Sparke v Hay

Judgment 1David Sparke ("Mr Sparke" or "the apprentice") and Beeox Corporation Pty Ltd ("Beeox" or "the employer") have sought leave to appeal and, if leave is granted, to appeal from a decision of the Vocational Training Appeal Panel ("VTAP") given on 24 April 2012. VTAP affirmed a decision of the Vocational Training Tribunal ("VTT") given on 29 February 2012, cancelling the electrical apprenticeship between Mr Sparke and Beeox. The respondents are Mr Garth Peter Hay who is Training Coordinator in State Training Services, which is an agency of the Department of Education and Communities, and VTAP, which has entered a submitting appearance. 2It was Mr Hay who, on 20 January 2012, in his capacity as an industry training officer, made a complaint to the Commissioner for Vocational Training ("the Commissioner") that Beeox "has failed to discharge [its] obligations under the apprenticeship" under s 39(1)(b) of the Apprenticeship and Traineeship Act 2001 ("the Act"). Further, that Beeox "had failed to comply with the requirements of [the] Act under s 39(2)". 3This appeal has been the subject of an interlocutory judgment given on 19 March 2013 in Sparke v Vocational Training Appeal Panel [2013] NSWIRComm 18. That judgment was the subject of an appeal by the appellants, Mr Sparke and Beeox. An application to stay these proceedings pending the appeal from the interlocutory judgment was refused on 12 April 2013. The appellants agreed that, notwithstanding the appeal against the interlocutory decision, their substantive appeal from the decision and orders of VTAP should proceed. 4The interlocutory judgment described the legislative context in which the Court is required to deal with the appeal under the Act and there is no need to repeat that. The judgment at [10] also confirms that the appeal is a hearing de novo: Ryano Pty Ltd v New South Wales Department of Education and Training [2009] NSWIRComm 180. 5Before dealing with the application for leave to appeal and appeal, it is necessary to describe the nature of the issue for determination by the VTT and, later, the VTAP and the outcome of the proceedings below in order that this decision may be seen in context. 6Mr Hay was responsible for overseeing the training requirements provided to apprentices and trainees, including training provided by host employers and the supervision of training by employers. He was also responsible for advising or assisting employers in relation to the provision of training to apprentices and trainees and for reporting to the Commissioner any concerns in relation to the training provided to an Apprentice or Trainee: see s 66 of the Act. 7In undertaking his duties as a Training Coordinator, he may enter any premises or place on which a recognised trade vocation is conducted for the purposes of an onsite monitoring meeting where he may examine equipment in relation to the vocation or any document relating to the vocation: see s 67 of the Act. 8According to the evidence of Mr Hay in these appeal proceedings, Beeox entered into a training contract under the the Act with Mr Sparke on 31 July 2009, in relation to Mr Sparke's apprenticeship in the Electrotechnology-Electrician trade. Following visits to Beeox's premises in September and December 2011 and various inquiries made by Mr Hay, he asserted he found that: (1) Mr Sparke had not done any home installation work; (2) his employer, Beeox did not emply a licensed electrical tradesman to supervise Mr Sparke's work and was only supervised when the employer had contractors on site; (3) Mr Sparke did not undertake any electrical work for Beeox as the company did not require it; (4) any electrical work Mr Sparke may have undertaken would have been in the course of his work for OneWaterNaturally. Mr Sparke is the director and secretary of that company; (5) Mr Sparke's spouse, Ms Sue Sparke, is a director of Beeox and shareholder in OneWaterNaturally; (6) inquiries of North Sydney TAFE by Mr Hay in September 2012 led him to understand Mr Sparke's attendance was "poor" and that he had failed to provide information from his employer that he was meeting on-site competencies required as part of the trade course; and (7) it was a term of the training contract that Mr Sparke was not in a business relationship with Beeox and had not worked for or been hosted by Beeox. 9Mr Hay prepared a report dated 20 January 2012, recommending to the VTT that the apprenticeship between Mr Sparke and Beeox be cancelled at the commencement date and that the five months' credit for unrecorded time be annulled. 10On 29 February 2012, the VTT found that Beeox had failed to discharge its obligations under the apprenticeship and had failed to comply with the requirements of the Act including ss 13(1)(a), 13(1)(b), 13(2), 14(2), 15(1)(b), 15(1)(d) and 15(1)(e). The VTT ordered that the apprenticeship between Mr Sparke and Beeox be cancelled from its start date. 11The VTT's findings were that in relation to the complaint under s 39(1)(b) of the Act regarding the failure to discharge its apprenticeship obligations in relation to the training contract: (i) Beeox did not have a person with the competencies of the Electrical (Electrician) trade vocation to enable Mr Sparke to undertake the required work-based training, contrary to s 13 of the Act; (ii) Beeox's principal activity and business did not encompass work-based activities that supported all required work-based training in the Electrical (Electrician) trade vocation and the Vocational Training Order; (iii) Beeox could not demonstrate that it was able to meet all employer obligations either in its own right or through the use of "host" employment arrangements in a manner that ensured Mr Sparke received all required training in all aspects of the Electrical (Electrician) vocation. 12In relation to the complaint under s 39(2) of the Act, that Beeox failed to comply with the Act, the VTT found: (i) Beeox failed to comply with s 13(1)(a) of the Act, as the supervisor relied upon to supervise Mr Sparke did not have the relevant competencies to do so, and Beeox's scope of business activities was not adequate to provide the work-based component of the required training for an electrician; (ii) Beeox failed to comply with s 13(1)(b) of the Act by failing to liaise with the registered training organisation in relation to Mr Sparke's attendance at North Sydney TAFE; (iii) Beeox failed to comply with s 13(2) of the Act because it could not meet its obligations as an employer by ensuring that the apprentice was safely supervised in the work place when performing potentially hazardous electrical wiring work; (iv) Beeox failed to comply with s 15(1)(b) of the Act by failing to notify the Commissioner of any difficulty being experienced by Mr Sparke making satisfactory progress in his apprenticeship training; (v) Beeox failed to comply with s 15(1)(d) of the Act by failing to notify the Commissioner of any failure by Mr Sparke to participate in and make satisfactory progress in classes at North Sydney TAFE; (vi) Beeox failed to comply with s 15(1)(e) of the Act by failing to notify the Commissioner that it would be relying on the use of host employers (OneWaterNaturally and Hi-Point) to enable Mr Sparke to gain the required work-based training; (vii) Beeox failed to comply with s 14(2) of the Act by not placing Mr Sparke with host employers in a manner that ensured that Mr Sparke received appropriate supervision and the work-based component of the required Electrician trade vocation. 13On 14 May 2012, VTAP dismissed the appeal by Beeox and Mr Sparke from VTT's decision, stating: The appeal is refused. The employer did not provide evidence of satisfactory on the [job] training and supervision. The employer also did not sufficiently discharge their obligations regarding notifying the Commission of the apprentice's training progress or changes to their apprentice's employment circumstances. The employer does not have sufficient knowledge of the requirements of the A & T Act. 14Pursuant to s 55 of the Act, the appellants subsequently filed an application seeking leave to appeal and appeal from VTAP's decision on 23 October 2012. An amended appeal notice was filed on 9 November 2012.