Vocational Education and Training sector update: winter 2022

By Julian Hammond, Alexandra Lane and Gabrielle Fee

The winter edition of our vocational education and training sector update:

• sets out key dates and information for providers to stay on top of their obligations prior to the end of the financial year;
• outlines the recent, temporary changes to student visas, including the relaxation of the work hours requirement by the Department of Home Affairs;
• provides details on the establishment of the Australian Skills Quality Authority (ASQA) as the national training package assurance body; and
• provides an update on recent regulatory enforcement decisions, including the recent imposition of civil penalties by the Federal Court of Australia for breaches of National Vocational Education and Training Regulator Act 2011 (Cth) and an appeal to the Federal Court on a question of law in relation to the effect of the Fit and Proper Person requirements for vocational training providers.

The key theme that we are seeing in the marketplace is, consistent with business more generally, that there is a shift to a ‘return to normal’ in a post-COVID world. The corollary of this is that we expect there will be an increased focus on regulatory activity from ASQA given that the pressures associated with the pandemic are starting to subside.

We explore these themes and other issues in further detail below.

Stay on top of your obligations – key dates and course accreditation

Are you aware of upcoming important dates?

As we near the end of financial year on 30 June, it is important that providers are aware of upcoming deadlines.

Providers are reminded of the following deadlines:

• The quality indicators annual summary and data is due by 30 June 2022. This data feeds into national quality benchmarking and is useful to support your training organisation’s self-assurance and continuous improvement. For further guidance on submission requirements and templates, visit the quality indicators annual summary page.
• The providers’ annual registration charge is due by 31 July 2022.
• Following two years of fee waiver as part of the COVID-19 relief package, ASQA will commence operating as a full costs recovery agency from 1 July 2022. Read more about the annual registration charge.

To assist providers to stay on top of their obligations, ASQA has published the ASQA 2022 RTO and ESOS checklists which contain key dates to assist with keeping track of reporting requirements.

These checklists are a fast, comprehensive and easy tool for providers to use.

Considering applying for course accreditation?

When deciding whether to grant an application for the accreditation of a course, ASQA determines whether the course meets the Standards for VET Accredited Courses 2021 and the Australian Qualifications Framework. Prospective course owners are required to submit a national course document compliant with the course document template.

Earlier this month, ASQA published a guide to help course owners understand what they need to do when applying for course accreditation. The guide aims to help course owners:

• interpret and apply the Standards for VET Accredited Courses 2021 and the Australian Qualifications Framework in relation to the completion of the national course document template; and
• better understand the requirements for accreditation by providing detailed explanations and example content.

This publication provides much needed guidance for course owners and will ideally minimise the ‘back and forth’ between course providers and ASQA where applications are assessed to be incomplete. Download the users’ guide to developing a course document.

ASQA news

Temporary changes to student visas

In order to address workforce shortages in Australia arising from the COVID-19 pandemic, the Department of Home Affairs has announced the temporary relaxation of working hours for student visa holders.

The temporary measures allow international students to work more than 40 hours a fortnight. ​​

The aim of these measures is to:

• help alleviate current workforce shortages; and
• enable international students to work before their course commences.

The changes are now in effect for all ongoing students as well as new student arrivals who wish to commence a job prior to course commencement.

If you require any further information in relation to these changes, Kristopher Kunasingam of Hall & Wilcox’s migration practice will be able to assist.

ASQA announced as national training package assurance body

As part of a broader suite of reforms to the vocational education and training system, the Federal Government has recently announced that ASQA is now appointed as the independent body responsible for overseeing training packages and providers from 1 January 2023.

In taking on this role, ASQA is replacing the Australian Industry and Skills Committee which will remain in the role until 31 December 2022.

In this new role ASQA will:

• assess training packages for compliance against standards and policies;
• take steps to ensure that training packages are of a high quality; and
• seek to meet the needs of employers and students and, in doing so, aim to increase transparency and accountability amongst the higher education community.

For more information, view the National Vocational Education and Training Regulator (Other Functions) Instrument 2022.

Recent enforcement proceedings by ASQA

Wills v Chief Executive Officer of the Australian Skills Quality Authority [2022] FCAFC 10

In Wills v Chief Executive Officer of the Australian Skills Quality Authority [2022] FCAFC 10, the Full Federal Court dismissed an appeal from ASQA’s decision to reject the renewal of registration of Site Skills Group Pty Ltd (SSG) as a vocational education and training provider.

The decision of the Federal Court follows a lengthy history of legal proceedings and regulatory decisions, concerning ASQA’s decision to reject SSG’s application to renew its registration as an RTO after finding that SSG had failed to comply with its obligations under the Standards for RTOs 2015, and that the former sole director and CEO was unable to satisfy the Fit and Proper Person Requirements.

Evidence was put before the Court of ASQA’s decision to cancel the registration of Productivity Partners Pty Ltd (PP) (which traded as Captain Cook College), another training provider and subsidiary of SSG, based on evidence of systemic non-compliance with the VET Quality Framework. The non-complaint activity included a finding that of more than 7,500 enrolments with PP, for which students were charged more than $55,554,000, only 124 students completed a single unit of competency, and only 36 students were issued with training qualifications. ASQA’s decision in relation to PP is still before the AAT, however, it was relevant to the decision to affirm ASQA’s rejection of SSG’s registration renewal.

