Forest Coach Lines Pty Ltd v Commissioner for Vocational Training

[2019] NSWCATAD 181

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	Forest Coach Lines Pty Ltd v Commissioner for Vocational Training [2019] NSWCATAD 181
Hearing dates:	29 March 2019 and 10 May 2019
Date of orders:	11 September 2019
Decision date:	11 September 2019
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	J McAteer, Senior Member
Decision:	The decision of respondent is affirmed.
Catchwords:	ADMINISTRATIVE LAW – Apprenticeship Traineeship Act – Contract – competing agreements – whether decision to terminate was reasonable – whether Commissioner’s powers allowed determination
Legislation Cited:	Administrative Decisions Review Act 1997 Anti Discrimination Act 1997 Apprenticeship and Trainee Act 2001 Civil and Administrative Tribunal Act 2013 Civil and Administrative Tribunal Rules 2014 Commonwealth of Australia Constitution Act 1901 (Cth) Fair Work Act 2001 (Cth).
Cases Cited:	Zhang v BM Sydney Building Materials Pty Ltd [2016] NSWCA 166
Texts Cited:	Lewison and Hughes, Interpretation of Contracts in Australia (2002 Lawbook Co)
Category:	Principal judgment
Parties:	Forest Coach Lines Pty Limited (Applicant) Commissioner for Vocational Training (First Respondent) Nicholas Macoun (Second Respondent)
Representation:	Counsel: Mr S Sykes (Respondent)   Solicitors: K and L Gates (Applicant) Sparke Helmore Lawyers (First Respondent) Second Respondent (Self-represented)
File Number(s):	2019/00047157

REASONS FOR decision

1. This is an application for administrative review of a decision of the respondent concerning a determination under the Apprenticeship and Traineeship Act 2001. The applicant seeks an order by the Tribunal setting aside the decision of the respondent, and in substitution a new decision waiving the requirement for the trainee (Mr Macoun) to consent prior to any cancellation of his traineeship.

2. Mr Macoun was joined as the second respondent to these proceedings by an order of the Tribunal on 15 February 2019.

Background

3. Mr Macoun commenced a Traineeship with the applicant company (Forest Coach Lines) on 4 June 2018 and, at the same time, Mr Macoun also commenced employment with Forest Coach lines. Mr Macoun was employed as a trainee bus driver and commenced a Traineeship under the Training Contract signed 4 June 2018.

4. On 26 October 2018 the employer (Forest) terminated Mr Macoun’s employment. The basis for this termination arose from what Forest considered to be a combination of deliberate breaches of safety procedures and an instance of inappropriate workplace behaviour by Mr Macoun towards a colleague. These matters concerned not operating the parking brake on a bus, improper use of the seatbelt, and an inappropriate joke / comment that caused distress to the colleague. Reference was also made to an adverse complaint history concerning safety matters reported by passengers, namely closing a door on a passenger and also running a red light. It was unclear at hearing to what extent these matters wee relied upon by Forest in respect of the termination.

5. Following his employment termination Mr Macoun apparently refused to consent to the cancellation of the Traineeship. As a result a complaint was made by Forest to the respondent’s delegate (the Commissioner for Vocational Training). That complaint was made under s 39 (3) of the Apprenticeship and Traineeship Act 2001 (the AT Act). The AT Act relevantly provides at s 22 for the basis of suspension or cancellation of Apprenticeships and Traineeships:

22 Suspension and cancellation of apprenticeships and traineeships

(1) The Commissioner may, on the application of the employer and the apprentice or trainee (or either of them alone) or on the Commissioner’s own initiative, suspend or cancel an apprenticeship or traineeship.

(2) The Commissioner may not suspend or cancel the apprenticeship or traineeship unless the Commissioner is satisfied:

(a) that both the employer and the apprentice or trainee consent to the suspension or cancellation, or

(b) that it is reasonable in the circumstances to do so.

(3) In addition, the Commissioner may not suspend or cancel an apprenticeship or traineeship on the application of the employer or the apprentice or trainee or on the Commissioner’s own initiative unless the Commissioner:

(a) has given notice to the employer and the apprentice or trainee of the Commissioner’s intention to suspend or cancel the apprenticeship or traineeship, and

(b) has given the employer and apprentice or trainee at least 21 days within which to make submissions to the Commissioner with respect to the proposed suspension or cancellation, and

(c) has taken any such submissions into consideration.

