Australian Industrial Systems Institute (Sydney) Pty Ltd v NSW Vocational Education and Training Accreditation Board

[2009] NSWADT 324

CITATION:	Australian Industrial Systems Institute (Sydney) Pty Ltd v NSW Vocational Education and Training Accreditation Board [2009] NSWADT 324
DIVISION:	General Division
PARTIES:	APPLICANT Australian Industrial Systems Institute (Sydney) Pty Ltd RESPONDENT NSW Vocational Education and Training Accreditation Board
FILE NUMBER:	083331
HEARING DATES:	17 and 19 June 2009, 7 August 2009
SUBMISSIONS CLOSED:	21 August 2009
DATE OF DECISION:	24 December 2009
BEFORE:	Hennessy N - Magistrate (Deputy President); Blake C - Non-Judicial Member
CATCHWORDS:	Application to be registered as a registered training organisation – approval to provide courses to overseas students – registered training organisation standards and conditions – Australian Quality Training Framework Essential Standards for Registration - Vocational Education and Training Act 2005
LEGISLATION CITED:	Vocational Education and Training Act 2005 Administrative Decisions Tribunal Act 1997 Motor Vehicle Repairs Act 1980 Apprenticeship and Traineeship Act 2001
CASES CITED:	Suzanne Frugtniet v Administrative Decisions Tribunal (Appeal Panel) & Anor; Brian Frugtniet v Administrative Decisions Tribunal (Appeal Panel) & Anor [2005] NSWCA 257
REPRESENTATION:	APPLICANT J Reid, solicitor RESPONDENT P Cribb, solicitor
ORDERS:	The decision of the NSW Vocational Education Training and Accreditation Board to refuse to register Australian Industrial Systems Institute (Sydney) Pty Ltd as a training organisation is affirmed.The decision of the NSW Vocational Education Training and Accreditation Board to refuse to approve Australian Industrial Systems Institute (Sydney) Pty Ltd to provide courses for overseas students is affirmed.

REASONS FOR DECISION

Introduction

1 On 16 August 2007 Australian Industrial Systems Institute (Sydney) Pty Ltd (AISI) applied to the NSW Vocational Education and Training Accreditation Board (the Board) to be registered as a registered training organisation (RTO): Vocational Education and Training Act 2005 (VET Act): s 11. When deciding whether to register AISI consideration was also given to the courses that AISI proposed to deliver. AISI proposed to deliver seven courses, four of which related to automotive technology: VET Act, s 25. AISI also sought approval to provide all the courses to overseas students: VET Act, Part 4. The Board refused to register AISI and refused to approve it to provide courses to overseas students. AISI applied to the Tribunal for a review of those decisions: VET Act, s 47.

Legislative scheme

2 The VET Act sets out the following objects in s 3:

(a) to establish a registration and accreditation framework for vocational education and training, in particular by applying nationally agreed standards,

(b) to ensure the quality and integrity of vocational education and training in this State,

(c) to provide for the approval by the Board of persons (other than official universities) to provide courses for overseas students (such approval forming the basis for registration under the Education Services for Overseas Students Act 2000 of the Commonwealth),

(d) to promote consistency of standards in vocational education and training,

(e) to encourage the recognition of vocational courses that are accredited under this Act.

3 The Board is established by s 5 and has functions including the registration of training organisations, the accreditation of vocational courses and the approval of persons to provide courses for overseas students. The Board may also issue guidelines in relation to those matters: s 32 and s 40. In addition, the Board is ‘to liaise with authorities and other bodies (both in New South Wales and elsewhere) in connection with the registration of training organisations, the accreditation of vocational courses and the approval of persons to provide courses for overseas students’: s 6.

4 Among other things, the Board may register an organisation only if it is satisfied that the applicant complies with the Registered Training Organisation (RTO) standards: VET Act, s 12(3)(c). The RTO standards are the AQTF Essential Standards for Registration found in AQTF 2007. There are three broad standards each containing specific elements. These standards include six Conditions of Registration. The Users’ Guide to these standards explains how the standards should be interpreted and applied. All RTO’s are audited and assessed against these standards. As well as needing to be satisfied that an applicant complies with the RTO standards (including the conditions) the Board ‘is to have regard to’ the registration and accreditation guidelines issued by the Board under s 32: VET Act, s 12(2).

