Sparke v Vocational Training Appeal Panel

Industrial Relations Commission (NSW)|2013-03-05|Before: Ms J, Boland J

INTERLOCUTORY JUDGMENT 1David Sparke and Beeox Corporation Pty Ltd ("Beeox") have sought leave to appeal and, if leave is granted, to appeal from a decision of the Vocational Training Appeal Panel ("VTAP") given on 24 April 2012. VTAP affirmed a decision of the Vocational Training Tribunal ("VTT") given on 29 February 2012 cancelling the electrical apprenticeship between Mr Sparke and Beeox. 2This judgment deals with several interlocutory issues raised by notices of motions filed by both the appellants and by the respondents, Mr Peter Hay ("first respondent") who is Training Coordinator in State Training Services, which is an agency of the Department of Education and Communities, and State Training Services ("second respondent"). 3Before dealing with each of the motions it is appropriate to fill in some background. Beeox entered into a training contract under the Apprenticeship and Traineeship Act 2001 ("the Act") with Mr Sparke on 31 July 2009. Mr Sparke's wife, Ms Susan Sparke, is and has at all relevant times been the director and secretary of Beeox. Beeox does not have any other company officers. It was a term of the contract that Mr Sparke was not in a business relationship with Beeox and had not worked for or been hosted by Beeox. The apprenticeship was full time, but the respondents have indicated they will assert that Mr Sparke did not do electrical work full time during the course of his apprenticeship and that it appeared he might only have done electrical work about one day per month. 4Whilst undertaking the apprenticeship, Mr Sparke carried out electrical work for OneWaterNaturally. Mr Sparke is the director and secretary of that company. The respondents have indicated they will assert OneWaterNaturally was the de facto host employer of Mr Sparke. 5On 20 January 2012, Mr Hay in his capacity as an industry training officer, made a complaint to the Commissioner for Vocational Training ("the Commissioner") that Beeox "has failed to discharge [its] obligations under the apprenticeship" under s 39(1)(b) of the Act. Further, that Beeox "had failed to comply with the requirements of [the] Act under s 39(2)". 6On 29 February 2012, VTT found that Beeox had failed to discharge its obligations under the apprenticeship and had failed to comply with the requirements of the Act including ss 13(1)(a), 13(1)(b), 13(2), 14(2), 15(1)(b), 15(1)(d) and 15(1)(e). VTT ordered that the apprenticeship between Mr Sparke and Beeox be cancelled from its start date. 7On 14 May 2012, VTAP dismissed the appeal by Beeox and Mr Sparke from VTT's decision, stating: The appeal is refused. The employer did not provide evidence of satisfactory on the [job] training and supervision. The employer also did not sufficiently discharge their obligations regarding notifying the Commission of the apprentice's training progress or changes to their apprentice's employment circumstances. The employer does not have sufficient knowledge of the requirements of the A & T Act. 8Pursuant to s 55 of the Act, the appellants subsequently filed an application seeking leave to appeal and appeal from VTAP's decision on 23 October 2012. An amended appeal notice was filed on 9 November 2012 and a further amended appeal notice was sought to be filed on 5 March 2013. 9The parties were heard in relation to their notices of motion on 5 March 2013. The appellants were given time to reply in writing to the submissions of the respondents (and an extension was granted). Those submissions were received on 14 March 2013.

