I am currently completing an apprenticeship – do I have rights to lodge a claim with the Fair Work Commission?

I am currently completing an apprenticeship – do I have rights to lodge a claim with the Fair Work Commission?

Apprentices may make an application at the Fair Work Commission (the Commission) with respect to unfair dismissals; general protections disputes (including unlawful termination disputes); and bullying stop orders.

What is an apprentice?

The ability to claim with Fair Work turns on whether a ‘training arrangement’ applies between the employee and the employer.

The Fair Work Act 2009 (Cth) . distinguishes between school-based trainees, school-based apprentices and vocational programs. Both school-based apprentices and school-based trainees’ are consider national system employees. However, vocational placement participants are not considered a national system employee.

A vocational placement is a program undertaken with an employer for which a person is not entitled to be paid any remuneration; and is undertaken as a requirement of an education or training course.

In most circumstances to make an application to the Commission, the employee must be considered a national system employee.

Can an apprentice apply for a FWC order to stop bullying?

worker may make an application to the Fair Work Commission for orders to stop bullying. A worker is bullied at work if an individual or group of individuals repeatedly behave unreasonable towards the worker, or a group of workers of which the worker is a member and that behavior creates a risk to health and safety. It should be noted that bullying does not include reasonable management action carried out in a reasonable manner.

For the purposes of an order to stop bullying, the applicant merely has to be a ‘worker’ not an employee. Broadly, a worker is an individual who performs work in any capacity, including as an employee, a contractor, a subcontractor, an outworker, an apprentice, a trainee, a student gaining work experience or a volunteer.

Can an apprentice make an application for an unfair dismissal remedy?

As a general rule, an employee who has been dismissed is protected from unfair dismissal. An employee may make an application if they have completed the minimum period of employment (sixth or twelve months – depending on size of the business) and they earn less than the high-income threshold (which is currently $145,400 per year).

An employee must be considered a national system employee, and therefore must be either a school-based trainee or school-based apprentice. If you are an apprentice who has been dismissed, an application must be received by the Fair Work Commission within 21 days of the dismissal.

Can an apprentice make a general protections application to the fair work commission?

An employee may make a general protection application if their employer has taken adverse action against you, due to discrimination or due to you exercising a workplace rights. Adverse action includes dismissal of an employee but can also include a range of other action such as prejudicing an employee.

An employee must be considered a national system employee in order to file a general protection claim with the Fair Work Commission. By extension, they must be a school-based trainee or school-based apprentice.

 

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