SUCCESS FAST-TRACK PTY LTD and AUSTRALIAN SKILLS QUALITY AUTHORITY - [2012] AATA 531

[2012] AATA 531

Division GENERAL ADMINISTRATIVE DIVISION

File Number(s)

2012/0709

Re

SUCCESS FAST-TRACK PTY LTD

APPLICANT

And

AUSTRALIAN SKILLS QUALITY AUTHORITY

RESPONDENT

DECISION

Tribunal
Mr S Penglis, Senior Member
Mr W Evans, Member

Date 10 August 2012

Place Perth

Decision Summary
Pursuant to Section 43(1) of the Administrative Appeals Tribunal Act 1975 (Cth) the reviewable decision dated 13 June 2012 is varied to read as follows:-
Pursuant to Section 38 of National Vocational Education and Training Regulator Act 2011(Act), the applicant’s registration is suspended with immediate effect.
During the period of suspension the applicant must not:
·enrol students in CHC30102 or CHC30208;
·allow any students to begin CHC30102 or CHC30208;
·advertise for enrolments in CHC30102 or CHC30208; and
·Issue any qualifications to current students who complete CHC30102 or CHC30208 without the written approval of ASQA.

This suspension shall remain in effect unless and until the applicant, pursuant to Section 41 of the Act, has satisfied the respondent of the applicant’s compliance with standards 15.1, 15.2, 15.3, 15.4, 15.5, 16.1, 16.4, 16.7, 17.4, 18.1, 18.2, 20.2, 23.1 and 25 of the Standards for NVR Registered Training Organisations 2011.
...(sgd) S Penglis................
Mr S Penglis, Senior Member
Catchwords
Vocational Education and Training - Applicant non-compliant with relevant standards - appropriate "sanction" - is the suspension of applicant's registration - preferred wording of such sanction
Legislation
National Vocation Education and Training Regulator Act 2011, ss 21, 22(1), 36, 38, 39 and 40.
Standards for NVR Registered Training Organisations, 2001, standards 15, 16, 17, 18, 20, 23 and 25.
Cases
Donald and Australian Securities and Investment Commission (2011) AATA 66 [111] - [115]
REASONS FOR DECISION
Mr S Penglis, Senior Member
Mr W Evans, Member
10 August 2012
1.The applicant is a specialist training company offering training for a Certificate III in Aged Care, primarily in Western Australia, New South Wales, Victoria and Queensland.
2.The respondent is the national vocational educational and training regulator established pursuant to the National Vocational Education and Training Regulator Act 2011 (Cth) (Act).
3.Mr Brett Hilder is a director and the Chief Executive Officer of the applicant.
4.On 13 February 2012, the respondent wrote to the applicant advising that the respondent had determined to impose, with immediate effect, a “sanction” on the applicant pursuant to s 38 of the Act in the following terms:
“Suspension of all of the RTO’s scope of registration.
During the period of suspension your organisation must not:
·enrol students in CHC30102 or CHC30208;
·allow any students to begin CHC30102 or CHC30208;
·advertise for enrolments in CHC30102 or CHC30208; and
·Issue any qualifications to current students who complete CHC30102 or CHC30208 without the written approval of ASQA.”

