An Angel sent from Heaven or a Devil in Disguise?

Each of the scenarios described in this article is from a real case. All details have been changed so as to ensure the privacy of all concerned.

The importance of due diligence 

What is ‘due diligence’?  While many definitions exist, essentially, due diligence is a process that a company (or person) goes through to ensure that the business, investment or transaction that they are entering into is safe, and will not cause harm or unreasonable risk or loss.  In Australia’s Vocational Education and Training (“VET”) sector, the due diligence process is not undertaken as frequently as it probably should be, therefore contributing to some very considerable governance and operational issues down the track.  A company, or person, cannot rely on the regulator (in this case, the Australian Skills Quality Authority (“ASQA”) to ensure that the business is fit for purpose.  A prospective buyer (or employer) cannot even rely on the fact that the business may have recently had a successful audit outcome by the relevant regulator/s.

For a long time, due diligence was considered relevant only to company financials, assets and liabilities.  However, our experience suggests that there is an increasing need for providers to go that extra step and confirm that a regulated entity such as a Registered Training Organisation (“RTO”) is compliant with all of its registration obligations, and ensure that there are no outstanding conditions of registration or evidence of sanctions, that the business is able to be sold, carry on a business in Australia and other operational issues such as resourcing and staffing.  It is also a process undertaken to confirm the accuracy of a vendor’s claims and to conduct one’s own valuation of any investment.  

Performing a due diligence process (also known as an investigation, audit, or in ASQA terms, ‘an assessment’) is considered a key component of a system designed to control and operate a company effectively.  The Governance Institute of Australia provides the following descriptions of governance:

Governance encompasses the system by which an organisation is controlled and operates, and the mechanisms by which it, and its people, are held to account. Ethics, risk management, compliance and administration are all elements of governance.

Corporate governance involves a set of relationships between a company’s management, its board, its shareholders and other stakeholders. Corporate governance also provides the structure through which the objectives of the company are set, and the means of attaining those objectives and monitoring performance are determined.
 

The following short video from the Governance Institute of Australia clearly describes what governance is and why a company should have it. They also have a range of resources available to support businesses with good governance systems.

For many RTOs, as a result of ASQA’s new focus on ‘Self-Assurance’, they are considering for the very first time what a governance process is and what it might look like for them and their company. By having a solid governance foundation in your business, you can have a level of certainty that any decisions that you make, are based on the best interests of the company and that you have effectively (and lawfully) discharged your responsibilities. 

It is our experience that RTOs are increasingly embracing a structure where an advisory board or governance board that a CEO reports to and that over and above its standard members, the board also includes an additional three (3) key people who support the governance and self-assurance process.  These three (3) additional people are the RTO’s legal representative, the RTO’s Consultant and the RTO’s accountant.  By having such members included in this Board, all decisions are grounded in the best interests of the business financially, legally and in accordance with the RTO’s registration obligations.
 

Without any doubt, the role of a Compliance Manager in an RTO is perceived by RTO owners and Chief Executive Officers (“CEO”) as being a core part of the governance team. Often, a company will engage a Compliance Manager to ensure that the compliance requirements of the business are being met at all times.  It is our experience that many CEOs do not have the time, skill, experience or ability to focus on compliance all day every day and so invest in a person who claims to have that knowledge, skill and experience that the CEO may be missing or can at least rely upon as demonstration of their ability to perform the obligations of the role.   
 

When providers advertise for Compliance Managers, it is their expectation that the person presenting and applying for such a role has the qualifications and experience necessary to perform that role.  But what we’re seeing more and more of is people applying for roles like this, on paper indicating that they have the knowledge, skills and experience to perform the role however in practice, they couldn’t be any less experienced.  
 

In some cases, the probationary period is a blessing if a provider conducts a performance review of the employee’s performance while in their probationary period.  In many cases though, what we see is that rarely is a probationary review completed, the person effectively continues with their employment until an audit identifies the critical non-compliance that has often filtered throughout the RTO.  I can’t even begin to count the number of times this has happened to our clients who have ended up in the AAT or facing significant sanctions as a result of this one key area of risk.  
 

Each of the scenarios presented below demonstrates real clients of RTO Doctor who have experienced:

• What it is like to not conduct a suitable due diligence process prior to investing in a company in any capacity; and
• The outcome of no due diligence and likely performance reviews being performed.

