Sparke v Hay

The appeal 15The amended application for leave to appeal and appeal was made pursuant to s 55(1) of the Act. Section 55 provides: 55 Appeals to Industrial Relations Commission (1) An appeal from a decision of the Appeal Panel may be made to the Industrial Relations Commission in Court Session (the Commission), but only by leave of the Commission. (2) An application for leave to appeal under this section must be made within 6 months after the appellant is notified of the Appeal Panel's determination or within such further period as the Commission allows. (3) In dealing with the appeal, the Commission: (a) may exercise any function that could have been exercised by the Appeal Panel in making the determination the subject of the appeal, and (b) is not bound by the rules of evidence, but may inform itself in any manner it thinks fit. (4) The decision of the Commission is final and is to be given effect to as if it were the decision of the person or body in respect of whose decision, determination, action or failure to act the appeal has been made. 16Section 80 of the Act provides: 80 Relationship with Industrial Relations Act 1996 In the event of an inconsistency between: (a) the provisions of this Act, or of any regulation, vocational training order or vocational training direction made under this Act, and (b) the provisions of the Industrial Relations Act 1996 or of any regulation, order, award or agreement under that Act (other than a provision with respect to existing worker trainees), the provisions referred to in paragraph (a) prevail to the extent of the inconsistency. 17The matter appealed against was the cancellation of Mr Sparke's apprenticeship with Beeox. The grounds of appeal were that: 1. The Panel erred in its findings in relation to section 39(1)(b), namely: a. With regards to section 13, Beeox has provided Mr Sparke with an individual who possesses the required competencies to undertake the required work-based training. b. The nature of the Employer's business activities has not changed in any way since the date the apprenticeship was approved. Therein lies two issues: i. As the apprenticeship was approved based on the nature of the Employer's business, and as the nature has not changed, it therefore does encompass work-based activities that support all required training, making the determination at 1.ii. incorrect; or ii. The apprenticeship was approved in error, and as such the Appellants would have a further claim against both the NSW Department of Education and Training and MAS National. c. The Act does not stipulate that the competent supervising individual is to be employed by the Employer, therefore the determination at 1.i. and 1. iii. is incorrect. 2. The Panel erred in its findings in relation to s 39(2), namely: a. Beeox did provide Mr Sparke with an individual whom possesses the required competencies to supervise Mr Sparke's work-based learning, therefore meeting the requirements of section 13(1)(a). b. The Employer did liaise with both MAS National and TAFE North Sydney regarding Mr Sparke's attendance and performance, as required under section 13(1)(b). c. Further, as the Act does not specify a particular period of time and amount that the Employer is required to liaise with the registered training organisation, Beeox has met its obligations under section 13(1)(b) of the Act. d. Beeox did discharge its obligations to Mr Sparke as his employer, therefore meeting its obligations under s 13(2). e. Mr Sparke's progress was deemed to be satisfactory to both himself and Beeox, therefore Beeox was not required to notify the Commissioner as per section 15(b). f. Mr Sparke's participation was deemed to be satisfactory to both himself and Beeox, therefore Beeox was not required to notify the Commissioner as per section 15(d). g. As the apprenticeship was approved based on the nature of the Employer's business, and as the nature has not changed, it was therefore not required that Beeox notify the Commissioner under section 15(e). h. It is disputed that a host-employer relationship is in existence, however in the alternative that it is found to be the case, it is argued that the employer met all obligations as per section 14 of the Act. 3. The Tribunal erred in its application of section 51(1)(c) in cancelling the apprenticeship of Mr Sparke. 18The relief sought in the application was to dismiss VTAP's findings and reinstate the apprenticeship of Mr Sparke with Beeox.

Evidence 19I should observe that the parties were provided with every opportunity to adduce evidence in the appeal proceedings that was relevant to the appeal. There was material that the appellants sought to have the Court address, but it was simply not relevant and, in interlocutory rulings, I have refused to admit it or have struck out that material. 20An appeal book was filed. The appeal book contained: (a) the relevant training contract between Mr Sparke and Beeox; (b) Mr Hay's report to the VTT regarding his complaint under s 39(1) and (2) of the Act relating to the Sparke/Beeox training contract, dated 20 January 2012; (c) The determination of the VTT regarding Mr Hay's complaint; (d) The transcript of proceedings before VTAP on 24 April 2012 and VTAP's determination to refuse the appeal from the VTT and to cancel the apprenticeship; (e) A briefing for VTAP, which included: (i) the qualification requirements for the Electrical Trade; (ii) Training Contract details of Mr Sparke; (iii) various communications and file notes of conversations between State Training Services and Mr Sparke and Beeox; (iv) Mr Sparke's attendance record at TAFE; (v) Mr Sparke's academic record in his trade course at TAFE; (vi) approval requirements regarding apprenticeship and traineeship applications; (vii) information regarding the products and business of OneWaterNaturally; (viii) ABN and ASIC details regarding Beeox. 21For the appellants, an affidavit of Mr Sparke was filed on 16 January 2013. There was also an affidavit of Ms Sue Sparke filed on the same day. The matter came on for hearing on 16 April 2013, when it became apparent there were significant gaps in the appellants' evidentiary case, with the appellants seeking to rely on statements by persons not made available for cross-examination, including an unsigned statement. The hearing was adjourned to allow the appellants an opportunity to remedy the deficiencies. 22Subsequently, the appellants filed further affidavits: (a) a further affidavit of Mr Sparke filed on 15 May 2013, (b) an affidavit of John Roe, an electronics technician who held an electrical contractor's licence and who provided electrical services to OneWaterNaturally between 2008 and 2010. The affidavit was filed on 15 May 2013; (c) an affidavit of Jamie Dixon who was employed by OneWaterNaturally from May 2006 until January 2012 as a product and business development manager. The affidavit was filed on 15 May 2013; (d) an affidavit of Geraldine McGuire filed on 15 May 2013. Relevantly, Ms McGuire was a business consultant for MAS National, an accredited Australian Apprenticeship Centre to assist in the establishment of apprenticeships and contract completion. Ms McGuire had dealings with OneWaterNaturally in setting up plumbing apprenticeships and discussing the Electrotechnology Electrician apprenticeship for Mr Sparke. Ms McGuire was not required for cross-examination; and (e) an affidavit of Gary Rollans filed on 15 May 2013. Mr Rollans held a radio technician trade qualification. Mr Rollans had been employed by OneWaterNaturally and relevantly deposed that he had a role in training and supervising Mr Sparke in his apprenticeship. 23In addition, the appellants relied on the following: (a) a spreadsheet prepared by Ms Sparke relating to Mr Sparke's attendance at TAFE and competencies achieved, seeking to challenge the respondent's evidence in this respect; (b) a table prepared by Ms Sparke regarding asserted flaws/errors in records relied upon by the respondent regarding Mr Sparke's progress at TAFE; (c) a table prepared by Ms Sparke regarding asserted flaws/errors in attendance records of TAFE; (d) Reports to Employer (Beeox) regarding Mr Sparke's progress at TAFE; (e) an affidavit of Ms Sparke filed on 20 June 2013, purporting to refer to source material from which information referred to in (f), (g) and (h) hereof was derived; (f) a one page document published by State Training Services regarding industrial coverage of apprentices in New South Wales; (g) a two-page extract from the "Commissioners Information Bulletin" regarding the term of apprenticeship in the Electrotechnology Electrician apprenticeship; (h) a one page extract from a State Training Services document entitled "Procedural fairness in the Department of Education and Training"; (i) a seven page extract from a State Training Services document entitled "Management of Ethical Business and Conflicts of Interest"; (j) a one page extract from a State Training Services document entitled "Competency Based Completion"; (k) an eight page extract from the Code of Practice 2007, "Low Voltage Electrical Work" (WorkCover Authority of New South Wales); and (l) a seven page extract from Safe Work Australia's Code of Practice "Managing Electrical Risks in the Workplace", July 2012. 24For the respondent, in addition to an Appeal Book, a bundle of documents was filed that included: (a) "Work Performance Portfolio" published by Electrotechnology Industry Training Group Company Limited (ElectroGroup); (b) "National Supervision Policy - Electrotechnology October 2009" published by EE-OZ Training Standards [EE-OZ is the trading name of the ElectroComms and Energy Utilities Industry Skills Council]; and (c) "UEE30811 Certificate III in Electrotechnology Electrician" Course requirements approved 20 March 2012 and published by EE-OZ Training Standards. 25The respondent also sought to rely on an affidavit of Mr Hay filed on 18 December 2012 and an affidavit of Quentin Jeremy, Student Services Leader with the Electrotechnology Industry Training Group Company Limited (ElectroGroup), filed on 22 March 2013. In addition, the respondent sought to rely on: (a) a PAYG payment summary in respect of Mr Sparke for the 2009/10 financial year showing gross payments to be $14,627; (b) six tax invoices to OneWaterNaturally for work done by Electrical Doctor, DME Electrical Contractors and Hi-Point Electrical Pty Ltd in 2009 to 2011 for amounts ranging from $220 to $2,121.72; and (c) a copy of a blank "eprofiling" form for certificate III Electrotechnology Electrician.

