International School of Professional Skills Pty Ltd and Australian Skills Quality Authority

[2012] AATA 287

[2012] AATA 287

Division	GENERAL ADMINISTRATIVE DIVISION
File Number(s)	2012/0488
Re	International School of Professional Skills Pty Ltd
APPLICANT
And	Australian Skills Quality Authority
RESPONDENT

DECISION

Tribunal	Deputy President J W Constance
Date	16 April 2012
Date of written reasons	11 May 2012
Place	Melbourne

The decision under review, being the decision of the Australian Skills Quality Authority made 27 January 2012 to reject the application of International School of Professional Skills Pty Ltd for renewal of its registration as a registered training organisation, is affirmed.

.........[sgd J W Constance].............

Deputy President J W Constance

CATCHWORDS

EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS – National Vocational Education and Training Regulator Act 2011 – Registered Training Organisation – the Standards for NVR Registered Training Organisations – non-compliance – application for renewal of registration denied – decision under review affirmed

LEGISLATION

National Vocational Education and Training Regulator Act 2011 ss 17(2), 21, 22(1), 22(3), 155, 199, 203

CASES

Drake v The Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577

REASONS FOR DECISION

Tribunal:  Deputy President J W Constance

Date of Written
Reasons:  11 May 2012

INTRODUCTION

1. Between 1 July 2011 and 13 February 2012, the applicant company was a registered training organisation registered by the National VET Regulator under the National Vocational Education and Training Regulator Act 2011.  The acronym VET is used throughout the Act; it stands for Vocational Educating and Training.[1]  The respondent authority is the National VET Regulator established by section 155 of the Act.

   [1] Section 3 of the Act.

2. On 18 November 2011 the Company applied to the Authority for renewal of its registration under the Act.  On 27 January 2012 the Authority advised the Company that its application for renewal was rejected.[2]  The Company has applied to the Tribunal for review of this decision as provided by section 199 and section 203 of the Act. 

   [2] Exhibit T1, page 161.

3. For the reasons which follow, I have decided that the decision under review will be affirmed. 

4. In a review before this Tribunal, it is said that the Tribunal stands in the shoes of the decision-maker.  Because of this, I take into account all the material which has been filed, including material filed by the Company shortly prior to the hearing.  This material includes all of the exhibits, being exhibits T1, exhibit A1 and exhibits R1 to R5 inclusive.

5. In Drake v The Minister for Immigration and Ethnic Affairs[3] the High Court said:

   The question for the determination of the Tribunal is not whether the decision which the decision-maker made was the correct or preferable one on the material before him.  The question for determination of the Tribunal is whether the decision was the correct of preferable one on the material before the Tribunal.

   [3] (1979) 24 ALR 577 to 589.

   LEGISLATIVE BACKGROUND

6. Section 17(2) of the Act provides:

   In deciding whether to grant an application, the National VET Regulator must consider whether the applicant complies with:

   (a)   the VET Quality Framework;  and

   (b)   the applicable conditions of registration set out in Subdivision B of this Division.

7. Subdivision B refers to the conditions of registration, and section 21 provides, in part, that:

   An NVR registered training organisation must:

   (a)   comply with the conditions set out in sections 22 to 28.

8. Sections 22 to 28 follow and set out various conditions, including section 22 subparagraph (1) which reads, in part:

   An NVR registered training organisation must comply with the Standards for NVR Registered Training Organisations.

9. Subsection 22(3), provides a definition of the VET Quality Framework.  That definition, in part, means:

   (a)   the Standards for NVR Registered Training Organisations.

10. These standards were made by the Minister for Tertiary Education, Skills, Jobs and Workplace Relations on 26 June 2011.

    FACTS

11. On 18 and 19 August 2011 the Authority conducted an audit of part of the Company’s operation following a complaint lodged in relation to that operation.  The lead auditor was Ms Andrea Bateman and the technical adviser was Mr Michael Frew. 

12. The scope of the audit was said to be “the Standards for NVR Registered Training Organisations.”  The standards audited were the essential standards for continuing registration, being 15, 16, 17, 20, 21 and 24.  The focus of the audit was on three courses provided by the Company, which I will refer to by way of shorthand as 25C, 35C and 48A.  Following this audit, an audit report was prepared by Ms Bateman, and this appears at pages 3 to 10 inclusive of exhibit T1.

13. In the audit report, an audit outcome was set out:

    Audit status as at 18.8.2011.  The organisation has not demonstrated compliance with all compliance requirements reviewed for the audit.  The extent of non-compliance is considered high when considering the potential for adverse impact on the quality of training and assessment outcomes for students.  The audit report describes evidence of non-compliance identified.

