Plaintiffs v Defendant

2 O'Brien Rowville has applied for an interlocutory injunction, until the trial of the proceeding, restraining the Authority from relying on the revocation decision. For the reasons that follow the application is dismissed.

3 The following affidavits were tendered on the interlocutory application:

(a) affidavit of the first plaintiff, Ma Cecilia Catanghal, sworn 1 December 2025; and

(b) affidavits of Bree Gauci, Deputy Chief Executive Officer (Training and Skills) of the Authority, affirmed 4 December and 8 December 2025.

4 Prior to 2025, some of the O'Brien Rowville companies were approved by the Authority under pt 5.5 div 4 of the ETR Act to enter into training contracts with apprentices.

5 On 16 April 2025, Gauci wrote to Catanghal in her capacity as director of the eighth, ninth and tenth plaintiffs to notify her that the Authority intended to take action in relation to concerns about the suitability of those companies to employ apprentices. Gauci said:

Given the information currently available to me, I am concerned that the conditions of the business' approval are not being maintained, particularly around:

• providing the appropriate facilities and experienced people to facilitate the training and supervise the apprentice while at work, in accordance with the training plan and at an acceptable frequency (Section 5.5.7(2)(c)(i) of the [ETR] Act and Employer Training Contract Obligation (b).

• meeting all legal requirements regarding the apprentice/trainee including occupational health and safety requirements and payment of wages and conditions under the relevant employment arrangements (Employer Training Contract Obligation (f))

• The employer's ability to comply with the training contract (Section 5.5.7(1) of the [ETR] Act).

As such, I am proposing to revoke the approval of the three entities trading under the banner of O'Brien Electrical and Plumbing Rowville to employ apprentices and trainees under Section 5.5.7(4) of the ETR Act.

Gauci provided the plaintiffs an opportunity to make a submission to the Authority within 28 days to explain why the proposed action should not be taken. She notified the plaintiffs that the submission must address:

• any measures that have been implemented to demonstrate suitable supervision being provided to electrical apprentices, as required by [Energy Safe Victoria] [(']ESV[')] Regulations, and any relevant information to demonstrate that O'Brien Electrical and Plumbing Rowville is meeting its supervisory obligations to all apprentices as required by the ETR Act
• demonstrate that the business can offer an appropriate scope of work for electrical and plumbing apprentices to meet the requirements of their qualification
• any information and/or relevant evidence to demonstrate how O'Brien Electrical and Plumbing Rowville will meet its legal requirements to ensure that apprentice wages and conditions are being paid as per the relevant employment arrangements
• if available, provide any relevant occupational health and safety policies/procedures outlining appropriate workplace behaviour standards and if there is a process should apprentices raise issues whilst at work.

At Catanghal's request, the time to make a submission was extended to 17 June 2025.

6 On 17 June 2025, Catanghal wrote to Gauci making a submission on behalf O'Brien Rowville. Catanghal said in relation to electrical apprentices that O'Brien Rowville were committed to implementing appropriate systems and practices to provide effective supervision and training for apprentices including that:

1. All electrical apprentices are supervised by a licensed A-Grade electrician at all times, in line with Energy Safe Victoria's guidelines.

...

1. Supervisors are not only qualified but trained in mentoring and communication to better support apprentice development.
2. Supervisors and apprentices both undergo an onboarding program that explains expectations around supervision and reporting.
3. All job tasks are aligned with the apprentice's registered training plan to ensure progressive learning.
4. Monthly check-ins with supervisors and senior managers allow apprentices to raise concerns and track progress.

Speaking about the immediate impact the revocation decision would have on current apprentices, Catanghal said:

The most immediate and severe impact of this proposed action would be on the 91 apprentices currently engaged across our businesses. This figure includes 74 active and 17 pending training contracts[.]

Addressing the Authority's specific concerns, Catanghal said:

The [Authority] has noted concerns about adequate supervision. We have robust systems in place to ensure every apprentice is supervised by qualified professionals in accordance with all regulatory requirements. To verify their understanding and skill acquisition, we have implemented our own comprehensive testing procedures to continually assess their competencies, ensuring they are not just progressing, but excelling.

...