As will be seen through the scenarios that follow, the cost of not performing a due diligence process and/or performance review/appraisal was so significant that they almost lost everything.  In some cases, they lost significantly more than they had already invested and in others, the reliance on people whose qualifications, skills and experience were never questioned led to costs that could never be recovered in the tens of thousands of dollars, in one case, several hundred thousand dollars later.  While we do not provide advice that we are not lawfully permitted to provide, we always strongly recommend that as part of good governance arrangements, an RTO has suitable and appropriate insurances in place.  We often recommend that RTOs investigate insurance options such as Management Liability Insurance (often referred to as Director’s Insurance), albeit, as we understand it, this type of insurance is categorised.  The following brief video is not to promote any particular insurance company but rather it has been chosen because it explains the concept in less than 90 seconds.

By seeking out a qualified insurance broker (an insurance broker must hold an Australian Financial Services Licence (“AFSL”), you would be able to ascertain whether this type of insurance is suitable for you.  It is important that you only use a qualified and licenced broker.  We see too frequently that there are Consultants in the VET sector that are not qualified to provide advice in relation to the financial services industry, do not hold the relevant licences to do so and yet they perform these services and give this advice frequently.  The ASIC website makes it very clear who is required to hold an AFSL.

The following cases are real and have taken place in the last 18 months to 2 years.  All names and locations have been changed.  It is crucial that you consider the following cases closely and perhaps, as part of your next Board meeting, you could discuss the concept of due diligence, governance and self-assurance.  While it is acknowledged that everyone has to start somewhere, there is no regulation of Consultants in Australia’s VET sector and so it has never been more important to conduct your due diligence before acquiring or operating an RTO and ensuring that prospective employees who would have a key managerial role in the RTO do have the skills, knowledge and experience that they claim to.  They will either turn out to be an angel sent from heaven or a devil in disguise.  At the end of each scenario that follows, I encourage you to ask yourself, an angel sent from heaven or a devil in disguise?

If you’re not sure about how to establish a Board or undertake a due diligence process, contact a Consultant who specialises in this area to perform an audit or investigation on your behalf.  RTO Doctor specialises in due diligence audits and contributes to several boards (governance, advisory and academic).  We can assist you in establishing a governance structure that will protect your RTO.

Case 1: RTO Re-Registration - The Family Emergency

Due to a family emergency, the CEO of this particular RTO based in Melbourne, Victoria delegated the responsibility for preparing all evidence required for a re-registration audit to their Compliance Manager while they flew to Europe to visit their gravely ill family member.  While in Europe, the CEO checked in regularly with the Compliance Manager to confirm everything was going smoothly and was reassured on each occasion that all was going well.  Two weeks before the audit, the Compliance Manager called in sick with COVID and was too sick to work, eventually becoming uncontactable for several days.  They returned to work on the day of the audit which was conducted by ASQA via TEAMS.  They had already submitted all evidence requested by the auditor prior to becoming sick with COVID on behalf of the CEO.

This provider needed this audit to go well for a range of reasons and if they had any inkling that the Compliance Manager did not have the skills, knowledge and experience that they did, they would have made alternative arrangements.  On paper, this Compliance Manager looked great.  She had a Bachelor of Business, a Diploma of Quality Auditing, a Certificate IV in Training and Assessment and “...had taken several CRICOS RTOs successfully through regulatory audits”.  All her previous roles over the past 5 years were consistent with being a Training Manager, Compliance Manager and Operations Manager. 

She was also not cheap; the CEO learned a long time ago that if you pay peanuts, you get monkeys.  The only problem with that analogy these days though is that all the monkeys have started to increase their pricing to be consistent with those who are suitably qualified!  This Compliance Manager put in a lot of hours and she talked almost incessantly about how various processes were not compliant.  Being a busy RTO in suburban Melbourne, the CEO assumed that the Compliance Manager was rectifying these things that she frequently identified, knowing that she had been engaged for the purpose of assisting them to ensure that they were compliant prior to their re-registration process commencing.

On the day of the audit, everything was fine until the call on TEAMS began and then the Compliance Manager suddenly became extremely anxious.  On several occasions, when the ASQA auditor asked her specific questions about the RTO’s compliance, she froze, she was unable to respond.  When she was asked by the CEO for certain evidence to demonstrate that the RTO was compliant, it was not available and could not be located.  By the time the lunch break arrived, the Compliance Manager had gone home unwell citing a panic attack and never returned to the RTO; they also never contacted them again.  For all intents and purposes, they abandoned their employment in the middle of an audit.  Needless to say, the remainder of that audit did not go well.  However, once the Notice of Intention to Cancel Registration arrived, the CEO was able to engage with RTO Doctor to rectify the situation under very difficult circumstances.

