Preparing for an ASQA Performance Assessment
Preparing for an ASQA Performance Assessment
How can a Registered Training Organisation (RTO) reduce the chance of an Australian Skills Quality Authority (ASQA) adverse decision? This article provides an overview of what RTOs need to know and how to plan and reduce their risk prior to an ASQA performance assessment (audit). The article will be a refresher for the seasoned RTO and extremely helpful for RTOs new to the Australian Vocational Education and Training (VET) sector. I will first provide a brief background to the regulatory reform, touch on the legislation and finally outline risk-mitigation tips for the RTO. There have been countless articles written and research conducted on VET compliance, so I will keep this article short and will not discuss the ESOS Act 2000 or for that matter the associated National Code 2018.
The Regulator and What RTOs Need to Know
The ASQA is the national regulator for the VET sector. When the ASQA was appointed as the national regulator, arguably its regulatory approach was somewhat different to its current approach. It was more rigorous and focused on all compliance areas. Therefore, a minor non-compliance indicated that the RTO was not conforming to the Standards for Registered Training Organisations (RTOs) 2015 (the Standards). In contrast, the ASQA’s current regulatory reforms are a move towards a form of RTO self-assurance. The ASQA’s approach focuses on outcomes, continuous improvement and overall compliance, and so the outcome should evidence that the RTO is delivering quality training and assessment.
Although the regulatory approach is somewhat different to the former, this does not permit the RTO to absolve its obligations under the National Vocational Education and Training Regulator Act 2011 (Cth) (NVR Act), the Standards and associated legislative instruments.
At a performance assessment, the ASQA will (among other things) require the RTO to explain how it meets compliance—particularly, how the RTO monitors its training and assessment strategies and practices for ongoing compliance and evaluates outcomes for continuous improvement. Put simply, the regulator wants to know if the RTO is meeting its obligations under the NVR Act and the Standards for RTOs. I will not go into the associated Standards and clauses as obviously that would make this document overly verbose. However, it is imperative that the RTO has a good understanding of the Standards.
Additionally, the RTO should know the phases of the student journey, which include marketing and recruitment, enrolment, support and progression, training and assessment, completion and regulatory compliance and governance. All these phases clearly map to the Standards and associated legislative instruments. Importantly, the RTO must consider its target groups, including industry, employers, students and the VET sector as a whole. The ASQA has provided a helpful Self-Assessment tool on its website for download.
Risk Mitigation for the RTO
In this section, subsections 1–7 provide an overview of seven key areas that RTOs need to focus on in planning to reduce their risk prior to an ASQA performance assessment. Subsections 8 and 9 outline the process if the RTO receives an adverse decision and is therefore making application to the Administrative Appeals Tribunal (AAT) for merits review.
1. Third-party agreements
Many RTOs decide to utilise the services of a third party to complete training and assessment and recruitment on their behalf. Obviously, the principal provider and their third-party provider need to comply with the NVR Act and the Standards for RTOs.
A loosely drafted agreement and/or little to no monitoring by the RTO of the third party may result in several non-compliance’s being identified during the performance assessment. It is therefore incumbent upon the RTO to draft a third-party agreement that is comprehensive and covers the obligations of both parties.
Further, if the RTO has agreed to be bound by the terms of a VET funding contract, the RTO will have additional contractual obligations and compliance requirements to meet. I recommend that the RTO complete internal audits of all its agreements.
2. Trainers and assessors
RTOs must review their trainers and assessors to ensure they meet the appropriate training/assessing criteria. Example: During one audit, I noted that one of the trainer’s qualifications appeared false. Unfortunately, the manager of the RTO had not completed reference checks. I investigated further and found that the trainer had never completed the qualification for which they had been training and assessing students for the previous year.
3. Feedback surveys
Student feedback surveys should not just be filed away. They should be reviewed and analysed for continuous improvement actions. Additionally, if any areas of concern are found, (for example, the student experience has not met the requirements of the Standards) then appropriate action must be taken and documented.
4. Training and assessment strategy
As part of its quality-management system, the RTO should write a training and assessment policy and procedure document for its training and assessment strategies (TASs). The policy will outline the specific way to carry out the activity of drafting a TAS. The document would cover the following macro areas: purpose, industry consultation, development process/procedure, validation, approval, deployment, monitoring, systematic review and continuous improvement. This will be a controlled document that is assigned a version number and detailed in the RTO’s version-control register.
The TAS is much like a business plan, yet the TAS is the blueprint for the training and assessment of the qualification or unit of competency or accredited course aligned with learner needs, industry needs, the training package and the environment in which the RTO plans to operate.
5. Training and assessment
Self-evidently, training resources must be contextualised for the target group and meet training package requirements. I have audited many RTOs over the years and found a plethora of issues with assessment instruments. I have even found non-compliance’s in some commercial resources, the issue being that the resources were generic. For example, in review of the assessment instrument for one unit of competency, I noted that a performance criterion had not been considered.
