Australian Business Skills Pty Ltd v Australian Skills Quality Authority
[2012] NSWADT 133
•05 July 2012
Administrative Decisions Tribunal
New South Wales
Case Title: Australian Business Skills Pty Ltd v Australian Skills Quality Authority Medium Neutral Citation: [2012] NSWADT 133 Hearing Date(s): 8, 9 March 2012 and 7, 8 & 16 May 2012 Decision Date: 05 July 2012 Jurisdiction: General Division Before: Magistrate N Hennessy, Deputy President
Dr T Burke, Non-Judicial MemberDecision: 1. The decision to cancel the registration of Australian Business Skills Pty Ltd as a registered training organisation is affirmed.
2. The decision to refuse the application from Australian Business Skills Pty Ltd for renewal of its registration as a registered training organisation is affirmed.
3. These orders come in to effect 28 days from the date of these reasons.
4. The application by Australian Business Skills Pty Ltd for a costs order is refused.
Catchwords: MERITS REVIEW - decision to cancel registration of a registered training organisation (RTO) - whether RTO non-compliant with standards relating to training, assessment and support for individual trainees - whether any non-compliance justifies cancellation of registration
Legislation Cited: Administrative Decisions Tribunal Act 1997
Apprenticeship and Traineeship Act 2001
National Vocational Education and Training Regulator (Transitional Provisions) Act 2011
National Vocational Education and Training Regulator Act 2011(Cth)
Uniform Civil Procedure Rules 2005
Vocational Education and Training Act 2005Cases Cited: Texts Cited: Category: Principal judgment Parties: Australian Business Skills Pty Ltd (Applicant)
Australian Skills Quality Authority (Respondent)Representation - Counsel: Counsel
D Jarrett (Applicant)- Solicitors: Moloney Lawyers (Applicant)
P Cribb (Respondent)File number(s): 113122
Publication Restriction:
REASONS FOR DECISION
Introduction
Australian Business Skills Pty Ltd (ABS), trading as Amstar Learning, is a Registered Training Organisation (RTO) that has been operating since 2004. ABS is contracted by employers who provide traineeships under the Apprenticeship and Traineeship Act 2001. Employers within certain vocational areas can enter into a contract with a person to employ them as a trainee. Trainees must be enrolled in an approved course of formal training with an RTO chosen by the employer.
The NSW Vocational Education and Training Accreditation Board (VETAB) regulates RTOs that provide vocational education and training in NSW. VETAB monitors RTOs to ensure that they comply with national standards. From 1 July 2011 the Australian Skills Quality Authority (ASQA) has taken over VETAB's role and has been substituted for VETAB as the respondent in these proceedings: National Vocational Education and Training Regulator (Transitional Provisions) Act 2011, Schedule 1, Cl 26. For the sake of simplicity, we will refer to the respondent as ASQA whether or not the correct entity at the time was VETAB or ASQA.
In December 2010, ASQA cancelled ABS's registration as an RTO and refused its application for renewal. An internal review dated 18 April 2011 affirmed the decisions. ABS has applied to the Tribunal for a review of these decisions. ASQA has allowed ABS to continue operating pending a decision of the Tribunal.
ASQA has power to cancel ABS's registration if it fails to comply with the RTO standards and to refuse ABS's application to renew its registration on the same basis: Vocational Education and Training Act 2005 (VET Act): s 18(1)(d) and s 12(3)(c). Following amendments to the legislative scheme, those provisions have been superseded by equivalent provisions in the National Vocational Education and Training Regulator Act 2011(Cth) (NVR Act). The cancellation and failure to renew decisions are decisions that could be made under ss 39 and 31 of the NVR Act (Cth). Under s 31 of that Act, ASQA may cancel an RTOs registration in any circumstances that it considers it appropriate to do so. We accept ASQA's submission that the same findings of fact and law would be made under both the VET Act and the NVR Act.
Common to both the cancellation decision and the refusal decision is the question of whether or not ABS complies with the relevant standards, whether those standards are the "RTO standards" under the VET Act or the "Standards for NVR Registered Training Organisations" under the NVR Act. The Standards for NVR Registered Training Organisations 2011 were made by the Minister under s 185(1) of the NVR Act on 6 June 2011.
Since the application was made, ABS has provided further information. ASQA has, in turn, modified the basis for its decisions. Three of the original eight allegations of non-compliance with the RTO standards remain. During the hearing, ASQA indicated that some further aspects of the alleged non-compliances would not be pressed.
In summary the final grounds for cancelling ABS's registration are that ABS has:
(1)failed to adequately supervise workplace trainers (the "direct supervision" non-compliance),
(2)conducted a non-compliant assessment of a trainee's competence (the "assessment" non-compliance); and
(3)failed to provide support for the special needs of trainees (the "support" non-compliance).
The Tribunal's role when reviewing the cancellation and non-renewal decisions is to decide whether those decisions are the "correct and preferable" decisions: Administrative Decisions Tribunal Act 1997 (ADT Act), s 63(1). In reviewing the decisions we must have regard to all the material before us at the hearing. We must decide, as at the date of hearing, whether the decisions are the correct and preferable decisions, not whether they were correct when they were made: ADT Act, s 63(1). We must do so on the basis of all the material before us.
Background
As well as being registered as a training organisation, ABS had approval from ASQA to deliver training and assessment in certain courses including Certificates and Diplomas in Business, Financial Services, Insurance Services and Hospitality. Some courses run for 12 months, others for two or three years. ABS currently provides employment based training to about 100 trainees in 12 workplaces. Four part-time ABS trainer/assessors are responsible for the training and assessment that takes place in those workplaces and for the conferral of nationally recognised qualifications.
