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This is a Bill, not an Act. For current law, see the Acts databases.
South Australia
Training and Skills Development
Bill 2008
A BILL FOR
An Act relating to higher education, vocational education and training,
adult community education, and education services for overseas students; to
establish the Training and Skills Commission; to repeal the Training and
Skills Development Act 2003; to make related amendments to the Fair
Work Act 1994; and for other purposes.
Contents
Part 1—Preliminary
1 Short
title
2 Commencement
3 Objects
4 Interpretation
5 Declarations
relating to universities and higher education
6 Declarations of trade and
non-trade occupations
Part 2—Administration
Division 1—Minister
7 Functions of
Minister
8 Delegation by Minister
Division 2—Training and Skills
Commission
9 Establishment of Training and Skills
Commission
10 Functions of Commission
11 Ministerial
control
12 Conditions of membership
13 Proceedings of
Commission
14 Validity of acts
15 Staff
16 Report
Division 3—Reference groups
17 Establishment
of reference groups
Division 4—Training Advocate
18 Training
Advocate
19 Appointment of Training Advocate
20 Term of office of Training
Advocate etc
21 Functions of Training Advocate
22 Training Advocate
subject to direction of Minister
23 Delegation by Training
Advocate
24 Staff
25 Report
Part 3—Higher education, vocational education and
training and education services for overseas students
Division 1—Registration of training
providers
26 Registration of training providers
27 Conditions of
registration
28 Variation or cancellation of registration
29 Criteria for
registration
Division 2—Accreditation of
courses
30 Accreditation of courses
31 Conditions of
accreditation
32 Variation or cancellation of accreditation
33 Criteria
for accreditation
Division 3—Duration of
registration/accreditation
34 Duration of
registration/accreditation
Division 4—Other powers of Commission relating to
training providers and courses
35 Grievances
36 Commission may
inquire into training providers or courses
37 Commission may cancel, suspend
or vary registration or accreditation
38 Commission may issue qualification
or statement of attainment in certain circumstances
39 Cancellation of
qualification or statement of attainment
40 Commission may assess and certify
competency in certain circumstances
41 Provision of information
Division 5—Appeal to District
Court
42 Appeal to District Court
Division 6—Offences
43 Offences relating to
registration and issuing of qualifications
44 Offences relating to
universities, degrees, etc
Part 4—Apprenticeships/traineeships
Division
1—Interpretation
45 Interpretation
Division 2—Training contracts
46 Training
under training contracts
47 Minister may enter training
contracts
48 Approval of training contracts
49 Term of training
contracts
50 Variation of training under training contract to part-time or
full-time
51 Termination or suspension of training contract
52 Transfer of
training contract to new employer
53 Offence to exert undue influence etc in
relation to training contracts
54 Termination/expiry of training contract and
pre-existing employment
Division 3—Registration of
employers
55 Registration of employers
56 Conditions of
registration
57 Criteria for registration
58 Variation or cancellation of
registration
59 Duration of registration
60 Commission may cancel, suspend
or vary registration
61 Appeal to District Court
62 Commission may inquire
into employers
Division 4—Compliance notices, misconduct, disputes
and grievances
63 Compliance notices
64 Employer may suspend
apprentice/trainee for serious misconduct
65 Other matters to be dealt with
by Industrial Relations Commission
66 Holding of conciliation conferences
compulsory
67 Representation in proceedings before Industrial Relations
Commission
68 Participation of assessors and other experts in proceedings
before Industrial Relations Commission
Division 5—General
69 Relation to other Acts
and awards etc
70 Making and retention of records
Part 5—Miscellaneous
71 Training and Skills
Register
72 Provision of information to/by prescribed authority
73 Other
powers of Commission, Training Advocate, etc
74 Immunity from
liability
75 False or misleading information
76 Evidentiary provision
relating to registration
77 Gazette notices may be varied or
revoked
78 Service
79 Regulations
Schedule 1—Appointment and selection of assessors and
other experts for Industrial Relations Commission proceedings under Part
4
Division 1—Assessors
Division 2—Experts
Schedule 2—Related amendments, repeal and transitional
provisions
Part 1—Preliminary
1 Amendment
provisions
Part 2—Amendment of Fair Work
Act 1994
2 Amendment of section
4—Interpretation
3 Amendment of section 26—Jurisdiction of
Commission
4 Amendment of section 40—Constitution of
Commission
5 Amendment of section 105A—Application of
Part
6 Amendment of section 151—Representation
7 Amendment of
section 155—Nature of relief
8 Substitution of section
155A
155A Application of Division
9 Amendment of
section 207—Right of appeal
Part 3—Repeal of Training and Skills Development
Act 2003
10 Repeal of Act
Part 4—Transitional
provisions
11 Transitional provisions
The Parliament of South Australia enacts as
follows:
This Act may be cited as the Training and Skills Development
Act 2008.
This Act will come into operation on a day to be fixed by
proclamation.
The objects of this Act are to further the State's economic and social
development through the operations of the Training and Skills
Commission—
(a) in assisting the Minister to establish priorities and workforce
development strategies to meet the State's current and future work skills needs
through education, training, skills development and workforce development;
and
(b) in providing quality assurance in relation to higher education (other
than that delivered by a State university) and vocational education and training
by regulating training providers, courses and the relationship between employers
and apprentices/trainees; and
(c) in promoting—
(i) equity and participation in and access to education, training and
skills development; and
(ii) partnerships with industry and enterprises for the development of
skills for the State's workforce; and
(iii) an integrated national system of education and training that
recognises the diversity of the State's workforce needs; and
(iv) the development of a culture of continuous learning through adult
community education.
(1) In this Act, unless the contrary intention appears—
accredited—see subsection (3);
apprentice/trainee means a person (who may be either an
apprentice or a trainee) undertaking training in a trade occupation or non-trade
occupation under a training contract;
AQF means the policy framework entitled "Australian
Qualifications Framework" that defines qualifications recognised nationally
in post-compulsory education within Australia, as approved by the Ministerial
Council on Education, Employment, Training and Youth Affairs from time to
time;
AQTF means the policy framework entitled "Australian
Quality Training Framework" that defines the criteria and standards for the
registration of training providers and the accreditation of courses in the
vocational education and training sector, as approved by the Ministerial Council
for Vocational Education and Training from time to time;
Commission means the Training and Skills Commission
established under Part 2;
condition includes a limitation or restriction;
contravene includes fail to comply with;
corresponding law means a law of the Commonwealth or of
another State or a Territory relating to higher education, vocational education
and training and education services for overseas students;
course accrediting body means the body equivalent to the
Commission under a corresponding law that is responsible for the administration
of the accreditation of courses under the corresponding law;
declared institution means an institution declared under
section 5 to be—
(a) —
(i) a university; or
(ii) a university college; or
(iii) a specialised university of a kind specified in the declaration;
or
(b) a self-accrediting higher education institution; or
(c) if the institution is an overseas higher education
institution—an institution authorised to offer non AQF higher education
qualifications in the State;
District Court means the Administrative and Disciplinary
Division of the District Court;
domestic partner means a person who is a domestic partner
within the meaning of the Family Relationships Act 1975, whether
declared as such under that Act or not;
higher education—see subsection (2);
Industrial Relations Commission means the Industrial
Relations Commission of South Australia;
National Protocols means the protocols entitled "National
Protocols for Higher Education Approval Processes" relating to quality
assurance for the higher education sector in Australia, and includes any
guidelines relating to the protocols, as approved by the Ministerial Council on
Education, Employment, Training and Youth Affairs from time to time;
non-trade occupation means an occupation declared under
section 6 to be a non-trade occupation;
qualification has the same meaning as in the AQF;
reference group—see Part 2;
Register means the Training and Skills Register;
registered—see subsection (4);
registering body means the body equivalent to the Commission
under a corresponding law that is responsible for the registration of training
providers under the corresponding law;
repealed Act means the Training and Skills Development
Act 2003 repealed under Schedule 2;
scope of the registration—
(a) in relation to a registered training provider—means the
operations that the provider is authorised by the registration to conduct, as
determined by the conditions imposed on the registration;
Note—
See section 27(1)(a).
(b) in relation to a registered employer—means the operations that
the employer is authorised by the registration to conduct, as determined by the
conditions imposed on the registration;
Note—
See section 56(1)(a).
spouse—a person is the spouse of another if they are
legally married;
standards for accreditation of courses means—
(a) in relation to higher education—the criteria for accreditation
of courses under the National Protocols;
(b) in relation to vocational education and training—the standards
for accreditation of courses under the AQTF;
(c) in relation to education services for overseas students—the
standards determined from time to time by the Minister;
standards for registered training providers
means—
(a) in relation to a training provider for higher education—the
criteria for registration of training providers under the National
Protocols;
(b) in relation to a training provider for vocational education and
training—the standards for registration of training providers under the
AQTF;
(c) in relation to a training provider for education services for overseas
students—the standards determined from time to time by the
Minister;
standards for registering/course accrediting bodies
means—
(a) in relation to higher education—the criteria for registering
bodies and course accrediting bodies under the National Protocols;
(b) in relation to vocational education and training—the standards
for registering bodies and course accrediting bodies under the AQTF,
and includes, in relation to higher education, education services for
overseas students or vocational education and training, any standards determined
by the Minister from time to time;
statement of attainment has the same meaning as in the
AQF;
State university means a university established under an Act
of this State;
Territory means a Territory of the Commonwealth;
trade occupation means an occupation declared under
section 6 to be a trade occupation for the purposes of this Act;
Training Advocate means the person holding or acting in the
office of Training Advocate under this Act;
training contract means a training contract under Part
4;
training package—a training package is an integrated
set of competency standards, assessment guidelines and AQF qualifications for a
specific industry, industry sector or enterprise;
variation of registration—see sections 28 and
58;
vocational education and training—see
subsection (2).
(2) For the purposes of this Act—
(a) education in relation to which qualifications are issued under the
higher education provisions of the AQF is higher
education;
(b) education and training for work in relation to which qualifications
and statements of attainment are issued under the vocational education and
training provisions of the AQF is vocational education and
training;
(c) education and training services provided to persons holding a student
visa within the meaning of the Education Services for Overseas Students Act
2000 of the Commonwealth are education services for overseas
students.