(4) The Commissioner must give notice to the employer and apprentice or trainee of a suspension or cancellation under this section specifying:

(a) the grounds for the suspension or cancellation, and

(b) the date from which the suspension or cancellation takes effect, and

(c) in the case of suspension—the period of suspension.

6. Part 4 of the AT Act deals with disputes and disciplinary matters. It was under this provision that Forest complained to the Commissioner because Mr Marcoun had not consented to the cancellation under s 22 (2) (a) and, as a result, Forest sought an order under s 22 (2) (b) of the AT Act claiming that it was reasonable in the circumstances to cancel the traineeship without Mr Macoun’s consent. Part 4 provides the following concerning this process:

Part 4 Proceedings with respect to disputes and disciplinary matters

Division 1 Complaints

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 Service employee.

(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.

40 Conciliation

(1) The Commissioner is to refer a complaint made by a party to an apprenticeship or traineeship to a conciliator in the first instance.

(2) The conciliator must attempt to bring the parties to a settlement acceptable to each of them.

(3) If such a settlement is not achievable, the Commissioner is to deal with the complaint in accordance with this Part.

(4) In this section:

conciliator means a person employed in the Department who is authorised in writing by the Commissioner as a conciliator for the purposes of this section.

41 Suspension of apprenticeships and traineeships pending hearing

(1) If the Commissioner is satisfied that the gravity of a complaint justifies such action, the Commissioner may, without prior notice to the employer and apprentice or trainee, suspend the relevant apprenticeship or traineeship pending the hearing of the complaint.

(2) The suspension of an apprenticeship or traineeship under this section has effect until the complaint is withdrawn or determined.

What the respondent decided

7. The respondent’s determination was initially made on 11 January 2019. In the determination the respondent adjourned the matter until 11 February 2019 as they required clarification as to whether there were any medical considerations impacting on the trainee (Mr Macoun) ability to discharge his obligations under the traineeship. The determination was revised on 18 February 2019.

8. Subject to that information the Commissioner dismissed Forest’s complaint because:

• He was not satisfied that the Forest complied with the relevant probationary period,

• He was not satisfied that Forest complied with requirements of the AT Act that they notify the Commissioner of any matters concerning the employee’s performance or the employer’s intention to terminate the trainee’s employment,

• He was not satisfied that Forest took reasonable steps to address undesirable behaviours in the trainee through appropriate trainee supervisory / management strategies,

• He was satisfied that the trainee was capable of discharging their obligations with appropriate workplace supervision.

9. There were some other matters relating to the trainee’s return to the workplace set out in the determination. The applicant (Forest) submitted that these were beyond the power of the Commissioner.

Jurisdiction

10. The Tribunal’s has jurisdiction to review an agency’s decision under s 54 of the AT Act.

54 Administrative review of decisions by Civil and Administrative Tribunal

A person aggrieved by any of the following decisions of the Commissioner may apply to the Civil and Administrative Tribunal for an administrative review under the Administrative Decisions Review Act 1997 of the decision:

(a) a decision to dismiss an application for establishment of an apprenticeship or traineeship,

(b) a decision to issue a vocational training direction,

(c) a decision to dismiss an application for approval to the transfer of an apprenticeship or traineeship,

(d) a decision to approve or dismiss an application for the variation of a training contract or training plan,

(e) a decision to suspend or cancel an apprenticeship or traineeship,

(f) a decision to refuse to register a person as an existing worker trainee,

(g) a decision to refuse to register a person or body as a group training organisation or to suspend or cancel the registration of a person or body as a group training organisation,

(h) a decision to refuse to issue a certificate of proficiency under Part 2 or 3,

(i) a decision determining a complaint under Part 4,

(j) a decision to give a direction under section 52,

(k) a decision to make an order declaring an employer to be a prohibited employer or authorising the transfer to other employers of an apprenticeship or traineeship.

11. That section provides that a person who is aggrieved by a decision of the Commissioner as set out in s 54 (a) – (k) inclusive, may apply to the Tribunal for administrative review under the Administrative Decisions Review Act 1997 (ADR Act). In these proceedings, s 54 (i) applies in that Forest seeks administrative review of the Commissioner’s decision in determining the complaint under Part 4.