ABS describes the model it uses as an employment based model. Mr Jain, ABS's sole director and chief executive officer, summarised ABS's role as involving "enrolment of trainees, learning and special needs assessment, orientation, learning and honing of skills through day to day work functions and continuity of employment, employer feedback on trainees' performance on the job, monitoring and assessment of competencies and post-assessment feedback." Apart from the occasional need for a trainee to receive formal or structured training off-site, for example to obtain a first aid certificate or a certificate relating to the responsible service of alcohol, ABS's model does not include routine formal face to face training. Skills are learnt on the job with the training being delivered, in the most part, by workplace trainers rather than ABS trainer/assessors.
The Standards
The relevant standards applicable to RTOs when ASQA made the decisions were the Registered Training Organisation (RTO) standards. Since 1 July 2011, those standards have been superseded by the VET Quality Framework (including the Standards for NVR Registered Training Organisations). The standards applicable at various times were:
(1)Australian Quality Training Framework (AQTF) 2007 Essential Standards of Registration (AQTF 2007) - effective to 31 August 2010;
(2)AQTF Essential Conditions and Standards for Continuing Registration (AQTF 2010) - effective from 1 September 2010 to 30 June 2011; and
(3)Standards for NVR Registered Training Organisations 2011 (SNR) - effective from 1 July 2011.
For the purposes of these proceedings the three sets of standards are equivalent. We will refer mainly to the SNR standards. ASQA submitted that when the Tribunal heard this matter in March and May 2012, ABS remained non-compliant with SNR 15.3 (in relation to the direct supervision non-compliance), SNR 15.5(b) (in relation to the assessment non-compliance) and SNR 16.5 (in relation to all three non-compliances).
SNR 15.3
Staff, facilities, equipment and training and assessment materials used by the NVR registered training organisation are consistent with the requirements of the Training Package or VET accredited course and the NVR registered training organisation's own training and assessment strategies and are developed through effective consultation with industry.
SNR 15.5(b)
Assessment including Recognition of Prior Learning (RPL):
is conducted in accordance with the principles of assessment and the rules of evidence.SNR 16.5
Learners receive training, assessment and support services that meet their individual needs.
Witnesses
Ms Trigg, an employee of ASQA, gave evidence that in her view, ABS was not compliant with SNR 15.3, 15.5(b) and 16.5. She has worked as an auditor for over 8 years and is currently a Principal Compliance Auditor. She did not conduct any of the audits ASQA carried out on ABS nor did she make the internal review decision to affirm the cancellation decisions.
While Ms Trigg did her best to answer the questions she was asked, she was often unable to give clear, specific and consistent answers. For that reason, we have not placed a great deal of weight on her views.
Evidence for ABS was given by Mr Jain, its sole director and chief executive officer. In general, he answered the questions asked of him in a straightforward manner. However, that was not the case in relation to questions about whether ABS trainer/assessors were present at any times when the workplace trainers were delivering training to the trainees. In addition, we were not persuaded by Mr Jain's answers in relation to the issues of assessment and support for the needs of individual trainees.
ABS's lawyers engaged an expert witness, Mr Westenberg. He has been employed in the vocational education sector for over 15 years, including two years as the Air Force AQTF leading auditor. Mr Westenberg agreed to be bound by the Expert Witness Code of Conduct (Schedule 7 to the Uniform Civil Procedure Rules 2005. See also ADT Practice Note 14). That Code includes the following items:
(2) An expert witness's paramount duty is to the court and not to any party to the proceedings (including the person retaining the expert witness).
(3) An expert witness is not an advocate for a party.
Mr Westenberg gave the impression in both his written reports and oral evidence that his priority was to defend ABS's practices, rather than to provide an independent opinion. In various places, his reports attempt to make out a case for ABS, rather than reporting objectively on the information with which he had been provided. At one stage, when responding to a question about whether or not ABS had had several opportunities to establish that their business was compliant, Mr Westenberg said words to the effect of "the goal posts have been moving, and we seem to be trying to play catch up." This comment is indicative of our impression that Mr Westenberg was motivated to defend ABS's position. We have approached his evidence with that in mind.
Direct Supervision Non-Compliance
Background
A workplace trainer must have the relevant training and assessment competencies determined by the National Quality Council. For example, he or she may hold a Certificate IV in Training and Assessment. Alternatively, if the workplace trainer does not have the relevant training and assessment competencies, he or she must deliver training under the "direct supervision" of a person who does have those competencies.
The current determination by the National Quality Council is Appendix 3 to the Users' Guide to the Essential Conditions and Standards for Continuing Registration. The Determination, dated 18 December 2009, describes what is required for "direct supervision" in the Note at end of the Determination.
Appendix 3 Training and assessment competencies to be held by trainers and assessors
Determination of the National Quality Council 18 December 2009
The AQTF Essential Standards for Registration specifies the requirements to be met by RTOs throughout their period of registration. The National Quality Council is responsible for determining the training and assessment competencies to be held by trainers and assessors in accordance with Standard 1.4(a) as set out below.
Standard 1 The RTO provides quality training and assessment across all of its operations.
Element 1.4 Training and assessment are delivered by trainers and assessors who:
a) have the training and assessment competencies determined by the National Quality Council or its successors
b) have relevant vocational competencies at least to the level being delivered or assessed
c) continue to develop their vocational and training and assessment competencies to support continuous improvement in the delivery of RTO services.The current National Quality Council policy in relation to Standard 1.4(a) is shown below.
Trainers must:
i) hold the Certificate IV in Training and Assessment (TAA40104) from the Training and Assessment Training Package; or
ii) be able to demonstrate equivalent competencies; or
iii) hold the Certificate IV in Assessment and Workplace Training from the superseded Training Package for Assessment and Workplace Training (BSZ98), or
iv) be able to demonstrate that prior to 23 November 2005 they had been assessed as holding equivalent competencies to the Certificate IV in Assessment and Workplace Training from the Training Package for Assessment and Workplace Training (BSZ98); or
v) work under the direct supervision* of a person who has the competencies specified in (i) or (ii) or (iii) or (iv) above; and
be able to demonstrate vocational competencies at least to the level of those being delivered.Note: Direct supervision is achieved when a person delivering training on behalf of the RTO has regular guidance, support and direction from a person designated by the RTO who has the trainer competencies in (i), (ii), (iii) or (iv) above and who monitors and is accountable for the training delivery. It is not necessary for the supervising person to be present during all training delivery.