(3) For the purposes of this Act, a course is accredited
if—
(a) the course is entered as an accredited course in higher education, and
the conditions of accreditation and details of the course are recorded, on the
Register; or
(b) the course is entered as an accredited course in vocational education
and training, and the conditions of accreditation and details of the course are
recorded, on the Register.
(4) For the purposes of this Act—
(a) a training provider is registered if—
(i) the training provider is entered as a registered training provider in
relation to higher education, and the conditions of registration and details of
the provider are recorded, on the Register; or
(ii) the training provider is entered as a registered training provider in
relation to vocational education and training, and the conditions of
registration and details of the provider are recorded, on the Register;
or
(iii) the training provider is entered as a registered training provider
in relation to education services for overseas students, and the conditions of
registration and details of the provider are recorded, on the
Register;
(b) an employer is registered if the employer is entered as
a registered employer in relation to undertaking the training of persons under
training contracts, and the conditions of registration and details of the
employer are recorded, on the Register.
(5) A reference in this Act to a particular agreement, policy framework or
protocol defined in subsection (1) is—
(a) a reference to the agreement, policy framework or protocol as amended
from time to time; or
(b) if the regulations declare a document to be in substitution for the
agreement, policy framework or protocol—a reference to the substituted
document as amended from time to time.
5—Declarations
relating to universities and higher education
(1) For the purposes of this Act, the Minister may, by notice in the
Gazette, make any of the following declarations:
(a) that an institution is—
(i) a university; or
(ii) a university college; or
(iii) a specialised university of a kind specified in the
declaration;
(b) that an institution is a self-accrediting higher education
institution;
(c) that an institution that is an overseas higher education institution
is an institution authorised to offer non AQF higher education qualifications in
the State.
(2) The Minister must, in making a declaration under this section,
apply—
(a) the National Protocols; and
(b) any other guidelines determined by the Minister.
(3) A declaration under this section—
(a) may be subject to such conditions (including conditions that determine
the scope of the operations of the institution) as the Minister thinks fit and
specifies in the declaration; and
(b) will operate for the period set in the declaration; and
(c) may, by further notice in the Gazette, be varied or revoked.
(4) It is an offence for an institution in relation to which a declaration
has been made under this section to contravene a condition imposed by the
Minister and specified in the declaration.
Maximum penalty: $5 000.
Expiation fee: $315.
6—Declarations
of trade and non-trade occupations
For the purposes of this Act, the Minister may, on the Commission's
recommendation—
(a) by notice in the Gazette, declare an occupation to be—
(i) a trade occupation; or
(ii) a non-trade occupation; and
(b) by further notice in the Gazette, vary or revoke such a
declaration.
The Minister has the following functions under this Act:
(a) to establish priorities and workforce development strategies to meet
the State's current and future work skills needs in conjunction with industry,
commerce, employee representatives and governments;
(b) to manage—
(i) the State's system of vocational education and training and adult
community education by allocating resources within the State on a program and
geographic basis; and
(ii) the State's system of higher education (other than that delivered by
a State university), vocational education and training and adult community
education through planning and regulating the provision of public and private
training; and
(iii) the State's role as part of an integrated national system of
education and training;
(c) functions (if any) contemplated by the Skilling Australia's
Workforce Act 2005 of the Commonwealth;
(d) any other function assigned to the Minister under this or any other
Act or that the Minister considers appropriate.
(1) The Minister may delegate a function or power of the Minister under
this Act—
(a) to the Commission or any other particular person or body; or
(b) to the person for the time being occupying a particular office or
position.
(2) A function or power delegated under this section may, if the
instrument of delegation so provides, be further delegated.
(3) A delegation—
(a) must be made by instrument in writing; and
(b) may be made subject to conditions specified in the instrument of
delegation; and
(c) is revocable at will and does not prevent the delegator from acting in
a matter.
Division
2—Training and Skills Commission
9—Establishment
of Training and Skills Commission
(1) The Training and Skills Commission is established.
(2) The Commission will consist of not more than 11 members appointed by
the Governor on the nomination of the Minister.
(3) Membership of the Commission will include persons who together have,
in the Minister's opinion, the abilities and experience required for the
effective performance of the Commission's functions, of whom—
(a) at least 1 will be nominated after consultation with State employer
associations; and
(b) at least 1 will be nominated after consultation with the United Trades
and Labor Council.
(4) The Governor may, on the nomination of the Minister—
(a) appoint a member to chair meetings of the Commission; and
(b) appoint a member to be the deputy of the member appointed to chair
meetings of the Commission (and the deputy may perform or exercise the functions
and powers of that member in the member's absence).
(5) The Governor may, on the nomination of the Minister, appoint a
suitable person to be the deputy of a member (other than the members referred to
in subsection (4)) and a person so appointed may act as a member of the
Commission in the member's absence.
(6) The qualifications required for the appointment of members under
subsection (3) extend to the appointment of deputies.
(7) The same number of members must be appointed by the Governor under
subsection (3)(a) and (b).
(8) At least 1 member of the Commission must be a woman and 1 a
man.
(1) The Commission's general functions are—
(a) to assist, advise and make recommendations to the Minister on matters
relating to the development, funding, quality and performance of vocational
education and training and adult community education; and
(b) to regulate—
(i) training providers under Part 3; and
(ii) apprenticeships/traineeships under Part 4.
(2) The Commission's functions include—
(a) promoting and encouraging the development of investment, equity and
participation in, and access to, vocational education and training and adult
community education; and
(b) advising and making recommendations to the Minister—
(i) on strategies and priorities for workforce development in the State
with the aim of supporting employment growth and investment in the State
(including the recognition of skills and qualifications gained outside of
Australia); and
(ii) on strategies for the development of vocational education and
training and adult community education in the State; and
(iii) relating to the amount and allocation of funds for vocational
education and training and adult community education; and
(iv) about the occupations that should constitute trade occupations or
non-trade occupations; and
(v) in relation to the State's role as part of an integrated national
system of education and training; and
(c) registering training providers and accrediting courses under Part 3;
and
(d) performing the functions assigned to the Commission under Part 4;
and
(e) monitoring, and reporting annually to the Minister on the state of,
vocational education and training and adult community education in the State,
including the expenditure of public money in these areas; and
(f) developing guidelines—
(i) for the purposes of Part 4; and
(ii) if required—for the purposes of Part 3 for the approval of the
Minister; and
(g) promoting pathways between the secondary school, vocational education
and training, adult community education, and higher education, sectors;
and
(h) entering into reciprocal arrangements with appropriate bodies with
respect to the recognition of education and training; and
(i) monitoring, and making recommendations to the Minister on, the
administration and operation of this Act; and
(j) performing any other function assigned to the Commission by the
Minister or by or under this or any other Act.
(3) For the purpose or in the course of performing its functions, the
Commission may—
(a) establish committees (which may but need not consist of members of the
Commission); and
(b) with the consent of the Minister, delegate a function—
(i) to a particular committee, reference group or any other person or
body; or
(ii) to the person for the time being occupying a particular office or
position.
(4) A function delegated under this section may, if the instrument of
delegation so provides, be further delegated.
(5) A delegation—
(a) must be made by instrument in writing; and
(b) may be made subject to conditions specified in the instrument of
delegation; and
(c) is revocable at will and does not prevent the delegator from acting in
a matter.
(6) The Commission must, for the purposes of assisting, advising and
making recommendations to the Minister on the Minister's functions under this
Act, and generally to the extent practicable, consult with—
(a) industry and commerce, including industry training advisory bodies and
associations and organisations established by or representing industry and
commerce; and
(b) associations and organisations representing employees; and
(c) relevant bodies, associations or organisations representing higher
education, vocational education and training and adult community education;
and
(d) relevant government and community bodies.
Except in relation to the formulation of advice and reports to the
Minister, the Commission is, in the performance of its functions, subject to
control and direction by the Minister.
(1) A member of the Commission will be appointed for a term not exceeding
2 years and on conditions determined by the Governor and specified in the
instrument of appointment.
(2) A member of the Commission will, at the expiration of a term of
appointment, be eligible for reappointment.
(3) The Governor may remove a member from office—
(a) for misconduct; or
(b) for failure or incapacity to carry out the duties of his or her office
satisfactorily; or
(c) for contravention of a condition of his or her appointment;
or
(d) if serious irregularities have occurred in the conduct of the
Commission's affairs or the Commission has failed to carry out its functions
satisfactorily and its membership should, in the opinion of the Governor, be
reconstituted for that reason.
(4) The office of a member becomes vacant if the member—
(a) dies; or
(b) completes a term of office and is not reappointed; or
(c) resigns by written notice to the Minister; or
(d) is convicted of an indictable offence or sentenced to imprisonment for
an offence; or
(e) is removed from office under subsection (3).
(5) On the office of a member becoming vacant, a person may be appointed
in accordance with this Division to the vacant office.
(1) The member appointed to chair meetings of the Commission will preside
at each meeting of the Commission at which the member is present.
(2) If the member appointed to chair meetings of the Commission is absent
from a meeting of the Commission, the following provisions apply:
(a) if another member has been appointed as that member's deputy and is
present at the meeting—the deputy will preside at the meeting;
(b) in any other case—a member chosen by the members present at the
meeting will preside at the meeting.
(3) Subject to subsection (4), a quorum of the Commission consists of
half of the total number of its members (ignoring any fraction resulting from
the division) plus 1 and must include a member appointed under
section 9(3)(a) and a member appointed under section 9(3)(b)
.
(4) If during a meeting of the Commission—
(a) a member absents himself or herself from the meeting room (whether
because of the member's duty with respect to a conflict of interest or for some
other reason) during a discussion or voting in relation to a matter decided or
under discussion by the Commission; and
(b) as a result of the member's absence, there is no longer a quorum
present,
those remaining members constitute a quorum for the purpose of any
discussion or voting at that meeting in relation to that matter.
(5) A decision carried by a majority of the votes cast by members at a
meeting is a decision of the Commission.
(6) Each member present at a meeting of the Commission has 1 vote on any
question arising for decision and, if the votes are equal, the member presiding
at the meeting may exercise a casting vote.