The legislation 26The relevant provisions of the Act are in the following terms: 12 Training contracts are binding (1) A training contract has effect as if it were a deed duly executed by the employer and the apprentice or trainee. (2) Subject to section 11: (a) the training contract for a full apprenticeship binds the employer and the apprentice: (i) from the time the employer is notified that the establishment of the apprenticeship has been approved, or (ii) from the end of the probationary period, whichever is the later, until the end of the term of the apprenticeship, and ... (3) Any time during which an employer has employed a person as an apprentice or trainee is taken to form part of the term of the person's apprenticeship or traineeship. (Section 11 of the Act allows for the withdrawal from an apprenticeship during a probationary period). 13 Duties of employers under apprenticeships and traineeships (1) The employer of an apprentice or trainee must, in accordance with the relevant training plan, take all reasonable steps: (a) to enable the apprentice or trainee to receive the work-based component of the required training, in particular by providing all necessary facilities and opportunities to acquire the competencies of the vocation concerned, and (b) to enable the apprentice or trainee to obtain an appropriate qualification for that vocation, in particular: (i) by releasing the apprentice or trainee as required for attendance at the relevant registered training organisation, and (ii) by liaising with the relevant registered training organisation in relation to the apprentice's or trainee's attendance and participation in the training provided by the relevant registered training organisation. (2) The employer of an apprentice or trainee must discharge his or her obligations under the apprenticeship or traineeship as an employer of the apprentice or trainee. 14 Duties of employers using host employment arrangements (1) An employer that places an apprentice or trainee with a host employer under a host employment arrangement remains liable to fulfill the obligations imposed on the employer by this Act, but is taken to have fulfilled those obligations if they have been fulfilled by the host employer. (2) Without limiting subsection (1), an employer that places an apprentice or trainee with a host employer under a host employment arrangement: (a) must place the apprentice or trainee with host employers in a manner that ensures that the apprentice or trainee receives the work-based component of the required training in all aspects of the apprenticeship or traineeship, and (b) must properly supervise any such host employer in its provision of the required training to the apprentice or trainee, in particular: (i) by ensuring that the host employer releases the apprentice or trainee as required for attendance at the relevant registered training organisation, and (ii) by liaising with the relevant registered training organisation in relation to the apprentice's or trainee's attendance and participation in the training provided by the relevant registered training organisation. (3) An employer must not knowingly place an apprentice or trainee with a host employer who is a prohibited employer. Maximum penalty: 20 penalty units. (4) A prohibited employer must not accept an apprentice or trainee under a host employment arrangement. Maximum penalty (subsection (4)): 20 penalty units. (The Dictionary to the Act defines "host employer" as "a person or body with whom an apprentice or trainee is placed for training under a host employment arrangement" and "host employer arrangement" as "an arrangement under which the employer of an apprentice or trainee places the apprentice or trainee with a host employer for training, supervises the host employer in its provision of training and monitors the progress of the apprentice or trainee during training.") 15 Duties of employers to notify Commissioner of certain matters (1) In relation to each apprentice or trainee that he or she employs, an employer must notify the Commissioner of the following matters within 14 days after the matter arises: (a) any injury to the apprentice or trainee that adversely affects the apprentice's or trainee's ability to continue or complete the apprenticeship or traineeship, (b) any failure by the apprentice or trainee to make satisfactory progress in learning the competencies of the relevant vocation, (c) any change in the registered training organisation attended by the apprentice or trainee, (d) any failure by the apprentice or trainee to participate in, or make satisfactory progress in, the training provided by the relevant registered training organisation, (e) in the case of an employer who places the apprentice or trainee with host employers, any matter that is likely to have an adverse effect on the completion of the apprenticeship or traineeship by the apprentice or trainee, including: (i) any difficulties encountered by the employer in finding host employers, and (ii) any difficulties encountered by the apprentice or trainee in relation to any host employer, whether in relation to training or employment or otherwise, (f) in the case of a trainee apprentice, any termination of employment of the apprentice by the employer. (2) An employer must also notify the Commissioner of the following matters within 14 days after the matter arises: (a) any change in the name under which the employer carries on business or in the address from which the employer carries on business, (b) any change in the nature of the employer's business that adversely affects the employer's ability to comply with his or her obligations under this Act. 16 Duties of apprentices and trainees under apprenticeships and traineeships (1) An apprentice or trainee must, in accordance with the relevant training plan, make all reasonable efforts: (a) to acquire the competencies of the vocation concerned, and (b) to obtain an appropriate qualification or qualifications for that vocation. (2) An apprentice or trainee must discharge his or her obligations under the apprenticeship or traineeship as an employee of the employer. 17 Conditions of training and employment for persons employed as apprentices and trainees An employer that employs a person as an apprentice or trainee in a recognised trade vocation or recognised traineeship vocation: (a) must provide work-based training in accordance with the relevant vocational training order for that vocation, and (b) must employ the person under conditions no less favourable than those set by the provisions of the relevant industrial award or agreement, whether or not an apprenticeship or traineeship has been established for the apprentice or trainee. ... 39 Complaints to be made to Commissioner (1) A complaint that a party to an apprenticeship or traineeship has failed to discharge his or her obligations under the apprenticeship or traineeship may be made: (a) by the other party to the apprenticeship or traineeship, or (b) by an industry training officer who is a public servant. (2) A complaint that a party to an apprenticeship or traineeship has failed to comply with the requirements of this Act (whether or not that failure constitutes an offence) may be made by an industry training officer. (3) A complaint that a party to an apprenticeship or traineeship has refused to consent to the transfer, suspension, cancellation or variation of an apprenticeship or traineeship, may be made by the other party to the apprenticeship or traineeship. (4) A complaint must be lodged at, or sent by post to, the offices of the Commissioner.

Leave to appeal 27The appellants require leave to appeal: see s 55(1) of the Act. I have decided to grant leave. The apprenticeship contract between Beeox and Mr Sparke was cancelled. Mr Sparke strongly contends there was no proper basis for that cancellation. An apprenticeship is an important entry point into a trade. Blocking that entry has significant implications for the apprentice including the capacity to earn a livelihood in an occupation often found to be in short supply. On the other hand, if an apprentice is not adequately supervised by a person holding relevant qualifications, particularly in relation to a trade involving the dangers associated with electricity, and the employer does not undertake the type of work necessary for the apprentice to attain the requisite competencies and work experience, then it would clearly be against the public interest to allow the apprenticeship to continue. 28This appeal raises these issues. I consider the matter is of such importance that, in the public interest, leave should be granted.

Appellants' submissions 29It is necessary that I say something about the appellants' submissions. To suggest they were voluminous and wide ranging would be an understatement. The appellants initially filed an "outline of submissions" on 21 January 2013, consisting of 119 pages. Leave was given to the parties to file supplementary submissions in light of the evidence. The appellants filed their supplementary submissions on 12 July 2013. These submissions consisted of a further 100 pages, parts of it being simply a regurgitation of the original submission. A Reply submission was then filed on 2 August 2013 consisting of 52 pages and 29 pages of attachments. 30The appellants (and respondent) were then provided with an opportunity to make oral submissions. Despite the Court advising Mr Sparke that it had read his submissions, and had asked him to limit his oral submissions to points of emphasis regarding matters in the written submissions or additional matters, Mr Sparke sought to rehearse the whole of his written submissions. In those circumstances, it was necessary to place a time limit on Mr Sparke's oral submissions. 31Large parts of the submissions were not relevant to the Court's consideration of the appeal. What is more, aspects of the submissions were inflammatory and offensive to the respondents, to the Court and to members of the VTT. 32Parts of the supplementary submission and Reply submission were devoted to criticism of the Court for not allowing the appellants to present their case as they wished to present it. In that respect, the essential issue to be determined on the appeal is whether the employer, Beeox, complied with the Training Plan, the Training Contract and with its obligations under the Act in respect of the apprentice, Mr Sparke. The appellants have been given every opportunity to show that the tribunals below were wrong in concluding there was no compliance. The appellants have been permitted to bring whatever evidence was relevant to that issue and that involved a large amount of evidence not before the VTT or VTAP. 33In my opinion, if there was any procedural unfairness or bias in the proceedings below it has been cured by the appellants having had a completely fresh opportunity to show there was compliance. 34The appellants complained that the record of proceedings below was permitted to be tendered by the respondents as part of an Appeal Book in the appeal proceedings. It is instructive to know what occurred in the VTT and VTAP and to understand the reasoning of the two tribunals: see Dare v Dietrich [1979] FCA 47; (1979) 37 FLR 175 at 181 per Deane J. However, I have not relied on any of the findings below to support my findings on appeal. 35There was evidence adduced by the respondents in the VTT and VTAP proceedings that was also evidence on the appeal. That evidence included the Training Contract, Training Plan and Mr Hay's complaint. The appellants were provided with every reasonable opportunity to deal with that evidence. Indeed, the Court adjourned the hearing of the matter in April 2013 and allowed a period of some four weeks in order that the appellants could address significant deficiencies in their evidence. 36Part of the case the appellants wanted to bring appeared to be some alleged conspiracy between any number of people employed by the Department of Education and Communities ("the Department") within TAFE and the office of the Commissioner. It appeared that there had been some issues between the apprentice and the Registered Training Organisation (RTO) and the allegation seems to be that the first respondent and others conspired to cancel the apprenticeship to "protect the RTO from corruption complaints that they had tried to cover-up including irrefutably with this action." 37As best as I could understand the appellants' submission, the conspiracy allegedly extended to the first respondent conspiring with others in the Department to visit the premises of Beeox and concoct a reason to file a complaint pursuant to s 39 of the Act. According to the appellants, this was in retaliation for Mr Sparke's complaints about the workings of TAFE. On that basis, the appellants submitted the complaint should never have been brought and, therefore, the Court should quash the decisions below under a "writ of certiorari" and should accept that the apprenticeship remains on foot. In this respect, it was submitted by the appellants: The orders of the tribunals below have no lawful standing and cannot be considered as being in force. The Court has again and consistently refused any application for process to evidence the fact of unlawfulness of the appellate tribunals below, the Court has denied and therefore obstructed the Appellants from evidencing that unlawfulness from subpoena and the cross-examination of the Appellants has also been denied and therefore obstructed the Appellants in that essential endeavour to have the witness bringing the originating complaint and the only person that was present in all the proceedings in collaboration leading up to and during the decision-making and including the part played by the Legal Services Unit of the respondent, to be interrogated. This has resulted in the Court further refusing a writ of certiorari to quash such unlawful findings from the tribunals below and all of the above without reasons otherwise claimed by the Trial Judge as 'appears to be regular'. It is inappropriately dismissive of unlawful behaviour of a judicial tribunal let alone a corrupt bureaucracy using such judicial process for its own improper purpose amounting to a conspiracy to pervert the course of justice. 38It is correct that I declined to allow the appellants the opportunity of canvassing the alleged conspiracy and I declined to summarily quash the decisions of the VTT and VTAP. The Court has no power to deal with any alleged conspiracy and it was clearly not appropriate to summarily quash the decisions below before hearing the evidence on the appeal. If I had found that there was no proper basis for cancelling the apprenticeship, questions may have been raised about the motives behind the complaint and it may have been open to pursue those issues in another forum. However, as it will be seen, there have been clear breaches of the Act and the apprentice's Training Plan by the employer, such that there is no basis to reverse the decisions below cancelling the apprenticeship or impugn the motive for bringing the complaints. 39The appellants complained about the way they were treated before the VTT, including bullying and intimidation by the chairman. I do not understand it to have been submitted that such alleged conduct caused the proceedings before the VTT to miscarry (although it was also submitted the chairman was biased and did not accord the appellants procedural fairness). Accordingly, it is unnecessary for me to make any findings about the chairman's conduct. If such alleged conduct remains a concern for the appellants it is a matter that should be taken up with the appropriate authority within the Department. This Court has no power to sanction VTT members for misconduct, if such misconduct in fact occurred. In respect of allegations of bias and procedural unfairness, as I have said, if it occurred it has been cured by a fresh hearing. 40The appellants also made submissions about the Court being "biased and prejudiced" and subject to the direction of an "omnipotent bureaucracy". No application was made for me to recuse myself and I have ignored the gratuitous statements directed at me in the submissions.