ABS's director, Mr Jain, gave evidence that ABS currently has workplace trainers in 12 workplaces training approximately 100 trainees. Three of the eleven workplace trainers for whom ABS provided details have the required qualifications or equivalent competencies to train trainees. However, ABS did not rely on any of the workplace trainers being qualified trainers. Their business model is to directly supervise all workplace trainers regardless of their training qualifications.
Each of the four ABS trainer/assessors, who work part-time on a contract basis, has the necessary qualifications or competencies set out in the Determination. They are all eligible to directly supervise the workplace trainers.
Issues
The issues in relation to direct supervision can be summarised as follows:
(1)Does "direct supervision" as explained in the Note to the Determination, mean that an ABS trainer/assessor should be present for at least some of the time when a workplace trainer is delivering training?
(2)If so, are ABS trainer/assessors present at least some of the time when a workplace trainer is delivering training?
(3)If not, does that requirement mean that ABS is non-compliant with one or more of the standards?
(4)If so, does that non-compliance, either by itself or in conjunction with any other non-compliance, justify cancellation of ABS's registration?
Meaning of "direct supervision"
ASQA submitted that the Note to the Determination means that an ABS trainer/assessor must be present at the workplace to observe the training being delivered by the workplace trainer at least some of the time. That conclusion was said to arise from the fact that the Note states that it is not necessary for the supervising person to be present during all training delivery. (Emphasis added.) It follows, according to ASQA, that it is necessary for the supervising person to be present during at least some of the time when training is being delivered by the workplace trainer.
ABS does not agree with that interpretation. It says that the obligations of the ABS trainer/assessor are contained in the first sentence of the Note. Those obligations are to guide, support and direct the training and to monitor and be accountable for the training delivery. According to ABS, the second sentence is merely a qualification or an explanation of the obligations in the first sentence. A statement that it is not necessary for the person in the position of the ABS trainer/assessor to be present during all training delivery does not impose an obligation on that person to be present for some of the time when the training is being delivered.
Mr Westenberg, ABS's expert witness, stated that ABS trainer/assessors do not deliver training per se and that his understanding was that the workplace trainer is delegated to deliver the training. According to Mr Westenberg, the ABS trainer/assessor does not have to "stand there" while on the job training is delivered. That understanding accords with Mr Jain's description of the way ABS conducts its business.
However, during cross-examination, Mr Westenberg said that it is necessary for the ABS trainer/assessor to be present for some of the time when training is being delivered. He also agreed that more than one visit would be necessary to ensure that the workplace trainer was delivering the training appropriately. He said that the details of how this would be ascertained would be discussed in meetings between the ABS trainer/assessor and the workplace trainer. This inconsistency in Mr Westenberg's evidence and his lack of direct knowledge of the day to day operations of ABS, makes his evidence on this point unconvincing.
Ms Trigg's oral evidence on the issue of direct supervision was vague and inconsistent. During cross-examination, Mr Jarrett, representing ABS, asked her questions about whether the evidence satisfied her that ABS trainer/assessors were adequately supervising the workplace trainers. Ms Trigg was shown documentation including checklists and signatures in relation to the issue of supervision generally. She was not satisfied on the basis of that evidence that ABS trainers were being directly supervised but she could not be specific as to what would satisfy her that that was the case.
We agree with ASQA's interpretation of "direct supervision" in the Note to the Determination. While the Note makes it clear that the supervising person does not need to be present during all the training delivery, the implication is that they must be present during some of the training delivery. If the intention were that supervisors need not be present when training was being delivered, the word "all" would not have been included.
ASQA's interpretation of "direct supervision" in the Note makes sense in the context of RTOs that provide training and assessment to trainees who are undertaking their training on the job with little or no formal or structured training. The courses which ABS delivers do not involve the trainee attending an RTO one day a week, for example, as is the case with some apprenticeship schemes. On the job training is a process by which an experienced person in the workplace passes on knowledge and skills to enable the trainee to carry out a particular task. The person with experience in the subject matter of the course does not necessarily have recognised skills in training and assessment. In order to effectively supervise the training delivery, it is necessary for a qualified person, such as an ABS trainer/assessor, to observe and evaluate the quality of the training being delivered, at least on some occasions.
Contrary to ABS's submission, it cannot be assumed that because an ABS trainer/assessor supervises the overall process, or that a trainee has been assessed as competent, that appropriate training processes have been followed and the requirements of the training package met.
Are the ABS trainer/assessors present at the workplace?
The evidence about whether ABS trainer/assessors are present to observe the training being delivered at least some of the time was inconsistent and imprecise.
Mr Jain, the sole director of ABS, gave evidence that the ABS trainer/assessors usually visits each workplace every month or six weeks. He said the longest period between visits would be three months. Mr Jain provided a list of sixteen areas which he said were involved in ABS trainer/assessors supervising or overseeing the traineeship program. He provided documentation to support his evidence that guidance, support and monitoring were being carried out by ABS trainer/assessors. Two of the sixteen points, mentioned at paragraph 15(h) and (j) of his 18 April 2012 affidavit, relate to the monitoring of workplace training. Mr Jain stated that supervision involved:
(h) The conduct of an orientation program with both the trainees and the workplace trainer. The provision of information and explanations concerning the qualifications, including learning and evidence requirements for assessment, work-based training and monitoring process, the role of workplace trainers and the monitoring of the training and the mentoring process.
. . .
(j) The rendering of regular advice to workplace trainers as to how best to train for critical aspects of training and meeting performance criteria for units of competence of training plan.