12. The task of the Tribunal is to determine what is the correct and preferable decision having regard to the material before it including any relevant factual material and any applicable written or unwritten law (s 63(1) ADR Act). The Tribunal makes its own decision in place of the respondent.

Proceedings before the Tribunal.

13. The applicant lodged its application for administrative review on 22 February 2019 within the time provided by s 55(2) ADR Act and cl 24 (4) Civil and Administrative Tribunal Rules 2014.

14. The applicant submitted the following matters as grounds in support of their review:

• Mr Macoun’s misconduct in wilfully and deliberately not complying with his safety obligations,

• Mr Macoun’s misconduct in engaging in inappropriate workplace behaviour constituting unlawful sexual harassment,

• Mr Macoun’s misconduct amounting to a fundamental breach of his obligations under both the Employment and Traineeship, serious enough to warrant termination,

• The high likelihood of Mr Macoun engaging in similar misconduct again should his employment and traineeship not be terminated, particularly as the misconduct occurred within 4 mounts of receiving training about such matters, and having received warnings,

• Forest’s obligations as an employer to ensure the workplace is free from inappropriate and unsafe conduct, is jeopardised by allowing Mr Macoun to remain.

The hearing

15. The matter was heard on 29 March 2019 and 10 May 2019. Legal practitioners for both the applicant and first respondent provided written and oral submissions at the hearing. The second respondent and witnesses for the applicant gave evidence in the hearing.

16. The hearing covered the evidence about Mr Macoun’s conduct and the statutory provisions relied upon by both Forest and the Commissioner. Of the allegations concerning Mr Macoun’s behaviour, a number of matters were in contest. The conduct is particularised by Forest as follows:

1. Breaches of safety procedures:

• Suspected failure to wear seatbelt on 12 October 2018 and confirmed failure on 25 October 2018.

• Drove a bus through a red light on 10 August 2018 – received verbal warning 27 August 2018.

• Closing bus door on passenger on 24 August 2018 – received formal written warning 28 August 2018.

17. These matters concern unsafe workplace conduct. The driver in not wearing his seatbelt, (but allegedly buckling it closed and sitting on it on the seat) bypassed a safety alarm which reminds the driver to activate the parking brake as soon as they unbuckle their seatbelt. The other matters had the potential to put the public and passengers at risk. Collectively Forest submitted that they amounted to a serious breach of his safety obligations which applied to him during his employment and traineeship.

1. (b) Harrassment

• On 25 October 2018 Ms H was driving Mr Macoun to a medical appointment following a complaint of a workplace injury.

• It is alleged that whilst alone with Ms H, Mr Macoun (in referring to his back injury) said ‘some of the other drivers call it the contraceptive illness. Even if your partner was Elle MacPherson, you couldn’t have sex because it would be too painful’.

• The comment caused Ms H distress and she made a formal complaint.

18. The import of this ‘harassment matter’ from Forest’s perspective in an employment setting is that it was a breach of his obligation under s- 22B (2) of the Anti Discrimination Act 1997, his employment contract and associated Enterprise Agreement.

19. The Tribunal heard from the witnesses about the conduct at the centre of the allegations and matters relating to the employers management / warnings etc. given in respect of that conduct.

Evidence of J. Zimjewski

20. Mr Zimjewski’s evidence was that he had worked in the oversight/compliance role from July 2015 to January 2019 prior to taking on regional duties and had almost 20 years experience in passenger transport.

21. The witness was contacted by a colleague (Mr Bicakcian) about the back complaint by Mr Macoun. The witness inspected the bus that Mr Macoun had been driving and noted that the seatbelt was buckled up (indicating that the driver may have driven the bus whilst siting on top of the clasped seat belt).

22. The witness understood that Mr Macoun had said that he was not wearing the seatbelt as the bus was only being moved in the car park which is private property.

23. The witness gave an opinion that the seatbelt and harassment incidents of 25 October 2018 (to the extent they were conceded) were, in his view, sufficient to warrant the termination of Mr Macoun’s employment.

