14

[Extract from Queensland Government Industrial Gazette,

dated 12 June, 2009, Vol. 191, No. 5, pages 94-108]

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

Vocational Education, Training and Employment Act 2000 - s. 230 - appeal to industrial commission against council

Gavin Beach AND Training and Employment Recognition Council (First Respondent) and Australian Country Choice (Second Respondent) (AT/2008/4)

COMMISSIONER FISHER / 28 May 2009

Appeal against decision of Training and Employment Recognition Council - Employer cancelled training contract - Nature of appeal - Council record - Employer obligations - Training contract cancelled other than in accordance with VETE Act - Allegations of misconduct - Two instances established - Council decision to reprimand appropriate - Determined council found impracticable to resume training and to order cancellation of training contract - Appellant decided not to continue in QA back-up role essential to training - Determined does not constitute misconduct - Union membership issue - Compensation determined to be offset against amount already paid - Commission orders training contract be cancelled - Appeal dismissed as it relates to the council decision - Whether a penalty should be imposed on employer - Parties given opportunity to make written submissions.

DECISION

Gavin Beach has appealed against the whole of the decision of the Training and Employment Recognition Council (the Council) given on 1 December 2008 under the Vocational Education, Training and Employment Act 2000 (the VETE Act) which was to:

(a)  Make a decision in accordance with s. 65(4) of the VETE Act that the employer has purported to cancel the training contract other than in accordance with the provisions of that Act; and

(b) Make an order under s. 65(5) of the VETE Act cancelling the training contract; and/or

(c)  Cancel the registration of the training contract in accordance with the provisions of s. 66(1)(c) of the VETE Act; and/or

(d) Not make an order under s. 71(2)(d) of the VETE Act cancelling the training contract as requested by the employer but in lieu thereof make an order under s. 71(2)(a) reprimanding the trainee.

Background

Mr Beach initially worked at Australian Country Choice (ACC) whilst employed by a labour hire company, AWX. During that engagement Mr Beach expressed interest in Quality Assurance (QA) functions and underwent some on-the-job training in that area in January 2008 under the supervision of Donna Gode, Quality Supervisor. Mr Beach was offered and accepted direct full-time employment with ACC. He signed an Individual Transitional Employment Agreement (ITEA) on 14 April 2008 and commenced employment with ACC on 21 April 2008. His ITEA recorded that he was employed as a "Butcher/QA Back-Up Officer" in the Retail Ready Department. Mr Beach was subsequently engaged as a Certificate III in Food Processing trainee by ACC on 18 June 2008 under a registered training contract.

On 2 October 2008 ACC terminated the employment of Mr Beach whilst he was in his six month probationary period under his ITEA. On the same day ACC applied for the cancellation of Mr Beach's training contract on the grounds of "failed probationary period". On receipt of this advice Mr Beach notified his objection to the cancellation. ACC was advised by the then Department of Education, Training and the Arts Senior Field Officer, Yvonne Schofield, that as Mr Beach was a trainee, they could not terminate his employment before the cancellation of his training contract. On 10 October 2008 ACC submitted an amended application for the cancellation of Mr Beach's training contract on the grounds of misconduct.

The Department held several meetings and discussions with Mr Beach, his Union, The Australasian Meat Industry Employees' Union (the Union) and/or ACC in an attempt to resolve the matter. Although no agreement was reached ACC subsequently reinstated Mr Beach to the company payroll but refused all attempts to return him to work to complete his traineeship.

On 16 October 2008 Mr Beach applied under s. 65 of the VETE Act for an order by the Council that the employer resume training him under his training contract.

Both applications were investigated by Ms Schofield who subsequently issued a Show Cause Notice to all parties in accordance with s. 25 of the Vocational Education, Training and Employment Regulation 2000. Only Mr Beach responded to the Show Cause Notice. After considering his response Ms Schofield, under delegation from the Council, made the decisions set out above. Ms Schofield provided an Information Notice to all parties explaining the reasons for her decisions.

Mr Beach now appeals against those decisions.

Grounds of appeal

The Application to Appeal set out the following grounds of appeal:

"(a) That the Training and Employment Recognition Council had no grounds to make an order under s. 66(1)(c) of the Vocational Education, Training and Employment Act 2000;

(b)  That the Training and Employment Recognition Council erred in making an order under s. 66(1)(c) of the Vocational Education, Training and Employment Act 2000 by taking into account irrelevant information;

(c)  That the Training and Employment Recognition Council erred in making an order under s. 71(2)(a) of the Vocational Education, Training and Employment Act 2000 by taking into account irrelevant information;

(d)  That the Training and Employment Recognition Council failed to give sufficient weight to the Applicant's submissions in response to the 'Show Cause' notice issued by the Training and Employment Recognition Council on 7 November 2008.".

Decision sought

The following decisions were sought from the Commission:

"(a) That the Commission overturn the decision to cancel the Applicant's training contract under s. 66(1)(c) of the Vocational Education, Training and Employment Act 2000;

(b)  That the Commission make a decision under s. 65(4)(a) of the Vocational Education, Training and Employment Act 2000 that the Applicant resume undertaking the training;

(c)  That the Commission overturn the decision to reprimand the employee under s. 71(2)(a) of the Vocational Education, Training and Employment Act 2000;

(d)  That the Commission make any other necessary order under the Vocational Education, Training and Employment Act 2000 to enable the Applicant to resume his training; and

(e)  That, if the Commission considers it would be inappropriate in the circumstances for the training to continue, that the Commission make an order for compensation under s. 237 of the Vocational Education, Training and Employment Act 2000.".