(7) A telephone or video conference between members will, for the purposes
of this section, be taken to be a meeting of the Commission at which the
participating members are present.
(8) A proposed resolution of the Commission becomes a valid decision of
the Commission despite the fact that it is not voted on at a meeting of the
Commission if—
(a) notice of the proposed resolution is given to all members in
accordance with procedures determined by the Commission; and
(b) a majority of the members express their concurrence in the proposed
resolution by letter, fax or other written communication setting out the terms
of the resolution.
(9) The Commission must cause accurate minutes to be kept of its
proceedings.
(10) Subject to this Act, the Commission may determine its own
procedures.
(11) Subject to the directions of the Commission, this section applies to
a committee of the Commission in the same way as to the Commission.
An act or proceeding of the Commission or a committee of the Commission is
not invalid by reason only of a vacancy in its membership.
(1) The Commission's staff consists of—
(a) Public Service employees assigned to work in the office of the
Commission under this Act; and
(b) officers or employees under the Technical and Further Education
Act 1975 assigned to work in the office of the Commission under this
Act; and
(c) any person appointed under subsection (3).
(2) The Minister may, by notice in the Gazette—
(a) exclude—
(i) Public Service employees who are members of the Commission's staff
from specified provisions of the Public Sector Management Act 1995;
and
(ii) officers or employees under the Technical and Further Education
Act 1975 who are members of the Commission's staff from specified
provisions of that Act; and
(b) if the Minister thinks that certain provisions should apply to such
employees instead of those excluded under paragraph (a)(i) or
(ii)—determine that those provisions will apply,
and such a notice will have effect according to its terms.
(3) The Commission may, with the consent of the Minister, appoint staff
for the purposes of this Act.
(4) The terms and conditions of employment of a person appointed under
subsection (3) will be determined by the Governor and such a person will
not be a Public Service employee.
(5) The Commission may, by agreement with the Minister responsible for an
administrative unit of the Public Service, make use of the services of the
staff, equipment or facilities of that administrative unit.
(1) The Commission must, on or before 31 March in each year, present
to the Minister a report on its operations for the preceding calendar
year.
(2) The Minister must, within 6 sitting days after receipt of a
report under this section, cause copies of the report to be laid before each
House of Parliament.
17—Establishment
of reference groups
(1) The Minister must establish—
(a) a reference group to advise the Commission in relation to the
performance of the functions assigned to the Commission under Part 3 and Part 4;
and
(b) a reference group to advise the Commission in relation to the
performance of its functions relating to adult community education.
(2) The Minister may establish other reference groups as the Minister
considers necessary to advise the Commission in relation to the carrying out of
its functions or particular matters relating to its functions.
(3) A reference group will consist of not more than 5 members
appointed by the Minister, of whom—
(a) 1 (who will chair meetings of the reference group) will be a member of
the Commission; and
(b) the remainder (who may but need not be members of the Commission) must
include persons who together have, in the Minister's opinion, the abilities and
experience required for the effective performance of the reference group's
functions.
(4) Members of a reference group will hold office on such terms and
conditions as the Minister thinks fit.
(5) Subject to this Act, a reference group may determine its own
procedures.
(6) A reference group must submit to the Commission for inclusion in each
annual report of the Commission a report on its operations (if any) during the
year to which the report relates.
There will be a Training Advocate.
19—Appointment of
Training Advocate
(1) The Governor may, by notice in the Gazette, appoint a person to be the
Training Advocate.
(2) Subject to this Act, the terms and conditions of appointment and
employment (including salary and allowances) of the Training Advocate will be as
determined by the Governor.
20—Term of office
of Training Advocate etc
(1) The Training Advocate will be appointed for a term of office of 5
years and, on the expiration of a term of office, is eligible for
reappointment.
(2) The office of Training Advocate becomes vacant if the Training
Advocate—
(a) dies; or
(b) completes a term of office and is not reappointed; or
(c) resigns by notice in writing to the Governor; or
(d) is removed from office by the Governor under
subsection (3).
(3) The Governor may remove the Training Advocate from office
for—
(a) mental or physical incapacity to carry out official duties
satisfactorily; or
(b) neglect of duty; or
(c) dishonourable conduct.
21—Functions of
Training Advocate
(1) A charter must be prepared for the Training Advocate by the Minister,
after consultation with the Training Advocate and the Commission, setting out
the functions of the Training Advocate.
(2) The charter may (but need not) give the Training Advocate the
following functions:
(a) to promote the benefits of higher education, vocational education and
training and adult community education in the State;
(b) to provide an independent complaint handling process and investigate
complaints relating to the provision of higher education, vocational education
and training, education services for overseas students, adult community
education and training contracts;
(c) to promote the development of employment and skills formation policies
and procedures;
(d) to give advice on the powers that may be exercised in relation to
matters arising under this Act;
(e) to speak for and negotiate on behalf of education and training
providers and clients (and prospective clients) of education and training
providers in the resolution of any matter arising out of the delivery of
education and training;
(f) to speak for and negotiate on behalf of an apprentice/trainee in the
resolution of any matter arising under Part 4;
(g) to monitor the administration of this Act and make recommendations (if
any) to the Minister for legislative change;
(h) to perform any other function that may be assigned to the Training
Advocate—
(i) by the Minister after consultation with the Training Advocate and the
Commission; or
(ii) under this or any other Act.
(3) The Minister may, after consultation with the Training Advocate and
the Commission, amend the charter at any time.
(4) The charter or an amendment to the charter comes into force and is
binding on the Training Advocate on a day specified in the charter or
amendment.
(5) On the charter or an amendment to the charter coming into force, the
Minister must, within 6 sitting days, cause a copy of the charter, or the
charter in its amended form, to be laid before both Houses of
Parliament.
22—Training
Advocate subject to direction of Minister
(1) The Training Advocate is subject to direction (which must be given in
writing) of the Minister.
(2) However, no Ministerial direction may be given by the Minister in
relation to an investigation of the Training Advocate undertaken in the
performance of his or her functions.
23—Delegation by
Training Advocate
(1) The Training Advocate may delegate any of his or her powers or
functions under this or any other Act to a Public Service employee, or an
officer or employee under the Technical and Further Education
Act 1975, who has been assigned to assist the Training Advocate in the
performance of his or her functions or, with the approval of the Minister, to
any other person.
(2) A delegation under this section—
(a) must be by instrument in writing; and
(b) may be conditional or unconditional; and
(c) is revocable at will; and
(d) does not derogate from the power of the Training Advocate to act in
any matter.
(1) The Training Advocate's staff consists of—
(a) Public Service employees assigned to work in the office of the
Training Advocate under this Act; and
(b) officers or employees under the Technical and Further Education
Act 1975 assigned to work in the office of the Training Advocate under
this Act; and
(c) any person appointed under subsection (3).
(2) The Minister may, by notice in the Gazette—
(a) exclude—
(i) Public Service employees who are members of the Training Advocate's
staff from specified provisions of the Public Sector Management
Act 1995; and
(ii) officers or employees under the Technical and Further Education
Act 1975 who are members of the Training Advocate's staff from
specified provisions of that Act; and
(b) if the Minister thinks that certain provisions should apply to such
employees instead of those excluded under paragraph (a)(i) or
(ii)—determine that those provisions will apply,
and such a notice will have effect according to its terms.
(3) The Training Advocate may, with the consent of the Minister, appoint
staff for the purposes of this Act.
(4) The terms and conditions of employment of a person appointed under
subsection (3) will be determined by the Governor and such a person will
not be a Public Service employee.
(5) The Training Advocate may, by agreement with the Minister responsible
for an administrative unit of the Public Service, make use of the services of
the staff, equipment or facilities of that administrative unit.
(1) The Training Advocate must, on or before 31 March in each year,
present to the Minister a report on the Training Advocate's activities for the
preceding calendar year.
(2) A report under this section must include any direction of the Minister
given to the Training Advocate under this Act during the year.
(3) The Minister must, within 6 sitting days after receipt of a
report under this section, cause copies of the report to be laid before each
House of Parliament.
Part
3—Higher education, vocational education and training and education
services for overseas students
Division
1—Registration of training providers
26—Registration of
training providers
(1) The Commission may, on application or of its own motion, register, or
renew the registration of, a person as a training provider—
(a) to—
(i) deliver education and training and provide assessment services;
and
(ii) issue qualifications and statements of attainment under the
AQF,
in relation to higher education or vocational education and training (or
both); or
(b) to—
(i) provide assessment services; and
(ii) issue qualifications and statements of attainment under the
AQF,
in relation to higher education or vocational education and training (or
both); or
(c) for the delivery of education services for overseas
students.
(2) An application for registration or renewal of registration
must—
(a) be made to the Commission in the manner and form approved by the
Commission; and
(b) be accompanied by the fee fixed by regulation.
(3) An applicant must provide the Commission with any information required
by the Commission for the purposes of determining the application.
(1) Registration of a training provider is subject to—
(a) the conditions determined by the Commission as to what operations the
provider is authorised to conduct by the registration; and
(b) the condition that the provider will comply with the standards for
registered training providers, as in force from time to time; and
(c) if guidelines have been developed by the Commission and approved by
the Minister—the condition that the provider will comply with the
guidelines, as in force from time to time; and
(d) any other condition determined by the Commission.
(2) It is an offence for a training provider registered under this Part to
contravene a condition imposed by the Commission on the registration of the
provider.
Maximum penalty: $5 000.
Expiation fee: $315.
28—Variation
or cancellation of registration
(1) The Commission may, on application, vary or cancel the registration of
a training provider.
(2) An application to vary or cancel the registration
must—
(a) be made to the Commission in the manner and form approved by the
Commission; and
(b) be accompanied by the fee fixed by regulation.
(3) An applicant must provide the Commission with any information required
by the Commission for the purposes of determining the application.
(4) For the purposes of this Act, variation of registration
of a training provider means variation of the conditions of registration or the
registered details of the provider.
(1) The Commission must, in determining whether to register, or renew or
vary the registration of, a training provider, and in determining conditions of
registration—
(a) apply—
(i) the standards for registered training providers; and
(ii) the guidelines (if any) developed by the Commission and approved by
the Minister; and
(b) have regard to the standards for State and Territory
registering/course accrediting bodies.
