APPEAL AGAINST THE DECISION TO TERMINATE TRAINING CONTRACT WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION CITATION : 2016 WAIRC 00765 CORAM :Commissioner T Emmanuel HEARD : Wednesday, 10 August 2016 WRITTEN SUBMISSIONS : WEDNESday, 24 AUGUST 2016; THURSDAY 8 September 2016 DELIVERED : thursday, 22 September 2016 FILE NO. : APA 3 OF 2016 BETWEEN : Jarrod Belford Appellant AND Department of Training and Workforce Development Respondent Catchwords : Industrial Law (WA) - Vocational education and training - Appeal against decision to cancel training contract - Appellant has entered into a new training contract - Whether it is in the public interest to hear and determine the appeal Legislation : Vocational Education and Training Act 1996 (WA) s 60G(2) Industrial Relations Act 1979 (WA) s 23A, s 26(1), s 27(1)(a) Fair Work Act 2009 (Cth) Result : Appeal to be listed for hearing Representation: Appellant : Mr D Vilensky (of counsel) Respondent : Mr A Mason (of counsel) Cases referred to in reasons: The Australian Rail, Tram and Bus Industry Union of Employees, West Australian Branch v Public Transport Authority of Western Australia [2014] WAIRC 00451; (2014) 94 WAIG 787 Barton v Alf Barbagallo and the Trustee for Barbagallo Investments Trust [2005] WAIRC 02845; (2005) 85 WAIG 3788 Bull v Mobilecom Pty Ltd (2000) 80 WAIG 385 Queensland Electricity Commission; Ex parte Electrical Trades Union of Australia [1987] HCA 27; (1987) 72 ALR 1; (1987) 21 IR 151 Robe River Iron Associates v Amalgamated Metal Workers and Shipwrights Union of Western Australia and Others (1987) 68 WAIG 4 === REASONS FOR DECISION === Background ¶1 On 22 February 2016, the Department of Training and Workforce Development (Department) terminated Mr Jarrod Belford’s training contract with Swan Transit Services Pty Ltd (Swan Transit Services). On 4 March 2016, Mr Belford lodged an appeal to the Commission against that decision. He asks that the Commission set aside the decision and reinstate his training contract. ¶2 At the start of the hearing on 10 August 2016, counsel for Mr Belford informed the Commission and the Department that Mr Belford recently entered into a new training contract with another employer. His new employer is Minprovise Pty Ltd (Minprovise). ¶3 The Department objects to the Commission further hearing the matter, saying that it is not in the public interest for the Commission to hear and determine Mr Belford’s appeal. ¶4 The hearing was adjourned with the parties agreeing that I should make a decision about this issue on the papers once they had filed written submissions. The Department’s submissions ¶5 The Department says it would be inappropriate to grant the relief sought by Mr Belford. It would produce an absurd result because it would undermine the statutory scheme of the Vocational Education and Training Act 1996 (WA) (VET Act). ¶6 It argues that the Commission should not exercise its jurisdiction to decide a question that is academic in the sense that any order or outcome is useless, hypothetical, premature or concerns a dead issue. ¶7 The Department says if Mr Belford were successful, he would be bound by two training contracts. It is implicit in the VET Act that an appellant should not hold more than one full-time training contract because it would be impossible to fulfil the obligations of both training contracts. ¶8 The Department says setting aside the Department’s decision is analogous to an order for reinstatement under s 23A of the Industrial Relations Act 1979 (WA) (IR Act). It argues that it is well accepted such an order is not appropriate where an applicant has subsequently obtained new employment: Bull v Mobilecom Pty Ltd (2000) 80 WAIG 385; Barton v Alf Barbagallo and the Trustee for Barbagallo Investments Trust [2005] WAIRC 02845; (2005) 85 WAIG 3788. ¶9 The Department says a successful appeal would not provide any utile result for Mr Belford because it would give him a training contract and an employment relationship for which he cannot fulfil the obligations that will bind him. ¶10 It also argues that a successful appeal would effectively frustrate his training contract with Minprovise. ¶11 The Department says the appeal would be contrary to s 26 of the IR Act if the appellant has the ulterior purpose of seeking reinstatement only to later leave his employment with Swan Transit Services. The Department submits that the Commission lacks jurisdiction to make decisions predicated