The Secretary, Department of Defence, has asked for advice as to whether it would be competent for the Commonwealth Parliament to pass legislation providing that in the event of any apprentice being called out for naval or military service in Australia in time of war or being employed voluntarily or otherwise on naval or military service in Australia or abroad for a continuous period in time of war, he should be entitled, notwithstanding any provision of the articles under which he is apprenticed, to receive at the expiration of that period the rates of pay to which he would have been entitled had he not been absent from the service of his apprenticeship for that period.

The Secretary has also forwarded for advice a memorandum by the Naval Secretary, reading as follows:

With regard to apprentices to trades who have been called out on active service in the Royal Australian Naval Reserve, advice is requested as to whether employers would be empowered to count time served on active service towards the apprenticeship of such persons, if desired by the Department and the employers were willing.

It is desired to do this, if possible, in order that these apprentices should not suffer on account of their naval duties.

Generally upon the subject of apprenticeship agreements-as I understand it-the obligations imposed by the ordinary apprenticeship agreement are twofold. There is the obligation on the part of the master to instruct the apprentice during the term of his apprenticeship, and to pay him at such rates as may be fixed. And there is also the obligation on the part of the apprentice to serve the master during the term of the apprenticeship. The rates of pay are, presumably, increased at intervals to correspond with the probable increased efficiency of the apprentice. At the end of the agreement the apprentice becomes a journeyman. The object of the agreement is of course the proper training of persons to be journeymen tradesmen.

To the extent therefore to which the apprentice in fact fails to complete the full term of service provided for in the agreement, he cannot in my opinion legally be regarded as a qualified journeyman. If an employer is willing to count towards the performance of the apprenticeship the time during which the employee is actually employed on naval or military service, there appears to be, as between employer and employee, no objection to his doing so. I do not think, however, that a public Department should countenance such adoption in any way. It is possible also that the workman might subsequently find himself in difficulties in the event of an employer or organisation raising the question as to whether he had actually served for the full period which the practice of the trade to which he belonged regarded as indispensable to the proper training of journeymen in that trade.

As regards the suggested legislation-in my opinion, where the term of service under indenture is the subject of mutual agreement between employer and employee, it is not competent for the Commonwealth by legislation to vary that term or to provide in effect that for the purpose of reckoning the rate of pay of the apprentice the time during which he is actually employed on naval or military service should be regarded as service in fulfilment of his apprenticeship agreement. Such legislation would in my opinion be in substance not legislation with respect to defence but with regard to service under apprenticeship agreements, which latter is not one of the powers conferred on the Commonwealth Parliament by the Constitution.

It may be added that as regards any apprenticeship agreements the terms of which have been settled by awards of the Commonwealth Court of Conciliation and Arbitration in the exercise of powers conferred under section 51 (xxxv) of the Constitution, that authority has, of course, certain power to vary the terms of those agreements. I take it however that the question propounded by the Secretary, Department of Defence, is a general question and does not relate merely to particular trades which are regulated by an award of the Commonwealth Court.

[Vol. 13, p. 390]