Skills Insight Jobs and Skills Council is required to have a dispute resolution policy (in addition to internal existing disputes policy) as part of the Jobs and Skills Council Grant Agreement with the Commonwealth department.
The purpose of this policy is to outline:
the expectations of Skills Insight Jobs and Skills Council with respect to dispute resolution
the principles that should guide the resolution of disputes
the options for managing disputes relating to the management of training products, processes and conduct
the options relating to alternative dispute resolution (ADR) which may be used by Skills Insight Jobs and Skills Council in exceptional circumstances.
With the exception of internal staffing matters and membership applications, that have alternative policies and procedures, all disputes can be addressed through this policy, including:
Disputes between directors, or between directors and the CEO, in relation to products, deliverables and processes of the Jobs and Skills Council.
Disputes between stakeholders, or between stakeholders and Skills Insight staff, connected to the functions of the Jobs and Skills Grant Program.
Skills Insight operates at all levels using a consensus approach, wherever possible, with the aim of achieving outcomes that are acceptable to all stakeholders. This is part of our core approach, and therefore the use of formal Dispute Resolution, as an alternative to reaching consensus, should be avoided wherever possible.
This policy has been established on the foundation of Skills Insight values, behaviours and strategies and all actions must be consistent with them. In the event of any conflict between this policy and the values, behaviours and strategies of Skills Insight, we request that you promptly notify the CEO for resolution.
Principles
In managing disputes, Skills Insight Jobs and Skills Council will strive to:
resolve disputes as early as possible
use resources efficiently
limit the issues in dispute
act fairly
handle information relating to disputes sensitively
be transparent such that the dispute resolution process is clear to all
resolve disputes in a manner that enhances stakeholder understanding of, and confidence in, the Jobs and Skills Program.
Part 1: General Approach to Resolving Issues
Utilising consensus to minimise disputes
Skills Insight will use every endeavour to use consensus approaches in its work to minimise the potential for formal disputes.
Skills Insight will endeavour to make decisions using an evidence-based consensus approach.
Consensus is a group decision-making process in which participants develop and decide on proposals with the aim of acceptance by all. The focus on establishing agreement of participants is aimed at avoiding the use of unproductive opinion guiding decision making and will rely upon all participants recognising that decisions represent the best interests of the stakeholder membership as a whole. Individual participants may disagree or not support a decision, but evidence-based reasons are required to block a consensus decision.
The evidence-base to be considered will be the evidence collected by Skills Insight via open and transparent consultative processes, as required to implement the business plan and as outlined in the various procedures, including:
Records of industry and stakeholder engagement
Data from Jobs and Skills Australia, ABS, NCVER and other similar bodies
Data provided from industry sources and stakeholder members
Workforce Plans, Strategic plans, annual Activity Plans, and Industry Skills Reports
Reports from sub-committees
Reports from QA, Edit and Equity, and other relevant, qualified experts presented as part of activity reports
Feedback and recommendations from stakeholder engagement.
To implement the consensus approach, participants will:
Review the process leading to the recommended decision to ensure all steps have been followed sufficiently and effectively
Consider whether there are any additional actions that should be taken with a realistic possibility of success.
Where required, a four-stage stakeholder engagement process will be followed prior to reaching a consensus decision. The process is:
Engage
Identify and define the issue, including clarifying and addressing misconceptions
Share background information as understood in the current work, and allow stakeholders to add background and additional information
Define the scope of the discussion and which matters need to be resolved
Open broader discussion by consulting to define the problem, not the solution: Allow everyone to share their needs and opinions, so they are properly identified prior to attempting to reach a solution
Come up with multiple ways forward and explore the strengths and weaknesses of each option, or combinations of options
Identify key concerns, needs and objectives
Move to a Solution
Form a proposal designed to meet the most important needs and the current public interest. This is likely to involve weaving together elements of different ideas
Look for changes that will make the proposal even stronger
Seek Acceptance
Make the proposed solution available for comment and validation
Clearly state the proposal and check whether there is real agreement
Request stakeholders test the proposed solution as far as they can (and potentially run scenario sessions)
Ask for identification of:
Success barriers – matters that will get in the way and mean the proposal can’t succeed
Reservations – concerns that may or may not be provable or evidence-based that haven’t yet been addressed
Either move forward or go back to the last stage to develop a new solution
Consensus decision
Seek final consensus
If achieved, approve the recommendation
If not accepted, consider whether there is a need for further attempts at reaching consensus.
In the event of being unable to reach a consensus decision, a formal dispute resolution process may be implemented.
Specific issues relating to content of a training product
Where disputes arise in relation to the content of a training product, Skills Insight will attempt to resolve these through the training product development process, and ensure it meets the requirements of the Training Package Operating Framework.
This may involve:
undertaking further consultation
seeking further advice of a technical committee
undertaking further research into the impacts of a training product (for example, if concerns about unintended impacts of the training products are part of the dispute)
working with a small group of stakeholders to develop a consensus position on an issue.