5 After auditing AISI, the Board found it to be non-compliant with the RTO standards and guidelines. Having come to that conclusion, the Board did not go on to fully assess whether AISI should be approved to provide courses to overseas students.

AISI’s application

6 Ms Tsiolas is the Chief Executive of AISI. She completed the application for registration and for approval to provide vocational courses to overseas students. If registered, AISI proposes to provide the following courses:

a) certificate IV in English as a second language;
b) certificate III in automotive electrical technology;
c) certificate II in automotive mechanical technology;
d) certificate IV in automotive technology;
e) diploma of automotive technology;
f) diploma of community welfare work; and
g) diploma of business management.

7 These qualifications relate to training packages or accredited courses. Our understanding is that the Certificate IV in English as a Second Language is an accredited course while the remaining courses relate to training packages. The four automotive courses relate to the Automotive Industry Training Package, AUR05. A training package is defined in s 4 of the VET Act to mean ‘an integrated set of competency standards and assessment guidelines leading to a qualification for a particular industry, industry sector or enterprise’. Training packages are endorsed by the relevant Commonwealth agency and recorded on the National Register. An accredited course is a course of education and training recorded on the National Register.

8 Ms Sarah Dew and Mr Terry Everitt were appointed as auditors and a site audit was undertaken on 10 and 11 March 2007. Additional information was provided on 10 December 2007 and the first report was sent to AISI on 14 April 2008. It identified numerous instances of non-compliance. AISI provided further information on 1 May 2008. On 5 June 2008 the Board gave AISI notice of its proposed decision to refuse its application for registration and approval and provided AISI with a further audit report, which identified areas of non-compliance. Following a meeting with representatives from AISI on 16 June 2008, the Board proposed to refuse the application for registration. AISI submitted further evidence on 11 July 2008. On 31 July 2008 the Board produced an audit report recommending that AISI’s application for registration as an RTO be refused. On 8 August 2008 the Board gave AISI notice of its decision to refuse the application for registration and approval. AISI requested an internal review of that decision.

The internal review decision

9 The internal review decision was provided under cover of a letter dated 14 October 2008 which summarised ‘the most serious areas of non-compliance’. Attached to this letter was the internal review document dated 26 September 2008. In that document Ms Jan Kofron set out the key findings on internal review. AISI provided further evidence following the internal review.

Issues

10 The issue is whether the Board’s decisions are the ‘correct and preferable’ decisions: ADT Act, s 63. In determining that issue, the Tribunal must have regard to the material then before it, including any relevant factual material and any applicable written or unwritten law: s 63(1). The Tribunal ‘stands in the shoes’ of the Board and may exercise all of the functions that are conferred or imposed on the Board: ADT Act, 63(2). The Tribunal may affirm, vary or set aside the Board’s decisions. 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: ADT Act, s 73(2).

11 Before making a decision that AISI should be registered as an RTO, the Tribunal must:

a) be satisfied that it complies with the RTO standards (including the conditions of registration); and

b) have regard to the registration and accreditation guidelines.

12 The main standards and conditions with which the Board said AISI did not comply were 1.2, 1.3, 1.4, 1.5, and Condition of Registration 6.

Standard 1.2 - Strategies for training and assessment

13 Standard 1.2 states that:

The Registered Training Organisation provides quality training and assessment across all of its operations.

1.2 Strategies for training and assessment meet the requirements of the relevant Training Package or accredited course and are developed in consultation with industry stakeholders.

14 There are two parts to this requirement: first, the strategies for training and assessment must meet the requirements of the relevant training package and secondly, they must be developed in consultation with industry stakeholders. In relation to the seven qualifications that AISI applied to provide, the most significant issues that remain in relation to Standard 1.2 are whether:

1. The Automotive Courses:
a) are of sufficient duration to meet the requirements of the training package;

b) will ensure that students have sufficient opportunity to learn the requisite skills in a realistic workplace setting in order to demonstrate competence according to the requirements of the training package; and

c) were developed in consultation with industry stakeholders;
2. The Diploma of Business Management:

a) complies with the standards in circumstances where it contains 20 units of competency, rather than 8.