Further, in a site audit of a cookery school, I noted that the equipment required for certain assessments was not available, the equipment was not on the equipment register and nowhere to be found. Further, I noted that the RTOs lease option had expired and the RTO was therefore on a month to month tenancy. My comment to the CEO was, ‘This is a major risk, what happens if the landlord does not allow the tenancy to continue?’ The RTO listened to my advice and rectified the issues.
In another RTO, its training manager had removed sections of assessments (which reflected on elements) from several units. His reason was: ‘I want students to get through the course quicker’. He failed to understand his obligations under the NVR Act and the Standards for RTOs. This is why I say that RTOs must complete ad hoc mini-audits to ensure they are compliant and if not, then draft a corrective action and rectify ASAP.
6. Internal audits
The Standards do not expressly specify internal auditing as a requirement. However, there are not many other ways that an RTO can effectively measure the extent to which outcomes are achieved and ensure they are meeting the conditions of registration. Clause 2.2 of the Standards requires the RTO to systematically monitor its training and assessment strategies and evaluate the outcomes to continually improve its training and assessment strategies and practices.
As mentioned earlier, I recommend that the RTO complete ad hoc mini-audits to ensure compliance with the NVR Act and the Standards and associated legislative instruments. In audits, I generally look for evidence of intent to action, put simply, what the RTO states that it does in its documented systems and processes is what it actually does in reality.
Additionally, the RTO should also review its Fit and Proper Person declaration(s), third party agreements and complete a facility audit.
7. Professional development for staff
RTOs should develop and facilitate a professional development workshop for all team members that will include:
- a review of the Standards;
- obligations under the NVR Act;
- the complaints process;
- the ASQA performance assessment;
- the ASQA guidelines, the ESOS Act and National Code 2018 (if applicable);
- expectations in relation to training and assessment;
- contextualisation of training resources;
- development of assessment tools;
- the validation process;
- ensuring student experience meets the Standards;
- third-party agreements; and
- the RTO strategy plan for the following year (this list is not exhaustive).
The workshop should be scheduled, and once completed noted in team members’ professional development files.
8. The ASQA: Adverse decision against the RTO—what’s next?
If the ASQA has completed a performance assessment resulting in an adverse decision against the RTO, the ASQA will provide the RTO with a non-compliance notification letter. The letter will give the RTO an opportunity to respond to the non-compliance's within a short timeframe or request an Agreement to Rectify over a longer time period. Depending on the severity of the non-compliance(s) there are other actions the ASQA may take.
What should the RTO do?
The RTO should immediately submit an application to the ASQA for review of the decision (see NVR Act, s 199, or if a CRICOS provider, see ESOS Act, s 169AB) (a review of the decision may not be available in all circumstances). This should not stall the RTO’s rectification process. As the RTO completes the rectifications, it should provide further evidence of compliance to the ASQA while continuing to prepare its AAT application.
Importantly, where a reviewable decision is made by a delegate under the NVR Act, the RTO needs to apply to the ASQA for review of the decision before they are able to seek a merits review in the AAT.
9. Retain support professionals
The RTO should immediately retain an experienced RTO lawyer to assist with the AAT application process, including a stay application and associated matters. The RTO should also retain an experienced RTO consultant to assist with immediate rectification tasks. I have seen some RTOs leave it to the last moment to retain these services—for obvious reasons, this is fraught.
This article has provided several tips on how to reduce the chances of receiving an adverse decision stemming from an ASQA performance assessment. It also touches briefly on the initial steps to take if an adverse decision is reached.
My next article is entitled ‘ASQA v RTO – Preparing for Review at the Administrative Appeals Tribunal’. The article will provide an overview of important facts that RTOs need to know if they have received an adverse decision and are applying to the AAT for a merits review and stay.
Disclaimer: The material contained in this article is general in nature and is based on the law as of the date of publication. It does not purport to, nor is intended to constitute in any way, in relation to your particular circumstances legal advice. Markus Earl Legal make no representations or warranties as to the accuracy of any of the information contained herein. Legal advice should be sought before relying on the content of this article.
By: Raymond M Earl
DipQA, DipVET, DipTDD, LL.B (Hons), GDipLP, MEI, M.Ed
Principal, Markus Earl Legal
RTO Lawyers www.markusearllegal.com.au
M: 0432 661 986
RTO Consultants: www.skyneteducation.com.au
M: 0409 855 986
My Experience in VET (in short)
I have worked in the VET sector (part-time and full-time) for over 20 years. My roles have included CEO of two RTOs, RTO consultant/auditor and senior manager at both public and private providers. I am also a qualified lawyer specialising in the VET sector.
Qualifications: Master’s degree in Education, Master’s degree in Entrepreneurship & Innovation, Graduate of Diploma of Legal Practice, Bachelor of Laws (1st Class Honours), Diploma of Vocational Education and Training, Diploma of Quality Auditing, Diploma of Training Design and Development, Certificate IV in Training and Assessment, Certificate IV in Government Investigations and Certificate IV in Real Estate.
I am a member of the Law Institute of Victoria, Australian Institute of Administrative Law, Law Council of Australia—Family Law Section and the Institute for Learning Practitioners.