24. In cross examination on day two of the hearing the witness was taken to an annexure to his affidavit, being the ‘warning letter’ concerning shutting the door on a passenger. (The Tribunal observes that the letter dated 28 August 2018 appears to contain a typographical error concerning the date of incident). The letter was marked in the material ‘JZ-13’ being annexed to the witness statement. When asked if he was confident that Mr Macoun was given this letter the witness answered ‘no’. This answer was in contrast to Mr Zimjewski’s evidence in his affidavit at paragraph 48 (c ) which he adopted in evidence in chief.

Evidence of Mr Macoun

25. Mr Macoun told the Tribunal that he had never discussed the sexual harassment allegation with Forest prior to receiving it as a basis for his termination. It was only discussed during the Commissioner hearing. He denied having discussions with anyone about the harassment matter prior to 26 October 2018 (the date of termination).

26. Mr Macoun also denied being given any formal warning about the door closing incident/allegation.

27. In cross examination Mr Macoun was taken to some of the annexures to Mr Zimjewski’s affidavit in the nature of employment policies and training documents. He was asked about the words said to the female colleague. When asked if he recalled saying the actual words he said that he did. However he also provided the context and said that it started with a conversation that the female colleague initiated about his medical issue, and wanting to know what was wrong with his back. Mr Macoun said that he sought conformation from her about whether she wished to hear about the ‘depot version’ – being their joke about his back problem.

28. Mr Macoun told the Tribunal that he had some previous contact with the officer and had spoken to her twice before in addition to speaking to her at a workplace farewell. He conceded that it was not a close relationship. When asked about the actual words of the contentious remark Mr Macoun said that he wasn’t absolutely sure that it contained sexual content but on reflection conceded that he supposed it did. When asked whether it his view it constituted sexual harassment, his answers (directed at the policies and the terms of the legal and policy materials) was somewhat begrudgingly, that it did.

29. Mr Macoun denied what was deposed at [54] of the signed statement of Mr Bicakcian, where it was deposed that a conversation took place in the workplace about the harassment matter. Mr Macoun said that he did have a conversation with management where he was not offered any support person. He was told that he was unlikely to fulfil his probation. When asked if he was told anything else Mr Macoun said that he was told about Ms H’s complaint and a separate harassment matter that apparently they were not going to take further. When all of these matters were put to him the following day (after the last incident) when he was terminated, he just stayed mute. Mr Macoun maintained that he was only then advised that some of these matters (harassment) were now being treated as formal complaints.

Evidence of R. Bicakcian

30. The witness adopted his signed statement of 20 March 2019. The witness said that the conversation concerning Mr Macoun referred to at [54] of his statement, took place in his office.

31. The witness was asked whether there was a request for a support officer for the meeting. The witness said that there was no request but could not recall whether Mr Macoun asked for a support officer.

32. The witness was asked why he raised the issue of the sexual harassment matter again after allegedly raising it the day prior. The witness was ‘pretty sure’ that then initial conversation occurred on 25 October 2018 (the day before termination), but not totally sure. There was no other explanation on this point.

Submissions at hearing

33. Forest submitted that the Tribunal should apply s 63(3)(c) of the ADR Act to set aside the Commissioner’s decision and make a fresh decision dispensing with the need for Mr Macoun’s consent to cancel the traineeship.

34. Forest submitted that, consistent with s 22(2) of the AT Act (set out at [5] above), the Tribunal could find on the available evidence that it is reasonable in the circumstances to cancel the traineeship in the absence of all parties consent. Whilst the Commissioner says that the seatbelt and sexual harassment incidents did not warrant dismissal, Forest submits otherwise. Forest disagrees with the Commissioner’s submission that the seatbelt matter whilst serious, was not serious enough.

35. Forest submitted that the Commissioner is grappling with the cancellation of the Traineeship, however they noted that in the original determination the employment relationship was severed.

36. Whilst Mr Macoun had submitted that he had been denied procedural fairness, in that the sexual harassment matter was not raised with him (as a matter leading to possible termination) prior to his actual dismissal on 26 October 2018, Forest submitted that proper process was followed. The trainee (Mr Macoun) had in Forest’s view repudiated the contract and the contract for employment contained express provisions which were not followed by him. Forest submitted that the employment ceased on 26 October 2018 when Mr Macoun was terminated. In respect of the Traineeship Forest advised the Registered Training Organisation (RTO) and they advised the Department.

