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

NCAT Administrative and Equal Opportunity|2025-09-26

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.
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.
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.
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.

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.

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.
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.
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.
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.
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.
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.
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.
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.

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.

Traineeship Act 2001

Decisions Review Act 1997

Administrative Decisions Review Act 1997

Civil and Administrative Tribunal Act 2013

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: Shi v 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.

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.
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.
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.
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, "

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

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