The letter advised that this was because the applicant had not demonstrated compliance with Section 22 of the Act “because the evidence provided did not demonstrate compliance with SNR 15, 16, 17, 18, 20, 23 and 25”.
The reference to “SNR” is a reference to the Standards for NVR Registered Training Organisations, 2011. The SNR are standards for NVR registered training organisations made by the Minister with the agreement of the Ministerial Council pursuant to section 185(1) of the Act.
That is the reviewable decision the subject of this application.
BACKGROUND
The applicant has been in the business of training “learners” to qualify for what is presently referred to as Certificate III level in Aged Care. Such a certificate is required in order for a person to work (for example) as an aged care worker in an accredited aged care facility.
Until 2011, the regulation of training organisations (such as the applicant) was conducted on a State by State basis.
When the Act took effect on 1 July 2011, the regulation of training organisations (other than in Western Australia and Queensland) came under the Act. The respondent became the national regulator.
In Western Australia, the regulator was and remains the Training Accreditation Council of Western Australia.
By letter dated 27 July 2011, the Training Accreditation Council of Western Australia wrote to the applicant in the following terms:
“Thank you for participating in the recent audit of your organisation against the Australian Quality Training Framework Standards. As you are aware, some non-compliances were identified during the audit and an evidence review audit is to be conducted.
As you have confirmed that your organisation is multi-jurisdictional the registration for Success Fast-Track Pty Ltd has been transferred to the Australian Skills Quality Authority (ASQA) from 1 July 2011. As you are now registered by ASQA the evidence review will no longer be conducted by the Training Accreditation Council (TAC) and all evidence provided for the review has been forwarded to ASQA for processing.
ASQA will be in contact with you regarding the outcome of the audit.
If you have any queries regarding the above, please contact your Registration officer. …”
As is apparent from that letter, whilst the audit of the applicant had been undertaken by the Training Accreditation Council of Western Australia, the review of the evidence obtained from the audit was to be undertaken by the respondent.
On 20 September 2011, the respondent wrote to the applicant advising that the respondent proposed to make a decision to impose a “sanction” on the applicant pursuant to s 36 of the Act. After setting out the terms of the proposed “sanction” (which was a suspension of the applicant’s “RTO registration”), the letter proceeded as follows:
“In accordance with Section 38 of the Act, during the period of suspension ASQA proposes to require that Success Fast Track:
·     Not enrol students in CHC30102 or CHC30208;
·     Not allow any students to begin CHC30102 or CHC30208;
·     Not issue any qualifications to current students who complete CHC30102 or CHC30208 without the written approval of ASQA;
·     Provide ASQA with detail of all current and student enrolments, including the names, contact details, enrolment dates and details and dates of any qualifications issues; and
·     Undergo a site audit at each of its delivery sites, undertaken by ASQA and technical experts in the aged care section, to verify that:
oThe sites are suitable for the delivery of the qualifications and that any simulated environments provided for student assessment are an accurate reflection of aged care facilities;
oAll training and assessment staff are qualified and vocationally competent; and
oAssessment records are valid, reliable and sufficient.
Reasons for the proposed sanction
The proposed intention to impose the sanction is based on:
The finding of critical non-compliance for the audit of rectification evidence submitted by Success Fast Track, as required by the WA Training and Accreditation Council, following an audit finding of critical non-compliance in June 2011;
A history of critical non-compliance and substantiated complaints that relate to the conduct, quality and duration of training and assessment services provided by Success Fast Track;
The high risk to the aged care sector;
Concerns about the compliance, safety and suitability of training premises; and
The finding of major non-compliance at the DFEEST South Australia audit of 14 June 2011.
Invitation to provide written response
You have the opportunity to provide a written response to this notice. If you choose to do so, your response should be forwarded to Ms Julie Northridge by email to [email protected] or by letter to:
Dr Dianne Orr
Australian Skills Quality Authority
GPO Box 9928
Melbourne VIC 3001
Deadline for receipt of written response
Your response must be received by ASQA no later than 5pm on Friday 23 September 2011.
ASQA will consider your response and provide you with written notification of any decision taken as to whether the sanction will be imposed.
Further Information
If you require further information in relation to this matter. Please contact ….”
The applicant wrote to the respondent by letter dated 20 September 2011.
By letter dated 17 October 2011, the respondent informed the applicant that the respondent
“has decided at this time not to suspend the registration as a result of the applicant’s letter, of Success Fast Track Pty Ltd. … This decision has been made following detailed consideration of the information provided by your organisation in response to my letter to you dated 20 September 2011.”
ASQA does not agree with your position, as stated in your letter of 22 September 2011, that the rectification audit conducted by Ms… led to an unfair conclusion about the quality of training provided Success Fast Track.
However given your concerns about the audit process, I wish to advise that ASQA will conduct a site audit at each of your organisation’s delivery sites across Australia in order to verify your organisation’s compliance with the VET Quality Framework in accordance with the requirements of the National VET Regulator Act (2011).”
The audit foreshadowed in that letter was subsequently carried out in October/November 2011.
By letter dated 4 January 2012, the respondent again informed the applicant that the respondent proposed to make a decision to impose a “sanction” on the applicant pursuant to Section 36 of the Act, namely to suspend its registration.
The letter went on to provide as follows:
“In accordance with Section 38 of the Act, during the period of suspension ASQA proposes to require Success Fast Track:
·     Not enrol students in CHC30102 or CHC30208;
·     Not allow any students to begin CHC30102 or CHC30208;
·     Not advertise for enrolments in CHC30102 or CHC30208; and
·     Not issue any qualifications to current students who complete CHC30102 or CHC30208 without the written approval of ASQA;
Reasons for the proposed sanction
The proposed intention to impose the sanction is based on:
1.   The finding of critical non-compliance following recent site audits of Success Fast Track premises in NSW, Victoria and Western Australia in which multiple and systematic non-compliances were identified;
2.   No evidence that the non-compliances previously disputed by Success Fast Track in the previous rectification audit report of September 2011 have been rectified;
3.   The potential the critical non-compliances have for a critical adverse impact on learners and/or aged persons in their care;
4.   The non-compliances presenting a high risk to an industry that provides care for a highly vulnerable and dependent group of the population – aged persons in care facilities;
5.   A history of critical non-compliance and substantiated complaints that relate to the conduct, quality and duration of training and assessment services provided by Success Fast Track;
6.   The high risk the continuing critical non-compliance presents to the aged care sector.
Invitation to provide written response
You have the opportunity to provide a written response to this notice.
If you choose to do so, your response should be forwarded to Ms Julie Northridge, Regional Manager Compliance WA, by email to [email protected].
Deadline for receipt of written response
Your response must be received by ASQA no later than 2pm (Perth time) on 11 January 2011.
ASQA will consider your response and provide you with written notification of any decision taken as to whether the sanction will be imposed.
Current student Information
You are required to provide ASQA with details of all current student enrolments, including the names and contact details of students, delivery locations of current courses in progress by 2pm (Perth time) on 11 January 2011.
Please email the above student information to [email protected]
Further information
If you require further information in relation to this matter, please contact…..
The details of the audit report findings are attached.”
No evidence was produced as to whether the applicant responded to this letter.
In any event, as previously noted, by letter dated 13 February 2012, the applicant was informed that the respondent had determined to suspend its registration “with immediate effect”.
It its letter, the respondent gave the following as its “reasons for the sanction”
“The decision to impose the sanction is based on the following reasons:
·Non-compliances remain against SNR 15, 16, 17, 18, 20, 23 and 25.
·These areas of non-compliance are consistent with your organisation’s pattern of non-compliance since 2007.
·The potential the critical non-compliances have for a critical adverse impact on learners and/or aged persons in their care.
·The non-compliances present a high risk to an industry that provides care for a highly vulnerable and dependent group of the population – aged person in care facilities.
·A history of critical non-compliance and substantiated complaints that relate to the conduct, quality and duration of training and assessment services provided by Success Fast Track.
·The high risk the continuing critical non-compliance presents to the aged care sector.
While your response provides details of your intention to undertake certain improvements, the range of non-compliance still evident will require considerable time and effort to achieve the required outcomes. The suspension period will provide your organisation with the time to implement the improvement actions required to achieve compliance.”
The letter also included the following paragraph:
“When you have implemented the required improvement actions and are in a position to submit evidence that demonstrates your organisation’s compliance with Section 22 of the Act, you may submit a Request for reassessment of ASQA position in relation to identified issues. The request form is available on the ASQA website TO TRIBUNAL
These proceedings were commenced by the applicant’s “Application for Review of Decision by ASQA” dated 21 February 2012. The reasons for application include the following paragraph:
“The effect of the suspension is that our company is no longer trade (sic) as a financial entity, specifically unable to receive revenues from any source and is unable market (sic) its services to potential students…. Success Fast Track will be forced to close its doors on Friday, February 24, if this suspension is not lifted immediately as we would be unable to meet our normal financial commitments.”
On 22 February 2012, with the consent of the respondent, the Tribunal ordered that the operation and implementation of the reviewable decision “be stayed pending the decision of the Tribunal on the application for review” pursuant to s 41(2) of the Administrative Appeals Tribunal Act 1976 (Cth).
The evidence given by Mr Hilder at the hearing of this matter (which evidence the Tribunal accepts) was to the effect that notwithstanding it succeeded in obtaining a stay of the reviewable decision, the effect of the suspension having operated for even a short period of time was such that the applicant was forced to “close its doors”.
SOME PRELIMINARY MATTERS
By a document entitled “Applicant’s submissions on the appeal against the Administrative decision of the Respondent” dated 9 April 2012, the applicant identified that it considered the issues for determination by the Tribunal to be whether:
(a)“ASQA, the Respondent has acted within their powers conferred upon them by the governing Act, National VET Regulation NVR Act 2011, legislative instruments;
(b)The Respondent has acted within the policies, guidelines, frameworks and objectives of the regulator;
(c)The Respondent has acted in a fair and just manner and in compliance to the laws of natural justice in the audit process, the decision making process and the decision announced and the reconsideration process;
(d)The Respondent had taken consideration of all relevant factors during the audit and decision making process;
(e)The Respondent had taken considerations of irrelevant factors;
(f)The Respondent had delegated their powers to the independent auditors in a manner required in law. Whether the findings of the auditor’s being independent contractors are fair & just, impartial, reasonable and minded of the provisions in the NVR ACT.
(g)Applicant to be compensated by the National regulator and the Commonwealth for the wrongful decision that has resulted in the Applicant suffering irreparable damage. To reserve the right to claim in civil proceedings for compensation.”
In the same document, “Orders Sought from Tribunal” were identified as follows:
·“The Suspension Decision be set-aside/quashed.
·A direction be issued by ASQA to the Applicant to complete the ongoing rectification process within 6 months from date of securing human resources with no interference from ASQA during that time.
·To publish on the website the set-aside/withdrawal of the suspension decision.
·To notify all relevant parties in writing of this decision.
·To register and issue a certificate to the Applicant confirming its registration with the National VET Regulator.
·To issue a direction and specify immunity against WA laws on Standards on quality.
·To allow the applicant to amend their scope to include a Cert. 3 qualification from the Health Training Package on submission of the application.
·To be compensated in the interim, up to a maximum of the tribunal’s jurisdiction with liberty to initiate civil proceedings in a court of competent jurisdiction for the balance of compensation sought.”
Prior to the hearing of the application, the applicant provided to the Tribunal some 895 pages of documents - some of which were historical documents and others which had been prepared for the purpose of these proceedings - upon which the applicant intended to rely at the hearing of its application (over and above the usual documents which parties to proceedings before the Tribunal prepare, lodge and serve pursuant to directions of the Tribunal, such as a Statement of Issues, Facts and Contentions).
In the circumstances, and noting that the applicant was not represented by a legal practitioner, the Tribunal convened a directions hearing some three business days before the commencement of the hearing. At that directions hearing, the Tribunal took steps to ensure that Mr Hilder, for the applicant, properly understood, not only the procedure that would be followed at the hearing, but also the substantive nature of the Tribunal’s jurisdiction. In particular, the Tribunal made it clear to Mr Hilder that effectively, the Tribunal “stands in the shoes” of the decision maker and makes its decision based on the evidence presented to it at the hearing. It was made clear to Mr Hilder that it was not the Tribunal’s function to undertake a forensic analysis of the respondent’s conduct.
The Tribunal therefore enquired of Mr Hilder whether he, on behalf of the applicant, wished to continue with the commencement of the hearing on the assigned date. Mr Hilder informed the Tribunal that he understood what had been said to him and that he wished to proceed on the assigned date.
The hearing commenced on the assigned date.
On the second of the three days of the hearing, Mr Hilder tabled a large number of additional documents which he wished to rely upon. Mr Cribb, Counsel for the respondent, opposed this on the basis that the respondent would not be able to be in a position to deal with the additional documents within the time available. Mr Cribb (quite properly) conceded, however, that apart from the cost and inconvenience that would be occasioned by an adjournment of the matter, there was no other prejudice, either to the respondent or to the public interest, that he could point to if an adjournment were to be allowed.

