The Centre for People Development and Australian Skills Quality Authority
[2019] AATA 5193
•15 November 2019
The Centre for People Development and Australian Skills Quality Authority [2019] AATA 5193 (15 November 2019)
Division: General Division
File Number(s): 2019/5866
Re: The Centre for People Development
APPLICANT
Australian Skills Quality AuthorityAnd
RESPONDENT
DECISION
Tribunal:Deputy President Britten-Jones
Date of oral reasons: 15 November 2019
Date of written reasons: 3 December 2019
Place:Adelaide
For the reasons given orally at the conclusion of the hearing of this matter, the Tribunal:
1.sets aside the decision under review; and
2.in substitution it is decided pursuant to subsection 31(1)(b) of the National Vocational Education and Training Regulator Act 2011 that the applicant was entitled to make its application for renewal within the shorter period expiring on 30 September 2019.
.........................[sgnd]......................................
P BRITTEN-JONES
(Deputy President)
Catchwords
VOCATIONAL EDUCATION AND TRAINING – whether the applicant should be allowed to apply for renewal within a shorter period than 90 days – explanation for delay – prospects of success – prejudice to applicant and respondent – consequences for applicant if shorter period not granted – whether applicant rested on its rights – decision under review set aside and substituted with a decision that the applicant was entitled to make an application for renewal within a shorter period than 90 days.
Legislation
Administrative Appeals Tribunal Act 1975
National Vocational Education and Training Regulator Act 2011
Cases
Mantra Training and Development Pty Ltd and Australian Skills Quality Authority [2019] AATA 66 (23 January 2019)
REASONS FOR DECISION
At the conclusion of the hearing of the above matter, the terms of the decision intended to be made and the reasons therefore were stated orally. After the giving of the oral reasons, the parties, pursuant to section 43(2A) of the Administrative Appeals Tribunal Act 1975, requested the Tribunal to provide a statement in writing of the reasons of the Tribunal for its decision.
The oral reasons for the decision have been transcribed. Some minor amendments and additions have been made to that transcript. Whereas those oral reasons, as amended, may reflect the inelegance of an ex tempore decision, they are in fact the reasons for the said decision.
The said transcript is annexed hereunto and furnished to the applicant and the respondent as it is the reasons for the Tribunal’s decision.
I certify that the following nineteen (19) paragraphs are a true copy of the reasons for the decision herein of Deputy President Britten-Jones ....................[sgnd]...........................
Legal and Administrative Assistant
Date of hearing: 15 November 2019
Applicant’s Representatives: Mr S Krieg and Ms J Gael Respondent’s Representative: Ms. J Pellow, Australian Skills Quality Authority ORAL DECISION OF DEPUTY PRESIDENT BRITTEN-JONES
DEPUTY PRESIDENT: I am just going to read out my reasons and then I’ll let you know my decision at the end. This is an application for review brought under section 199 of the National Vocational Education and Training Regulator Act 2011 (“the Act”) for the review of a decision made by the respondent to not determine a shorter period for making an application for renewal of registration under section 31 of that Act.
Section 31 of that Act provides that the respondent may renew a registered training organisations registration under section 17 if the organisation makes an application for renewal at least 90 days before the day the organisation’s registration expires, or within such shorter period as the regulator allows. In this case the applicant did not apply for renewal 90 days before the expiry of its registration, but has instead requested the respondent to provide it with a shorter period of time in which to make a renewal application. That request for a shorter period of time was denied by the respondent on 4 September 2019. The applicant has applied to the Tribunal for a review of that decision.
In the decision of Mantra Training and Development[1] the Tribunal observed that a decision to refuse to give a shorter period of time under section 31(1)(b) of the Act was analogous to an extension of time application such as the discretion conferred on the Tribunal by subsection 29(7) of the Administrative Appeals Tribunal Act. I adopt the same approach and take into account the following considerations in determining whether the applicant should be allowed a shorter period of time: namely explanation for delay, prospects of success, prejudice to the parties and whether the applicant has rested on its rights.