In a second related proceedings, Wills v Chief Executive Officer of the Australian Skills Quality Authority (Costs) [2022] FCAFC 43, the Full Federal Court ordered that the former sole director and CEO of SSG pay the costs of ASQA in relation to the appeal proceeding.

Commonwealth of Australia v Rose Training Australia Pty Ltd [2022] FCA 36

This case concerns a prosecution by ASQA for breaches of National Vocational Education and Training Regulator Act 2011 (NVR Act) and the imposition of civil penalties for breaches of the NVR Act.

On 1 February 2022 the Queensland Federal Court found that Rose Training Australia Pty Ltd (Rose Training) had breached section 96 of the NVR Act (issuing VET qualification outside scope of registration) on eight occasions between October 2017 and February 2019, and contravened section 94 of the NVR Act (issuing VET statement of attainment outside scope of registration) on a further three occasions.

Rose Training was in the business of delivering, assessing and issuing qualifications for VET courses. Rose Training offered a Diploma of Vocational Education and Training and a Diploma of Training Design and Development (Original Diplomas) to officers at the Queensland Police Service Academy (QPS) as a ‘Dual Course’. QPS paid $1,800 to $2,000 per student to attend training and complete assessments for the Dual Course during paid work hours.

On 6 April 2016 the Original Diplomas were superseded by two new diplomas which were not equivalent as they varied substantive requirements of the units.

ASQA asserted that between 25 October 2017 and 6 February 2019 Rose Training had financially benefited by providing training and VET qualifications when the relevant VET courses were outside the scope of their registration.

Her Honour Justice Collier found in favour of ASQA, finding that students of Rose Training received VET qualifications that were liable to be cancelled by ASQA and were deprived of the certainty of having properly issued VET qualifications that they had paid for.

Her Honour ordered that Rose Training provide ASQA with an undertaking to:

1. pay the course fees for any affected students who wish to attend make-up units of competency necessary to obtain the current qualifications; and
2. compensate QPS $500 per affected student for any lost time or wages.

In addition, it was agreed between the parties that Rose Training would incur the proposed penalty of $23,000, comprising an approximate 25% discount for cooperation with ASQA in the proceeding.

Key takeaways

Significant penalties can be ordered against training providers that are conducting business outside the scope of their registration or who are failing to uphold the required standards or abide by frameworks set for providers.

Relevantly the Court stated that ‘penalties must be set at a level which will deter a commercial calculation about the risk of non-compliance versus the scope for profit’. It is likely that, in circumstances where the conduct of providers is systematic and/or blatant, the penalties imposed will be exacerbated.

In addition to this, compliance governance and administration requirements for ASQA providers, including Fit and Proper requirements are critical.

These cases indicate that, as we move into a post-pandemic world, ASQA will likely be more active in taking enforcement action against training providers who are not compliant with their obligations.

Has your business in NSW or Queensland been affected by the floods?

The states of New South Wales and Queensland have been devastated by catastrophic flooding in the area, including in relation to training premises and workplaces being damaged or lost. The consequence of these flood events is that training premises have been rendered temporarily or permanently inaccessible to staff and students, and providers have had to quickly identify alternative suitable premises or arrangements.

To support providers affected by these floods, ASQA has published guidance materials which detail the information and support on offer. This support includes the extension of annual declaration on compliance, advice on how to notify ASQA of a material change of circumstance (such as temporary period of inactivity) and considering providing extensions for transitory arrangements. ASQA has also advised that it will take a proportionate regulatory approach to regulating providers affected by the floods.

We encourage any providers adversely affected by the floods to reach out to ASQA to discuss what support may be provided and to let them know of the difficult circumstances they are facing.

Find further information and support.

Extended transition periods

As our readers are aware, the Standards for Registered Training Organisations 2015 (Cth) (Standards) require that RTOs manage the scope of their own registrations, by ensuring that they have transitioned any superseded training packages and transferred students across to new packages. During this transition period, both the superseded and the new training packages will remain on the scope of the RTO’s registration.

ASQA can extend transition periods for RTOs longer than those prescribed by the Standards and has recently done so for the following products:

• Approved extended transition period for qualifications from the ICT, AHC, NWP, MAR & CPC Training packages;
• RII30919 - Certificate III in Civil Construction until 24 July 2022;
• TLI32515 - Certificate III in Rail Infrastructure until 30 June 2022;
• FNS42115 Certificate IV in Personal Injury Management until 1 August 2022;
• PMB30116 - Certificate III in Polymer Processing until 16 December 2022;
• PMB40116 - Certificate IV in Polymer Technology until 16 February 2023;
• CPP40516 - Certificate IV in Strata Community Management until 15 April 2023;
• HLT35015 - Certificate III in Dental Assisting until 30 April 2023; and
• Approved extended transition period for HLT45015 - Certificate IV in Dental Assisting until 30 June 2023.

The full list of transition period extensions are detailed on ASQA’s website.

ASQA has identified that, in order for RTOs to best meet the needs of their students and industry, students should be transferred from superseded qualifications into replacement qualifications as soon as possible. Providers should continue to monitor the list of transition periods to ensure that they remain compliant.