Nature of the Appeal

Section 232(1) of the VETE Act provides that an appeal to the Industrial Commission is by way of rehearing on the record. However, at a Directions Hearing on 5 February 2009 the Commission accepted the submissions of the Union and ACC to hear additional evidence in accordance with s. 232(2). The Council provided the Commission and the parties with a copy of the "Record" in accordance with s. 109 of the Industrial Relations (Tribunals) Rules 2000. Only Mr Beach and ACC led additional witness evidence whereas the Council relied on the Record, cross-examination of the witnesses and submissions.

The Council presented its submissions on the basis of the evidence that was before it when the decisions were made and then the additional evidence that was before the Commission. In this decision consideration has been given to the whole of the evidence before the Commission which includes the Record as well as the witness evidence, submissions and exhibits.

The Council submitted that after hearing the additional evidence the Commission, whilst not finding fault with the Council's original decision because of the evidence it was based upon, may be persuaded to make a different decision to that made by the Council.

Did ACC purport to cancel the training contract other than in accordance with the provisions of the VETE Act?

ACC terminated Mr Beach's employment on 2 October 2008. Mr Beach was paid one day's notice under the terms of his ITEA. Later the same day ACC applied to cancel the training contract on the grounds of "failed probationary period". The ITEA entered into between ACC and Mr Beach provided a six month probationary period, however the training contract provided a probationary period of only one month. This latter time period had elapsed by the time ACC applied to cancel the training contract for the reason of failed probationary period. On being advised of this ACC amended its application by seeking to cancel the training contract on the grounds of misconduct.

Despite the Application to Appeal stating that Mr Beach was seeking to appeal the whole of the decision, the grounds of appeal and the submissions of the Union make it clear that he does not seek to appeal that part of the decision where it was found that ACC purported to cancel the training contract other than in accordance with the VETE Act. The Union submitted the Commission should uphold this decision.

In its opening submissions the Union said that ACC can only purport to cancel the training contract for the following reasons:

·  by agreement between both parties: s. 61;

·  on stated grounds: s. 63; or

·  for serious misconduct: s. 64.

The Union submitted that none of these reasons were advanced by ACC initially as grounds for cancelling the training contract. Further, even when the application seeking to cancel the training contract was amended to show misconduct the reasons given did not amount to serious misconduct.

The Council contended that ACC had purported to cancel the training contract in a way other than in accordance with the VETE Act because it had terminated Mr Beach's employment before the training contract was cancelled. The Council provided detailed submissions about the legislative basis for this position. These submissions are found at exhibit 15 paragraphs 91 to 112. The Commission accepts these submissions as accurately setting out the law.

A summary of these submissions is as follows. An employment contract underpins a training contract, however, both types of contract can specify a probationary period. Those probationary periods need not coincide. The 30 day probationary period for this traineeship expired on 17 July 2008, several months before Mr Beach's employment was terminated. At the time of his termination the probationary period under the employment contract remained operative. Section 51 of the VETE Act sets out the provisions for the ending of a traineeship in the probationary period and s.138A of the Industrial Relations Act 1999 (IR Act) sets out the provisions for the termination of employment of a trainee during the probationary period, however, neither of these provisions is relevant as the probationary period for the traineeship ceased on 17 July 2008.

Once the probationary period established in accordance with s. 50 of the VETE Act is completed, the only provision for termination of the employment of a trainee is s. 139(2) of the IR Act. That section provides that a trainee's employment with the employer cannot be terminated unless the apprenticeship or traineeship is completed or is cancelled under the VETE Act. Here, the training contract was not cancelled in accordance with the VETE Act until the Council did so on 1 December 2008.

Mr Beach was employed under a federal ITEA. The employer believed this prevailed over the training contract by virtue of s. 17 of the Workplace Relations Act 1996 (WRA). However, in December 2006 the Workplace Relations Regulations 2006 (Regulations) were amended by inserting a new provision which made clear that a law of a State or Territory was not prescribed to the extent to which it deals with, or allows arrangements to be made for, the termination of a training contract or a training agreement by a State or Territory training authority and it provides a remedy that arises from that termination of the training contract or training agreement otherwise than by the State or Territory training authority: Regulation 2.1.5(9)(b). A State or Territory training authority is defined in s. 4 of the WRA to mean a body authorised by a law or award of a State or Territory for the purpose of overseeing arrangements for the training of employees. The Council is a "State or Territory training authority" as it is established under s. 167 of the VETE Act and s. 168 establishes its functions including to register and regulate training organisations and training contracts, to declare apprenticeships or traineeships and to decide probationary periods and nominal terms for apprenticeships and traineeships.

The effect of Regulation 2.1.5(9)(b)(i) is that the VETE Act provides how a training contract may be terminated (refer ss. 61, 63, 64, 65, 71, 73, 73A, and 74 of the VETE Act). By virtue of Regulation 2.1.5(9)(b)(ii) and s. 65 of the VETE Act, ACC by its actions in terminating Mr Beach's employment on 2 October 2008 purported to cancel (or terminate) his training contract in a manner that was not in accordance with the VETE Act. Section 139 of the IR Act creates an offence and provides for the imposition of a penalty. Section 391(2) of the IRA requires the employer to pay wages until the training contract is cancelled in accordance with the VETE Act.

The effect of Regulation 2.1.5(9)(b) is that the termination of employment during probation provisions of the ITEA are subject to the Queensland law that prescribes the way in which employment of trainees can be terminated. Section 139 of the IR Act is that Queensland law and it provides that the employment of the trainee cannot be terminated before the training contract is cancelled under the VETE Act.