Banditt v Training Recognition Council [2001] QIRC 4 (2001) 166 QGIG 72

72 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 25 January, 2001 QUEENSLAND INDUSTRIAL RELATIONS COMMISSION Training and Employment Act 2000 – s. 230 – appeal to industrial commission against council Christine Violet Banditt AND Training Recognition Council (No. AT3 of 2000) VICE PRESIDENT LINNANE 10 January 2001 Appeal from decision of Training Recognition Council– appeal dismissed DECISION This is an appeal by Christine Violet Banditt (Appellant) pursuant to s. 230 of the Training and Employment Act 2000 (Act) against a decision of the Training Recognition Council (Council) to cancel the registration of her Training Contract (contract) with Mater Misericordiae Public Hospital (Hospital). The cancellation of the contract was done pursuant to s. 66(1) of the Act. Section 66(1) provides as follows:– “The council may, by fair procedures prescribed under a regulation, cancel the registration of a training contract if the council reasonably believes – (a) the contract was registered in error or because of a materially false or misleading representation or declaration; or (b) a party to the contract has been convicted of an offence against this Act; or (c) there has been a change in the circumstances of the employer or the apprentice or trainee that make it unlikely that the contract will be completed.”. Essentially the Council contends that s. 66 (1)(a) of the Act is the basis for its cancellation of the Appellant’s contract. The Appellant has been employed by the Hospital since 21 August, 1995 in the capacity of an enrolled nurse. The Appellant has to date successfully completed five out of the nine modules that the contract required her to undertake. She was scheduled to complete the course in November, 2000 although she did apply for an extension of time to complete the traineeship in correspondence dated 5 July, 2000 and 12 November, 2000. The Appellant asserts that the course has been of great value to her in the performance of the clerical and administrative functions required of an enrolled nurse employed in the theatre of the Hospital. A brief summary of the chronology of events in relation to the Appellant’s application for a traineeship and the eventual cancellation of that traineeship is as follows:– • sometime in 1998 a representative of the Australian Centre for Work Education (ACWE) approached the Appellant to undertake the Certificate IV in Business Administration course. At the time ACWE was a registered training organisation under the now repealed Vocational Education Training and Employment Act 1991 and held a user choice contract with the Department of Employment, Training and Industrial Relations (DETIR) to deliver off-the-job training for traineeships. The Appellant states that she informed ACWE that she was an enrolled nurse; • a Training Agreement was duly completed with the Appellant and Helen Homan of ACWE signing it on 31 August, 1998 and the Hospital signing it on 30 October, 1998. According to that document the Appellant’s occupation is said to be “Cert IV Business Administration” and she was due to commence the traineeship on 20 November, 1998; • on or about 19 March, 1999 Nadine Oosen, a Training Consultant with DETIR spoke with the Appellant. It was the evidence of Ms Oosen that the Appellant informed her that she was a trained nurse who was currently working as an administrative assistant in the Hospital’s Theatre Section and that she performed the tasks of ordering, stock control, typing and filing. Ms Oosen further states that the Appellant informed her at this time that as she had changed jobs she required training in the area of administrative assistant work. Ms Oosen’s evidence is corroborated by a computer record of her conversation with the Appellant on 19 March, 1999. That record was logged at 14.23 on that date; • in correspondence dated 23 March, 1999 DETIR advised the Appellant that her Training Agreement with the Hospital in the “occupation of Office Administration” had now been registered with them. That correspondence notified her of the registered number of her agreement and the commencement date of 20 November, 1998. The correspondence also refers to a “Training Plan that you have agreed to with your employer”. It also states that the Appellant’s “employer is responsible for assessing competence in each skill which will be noted in the training record book”. I was not provided with any training record book and the Hospital did not indicate that it had assessed the Appellant’s competence in any way during the course of her traineeship; • the Appellant commenced her traineeship on 11 May, 1999; • sometime in 2000 the user choice contract with ACWE was cancelled by DETIR; • DETIR officers then had to make alternative arrangements for the Appellant to receive her off-the-job training. In so doing officers of DETIR forwarded correspondence to the Hospital and had follow up telephone conversations with a person in the Human Resources area of the Hospital. The DETIR officer was informed that the Appellant was employed as an enrolled nurse. This resulted in an investigation of the Appellant’s application for a traineeship; • on 12 September, 2000 Paula Kooyman and Andrew Peters, both Training Consultants with DETIR, visited both the Appellant and Helen Bowes of the Hospital. They were advised that the Appellant was employed on a full-time basis as an enrolled nurse and that any administrative duties undertaken by