New South Wales: Apprenticeship and Traineeship Act 2001 (NSW)

Apprenticeship and Traineeship Act 2001 No 80 An Act to provide for the regulation of apprenticeships and traineeships; to repeal the Industrial and Commercial Training Act 1989; and for other purposes. Part 1 Preliminary 1 Name of Act This Act is the Apprenticeship and Traineeship Act 2001. 2 Commencement This Act commences on a day or days to be appointed by proclamation. 3 Definitions (1) Words and expressions that are defined in the Dictionary at the end of this Act have the meanings given to them by the Dictionary. (2) Notes included in this Act do not form part of this Act. 3A Application of National Vocational Education and Training Regulator Act 2011 (Cth) (1) In this section: Commonwealth Act means the National Vocational Education and Training Regulator Act 2011 of the Commonwealth. State apprenticeship and traineeship regulation provisions means the provisions of this Act and the regulations: (a) regulating organisations providing training, assessment or instruction in relation to a recognised trade vocation or a recognised traineeship vocation, and (b) providing for the approval by or under this Act of training, assessment or instruction provided by organisations, and (c) providing for the standards to be complied with under this Act by organisations, and (d) providing for the exercise of investigative powers, sanctions and enforcement by or under this Act in relation to such matters. (2) The State apprenticeship and traineeship regulation provisions are declared to be an excluded matter for the purposes of section 10 of the Commonwealth Act in relation to section 9 (Immunity from State and Territory laws) of the Commonwealth Act to the extent that section 9 would prevent the application of the State apprenticeship and traineeship regulation provisions to an NVR registered training organisation (within the meaning of the Commonwealth Act) providing training, assessment or instruction in relation to a recognised trade vocation or a recognised traineeship vocation. (3) Without limiting subsection (2), each provision of this Act (and of any regulations made under this Act) is declared to be a VET legislation displacement provision for the purposes of section 11 of the Commonwealth Act generally. Part 2 Apprenticeships and traineeships Division 1 Preliminary 4 Vocational training guidelines (1) The Commissioner may from time to time issue guidelines (vocational training guidelines) in relation to the exercise of functions under this Act by persons involved in the administration of this Act. (2) It is the duty of any person involved in the administration of this Act to comply with the requirements of the vocational training guidelines. (3) Copies of each vocational training guideline must be made available for public inspection on the Internet and, during ordinary office hours, at the offices of the Department. 5 Recognised trade and traineeship vocations (1) The Commissioner, by order published in the Gazette: (a) may designate any vocation to be a recognised trade vocation in connection with the establishment of apprenticeships under this Act, and (b) may designate any vocation (including any vocation that forms part of a recognised trade vocation) to be a recognised traineeship vocation in connection with the establishment of traineeships under this Act. (2) In making such an order, the Commissioner must comply with the relevant vocational training guidelines. 6 Vocational training orders (1) The Commissioner may from time to time make orders (vocational training orders) specifying the following matters in relation to the training that an apprentice or trainee who is employed in a recognised trade vocation or recognised traineeship vocation is required to undertake in connection with that vocation: (a) the appropriate term or terms for apprenticeships or traineeships in that vocation, (b) the appropriate probationary period or periods for apprenticeships or traineeships in that vocation, having regard to the term or terms specified for them under paragraph (a), (c) the qualification or qualifications that may be awarded in relation to an apprenticeship or traineeship in that vocation, (c1) the units of competency forming part of the training for that vocation, (d) any other training to be provided in addition to the training required for an appropriate qualification, (e) such other matters relating to the training of apprentices or trainees in that vocation as the Commissioner considers appropriate. (2) The appropriate term to be specified in a vocational training order in relation to an apprenticeship or traineeship may vary according to: (a) specified training that has previously been completed by the proposed apprentice or trainee, and (b) specified qualifications that have previously been awarded to the proposed apprentice or trainee, and (c) specified conditions to be complied with by the proposed employer, or by the proposed apprentice or trainee, under an apprenticeship or traineeship. (3) In making a vocational training order, the Commissioner: (a) must consult with the relevant industry groups, and (b) must comply with the vocational training guidelines. (4) Notice of the making of a vocational training order must be published in the Gazette. (5) Such a notice must identify the order, indicate when the order is to take effect, contain brief particulars of the substance of the order and state that a copy of the order may be obtained from the offices of the Department. (6) Copies of each vocational training order must be made available for public inspection on the Internet and, during ordinary office hours, at the offices of the Department. Editorial note— For orders under this section see the Department of Industry website at https://www.training.nsw.gov.au/promotions/apprenticeships_traineeships.html. Division 2 Establishment of apprenticeships and traineeships Note— Certain information relating to apprenticeships and traineeships established under this Division (including the names of the employer and apprentice or trainee) is required to be recorded in the register of apprenticeships and traineeships (see Division 5). Registration of a person as an employer or apprentice or trainee may render the person eligible for certain payments available under State or Commonwealth incentive schemes. Eligibility for those payments may be affected by changes in circumstances such as a variation of the training contract or training plan approved under this Division in relation to the apprenticeship or traineeship or the transfer, suspension or cancellation of the apprenticeship or traineeship. 