways have been the subject of federal award regulation for many years. It was held in Australian Railways Union v. Victorian Railways Commissioners [1930] HCA 52; (1930) 44 CLR 319 that the Commonwealth arbitration power authorizes the making of awards which apply to the States and to the State Commissioners of Railways. The awards made in these areas have been comprehensive and have dealt with actual rates of pay, the terms of engagement and termination and other matters. It is therefore long settled that State railway workers may be covered by federal awards. Secondly, we note that the railway apprentices in question were engaged by a statutory corporation, the PTC, and that in this respect they may be distinguished from State employees such as school teachers. Thirdly, the award sought by the unions in the present matters does not curtail, in a relevant sense, the PTC's right to determine "the number and identity of the persons whom it wishes to dismiss with or without notice from its employment on redundancy grounds". Rather what is sought is to provide fair compensation for the apprentices whose service has been terminated by the PTC. In this respect the award sought by the unions in the present proceedings and that considered by the Commission (see later) are of a different character to the awards and orders which were found by the Court in Re AEU to restrict the employer's right to terminate employment on the ground of redundancy. In consequence, we do not consider that the making of an award in the terms we propose in these matters would impair the capacity of the State of Victoria to function as a government or would be beyond the jurisdiction of the Commission.

For the above reasons, we have decided that the Commission has jurisdiction to make an award with respect to the PTC apprentices. We now turn to consider the submissions as to whether an award should be made and, if so, in what form.

The Commission was invited by the parties to reach its decision as to the making of an award on the basis of the evidence and material before the previous Full Bench and the submissions and additional material presented by the parties in the present proceedings. No new evidence was sought to be led by the unions or the PTC.

Although it was submitted by the PTC that the Commission should have no regard to the decision or findings of the previous Full Bench, we consider that it is appropriate to refer to parts of that decision. However in doing so we stress that we have reached our conclusions in this matter on our own assessment of the evidence and material presented.

The claims of the unions relate to two main groups of PTC apprentices. The first group comprises 70 apprentices whose service was terminated by the PTC on 29 January 1993. The circumstances relating to these apprentices are set out in the previous decision as follows:

" The evidence discloses that these 70 were members of a group of 118 fourth year apprentices who had been recruited by the STA to commence apprenticeship training from 1 February 1989. Of the 118, approximately 22 were `Tram and Bus Apprentices'. These 22 had not been paid off on 29 January 1993 and would be retained in employment, it was said, because they had not been engaged on a `limited term' basis. It was established that those apprentices had signed an Indenture in identical terms to other apprentices but had also signed at the same time an `Employment Contract' with the Metropolitan Transit Authority, (the Met). A copy of the form of contract was in evidence as Exhibit B8. The apparent discrepancy in the treatment accorded apprentices in the bus and tram arm of the PTC, (the Met), is a consideration to which we will return.

Of the remaining apprentices, 85 needed to find placement in the PTC in 1993. Only 15 were selected to be retained.

The PTC decided that `departure letters' advising inability to offer further employment following completion of apprenticeship should be sent on 8 December 1992 to the remaining 70 apprentices. Evidence as to the location of

the 70 apprentices showed a spread of trades through each of four divisions of PTC. The

substantial majority were located in the Workshops and Infrastructure Divisions. Of 11 apprentices in the

Passenger Division only two were offered further employment. Seven of those later terminated are from the Jolimont Passenger Maintenance Workshop which is to be permanently closed from early April 1993." [Print K6695, p.12]

The second group comprises 57 apprentices who were not taken on as tradespersons in February 1994. The unions submitted that, as similar representations with respect to security of employment were made to these apprentices, they should be dealt with on the same basis as the other apprentices.

It was submitted by the unions that the PTC created an environment where as a result of the manner of engagement and the representations made the apprentices had an expectation of continuing employment. It was said that there was a custom and practice of the PTC in treating its apprentices as having ongoing employment and that as a matter of industrial justice and equity it was appropriate that the apprentices have parity of treatment with other

PTC employees who lost their employment. It was said that the present case concerned the special position of PTC apprentices having regard to this custom and practice and not the position of apprentices generally.

The unions referred to developments in late 1992 and in 1993 relating to the PTC apprentices. These included the planned reductions in the PTC's workforce, the concern of the unions about the redundancies and attempts to consult the PTC, the industrial disputation that occurred, the offer of VDPs to employees other than apprentices, the failure of the PTC to make redundancy or severance payments to apprentices as provided to other employees and the undertakings given by the PTC in the course of the previous Full Bench proceedings.