Description of Automotive courses

15 A short description of each course is set out below:

a) Certificate III in Automotive Electrical Technology: this qualification is designed to provide students with a grounding in the theoretical and practical knowledge required for servicing and repairing motor vehicles. Specifically, a student receives training in installing, maintaining, diagnosing faults and repairing electrical wiring and computer-based equipment in cars, trucks, caravans, trailers, earthmoving and agricultural equipment and boats.

b) Certificate II in Automotive Mechanical Technology: this qualification is designed to provide students with a grounding in the theoretical and practical knowledge required for servicing and repairing motor vehicles. Specifically, a student receives training in servicing and repairing the mechanical parts of motor vehicles such as engines, transmissions (clutch, gearbox and differential) and suspension systems. Also includes training in repairing and servicing cooling systems, final drive assemblies, steering and brake systems, electronic engines, body and drive management systems.

c) Certificate IV in Automotive Technology: this qualification is designed to expand students’ knowledge of vehicle systems. Students who gain this qualification may be employed as a technical supervisor, service manager, workshop manager or vehicle performance technician.

d) Diploma of Automotive Technology: this qualification provides a student with skills and knowledge for use within the automotive retail, service and repair sector of the automotive industry. Students who acquire this qualification may be employed as an automotive specialist technician, diagnostic specialist or fixed operations manager.

Background

16 Currently in NSW the major pathway to employment in the vehicle repair industry is by way of an apprenticeship which includes a traineeship course delivered through Technical and Further Education (TAFE), rather than through private RTOs. Apprentices are generally employed for four years. During the first three years, they attend their employer’s place of business for 4 days a week and the premises of an RTO (TAFE) for one day a week. The qualification that an apprentice receives after those 4 years is the same Certificate III qualification that AISI wishes to provide. We understand that the courses AISI is proposing to offer would be the first of their kind offered by a private RTO in New South Wales.

17 After receiving the Certificate III, an apprentice can apply under the Motor Vehicle Repairs Act 1980 (MVR Act) to the Motor Vehicle Repair Industry Authority for a tradesperson’s certificate in respect of a particular class of repair work: s 24. A person cannot be employed to do any repair work unless he or she holds a relevant tradesperson’s certificate. The Authority determines the qualifications and experience that are adequate for a certificate to be awarded: s 24(3)(b)(ii). The Authority must assess each application for a trade certificate on its own merits. It is not known whether the Authority would be satisfied that the automotive courses proposed by AISI would be sufficient to justify the awarding of a tradesperson’s certificate. If not, those completing the AISI automotive courses could not be employed to do repair work.

18 There is provision in s 25 of the MVR Act for a provisional trade person’s certificate to be issued if the Authority is satisfied that the individual has acquired or is capable of acquiring the skills that will enable him or her to meet the requirements in respect of that class of repair work. AISI conceded that the Authority may require further on-the-job training before issuing an unconditional certificate to graduates of its courses. However, AISI submitted that the automotive courses it proposes to provide are not a substitute for the apprenticeship scheme. While those qualifications may lead to a person applying for a tradesperson’s certificate, there are other options available to students on completion of the course, such as entry into university courses.

19 On 16 June 2008 employees of the Board met with Ms Tsiolas and two employees of AISI. Ms Tsiolas agreed that she would contact Ms Joyce, Executive Officer, Automotive Training Board NSW to seek advice on the automotive industry’s requirements and on all licensing requirements. The Automotive Training Board provides advice on behalf of the automotive industry to government on future training needs and training policy. Ms Joyce’s advice was that the courses were not long enough and did not include sufficient time in a real workplace to allow a student to acquire the relevant competencies.

Requirements of the relevant training package

20 The AQTF 2007 Users’ Guide to the Essential Standards of Registration provides advice on how to achieve the standard. In particular, it provides that the training programme should include information about ‘the mode of delivery to be used (for example online, classroom, on-the-job)’, ‘the facilities and equipment that will need to be available or accessed, including industry placement arrangements, simulated work environments to be used and agreements for the use of resources and facilities.’ The training package (AUR05) does not provide a timeframe in which automotive courses must be completed. Rather, it identifies competencies that must be achieved. It was not in dispute that there are nationally agreed nominal hours for each course in a training package. The proposed automotive courses are in accordance with those nominal hours, as are the courses offered by TAFE NSW to apprentices.

21 Having obtained advice from industry representatives, the Board’s most significant concerns were that the proposed courses did not comply with the automotive industry training package because the nominal hours for course delivery were insufficient and there would not be an adequate opportunity to develop the level of practical competency required by the training package and industry.