We are confident that our practices not only meet but exceed the requirements for an approved employer. We are committed to working transparently with the [Authority] to resolve any outstanding concerns.

7 Gauci wrote to Catanghal on 22 August 2025 to communicate that the submission did not satisfy the Authority that O'Brien Rowville was currently compliant with employer obligations under the training contracts and ETR Act. Gauci requested that Catanghal meet with the Authority to further clarify O'Brien Rowville's suitability to employ apprentices and for the Authority to make a decision on the approval. That meeting, attended by Gauci, Catanghal and others, took place on 4 September. The meeting minutes record:

The [Authority] informed the entities' representatives that it is aware that on multiple occasions apprentices under the control of at least one of the entities trading and operating as O'Brien Electrical and Plumbing Rowville have not been adequately supervised at worksites. The [Authority] is also aware of at least one of the entities inappropriately scoping work for apprentices, contrary to relevant training plans, not taking adequate steps to ensure appropriate payment of wages and entitlements to apprentices, and limiting apprentices' access to training. In light of this, the [Authority] asked specific questions relating to:

• How many A-Grade electricians are employed, and at which entities they are employed

• How worked [sic] is allocated to staff, including apprentices (including as confirmed by job cards and other documents or systems)

• How staff work in teams, with specific reference to a Licensed A-Grade electrician supervising apprentices in accordance with Energy Safe Victoria's (ESV's) mandatory requirements

• Responsibility for monitoring the progress of the apprentices against their training plan, and attending training as scheduled by the Registered Training Organisation (RTO)

• How supervisors (and Technical Supervisors) maintain oversight of the competency levels of the individual apprentices

• How the scope of work for an apprentice is designed to cover all areas of the training plan and qualification

• How apprentices are managed through the different parts / operations of the organisation

[The Authority] is otherwise concerned to understand how the entities, including those trading and operating as O'Brien Electrical and Plumbing Rowville, are meeting any relevant obligations they have in relation to ESV requirements, specifically regarding the supervision for apprentices, and their obligations to ensure the quality of apprentice training. [The Authority] also raised its concerns that on the information currently available to it, it is not clear that the entities can or will meet their obligations under regimes administered by other relevant co-regulators, such as WorkSafe Victoria and the Fair Work Ombudsman.

Gauci gave the plaintiffs a further opportunity to provide additional information and evidence to the Authority addressing the concerns, including those communicated in the letter of 17 April 2025.

8 Gauci deposed to the following information available to the Authority at the time of the meeting. First, information provided by Rebecca Clark, Director, Insights and Reform at Apprenticeships Victoria ('AV') to the effect that an ESV Compliance Officer had attended a plaintiff worksite in Chadstone where first and fourth year apprentices had been present onsite with no A-Grade electrician present.

9 Second, information provided by Clark on 19 August 2025, relaying a report by an apprentice who, while working for one of the plaintiff companies, experienced two workplace accidents, both of which occurred with no supervision on site, and who was on the day of the report going to a worksite without a licensed supervisor. Clark informed Gauci that 'ESV had attended the site and shut down operations as no licensed electrician was onsite to supervise. The site was later reopened when a licensed electrician arrived.'

10 Third, Gauci was copied to an email chain in which an Apprentice Support Officer ('ASO') informed the Authority:

The issues apprentices are experiencing within O'Brien Rowville honestly cover all aspects of apprentice life but to varying degrees. The most significant centre around an ongoing persistent lack of adequate supervision on a daily basis. Apprentices recount they spend approximately more than 50% of the time working without licensed electrician supervision. Apprentices are either teamed up with more experienced apprentices or asked to teach and supervise junior apprentices.

11 There is no evidence that Catanghal or O'Brien Rowville were given notice of this specific information.

12 On 12 September 2025, Catanghal wrote to Gauci providing information to support the continued approval of the plaintiffs to employ apprentices. That letter includes:

Our organizational [sic] structure ensures that all apprentices are supervised by a licensed A-Grade electrician, in accordance with Energy Safe Victoria's (ESV's) mandatory requirements[.]

...

We cover important safety procedures like monthly toolbox meetings, safety briefings for new projects, and the use of SWMS (Safe Work Method Statements) which must be understood and signed on each site using our Digital Forms.

...