There was a significant amount of work that needed to be done in order to bring this provider up to the required standard for re-registration; not through any fault of the RTO’s owners but rather because they relied on the engagement of someone who claimed to be suitably qualified and experienced to manage the RTO's compliance for them.  Before anyone starts jumping down my throat and yelling ‘Yes, but the RTO owners have ultimate responsibility and that can’t be delegated’, let me assure you that this issue is far more prevalent than you can possibly imagine.  A large number of RTOs intentionally engage Compliance Managers because they know they don’t necessarily have the time, or the skillset to perform the role.  Just like a company might engage an accountant to whom they delegate bookkeeping and accounting, or a lawyer to whom they delegate their legal requirements, a company also engages Compliance Managers to manage the RTO's compliance obligations.

The compliance cost over the period of time that this Compliance Manager was employed was significant and hurt the business in many ways, not just financially.  The provider did not have any Management Liability insurance, they had let it lapse a few months prior because they had to reduce their expenditure due to the COVID pandemic. As a result of their experience, they have sought advice from their insurance broker having learnt the hard way that the insurance could have assisted them greatly during that process.

Case 2: An RTO cancellation - Third-Party Providers & COVID: The trend of angels sent from heaven

This particular case went all the way to a final hearing in the Administrative Appeals Tribunal (“AAT”).  This particular provider received a cancellation notice because ASQA determined that the RTO had abrogated its responsibility to properly oversee the delivery and assessment of VET that it was registered to provide.  Essentially, this particular RTO had a large number of third-party agreements with other providers (some RTOs, some not) and all of these party providers were effectively put on Moodle and left to their own devices.

There were many courses that were far from compliant and many certifications had been issued that should not have been (and were never cancelled by the provider or the regulator).  This method of delivery also allowed many providers to be able to deliver training that would ordinarily never make it through an audit, some courses involving skills and knowledge in areas of risk in health and community services for example.  Once this provider received its cancellation notice, suddenly out of work ‘Compliance Managers’ from some of these third-party providers began setting themselves up as Consultants around the country.  This is similar to a trend that is identified when an RTO is closed down or, for example, when the COVID pandemic hit and large numbers of ‘Compliance Managers’ and ‘Training Managers’ were suddenly without work and, at a time when a large number of RTOs around the country were not hiring, needed to find an income and fast.  

It was during this time, that one of these ‘Compliance Managers’ established themselves as a Consultant in Sydney, NSW focussing on initial RTO registrations.  For some of these Consultants (certainly more than I can count on one hand), this is how RTO Doctor became aware of this scenario.  The clients of these newly established Consulting companies were soon arriving in unusual numbers as a result of having their RTO’s initial registration application rejected.  In some cases, the clients had already paid out up to $40 and $50K and were left with nothing to show for it other than a massive audit report of critical non-compliance.  When they tried contacting the Consultants, they either didn’t answer or instead, said “Sorry, we can’t help”.  Where is this Consultant now?  Still in NSW as far as we are aware, however, selling their services as a Consultant doing ‘discounted initial RTO registrations’.

NOTE:

It should also be noted that while not the case with this provider, just because someone is an auditor for a regulator, it does not mean that they have the skills and knowledge to develop training and assessment materials, policies, procedures, apply for funding agreements on your behalf or even run your RTO.  In fact, if there is one myth that needs to be debunked, this is probably one of them (and perhaps the object of a future article if there’s a desire for it).  Instead, my only comment regarding this myth for this article is to say that this scenario also produces a significant number of providers who end up being sanctioned.  This is not to say that all Consultants who have been or worked for a regulator produce these results, that is not what I am saying at all.  Instead, what I would suggest at this point is that like any other Consultant that you engage, you must do your due diligence.

Case 3: RTO Due Diligence Audit

Recently, a prospective buyer came to RTO Doctor wanting to undertake a due diligence audit on an RTO in NSW that they were interested in acquiring.  RTO Doctor does provide this service somewhat regularly and the results are usually always the same…critical non-compliance with the Standards for Registered Traning Organisations (RTOs) 2015 (“the Standards”) and the RTO's registration obligations under the National Vocational Education and Training Regulator Act 2011 at a bare minimum.  

During our audit, we uncovered evidence of a raft of seriously concerning issues including, but not limited to, not having any learning resources, not having sufficient qualified trainers and assessors, critically non-compliant assessments, issuing qualifications not on scope, not lodging data for at least 5 years, enrolling international students on a student visa without being CRICOS registered and issuing certification without conducting sufficient or adequate assessment.  There were a range of other issues discovered including (but not limited to) not having any resources to conduct training and assessment, potential breaches of Work Health and Safety legislation, consumer law and the Corporations Act.  Needless to say, the sale never proceeded, the prospective buyer was grateful for having a gut feeling that something wasn’t right and saving himself several hundred thousand dollars.  What happened to the RTO?  No idea.  Where is the Compliance Manager now?  Working as a VET Consultant in NSW.