Duration of the course

22 Ms Tsiolas’ evidence was that the Certificate III course would be provided by AISI for 20 hours per week over 52 weeks. The 52 weeks are not consecutive and the course could take up to 18 months to complete. Students would attend 3 days per week, 2 days (16 hours) at the premises in Surry Hills and 1 day (4 hours) at a commercial workshop in Parramatta. Given the view of industry representatives and the significant disparity between the time currently spent by apprentices and the proposal from AISI, the Board concluded that the proposed training was simply not long enough for students to develop the level of competency required by the automotive industry training package. That view was expressed by Ms Dew in her initial audit report, by Ms Duffy in her audit report and by Ms Kofron in the internal review decision. Ms Dew acknowledged that in making its determination the Board had regard to the views of Ms Joyce. Those views were expressed in a letter dated 13 August 2008 addressed to Ms Tsiolas:

I fail to see . . . how a program that contains 36 technical units of competence can be validly delivered and assessed within a 12 month time frame, particularly in light of the majority of your program being delivered in a simulated environment.

The duration of your program in light of its limited time within an actual workplace does not adequately reflect the hours needed to acquire these capabilities to current industry standards.

A typical automotive student would undertake 6432 on-the-job hours to achieve an AQF certificate level III outcome. From material sent by yourself regarding the program, a student is only undertaking 20 hours per week, which over a 48 week period. . . enable student to gain 960 hours of study. As you can appreciate, this is starkly different to the pattern of study undertaken by typical automotive student.

23 Ms Joyce gave evidence before the Tribunal as an individual, not as an expert, and did not purport to represent the view of the Automotive Training Board. Nevertheless, she is employed by that Board and her view is that of an industry representative. Further correspondence from the Motor Traders’ Association of NSW dated 11 August 2008, Automotive Group Training (NSW) dated 13 August 2008 and Institute of Automotive Mechanical Engineers (Inc) was in evidence. Each of these communications expressed similar opinions to that expressed by Ms Joyce.

24 AISI’s response to these concerns was that the apprenticeship scheme and the automotive courses are not comparable. According to AISI, the difference in the apprenticeship scheme is that it offers on-the-job experience in addition to the training required to achieve the competencies in the training package. Successful completion of the TAFE course is not dependent on the work experience gained on-the-job as that work experience is not assessed by the RTO (TAFE) as part of the course. It is regarded as employment pursuant to the Apprenticeship and Traineeship Act 2001.

Real environment

25 Ms Tsiolas’ evidence was that students would be in a real workplace for 4 hours a week in groups of 15. The workplace nominated by Ms Tsiolas is the Australian Transmission Centre, a commercial workshop in North Parramatta. The Centre specialises in automatic transmissions but, according to Ms Tsiolas, ‘they do everything’. The Board has not conducted a site visit to assess its suitability as an environment for students to undergo practical training because the premises AISI initially nominated were at another location. Ms Tsiolas provided a print out from the Centre’s internet site and a copy of an agreement between AISI and the Centre dated 14 June 2008. The agreement contemplated a start date of 1 June 2008 and allowed AISI to use the workshop for up to 40 hours per week, Monday to Friday. According to Ms Tsiolas, the students would have access not only to the AISI trainer but also to qualified mechanics who would have input on the tasks that the students undertake but not their assessment. There is nothing in the agreement relating to participation by any employees of the Australian Transmission Centre.

26 Ms Tsiolas says that although up to 15 students would be in the workshop at any one time, the students would be broken into smaller groups of 3 or 5 with a trainer ‘floating’ between the groups. Ms Tsiolas characterised this experience as an extension of the classroom rather than as a work placement or work experience. AISI emphasised that the work experience component undertaken by an apprentice in a real work environment does not form part of the nationally consistent training package and that a related company in Melbourne offers the same course in a wholly simulated environment.

27 Ms Joyce anticipated that because the students would be with a trainer rather than being supervised in a ‘real’ workplace environment, they would not be able to gain the necessary competencies. In the letter dated 13 August 2008 she expressed the view that:

Within the workplace, an individual has repeated exposure to specific situations and a number of variables, which ultimately allows them to demonstrate their competence.

A simulated environment may be used under the automotive industry training package RS & R AUR05 but does not replicate a typical workplace, which allows for a far greater variety of experiences and problems that may arise on a daily basis.

