AMCCS Pty Limited v Commissioner for Vocational Training

[2025] NSWCATAD 241

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

AMCCS Pty Limited v Commissioner for Vocational Training [2025] NSWCATAD 241

Hearing dates:

17 July 2025

Date of orders:

26 September 2025

Decision date:

26 September 2025

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

N Isenberg, Senior Member

Decision:

The decision under review is affirmed.

Catchwords:

JURISDICTION – decision under review relied on wrong section of Apprenticeship and Traineeship Act 2001 -

ADMINISTRATIVE LAW – Apprenticeship – competing contracts – whether decision to terminate was reasonable –

Legislation Cited:

Administrative Decisions Review Act 1997 Apprenticeship and Traineeship Act 2001

Cases Cited:

GGG v University of Sydney [2024] NSWCATAD 264

Khan v Roads and Maritime Services [2018] NSWCATOD 128 at [23] - [27].

Secretary, Department of Social Security v Alvaro [1994] FCA 1124

Texts Cited:

Nil Cited

Category:

Principal judgment

Parties:

AMCCS Pty Limited (Applicant)
Commissioner for Vocational Training (Respondent)

Representation:

Solicitors:
Self- represented by a director, Mr B Young (Applicant)
Sparke Helmore (Respondent)

File Number(s):

2025/00134371

Publication restriction:

Nil

REASONS FOR DECISION

1. Mr C (the employee) was an apprentice under the Apprenticeship and Traineeship Act 2001 (AT Act) with the Applicant, AMCCS Pty Limited. On 19 December 2024 the Respondent, the Commissioner for Vocational Training, decided to cancel Mr C’s apprenticeship. That decision was affirmed on internal review and the Applicant now seeks review by this Tribunal.

Background

2. On 31 October 2023 the employee entered into an employment contract with the Applicant as an apprentice (the employment contract). Under the employment contract, he was engaged on a casual basis and paid an hourly rate with a casual loading and had the annual and sick leave entitlements of a casual employee. Termination was with one week’s notice in writing.

3. On 6 February 2024, the employee and Marc Young, on behalf of the Applicant entered into an Apprenticeship Training Contract (the training contract). The training contract was completed with the assistance of MEGT Pty Ltd (MEGT), an Apprentice Connect Australia Provider, and approved by the Respondent on 10 April 2024. The training contract was to commence on 9 January 2024 for a term of 48 months. In the training contract, in its response to question 39, the Applicant indicated that Mr C’s apprenticeship was being undertaken on a full-time basis, and that his hours of work and training were 38 hours per week. In the information section of the training contract, it was explained that "Ticking either the full time or part time boxes [in response to question 39] confirms that the apprentice/trainee is not working under casual or subcontracting arrangements while undertaking the apprenticeship". However, according to the Applicant’s pay records, the employee was recorded as a casual employee. The training contract provided that termination, by either party, was to be in accordance with “relevant State legislation.”

4. On 9 November 2024, the employee emailed Marc Young, the director who had signed the training contract on behalf of the Applicant, formally resigning, with 3 weeks’ notice. The next day, Brian Young, on behalf of the Applicant emailed the employee that the company would not accept his resignation. On 13 and 14 November 2024, MEGT corresponded with the Respondent in relation to the employee's resignation and the Applicant's refusal to accept the resignation. The employee sought further advice directly from the Respondent and submitted an apprenticeship cancellation form to the Respondent on 19 November 2024.

5. On 20 November 2024, the Respondent investigated the employee's claim that he was engaged as a casual. The employee had also reported several workplace concerns, including unpaid leave, hazardous conditions and lack of proper training. On 20 November 2024 and 22 November 2024, the Respondent contacted the Applicant to arrange a mediation in relation to the employee’s resignation.

6. On about 21 November 2024, a MEGT representative expressed concerns regarding the employee’s mental health, noting the employee’s anxiety and his not wanting to stay in the employ of the Applicant, although it was unclear to me on what basis this observation was made.

7. On 28 November 2024, Brian Young, on behalf of the Applicant, met with the employee and representatives of the Respondent for the purposes of a “mediation”, although from the available material, it appeared more of an investigation by the Respondent of the competing views of the employee and the Applicant. The Applicant was recorded as conceding to having mistakenly employed the employee as casual. The Applicant continued to refuse to accept the employee's resignation but was prepared to “change the employment” to full time with “all the entitlements” in order to keep the employee. The employee confirmed that he still wished to leave as he had secured a new apprenticeship which, he reported, included all entitlements and a pay rate above award.