14. Further in the report there is a section headed Audit Conclusion:

    The RTO [registered training organisation] was found to be non-compliant in the following standards which have serious implications for:

    ·      quality of training and assessment;

    ·      ensuring the services agreed to with students are delivered;

    ·      ensuring that individual student rights are protected.

15. Following that statement, there was provided detail of 17 standards in respect of which it was said that the Company was non-compliant.  The audit report also set out in some detail the rectification requirements and required that evidence of rectification be submitted within 20 working days.

16. On 14 October 2011 the Company provided a detailed response to the audit.[4]  On 21 November 2011 the Company lodged an application for renewal of its registration. 

    [4] Exhibit T1 pages 320 to 331.

17. On 19 and 20 December 2011 the Authority conducted a verification audit for the purposes of verifying whether or not the necessary rectification steps had been taken.  The lead auditor was again Ms Bateman, and on this occasion the technical adviser was Mr Peter Parry. 

18. This audit was limited to issues raised in the previous audit.  The audit report following this audit is exhibit T1 pages 132 to 147.  Included in this audit report is the following statement:

    Verification audit 19/12/2011.  The organisation is conducting all of its training in the area of the installation of renewable electrical generation installations in the form of both “grid-connected” and “standalone systems”.  These were associated with the installation of electrical generating equipment that is installed in both commercial and domestic premises.  The majority of this work is required to be carried out by licensed electrical workers and the workers to comply with the relevant state’s electrical safety Acts and National Electrical Standards, eg, AS/NZS3000.  The CEO confirmed that the target group is mostly electricians, although non-electricians do undertake the programs.  The focus of the grid-connection program delivery is on the following units:  UEENEEKO25C, UEENEEKO48A, UEENEEKO35C, as well as UEENEEKO23B.

19. The audit outcome is stated to be:

    Audit status following additional evidence received 19.12.2011.  The organisation has not demonstrated compliance with all compliance requirements reviewed for the audit.

20. The report was signed by Andrea Bateman, and is dated 30 December 2011.  The audit conclusion deals in considerable detail with each of the standards with which it is said the Company continued to be non-compliant. 

21. An audit outcome decision record was also issued by the Authority and signed by Ms Mulcahy and dated 5 January 2012.  Included in that decision record were the following, in part:

    An audit to verify all non-compliances has been rectified was conducted at the site in Spotswood, Victoria on 19 and 20 December 2011, and the RTO submitted photographs of the facilities and equipment at its site in Parramatta, New South Wales.  For this audit Mr Parry, a technical adviser from Electro Comms and Energy Utilities Industry Skills Council Limited, accompanied the auditor.[5]

    [5] Paragraph 9.

22. The audit findings are recorded as follows:

    International School of Professional Skills Proprietary Limited has not complied with the following National VET Regulator essential standards for continuing registration.

23. The decision record then lists the particular standards in respect of which it is said the Company continues to be non-compliant and provides a statement in relation to each of those standards. 

24. The recommendation of the report is as follows:

    The application for renewal of the registration of International School of Professional Skills Proprietary Limited, which is due to expire on 29 January 2012, is rejected on the grounds that the organisation has failed to comply with the condition of its registration set out in section 22 of the National Vocational Education and Training Regulator Act 2011, compliance with the VET Quality Framework.

25. Ms Bateman provided a statement dated 27 March 2012[6] and gave evidence.  Prior to giving her evidence, Ms Bateman considered the additional material which had been provided by the Company.  I am satisfied that Ms Bateman has the relevant qualifications to conduct the audits which she did and I am satisfied that she is highly qualified and experienced in this field.  Ms Bateman confirmed the opinions expressed in her reports and stated that the facts in those reports were true to the best of her knowledge and belief.  Ms Bateman said that the additional material which she considered, that is, the material provided by the Company, did not change the opinion she expressed. 

    [6] Exhibit R5.

26. Ms Bateman was challenged as to the possibility of conflict of interest and as to the process of the audit.  I do not accept that there has been any conflict of interest in Ms Bateman’s carrying out of her role and, as I explained to the representatives of the Company, this matter is not about the process but is an application in which I have to make a decision afresh.  In any event, I am not satisfied that there was any shortcoming in the process which was adopted.  But again, I stress that this was not the issue that was before the Tribunal. 

27. I accept Ms Bateman as an honest and reliable witness.  She provided a detailed and careful report in each case.

28. Mr Frew provided a statement dated 26 March 2012.[7]  He gave evidence.  He confirmed the opinions attributed to him in the audit report and also stated that his opinions had not changed as a result of considering the additional material provided by the Company. 

    [7] Exhibit R1.

