Vocational Education and Training sector update: winter 2021 – regulatory changes, audits and enforcement activities

By Julian Hammond

The Vocational Education and Training regulatory landscape is constantly evolving. Hall & Wilcox regularly advises and assists VET providers and Registered Training Organisations (RTOs) to comply with regulations, audits and enforcement activities undertaken by the Australian Skills Quality Authority (ASQA).

This is the first in our series of seasonal updates that provide a brief overview of the regulatory changes, recent key cases and upcoming events for those in the Australian vocational education sector.

Introduction of new Standards for VET Accredited Courses

New Standards for VET Accredited Courses 2021 recently came into effect, including course design standards that must be met for courses accredited and regulated by ASQA.

The key changes to the Standards (effective 23 March 2021) include that course work documentation has been updated, evaluation processes for course work are now included within the applicable course standards and there are updates to the unit of competency template.

Extended transition periods

The Standards for Registered Training Organisations 2015 (Cth) (Standards) require that RTOs manage the scope of their own registrations. This means that RTOs must ensure that, within 12 months of publication on the national register, they transition any superseded training packages and transfer students across to new packages. During this transition period, both the superseded and new training packages will remain on the scope of the RTO’s registration.

ASQA has the ability to extend transition periods for RTOs longer than those prescribed by clauses 1.26(a) – (c) of the Standards. ASQA will only consider applications for longer transition periods for superseded packages where it can be shown that, if an extension was not granted, there would be genuine disadvantage to a cohort of students. If granted, then the extension applies to all RTOs which provide that training product across Australia.

ASQA has now extended transition periods for a wide range of training products. The full list of transition period extensions are detailed on ASQA’s website, however examples of recent extensions include:

• NWP30315 Certificate III in Water Industry Treatment until 31 December 2021;
• AHC30816 Certificate III in Arboriculture until 16 December 2022;
• nine qualifications from the MAR Maritime Training Package until 31 December 2021, MAR60115 Advanced Diploma of Maritime Operations (Marine Engineering Class 2) until 30 April 2022 and MAR60215 Advanced Diploma of Maritime Operations (Marine Engineering Class 1) until 21 December 2023;
• FNS30115 Certificate III in Financial Services until 31 March 2022;
• AHC50516 Diploma of Arboriculture until 6 April 2022;
• BSB50215 Diploma of Business until 1 July 2022;
• CUA Creative Arts and Culture Training Package until 16 October 2022;
• CUA40313 Certificate IV in Dance Teaching and Management until 16 April 2023; and
• HLT54115 Diploma of Nursing until 31 December 2023.

RTOs self-regulate the scope of their registrations, so it is important that RTOs stay on top of any amendments to transition periods for training products. Further information regarding extended transition periods and updates are available on ASQA’s website.

Recent ASQA enforcement proceedings

Australian Intelligence Training Academy Pty Ltd and Australian Skills Quality Authority [2021] AATA 1108

In Australian Intelligence Training Academy Pty Ltd and Australian Skills Quality Authority [2021] AATA 1108 the review conducted by ASQA concerned the Applicant’s registration as a RTO. The Applicant, Australia Intelligence Training Academy Pty Ltd (AITA), was registered to run a certificate II level security course (Old Course), which had now been superseded by a ‘non-equivalent’ new version (New Course). AAITA was required to apply to ASQA to add the New Course to its scope of registration.

Following various audits being undertaken, ASQA decided to cancel AITA’s registration alleging that AITA was not compliant with the Standards, including in relation to:

• the amount of training it proposed to offer to students;
• its systems for ensuring compliance; and
• the documentation it had submitted to ASQA in relation to its financial viability.

AITA appealed to the Administrative Appeals Tribunal.

AITA proposed to deliver the New Course to prospective students over 17, 21 or 22 business days, which the Tribunal found to be an insufficient duration. The Tribunal considered the course requirements and the units of competency, noting in particular the delivery would involve an intense training schedule, clustering of units, few breaks and no time to allow students to go over and absorb what they had been taught in the course.

