That is the question put to Tasmania’s Government-Consumer, Building and
Occupational Service (CBOS) in an official complaint. The lodged complaint (050520 Complaint to CBOS Re Engineers Australia) alleges that Engineers Australia (EA) breached Australian Consumer Laws (ACL) in dealing with Mrs Pooja Shah for her Skill Assessment application made on the 15 August 2019. The CBOS is the Tasmanian equivalent of the NSW Department of Fair Trading.
Mrs Shah who lives in Tasmania with her husband Jipal and their young baby, lodged her application in the hope of receiving a positive assessment as a professional Engineer so she could apply for permanent residency under the skilled migration program for Australia. As we covered in our previous stories she was banned twice by EA for one year each time.
In lodging this complaint Pooja explained, “I feel badly treated by EA and I’m looking for justice to banned without even a hint of reasonable due process. To be accused of something I did not do, to be threatened of informing Immigration of something I did not do and all of this they were paid a lot of money to be insulted in such a manner. I will not stop until I receive some form of justice for the manner in which they treated me”.
Engineers Australia is the assessing authority for her nominated occupation and is the only organisation approved by the government to conduct the Migration Assessment for Engineers. The body of the complaint alleges Engineers Australia breached the ACL laws for the following reasons;
1) Unconscionable Conduct; and
2) Unfair Contract Terms
In relation to the Unconscionable Conduct allegation, the complaint lodged with the Tasmanian government states;
“EA is the sole, non-government run, skill assessment body for engineering in Australia. It has a monopoly over the skill assessment engineering market. Migrants that wish to seek their residency here through skilled migration, in particular, their engineering skill, are compelled to adhere to the relevant skill assessment body being EA. If they wish to seek their residency through skilled migration, migrants have no choice but to agree to any declarations, terms and/or conditions that EA imposes. The skill assessment is a requirement for skilled migration, and Engineers Australia is the sole organisation providing their service for Engineers.
Engineers Australia imposes a twelve-month ban for providing false or misleading documentation. The disparity of power between the EA and the applicant is fairly substantial. Thus, to cause such a harsh penalty in a monopolised market, with EA having most of the bargaining power is unconscionable. As seen in the consequences above, a twelve-month ban has the power to impede on an applicant’s migration outcome. It is not proportional. Thus, imposing such a ban in a monopolised market is unconscionable.
Furthermore, EA did not provide any specific details as to what was allegedly plagiarised to the applicant. This made it difficult for the applicant to prepare an adequate response to the allegations. Not providing vital and crucial information is unconscionable.”
In relation to the Unfair Contract Terms, the complaint alleges;
“Lastly, the ramifications or consequences of imposing the twelve-month ban are immeasurable. As seen above, factors such as an applicant’s age can change within twelve months. Age is a factor when assessing or determining points. If an applicant is banned for twelve months and on the verge of a cut-off age, the ban has severely impacted their overall eligibility for a visa application.
Furthermore, embedded in section 25 of the Act are examples of unfair contract terms within consumer contracts. In particular, subsection (c) states that:
“A term that penalises, or has the effect or penalising, one party (but not another party) for a breach or termination of the contract.”
As seen numerous times above, the twelve-month ban impacts an applicant’s chances of residency in Australia. Given that the twelve-month ban solely penalises one party (the applicant) for breach of the term, it clearly fits within one of the examples listed in section 25 of the Act. Thus, the term is an “unfair contract term”.”
Engineers Australia’s Response
Engineers Australia was given a copy of allegations of breaches of Australian Consumer Laws before the formal complaint was lodged in the hope there could be discussions held between Pooja and themselves. However, their written response was, “the wide-ranging allegations made against Engineers Australia in your letters of 20th December 2019 and 28th February 2020 are rejected in full.”
In justifying their 12-36 month ban upon skill assessment applicants Engineers Australia went on to state;
“Further to this engineers Australia does not tolerate unethical behaviour. We consider that plagiarism and the use of third parties (such as ‘CDR writers’) to write Career Episodes and Project Reports for applicants constitute particularly egregious examples of unethical behaviour. Possible consequences for engaging in such behaviour include immediate rejection of the application and bans on reapplying for periods ranging from 12 to 36 months, as well as mandatory reporting of the applicants details to the Department of Home Affairs. This information is made clear to all applicants before they apply to engineers Australia for a Migration Skill Assessment.”
Of course, the major problem with this statement is that in her second application which also attracted the 12-month ban, Pooja has explained there was no plagiarism and no use of engagement of a third party to help her write the report.
We will bring you the outcome of this complaint as soon as it comes available.