Mr Hilder was then informed by the Tribunal that, notwithstanding the fact that the purpose of the directions hearing shortly prior to the commencement of the hearing of the application was to avoid the Tribunal finding itself in the very position it now found itself in, the Tribunal was nevertheless minded to permit the applicant to rely upon the additional documents, but that, if the applicant pressed the application, it would mean that the hearing would be adjourned to some future date as fairness required that the respondent be given a proper period of time to analyse the documents so as to determine what (if any) further questions might be put to Mr Hilder in cross-examination and to determine what (if any) further evidence the respondent would adduce.
On that basis, Mr Hilder, on behalf of the applicant, chose not to press the tender of the additional documents. The hearing proceeded accordingly.
THE LEGISLATIVE FRAMEWORK
The respondent is established under the Act as the National VET Regulator.
Section 21 of the Act relevantly provides as follows:
“An NVR registered training organisation must… comply with the conditions set out in sections 22 to 28 …”
Section 22(1) of the Act provides as follows:
“An NVR registered training organisation must comply with the Standards for NVR Registered Training Organisations.”
Section 36 of the Act, headed “Sanctions”, provides as follows:
“(1)     This Subdivision applies if:
(a)   after natural justice requirements have been satisfied, the National VET Regulator is satisfied that it is appropriate to impose one or more sanctions on an NVR registered training organisation; or
(b)   in exceptional circumstances, the National VET Regulator is satisfied that it is appropriate to impose one or more sanctions on an NVR registered training organisation without satisfying natural justice requirements.
(2)       The National VET Regulator may do one or more of the following:
(a)give a written direction to an NVR registered training organisation requiring the organisation to rectify a breach of a condition on the organisation’s registration;
(b)give a written direction to an NVR registered training organisation requiring the organisation to notify its VET students, in writing, of a matter set out in the direction;
(c)shorten the period of an NVR registered training organisation’s registration;
(d)amend an NVR registered training organisation’s scope of registration;
(e)suspend all or part of an NVR registered training organisation’s scope of registration under section 38;
(f)cancel an NVR registered training organisation’s registration under section 39.
(3)In determining what action to take in relation to an NVR registered training organisation, the National VET Regulator may have regard to:
(a)the organisation’s conduct, or circumstances existing, before the Regulator had cause to consider imposing a sanction on the organisation (including before the commencement of this section); and
(b)if section 37 applies – the organisation’s conduct, or circumstances existing, since the Regulator gave the organisation a written notice as mentioned in that section.
Section 38 of the Act, headed “Suspension”, provides as follows:
“(1)The National VET Regulator may, by notice in writing, suspend all or part of an NVR registered training organisation’s scope of registration.
(2)During the period of suspension, the National VET Regulator may require the NVR registered training organisation to do something, not to do something, or both. This may include restrictions on:
(a)enrolling a student in a VET course or part of a VET course;
or
(c)    allowing a VET student to begin a VET course or part of a VET course; or
(d)   publishing or broadcasting an advertisement relating to a VET course or any part of a VET course; or
(e)    causing to be published or broadcast an advertisement relating to a VET course or any part of a VET course.”
Section 39 of the Act, headed “Cancellation”, provides as follows:
“(1)The national VET Regulator may, by notice in writing, cancel an NVR registered training organisation’s registration in any circumstances that the Regulator considers it appropriate to do so, including for failure to pay a registration fee.
Note:Details relating to an NVR registered training organisation whose registration is cancelled are included on the National Register, see section 216.
(a)It is material, in any proceedings, for a court to be satisfied that an exercise of a power was authorised by this section; and
(b)The warrant signed by the magistrate authorising the exercise of the power is not produced in evidence;
the court must assume, unless the contrary is proved, that the exercise of the power was not authorised by such a warrant.
Section 41 of the Act, header “Requests for Reassessment”, provides as follows:- “…
(2) This section also applies if, under this Part, the National VET Regulator has identified issues that an NVR registered training organisation would need to address before the Regulator would be satisfied that the organisation has done whatever is required for:
(a)a condition imposed on the organisation’s registration to be varied or removed; or
(b)the organisation’s scope of registration to be changed; or
(c)the organisation’s suspension to be listed.
(3) The NVR registered training organisation may request, in writing, that the National VET Regulator reassess its position in relation to the issues identified by the Regulator.
(4) A request must:
(a)describe the actions taken by the NVR registered training organisation to address the issues identified by the National VET Regulator; and
(b)be accompanied by the reassessment fee determined by the Minister, by legislative instrument, under section 232.”
Section 185(1) of the Act empowers the Minister from time to time to make standards to apply to NVR registered training organisations.
The Act came into effect on 1 July 2011.
The applicant became an NVR Registered Training Organisation under the Act.
THE RELEVANT STANDARDS
The specific standards with which the applicant is said not to have complied are as follows:
“SNR 15The NVR registered training organisation provides quality training and assessment across all of its operations, as follows:
15.1     The NVR registered training organisation collects, analyses, and acts on relevant data for continuous improvement of training and assessment.
15.2Strategies for training and assessment meet the requirements of the relevant Training Package or VET accredited course and have been developed through effective consultation with industry.
15.3Staff, 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.
15.4Training 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.
15.5     Assessment including Recognition of Prior Learning (RPL):
(a)Meets the requirements of the relevant Training Package or VET accredited course; and
(b)Is conducted in accordance with the principles of assessment and the rules of evidence; and
(c)Meets workplace and, where relevant, regulatory requirements; and
(d)Is systematically validated.
SNR 16 The NVR registered training organisation adheres to principles of access and equity and maximises outcome for its clients, as follows:
16.1     The NVR registered training organisation establishes the needs of clients, and delivers services to meet these needs.
……
…..
16.4     Employers and other parties who contribute to each learner’s training and assessment are engaged in the development, delivery and monitoring of training and assessment.
…
…
16.7     The NVR registered training organisation provides appropriate mechanisms and services for learners to have complaints and appeals addressed efficiently and effectively.
SNR 17Management systems are responsive to the needs of clients, staff and stakeholders, and the environment in which the NVR registered training organisation operates, as follows:
17.1 …
17.2 ….
17.3
17.4The NVR registered training organisation manages records to ensure their accuracy and integrity.
SNR 18The NVR registered training organisation has governance arrangements in place as follows:
18.1The NVR registered training organisation’s Chief Executive must ensure that the NVR registered training organisation complies with the VET Quality Framework. This applies to all of the operations within the NVR registered training organisation’s scope of registration, as listed on the National Register.
18.2     The NVR registered training organisation must also explicitly demonstrate how it ensures the decision making of senior management is informed by the experiences of its trainers and assessors.
SNR 19…
SNR 20Compliance with legislation
20.1     The NVR registered training organisation must comply with relevant Commonwealth, State or Territory legislation and regulatory requirements relevant to its operations and its scope of registration.
20.2     The NVR registered training organisation must ensure that its staff and clients are fully informed of the legislative and regulatory requirements that affect their duties or participation in vocational education and training.
SNR 21…
SNR 22…
SNR 23Certification, issuing and recognition of qualifications & statements of attainment
23.1     The NVR registered training organisation must issue to persons whom it has assessed as competent in accordance with the requirements of the Training Package or VET accredited course, a VET qualification or VET statement of attainment (as appropriate) that:
(a)        Meets the Australian Qualifications Framework AQF) requirements;
(b)        Identifies the NVR registered training organisation by its national provider number from the National Register and
(c)        Includes the NRT logo in accordance with current conditions of use.
(Note: this refers to the logo conditions in place at the commencement of this instrument.)
23.2     …
23.3     …
23.4     …
23.5     …
SNR 24                    …
SNR 25  Transition to Training Packages/expiry of VET accredited course
25.1     The NVR registered training organisation must manage the transition from superseded Training Packages within 12 months of their publication on the National Register so that it delivers only currently endorsed Training Packages.
25.2     …”
THE APPLICANT’S WITNESSES
Mr Hilder gave evidence on behalf of the applicant. His evidence largely comprised of affirming his written witness statement, which was in the following terms:
“a) SFT is a specialist training company offering training and qualification to Certificate III level in Aged Care in WA, NSW, Victoria and Queensland primarily.
b)SFT is, and has been, compliant with all NVR standards sufficient to maintain full registration as of July 1, 2011.
c)SFT was compliant under the governance and regulation of the Training Accreditation Council (TAC), the WA State regulator, prior to June 30 2011. (TAC granted re-registration to SFT for five years until March 31, 2014, in March 2009).
d)SFT has an outstanding reputation for quality of training with employers built up over a decade.
e)SFT has an outstanding reputation for quality of training with learners; these number over 7000.
f)SFT has always discharged its responsibilities with regard to training State and Federal government-funded learners properly, and with exceptional success rates.
g)Most, if not all, learners achieving qualification through SFT are offered immediate employment.
h)No employer has ever lodged a complaint with either TAC or ASQA in the ten years of SFT’s operations.
i)No learner has ever lodged a complaint with either TAC or ASQA in the ten years of SFT’s operations.
j)Despite, ASQA’s assertions/predictions in its letter of suspension dated 13^th of February, 2012, there remains no evidence of:
i.any harm to aged care residents
ii.any harm to learners
iii.any harm to aged care provider employees
k)SFT has always demonstrated its willingness to meet the demands of the changing regulatory environment.
l)SFT remains willing to make further improvements with regards to compliance, on the basis that it is treated fairly, and with respect for natural justice.
m)ASQA conducted a hostile and significantly flawed audit process on SFT in 2011/12 which inevitably led to ASQA deciding erroneously to suspend SFT’s RTO registration.
n)Despite the intervention of a Stay order being placed on ASQA’s decision by the AAT, significant damage and grave injustice was done to SFT and its stakeholders.
o)The Applicant requests the AAT Member quash/overturn the Respondents decision to suspend the Applicant’s RTO registration.
p)The Applicant requests that the AAT directs ASQA to put SFT back to the position it was prior to the Suspension Decision.”
To give some context to his witness statement, during the course of his evidence Mr Hilder stated that the applicant had taught over 7000 students stretching over a period in excess of a decade.
Mr Hilder was cross examined with respect to subparagraph (b) and (l) of his witness statement. For reasons which become apparent in the moment, is unnecessary for the evidence given by Mr Hilder during cross examination to be summarised.
The applicant called Elizabeth Anne Manley to give evidence. Ms Manley is the Chief Executive Officer/Director of Nursing of the Midland Nursing Home. Ms Manley is a registered nurse and holds a Bachelor of Applied Science and Master of Business Administration. She is a fellow of the Royal College of Nurses Australia, a fellow of the Australian Institute for Company Directors and previously served on the Board of the School of Nursing at Notre Dame University and on the Graduate Committee at Edith Cowan University.
Ms Manley has occupied the position of Chief Executive Officer/ Director of Nursing of Midland Nursing Home for 10 years.
Ms Manley’s evidence in chief was largely to affirm her undated letter “To whom it may concern”. That letter was in the following terms:
“Midland Nursing Home is a large (110-bed), private, stand-alone high care residential aged facility. We engage all our own staff and do not use agency staff. All personal care staff are required to have at least a Certificate III in Aged Care as a qualification.
We also provide all hospitality services (kitchen, laundry and cleaning) in house. Because of the vulnerability of the residents in high care, we also require hotel services staff to have or obtain a Certificate III in Aged Care.
Success Fast Track has been our preferred training provider for aged care qualifications for many years. We have provided workplace experience for their trainees and positions for their graduates, with our Staff Training Officer working co-operatively with the Success Fast Track program.
That training program is theoretically sound and comprehensive, but the hallmark of a Success Fast Track graduate is that they are also practically trained and industry ready at the end of their course. By then they have the basic skills and knowledge to provide quality personal care in the most demanding area of high care.
In our experience, Success Fast Track provides an appropriate, realistic and practical course that provides a suitable base for the demands of residential aged high care.”
Although questioned about certain matters by Mr Cribb, on behalf of the respondent, Ms Manley’s evidence in chief was not challenged by the respondent.
The third witness for the applicant was Christa Sparks. Ms Sparks is a registered nurse of some 40 years standing. For the last 15 years she has been working in the care sector, holding with various positions, including as a director, deputy director of nursing and as a nurse educator. The bulk of her work for the last 8 years has been as a certified trainer for Certificate III in Aged Care: five of those years (2006-2011) were as an employee of Success Fast Track Pty Ltd.
Ms Sparks said she was very familiar with the needs expectations and requirements that aged care facilities expect of the “care staff” they employ for the care of their residents. She said the course content she delivered to the students when employed by the applicant “most certainly covered all of those areas admirably”. She said that the applicant’s students had a very high employment rate following completion of their work experience and were often openly preferred to students from other registered training organisations. She said “the course content was compliant with government requirements and was delivered in a professional manner contextualised where necessary to meet the need of students with linguistic issues”. Ms Sparks said that she has in the past and still would have recommended the applicant as a registered training organisation to anyone who would enquire. She said that she felt that she had adequate direction given to her as an employee of the applicant. She said “there were very clear instructions on the assessments that needed to be done in the workplace environment and the assessments that were done in the classrooms certainly adequately covered the topics that we were dealing with on that day”.
The fourth and final witness called by the applicant was Geoffrey Maxwell James Oliver, whose occupation includes that of a business consultant for training organisations. Mr Oliver holds many formal qualifications including Certificate IV in Training and Assessment, a Diploma of Training and Assessment and a Diploma of Quality Auditing.
Mr Oliver’s expertise as an expert auditor of training organisations was not put in issue by the respondent and is unreservedly accepted by the Tribunal.
Mr Oliver had been engaged by the applicant to conduct an internal compliance audit in about May 2011. As a consequence of that internal audit, Mr Oliver had discussions with the then national manager of the applicant, Kathy Haynes. He said that Ms Haynes was the person employed by the applicant “responsible for quality, and had many discussions with her about that as a result of the audit, and ongoing issues raised, and she kept me informed verbally on ongoing progress to meeting the requirements of any non-compliances identified in the audit”.
Mr Oliver’s audit had disclosed numerous aspects of non-compliance by the applicant with the SNR, but he was satisfied that the applicant was working towards remedying each instance of non-compliance. As he was not subsequently requested by the applicant to conduct a further internal audit, he did not know whether the applicant had in fact remedied all or any of the instances of non-compliance with the standards that he had found.
THE RESPONDENT’S WITNESS
The respondent called Sarah Bernice Dew to give evidence on its behalf. Ms Dew has various qualifications including ISO 9001:2000 Quality Lead Auditor Training and a Statement of Attainment in Audit in VET. From May 2006 until January 2010 she was the Compliance Officer (STO 2), Accreditation and Approval Services, VETAB, Department of Education and Training. Since 2010 she has run her own consulting company, S Dew Consulting Pty Ltd, carrying out, amongst other things, audits of registered training organisations.