While these items refer to monitoring of the training and the provision of advice about training, there is no reference to ABS trainer/assessors observing training being delivered.
Mr Jain's oral evidence on the specific issue of whether ABS trainers were ever present in the workplace when training was being delivered was not specific. He said that if the workplace trainer does not have the skills to deliver the training, training may be undertaken directly by an ABS trainer/assessor or by an external provider. When asked whether the ABS trainer/assessors are on site when the workplace trainers are delivering the training, his first answer was, "Training is carried out on the job and we provide resources, work book, homework." Later Mr Jain said that the ABS trainer may be present when the training activity takes place or he may not. When asked whether it was acceptable for the ABS trainer/assessor never to be present when training is delivered he answered that, "It depends on the circumstances." Finally Mr Jain agreed that in most cases the training is delivered by the workplace trainers but that the training took place under the "direct supervision" of ABS trainer/assessors. Mr Jain did not say that "direct supervision" included observation of some of the workplace training.
ABS provided one example of an "Employer Contact Log" which was said to support the assertion that ABS trainers/assessors sometimes supervise the workplace trainer by being present at the workplace to monitor the training being delivered. The Contact Log is a record of communications by one of ABS' trainer/assessors, AS, in relation to a particular trainee during the period from 30 October 2008 to 7 August 2009. The course the trainee was undertaking was Certificate IV in Business Administration.
It is apparent from the Contact Log, and from Mr Jain's evidence, that the ABS trainer/assessor (AS) personally delivered some training to the trainee on seven occasions between 13 November 2008 and 31 July 2009. Mr Jain said that both AS and the workplace trainer would have been present when the training was being delivered. He also made the point that training is not "delivered" in one day.
The context in which this Contact Log was prepared, or the specific reason for it being prepared, were never explained. When recalled to give evidence on another point, Mr Jain said that if a workplace trainer is not performing to the standard required, the ABS trainer/assessor has to provide more input. He used the Contact Log as an example.
We have inferred from the Contact Log, and from other evidence, that in some circumstances an ABS trainer/assessor will deliver the training personally. An example of the former was said to be that a trainee might be taken off site to receive training on the use of spreadsheets. External trainers may train in first aid or responsible service of alcohol.
Ms Trigg, ASQA's witness, agreed that supervision includes the visits that take place at the workplace but those visits do not demonstrate that supervision is being carried out in relation to the actual delivery of the training. She based her opinion on various inconsistencies, inaccuracies and what she called "lack of diligence". These examples did not support her opinion about the delivery of training. Nevertheless we understand her evidence to be that while ABS provided documentation which satisfied her that some "direct supervision" was taking place, it was not sufficient.
There was evidence that ABS trainer/assessors regularly visit workplaces and discuss the progress of the training and various other matters reflected in checklists provided by ABS. There was also evidence that ABS trainer/assessors personally deliver training on some occasions and that training is delivered off-site when necessary. There was no evidence of routine or even occasional observation of training delivery. Mr Jain did not directly assert that ABS trainer/assessors were present when workplace trainer/assessors were delivering training. On the basis of all the evidence, we are not satisfied that ABS trainer/assessors were routinely present at workplaces to observe training being delivered by the workplace trainers.
Does the failure to be present mean that ABS is non-compliant with one or more of the standards?
In relation to the direct supervision issue, the two standards with which ASQA says ABS does not comply are SNR 15.3 and SNR 16.5. Those standards are that:
15.3 Staff, facilities, equipment and training and assessment materials used by the NVR registered training organisation are consistent with the requirements of the Training Package or VET accredited course and the NVR registered training organisation's own training and assessment strategies and are developed through effective consultation with industry.
16.5 Learners receive training, assessment and support services that meet their individual needs.
Standard 15.4 is also relevant:
15.4 Training and assessment is delivered by trainers and assessors who:
(a) have the necessary training and assessment competencies as determined by the National Quality Council or its successors; and
(b) have the relevant vocational competencies at least to the level being delivered or assessed; and
(c) can demonstrate current industry skills directly relevant to the training/assessment being undertaken; and
(d) continue to develop their vocational education and training (VET) knowledge and skills as well as their industry currency and trainer/assessor competence.The equivalent of SNR 15.4 [Standard 1.4(a)] is the Standard referred to in the Determination by the National Quality Council which sets out the training and assessment competencies to be held by trainers and assessors. ABS was not on notice of the fact that Standard 15.4 was relevant until ASQA raised the direct supervision issue on the third day of the hearing. Despite the late notice of this issue, ABS made submissions about the meaning and applicability of the National Quality Council's Determination and their witnesses were asked questions about ABS's compliance with that Standard. ABS did not apply for an adjournment when the issue was raised. In those circumstances we are satisfied that ABS has been afforded procedural fairness in relation to this issue.
The Note to the Determination is a policy document, not a legislative provision, but it explains what is required by SNR 15.4. Non-compliance with the Determination should be regarded as non-compliance with SNR 15.4.
ABS has not complied with SNR 15.4 because, as provided for in the Determination, workplace trainers are not being directly supervised by a qualified trainer/assessor. ABS has failed to ensure that a qualified trainer/assessor is present to observe the workplace trainer delivering training on at least some occasions. We are also satisfied that ABS has failed to comply with SNR 16.5. When unqualified workplace trainers are not being directly supervised as intended, there is potential for trainees to receive training that does not meet their individual needs and does not meet the requirements of the training package.
Does non-compliance justify cancellation of ABS's registration?
The final issue is whether non-compliance, either by itself or in conjunction with any other non-compliance, justifies cancellation of ABS's registration. We will address that issue after determining whether either of the other two alleged non-compliances have been established.
