Act Civil & Administrative Tribunal

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

SINGH v CONSTRUCTION OCCUPATIONS REGISTRAR (Administrative Review) [2017] ACAT 50

OR 4/2017

Catchwords: ADMINISTRATIVE REVIEW – rejection of unrestricted electrician licence – whether applicant met educational qualifications in Construction Occupations (Licensing) (Mandatory Qualifications) Declaration 2016 (No 1)

Legislation cited: ACT Civil and Administrative Tribunal Act 2008 s 9 Construction Occupations (Licensing) Act 2004 ss 17, 18, 19, 123C

Subordinate Legislation: Construction Occupations (Licensing) Regulation 2004 Construction Occupations (Licensing) (Mandatory Qualifications) Declaration 2016 (No 1)

Cases cited: Tasmania v Commonwealth and State of Victoria (1904) 1 CLR 329 Eastman v Commissioner for Superannuation (1987) 74 ALR 221

List of Texts/Papers cited: Macquarie Australian Dictionary

Tribunal: Senior Member R Creyke

Date of Orders: 16 June 2017 Date of Reasons for Decision: 4 July 2017 AUSTRALIAN CAPITAL TERRITORY ) CIVIL & ADMINISTRATIVE TRIBUNAL ) OR 4/2017

BETWEEN:

GURVINDER SINGH Applicant

CONSTRUCTION OCCUPATIONS REGISTRAR Respondent

TRIBUNAL: Senior Member R Creyke

DATE: 16 June 2017

1. Decision to be affirmed.

2. Reasons to be provided at a later date.

…………Signed………….. Senior Member R Creyke 2

REASONS FOR DECISION 1. Mr Gurvinder Singh (the applicant) has appealed against a decision made by the Construction Occupations Registrar (the respondent/Registrar) on 16 March 2017 rejecting his application for an unrestricted electrician licence under section 19 of the Construction Occupations (Licensing) Act 2004 (the Act).

2. Jurisdiction to review a decision under the Act is conferred on the ACT Civil and Administrative Tribunal (Tribunal) by section 123C of the Act and regulation 42B of the Construction Occupations (Licensing) Regulation 2004 (the Regulation).

3. Under section 9 of the ACT Civil and Administrative Tribunal Act 2008 (the ACAT Act) the Tribunal can review a decision if an authorising law so provides. The Act and the Regulation are authorising laws. Accordingly the Tribunal has jurisdiction to hear the application for review.

4. At the hearing the Registrar was represented by Ms Laeticia Holly. Mr Singh represented himself. He noted that he had some problems expressing himself in English. Accordingly his brother, Mr Pal Singh, assisted him as a support person as necessary.

Background 5. In support of his eligibility for an unrestricted electrician licence Mr Singh has provided the Tribunal with the following documents:

(a) Statement of Attainment by GnorTop, Northern Territory, dated 25 January 2017 for a unit of competency, unit code UEENEEG105A Verify Compliance and Functionality of Low Voltage General Electrical Installations (Capstone Assessment) (UEENEEG105A). GnorTop is a provider of courses accredited by Charles Darwin University, Darwin, Northern Territory. (b) A Statement of Result for unit code UEENEEG105A. (c) A Craft Certificate for the trade of Electrical (Fitter) issued by the Commissioner for Vocational Training, ACT, on 8 April 2015. 3

6. Mr Singh stated in an email dated 5 April 2017 to VETASSESS Australia (Australia’s vocational education and training (VET) skills assessment provider for national skills recognition), that he had the following qualifications:

Overseas (a) National Trade Certificate ELECTRICIAN. (b) National Apprenticeship Certificate ELECTRICIAN. (c) Electrical Engineering Diploma. (d) Bachelor of Electrical Engineering. (e) More than 15 years’ experience as an electrician with a government department. Australia (a) Electrical Fitter Certificate from the Department of Vocational Training Tribunal (VTT), New South Wales. (b) Electrical Workers Permit from Darwin, Northern Territory. (c) UEE30811 Certificate III Electrotechnology Electrician (d) UEENEEG105A Verify Compliance and Functionality of Low Voltage General Electrical Installation (Capstone Assessment).

7. In his application of 13 February 2017 for a ‘Construction Occupation Licence Individual Electrician’ Mr Singh responded ‘No’ to the question ‘Have you previously held an electrician’s licence elsewhere in Australia or overseas?’