The applicant did not challenge Ms Dew’s undoubted expertise as an auditor of registered training organisations.
Ms Dew’s evidence was largely in the form of a written report, and an updated written report.
Ms Dew had conducted a desk audit of all of the material that was before the respondent when it made its decision. She subsequently updated that report to have regard to all of the material which the applicant subsequently provided to the Tribunal for the purpose of this application over and above that which the respondent had considered.
In short, Ms Dew concluded that, on the material which she had reviewed, in her opinion, the applicant was not only in contravention of the relevant standards when the respondent made the reviewable decision, but remains in contravention of those standards.
It should be noted, of course, that it is for the Tribunal, not an expert witness, to review the material, make findings of fact and then determine whether or not the facts reveal contraventions of the relevant standards.
In this particular case, however, Ms Dew’s evidence was particularly useful to the Tribunal, as in the end, not only did the applicant not seriously challenge Ms Dew’s evidence in cross examination, but the applicant ultimately made important concessions with respect to Ms Dew’s evidence (which are noted below).
It is therefore convenient to set out in full Ms Dew’s updated report dated 19 June 2012 (as corrected to the extent that it was corrected by Ms Dew during the course of her evidence)

15.1

The NVR registered training organisation collects, analyses, and acts on relevant data for continuous improvement of training and assessment.

ASQA’s findings in relation to this Standard are found on pages 131 and 132 of the Respondent’s documents, being pages 5 & 6 of the 31 October 2011 Audit Report (Sydney) and state:

The RTO collects some data from students.

The RTO did not present sufficient evidence that the data collected is analysed or that the RTO acts on the data that had been collected or acts on the recommendations for improvements stated by students.

There was little evidence of documented continuous improvement noted in the Continuous Improvement Tracker since November 2009.

The RTO did not demonstrate through the evidence presented that it has a systematic approach to improvement of training and assessment.

ASQA’s findings in relation to this Standard are also found on page 153 of the
Respondent’s documents being pages 5 & 6 of the 8 & 9 November 2011 Audit Report
(Melbourne) and state:

The RTO collects some data from students.

The RTO had conducted an analysis of learner feedback in the days preceding the Melbourne audit, but that there was no evidence of other systematic data collection

That an Internal Audit Report dated April 2011 had not been acted on.

The RTO did not demonstrate through the evidence presented that it has a systematic approach to improvement of training and assessment.

ASQA’s findings in relation to this Standard are also found on page179 of the
Respondent’s documents being page 6 of the 17 November 2011 Audit Report (Perth)
state:
·    The RTO did not demonstrate through the evidence presented that it has a systematic approach to improvement of training and assessment.
·    At least seven continuous improvement opportunities are not acted on.
·    Internal Audits confirmed the RTO was not complying with all standards.

ASQA’s findings in relation to this Standard are also found on pages 199 and 200 of
the Respondent’s document being pages 4 & 5 of the 14 December 2011 Summary of
Audit Findings Report state:

There was some evidence of continuous improvement activity but this activity was not implemented in a systematic manner, therefore, the RTO did not provide evidence that it has a systematic approach to improvement of training and assessment.

The Applicant’s Response at page 291 states:

That it is reasonable to assume that suitable systems are in place given that SF – T has been operating for more than ten years in a volatile regulatory environment and through this time has enhanced the reputation in the aged care sector.

That the auditor failed to consider relevant evidence.

The Applicant did not provide examples of evidence that it states the auditor failed to consider.
An Evaluation Process Policy and Procedure (V2, reviewed November 2011) is found in the Applicant’s document at pages 329 and 330, however there was no documented accompanying evidence to demonstrate implementation.
A document entitled Validation Process (Version 1.1) was found commencing at page 331 of the Applicant’s document. The units that were the subject of the validation process are noted as:

HLTCSD208B Transport Client

HLTCSD203B Prepare and Maintain Beds

CHCCS301A Work within a legal and ethical framework

CHCAC4B Assist in the provision of an appropriate environment

The document also states that the qualification being validated is the CHC30102 Certificate III in Aged Care, this is a superseded qualification replaced by the CHC30208 Certificate III in Aged Care.
Page 334 refers to the AQTF 2007. The AQTF 2007 was superseded by the Standards for NVR Registered Training Organisations on 1 July 2011.
Page 334 refers to the Assessment Guidelines from the CHC02 Training Package, rather than the CHC08 Training Package.
Page 335 is also part of the Validation Process however the document is not populated at the following fields: Location of validation meeting, Part C – Summary of assessment validation outcomes, summary of agreed validation findings, validation action plan (including recommendation, responsibility and due date) a declaration and fields for name, signature, date, position and organisation. It has not been made clear who participated in the Validation. There are no participants listed, there is no date to confirm when the validation took place. There is no evidence that improvements noted (for example the first aspect considered at page 331 and another at the top of page 333 of the Applicant’s document) have been acted on.
One of the notes/suggestions noted are not relevant to the aspect considered, for example on page 333 where the aspect noted is: Each tool / task is version controlled and the appropriate version was used and the notes/suggestions column is populated with the wording: Classroom, workplace and third party.
Page 1000 to page 1005, submitted as part of the June 2012 evidence submission is a document entitled Validation Process. The qualification being validated (noted on page 1000) is the CHC30208 Certificate III in Aged Care. Aside from the change in qualification title (from the CHC30102), list of four units of competency and on page 1003 the removal of the words AQTF 2007 and Assessment Guidelines, Vol 1 of CHC02 Training Package, being replaced with the words VET Quality Framework and Assessment Guidelines CHC08 Training Package, the validation notes/suggestions (the third column) details the same notes and feedback found on page 331 to 336.
The RTO submitted evidence of a document entitled Survey Analysis (found commencing at page 337 of the Applicant’s documents) for a course in Adelaide on the 12^th of September 2011. There are two student respondents. Fourteen of the possible twenty-five fields were populated with a response; the remainder was not populated with a response. There is no version control noted on the document. There was no further information provided to detail how the data was used in continuous improvement activity.
A second Survey Analysis document was sighted (found commencing at page 349 of the Applicant’s document) for a course at Mt Waverley, 26 September 2011. There are nine student respondents and fifteen of the possible twenty-five fields were populated with a response. There was no further information provided to detail how the data was used in continuous improvement activity.
A third Survey Analysis document was sighted (found commencing on page 361 of the Applicant’s document) for a course at Preston on the 24^th of October 2011. There are five student respondents and fifteen fields are populated with student responses. There is no further information as to how the RTO used the data collected from the survey. There was no further information provided to detail how the data was used in continuous improvement activity.
A Survey Analysis for Adelaide, 12 September 2011 was noted commencing page 1014 of the June 2012 evidence submission. The document is the same as the document that appears commencing page 337 with the exception of the wording ‘RTO Learner Analysis Process V1 Reviewed Feb 2011, TMS 2011/05. Learner Survey Analysis forms, Uncontrolled When Printed, Visit Success Fast-Track Training Model for’ found on page 1014.
A Survey Analysis for Mt Waverley, 26 September 2011 was noted at page 1007 in the applicant’s June 2012 evidence submission. The document is the same as the document that appears commencing page 349 with the exception of the wording ‘RTO Learner Analysis Process V1 Reviewed Feb 2011, TMS 2011/05. Learner Survey Analysis Forms, Uncontrolled When Printed, Visit Success Fast-Track Training Model for’ found on page 1007.
A Survey Analysis for Preston, 24 October 2011 for five students was noted commencing page 1021 of the June 2012 submission. The document is the same as the document that appears commencing on page 361 with the exception of the wording ‘RTO Learner Analysis Process V1 Reviewed Feb 2011, TMS 2011/05. Learner Survey Analysis Forms, Uncontrolled When Printed, Visit Success Fast-Track Training Model for’ found on page 1021.
A Change Request Form (V2 reviewed Feb 2011) was sighted at page 387 of the Applicant’s document dated 25 November 2011. The form has a field for a Request Number however this is not populated. The form states that the request (relating to travel) will be discussed at the Manager’s Meeting on the 29 November 2011. The following fields on the office use section are noted:

the date received

reviewed by

approved (yes or no, by whom and date)

If approved, State Manager to access Project Plan Proposal process and arrange initial meeting

Originator of the request advised of outcome

If approved, and project plan to Continuous Improvement Tracker

The form was not completed. Of the above fields, only fields date received and reviewed by are populated. There was no other evidence submitted. The RTO did not submit evidence that the change request had been actioned or that an improvement had been made.
The Change Request Form (V2 reviewed Feb 2011) was also submitted in the June 2012 submission, page 1035. The document is the same as previously submitted with the exception of the wording in the second line of the document footer.

A document with the heading Proposed Notes Concerning Formal KPIs, found at page 389 of the Applicant’s document states that in order to document KPIs SF-T will create a report template to be filled in by each manager on a monthly basis for use as a discussion point at manager’s meetings. There is no version control noted on the form, there is no date.
Page 1036 is a document entitled Manager KPIs. The document states that the form is to be filled in by each manager on a monthly basis. The form is not populated. There is no accompanying evidence to confirm implementation.
The Applicant did not refer to other relevant documented evidence that it demonstrates the systematic collection of data and continuous improvement training and assessment.
Therefore based on the evidence at hand, the RTO remains non compliant with SNR 15.1 as:

There is insufficient analysis or evidence of acting on relevant data for the continuous improvement of training and assessment.

There were no examples of how the RTO had acted on data to improve training and assessment services.

15.2

(EOS)

Strategies for training and assessment used by the meet the requirements of the relevant training package or accredited course and have been developed through effective consultation with industry.

ASQA’s findings in relation to SNR 15.2 can be found at pages 132 – 134, 154 & 155, 180 and pages 199 & 200 of the Respondent’s document and finds that:
•The RTO’s Learning and Assessment Strategy (LAS) course structure (selection of core and elective units) reflects the Training Package requirements.
•There was no documentary evidence that the LAS have been developed through effective consultation with industry.
•The RTO has one LAS to cater for a range of client groups that have different learning needs.

The Applicant’s response to 15.2 commencing on page 295 of the Applicant’s documents states that:
•The LAS identifies a comprehensive mapping document that links training and assessment activities with employer consultation, however the mapping was not presented as evidence.
•Employer feedback illustrates that SF-T satisfies all requirements, however no employer feedback used by the RTO to develop strategies for training and assessment was presented as evidence.

The Applicant’s response to 15.2 can also be found commencing page 304 of the Applicant’s documents and the response at point 16 states that SF-T meets the requirements of the Training Package for delivery of the Certificate III in Aged Care as shown by an extensive mapping document, however the mapping document was not provided.
Point 16 also refers to abundant evidence of continuous industry consultation and data supplied by employers through the work experience part of the course, however no documentary evidence to support this statement was provided.
The RTO caters to at least four client groups, however did not demonstrate how it adapts training and assessment services to cater to each group or present a Learning and Assessment Strategy that documents different learning and assessment methods to meet the needs of each group.
The RTO remains non compliant with SNR 15.2 as it has not demonstrated by a submission of evidence that it has engaged employers and any other relevant parties in the development, delivery and monitoring of training and assessment, particularly in relation to the work placement component of the program as:

The RTO did not provide documentary evidence that it had consulted with industry in the development of the course

The RTO did not provide documentary evidence that learning and assessment strategies are adjusted to meet specific groups of learners.

15.3

(EOS)

Staff, facilities and equipment and training and assessment materials used by the NVR registered training organisation are consistent with the requirements of the training package or accredited course and the NVR registered training organisation’s own training and assessment strategies and are developed through effective consultation with industry.

ASQA’s findings of non-compliance can be found at page 155 of the Respondent’s documents and state that at the time of audit, the RTO’s assessment materials had not been updated since the initial release of CHC08. Version 3 of the CHC08 Training Package was released in January 2011. There are references made to CHC02 on documents (the validation document) and outdated unit title codes were noted on the RTO website. At page 296 of the Applicant’s documents the RTO states that Learning and assessment materials have been updated since 2008 and that information that populates the LAS has been updated since 2008, however no evidence to demonstrate this activity was submitted. Therefore it cannot be confirmed that the RTO ensures the currency of its resources.
The audit team had concerns over the RTO not having a dedicated wet area. The RTO’s response states that it has set up a wet area, however no evidence of this was provided for example invoices to confirm purchase or hire of required facilities and equipment or photographic evidence.
The audit report notes at page 180 that the RTO did not present evidence that it had memorandum of understanding with all work experience hosts. This is an issue given the RTO relies on the work place to allocate a qualified buddy for each work placement student.
It was also not made clear how the RTO ensures the quality of training and assessment being undertaken in terms of the work placement having appropriate facilities and equipment as some work places had been assessed after the work experience had commenced as stated on pages 180 and 181 of the Respondent’s documents. The onus is on the RTO to ensure that all training and assessment services provided on its behalf are compliant with the relevant NVR Standards requirements.
A Work Experience Provider Checklist was sighted at page 1076 of the Applicant’s documents, the form is a form document, it was not populated, and there is no version control.
Refer to SNR 15.4 for discussion on staffing (below).

15.4

(EOS)

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 (NQC) 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.

* Vocational competency is defined as broad industry knowledge and experience, usually combined with a relevant industry qualification. A person with vocational competency will be familiar with the content of the vocation and will have relevant current experience in the industry. Vocational competency must be considered on an industry-by-industry basis and with reference to the guidance provided in the Assessment Guidelines of the relevant training package.

ASQA’s findings are noted on pages 134 – 137, 155 – 158 and pages 181 – 183 of the Respondent’s documents. The Audit Reports detail the deficiencies against the Standards.
The Applicant’s documents at page 307 states that a schedule of trainer/staff appraisals is in place, however this was not provided as evidence.
The Applicant’s documents commencing at page 1135 is a Trainer and Assessor Review Process, however the document is not populated. Evidence of implementation was not provided.
The Applicant’s document at page 307 states that a summary of the staff appraisals are sent to the CEO via monthly report by the NOM, however documentary evidence of this activity was not provided.
The Applicant’s document at page 307 states that monthly professional development results are sent to managers and fed back through the NOM and CEO, however documentary evidence of this was not provided.
The ASQA reports state that 15 trainer/assessors were selected for sampling:

There was no evidence for nine of the fifteen staff of strategies to develop VET knowledge and skills

There was no evidence for nine of the fifteen staff of a strategy to develop industry currency

There was no evidence for thirteen of the fifteen staff of a strategy to develop trainer/assessor competence

A Staff Qualification Verification Checklist (version 1, review date 30/6/2009) was sighted on page 1081 of the Applicant’s documents. The document is not populated with data.
The RTO, through the audit process and in the Applicant’s documents did not demonstrate staff continue to develop their vocational education and training (VET) knowledge and skills as well as their industry currency and trainer/assessor competence.
The RTO did not demonstrate that it had assessed the authenticity of the four trainer/assessor credentials that were sampled at the Perth audit (pages 181- 183 of the Respondent’s documents).

15.5

(EOS)

Assessment, including Recognition of Prior Learning (RPL):

(a) meets the requirements of the relevant training package or accredited course

(b) is conducted in accordance with the principles of assessment and the rules of evidence

(c) meets workplace and, where relevant, regulatory requirements

(d) is systematically validated and moderated.