Support services non-compliance
Background
A standard with which ABS must comply (SNR 16.5) is that "Learners receive training, assessment and support services that meet their individual needs." Individual needs may arise in relation to many areas including language, literacy and numeracy skills, a disability or ill health, age, gender, non-English speaking background and family responsibilities. Indigenous trainees, and trainees who have recently returned to the workplace, may also have individual needs.
Issues
The issues that arise in relation to this alleged non-compliance are:
(1)Does ABS provide trainees with training, assessment and support services that meet their individual needs?
(2)If not, is ABS non-compliant with SNR 16.5?
(3)If so, does that non-compliance, either by itself or in conjunction with any other non-compliances, justify cancellation of ABS's registration?
Does ABS provide trainees with training, assessment and support services that meet their individual needs?
ABS has a policy for identifying and meeting the training and individual needs of trainees. The policy states, in part, that:
[ABS] ensures that the needs of students are identified and documented to ensure proper adaptation in delivering training and/or assessment. The purpose of this procedure is to ensure individual needs such as learning needs and the needs of a diverse range of individuals are accurately captured and to apply those identified needs to the delivery and assessment process.
The policy categorises needs into learning needs and individual needs. Examples of learning needs include literacy and numeracy, language, study path needs, physical/emotional needs and specific personal needs. Many of the examples of individual needs overlap with the learning needs including language, literacy and numeracy. Attention spans and other intellectual characteristics are also included.
Under the heading "Meeting Training and Individual Needs", the ABS policy states that:
The Training Manager acting on [ABS's] behalf and in consultation with employers will outsource qualified support contractors on a needs only basis. The CEO will be consulted during this process.
Although the policy refers to learners and support services, the main evidence of a method by which needs were identified were questionnaires entitled "Learning Needs and Special Support." Mr Jain gave evidence that his understanding of the effect of the Learning Needs and Special Support Forms was that none of the trainees had a special need for which support was required. The forms have a "yes", "no" and S/N (support needed) box against each "need". For some trainees the "yes" box is ticked for "reading, writing and mathematical skills" and the "no" box is ticked for everything else. For other trainees the "no" box is ticked for every item and the word "needs" is written next to the language, literacy and numeracy skills heading. The forms are signed by the workplace trainer, the ABS trainer/assessor and the trainee.
The way that the forms have been drafted and completed is confusing. As there are both "Y" and "S/N" options which are ticked inconsistently, it is not possible to ascertain from those forms whether any individual trainee had a learning or individual need. One thing that is clear is that no management action was taken in relation to any individual need that a trainee may have had. Mr Jain conceded that in its eight years of operation ABS had never taken any action to meet an individual need of a trainee. Apart from giving extensions of time to complete assessments and re-delivering training in certain circumstances, there was no evidence of any efforts to meet the individual needs of trainees when providing training, assessment or support services.
Mr Jain has recently amended that part of the form that relates to language, literacy and numeracy. The form is now drafted so that ticking "yes" next to the three items under that heading will indicate that the trainee does not require any special support. While this amendment is an improvement, the form is still ambiguous because ticking "yes" next to the headings relating to other areas where support may be needed indicates that the trainee does require special support. Furthermore there is no indication on either the original or the amended form that the abbreviation S/N means "support needed". For those reasons we do not agree with Ms Trigg's or Mr Westenberg's opinion that the amended document has removed any ambiguity.
The only other relevant document was a document entitled "Record of Monitoring, Mentoring and Assessment Visit". That document provides for the trainee, the workplace trainer and the ABS trainer/assessor to indicate by ticking a box, whether or not the trainee needs support for training and assessment. The box was ticked "No" in the example provided.
Despite having a policy in place and a form which purports to identify a trainee's individual needs, ABS, by its own admission, has never taken any management action to support a trainee's individual needs. That conclusion applies not only to the nine trainees whose forms were in evidence, but to every trainee who has ever trained with ABS.
ASQA submitted that in ABS's eight years of operation, there would have been trainees with learning or individual needs who required management action of some kind to support them when undertaking training and assessment. Mr Jain disagreed. He said that because trainees are employed and have been identified by their employer as being suitable for training, it is not surprising that none had special needs requiring management action.
Mr Westenberg expressed similar views. In his November 2011 report, he said that ". . . ABS undertakes more than enough student support services in co-operation with the employer and mentor who is vigilant in providing employee support services to their employees." He added that in one student file examined on a site visit, it was evident that these policies were being followed.
In oral evidence, Mr Westenberg said that as the trainees are employed, their employer, not ABS, is responsible for accommodating any disability they may have. He also said that many of the trainees are young university students who were employed to fund their studies. While he would be surprised if no one required management action for an individual need if the trainees were representative of the general population, he was not surprised that young employed people had not required such action.
We are perplexed by this evidence. The trainees who ABS trains are completing vocational training. We would have thought it unlikely that they would also be enrolled in a university course. Mr Westenberg's evidence was affected by his tendency to defend ABS and advocate for them, rather than expressing an objective view. We query how Mr Westenberg formed the view that the employers and workplace trainers were "vigilant in providing employee support services to their employees." We are also sceptical about Mr Westenberg's speculations on the lack of need for management action to support trainees.
While we accept that trainees are likely to be young people in their late teens and twenties, we do not agree with Mr Jain's or Mr Westenberg's assertion that during an eight year period no trainee had learning or individual needs which required ABS to modify or adjust the training and assessment it provided to meet or support that need. The group comprises several hundred mostly young people studying a variety of vocational subjects while working. Some would be new entry trainees while others would have completed some workplace training. While the employer is obliged to comply with obligations under state and federal anti-discrimination and workplace laws, the responsibility to support trainees in relation to their training and assessment lies with the Registered Training Organisation.
We take judicial notice of the fact that in such a group, one or more trainees will have had an individual or learning need, either identified at the commencement of training or as the training progressed, that required some action by the body responsible for training and assessment. That is a fact that is so obvious that it needs no evidence.
Is ABS non-compliant with SNR 16.5?