8. Mr Singh also provided:

(a) an email dated 12 April 2017 from Mr Paul Johnson, VET Customer Service Officer (Electrotechnology) at Charles Darwin University, Northern Territory concerning qualifications granted to him by that institution. The email stated: If you notice on page 4 is [sic] all the units of competency, you have either completed these units via RPL [Recognition of Prior Learning] or credits. The licencing [sic] board have deemed you competent in all of these units except the UEENEEGE105A unit (capstone).

(b) an email from Robyn of Trades Recognition Australia, Department of Education and Training that states: 4

I understand from your email that you are seeking an Offshore Technical Skill Record (OTSR) for the occupation of electrician. I can advise that as you hold a relevant Australian VET [Vocational Education and Training] qualification ‘UEE30811 Certificate III in Electrotechnology Electrician’ you would not be eligible to receive an OTSR.

9. The Charles Darwin University description for the course resulting in course code UEE30811 Certificate III in Electrotechnology Electrician states under ‘Previous Studies Recognition’:

Previous study or experience may be recognised either through a Credit Transfer (CT) or Recognition of Prior Learning (RPL) pathway. Where credit for a unit of competence has been attained previously from a RTO [Registered Training Organisation] and that unit of competency is recognised in the current Training Package or Accredited Course documentation, a CT will be granted. Where a student has no such recognised competency, but believes their previous experience, no matter how gained, demonstrates competence in the unit (or course), a process of RPL will be used to determine whether the previous experience and knowledge achieves competence in the current unit or course.

10. The documentation notes that there is a fee for RPL assessment. The Program Content for the course has a notation beside core competency UEENEEG105A indicating there are pre-requisite courses to be completed before a student can undertake this core competency.

11. Other evidence before the Tribunal was a witness statement of Ms Megan Corrigan, Departments of Chief Minister, Treasury and Economic Development, dated 5 June 2017.

Legislation 12. The relevant sections of the Act are:

17 Licence applications (1) An individual, corporation or partnership may apply to the registrar to be licensed in a construction occupation or, for a construction occupation that is divided into classes, in an occupation class. Note 1 If a form is approved under s 128 for an application, the form must be used. Note 2 A fee may be determined under s 127 for this section. Note 3 An entity’s entitlement to apply for a licence may be affected by a disqualification (see s 98 (3)). (2) However, a corporation or partnership may apply under subsection (1) in relation to a construction occupation or occupation class 5

only if the regulations allow a corporation or partnership to be licensed in the occupation or class. (3) The regulations may prescribe the requirements for applications. ... 18 Eligibility for licence (1) The regulations may prescribe when an entity is eligible, or not eligible, to be licensed in a construction occupation or occupation class, including the qualifications the entity must have to be eligible to be licensed in the occupation or class. (2) The regulations may prescribe how an applicant may, or must, demonstrate that the applicant satisfies a requirement in relation to an application. Examples 1 by requiring the applicant to hold a qualification 2 by requiring the applicant to pass a practical or written test Note An example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act, s 126 and s 132). 19 Decision on licence application (1) If an entity applies for a licence for a construction occupation or occupation class, the registrar must issue, or refuse to issue, the licence. (2) However, the registrar may issue a licence other than the licence applied for if— (a) the applicant is not eligible for the licence applied for; and (b) the applicant is eligible for the other licence; and (c) the licence issued is in the same construction occupation as, but a different occupation class from, the licence applied for; and (d) the applicant agrees to the issue of the licence. (3) The registrar must refuse to issue a licence for a construction occupation or occupation class to an applicant if— (a) the registrar is not satisfied that the applicant is eligible to be licensed in the occupation or class; or (b) the applicant is disqualified from holding a licence under section 98 (Licence disqualification).

13. The relevant sections of the Regulation are:

5 Licence applications—Act, s 17 (3) A licence application must contain the following information: (a) the applicant’s name; ... (i) evidence that the applicant is eligible to be licensed in the construction occupation or class of construction occupation applied for; 6

(k) whether the applicant has been licensed before and, if so, details of each previous licence; ...

13 Eligibility for licence—qualifications and financial requirements—Act, s 18 (1) The Minister may declare the qualifications and financial requirements necessary for an entity to be eligible to be licensed in a construction occupation or occupation class.

14. In accordance with regulation 13 the Minister made the Construction Occupations (Licensing) (Mandatory Qualifications) Declaration 2016 (No. 1) (Declaration).