Consideration 41The complaints made against the employer, Beeox, were made under s 39(1) and s 39(2) of the Act. Section 39(1) refers to a complaint that a party to an apprenticeship has failed to discharge his or her obligations under the apprenticeship. This would encompass a complaint, for example, that an employer failed to discharge obligations under the training contract or the training plan applicable to the apprenticeship. Section 39(2) refers to a complaint that a party to an apprenticeship has failed to comply with the requirements of the Act. This would encompass, for example, a complaint that an employer failed to comply with ss 13, 14 and/or 15 of the Act. 42The Dictionary to the Act relevantly provides for the following definitions: apprentice means an employee who is party to an apprenticeship contract, and includes a person who is employed as an apprentice but in respect of whom an apprenticeship contract is not yet in force. apprenticeship means an apprenticeship established under Division 2 of Part 2. apprenticeship contract means a training contract under which an apprenticeship is established. 43It is clear from Div 2 of Pt 2 of the Act that integral constituents of the apprenticeship are the Training Contract and the Training Plan. Without those elements there is no apprenticeship. It is also clear that parties to an apprenticeship are bound by the Training Plan and Training Contract to which they subscribe. 44Having regard to the grounds of appeal and the findings of the tribunals below, I have identified 11 issues arising from the grounds of appeal: (a) whether the employer, Beeox, discharged its obligations under the apprenticeship by taking all reasonable steps to enable Mr Sparke to receive the work-based component of the required training by ensuring Mr Sparke had proper access to an individual who possessed the required competencies to supervise Mr Sparke's work-based learning; (b) whether the employer, Beeox, in accordance with the relevant Training Plan, complied with s 13(1)(a) of the Act by enabling Mr Sparke to receive the work-based component of the required training, by providing all necessary facilities and opportunities to acquire the competencies of the Electrical (Electrician) trade vocation, in particular access to an individual who possessed the required competencies to supervise Mr Sparke's work-based learning; (c) whether the employer, Beeox, discharged its obligations under the apprenticeship by taking all reasonable steps to enable Mr Sparke to receive the work-based component of the required training by making available work-based activities that supported all of the required work-based training; (d) whether the employer, Beeox, in accordance with the relevant Training Plan, complied with s 13(1)(a) of the Act by enabling Mr Sparke to receive the work-based component of the required training, by providing all necessary facilities and opportunities to acquire the competencies of the Electrical (Electrician) trade vocation, in particular work-based activities that supported all of the required work-based training; (e) whether the employer, Beeox, in accordance with the relevant Training Plan, complied with s 13(1)(b) of the Act to enable Mr Sparke to obtain the qualification in the Electrical (Electrician) trade vocation by liaising with the RTO in relation to Mr Sparke's attendance and participation at North Sydney TAFE; (f) whether the employer,Beeox, complied with s 13(2) of the Act in meeting its obligations as an employer by ensuring that Mr Sparke was safely supervised in the workplace when performing potentially hazardous electrical wiring work; (g) whether the employer, Beeox, complied with s 15(1)(b) of the Act by notifying the Commissioner within 14 days after the matter arose of any difficulty being experienced by Mr Sparke making satisfactory progress in his apprenticeship training; (h) whether the employer, Beeox, complied with s 15(1)(d) of the Act by notifying the Commissioner within 14 days after the matter arose of any failure by Mr Sparke to participate in and make satisfactory progress in classes at North Sydney TAFE; (i) whether the employer, Beeox, complied with s 15(1)(e) of the Act by notifying the Commissioner within 14 days after the matter arose that it would be relying on the use of host employers to enable Mr Sparke to gain the required work-based training; (j) whether the employer, Beeox, complied with s 14(2) of the Act by 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 Electrical (Electrician) trade vocation; and (k) whether Mr Sparke's role as managing director of OneWaterNaturally gave rise to a conflict of interest in circumstances where Mr Sparke performed work for OneWaterNaturally as an apprentice. 45I will deal with each one of these issues in turn except that in respect of (a) and (b) and (c) and (d) above, they essentially raise the same issues and so I will deal with them together.

Supervision by an appropriately qualified person 46As I have noted, there must be compliance with s 13(1)(a) of the Act and a party to an apprenticeship is required to discharge his or her obligations under the apprenticeship. Beeox and Mr Sparke entered into a binding Training Contract as part of the apprenticeship. Ms Sparke signed the Contract for the employer on 3 July 2009 and Mr Sparke signed it on 9 July 2009. The Contract committed the parties to certain obligations, which in respect of the employer required it, inter alia, to: a) employ and train the apprentice/trainee as agreed in our Training Plan... b) provide the appropriate facilities and experienced people to facilitate the training and supervise the apprentice/trainee while at work, in accordance with the Training Plan c) make sure the apprentice/trainee receives on-the-job training and assessment in accordance with our Training Plan d) provide work that is relevant and appropriate to the vocation and also to the achievement of the qualification referred to in this Contract ... h) work with our RTO and the apprentice/trainee to make sure we follow our Training Plan, keep training records up-to-date and monitor and support the apprentice/trainee's progress; and i) let the relevant State/Territory Training Authority and the RTO know within five working days (or when the local State/Territory legislation requires, if this is different) if our Training Contract has become jeopardised. 47The Training Contract also asked the question whether the apprentice, Mr Sparke was in a business relationship with Beeox. The answer given on the Training Contract was "No". 48For his part, Mr Sparke undertook to work towards achieving the qualification stated in the Training Plan and to undertake any training and assessment in the Training Plan. 49Mr Sparke's Training Plan was in evidence. The employer was stated to be "Beeox Corporation Pty Ltd". The name of the apprenticeship in the Training Plan is the "Electrical (Electrician) - Electrotechnology Electrician Certificate III [VTO3680] (A)". The apprentice would qualify as an Electrotechnology-Electrician upon successful completion of the trade course. The commencement date of the apprenticeship was stated to be 1 June 2009 and the expected completion date 31 December 2012. The off-the-job training was to be delivered by North Sydney TAFE. The Plan identified the core competency standard units to be undertaken to achieve the qualification and the elective units. 50The Plan indicated that a transcript detailing progress and competency completion would be provided to the apprentice up to twice per year and a report forwarded to the employer at the end of each semester. 51Ms Sparke signed the Training Plan for the employer, indicating she agreed with the training requirements. Mr Sparke and a representative of the RTO, which was TAFE, also signed the Plan. 52In evidence, as an annexure to Mr Hay's affidavit, was a document entitled "Apprenticeship and traineeship applications - Approval Requirements". The document was issued by the Commissioner on 8 July 2009 and updated on 23 October 2012. The document was referred to as providing guidelines. The respondent does not rely upon this document as a formal s 4 guideline made under the Act. Rather, it was submitted, the document is a policy document published by the Department for the purpose of providing information to members of the public, and officers of the Department. 53The respondent submitted it has been held that in cases where a public authority has published a document or other form of non-mandatory guidelines, it is open and reasonable for an administrative decision-maker to consider and, in an appropriate case, even give effect to the document. The issue was considered in Apthorpe v Repatriation Commission [1987] FCA 423. In the joint judgment, the Court expressed the principle at [27] in the following terms: The Tribunal was not precluded from having regard to the Guide, should there be some matter therein which would assist it in its consideration...For reasons of this nature, guidelines as to partial and total incapacity may be a useful aid to consistent decision making and therefore a matter to which consideration may or even should be given in an appropriate case. See also Salerno v National Crime Authority & Ors [1997] FCA 475 concerning the power of a Crown instrumentality to publish documents setting out its view as to how the legislative scheme is to be implemented. 54The respondent noted there was no issue taken by the appellants before VTAP or in this appeal concerning the status of the Policy document. To the contrary, the appellants in the application for leave to appeal and appeal posited, "[T]he Apprentice has achieved the requirement of the law including the provisions of the nominal guidelines..." Accordingly, the same policy document formed part of Mr Sparke's evidence. 55In my opinion, considerable weight has to be given to the guidelines, which reflect the view of the Commissioner. They are published in order that the public, employers, prospective apprentices and officers of the Department understand what is reasonably required by the Commissioner in respect of meeting the Commissioner's requirements for approval of an apprenticeship. 56Paragraph 9.3 of the guidelines appears under the heading "9. Employer's capacity to train" and states: 9.3 Qualified and/or experienced supervisors Specific supervision requirements are not identified in the A&T Act. Some industrial awards or agreements do specify ratios of qualified supervisors for each apprentice or trainee, and minimum requirements for supervision in certain industries may also be set by WorkCover or by industry-specific regulations or licensing arrangements. Employers must comply with these requirements. Apprentices are to be supervised and trained on-the-job by qualified tradespeople. The A&T Act defines a qualified tradesperson as: (a) a person who has a Craft Certificate or Certificate of Proficiency for that vocation, or (b) a person who has qualifications and experience that ... entitle the person to a Craft Certificate or Certificate of Proficiency for that vocation. (emphasis added) As the on-the-job supervision and training arrangements will vary from one industry to another, and between workplaces even within the same industry, each application will be considered on its merits. However the following considerations will be taken into account when assessing an application for an apprenticeship or traineeship: Is there a person or persons with the appropriate skills and experience nominated by the employer to supervise the apprentice or trainee and facilitate their on-the-job training? Is the level of workplace supervision sufficient to ensure the health, safety and welfare of the apprentice or trainee? Are there arrangements in place to monitor the apprentice or trainee's progress in learning the skills of their vocation, to provide feedback to the apprentice or trainee and to answer any questions they may have? Is there a responsible person in the workplace other than the apprentice or trainee who has the employer's authority to deal with customer complaints, problems or accidents in the workplace? Supervision and on-the-job training arrangements should take into account the stage the apprentice/trainee is at and their level of knowledge and skills. Where apprentices and trainees are competent in certain areas and do not require supervision to perform specific tasks, employers should ask the RTO to formalise these arrangements through competency assessment. 57As I have noted, the guidelines are to assist in determining whether approval should be granted to establish an apprenticeship. If the respondent is correct in his contentions that Beeox did not provide all necessary facilities and opportunities to enable Mr Sparke to acquire the competencies of an Electrotechnology-Electrician, one wonders how the apprenticeship was established in the first place. As far as I am able to ascertain, the circumstances of the Beeox business did not materially change after the apprenticeship was established. This would suggest a significant flaw in the approval process. I would have assumed that a proper investigation would have been carried out by the relevant authority into whether the employer had the facilities to train an apprentice before approving the apprenticeship. 58In any event, the Training Plan applicable to Beeox and Mr Sparke indicated that the employer agreed with the training requirements outlined in the Plan. The Plan set out the core competency standard units to be completed in order to achieve the trade qualification, as well as elective units. The Training Contract between Mr Sparke and Beeox bound the parties to observe the Training Plan including in those respects set out at [46] above. 59In order to complete the competency standards and achieve accreditation in them the apprentice undergoes on-the-job training and off-the-job training. So much is uncontroversial. The latter training takes place in an RTO with the capability of delivering that training. North Sydney TAFE is an RTO that delivers off-the-job training in the trade course for Electrotechnology-Electrician. 60On-the-job training may be conducted by the employer or by a host employer supervised by the employer. In Mr Sparke's case it was Beeox's responsibility to ensure the on-the-job training was provided. As such, Beeox was required to meet its obligations to provide all necessary facilities and opportunities to enable Mr Sparke to acquire the competencies of his chosen vocation. The tribunals below found those obligations were not met. The complaint upheld was, inter alia, that Beeox did not ensure Mr Sparke was instructed and supervised by a suitably qualified person. 61The respondent contended that a suitably qualified person is a qualified tradesperson, that is, a person qualified in the trade of Electrotechnology Electrician. Reliance was placed on paragraph 9.3 of the guidelines quoted earlier. Reliance was also placed on the National Supervision Policy relating to Electrotechnology issued by EE-OZ (EE-OZ is the Industry Skills Council for the energy sector trades. Part of its objective is to develop national qualifications and competency standards for the energy sector, which includes electrotechnology). That Policy states: Supervisors should have the appropriate and comparable technical competencies for given work. 62The Policy also describes levels of supervision being direct, general and broad. Many of the work functions to be undertaken by an apprentice, especially in the first and second years of the apprenticeship and when working in connection with live conductors or apparatus, require direct supervision, that is, personal supervision at all times on a direct and constant basis within visual contact and/or earshot. 63The respondent also relied on the evidence of Mr Jeremy. On the issue of the level of supervision, the evidence was that there was no scope for broad or general supervision when commencing each of the new competencies: Q. How long do you need, as far as in your opinion, how long do you need by way of direct supervision when an apprentice commences learning each of these competencies? A. It would range depending on the apprentice. But suggested minimum of six months ranging to possibly 12 to 18 months. And Q. To your knowledge has there ever been a situation, or if there is how often does it occur, where a person progresses from direct supervision in less than six months? A. That would be rare. 64Mr Jeremy also gave evidence concerning relevant industry standards for an apprenticeship in electrical (electrotechnology). Relevantly, his evidence was that: (a) Close supervision was required in relation to each new competency; and (b) That supervision was required to be undertaken by a licenced electrician engaged to supervise. 65For their part, the appellants contended that Mr Sparke was appropriately supervised. In that respect, the appellants relied on their own evidence and the evidence of Mr Roe, Mr Dixon and Mr Rollans.