Mr H. Borenstein of counsel for the unions explained the claims made on behalf of the PTC apprentices. It was said that the circumstances of the case warrant the making of an award providing termination or retrenchment payments to the apprentices. The quantum of the payments was to be calculated in the same way as the VDP provided to other PTC workers. It was said that the VDP was of the following order: 4 weeks' pay in lieu of notice; 2 weeks' pay for each year of service with a maximum payment for 40 weeks (reduced to 30 weeks in the package applying after July 1993); an incentive payment of $5,000 (increased to $10,000 after July 1993). It was also said that the VDP provided that the departure of the employee was to be regarded as resignation, and not as retrenchment, for superannuation purposes. In this regard it was noted that all PTC apprentices were treated as having resigned for superannuation purposes.

The unions also claimed a provision giving preference to the apprentices with respect to future recruitment by the PTC. However it was recognised that acceptance of a VDP would prevent re-employment in the Victorian public sector for a specified period and that the main claim was for the apprentices to be treated on a par with fellow employees of the PTC with respect to the compensation provided. The unions therefore did not press for

a preference provision to be included in the award.

The award sought by the unions would apply to all PTC apprentices whose employment terminates on or after 26 January 1993. It was submitted that the award sought would provide compensation for the apprentices on the basis of the representations made to them with respect to ongoing employment at the time of recruitment. It was said that, despite the submissions of the PTC, there was no evidence of any change in the

recruitment practices and therefore any award made should apply to all apprentices employed by the PTC.

Reference was made to the witness evidence presented in the previous Full Bench proceedings. This included evidence from three PTC apprentices and one tradesman who had recently completed his apprenticeship and from Mr B.D. James, Manager of the Workshops Division of the PTC. The evidence covered inter alia the recruitment process, expectations about continuing employment and the membership of the superannuation scheme. Reference was also made to the documentary material tendered to the Commission including the pro forma PTC letter of offer of an Apprentice Trade Position and acceptance, the Indenture of Apprenticeship, the Employment Conditions for Training as an Apprentice and a recruitment brochure entitled "Your Ticket to a Career in the Transport Industry". The relevant parts of these documents are set out in the previous Full Bench decision.

It was also submitted by the unions that it was unfair for apprentices with four years satisfactory service with the PTC not to be offered the VDP whereas other employees were offered the package without consideration of their service. This service may have been for less than four years. It was also said that apprentices in some other semi-government areas such as the State Electricity Commission Victoria have been given access to redundancy packages.

Mr L. Kaufman of counsel for the PTC submitted that the making of an award for PTC apprentices would set a precedent and would make other employers wary of taking on apprentices in the future. For this reason alone it was said that an award should not be made.

Apart from this consideration, it was submitted by the PTC that the Employment Conditions for Training as an Apprentice make it clear that there was no guarantee of employment with the PTC on completion of apprenticeship. It was said that when the apprentices were engaged, the custom and practice was to offer permanent employment to apprentices who performed satisfactorily. However this did not change the clear words in the Employment Conditions document signed by apprentices: namely "that I am not guaranteed employment on completion of my apprenticeship." There may have been an understanding in the past that apprentices would be offered trade positions, but this was not the position under contract and did not require the PTC to offer continued employment after apprenticeship.

It was submitted that there is no basis in law for implying a term into the contracts that apprentices would be offered a job as a tradesperson at the conclusion of their apprenticeship. Further it was said that, from the evidence given in the previous Full Bench proceedings, some apprentices only formed the view that they would have ongoing employment after they were engaged. It was submitted that the relevant issue was what was said or represented to the apprentices at the time of engagement.

In relation to the procedure followed by the PTC, it was said that the apprentices were informed in October 1992 that the Corporation was considering its future trade skill staffing requirements and anticipated being "able to confirm your status in relation to the possibility of continued employment by the end of November, 1992." On 8 December 1992 the PTC advised the apprentices that it was unable to offer further employment following the completion of apprenticeship training on 29 January 1993. It was

suggested that the unions should have been aware before this about possible problems for apprentices as the continued employment of apprentices by the PTC was an issue during 1991/92 and had been discussed several times by the PTC Apprentice Development Group.