15. The Schedule to the Declaration contains the following mandatory qualifications for an unrestricted electrician licence:

Electrician Unrestricted Method 1 Licence Educational Qualification(s) The applicant holds: (a) One of the following Certificate III in Electrotechnology Electrician qualifications as described on the national training register and issued within five (5) years prior to making the application: (i) UEE30811 … The applicant holds: (b) One of the following units of competency not obtained through recognition of prior learning (RPL): (i) UEENEEG105A – Verify compliance and functionality of low voltage general electrical installations … Method 2 Formerly held licence …

16. It was accepted by both parties that Method 2 did not apply to Mr Singh as he had not provided evidence of a formerly held licence. 7

Registrar’s submissions 17. The registrar submitted that the rejection of Mr Singh’s application was required because, despite numerous requests by the Registrar, he had not supplied evidence that he met the educational qualifications listed in the Declaration.

18. Although he had provided evidence of attainment for the core competency UEENEEG105A, he had not provided evidence that he had been granted a UEE30811 Certificate III in Electrotechnology Electrician (Certificate III).

19. The Certificate III qualification was mandatory under Method 1(a) in the Declaration and its absence meant that the Registrar could not be satisfied that Mr Singh should be granted an unrestricted electrician licence. As a consequence, the Registrar was required by section 19(3) of the Act to reject the application.

20. The Registrar also noted that the Statement of Attainment for the core competency UEENEEG105A, specifically states that it is not sufficient on its own. The document states: ‘These competencies form part of the qualification UEE30811 Certificate III in Electrotechnology Electrician’ (emphasis added)

Mr Singh’s Submissions 21. Mr Singh submitted in essence that:

(a) as the Statement of Attainment he has submitted for the core competency UEENEEG105A cannot be undertaken unless pre-requisite subjects have been completed, he must be deemed to have completed the pre-requisites, or the need for him to do so has been waived; and

(b) as this unit of competency is described as ‘Capstone assessment’ that description indicates he has already qualified for the Certificate III in Electrotechnology Electrician.

22. He also noted that as the Declaration does not state that the Certificate III UEE30811 qualification cannot be obtained through RPL, and he had obtained his unit of competency UEENEEG105A through a registered training organisation (RTO), this implies that the RTO provider must have accepted that he had a Certificate III by RPL in recognition of his previous qualifications and experience. 8

23. He submitted that the response from Paul Johnson supported this implication.

Consideration 24. The Tribunal in its findings has taken into account the tribunal documents as well as the submissions of the parties prior to and at the hearing.

25. The Tribunal, as a review body, which is independent of government, is required to decide for itself what is the correct or preferable decision.

26. Nonetheless, the Tribunal, like the Registrar, is bound to comply with the Act, the Regulation and the Declaration as outlined in these reasons. These contain the law relating to the granting of construction occupations licences, including an unrestricted electrician licence.

27. The Tribunal accepts that the educational qualifications under Method 1(a) in the Schedule to the Declaration, does not state that a Certificate III qualification cannot be obtained through RPL. The specific requirement that the units of competency in Method 1(b) may not be obtained through RPL and the absence of such a requirement for Method 1(a) implies that the Certificate III qualifications may be obtained through RPL.1

28. The Tribunal also finds that Mr Singh has obtained a Statement of Attainment for the core competency UEENEEG105A. As the statement was dated 25 January 2017, it has been obtained within the last five years as required by the Declaration.

29. The Tribunal understands Mr Singh’s argument that he could not have completed this unit of competency without the Charles Darwin University, through its provider GnorTop, having been satisfied that he had completed the pre-requisite courses. He supported this argument with the evidence of Mr Paul Johnson that “you have either completed these units [for UEE30811] via RPL or credits” and that “The licencing [sic] board have deemed you competent in all of these units except the UEENEEG105A unit (capstone).”

30. The Tribunal is prepared to assume that the units listed as having pre-requisite courses as shown in the outline for the Charles Darwin University Certificate III 1 Tasmania v Commonwealth and State of Victoria (1904) 1 CLR 329; Eastman v Commissioner for Superannuation (1987) 74 ALR 221 9

qualification includes one of the Certificate III units in Method 1(a) in the Declaration. The outline does not contain a list of the pre-requisite courses.

31. The Tribunal is not prepared to accept as sufficient, evidence relying solely on an implication that Mr Singh must have obtained the Certificate III qualification.