John Roe 66Mr Roe holds an electrical contractor's licence, having been an electrician for about 30 years. Mr Roe undertook electrical contracting work from time to time for OneWaterNaturally in 2008, 2009 and 2010. He agreed that Mr Sparke paid his invoices. 67In his affidavit Mr Roe stated: I was responsible for the supervision of the electrical component of those projects I was engaged on and I can say that David Sparke accepted the supervision and conducted the competencies of a broad range of electrical work well. He was interested and collaborative in the requirement of the electrical components and integrated the electrical requirement of the project with other construction aspects with obvious skill, knowledge and initiative and in a compliant manner, performing such tasks very well. I would sign him off as competent in the aspects of the fitting of apparatus work I supervised on those projects where I also believe that David Sparke is satisfactorily supervised only requiring broad supervision for general electrical works. 68Mr Roe was asked in cross-examination whether he ever had a discussion with Mr Sparke as a precondition of him doing the electrical contracting work that he would supervise Mr Sparke for the purposes of an apprenticeship. His answer was that he did not prior to 15 May 2013, when he "entered into a business arrangement with Beeox to supervise Mr Sparke". Mr Roe agreed he was not aware of the existence of Beeox prior to 15 May 2013. 69It is apparent from Mr Roe's evidence that he was not engaged on a full time basis, or on any basis for that matter, by Beeox between 2008 and 2010 to supervise Mr Sparke in his apprenticeship and only came into contact with Mr Sparke intermittently in the course of undertaking electrical contracting work for OneWaterNaturally. Mr Roe could not recall how many times he was contracted to undertake electrical work for OneWaterNaturally. Mr Roe stated that Mr Sparke was "a contributing player" in relation to the work he described as "the installation of power systems in medium scale water capture and distribution systems where power was required". 70Mr Roe was not engaged and was under no obligation to supervise Mr Sparke in his apprenticeship. Mr Roe did not sign off any document indicating Mr Sparke's competency or otherwise in any aspect of the apprenticeship. 71Mr Roe performed work for OneWaterNaturally and, in that capacity, said that he supervised Mr Sparke in undertaking the electrical component on a number of projects conducted by OneWaterNaturally (how many is not known). That raises the question whether OneWaterNaturally was a host employer and whether Beeox properly supervised the host employer in accordance with s 14 of the Act. But, more particularly, Mr Sparke was the managing director and a shareholder of OneWaterNaturally and it was Mr Sparke that paid Mr Roe's invoices. A significant conflict of interest arose: Mr Sparke was the apprentice ostensibly placed with a host employer, OneWaterNaturally, of which he is the managing director and in a position to direct Mr Roe who, in turn, purported to be supervising Mr Sparke. If OneWaterNaturally is not to be regarded as the host employer then it follows the direct responsibility for ensuring Mr Sparke was appropriately supervised fell on Beeox. The problem with that, however, is that Mr Roe had no association with Beeox and, therefore, Beeox could not claim it was using Mr Roe to supervise Mr Sparke. 72It is clear that Mr Roe did not undertake any coherent, properly structured supervision of Mr Sparke as an apprentice. Mr Roe's occasional supervision of Mr Sparke was purely ad hoc and not done for the purpose of instruction or for assessing Mr Sparke's competency. Moreover, a significant conflict of interest arises. These circumstances do not allow me to regard Mr Roe as Mr Sparke's supervisor for the purpose of the apprenticeship.