(2) The Commission may not register, renew or vary the registration of a
person under this section unless the Commission is satisfied that the person is
fit and proper to be so registered, or to have the registration so renewed or
varied, taking into account—
(a) the prior conduct of the person or an associate of the person (whether
in this State or elsewhere); and
(b) any other matter that the Commission considers relevant.
(3) The Commission may not register, or renew or vary the registration of,
a training provider that is registered as the result of a determination by some
other registering body unless the Commission determines (according to such
criteria as the Commission thinks fit) that this State will be the provider's
principal place of business as a training provider.
(4) In this section, a person is an associate of another
person if—
(a) they are partners; or
(b) they are both trustees or beneficiaries of the same trust, or 1 is a
trustee and the other is a beneficiary of the same trust; or
(c) 1 is a body corporate and the other is a director or a member of the
governing body of the body corporate; or
(d) 1 is a body corporate and the other is a person who has a legal or
equitable interest in 5% or more of the share capital of the body corporate;
or
(e) 1 is an employer or employee of the other; or
(f) 1 is the spouse, domestic partner, parent or child of the other;
or
(g) a chain of relationships can be traced between them under any 1 or
more of the preceding paragraphs.
Division
2—Accreditation of courses
(1) The Commission may, on application or of its own motion, accredit a
course, or renew the accreditation of a course, as a course in higher education
or vocational education and training.
(2) An application for accreditation must—
(a) be made to the Commission in the manner and form approved by the
Commission; and
(b) be accompanied by the fee fixed by regulation.
(3) An applicant must provide the Commission with any information required
by the Commission for the purposes of determining the application.
31—Conditions of
accreditation
(1) Accreditation of a course is subject to—
(a) the condition that the course will comply with the standards for
accreditation of courses, as in force from time to time; and
(b) if guidelines have been developed by the Commission and approved by
the Minister—the condition that the course will comply with the
guidelines, as in force from time to time; and
(c) any other condition determined by the Commission.
(2) It is an offence for a holder of accreditation of a course to
contravene a condition imposed by the Commission on the accreditation of the
course.
Maximum penalty: $5 000.
Expiation fee: $315.
32—Variation
or cancellation of accreditation
(1) The Commission may, on application, vary or cancel the accreditation
of a course.
(2) An application to vary or cancel the accreditation
must—
(a) be made to the Commission in the manner and form approved by the
Commission; and
(b) be accompanied by the fee fixed by regulation.
(3) An applicant must provide the Commission with any information required
by the Commission for the purposes of determining the application.
(4) For the purposes of this Act, variation of accreditation
of a course means variation of the conditions of accreditation of the
course.
The Commission must, in determining whether to accredit, or renew the
accreditation of, a course, and in determining conditions of
accreditation—
(a) apply—
(i) the standards for accreditation of courses; and
(ii) the guidelines (if any) developed by the Commission and approved by
the Minister; and
(b) have regard to the standards for State and Territory
registering/course accrediting bodies.
Division
3—Duration of registration/accreditation
34—Duration of
registration/accreditation
(1) Subject to this Act, registration or accreditation remains in force,
on initial grant or renewal, for a period (which may not be longer than
5 years) determined by the Commission.
(2) The holder of registration or accreditation must, at intervals fixed
by regulation—
(a) pay to the Commission the fee fixed by regulation; and
(b) lodge with the Commission a return in the manner and form required by
the Commission.
Maximum penalty: $5 000.
Expiation fee: $315.
(3) An amount payable under this section as a fee may be recovered by the
Commission as a debt in a court of competent jurisdiction.
(4) In this section—
the holder of registration or accreditation includes a person
whose registration or accreditation has been suspended.
Division 4—Other
powers of Commission relating to training providers and
courses
(1) A person with a grievance relating to—
(a) the delivery of education and training, provision of assessment
services, or issue of qualifications and statements of attainment under the AQF,
in relation to higher education or vocational education and training by a
registered training provider; or
(b) the provision of education services for overseas students by a
registered training provider,
may refer the grievance to the Commission for consideration.
(2) The aggrieved person and the registered training provider must provide
the Commission with any information required by the Commission for the purposes
of considering the grievance.
36—Commission may
inquire into training providers or courses
(1) The Commission may, at any time, inquire into a training provider or
course, whether registered or accredited or the subject of an application for
registration or accreditation.
(2) The Commission may inquire into—
(a) a training provider the registration of which was, or is to be,
determined by some other registering body; or
(b) a course the accreditation of which was, or is to be, determined by
some other course accrediting body,
at the request of or after consultation with the relevant body.
(3) The holder of, or applicant for, the registration or accreditation
must provide the Commission with any information required by the Commission for
the purposes of an inquiry under this section.
37—Commission
may cancel, suspend or vary registration or accreditation
(1) If the holder of registration or accreditation contravenes this Act or
a corresponding law or a condition of the registration or accreditation (whether
the contravention occurs in this State or elsewhere), the Commission may do
either or both of the following:
(a) impose or vary a condition of the registration or
accreditation;
(b) cancel or suspend the registration or accreditation.
(2) The Commission may not take action under
subsection (1)—
(a) in relation to a training provider the registration of which was
determined by some other registering body, except to impose conditions
preventing the provider from operating in this State or restricting the
provider's operations in this State; or
(b) in relation to a course the accreditation of which was determined by
some other course accrediting body, except to impose conditions preventing the
holder of the accreditation from offering the course in this State or
restricting the circumstances in which the holder of the accreditation may offer
the course in this State.
(3) The Commission may, subject to the regulations (if any), cancel the
registration of a training provider the registration of which was determined by
the Commission if the Commission determines (according to such criteria as the
Commission thinks fit) that this State is no longer the provider's principal
place of business as a training provider.
(4) The Commission may not take action under this section unless the
Commission first—
(a) gives the holder of the registration or accreditation 28 days
written notice of the nature of the action the Commission intends to take
against it; and
(b) takes into account any representations made by the holder of the
registration or accreditation within that period; and
(c) in the case of cancellation of the registration of a training
provider—consults the registering body in each State and Territory where
the provider operates; and
(d) in the case of cancellation of the accreditation of a
course—consults the course accrediting body in each State and Territory
where the course is offered.
(5) Any action to be taken under this section—
(a) must be imposed by written notice to the holder of the registration or
accreditation; and
(b) may have effect at a future time or for a period specified in the
notice.
38—Commission may
issue qualification or statement of attainment in certain
circumstances
(1) The Commission may, on application, issue to a person a qualification
or statement of attainment under the AQF in relation to specified higher
education or vocational education and training offered by a registered training
provider if satisfied that—
(a) the person has achieved the learning outcomes or competencies
necessary to demonstrate that the person possesses and is able to apply the
knowledge and skills acquired; and
(b) the provider is unable (whether because it is no longer registered or
for some other reason) to issue the qualification or statement of
attainment.
(2) An application under this section must—
(a) be made to the Commission in the manner and form approved by the
Commission; and
(b) be accompanied by the fee fixed by regulation.
(3) An applicant must provide the Commission with any information required
by the Commission for the purposes of determining the application.
39—Cancellation of
qualification or statement of attainment
(1) The Commission may cancel a qualification or statement of attainment
issued by a registered training provider (the issuing training
provider) if the Commission is satisfied that the qualification or
statement of attainment was issued by mistake or on the basis of false or
misleading information.
(2) Cancellation must be imposed by written notice to the holder of the
qualification or statement of attainment and the issuing training
provider.
(3) The Commission may not cancel a qualification or statement of
attainment unless the Commission first—
(a) takes all reasonable steps to give the holder of the qualification or
statement of attainment and the issuing training provider 28 days written
notice of its intention to do so; and
(b) takes into account any representations made within that period by the
holder of the qualification or statement of attainment and the issuing training
provider.
40—Commission may
assess and certify competency in certain circumstances
The Commission may assess, by such means as the Commission thinks fit, the
competency of persons who have acquired skills or qualifications otherwise than
under the AQF and, in appropriate cases, having regard to the standards and
outcomes specified in accredited courses or training packages, grant, or arrange
for or approve the granting of, statements certifying that competency.
The Commission may, subject to such conditions as the Commission thinks
fit, provide to another registering body or course accrediting body any
information obtained by the Commission in the course of carrying out its
functions under this Act.
Division 5—Appeal
to District Court
(1) An appeal to the District Court may be made against a decision of the
Commission—
(a) refusing an application for the grant or renewal of registration or
accreditation; or
(b) imposing or varying conditions of registration or accreditation;
or
(c) suspending or cancelling registration or accreditation; or
(d) cancelling a qualification or statement of attainment.
(2) Subject to subsection (4), an appeal must be instituted by a
person within 28 days of the making of the decision appealed against.
(3) The Commission must, if so required by a person affected by a decision
made by it, state in writing the reasons for the decision.
(4) If the reasons of the Commission are not given in writing at the time
of making a decision and the person affected by the decision (within 28 days of
the making of the decision) requires the Commission to state the reasons in
writing, the time for instituting an appeal runs from the time at which the
person receives the written statement of those reasons.
43—Offences
relating to registration and issuing of qualifications
(1) A person must not claim or purport to be a registered training
provider in relation to higher education unless the person is registered as a
training provider in relation to higher education.
Maximum penalty: $5 000.
(2) A person must not issue, or claim or purport to issue, qualifications
or statements of attainment under the AQF in relation to higher education
unless—
(a) the person is a State university; or
(b) the person is—
(i) a declared institution; and
(ii) operating within the terms of the declaration; and
(iii) complying with any other condition of the declaration; or
(c) the person is—
(i) registered as a training provider in relation to higher education;
and
(ii) operating within the scope of the registration of the provider;
and
(iii) complying with any other condition of the registration.
Maximum penalty: $5 000.
(3) A person must not claim or purport to be a registered training
provider in relation to vocational education and training unless the person is
registered as a training provider in relation to vocational education and
training.
Maximum penalty: $5 000.
(4) A person must not issue, or claim or purport to issue, qualifications
or statements of attainment under the AQF in relation to vocational education
and training unless the person is—
(a) registered as a training provider in relation to vocational education
and training; and
(b) operating within the scope of the registration of the provider;
and
(c) complying with any other condition of the registration.