Our supervisors and Technical Supervisors maintain continuous oversight of each apprentice's competency levels.

Catanghal included in the letter a screenshot of a software system used to maintain oversight of supervision and allocation of work tasks. The Authority submitted there was no explanation given by the plaintiffs as to how appropriate supervision was provided in circumstances where the screenshot showed three qualified employees were on leave on the particular day, and a further qualified employee worked on three different job sites.

13 Catanghal attached documents to her letter in support of the continued approval of the plaintiffs to employ apprentices. The Authority made the following submissions in relation to some of those documents:

(a) A job card for electrical work performed on 12 August 2025 showed the employees involved were a qualified electrician, a second year apprentice, an apprentice who had not yet been approved by the Authority, and a third year apprentice. The Authority submitted the job card did not explain how one qualified employee could adequately supervise three apprentices at a worksite over an eight-hour period.

(b) A job safety and environmental analysis ('JSA') dated 5 September 2025 that is an example of the risk hazard assessment employers are required to complete for certain jobs. The JSA was signed by two apprentices. Under the heading 'Site Manager/Customer Representative', the JSA reads: 'Safety and environmental control measures are implemented effectively'. The JSA was acknowledged as having been completed by one of the apprentices, and was not signed by any other person. The Authority submitted, based on evidence given by Gauci, that it was not appropriate for a JSA dealing with occupational health and safety issues to be signed off by apprentices alone.

(c) A Service Project Manager position description. Gauci said that in the circumstances in which the document was provided, she assumed it was a position description for an A-Grade electrician. The Authority submitted the position description says nothing about the responsibility of the A-Grade electrician to supervise apprentices on work sites.

(d) A payslip for a fourth year apprentice covering the period 18-24 August 2025 recording payment of a 'team leader' allowance of $80. Gauci said only a qualified electrician can be a 'team leader'.

The Authority submitted that these documents supported the revocation decision.

14 Gauci wrote to Catanghal on 26 November 2025 communicating the revocation decision. Gauci said the plaintiffs had not provided sufficient evidence to demonstrate compliance with their obligations under the ETR Act and the Employer Training Contract. She said:

The Submission makes several assertions that are not supported by evidence. For example:

• The documents supplied do not provide direct evidence of supervision of apprentices, other than the scheduling of apprentices with non-apprentices.
• Insufficient evidence that apprentices are consistently receiving a varied scope of work in order to fulfil the requirements of the qualification.
• The tracking spreadsheet does not provide evidence of instruction in, or monitoring of, skill development in electrical or plumbing work.
• The documents supplied reveal a primary focus on employees meeting company targets and shows that work is monitored via digital checklists and uploading photographic evidence of completed work. This does not provide evidence of direct supervision by qualified supervisors.
• The induction presentation does not refer to or explain supervision, other than the reference to Team Leaders.
• No evidence of fee reimbursement.

The revocation decision was communicated as follows:

I have revoked the following entities under Section 5.5.7(4) of the ETR Act:

• DELWIRE PTY LTD (trading as) O'Brien Electrical & Plumbing Rowville (ABN: 59 674 984 484)

• SPARK VIC AU PTY LTD (trading as) Sparkvic Pty Ltd (ABN 11 674 999 243)

• ECOELEC PTY LTD (trading as) ECOELEC PTY LTD (ABN 66 676 719 967)

• PLUMB SAVE AU PTY LTD trading as O'Brien Electrical & Plumbing Rowville (ABN 51 674 998 666)

• INTELINA PTY. LTD. trading as O'Brien Electrical Rowville (ABN 16 623 625 776).

This means that these businesses can no longer employ apprentices or trainees in Victoria.

15 Gauci said in relation to the current training contracts:

I have also cancelled the training contracts for the apprentices ... under Section 5.5.15(2) of the ETR Act. As the businesses are no longer approved to employ apprentices and trainees, I consider this to be a special circumstance that makes the cancellation of these training contracts desirable.

The cancelled apprentices will keep credit for any training completed. Separate letters have been sent to each cancelled apprentice and to the three apprentices with pended [sic] training contracts to advise them of this decision and to provide contacts for support and further information.

16 Gauci said the electrical and plumbing trades are high-risk industries, in respect of which the Authority works with other regulators and stakeholders in an attempt to eliminate or minimise harm to apprentices. She gave evidence about the particular risk of death and serious injury associated with electrical work.