Gary Rollans 73In relation to Mr Rollans the appellants submitted: The work based activities of Beeox are at a level that provides broad based training for powering and controlling of electrical system that does represent the mainstream work of experienced and specialist electricians rather than general wiring work of electricians. Mr Rollans is also an integral part of that electrical system development and installation where his wide experience and competency is substantially why the system works as he develops and tracks the electrical operation of such systems. His work is disparaged by the Respondent where he is a high level electrical trades person relatively equivalent to the competencies of an electrical engineer in the field of electrical control and power switching. This work is well beyond the basic work of maintenance electricians and young Apprentices digging service trenches, laying conduit (year 4 Apprentice work according to the Respondents witness Mr Jeremy's evidence), running wires through roofs and terminating wires from a protected switchboard through to appliances and switches. The logic and capability of this basic electricians work activity is little more than tracing or marking the ends of cables for termination and earthing. Mr Rollans should not be disparaged by ignorant Counsel that does not understand the proper nature and extent of electrotechnology - electrician work nor the level of skill and application of Mr Rollans, whose capability as stated previously would be in the level of competency and skill of a tradesperson who would know more about electrical performance that any Apprentice and many licenced electricians if not most. In any event solving electrical issues and potential faults is often a combined integration of designers and engineers working in conjunction with experienced electricians which is then applied by the working Apprentice to reconfigure a system so that the electrical pressure and flow is best suited to the system which is a skill and competency Mr Rollans holds, contrary to the ignorant and glib remarks of Counsel for the Respondent that has no demonstrated knowledge of the vocation. 74Mr Rollans is a radio technician by trade. He was employed by OneWaterNaturally and it appears his major functions were the design of electronics and marketing. In his affidavit, Mr Rollans stated: Essentially I have been involved professionally in electronics and electrical vocation for my whole working career including product design and development, product management, specialist product development, product presentation, sourcing and sales channel marketing. I have been engaged in the electrical control and power conditioning field during my career. This work involves AC and more particularly DC power theory and understanding the source of current, the channelling and conditioning of sources of electrical power, waveforms and its measurement. I have design capability as it relates to reliable and safe switching of low voltage and ultra-low voltage power, cabling, terminating and fault tolerant use of power. I commenced work with One Water Naturally in November 2009 initially to assist in a number of areas including preparing detailed product documentation which required a review of the electrical and management systems of motor controls, maintenance of electric motors for pump equipment and in the process prepare for improvements from Research and Development in equipment and packaged options for the market. My working role was to manage the safe and reliable integration of control systems and I also had a role in training and supervision of David Sparke in his Apprenticeship in electrotechnology - electrician vocation. My skill set in this vocation included the safe use of power, knowing the requirements of electrical and electronic circuits, fault assessments and the deeper theory of monitoring, viewing and the use of electrical power particularly in limit and sensoring devices, timers and counters in DC circuits and AC and DC power supply and switching. Although I was employed by One Water Naturally I was working with Beeox Corporation interchangeably as the business of supply, installation and servicing of electrical and hydraulic product moved across to the operations of Beeox Corporation. The organisational nature of the workplace was not an issue as I could oversight David Sparke when required and we worked as a team including with Jamie Dixon, our safety officer and Programmed Logic Control trained development manager for automation and logic programming with Omron and Fatek equipment. As I understand this work matched the training off-the-job David Sparke did whilst at TAFE. I was responsible for the supervision of the electrical component of those projects I was engaged on and I can say that David Sparke accepted the supervision and conducted the competencies of a broad range of electrical work effectively and competently many times under my direct or otherwise general supervision that was necessary and inline with what I understand from the Supervision guidelines. I have looked through the required Training Plan that sets out the competencies to be learnt associated with that plan and I am confident that David Sparke has the required knowledge in the competencies in DC systems, health and safety and the connection requirements of fixture. I have also examined some of his cabling and switching electrical work and although I am not a specialist or electrician I believe I have the long term experience to say that the work is functional, safe and operational. I can indicate that I believe David Sparke has demonstrated skill and competency in the requirements of the Training Plan and I will continue to further train and supervise him for the time required to complete the Apprenticeship with Beeox Corporation. 75As noted, Mr Rollans said he had a role in training and supervising Mr Sparke in his apprenticeship. However, Mr Rollans was never asked to supervise. He was never asked to sign off any competencies through an eprofiling form or its equivalent. Moreover, Mr Rollans commenced with OneWaterNaturally in November 2009, some five months after the apprenticeship was on foot. This is somewhat inconsistent with Mr Sparke's evidence that Mr Rollans supervised him from the outset. 76Mr Rollans agreed he was not "a specialist or electrician", but that he was "familiar with audio equipment and anything on this side of the power point basically in electronics", but that he did not do work on the "other side of the powerpoint." I took that to mean that Mr Rollans was not contending he was qualified to undertake electrical wiring work, for example, as defined in the Home Building Act 1989. For the definition of electrical wiring work the Home Building Act refers to Electricity (Consumer Safety) Act 2004, which defines the term in s 3 as follows: electrical wiring work means the actual physical work of installing, repairing, altering, removing or adding to an electrical installation or the supervising of that work. "Electrical installation" is defined in that same Act as follows: electrical installation means any fixed appliances, wires, fittings, apparatus or other electrical equipment used for (or for purposes incidental to) the conveyance, control and use of electricity in a particular place, but does not include any of the following: (a) subject to any regulation made under subsection (4)-any electrical equipment used, or intended for use, in the generation, transmission or distribution of electricity that is: (i) owned or used by an electricity supply authority, or (ii) located in a place that is owned or occupied by such an authority, (b) any electrical article connected to, and extending or situated beyond, any electrical outlet socket, (c) any electrical equipment in or about a mine, (d) any electrical equipment operating at not more than 50 volts alternating current or 120 volts ripple-free direct current, (e) any other electrical equipment, or class of electrical equipment, prescribed by the regulations. 77Section 14 of the Home Building Act places limitations on who may perform electrical wiring work: 14 Unqualified electrical wiring work (1) An individual must not do any electrical wiring work (whether or not it is also residential building work), except: (a) as a qualified supervisor (being the holder of an endorsed contractor licence, or a supervisor certificate, authorising its holder to do that work), or (b) as the holder of a tradesperson certificate authorising its holder to do that work under supervision, but only if the work is done under the supervision and in accordance with the directions, if any, of such a qualified supervisor. Maximum penalty: 1,000 penalty units in the case of a corporation and 200 penalty units in any other case. (2) Despite subsection (1), an individual may do electrical wiring work even though the individual is not such a qualified supervisor or holder, but only if such a qualified supervisor: (a) is present at all times where the work is being done by the individual, and (b) is available to be consulted by, and to give directions relating to how the work is to be done to, the individual. (3) A qualified supervisor who is supervising any electrical wiring work being done by an individual as referred to in subsection (1) (b) must: (a) give directions that are adequate to enable the work to be done correctly by the individual performing it, and (b) personally ensure that the work is correctly done. Maximum penalty: 1,000 penalty units in the case of a corporation and 200 penalty units in any other case. (4) A qualified supervisor who is supervising any electrical wiring work being done by an individual as referred to in subsection (2) must: (a) give directions that are adequate to enable the work to be done correctly by the individual performing it (which, unless the qualified supervisor considers it unnecessary, must include directions requiring the individual to advise in detail on progress with the work), and (b) be present when the work is being done and be available to be consulted by, and to give directions relating to how the work is to be done to, the individual, and (c) personally ensure that the work is correctly done. Maximum penalty: 1,000 penalty units in the case of a corporation and 200 penalty units in any other case. (5) This section applies to an individual acting in the course of his or her employment by the Crown. 78Regulation 23 of the Home Building Regulation 2004 provides for an exemption relating to the doing of electrical wiring work by apprentices: 23 Exemption relating to the doing of electrical wiring work by apprentices and trainees An individual who does electrical wiring work without complying with section 14 (2) of the Act is exempt from the requirement of holding an authority referred to in section 14 (1) of the Act if: (a) the individual is an apprentice or trainee, and (b) the course of studies undertaken as part of the individual's apprenticeship or traineeship includes a study of the kind of electrical wiring work the individual is doing, and (c) a qualified supervisor (being the holder of an endorsed contractor licence, or a supervisor certificate, authorising its holder to do that work) supervises the electrical wiring work being done by that individual, and (d) the qualified supervisor is of the opinion that the individual's knowledge and experience in doing such electrical wiring work is such that the individual does not need the level of supervision required by section 14 (2) of the Act, and (e) the individual does that work under the supervision, and in accordance with the directions, if any, of the qualified supervisor. 79An electrical licence is required before any electrical wiring work can be undertaken in NSW, regardless of whether the work is residential, commercial or industrial. Mr Rollans was not the holder of such a licence, or a supervisor certificate. He was not, therefore, authorised to supervise Mr Sparke in the apprenticeship in undertaking electrical wiring or electrical installation work, which constitute core competencies in the Electrotechnology Electrician certificate course. At no time during the period he purported to supervise Mr Sparke was he asked to, or did he, verify or confirm Mr Sparke's competency in any unit relevant to the trade course. Mr Rollans merely "looked through the required Training Plan" and "believed" Mr Sparke demonstrated the necessary skill and competency, including "cabling and switching electrical work". There was no evidence Mr Rollans subjected Mr Sparke to any competency testing of the kind described by Mr Jeremy in his evidence in chief: Q. If I could just take you three pages in from that document. Can you explain to the Court what that document there is? A. The document is an example of work performance of tasks performed on the job that I created, so they are fictional but represents a true situation of which it was put there to instruct the candidate how they can supply evidence using the portfolio. Q. Who drafted this? A. I did. Q. Where it says under the heading Work Performance Range, it says: "Evidence must demonstrate the performance on each element on at least two occasions involved autonomously and to require it in a timeframe typically expected in the industry." What does it mean by two occasions autonomously? A. It means each of the elements listed must be performed independently to the standard expected of the industry. Q. When it says autonomously does that mean with or without supervision? A. With supervision. Q. Who signs off on the declaration at the bottom? A. The candidate signs the declaration stating the information provided is actual. Q. Where it says elements in the lefthand column under range statement, what is an element, is that the equivalent of competency? A. No, competency is made of performance elements and once all the performance elements are performed on at least two occasions autonomously with the required timeframe typically expected of the industry then competency on the job can be determined. Q. If you just go over the page, it is a document headed Work Performance Example Number 1; what is that? A. That's an example of work that I wrote to instruct, give guidance on what is expected and how to complete the Work Performance Portfolio. Q. Who signs off on that declaration? A. A licensed tradesman who supervised the work. 80I am sure Mr Rollans is a very capable tradesperson in his field, which does not include electrical installation work. It would be unsafe to rely on Mr Rollans as being a person qualified to supervise Mr Sparke in relation to the achievement of competencies relevant to electrical installation work. 81Moreover, the same difficulties I described in relation to conflict of interest in respect of Mr Roe, arise in respect of Mr Rollans. He was employed by OneWaterNaturally, purportedly supervising Mr Sparke, but ultimately under the control and direction of Mr Sparke as managing director of the company. 82Mr Rollans could not be regarded as Mr Sparke's supervisor for the purpose of the Training Contract or the Training Plan.

Jamie Dixon 83In relation to Mr Dixon, the appellants submitted: Dixon was a high level engineer in PLC equipment that is a foundation of contemporary electrical engineering and automation of electrical machines essential for manufacturing and processing efficiency and automation. This involves control circuits and high level logic programming of the electrical sensors, timers and power switching including emergency stop switches as 40% of the RTO training. Another 40% is based on electromotive power such as magnetic power associated with AC and DC motors, generators, alternators and transformers with the remaining 20% of RTO training directed to wiring rules and appliances such as lights, batteries and stoves/ heaters as a part of building and construction. 84Mr Dixon was employed by OneWaterNaturally from May 2006 to January 2012 as a "Product and Business Development Manager". He held no trade qualifications in electrical or electronic work and no formal qualifications connected to such work other than what he vaguely referred to as "industry qualifications from market leaders". It would appear that Mr Dixon gained his experience in electrotechnology or electronics on the job. His evidence in this respect was as follows: I have 4 years' practical experience in electro-technology and computing network systems from an earlier period of self-employment contracting where I was involved in various infrastructure network developments in both Australia and off shore. I have during the past 12 years, had various, both on site and internal product development roles involving various electro-technology aspects such as motor re-winding, single and three phase motor and power operation and control systems. 85Mr Dixon frankly conceded he had no qualifications that would allow him to supervise an apprentice undertaking electrical wiring work. However, he did contend that as part of his duties he was responsible for monitoring and supporting Mr Sparke in his apprenticeship and that he supervised Mr Sparke in "many aspects of electro-technology" and in occupational health and safety. 86Mr Dixon said that although OneWaterNaturally employed him he did work both for that company and Beeox, but accepted the line between the work he did for each business was blurred. It is clear though that, from time to time, Mr Dixon took directions from Mr Sparke in relation to work undertaken for OneWaterNaturally. 87Mr Dixon does not have any recognised qualifications in, or in connection with, the trade of Electrotechnology Electrician. At best he had gained some on the job experience in electronics, the extent of which was not made fully clear. He is not a person who could be regarded as a qualified tradesperson for the purpose of training and supervising Mr Sparke in his apprenticeship. Relying on Mr Dixon to fill the role of apprentice supervisor also attracts the conflict of interest issue I have earlier described. 88There was in evidence a letter signed by Mr Dixon as Division Manager, OneSolarNaturally and dated 30 May 2009, which relevantly stated: This letter is to certify that Mr David Sparke was under the employ of OneSolarNaturally for a period of 5 months, as an apprentice electrician. During this period Mr Sparke was neither signed up nor registered with one solar (sic) as an apprentice and was employed under a strictly trial scenario. 89Apparently, on the basis of this letter, Mr Sparke was given credit of five months towards his apprenticeship, a matter I find very surprising. In any event, implicit in the letter is that Mr Dixon supervised Mr Sparke during the trial period. That was not the case as cross-examination revealed. Any supervision took place under contractors on site and that occurred approximately one day a week when Mr Dixon was not present. Further, the letter did not disclose the fact that the apprentice was a director and shareholder of the company, and to that extent was misleading.