7 Applications to establish apprenticeships and traineeships (1) An employer who employs, or proposes to employ, a person as an apprentice or trainee may apply to the Commissioner for the establishment of: (a) an apprenticeship in a recognised trade vocation, or (b) a traineeship in a recognised traineeship vocation. (2) Within 28 days after the date on which an employer employs a person as an apprentice or trainee, the employer must, if he or she has not already done so, apply to the Commissioner for the establishment of the relevant apprenticeship or traineeship. Maximum penalty: 100 penalty units. (3) The application: (a) must be accompanied by the proposed training contract (as executed by the prospective employer and prospective apprentice or trainee), and (a1) must be accompanied by the training plan proposal (as endorsed by the relevant registered training organisation), and (b) must identify the industrial award or agreement that applies to the apprenticeship or traineeship concerned, and (c) must indicate the date on which the prospective apprentice or trainee began to work, or will begin to work, for the employer as an apprentice or trainee, and (d) (Repealed) (e) in the case of an application by an employer who proposes to place the apprentice or trainee with a host employer from the commencement of the apprenticeship or traineeship, must indicate the name, business address, ACN (if any) and ABN of the host employer with whom the apprentice or trainee is initially to be placed, and (f) in the case of an application for a traineeship, must indicate whether the prospective trainee is an existing worker trainee. (4) A training plan proposal is a document prepared by the prospective employer and prospective apprentice or trainee outlining the following matters in relation to the proposed apprenticeship or traineeship: (a) the proposed arrangements for the provision of training to the prospective apprentice or trainee, (b) the appropriate qualification or qualifications proposed to be awarded to the prospective apprentice or trainee. (5) The proposed training contract and training plan proposal: (a) must be set out in the form approved by the Commissioner, and (b) must be prepared in accordance with the relevant vocational training order. (5A) The Commissioner may require the applicant to lodge with the application a training plan for the proposed apprenticeship or traineeship instead of a training plan proposal. (5B) An application under this section may be made on behalf of the employer by an agent of the employer approved by the Commissioner if the agent certifies that the relevant training contract and any associated documentation have been duly executed by the parties to the contract. (5C) The Commissioner may refuse to accept applications lodged by a particular agent (and must notify the relevant applicants accordingly) if the agent fails to comply with this section or any requirement of the regulations in relation to any application lodged by the agent. (5D) The establishment of a trainee apprenticeship is not permitted under this Act, even if the relevant industrial award or agreement recognises that the apprenticeship may be undertaken as a trainee apprenticeship. (6) An application under this section may not be made by a prohibited employer contrary to a prohibition order. (7) The regulations may make provision for or with respect to applications under this section. 8 Determination of applications (1) The Commissioner must deal with an application for the establishment of an apprenticeship or traineeship: (a) by approving the application, or (b) by dismissing the application, or (c) (Repealed) (2) (Repealed) (3) The Commissioner may, but is not required to, deal with an application made more than 28 days after the date on which the prospective apprentice or trainee began working for the employer as an apprentice or trainee. (4) As soon as practicable after an application is determined, the Commissioner must notify the applicant and the relevant registered training organisation of the determination. 9 Dismissal of certain applications (1) An application for establishment of an apprenticeship or traineeship must be dismissed unless the Commissioner is satisfied: (a) that the employer can provide the work-based component of the required training in the relevant vocation, and (a1) that the employer will employ the apprentice or trainee under conditions that do not contravene the relevant industrial award or agreement, and (a2) that the apprentice or trainee is capable of undertaking the required training in the relevant vocation, and (a3) that the proposed training contract has been prepared in accordance with the relevant vocational training order, and (a4) that the employment provided, or to be provided, by the employer complies with the relevant vocational training order, and (b) in the case of an application by an employer who proposes to place the apprentice or trainee with a host employer from the commencement of the apprenticeship or traineeship, that the host employer with whom the apprentice or trainee is initially to be placed is available to provide appropriate training to the apprentice or trainee. (2) (Repealed) 10 Vocational training directions (1) When dealing with an application for the establishment of an apprenticeship or traineeship, the Commissioner may issue a direction (a vocational training direction) in relation to the proposed apprenticeship or traineeship. (2) A vocational training direction may do any one or more of the following: (a) it may reduce or extend the term of the apprenticeship or traineeship, (b) it may approve alternative training to be undertaken by the apprentice or trainee. (3) In making a vocational training direction, the Commissioner: (a) must have regard to any relevant training that the apprentice or trainee has received: (i) whether as an apprentice or trainee or otherwise, and (ii) whether in the particular vocation or in some other vocation, and (iii) whether in New South Wales or elsewhere, and (b) may have regard to any other matter that the Commissioner considers relevant, and (c) must comply with the vocational training guidelines. (4) If a vocational training direction is made that affects the provisions of the proposed training contract: (a) a copy of the contract (appropriately amended) must be returned to the applicant for execution, and (b) the application is not to be further dealt with until the contract (as amended) is duly executed and returned to the Commissioner. 11 Withdrawal from apprenticeship or traineeship during probationary period (1) At any time during the apprentice's or trainee's probationary period, and whether or not a training contract is in force, either the employer or the apprentice or trainee may, by notice in writing addressed to the other, withdraw from the apprenticeship or traineeship. (2) An application for the establishment of an apprenticeship or traineeship is taken to have been withdrawn, and need not be dealt with, if notice is given to the Commissioner, before the application is dealt with, that the employer or the apprentice or trainee has withdrawn from the apprenticeship or traineeship during the probationary period. 12 Training contracts (1) A training contract has effect as if it were a deed duly executed by the employer and the apprentice or trainee. (2) Subject to section 11: (a) the training contract for an apprenticeship binds the employer and the apprentice: (i) from the time the employer is notified that the establishment of the apprenticeship has been approved, or (ii) from the end of the probationary period, whichever is the later, until the end of the term of the apprenticeship, and (b) (Repealed) (c) the training contract for a traineeship binds the employer and the trainee: (i) from the time the employer is notified that the establishment of the traineeship has been approved, or (ii) from the end of the probationary period, whichever is the later, until the end of the term of the traineeship. (2A) A reference in this section to a training contract is a reference to the training contract most recently executed by the employer and apprentice or trainee, as varied in accordance with this Act. (3) Any time during which an employer has employed a person as an apprentice or trainee is taken to form part of the term of the person's apprenticeship or traineeship. 