ABS is non-compliant with SNR 16.5 because not all trainees are receiving training, assessment and support services that meet their individual needs.
The final issue is whether non-compliance, either by itself or in conjunction with any other non-compliances, justifies cancellation of ABS's registration. We will address that issue after determining whether the assessment non-compliance has been established.
Assessment non-compliance
Background
SNR 15.5(b) states that "Assessment . . . is conducted in accordance with the principles of assessment and the rules of evidence." The principles of assessment and rules of evidence from the BSB07 training package relating to Assessment Guidelines, defines the Principles of Assessment and Rules of Evidence. The Principles of Assessment are validity, reliability, flexibility, fairness and sufficiency. The rules of evidence are that the collection of evidence must be: valid, sufficient, current and authentic.
Issues
The issues in relation to assessment can be summarised as follows:
(1)How does ABS conduct assessments?
(2)Does ABS comply with SNR 15.5(b) by conducting assessments in accordance with the principles of assessment and the rules of evidence?
(3)If not, does that non-compliance, either by itself or in conjunction with any other non-compliance, justify cancellation of ABS's registration?
Assessing competence
ABS provided some blank copies of assessment documents for the unit "Maintain Business Resources". While providing an example of the documentation that ABS uses, that material did not assist us to reach a conclusion about compliance. ABS also provided one example of a completed assessment record of a student as evidence of its compliance with this standard. The student was enrolled in a Certificate III in Business and was assessed in relation to a unit of competence called "Deliver and Monitor a Service to Customers."
The assessment was said to comprise four components: question and answer, observation, third party report and written response. The documentation records that on 26 September 2009 an ABS trainer/assessor visited the workplace and met with the trainee and the workplace trainer. The assessments were conducted on that day.
Assessment Task 1 comprised four questions requiring short written answers. In most cases the answers were of similar length to the questions. The trainee was regarded as "competent" in relation to her response to those questions.
Task 2 required the trainee to write a short guide to customer service for the representative of the organisation. Nine dot points directed the trainee to the issues to be covered in the guide. The trainee provided a 43-word response which was largely a re-wording of some of the dot points provided in the question.
Ms Trigg's criticism of this assessment was that although the trainee was marked as competent, the trainee's answer does not justify that assessment. In addition, she said that the task is not a reliable measure of competence as neither the trainee's name nor the location of the training is identified on the form. Finally she said that this is only one task and the assessment of competency should be based on all the assessments.
Mr Jain explained that by marking "C" for competent at the bottom of Task 2, the ABS trainer/assessor is not saying that the trainee has competently answered that particular question. Rather, the "C" indicates that the trainee has been assessed as being competent in relation to the entire unit. To avoid confusion about using the "C/NYC" (competent/not yet competent) option on each individual assessment task, Mr Jain said that he has removed that option from the bottom of each assessment task.
According to Mr Jain, all the documents provided, together with the oral questioning and discussion with employers and records of work activities, comprise the evidence for assessing the unit, "Deliver and Monitor a Service to Customers". Mr Jain emphasised that a trainee's competence is measured not only through the assessment tasks but through the observations and involvement of both the ABS trainer/assessor and the workplace trainer over the period that the unit is being delivered. He expressed the view that it is the ABS trainer/assessor who observes and has first hand knowledge of the trainee's skill levels and forms a view of their competence.
If there are other activities, observations or discussions which form part of the assessment, no documentary evidence of them has been provided. In particular there was no evidence of any policy on summative assessment being implemented.
In written evidence Mr Westenberg agreed with ASQA that the answer provided in response to Task 2 was insufficient to justify a determination of "competent." He added that "as is the case in many students' assessment pathway, some assessments do determine that the student needs remediation. [Task 2] is such an assessment. However, [the student] based upon the other assessments already mentioned do add up to her being competent.
When questioned on this issue during cross-examination, Mr Westenberg emphasised that he is not a "subject matter expert." By that, we assume that he means that he does not have the vocational qualification to train trainees in the unit, "Deliver and Monitor a Service to Customers". Nevertheless he conceded that the answer to Task 2 should be more detailed and is probably inadequate.
An assessment headed, "Record of Demonstration/Observation/Role Play" contained three elements: identify customer needs; deliver a service to customers and monitor and report on service delivery. Within each element there were between four and six dot points that broke the element down into more specific skills. The ABS trainer/assessor provided one comment on each of the three elements.
For the first element, in relation to identifying customer needs, the ABS trainer/assessor wrote the following comment: "Observed clear interpersonal skills when providing customer service sales info to clients via electronic and face to face interactions." That response purported to address four separate performance criteria.
In relation to the second element, "Deliver a service to customers", the ABS trainer/assessor wrote the following comment: "Observed providing customer service to clients being interactive using their interpersonal skills in conversations - quick to reply - builds rapport during sales process and after sales service." That response purported to address five separate performance criteria.
In relation to the third element, "Monitor and report on service delivery", the ABS trainer/assessor wrote the following comment: "Observed with the IHU sales reports used by IHU and the IHU processes for documenting this". That response purported to address six separate performance criteria. The remaining two elements, "Required Skills" and "Critical aspects for Assessment" were addressed in the same perfunctory style.
Ms Trigg gave evidence that it was not clear from the documentation what the context was for the "Record of Demonstration/Observation/Role Play" assessment. She said the document had insufficient detail of where or when the activity took place, who was involved or how long it took. Mr Westenberg's evidence on this point was that he assumed that the context was the workplace.
In addition, Ms Trigg said the trainer/assessor's response was inadequate because there was no alignment across each of the criteria. She said the trainer/assessor had made a general comment which did not align the trainee's achievement with the criteria. By this, we have assumed that she meant that there was no separate response to each of the dot points.
