Australian Competency Training For Industry And Vocational Employment Pty Ltd v TVET Australia

[2010] QCAT 480

CITATION:Australian Competency Training For Industry And Vocational Employment Pty Ltd v TVET Australia [2010] QCAT 480

PARTIES:	Australian Competency Training For Industry And Vocational Employment Pty Ltd
v
TVET Australia

APPLICATION NUMBER:   GAR122-10  

MATTER TYPE: General administrative review matters

HEARING DATE:     Decision on the papers

HEARD AT:  Brisbane

DECISION OF: Peta Stilgoe

DELIVERED ON: 23 September 2010

DELIVERED AT:      Brisbane

ORDERS MADE: The tribunal has jurisdiction to determine the application.

CATCHWORDS :  JURISDICTION – where a change in control of organisation – where Board applied policy to require new application by new person in control – whether a decision – whether a decision about registration
Vocational Education, Training and Employment Act ss 31, 224(1)

APPEARANCES and REPRESENTATION (if any):

This matter was heard on the papers in accordance with section 32 of the

Queensland Civil and Administrative Tribunal Act 2009

REASONS FOR DECISION

The issue

1. In April 2009, Ms Justine Gerry resigned as a director of Australian Competency Training For Industry And Vocational Employment Pty Ltd (“ACTIVE”) and Ms Mandy Reid was appointed. ACTIVE advised the National Audit and Registration Agency (“NARA”) of the changes by letter dated 3 July 2009

2. On 3 August 2009, TVET Australia (“TVET”), as delegate of NARA advised ACTIVE that the notice of change of officeholders was not provided 30 days before the changes took place, this was a breach of  the Vocational Education, Training and Employment Act (“the Act”) and that ACTIVE was required to submit an application for registration.

3. ACTIVE has filed an application for review of this decision; TVET says the tribunal has no jurisdiction to hear the application.

The submissions

1. TVET says that:

a)The letter of 3 August 2009 is not a decision, it was merely an application of the legislation and policy, with no discretion and therefore no decision making aspect.

b)If the letter is a decision, it is not a reviewable decision because it does not relate to a decision about the registration of a training organisation but, rather, concerns the implementation of a policy which indicates that ACTIVE is no longer registered.

1. ACTIVE says that the letter of 3 August 2009 is a decision and it is a decision about the registration of a training organisation.

Consideration

1. The tribunal’s jurisdiction under the Act is provided by section 224(1) which states:

A person aggrieved by any of the following decisions may apply to QCAT for a review of the decision—
(a) a decision about the registration of a training organisation;
(b) a decision about the accreditation of a course;
(c) a decision about the recognition of a group training organisation or principal employer organisation;
(d) a decision about an employment exemption for a young person in the compulsory participation phase.

1. Section 31 of the Act requires a training organisation to give notice of any substantial change of control. The Act provides for a penalty for non-compliance, but does not otherwise specify any consequences.

2. TVET says that Draft 7 of the Queensland Training and Employment Recognition Policy, dated 29 May 2009 provides that, in the event of a change of control, the new legally responsible person must apply for registration. TVET does not say whether this draft has been adopted, whether it has been published to organisations such as ACTIVE or what its legal status might be.

3. Regardless, TVET has made a decision to apply the policy. It says it had no choice, and that is a matter for debate when considering the merits of the application, but there is no doubt that it did make a decision and that decision is about the registration of a training organisation.

Conclusion

10. This tribunal does have jurisdiction to hear the application by ACTIVE.