Relevant legislative provisions 10Section 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. The appeal is a hearing de novo: Ryano Pty Ltd v New South Wales Department of Education and Training [2009] NSWIRComm 180. 11Section 39 of the Act deals with complaints to the Commissioner. It provides: 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. 12As I mentioned, VTT found there was no compliance with multiple provisions of the Act. Those provisions are as follows: 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 ... (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. ... 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: ... (b) any failure by the apprentice or trainee to make satisfactory progress in learning the competencies of the relevant vocation, ... (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, ... 13The intent of s 55 is to place this Court in the position of VTAP and determine the issues afresh. Section 55(3)(a) of the Act provides that in dealing with the appeal, the Court may exercise any function that could have been exercised by VTAP in making the determination the subject of the appeal. 14Section 54(3) and (4) of the Act prescribe that the provisions of Division 2 of Part 4 apply to proceedings before VTAP in the same way as they apply to proceedings before the Tribunal and that the provisions of Division 3 of Part 4 apply to a determination by VTAP in the same way as they apply to a determination by the Tribunal. 15Section 51 is found in Division 3 of Part 4 and provides for the determination of complaints. By virtue of s 54(4) and s 55(3) and given the appeal is a hearing de novo, s 51 prescribes what the Court may do on appeal in determining a complaint. Sections 51(1) and (2) provide: (1) The Tribunal must determine a complaint made under section 39 (1) or (2): (a) by cautioning or reprimanding the person against whom the complaint has been made, or (b) by ordering the person against whom the complaint has been made to make such redress (otherwise than by way of damages for breach of contract) as the Tribunal considers appropriate, or (c) by varying, suspending or cancelling the apprenticeship or traineeship to which the complaint relates, or (d) by dismissing the complaint. (2) A complaint must not be determined as referred to in subsection (1) (a), (b) or (c) unless the Tribunal is satisfied that the person against whom the complaint has been made: (a) has failed to discharge his or her obligations under the apprenticeship or traineeship to which the complaint relates, or (b) has failed to comply with the requirements of this Act. ...

Findings at first instance 16The appellants contend VTAP erred in upholding VTT's decision, the effect of which was that Beeox failed to discharge its obligations under the apprenticeship and failed to comply with the requirements of this Act. VTT's findings were that: (i) Beeox did not have a person with the competencies of the Electrical (Electrician) trade vocation to enable Mr Sparke to undertake the required work-based training, contrary to s 13 of the Act; (ii) Beeox's principal activity and business did not encompass work-based activities that supported all required work-based training in the Electrical (Electrician) trade vocation and the Vocational Training Order; (iii) Beeox could not demonstrate that it was able to meet all employer obligations either in its own right or through the use of "host" employment arrangements in a manner that ensured Mr Sparke received all required training in all aspects of the Electrical (Electrician) vocation; (iv) Beeox failed to comply with s 13(1)(a) of the Act, as the supervisor relied upon to supervise Mr Sparke did not have the relevant competencies to do so, and Beeox's scope of business activities was not adequate to provide the work-based component of the required training for an electrician; (v) Beeox failed to comply with s 13(1)(b) of the Act by failing to liaise with the registered training organisation in relation to Mr Sparke's attendance at North Sydney TAFE; (vi) Beeox failed to comply with s 13(2) of the Act because it could not meet its obligations as an employer by ensuring that the apprentice was safely supervised in the work place when performing potentially hazardous electrical wiring work; (vii) Beeox failed to comply with s 15(1)(b) of the Act by failing to notify the Commissioner of any difficulty being experienced by Mr Sparke making satisfactory progress in his apprenticeship training; (viii) Beeox failed to comply with s 15(1)(d) of the Act by failing to notify the Commissioner of any failure by Mr Sparke to participate in and make satisfactory progress in classes at North Sydney TAFE; (ix) Beeox failed to comply with s 15(1)(e) of the Act by failing to notify the Commissioner that it would be relying on the use of host employers (OneWaterNaturally and Hi-Point) to enable Mr Sparke to gain the required work-based training; (x) Beeox failed to comply with s 14(2) of the Act by not placing Mr Sparke with host employers in a manner that ensured that Mr Sparke received appropriate supervision and the work-based component of the required Electrician trade vocation. 17One may distil these findings to the following, namely, that contrary to the Act: (1) Beeox did not provide Mr Sparke with the necessary facilities and opportunities including qualified supervision, either in its own right or through the use of "host" employment arrangements, to enable him to receive the work-based component of the required training so that he might acquire the competencies of an electrician; (2) Beeox failed to comply with its obligations under the Act to notify the Commissioner regarding problems with Mr Sparke's attendance at and progress in class work at TAFE and failed to liaise with TAFE regarding problems with Mr Sparke's attendance at TAFE; (3) Beeox did not meet its obligations as an employer by ensuring that Mr Sparke was safely supervised in the work place when performing potentially hazardous electrical wiring work. 18Mr Sparke represented himself and Beeox in the proceedings below and it is his intention to continue that representation on appeal. Mr Sparke has a significant hearing disability. I have had regard to the fact that Mr Sparke was an unrepresented litigant doing his best to advocate the appellants' position.

