RAMC Pty Ltd and Australian Skills Quality Authority
[2015] AATA 306
•7 May 2015
[2015] AATA 306
Division GENERAL ADMINISTRATIVE DIVISION File Number
2014/4934
Re
RAMC Pty Ltd
APPLICANT
And
Australian Skills Quality Authority
RESPONDENT
DECISION
Tribunal Deputy President K Bean
Date 7 May 2015 Place Adelaide The decision under review is affirmed.
........................................................................
Deputy President K Bean
CATCHWORDS
EDUCATION – Vocational Education and Training – Application for renewal of registration as NVR registered training organisation – Non-compliance with 2015 Standards – Decision under review affirmed.
LEGISLATION
National Vocational Education and Training Regulator Act 2011
Standards for Registered Training Organisation (RTOs) 2015
CASES
Shi v Migration Agents Registration Authority (2008) 235 CLR 286
REASONS FOR DECISION
Deputy President K Bean
7 May 2015
The applicant, RAMC Pty Ltd (“RAMC”), is the current owner and operator of a registered training organisation (“RTO”) known as “Pinnacle Learning Institute of Australia”. Ms Kassiani Pericleous is a director of the applicant as well as the applicant’s largest shareholder and has represented the applicant for the purposes of this application.
On 31 July 2013, the applicant applied for renewal of its registration under the applicable Commonwealth legislation. Some delays then ensued, occasioned in part by Ms Pericleous purchasing and assuming managerial control of the applicant in November 2013.
Ultimately, however, by letter dated 1 September 2014, the respondent advised the applicant that it had rejected the renewal application on the basis that the applicant was non-compliant with the applicable standards.
On 23 September 2014, the applicant filed an application for review of that decision by this Tribunal, giving rise to these proceedings.
I propose to first set out the salient aspects of the applicable statutory framework and identify the issues, before addressing those issues by reference to the evidence before me.
STATUTORY FRAMEWORK
The National Vocational Education and Training Regulator Act 2011 (“the Act”) effectively established a national scheme for the regulation and registration of training organisations. The Act requires training organisations to be registered under the Act if they wish to provide nationally accredited training courses, and also establishes the National Vocational Education and Training (VET) Regulator, known as the Australian Skills Quality Authority (“ASQA”).[1]
[1] See reg 5 of the National Vocational Education and Training Regulator Regulations 2011.
Division 1 of Part 2 of the Act provides for registration of training organisations, and also sets out certain conditions of registration with which all registered training organisations must comply. Section 17 of the Act, which applies to applications to renew registration as well as initial registration applications, relevantly provides as follows:
17 Registration
Grant of application for registration
(1) The National VET Regulator may grant an application for registration.
(2)In deciding whether to grant an application, the National VET Regulator must consider whether the applicant complies with:
(a) the VET Quality Framework; and
(b)the applicable conditions of registration set out in Subdivision B of this Division.
(3)When considering the application, the National VET Regulator may conduct an audit of any matter relating to the application.
(4)The National VET Regulator may charge a registration assessment fee for considering the application.
Period of registration
(5)If the National VET Regulator grants an application, the Regulator must also determine the period for which the applicant is registered. The period must not be more than 5 years.
Note: For renewals of registration, see section 31.
Conditions of registration
(6)If the National VET Regulator considers it appropriate to do so, the Regulator may impose one or more conditions under subsection 29(1) to which an organisation’s registration is subject.
Note:An NVR registered training organisation is also subject to statutory conditions, see Subdivision B of this Division.
Sections 21 to 23 of the Act also relevantly provide as follows:
21 Complying with conditions
An NVR registered training organisation must:
(a)comply with the conditions set out in sections 22 to 28; and
(b)comply with any conditions imposed on the organisation’s registration under subsection 29(1).
Note:Failure to comply with a condition of registration is a contravention of a civil penalty provision, see section 111.
22 Condition—compliance with the VET Quality Framework
(1)An NVR registered training organisation must comply with the Standards for NVR Registered Training Organisations.
(2)An NVR registered training organisation must comply with the Australian Qualifications Framework.
(3)An NVR registered training organisation must comply with the Data Provision Requirements.
23 Condition—satisfying Fit and Proper Person Requirements
An NVR registered training organisation must satisfy the Fit and Proper Person Requirements.
Section 185 of the Act also provides for the Minister, by legislative instrument, to make Standards for National VET Regulator (“NVR”) registered training organisations. It is common ground that on 1 April 2015, the Standards for Registered Training Organisations (RTOs) 2015 replaced the previous Standards[2], and it is the 2015 Standards which are applicable to my decision.
[2] Standard for NVR Registered Training Organisations 2012.
The most relevant provisions of the 2015 Standards are clauses 1.4, 1.8 and 2.1, which provide as follows:
To be compliant with Standard 1 the RTO must meet the following:
…
1.4The RTO meets all requirements specified in the relevant training package or VET accredited course.
…
Assessment
1.8The RTO implements an assessment system that ensures that assessment (including recognition of prior learning):
(a) complies with the assessment requirements of the relevant training package or VET accredited course; and
(b) is conducted in accordance with the Principles of Assessment contained in Table 1.8-1 and the Rules of Evidence contained in Table 1.8-2.
Table 1.8-1: Principles of Assessment
Fairness The individual learner’s needs are considered in the assessment process.
Where appropriate, reasonable adjustments are applied by the RTO to take into account the individual learner’s needs.
The RTO informs the learner about the assessment process, and provides the learner with the opportunity to challenge the result of the assessment and be reassessed if necessary.Flexibility
Assessment is flexible to the individual learner by:
· reflecting the learner’s needs;
· assessing competencies held by the learner no matter how or where they have been acquired; and
· drawing from a range of assessment methods and using those that are appropriate to the context, the unit of competency and associated assessment requirements, and the individual.
Validity
Any assessment decision of the RTO is justified, based on the evidence of performance of the individual learner.
Validity requires:
· assessment against the unit/s of competency and the associated assessment requirements covers the broad range of skills and knowledge that are essential to competent performance;
· assessment of knowledge and skills is integrated with their practical application;
· assessment to be based on evidence that demonstrates that a learner could demonstrate these skills and knowledge in other similar situations; and
· judgement of competence is based on evidence of learner performance that is aligned to the unit/s of competency and associated assessment requirements.
Reliability
Evidence presented for assessment is consistently interpreted and assessment results are comparable irrespective of the assessor conducting the assessment.
Table 1.8-2: Rules of Evidence
Validity
The assessor is assured that the learner has the skills, knowledge and attributes as described in the module or unit of competency and associated assessment requirements.
Sufficiency
The assessor is assured that the quality, quantity and relevance of the assessment evidence enables a judgement to be made of a learner’s competency.
Authenticity
The assessor is assured that the evidence presented for assessment is the learner’s own work.
Currency
The assessor is assured that the assessment evidence demonstrates current competency. This requires the assessment evidence to be from the present or the very recent past.
…
To be compliant with Standard 2 the RTO must meet the following:
2.1The RTO ensures it complies with these Standards at all times, including where services are being delivered on its behalf. This applies to all operations of an RTO within its scope of registration.
Pursuant to s 186, the Minister has also, by legislative instrument, specified fit and proper person requirements.[3]
[3] Schedule 3 of Attachment A to the Standards for Registered Training Organisations (RTOs) 2015.
ISSUES
The respondent contends that the applicant’s application for renewal of registration should not be granted because it does not comply with the statutory conditions of registration, in particular ss 22 and 23. Therefore, it follows that, in general terms, the main issues for my consideration are:
(a)Does the applicant comply with the 2015 Standards?; and
(b)Does the applicant satisfy the fit and proper person requirements?
There is no dispute that, given the nature of the decision under review, I must assess the applicant’s compliance with the applicable standards as at the date of my decision, rather than any earlier date.[4]
[4] Shi v Migration Agents Registration Authority (2008) 235 CLR 286.
I propose to first consider whether the applicant complies with the 2015 Standards, before turning to the other issue if it is necessary to do so.
DOES THE APPLICANT COMPLY WITH THE 2015 STANDARDS?