8. Between 28 November to 3 December 2024, the employee reportedly sought advice from Fair Work Australia to confirm that he could leave his employment anytime as a casual worker. The Applicant continued to refuse to consent to the cancellation of the apprenticeship.

Relevant legislation

9. Section 22 of the AT Act provides, relevantly:

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) …

10. Section 17 of the AT Act provides, relevantly:

17 Conditions of training and employment for persons employed as apprentices and trainees

An employer that employs a person as an apprentice or trainee in a recognised trade vocation or recognised traineeship vocation:

(a)must provide work-based training in accordance with the relevant vocational training order for that vocation, and

(b)must employ the person under conditions no less favourable than those set by the provisions of the relevant industrial award or agreement,

whether or not an apprenticeship or traineeship has been established for the apprentice or trainee.

11. Section 4 of the AT Act provides:

4 Vocational training guidelines

(1) The Commissioner may from time to time issue guidelines (vocational training guidelines) in relation to the exercise of functions under this Act by persons involved in the administration of this Act.

(2) It is the duty of any person involved in the administration of this Act to comply with the requirements of the vocational training guidelines.

Copies of each vocational training guideline must be made available for public inspection on the Internet and, during ordinary office hours, at the offices of the Department.

12. Part 2.4 of the 'Apprenticeships and traineeships — eligibility and approval requirements' Guideline (the Guideline) issued under the AT Act, provides that apprentices must be employed on a full-time or part-time basis, and that where an apprentice is employed on a casual basis, evidence must be provided to establish that the apprentice's employment status has changed to full-time or part-time:

2.4   Employment status

An apprentice or trainee must be employed in either a full-time or part-time (if award allows) capacity for the duration of the apprenticeship or traineeship, and must be paid and receive leave entitlements and other conditions of employment available to full-time and part-time apprentices and trainees under the relevant industrial award or agreement.

If an apprentice or trainee is employed in a part-time capacity, the hours worked must comply with the requirements of the relevant Vocational Training Order.

Where an apprentice or trainee was employed on a casual basis directly before the start of an apprenticeship or traineeship, evidence must be provided indicating that the employment status of the apprentice or trainee has been changed to full-time or part-time.

Evidence

13. The Respondent provided material in accordance with s 58 of the Administrative Decisions Review Act 1997 (ADR Act), and later supplementary material. Detailed submissions were also provided.

14. The Applicant filed extensive submissions in support of its Application for Review.

15. Following the hearing, orders were made for the filing of supplementary submissions from the parties in respect of some discrete issues, and both parties filed further submissions.

Tribunal’s approach

16. Section 63 of the ADR Act provides that in determining an application for review the Tribunal is to make the correct and preferable decision having regard to the material before it, and any applicable written or unwritten law. It is well established that a tribunal is not restricted to a consideration of the material that was before the decision-maker, but may has regard to any relevant material before it at the time of the review: Shiv Migration Agents Registration Authority [2008] HCA 31. Under s 28(2) of the Civil and Administrative Tribunal Act 2013 (CAT Act) the Tribunal is not bound by the rules of evidence and may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice: s 38(2) of the CAT Act. The Tribunal makes its own decision in place of the Commissioner's, and there is no presumption that the decision of the Commissioner is correct: McDonald v Director General of Social Security (1984) 1FCR 353 at 357. The standard of proof that applies in these proceedings is the civil standard, that is, on the balance of probabilities. There is no onus of proof: Nakad v Commissioner of Police, New South Wales Police Force [2014] NSWCATAP 10.

Jurisdiction of the Tribunal

17. A preliminary question was raised in relation to the jurisdiction of the Tribunal to review the decision under review in circumstances where it was made other than in compliance with the relevant provisions of the AT Act.

18. On 19 December 2024, the Original Decision was issued to the Applicant, purporting, under s 21(1) of the AT Act, to withdraw the employee’s apprenticeship from 10 January 2024. The decision was made on the basis the Applicant had failed to meet its obligations under s 17 of the AT Act, namely failing to employ the employee under conditions no less favourable than those set by the provisions of the relevant industrial award or agreement. In addition, the Applicant was said to have failed to meet its obligations under the Apprenticeship and Traineeship Policies and Procedures - Eligibility and Approval requirements, including that he had been employed as a casual. Both the Applicant and the employee were informed there that they had 21 days to make written submissions to the Respondent in relation to the cancellation of the apprenticeship in accordance with s 22(3)(b) of the AT Act.