The ASQA reports found at page 137 – 140 detail deficiencies against the requirements for example:

Use of a tick list to record work placement assessment. The audit team raised concerns about the fairness and validity as the work place assessor asks questions about the students work placement however these are not selected from a standard set of questions, therefore there is no answer bank.

There is no space to record student responses or to provide feedback to students on achievement of competency or where competency is not demonstrated.

It was not evident how the tool would achieve consistency between learners or assessors.

The audit report raises concerns on page 139 of the assessment conducted in the workplace by the workplace buddy. The audit report found that it was not clear what is observed, when, where, by who and under what conditions.
The audit report raises concerns in relation to the assessment undertaken by the SF-T assessor, stating that assessment may take as little as 1.5 hours to complete, also on page 133 under the heading on the job assessment, point 3 states that on the job assessment conducted by the assessor takes between 1.5 – 4 hours. This would not ensure sufficient or valid assessment if this is the only assessment undertaken by a qualified assessor, as per the requirements of SNR 15.4.
The Audit report at page 139 of the Respondent’s document states that the RTOs mapping of assessments of essential knowledge and skills against the units of competency is at a high level and did not provide sufficient information about how each unit is actually assessed, rather it states ‘on the job’ or ‘completion of classroom activities’.
The Audit report at page 139 of the Respondent’s document states that there was no indication of how the dimensions of competency are addressed.
The Audit report on page 139 states the Master Timetable lists a simulated activity on showering and dressing a resident but that an assessment of the competencies were not sighted in the Classroom Assessment book, therefore it was not made clear how this is sufficiently assessed by a qualified assessor.
The ASQA Audit report at page 159 – 162 also details findings in relation to this Standard. The report at page 161 found that the degree of preparation for students and support/supervision provided on work placements is inconsistent. An example was provided of a student’s journal where the student was left unsupervised ‘a lot’ on the first day and it appears from notes in the Journal that the student is not being adequately supervised or trained by workplace personnel. Copies of the student’s journal can be found at pages 265 – 270 of the Respondent’s document.
The report also found on the same page that some students were assessed as being competent, even though supervisor observations indicated that further evidence was required, there was no evidence that such evidence was obtained.
The ASQA report at page 184 states that the actual units of competency are not made available to students. It is not clear how a student knows what it is they are being assessed against and it is not fair assessment practice.
The ASQA report at page 184 provides and example of a student stating the on the job assessment took a half of an hour, and that the assessor observed the student, no questions were asked. A second student stated the on the job assessment took one and a half hours. The ASQA report at page 160 states that a 38 page 83 item checklist of skills is used by the RTO and that the 83 items observation checklist administered in 90 minutes, equating to 64 seconds per assessment item. When questioned how this was possible trainers admitted that they tick the box and do not go through the performance criteria therefore there is no assurance that the trainers / assessors are confirming competence against all unit requirements. Further, many of the units require assessment over a period of time therefore requirements cannot be assessed in one half of an hour. This would not meet the assessment principle requirements of validity and sufficiency. There was also no evidence that the RTO was assessing as per the dimensions of competency. The RTO should not be issuing qualifications to students where it is not confirmed that all qualification requirements are met.
The Applicant’s response on page 297 of the Applicant’s documents states at point 3 that the mapping document detailing the relationship between training package assessment requirements and the mode of assessment was out of date at the time of audit, and this has since been updated, however a copy of the updated document was not provided as evidence (aside from one or two pages found at pages 914 and 915 of the Applicant’s documents.
The RTO submitted a revised Case Study: Palliative Care document (previously submitted commencing page 383) commencing page 1032 Applicant’s document. There are no instructions to the assessor on how to administer the task (i.e. how long does a student have to complete the task, under what conditions etc). There are no instructions to the student and there is no indication what unit or part of a unit or cluster of units the task proposes to assess. There is no field to provide feedback to the student on performance. There is no guidance to the assessor as how to measure competence; there is no field to record a result (for example competent or not yet competent).
The ASQA report at page 160 states that the RTO does not have assessment tools, or gather evidence for Provide Personal Care (one of the activities that is on the Assessment Checklist). Therefore it is not clear how this is validly, sufficiently or fairly assessed. No further evidence was provided.
A document entitled Validation Process was noted at page 331 of the Applicant’s document. The document refers to CHC30102 (a superseded qualification) and lists the following units:

HLTCSD208B Transport Client

HLTCSD203B Prepare and maintain beds

CHCAC4B Assist in the provision of an appropriate environment

CHCCS301A Work within a legal and ethical framework

It is noted that three of the four units (noted in italics above) are not, according to the RTO’s website viewed at: on 12 May 2012 the units of competency that make up the SF-T qualification structure. The Validation Process document states that documents needed during the validation process are current units of competency. There is not sufficient evidence of current assessment tasks being systematically validated and moderated.
A copy of a Microsoft excel entitled Mapping Document Assessment CH08 (sic) was
sighted on page 914 of the Applicant’s document. The document refers to some of the
unit of competency required knowledge and refers to the assessment task (that has
been allocated a number) that is to take place. Some of the required knowledge noted
on the page appear to be assessed only once. The Unit of Competency Critical aspects
for assessment and evidence required to demonstrate this unit of competency states it
is recommended that assessment or information for assessment will be conducted or
gathered over a period of time and cover the normal range of workplace situations and
settings, therefore one assessment on one occasion of the unit requirements would
not suffice. It is not confirmed that based on the assessment tasks described on the
document and in the report that it would ensure the students possess workplace
relevant skills and knowledge.
Based on the audit report, the Applicant’s response and evidence submitted with the
response the RTO remains non-compliant as the RTO did not provide evidence that its
assessment tools address all elements of competency, essential knowledge and skills
and critical aspects of evidence or cover all dimensions of competency or inform
assessors and students about competent performance requirements, or that it
systematically validates and moderates assessment.

16.1

The NVR registered training organisation establishes the needs of clients, and delivers services to meet these needs.

ASQA’s audit findings are noted at page 162 of the Respondent’s documents and found that the RTO was not able to demonstrate consistent and systematic processes for identifying student needs prior to enrolment, or their suitability for the course.
The ASQA report notes that the RTO provided some evidence that it has established the needs of some of the learners. The ASQA report notes that the RTO has varied training plans in response to the needs of some of the learners.
The ASQA report at page 185 notes the RTO has a Standard Enrolment Questions document that asks about personal details, language and cultural diversity, disability and schooling, however this document was not sighted in Sydney or Melbourne.
The Applicant’s response at page 297, 298 and 309 of the Applicant’s documents state that SF-T employees carry out case by case support of students in need of assistance with regard to access and equity in establishing their requirements, however evidence of the case by case support was not provided.
The Applicant makes references to student selection, candidate interviews, information provision on the first day of the course, trainer concerns about student capability, however no evidence to demonstrate this activity was provided.
It can not (sic) be confirmed based on the evidence presented, being the Applicant’s response, that the RTO ensures that the needs of all clients are established, that client services are put into place or accessed to address the identified needs or that the provision of services is monitored to ensure that the RTO continues to address the identified need.

16.4

(EOS)

Employers and other parties who contribute to each learner’s training and assessment are engaged in the development, delivery and monitoring of training and assessment.

ASQA’s findings at page 163 of the Respondent’s documents found the RTO non-compliant because the RTO did not provide evidence that:

workplace personnel are consulted in the development of workplace training and assessment processes

the RTO monitors the contribution of workplace personnel in supporting each learner’s training and assessment

The RTO systematically monitors the learner’s progress

Information from workplace personnel is used to continuously improve training and assessment

The Applicant’s response at page 298 and 321 states that the LAS shows how and which employers are consulted to meet the requirements of aged care employers. A Learning and Assessment Strategy was sighted at pages 1089 – 1106. The document does not detail which employers are consulted with to meet the requirements of aged care employers. There was no other evidence of consultation with employers to demonstrate they are engaged in the development, delivery and monitoring of training and assessment.
The Applicant’s response at page 298 and 321 states that aged care employers are consulted with, and work with SF-T trainers to moderate and validate the training and assessment provided and that this is documented, however no documented evidence of this activity was provided.
The Applicant’s response at page 298 and 322 states that discussion on the suitability of the training and assessment being delivered to over 1000 students during 2011 is discussed via a sequence of phone calls, emails, faxes and on site visits for assessment, however documented evidence of this activity was not provided as evidence nor how this consultation and feedback was acted upon.
The RTO remains non-compliant because through an evidence based process it could not be confirmed that employers and other parties who contribute to each learner’s training and assessment are engaged in the development, delivery and monitoring of training and assessment.

16.7

The NVR registered training organisation provides appropriate mechanisms and services for learners to have complaints and appeals addressed efficiently and effectively.

The ASQA report at page 186 and 187 of the Respondent’s document states that there was some evidence of complaints and appeals, however there is no evidence that complaints and appeals are monitored and reviewed to prevent their recurrence and to improve the RTOs operations and services.
The Applicant’s document at page 311 states that SF-T has conducted qualitative and quantitative analysis at three locations to improve the complaints and appeals process, however the analysis was not provided as evidence, nor was there evidence of the improvements the RTO has made to operations as a result of the activity or of how the complaints are reviewed to prevent recurrence.
The RTO has not demonstrated compliance with SNR 16.7.