12A Training plans (1) A training plan is to be prepared in respect of each apprenticeship or traineeship. (2) A training plan for an apprenticeship or traineeship is a document prepared in accordance with the relevant vocational training order that indicates, in particular: (a) the arrangements for the provision of training to the apprentice or trainee that have been agreed to by the employer and the relevant registered training organisation, and (b) the appropriate qualification or qualifications to be awarded to the apprentice or trainee in relation to the apprenticeship or traineeship, and (c) the units of competency forming part of the training for the relevant vocation. (3) The training plan is to be prepared by the relevant registered training organisation in relation to the apprenticeship or traineeship in consultation with the employer and the apprentice or trainee. (4) The training plan is to be lodged with the application for the establishment of the apprenticeship or traineeship, if required by the Commissioner. (5) If a training plan was not required to be lodged with the application, the relevant registered training organisation must prepare the plan within 12 weeks after the organisation is notified that the establishment of the apprenticeship or traineeship has been approved. Maximum penalty: 50 penalty units. (6) A training plan is to be in the form approved by the Commissioner. (7) The relevant registered training organisation in relation to the apprenticeship or traineeship to which a training plan relates must: (a) keep a copy of the training plan, in a manner approved by the Commissioner, for the period specified by the Commissioner, and (b) make the training plan available for inspection on request by the Commissioner. Maximum penalty: 50 penalty units. 13 Duties of employers under apprenticeships and traineeships (1) The employer of an apprentice or trainee must, in accordance with the relevant training plan, take all reasonable steps: (a) to enable the apprentice or trainee to receive the work-based component of the required training, in particular by providing all necessary facilities and opportunities to acquire the competencies of the vocation concerned, and (b) to enable the apprentice or trainee to obtain an appropriate qualification for that vocation, in particular: (i) by releasing the apprentice or trainee as required for attendance at the relevant registered training organisation, and (ii) by liaising with the relevant registered training organisation in relation to the apprentice's or trainee's attendance and participation in the training provided by the relevant registered training organisation. (2) The employer of an apprentice or trainee must discharge his or her obligations under the apprenticeship or traineeship as an employer of the apprentice or trainee. 14 Duties of employers using host employment arrangements (1) An employer that places an apprentice or trainee with a host employer under a host employment arrangement remains liable to fulfill the obligations imposed on the employer by this Act, but is taken to have fulfilled those obligations if they have been fulfilled by the host employer. (2) Without limiting subsection (1), an employer that places an apprentice or trainee with a host employer under a host employment arrangement: (a) must place the apprentice or trainee with host employers in a manner that ensures that the apprentice or trainee receives the work-based component of the required training in all aspects of the apprenticeship or traineeship, and (b) must properly supervise any such host employer in its provision of the required training to the apprentice or trainee, in particular: (i) by ensuring that the host employer releases the apprentice or trainee as required for attendance at the relevant registered training organisation, and (ii) by liaising with the relevant registered training organisation in relation to the apprentice's or trainee's attendance and participation in the training provided by the relevant registered training organisation. (3) An employer (the principal employer) must not place an apprentice or trainee with a host employer if the principal employer knows: (a) that the host employer is a prohibited employer, and (b) that the employment of the apprentice or trainee by the host employer would be contrary to the relevant prohibition order. Maximum penalty: 200 penalty units. (4) (Repealed) 15 Duties of employers to notify Commissioner of certain matters (1) In relation to each apprentice or trainee that he or she employs, an employer must notify the Commissioner of the following matters within 14 days after the matter arises: (a) any injury to the apprentice or trainee that adversely affects the apprentice's or trainee's ability to continue or complete the apprenticeship or traineeship, (b) any failure by the apprentice or trainee to make satisfactory progress in learning the competencies of the relevant vocation, (c) any change in the relevant registered training organisation attended by the apprentice or trainee, (d) any failure by the apprentice or trainee to participate in, or make satisfactory progress in, the training provided by the relevant registered training organisation, (e) in the case of an employer who places the apprentice or trainee with host employers, any matter that is likely to have an adverse effect on the completion of the apprenticeship or traineeship by the apprentice or trainee, including: (i) any difficulties encountered by the employer in finding host employers, and (ii) any difficulties encountered by the apprentice or trainee in relation to any host employer, whether in relation to training or employment or otherwise, (f) any notice given to the apprentice or trainee of the employer's intention to terminate the employment of the apprentice or trainee. (2) An employer must also notify the Commissioner of the following matters within 14 days after the matter arises: (a) any change in the name under which the employer carries on business or in the address from which the employer carries on business, (b) any change in the nature of the employer's business that adversely affects the employer's ability to comply with his or her obligations under this Act. 16 Duties of apprentices and trainees under apprenticeships and traineeships (1) An apprentice or trainee must, in accordance with the relevant training plan, make all reasonable efforts: (a) to acquire the competencies of the vocation concerned, and (b) to obtain an appropriate qualification or qualifications for that vocation. (2) An apprentice or trainee must discharge his or her obligations under the apprenticeship or traineeship as an employee of the employer. 16A Duties of registered training organisations (1) A relevant registered training organisation for an apprenticeship or traineeship: (a) must provide to the employer, on request, information in relation to the progress of the apprentice or trainee in obtaining the relevant qualification, and (b) must review the training plan at least once every 6 months and, in addition, on any date determined in consultation with the employer and the apprentice or trainee, and (c) must obtain the confirmation of the employer before determining whether the apprentice or trainee has acquired the competencies of the relevant qualification, and (d) must, as soon as practicable after the apprentice or trainee becomes eligible to be awarded the relevant qualification by the registered training organisation, notify the Commissioner of that fact. Maximum penalty: 200 penalty units. (2) The relevant registered training organisation must also notify the Commissioner of the following matters within 21 days after the matter arises: (a) any failure by the employer to allow the apprentice or trainee to commence or participate in the training specified in the training plan, (b) any failure by the employer to allow the organisation to conduct the training or assessment components specified in the training plan, (c) any failure by the employer to provide any information requested by the organisation for the purpose of assessments of competence in relation to the training specified in the training plan. Maximum penalty: 200 penalty units. 