19. On 6 January 2025, the Applicant responded to the Original Decision, making submissions disputing the cancellation and, on 6 February 2025, a second letter was issued to the Applicant, which sought to clarify some "points of confusion" within the Applicant's submissions. This letter restated the decision made in the Original Decision. Following this, the Applicant made an application for internal review under s 53 of the Administrative Decisions Review Act 1997 (ADR Act).

20. On 6 March 2025, the Internal Review Decision was made by a delegate of the Respondent, affirming the Original Decision.

21. The Applicant submitted that the Respondent had admitted to procedural errors in both the Original and Internal Review Decisions, including misapplying the AT Act. Further, the Respondent failed to comply with s 22(3) of the AT Act by cancelling the apprenticeship without providing the Applicant an opportunity to make submissions, thereby invalidating the decision-making process.

22. 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:

…

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

…

23. The Original Decision made a finding that it was appropriate for the Respondent to withdraw the apprenticeship under s 21(1) of the AT Act. That section of the AT Act, however, does not contain a power to withdraw or cancel an apprenticeship. This error was not corrected in the Internal Review, which affirmed the Original Decision without referring to the section under which the decision was made. The Respondent submitted that it is clear that s 21(1) was applied in error, and therefore the Commissioner, and consequently the Tribunal, does have the power to suspend or cancel an apprenticeship or traineeship under s 22(1) of the AT Act (as it is clear that this was the section to which the Original Decision was intending to refer). The Respondent has the power to cancel the apprenticeship if satisfied that it is reasonable in the circumstances to do so, under s 22(2)(b) of the AT Act, and providing that the requirements of ss 22(3) and 22(4) are also met.

24. The Respondent conceded that the requirements in s 22(3) of the AT Act were not complied with before the Original Decision was made. However, it provided the Applicant and the employee the opportunity to make submissions, within 21 days to make submissions. Thus, the Original Decision had already been made before the Applicant had been given an opportunity to make submissions in response to the proposed cancellation, as required by s 22(3) of the AT Act. However, in response to the Original Decision, the Applicant in fact provided submissions on 6 January 2025.

25. It appears that both the Original Decision and the Internal Review Decision were made, misapplying the relevant section of the AT Act. However, the Respondent submitted that the Tribunal nonetheless has jurisdiction to review this decision, even if it was arguably made invalidly.

26. Under s 6 of the ADR Act, the definition of 'decision' includes a 'purported decision', such that the Tribunal retains the power to review an invalid decision, or a purported decision that is beyond the power of the decision-maker: Khan v Roads and Maritime Services [2018] NSWCATOD 128 at [23] - [27]. See also Secretary, Department of Social Security v Alvaro [1994] FCA 1124; where the Federal Court held that a merits tribunal has jurisdiction to hear an appeal, not only where the decision was defective, but also where the decision-maker was not empowered to make the decision. See also s 6 of the ADR Act and s 5 of the CAT Act (which also confirms that there is a “decision” if there is a purported decision under enabling legislation, “even if the decision was beyond the power of the decision-maker to make”: GGG v University of Sydney [2024] NSWCATAD 264.

27. Sections 6(2) and (3) of the ADR Act specifically extend a “decision” to include “a purported exercise” of a function conferred by legislation on the decision-maker, or a decision made without power.

28. Section 5 of the CAT Act also confirms that there is a “decision” if there is a purported decision under enabling legislation, “even if the decision was beyond the power of the decision-maker to make”.

29. Consequently, in relation to the preliminary jurisdictional issue, I find that the Respondent made an administratively reviewable decision, and that the Tribunal therefore has jurisdiction to determine the Application for Review.

Substantive issue: is it reasonable for Mr C’s apprenticeship with the Applicant to be cancelled?: s22(2)(b) of the AT Act

30. Section 22(2)(b) of the AT Act provides that the Respondent may cancel an apprenticeship providing that it is reasonable in the circumstances do so.

31. On 9 November 2024, the employee provided the Respondent with 3 weeks’ written notice of resignation from their employment with the Respondent. As a casual employee, the employee was only required to provide 1 week’s written notice of termination pursuant to the terms of their contract of employment with the Applicant. Even if the employee was not employed as a casual employee, he was only required to provide 2 weeks’ notice of resignation pursuant to cl 45.1(b) of the Manufacturing and Associated Industries and Occupations Award 2020 (the Award), which is the industrial award that related to the employee’s employment. I am satisfied that the employee provided the required notice in terminating his employment with the Applicant. It is arguable that, having done so, there was no role for the Respondent in cancelling the training contract.