As I have indicated above, the most relevant clauses of the 2015 Standards for the purposes of this matter are 1.4, 1.8 and 2.1. Those clauses require that an RTO “meets all requirements specified in the relevant training package or VET accredited course”[5], and that it implements an assessment system which ensures that assessment complies with the assessment requirements of the relevant training package or VET accredited course, and is conducted in accordance with the Principles of Assessment and Rules of Evidence as set out in the Standards. Clause 2.1 also requires that an RTO complies with the Standards at all times with respect to “all operations of an RTO within its scope of registration”.
[5] Clause 1.4.
The Applicant’s Approach
There is no dispute between the parties that the applicant currently has a number of nationally accredited training courses within its scope of registration, although it is not currently in a position to immediately deliver most of those units without undertaking further work. Ms Pericleous explained, both in her oral evidence and her submissions, that the applicant saw itself as a “boutique RTO”, which aimed to be nimble, flexible and responsive to the needs of its clients, which were invariably employers seeking vocational training for their employees.
As the applicant is also a very small RTO, Ms Pericleous explained that it was essential for the applicant to keep its costs to a minimum and not engage in unnecessary work or preparation. Having been summonsed to provide its current training materials for particular units of competency within its scope, it provided what Ms Pericleous acknowledged to be a series of “off the shelf” materials developed by a company called “smallprint Australia Pty Ltd” (“smallprint”), all of which were stamped “198276 22/12/14-for Registration Purposes only Pinnacle Learning Institute of Australia Kassi Pericleous”.[6]
[6] Exhibits 10 - 13.
Ms Pericleous acknowledged that none, or almost none, of these materials had been amended, altered, tailored or “customised” by the applicant. She explained that it was simply not viable for the applicant to put work into modifying or customising these materials until an arrangement was in place with a particular client for it to deliver the relevant course. Ms Pericleous explained that there were various models within the VET industry:
So you can have the institutional model which is what a lot of TAFE courses are where the students just go to a classroom and they go for a whole year and they go continuously for so many hours a week and everything is taught in the classroom or some sort of role-play simulator type environment. And that’s the model that a lot of international colleges use as an institutional academic – like a university type model that is used for delivering the vocational courses…
…
Now, with our model, our model is – and that’s what, I suppose, makes a lot of private RTOs as opposed to TAFE which is government owned … very different and outside, I suppose, the normal square. Because ours is a very flexible model and it’s workplace based. So it’s aimed at people that are already employed in the industry and they want to obtain a certificate for their skills for competency for the job that they’re in or to upskill, their employer wants them to upskill so they can become better in some of the areas that they’re working in. So our model has to be very flexible. It has to be customised and contextualised with every single client, okay. So every employer that we work with we contextualise the assessment tools, we contextualise the training plan, we contextualise how we’re going to deliver the training, how we’re going to deliver – conduct the assessments, okay. So every client is different.
…
RTOs are forced, because of the requirements of the standards and the way auditors have been instructed to audit, that they have to have things in a certain order and they have to have their learning and assessment strategies, they have to have their assessment tools ready, they have to have everything ready before a student comes. And that’s great for the institutional model, you can do that for the institutional model. Very difficult to do for a flexible model like what we use. Most RTOs that use the workplace model are forced to provide examples or made up, I suppose, learning and assessment strategies of what they think their client is going to want, based on their industry experience, of course.
…
So we – we’ve got our learning and assessment strategies but I can tell you now there’s not one client where I’m going to take that learning and assessment strategy that we’ve submitted that is going to say “Yes, that’s great, that suits us. We’re going to do that”. Every client will change it, okay? So for me to expand (sic) the expense to contextualise every single assessment tool that goes that (sic) learning and assessment strategy when I haven’t got a client to deliver it to, that is a huge expense on the RTO.[7]
[7] Transcript, 18 February 2015, pp. 168 - 170.
Ms Pericleous also explained, consistently with the applicant’s business model, how she proposed to use the smallprint resources:
So now, what we have done after that is when smallPRINT (sic) middle of last year updated their learning resources that their assessment tools, as one of the auditors pointed out, that actually give us (sic) access now to actually customise and contextualise their assessment tools online and that is then kept and printed off for us as/when we need it. So we have an agreement with them that we go online and it’s just for our RTO, we contextualise them. Every time we want a workbook they print it for us and with the assessment tools that we have contextualised in the workbook. So that’s the arrangement we have with them, and that’s their new model that they have come up with, because a lot of RTOs were saying, “Well, we need to be able to contextualise your assessment tools”...[8]
She went on to explain that although smallprint would usually only provide hard copy resources, they had agreed to provide “soft” copies of the generic materials for the purposes of the applicant’s application to the Tribunal.
[8] Transcript, 18 February 2015, p. 171.
Ms Pericleous went on to further explain the approach she proposed to take as follows:
… that’s what our process will be, is that we will use those new tools that have been developed, we will contextualise them for each client and then they will print. So I have got 10 students at this client, they will print me 10 copies of the contextualised resources. So they have got, like, an online portal that we go on and do the contextualisation on. And that’s the process we are going through with a new client that came on board recently...[9]
She also confirmed that the smallprint resources would be customised on a “case-by-case basis”.[10] In other words, the resources would be customised and contextualised as and when they were needed to be delivered to a particular client.
[9] Transcript, 18 February 2015, pp. 172 - 173.
[10] Transcript, 18 February 2015, p. 173.
By way of example, she referred to the process the applicant was undertaking for a current client:
So as I said, we’re going through that process with one unit at the moment because we’ve got a client that’s just started and we’ve got to get them started on their first unit for Certificate III in retail. So we’re in the – working with smallPRINT at the moment to contextualise that first unit and then it will be mapped and validated and then we’ll be able to deliver and that’s the process we’ll go through every, you know, two, three weeks.
…
So we’ve provided them with a training schedule, we know when each unit is going to be delivered and we just need to make sure there’s contextualised – we’ll work the employers (sic) contextualise and validated - mapped and validated before that date when it needs to be delivered to the students.[11]
She confirmed later in her evidence that although the first unit of the course was to be delivered in the following week, it had not yet been fully customised or contextualised and that the materials would only be customised and contextualised one unit at a time.[12]
[11] Transcript, 18 February 2015, pp. 181 - 182.
[12] Transcript, 18 February 2015, p. 182.
Evidence for the Respondent
However, part of the respondent’s case is that this approach does not comply with the 2015 Standards and therefore the applicant is not currently compliant with the statutory conditions of registration. The respondent called a number of witnesses in support of its case that the applicant was not currently compliant with the 2015 Standards.
Evidence of Ms McFadyen
Ms Monica McFadyen is a full-time Lead Compliance Auditor with ASQA and is currently acting in the position of ASQA Principal Compliance Auditor, ASQA Adelaide Regional Compliance Team. She provided an affidavit dated 11 February 2015 and also gave oral evidence at the hearing.
Ms McFadyen explained in her affidavit that she had selected three units of competence from within the applicant’s current scope of registration and assessed the materials produced under summons by the applicant against both the 2012 and 2015 Standards. It was implicit in her evidence that she did not actually attend at the applicant’s premises or observe any training being delivered but simply assessed the written materials which had been provided.
Ms McFadyen indicated that the three units of competence that she assessed were as follows:
(a)BSBWOR01A: Establish effective workplace relationships;
(b)SIRXHRM002A: Recruit and select personnel; and
(c)SIRXMER202: Plan, create and maintain display.
Attached to her affidavit was her Evidence Analysis Report dated 6 February 2015, in which she concluded that with respect to those three units of competency, the applicant was non-compliant with clauses 1.8, 1.4 and 2.1 of the 2015 Standards. She also stated in her affidavit:
I say that the Applicant’s Assessment Materials in relation to the 3 units of competence that I assessed are non-compliant against the requirements of the Retail Services Training Package, the Business Services Training Package, the Rules of Evidence and the Principles of Assessment.[13]
[13] Exhibit 4, [12].
With respect to the two units, “Establish effective workplace relationships” and “Recruit and select personnel”, Ms McFadyen stated in her report:
The evidence provided for both the above units consisted of purchased training and assessment resources that have not been customised or contextualised.