17 Conditions of training and employment for persons employed as apprentices and trainees An employer that employs a person as an apprentice or trainee in a recognised trade vocation or recognised traineeship vocation: (a) must provide work-based training in accordance with the relevant vocational training order for that vocation, and (b) must employ the person under conditions no less favourable than those set by the provisions of the relevant industrial award or agreement, whether or not an apprenticeship or traineeship has been established for the apprentice or trainee. 18 Extension of probationary period (1) On the application of the employer or the apprentice or trainee, the Commissioner may extend the apprentice's or trainee's probationary period for up to a maximum of 3 months beyond the initial period specified in the relevant vocational training order. (2) As soon as practicable after an application is determined, the Commissioner must notify both the employer and the apprentice or trainee concerned of the determination. 19 Attendance at relevant registered training organisation Time spent by an apprentice or trainee in attending the training provided by the relevant registered training organisation is taken to form part of the time required by the relevant training contract to be spent in discharging the apprentice's or trainee's obligations under the contract. Division 3 Transfer, variation, suspension, cancellation and completion of apprenticeships and traineeships 20 Transfer of apprenticeships and traineeships (1) An application for approval to the transfer of an apprenticeship or traineeship may be made to the Commissioner by the prospective employer. (2) The Commissioner must deal with the application: (a) by approving the application, or (b) by dismissing the application, or (c) (Repealed) (3) (Repealed) (4) Approval to the transfer is not to be given unless the Commissioner is satisfied: (a) that the prospective employer has the ability to provide appropriate training in the relevant vocation, and (b) that the apprentice or trainee, and the apprentice's or trainee's existing employer, consent to the transfer of the apprenticeship or traineeship. (5) The Commissioner must send a notice to the apprentice's or trainee's existing employer requesting the employer to notify the Commissioner whether or not the employer consents to the transfer. (6) If the Commissioner does not receive any reply to such a request within 21 days after the date on which the notice was sent, the consent of the existing employer is taken to have been given. (6A) As soon as practicable after an application is determined, the Commissioner must give notification of the determination to the following: (a) the prospective employer, (b) the apprentice or trainee concerned, (c) the apprentice's or trainee's existing employer. (7) If the application for transfer is approved, all rights and obligations conferred or imposed on an employer by the relevant training contract cease to be the rights and obligations of the existing employer and become the rights and obligations of the prospective employer. (8) Subsection (7) does not affect any rights or obligations in relation to matters arising before the transfer was approved, and any such rights and obligations remain the rights and obligations of the existing employer. 21 Variation of training contracts and training plans on application by a party (1) An application for the variation of a training contract or training plan may be made to the Commissioner by the employer and the apprentice or trainee, or by either of them alone. (2) In the case of an application for the variation of a training plan, the application must be endorsed with the consent of the relevant registered training organisation to the proposed variation. (3) The Commissioner must deal with an application: (a) by approving the application, or (b) by dismissing the application, or (c) (Repealed) (4) (Repealed) (5) In the case of an application made by only one of the parties, the Commissioner must send a notice to the other party requesting the party to notify the Commissioner whether or not the party consents to the variation. (6) If the Commissioner does not receive any reply to such a request within 21 days after the date on which the notice was sent: (a) the consent of the party to whom the notice was sent is taken to have been given, and (b) approval of the application for variation is taken to have been given on the expiry of the 21-day period. (6A) As soon as practicable after an application is determined, the Commissioner must give notification of the determination to the following: (a) the employer, (b) the apprentice or trainee concerned, (c) in the case of an application to vary a training plan—the relevant registered training organisation. (7) If the application for variation of a training contract or training plan is approved, the training contract or training plan is taken to be varied in accordance with the approval. 21A Variation of training contracts and training plans by Commissioner (1) The Commissioner may, on receiving a recommendation from the relevant registered training organisation or any other relevant person or body or on the Commissioner's own initiative, make a variation to a training contract or training plan in accordance with this section. (2) A technical variation may be made at any time at the discretion of the Commissioner. (3) A technical variation is a variation that, in the Commissioner's opinion, is of a minor nature and will not result in any material change to the terms of the training contract or training plan. (4) If the variation is not a technical variation, the following provisions apply: (a) the Commissioner must send a notice to each party (being the employer and the apprentice or trainee) requesting the party to notify the Commissioner whether or not the party consents to the variation, (b) if the Commissioner does not receive any reply to such a request within 21 days after the date on which the notice was sent, the consent of the party to whom the notice was sent is taken to have been given, (c) if the parties consent to the variation, the Commissioner may make the variation. (5) As soon as practicable after a variation is made under this section, the Commissioner must give notification of the variation to the following: (a) the employer, (b) the apprentice or trainee concerned, (c) in the case of the variation of a training plan—the relevant registered training organisation. (6) A variation made under this section is binding on the employer and the apprentice or trainee. 