32. Nor is it prepared to accept the email from Mr Paul Johnson as evidence that Mr Singh had been granted a Certificate III by RPL of credit transfer (CT). Mr Johnson is the VET Customer Service Officer for the Electrotechnology course. Mr Johnson is not a certifying authority. His email is based on an implication, namely, that the permission for Mr Singh to undertake the capstone unit implies that he must have a Certificate III qualification.

33. There are other explanations for that permission. For example, the provider may simply have accepted, without checking, that Mr Singh had the relevant qualifications and experience listed, for example, in Mr Singh’s application to VETASSESS. That is not the kind of evidence required to satisfy the Tribunal. More is needed.

34. The evidence which would be acceptable is a certified copy by the Charles Darwin University showing on the transcript of courses completed by Mr Singh a CT or RPL against the Certificate III qualification. Mr Singh is strongly advised to obtain this evidence. The Tribunal is not satisfied that the evidence it has indicates he has a Certificate III.

35. Nor is the statement of Robyn from the Trades Recognition Authority any support for Mr Singh’s argument that his overseas qualifications were sufficient to have qualified him for RPL. The terms of the email indicate that Robyn’s response was based on the assumption that Mr Singh had already been granted a Certificate III. That assumption was not supported by evidence. The request was designed to support the implication that he must have been granted the Certificate. This statement has accordingly been discounted by the Tribunal. No document showing the grant of the Certificate III qualification has been provided to it.

36. Mr Singh’s second principal argument is that as the unit of competency UEENEEG105A is a ‘capstone’ unit he must have completed a Certificate III. 10

The Tribunal understands Mr Singh’s argument that permission to undertake this unit implies that he has completed the pre-requisite Certificate III qualification.

37. The word ‘capstone’ means the last stone completing the top of a wall and has come to be used to describe the final, usually integrative, unit of an educational program. The Macquarie Australian Dictionary defines ‘capstone’ as:

‘adjective 4. Education of or relating to a project, assessment, test, etc, which completes a course of study’.2

38. Mr Singh’s argument is that the unit of competency he has completed is stated to be a capstone unit and this implies that he has completed all the other units required in the course of study for a Certificate III.

39. The Tribunal accepts this implication is understandable. As earlier stated, however, an implication is insufficient to reach the level of satisfaction required by the Tribunal. If Mr Singh’s assumption is correct and the Charles Darwin University either granted him a Certificate III as a CT or through RPL, a notation to this effect will be shown on the transcript of courses he completed and can be provided by the University.

40. Despite requests by the Registrar and orders and directions of the Tribunal, Mr Singh has not provided such a transcript. The course he undertook is recent and there should be no difficulty in obtaining that information from GnorTop or Charles Darwin University. This evidence is critical to show that he is qualified for an unrestricted electrician licence because he has been granted a Certificate III.

41. If, as Mr Singh claims, he obtained a Certificate III via the RPL pathway he would have been required to pay a fee. Evidence of his payment may also be useful.

42. The failure to provide this evidence means that the Tribunal is not satisfied that he has obtained a Certificate III as required by Method 1(a). Satisfaction by implication is not sufficient for such a key element of the educational qualifications required for an unrestricted electrician licence.

2 Macquarie Australian Dictionary, accessed online, 21/06/2017 11

43. The Tribunal strongly urges Mr Singh to obtain this evidence from the University or from GnorTop. A certified copy of his transcript would be sufficient to enable him to resubmit an application to the Registrar.

44. In the present review, the absence of sufficient evidence that he has attained a Certificate III qualification means that the Tribunal is not satisfied that Mr Singh meets the lawful requirements for obtaining an unrestricted electrician licence. The Tribunal affirms the decision of the Registrar to deny Mr Singh the licence he seeks.

……………………………….. Senior Member R Creyke 12

HEARING DETAILS

FILE NUMBER: OR 4/2017

PARTIES, APPLICANT: Gurvinder Singh

PARTIES, RESPONDENT: Construction Occupations Registrar

COUNSEL APPEARING, APPLICANT N/A

COUNSEL APPEARING, RESPONDENT Ms Holly

SOLICITORS FOR APPLICANT N/A

SOLICITORS FOR RESPONDENT ACT Government Solicitor

TRIBUNAL MEMBERS: Senior Member R Creyke

DATES OF HEARING: 16 June 2017