Case 4: An initial RTO registration 

This particular provider had been a third-party provider for an ASQA RTO for several years before applying for initial RTO registration.  A small, niche provider specialising in human services, the owners of this RTO invested a large amount of time and money in a Consultant who they engaged to apply for initial RTO registration.  When the RTO failed its initial registration audit, the Consultant distanced themselves and the provider was left with the option of getting more qualified assistance or withdrawing their application altogether and losing the tens of thousands of dollars that had already been invested.  At RTO Doctor, it is our practice to provide at least one rectification project per year pro-bono upon application and consideration.  This particular client was a worthy candidate and RTO Doctor and a couple of other service providers referred by RTO Doctor (also pro bono) proceeded to support the RTO in getting its initial registration on appeal.  The value of these services although never billed came close to $75K such was the harm that this Consultant had caused. 

Unfortunately, the damage caused by the Consultant was significant and was apparent in every single aspect of the provider’s systems.  From clustering units of competency in a manner that did not even align to the units of competency but rather to chapters in a book, through to inconsistent course information (e.g. cluster names, unit codes and unit titles, course duration, course delivery and assessment methods and even inconsistent course fees), Training and Assessment Strategies not meeting the packaging rules of the relevant training packages, assessment not meeting the assessment requirements and trainers and assessors who didn’t comply with the trainer and assessor requirements under the Standards.  There was no AVETMISS system, no Learning Management System (“LMS”) even though the courses were going to be delivered online and policies and procedures, including the Student Handbook, had the branding, names and provider numbers of other registered providers.

It took several months for RTO Doctor to turn this situation around.  The provider was eventually registered however and the Consultant just disappeared, never to contact this provider again.  They do however continue to operate as a Consultant establishing RTOs for clients and setting up LMS systems with ‘suitable training and assessment materials’ for registration as an RTO with ASQA.  Where is this Consultant now?  Selling their services around the country as a Consultant doing ‘discounted initial RTO registrations and amendments to scope and CRICOS registrations’.

Case 5: Another initial RTO registration 

This provider was a victim not once but twice to Consultants who promised to get her registered but failed to do so costing her the equivalent of a deposit for a 3 bedroom house in Queensland!  The first time this provider fell victim to an inexperienced Consultant, they failed their initial registration audit and sought assistance with rectification from another Consultant who had been recommended to them via LinkedIn.  Having spent so much money on the registration process and not really achieving financial viability yet, when their post-registration audit came around, they sought the help of another Consultant who promoted their previous work as a regulator and their many higher degree-level qualifications and VET qualifications.  The list of qualifications was almost as long as Santa’s on Christmas eve!  In fairness, this particular Consultant has been around for a very long time now and is well known throughout the sector…for all the wrong reasons!  However, unless you were already operating in the sector, you wouldn’t know about them at all.

This particular RTO also delivers training in a licenced industry and therefore, there are additional regulators and compliance frameworks that the RTO must comply with.  Apart from the usual problem that we see in these scenarios where providers have this belief that they only need to meet the requirements of the additional regulatory requirements and not ASQA’s when it comes to training and assessment, there were significant other compliance issues related to pre-enrolment information, fees and refunds, unduly short courses, enrolment, including potentially enrolling international students with a student visa without being CRICOS registered, certification, lodgement of data, trainer and assess compliance and a significant lack of any practical assessment that met the requirements of the training package or the assessment conditions of the units of competency.  

What is so surprising about this particular provider is that ASQA has previously issued sanctions not seen in many other industries other than this one.  Sanctions include for example the cancellation of certification and issuing fines for breaching the National Vocational Education and Training Regulator Act 2011.  Again, while it is one thing to say that the ultimate responsibility rests with the CEO, it should not be ignored that CEOs will often recruit employees or Consultants to assist them or undertake very specific projects such as those above.  What is demonstrated through these scenarios is sadly what happens when insufficient due diligence on the business or the proposed service provider is conducted.