As the client group is employed in the industry, in order that all of competency requirements are addressed, all of the assessment tools must be used to gather evidence. This is not established in the assessment guidance material.
The third party and observation assessment resources contained insufficient information to confirm that the assessments for both units are conducted in accordance with the principles of assessment and the rules of evidence. The assessment resources and tools do not support the principles and rules of Validity, Reliability and Sufficiency because:
●there is limited information of the evidence criteria, for example, observable behaviours that provide the benchmarks for the practical activities:
oto verify that the assessment task meets the assessment requirements of the unit of competency,
ofor assessors to interpret a consistent judgement on the assessment result irrespective of the assessor conducting the assessment, and
oto verify the quality, quantity and relevance of the assessment evidence.
The assessment resources and tools do not support the principles of Fairness because:
●The assessment instruments did not include detailed instructions of the assessment tasks for both the student and the assessor. For example, where and when assessment will be conducted, time frames, depth, breadth and complexity level required for each task.[14]
[14] Exhibit 4, Annexure B, p. 5.
With respect to the unit “Plan and maintain display”, Ms McFadyen was also critical of the evidence provided, noting that this also consisted of “purchased training and assessment resources that have not been customised or contextualised.” She identified similar problems with the materials provided for this unit to the materials provided for “Establish effective workplace relationships” and “Recruit and select personnel”. In addition, she reported that:
The assessments do not support the principle and the rule of Validity because:
●The assessments did not address all of the unit of competency performance criteria requirements. For example, there was no assessment activity that captured the participants demonstrating:
oPerformance criteria 3.3 ‘Create display following display plan’ the task required the participants to develop a display plan only. The critical aspects for assessment state ‘evidence of the following is essential;
§ Plans and builds display, according to plans’. [15]
[15] Exhibit 4, Annexure B, pp. 5 - 6.
Ms McFadyen also noted that:
The User Guide for the purchased resources informs the RTO that it is their responsibility to customise and contextualise the resources and conduct a validation to ensure that assessments address the performance criteria, required knowledge, required skills and critical aspects for assessment for each unit of competence. Further to this each of the purchased resources include the following under Validation and Mapping: ‘The RTO must conduct their own validation and mapping to verify that the assessment tools used:
●actually enable the collection of evidence that complies with the Principles of Assessment and the Rules of Evidence
●can be used by different trainer/assessors
●can be consistently applied in a range of assessment situations
●fit effectively with the RTO’s TAS[16].
If any gaps are identified the RTO must develop their own evidence gathering methods, assessment tools or activities to address these gaps.’ There was no evidence provided to confirm this had occurred. [17]
[16] Training and Assessment Strategy.
[17] Exhibit 4, Annexure B, p. 6.
Ms McFadyen essentially adhered to her affidavit and report in the course of her oral evidence. By way of examples to illustrate her criticisms, she referred first to the unit “Establish effective workplace relationships”. She pointed out that the Performance Criteria specified in the training package included:
2.3.Gain and maintain the trust and confidence of colleagues, customers and suppliers through competent performance.[18]
She further pointed out that there was a “validation and mapping” guide in the applicant’s assessment material setting out the “elements and performance criteria” associated with elements of the training package requirements. That document specifies the activities, questions, project, and observation and third party reports used to assess whether the requirements of the training package have been met. The specified activity for Performance Criteria 2.3, Activity 8, is as follows:
1. Wen Jing is a new manager in an office. Describe three ways she could develop and maintain the trust and confidence of colleagues, customers and suppliers.[19]
The suggested answer in the training materials is as follows:
There is a wide variety of behaviour which Wen Jing should display. For example, to build good quality relationships, the element of trust is important. It depends on behavioural reliability and consistency. Wen Jing should do what she claims she will. She should maintain confidences and respect the privacy of her colleagues and customers. She should respect the rights of others. She should perform her job to the required standard using appropriate skills, abilities and resources. If necessary, she could undertake professional development activities to improve her performance.[20]
[18] Exhibit 13, p. 258.
[19] Exhibit 13, p. 292.
[20] Exhibit 13, p. 292.
Whilst acknowledging that this sample answer was provided, Ms McFadyen stated:
… but there’s no contextualisation, you know. It doesn’t reflect the industries that the RTO is supposed to be training to. … And that one activity isn’t sufficient in actually performing or citing that the actual candidate is gaining and maintaining the trust and confidence of colleagues, customers, suppliers and through competent performance …
She continued:
And it’s about their knowledge, so it’s not about the application. It’s all about the knowledge requirements, and that’s the activity.[21]
[21] Transcript, 17 February 2015, p. 38.
Ms McFadyen made a similar criticism of the project required to demonstrate compliance with criterion 2.3, Project 1. She noted that this project requires the candidate to describe at least 10 actions that they, as a frontline manager, would take to achieve various objectives.[22] However, again, Ms McFadyen made the point that this was:
… knowledge-based. It’s not application. So with all of those three activities, the student is not demonstrating anything. They are just demonstrating their knowledge but not actually applying.
…
So contextualisation to the industry is not there and the application is not there of their knowledge.[23]
[22] Exhibit 13, p. 319.
[23] Transcript, 17 February 2015, p. 39.
In addition, Ms McFadyen found the instruments used to collect evidence from third parties to be deficient, with little in the way of instructions given to the third party or to the trainer/assessor.[24] She referred to a “third party evidence collection” document in the materials for the “Establish effective workplace relationships” unit, which described certain tasks, but did not describe any observable behaviours which needed to be demonstrated by a candidate for the Performance Criteria to be met. She stated:
So when you look at that tool on page 332 that’s used by the third party, it’s used by the trainers and assessors, and we talked before about a performance criteria and what a candidate needs to demonstrate, and there’s no observable behaviours listed in here to make sure that the assessor is judging each student consistently, you know, or that more than one assessor, if you have two assessors judging two different groups of students, one’s not judging at this level and one’s not judging at the – you know, the students down at that level, and that the students all come out with that benchmark competency that the unit of competency says.[25]
She continued:
The way the tool sits at the moment, it becomes another tick and flick … so a lot of time we will go to audit and we will just see those squares ticked and there will be nothing, you know, that shows us how that assessor came up with the judgment that that student was competent.[26]
[24] Transcript, 17 February 2015, p. 40.
[25] Transcript, 17 February 2015, p. 40.
[26] Transcript, 17 February 2015, pp. 40 - 41.
In her oral evidence, Ms McFadyen also elaborated on the analysis in her report of the unit “Plan, create and maintain displays”. She pointed out that the Performance Criteria contained in the training package for this unit required a candidate to: 3.3 Create displays following display plans.[27] However, the “validation and mapping” guide for this unit in the applicant’s assessment materials did not require a candidate to create a display. Ms McFadyen pointed out that although criterion 3.3 appeared in the validation and mapping tool, none of the relevant assessment activities or tools actually required the candidate to create a display.[28]
[27] Exhibit 11, p. 384.
[28] Exhibit 11, p. 437.
Under cross-examination, Ms McFadyen made further criticisms of the third party instrument in the applicant’s assessment materials for the unit “Establish effective workplace relationships”. She noted that one of the tasks required to be observed was “prepare a code of conduct and ethics policy for the organisation”. However, there were no instructions or criteria provided to the third party or the trainer/assessor to guide them in assessing whether the task had been completed satisfactorily.[29] When Ms Pericleous put to Ms McFadyen that this could be appropriately included when the materials were contextualised for a particular client, she disagreed stating:
Not necessarily, no. There would be some basic things that you would need to have in there and then you would contextualise it, saying, you know, well, what are the different things that your organisation does, that you would add into that. But there would still be basic things in preparing a code of conduct and an ethics policy.[30]
She added that in her view, this had the consequence that the assessment instruments were not reliable and did not comply with the Principles of Assessment and the Rules of Evidence.[31] She pointed out that:
Part of reliability is “evidence presented for assessment is consistently interpreted and assessment results are comparable, irrespective of the assessor conducting the assessment.” With that, it means there has got to be some sort of guidance. At the moment, the way it stands, the third party could have a completely different idea about what a code of conduct should be. And, again, when we’re doing qualifications, the skills need to be transportable. So a code of conduct should at least have the basics in there.[32]
[29] Transcript, 18 February 2015, p. 126.