Maximum penalty: $5 000.
(5) A person must not claim or purport to be able to deliver education and
training that will result in the issue of a qualification or statement of
attainment by another person if the person knows that the other person is not
lawfully able to issue the qualification or statement of attainment.
Maximum penalty: $5 000.
(6) This section does not apply to the Commission.
44—Offences
relating to universities, degrees, etc
(1) A person must not claim or purport to be a university unless the
person—
(a) is a State university; or
(b) is an institution declared to be a university under
section 5(1)(a)(i); or
(c) is an institution or an institution of a class prescribed by
regulation; or
(d) has been exempted from the operation of this subsection by the
Minister.
Maximum penalty: $5 000.
(2) A person must not claim or purport to be a university college unless
the person is an institution declared to be a university college under
section 5(1)(a)(ii).
Maximum penalty: $5 000.
(3) A person must not claim or purport to be a specialised university of a
specified kind unless the person is an institution declared to be a specialised
university of that kind under section 5(1)(a)(iii).
Maximum penalty: $5 000.
(4) A person must not claim or purport to be a self-accrediting higher
education institution unless the person is—
(a) a State university; or
(b) an institution declared to be a self-accrediting higher education
institution under section 5(1)(b).
Maximum penalty: $5 000.
(5) An exemption under subsection (1)(d) may be subject to such
conditions as the Minister thinks fit and may, at any time by written notice to
the person, be varied or revoked by the Minister.
(6) Subject to subsection (8), a person must not offer or provide a
course of education and training in relation to which a degree or graduate
qualification is to be conferred (a degree/graduate course)
unless—
(a) the person is—
(i) registered as a training provider under this Part; and
(ii) operating within the scope of the registration; and
(iii) complying with any other condition of the registration;
and
(b) the degree/graduate course is accredited under this Part.
Maximum penalty: $5 000.
(7) Subject to subsection (8), a person must not offer or confer a
degree or graduate qualification unless—
(a) the person is—
(i) registered as a training provider under this Part; and
(ii) operating within the scope of the registration; and
(iii) complying with any other condition of the registration;
and
(b) the degree or graduate qualification is in relation to successful
completion of a degree/graduate course accredited under this Part.
Maximum penalty: $5 000.
(8) Subsections (6) and (7) do not apply to—
(a) a State university; or
(b) a declared institution that is operating within the terms and
complying with the conditions (if any) of the declaration; or
(c) an institution or institution of a class prescribed by regulation that
is operating within the terms and complying with the conditions (if any)
prescribed.
(9) In this section—
degree includes an associate degree;
graduate qualification includes a graduate certificate,
graduate diploma or other post graduate qualification.
Part
4—Apprenticeships/traineeships
(1) In this Part, unless the contrary intention appears—
probationary period for a training contract for a trade
occupation or non-trade occupation—see subsection (2);
remuneration means wages and other monetary benefits of
employment;
standard conditions for a training contract for a trade
occupation or non-trade occupation—see subsection (2);
standard form contract—see
subsection (2);
training plan—see section 46(6).
(2) The Commission may, by notice in the Gazette—
(a) determine a standard form contract for the purposes of
this Part;
(b) determine a probationary period for a training contract
for a specified trade occupation or non-trade occupation;
(c) determine standard conditions for a training contract
for a specified trade occupation or non-trade occupation,
including—
(i) the term of the contract; and
(ii) the qualifications available for a person in the trade occupation or
non-trade occupation; and
(iii) any other condition considered necessary by the
Commission.
(3) The Commission may, by further notice in the Gazette, vary or revoke a
notice under subsection (2).
46—Training
under training contracts
(1) An employer must not undertake to train a person in a trade occupation
except under a training contract.
Maximum penalty: $5 000.
Expiation fee: $315.
(2) Subsection (1) does not apply in relation to the further training
or re-training of a person who has already completed the training required under
a training contract, or who has an equivalent qualification.
(3) An employer may undertake to train a person in a non-trade occupation
under a training contract.
(4) An employer must not enter into a training contract to train a person
unless the employer is—
(a) a registered employer; and
(b) operating within the scope of the registration of the employer;
and
(c) complying with any other condition of the registration.
Maximum penalty: $5 000.
Expiation fee: $315.
(5) 2 or more registered employers may, with the approval of the
Commission, enter into a training contract with the same
apprentice/trainee.
(6) A training contract must—
(a) be in the form of the standard form contract; and
(b) contain the following conditions:
(i) a condition that the apprentice/trainee will be employed by the
employer party to the contract in accordance with the applicable award or
industrial agreement;
(ii) a condition specifying the probationary period for a contract for the
relevant trade occupation or non-trade occupation;
(iii) the standard conditions for a contract for the relevant trade
occupation or non-trade occupation;
(iv) a condition that the apprentice/trainee will be trained and assessed
in accordance with the training plan (to be agreed between the
employer, the apprentice/trainee and a registered training provider chosen
jointly by the employer and the apprentice/trainee);
(v) any other conditions that have been agreed between the employer and
the apprentice/trainee after consultation with the registered training
provider.
(7) An employer under a training contract must comply with the employer's
obligations specified in the contract.
Maximum penalty: $5 000.
Expiation fee: $315.
(8) An apprentice/trainee under a training contract must comply with the
apprentice's/trainee's obligations specified in the contract.
(9) An employer must permit an apprentice/trainee party to a training
contract to carry out his or her obligations under the contract.
Maximum penalty: $5 000.
Expiation fee: $315.
(10) Subject to subsection (11), the time spent by an
apprentice/trainee attending a course as part of his or her
apprenticeship/traineeship will be treated for all purposes as part of the
apprentice's/trainee's employment.
(11) If it is necessary for an apprentice/trainee to re-attend a course
previously undertaken by the apprentice/trainee, the employer has a discretion
as to whether time spent re-attending the course is to be taken into account for
the purpose of determining the wages payable to the
apprentice/trainee.
(12) No person is disqualified from entering into a training contract by
reason of his or her age.
(13) Non-compliance with any of the provisions of this section does not of
itself affect the validity of a training contract.
47—Minister may
enter training contracts
(1) The Minister may enter into a training contract assuming the rights
and obligations of an employer under the contract.
(2) The Minister may not enter into a training contract
except—
(a) on a temporary basis; or
(b) where it is not reasonably practicable for some other employer to
enter into the contract.
48—Approval of
training contracts
(1) An employer must, within 4 weeks after executing a contract by
which the employer undertakes to train a person in a trade occupation, apply to
the Commission for approval of the contract.
Maximum penalty: $5 000.
Expiation fee: $315.
(2) An employer must, within 4 weeks after executing a contract with a
person that is intended to be a training contract under this Part, apply to the
Commission for approval of the contract.
Maximum penalty: $5 000.
Expiation fee: $315.
(3) An application for approval must be made by the employer party to the
contract to the Commission in the manner and form approved by the
Commission.
(4) The applicant must provide the Commission with any information
required by the Commission for the purposes of determining an application for
approval of a contract as a training contract.
(5) The Commission may decline to approve a contract as a training
contract if—
(a) the employer is not a registered employer; or
(b) the contract—
(i) is not in the form of the standard form contract; or
(ii) does not contain conditions required by this Part; or
(iii) is not accompanied by the training plan for the contract;
or
(c) the qualification to which the contract relates is, in the opinion of
the Commission, an inappropriate qualification for a training contract;
or
(d) the employer or apprentice/trainee will be unable, in the opinion of
the Commission, to fulfil the obligations under the contract of the employer or
the apprentice/trainee (as the case may be); or
(e) a term of the contract is, in the opinion of the Commission,
prejudicial to the interests of the apprentice/trainee; or
(f) for any other reason that is, in the Commission's opinion, a proper
reason as to why the contract should not be approved.
(6) The Commission must notify the employer and apprentice/trainee in
writing of the Commission's decision on an application and, if the Commission
approves a contract as a training contract, the date of approval of the
contract.
(7) The date entered in the contract as the date on which the
apprenticeship/traineeship of the person will commence will, from the date of
approval of the training contract, be taken to be the date on which the training
contract commenced.
(8) Except as authorised by the Commission, an employer must not continue
to train a person in a trade occupation if the Commission has declined to
approve the contract entered into with the person for that purpose.
Maximum penalty: $5 000.
Expiation fee: $315.
(1) The Commission may, on the application of the parties to a training
contract (or proposed training contract) for a trade occupation or non-trade
occupation or of its own motion, determine—
(a) that the whole or a part of a period of training that occurred before
the date of the contract be treated as a period of training served under the
contract; or
(b) that the whole or a part of a period of training that occurred under a
previous training contract be treated as a period of training served under the
contract; or
(c) that a period of absence of the apprentice/trainee under the training
contract be excluded from consideration in computing the length of the
apprentice's/trainee's service under the contract.
(2) Subject to subsection (3), the term of a training contract must
be computed and the contract must be construed and must apply in accordance with
a determination made by the Commission under subsection (1).
(3) If a conflict occurs between a determination of the Commission under
this section and a determination of the Industrial Relations Commission, the
determination of the Industrial Relations Commission prevails.
(4) The Commission may, by notice in writing to the parties to a training
contract, increase or reduce the term of the contract.
(5) If the Commission is satisfied of the competence of an
apprentice/trainee or former apprentice/trainee, the Commission may, of its own
motion or on the application of each party to the training contract relating to
the particular apprenticeship/traineeship (whether or not the contract is still
in operation)—
(a) certify that the apprentice/trainee is to be taken to have completed
the training required under the contract; and
(b) if the contract is still in operation—terminate the contract and
relieve the parties to the contract of their obligations under the
contract.
(6) This section does not prevent the extension or reduction of the term
of a training contract by the Industrial Relations Commission.
50—Variation of
training under training contract to part-time or full-time
(1) The Commission may, on application by the parties to a training
contract, vary the contract so that it provides for part-time training instead
of full-time training, or full-time training instead of part-time training, if
to do so is not inconsistent with the award or industrial agreement under which
the apprentice/trainee is employed.
(2) The Commission may, on application by the parties to a school-based
training contract, vary the contract so that it provides for full-time training
or part-time training (as the case requires) when the school-based
apprentice/trainee finishes school.
