Duerinckx Enterprises Pty Ltd and Australian Skills Quality Authority

[2015] AATA 526

Duerinckx Enterprises Pty Ltd and Australian Skills Quality Authority [2015] AATA 526 (17 June 2015)

Division	GENERAL DIVISION
File Number(s)	2015/2490
Re	Duerinckx Enterprises Pty Ltd
APPLICANT
And	Australian Skills Quality Authority
RESPONDENT

DECISION

Tribunal	Senior Member Cunningham
Date	17 June 2015
Place	Hobart

The Tribunal directs that the application for a stay be granted subject to conditions.

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Senior Member Cunningham

CATCHWORDS

Practice and Procedure – application for stay – compliance issues – stay granted subject to conditions

LEGISLATION

National Vocational Education and Training Regulator Act 2011

Administrative Appeals Tribunal Act 1975

CASES

Australian Vocational Driving Institute Proprietary Limited and Australian Skills Quality Authority (2014) AATA 889

Re Scott and Australian Securities and Investment Commission (2009) AATA 798

WRITTEN  REASONS FOR ORAL DECISION

Senior Member Cunningham

Delivered 17 June 2015

1. The Applicant (the RTO) is an “NVR Registered Training Organisation” and the Respondent (ASQA) is the “National VET Regulator” as those terms are defined in section 3 of the National Vocational Education and Training Regulator Act 2011 (the NVR Act).

2. On 24 September 2014, the RTO applied to ASQA for renewal of its registration under the NVR Act. In an audit report dated 21 January 2015, ASQA identified non-compliances with relevant standards and gave the RTO “an opportunity to address the identified areas of non-compliance by providing rectification evidence”.

3. On 2 April 2015, the RTO provided an “audit non-compliance response” with attachments. A further audit report was prepared, and on 6 May 2015 ASQA Commissioners, amongst other things, decided to:

   ·reject the Applicant’s application for renewal of registration for CHC20112 Certificate II in Community Services and any new training package product that would be automatically added to the scope of registration with affect 35 calendar days.

4. Notice of ASQA’s decision was given to the Applicant on 15 May 2015. ASQA’s notice advised that the Applicant’s application for renewal of registration had been granted (for a seven year period commencing on 27 October 2014) for all training products currently on the Applicant’s scope of registration, except in relation to the CHC20112 Certificate II in Community Services. The decision was based on a breach of section 22 (1) of the NVR Act in a failure to comply with the standards for NVR Registered Training Organisations in relation to the VET courses.

5. On 18 May 2015 the Applicant filed an application for review of the Respondent’s decision with the Administrative Appeals Tribunal (AAT), claiming that “the decision is based on easily remedied typographical errors in a Memorandum of Understanding (MOU) which can be remedied and supplied to ASQA forthwith. However, the option to do so does not exist, requiring this application to the AAT.” Also filed with the application for review was an application for a stay of the Respondent’s decision pending the outcome of the application for review. The Respondent’s decision is to become effective on 19 June 2015.

6. Glynn Williams who appeared on behalf of the Applicant, advised that if a stay of the Respondent’s decision was granted, the Applicant would accept a condition not to accept or enrol any new students in the CHC20112 Certificate II course pending the Respondent’s acceptance of a revised MOU. In response, Peter Cribb, on behalf of the Respondent, stated that the Respondent’s concern lies not with the MOU but the delivery of the course itself, noting that the current MOU expires in late 2015.

7. In a letter addressed to the Respondent dated 17 June 2015, Mr Williams advised that the Applicant holds a training contract for CHC20112 at Queenstown which it intends to start in July/August for up to 15 students. The suspension would prevent the training proceeding. Mr Williams summarised what in his opinion were the reasons for the suspension of training for the course. He advised that the Applicant has submitted a revised, updated and completed MOU and revised and updated CIP. Following further discussions at an informal conference and the identification of an issue concerning the proposed trainer for the course and the number of training hours, Mr Williams set out further proposed changes to the MOU.  In the circumstances Mr Williams contended that there is no proper basis for the Respondent’s decision to impose a suspension.

8. In his submissions to the Tribunal, Mr Cribb confirmed that the Respondent’s concern is with the delivery of the course in January 2015. Whilst modifications to the MOU have been proposed by the Applicant, the Respondent is still not satisfied that the proposed training hours have been clearly identified and pointed to inconsistencies in the documentation.

9. The Respondent relied on an affidavit sworn on 17 June 2015 by Samantha Mercedes Byrnes, Regional Manager with ASQA. Annexed to the Affidavit was a copy of the MOU, various correspondence between the parties and a copy of a search of the National Register maintained under section 216 of the National Vocational Education and Training Regulator Act 2011 for registered training organisations (RTO’s). The search identified 73 RTOs that deliver the CHC 20112 course, with one of those being Tas TAFE.