Application to amend appeal notice 19On 5 March 2013, the appellants sought to further amend their application for leave to appeal and appeal. The respondent opposed this. The amended appeal notice, filed on 9 November 2012 contained three grounds of appeal with sub-grounds that appear to address the findings of VTT, upheld by VTAP, contending error in respect of each finding. The proposed further amended appeal notice contains seven appeal grounds. Two of those grounds (6 and 7) are the same as the grounds in the amended notice. Ground 7 repeats a ground in the amended notice, but adds further sub-grounds, one of which is the third ground in the amended appeal notice, and there are five new grounds. The five new grounds in the proposed further amended appeal notice (grounds 1-5) assert, variously, denial of natural justice, bias, failure to give reasons and jurisdictional error. 20Even if there was substance to these assertions, the appeal proceeding is a hearing de novo. That is, the matter is heard afresh and a decision is given on the evidence presented at the appeal hearing. The Court is not really concerned with error committed by either VTT or VTAP; the Court is to determine for itself, on the evidence presented to it, whether there were any proper grounds to cancel the apprenticeship: see Twist v Randwick Municipal Council (1976) HCA 58; (1976) 136 CLR 106 at 115-116 per Mason J The appellants contend none of the findings below constituted proper grounds for cancellation. 21I do not propose to grant leave to the appellants to file their further amended notice of appeal. The proposed further amendment is very late and will further delay the hearing of the appeal for the reason that the respondents will need to revisit their case in reply and, if necessary, file further evidence. The parties have already filed extensive submissions on the basis of the further amended appeal and it is not appropriate those submissions have to be revised to take account of a further amended appeal notice. Finally, the proposed further amendments contain matters irrelevant to any consideration of the appeal issues. 22I expect that my refusal to allow further amendment to the appeal notice will be a disappointment to the appellants because it is apparent they are particularly upset with what they perceive to have been their treatment by the tribunal at first instance. For example, at one stage they were excluded from the hearing room and allege they were abused and bullied. If that is true, it is completely unacceptable, but this Court does not have a supervisory role in respect of VTT or VTAP. The Court's role on appeal is limited to a hearing de novo.

Appellants' notice of motion to join additional respondents 23The appellants have sought orders to join a variety of additional respondents including directors of the Department of Education and Communities, the Acting Head Electrotechnology teacher at TAFE, and TAFE. The orders are sought, it would appear, on the basis that these persons were somehow improperly or unlawfully involved in bringing the complaint against the appellants and prosecuting the complaint. 24The role of VTT under the Act is to determine complaints by one of the parties to an apprenticeship or traineeship or by an industry training officer, either by conciliation (in relation to a complaint by a party) or, if that is unsuccessful, by the process provided for in Divisions 2 and 3 of Part 4 of the Act. Part 5 of the Act deals with appeals to VTAP and to the Court. 25The nature of a complaint that may be referred to VTT and, therefore, may be the subject of appeal, is set out in s 39. A complaint may be made that a party to an apprenticeship or traineeship has failed to discharge his or her obligations under the apprenticeship or traineeship (s 39(1)), or that a party to an apprenticeship or traineeship has failed to comply with the requirements of the Act (s 39(2)), or that a party to an apprenticeship or traineeship has refused to consent to the transfer, suspension, cancellation or variation of an apprenticeship or traineeship (s 39(3). 26The duties of employers, apprentices and trainees are set out in ss 13-17 of the Act. A breach of those duties may constitute a failure to comply with the Act or a failure to discharge obligations under the Act. 27Neither VTT, VTAP nor the Court may be concerned with complaints against persons other than employers, apprentices and trainees who have obligations or duties under the Act. None of the persons that the appellants seek to have joined as additional respondents have any duty or obligation under the Act; no enforceable determination could be made against those persons by this Court. It is, therefore, futile for an order to be made joining them as additional respondents. The motion is refused.

