This discussion opens a few cans of worms and I don’t pretend to have all the answers. What I do guarantee is that there remain many questions and concerns. Those who know me know well enough that I am not into ASQA bashing by any stretch however, it is fortunate/unfortunate that ASQA is likely the only regulator where this issue became prevalent and continues to be so. I have not seen or heard of cancellations being undertaken in the same manner or with the same impact by the VRQA or TAC.
For some time it has concerned me that providers didn’t necessarily have all of the information that they were entitled to when making decisions about responding to audit failure, notices to suspend or cancel registration and so forth. It concerns me still that many providers despite all the success of appeals against ASQA, don’t have any idea that they do have options still after they receive that letter. The number of providers who contact us and say thank you because they had no idea that they had options never ceases to amaze me. One client in particular was facing cancellation (only days to go before they closed down their doors) and just a few weeks ago, they contacted to me thank me for not letting them give in. They just didn’t know what they didn’t know.
They received the letter from ASQA with their ‘Intention to Cancel’, another letter to ‘…provide all student information, etc. by xxx date and cease enrolments etc. immediately,’ and truly believed that they had no recourse available whatsoever. The sad part was that this provider is a leader in their field, highly awarded by industry and regarded globally as a leader that saves lives in their area of expertise on a daily basis. This provider, based on the letters they received from ASQA almost forced them to close shop entirely. What saved them? An email from us asking if they needed help.
While ASQA made it very clear that the reason they no longer update the ASQA Decision table on their website due to reasons of natural justice and that the table would only be updated once all appeal mechanisms have been exhausted as well as the fact that this information is now available through functionality on training.gov.au, there is this element of cynicism inside me that cries out for providers at the moment and has been since. I never mentioned it during our submission to the Taskforce, and probably should have. In fact, it isn’t too late so I will copy and paste this discussion into an email and hit send.
You see while I agree that not all providers fit into this category and that there are some providers who absolutely should be cancelled or suspended and where ASQA may have got it right. The reality is though, there are far too many times when they have got it wrong. Equally, as is the right of every provider through provisions in the Administrative Appeals Tribunal, every provider has the right to remedy their situation through presentation of new evidence at the Tribunal. While it is a fact that some of ASQA’s most senior lawyers hate this concept with a vengeance, providers are actually entitled to access it. Previously, people who genuinely had the ability to help and inform providers of their rights could access this information easily, as I did for my recent client. This information was on the ASQA decision table. It was easily searchable and when the provider won their appeal, their name was rightly removed from the table. They have no longer been ‘named and shamed’ as ASQA would have us believe.
I don’t believe that the reason ASQA gave for changing the way in which they present this information is representative of the facts. I think that ASQA have opted for this change because they have intentionally tried to remove providers’ access to their natural rights at the Administrative Appeals Tribunal by limiting the amount of people who might be able to assist the provider to present their case, as is their right. They’ve done this because there were too many providers who were being provided with assistance from lawyers and expert Consultants such as myself; we gave these providers an opportunity. An opportunity, as is their right, to survive and thrive in an environment that is as inconsistent and cruel as it is right. ASQA have removed this right by stating that this information is readily available on training.gov.au but the reality is that it is not easily identifiable and providers’ registration remains ‘current’ on training.gov.au until such time as it has been cancelled and the appeal period has expired. What this now means is that less providers have the opportunity to access their rights and appeal ASQA’s decisions and use the Administrative Appeals Tribunal which in turn obviously means less litigation for ASQA and a significant cost saving to the Department.
It also has a downside though and this is where another question of ethical conduct comes in. While there are a few VET Support Service providers who accessed this information with a genuine intent to help providers in their time of need, there were also some VET Support Service providers whose intention was nothing but genuine and whose main intention was to exploit the situation and milk the provider, place their entire registration at risk and run away with the provider effectively holding the baby. While this scenario happens significantly less at this higher level of the legal minefield, it does happen, more so with resource developers than anything else.
Only the most experienced Consultants would ever venture into this specialist field of taking on ASQA’s defense team because you absolutely have to be the best. You have to be better than ASQA’s defense lawyers, better than ASQA’s best auditors. Where the unethical VET Support Service providers usually parade themselves is at the time of the original finding of non-compliance when the provider has just received their audit report and as they should from a business perspective, find the most effective and cost effective VET Support Service providers on the market to help them get over the line. We’ve also experienced many cases like this, including those who have recently engaged the services of a range of VET Support Service providers to assist them with the application for initial registration as an RTO, extension to scope of registration, re-registration & even CRICOS. While this also happens at VRQA and TAC (with the exception of CRICOS of course), the problem is worse in ASQA’s jurisdiction because of the significant value of the loss of investment when it all goes horribly wrong.