32. The Respondent also submitted that the Applicant's failure to comply with Part 2.4 of the Guideline, namely that the employee was not employed on a full-time or part time basis but as a casual, provides sufficient reasonable circumstances to justify cancelling apprenticeship.

33. The evidence was that the Applicant initially employed Mr C as a casual. In those circumstances the Guideline requires that there be evidence to establish that the apprentice's employment status changed from casual to full-time or part-time. However, according to the Applicant’s pay records, the employee was recorded for the whole period as a casual. I am satisfied that the evidence was that Mr C remained employed as a casual notwithstanding that in the training contract, the Applicant indicated that Mr C’s apprenticeship was being undertaken on a full-time basis, and that his hours of work and training were 38 hours per week. Furthermore, the training contract specifically required the employer to acknowledge that the apprentice is not working as a casual while undertaking the apprenticeship.

34. I agree that the Applicant’s failure to employ Mr C in accordance with Part 2.4 of the Guideline, namely that he was not employed on a full-time or part time basis provides reasonable circumstances for the cancellation of the apprenticeship.

35. For completeness, I address the following.

Was the employee employed on conditions less favourable than those set by the provisions of the relevant industrial award or agreement and the Guideline?

36. The Respondent submitted that because the Applicant employed Mr C as a casual it had thereby failed to employ him in accordance with s 17(b) of the AT Act. That section requires an apprentice to be employed on conditions no less favourable than those set by the provisions of the relevant industrial award or agreement and the Guideline, which provides apprentices must be employed on a full-time or part-time basis, which the employer must comply with: s 4(2) of the AT Act. The relevant award to is the Manufacturing and Associated Industries and Occupations Award 2020 (the Award). Clause 12.4 of the Award provides that "In order to undertake trade training in accordance with clauses 12.4 and 12.5 a person must be a party to a training contract in accordance with the requirements of the apprenticeship authority or State legislation.", relevantly, the AT Act. The Guideline, made under the AT Act, requires an apprentice to be employed on a permanent basis, and to receive leave entitlements. Through the Applicant's failure to employ Mr C on a permanent basis and provide these entitlements, the Applicant failed to comply with the terms of the Award.

36. In considering whether the employee's terms of employment were less favourable than the terms provided in the Guideline and the Award, not receiving leave entitlements when an individual is entitled to such entitlements (regardless of salary), is clearly less favourable.

37. The Applicant submitted that the training contract did not restrict the apprentice being engaged as a casual. For the reasons discussed above, this is plainly not the case. In the alternative, the Applicant submitted, if the training contract did in fact restrict the employee from being engaged as a casual, that Mr C was in fact “permanent” from the commencement of his training contract, on the basis that he received "the same employment entitlements as permanent employees, only as hourly paid and not accrued in the company books." The Applicant submitted, that Mr C was paid 25% above the Award by way of compensation for such entitlements. In his evidence Mr Young contended that his employees preferred to be paid on such a basis – getting additional money in hand, rather than take their chances of loss of entitlement should the employer “go under”. There was no clear evidence as to the precise calculation of the respective benefits payable to the employee. As the Respondent pointed out total income is not the only relevant factor when assessing an employee's employment conditions. For example, because the employee was engaged as a casual, he was required to take unpaid leave in circumstances where he would otherwise have been entitled to paid leave as a permanent employee. As a consequence, he was paid a lesser amount in some weeks when he took leave. Consistent with this, after the commencement of the training contract, the pay records show an inconsistency in weekly pay; for example, in some weeks being paid as little as less than $8.00.

38. I do not accept that the evidence supports a finding that the employee was paid a wage above the Award such that it could be said he was compensated for all leave and other entitlements. As a consequence, his conditions of employment were less favourable than that of a permanent employee who takes leave and can reliably predict their income level week to week.

39. Further, in circumstances where he was employed as a casual and could have been dismissed at any time without notice, this fails to provide the job security of a permanent classification. While the Applicant submitted that there was no wish to dismiss the employee, Mr C’s conditions of employment were such that he could have been dismissed without the period of notice afforded to a permanent employee. For this reason also, Mr C’s conditions of employment as a casual were less favourable than the conditions imposed by the Award.

40. I find that the Applicant therefore failed to employ the employee on conditions "no less favourable than those set by the provisions of the relevant industrial award or agreement", and it therefore failed to comply with s 17(b) of the AT Act.