the Appellant were undertaken as part of her nursing duties. Ms Kooyman and Mr Peters were further advised that the administrative duties occupied the Appellant for some sixty to eighty percent of her time as an enrolled nurse. Both DETIR officers were also informed that the Appellant undertook all of the off-the-job training in her own time and was not paid for any such time; • in correspondence dated 13 September, 2000 both the Appellant and the Hospital were requested to show cause why the registration of the Agreement should not be repealed; • both the Appellant and the Hospital responded to the show cause in letters dated 22 September, 2000; • in correspondence dated 15 November, 2000 the Appellant was notified by DETIR that a decision had been made to cancel her Training Contract effective 20 November, 2000; -- 1 of 2 -- 25 January, 2001 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 73 • the Appellant lodged an appeal against that decision on 4 December, 2000. Section 8 of the Act defines “traineeship” as “employment based training declared by the council to be a traineeship”. In my view, none of the Appellant’s training was “employment based”. In the Explanatory Notes to the contract signed by the Appellant the following statement is made:– “A Training Agreement is a legally binding agreement that allows an employer and an apprentice/trainee to undertake an apprenticeship or traineeship. The agreement also requires an employer to assess his or her ability to train an apprentice/trainee.”. The clear indication is that the employer will be required to train and assess the trainee. At no time did the Hospital train or assess the Appellant. Further, the notes to clause 2.5 of the contract indicate that in answering the question posed in clause 2.5 the “trainee’s occupation” is to be inserted. The original answer to clause 2.5 on the Appellant’s contract is “Health Professional”. This has been struck out and the words “Cert IV Business Admin” inserted. The Appellant did not recall making the amendment and does not believe that it is in her handwriting. The amendment appears to be initialled with the letters “CB” on the right hand margin. The amendment was made prior to the contract being lodged with DETIR. In any event the Appellant’s occupation was never “Cert IV Business Admin”. Her occupation was always that of an enrolled nurse. The contract also states that the employer must “ensure the apprentice/trainee receives appropriate training in a supportive work environment, provide appropriate facilities to train the apprentice/trainee . . . pay the apprentice/trainee wages and all other legal entitlements”. At no time did the Hospital provide any training for the Appellant and did not pay the Appellant as a trainee. At all times the Hospital paid the Appellant as an enrolled nurse. I have formed the view that there has probably been no intentional wrongdoing by either the Appellant or the Hospital in this case. It seems that the representative of ACWE may have misrepresented the true position to both the Appellant and the Hospital. The Hospital originally did not believe that the Appellant was entitled to apply for a traineeship given that she was then employed as an enrolled nurse. It appears that Ms Helen Homan from ACWE convinced the Hospital that the Appellant was entitled to apply for a traineeship. Section 392 of the Industrial Relations Act 1999 provides that time “spent by a trainee undertaking supervised training is taken to be – (a) time worked for the employer; and (b) ordinary working hours when calculating the . . . trainee’s wages and employment conditions”. The term “supervised training” is defined in s. 392(4) to mean “training up to the maximum period required, under the Training and Employment Act 2000, to be delivered by a supervising registered training organisation during the apprenticeship or traineeship”. Given the evidence, I have formed the view that the Hospital did not consider itself liable to pay wages to the Appellant for the time she spent on weekends receiving her “supervised training” at ACWE. At no time has the Hospital paid wages to the Appellant for the time she spent on “supervised training”. In this matter no issue has been taken with the procedures undertaken by the Training Recognition Council in cancelling the registration of the Appellant’s training contract. I accept the evidence of Ms Oosen that, on or about 19 March, 1999 she understood the Appellant to have represented to her that she was working as an “admin assistant to the Theatre Section”. Such a representation, where the Appellant was employed as an enrolled nurse performing various administrative tasks as part of the functions of an enrolled nurse is, in my view, a “materially false or misleading representation or declaration”. If in fact Ms Oosen misunderstood what the Appellant told her on 19 March, 1999 then it is clear that the training contract was registered in error. Either scenario entitles the Training Recognition Council to cancel the Appellant’s Training Contract. During the course of the hearing I was informed that the Appellant is entitled to complete the course that she has undertaken but it would be at her own expense. I dismiss the appeal. Order Accordingly. D.M. LINNANE, Vice President. Released: 12 January 2001 Appearances:– Ms C. Banditt, with her Ms M. Robinson of the Mater Hospital. Mr S. McCormack of the Department of Employment, Training and Industrial Relations, with him Ms P. Kooyman. -- 2 of 2 --