It is expected that these routine processes will enable the resolution of the vast majority of disputes.
Resolution of training product disagreements without a formal dispute resolution process
Based on the Principles outlined above, there may be situations where Skills Insight will be able to settle on an agreed training product, even if consensus is not achieved or all of the details of that training product are not agreed by all stakeholders. Where this is the case, the Stakeholder Forum will need to approve this approach, which will then be detailed (as part of the submission to the Assurance Body), identifying the areas where broad consensus has not been reached and the justification for resolving in this manner.
Part 2: Formal Dispute Resolution
Formal dispute resolution
The CEO, on their own authority or on the recommendation of the Chair of the Stakeholder Forum, or the Board of Skills Insight, may institute a formal Dispute Resolution Process. This may be instituted to enable a final decision to be made concerning a recommendation, or for any other dispute where there is a need to institute a formal process.
The principles that will be applied to the Dispute Resolution Process are:
Respect for another’s point of view
Commitment to resolving the issue
Willingness to compromise
Confidentiality
Impartiality
Respect
Prompt action
Freedom from repercussions.
Failure to adhere to these principles by any participant may result in exclusion from all or part of the process, or disciplinary action under the Code of Conduct or Skills Insight’s Constitution.
In considering the appropriate action to be taken, the CEO will consider which actions are most likely to achieve the following outcomes:
Quick resolution – the issues should be resolved quickly rather than allowing them to escalate through inaction
Fairness – all relevant parties should be consulted so that all sides of the story are taken into account
Sensitive handling – disputes should, where possible and appropriate, be resolved in a confidential context to minimise impact on stakeholders not affected by the dispute
Transparency – the fact of dispute resolution and this procedure should be made known to stakeholders.
The recommendation in dispute (if applicable) and the nature of the dispute will be put in writing. On review of this, the CEO may institute any or all of the following:
A process to bring the parties together to help resolve the dispute at an early stage
A process to ensure that all parties receive a full and fair opportunity of presenting their case
A review of policies and procedures which may have contributed to the dispute in order to minimise a recurrence
If required, appointment of an independent person to deal with, or advise on the dispute (mediation)
If required, referral of unresolved disputes to an external alternative dispute resolution practitioner for dispute settlement.
In the event of mediation or an alternative dispute resolution practitioner being appointed, the mediator or body must be:
Chosen by agreement between the parties to the dispute
In the absence of agreement, a person appointed by the board.
A member of the board can be a mediator but may not have an interest in or be a party to the dispute. An alternative dispute resolution practitioner must be external (and may be part of an external dispute resolution body).
It is intended that:
the mediator or alternative dispute resolution practitioner would be an independent person skilled in mediation and conciliation and able to bring ‘fresh eyes’ to an issue
the mediator or practitioner would assist Skills Insight to resolve the issue such that the decision, recommendation or training product can be finalised
the mediator or practitioner would consider the relevant information, may speak with stakeholders and may gather further information to enable them to make a recommendation to Skills Insight. The recommendation is not binding on Skills Insight but is expected to be highly persuasive.
In the case of Alternative Dispute Resolution:
Skills Insight would make a public notification that the process has been triggered because this will impact on timeframes for the decision, recommendation or finalisation of the training product. The issues in contention or dispute would also be identified publicly.
The outcomes of the process will be included in a summary of feedback that is provided to all relevant stakeholders, including in information provided to the Assurance Body as part of the finalisation of training product development.
The process would be conducted in a timely manner, taking no longer than 2 months, other than in exceptional circumstances, which must be reported to the Commonwealth department.
The parties to the dispute must, in good faith, attempt to settle the dispute.
The mediator or practitioner must:
Give the parties every opportunity to be heard
Allow due consideration by all parties of any written statement submitted by any party
Ensure that natural justice is accorded to the parties to the dispute throughout the process.
The proceedings should, as far as possible, be confidential and without prejudice, subject to the requirements above concerning notification of alternative dispute resolution and reporting of outcomes.
A mediator or practitioner must not determine the dispute, and a recommendation by a mediator may be made to the CEO, Stakeholder Forum, or Board, which must consider and give full faith and credit to the recommendation.
Role of Skills Ministers
Skills Ministers will retain the right to issue directives to Skills Insight Jobs and Skills Council or not to endorse a training product. This includes any requirement to undertake further consultation or other work before returning a training product for endorsement.
Skills Ministers may direct Skills Insight to commence a formal dispute resolution process if they considered that this was necessary to assist in resolving issues of concern agreed on by the Ministers. If a formal dispute resolution process has already occurred before the issue is presented to Skills Ministers, it is not expected that the same process would again be directed by Skills Ministers.
Part 3: Specific Requirements for Alternative Dispute Resolution in relation to Training Package Product Development and Endorsement
When to engage
An Alternative Dispute Resolution practitioner may be engaged:
if this is requested by the Commonwealth or a state or territory
if Skills Insight determines that this is necessary to enable the finalisation of a training product.
