Trades College Australia Pty Ltd and Australian Skills Quality Authority [2020] AATA 812 (16 April 2020)

Last Updated: 17 April 2020

Trades College Australia Pty Ltd and Australian Skills Quality Authority [2020] AATA 812 (16 April 2020)

Division: GENERAL DIVISION

File Number(s): 2018/1994

Re: Trades College Australia Pty Ltd

APPLICANT

And Australian Skills Quality Authority

RESPONDENT

DECISION

Tribunal: Deputy President B W Rayment OAM QC

Emeritus Professor P A Fairall, Senior Member

Date: 16 April 2020

Place: Sydney

The Tribunal decides that:

1. the decision to cancel the applicant’s registration is set aside and the matter remitted to the respondent for further consideration with a view to its consideration of the applicant’s fresh application.

2. the decision to refuse to renew the applicant’s registration is affirmed.

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Deputy President B W Rayment OAM QC

CATCHWORDS

VOCATIONAL EDUCATION AND TRAINING – cancellation of registration as a registered training organisation – where applicant has taken steps to rectify non-compliances – where applicant not given opportunity to demonstrate changes – where flaws were evident in auditor’s conclusions – where only desk audit was undertaken – where steps other than cancellation could be undertaken – whether chief executive officer was a fit an proper person – where chief executive officer previously charged with grievous bodily harm – no criminal propensity – chief executive officer is a fit and proper person – where financial viability of applicant uncertain – decision set aside and remitted

VOCATIONAL EDUCATION AND TRAINING – refusal of application to renew registration as a registered training organisation – where desirable for applicant to take further steps before applying for registration – decision affirmed

LEGISLATION

National Vocational Education and Training Regulator Act 2011 (Cth) ss 31, 39

REASONS FOR DECISION

Deputy President B W Rayment OAM QC

Emeritus Professor P A Fairall, Senior Member



16 April 2020

1. We heard these proceedings over a number of days in 2019 and this year we received further written submissions requested by the Tribunal.
2. In March 2018, the respondent (‘ASQA’) took the decision to cancel the registration of the applicant as a registered training organisation, when it had previously been trading for some six years. That is the first of two reviewable decisions. The respondent also decided to refuse to renew the applicant’s application for renewal of its registration. That is the second reviewable decision with which we are concerned. The applicant was notified of the ASQA’s decision in April 2018, with the decision taking effect from 16 May 2020.
3. In April 2018, the applicant made two unsuccessful applications for a stay of the reviewable decisions in the Melbourne Registry. The result of the refusal of a stay is that the applicant has not traded since May 2018, now almost two years ago.
4. We have decided to set aside the cancellation decision and to remit the matter to the respondent for further consideration. The effect of that order, in accordance with s 39(3) of the National Vocational Education and Training Regulator Act 2011 (‘the Act’), is that the applicant may now or in the near future bring forward a further application for registration earlier than it might otherwise have done. Furthermore, we have decided that the correct or preferable decision is not to set aside the refusal to renew the registration of the applicant. That is particularly because, if that course were taken, under s 31 of the Act, there would be an immediate automatic renewal of the applicant’s registration under the Act. That is undesirable at the present time since the applicant will need to take further steps before readying itself to apply again for registration. An immediate resumption of trading is, in any event, not yet feasible.
5. As the applicant pointed out on the first day of the hearing before us, the fact that it has not traded since May 2018 has meant that it is unable to demonstrate that such changes, as it has decided to make to its processes, have been effective. On the other hand, the applicant has taken important steps to improve its procedures since May 2018.
6. In particular, it has commissioned work from Ms Bowler, who impresses us as a highly qualified and experienced consultant. She prepared new Recognised Prior Learning (‘RPL’) kits for use in the College when it is a position to apply to be registered again. As the evidence of Ms Bowler showed, the College has not continued to employ some of the trainers and assessors it previously employed, and intends to appoint others in their place if its registration is restored. We gathered that the applicant intends to ensure that the College co-operates with ASQA in the documentation and retention of records, which ASQA needs to assure itself that the College will be well conducted. It intends to ensure that assessors who conduct RPL assessments follow the RPL kits faithfully and document the steps they take to validate their assessments.