17.4

The NVR registered training organisation manages records to ensure their accuracy and integrity.

ASQA audit report findings are on page 187 of the Respondent’s documents and state that the RTO has not provided evidence that records for demonstrating compliance with the VET Quality Framework are maintained and that the effectiveness of records management is monitored and reviewed.
The Applicant states at page 312 that it is collecting data for AVETMISS, with a deadline of 31 March 2012. The Applicant submitted the response on 30 April 2012 however no evidence that the AVETMISS submission was made by the March deadline was provided.
The Applicant states on page 312 that it acts on suggestions for improvement as evidenced by email communication between staff, with emails about improvements to training, however no documentary evidence of the emails or of how the email suggestions are acted upon was provided.
The Applicant states on page 313 that it has purchased Avetmiss Easy software in August 2011 and the system is active. The ASQA report at page 187 states that the RTO, at November 2011, had begun implementation in Western Australia to report against requirements for Government funding. It is noted that at page 238 of the Respondent’s documents, being record of a meeting at SF-T that AVETMISS easy program was activated in Melbourne during December 2011. At the time of audit there was no implementation plan for other states.
This document details examples of where records have not been managed to ensure accuracy (for example currency of information of unit codes and qualifications) and where the integrity has not been demonstrated (for example verifying staffing qualifications).
No further evidence was provided. Based on the evidence at hand, the RTO remains non-compliant with SNR 17.4.

18.1

The NVR registered training organisation’s chief executive must ensure that the NVR registered training organisation complies with the VET Quality Framework. This applies to all of the operations within the NVR registered training organisation’s scope of registration, as listed on the National Register.

SNR18 was assessed at the Perth audit with ASQA’s findings noted commencing page 188 of the Respondent’s documents (commencing page 15 of the 17 November 2011 Audit Report (Perth)); and discussed on page 200 of the Respondent’s documents (page 5 of the Summary of Audit Findings Report dated 14 December 2011).
The Applicant’s document at page 287 advises at point 1. Attached SNR18 illustrates Success Fast-Tracks governance process. This evidence is also referred to at page 327 of the Applicant’s document under point 1 (ii), stating the flowchart illustrates the Chief Executives’ interaction with employees in ensuring that all operations meet the requirements of the VET Quality Framework (SNR 18).
The Governance Flowchart for Success Fast-Track Pty Ltd (referred to above) is found at page 289 of the Applicant’s document, and again at page 1107.
It is noted that there is no version control or date of issue. The legend at the bottom of the document shows two arrows one for feedback to the CEO (meetings, phone, email) and the second for direction from CEO (meetings, phone email) however arrows were not sighted on the flow chart between staff members, rather only straight lines were noted.
The document does not illustrate the Chief Executives’ interaction with employees (how often, reporting lines).
The Respondent’s document at page 188 and 189 notes that there was no evidence the CEO had acted in a systematic way to rectify critical non-compliances identified in an internal audit conducted seven months prior to the date of the Perth Audit report.
The RTO did not submit any other documented evidence to demonstrate that the Chief Executive ensures that the RTO complies with the VET Quality Framework.
The ASQA audit reports identify a history of non-compliance. The Applicant’s documents at page 847 - 876 include previous audit reports conduced by Western Australia TAC, and these also identify a history of non-compliance.
Under the heading Sufficient Evidence of Compliance on page 292 of the Applicant’s documents the RTO also makes reference to the Australian Quality Training Framework (AQTF) and the Audit Handbook. The Audit Handbook was developed to support the AQTF. The Audit Handbook is not an endorsed document and the VET Quality Framework superseded the AQTF on 1 July 2011 and therefore these documents are out of date. The VET Quality Framework comprises:
•The Standards for NVR Registered Training Organisations
•The Fit and Proper Person Requirements
•The Financial Viability Risk Assessment Requirements
•The Data Provision Requirements, and
•The Australian Qualifications Framework.

The CEO of the RTO has not rectified outstanding non-compliances so has not ensured that the RTO complies with the VET Quality Framework therefore SNR18.1 remains non-compliant.

18.2

The NVR registered training organisation must also explicitly demonstrate how it ensures the decision making of senior management is informed by the experiences of its trainers and assessors.

The ASQA report at page 165 states that there are examples where staff and managers have suggested improvements and that there were documents that suggested improvements however there was little evidence that these had been acted upon and that overall there was little evidence of any systematic involvement of trainers/assessors in decision making.
The Applicant’s document at page 292 states that SF-T fulfils governance requirements by conducting regular Skype meetings, senior manager hold regular meetings with trainer and assessors and administrative staff, there is daily communications between employees, trainers and senior managers communicate with other trainers and administrative staff on issues immediately. The Audit Report at page 189 states that minutes of manager meetings via Skype was sighted in Perth, but there was no evidence of minutes of meetings of trainers/assessors. A Monthly Meeting Record was noted at page 391 of the Applicant’s documents for meeting on 3 November 2011, however there was no accompanying evidence to demonstrate that actions were completed by the completion date. It was also not clear from the document where trainers/assessors had made suggestions and how decision-making would be informed.
Page 189 of the Respondent’s document (page 16 of the 17 November 2011 (Perth) Audit Report) noted that staff and managers have stated suggestions for improvements and that documents sighted contained suggestions for improvement, but that throughout the audit process the RTO did not demonstrate how the suggestions had been systematically acted upon.
Based on the evidence at hand, it was not demonstrated that trainers and assessors provide input to business decisions or that the RTO includes the considerations of trainers and assessors experiences in decision-making. SNR 18.2 remains non-compliant; as there is insufficient evidence to explicitly demonstrate how the RTO ensures the decision making of senior management is informed by experiences of trainers and assessors.

20.1 The NVR registered training organisation must comply with relevant Commonwealth, state or territory legislation and regulatory requirements relevant to its operations and its scope of registration.

20.2 The NVR registered training organisation must ensure that its staff and clients are fully informed of legislative and regulatory requirements that affect their duties or participation in vocational education and training.
ASQA found the Applicant non compliant with SNR 20 and discussion can be found at page 189 of the Respondent’s documents. The report states that the RTO had not identified legislation relevant to delivery in NSW, Victoria, Tasmania, Queensland or South Australia, relevant to its scope of registration and has not ensured that staff and clients are fully informed of legislative and regulatory requirements that affect their duties or participation in vocational education and training in the states of delivery.
The Applicant has provided a link to websites that house legislation databases as sighted in the Learner Guide, version 3 – October 2011, however it has not made clear to students what pieces of legislation is relevant to their participation in VET, for example the National Vocational Education and Training Regulator Act (2011).
The RTO Staff Handbook, page 1149 provides staff with a list of legislation, however this refers to the NVR Act, 2011 rather than the National Vocational Education and Training Regulator Act 2011 and the Australian National Training Authority Act 1992, however this Act ceased in 2005. An RTO Staff Induction document was found commencing page 1108. Three pieces of legislation are noted on page 1109, with one (VET Act 1996) one being specific to Western Australia.
The Applicant’s response at page 315 refers to documents including a PowerPoint presentation on legal and laws relating to the aged care industry; a Student Resource Pack that contains web addresses of the relevant state organisations responsible for those areas and states that the Learner Handbook is being amended to include information on plagiarism, however evidence of the above was not provided.
The applicant has not demonstrated that its staff and clients are fully informed of legislative and regulatory requirements that affect their duties or participation in vocational education and training in the states of delivery.
Therefore, based on the evidence at hand, SNR 20 remains non-compliant.

23.1

The NVR registered training organisation must issue to persons whom it has assessed as competent in accordance with the requirements of the training package or accredited course, a qualification or statement of attainment (as appropriate) that:

a) meets the Australian Qualifications Framework (AQF) requirements

b) identifies the NVR registered training organisation by its national provider number from the National Register

c) includes the NRT logo in accordance with its current conditions of use.

The ASQA audit report findings are found in the Respondent’s documents at pages 144, 166 and page 190. The Statement of Attainment at page 1042 remains non-compliant because the qualification code and title from where the unit was taken does not appear, rather the CHC08 Health Training Package is incorrectly referenced.

25.1

The NVR registered training organisation must manage the transition from superseded training packages within 12 months of their publication on the National Register so that it delivers only currently endorsed Training Packages.

ASQA report findings are at pages 144 & 145, 168 and 192. The RTO was found non-compliant because there is no evidence of a plan in place to ensure that all materials are updated to the revised units of competency for delivery by January 2012, and the organisation’s website referred to a superseded version of the CHC08 Training Package.
The Applicant’s response at page 301 and 323 of the Applicant’s documents states that all materials were being updated to the revised units of competency and this was being conducted as part of the overall review being undertaken by the National Operations Manager. The applicant’s website at the link ‘Resources’ viewed at on 12 May 2012 and again on 19 June 2012. The webpage provides a list of units of competency that make up the SF-T qualification structure. There are 10 core and four elective units. Of the 14 units of competency, eight units are listed on the SF-T website with codes that are superseded:

The Applicant’s website states the code to be CHCAC318A Work effectively with older people. The most up to date code is CHCAC318B.

The Applicant’s website states the code to be CHCCS411A Work effectively in the community sector. The most up to date code is CHCCS411B.

