Oztech Trade Training College Pty Ltd and Australian Skills Quality Authority

[2018] AATA 3741

Oztech Trade Training College Pty Ltd and Australian Skills Quality Authority [2018] AATA 3741 (9 October 2018)

Division:GENERAL DIVISION

File Number(s):      2018/4620

Re:Oztech Trade Training College Pty Ltd

APPLICANT

AndAustralian Skills Quality Authority

RESPONDENT

DECISION

Tribunal:Senior Member A Poljak

Date:9 October 2018

Place:Sydney

The Tribunal orders that:

(1)pursuant to subsection 41(2) of the AAT Act, the decision of the respondent made on 18 July 2018 to cancel the applicant’s registration under section 39 of the National Vocational Education and Training Regulator Act 2011 (Cth) (complete with the legal obligations set out in the notification letter dated 25 July 2018) is stayed until the decision of the Tribunal on the application for review comes into operation or until further order;

(2)pursuant to subsection 41(2) of the AAT Act, order (1) is subject to the condition that the applicant shall not issue any qualifications or enrol new students in respect of the following courses:

(a)    AHC30916 – Certificate III in Landscape Construction;

(b)    CPC32413 – Certificate III in Plumbing; and

(c)    CPC40912 – Certificate IV in Plumbing and Services; and

(3)pursuant to section 33 of the AAT Act, the Tribunal directs that on or before 31 October 2018, ASQA is to provide to the Tribunal and the applicant particulars, in plain language, of the applicant’s alleged non-compliances and what is required for rectification.

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

Senior Member A Poljak

CATCHWORDS

PRACTICE AND PROCEDURE – application to stay decision of Australian Skills Quality Authority – registered training organisation – decision to cancel registration – merits of substantive matter – consequences if stay refused – stay application granted

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth) s 41(2)

National Vocational Education and Training Regulator Act 2011 (Cth) s 39

CASES

Scott and Australian Securities and Investments Commission [2009] AATA 798; (2009) 51 AAR 114

SECONDARY MATERIALS

Standards for Registered Training Organisations (RTOs) 2015

REASONS FOR DECISION

Senior Member A Poljak

9 October 2018

1. On 8 August 2014, the applicant, Oztech Trade Training College Pty Ltd (“Oztech”), was registered as a ‘NVR registered training organisation’ (“RTO”) under the National Vocational Education and Training Regulator Act 2011 (Cth) (“NVR Act”) for a period expiring on 8 August 2019. At the present time, Oztech is registered to assess, and in some instances deliver, the training of 27 courses and 3 units of competency. It employs approximately 12 staff to provide training and assessment of the courses and units of competency at training facilities in Liverpool. The number of students enrolled in various courses at this time is approximately 977.

2. In these proceedings, Oztech is seeking a stay of a decision of the respondent dated 18 July 2018 (and notified to Oztech on 25 July 2018), cancelling Oztech’s registration as a RTO under section 39 of the NVR Act, with effect from 29 August 2018 (“the decision”). In general terms, it is alleged that Oztech is non-compliant with Clauses 1.8 and 3.1 of the Standards for Registered Training Organisations (RTOs) 2015 (“the Standards”) as prescribed by the NVR Act.

3. On 28 August 2018, Oztech was granted an interim stay of the decision, pending final determination of the stay application (these proceedings), on the condition that Oztech shall not issue any qualifications or enrol new students in respect of the following three (3) courses:

   (i)AHC30916 – Certificate III in Landscape Construction;

   (ii)CPC32413 – Certificate III in Plumbing; and

   (iii)CPC40912 – Certificate IV in Plumbing Services.

   BACKGROUND

4. On 12 November 2015, ASQA undertook an audit of Oztech. The audit sample covered 10 training products. A number of non-compliances were identified with one of the training products, namely Certificate III in Security Operations. As a result of the alleged non-compliances, Oztech withdrew the Certificate III in Security Operations training product from its scope of registration. Oztech was otherwise found to be compliant with the Standards.

5. From 1 September 2014 to 9 November 2016, Oztech applied to add, and ASQA approved without audit, a total of thirty-one (31) qualifications to its scope of registration. Many of these qualifications lead to a licensing outcome and most are delivered by Oztech using the “assessment only” recognition of prior learning (“RPL”) methodology.

6. On 1 August 2016, ASQA received intelligence from New South Wales Fair Trading raising concerns about Oztech’s RPL assessment practices for several qualifications.

7. On 24 March 2017, ASQA received further intelligence from New South Wales Fair Trading raising concerns about Oztech’s RPL assessment practices for the following qualifications:

   (i)CPC32413 - Certificate III in Plumbing; and

   (ii)CPC40912 - Certificate IV in Plumbing and Services.

8. On 9 August 2017, ASQA notified Oztech of a compliance monitoring risk audit to assess Oztech’s implementation of its assessment practices in light of recent complaint(s) received. In the same notice, ASQA requested that Oztech deliver activity data from the previous 12 months. There is some controversy about the information provided by Oztech in regards to what units of competency it provided during the period August 2016 to August 2017. It appears that there was a misunderstanding and Oztech only provided delivery data for three qualifications that had recently been added to Oztech’s scope of registration. These three qualifications form the subject of the subsequent audit, namely:

   (i)AHC30916 - Certificate III in Landscape Construction ;

   (ii)CPC32413 - Certificate III in Plumbing; and

   (iii)CPC40912 - Certificate IV in Plumbing and Services.

9. From 21 November 2017 to 23 March 2018, ASQA conducted a desk audit review of Oztech’s RPL student files, sampling four student files from each of the three qualifications. Oztech was found not to be compliant with Clauses 1.8 and 3.1 of the Standards.

10. On 8 May 2018, following the audit ASQA wrote to Oztech giving notice of its intention to cancel its registration and invited a written response to the reasons stated for the intended decision.