33. The Department submitted that the employment contract is a commercial contract which works together with the Traineeship contract. In this regard reference was made to the case of Zhang v BM Sydney Building Materials Pty Ltd [2016] NSWCA 166 at [43] to [45] where McColl JA observed the relationship between several contracts to give effect to one commercial transaction. At [43] – [45] the Court observed:

43. In determining the meaning of the terms of a commercial contract, it is necessary to ask what a reasonable business person would have understood its terms to mean. That enquiry will require consideration of the language used by the parties in the contract, the circumstances addressed by the contract and the commercial purpose or objects to be secured by the contract.[26] Unless a contrary intention is indicated, a commercial contract is to be construed to avoid “making commercial nonsense or working commercial inconvenience”.[27]

44. In Hillas v Arcos,[28] Lord Wright observed that “[b]usiness men often record the most important agreements in crude and summary fashion: modes of expression sufficient and clear to them in the course of their business may appear to those unfamiliar with the business far from complete or precise.” In that context, his Lordship continued (footnote added):

“It is accordingly the duty of the Court to construe such documents fairly and broadly, without being too astute or subtle in finding defects, but, on the contrary, the Court should seek to apply the old maxim of English law, ‘verba ita sunt intelligenda ut res magis valeat quam pereat.’*[29] That maxim, however, does not mean that the Court is to make a contract for the parties, or to go outside the words they have used, except in so far as there are appropriate implications of law, as, for instance, the implication of what is just and reasonable to be ascertained by the Court as matter of machinery where the contractual intention is clear but the contract is silent on some detail.”

45. Where a commercial transaction is implemented by several contracts or documents, all of the contracts or documents may be read together for the purpose of ascertaining their proper construction and legal effect, at least where the contracts or documents are executed contemporaneously or within a short period.[30] As Lewison and Hughes observe,[31] the rationale for this proposition as explained in Manks v Whiteley is that “[e]ach [deed] is executed on the faith of all the others being executed also and is intended to speak only as part of the one transaction, and if one is seeking to make equities apply to the parties they must be equities arising out of the transaction as a whole.”[32]

38. The Department submitted that s 15 of the AT Act refers to a failure to make progress as a basis for notifying the Commissioner.

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:

(a) any injury to the apprentice or trainee that adversely affects the apprentice’s or trainee’s ability to continue or complete the apprenticeship or traineeship,

(b) any failure by the apprentice or trainee to make satisfactory progress in learning the competencies of the relevant vocation,

(c) any change in the relevant registered training organisation attended by the apprentice or trainee,

(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,

(f) any notice given to the apprentice or trainee of the employer’s intention to terminate the employment of the apprentice or trainee.

(2) An employer must also notify the Commissioner of the following matters within 14 days after the matter arises:

(a) any change in the name under which the employer carries on business or in the address from which the employer carries on business,

(b) any change in the nature of the employer’s business that adversely affects the employer’s ability to comply with his or her obligations under this Act.

39. Specifically, matters under s 15 (1) (b) and (d) would appear to have been relevant provisions which the Commissioner would have had the opportunity to review prior to the complaint being made.

40. The main thrust of the Commissioner’s submissions at the hearing were that the Tribunal needed to consider whether the actions of the employer Forest were reasonable, the actions being the decision to terminate the employment on 26 October 2018. In making this submission the Commissioner submitted that only the seat belt and sexual harassment matter should be considered. The minor matters should not form part of the consideration. In addition on the seat belt issue, the Commissioner said that the fact that the actions took place in the depot rather than on a public road should be taken into consideration in assessing whether the decision (to terminate) was reasonable.

41. In reply there was discussion about the relationship between Commonwealth and State statutes and what approach (bearing in mind s-109 of the Commonwealth Constitution 1901 Cth) the Tribunal should take. This submission advanced by Forest was concerned with the review raising the relevant binding provisions of the Fair Work Act 2001 (Cth).

Consideration

42. Mr Macoun’s period with Forest was clearly not incident free. A number of issues have been raised and to the extent that some of them may have been relied upon in the decision to terminate his employment, there is dispute.

43. The applicant filed a dossier of material concerning his dealings with his employer or matters relating to his employment during the relevant period. It was received without objection and marked as exhibit ‘R2 -1’.