22 Suspension and cancellation of apprenticeships and traineeships (1) The Commissioner may, on the application of the employer and the apprentice or trainee (or either of them alone) or on the Commissioner's own initiative, suspend or cancel an apprenticeship or traineeship. (2) The Commissioner may not suspend or cancel the apprenticeship or traineeship unless the Commissioner is satisfied: (a) that both the employer and the apprentice or trainee consent to the suspension or cancellation, or (b) that it is reasonable in the circumstances to do so. (3) In addition, the Commissioner may not suspend or cancel an apprenticeship or traineeship on the application of the employer or the apprentice or trainee or on the Commissioner's own initiative unless the Commissioner: (a) has given notice to the employer and the apprentice or trainee of the Commissioner's intention to suspend or cancel the apprenticeship or traineeship, and (b) has given the employer and apprentice or trainee at least 21 days within which to make submissions to the Commissioner with respect to the proposed suspension or cancellation, and (c) has taken any such submissions into consideration. (4) The Commissioner must give notice to the employer and apprentice or trainee of a suspension or cancellation under this section specifying: (a) the grounds for the suspension or cancellation, and (b) the date from which the suspension or cancellation takes effect, and (c) in the case of suspension—the period of suspension. 23 Completion of apprenticeships and traineeships (1) As soon as practicable after an apprentice: (a) has completed his or her term of apprenticeship in a recognised trade vocation, and (b) has been awarded an appropriate qualification by the relevant registered training organisation, and (c) has, if required by the Commissioner, been assessed by any other registered training organisation nominated by the Commissioner as having acquired the competencies of that vocation, the Commissioner must issue the apprentice with a certificate of proficiency for that vocation. (2) (Repealed) (3) As soon as practicable after a trainee: (a) has completed his or her term of traineeship in a recognised traineeship vocation, and (b) has been awarded an appropriate qualification by the relevant registered training organisation, and (c) has, if required by the Commissioner, been assessed by any other registered training organisation nominated by the Commissioner as having acquired the competencies of that vocation, the Commissioner must issue the trainee with a certificate of proficiency for that vocation. (4) The Commissioner may provide to the Australian Skills Quality Authority a copy of the report of an assessment under subsection (1) (c) or (3) (c) (including any information contained in the report that is personal information under the Privacy and Personal Information Protection Act 1998 or health information under the Health Records and Information Privacy Act 2002). 24 Effect of death of employer or change in partnership (1) If: (a) the employer of an apprentice or trainee dies, and (b) the business in which the apprentice or trainee was employed is carried on by the executors or administrators for the time being of the will or estate of the deceased employer, the apprenticeship or traineeship is taken not to have been terminated by the death of the employer. (2) If: (a) the employers of an apprentice or trainee are partners in a partnership, and (b) the business in which the apprentice or trainee is employed is carried on after a change in the composition of the partnership, the apprenticeship or traineeship is taken not to have been terminated by that change. (3) Unless cancellation of the apprenticeship or traineeship is approved by the Commissioner on the application of those executors, administrators or partners: (a) the relevant training contract continues to bind them as if they were the employers of the apprentice or trainee, and (b) while it does so, they are taken to be the employers of the apprentice or trainee for the purposes of this Act. Division 4 Additional provisions concerning recognised trade vocations 25 Juniors not to be employed in recognised trade vocations unless apprentices or qualified tradespersons (1) An employer must not employ a junior in a recognised trade vocation unless the junior is an apprentice or qualified tradesperson in that vocation. Maximum penalty: 100 penalty units. (2) This section does not apply to: (a) the employment of a person in a recognised traineeship vocation that is, or forms part of, a recognised trade vocation, or (b) the employment of a person in a recognised trade vocation by a spouse, de facto partner or parent of the person, or (c) the employment of a person in a recognised trade vocation, or in any part of a recognised trade vocation, that is exempted by the regulations from the operation of this section. Note— "De facto partner" is defined in section 21C of the Interpretation Act 1987. (3) (Repealed) 26 Commissioner may direct apprenticeship to have effect (1) If an employer fails to apply for the establishment of an apprenticeship within 28 days after the employer employs a junior as an apprentice, the Commissioner may, on the application of the junior, direct that an apprenticeship contract be taken to have come into effect between the employer and the junior. (2) As soon as practicable after giving such a direction, the Commissioner: (a) must serve a document in the form of an apprenticeship contract (endorsed by the Commissioner to indicate that it has been prepared pursuant to a direction under this section) on the employer, and (b) must send a copy of the document to the apprentice. (3) Subject to this Act, an apprenticeship contract under this section: (a) takes effect when the document referred to in subsection (2) (a) is served on the employer, and (b) has effect as if it were a deed duly executed by the employer and the apprentice. (4) Any time during which the employer has employed the apprentice as an apprentice prior to the giving of the direction referred to in subsection (1) is taken to form part of the term of the apprenticeship. 27 Remuneration of adult apprentices (1) If: (a) an apprenticeship is established in a recognised trade vocation for an adult, and (b) there is no adult award in force, but there is a junior award in force, in relation to that vocation, then, until an adult award comes into force in relation to that vocation, the minimum rate of remuneration for the person is to be the maximum rate set by the junior award for apprentices who are at the same stage of apprenticeship in that vocation. (2) A rate of remuneration set by this section has effect as if it formed part of an industrial award or agreement that applied to the person for whom it is set, and any remuneration payable under this section may be recovered accordingly. (3) This section does not apply to an apprenticeship between an employer and an apprentice if the employer is a parent or guardian of the apprentice. (4) In this section: adult award means an industrial award or agreement under which a rate of remuneration is set for apprentices who are adults (that is, persons who are not juniors). junior award means an industrial award or agreement under which a rate of remuneration is set for apprentices who are juniors. Division 5 General 28 Register of apprenticeships and traineeships (1) The Commissioner is to establish and maintain a register of apprenticeships and traineeships. (2) The register must contain such of the following information as is relevant to each apprenticeship or traineeship established under this Act: (a) the names and addresses of the employer and the apprentice or trainee, (b) the date on which the apprenticeship or traineeship was