28 Ms Joyce acknowledged that the training package permits a simulated environment to be used.

29 Ms Tsiolas listed several other registered training organisations that offer automotive courses in a period of 52 weeks or less. These courses are offered in Queensland and Victoria. Ms Tsiolas gave evidence that a company related to AISI has successfully applied to the Victorian Registration and Qualifications Authority (the Victorian equivalent of the Board) for registration. That company provides automotive courses which are essentially the same as those which are the subject of this application. Under the AQTF national recognition scheme, that company is permitted to offer those qualifications in New South Wales without any further application to the Board. Ms Tsiolas said that that company has not applied for registration in New South Wales because there is a difference in the shareholders of AISI and the Melbourne company and the approval of the Board would still be required before those courses could be provided to overseas students.

Courses are developed in consultation with industry stakeholders

30 The Board considered that AISI had not complied with this part of the standard because its proposed strategies for training and assessment were not supported or endorsed by Ms Joyce and other industry representatives. Correspondence between Ms Tsiolas, Ms Joyce and various industry stakeholders were in evidence. In particular, Ms Tsiolas says that following feedback from Ms Joyce, she decided to offer students practical activities in a so-called ‘real work’ environment at a commercial workshop. Ms Tsiolas also gave evidence that she consulted with the Higher Education industry including several universities about their willingness to recognise the qualification. There was no documentary evidence of any agreement with any university.

Conclusion

31 There is no formal onus of proof on either party. We must assess the relevant evidence and determine whether we are satisfied that AISI complies with Standard 1.2: VET Act, s 12(3)(c). There is no express requirement in the standard or the relevant training package that the automotive courses be of a particular duration or that they take place in a particular environment. However, both the duration and the environment must meet the requirements of the automotive industry training package in the sense that it is realistic for students to achieve the relevant competencies in the designated time frame and environment.

32 There is also an express requirement that courses be developed in consultation with industry. While Standard 1.2 does not require that industry endorse the strategies for training and assessment, the Users’ Guide states that ‘industry engagement and support is evident in the development of all training and assessment strategies.’ In order to determine whether the automotive courses proposed by AISI met the relevant standards, the Board requested that Ms Tsiolas consult with industry representatives. Those representatives expressed a firm and unanimous view that the courses did not meet the relevant standards. Ms Tsiolas modified the nature of the environment in which students would be taught practical skills. Nevertheless, various individuals and organisations within the automotive industry do not support the courses being provided in the way AISI proposes. AISI’s response to those views was firstly that any comparison with the duration of the course and the environment experienced under the apprenticeship scheme was not valid. Secondly, other RTOs had been registered to provide the same courses under similar conditions in Victoria.

33 We agree that the apprenticeship scheme is not directly comparable to the automotive courses that AISI proposes to deliver. Nor is the 4 year apprenticeship model the only means by which a person is able to gain the competencies identified in the automotive training package. However, given that both pathways can result in the conferral of a Certificate III in automotive electrical technology, some comparison is justified. Even taking into account the obvious differences between the two pathways, the significant disparity in the length of time taken to complete the qualification and the environment in which practical skills are learnt has given industry representatives cause for concern. We are not persuaded by AISI’s responses to these concerns. The fact that similar courses are being offered in Victoria merely means that another government agency has taken a different view to that taken by the Board. We have not had the benefit of any expert evidence from either the Board or AISI on this issue. It may well be that those competencies can be gained in an alternative way in less time. However, in this case, there is simply not enough evidence to satisfy us that the strategies for training and assessment for the automotive courses meet the requirements of the relevant training package. We are also of the view that despite engagement with industry, the continuing lack of support from industry means that AISI is not compliant with Standard 1.2. This conclusion makes it unnecessary to examine in detail the other ways in which the Board submitted that the automotive courses did not comply with the RTO standards.