In addition to this, AITA’s Chief Executive Officer and sole director Mr Alici conceded that three weeks was an insufficient period over which to deliver the security course if a student was inexperienced, remarking it would be like ‘throwing them under a bus’.

The Tribunal concluded that AITA:

• did not have a Training and Assessment Strategy in place for the New Course;
• was not satisfied that Mr Alici was able to comprehend and ensure the requirements of an RTO; and
• did not gain an impression that AITA had made any progress with making changes to its systems, resources and operations, likely to make a difference to AITA’s propensity to comply with the obligations of an RTO in the future.

After considering evidence as to AITA’s financial viability to continue operations if its registration was reinstated, the Tribunal found that AITA was not able to satisfy the Financial Viability Risk Assessment Requirements, and – in doing so – had failed to meet the statutory condition of registration arising under section 24 of the National Vocational Education and Training Regulator Act 2011 (Cth).

Accordingly, the Tribunal affirmed the decision to cancel the Applicant’s registration.

Australian Centre for Advanced Studies Inc. and Australian Skills Quality Authority [2021] AATA 1400

Australian Centre for Advanced Studies Inc. and Australian Skills Quality Authority [2021] AATA 1400 concerned a decision by ASQA to reject an application for the renewal of a registration as an RTO of a ‘not for profit faith-based organisation’.

In this case, the Applicant applied to renew its RTO registration on 20 June 2018, and was provided with a notice that ASQA would be conducting a site audit some six months later. The audit took place in March 2019 and on 15 August 2019, the renewal application was rejected because ASQA had decided that the Applicant had abrogated its responsibility to properly oversee the delivery of courses by primarily delivering these through third-party providers.

The Applicant contended that, at the time of hearing before the Tribunal, it had revised its compliance system and audit strategy to ensure it had appropriate oversight of these course.

The Applicant had produced detailed documentary evidence to rebut the submission by ASQA that it did not comply with the Standards. The Tribunal, noting that ASQA had not referred to any evidence in support, found that ASQA:

• failed to establish that the Applicant did not adequately review the support provided by the third parties to students; and
• had not established that Applicant was not reviewing this support on a regular and systematic basis following enrolment.

To the contrary, the Tribunal found that the Applicant had put in place adequate procedures concerning student support and had adequate oversight of student support.

Using its authority to promote good government decision-making, the Tribunal recommended that ASQA should be expected to conduct thorough and comprehensive audits of RTOs. The Tribunal concluded that this obligation that was not discharged by the 1.5-hour site visit, and that auditors should extend time to two or three days in the field, to give a more accurate overview of the compliance of an RTO, than what is currently almost solely a document-based review.

Ultimately, the Tribunal concluded that the application for renewal of the Applicant’s registration as an RTO should be granted. The Tribunal remitted the matter back to ASQA to determine the period for which the Applicant was to be registered as a result of the renewal.

Recommended webinars

ASQA offers many interactive learning opportunities for service providers.

ASQA’s interactive webinar of 13 May 2021 highlighted recent improvements to its regulatory practice. The one-hour webinar was led by ASQA’s Deputy CEO Christina Bolger and hosted by our Executive Director, Regulatory Engagement & Education, Steve Maillet. The webinar identified ASQA’s approach to compliance and how it assesses, and responds to, levels of risk. View the webinar recording: ‘ASQA’s Regulatory Approach‘.

As part of ASQA’s strategic review of online learning, considering in particular how providers have shifted to online models of learning, ASQA and RTO providers came together in May 2021 to discuss the challenges and opportunities these methods pose for the service to students.

As part of the Q&A session with the panel, questions raised by participants included:

• During the shift to online learning, how can a RTO address contact hours requirements for CRICOS^[1]?
• What are the practical options to cover the authenticity of assessments in online learning?
• How do you drive cultural organisational change to adopt high-quality online training?
• What support is available for small to medium sized RTOs in developing this space?

View the webinar and Q&A recording: ‘Online learning beyond PDFs and Zoom‘. If you would benefit from further advice in relation to anything contained in this update, please contact Julian Hammond, Oliver Jankowsky, Alison Baker and Alexandra Lane.

[1] Commonwealth Register of Institutions and Courses for Overseas Students