[30] Transcript, 18 February 2015, p. 126.
[31] Transcript, 18 February 2015, p. 131.
[32] Transcript, 18 February 2015, pp. 131 - 132.
Ms McFadyen also reiterated later in her evidence that from her point of view, contextualisation had different components: “So contextualisation is not just about what the employer wants. It’s also about how you are going to deliver and assess that qualification.”[33]
[33] Transcript, 18 February 2015, p. 133.
Evidence of Ms Cochrane
Ms Jennine Cochrane is currently employed full-time in the position of ASQA Principal Compliance Auditor, ASQA Melbourne Regional Compliance Team, and she has also provided an affidavit and given oral evidence at the hearing. In her affidavit, dated 16 February 2015[34], she explained that with respect to the material produced by the applicant under summons, she selected three units and assessed these against both the 2012 and 2015 Standards. The three units assessed by Ms Cochrane were:
(a)SIRXSLS303: Build relationships with customers;
(b)BSBWOR403A: Manage stress in the workplace; and
(c)BSBMGT502B: Manage people performance.[35]
In her affidavit, Ms Cochrane stated that for the reasons set out in her Evidence Analysis Report annexed to her affidavit, she had concluded that with respect to the three units of competency she looked at, the applicant was non-compliant against clauses 1.4, 1.8 and 2.1 of the 2015 Standards.
[34] Exhibit 3.
[35] Exhibit 3, [8].
In her report, Ms Cochrane made the following comments about the smallprint User Guide accompanying the purchased smallprint materials:
o Contained generic instructions for each assessment such as ‘Advise participants of the self-assessment checklist, prior to commencement of training’ and ‘Contextualise content; develop situation relevant tasks to be undertaken by participants, and observed for collection of performance evidence; provide more detailed and contextualised answers to questions and projects’. It provided no further information specific to the individual assessment activities contained within the assessment book, for example, timeframes, open/closed written summative assessment conditions; role play requirements/examples.
o Page 12 of the Quick view section ‘Section 3: Assessment’ under the Title/Column ‘RTO/Assessor contribution’ specified the following: ‘Trainer/Assessors must: provide detailed instructions to participants…..develop situation relevant tasks to be undertaken by participants and observed for collection of performance evidence, provide more detailed and contextualised answers to questions and projects.’ There was no evidence provided to demonstrate that these tasks had been completed by the RTO.
o Page 24 Section 3: Assessment, the guide stated ‘Regardless of the tools selected for use, in most instances some form of contextualisation will be necessary and RTOs and assessors must provide evidence that they have done this.’ There is no evidence that this has been done.
o Page 24 Section 3: Assessment, the guide stated under ‘Assessment Instructions, Before assessment can take place RTOs and assessors must provide clear instructions’…..and goes on to list what needs to be provided to the candidate. There is no evidence that the assessment tools have been updated to ensure the following from the list has been included:
§ Number of times performance must be observed
§ The amount or type of assistance candidates can expect
§ The assessment environment
§ Resources required for assessment
§ The structure of the assessment.
o Page 34 of the guide also repeated the requirement for the RTOs that use the assessment tools to provide sufficient and clear instruction to assessors and to the candidates (participants). The final paragraph on the page stated ‘RTOs and assessors should add their own industry relevant tasks and can change/adapt or contextualise observation tasks online.’ There is no evidence that this has been done.[36]
[36] Exhibit 3, Annexure B, pp. 3 - 4.
Other criticisms contained in Ms Cochrane’s report included the fact that, with respect to the unit “Build relationships with customers” the applicant’s training and assessment strategy included the statement that:
§ ‘Learners will be provided with an Assessment Kit summarising the assessment requirements of each UOC[37] which must be completed and submitted to the trainer with their assessment work.’
However, Ms Cochrane stated “No Assessment Kit was provided as evidence”.[38]
[37] Unit of Competency.
[38] Exhibit 3, Annexure B, p. 5.
With respect to the applicant’s assessment tools for “Build relationships with customers”, it was stated at page 14 under “Resources required to undertake this assessment”:
o ‘Participants must have access to these resources: copies of the activities, questions, projects nominated by the trainer/assessor…..an appropriate workplace or simulated workplace’ and ‘Participants must fully understand what they are required to do to complete these assessment tasks successfully, then sign the declaration.’
However, Ms Cochrane commented that “None of the assessment tasks contain sufficient instructions to inform the students prior to signing the declaration. There are no instructions anywhere as to how the workplace would be simulated”.[39]
[39] Exhibit 3, Annexure B, p. 6.
Ms Cochrane was also critical of Summative Assessment 2 for this unit, noting that at:
o Page 49 – the candidate is required to provide a written explanation as to how ‘retail businesses can build and maintain relations with customers’ and is required to write a paragraph for 6 topics.
However, Ms Cochrane pointed out in her report that:
The exemplar response does not address each of the 6 topics, it provides a 1 paragraph example for only 1 of the topics. This is not a reliable guide for the assessor to ensure consistent application assessment practice. The assessor is not provided with any guide as to the expected minimum information to be provided by the candidate for the 5 remaining topics which may lead to insufficient evidence.
oThere are no instructions as to the conditions under which the summative written assessment is to take place for example (but not limited to): closed or open book, timeframe to be completed.[40]
[40] Exhibit 3, Annexure B, p. 6.
With respect to the Observation Report contained in the materials, Ms Cochrane noted that the tasks to be observed were:
§Demonstrate effective conflict resolution skills
§Use communication skills to: listen actively, ask questions, observe body language and gestures
§Use solution-focused confliction resolution strategies
§Resolve conflict and interpersonal differences in a non-judgemental manner.
The relevant observation tool required the assessor to specify the context and date of observation, the tasks observed or evidence provided and comments relating to feedback. However, Ms Cochrane noted:
oDue to lack of instructions it is not clear if this is to be conducted in the workplace or simulated in the training room environment. If in the simulated environment, this would require the participation of role plays by individuals to portray the various roles of customers to satisfy the evidence requirements for the UOC; that is, ‘a range of customers with different requirements’. There is no further documentation to guide the assessor as to what particular types of role plays are to occur. Therefore relying on the assessor to make their own interpretation of what would be sufficient.
oThere are no instructions to guide the assessor and the candidate as to what specific tasks are to be performed, under what conditions and over what timeframe, to ensure that assessment activities are performed in a realistic environment.[41]
[41] Exhibit 3, Annexure B, pp. 6 - 7.
With respect to the third party instrument, Ms Cochrane noted that:
·There were no prepared oral questions for the Third Party to refer to or exemplar responses to guide the Third Party to ensure reliable application and sufficient evidence is collected.
…
·Page 58 to 60- contained a list of tasks to be observed and had provision for the Third Party to comment against each. This is unreliable and insufficient. For example, the first task states ‘Demonstrate effective conflict resolution skills’. This lacks guidance for the Third Party to ensure consistent interpretation and application. What the Third Party believes to be effective may not meet the minimum standards of the UOC. In addition, there are no instructions advising the Third Party that they are required to comment against each task.[42]
Ms Cochrane also noted that at pages 65 to 73 the assessment materials mapped the assessment activities to various components of the unit of competency. Further, at page 65, there was a statement by the publisher:
‘The RTO must conduct their own validation and mapping to verify that the assessment tools used: actually enable the collection of evidence that complies with the Principles of Assessment and Rules of Evidence…..can be consistently applied in a range of assessment situations…’
However, Ms Cochrane noted that “No evidence was provided to demonstrate that this has been done.”[43]
[42] Exhibit 3, Annexure B, p. 7.
[43] Exhibit 3, Annexure B, p. 7.
With respect to the unit “Manage stress in the workplace”, Ms Cochrane made similar criticisms, including as to the absence of an assessment kit.[44] Indeed, most of her criticisms of the previous unit applied equally to this unit. She also made essentially the same criticisms of the applicant’s training and assessment strategy and assessment tools for the unit “Manage people performance”.