approved, (c) the recognised trade vocation or recognised traineeship vocation for which the apprenticeship or traineeship is established, (d) the appropriate qualification or qualifications that may be awarded to the apprentice or trainee in relation to the apprenticeship or traineeship, (e) the term of the apprenticeship or traineeship, (f) the industrial award or agreement identified in the application for the establishment of the apprenticeship or traineeship as the industrial award or agreement that applies to the apprenticeship or traineeship, (g) the date of commencement of the apprenticeship or traineeship, (h) the serial number of the training contract approved in relation to the apprenticeship or traineeship, (i) the name of the relevant registered training organisation, (j) each date on which the apprenticeship or traineeship has been transferred, suspended, cancelled or varied, (k) the date on which the apprenticeship or traineeship was completed, (l) whether the trainee under a traineeship is an existing worker trainee. (3) The regulations may make provision for or with respect to the manner and form in which the register is to be kept. (4) The Commissioner is to provide to the Chief Commissioner of State Revenue or an authorised officer within the meaning of the Taxation Administration Act 1996 such information contained in the register as may be requested from time to time by the Chief Commissioner or authorised officer. 29 Advertising of group training organisations A person must not advertise or otherwise represent that a person or body: (a) is a registered group training organisation, or (b) is registered, endorsed or otherwise approved by the Government (however expressed) to offer training or other services under host employment arrangements, unless the person or body concerned is a registered group training organisation. Maximum penalty: 100 penalty units. 30 Registration of group training organisations (1) Any person or body may apply to the Commissioner to be registered as a group training organisation. (2) The Commissioner may register the applicant as a group training organisation if satisfied, in accordance with any relevant vocational training guidelines, that the organisation meets minimum operational standards. (3) The Commissioner may suspend or cancel the registration of a person or body as a group training organisation if satisfied that the person or body no longer meets minimum operational standards. Note— Registration of a person or body as a group training organisation may render the person or body eligible for certain payments available under Commonwealth or State incentive schemes. 31 Preservation of conditions of employment of existing worker trainees (1) The conditions of employment of a person who becomes registered as an existing worker trainee (including conditions with respect to superannuation, accrual of leave and other entitlements) are unaffected by the establishment of the traineeship. (2) Such a person: (a) is entitled to remain employed under those conditions (together with such variations of those conditions as are authorised by law) as if the traineeship had not been established, and (b) has the same rights under any Act or law in relation to those conditions as those to which he or she would have been entitled had the traineeship not been established. (3) In particular: (a) the fact that a person is registered as an existing worker trainee does not invoke the provisions of any industrial award or agreement to the extent to which those provisions would diminish the conditions (including conditions with respect to superannuation, accrual of leave and other entitlements) to which the person is entitled, and (b) the fact that a person who is registered as an existing worker trainee completes a traineeship does not authorise the employer to terminate the person's employment with the employer. Note— Registration of an employee as an existing worker trainee may render the employer eligible for certain payments available under Commonwealth incentive schemes. 32 Training contracts presumed to benefit minors In the application of the Minors (Property and Contracts) Act 1970 to a training contract into which a minor has entered as an apprentice or trainee, the participation by the minor in the contract is, in the absence of evidence to the contrary, taken to be for the benefit of the minor. 33 Apprentices and trainees not to be required to make payments or give bonds (1) Except with the consent of the Commissioner, a person must not, whether directly or indirectly: (a) require or permit a prospective apprentice or trainee to make any payment, or (b) demand or receive any payment from a prospective apprentice or trainee, or (c) require a prospective apprentice or trainee to enter into any bond or guarantee, for or with respect to the establishment of an apprenticeship or traineeship. Maximum penalty: 200 penalty units. (2) This section does not apply to any fee charged by a registered training organisation for the training it provides in connection with an apprenticeship or traineeship. 34 Effect of change in vocational training order (1) The making of a vocational training order that amends or replaces an earlier vocational training order does not affect any apprenticeship or traineeship begun in accordance with the earlier order (an existing apprenticeship or traineeship), and an existing apprenticeship or traineeship may be continued and completed in accordance with the earlier order as if the later order had not been made. (2) Subsection (1) does not apply to the extent to which the later order expressly provides that it is to apply to an existing apprenticeship or traineeship, in which case the existing apprenticeship or traineeship is to be continued and completed: (a) if the later order amends the earlier order, in accordance with the earlier order as amended by the later order, or (b) if the later order replaces the earlier order, in accordance with the later order, but to the extent only to which the later order so provides. Part 3 Recognition of other trade qualifications 35 Recognition of Defence Force trade training (1) In this section: Defence Force means the Defence Force of the Commonwealth. service adult trade training means training undertaken by a member of the Defence Force under a scheme (not involving apprenticeship) for the trade training of persons who are of or above the age of 17 years. service apprenticeship means an apprenticeship served by a person as a member of the Defence Force. (2) The Commissioner may confer with representatives of the Defence Force, on any matter concerning service apprenticeships or service adult trade training, with a view to ensuring that a person who has completed a service apprenticeship or a period of service adult trade training in a recognised trade vocation will be accorded recognition in that vocation. (3) The Commissioner may determine that the course of training provided for a class of service apprenticeship or service adult trade training in a recognised trade vocation is such that a person: (a) who satisfactorily completes the course, and (b) who complies with such further conditions as to experience or otherwise as the Commissioner may determine, is adequately trained to pursue that vocation. (4) A determination under this section must be set out in an instrument signed by the Commissioner, and a copy of the instrument must be sent by the Commissioner to the relevant Defence Force authority. (5) The Commissioner must issue a certificate of proficiency to a person who satisfies the Commissioner that the person: (a) has satisfactorily completed the course of training to which such a determination relates, and (b) has complied with any other conditions prescribed by the determination. 