Gus Power 90Mr Power was apparently the principal of High Point Electrical. Mr Power did not give evidence but he was relied upon by the appellants as an electrical contractor who did work for OneWaterNaturally from about June 2009 until early 2010 and, in that time, supervised Mr Sparke as an apprentice when Mr Power performed work on OneWaterNaturally projects. 91There was no direct evidence that, in fact, Mr Power was an electrical contractor, but assuming he was, the appellants were only able to produce (under summons) three invoices for work which Mr Power completed for OneWaterNaturally, the largest amount being for $2,121.72 for labour and materials, which would suggest the work done by Mr Power did not extend over any length of time that would allow the Commission to conclude there was effective supervision and training of Mr Sparke in his apprenticeship by Mr Power. And, in any event, Mr Power only did work for OneWaterNaturally for about six months, when the apprenticeship was for a period of four years. 92Again, given that Mr Power did work for OneWaterNaturally the problem of a conflict of interest arises.

Conclusions 93In my opinion, Beeox failed to discharge its obligations under Mr Sparke's apprenticeship by failing to comply with the terms of the Training Contract and did not take all reasonable steps in accordance with the Training Plan in contravention of s 13(1)(a) of the Act to enable Mr Sparke to receive the work-based component of the required training by ensuring Mr Sparke had proper access to an individual who possessed the required competencies to supervise Mr Sparke's work-based learning. 94By the nature of their case, in relying on Messrs Roe, Rollans, Dixon and Power as providing supervision of Mr Sparke, the appellants accepted that Beeox was required to ensure Mr Sparke was appropriately supervised. It seems to me that if Mr Sparke was to acquire the competencies in the trade of Electrotechnology Electrician, the work-based component of the required training would need to be delivered under the supervision of a person who could provide that training. The respondent contends that person is a tradesperson qualified as an Electrotechnology Electrician, which is a requirement of the Commissioner. 95Even if I were not to accept the Commissioner's requirement that Mr Sparke's training should have been supervised by a qualified tradesperson, it is beyond question that a person with the skills, qualifications and experience to teach Mr Sparke the trade of Electrotechnology-Electrician should have supervised him on-the-job on a systematic, structured basis. For the reasons I have given, none of the individuals relied upon by the appellants met this requirement. 96Mr Roe was a qualified tradesperson with an electrical contracting licence, but he was not engaged by Beeox to supervise Mr Sparke in his apprenticeship; his contact with Mr Sparke was purely ad hoc and not extending over the life of the apprenticeship; the evidence about whether he supervised Mr Sparke in respect of the competencies of the trade was of a most general nature and there was no evidence regarding the matching of the on-the-job work supervised by Mr Roe with any of the required competencies; there was no satisfactory evidence regarding the degree of supervision exercised by Mr Roe (direct, general or broad) where, in respect of many of the work functions to be undertaken by an electrical apprentice, direct supervision is required, that is, personal supervision at all times on a direct and constant basis within visual contact and/or earshot; and Mr Roe did not fulfil the obligation on apprentice supervisors to progressively sign off any log book, eprofiling form or its equivalent in respect of work completed by Mr Sparke relevant to his apprenticeship. 97In addition, there is the conflict of interest issue I referred to earlier, the absence of any reliable evidence that OneWaterNaturally was engaged by Beeox to act as a host employer, and the absence of reliable evidence that Beeox took steps to supervise the host employer in accordance with s 14 of the Act. 98In respect of Mr Rollans, if one accepts that it is not necessary to have the apprentice supervised by a qualified tradesperson and, instead, that role may be filled by someone with relevant skills and experience, then it may be arguable Mr Rollans was a suitable person to supervise Mr Sparke, but only to the extent of his skills and experience. That skill and experience did not extend to electrical wiring and electrical installation work, which is an inherent part of the trade. 99However, even if one accepts Mr Rollans could supervise the training of Mr Sparke in respect of some aspects of the apprenticeship, Mr Rollans was not engaged to do so by Beeox, evidenced in part by the fact that, contrary to the Training Contract, Mr Rollans was not instructed by Beeox to complete the relevant documentation necessary to show that Mr Sparke had completed work relevant to the trade. It was not part of Mr Rollans' mindset that his task was to supervise Mr Sparke in his apprentice training in accordance with the Training Plan. There was no evidence Mr Rollans was thoroughly familiar with the competencies Mr Sparke was required to achieve. 100Moreover, the evidence regarding Mr Rollans' supervision of Mr Sparke did not address the precise connection between the work supervised on-the-job and the competencies required to be completed or the degree of supervision (direct, general, broad). In addition, the conflict of interest and host employer issues arise in connection with Mr Rollans. 101In relation to Mr Dixon, I could not be satisfied on the evidence that he had the necessary skills and experience to supervise any aspect of Mr Sparke's training. In relation to Mr Power, the same objections arise as those I have discussed regarding Mr Roe, if not more so. 102In their supplementary submission the appellants sought to show how either Mr Rollans, Mr Roe and/or Mr Dixon exercised a supervisory function in respect of competency units the appellants considered relevant to electrical installation work and asserted that these individuals classed Mr Sparke as competent in each of the units of competency. The evidence does not support the submission; the submission is no more than assertion. The evidence of Messrs Dixon, Roe and Rollans regarding the supervision of Mr Sparke's training was in general terms and deficient for the reasons I have already articulated. 103I find that Beeox did not discharge its obligations under the apprenticeship in that it failed to take all reasonable steps to enable Mr Sparke to receive the work-based component of the required training by ensuring Mr Sparke had proper access to an individual who possessed the required competencies to supervise Mr Sparke's work-based learning. 104I further find that Beeox failed to comply with s 13(1)(a) of the Act by failing to enable Mr Sparke to receive the work-based component of the required training, by providing all necessary facilities and opportunities to acquire the competencies of the Electrical (Electrician) trade vocation, in particular access to an individual who possessed the required competencies to supervise Mr Sparke's work-based learning.

Availability of work-based activities 105Beeox had an obligation under the Training Plan to enable Mr Sparke to receive the work-based component of the required training by making available work-based activities that supported all of the required work-based training. A similar obligation arose under s 13(1)(a) of the Act. 106The respondent contended Beeox did not perform the type of work necessary for Mr Sparke to attain the requisite competencies and work experience. The appellants contended otherwise. 107The appellants maintained that there were no host employer arrangements. If that be right, the responsibility to make available work-based activities that supported all of the required work-based training fell exclusively on Beeox. The evidence was that Beeox did not undertake electrical installation work and did not employ any person qualified to undertake such work or to train Mr Sparke in that work. 108The type of work Beeox undertook appears to have involved the "supply and servicing of equipment, mainly pump..." and "rainwater harvesting, water treatment including sewage grey water systems and then monitoring...are added to essentially water and energy conservation packages which are supplied and installed in homes and small commercial applications". 109Mr Sparke stated the business concerned water conservation systems involving low voltage pumps which were plugged straight to mains: Q: Is it the case that in the vast majority of installations that pumps are often able to be plugged into a mains supply? A:They are yes. Q:Just with a standard three point plug? A:Three pin plug, often times. 110The only electrical work done in connection with Beeox's business was to bring the mains source to the plug. Beeox did not perform this work; contractors undertook it. 111A matter of some concern is the fact that, in the absence of proper arrangements regarding supervision, Mr Sparke performed electrical work without any supervision at all: Q: Did you ever perform electrical work for Beeox as an apprentice without either Mr Dixon or Mr Rollans present? A: Yes, certainly. Q: Did you undertake that electrical work that you are referring to now without anyone else who was qualified present? A: I certainly undertook electrical work at different times without direct or general supervision. 112Mr Sparke maintained he gained experience over many years working on the job and I had the impression he was disdainful of any suggestion he needed supervision to undertake electrical installation work. 113The training of apprentices, be they adult or otherwise, to become qualified tradespersons is a serious business, especially in the electrical field. Qualifications cannot be handed out on the basis that an individual merely claims he or she has the necessary experience. The individual either undertakes the necessary off-the-job and on-the-job training under qualified supervision to achieve the relevant competencies in the trade, or undergoes testing to determine whether prior learning may be recognised for the purpose of gaining the trade qualification. Mr Sparke has followed neither of these options. 114I can see no objection to Mr Sparke applying to have prior learning formally recognised and, on that basis, applying to resume his apprenticeship under proper supervision, provided the employer or a host employer has the necessary facilities and opportunities to enable Mr Sparke to acquire the competencies of the Electrotechnology-Electrician trade vocation, in particular work-based activities that supported all of the required work-based training and qualified supervision. 115Otherwise, it would not be appropriate to provide Mr Sparke with an opportunity to obtain an electrical contracting licence, which in turn would allow him to undertake electrical installation work, work in respect of which Beeox had no facilities to enable Mr Sparke to acquire the necessary competencies. 116The appellants contended that electrical installation work was a minor aspect of the trade. However, that work constitutes core competencies and minor or not, such work is extremely dangerous. That is why there are such strict conditions on who may perform such work. 117I find that Beeox failed to discharge its obligations under the apprenticeship in that it failed to take all reasonable steps to enable Mr Sparke to receive the work-based component of the required training by making available work-based activities that supported all of the required work-based training. 118I further find that Beeox failed to comply with s 13(1)(a) of the Act by failing to enable Mr Sparke to receive the work-based component of the required training, by providing all necessary facilities and opportunities to acquire the competencies of the Electrotechnology Electrician trade vocation, in particular work-based activities that supported all of the required work-based training.