17 Gauci said that following the revocation decision she made enquiries with AV, regarding support offered to apprentices impacted by the decision. She said that based on those enquiries she understood AV had arranged for ASOs to contact affected apprentices, that 37 of the 41 apprentices had been spoken to by an ASO representative and one of the remaining apprentices had contacted the AV helpdesk. Gauci said she had been informed by AV that:

(a) four apprentices have elected to stay employed at one of the plaintiffs;

(b) ten apprentices are actively looking for alternative employment;

(c) eight apprentices have alternative job opportunities; and

(d) five apprentices have secured employment with another employer not related to the plaintiffs.

18 Gauci also referred to other organisations that she had contacted in an effort to ensure that the apprentices were appropriately supported.

19 Catanghal said that in the correspondence from the Authority and at the meeting on 4 September 2025, there was no clarity in what material would satisfy the request for compliance with the ETR Act.

20 Catanghal said the more senior apprentices in their third and fourth years were particularly critical to the plaintiffs' business operations.

21 Catanghal said the revocation decision would have a significant and long-lasting financial impact on the plaintiff companies, the 130 employees of O'Brien Rowville, its customers and other non-associated parties. She said it would be difficult for apprentices to secure alternative employment, and that in the meantime they would be unable to continue with the required training to complete their apprenticeship. She said the revocation decision may impact customers having work completed in a timely fashion and have a flow-on effect on matters such as contracts of sale of properties. Catanghal described the negative personal impact on her of the revocation decision.

22 An employer must have the Authority's approval to enter into a training contract with an apprentice.[1] The procedure for approval and revocation of approval is governed by s 5.5.7 of the ETR Act, which reads:

(1) In determining whether to approve an employer to employ a person under a training contract the Authority must have regard to the employer's ability to comply with the training contract.

(2) Without limiting the generality of subsection (1), the Authority must have regard to all of the following matters -

(b) the equipment and methods to be used in training;

(c) whether any person whom the employer uses or proposes to use for the purpose of supervising the training of an apprentice under a training contract -

(i) has the appropriate qualifications, knowledge and skill for that purpose[.]

(3) An approval under subsection (1) may be given subject to conditions -

(a) limiting the number of apprentices that the employer may have in the employer's employment at any one time; and

(b) as to any other matters that the Authority thinks fit.

(4) The Authority may revoke an approval at any time and in any circumstances including those where a condition of the approval is breached.

23 Approval of training contracts is governed by s 5.5.10 of the ETR Act, which reads:

(1) A training contract must be in the form, and contain the particulars, approved by the Authority.

(2) The Authority may approve a training contract only if the agreement is substantially in the same form and has the same content as the agreement approved by the Ministerial Council.

(3) The Authority may refuse to approve a training contract if the Authority is of the opinion that the training contract does not comply with this Part or any determination of the Authority under this Part.

The Authority may determine the term of a training contract,[2] and may at any time order cancellation of a training contract if it is of the opinion that special circumstances make that desirable.[3]

24 There is no real dispute about the principles that apply to determination of the plaintiffs' application for an interlocutory injunction. The Court must be satisfied the plaintiffs have shown:

(a) there is a serious question to be tried;

(b) the balance of convenience favours the granting of an injunction; and

(c) the plaintiffs are likely to suffer injury for which damages will not be an adequate remedy.[4]

In applying these principles, the Court should take whatever course appears to carry the lower risk of injustice.[5] The rights of the public and of third parties may be a relevant factor in determining where the balance of convenience lies.[6] The strength of the case and balance of convenience considerations may be interdependent and should not be considered in isolation. When the adequacy of damages as a remedy is unclear, that may be relevant to assessment of both matters.[7]

25 The parties were at odds about the merits of the case brought by O'Brien Rowville. The Authority submitted the materials did not support any real possibility of the plaintiffs establishing that the revocation decision was unreasonable in the sense of being outside the 'range of possible acceptable outcomes'.[8] The defendant submitted that while the plaintiffs alleged jurisdictional error on the basis that the Authority took into account irrelevant considerations or failed to take into account relevant considerations in making the revocation decision, there is no elaboration or identification of the particular considerations in the plaintiffs' material. The defendant submitted the natural justice ground was weak in circumstances where the Authority had notified the plaintiffs on a number of occasions about the intention to make a revocation decision and the particular concerns that the plaintiffs needed to address, and had afforded them a number of opportunities to address those concerns.