[44] Exhibit 3, Annexure B, p. 8.
As summarised in her report, Ms Cochrane’s findings on the three units were as follows:
·Assessment tools do not meet the requirements of their respective training packages … Principles of Assessment and Rules of Evidence as they are not complete, reliable (inter-rater), sufficient or fair.
§ They lack instructions to guide both the assessor and the candidate to ensure fair, reliable assessment practise (sic) and sufficient evidence gathering to demonstrate a decision of competency.
§ The Strategy for Training and Assessment documents specified ‘Project tasks may include observation in the workplace or role play demonstrations used to demonstrate competency of skills’. There are no resources to allow for the conduct of role play assessment activities in a simulated environment.
§ There are no oral questions prepared for the Third Party to ask when work tasks are observed and recorded by the Third Party.
§ There is no guidance for the Third Party evidence collection document to ensure fair, reliable and consistent application and would result in insufficient evidence to support a decision of competency.
§ There is no assessment tool in place for the conduct of assessment for Recognised Prior Learning.
§ Assessment tools are not fair, reliable and sufficient. Validation was completed to the unit of competency by the commercial producer of the documentation but not to the Principles of Assessment (reliability) and Rules of Evidence (fairness, sufficiency) or any other component of the … Retail Services Training Package … and … Business Services Training Package...[45]
[45] Exhibit 3, Annexure B, p. 14.
With respect to clause 1.4 of the 2015 Standards, Ms Cochrane concluded that:
· The RTO has not met the assessment requirements specified in the following training packages, SIR07 Retail Services Training Package and BSB07 Business Services Training Package.
With respect to clause 1.8, she concluded that:
· The RTO had not met this Clause. It has not complied with the assessment requirements of the SIR07 Retail Services Training Package and BSB07 Business Services Training Package. In particular the requirement to ensure that assessment is conducted in accordance with the Principles of Assessment and Rules of Evidence.[46]
[46] Exhibit 3, Annexure B, p. 17.
Ms Cochrane also gave oral evidence, which was consistent with her affidavit and report. With respect to validation and mapping, her evidence was similar to that of Ms McFadyen.
In relation to the unit “Manage people performance” she commented:
… there’s mapping that has been provided by the publisher but they have not mapped it to the principles of assessment and rules of evidence and that’s why you’re finding the insufficiencies and the unreliability. They have mapped it only to the unit of competency but not to the other requirements of the training package. And the training package specifically says that the assessment has to meet principles of assessment and rules of evidence. And when you’ve got the actual publisher telling you, “You have to go and conduct your own” and it hasn’t been done. There’s been no evidence of that provided.[47]
[47] Transcript, 17 February 2015, pp. 33 - 34.
In the course of cross-examination, Ms Cochrane was asked to comment on the proposition that it was legitimate for an RTO to have their assessment materials in a generic form on the basis that it was not efficient or practical for the RTO to tailor the materials in anticipation if there was no current training being undertaken. She was asked whether it was legitimate for an RTO to have generic materials available which it would tailor as needed, as and when it was actually engaged to deliver training. As to whether that was a legitimate approach for an RTO to take, Ms Cochrane’s response was as follows:
… you’ve got the learning and assessment strategies which they develop, and they can set up a framework, and they use that for – they can use that certainly for initial registration about what they’re going to do, what they intend to do, and that’s how we allow them to be registered based on what they intend to do. But then once they’re registered, they then are governed by a different set of standards. Well, this was the case at the point of registration for RAMC. They then fell into then another lot of standards which was all about now what you must be doing. What you must have in place. The expectation is that you have the resources that meet the requirements of the nationally accredited training package. So if you don’t, then you should be, for good business, reviewing your scope of registration that contains all your qualifications and any stand-alone units of competency or accredited courses. And if you’re incapable of delivering them, then you should maybe be thinking about should I have them on my scope, and you can rationalise the scope. And they can take things off, they can put things on. There is an expense with putting new things on. There’s no expense with taking things off.[48]
[48] Transcript, 18 February 2015, p. 109.
Ms Cochrane went on to confirm that, in her opinion, for any units or courses within an RTO’s scope, they should be fully resourced and ready to deliver that training at short notice.
When Ms Pericleous put to Ms Cochrane that the Standards did not say anything about contextualisation, she responded as follows:
At this point in time, if you’re referring to what you’ve provided as evidence, they’re not fit for purpose yet. So they’re not fit for purpose against that training package. And the publisher has told you that in both the guide and also throughout the assessment documents where it’s telling you you need to add more. So at the moment they’re not meeting the requirements of … the training package.[49]
[49] Transcript, 18 February 2015, p. 110.
Ms Pericleous also put to Ms Cochrane that the Standards did not require written instructions be given to candidates. Ms Cochrane’s response was:
So under SNR3 it defines fairness, and part of fairness is to ensure that the candidate is fully informed of all the requirements of assessment before they undertake the assessment. So it is written in the standards. Then when you look at the training package, it also refers you clearly to the requirement to meet the principles of assessment and rules of evidence. So yes, it is in the standards. … If they’re verbal you’re taking our (sic) reliability, which is another failing because that’s under principles of assessment. Reliability. By having verbal – if you have more than one assessor conducting your assessment, then you’re making your assessment unreliable, because they may choose to do it in any way, shape or form and, therefore, be unreliable in the way that it’s applied, which is not fair again to the candidates.[50]
[50] Transcript, 18 February 2015, pp. 116 - 117.
Evidence of Mr Nicholas
Mr Dan Nicholas is employed full-time in the position of ASQA Lead Compliance Auditor, Adelaide Regional Compliance team. He has provided two affidavits, both dated 11 February 2015, and also gave oral evidence at the hearing. Like Ms McFadyen and Ms Cochrane, Mr Nicholas explained that he had selected certain units of competency from the summoned material provided by the applicant and assessed these against both the 2012 and 2015 Standards. In addition, Mr Nicholas assessed certain material, including some new material, for the purpose of determining whether certain non-compliances which had previously been identified had been rectified.
I propose to first address Mr Nicholas’ evidence with respect to units of competency which had not previously been assessed, before turning to the question of rectification of previous non-compliances.
Units Not Previously Assessed
In his affidavit, Mr Nicholas explained that the five units of competence he assessed and which had not previously been assessed were:
(a)BSBCUS301B: Deliver and monitor a service to customers;
(b)SIRXICT001A: Operate retail technology;
(c)BSBMGT401A: Show leadership in the workplace;
(d)BSBWRK510A: Manage employee relations; and
(e)SIRXMER405: Manage store presentation and pricing.[51]
Attached to his affidavit was a detailed Evidence Analysis Report of the materials provided against the requirements of the relevant training packages and the 2012 and 2015 Standards.
[51] Exhibit 5, [7].
With respect to the unit “Deliver and monitor a service to customers” Mr Nicholas identified a number of deficiencies in the assessment materials provided by the applicant. For example, he noted that the only test directed at measuring a candidate’s “analytical skills to identify trends and positions of products services” was contained in the Observation Report. He noted that the Observation Report related to the candidate conducting a customer satisfaction survey, talking to customers about service and products and checking sales records. However, he commented that:
… there is no requirement for analysis with respect to “trends and positions of product” to be observed by a candidate taking the steps listed above. A candidate can undertake the required steps and not be tested for these analytical skills.[52]
[52] Exhibit 5, Annexure B, p. 2.
Mr Nicholas also noted that critical to the assessment of competency in this unit was evidence directed to a candidate’s ability to identify the needs and priorities of customers and distinguish between different levels of customer satisfaction. However, he noted that “Customer priorities are not addressed in the material and any analysis, report or reference to levels of customer satisfaction could not be found.”[53] Mr Nicholas continued in his report:
● In summary, the instruments as provided by the vendor of the purchased resources needs reworking to meet training package requirement. This is without customisation to meet the workplace or its simulation. This demonstrates why the purchaser requires these materials to be validated by the user.[54]
[53] Exhibit 5, Annexure B, p. 3.
[54] Exhibit 5, Annexure B, p. 3.
