Sparke v Vocational Training Appeal Panel [2013] NSWIRComm 18

Industrial Relations Commission New South Wales Medium Neutral Citation: Sparke v Vocational Training Appeal Panel [2013] NSWIRComm 18 Hearing dates: 5 March 2013 Decision date: 19 March 2013 Jurisdiction: Industrial Court of NSW Before: Justice Boland, President Decision: The Court makes the following directions: (1) The appellants shall 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. Legislation Cited: Apprenticeship and Traineeship Act 2001 Evidence Act 1995 Cases Cited: Ryano Pty Ltd v New South Wales Department of Education and Training [2009] NSWIRComm 180 Category: Interlocutory applications Parties: David Sparke (First Appellant) Beeox Corporation Pty Ltd (Second Appellant) Peter Hay (First Respondent) Vocational Training Appeal Panel (Second Respondent) Representation: Ms J Lucy of counsel (Respondents) Mr D Sparke and Ms S Sparke (Appellants in person) Mr C Miles, solicitor (Respondent) File Number(s): IRC 1087 of 2012

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.