The Applicant’s website states the code to be CHCIC301A Provide support to meet personal care needs. The code is CHCICS301A.

The Applicant’s website states the code to be CHCOHS312A Follow safety procedures for direct care work. The most up to date code is CHCOHS312B.

The Applicant’s website states the code to be HLTAP301A Recognise healthy body systems in a health care context. The most up to date code is HLTAP301B.

The Applicant’s website states the code to be CHCMH301A Work effectively in mental health. The most up to date code is CHCMH301B.

The Applicant’s website states the code to be CHCCS400A Work within a relevant legal and ethical framework. The most up to date code is CHCCS400B.

The Applicant’s website states the code to be HLTFA301B Apply first aid. The most up to date code is HLTFA301C.

The Respondent submitted no additional oral evidence.
THE THRESHOLD ISSUE: DOES THE APPLICANT COMPLY WITH THE SNR?
During the course of closing submissions, Mr Hilder, on behalf of the applicant, conceded that the evidence before the Tribunal established that the applicant was not compliant with all of the relevant standards (P – 231).
As to the extent of non-compliance, Mr Hilder said this: (P – 233)
“Sure. I acknowledge that – on the evidence before Ms Dew and the Tribunal that there are non-compliances that my company needs to rectify on the standards as they are raised by the respondent as a result of Ms Dew’s report. We have been through them at length and while I do believe, that, in fact, there is documentation and evidence that effectively does non-compliances could be rectified now, in reality evidence does, in fact, exist. However, you know I have not been able – and that is my fault, my responsibility, that I have not been able to present those documents to the Tribunal. So I don’t really have an issue with accepting that those non-compliances as identified in Ms Dew’s report do require rectification on the part of my company”.
The following exchange then occurred between the Tribunal and Mr Hilder:
Mr Penglis:What you are saying is you concede that basically the evidence before the Tribunal – unless there is any particular matter you want to take us to – the Tribunal should come to the same conclusions as Ms Dew has?
Mr Hilder:      Yes.
Mr Penglis:     Because she has had the same material as we have?
Mr Hilder:      Exactly right”.
Notwithstanding these concessions, and notwithstanding Ms Dew’s unchallenged evidence, the Tribunal has reviewed the evidence before it and is satisfied that the applicant’s concessions are proper and appropriate. In other words, even had the Tribunal not had the benefit of Ms Dew’s evidence, and even if the applicant had not made the concessions referred to, the Tribunal, having reviewed all of the evidence, would have reached the same conclusions.
Accordingly, albeit with one (minor) exception, the Tribunal finds as fact, those facts as set out in Ms Dew’s reports, and concludes that the applicant is not compliant with standards 15.1, 15.2, 15.3, 15.4, 15.5, 16.1, 16.4, 16.7, 17.4, 18.1, 18.2, 20.2, 23.1 and 25.1.
The one exception which Mr Hilder made to his concession was with respect to Standard 15.2 made in Ms Dew’s paragraph in the following terms:
“The RTO caters to at least four client groups, however did not demonstrate how it adapts training and assessment services to cater to each group to present a learning and assessment strategy that documents different learning and assessment methods to meet the needs of each group.”
In this regard Mr Hilder pointed to its “Learning and Assessment Strategy document”
that expressly acknowledges the four client groups and states, amongst other things, as follows:
SUCCESS FAST-TRACK’S main Learner group is comprised of 30-50 year old people, 80% of whom are female. Typically they are seeking a career change or are re-entering the workforce after starting families. The males are seeking a career change or occasionally starting a career. There are also a small number of people in the 18 – 30 age groups who are entering the workforce for the first time or are embarking on their second job. In addition there is a small group of people in the 50+ age group looking for a career change and wish to bring their life skills to the aged care environment. The last part of the target group are Aged Care Workers already working the aged care sector who have never been formally trained and have attained no formal qualifications but wish to complete the course to fill any gaps and bring their skills and knowledge up to date. These learners are offered on RPL process or they can complete the program as scheduled. A portion of any group of Learners will have English as a second language. Typically a significant number of these will be from African, Asian and Middle Eastern countries. Language and literacy skills assessments LLN determine basic English skills.
The Tribunal is satisfied that such a document is sufficiently inconsistent with Ms Dew’s conclusion that a finding of fact in that regard ought not be made against the applicant.
Having said that, all of the other observations Ms Dew has made with respect to Standard 15.2 still results in the finding that the applicant is not compliant with the Standard 15.2.
The Tribunal therefore concludes that it is open to the Tribunal to impose whatever it considers to be the appropriate “sanction” on the applicant pursuant to Section 36 of the Act.
What then is the appropriate “sanction” on the facts of this case?
THE APPROPRIATE SANCTION
Notwithstanding the fact that the power given by section 36 of the Act is described as a “sanction”, Mr Cribb on behalf of the respondent (quite properly) accepted that the purpose of the power given by section 36 was not to punish the applicant, but to protect the public. As regards such provisions generally, see for example, the decision of the Tribunal in Donald and Australian Securities and Investment Commission [2001] AATA 66 and the various authorities referred to therein at [111] to [115].
The task therefore is to identify the minimum “sanction” that needs to be imposed in order to protect the public interest. Anything greater than that would constitute the punishment of the applicant and would thus be impermissible.
In determining what “sanction” ought be imposed in this matter, three primary matters arise. They are:
(a)The applicant trains persons to operate in the aged care industry. They care after members of our aged community who, to some greater or lesser extent, require assistance from such persons. As Miss Manley said, residents in high care are vulnerable. The safety of the members of our aged community is thus a factor, and an important one.
(b)The extent and nature of the non-compliance is significant. The Tribunal has found numerous instances of non-compliance: it is not an isolated instance of non-compliance. Moreover, in respect to at least some of those standards, the subject matter of this standard is self-evidently of considerable importance (for example standards 15.2, 15.4, 15.5, 18.1 and 20.2).
(c)The applicant has had numerous opportunities to remedy the position, but has failed to do so. It did not do so after its own internal audit showed non-compliance, it did not do so after the audit undertaken by the Training Council of Western Australia but assessed by the respondent had shown non-compliance, and it did not do so leading up to the hearing before this Tribunal .
Having regard to those matters, the Tribunal considers that it is in the public interest for the applicant’s registration to be suspended. It is in the public interest for the applicant not to operate until it gets its house in order. The Tribunal is not satisfied that the public interest would be sufficiently protected by allowing the applicant to continue to operate whilst providing to the applicant yet a further opportunity to put its house in order.
In this regard, the Tribunal acknowledges that there is no evidence that the applicant’s non-compliance with the standards has negatively impacted upon the quality of the training provided by the applicant. That is a matter which means that the public interest does not require the applicant’s registration to be cancelled, i.e., the applicant to be put out of business permanently. It is not, however, a reason not to suspend the applicant’s registration having regard to the matters previously discussed and considered: the fact that no patients of a doctor have been infected notwithstanding that the doctor continually fails to comply with basic health standards, is not a reason to permit such a doctor to continue to practice whilst the doctor’s sanitary procedures remain non-compliant.
RESULT
In general terms, the reviewable decision ought thus be upheld.
Having regard to the fact that the terms of an order pursuant to section 38 of the Act is a matter of public record, the Tribunal considers it preferable for the period of suspension to be expressly included. The Tribunal therefore considers the preferable wording of the “sanction” to be as follows:
“Pursuant to Section 38 of National Vocational Education and Training Regulator Act 2011(Act) the applicant’s registration is suspended with immediate effect.
During the period of suspension the applicant must not:
·enrol students in CHC30102 or CHC30208;
·allow any students to begin CHC30102 or CHC30208;
·advertise for enrolments in CHC30102 or CHC30208; and
·Issue any qualifications to current students who complete CHC30102 or CHC30208 without the written approval of ASQA.”
This suspension shall remain in effect unless and until the applicant, pursuant to Section 41 of the Act, has satisfied the respondent of the applicant’s compliance with standards 15.1, 15.2, 15.3, 15.4, 15.5, 16.1, 16.4, 16.7, 17.4, 18.1, 18.2, 20.2, 23.1 and 25 of the Standards for NVR Registered Training Organisations 2011.”

I certify that the preceding 86 (eighty six) paragraphs are a true copy of the reasons for the decision herein of Mr S Penglis, Senior Member and Mr W Evans, Member.

..(sgd) T Freeman................
Associate
Dated 10 August 2012

Date(s) of hearing 2, 3 and 4 July 2012

Applicant In person

Counsel for the Respondent Mr Cribb

Division	GENERAL ADMINISTRATIVE DIVISION
File Number(s)	2012/0709
Re	SUCCESS FAST-TRACK PTY LTD
APPLICANT
And	AUSTRALIAN SKILLS QUALITY AUTHORITY
RESPONDENT

Tribunal	Mr S Penglis, Senior Member Mr W Evans, Member
Date	10 August 2012
Place	Perth

20.1	The NVR registered training organisation must comply with relevant Commonwealth, state or territory legislation and regulatory requirements relevant to its operations and its scope of registration.
20.2	The NVR registered training organisation must ensure that its staff and clients are fully informed of legislative and regulatory requirements that affect their duties or participation in vocational education and training.

Date(s) of hearing	2, 3 and 4 July 2012
Applicant	In person
Counsel for the Respondent	Mr Cribb