Prevention is better than cure

In many ways, buying a business is no different to buying a house.  You probably wouldn’t consider buying a house without conducting a building and pest inspection, likewise, you don’t want to be buying a business without conducting a due diligence audit.  Engaging a Consultant or Compliance Manager for the most important role of your RTO is likely no different to marriage; you wouldn’t marry someone you barely know or, at the very least, without having conducted a bit of background research on them.  There is a range of strategies that you can use to confirm whether someone really does have the qualifications, experience knowledge and skills that they say they do on paper including:

• Conducting reference checks;
• Verifying the authenticity of certification provided;
• engaging a high-quality Consultant to assist with the recruitment process;
• Undertaking regular performance appraisals;
• Conducting regular audits as part of your self-assurance and governance processes;
• Speaking with people who they claim to have worked for previously; and
• Networking on sites like LinkedIn. 

There are many ways that the LinkedIn community can assist you to find the right help for your needs at any particular time; the VET sector is after all relatively small in the scheme of things.  As a free resource, it is also probably one of the easiest to tap into!  If you’re still not convinced, ask one of the other service providers that you work with who might also be able to give you an idea as to who you can trust.  Most high-quality service providers also know whether a Consultant or Compliance Manager is truly competent and experienced and are usually only happy to make a referral.

In closing, there are many, many more scenarios just like those described above.  This is merely a handful of cases that have been presented to us at RTO Doctor in the last 18 months-2 years alone. For a number of years now, RTO Doctor has been an advocate for tighter controls over Consultants and other VET service providers; currently, this is an unregulated industry and while providers don’t insist on change, change will not occur.  It doesn’t need to be a case of once bitten twice shy and people do not need to lose their hard-earned money and often lifetime investment.  It only requires the industry to say #enoughisenough and demand change.

What’s your opinion on this issue?

RTO Doctor
The first choice for RTO sanction management and compliance assistance.

RTO Doctor assists VET & international education providers around the country to ensure their compliance with their regulatory requirements; a critical issue for RTOs around the nation currently experiencing a very hostile and punitive regulatory environment. Raelene Bartlett, Founding Director of RTO Doctor published the book CRICOS CPR: Top 5 Tips to Rescue Your RTO as a way of supporting providers in navigating this minefield. She has also published the number 1 international bestseller in 3 categories "National Vocational Education and Training Regulator Act 2011 (Cth): An Investigation Into Merits Review" and 'The Human Toll: Is The Nature of Regulation Under The Australia Skills Quality Authority Destructive?'

For all those who purchase a copy of any of the books, there are special codes that provide a range of discounts and bonus offers making this even more affordable. There's really no excuse not to get yourself a copy of these MUST read books available on Amazon or a signed hard copy directly from me. For your signed copy, to book a risk management review or obtain advice in relation to our specialist AAT support services, get in touch today. 

While we're not quite at the stage of Dangerous Minds and Freedom Writers, we do have some of these issues present in our classrooms (both secondary and adult) today. Until policymakers understand that for there to be better outcomes from our education system, these cases will continue. Policy-makers need to understand that a more holistic approach to classroom management is needed and that the teacher can only be responsible to a point before their own safety becomes compromised.

I wrote about my experiences in prison education intentionally. While still not perfect, those environments are well resourced and the approach to supporting each person is holistic in nature. Not only are their educational needs met but they receive assistance and support with other areas of their lives too. This doesn't mean that such approaches need to be institutionalised either. The same can be achieved in an ordinary setting too provided the support, resources, funding and access are available.

I recall being on yard duty one day in one of the high schools I taught in. I was out on the oval trying to get the 'problem kids' away from the fences where people would visit at recess and lunch with cigarettes, drugs and inevitably, luring physical fights and other gang activities. On more than one occasion I recall being concerned for my own safety because there were no other teachers in the vicinity and I was vulnerable. What saved me? Probably the good rapport I had built with the students and 'Pentecostal Pedagogy'. When you can't rely on the system to protect you and the system is so bent it can no longer see itself in the mirror, what more can you do?

Post Published Update:

If you think as an RTO this issue is not relevant to you, you might be surprised to learn that you are. Many RTOs and trainers and assessors think that to comply, all they need to do is hold a valid and current Working With Children card or similar at a bare minimum - so much more than this is required though. If you're in Victoria, the VRQA has just released today (5 May 2022) an email to subscribers regarding the commencement of the new Child Safe Standards coming into effect on 1 July 2022. The following extract on the VRQA website is particularly relevant:

"From 1 July 2022, new VRQA Guidelines for VET Providers come into effect. They add an additional key area to the 5 in the current guidelines:

RTOs that deliver, or intend to deliver, services to persons under 18 years of age are required to comply with the Child Safe Standards.To download the new guidelines, see: New VRQA Guidelines for VET Providers (docx - 2.24mb)"

Not yet sure what this means for you? Watch the short video from the Commission for Children and Young People below.

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RTO Doctor