The final document comprising the assessment was a "Third Party Report" completed by the workplace trainer which ranked the trainee on a scale of 0 to 10 in relation to three competencies: capability in identifying customer needs, competence in delivering a service to customer and ability to monitor and report on services delivery. The trainee scored 8, 9 and 9 respectively. Mr Jain gave evidence that the document had been changed from providing a "C/NYC" to providing a scale from 0 to 10 following criticism from a VETAB (now ASQA) auditor. He understood that the reason for deleting the C/NYC option was because only the ABS trainer/assessor could give the final assessment of competent or not yet competent.
When asked whether the ranking of 0 to 10 was appropriate, Ms Trigg first said, "I don't know", then "probably", then "maybe".
We accept Mr Jain's evidence on this issue. We also accept that the auditor was correct when he suggested that the "Third Party Report" document be amended. It follows that any criticism by ASQA in relation to the marking scale used on this document is not justified.
Mr Westenberg's overall evaluation was that the documents relating to assessment and policy demonstrate that:
(1)the student is provided with a description of the assessments through the Student Handbook
(2)the student is provided with a mentoring visit
(3)the student's supervisor provides a Third Party report
(4)the student undertakes a written/oral questionnaire to determine their grasp of the underpinning theory/knowledge
(5)the student then undertakes the practical assessment
(6)all of these are then combined to determine whether or not the student has been able to demonstrate competence
(7)all of this is recorded and signed by the student, the assessor and the supervisor
(8)finally, the student provides feedback on all aspects of their assessment.
Mr Westenberg's overall assessment of the evidence was that if the trainee had been assessed as "not yet competent", more detail would have been provided but as the trainee was assessed as competent, sufficient detail has been provided. This response was not a convincing explanation for the token responses given by the ABS trainer/assessor in relation to Task 2.
Ms Trigg's overall view was that while the assessment had sufficient components (question and answer, observation, third party report and written response) the quality of the assessment was deficient. She said it was not sufficient or fair.
Does ABS comply with SNR 15.5(b)?
We note that ABS uses commercial assessment materials which are "Quality Noted" by the National Quality Council. Our findings do not relate to the assessment materials themselves but to the manner in which the assessment has been conducted and the conclusions which have been drawn. We have based our decision on the sample assessment tasks for an individual student for one unit of competence and the evidence about the assessment process in general. That evidence does not satisfy us that ABS is complying with the principles of assessment and the rules of evidence.
The resolution of this issue is not simply a matter of accepting either Ms Trigg's evidence or Mr Westenberg's evidence. We have to come to our own view based on the documents themselves as well as the oral and written evidence.
Both the principles of assessment and the rules of evidence require "sufficiency". There is insufficient evidence in the material provided by ABS to support the conclusion that the trainee is competent against all elements and performance criteria. Many of the performance criteria listed in the Record of Demonstration/Observation/Role Play were not addressed by the ABS trainer/assessor.
The validity and reliability of the assessment is also in doubt, particularly in relation to the trainee's answer to Task 2. One does not have to be a subject matter expert to appreciate that that answer does not reflect competence on the part of the trainee. While that is not the only measure of competence, there is no satisfactory explanation as to how the trainee was regarded as competent overall having given such an answer.
We are not satisfied that ABS is compliant with SNR 15.5(b).
Do the non-compliances, either alone or in combination, justify cancellation?
Direct supervision
Mr Jarrett, representing ABS, highlighted the fact that the direct supervision issue was not raised expressly until the third day of a five day hearing. Prior to that time, the issue had been identified as the workplace trainers and/or the ABS trainer/assessors, not having the necessary training and/or vocational qualifications. He said that while ABS has had an opportunity to address other criticisms of its operation, it has not had an opportunity to address the direct supervision non-compliance.
In the original audit report conducted by ASQA in April and June 2010, the auditor found ABS non-compliant with Standard 1.4 (SNR 15.4). The internal review decision did not indicate any non-compliance with Standard 1.4 and non-compliance with that standard does not appear in ASQA's Position Paper filed on 26 March 2012 as amended on 16 May 2012. ASQA's concern at that stage was that ABS trainer/assessors and/or the workplace trainers did not have the necessary training qualifications.
On the third day of a five day hearing, ABS clarified that the workplace trainers do not have to have any training qualifications when they deliver training under the direct supervision of ABS trainer/assessors.
ABS had an adequate opportunity to respond to the issue of direct supervision and did so. ABS does not have workplace trainers on each site with the required training and assessment competencies. It is dependent on ABS trainer/assessors who do have the required competencies, to visit sites and directly supervise the workplace trainers. We have found that ABS was not directly supervising its workplace trainers. This is a fundamental issue. In circumstances where training takes place almost exclusively 'on the job' and is delivered by trainers who, for the most part, do not have training qualifications, it is critical that they be directly supervised, including being observed delivering the training at least some of the time.
Individual needs
In its eight year history, ABS had not taken management action to meet an individual need of a trainee. We do not agree with ABS's witnesses' when they said that no trainee had an individual need which required action on ABS's part. ABS did not have appropriate procedures in place to identify trainees who required support services. ABS was wrong in its assumption that support would be provided by the employer and/or that because of the demographics of the group, none needed support from ABS. It was ABS's responsibility, not the responsibility of the employer, to provide support in relation to training and assessment. ABS was not genuinely attempting to identify and support trainees. This is another fundamental breach of the RTO standards.
Assessment
We were not satisfied that the sample, completed assessment materials met all evidence requirements and conformed to all the principles of assessment. The ABS trainer/assessor is ultimately responsible for the assessment of trainee competence. Again, this is a fundamental breach of the RTO standards.
Feedback from employers and trainees
ABS relied on documents which it said showed a high level of satisfaction with the services it provides. The documents were reports from ACER (Australian Council for Educational Research) for 2009, 2010 and 2011 and documents entitled "Enterprise Feedback" for various dates from 2005 to 2008. Ms Trigg agreed that the ACER reports record a high level of satisfaction with ABS' services. We accept that there is no evidence of any general dissatisfaction from employers or trainees.