Appellants' Notice of motion - summonses to produce and give evidence 28The appellants sought leave to serve summonses to produce and/or summonses to give evidence on some 10 persons associated with the Department or the Commissioner or North Sydney TAFE. The bulk of what the appellants seek is oppressive and has no legitimate forensic purpose given the issues that need to be determined on the appeal. For example, one of the summonses seeks records and documents relating to: [T]he availability and access to the student for education services as a public education instrumentality, documents relating to the student having been expelled from NSCT and any accountability for such actions, documentation of any authority to withhold adequate or committed disability services, documents and records in relation to advise(sic) received or any directions given from the Office of Director General ('DG') of DEC in relation to the continuation of education services relating to an electrotechnology apprenticeship and training plan, any direction or authorisation of the DG instigating a complaint submitted to the Vocational Training Tribunal ('VTT') against the students (sic) employer, any documented advise (sic) from Legal Services in relation to the management or issues of the student, any documents received in briefings in relation to the student issues and any briefings provided to the Minister in relation to the management of the student by DEC and bodies under the direction and control of the DG. All reports of corrupt behaviour by senior staff of DEC and TAFE... 29The appeal is not a forum to investigate the processes of the Department or TAFE. It is also not a forum to consider the course contents and requirements relating to the electrician's trade course at TAFE. What are relevant are Mr Sparke's academic record and his attendance record, which are in issue. Mr Sparke is entitled to summons his records in that respect from TAFE unless he is satisfied the records that have been included in the Appeal Book are accurate. 30It appears that Mr Sparke is contending that there was some discrimination practised against him by TAFE and/or the Department because of his age and hearing disability. If the contention is that his age and hearing disability had an adverse impact on his ability to satisfactorily progress in his class work at TAFE and that was due to discrimination by TAFE and/or the Department, then Mr Sparke is entitled to have produced to him records and documents (as defined in the Evidence Act 1995) relating to any request for assistance by him in connection with his age or hearing disability in order to assist him in the learning process and any records or documents responding to his request. Mr Sparke is also entitled to evidence of Mr Hay's appointment as an industry training officer given that Mr Hay is the one that initiated the complaint under s 39 of the Act. 31Apart from these matters leave is refused to serve the summonses for the purpose of the appeal hearing. 32I should add that it seems to me that the questions of Mr Sparke's academic record in his course at TAFE and his attendance record are of secondary importance in the appeal. What is critical is whether Beeox provided Mr Sparke with the necessary facilities and opportunities including qualified supervision, either in its own right or through the use of "host" employment arrangements, to enable him to receive the work-based component of the required training so that he might acquire the competencies of an electrician; and whether Beeox was able to meet its obligations as an employer by ensuring that Mr Sparke was safely supervised in the work place when performing potentially hazardous electrical wiring work.

Respondents' motion - leave to issue summonses to produce 33The respondents seek leave to serve summonses to produce on Beeox, OneWaterNaturally Pty Ltd and OneSolar Naturally Pty Ltd. 34The summons on Beeox seeks various records and documents concerning the employment of Mr Sparke, his supervision, the qualifications of Gary Rolands and his employment with Beeox, electrical work carried out by or on behalf of Beeox, correspondence with TAFE regarding Mr Sparke's results, participation and progression in his trade course, any agreement or understanding with OneWaterNaturally in relation to that company using the services of Mr Sparke and/or supervising his apprenticeship, the qualifications and expertise of Jamie Dixon insofar as they relate to his ability to supervise an apprentice electrician and his employment by Beeox. 35The summons on OneWaterNaturally seeks records and documents concerning work carried out by Mr Sparke for that entity and other information regarding agreements or understanding with Beeox in respect of Mr Sparke. The summons on One Solar Naturally seeks similar information to that in the OneWaterNaturally summons. 36All of the information sought is relevant to the issues in the appeal; it has a legitimate forensic purpose and I do not regard it as oppressive. Leave is granted to issue the summonses.

Respondents' further evidence 37The respondents have sought leave to file two affidavits, one of Steve Maher, Field Officer employed by The Electrotechnology Industry Training Group Company Limited. Mr Maher is a qualified electrician and supervises apprentices. The evidence relates to the supervision of apprentices by a qualified tradesperson. The affidavit of Quentin Jeremy, also a Field Officer with The Electrotechnology Industry Training Group Company Limited and a licensed electrician, addresses the question of on the job training for electrical apprentices. 38The evidence is relevant to the appeal and no prejudice arises for the appellants, who will be given sufficient time to respond to these affidavits. Leave is given to file and serve the affidavits.

Directions 39The Court makes the following directions: (1) The appellants may issue summonses in proper form in accordance with this judgment no later than Tuesday 26 March 2013. (2) The respondents shall file and serve the affidavits of Mr Maher and Mr Jeremy within three days of the date of this judgment. (3) The appeal is listed for further directions at 9.30am on Wednesday 27 March 2013

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: 19 March 2013

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