With respect to the unit “Operate retail technology”, in his report Mr Nicholas made similar criticisms of the applicant’s assessment materials, concluding:
· In summary, the instruments in themselves are inadequate in recording that competency to training package requirement has been met.[55]
[55] Exhibit 5, Annexure B, p. 3.
With respect to the unit “Show leadership in the workplace”, Mr Nicholas specifically commented on the summative project used to test the relevant knowledge and skills. He noted:
There are two projects; a treatise on leadership and a Sales Team scenario where a problem is to be solved. The scenario was tested on colleagues and the instructions were not able to be interpreted. No link could be found between the scenario and a workplace. No link could be found between the supposed responses in the scenario and the the (sic) performance criteria of the unit. There is no practical application of skills that is being tested. It is not clear within the scenario who or what is being tested.[56]
More generally, he commented:
· Critical aspects for assessment and evidence required to demonstrate competency in this unit require instances where leadership and decision making have been demonstrated and which have led to positive changes in the workplace. This is not captured in any recording instrument provided.
· In summary the instruments in themselves are inadequate in recording that competency to training package requirement has been met.[57]
[56] Exhibit 5, Annexure B, p. 3.
[57] Exhibit 5, Annexure B, pp. 3-4.
With respect to the unit “Manage employee relations”, Mr Nicholas noted in his report that:
· In the knowledge testing components the training package requires the testing of knowledge of … “key entities in the Australian industrial relations system, including courts and tribunals, trade unions and employer bodies … relevant industrial, workplace health and safety, equal employment opportunity and anti-discrimination legislation in federal, state and territory jurisdictions”.[58]
However, Mr Nicholas noted:
The tendered resources only reference trade unions and employer organisation as generalised bodies and identifies the Fair Work Commission as a tribunal. Courts are not-referenced (sic) and state and territory jurisdictions are not addressed. As constituted, the tests would allow for a wide range of responses from candidates demonstrating understanding of the current Australian industrial system and minimalist responses would have to be accepted.
He also noted that the Third Party Report was confusing and needed editing and customisation to become a useful tool.[59]
[58] Exhibit 5, Annexure B, p. 4.
[59] Exhibit 5, Annexure B, p. 4.
He made similar criticisms of the applicant’s assessment materials with respect to the unit “Manage store presentation and pricing”.[60]
[60] Exhibit 5, Annexure B, pp. 4-5.
Rectification Evidence
In his second affidavit of 11 February 2015, Mr Nicholas explained that in addition to assessing the applicant’s materials with respect to the five units which had not previously been assessed, he also assessed seven units of competence which had previously been assessed and found to be non-compliant. Those units were as follows:
(a)BSBADM409A: Coordinate business resources;
(b)BSBCUS401B: Coordinate implementation of customer service strategies;
(c)BSBLED401A: Develop teams and individuals;
(d)BSBMGT402A: Implement operational plan;
(e)SIRXFIN005A: Manage operations to budget;
(f)SIRXMGT005A: Set Strategic Plans; and
(g)SIRXSLS410: Lead a Sales Representative Team.[61]
[61] Exhibit 6, [9].
Mr Nicholas noted that amongst the material provided under summons were two trainer/assessor manuals which were updates to the original trainer/assessor guides for the units “Coordinate implementation of customer service strategies” and “Implement operational plan”. Apart from these materials, no further materials were provided with respect to any of the seven relevant units.
Annexed to Mr Nicholas’ affidavit was a further Evidence Analysis Report dated 6 February 2015. His ultimate conclusion in that report was that:
I say that, pursuant to the 7 units of competence that I have assessed, the Applicant remains non-compliant with SNRS 15.3, 15.5 and 18.1 of the Old Standards.
I say that the Applicant’s Assessment Materials pursuant to the 7 units of competence that I have assessed remain non-compliant against the requirements of the Business Services Training package and the Retail Services Training Package.[62]
[62] Exhibit 6, [12] - [13].
In his report, Mr Nicholas noted with respect to the unit “Coordinate implementation of customer service strategies” that despite the provision of the new material, produced by smallprint, “The changes involved changes to format and an adjustment to its assessment model. Essentially the content remains unchanged.”[63]
[63] Exhibit 5, Annexure B, p. 3.
He made the same observations with respect to the unit “Implement operational plan”.[64]
Oral Evidence
[64] Exhibit 5, Annexure B, p. 4.
Mr Nicholas’ oral evidence was consistent with his affidavits and analysis reports.
Mr Nicholas agreed with many of the points made by Ms Cochrane and Ms McFadyen, observing as follows:
So that’s the point I’m making with these materials, but over and above that I reiterate with what Ms Cochrane and Ms McFadyen have said in terms of the requirements of these materials in terms of what the supplier has said is needed as well, that there’s obviously no contextualisation happening there. There’s no validation happening. In respect of validation there’s two sorts of validation I think that – the initial thing that you do is that you require of everybody whose (sic) bringing materials to you is that it actually validate, it meets the training package requirement. That’s one test of validation, but the other test of validation is, is it consistently applicable to different candidates, and so that’s more or less where you are actually looking at your assessments and how you conduct them and whether there’s a consistency in terms of the instruction to the assessor, in the instructions to the candidate and the requirement of what you’re being assessed against. So it’s one thing that it says you must meet the training package requirement, especially where it talks about its critical aspects. The other thing is there’s a validity that you’re looking at in terms of the actual material as its (sic) constituted and can it provide a valid assessment.[65]
[65] Transcript, 17 February 2015, p. 56.
Other Relevant Evidence
The only other evidence before me relating to compliance of the applicant’s current materials with the 2015 Standards is the evidence of Ms Pericleous herself.
As I have alluded to above, she explained during her evidence the nature of the applicant’s business model and the approach the applicant proposed to take to customisation and contextualisation of the smallprint resources. In other words, the applicant would modify these as and when required, when it was engaged by a new client. She also referred to having provided contextualised rectification evidence at the rectification audit stage, which she said met the requirements of the relevant training packages and should have been accepted as meeting the requirements.[66] In addition, she explained the process that the applicant would go through with each new client, including completing a training requirements checklist, preparing a training proposal for the client including the proposed learning and assessment strategy customised to the client, and upon receipt of authorisation to proceed, preparing a training schedule.[67] She said often an induction would also be done for the students and once they were enrolled each student had a training plan and needs analysis.[68]
[66] Transcript, 18 February 2015, p. 171.
[67] Transcript, 18 February 2015, p. 177.
[68] Transcript, 18 February 2015, p. 178.
She continued:
… you know, once we’ve done all that then we work with the employer to contextualise the assessment tools and to make any reasonable adjustments. So – and all that is done and validated before we start delivery (sic) each unit. So we will contextualise, make any reasonable adjustments required and validate the assessment tools before we start delivering.
So once that’s done – the trainer is involved in this whole process. I always get the trainer and assessor that’s going to delivering (sic) the training – is always involved in the whole process so they have a very clear understanding of what is required by that employer. They have a clear understanding – a lot of the times they will assist with developing and contextualising the assessment tools. We get policies and procedures from the employer that we incorporate into the assessments and into any workshops, et cetera. We contextualise some of the projects so they fit in with what, you know, the workplace wants and the employer or manager will guide us in, you know.[69]
[69] Transcript, 18 February 2015, pp. 179 - 180.
She went on to explain that:
… then all that is validated to ensure that it meets all the training package requirements and standards and once the mapping and validation is done, then we’re ready to delivery (sic). So as the trainer is involved in this whole process and they will see the training through from the start to the end, they’re the only trainer that is involved with assessing these students and using these assessment tools. So the need for me – for us to provide a more detailed trainer guide or a more detailed marking guide, it’s – is not – well, it’s a waste of time because the trainer is involved in the whole process the whole time.
They know what’s expected, they know what the end result of each assessment is supposed to be. They know what the employer expectations are. So it’s all done through meetings and verbally.[70]
[70] Transcript, 18 February 2015, p. 180.
She confirmed in her evidence that the applicant was currently operating from an office at her home and invariably training was provided at the employer’s premises.[71] She explained that at the time of the hearing the applicant had nine students, six of whom were enrolled in the Certificate IV in Frontline Management and the remainder in the Certificate III in Retail.[72]
[71] Transcript, 19 February 2015, p. 219.