FLAWS IN ASQA’S DECISION

7. The two reviewable decisions in issue are unusual in that the organisation has not traded for a long time. The considerations which led ASQA to cancel the registration of the applicant are all historical and the evidence before us about alleged past breaches therefore had an air of unreality. There were significant problems about the conclusions reached by the auditor that led her to recommend to the Commissioners that the reviewable decisions be made.
8. In the first place, the audits conducted were desk audits only. The auditor did not visit the College’s premises. Nor were interviews conducted with the assessors whose work the auditor criticised. The result was that the auditor knew nothing about the significant improvements, made by the College itself, to the premises it leases. It spent hundreds of thousands of dollars building and equipping areas and sites in its leased premises so that students could demonstrate their experience in various trades. In turn, the assessors recorded the work which the students displayed by videos which they retained. The facilities the applicant built and equipped in Punchbowl were described by Ms Bowler as state of the art facilities, and the work done by the applicant in their premises was unusual among registered training organisations. The building work done on the premises enabled students, including persons who were given RPL qualifications, to demonstrate their expertise to assessors.
9. The auditor did not even gather that the sites worked upon by the students were part of the College premises, and queried whether the students in question were indeed the students to whom the videos purported to relate. The means by which the College recorded their identities was by photographing their driver’s licences and other identity documents. All of those problems were capable of easy solutions by making the processes followed by the assessors more transparent. We expect that since the applicant plainly desires to have its registration restored, it will take the appropriate steps with whatever expert advice is necessary to satisfy the regulator. All of those steps can be made clear to ASQA as part of a new application for registration when the applicant has its processes in place.
10. It seems to us that even if the conclusions reached by ASQA about the deficiencies of the RPL processes of the applicant were correct, the decision to cancel the applicant’s registration altogether was flawed. That is because ASQA took no steps to satisfy itself about whether the face to face teaching (not involving RPL for the most part) could not continue. An alternative which was open to ASQA was to reduce the scope of the applicant’s registration so as to permit the face to face teaching to continue. The applicant’s evidence satisfied us that the electro-technology course taught by Mr Limnos was conducted well. That teaching constituted a significant part of the services offered by the College.
11. That circumstance persuades us that the cancellation decision ought to be set aside, and remitted for reconsideration, quite apart from a number of concerns which we have about the auditing of the RPL documents considered by ASQA.
12. The proceedings before us were beset with a number of difficulties stemming from what appeared to be animosities on both sides, and by adjournments caused by the failure of the applicant to prepare its case with diligence. We make no further comment about those matters because they are not material to our conclusions.
13. Another problem about the way in which the case was conducted arose from direction made prior to the listing of the proceedings before us, at a time when we were not involved. We have concluded that in future cases where there is a contest about non‑compliances, ASQA must start and do so without the assumption that its allegations of non-compliance are prima facie correct.
14. We were also presented with thousands of documents by both sides, most of which were unnecessary for the resolution of the case. Many side issues were the subject of further evidence, despite their marginal nature. That approach is not consistent with the duty of the parties to assist the Tribunal to conduct the proceedings economically and quickly, so as to reach the correct or preferable decision without wasteful use of the resources of the Tribunal.
15. There were some admitted departures from good practice in the way in which RPL was conducted historically by the applicant. Others were in contest before us. One reason why we would have had difficulty in making findings about the matters in contest was because the applicant failed to call evidence from the assessors whose work was in issue. The respondent was reduced to asking Mr Chamma, the chief executive officer and sole director of the applicant, about the records produced of RPL. He was not the author of the documents.
16. Importantly, the failures of the applicant prior to March 2018 should not loom large in considering the applicant’s new application for registration when it is made. This is because of what we assume will be the steps put in place by the applicant to show how it will perform in the future. It was apparent to us that the applicant is very anxious to regain its registration and hopes to be able to cooperate with the regulator’s audit requirements in the future.

FIT AND PROPER PERSON

17. The respondent sought to show that Mr Chamma is not a person who is fit and proper to lead the College. We are not satisfied that the respondent’s allegation is made out. We find that he is a person who is fit and proper to lead the College.
18. The respondent relied upon the conviction of Mr Chamma for the offence of grievous bodily harm, for which he was given a two year good behaviour bond in 2011. Mr Chamma gave uncontradicted evidence about the circumstances of the offence at the hearing on 26 August 2019,^[1] which we are satisfied to accept. Those circumstances do not suggest any propensity to criminality.
19. He also has a subsequent history of much important charitable work, including being in leadership positions both in this community and abroad. He conducted the College for some six years with apparent success, and has managed to keep the company afloat through difficult circumstances since May 2018. As a witness, we found him to be intelligent and apparently astute, and anxious to offer a good educational product. He should remain in charge of the College. The respondent accepted his leadership in consent orders made in previous proceedings between the parties in this Tribunal and we think that decision was correct.
20. We are not persuaded that any of the complaints against the applicant led by the respondent showed that Mr Chamma was not fit and proper to lead the College. For the most part, we were not provided with sufficient detail of the justification for those complaints. To some extent, the complaints may have stemmed from the difficulties of issuing certificates while unregistered.

FINANCIAL VIABILITY OF THE COLLEGE

21. There is good reason to think that the applicant will show itself to be financially viable when its contractual arrangements are made to equip it to recommence trading. That evidence will need to be brought up to date when final plans are made to resume trading. It will need to take account of any economic difficulties which may arise because of matters such as the coronavirus infections, especially insofar as they may affect anticipated sources of finance available to the applicant for its operations. Those are matters to be dealt with in the future. The matters of disagreement between accounting experts called before us may well no longer affect the applicant when proper contracts are put in place with financiers and more detailed projections are available.

DECISION

22. For those reasons, the respondent’s decision to cancel the registration of the applicant will be set aside and the matter will be remitted to the respondent for further consideration with a view to its consideration of the applicant’s fresh application for registration when submitted. The refusal of the respondent to renew the registration of the applicant in 2018 is affirmed. For reasons explained above, that affirmation does not entail that the applicant’s new application for registration should be refused.

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Associate

Dated: 16 April 2020

^[1] Transcript, 26 August 2018, at 109.