51—Termination or
suspension of training contract
(1) Subject to this Part, no person, other than the Commission, may
terminate or suspend, or purport to terminate or suspend, a training
contract.
Maximum penalty: $5 000.
Expiation fee: $315.
(2) Subject to this Part, the Commission may, on application or of its own
motion, terminate or suspend a training contract.
(3) An application for termination or suspension of a training contract
must be made to the Commission in the manner and form approved by the
Commission.
(4) An applicant must provide the Commission with any information required
by the Commission for the purposes of determining the application.
(5) The Commission must specify the date on which the training contract
will terminate or be suspended or will be taken to have been terminated or
suspended.
(6) A party to a training contract may, after the commencement of the term
of the contract and within the probationary period, terminate the contract by
written notice to the other party or parties to the contract.
(7) If a training contract is terminated during the probationary period,
the employer under the contract must, within 7 days of the termination, notify
the Commission in writing of the termination.
Maximum penalty: $5 000.
Expiation fee: $315.
52—Transfer of
training contract to new employer
(1) A change in the ownership of a business (or part of a business) does
not result in the termination of a training contract entered into by the former
owner but, where a change in ownership occurs, the rights, obligations and
liabilities of the former owner under the contract are transferred to the new
owner.
(2) If a training contract is transferred or assigned from 1 employer
to another (whether by subsection (1) or otherwise), the employer to whom
the contract is transferred or assigned must, within 21 days of the
transfer or assignment, notify the Commission in writing of the transfer or
assignment.
Maximum penalty: $5 000.
Expiation fee: $315.
53—Offence to
exert undue influence etc in relation to training contracts
(1) A person must not exert undue influence or pressure on, or use unfair
tactics against, a person in relation to entering into a training
contract.
Maximum penalty: $5 000.
(2) A person must not exert undue influence or pressure on, or use unfair
tactics against, a party to a training contract in relation to—
(a) the making of an application to the Commission in relation to the
contract under section 49(5); or
(b) variation of the contract; or
(c) the transfer or assignment of the contract from 1 employer to another;
or
(d) the termination or suspension, or purported termination or suspension,
of the contract.
Maximum penalty: $5 000.
54—Termination/expiry
of training contract and pre-existing employment
If a training contract is entered into between an employer and a person who
is already in the employment of the employer, the termination, or expiry of the
term, of the training contract does not of itself terminate the person's
employment with the employer.
Division
3—Registration of employers
(1) The Commission may, on application, register, or renew the
registration of, an employer who may enter into a training contract as
follows:
(a) in relation to a specified trade occupation—for the training of
a particular apprentice/trainee;
(b) in relation to a specified trade occupation or specified trade
occupations—for training apprentices/trainees generally;
(c) in relation to a specified non-trade occupation—for the training
of a particular apprentice/trainee;
(d) in relation to a specified non-trade occupation or specified non-trade
occupations—for training apprentices/trainees generally.
(2) An application for registration or renewal of registration must be
made to the Commission in the manner and form approved by the
Commission.
(3) An applicant must provide the Commission with any information required
by the Commission for the purposes of determining the application.
(1) Registration of an employer is subject to—
(a) the conditions determined by the Commission as to the operations that
the employer is authorised to conduct by the registration; and
(b) a condition that an apprentice/trainee, or apprentices/trainees of a
specified class, will be managed in a specified way; and
(c) if guidelines have been developed by the Commission—the
condition that the employer will comply with the guidelines, as in force from
time to time; and
(d) any other condition determined by the Commission.
(2) It is an offence for a registered employer to contravene a condition
imposed by the Commission on the registration of the employer.
Maximum penalty: $5 000.
Expiation fee: $315.
(1) The Commission must, in determining whether to register, or renew or
vary the registration of, an employer, and in determining conditions of
registration—
(a) apply the guidelines (if any) developed by the Commission;
and
(b) have regard to the following matters:
(i) the place of employment of the apprentice/trainee;
(ii) the equipment and methods to be used in the training of the
apprentice/trainee;
(iii) the persons who are to supervise the work of the
apprentice/trainee;
(iv) the ratio between the number of apprentices/trainees party to
training contracts with the employer and the number of persons who are to
supervise their work;
(v) any other matter that is, in the opinion of the Commission, relevant
to the registration.
(2) The Commission may not register, renew or vary the registration of a
person under this section unless the Commission is satisfied that the person is
fit and proper to be so registered, or to have the registration so renewed or
varied, taking into account—
(a) the prior conduct of the person or an associate of the person (whether
in this State or elsewhere); and
(b) any other matter that the Commission considers relevant.
(3) In this section, a person is an associate of another
person if—
(a) they are partners; or
(b) they are both trustees or beneficiaries of the same trust, or 1 is a
trustee and the other is a beneficiary of the same trust; or
(c) 1 is a body corporate and the other is a director or a member of the
governing body of the body corporate; or
(d) 1 is a body corporate and the other is a person who has a legal or
equitable interest in 5% or more of the share capital of the body corporate;
or
(e) 1 is an employer or employee of the other; or
(f) 1 is the spouse, domestic partner, parent or child of the other;
or
(g) a chain of relationships can be traced between them under any 1 or
more of the preceding paragraphs.
58—Variation
or cancellation of registration
(1) The Commission may, on application, vary or cancel the registration of
an employer.
(2) An application to vary or cancel the registration must be made to the
Commission in the manner and form approved by the Commission.
(3) An applicant must provide the Commission with any information required
by the Commission for the purposes of determining the application.
(4) For the purposes of this Act, variation of registration
of an employer means variation of the conditions of registration or the
registered details of the employer.
Subject to this Act, registration of an employer remains in force, on
initial grant or renewal, for a period (which may not be longer than
5 years) determined by the Commission.
60—Commission may
cancel, suspend or vary registration
(1) If—
(a) a registered employer contravenes this Act or a corresponding law or a
condition of the registration (whether the contravention occurs in this State or
elsewhere); or
(b) the circumstances are such that it is, in the Commission's opinion, no
longer appropriate that the employer be so registered,
the Commission may do either or both of the following:
(c) impose or vary a condition of the registration;
(d) cancel or suspend the registration.
(2) The Commission may not take action under this section unless the
Commission first—
(a) gives the holder of the registration 28 days written notice of
the nature of the action the Commission intends to take against it;
and
(b) takes into account any representations made by the holder of the
registration within that period.
(1) An appeal to the District Court may be made against a decision of the
Commission—
(a) refusing an application for the grant or renewal of registration of an
employer; or
(b) imposing or varying conditions of registration; or
(c) suspending or cancelling registration.
(2) Subject to subsection (4), an appeal must be instituted by a
person within 28 days of the making of the decision appealed against.
(3) The Commission must, if so required by a person affected by a decision
made by it, state in writing the reasons for the decision.
(4) If the reasons of the Commission are not given in writing at the time
of making a decision and the person affected by the decision (within 28 days of
the making of the decision) requires the Commission to state the reasons in
writing, the time for instituting an appeal runs from the time at which the
person receives the written statement of those reasons.
62—Commission may
inquire into employers
(1) The Commission may, at any time, inquire into an employer, whether
registered or the subject of an application for registration.
(2) The holder of, or applicant for, the registration must provide the
Commission with any information required by the Commission for the purposes of
an inquiry under this section.
Division
4—Compliance notices, misconduct, disputes and
grievances
(1) If it appears that an employer has contravened a provision of this
Act, a member of the Commission, or a person authorised by the Commission to
exercise the powers conferred by this section, may issue a compliance notice
requiring the employer, within a period stated in the notice—
(a) to take specified action to remedy the non-compliance; and
(b) to produce reasonable evidence of the employer's compliance with the
notice.
(2) An employer who fails to comply with a compliance notice within the
time allowed in the notice is guilty of an offence.
Maximum penalty: $5 000.
Expiation fee: $315.
(3) The following applications may, within 14 days after the issue of a
compliance notice under this section, be made to the Industrial Relations
Commission for a review of the notice:
(a) an employer may apply to the Industrial Relations Commission on the
ground that the employer has in fact complied with this Act;
(b) an employee may apply to the Industrial Relations Commission on the
ground that the employer's failure to comply with this Act is more extensive
than stated in the notice.
(4) The Industrial Relations Commission may, at the conclusion of the
review—
(a) confirm the notice; or
(b) confirm the notice with such modification as it thinks fit;
or
(c) cancel the notice.
64—Employer
may suspend apprentice/trainee for serious misconduct
(1) If an employer has reasonable grounds to believe that an
apprentice/trainee employed by the employer is guilty of wilful and serious
misconduct, the employer may (without first obtaining the approval of the
Commission) suspend the apprentice/trainee from employment and must, in that
event—
(a) immediately refer the matter to the Industrial Relations Commission;
and
(b) within 3 days of the suspension—confirm the reference in
writing.
Maximum penalty: $5 000.
Expiation fee: $315.
(2) A suspension under this section must, unless confirmed or extended by
the Industrial Relations Commission under section 65, not operate for more
than 7 working days.
65—Other
matters to be dealt with by Industrial Relations Commission
(1) If—
(a) a dispute arises between parties to a training contract; or
(b) a party to a training contract is aggrieved by the conduct of another
party,
a party to the contract may apply to the Industrial Relations Commission
for consideration of the matter.
(2) If the Commission suspects on reasonable grounds that a party to a
training contract has contravened a provision of the contract or this Act, it
may refer the matter to the Industrial Relations Commission.