[1] Mantra Training and Development Pty Ltd and Australian Skills Quality Authority [2019] AATA 66 (23 January 2019).
The following facts have been made out on the evidence. The applicant has been a registered training organisation since November 2000. On 30 September 2014 the respondent renewed the applicant’s registration for a period of five years, such that the applicant’s registration expired on 29 September 2019. In August 2018 the applicant applied to change its scope of registration to include TAE40116 Certificate IV in Training and Assessment, which I will refer to as Cert IV. In September of what must have been 2018 the respondent sent to the applicant a notification that its registration would expire in 12 months, informing the applicant that its renewal application should be submitted online at least 90 days before its registration expired. On 6 February 2019 the respondent rejected the applicant’s application to include Cert IV as part of its scope of registration. On 27 February 2019 the applicant applied to the Tribunal for a review of that rejection in action number 2019/1076. Ultimately that action resolved in the applicant’s favour by consent orders made on 30 September 2019, by which the 6 February 2019 decision was set aside and in substitution it was decided to change the applicant’s scope of registration to include Cert IV.
On 29 March 2019 the respondent sent another reminder to the applicant to apply for renewal 90 days before its registration expired. That reminder said:
If you are not intending to renew your RTO’s registration we request that you notify ASQA as soon as possible via submission of an application to withdraw registration.
On 3 April 2019 the applicant wrote to the respondent and said:
Due to current processes with ASQA and the Administrative Appeals Tribunal no action can be taken on the below matter. Would you please advise this has been noted appropriately on the Centre for People Development’s file. Please also advise that an extension to registration will be granted if the mediation process is prolonged beyond 29 June 2019, due date for application 90 days prior to registration renewal.
The respondent replied on 4 April 2019 advising that:
The matter before the Tribunal does not prevent the submission of the application to renew RTO registration which is currently available on the portal to which your organisation’s CEO has administrator access.
Further the respondent said that organisations must apply at least 90 days before the registration is due to expire and “should your organisation fail to submit a complete application at least 90 days prior to your expiry date registration may not be renewed”.
On around 23 May 2019 Mr Krieg, who is the compliance manager for the applicant, had a heart attack. He was the person who dealt with the respondent, but ultimately Ms Gael as CEO had the responsibility for making applications to the respondent. On 29 May 2019 the respondent sent another reminder to the applicant. The 29 June 2019 deadline for the renewal application came and went. On or before 3 September the respondent indicated that it would grant the applicant’s request to include Cert IV in its registration, thereby resolving that action.
On 3 September 2019 the applicant wrote to the respondent requesting the respondent to shorten the 90 day period within which to make a renewal of registration application. The applicant cited as reasons for the delay the engagement in the appeal process at the Tribunal since February 2019 regarding not being granted Cert IV as part of its scope of registration. The applicant referred to considerable stress and significant resources being expended over the past seven to eight months. The applicant also referred to the heart attack suffered by Mr Krieg which resulted in the compliance and business manager not being able to submit the renewal application in time, and resulting in uncertainty as to whether Mr Krieg would be returning. The applicant went on to say:
With ASQA now acknowledging CPD has in fact met the requirements for Cert IV TAA to be included in scope, and that the RTO compliance and business manager has now returned to work, CPD wishes to renew its registration and rebuild its business and restore its reputation across the government, not for profit and private sectors. Therefore, due to the extraordinary nature of the above circumstances CPD requests that ASQA exercises its authority within the Act to provide the Centre for People Development a shorter period in which to make a continuing registration application.
On 9 September 2019 the respondent advised of its decision not to determine a shorter period for making an application for renewal of registration. It referred to the numerous reminders sent prior to the relevant date for the renewal application to be made and the advice given that the AAT appeal action did not impact the need to comply with the 90 day deadline. It suggested that if CPD wished to continue delivering nationally recognised training it was required to submit an initial application.