Liaising with RTO 119Pursuant to s 13(1)(b)(ii) of the Act, the employer is required to take all reasonable steps to enable the apprentice to obtain an appropriate qualification for that vocation by liaising with the relevant RTO in relation to the apprentice's attendance and participation in the training provided by the relevant RTO. 120Ms Sparke accepted that Beeox had received Mr Sparke's progress and attendance reports. At [12] of the VTT's decision, the following was stated: The Tribunal considered information relating to the apprentice's participation and progress from North Sydney TAFE, obtained pursuant to section 46 of the Apprenticeship & Traineeship Act 2001, noting significant absences and delayed progress, in particular: Attendance for 4 hours or less; Course progress in 2009, completed 6 of 20 subjects attempted; Course progress in 2010, completed 7 of 11 subjects attempted; Course progress in 2010, completed 3 of 8 subjects attempted. 121In the appeal, Ms Sparke was cross-examined about these matters. Ms Sparke contended the information was incorrect and put forward her own analysis as to what the true situation was. In relation to whether Ms Sparke, in her capacity as the principal company officer of Beeox, contacted TAFE regarding the results communicated to her, the following exchange occurred: Q. Can I ask you this: When the results came out in 2009, notwithstanding that you assumed that they were wrong, why is it that you didn't thereafter communicate with TAFE in respect of those results? A. We did. Q. You did or did Mr Sparke? A. I talked to David. David undertook to contact TAFE and he did. Q. But, you knew in your capacity as the employer did you not to contact TAFE directly in relation to these results as they appear on that page is that correct? A. I don't see anywhere where it says I have got to do it directly. It says I have got to do it reasonably and I think it is reasonable that I talk to my spouse and he undertakes. Q. It might be reasonable to talk to your spouse? I am asking you questions about the Act and the requirements of the employer? A. Yes, I replied I acted reasonably. Q. Do you accept also that at the end of 2010, when there was results issued that showed the completion of 7 out of 11 subjects, you also didn't make any direct contact with TAFE? A. Again, I spoke with David and I asked him to contact TAFE to fix the recognition for prior learning and the other errors. Q. Similarly to in 2011 when you saw that there was an indication that only 3 out of the 8 subjects attempted to be completed? A. Yes. 122In my opinion, it was not reasonable for Ms Sparke to have the apprentice liaise with TAFE regarding his attendance and progress. The Act places the onus on the employer to do the liaising. It is the employer's responsibility to work with the RTO to ensure the Training Plan is being met and that the apprentice's attendance at TAFE and progress in the course is satisfactory. The progress and attendance as reported to Ms Sparke in 2009, 2010 and 2011 was not satisfactory. If Ms Sparke believed at the time the reports were incorrect, she had a duty then to liaise with TAFE and not rely on the apprentice to do so. Even if the reports were incorrect that did not absolve Ms Sparke of her duty. Indeed, it was all the more reason for her to contact TAFE.

Safe supervision 123The VTT found that 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 workplace when performing potentially hazardous electrical wiring work. It must follow, given my findings regarding the absence of qualified supervision, that this finding should stand. If there was no one qualified to supervise Mr Sparke in undertaking potentially hazardous electrical wiring work, then Mr Sparke, contrary to s 13(2) of the Act, was not safely supervised. I so find.

Notifying the Commissioner 124Section 15(1)(b) of the Act requires an employer to notify the Commissioner within 14 days of any failure by the apprentice to make satisfactory progress in learning the competencies of the relevant vocation and s 15(1)(d) requires such notification where there is any failure by the apprentice to participate in, or make satisfactory progress in, the training provided by the relevant RTO. 125The appellants contended that it was not necessary to notify the Commissioner in accordance with s 15(1) of the Act because there was no failure to make satisfactory progress. As I have indicated, Mr Sparke's progress and attendance as reported to Ms Sparke in 2009, 2010 and 2011 was not satisfactory. There was no evidence that, at the time Ms Sparke received the reports from TAFE, she took the view the reports were wrong. I consider the respondent is correct in submitting that Ms Sparke's analysis of Mr Sparke's attendance record and course results is an ex post facto justification for not having notified the Commissioner in accordance with s 15(1) of the Act. 126If Ms Sparke, at the relevant time, considered TAFE's reports were wrong one would expect that there would be evidence of communications with TAFE that sought to demonstrate how and why the reports were wrong, but there was no such evidence. Ms Sparke only undertook an analysis of the reports for the purpose of these appeal proceedings. 127Nevertheless, I make the assumption, for the purpose of dealing with this aspect of the appeal, that Ms Sparke's analysis is correct and there was no failure on the part of the apprentice to participate in, or make satisfactory progress in, the training provided by TAFE. It is arguable, in that circumstance, that there was no obligation to notify the Commissioner under s 15(1)(d) of the Act. However, that does not answer the allegation that the apprentice failed to make satisfactory progress in learning the competencies of the relevant vocation and the employer failed in that respect to notify the Commissioner pursuant to s 15(1)(b) of the Act. 128According to the Training Contract, the employer is required to "make sure the apprentice/trainee receives on-the-job training and assessment in accordance with the Training Plan" and to "work with our RTO and the apprentice/trainee to make sure we follow our Training Plan, keep training records up-to-date, and monitor and support the apprentice/trainee's progress". 129A fundamental training record and the means by which the apprentice's progress could be monitored and assessed is by use of a logbook or its equivalent, namely, an eprofiling form or "Work Performance Portfolio" referred to in the evidence of Mr Jeremy. This enables evidence to be collected of how, when and where an apprentice demonstrates acquisition of relevant skills on-the-job to meet the competencies under the Training Plan. 130Mr Jeremy gave expert opinion evidence in relation to the evidence of an apprentice achieving the requisite work based competencies. He stated that eprofiling forms were required to be signed off by a licensed electrician and submitted regularly (typically weekly): Q. Who signs off on that declaration? A. A licensed tradesman who supervised the work. Q. You indicated that this is equivalent to the Eprofiling. It would seem an Eprofiling performer doesn't have the opportunity to describe in such detail description of works and the like. How are these matters able to be demonstrated using the Eprofiling system? A. Eprofiling collects evidence of a progressive nature, weekly over a period of four years and collates that information using an algorithm to map back to the elements listed in this portfolio. And further: Q. In your experience has it ever been the case that an apprentice has submitted workplace evidence whether through Eprofiling or the portfolio method, has it ever been the case in your experience those documents have been submitted without being signed off by a licensed electrician? A. No. Q. In your opinion would such documents ever be accepted such as to satisfy the required evidence? A. No. 131Ms Sparke was aware of what was involved in eprofiling when she entered into the Training Contract on behalf of Beeox. Eprofiling develops a profile of on-the-job work experience of the apprentice. It records the apprentice's work experiences every week and once verified by the supervising tradesperson they are compiled into reports for the training provider (in this case TAFE) indicating the apprentice's progress on-the-job against the national competency standards. TAFE uses the eprofiling information in conjunction with college training results to make a judgment on the apprentice's competence. 132Ms Sparke said in her evidence that eprofiling was discontinued as a method of evidence collection after about a year and a half, but even for that 18 month period no eprofiling form was completed in respect of Mr Sparke. Nor was there any other equivalent record completed over the period of the apprenticeship as to the apprentice's work experience and sent to TAFE. 133Notwithstanding that Ms Sparke agreed in cross-examination that she understood what was involved in eprofiling, Ms Sparke took no steps to ensure the forms were completed and signed off by a qualified tradesperson and agreed she had no idea there was a requirement to submit to TAFE evidence of the apprentice achieving competencies on a regular basis. 134It seems to me the truth of the matter is that other than what she might have been told by the apprentice, and other persons not qualified to make an assessment, Ms Sparke failed to monitor the apprentice's progress in a proper and systematic way and had no basis to make an independent, informed assessment of Mr Sparke's progress towards achieving competencies in the Electrotechnology Electrician trade; neither did anyone else. 135Ms Sparke could not have notified the Commissioner of any failure by the apprentice to make satisfactory progress in learning the relevant competencies because she simply did not know. It is, therefore, arguable there was no contravention of s 15(1)(b) of the Act. It is, however, clear that in failing to monitor the apprentice's progress, in failing to keep training records up to date and in failing to work with TAFE to ensure the Training Plan was adhered to, Beeox contravened s 13(2) of the Act in that it failed to discharge its obligations under the apprenticeship as an employer of the apprentice. I so find.

