South Australia: South Australian Skills Act 2008 (SA)

South Australia South Australian Skills Act 2008 An Act relating to apprenticeships, traineeships, vocational education and training, adult community education, and education services for overseas students; to establish the South Australian Skills Commission; and for other purposes. Contents Part 1—Preliminary 1 Short title 3 Objects 4 Interpretation 5 Declarations relating to universities and higher education 6 Declarations of trades and declared vocations 6A Interaction with other Acts and awards etc Part 2—Role of Minister 7 Functions of Minister 8 Delegation by Minister Part 3—South Australian Skills Commission Division 1—South Australian Skills Commissioner 9 South Australian Skills Commissioner 10 Term of office and conditions of appointment 11 Remuneration 12 Acting Commissioner 13 Functions of Commissioner 14 Reporting obligations Division 2—South Australian Skills Commission 15 South Australian Skills Commission 16 Terms and conditions of membership 17 Remuneration 18 Procedures of Commission 19 Functions of Commission 20 Delegation 21 Committees 22 Validity of acts 23 Staff 24 Use of staff etc of Public Service 25 Conflict of interest under Public Sector (Honesty and Accountability) Act Division 3—South Australian Skills Standards 26 Commission to prepare South Australian Skills Standards Part 4—Apprenticeships, traineeships and training contracts Division 1—Interpretation 45 Interpretation Division 1A—Certain training to occur under training contract 45A Training in trade must occur under training contract 45B Training in declared vocation may occur under training contract Division 2—Training contracts 46 Training contracts 47 Minister may enter training contracts 48 Training contracts to be approved by Commission 48A Transfer of training contracts between jurisdictions 49 Commencement date of apprenticeship or traineeship and term of training contracts 49A Extension of probationary period 50 Commission may vary hours under training contract 51 Commission may suspend training contract 51A Termination of training contract during probationary period 51B Commission may terminate training contract 51C Offence to terminate etc training contract 52 Commission may require dispute resolution between parties to certain applications 53 Effect of time spent training on employment of apprentice or trainee 54 Termination/expiry of training contract and pre‑existing employment Division 3—Prohibited employers 54B Prohibited employers 54C Revocation of declaration 54D Offence for prohibited employer to employ etc apprentice or trainee 54E Offence to make certain false representations relating to prohibited employers Division 3A—Provisions relating to employers 54F Registration of employers 54G Variation, suspension and cancellation of registration of employer 54H Substitution of employer under training contract following cancellation, suspension or variation of registration 54I Offence to make certain false representations relating to registration 54J Employer's obligations under training contract 54K Employer to notify Commission of certain matters 54L Making and retention of records Division 3B—Provisions relating to apprentices and trainees 54M Obligations of apprentices and trainees under training contracts Division 3C—Substitution of employer under training contract and transfer fees 54MA Transfer of training contract where change of ownership of business 54N Commission may approve substitution of employer under training contract 54O Transfer fee payable in relation to certain substitutions of employer in relation to training contract Division 3D—Provisions relating to nominated training organisations and training plans 54P Nomination of training organisation for apprentice or trainee 54Q Training plans 54R Obligations of nominated training organisations 54S Nominated training organisation to notify Commission of certain matters 54T Substitution of nominated training organisation 54U Making and retention of records 54V Offences by nominated training organisations 54W Commission may notify certain bodies where contravention of Act Division 4—Compliance notices, misconduct, disputes and grievances 63 Compliance notices 64 Employer may suspend apprentice or trainee for serious misconduct 65 Other matters to be dealt with by SAET 66 Holding of compulsory conciliation conferences 67 Representation in proceedings before SAET Part 4A—Recognition of other trade training etc 70A Application for recognition of other trade qualifications etc 70B Commission may determine person adequately trained Part 4B—Additional powers of Commission etc 70C Commission may require information 70D Sharing of information between certain persons and bodies 70E Other powers of Commission and authorised persons Part 4C—Review of certain decisions by South Australian Civil and Administrative Tribunal 70F Review of decisions by Tribunal 70G Offence to exert undue influence etc in relation to training contracts and training plans Part 5—Miscellaneous 71 South Australian Skills Register 72A Confidentiality 73 Commission may correct certain mistakes 75 False or misleading information 75A Imputation of conduct or state of mind of officer etc 75B Offences by bodies corporate and employees 76 Evidentiary provision 77 Gazette notices may be varied or revoked 78 Service 79 Regulations Schedule 2—Transitional provisions Part 4—Transitional provisions 11 Transitional provisions Legislative history The Parliament of South Australia enacts as follows: Part 1—Preliminary 1—Short title This Act may be cited as the South Australian Skills Act 2008. 