26 In relation to the reasonableness ground, O'Brien Rowville submitted that by moving from notifying its concerns to the revocation decision without attempting a negotiated outcome the Authority acted in a way that was inconsistent with its Regulatory Approach Statement and the Employer Approval Process ('EAP') and failed to consider as an option matching the approval to employ apprentices subject to conditions in accordance with s 5.5.7(3) of the ETR Act. The EAP does say that 'blanket' revocation will be considered where there are established findings of egregious and/or multiple breaches of the ETR Act. However, that statement does not hinder the Authority's discretion. Further, the EAP also states that '[e]ach regulatory case is different', suggesting that the regulatory approach will depend on the facts of the case.

27 Relying on what was said by Brennan J in Kioa v West,[9] the plaintiffs submitted that the Authority obviously had information available to it about alleged shortcomings, particularly in relation to the supervision of apprentices, but had failed to communicate those matters to the plaintiffs in order to give them a chance to rebut or address the allegations. It appears O'Brien Rowville was not given the opportunity to answer allegations in information available to the Authority about specific instances where there was an alleged failure to meet the supervision and scope of work requirements. However, the plaintiffs were being asked by the Authority to address how they were satisfying the statutory requirements for approval to enter training contracts with apprentices rather than answer allegations about past shortcomings. Further, there is substance to the Authority's submissions that some of the information provided by O'Brien Rowville supported the revocation decision. Finally, the minutes recorded that Catanghal was told at the meeting that the Authority was aware of multiple occasions when apprentices were not adequately supervised. There is no suggestion that Catanghal asked for the information so that O'Brien Rowville could answer the allegations.

28 I accept O'Brien Rowville have an arguable case for review of the revocation decision. However, the relative strength of that case is not a factor that weighs heavily in favour of O'Brien Rowville on the balance of convenience.

29 O'Brien Rowville seeks relief in the nature of certiorari to quash the revocation decision, a declaration that companies in the O'Brien Rowville group are approved employers for the purposes of s 5.5.7(4) of the ETR Act, and associated relief. No claim is made for damages. The basis for any further claim by O'Brien Rowville against the Authority in respect of the revocation decision that would sound in damages is at best uncertain.

30 When it made the revocation decision, the Authority also cancelled the training contracts of the 41 apprentices employed by O'Brien Rowville on the basis that it was of the opinion that the special circumstances made the cancellation desirable ('cancellation decision').[10] O'Brien Rowville does not seek any interlocutory or final relief in respect of the cancellation decision. The interlocutory relief sought would not have the effect of re-enlivening the cancelled contract or re-instating the 41 apprentices in employment with O'Brien Rowville.

31 If the interlocutory injunction is granted, O'Brien Rowville could only employ an apprentice after reaching an agreement with a prospective apprentice to enter into a training contract, and obtaining the Authority's approval of that training contract. Approval would only be granted by the Authority exercising its powers under the ETR Act. Accordingly, there is no certainty about the number of apprentices O'Brien Rowville would be able to employ if the interlocutory injunction were granted.

32 The revocation decision does not prevent O'Brien Rowville re-applying now or at any time in future for approval to employ apprentices. An EAP produced by the Authority states, in relation to re-approval of previously revoked employers:

Where the [Authority] has revoked employer approval, the employer can apply to the [Authority] for employer approval again.

The Act does not specify time periods for employer revocation. Therefore, an employer can apply at any time, but applications received a short time period after revocation, without any additional evidence, will not be considered.

If any of the O'Brien Rowville companies were to seek re-approval, the Authority would presumably require additional evidence that satisfactorily addressed the concerns that informed the revocation decision.

33 Two relevant considerations arise as a result of the above. First, the balance of convenience cannot be assessed on the assumption that if the interlocutory injunction is ordered, O'Brien Rowville will immediately or within a short time employ the same apprentices or a similar number of apprentices as it did when the revocation decision was made. The apprentices that are available to be employed, agree to employment with O'Brien Rowville, and in respect of whom training contracts are approved by the Authority, is completely uncertain. Second, the right of the O'Brien Rowville companies to apply for re-approval further limits the practical effect of an interlocutory injunction.