The Diploma of Business Management

34 AISI’s proposed learning and assessment strategy requires a student to complete 20 units of competency however, according to the Board, the qualification packaging rules in the training package only require a student to complete eight units of competency. Packaging rules are guidelines or restrictions that apply to the way individual competencies from a training package are packaged into a course or learning program. The packaging rules for the Diploma of Business Management are set out in the BSB01 training package as follows:

Requiring eight units for the qualification

a minimum of five units from the strategic management domain listed below
and three units from the business services training package or any other endorsed training package, of which a minimum of two units must be from a diploma qualification and one unit may be included from a certificate IV or advanced diploma qualification
units from other training packages must not duplicate units selected from the business services training package
all units selected must contribute to and combine to form a work outcome

35 Ms Dew’s evidence was that the words ‘requiring eight units’ mean that the maximum number of units that can be provided is eight units. AISI submitted that Ms Dew has read words into the rules which do not exist. According to AISI, it is clear that the rule is based on a minimum requirement rather than a maximum and therefore a provider is able to ‘value add’ to the qualification.

36 Conclusion. The words ‘requiring 8 units’ when interpreted in context mean that exactly 8 units are required. There is no qualification to the requirement for 8 units. The phrase ‘a minimum of 5 units from the Strategic Management domain’ when interpreted in context mean that at least 5 of the 8 units must come from that domain. On the basis of the wording in the packaging rules and the evidence of Ms Dew, the Diploma of Business Management that AISI seeks to provide does not comply with Standard 1.2 because it does not comply with the packaging rules in the training package.

The Diploma of Community Welfare Work

37 In relation to the work placement component of this course, Ms Tsiolas said she has an agreement with St Basil’s Homes that students would go with a trainer to locations run by that organisation. Students would observe various activities at the Homes but would not provide any services to residents. Ms Tsiolas conceded in cross-examination that the arrangements she has proposed do not comply with the Work Placement Guidelines for the Diploma of Community Welfare to Work (Annexure Q to Ms Tsiolas’ affidavit). Those Guidelines were developed to provide information to RTOs about the work placement component required for the Diploma of Community Welfare Work. They state that RTO’s must select suitable work/field placements and provide detailed information to the Board in relation to those placements.

38 The Guidelines were introduced in July 2008, nearly a year after AISI applied for registration. AISI submitted that compliance with the guidelines is not relevant when considering the decision of the Board to refuse registration because they had not been promulgated at the time of the original decision on 31 July 2008.

39 Conclusion. AISI’s submission is not correct for two reasons. Firstly, the decision which the Tribunal is reviewing is the internal review decision made in September 2008. That decision was made after the Work Placement Guidelines had been promulgated. Secondly, when reviewing a decision the Tribunal is to have regard to the material then before it including any relevant factual material and any applicable written or unwritten law: ADT Act, s 63(1). The Court of Appeal has held that, ‘[S]uch an inquiry cannot be confined within the particulars of the reason, ground or matter specified in the original notice or notices.’ Suzanne Frugtniet v Administrative Decisions Tribunal (Appeal Panel) & Anor; Brian Frugtniet v Administrative Decisions Tribunal (Appeal Panel) & Anor [2005] NSWCA 257 (5 August 2005) at [45]. We have assumed that these guidelines have been issued by the Board pursuant to s 32 of the VET Act and that the Board must have regard to them when deciding an application to register an organisation: s 12(2). Ms Tsiolas did not submit that the Guidelines were irrelevant, merely that they were not applicable. In our view, the Guidelines are applicable and AISI has conceded that it does not comply with them.

Standard 1.5 Learning, Delivery and Assessment Strategies

40 AQTF 2007 Standard 1.5 states that:

Assessments, including recognition of prior learning:
(a) meets the requirements of the relevant training package or accredited course,
(b) is conducted in accordance with the principles of assessment and the rules of evidence, and
(c) meets workplace and, where relevant, regulatory requirements.

Certificate IV in English as a Second Language (ESL)

41 Neither party referred to this qualification in their written submissions. This is an accredited course rather than a training package. In the internal review decision, the only relevant statement is that there is no evidence of permission to deliver the Victorian owned course. In the audit report prepared by Ms Duffy, the following finding is made;

It is unclear how trainer/assessor would gain sufficient information from the learning and assessment strategies to guide them in the development of quality training delivery and assessment. The learning and assessment strategies are not compliant in that they do not specify the evidence gathering techniques to be used to collect sufficient evidence of competence.