(3) The Industrial Relations Commission may, if it thinks fit, by order,
exercise 1 or more of the following powers in relation to a matter before
the Industrial Relations Commission:
(a) it may make recommendations to the Commission about the assessment of
the skills of an apprentice/trainee and, if appropriate, the granting of an
appropriate qualification under the AQF;
(b) it may reprimand a party in default;
(c) it may suspend the employment of an apprentice/trainee (for a period
not exceeding 4 weeks) commencing on a date specified in the
order;
(d) it may confirm, extend (for a period not exceeding 4 weeks) or revoke
a suspension imposed by an employer under section 64 and, in the event of
revocation—
(i) order the employer to pay any remuneration, or compensation for any
non-monetary benefit, to which the apprentice/trainee would, but for the
suspension, have been entitled; and
(ii) order the employer to treat the period of suspension as service for
specified purposes;
(e) it may extend or reduce the term of, or otherwise vary, a training
contract;
(f) it may terminate a training contract as at the date specified in the
order;
(g) it may order an employer to pay any remuneration to which an
apprentice/trainee is entitled;
(h) it may order an employer to pay compensation for any breach of the
training contract;
(i) it may order a party to a training contract to take any other action
that, in the opinion of the Industrial Relations Commission, the party is
required to take under the contract or under this Part;
(j) it may excuse a party to a training contract from performing 1 or
more of his or her obligations under the contract;
(k) it may order that, for the purpose of computing the period of training
that has been served by an apprentice/trainee, a specified period or specified
periods be excluded;
(l) it may vary, suspend or cancel the registration of an employer granted
by the Commission under this Part;
(m) it may order an employer not to employ any apprentices/trainees in
addition to those named in the order without the approval of the Industrial
Relations Commission;
(n) it may make any consequential orders that the Industrial Relations
Commission thinks necessary or expedient.
(4) The Commission may, without further inquiry, accept and act on any
recommendation of the Industrial Relations Commission under this
Division.
(5) The term of a training contract must be computed and the contract must
be construed and must apply in accordance with an order made by the Industrial
Relations Commission under this Division.
(6) The cancellation or suspension of the registration of an employer by
the Industrial Relations Commission under this Division may relate to a
particular apprentice/trainee or to all apprentices/trainees employed by the
employer.
(7) Notice must be given by the Industrial Relations Commission to the
Commission of the outcome of any application or reference of a matter under this
Division.
(8) A person must not contravene an order of the Industrial Relations
Commission under this Division.
Maximum penalty: $5 000.
(9) An application to the Industrial Relations Commission under
subsection (1) must be made during the term of the relevant training
contract or within 6 months after the expiry, termination or cancellation of the
relevant training contract.
(10) The Industrial Relations Commission may extend the time within which
any such application may be made.
(11) In this section—
party to a training contract or party includes
a person who was formerly a party to a training contract.
66—Holding of
conciliation conferences compulsory
(1) Proceedings (other than applications for review of a compliance notice
issued under section 63) before the Industrial Relations Commission under
this Division are proceedings to which Chapter 5, Part 1, Division 4A of the
Fair Work Act 1994 applies.
Note—
That Division of that Act provides for the holding of compulsory
conciliation conferences.
(2) If a conciliation conference before the Industrial Relations
Commission is held in proceedings relating to a suspension under
section 64, the member presiding at the conference—
(a) is not required to give a preliminary assessment or to make a
recommendation under section 155B(3) of the Fair Work Act 1994;
and
(b) if the proceedings are not resolved by conciliation or
withdrawn—is not disqualified from further involvement in the proceedings
by reason only of the fact that he or she presided at the conference.
67—Representation
in proceedings before Industrial Relations Commission
(1) The following provisions govern representation in proceedings (other
than appellate proceedings) before the Industrial Relations Commission under
this Division:
(a) representation of a party by a legal practitioner or registered agent
will not be permitted;
(b) if a party to the proceedings is a body corporate—the Industrial
Relations Commission may, if the party seeks to be represented by an officer or
employee who is not a legal practitioner or registered agent, permit such
representation;
(c) if a party to the proceedings satisfies the Industrial Relations
Commission that he or she will be disadvantaged in the proceedings if he or she
is not represented by another person—the Industrial Relations Commission
may permit the party to be represented by a person who is not a legal
practitioner or registered agent, but only if that person is acting
gratuitously.
(2) In this section—
registered agent means a person who is a registered agent
under the Fair Work Act 1994.
68—Participation
of assessors and other experts in proceedings before Industrial Relations
Commission
(1) In any proceedings (other than those to which subsection (2)
applies) before the Industrial Relations Commission under this Division, the
Industrial Relations Commission—
(a) must sit with assessors selected in accordance with Schedule 1;
and
(b) may select an expert in accordance with Schedule 1 to advise the
Industrial Relations Commission in relation to a matter relating to the
proceedings.
(2) In proceedings to which this subsection applies before the Industrial
Relations Commission under this Division, the Industrial Relations Commission
has complete discretion to do either or both of the following:
(a) sit with assessors selected in accordance with Schedule 1;
(b) select an expert in accordance with Schedule 1 to advise the
Industrial Relations Commission in relation to a matter relating to the
proceedings.
(3) Subsection (2) applies to the following proceedings:
(a) a conference under Chapter 5, Part 1, Division 4A of the Fair
Work Act 1994;
(b) proceedings for the purposes of—
(i) dealing with preliminary, interlocutory or procedural matters;
or
(ii) dealing with questions of costs; or
(iii) entering consent orders;
(c) a part of the proceedings relating only to questions of law;
(d) appellate proceedings.
69—Relation to
other Acts and awards etc
(1) This Act and any statutory instrument made under this Act prevail to
the extent of any inconsistency over the Fair Work Act 1994 and any
regulation, award or other determination, enterprise agreement or industrial
agreement made under that Act or an Act repealed by that Act.
(2) Despite subsection (1), a provision of an award or other
determination, enterprise agreement or industrial agreement made under the
Fair Work Act 1994 or an Act repealed by that Act requiring
employers to employ apprentices/trainees in preference to junior employees
remains in full force.
70—Making and
retention of records
(1) An employer who employs an apprentice/trainee must keep records as
required by the Commission by notice in the Gazette.
Maximum penalty: $5 000.
Expiation fee: $315.
(2) An employer must retain a record kept under subsection (1) for at
least 7 years after the expiry or termination of the training contract to
which the record relates.
Maximum penalty: $5 000.
Expiation fee: $315.
71—Training and
Skills Register
(1) The State register under the repealed Act continues in existence as
the Training and Skills Register (the Register) under this
Act.
(2) The Commission must ensure that the following matters are recorded in
the Register:
(a) details of the declarations (if any) made by the Minister under
section 5;
(b) the registration of training providers and accreditation of courses
under Part 3;
(c) the variation, cancellation, suspension or expiry of the registration
of a training provider or accreditation of a course under Part 3;
(d) the registration of employers under Part 4;
(e) the variation, cancellation, suspension or expiry of the registration
of an employer under Part 4;
(f) any other matter that, in the opinion of the Commission, should be
recorded in the Register.
(3) The Register will be kept in the form of a computer record and
published on a website determined by the Commission.
(4) The Register is to be available for inspection, without fee, during
ordinary office hours at a public office, or public offices, determined by the
Commission.
(5) The Commission must ensure that copies of material on the Register can
be purchased for a reasonable fee at the public office, or public offices, at
which the Register is kept available for inspection.
72—Provision of
information to/by prescribed authority
(1) The Commission or the Training Advocate may, by notice in writing,
request a prescribed authority to provide the Commission or Training Advocate
(as the case may be) with information about—
(a) an applicant for registration under Part 3;
(b) a training provider; or
(c) a student or prospective student of a training provider; or
(d) an applicant for registration under Part 4; or
(e) a registered employer; or
(f) an apprentice/trainee; or
(g) any other matter relating to the functions of the Commission or the
Training Advocate under this Act.
(2) A prescribed authority—
(a) is authorised to comply with a request under subsection (1);
and
(b) must comply with such a request within a reasonable time.
(3) The Commission may, subject to such conditions as the Commission
thinks fit, provide to a prescribed authority information obtained by the
Commission in the course of carrying out its functions under this Act.
(4) The Training Advocate may, subject to such conditions as the Training
Advocate thinks fit, provide to a prescribed authority information obtained by
the Training Advocate in the course of carrying out his or her functions under
this Act.
(5) In this section—
prescribed authority means—
(a) an agency or instrumentality of the Crown; or
(b) a person or authority prescribed by regulation.
73—Other powers
of Commission, Training Advocate, etc
(1) For the purposes of this Act, a member of the Commission, the Training
Advocate, or a person authorised by the Commission or the Training Advocate (an
authorised person), may exercise any 1 or more of the following
powers:
(a) an authorised person may question any person—
(i) in relation to Part 3—about the delivery or provision of
education and training or other services;
(ii) in relation to Part 4—about—
(A) the delivery or provision of education or training; or
(B) the employment of an apprentice/trainee;
(b) an authorised person may require the production of any record or
document required to be kept by or under this Act and inspect, examine or copy
it;
(c) an authorised person may enter and inspect, at any reasonable time,
the following places or premises or anything in the following places or
premises:
(i) a place or premises in which education or training is provided,
including a place or premises in which a person undertakes the practical
component of any such course;
(ii) a place or premises in which an apprentice/trainee is
employed.
(2) An authorised person must, when exercising a power under this
section—
(a) carry an identity card in a form approved by the Commission;
and
(b) produce the identity card at the request of a person in relation to
whom the power is being exercised.
(3) A person must not—
(a) hinder or obstruct an authorised person in the exercise of a power
conferred by this section; or
(b) refuse or fail to answer truthfully to the best of the person's
knowledge or belief a question put to the person under this section;
or
(c) without lawful excuse, fail to comply with a requirement made under
this section.
Maximum penalty: $5 000.
(4) A person is not obliged to answer a question under this section if the
answer would tend to incriminate the person or make the person liable to a
penalty.
(1) No civil liability attaches to any of the following persons for an act
or omission in the exercise or performance, or purported exercise or performance
of powers, functions or duties conferred or imposed by or under this Act or
another Act or any law:
(a) a member of the Commission;
(b) a member of a committee of the Commission;
(c) the Training Advocate;
(d) a person authorised by the Commission or the Training
Advocate;
(e) a member of a reference group established under Part 2 Division
3.
(2) An action that would, but for subsection (1), lie against a
person lies instead against the Crown.
(3) This section does not prejudice rights of action of the Crown in
respect of an act or omission not in good faith.
75—False or
misleading information
A person must not make a statement that is false or misleading in a
material particular (whether by reason of the inclusion or omission of any
particular) in any information provided under this Act.
Maximum penalty: $5 000.
76—Evidentiary
provision relating to registration
(1) In proceedings for an offence against Part 3, an allegation in the
complaint that—
(a) a training provider was or was not at a specified time registered;
or
(b) the registration of a training provider was at a specified time
subject to specified conditions; or
(c) a registered training provider was at a specified time acting outside
the scope of the registration of the provider,
will be accepted as proved in the absence of proof to the
contrary.