36 Recognition of other trade training—applications (1) A person may apply to the Commissioner for recognition of the person's qualifications or experience in a particular recognised trade vocation. (2) The Commissioner may require the applicant to undergo an assessment by a registered training organisation nominated by the Commissioner to determine whether the applicant has acquired the competencies of the recognised trade vocation (an independent competency assessment). (3) A registered training organisation may not be nominated to conduct an independent competency assessment if the organisation has previously provided training to the applicant in the recognised trade vocation. (4) The Commissioner may refuse to deal with the application if the applicant fails to comply with a requirement to undergo an independent competency assessment. (5) If the report of an independent competency assessment specifies that the applicant requires further training to acquire the competencies of the recognised trade vocation, the Commissioner may refuse to determine the application until the Commissioner is satisfied that the applicant has satisfactorily completed the training. (6) The Commissioner may seek expert advice in connection with the application from any person who, in the Commissioner's opinion, has special knowledge of, and experience in, the recognised trade vocation. (7) The regulations may provide that the Commissioner must, in specified circumstances, seek expert advice in connection with an application under this section from specified persons or classes of persons. (8) The Commissioner may provide to the Australian Skills Quality Authority a copy of the report of an independent competency assessment (including any information contained in the report that is personal information under the Privacy and Personal Information Protection Act 1998 or health information under the Health Records and Information Privacy Act 2002). 37 Recognition of other trade training—determinations (1) If the Commissioner is satisfied that an applicant for recognition of qualifications or experience in a particular recognised trade vocation (other than a certified vocation) has acquired the competencies of the vocation, the Commissioner may determine that the applicant is adequately trained to pursue that vocation. (2) A recognised trade vocation is a certified vocation if a person is required to have a certificate of proficiency in order to obtain a licence, permit or other authority under an Act to work in the vocation. (3) In making a determination under subsection (1), the Commissioner must have regard to: (a) the length of time for which the applicant has been working in the recognised trade vocation, and (b) the nature and duration of any instruction or training received by the applicant in the recognised trade vocation, and (c) the nature of any qualifications held by the applicant in relation to the recognised trade vocation, and (d) any expert advice obtained in connection with the application, and (e) the applicant's performance in any examination or test set by the Commissioner or any independent competency assessment, and (f) such other matters as the Commissioner considers relevant. (4) The following provisions apply in relation to the determination of an application for recognition of qualifications or experience in a certified vocation: (a) the Commissioner is to nominate at least one employee representative and one employer representative (the industrial representatives) for the purpose of making a recommendation under this section as to whether the applicant is adequately trained to pursue the certified vocation, (b) the Commissioner may determine that the applicant is adequately trained to pursue the recognised trade vocation, but only if the industrial representatives have unanimously recommended that the applicant is adequately trained to pursue that vocation, (c) the industrial representatives must have regard to the matters specified in subsection (3) (a)–(e) (and such other matters as the representatives consider relevant) in making a recommendation under this section, (d) the Commissioner must have regard to the matters specified in subsection (3) in making a determination under this section. (5) The Commissioner is to provide to the industrial representatives any information obtained by the Commissioner in connection with the application and required by the representatives for the purpose of making the recommendation. For that purpose, the Commissioner is authorised to disclose to the industrial representatives personal information (within the meaning of the Privacy and Personal Information Protection Act 1998) and health information (within the meaning of the Health Records and Information Privacy Act 2002). (6) A determination under this section must be set out in an instrument signed by the Commissioner. (7) The Commissioner must issue a certificate of proficiency to the person to whom the determination relates. (8) The regulations may make provision for or with respect to: (a) applications for the recognition of qualifications or experience in a recognised trade vocation, and (b) the making of determinations and recommendations under this section. (9) In this section: employee representative, in relation to an application under this section, means a representative of an organisation that represents employees in industrial matters relating to the recognised trade vocation to which the application relates. employer representative, in relation to an application under this section, means a representative of an organisation that represents employers in industrial matters relating to the recognised trade vocation to which the application relates. 38 Register of determinations (1) The Commissioner is to establish and maintain a register of determinations under this Part. (2) The regulations may make provision for or with respect to the manner and form in which the register is to be kept. Part 4 Proceedings with respect to disputes and disciplinary matters Division 1 Complaints 39 Complaints to be made to Commissioner (1) A complaint that a party to an apprenticeship or traineeship has failed to discharge his or her obligations under the apprenticeship or traineeship may be made: (a) by the other party to the apprenticeship or traineeship, or (b) by an industry training officer who is a Public Service employee. (2) A complaint that a party to an apprenticeship or traineeship has failed to comply with the requirements of this Act (whether or not that failure constitutes an offence) may be made by an industry training officer. (3) A complaint that a party to an apprenticeship or traineeship has refused to consent to the transfer, suspension, cancellation or variation of an apprenticeship or traineeship, may be made by the other party to the apprenticeship or traineeship. (4) A complaint must be lodged at, or sent by post to, the offices of the Commissioner. 40 Conciliation (1) The Commissioner is to refer a complaint made by a party to an apprenticeship or traineeship to a conciliator in the first instance. (2) The conciliator must attempt to bring the parties to a settlement acceptable to each of them. (3) If such a settlement is not achievable, the Commissioner is to deal with the complaint in accordance with this Part. (4) In this section: conciliator means a person employed in the Department who is authorised in writing by the Commissioner as a conciliator for the purposes of this section. 