29. I am satisfied that Mr Frew was well qualified to express the opinions he did and was an appropriate technical adviser in these circumstances.  His qualifications included trade qualifications as an electrician holding a current licence and he also held a certificate in electrical engineering.  I accept him as an honest and reliable witness.

30. Mr Parry made a statement dated 26 March 2012.[8]  I am satisfied that Mr Parry was similarly appropriately and well qualified, and I accept him as an honest and reliable witness.  I accept his evidence that he too did not change his opinion, having further considered the additional material supplied.

    [8] Exhibit R4.

31. Ms Mulcahy provided a statement dated 28 March 2012[9] and gave evidence.  She confirmed the contents of the audit outcome decision record to which I have referred.  She was cross-examined as to procedural matters which were not relevant to these proceedings.  I accept her as an honest and reliable witness and accept that the outcome report was prepared by her and accurately stated the information she had available to her.

    [9] Exhibit R3.

32. Mr Glen Ryan gave evidence on behalf of the Company.  He provided a report dated 23 February 2012.[10]  Mr Ryan gave evidence.

    [10] Exhibit T1 pages 169 to 178.

33. I accept, Mr Ryan’s evidence that he attended the premises of the Company and prepared his report in response to the audit report which followed the audit carried out on 19 and 20 December 2011.  Mr Ryan said, and I accept, that he was provided by the Company all of the material he considered necessary to provide the report. 

34. Mr Ryan was, in my opinion, appropriately qualified to provide the report.  His qualifications, as listed in his CV, are as follows:  Bachelor of Economics from Monash University;  Diploma of Education, State College of Victoria;  Graduate Diploma of Business (Accounting), Deakin University;  and Certified Practicing Accounting, CPA Australia.

35. Mr Ryan has experience as a partner in a consulting firm which provided a range of consulting services in vocational education and training to aspiring and current registered training organisations in Australia.  From 1997 to 2007 he was a training recognition consultant recognised by the Office of Training and Tertiary Education in Victoria.  He has conducted, in his words, “hundreds of audits” and he has been a National Audit and Registry Agency endorsed quality consultant and lead auditor from June 2009 up to December 2010.  Mr Ryan gave evidence confirming his report, which stated that all non-compliance identified in the audits relied upon by the Authority have been remedied.

    ISSUES

36. The issues in this matter, the issues as to non-compliance relate generally to three areas:  (1) the training staff, (2) the facilities and (3) the assessment procedures. 

37. Turning now to consider these issues, apart from Mr Ryan’s stated opinion the Company is now compliant in all respects, the main challenge to the Authority’s evidence related to the need for the trainer to have qualifications of a licensed electrician to teach the necessary courses.  The Company relied on the evidence of Mr Ryan; however, in this regard I prefer the evidence of Mr Parry, who had greater experience as to the technical nature of the work required.  I am satisfied on the evidence – and there is no dispute as to this – that Mr Humayoun, who provided the training, was not a licensed electrician.

38. I also note in considering this matter that no further evidence was provided by the Company and in particular Mr Humayoun did not give evidence. 

39. I prefer the evidence of the Authority’s witnesses.  The audit reports provided by the Authority were detailed and followed two days of attendance at the premises prior to each report.  Ms Bateman was eminently well qualified to carry out the audit and was assisted by two well qualified technical advisers.  I prefer this evidence to that provided by Mr Ryan, who did not provide to the Tribunal the detail in his report to justify his opinions and did not provide the material, or even a summary of it, on which he had relied.  In addition, he was not as well qualified as, and did not have the technical support provided to, Ms Bateman.

40. Even though the major dispute at the hearing before me was as to Mr Humayoun’s qualifications, even had I decided that he was appropriately qualified, the remaining issues would still have led me to the conclusion that the decision under review should be affirmed.  There were many other standards which, on the evidence before me, were not met, other than the one relating to the qualifications of Mr Humayoun. 

    DECISION

41. For these reasons, the decision under review, being the decision of the Australian Skills Quality Authority made 27 January 2012 to reject the application of International School of Professional Skills Proprietary Limited for renewal of its registration as a registered training organisation, will be affirmed.

42. This is an edited transcript of oral reasons for decision which I gave on 16 April 2012.  I gave oral reasons by reason of the stated urgency of the matter and the effect of the Authority’s decision on the business of the Company.

I certify that the preceding 42 (forty two) paragraphs are a true copy of the reasons for the decision herein of Deputy President J W Constance.

......[sgd]..................................................................

Associate

Dated 11 May 2012

Dates of hearing	2, 3, 4 and 16 April 2012
Advocate for the Applicant	Mr A Humayoun & Mr P Rigoli
Advocate for the Respondent	Mr P Cribb, departmental advocate