Providers, while dealing with ASQA have recently brought a number of the ‘big name’ Consulting companies and Resource Developers to our attention through unpleasant experiences. In one recent case, a provider paid out:
$25K to a Consultant for initial registration of 3 qualifications (critically non compliant)
Provided 2 units only of assessment materials for each qualification for an additional $15K from another ‘big name’ resource developer (critically non-compliant)
An AVETMISS system for another $10K – non compliant because the provider didn’t know how to use it. They were sold a system and thought that they couldn’t do anything until they received their RTOID – the response they gave to the auditor when the auditor asked to see the system in use
The ASQA application fees
The accountant fees – the accountant didn’t have the capacity to sign the letter of confirmation which also required another accountant to take over the financial viability documentation.
The book keeper fees – book keeping which had to be sent back 3 times because the book keeper didn’t provide the correct documentation required for the financial viability risk assessment pack
Not forgetting that with ASQA registration you are required to demonstrate staffing, facilities and resources (these courses were health related courses with onerous resource requirements including hospital beds, hoists, etc.) and they also had to demonstrate that the premises from which they wished to operate met the Building Code classification of 9B, meaning that they had to completely refurbish their remises doorways, etc.
The provider contacts us and asks for help. They send us the audit report so we can develop a plan of action. We explain what’s involved in fixing the issue, the time and the costs that will be involved to get them over the line. The client who has already invested in this case for example over $70K in their initial application for RTO registration is desperate not to lose the remainder of their investment but they just can’t afford too much more. They pray that a magic wand will fix the problem with a budget of no more than $10K. When they realize this is just not possible, they go in search for those who are waiting to exploit them, the unethical ones. The ones that will not have professional indemnity cover, the ones who, if the client looked at the person’s profile on LinkedIn would see that they’ve never even worked in an RTO let alone got a TAE40110 – Certificate IV in Training and Assessment. The client never asks for evidence of their ability to fix their problems, they just trust, they have no other choice.
They promise to meet the budget, submit the rectification work and quickly disappear. The audit report comes back, this time with a letter notifying that their application has been denied or, if they are currently registered, that ASQA has an intention to cancel. Or, in this case, they went back to the original providers of the documents and said ‘please explain’. The original providers said no problem, we can fix this for you but my question is this…if they are so capable of fixing this, why did they put the provider in this situation in the first place? Do they really have the skills and knowledge to do what they are promising?
I guess then this post is not so much about providing solutions but asking the question of where has ethical conduct disappeared to in the VET sector? Is it just the fault of the rogue VET Support Service Provider or are other forces just as guilty for creating these failures and this unethical conduct?
Why do ASQA not provide adequate information that really informs business owners / providers about their legal rights?
In the absence of providing that advice, why do they remove the only method available to providers in getting the help that they need to access their legal rights and remedy their situation?
Why is it that VET Support Service Providers are so quick to exploit others?
Why is it that VET Support Service Providers think it’s ok to say you’re an expert and provide the service knowing very well that you can’t?
Why is it that ASQA is so focused on ensuring consumer protection for students/clients but nobody is the least bit interested in hearing about the consumer protection rights of providers and/or potential providers?
While I don’t have a solution to not being able to educate providers about their rights other than through fora such as these, there is a solution on its way regarding the ethical conduct of VET Support Service Providers launching on 1 July 2014. You may have heard about ‘The Diamond Standard’ in the recent RTO Doctor Newsletter. The Diamond Standard is one way that together, we can make a difference to enhancing the ethical conduct of everyone involved in the VET sector as well as empowering them to understand their rights and make authorities accountable for their decisions.
What would it mean to you to have a higher level of ethics or a diamond standard in Vocational Education and Training (VET) in Australia? A standard of quality that, as an RTO, you know you could depend on as meeting the highest standards? That anyone whose products and services you use or engage meet a standard like none other before in Australia and for you as an RTO, your access to members who meet this standard would be absolutely free?
A diamond is measured on clarity giving its quality rating. The clearer the diamond, the lack of carbon spots etc. the better the diamond. The consumers within the VET sector, like consumers of the diamond industry, go into a jeweller and hand over the credit card. Finally diamonds are really hard. They use it to cut other stones in the same way that VET Practitioners guide and sculpture their learners and Quality Consultants add value to RTO’s. Quality VET Practitioners and Consultants are like diamonds though which need to be mined; there’s blood, sweat and tears, followed by the polishing of it. Like the polishing process, business practice takes a lot of experience and only respected and experience cutters get to cut a diamond. Each diamond is different and the same cut won’t work for each. An experienced cutter will be able to see how to bring out the best in each stone exactly like a consultant does for a VET organisation or a VET Practitioner does for their students.
Are you ready to excel in your field and shine like a diamond? Would you expect your staff or contractors to meet the diamond standard?
Want to know more about the diamond standard for VET? Complete your details by following this link and within 3 – 4 weeks, you’ll be kept up to date with the diamond standard and how it will transform your RTO. I’m also interested in your feedback on this issue. What do you think? How have you been impacted, if at all by VET Support Services?