41 Suspension of apprenticeships and traineeships pending hearing (1) If the Commissioner is satisfied that the gravity of a complaint justifies such action, the Commissioner may, without prior notice to the employer and apprentice or trainee, suspend the relevant apprenticeship or traineeship pending the hearing of the complaint. (2) The suspension of an apprenticeship or traineeship under this section has effect until the complaint is withdrawn or determined. 42 Commissioner to fix time and place for hearing complaints The Commissioner must fix a time and place for the hearing of a complaint and must give notice of the time and place so fixed to the complainant and to each of the parties to the relevant apprenticeship or traineeship. Division 2 Hearings 43 Parties The parties to the hearing of a complaint are the complainant and each of the parties to the relevant apprenticeship or traineeship. 44 Procedure generally (1) The Commissioner is not bound by the rules of evidence, and may be informed in any manner that the Commissioner thinks fit. (2) A hearing must be conducted with as little formality and legal technicality as the circumstances of the case permit. (3) A hearing must be conducted in the absence of the public. (4) The Commissioner may from time to time adjourn a hearing to such time, date and place, and for such reasons, as the Commissioner considers fit. 45 Legal representation (1) A party to a complaint is not entitled to be represented by an Australian legal practitioner except with the consent of the Commissioner and of each of the other parties to the hearing. (2) This section: (a) does not prevent a party from being represented by an industrial organisation, and (b) does not prevent the Crown, or a party that is a corporation or an industrial organisation, from appearing by an Australian legal practitioner. (3) At any hearing at which the Crown, or a party that is a corporation or an industrial organisation, appears by an Australian legal practitioner, each of the other parties to the hearing is entitled to be represented at the hearing by an Australian legal practitioner. (4) In this section industrial organisation has the same meaning as it has in the Industrial Relations Act 1996. 46 Attendance of witnesses and production of documents (1) The Commissioner: (a) may require a person: (i) to attend a hearing for the purpose of giving evidence, or (ii) to produce to the Commissioner any document that is relevant to a hearing, at a time, date and place specified in a notice served on the person, and (b) may require a person who attends a hearing to be sworn for the purpose of giving evidence on oath, and (c) may administer an oath to a person who attends a hearing for the purpose of giving evidence. (2) The Commissioner may retain possession of a document produced to the Commissioner under this section for such period as the Commissioner considers necessary for the purpose of completing the hearing. (3) A person (other than a Public Service employee) who is required to attend or to give evidence at a hearing is entitled to be paid such allowances and expenses as may be prescribed by the regulations. (4) A person must not fail to comply with a requirement to attend a hearing, or to produce a document, to the extent to which the person is lawfully able to comply with the requirement. Maximum penalty (subsection (4)): 50 penalty units. 47 Witnesses to answer questions (1) The Commissioner may require a person who attends a hearing to answer any question that is reasonably related to the hearing. (2) A person may refuse to answer a question on the ground that the answer might tend to incriminate the person. (3) A person: (a) must not fail to comply with a requirement to answer a question, to the extent to which the person is lawfully able to comply with the requirement, and (b) must not, in purported compliance with a requirement to answer a question, make a statement that the person knows to be false or misleading in a material particular. Maximum penalty: 50 penalty units. (4) Subsection (3) (b) does not apply to statements made on oath. 48 Misconduct A person must not misconduct himself or herself at a hearing. Maximum penalty: 50 penalty units. 49 Costs Each party to a hearing is to bear his or her own costs of the hearing. Division 3 Determinations 50 (Repealed) 51 Determinations (1) The Commissioner must determine a complaint made under section 39 (1) or (2): (a) by cautioning or reprimanding the person against whom the complaint has been made, or (b) by ordering the person against whom the complaint has been made to make such redress (otherwise than by way of damages for breach of contract) as the Commissioner considers appropriate, or (c) by varying, suspending or cancelling the apprenticeship or traineeship to which the complaint relates, or (d) by dismissing the complaint. (2) A complaint must not be determined as referred to in subsection (1) (a), (b) or (c) unless the Commissioner is satisfied that the person against whom the complaint has been made: (a) has failed to discharge his or her obligations under the apprenticeship or traineeship to which the complaint relates, or (b) has failed to comply with the requirements of this Act. (3) The Commissioner must not suspend or cancel an apprenticeship or traineeship under subsection (1) unless the Commissioner is satisfied that: (a) one of the parties is unlikely to discharge his or her obligations under the apprenticeship or traineeship, and (b) if that party is the employer: (i) the other party is unwilling to allow another employer to assume those obligations, or (ii) no other employer can be found who is willing to assume those obligations. (4) The Commissioner must determine a complaint made under section 39 (3): (a) by directing that the requirement for consent referred to in that subsection be waived, or (b) by dismissing the complaint. (5) The Commissioner must give notice of the Commissioner's determination to each of the parties to the hearing. (6) On the making of a determination that varies, suspends or cancels an apprenticeship or traineeship, the apprenticeship or traineeship is taken to be varied, suspended or cancelled, as the case may be, in accordance with the determination. 52 Orders for compensation (1) If: (a) the Commissioner dismisses a complaint made by an employer, and (b) an apprenticeship or traineeship has been suspended by the Commissioner pending the hearing of the complaint, and (c) the employer has, under the terms of employment between the employer and the apprentice or trainee: (i) failed to give to the apprentice or trainee the whole, or any part, of any right or benefit (whether by way of remuneration or otherwise) to which the apprentice or trainee would, but for the suspension, be entitled, or (ii) failed to contribute to any superannuation scheme the whole, or any part, of any payment which the employer would, but for the suspension, be required to contribute in relation to the apprentice or trainee, the Commissioner must direct the employer to pay to the apprentice or trainee, and to contribute to any such scheme, specified amounts equivalent to the value of any right or benefit that the employer has failed to give or the amount of any payment that the employer has failed to contribute. (2) On the filing in the