44. In addition to the more serious matters referred to by the employer there is another harassment incident (one where the employer decided not to take any action), and also an incident where Mr Macoun raised an issue about a particular route taking longer than the allocated time to complete. There was also an issue about his response to a late start of a route (excessive time for bus to build up air pressure), a matter where Mr Macoun was raising workplace concerns about exposed asbestos in a depot building following a bus damaging the building, as well as other minor matters. The applicant believes that all of these matters have been used against him in some way to build on the basis to terminate his employment.

45. I observe that ‘R2-1’ contains a significant amount of detailed communications about sometimes minor communication and compliance issues with management and Mr Macoun. Of some significance is the unchallenged evidence of Certificates of Appreciation issued by Forest on 23 August 2018 and 15 October 2018, the later being only two weeks prior to the decision to terminate his employment. The Commissioner also noted the incongruity with Forest on the one hand having concerns about Mr Macoun’s performance, and at the same time giving him formal commendations.

46. The AT Act places a series of sometimes separate but always complimentary obligations on both Trainees and Employers. These are set out at sections 13, 15 and 16 of the AT Act and provide 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.

S-15 (see [38] above)

16 Duties of apprentices and trainees under apprenticeships and traineeships

(1) An apprentice or trainee must, in accordance with the relevant training plan, make all reasonable efforts:

(a) to acquire the competencies of the vocation concerned, and

(b) to obtain an appropriate qualification or qualifications for that vocation.

(2) An apprentice or trainee must discharge his or her obligations under the apprenticeship or traineeship as an employee of the employer.

47. The statute uses the tem reasonable to characterise the extent of the obligation and efforts of the parties. In my view the relevant legislation applicable to these arrangements between the employer and the Trainee must be the AT Act, and the contracts for employment and traineeship. There can be no other basis for binding an individual who is tasked with making all reasonable efforts because this is set out in s 16 (1) of the AT Act. This is the primary obligation on the employee who is under a traineeship. Consistent with this is clearly the obligation to do all things that the employer reasonably requires as part of the conditions of employment and where there are failings in that regard, due process and procedural fairness is to be observed to the individual.

48. To submit that other statutes apply and import further obligations on the parties is to my view (having regard to the fact that this matter concerns a traineeship) somewhat conflating the issue. Clearly those instruments have some role but they could not be the determinative instrument either by themselves or overriding the central applicable provisions which govern the traineeship.

49. A review of a decision under the AT Act arises from a power conferred by that Act. (s- 54). There are no objects of the AT Act but the long title conveys that it is to provide for the regulation of apprenticeships and traineeships. Logically the decision must be made in accordance with the functions and provisions of the AT Act (in order for the decision to be valid), and as a result both the decision and the basis for any review are clearly and substantially tied to that Act.

50. I note that the Commissioner indicated that the AT Act should be read as predominantly beneficial to the employee or trainee. I infer this from the following submission made by the Commissioner:

38. The DOI submits that public policy demands that employers be held to a high standard with respect to traineeships. The AT Act provides a statutory regime by which employers are entitled to employ trainees. Employers derive financial and other benefits from it. The DOI submits that the discretion to cancel a traineeship on reasonableness grounds ought to be exercised in rare circumstances.

Further consideration

51. One of the matters at issue in the hearing was whether Forest was required to act in accordance with the Traineeship agreement, or the Employment contract. This has been examined by way of the general arguments for and against earlier in these reasons. The import of this goes not only to the reasonableness of the conduct triggering a remedy (termination) for the employer under the employment contract, but also as to whether the employee (Mr Macoun) was still within the applicable probationary period as at 26 October 2018 when the decision to terminate was carried out.

52. The term ‘probationary period’ is defined in the dictionary to the AT Act.

probationary period, in relation to a person who is employed in a recognised trade vocation or recognised traineeship vocation, means:

(a) the period specified in the vocational training order for that vocation or, if that period is extended under section 18, that period as so extended, or

(b) if an application for the establishment of an apprenticeship or traineeship in that vocation:

(i) is made before the end of that period, or that period as so extended, and

(ii) the Commissioner’s determination of the application is not made until after the end of that period, or that period as so extended,

the period ending on the date on which the person’s employer is notified of the Commissioner’s determination of the application,

being in either case the period beginning on the date on which the person begins working for the employer as an apprentice or trainee in that vocation.