Host employer arrangement 136Section 14(1) of the Act provides that an employer that places an apprentice with a host employer under a host employment arrangement remains liable to fulfill the obligations imposed on the employer by this Act, but is taken to have fulfilled those obligations if they have been fulfilled by the host employer. Section 14(2) of the Act requires, inter alia, that the employer supervise the host employer in its provision of the required training to the apprentice. The respondent contended Beeox contravened this provision. The appellants contended there were no host employer arrangements and, therefore, no obligation to notify arose. 137Section 15(1)(e) of the Act requires the employer to notify the Commissioner of certain matters where the employer places the apprentice with host employers. I do not understand the respondent to have contended on appeal that there was a contravention of s 15(1)(e) of the Act. Therefore, I do not propose to take that matter any further. 138The evidence indicates that Mr Sparke was an employee of Beeox working in an apprentice capacity. It appears he did work in that capacity for Beeox, but he also performed work for OneWaterNaturally in circumstances where that company engaged electrical contractors to undertake electrical installation work on various OneWaterNaturally projects. It seemed to be the appellants' case that when Mr Sparke performed work under the supervision of the electrical contractors he was working for Beeox, notwithstanding the fact that the contractors had been engaged by OneWaterNaturally and were paid by that company. There was no connection between Beeox and the work being undertaken by OneWaterNaturally. 139It seems to me that when Mr Sparke was working under the supervision of an electrical contractor engaged by OneWaterNaturally, that was a host employer arrangement. That is, Mr Sparke was under the supervision of OneWaterNaturally for the purpose of training or under the supervision of an electrical contractor engaged by OneWaterNaturally. Beeox was not providing the supervised training and had no connection with the electrical contractor or OneWaterNaturally other than its apprentice had been placed with either of those entities for the purpose of training. The essence of a host employer arrangement is the placement by the employer of an apprentice with another employer, the host employer, for the purpose of training the apprentice. 140There was no evidence that Beeox directed either OneWaterNaturally or any electrical contractor, whilst Mr Sparke was undertaking any training with either of them as the host employer, or had an arrangement with either of them, that could be regarded as ensuring that the apprentice received the work-based component of the required training in accordance with s 14(2)(a) of the Act. There was no evidence that Beeox supervised either OneWaterNaturally or any electrical contractor whilst Mr Sparke was undertaking any training with either of them as the host employer that could be regarded as satisfying the requirements of s 14(2)(b) of the Act. 141If the appellants are correct, and there was no host employer arrangement because Beeox did not place the apprentice with OneWaterNaturally or with the electrical contractor for training, then it must logically follow that Beeox did not provide the apprentice with any training in, or in connection with, electrical installation work. This is because Beeox did not undertake such work and had no person in its employ that could supervise the training of the apprentice. Accordingly, that would amount to a contravention of s 13(1)(a) and/or s 13(2) of the Act. 142In my opinion, it may be inferred OneWaterNaturally was a host employer for the purposes of the Act. Accordingly, for the reasons I have given the employer, Beeox, failed to comply with ss 14(2)(a) and 14(2)(b) of the Act.

Conflict of interest 143The Act does not make it a condition of approval of an apprenticeship that there must be no conflict of interest between the apprentice and the employer or the apprentice and a host employer. However, the document "Apprenticeship and traineeship applications - Approval Requirements" issued by State Training Services provides that: Two of the requirements that must be satisfied in order for an apprenticeship or traineeship to be established in NSW are: the proposed apprentice or trainee must be able to enter into a contractual arrangement with the employer (the "training contract") establishment of the training contract should not result in a conflict of interest that impacts on the capacity of the parties to meet their obligations under the training contract, and under the Apprenticeship and Traineeship Act, 2001 144At 2.5.3 of the Approval Requirements, it is stated: Notwithstanding s2.5.2 of these guidelines, an application to establish an apprenticeship or traineeship may be dismissed if the Commissioner is satisfied that the business relationship between the employer and the proposed apprentice/trainee is such that it may present a conflict of interest that affects the capacity of the parties to meet their obligations under the training contract and the Apprenticeship and Traineeship Act, 2001. Where a potential conflict of interest is identified, the Commissioner will assess each application in its merits in relation to this requirement. Examples of business relationships that may be considered by the Commissioner to present a significant conflict of interest under the terms of this provision include: where the applicant is the sole director of the company that is the legal employer where the applicant is a majority shareholder in the company that is the legal employer where the applicant holds a senior management position within the business that is the legal employer where the applicant is a sole director or majority shareholder, or holds a senior management position within the business that is the host employer 145As I earlier indicated, considerable weight has to be given to the Commissioner's view about what the appropriate arrangements are to be in connection with apprenticeship training. The Commissioner is of the opinion that a significant conflict of interest arises in circumstances where the apprentice is a sole director or majority shareholder, or holds a senior management position within the business that is the host employer. 146Mr Sparke was the managing director of OneWaterNaturally. That entity contracted electrical contractors to undertake electrical installation work. The appellants contended that, notwithstanding Mr Sparke's role of managing director of OneWaterNaturally, no conflict arose by virtue of the fact he was being supervised as an apprentice by an employee of OneWaterNaturally or by a contractor engaged by and paid for by OneWaterNaturally. 147In my opinion, that was an inappropriate arrangement and gave rise to a conflict of interest. Further, in this respect, there was evidence of Ms Sparke that Mr Sparke was in charge of large ("massive") projects at the same time as being a Beeox apprentice on those projects: Q. I am talking about the number. There's only three that you have referred to in evidence? A. These are not getting an electrician in to put a power point that takes one day. These are massive projects that we undertook or One Water undertook. They are not just one days work. They are weeks and weeks of work. So you call in an electrician at the appropriate time at the time you need power in the wall when you are installing the equipment. Prior to installing the equipment, there is a lot of work that gees on prior to that. And that might be digging trenches, it might be scarfing walls. And so all of the jobs that have gone on prior to the electrician coming in and fitting in the power points are preliminary to that. ... Q. While the work was being undertaken by One Water Naturally was it at that time that Mr Sparke was performing the role of an apprentice? A. No he was he would have been overseeing the job of the project job that One Water Naturally had. 148As the respondent noted, this evidence was then changed. Ms Sparke later submitted that Mr Dixon was in fact in charge and that Mr Sparke was a mere apprentice: Q. So the evidence you gave that Mr Sparke was overseeing the entire project? A. That was incorrect. Q. Mr Sparke did not appear on those jobs as the overseer of the entire project? A. No. Q. Mrs Sparke, I need to put it to you because I am going to submit this, that your first answer was the correct answer? A. I disagree. 149I must say, I am sceptical about the fact that Ms Sparke changed her evidence. It merely serves to reinforce my view that a conflict of interest did exist and the situation whereby Mr Sparke was both managing director of OneWaterNaturally and an apprentice purportedly being supervised by employees of or contractors for OneWaterNaturally was not proper.

Section 51(3) of the Act 150Section 51(3) of the Act provides: (3) The Tribunal must not suspend or cancel an apprenticeship or traineeship under subsection (1) unless it is satisfied that: (a) one of the parties is unlikely to discharge his or her obligations under the apprenticeship or traineeship, and (b) if that party is the employer: (i) the other party is unwilling to allow another employer to assume those obligations, or (ii) no other employer can be found who is willing to assume those obligations. 151I have referred to s 51(3) of the Act because it provides an opportunity to avoid cancelling the apprenticeship in the circumstances described. The appellants, however, have been adamant that the employer has not in any way contravened the Act or the Training Plan and have been scathing in their criticism of the complaint against the employer having been brought in the first place. 152In the face of that attitude, and in the absence of any indication the apprentice was willing to allow another employer (other than OneWaterNaturally, given the conflict) to assume the obligations under the apprenticeship or that another employer could assume those obligations, there was no option for the tribunals below other than to cancel the apprenticeship. 153Nevertheless, I think it would be an unfortunate waste of the time and effort Mr Sparke put into achieving a trade qualification if nothing was done to provide him with the opportunity to complete the qualification. Provided the appellants recognise the shortcomings in their position that have been identified in this judgment, I would recommend to the relevant authorities, to Beeox and to Mr Sparke that they at least confer as to what appropriate arrangements could be put in place to allow Mr Sparke to resume his training and, if necessary, for him to undergo testing to ascertain the degree of his relevant prior learning.

Summary of findings 154Given my findings, I have concluded that the appeal in this matter should be dismissed. My findings may be summarised as follows: (a) the employer, Beeox, failed to discharge its obligations under the apprenticeship by failing to take all reasonable steps to enable Mr Sparke to receive the work-based component of the required training by ensuring Mr Sparke had proper access to an individual who possessed the required competencies to supervise Mr Sparke's work-based learning; (b) the employer, Beeox, failed to comply with the relevant Training Plan, in accordance with s 13(1)(a) of the Act by failing to enable Mr Sparke to receive the work-based component of the required training, by providing all necessary facilities and opportunities to acquire the competencies of the Electrical (Electrician) trade vocation, in particular access to an individual who possessed the required competencies to supervise Mr Sparke's work-based learning; (c) the employer, Beeox, failed to discharge its obligations under the apprenticeship by failing to take all reasonable steps to enable Mr Sparke to receive the work-based component of the required training by making available work-based activities that supported all of the required work-based training; (d) the employer, Beeox, failed to comply with the relevant Training Plan as required by s 13(1)(a) of the Act in that the employer failed to enable Mr Sparke to receive the work-based component of the required training, by providing all necessary facilities and opportunities to acquire the competencies of the Electrical (Electrician) trade vocation, in particular work-based activities that supported all of the required work-based training; (e) the employer, Beeox, failed to comply with the relevant Training Plan, as required by s 13(1)(b) of the Act in that the employer failed to enable Mr Sparke to obtain the qualification in the Electrical (Electrician) trade vocation by liaising with the RTO in relation to Mr Sparke's attendance and participation at North Sydney TAFE; (f) the employer,Beeox, failed to comply with s 13(2) of the Act by failing to meet its obligations as an employer by ensuring that Mr Sparke was safely supervised in the workplace when performing potentially hazardous electrical wiring work; (g) the employer, Beeox, failed to comply with s 13(2) of the Act by failing to monitor the apprentice's progress, failing to keep training records up to date and by failing to work with TAFE to ensure the Training Plan was adhered to; (h) the employer, Beeox, failed to comply with s 14(2)(a) and (b) of the Act by failing to place Mr Sparke with host employers in a manner that ensured that Mr Sparke received appropriate supervision and the work-based component of the required Electrical (Electrician) trade vocation; and (i) Mr Sparke's role as managing director of OneWaterNaturally gave rise to a conflict of interest in circumstances where Mr Sparke performed work for OneWaterNaturally as an apprentice.

Costs 155The respondent submitted the appeal should be dismissed with costs. I accept the respondent's submission that the Court has power to award costs in this matter (see s 55 of the Act and s 181 of the Industrial Relations Act 1996). Costs are in the discretion of the Court: s 181(1)(b). It is a matter of some concern that the appeal proceedings were unnecessarily prolonged and made more complex by the appellants seeking to introduce irrelevant matters. However, I do not propose to award costs.

Orders 156The Court makes the following orders: (1) Leave to appeal is granted. (2) The appeal is dismissed. (3) No order as to costs.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 22 August 2013