11. On 12 June 2018, Oztech responded to the notice indicating that there appeared to be some inconsistencies between the recent order and past audits concerning what was deemed to be acceptable and compliant in accordance with Clauses 1.8 and 3.1 of the Standards. Oztech sought clarification from ASQA about the non-compliances and how the issues were to be addressed.

12. On 25 July 2018, ASQA gave notice of its decision to cancel the applicant’s registration. No other response was offered to Oztech’s letter dated 12 June 2018.

    CONSIDERATION

13. Subsection 41(2) of the Administrative Appeals Tribunal Act 1975 (Cth) (“AAT Act”) provides:

    “The Tribunal may, on request being made by a party to the proceeding before the Tribunal (in this section referred to as the relevant proceeding), if the Tribunal is of the opinion that it is desirable to do so after taking into account the interests of any persons who may be affected by the review, make such order or orders staying or otherwise affecting the operation or implementation of the decision to which the relevant proceeding relates or a part of that decision as the Tribunal considers appropriate for the purpose of securing the effectiveness  of the hearing and determination of the application for review”.

14. I accept that the matters outlined by a former President of the Tribunal, Downes J, in Re Scott and Australian Securities and Investments Commission [2009] AATA 798; (2009) 51 AAR 114 are relevant matters that will usually arise when considering an application under subsection 41(2). They include:

    “… In considering the application, it is appropriate for me to consider a range of matters, including:

    1. The prospects of success.

    2. The consequence for the applicant of the refusal of a stay.

    3. The public interest.

    4. The consequences for the respondent in carrying out its functions depending upon whether a stay is granted or not.

    5. Whether the application for review would be rendered nugatory if a stay were not granted.

    6. 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”.

15. The authorities establish that a consideration of the prospects of success of an application and so the merits of the substantive application must not involve the Tribunal undertaking a full consideration of those merits. 

16. ASQA submits that Oztech has low to no prospects of success in the substantive matter because Oztech has not provided evidence as to rectification of the alleged non-compliances. This may very well be the case however; it was plain from the stay hearing that the applicant is still seeking clarification from ASQA as to the non-compliances and expressed a willingness to work with ASQA to rectify the issues. As such, I propose to make a direction requiring ASQA to provide particulars, in plain language, of the alleged non-compliances and what is required for rectification. I am minded to make such a direction in the interests of clarifying the issues in the substantive proceedings for both the Tribunal and Oztech.

17. I also note that ASQA appears to be seeking for the Tribunal to draw the inference that ASQA’s findings of Oztech’s non-compliant assessment practices in relation to the three (3) courses sampled extends to all of the courses on Oztech’s scope of registration. There is a significant problem with this submission. There is no evidence available which demonstrates any inadequacy with the other courses on Oztech’s scope of registration. On 12 November 2015, an audit was undertaken of Oztech and any areas of non-compliance were rectified. Since that time, ASQA has audited Oztech but only in regard to three (3) qualifications. Namely, AHC30916 - Certificate III in Landscape Construction; CPC32413 - Certificate III in Plumbing; and CPC40912 - Certificate IV in Plumbing and Services.

18. I am satisfied that there will likely be a very adverse effect on students if the registration of the applicant comes to an end before any hearing and final decision of the substantive proceedings; in that courses of study will be interrupted. In this case, the scale of such impact involves approximately 977 students enrolled in 27 training programs and 3 units of competency. Despite there not being any financial evidence before me, it is plain that the applicant is likely to suffer significant financial losses if its registration is cancelled, and its business may be made less valuable or valueless if its registration is not preserved pending the hearing and final determination of the application. Again, the scale of the financial impact is evident from the large number of students presently enrolled with Oztech and the number of qualifications offered.

19. ASQA submits that the current and potential students of Oztech, if a stay is granted and Oztech is unsuccessful in the substantive application, would rightly feel that their qualifications have been undermined and devalued. ASQA considers this likelihood to be high. With the evidence in its current form, I am not convinced. There may be some force to ASQA’s submission if there was evidence before me about non-compliance issues with a larger range of qualifications offered by Oztech. As it stands, the only evidence relates to alleged non-compliances of 3 courses out of a total of 27 offered by Oztech. I am satisfied that the public interest does not require that the present application be refused, including in light of the conditions which I have in mind to impose.

    DECISION

20. The Tribunal orders that:

    (1)pursuant to subsection 41(2) of the AAT Act, the decision of the respondent made on 18 July 2018 to cancel the applicant’s registration under section 39 of the National Vocational Education and Training Regulator Act 2011 (Cth) (complete with the legal obligations set out in the notification letter dated 25 July 2018) is stayed until the decision of the Tribunal on the application for review comes into operation or until further order;

    (2)pursuant to subsection 41(2) of the AAT Act, order (1) is subject to the condition that the applicant shall not issue any qualifications or enrol new students in respect of the following courses:

    (a)  AHC30916 – Certificate III in Landscape Construction;

    (b)  CPC32413 – Certificate III in Plumbing; and

    (c)  CPC40912 – Certificate IV in Plumbing and Services; and

    (3)pursuant to section 33 of the AAT Act, the Tribunal directs that on or before 31 October 2018, ASQA is to provide to the Tribunal and the applicant particulars, in plain language, of the applicant’s alleged non-compliances and what is required for rectification.

I certify that the preceding 20 (twenty) paragraphs are a true copy of the reasons for the decision herein of Senior Member A Poljak

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

Associate

Dated: 9 October 2018

Date(s) of hearing:	28 August 2018; 25 September 2018
Counsel for the Applicant:	P Lott
Solicitors for the Applicant:	Kheir Lawyers
Solicitors for the Respondent:	A Grullemans, Australian Skills Quality Authority