53. In the traineeship applying to Mr Macoun, the probationary period (relevant to item ‘a’ of the definition) was 2 months. Under the employment contract the probationary period was 4 months. Mr Macoun was over four and a half months into his employment / traineeship when Forest decided to terminate his employment. He was therefore beyond the probationary period for the traineeship but still had some five weeks to run in respect of the employment contract.

54. On my assessment the answer to this issue arises on similar grounds to the operation between the two competing contracts / agreements (traineeship and employment). Applying the decision in Zhang both contracts may be read together for the purposes of ascertaining their proper construction and legal effect, at least when the contracts or documents are executed contemporaneously or within a short period. As the Court of Appeal noted in Zhang referencing Lewison and Hughes from the Interpretation of Contracts in Australia (2002 Lawbook Co) at [3.033]:

Each deed is executed on the faith of all others being executed also and is intended to speak only as part of the one transaction, and if one is seeking to make equities apply to the parties they must be equities arising out of the transaction as a whole.

55. As the Court of Appeal went on to observe in Zhang at [46], whilst contractual construction ordinarily arises from the words and meaning of terms within the contract, that is not always the case.

46. The process of contractual construction ordinarily proceeds by reference to the contract alone. However recourse to events, circumstances and things external to the contract may be necessary in identifying the commercial purpose or objects of the contract where that task is facilitated by an understanding of the genesis of the transaction, the background, the context and the market in which the parties are operating, or in determining the proper construction where there is a constructional choice. Where such materials may be considered, the court may have regard to events, circumstances and things external to the contract which are known to the parties or which assist in identifying the purpose or object of the transaction, which may include its history, background and context and the market in which the parties were operating, but not to evidence of the parties’ statements and actions reflecting their actual intentions and expectations.[33]

56. In this regard it appears that a traineeship contract tied to an employment contract, should in its interpretation and operation have regard to the wider picture looking at the purpose or objects of the contractual arrangements. In my view this should fall on the side of the vocational traineeship rather than any standard employer / employee contractual agreement for the provision of services consistent with a statement of duties, performance appraisals and adherence to conditions of employment including compliance with law and policy.

57. Whilst such matters are essential in any employer / employee situation, industrial law provides for the proviso of permanency once serving a satisfactory probation period, and legal remedies should the process miscarry due to allegations of lack of fairness, failure of an employer to perform a duty, or similar well understood notions. In the current matter the purpose of the employment contract was to create an employer / employee legal arrangement to compliment the traineeship agreement. The progression through the traineeship was a mutual benefit for both Mr Macoun and Forest. It was this progression which was the thing that the parties were seeking to achieve, the import of the words: which may include its history, background and context and the market where the parties were operating,.. as referenced in Zhang.

58. For these reasons I find that the probation period was concluded by the time of the decision to terminate Mr Macoun’s employment on 25 October 2018 and carried out on 26 October 2016.

59. Turning to the issue of whether the decision to terminate was reasonable, the Commissioner’s position was that it was not. The Commissioner found that Forest failed to take reasonable steps to address particular undesirable behaviours through appropriate supervisory and management strategies. The evidence at hearing did not satisfy the Tribunal that the steps taken were reasonable. On some of the lesser (but still maintained as serious) instances, there was a lack of positive evidence that Mr Macoun received any formal warning letter in writing (dated 28 August 2018) concerning a relevant incident, as referred to at [24] above).

60. In addition, the evidence adduced at hearing was unclear in respect of what words, if any, transpired between Forest and Mr Macoun concerning the adverse impact and seriousness of both the harassment matter and to some extent the seatbelt issue on 25 August 2019. It was clear from the evidence of Mr Macoun at hearing that he had no real chance to respond to these matters, and no notice that they could lead to a decision to terminate his services the following day without any further input from him. Forest’s witness Mr Bicakcian was not certain that he had actually raised these matters (in this context) with Mr Macoun as outlined at [32] above.

61. In this context it is difficult to se how Forest’s actions were reasonable in the circumstances, especially having regard to the apparent lack of fairness in the process. I have already observed that these events should be considered in the context of a traineeship whereby greater duties apply to the employer that those in an ordinary employer / employee relationship. In addition I have found above that the relevant calculation of the probation period, had by this time expired and as such a better documented process should have occurred, notwithstanding the seriousness of the breaches for which Forest based its decision on.