Although the PTC rejected the claims of the unions it was indicated that the intention of the PTC was to give the apprentices preference in engagement should employment become available. However it was said that the Corporation is still in the process of shedding labour.

It was also submitted by the PTC that as a matter of law and/or discretion based on the Industrial Relations Reform Act 1993 the Commission should not make an award for the PTC apprentices. It was said that the intention of the legislation and of the Commission in the TCR Cases was to exclude apprentices and fixed term employees from retrenchment benefits and

that this policy should be applied to the claims made on behalf of the PTC apprentices. In relation to SECV apprentices, it was said that the circumstances were different and that the Commission should not rely on agreements entered into by other employers in making an arbitrated decision in the present matter.

The submissions of the PTC were in general supported by the State Rail

Authority of New South Wales (SRA), the Western Australian Government, Westrail, Transperth and the Victorian Employers Chamber of Commerce and Industry (VECCI). In general, these bodies were opposed to the making of any award by the Commission that provides termination payments for apprentices whose employment is terminated at the end of their apprenticeship.

The SRA indicated that it had no intention of terminating apprentices in similar circumstances to those faced by the PTC. It was said that the SRA sought to avoid compulsory retrenchments and that even if it was not possible to find trades work for all its apprentices on the completion of their training the SRA would find other work for them. However the SRA was concerned that unions would seek similar award protection for apprentices in NSW should an award be made covering PTC apprentices. It

was said that many employers would be in a similar position to the PTC in holding out to their apprentices the prospect of continuity of employment beyond apprenticeship. It was impractical for an employer to discourage views about continued employment until it becomes clear that it is not possible to offer such employment. It was submitted that the making of a severance pay award would discourage employers from taking on apprentices.

The Western Australian Government, Westrail and Transperth raised various concerns about group training schemes and submitted that the making of an award for the PTC apprentices has the potential of reducing the number of apprenticeships available. The VECCI indicated that it opposed the making of any award in these proceedings. It was explained that this opposition was not based on a consideration of the merits with respect to the PTC apprentices but on concern about the spreading of severance pay for apprentices into the wider community. It was submitted that such spreading would have a detrimental effect on apprenticeships and traineeship schemes.

We have carefully considered all the submissions and evidence presented. It would be a matter of grave concern should an award made in these proceedings have an adverse effect on apprenticeships generally and on the willingness of employers to participate in apprenticeships and trainee schemes. In this regard we have been mindful of the existing exemption from severance benefits upon termination of apprentices in the TCR provisions. However we consider that there are special circumstances relating to the PTC apprentices which warrant the making of an award in the present case. Indeed in our view the circumstances of the present matter make it incumbent upon the Commission to intervene by making an award to ensure fair treatment for the apprentices concerned.

In reaching this view we have had particular regard to the custom and practice within the PTC regarding the continued employment of apprentices, the context in which the terminations took place and the treatment of the apprentices for superannuation purposes.

We are satisfied upon our reading of the evidence, including the evidence given by Mr B.D. James, Manager of the Workshops Division of the PTC, that there was a custom and practice in the PTC up to 1993 and the change of Victorian Government whereby apprentices were traditionally offered continued employment. We are also satisfied that assurances were given in the course of apprenticeships that a career path with the PTC was certain, even though the Employment Conditions document signed by each apprentice states in part that "I am not guaranteed employment on completion of my apprenticeship". It is evident that there were expectations of secure employment being available for PTC apprentices until the developments of late 1992 and early 1993 and that these expectations were fostered by the PTC. We consider that the representations made with respect to PTC apprenticeships and the expectations held about continued employment went beyond what is usually the case under apprenticeship arrangements.

The decision of the PTC not to offer the apprentices further employment was taken in the context of widespread redundancies in the PTC. The PTC offered voluntary departure benefits to its general workforce in order to bring about reductions. Although the career prospects of the apprentices were interrupted for similar reasons, the PTC relied upon the fixed term nature of apprenticeship training to deny such benefits to the apprentices. This was despite the custom and practice which had been applied and representations made with respect to continued employment which had led to, at the least, an expectation of secure employment with the PTC being available for the apprentices. In effect this meant that in the

circumstances relating to the PTC redundancies the apprentices as a group were excluded from the compensation package and other measures provided to the PTC's workforce on the basis that they were apprentices under conditions which, although not previously applied in practice, provided for fixed term engagement.

