Importance of Business Continuity Management Plans

For many years now, I have been recommending to small RTO owners to ensure that they have a business continuity plan in place in the event that something happens to them as part of their governance requirements. After all, for many of these providers, they are the 'go-to' person for most things in the RTO. If something happened to you, how would your business continue to operate? This is a question that every business owner needs to face no matter how big or small, no matter what industry you're in and now is a time when you really should be considering it.

If something happened to you, how would your business continue to operate?

This article has been written in the context of the Vocational Education and Training (VET) sector and includes those providers with international students, although it works equally for providers of domestic students only. It also can be contextualised to many other businesses around the world.

The Standards for Registered Training Organisations (RTOs) 2015, at Standard 7 refer to having effective governance and administration arrangements in place. At Clause 7.1(a) we see the following:

7.1.  The RTO ensures that its executive officers or high managerial agent:

a)    are vested with sufficient authority to ensure the RTO complies with the RTO Standards at all times; and

b)    meet each of the relevant criteria specified in the Fit and Proper Person Requirements in Schedule 3.

There are therefore two key issues here:

1. Ensuring that there is someone who can manage the RTO and has the authority to make decisions to ensure that the RTO complies with its registration requirements at all times (in other words, in the event that you are no longer able to perform this task), and
2. That this person that you nominate also meets the fit and proper requirements of ASQA.

To put this into perspective, in the past 2 days, I have spoken with:

1. An RTO owner who has an attendance monitoring condition on their registration as a CRICOS provider and a student has been diagnosed with COVID19;
2. An RTO Owner who has contracted COVID19 from one of their international students.

This, therefore, presents some real issues around governance and business continuity management plans in this sector.

Many providers are yet to formally delegate their responsibilities to others in the event that something happens to them. In the case of the 2nd client example above, I strongly recommended that not only do they delegate one person that meets these requirements, but they have multiple people delegated.

With contagion levels still not at their peak, when 1 person becomes infected at an RTO, the risk very quickly escalates. Management staff are not immune to COVID19 and just like the blocks in the image above, they will also potentially (likely) fall. So, my advice was to have multiple delegates who meet these requirements and ensure that they are documented and current. Make sure too that they have appropriate logins and permissions, passwords and access to all relevant system. Notify all relevant people that you might be currently working with of the business continuity plan you have in place.

Again, it's not enough to have a husband or wife take over in the event that something happens to you, in the case of Coronavirus, it is likely that they too will become infected if they are not already, you should have multiple people in place. You also need to make sre they don't expose you to risk because they won't comply with the Fit & Proper Requirements, themselves a legislative instrument. In brief, the Fit & Proper Requirements include as follows (I'm highlighting them here because of their importance and bolded those with the potential for ambiguity):

(a) whether the person has been convicted of an offence against a law of the Commonwealth or of a State or Territory and if so, the seriousness of the offence;

(b) whether the person has ever had his, her or its registration on the National Register cancelled or suspended;

(c) whether the person has ever had a condition imposed on his, her or its registration on the National Register;

(d) whether the person has ever breached a condition of registration in Subdivision B of Division 1 of Part 2 of the Act;

(e) whether the person has ever become bankrupt, applied to take the benefit of a law for the benefit of bankrupt or insolvent debtors, compounded with his or her creditors or assigned his or her remuneration for the benefit of creditors;

(f) whether the person has ever been disqualified from managing corporations under Part 2D.6 of the Corporations Act 2001;

(g) whether the person was involved in the business of the provision of courses by another provider who is covered by any of the above paragraphs at the time of any of the events that gave rise to the relevant prosecution or other action;

(h) whether the person has ever provided a State or Territory registering body and/or the National VET Regulator with false or misleading information or made a false or misleading statement to a State or Territory registering body or the National VET Regulator, and whether the person knew that the statement made or information provided to the State or Territory registering body or VET Regulator was false or misleading;

(i) whether the person has ever been found not to be a fit and proper person for the purposes of the Education Services for Overseas Students Act 2000;

(j) whether the public is likely to have confidence in the person's suitability to be involved in an organisation that provides or assesses national qualifications; and

(k) any other relevant matter.

As can be seen by the items highlighted, RTO owners will indeed need to be very careful when making these delegations to ensure that the person they delegate actually meets the criteria.

 Secondary Consideration

Once you have decided upon a governance and administration team for delegation, it is time to consider how your operation is going to continue to operate in the current environment (remember client 1 above?).