on future discretionary acts of a party and the appellant’s argument that if he is successful, he will choose to fulfil his obligations under one of his training contracts. Mr Belford’s submissions ¶12 Mr Belford says the Commission has an obligation to rehear the matter once Mr Belford has invoked the Commission’s jurisdiction. The Commission must be satisfied proceedings are not necessary or desirable in the public interest before dismissing the appeal or refraining from hearing and determining the appeal. ¶13 He says the Commission should not dismiss or refrain from hearing his appeal unless there is a very good reason to do so, and there is no good reason in the circumstances. ¶14 Mr Belford says there is a heavy onus on the Department to demonstrate that it is in the public interest to refrain from further hearing the appeal. ¶15 Mr Belford submits his appeal does not concern an academic, useless, merely hypothetical or premature question. It does not involve a dead issue. He is not seeking a remedy he cannot fulfil, nor is he seeking an ulterior purpose. ¶16 The Commission must have regard to its obligations under s 26(1) in exercising its discretion under s 27(1)(a) of the IR Act. It would be unconscionable if the Department could evade an adverse finding or order simply because Mr Belford has another job. ¶17 Mr Belford argues that the public interest should not prejudice appellants who try to mitigate their loss by obtaining new employment. It would be preposterous to expect Mr Belford to go on welfare until the appeal is determined. ¶18 Mr Belford says if the Department were successful in its application to dismiss his appeal, such an outcome could ‘act as a deterrent to and would prejudice the rights of parties seeking other apprenticeship opportunities.’ ¶19 Mr Belford says that the onus on the Department is particularly heavy where there is no other tribunal with jurisdiction to fully resolve the dispute. Mr Belford’s unfair dismissal application to the Fair Work Commission was dismissed under the ‘double-dipping’ provisions in the Fair Work Act 2009 (Cth) because he had lodged this appeal to the Commission. It would set a dangerous precedent to be denied a remedy in two jurisdictions. ¶20 Mr Belford says that given the objects of the VET Act, which include ‘to establish a State training system for the effective and efficient provision of vocational education and training to meet the immediate and future needs of industry in the community’ and ‘to provide for people, such as apprentices, to be trained for some occupations under training contracts with employers’, it cannot be in the public interest to encourage unemployment. Simply because Mr Belford could end up with a choice between two training contracts is not a good reason for the Commission to conclude it is not in the public interest to hear and determine his appeal. ¶21 Mr Belford says his training contract with Minprovise is subject to a probation period until 18 October 2016. That training contract is uncertain and could be cancelled for a number of reasons. At the hearing, Mr Belford said the workplace was also further from home, involving an hour-long commute, and in a less secure industry, whereas the training contract with Swan Transit Services is with a secure quasi-government employer, close to home and not subject to a probation period. ¶22 Finally, Mr Belford argues that the outcome of his appeal may determine whether a fine is payable under s 60(G)(2) of the VET Act. It is in the public interest to ensure accountability and compliance with legislation. The law ¶23 Section 27(1)(a) of the IR Act provides: (1) Except as otherwise provided in this Act, the Commission may, in relation to any matter before it – (a) at any stage of the proceedings dismiss the matter or any part thereof or refrain from further hearing or determining the matter or part if it is satisfied – (i) that the matter or part thereof is trivial; or (ii) that further proceedings are not necessary or desirable in the public interest; or … (iv) that for any other reason the matter or part should be dismissed or the hearing thereof discontinued, as the case may be; ¶24 In exercising my discretion under s 27(1)(a) of the IR Act, I must have regard to s 26(1)(a) to s 26(1)(c) and act according to equity, good conscience and the substantial merits of the case: Robe River Iron Associates v Amalgamated Metal Workers and Shipwrights Union of Western