10. Mr Cribb explained that the Respondent’s audit focused on the MOU because it was the Applicant’s only current mode of delivery for the subject course. Mr Williams advised that when the MOU expires at the end of 2015, the Applicant proposes other training strategies for the course, however they have not been identified nor were they the subject of an audit by the Respondent.

11. Mr Cribb explained that, given the Respondent’s concerns with the existing MOU, the Respondent could not be satisfied that the Applicant had a complying strategy for future delivery of the course. However in balancing the interests of the Applicant and those of the public, the Respondent did not oppose a stay of its decision provided that the Applicant agreed to the conditions outlined in its letter to the Tribunal received on 26 May 2015.

12. Mr Cribb referred to the decision of Deputy President Hack in Australian Vocational Driving Institute Proprietary Limited and Australian Skills Quality Authority (2014) AATA  889 who was also considering an application for a stay of the Respondent’s decision to cancel the Applicant’s registration. In that case it was contended that the Applicant was likely to suffer devastating consequences if a stay of the decision was not granted. However, as Deputy President Hack noted at paragraph 27 “a consideration of the exercise of the discretion requires more than the likelihood of severe consequences for the Applicant.”

13. Justice Downes in Re Scott and Australian Securities and Investment Commission (2009) AATA 798 set out a number of matters to be considered in considering an application for a stay of a decision banning the Applicant in that case, from managing corporations for a period of 18 months. They included:

    (a)The prospects of success.

    (b)The consequences for the Applicant of the refusal for a stay.

    (c)The public interest.

    (d)The consequences for the Respondent in carrying out its functions depending upon whether a stay is granted or not.

    (e)Whether the application for review would be rendered nugatory if a stay was not granted.

    (f)Other matters that are relevant, amongst which I would include the length of time that the ban has already been in place and the gap between today and the hearing of the application.

14. Justice Downes stated that it was very important to take into account the public interest in the context of the public being entitled to the protection of a decision made by the Regulator, noting that the Regulator has supervisory control and is subject to an appeal to the Administrative Appeals Tribunal.

15. An order for a stay is made pursuant to section 41 of the Administrative Appeals Tribunal Act 1975 where the Tribunal is of the opinion that it is desirable to grant the application after taking into account the interests of any persons who may be affected by the review.

16. Mr Williams submitted that the Applicant would be readily able to address the issues identified by the Respondent to date in the MOU. He was however concerned that the Respondent would continue to raise other compliance issues and urged the Tribunal to direct the Respondent to identify any other compliance issues so that the Applicant could address them as soon as possible. The Respondent agreed to do so and consider the Applicant’s response to the revised classroom based training hours.

17. It is evident that there are outstanding issues arising from the Respondent’s audit of the Applicant’s training strategy for the CHC20112 Certificate II in Community Services course. The current strategy is via an MOU between the Applicant and the Circular Head Christian School. This MOU is due to expire at the end of 2015 and the Applicant’s strategy for delivery of the course after this date is not clear. Whilst the audit only addressed the existing MOU, given the nature of the issues identified, the Tribunal considers that it is in the public interest to impose the condition proposed by the Respondent in granting the stay sought by the Applicant. That condition is that the Applicant not enrol any student in CHC20112 Certificate II in Community Service, or accept any payment for such course.

18. For these reasons the Tribunal directs as follows:

(i)That the decision of the Australian Skills Quality Authority (ASQA) dated 15 May 2015 be stayed until further order of the Tribunal subject to the following condition:

·         The Applicant not enrol any student in CHC20112 Certificate II in Community Service, or accept any payment for such course.

(ii)That the Applicant provide further submissions with respect to the compliance issue regarding classroom based training hours as particularised by the Respondent on page 49 in the attachments to the Affidavit of Samantha Mercedeze Byrnes dated 17 June 2015 by COB 22 June 2015.

(iii)That the Respondent identify any further compliance issues in the revised MOU dated 11 June 2015 and provide a response to the Applicant’s submission regarding classroom based training hours on or before COB 29 June 2015.

(iv)That the application for review is otherwise adjourned to a conference on 13 July 2015 at 1:00pm.

(v)That there be Liberty to Apply.

I certify that the preceding 18 (eighteen) paragraphs are a true copy of the reasons for the decision herein of Senior Member Cunningham

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Dated       July 2015

Date of hearing	17 June 2015
Solicitor for the Applicant	Mr Glynn Williams
Solicitor for the Respondent	Mr Peter Cribb