[72] Transcript, 19 February 2015, p. 222.
Ms Pericleous explained the lack of additional rectification evidence produced by the applicant by reference to the terms of summonses which were issued to the applicant. She said:
And when they summonsed those documents, only two of those units were the units that we were asked to provide in the past. So when – originally we were asked to provide eight units, and then when we were asked – we were summonsed for 18 units, only two of them were the same as the eight that we provided before.[73]
I should indicate that I accept this explanation for the extent of the additional materials produced by the applicant.
[73] Transcript, 19 February 2015, p. 228.
Ms Pericleous also expressly conceded that the applicant’s current materials consisted of the generic smallprint resources, and therefore whether the applicant was currently compliant with the Standards needed to be assessed by reference to those resources. She nevertheless confirmed that six of the current students were using the previous resources which had been found to be non-compliant by the respondent rather than the current generic smallprint resources, albeit changes had been made.[74]
[74] Transcript, 19 February 2015, p. 252.
Under cross-examination, Ms Pericleous conceded that there were “a couple of hundred” of units of competency on the applicant’s scope, but aside from the unit being contextualised for delivery in the week following the hearing, none of the others were ready to deliver as they still needed to be contextualised.
Applicant’s Submissions
In her closing submissions, Ms Pericleous accepted that the applicant’s case would “stand or fall” on whether the generic smallprint materials were compliant with the 2015 Standards. However, she argued that there was nothing in the Standards which required the materials to be contextualised and ready before the applicant engaged a client. She argued that the materials met the training package requirements, the Principles of Assessment and industry requirements. She said nothing in the Standards required that the materials must be fully ready before the applicant started talking to a client and contended that “that is something that auditors demand”.
She drew an analogy with a tailor who makes “tailor-made suits”. She pointed out that a tailor would not have suits hanging on racks ready to wear, but rather would make the suit once the customer’s measurements were obtained. She said “that is the difference auditors do not understand. Everything the auditors said is based on the institutional model.” She said that the auditors had no understanding of how the customised model worked and it was inappropriate that RTOs have to go to the expense of developing “pretend resources” to keep auditors happy, and then change them to suit their clients. She said this was not business sense, not best practice and was a waste of resources.
Analysis
As Ms Pericleous acknowledged at the hearing, to a large extent the outcome of this application hinges on whether the approach the applicant is currently taking is consistent with the 2015 Standards. There is no doubt that in order to meet the statutory requirements for registration, the applicant must comply with the 2015 Standards with respect to “all operations … within its scope of registration”. It follows that the applicant must be compliant with respect to each of the units of competency assessed by ASQA’s auditors, on the basis of the applicant’s current training materials.
Whilst Ms Pericleous freely acknowledges that those materials are generic, “off-the-shelf” training and assessment materials which have not been contextualised or customised to a particular client, she contends that they nevertheless comply with the Standards. She asserts that they comply with the applicable training package requirements, and with the Principles of Assessment and Rules of Evidence. One of the main questions for me therefore is whether the materials produced by the applicant do in fact comply with the training package requirements, the Principles of Assessment and Rules of Evidence?
The Training Package Requirements
One of the difficulties for Ms Pericleous’ assertion is that the ASQA auditors pointed out a number of examples of instances in which the applicant’s current materials did not meet the requirement of the applicable training packages. For example:
·With respect to the unit “Establish effective workplace relationships”, the Performance Criteria specified in the training package included:
2.3Gain and maintain the trust and confidence of colleagues, customers and suppliers through competent performance.[75]
However, the assessment activity in the applicant’s materials only requires the candidate to describe three ways a new manager could develop and maintain trust and confidence, with no contextualisation to the situation relevant to the candidate, and no requirement to actually demonstrate those attributes.[76] This is not consistent with the Evidence Guide in the training package which requires that the assessment methods used require the candidate to demonstrate the required competencies.[77]
Similarly, the relevant project applicable to Performance Criterion 2.3 again only requires a candidate to describe actions they would take. This does not require them to actually demonstrate that they are able to “gain and maintain the trust and confidence of colleagues, customers and suppliers through competent performance”. Further, as Ms McFadyen pointed out, it is difficult to imagine what meaningful responses a candidate could give without further contextualisation of the scenarios to the environment in which the candidate is working.
·With respect to the unit “Plan, create and maintain displays”, Performance Criteria 3.3 in the Training Package requires that the candidate be able to:
3.3 Create displays following display plans.
However, as Ms McFadyen pointed out, the materials supplied by the applicant for this unit do not actually require a candidate to create a display.[78]
·With respect to the unit “Deliver and monitor a service to customers” one of the “required skills” is “analytical skills to identify trends and positions of products and services”.[79] However, the materials supplied by the applicant do not require a candidate to conduct any analysis with respect to “trends and positions of products”.[80]
·With respect to the unit “Show leadership in the workplace”, the Performance Criteria and Evidence Guide refer to demonstrating leadership and decision making leading to positive changes in the workplace.[81] However, these skills are not assessed in any of the applicant’s assessment tools.
·With respect to the unit “Manage employee relations” the training package requires knowledge of “key entities in the Australian industrial relations system, including courts and tribunals, trade unions and employer bodies” and legislation in state/territory jurisdictions.[82] However, the applicant’s materials contain no reference to courts or to state and territory jurisdictions.[83]
[75] Exhibit 13, p. 258.
[76] See discussion of Ms McFadyen’s evidence at [28] - [29] above.
[77] Exhibit 13, p. 260.
[78] See [32] above.
[79] Exhibit 12, p. 399.
[80] See [55] above.
[81] Exhibit 13, p. 348, 350.
[82] Exhibit 11, p. 152.
[83] See discussion at [59] above.
I have accordingly concluded that, in each of these instances, the applicant’s current materials do not meet the requirements of the applicable training package. I note that the auditors also referred to other examples where the applicant’s assessment materials did not comply with the relevant training package requirements, however, it is unnecessary for me to detail or draw conclusions in respect of all of these instances.
The Principles of Assessment
Of course, to the extent that the applicant’s assessment materials do not meet the training package requirements, it also follows that they are not compliant with the Principles of Assessment, particularly the requirement for “Validity”, which requires that the assessment covers the “broad range of skills and knowledge that are essential to competent performance” and that “judgement of competence is based on evidence of learner performance that is aligned to the unit/s of competency and associated assessment requirements”.
In addition, the auditors have pointed out that a number of the third party instruments in the applicant’s assessment materials contain no instructions or criteria to guide the third party in assessing whether a particular task has been completed satisfactorily. In many instances, the applicant’s materials also fail to adequately inform students about the assessment process and/or what is required of them.
For example, with respect to the unit “Establish effective workplace relationships”, one of the tasks required to be observed is “Prepare a code of conduct and ethics policy for the organisation”. However, the assessment tool contains no instructions or criteria to guide the trainer/assessor in determining whether what a candidate has produced contains the required elements, or meets the required standard. Accordingly, this assessment instrument and others like it do not meet the requirement of “Reliability” as there is no way of ensuring that “evidence presented for assessment is consistently interpreted and assessment results are comparable irrespective of the assessor conducting the assessment.”
Further, with respect to the unit “Build relationships with customers” the Summative Assessment 2 – Project 1 requires the candidate to write at least one paragraph about each of six different topics. However, an exemplar response is only provided for one of the topics. As Ms Cochrane observed:
This is not a reliable guide for the assessor to ensure consistent application assessment practice. The assessor is not provided with any guide as to the expected minimum information to be provided by the candidate for the 5 remaining topics which may lead to insufficient evidence.”
She also notes that there are no instructions as to the conditions under which the summative written assessment is to take place.[84]
[84] Exhibit 3, Annexure B, p. 6.
Similarly the Observation Report for this unit does not make it clear whether the relevant activities are to be conducted in the workplace or in a simulated training room environment or, if in a simulated environment, what particular types of role plays are to occur. As Ms Cochrane observed:
“Therefore relying on the assessor to make their own interpretation of what would be sufficient”.