42 In response to that finding, AISI submitted that the evidence gathering techniques are set out in the ‘Learning Delivery and Assessment Strategies’ in the following terms:

In the design and conduct of assessments, assessors must ensure that they are familiar with the full text of the unit(s) of competency being assessed. In particular assessors must ensure that the assessment arrangements cover all elements of the unit of competency being assessed; address the four dimensions of competency, namely; task skills, task management skills, contingency management skills and job/role environment skills; are consistent with the Evidence Guide for the relevant unit of competency as this specifies the context of assessment, the critical aspects of competency, the required underpinning knowledge and skills and the identification of Key Competencies and their performance levels. In some cases there may be a reference to having access to real workplace conditions and infrastructure. (See Exhibit RT2 to the statement of Roula Tsiolas dated 3 March 2009, Vol 3, Tab 39, p 52, footnote 2)

43 Again, in the absence of any further information or any expert evidence, there is insufficient evidence to allow us to be satisfied that AISI complies with Standard 1.5 in relation to the Certificate IV in ESL.

44 Having found that none of the courses AISI proposes to provide comply with the RTO standards and guidelines, it follows that the decision not to register that organisation as an RTO was the correct decision. Nevertheless, for completeness, we go on to consider the three main remaining grounds on which registration was refused.

Standard 1.4 – attributes of trainers and assessors

45 The relevant standard in relation to staffing is Standard 1: ‘The RTO provides quality training and assessment across all of its operations.’ Element 1.4 states that:

Training and assessment is delivered by trainers and assessors who:

(a) have the training and assessment competencies determined by the National Quality Council or its successors,
(b) have the relevant vocational competencies at least to the level being delivered or assessed,
(c) continue to develop their vocational and training and assessment competencies to support continuous improvements in the delivery of RTO services.

46 AISI conceded that because it is now two years since the original application for registration was made, they have not offered employment to trainers or assessors. The Board cannot assess the competencies of prospective trainers or assessors if it does not know who they are. AISI has proposed that if it otherwise complies with the requirements for registration, a condition be placed on its registration requiring compliance with element 1.4 two months prior to any courses commencing. AISI has suggested that compliance would involve providing the Board with the original qualifications of trainers and assessors in relation to training and assessment competencies and vocational competencies.

47 AISI does not comply with Standard 1.4 relating to the attributes of trainers and assessors. If this were the only impediment to registration it would be appropriate, in the circumstances, to impose a condition on registration as foreshadowed by AISI. However, as we have found the decision not to register AISI was the correct decision, there is no need to do so.

Condition 6: Statements of Attainment and Testamurs

48 Condition 6 of the AQTF 2007and the Board’s Guidelines on AQF certification relates to issuing of qualifications and statements of attainment:

The RTO must issue to persons whom it has assessed as competent in accordance with the requirements of the training package or accredited course, a qualification or statement of attainment (as appropriate) that:
a) meets the Australian qualifications framework (AQF) requirements
b) identifies the RTO by its national provider number from the national training information service

49 The Board submitted that the testamurs and statements of attainment provided by AISI did not contain the Australian Business Number (ABN) or the chief executive officer's name below the signature. In addition certain words from the sample testamur should be removed.

50 AISI submitted that on the basis of Ms Tsiolas’ oral evidence and the evidence of Ms Dew, the amended documents now comply with AQTF standards. However in the Board’s written submissions it is contended that the amended qualifications do not comply. Ms Tsiolas conceded in cross-examination that there was still one error in the revised sample Statement of Attainment. This error was of such a minor nature that if the Tribunal’s decision had been favourable to AISI in other respects, it would not have justified refusing to register AISI or placing any conditions on its registration.

Standard 1.3

51 Standard 1.3 of the AQTF provides:

1.3 Staff, facilities, equipment, and training and assessment materials used by the RTO are consistent with the requirements of the Training Package or accredited course and the RTO’s own training and assessment strategies.

52 Premises at Surry Hills. The final issue relates to whether there is a valid lease in relation to AISI’s premises in Surry Hills.

53 The Board did not indicate the Standard or Guideline which gave rise to this requirement, but we assume that it is Standard 1.3 relating to facilities. Ms Tsiolas gave sworn evidence that a lease was on foot in relation to the third floor of premises in Surry Hills and that AISI is occupying the premises and paying rent. No lease is registered for the third floor on the title. The original lease provided to the Board was not signed by the landlord. AISI has provided a further document entitled ‘offer to lease’, signed by both parties. Ms Tsiolas’ submission was that the document is both an offer to lease and an acceptance of that offer and is, in fact, an agreement to lease. We accept Ms Tsiolas’ evidence that it is her understanding that there is a valid lease because she is paying rent and occupying the premises. Contrary to the Board’s submission, Ms Tsiolas did not intend to mislead the Tribunal in relation to the existence of a lease.

