Gaffney‐Rhys and Jones (2010: 711) explored the implementation of contracts to manage associated risks pertaining to universities and students. Their findings could possibly extend to workplace-based learning providers, as third party? They indicate that the legal nature of the relationship between student and university is a complex matter, in that it “is governed by the principles of public law and the private law of contract” (p. 712). Furthermore, as “a public body, the decisions of an HEI [higher education institution] are subject to judicial review. They also indicate that it has been “confirmed that the relationship between a student and his or her HEI is based on a … legally binding contract [that] is formed when an offer made by an HEI, [and] is accepted by the applicant”, or student by registering. They add that “it is not legally necessary to present the contractual terms in a written document”.
The Higher Education Qualifications Sub-Framework (HEQSF) of the Department of Higher Education and Training (South African Government 2014: 17) states that the incorporation of work-integrated learning (WIL) into the curriculum is characteristic of vocational and professionally-oriented qualifications. Section 34 indicates that “WIL may take various forms including simulated learning, work-directed theoretical learning, problem-based learning, project-based learning and workplace-based learning” and that the selection of appropriate form depends on a number of factors. However, section 35 states: “Where the entire WIL component or any part of it takes the form of workplace-based learning, it is the responsibility of institutions that offer programmes requiring credits for such learning to place students into appropriate workplaces. Such workplace-based learning must be appropriately structured, properly supervised and assessed.” (emphasis added).
The South African Council on Higher Education, as independent statutory body and Quality Council for Higher Education (CHE: n.d.), recognises that “arrangements for work-based learning will likely be more complex in distance provision due to the more distributed nature of students and the geographic footprint of distance programmes which may even extend beyond national borders” (CHE: 2014, Criterion 15, emphases added), but states that “appropriate arrangements will be needed for placement, mentoring and supervision for a more distributed student body to ensure an equivalent learning experience across a wider range of contexts” and reiterates the “coordination of work-based learning must be done effectively, including adequate infrastructure, effective communication, recording of progress made, monitoring and mentoring”. Criterion 15 adds that “learning agreements or contracts implemented through which the student, the higher education institution, the employer (workplace-based learning provider) and mentor negotiate, approve, adhere to agreed roles and responsibilities, and assess the objectives and outcomes of the learning process”. It is however not explicitly stated that a formally legally binding contract is meant. Furthermore, is it reasonable to subject a workplace-based learning provider, which willingly make resources available to, additional contractual obligations?
In addition to the generic statutory requirements above, qualification-specific statutory bodies such as the Engineering Council of South Africa (ECSA), Health Professions Council of South Africa (HPCSA), South African Council for Social Service Professions (SACSSP), South African Nursing Council (SANC), and the South African Veterinary Council (SAVC), and vocational bodies may specify additional criteria.
Nevertheless, “the contract to educate requires the HEI to provide adequate teaching and adequate facilities” indicate Gaffney‐Rhys and Jones (2010: 712) and (p. 713) that “the primary obligations of the HEI are to provide adequate teaching and facilities” deducing that the “contract between an HEI and a student is thus a contract for services”, which in accordance to section 35 of the HEQSF includes “the responsibility of institutions that offer programmes requiring credits for such [workplace-based] learning to place students into appropriate workplaces”, bearing in mind that section 34 of the HEQSF does present universities with the option of alternative forms of WIL “including simulated learning, work-directed theoretical learning, problem-based learning, [and] project-based learning”.
As far as the legal status of contracts between the “student, the higher education institution, the employer (workplace-based learning provider) and mentor” (as per criterion 15) appear not, according to Gaffney‐Rhys and Jones (2010: 713) to “create a contractual relationship [between HEI and student] it simply formalises its terms”. If such a contract “contains university regulations and/or repeats information that was included in the prospectus … it is merely drawing the student’s attention to terms that are binding” say Gaffney‐Rhys and Jones (2010: 713). However, “if the HEI wants to impose further conditions on the student … and wants such requirements to be legally binding the document (the name of which can vary) should be sent to applicants [students] with the offer letter in order to expressly incorporate the terms into the student contract”, they caution and indicate that it “might constitute a variation of contract, which requires the student’s consent”. Gaffney‐Rhys and Jones (2010: 714) also indicate that it need to be understood “that the point at which the document is distributed, the contents of the document and the style of the document determine whether it is legally enforceable, rather than the title, as many would assume”. The notion of persuading companies to offer workplace-based learning opportunities and thereafter impose legal requirements might be questionable?
The impact of formal workplace-based learning contracts on the satisfaction of both providers and students possibly need to be investigated?
Council on Higher Education (n.d.) Legislative and policy mandate. Electronically accessible from https://www.che.ac.za/about-us/legislative-and-policy-mandate
Council on Higher Education (2014). Distance Higher Education Programmes in a Digital Era: Programme Accreditation Criteria, pp. 81 – 107. In Distance Higher Education Programmes in a Digital Era: Good Practice Guide. Electronically accessible from https://www.saide.org.za/documents/CHE_-_Distance_Higher_Education.pdf
Gaffney‐Rhys, R. & Jones, J. (2010). Issues surrounding the introduction of formal student contracts. Assessment & Evaluation in Higher Education, 35(6), 711-725. Electronically accessible form https://doi.org/10.1080/02602930902977749.
South African Government (2014), Department of Higher Education and Training, Government Notice No 819. Higher Education Qualifications Sub-Framework. Government Gazette No. 38116, 17 October 2014. Electronically accessible from https://www.gov.za/sites/default/files/gcis_document/201410/38116gon819.pdf
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