She also noted:
There are no instructions to guide the assessor and the candidate as to what specific tasks are to be performed, under what conditions and over what timeframe, to ensure that assessment activities are performed in a realistic environment.[85]
[85] Exhibit 3, Annexure B, pp. 6 - 7.
In addition, with respect to the third party instrument, as Ms Cochrane observed:
There were no prepared oral questions for the Third Party to refer to or exemplar responses to guide the Third Party to ensure reliable application and sufficient evidence is collected.
She also noted that the third party instrument lacked guidance for the third party to ensure consistent interpretation and application.
With respect to the units “Establish effective workplace relationships” and “Recruit and select personnel”, as Ms McFadyen identified:
The assessment instruments did not include detailed instructions of the assessment tasks for both the student and the assessor. For example, where and when assessment will be conducted, time frames, depth, breadth and complexity level required for each task.
And as Ms McFadyen pointed out, this is difficult to reconcile with the principle of “Fairness” which requires that “the RTO informs the learner about the assessment process”.
Similarly, with respect to the unit “Build relationships with customers” as Ms Cochrane noted, the applicant’s training and assessment strategy included the statement that:
Learners will be provided with an Assessment Kit summarising the assessment requirements with each UOC which must be completed and submitted to the trainer with their assessment work.
However, no assessment kit was provided by the applicant, and this was also the case with respect to the units “Manage stress in the workplace” and “Manage people performance”.
With respect to the unit “Build relationships with customers”, as Ms Cochrane noted, page 14 of the applicant’s trainer/assessor manual notes that participants must have access to a range of resources including copies of the activities, questions, projects nominated by the trainer or assessor and:
Participants must fully understand what they are required to do to complete these assessment tasks successfully …
However, as Ms Cochrane pointed out:
None of the assessment tasks contain sufficient instructions to inform the students …
Ms Cochrane accordingly concluded with respect to the tools she assessed that:
They lack instructions to guide both the assessor and the candidate to ensure fair, reliable assessment practise (sic) and sufficient evidence gathering to demonstrate a decision of competency.
…
There is no guidance for the Third Party evidence collection document to ensure fair, reliable and consistent application and would result in insufficient evidence to support a decision of competency.
She concluded that the assessment tools were not “fair, reliable and sufficient”.[86]
[86] Exhibit 3, Annexure B, p. 14.
In light of this evidence, I am satisfied that the applicant’s assessment materials contain numerous examples of failure to comply with the Principles of Assessment. Indeed, as the auditors all pointed out, the producer of the smallprint resources has acknowledged that the resources require further development before they fully comply with the Principles of Assessment.
In particular, the resources produced by the applicant in many instances contain insufficient instructions to the candidate to ensure that they are informed “about the assessment process” so as to comply with the Principle of Fairness. In addition, the assessment tools, including the third party and observation tools, contain insufficient detail and insufficient instructions to the third party/assessor to ensure application of a consistent standard or, in some instances, that the required competency has in fact been demonstrated. For example, as referred to above, there are a number of examples in the assessment materials of instances where model answers have not been provided for each of the questions asked of the candidate. This leaves it entirely within the discretion of the assessor/third party as to whether the candidate has met the required standards/demonstrated the competency, contrary to the requirements of Validity and Reliability.
As the auditors explained, the Principles of Fairness, Validity and Reliability require that sufficient information is provided to the candidate so as to allow them to understand what is required of them and how they will be assessed. Equally, the Principles also require an assessor to be instructed as to precisely what level of competency needs to be demonstrated by the candidate, and precisely how that competency is to be demonstrated, so as to guide them in assessing whether the candidate meets the applicable standard, and ensure that a consistent standard is applied. I accept the evidence of the auditors that, in the case of each of the units assessed by them for the purposes of this application, the units did not comply with the Principles of Assessment.
The Rules of Evidence
For essentially the same reasons, I also accept the evidence of the auditors that the units they assessed do not comply with the Rules of Evidence. Numerous examples of this were cited by the auditors.
Some examples include the fact that the materials for the unit “Plan, create and maintain displays” do not actually require a candidate to create a display, and therefore do not ensure a valid or sufficient assessment of the candidate’s achievement of the required competency. Similarly, the third party instrument with respect to the unit “Build relationships with customers” contains no instructions advising the third party what they are looking for in observing each of the relevant tasks. This contravenes the principle of “Sufficiency” as it does not ensure that the assessment evidence will enable a judgement to be made of a learner’s competency.
I therefore accept the evidence of the auditors that the recording instruments they found to be non-compliant are each deficient, as they do not contain sufficient instructions to the third party/assessor as to what they are being asked to observe/comment upon or what the required standard of competency/proficiency is. In each case, the relevant recording instruments leave it entirely to the discretion of the third party/observer as to whether in performing the relevant task, the candidate has demonstrated the required competency at the appropriate level. This is a critical flaw in the applicant’s materials as it does not ensure that an assessor looking at the completed recording instruments will have a proper basis for drawing a conclusion as to whether the candidate has demonstrated the required competencies at the necessary level or not. Accordingly, those parts of the applicant’s materials clearly fail the requirements of both “Validity” and “Sufficiency” as contained in the Rules of Evidence.
CONCLUSION
I understand and accept what Ms Pericleous put to me about the intended nature of the applicant’s business, and the desirability, from a business point of view, of the applicant not being required to do unnecessary work developing training materials until it has actually secured a contract to deliver the relevant training. However, the applicant is seeking renewal of its registration to deliver nationally accredited training courses under the Act. It is a necessary requirement in order to retain that registration that the applicant complies with the Standards in respect of each and every unit of competency within its scope of registration, as at the date when the application is being assessed. For present purposes, of course, the applicant must demonstrate compliance as at the date of my decision.
Whilst I understand the reasons why the applicant has elected to utilise the generic smallprint resources provided to the Tribunal, and to customise and contextualise these on an “as needs basis”, the ultimate question for me is not whether this approach makes business sense for the applicant, but whether it complies with the 2015 Standards. For the reasons I have given, I have ultimately concluded that, based upon the materials it has provided for the purposes of this matter, the applicant is not currently compliant with the 2015 Standards with respect to the units of competency assessed by the auditors. Accordingly, it is not currently meeting the statutory conditions for registration, or complying with the VET Quality Framework (of which the Standards are part)[87]. In light of Ms Pericleous’ evidence as to the “business model” of the applicant, and its intended approach with respect to all of the units within its scope, I have also concluded that there is no realistic prospect of the applicant becoming compliant in the near future.
[87] See s 3 of the Act.
In effect, Ms Pericleous has staked the applicant’s continuing registration on persuading the Tribunal that the applicant’s intended method of operation is compliant with the Standards. However, it follows from my conclusion that this approach is not compliant with the Standards, that it is not tenable for the applicant’s renewal application to be granted. Whilst I acknowledge that there is a discretion to renew even where non-compliances are found, I consider that the non-compliances demonstrated on the evidence before me are serious and fundamental. In addition, as I have indicated, I see no prospect of these being remedied in the near future. In those circumstances, I have concluded that it would not be appropriate to renew the applicant’s registration, and the decision under review should be affirmed.
In light of that conclusion, it is unnecessary for me to proceed to consider whether the applicant satisfies the “fit and proper person requirements” referred to in s 23 of the Act.
STAY
For completeness, I note that there is currently a stay in place which has the practical effect of continuing the applicant’s registration pending the outcome of this application, on certain conditions. I note further that the effect of s 43(5C) of the Administrative Appeals Tribunal Act 1975 is that, unless the Tribunal, the Federal Court or the Federal Circuit Court otherwise orders, this Decision will be stayed and the applicant’s registration will continue until 28 days after the date of the decision, or if an appeal is lodged, until that appeal is determined.
DECISION
The decision under review is affirmed.
I certify that the preceding 103 (one hundred and three) paragraphs are a true copy of the reasons for the decision herein of Deputy President K Bean ........................................................................
Dated 7 May 2015
Dates of hearing 17, 18, 19 and 25 February 2015 Advocate for the Applicant Ms K Pericleous Solicitor for the Respondent Mr T Lloyd
Australian Skills Quality Authority
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Administrative Law
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Procedural Fairness
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