Conclusion
Each of the non-compliances represents a failure to comply with one or more of the required RTO standards. Training and assessment which complies with the RTO standards must be provided regardless of whether training is delivered face to face in a formal or structured environment or on the job in the workplace.
The non-compliances, in combination, justify cancellation. Providing trainers with the requisite skills or ensuring that they are directly supervised, undertaking compliant assessments of a trainee's competence and ensuring that trainees are supported are fundamental to the delivery of quality training by an RTO.
Mr Jain said that if ABS was found to be non-compliant with any standards he undertook to rectify the non-compliance as soon as possible. Given that the non-compliances relate to training delivery, assessment and individual needs, they are too widespread and fundamental to risk allowing ABS to continue operating.
Costs
Introduction
ABS applied for costs. The general rule is that each party is to bear his or her own costs. The Tribunal may award costs, but only if satisfied that it is fair to do so having regard to various matters: ADT Act, s 88. The factors in s 88 on which ABS relied to submit that an order for costs should be made in its favour were:
(1)whether a party has conducted the proceedings in a way that unnecessarily disadvantaged another party to the proceedings,
(2)whether a party has been responsible for prolonging unreasonably the time taken to complete the proceedings,
(3)the relative strengths of the claims made by each of the parties, including whether a party has made a claim that has no tenable basis in fact or law,
(4)the nature and complexity of the proceedings,
(5)any other matter that the Tribunal considers relevant.
Unnecessarily disadvantaging another party
The Tribunal can consider the entirety of ASQA's conduct in determining whether it is fair to make a costs order. The conduct which was said to unnecessarily disadvantage ABS was:
(1)that ASQA did not identify the "main" issue in the case, the "direct supervision" issue, until the third day of hearing; and
(2)that ASQA did not ultimately rely on several non-compliances that were identified in the Report of Non-Compliances (RNC).
ASQA did not raise the "direct supervision" issue until the third day of the hearing. ABS submitted that that conduct unnecessarily disadvantaged it and constituted a breach of procedural fairness.
ASQA initially alleged that not all the workplace trainers had the necessary qualifications. While that issue was ultimately not relied on, ABS agreed that most of the workplace trainers did not have the training and assessment qualifications necessary to deliver training in their own right. The point that all their workplace trainers required direct supervision was not made by ABS until after ASQA raised the direct supervision point at the hearing. ABS could have clarified from the outset that the majority of their workplace trainers did not have training and assessment qualifications and that its model was that all workplace trainers were being directly supervised. If that had been done, less time would have been wasted on whether the ABS trainer/assessors and the workplace trainers had the necessary qualifications. We do not consider that ASQA's conduct in relation to this issue justifies a costs order.
An alleged breach of procedural fairness is not something that would generally make it fair to make a costs order. ABS did not seek an adjournment to obtain instructions or adduce further evidence in response to the direct supervision issue when it was raised. A party who is legally represented can be expected to apply for an adjournment if it considers that it has not had an adequate opportunity to respond to a new point. In the absence of such an application, ABS cannot now rely on procedural unfairness as a ground for a costs order.
The second point that ABS made in relation to conduct which disadvantaged them was that the three grounds on which ASQA ultimately relied were "significantly reduced" from the grounds relied on in the Respondent's Report of Non Compliances (RRNC) filed on 16 January 2012.
In March 2012, at the Tribunal's direction, ASQA filed a document entitled "Respondent's Position Paper" (RPP) which was an amended report of non-compliances on which it then relied. ABS wrote to ASQA requesting clarification of the matters relied on in the RPP. ASQA responded by conceding that some matters were not relied on and, in relation to other matters, referring ABS back to the RPP. While some further particulars and clarifications were provided by ASQA, we accept ABS's criticism that it was not until the hearing that other matters were clarified or not pressed. For example, ASQA withdrew the allegation that the assessments were not systematically validated.
We accept that after Ms Trigg gave evidence that she was satisfied that the assessments had been systematically validated, ASQA withdrew that objection. In relation to Ms Trigg's remaining criticisms, we agree with ABS that she was unable to justify her opinion that there were inconsistencies in relation to the sample assessment or a general "lack of diligence", whatever she meant by that expression.
Overall, we accept that ABS was put to some unnecessary expense in having to respond to matters which were ultimately changed, clarified or withdrawn. Ideally, the matters on which ASQA relied should have been fully particularised prior to ABS having to file its evidence. Nevertheless, ASQA modified and/or abandoned various grounds as soon as further information or evidence came to light. We do not regard ASQA's conduct as unnecessarily disadvantaging ABS.
Relative strength of claims
The second limb on which ABS relies to support its application for costs is that ASQA's case was weak and/or that it had no tenable basis in fact or law. That submission was made in relation to the direct supervision issue, the adequacy of the assessment and support for individual needs. Apart from the non-compliances which were withdrawn, we have found each of these grounds to be established. Consequently, we do not consider it fair to make a costs order based on any weakness or lack of merit in ASQA's decision.
Nature and complexity of the proceedings
ABS did not make a new point in relation to this ground. It relied on its previous submissions that the proceedings were made more complex than necessary because of the changes ASQA made in relation to the grounds on which it relied. We do not consider the proceedings to have been particularly complex. ASQA relied on documents and called one witness, Ms Trigg. ABS relied on documents and called two witnesses, Mr Jain and Mr Westenberg.
In all the circumstances we do not consider it fair to make an order for costs.
Orders
1. The decision to cancel the registration of Australian Business Skills Pty Ltd as a registered training organisation is affirmed.
2. The decision to refuse the application from Australian Business Skills Pty Ltd for renewal of its registration as a registered training organisation is affirmed.
3. These orders come in to effect 28 days from the date of these reasons.
4. The application by Australian Business Skills Pty Ltd for a costs order is refused.
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