For most people, this issue has been resolved by asking all staff to work from home and students to study from home. This too, however, presents problems that need to be considered and managed, none of them easy. While I will provide some suggestions in this article, the scope of these challenges is far too wide to be covered here and you should see appropriate assistance or contact RTO Doctor directly for any help we can provide. We will provide a few contacts below who might be able to assist you if we can't.

Working From Home

Sounds like an easy option right? Wrong! Did you know that there are requirements legally for employees who work from home in relation to work health and safety (at a minimum)? As a small business who has operated virtually for several years now, something I learned as a result of a worker's compensation insurance application process was that I needed to ensure that all employees and contractors had a safe workplace, even if that workplace was from home. I have provided an agreement template and checklist in a Dropbox folder for your reference at no cost that I used courtesy of my subscription with ProcessWorx (a HR Company based in Perth, WA). Processworx are experts at assisting companies in this area. While they may be based in WA, like RTO Doctor, they work all around the country.

Then after the WHS considerations, there are issues around time and performance management, setting outcomes to be achieved, safety of intellectual property, confidentiality and privacy issues, the list goes on. Thee are some significant considerations that must be taken into account when implementing a work from home policy, not to mention ensuring that your insurance policies will cover you where and as required.

Student Transition

We are seeing many providers now venture into new territory and embracing technology. While many people are seeing the Coronavirus pandemic as a disaster (many States now have called it a "State of Emergency"), this could actually be a blessing in disguise for the VET sector and international education across Australia. The entire industry may actually be able to demonstrate how quality education can be achieved while embracing technology, innovation and 21st-century education options. Australia has been at the forefront of developing innovative e-learning for many years and our regulatory environment has never made it possible for us to truly deliver it in a way that really captures its true capacity to engage learners and increase access opportunities for those students in remote places. This really is an opportunity to rethink how we can deliver best practice learning and assessment options that are consistent with the technology available and used every day by business and address industry and student need.

One of the key issues that is immediately facing providers in this situation though is that for many students, they may not have the ability to complete their studies from home. For many domestic students, they may not have access to the equipment necessary and may have relied on college facilities, community libraries, etc. to complete their studies. For international students, particularly newly arrived international students, they may not have purchased any IT equipment yet and relied solely on college facilities. With many stores now showing that they're out of stock and finding it difficult to get new stock from suppliers (many parts are made in China), this could become a problematic issue for providers also. How do you continue to deliver learning to students from home if they don't have equipment? These and many other questions need to be carefully considered before rolling out your COVID19 business continuity management strategy.

In addition to considering the risks of trying to manage classes and business as usual, in the wake of the Prime Minister's announcement today (18 March 2020) that there is a ban on indoor gatherings of 100 or more, if your timetable schedule reflects that this would be the case, you must immediately cease delivering classes in accordance with this schedule/timetable. It would be prudent, like many universities, to bring forth study breaks and suspend classes in order to transition your operations to allow students and staff to work from home. As this article reflects, this will not be an easy process but it is doable and with the right support and advice, you can manage the process compliantly.

For those providers with international students, don't forget that this may have an impact on student CoEs and reporting on PRISMS, especially if you bring forward study dates, have cancellations, non-commencements etc. I would hope that ASQA and the Department of Home Affairs will work with providers to manage these processes rather than take the opportunity to kick providers at their weakest (I've seen this happen on too many occasions to count, albeit, ASQA would deny it, this is a true statement).

For those providers with conditions on their registration regarding attendance, submission of assessment records, evidence of participation, etc., it is my advice that you seek legal advice urgently about how you can best comply. With the right advice and support, you should be able to come through this easily. For those providers with a condition regarding financial viability, I strongly urge you to seek advice from your accountant or legal advisor, you could be facing a significant challenge. I should also note that I have no doubt that this current situation will be used by ASQA in Tribunal processes in contested hearings and stay applications to the detriment of RTOs, that's just their nature and an example of their ongoing disregard for their Model Litigant Obligation under the Legal Services Directions 2017.

I hope this article has been helpful and provides some food for thought about how best to prepare your business continuity management plan. If there is something that you have done that has worked, please share below in the comments. Now is the best time for us all to support each other to survive. It's our opportunity to let the VET sector shine!

As promised, there is a list provided in the Dropbox link that includes some resources you might find helpful.

This article has been provided to assist providers ina. time of crisis. It is not legal or financial advice and should not be construed as such. Every client's needs are individual and this is a general guide. If you would like assistance from RTO Doctor, please contact us on 0408 144 002 or via our website.