3—Objects (1) The objects of this Act are— (a) to strengthen the State's economic base by providing a modern, skilled workforce that meets the current and future needs of industry, Government and the community; and (b) to promote partnerships within government, industry and other enterprises for the purpose of training and skills development for the State's workforce; and (c) to support South Australians to access and complete the skills training they need to get a job and contribute to the State's economy and their own prosperity; and (d) to establish a simple, streamlined apprenticeship and traineeship system featuring flexible, industry‑endorsed approaches to training and skills development that reflects— (i) the purpose of apprenticeships and traineeships is to develop the skills, knowledge and experience necessary for a person to acquire a vocation and qualification that contributes towards the person's employment and future occupational requirements; and (ii) the responsibilities of an employer of an apprentice or trainee for the training required for the purposes of the apprenticeship or traineeship; and (iii) the integral role of registered training organisations in the development of training goals and the success of apprenticeships and traineeships; and (iv) the responsibilities of each party to a training contract to take appropriate action to support completion of the apprenticeship or traineeship, including where appropriate by resolving disputes in a timely manner that preserves the training relationship; and (e) to recognise the importance of the vocational education and training system, including adult community education; and (f) to facilitate life‑long learning and supporting South Australians who change careers or wish to improve their skills; and (g) to promote equity in training and skills development (including in access to such development). (2) Each person or body engaged in the administration, operation or enforcement of this Act must exercise their powers and perform their functions so as to further the objects set out in this section. 4—Interpretation (1) In this Act, unless the contrary intention appears— accredited—see subsection (3); apprentice means a person who is being trained under an apprenticeship pursuant to a training contract that is in force; 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; ASQA means Australian Skills Quality Authority established under the National Vocational Education and Training Regulator Act 2011 of the Commonwealth; Commission means the South Australian Skills Commission established under Part 3; compliance notice means a compliance notice issued under section 63; condition includes a limitation or restriction; contravene includes fail to comply with; Department means the administrative unit of the Public Service assisting a Minister in the administration of this Act; declared vocation means an occupation declared under section 6 to be a declared vocation for the purposes of this Act; employer, in relation to a training contract, means an employer who is a party to the training contract; employer's obligations under the training contract—see section 54J; higher education—see subsection (2); Higher Education Standards means the Higher Education Standards Framework (Threshold Standards) 2015 made under the Tertiary Education Quality and Standards Agency Act 2011 of the Commonwealth, as in force from time to time; host employment arrangement means an arrangement under which the employer of an apprentice or trainee places the apprentice or trainee with another person or body for particular training required under a training contract or training plan; nominated training organisation—see section 54P; prohibited employer means an employer with respect to whom a declaration is in force under section 54B, and includes— (a) in the case of an employer that is a body corporate—any person who, when the body corporate became a prohibited employer, was a director of the body corporate or was concerned in the management of the body corporate; and (b) in the case of an employer that is a partnership—any person who, when the partnership became a prohibited employer, was a partner in the partnership or was concerned in the management of the partnership; qualification means a VET qualification within the meaning of the National Vocational Education and Training Regulator Act 2011 of the Commonwealth; recognised higher education provider means a body established and recognised as a higher education provider by or under the law of the State, or of the Commonwealth or another State or Territory; Register means the South Australian Skills Register; registered means registered under Part 4 Division 3A, and a reference to a registered employer has a corresponding meaning; registered training organisation means a registered training organisation within the meaning of the National Vocational Education and Training Regulator Act 2011 of the Commonwealth; repealed Act means the Training and Skills Development Act 2003 repealed under Schedule 2; SAET means the South Australian Employment Tribunal established under the South Australian Employment Tribunal Act 2014; scope of the registration, in relation to a registered employer, means the declared trades or vocations in relation to which the employer may enter into a training contract, as determined by the conditions imposed on the registration; South Australian Skills Standards or Standards means the South Australian Skills Standards prepared under section 26, as in force from time to time; State university means a university established under an Act of this State; TEQSA means the Tertiary Education Quality and Standards Agency established under the Tertiary Education Quality and Standards Agency Act 2011 of the Commonwealth; trade means an occupation declared under section 6 to be a trade for the purposes of this Act; trainee means a person who is being trained in a traineeship pursuant to a training contract that is in force; training contract means— (a) a training contract approved under section 48; or (b) a training contract transferred from another jurisdiction under section 48A, as in force from time to time; training plan, for an apprentice or trainee, means a training plan for the apprentice or trainee prepared and endorsed under section 54Q, as in force from time to time; Tribunal means the South Australian Civil and Administrative Tribunal established under the South Australian Civil and Administrative Tribunal Act 2013; 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 it is a VET accredited course within the meaning of the National Vocational Education and Training Regulator Act 2011 of the Commonwealth. (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; (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 Higher Education Standards; 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: $10 000. Expiation fee: $500. 