Was the decision of the Respondent the correct and preferable decision?

62. In the absence of Mr Macoun consenting, Forest’s complaint under s 39(3) of the AT Act was determined by the Commissioner. The Commissioner determined the complaint by dismissing it. On the four grounds set out in the determination (at [11] above), I am satisfied that the determination was within the Commissioner’s powers under the Act and open to the Commissioner to make having regard to the available evidence and submissions of the parties.

63. Forest seeks an order that the Commissioner’s determination was made without authority in that the Commissioner exceeded their powers or functions under the AT Act.

64. When looking at the revised determination it is clear that the result of the determination is the dismissal of Forest’s complaint. The initial determination included some requirements for the provision of further and better particulars by the parties to the contracts, suspension of the relevant trainee training contract , and a requirement of the local industry training officer to meet with Mr Macoun.

62. Whether these are functions of the Commissioner specified in the AT Act or other instruments is unclear. What is clear however is that these ‘directions’ or requirements were made in connection with progressing the traineeship in the absence of upholding the complaint. The Tribunal was not taken by the parties to any matters pointing to the authorities given to the Commissioner other than a reference to s 57 of the AT Act.

57 Functions of Commissioner

The Commissioner has such functions as are conferred or imposed on the Commissioner by or under this or any other Act.

66. Forest submitted that that as the Commissioner does not have these powers, then for that reason the determination was made without authority and for that reason the Tribunal could not affirm the decision of the Commissioner. As stated, this issue was not addressed in any detail but the Tribunal is well aware of the requirement for the functions and powers of statutory officers to be seated in some legislative or similar authority (such as the common law powers in some criminal context of search entry and arrest).

67. In my view the Commissioner did not strictly have the power given by the AT Act to make requirements compelling the parties once the determination was made, however they would have the authority to ask these matters of participants in the traineeship scheme. Determinations of matters lodged under s 30 (1) and (2) do enliven additional powers of the Commissioner but this matter was lodged under s 39 (3) of the AT Act.

68. However I do not agree with the import of Forest’s submission on this point for the following reason.

69. The revised Determination on my reading makes the following adjudicative finding:

That the Commissioner dismisses the employer’s complaint concerning the trainee, Nicholas Macoun (TCD 3299015\1) refusing to consent to the cancellation of the traineeship.

70. In my view this is the determination of the complaint. The other matters form parts of the reasons and other than the suspension of the traineeship contract (set out at Item 4 in the determination), those other matters would appear to arise under s- 22 of the AT Act.

22 Suspension and cancellation of apprenticeships and traineeships

(1) The Commissioner may, on the application of the employer and the apprentice or trainee (or either of them alone) or on the Commissioner’s own initiative, suspend or cancel an apprenticeship or traineeship.

(2) The Commissioner may not suspend or cancel the apprenticeship or traineeship unless the Commissioner is satisfied:

(a) that both the employer and the apprentice or trainee consent to the suspension or cancellation, or

(b) that it is reasonable in the circumstances to do so.

(3) In addition, the Commissioner may not suspend or cancel an apprenticeship or traineeship on the application of the employer or the apprentice or trainee or on the Commissioner’s own initiative unless the Commissioner:

(a) has given notice to the employer and the apprentice or trainee of the Commissioner’s intention to suspend or cancel the apprenticeship or traineeship, and

(b) has given the employer and apprentice or trainee at least 21 days within which to make submissions to the Commissioner with respect to the proposed suspension or cancellation, and

(c) has taken any such submissions into consideration.

(4) The Commissioner must give notice to the employer and apprentice or trainee of a suspension or cancellation under this section specifying:

(a) the grounds for the suspension or cancellation, and

(b) the date from which the suspension or cancellation takes effect, and

(c) in the case of suspension—the period of suspension.

71. The other matters (items 1, 2 and 5, from the determination) do not appear to coercively require anyone to do any thing, but rather appear to be general requirements or requests in order to make the traineeship function effectively with a view to recommencing activity post determination.

72. On the basis that I find that the determination is what is set out at [69] (above), I do not propose to vary the decision under review.

Conclusion

73. For the above reasons, I believe that the correct and preferable decision is to affirm the decision of the respondent.

Orders

1. The decision of respondent is affirmed.

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I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.

Registrar

Decision last updated: 11 September 2019