Australia Meat Holdings Pty Limited v Training Recognition Council [2001] QIRC 100 (2001) 167 QGIG 272

13 July, 2001 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 272 ########################################################################################################################### QUEENSLAND INDUSTRIAL RELATIONS COMMISSION Training and Employment Act 2000 – s. 231 – application for stay Australia Meat Holdings Pty Limited AND Training Recognition Council (No. AT7 of 2001) COMMISSIONER BLADES 29 June 2001 REPORT ON DECISION (as edited) In giving a decision from the Bench on 28 June 2001, Commissioner Blades said:– “This is an application under the provisions of s. 231 of the Training and Employment Act 2000 (the Act) for a stay of a decision of the Training Recognition Council dated 29 May 2001 whereby the Council has not approved a request to cancel the training contract, on the grounds of abandonment of employment, of one Tony Arthur Keasey employed by Australia Meat Holdings Pty Ltd. The Information Notice, admitted as Exhibit 1, does not specify under which section the order has been made. Prima facie, it would appear that there is no authority for an appeal to be lodged under s. 230 of the Act against a decision to not approve a request to cancel a training contract. The appeal is against the cancellation of the contract. Section 230(1)(e) refers to a decision about ‘the cancellation of a training contract for a reason other than serious misconduct’. This was not a decision to cancel. See also the Explanatory Notes which relate that clause 230 allows an aggrieved person to appeal ‘a decision by the Training Recognition Council to cancel an apprenticeship or traineeship contract for a reason other than misconduct’. This was not such a decision. A right to appeal is provided for in s. 230 (1) in respect of ‘(c) an order under s. 71’. What is an order under s. 71? Abandonment of employment is included in the term ‘misconduct’ in s. 70. Section 71 allows the Council to make various orders, one of which is an order cancelling the contract and other orders that may be made include reprimand, imposition of a monetary penalty, and suspension. The Explanatory Note provides that s. 230 allows a person aggrieved by specified decisions to appeal and one of those specified decisions relates to a decision under s. 71. The Note uses the following language ‘an order of the Training Recognition Council that imposes a disciplinary measure (i.e. impose a fine on or reprimand an employer or apprentice or trainee, cancel or suspend an apprenticeship or traineeship contract)’. What was done in this instance does not fall within those provisions. No disciplinary measure was imposed. What apparently occurred in this case was that the employer purported to unilaterally terminate the traineeship, something which it could not do. The employer is advised by various information sheets and the Act provides in s. 63 that cancellation cannot occur unless the Training Recognition Council approves the application. Generally, a stay will be granted in circumstances where there is an arguable case for the granting of the appeal, and where the balance of convenience favours the making of the order. The applicant must demonstrate an ‘arguable case’. In effect, this means that the appellant seeking the stay order must establish to the Commission’s satisfaction that, when the appellant’s appeal is heard, the appeal will have some chance of success. In order to satisfy the ‘arguable case’ requirement, an appellant would need to specify at least some of the grounds upon which the appeal is based. The appellant has endeavoured to do so, not the least among which is an alleged breach of natural justice by the Training Recognition Council. Of necessity, due to the urgency for a decision in this stay application where Mr Keasey is due to commence work tomorrow afternoon (Friday 29 June 2001), further argument and consideration may have been of benefit. However, upon the information that I have at the moment, it seems to me that the applicant/appellant may have some initial hurdles in pointing to a right to appeal. I emphasise that I do not make a final decision on that matter. It should be left to the hearing of the appeal. What it does mean however is that I am not satisfied that the appellant has advanced an arguable case that the appeal will have some chance of success. To the contrary. The applicant/appellant pointed to the prejudice it would suffer if an order for a stay was not made. That prejudice would be that it would be required to pay wages to the trainee and if the appeal was successful, those wages could not be recovered. On the other hand, the prejudice to the trainee was pointed to in that there is a significant difference between Social Security receipts and his wages. There is no doubt that an order for the payment of wages could be backdated if the appeal happened to be unsuccessful. However, there is also no doubt that the employer probably could well make good use of the trainee while the payment of wages continued. It would not be as though the payment was made for no return whatever. I do not consider that there would be any real detriment to the employer if a stay order was not made and even if I am wrong about whether the appellant has an arguable case, I find some difficulty in finding that the appellant will suffer prejudice. Moreover I note that s. 232 provides that the appeal is by way of rehearing but that fresh evidence may be admitted. That seems to mean that additional evidence may be given to that before the Training Recognition Council at the time the decision was made. There appears to be some factual disputes about some of the happenings and the introduction of the fresh evidence which the Training Recognition Council claims it has may very well mean that an appeal will not be successful, even if there were breaches of natural justice. In all of the circumstances, I refuse the application for a stay.”. -- 1 of 2 -- 13 July, 2001 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 273 By the Commission, [L.S.] E. EWALD, Industrial Registrar. Appearances:– Ms J. Sharp for Australia Meat Holdings Pty Limited. Mr R.G. Rigg for the Training Recognition Council. -- 2 of 2 --