54 The fact that the lease is not registered on the title would not have justified refusing AISI registration if it had been otherwise compliant.

Conclusion

55 AISI applied to the Board for registration as a Registered Training Organisation (RTO). It proposed to provide 7 courses to overseas students. The Board decided not to register AISI or give it the approval it sought. AISI applied to the Tribunal for a review of that decision. We have decided that:

a) AISI does not comply with Standard 1.2 in relation to the automotive courses because the strategies for training and assessment do not meet the requirements of the relevant training package and were not developed in consultation with industry stakeholders;
b) AISI does not comply with Standard 1.2 in relation to the packaging rules for the Diploma of Business Management;
c) The Diploma of Community Welfare Work is in breach of the Work Placement Guidelines for that Diploma;
d) AISI does not comply with Standard 1.5 in relation to the Certificate IV in English as a Second language because the learning and assessment strategies are not compliant;
e) AISI does not comply with Standard 1.4 relating to the attributes of trainers and assessors;
f) AISI complies with Condition of Registration 6 relating to the content of testamurs and statements of attainment; and
g) AISI complies with Standard 1.3 in relation to the facilities at Surry Hills.

Costs

56 The Board applied for costs citing the evidence of Ms Tsiolas in areas such as continuing errors and omissions, the ‘misleading’ conduct in relation to the lease issue and the untenable nature of its position on the ‘automotive’ and ‘8 unit’ issues. The general rule is that each party pays his or her own costs. It is only where the Tribunal is satisfied that it is fair to do so having regard to certain matters, that the Tribunal may award costs: ADT Act, s 88. Those matters are: conducting the proceedings in a way that unnecessarily disadvantages another party; being responsible for prolonging unreasonably the time taken to complete the proceedings; and the relative strengths of the claims made by each of the parties.

57 The Board submitted that some of Ms Tsiolas’ evidence was ‘inconsistent, disingenuous and not to be believed’. The Board also said that her evidence was unsatisfactory because many errors were acknowledged including errors in her own curriculum vitae. AISI submitted that any inconsistencies have not been articulated and Ms Tsiolas’ evidence should be accepted.

58 AISI denies misleading the Tribunal or the Board in respect of the lease and submits that the errors and omissions made by Ms Tsiolas did not disadvantage the Board or prolong the proceedings. As to whether AISI’s position in relation to the automotive courses and the ‘8 unit issue’ were untenable, its submission was that even if it is not ultimately successful, its arguments in relation to those issues was not misconceived.

59 Overall, we find that Ms Tsiolas gave her evidence in a straight forward and honest manner. In many cases she conceded that she had made errors. Those errors were not of a kind which would suggest that she was acting dishonestly. For example, Ms Tsiolas agreed that in her application she left out the brackets around ‘Sydney’ in the name of AISI and characterised AISI as a partnership instead of a company. She did not provide an ABN number until 19 June 2009 and said that she would have to ask her accountant whether the company had an ABN. We have not discounted any of Ms Tsiolas’ evidence on the basis of any inconsistencies or because it was disingenuous.

60 However, it is also apparent that Ms Tsiolas has not been as diligent as she should have been in relation to her application. Some errors and omissions were minor and excusable, while others were more significant. Ms Tsiolas provided further information to support her application at the hearing and, even on the second day of hearing, she was correcting errors and omissions in AISI’s sample testamurs and statements of attainment. She acknowledged that there was still one error in the revised version. While this lack of diligence and attention to detail is regrettable, it does not justify an order for costs.

61 We have not found Ms Tsiolas’ conduct in relation to the lease to be misleading, nor have the errors and omissions made by her unnecessarily disadvantaged the Board or prolonged the proceedings. This is not a case where an award of costs is justified.

The decision of the NSW Vocational Education Training and Accreditation Board to refuse to register Australian Industrial Systems Institute (Sydney) Pty Ltd as a training organisation is affirmed.

The decision of the NSW Vocational Education Training and Accreditation Board to refuse to approve Australian Industrial Systems Institute (Sydney) Pty Ltd to provide courses for overseas students is affirmed.