Australia (1987) 68 WAIG 4. ¶25 The reasoning of Smith AP in The Australian Rail, Tram and Bus Industry Union of Employees, West Australian Branch v Public Transport Authority of Western Australia [2014] WAIRC 00451; (2014) 94 WAIG 787 at [49] to [60] is relevant. ¶26 Clearly s 27(1)(a) of the IR Act involves the exercise of a broad discretion. A party is entitled to invoke the Commission’s jurisdiction and prima facie expect it to be exercised: Queensland Electricity Commission; Ex parte Electrical Trades Union of Australia [1987] HCA 27; (1987) 72 ALR 1; (1987) 21 IR 151 (12-13); (162) (Re QEC) (Deane J). ¶27 The onus is on the Department to persuade the Commission that, in the circumstances, Mr Belford’s prima facie right to have the Commission hear his appeal should be overridden. ¶28 Where the public interest lies often depends on a balancing of interests, including competing public interest and is very much a question of fact and degree: Re QEC (5); (154) (Mason CJ, Wilson & Dawson JJ). Consideration ¶29 I agree with Mr Belford and the Department that there is an onus on the Commission to exercise its jurisdiction once called upon by a party to do so. ¶30 In asking that I dismiss or refrain from further hearing Mr Belford’s appeal, the Department must persuade me that Mr Belford’s prima facie right to have his appeal heard should be overridden. ¶31 I am not persuaded it should be. ¶32 I do not think that the outcome would be useless or hypothetical. It does not concern a dead issue. This appeal is not merely academic nor does it raise a premature question. ¶33 While I agree with Mr Belford that it is in the public interest to ensure accountability and compliance with legislation, that submission is of limited relevance to the circumstances of this matter. ¶34 There is nothing before me to suggest, and I am not persuaded, that Mr Belford has an ulterior purpose in pursuing his appeal. ¶35 Under s 23A of the IR Act, the Commission may order an employer to compensate an employee where reinstatement is impracticable. Whether reinstatement is impracticable is a question of fact. Further, the two cases cited by the Department in support of its argument are distinguishable. In Bull, the applicant did not seek reinstatement. In Barton, Woods C did not amend the applicant’s claim to include unfair dismissal because he considered reinstatement unlikely in circumstances where the applicant resigned voluntarily and started employment with a competitor during his notice period. That applicant also did not seek reinstatement. ¶36 The circumstances of this matter are quite different and Mr Belford seeks reinstatement. ¶37 The Department argues that in making my decision I cannot consider Mr Belford’s future acts. However, it also submits that I should take into account Mr Belford’s future ability to fulfil his obligations under two training contracts. I consider that approach to be unfair and not in accordance with s 26(1)(a) of the IR Act. ¶38 I do not agree that if Mr Belford were successful, granting him relief would have an absurd result which undermines the statutory scheme of the VET Act. ¶39 I accept that under the VET Act, the Department would not approve an apprentice entering into two full-time training contracts. However this appeal concerns the Department’s decision to terminate the training contract Mr Belford had with Swan Transit Services. In my view, Mr Belford’s right to invoke the Commission’s jurisdiction to rehear the matter should not be overridden because he has entered into another training contract. ¶40 If successful, Mr Belford could fulfil his obligations under his training contract with Swan Transit Services. That would have consequences for his training contract with Minprovise. ¶41 There are competing public interests. However, it is not in the public interest to discourage an appellant from seeking new employment or to prejudice an appellant who seeks to mitigate his loss. ¶42 In circumstances where Mr Belford prefers his training contract with Swan Transit Services to one with Minprovise for reasons including security and convenience, I consider it is a matter for Mr Belford as to how he chooses to proceed in the event that he is successful in his appeal. ¶43 Having regard to my obligations under s 26(1) of the IR Act, I am not persuaded that I should dismiss or refrain from hearing Mr Belford’s appeal. Conclusion ¶44 The Commission will hear Mr Belford’s appeal.