41. In those circumstances it is reasonable for Mr C’s apprenticeship with the Applicant to be cancelled.

Applicant’s concerns about the scheme

43. The Applicant submitted that it had acted in good faith throughout the apprenticeship process. I make no finding in this regard. It also submitted that it had complied with all relevant laws and guidelines. For the reasons given above, this submission is inaccurate.

44. It was also submitted that the Respondent's actions, including the cancellation of the contract based on “false claims”, have caused significant harm to the Applicant’s reputation and operations. It is unclear to what “false claims” to which the Applicant referred, but this may include the employee’s claim in relation to workplace concerns, unpaid leave, hazardous conditions and lack of proper training. I also acknowledge the Applicant’s concerns about disruption in the workplace and reputational damage, if all the employee’s grievances were accurate. In making my decision I make no comment in relation to the efficacy of the employee’s concerns outlined above.

45. The Applicant submitted that its expectation was that the employee would be in its employ for 4 years. I acknowledge that this may have been the Applicant’s expectation. The Applicant claimed to have expended a considerable amount in training the employee and had yet to benefit from his training by the time he resigned. It is clear that the relationship between the Applicant and the employee was strained and may have impacted on the workplace environment, making a continuation of the relationship undesirable. I agree with the original decision-maker that a positive workplace arrangement is crucial for effective learning and productivity.

46. The Applicant also submitted that the decision under review failed to consider the background of the employment contract and the training contract, and also failed to consider the costs incurred by the Applicant in fulfilling the apprenticeship. This submission, in my view, demonstrates the Applicant’s failure to acknowledge its role in participating in the apprenticeship scheme. The AT Act places a series of obligations on both trainees and employers. For example, with respect to employers s 13 of the AT Act provides 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.

47. In return, an apprentice is obligated under s 16 of the AT Act

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.

48. It seems to me that it is somewhat disingenuous of the Applicant to suggest that the costs it incurred in fulfilling its responsibilities towards Mr C should be a factor in considering the reasonableness of the cancellation.

49. Further, the Applicant also submitted that because of its expenditure on training the employee, that it had a "right to keep its employee". In particular, it referred to the high initial costs associated with training a first-year apprentice, the benefits of which would now flow to the employee's new employer. It also referred to workplace disruption and discontent among other employees and the administrative burden and delays caused by the Respondent's provider to refund payment claims.

50. Again, this demonstrates a lack of understanding of the scheme. While I accept that the Applicant was disappointed not to receive a “return” on its investment in Mr C this does not overcome its failure to employ him conditions no less favourable than a full time employee.

51. The Applicant sought "damages" from the Respondent to re-imburse it for costs incurred due to the cancellation, such as training expenses, administrative and supervisory costs and workplace disruption/efficiency. As I informed the Applicant’s representative at the hearing, the Tribunal has no power to award damages in this matter.

52. The Applicant contended that the training contract was valid because the parties acted as if were and because the Respondent was aware of and approved its terms; MEGT had reviewed the contract and did not identify any irregularities. In this regard I observe that the Applicant had, in the training contract, recorded that Mr C’s apprenticeship was being undertaken on a full-time basis, and that his hours of work and training were 38 hours per week and that he was not working as a casual. The Respondent was entitled to rely on the Applicant’s statement in the training contract; there was nothing to alert the Respondent at the time the training contract was approved, that the situation with respect to Mr C’s employment was other than in the training contract.

53. The Applicant also contended that that the Respondent and MEGT took steps to secure the employee an alternate apprenticeship contract despite a valid contract being in place between the employee and the Applicant. Apart from the Applicant’s assertions in its submissions there was no evidence that this was the case. Further, it was submitted, the Respondent and/or MEGT should not have entered into any conversations with the employee without "the knowledge or authority" of the Applicant. The Applicant’s submissions observe that Mr C sought advice from an officer of MEGT. However, Mr C, was entitled to seek assistance from MEGT; indeed, according to its website, mentorship and support of apprentices is a hallmark of the MEGT role. Further, the Applicant alleged that the Respondent enabled and/or encouraged Mr C to break his contract and continue his apprenticeship with another company. The evidence before me does not support such a finding.

54. The Applicant submitted that it would be desirable if the Respondent were to establish clearer guidelines for apprenticeship contract cancellations. In this regard, I make no comment.

55. For the reasons given above, the correct and preferable decision is that the Respondent’s decision to cancel Mr C’s apprenticeship with the Applicant under s 22(2)(b) of the AT Act is affirmed.

Decision

56. The decision under review is affirmed.

**********

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: 26 September 2025