In either of the above cases, the relevant jurisdiction or Skills Insight must be satisfied that the circumstances warrant the engagement of a practitioner.
The process will be reserved for those exceptional circumstances where one or more of the following criteria applies:
The Stakeholder Forum makes a judgement that broad consensus cannot be reached regarding the content of the training product, such that this is likely to impact confidence in the training product.
There is a significant concern by one or more major stakeholders such that this is impacting confidence in the training product.
There is a significant concern by one or more regulators, including licensing bodies, such that the training product may not be able to be relied upon for licensing or might not meet relevant regulations.
There is a significant concern held by the Commonwealth or one or more states or territories such that the training product could not be reasonably supported by that jurisdiction.
The Skills Insight CEO and Stakeholder Forum cannot agree on key elements of the training product.There is a significant concern by one or more major stakeholders such that this is impacting confidence in the training product.
Preparing for the process
Skills insight will be responsible for developing a brief for the practitioner, including:
the reason why the process is required
the issue or issues in dispute
the timeframe for the process (up to a maximum of 2 months)
any considerations of relevance to the practitioner
contact details of the key stakeholders that may be able to contribute further information
relevant documents (including the outcomes of previous consultation in relation to the issues in contention)
the budget for the process.
Engagement of a practitioner Skills Insight will directly engage and be responsible for the terms of engagement for the Alternative Dispute Resolution practitioner and process.
The practitioner should be:
accredited in mediation and/or conciliation
independent (not having an actual or perceived conflict of interest in relation to Skills Insight, the training product or the issue in dispute)
familiar with VET but need not be an industry expert or representative.
A director or staff member of Skills Insight or any sub-contractor and partner organisations cannot be engaged as a practitioner in a formal dispute resolution process which comes under the Training Package Operating Framework.
Following the process
The practitioner should be provided with:
a copy of the brief created by Skills Insight
a report and recommendations template, including any instructions for the practitioner about the format Skills insight will expect outcomes to be captured in (e.g. reasons, etc.).
When a practitioner is engaged, Skills Insight Jobs and Skills Council is responsible for updating their website to reflect:
that an Alternative Dispute Resolution process has been triggered
the reason it has been triggered
the details of the party triggering the process
the issues in contention
an indicative timeframe for the process.
The practitioner will determine the most appropriate resolution method in the circumstances.
Role and conclusion
The role of the practitioner is to help identify solutions and provide recommendations to the Jobs and Skills Council about ways to resolve difficult issues. The practitioner will not re-prosecute consultation submissions or to determine if Skills Insight sufficiently considered feedback as part of complying with the Policy in relation to process.
Reasonable time will be allocated for the practitioner to consider the issues and to explore views and options. The process would generally be expected to take between 3-4 weeks with a maximum timeframe of 2 months.
The practitioner will be expected to complete a short report, which summarises:
the issues that were referred to them (including any additional issues that were identified)
the process undertaken by the practitioner (including who was spoken with, what information was provided and considered, what methods were used etc.)
their recommendations to Skills Insight and accompanying reasoning.
Recommendations may be presented as a single position or offered with options for consideration by Skills Insight.
Recommendations are not determinative and will not be binding on Skills Insight or on the stakeholders (if any) participating in the process.
Skills Insight is required to consider the recommendations and use them to make an informed decision about how to settle the training product content.
Skills Insight may seek clarification from the practitioner regarding the recommendations but cannot direct the ADR practitioner to re-examine the issue or to undertake another resolution process.
Once completed, the outcomes of the process will be published on the Skills Insight website as part of the Training Product Submission that is published at the time of submission to the Assurance Body.
Submission to the Assurance Body
Where an Alternative Dispute Resolution process has been utilised, this should be noted in the Training Product Submission prepared for the Assurance Body and published on the Skills Insight website.
Monitoring dispute resolution
The Commonwealth department is responsible for:
monitoring the performance of Jobs and Skills Councils
responding to complaints about the conduct of Jobs and Skills Councils and process concerns about the development of training products.
As part of these functions, the department will consider and review:
The effectiveness of Jobs and Skills Councils in resolving disputes early in the development process (including so that learnings regarding best practice can be shared across Jobs and Skills Councils).
The use (including any over-use) of practitioners where issues arise that meet the relevant criteria.
How Jobs and Skills Councils engage with recommendations to inform their decision-making opportunities to improve this model policy.
Relationship to Other Policies
This policy should be read in conjunction with the following codes, policies and guidelines:
The Jobs and Skills Councils Code of Conduct and Program Guidelines
The Training Package Operating Framework
In particular, Appendix C of the Training Package Products Development and Endorsement Process Policy 2023, or as later updated
Skills Insight Governance guidance including Board performance; Financial delegation; Conflict of Interest; and Gifts Policies
Stakeholder Membership and Representation Framework and the Stakeholder Engagement Plan