(2) In proceedings for an offence against Part 4—
(a) an allegation in the complaint that a training contract was or was not
at a specified time approved will be accepted as proved in the absence of proof
to the contrary; and
(b) an allegation in the complaint that—
(i) an employer was or was not at a specified time registered;
or
(ii) the registration of an employer was at a specified time subject to
specified conditions,
will be accepted as proved in the absence of proof to the
contrary.
77—Gazette
notices may be varied or revoked
A notice published in the Gazette by the Commission under this Act may be
varied or revoked by the Commission by subsequent notice in the
Gazette.
A notice or other document required or authorised to be given to or served
on a person under this Act may be given or served personally or by
post.
(1) The Governor may make such regulations as are contemplated by, or
necessary or expedient for the purposes of, this Act.
(2) Without limiting the generality of subsection (1), the
regulations may—
(a) impose conditions on the Commission in the exercise of its powers in
relation to training providers the registration of which was determined by a
registering body other than the Commission; and
(b) make provision with respect to the contents of the Register;
and
(c) fix, or provide for the Minister or the Commission to fix, fees and
provide for the payment, recovery, waiver or refund of fees; and
(d) impose a penalty, not exceeding $5 000, for contravention of a
regulation.
Schedule
1—Appointment and selection of assessors and other experts for Industrial
Relations Commission proceedings under Part 4
Division 1—Assessors
(a) on the advice of the Commission and after consultation with State
employer associations—establish a panel of not more than 5 persons
who may sit with the Industrial Relations Commission as assessors in proceedings
under Part 4; and
(b) on the advice of the Commission and after consultation with the United
Trades and Labor Council—establish a panel of not more than 5 persons
who may sit with the Industrial Relations Commission as assessors in proceedings
under Part 4.
2 Membership of a panel must include
persons who together have, in the Minister's opinion, the abilities and
experience required for the effective performance of the Industrial Relations
Commission's functions under Part 4.
3 A member of a panel will be appointed
by the Minister for a term of office not exceeding 2 years and on
conditions determined by the Minister and specified in the instrument of
appointment.
4 A member of a panel will, on the
expiration of a term of office, be eligible for reappointment.
5 Subject to clause 6, in
proceedings before the Industrial Relations Commission in which assessors are to
sit, the member of the Industrial Relations Commission presiding at the
proceedings must select 1 member from each of the panels for the purposes
of those proceedings.
6 A member of a
panel who has a personal or a direct or indirect pecuniary interest in a matter
before the Industrial Relations Commission is disqualified from participating in
the hearing of the matter.
7 If an assessor dies or is for any
reason unable to continue with any proceedings, the Industrial Relations
Commission constituted of the member of the Industrial Relations Commission who
is presiding at the proceedings and the other assessor may, if the presiding
member so determines, continue and complete the proceedings.
Division 2—Experts
8 The Minister may
establish, as the Minister considers necessary, another panel of persons with
expertise in higher education and vocational education and training to provide
advice to the Industrial Relations Commission in proceedings under Part
4.
9 In proceedings under Part 4, the member
of the Industrial Relations Commission presiding at the proceedings may, if of
the opinion that the provision of expert advice on a matter under consideration
would expedite the proceedings, select a member of the panel referred to in
clause 8 for that purpose.
Schedule
2—Related amendments, repeal and transitional
provisions
Part 1—Preliminary
In this Schedule, a provision under a heading referring to the amendment of
a specified Act amends the Act so specified.
Part 2—Amendment of Fair Work
Act 1994
2—Amendment of
section 4—Interpretation
Section 4(1), definition of apprentice—delete
"Training and Skills Development Act 2003" and substitute:
Training and Skills Development Act 2008
3—Amendment of
section 26—Jurisdiction of Commission
(1) Section 26(e)—after "referral of a matter" insert:
or an application
(2) Section 26(e)—delete "Training and Skills Development
Act 2003" and substitute:
Training and Skills Development Act 2008
4—Amendment of
section 40—Constitution of Commission
(1) Section 40(1)—delete "The" and substitute:
Subject to this section, the
(2) Section 40—after subsection (1) insert:
(2) If under an Act conferring a jurisdiction on the Commission, the
Commission is to sit with assessors in exercising that jurisdiction, then the
following provisions apply:
(a) in any proceedings in which a party seeks the exercise of the relevant
jurisdiction the Commission will, subject to paragraph (b), sit with
assessors selected in accordance with the Act conferring the
jurisdiction;
(b) the Commission is not required to sit with assessors—
(i) for the purposes of—
(A) dealing with preliminary, interlocutory or procedural matters;
or
(B) dealing with questions of costs; or
(C) entering consent orders; or
(ii) for a part of the proceedings relating only to questions of
law,
and may, for that purpose or as a consequence, while sitting without
assessors, make any ruling, order or judgment (including a final judgment) it
considers appropriate;
(c) where the Commission sits with assessors—
(i) questions of law or procedure will be determined by the member of the
Commission presiding at the proceedings; and
(ii) other questions will be determined by majority opinion.
5—Amendment of
section 105A—Application of Part
Section 105A(1)—delete "to a non-award employee whose remuneration
immediately before the dismissal took effect is $66 200 (indexed) or more a
year." and substitute:
—
(a) to a non-award employee whose remuneration immediately before the
dismissal took effect is $100 322 (indexed) or more a year; or
(b) to an employee who is an apprentice under a training contract under
the Training and Skills Development Act 2008.
Note—
An apprentice may apply to the Commission under Part 4 of the Training
and Skills Development Act 2008 in respect of any dispute or grievance
involving his or her employer.
6—Amendment of
section 151—Representation
Section 151(2)(a)—delete paragraph (a) and substitute:
(a) the right of representation—
(i) if another Act confers a jurisdiction on the Court or the
Commission—may be qualified by that other Act; and
(ii) otherwise is qualified by the provisions restricting representation
at a conference under this Act; and
7—Amendment of
section 155—Nature of relief
(1) Section 155(1)—after "this Act" insert:
or any other Act
(2) Section 155(3)—delete "this Act" and substitute:
the Act under which the granting of the relief is authorised
8—Substitution of
section 155A
Section 155A—delete section 155A and substitute:
155A—Application of Division
This Division applies to the following proceedings:
(a) proceedings founded on—
(i) a monetary claim;
(ii) a claim for relief against unfair dismissal;
(b) if another Act conferring a jurisdiction on the Court or Commission in
relation to certain proceedings so provides—those proceedings.
9—Amendment of
section 207—Right of appeal
Section 207(1)(a)—after "single member" insert:
or a single member sitting with assessors
Part 3—Repeal of Training and Skills Development
Act 2003
The Training and Skills Development Act 2003 is
repealed.
Part 4—Transitional provisions
(1) On the commencement of Part 3 of this Schedule—
(a) the offices of the members of the Training and Skills Commission
established under the repealed Act are vacated;
(b) the offices of the members of the Grievances and Disputes Committee
established under the repealed Act are vacated;
(c) the offices of the members of any committee established by the
Training and Skills Commission under the repealed Act are vacated;
(d) the offices of the members of any panel established by the Minister
for the purpose of constituting the Grievances and Disputes Committee under the
repealed Act are vacated;
(e) the offices of the members of any reference group established by the
Minister under the repealed Act are vacated.
(2) Subject to this Act, a declaration that an occupation is a trade or a
declared vocation in force under section 5 of the repealed Act immediately
before the commencement of section 6 of this Act will be taken to be a
declaration under that section of this Act that the occupation is a trade
occupation or a non-trade occupation (as the case requires).
(3) Subject to this Act, registration or accreditation in force under Part
3 of the repealed Act immediately before the commencement of Part 3 of this Act
will continue in force for the unexpired portion of the term for which the
registration or accreditation was granted, or last renewed, as registration or
accreditation under Part 3 of this Act.
(4) Subject to this Act, if an employer was, immediately before the
commencement of Part 4 of this Act —
(a) an approved employer within the meaning of Part 4 of the repealed Act;
and
(b) party to a contract of training under Part 4 of the repealed
Act,
the employer will be taken to have been registered under Part 4 of this Act
(with registration for a period of 5 years to be taken to have come into force
immediately before the commencement of Part 4 of this Act).
(5) Subject to this Act, a contract of training in force under Part 4 of
the repealed Act immediately before the commencement of Part 4 of this Act will
continue in force as a training contract under Part 4 of this Act.
(6) Subject to this Act, a suspension, order or decision of the Grievances
and Disputes Mediation Committee in force under the repealed Act immediately
before the commencement of Part 4 of this Act will continue in force as a
suspension, order or decision of the Industrial Relations Commission under Part
4 of this Act.
(7) If, immediately before the commencement of Part 4 of this Act, a
matter has, under section 19(7) of the repealed Act, been referred by the
Commission (acting at the direction of the Minister) to the Grievances and
Disputes Mediation Committee (GDMC) for review but the GDMC has
not yet completed the review, the matter will be taken to be the subject of an
appeal under section 207 of the Fair Work Act 1994—
(a) as if the decision or order of the GDMC at first instance were a
determination of the Industrial Relations Commission; and
(b) as if the party who made the request of the Minister for the giving of
the direction were the appellant,
(and the provisions of Chapter 5, Part 3, Division 4 of that Act will apply
to the appeal).
(8) A reference in an Act or an instrument or document—
(a) to the Training and Skills Commission is to be read as a reference to
the Training and Skills Commission established under this Act and is to be
construed accordingly;
(b) to a training organisation is to be read as a reference to a training
provider and is to be construed accordingly;
(c) to an occupation as a trade or declared vocation is to be read as a
reference to an occupation that is a trade occupation or a non-trade occupation
declared as such under section 6 of this Act and is to be construed
accordingly;
(d) to an apprentice/trainee under a contract of training is to be read as
a reference to an apprentice/trainee under a training contract and is to be
construed accordingly;
(e) to a contract of training is to be read as a reference to a training
contract and is to be construed accordingly;
(f) to an approved employer is to be read as a reference to a registered
employer and is to be construed accordingly.