In support of its application the applicant relies on the fact the respondent had rejected the application to include Cert IV in its scope of registration, and the ongoing appeal process which culminated in September 2019 with the rejection being overturned. The applicant also relies upon the heart attack suffered by the compliance manager which took him out of action from late May to mid-July 2019. Ms Gael gave evidence that the applicant could not commit to a renewal registration as at 29 June 2019 because of the uncertainty arising from these two factors. First it was not clear at that stage whether Mr Krieg would make a full recovery, and because he was a critical part of the business that created uncertainty as to whether the business would be able to continue without him. Second, the applicant’s business plan relied heavily on the inclusion of Cert IV in its scope of registration. She said that as soon as the applicant became aware that Mr Krieg had recovered from his heart attack, and that the decision with respect to Cert IV would be overturned, that the applicant requested the respondent to allow it to renew its application within a shorter period of time. The applicant says in the circumstances the respondent should have exercised its discretion to shorten the time period for the renewal application, and it makes that further submission to the Tribunal on review.
The respondent says that there has been no acceptable explanation for the delay, especially given the numerous reminders and specific advice that the application for renewal should be made on time, irrespective of the appeal before the AAT. Further, there was no reason why Ms Gael could not have made the renewal application in the absence of Mr Krieg.
I now consider the relevant matters, firstly, the explanation for delay. There is no doubt that the applicant has provided an explanation for why it did not make the necessary application by 29 June 2019. The real question is whether or not that is a sufficient and appropriate explanation. I consider that the health of Mr Krieg and the AAT appeal process amounted to unusual circumstances which provide a sufficient explanation for the delay in making the application. The applicant was placed in a very difficult situation in the period leading up to 29 June 2019. Whilst Ms Gael could have made the renewal application in the absence of Mr Krieg, he was the compliance officer and was the person who normally would have made the application and signed the required declaration. I accept that Ms Gael had some concerns about signing the required declaration, given that issues of compliance were within the area of expertise of Mr Krieg.
Further, I accept that the outstanding AAT appeal caused uncertainty as to whether the applicant wished to proceed with the renewal application. The applicant had informed the respondent of this concern by its email of 3 April 2019 seeking an extension of time to register. The respondent was, therefore, aware as to the reason why the applicant did not make its renewal application by 29 June 2019. I accept the evidence from the applicant and consider that it justifies the delay in making the application.
Next I deal with prospects of success. The respondent does not contend that the applicant does not have good prospects of success. The respondent is neutral in that regard. The applicant says that it does have good prospects of success because it has satisfied the respondent with respect to the Cert IV application, and it has otherwise been audited with no adverse consequences. I am not in a position to decide whether the applicant has good prospects of success, but I note that there is no evidence to the contrary, and what little evidence there is suggests that it may have good prospects of succeeding.
Next I deal with prejudice. I do not accept that the respondent will suffer any real prejudice if the application is granted. I do not consider that it may set a precedent for other registered training organisations seeking a shorter period because the circumstances of this case are so unusual. If the application is granted then it merely enables the applicant to bring its renewal application and to have it considered in the usual way. If the application is not granted then there would be significant prejudice to the applicant’s business operations which would cease, impacting the employment of at least six or seven persons.
Next I consider the issue of whether the applicant rested on its rights. The applicant advised the respondent of its position on 4 April 2019 and then made its request for a shorter time period as soon as reasonably practicable after finding out that the respondent was prepared to reverse its earlier decision to reject the Cert IV application. There is nothing unreasonable about that approach.
I am satisfied that the applicant has established good grounds for its application. The decision of the Tribunal then is to set aside the decision made by the respondent on 9 September 2019 and to substitute in its place a decision that the applicant was entitled to make its application for renewal within a shorter time period, expiring on 4 September 2019.
END OF ORAL DECISION
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