The changes in the superannuation arrangements in late 1992 also disadvantaged the apprentices. The evidence and submissions in this case is that all the apprentices concerned became members of the Transport Superannuation Fund even though the Employment Conditions signed by the apprentices stated they were not eligible to join the scheme. The document headed "Employment Conditions for Training as an Apprentice" provides:

(d)I am not eligible to enter the Superannuation Scheme and that I am not guaranteed employment on completion of my apprenticeship.

(e)However, on completion of my apprenticeship, should a vacancy exist in my trade, I will be eligible to apply for permanent employment and Superannuation." (Exhibit D3)

It was said that under the terms of the Transport Superannuation Act 1988 (Vic.) (Exhibit B6) all employees were required to be part of the superannuation scheme (see s.4(4)). The now repealed definition of "retrenchment" in s.3(1) of the Act was, so far as presently relevant, to the following effect:

(a)the compulsory termination of the service of a member who has not attained the minimum age for retirement

(iv) in the case of an employee who is an apprentice, by the non-employment of the apprentice by a prescribed person or body immediately upon the expiry of the period of apprenticeship; or ..."

The level of benefit where the service of an apprentice had been terminated in such circumstances was equated with accrued retirement benefits and attracted an employer funded payment significantly in excess of the mere refund of employee contributions with interest component payable on resignation (see ss.29 and 34).

The repeal of the above definition of "retrenchment" was effected by s.20 of the Superannuation (Public Sector) Act 1992 (Vic.) and came into force on 27 November 1992. This provided:

" (1) In section 3(1) of the Transport Superannuation Act 1988 -

(d) for the definition of `retrenchment' substitute - `retrenchment' means the termination of the service of an employee who has not attained the minimum age for retirement in respect of whom a transport authority certifies in writing to the Board that the employee has been retrenched for the purposes of this Act;"

The repeal removed the entitlement to a retrenchment benefit that an apprentice would have had in circumstances of non- employment "immediately upon the expiry of the period of apprenticeship". There were no relevant transitional or savings provisions included in the repealing legislation.

As referred to earlier, the PTC treated the apprentices as having resigned for superannuation purposes. The VDP provided that the departure of an employee accepting the package was to be regarded as a resignation, and not as retrenchment, for superannuation purposes. The apprentices were not offered VDPs but their termination was still treated as resignation. The PTC did not certify for superannuation purposes that they had been retrenched. The result was that the apprentices were only entitled to a resignation benefit rather than a higher retrenchment benefit from the superannuation scheme. Although various questions were put to counsel during the proceedings as to the differences between the benefits, no material quantifying the differences for individual apprentices was presented. The evidence was that the resignation benefit was substantially lower than for retrenchment. It was submitted that the resignation benefit was simply a return of the employee's contributions plus interest whereas the retrenchment benefit had regard to both employer and employee contributions multiplied by a factor of 2.5.

It follows from the above considerations that it would have been fair and reasonable for the PTC to provide some compensation to the apprentices whose service was terminated as part of its general workforce reductions in early 1993 and 1994. The representations made by the PTC up until the end of 1992 were to the effect that apprentices had secure, even career, employment with the PTC so long as their work performance was satisfactory. Although the circumstances of PTC employment changed in late 1992 with the measures introduced to reform the Victorian public transport system, the apprentices were treated differently from the rest of the PTC's workforce and in particular were excluded from the VDPs. The PTC, despite previous representations made and expectations raised about continuing employment, relied upon the fixed term of the indentured training period and advised the apprentices concerned that it was "unable to offer you further employment following the completion of your apprenticeship training". Further the superannuation legislation was amended shortly before the terminations took place and the PTC decided not

to certify for superannuation purposes that the apprentices had been retrenched. The result was that the entitlement of the apprentices to superannuation benefits was significantly reduced.

Whilst we recognise the right of the PTC to make decisions regarding
its operational, training and workforce requirements, we consider that in all the circumstances the treatment by the PTC of the apprentices whose service was terminated on completion of their apprenticeships in January 1993 and February 1994 was against equity and good conscience. Accordingly we have decided that it is appropriate for the Commission to intervene by making an award providing some relief for the apprentices concerned.