34 O'Brien Rowville submitted that the loss of 33 per cent of the overall workforce of its businesses would constrain the ability to complete outstanding work in a timely manner. I accept that the loss of 41 employee apprentices is likely to have a significant impact on the operation of at least some of the O'Brien Rowville businesses. However, as I have already said, it is not clear how many of those apprentices would be re-employed if the interlocutory injunction were granted. Further, there is no evidence that enables me to reach even a broad conclusion about the impact of refusing interlocutory relief on the timely completion of O'Brien Rowville's contracted work. For example, a qualified electrician employed by O'Brien Rowville may be more productive as a result of being relieved of the burden of supervising junior apprentices. The capacity of O'Brien Rowville businesses to engage replacement employees as qualified tradespeople or trades assistants is unclear.

35 O'Brien Rowville relies on prejudice to its former employee apprentices resulting from the revocation decision. I accept that the decisions made by the Authority on 26 November 2025 are likely to have caused significant disruption and at least some short-term hardship to most of the 41 apprentices previously employed by O'Brien Rowville. That hardship includes the loss of employment and remuneration; the interruption to training and education; and the associated uncertainty about the future. However, the following matters must also be considered.

36 First, as I have already said, O'Brien Rowville does not seek any relief in respect of the cancellation decision. As a result of that decision, the apprentices could not continue in employment with O'Brien Rowville as apprentices.

37 Second, neither the revocation decision nor the cancellation decision prevent O'Brien Rowville re-employing the former apprentices in a different role, such as trades assistant.

38 Third, I accept Gauci's evidence that relevant agencies have been supporting the apprentices impacted by the Authority's decision.

39 Fourth, the concerns held by the Authority that led to it making the revocation and cancellation decisions raise very serious issues for apprentices employed by O'Brien Rowville. Gauci's evidence is that electrical and plumbing trades are high-risk industries. The supervision and scope of work concerns held by the Authority are directly relevant to the degree and magnitude of risks faced by apprentices during their employment with O'Brien Rowville and into the future. Gauci's evidence emphasises the seriousness of the occupational risks that are involved. Further, the supervision and scope of work concerns are directly relevant to the quality of training apprentices can expect if employed by O'Brien Rowville. The risk that an adverse outcome for an apprentice may eventuate weighs heavily against granting the interlocutory injunction.

40 Fifth, I accept the Authority's submission that there is a public or third party interest in the quality and safety of work undertaken by apprentices employed at O'Brien Rowville. The risk of an adverse impact on quality and safety of work performed by apprentices who are not adequately supervised or trained also weighs against granting injunctive relief.

41 I conclude that the balance of convenience strongly favours dismissing the application by O'Brien Rowville for interlocutory relief.

42 For the above reasons, I am not satisfied that interlocutory relief should be granted. The plaintiffs' summons will be dismissed. I will hear from the parties as to the appropriate form of order.

[1] Education and Training Reform Act 2006 (Vic) s 5.5.6 ('ETR Act').

[4] Australian Broadcasting Corp v O'Neil [2006] HCA 46; (2006) 227 CLR 57, 68 [19] (Gleeson CJ and Crennan J), 82 [65], 84 [72] (Gummow and Hayne JJ); Bradto Pty Ltd v State of Victoria [2006] VSCA 89; (2006) 15 VR 65, 74 [39], 82 [84] (Maxwell P and Charles JA) ('Bradto').

[6] Patrick Stevedores No 2 Pty Ltd v Maritime Union of Australia (1998) 195 CLR 1, 41-3 [65]-[66] (Brennan CJ, McHugh, Gummow, Kirby and Hayne JJ).

[7] Samsung Electronics Ltd v Apple Inc (2011) 217 FCR 238, 259-60 [61]-[62], 261 [67].

[8] Minister for Immigration and Citizenship v Li [2012] HCA 61; (2013) 249 CLR 332, 375 [105] (Gageler J).

[9] [1985] HCA 81; (1985) 159 CLR 550, 628-9.