In reaching this conclusion, a significant factor has been the past custom and practice with respect to continued employment and the representations made to apprentices about career prospects with the PTC. These gave rise to reasonable expectations for the apprentices about future employment. There is no doubt that the position has now changed and that current and future apprentices would be aware of this and able to plan accordingly. It was put by counsel for the PTC in the proceedings that steps were to be taken by the PTC to ensure that its apprentices were aware that there is no guarantee of future employment. In view of the changed circumstances, the award to be made will not cover existing or future apprentices of the PTC.

As referred to earlier we have been concerned about the potential effect on apprenticeship training generally of making an award in these proceedings. However we consider that there are exceptional circumstances which both warrant the making of an award for the two groups of PTC apprentices and which distinguish the position of those apprentices from other PTC apprentices and from apprentices generally. We therefore consider that some relief is possible in the present case without setting a precedent which will damage the apprenticeship system. In our view the circumstances of the present matter warrant a departure from the position taken in the TCR Cases and generally applied by the Commission, namely to exclude apprentices from basic award redundancy provisions.

For all the above reasons we have reached the conclusion that an award should be made with respect to the PTC apprentices whose service was terminated on completion of their apprenticeships in January 1993 and February 1994. We now turn to consider the contents of the award.

The unions have sought the payment of a retrenchment benefit to the apprentices calculated in the same way as the VDP. It was said that this would bring about parity of treatment for PTC employees affected by the workforce reductions. However it was pointed out by counsel for the PTC that the apprentices were in a different position from employees offered VDPs in return for voluntary departure. Also conditions relating to VDPs, such as those regarding future Victorian public sector employment, do not apply to the apprentices. Further it was said that the apprentices terminated in January 1993 were given approximately seven weeks' notice of termination and that the apprentices terminated in February 1994 would have been aware for a considerable time about doubts concerning their continued employment with the PTC.

It is a matter of judgment as to what the requirements of industrial justice and equity require in the present circumstances. In making our assessment, we have had regard to the VDPs offered to the PTC workforce generally, the notice of termination of service given to the apprentices and the severance pay determined in the TCR Cases. We have also considered the award made by the previous Full Bench albeit that that award was intended to apply contemporaneously with the occurrence of the 1993 terminations and must now be viewed having regard to the submissions and material presented in the current proceedings. We have not sought to quantify the losses suffered by individual apprentices by reason of the termination of their service or their treatment for superannuation purposes. Indeed this would not have been possible on the material before us. We have taken the view that we should determine an amount of termination pay comparable to what might be awarded by

the Commission as an arbitrated standard in redundancy and like situations. This would be a payment which might in appropriate circumstances be improved upon by individual employers and through negotiation. We have decided that we should not make an award in the same terms as the VDP offered by the PTC to other workers as the position of the apprentices is different in several

important respects from that of other PTC employees. However we have had regard to the component parts of the VDP in reaching our conclusion.

In all the circumstances we have decided that a termination payment of eight weeks' pay for apprentices whose service was terminated in January 1993 and six weeks' pay for those terminated in February 1994 would be fair and reasonable. We will make an award to this effect.

The unions are directed to prepare a draft order to give effect to this decision and to forward it to the Commission within seven days. A copy of the draft order should also be provided to the PTC. The order will be settled by Boulton J. with recourse, if necessary, to the other members of the Bench. The award will apply from 1 January 1993 for a period of three years.

H. Borenstein and M. Bromberg both of counsel for the Australian Services Union, the Electrical Trades Union (intervening), L. Carruthers

for the Australian Rail Tram and Bus Industry Union and M. Nicolaides for the Automotive, Food, Metals and Engineering Union.

I. Douglas QC, L. Kaufman and F. Turner, of counsel, for the Public Transport Corporation and the Crown in Right of the State of Victoria (intervening).

B. Larkins with E. Milford for the State Rail Authority of New South Wales and Transperth.

B. Baker of counsel for the State Transit Authority of New South Wales and the State of Western Australia.

R. Crow of counsel for the State Rail Authority of New South Wales.

J. Lange for the State of Western Australia, Westrail and Transperth.

D. Tulip for the Victorian Employers Chamber of Commerce and Industry (intervening).

Before Vice President Moore, Justice Boulton and Commissioner Gay: 1993. Melbourne: December 13.

Before Justice Boulton, Deputy President Watson and Commissioner Gay: 1994. Melbourne: June 27, 28, 29, 30; July 1.