6—Declarations of trades and declared vocations (1) The Minister may, by notice in the Gazette and on the recommendation of the Commission, declare an occupation to be a trade or a declared vocation (as the case requires). (2) A notice under subsection (1) must, in relation to each trade or vocation to which the notice relates: (a) identify the job or occupation, or class of job or occupation, to which the trade or vocation relates; and (b) identify any relevant pathways (including, where appropriate, pathways at a national level) to the trade or vocation; and (c) contain any other information required by the regulations. (3) To avoid doubt, a relevant pathway to a trade or vocation may, in addition to the primary qualification relating to the trade or vocation, include— (a) pre‑apprenticeships or pre‑traineeships; or (b) specified skill sets; or (c) higher qualifications; or (d) such other matters as the Minister thinks appropriate. 6A—Interaction with other Acts and awards etc (1) Subject to subsection (2), this Act and any statutory instrument made under this Act prevail to the extent of any inconsistency over the Fair Work Act 1994 or any other similar Act (including any regulation, award or other determination, enterprise agreement or industrial agreement made under those Acts or an Act repealed by those Acts). (2) A provision of an award or other determination, enterprise agreement or industrial agreement (whether made under the Fair Work Act 1994 or otherwise) requiring employers to employ apprentices or trainees in preference to junior employees remains in full force. Part 2—Role of Minister 7—Functions of Minister 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 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; (c) to promote opportunities for adults to engage in further training and skills development opportunities, including through adult community education; (d) to manage the State's role as part of an integrated national system of education and training; (e) to administer the State's apprenticeship and traineeship system; (f) to facilitate complaint handling, mediation and advocacy in relation to the resolution of disputes relating to apprenticeships and traineeships, vocational education and training or international education, and to otherwise assist in the resolution of such disputes (including by providing advocacy services for parties in proceedings before the SAET); (g) any other function assigned to the Minister under this or any other Act or that the Minister considers appropriate. 8—Delegation by Minister (1) The Minister may delegate a function or power of the Minister under this Act— (a) to the Commissioner, the Commission or any other specified person or body; or (b) to the person for the time being occupying a specified 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. Part 3—South Australian Skills Commission Division 1—South Australian Skills Commissioner 9—South Australian Skills Commissioner (1) There is to be a South Australian Skills Commissioner. (2) The Commissioner is to be appointed by the Governor on conditions determined by the Governor and for a term, not exceeding 5 years, specified in the instrument of appointment. (3) An appointment of a person as Commissioner may be renewed, but a person must not hold office as Commissioner for more than 2 consecutive terms. (4) The Commissioner is subject to direction by the Minister but— (a) the Commissioner cannot be directed to make a particular finding or recommendation; and (b) the Minister must, within 3 sitting days after giving a direction, cause a copy of the direction to be laid before both Houses of Parliament; and (c) a direction must be published in the annual report of the Commissioner relating to the period in which the direction was given. (5) The Commissioner is a senior official for the purposes of the Public Sector (Honesty and Accountability) Act 1995. 10—Term of office and conditions of appointment (1) The Governor may remove the Commissioner from office on the presentation of an address from both Houses of Parliament seeking the Commissioner's removal. (2) The Governor may suspend the Commissioner from office on the ground of incompetence or misbehaviour and, in that event— (a) a full statement of the reason for the suspension must be laid before both Houses of Parliament within 3 sitting days of the suspension; and (b) if, at the expiration of 1 month from the date on which the statement was laid before Parliament, an address from both Houses of Parliament seeking the Commissioner's removal has not been presented to the Governor, the Commissioner must be restored to office. (3) The office of Commissioner becomes vacant if the Commissioner— (a) dies; or (b) resigns by written notice given to the Minister; or (c) completes a term of office and is not reappointed; or (d) is removed from office by the Governor under subsection (1); or (e) becomes bankrupt or applies as a debtor to take the benefit of the laws relating to bankruptcy; or (f) is convicted of an indictable offence or sentenced to imprisonment for an offence; or (g) becomes a member of the Parliament of this State or any other State of the Commonwealth or of the Commonwealth or becomes a member of a Legislative Assembly of a Territory of the Commonwealth; or (h) becomes, in the opinion of the Governor, mentally or physically incapable of carrying out satisfactorily the duties of office. 11—Remuneration The Commissioner is entitled to remuneration, allowances and expenses determined by the Governor. 12—Acting Commissioner (1) The Minister may appoint a person (who may but need not be an employee in the Public Service) to act as the Commissioner— (a) during a vacancy in the office of Commissioner; or (b) when the Commissioner is absent from, or unable to discharge, official duties; or (c) if the Commissioner is suspended from office under this Act. (2) A person appointed to act as the Commissioner is a senior official for the purposes of the Public Sector (Honesty and Accountability) Act 1995. 13—Functions of Commissioner In addition to being responsible for the operations of the Commission, the functions of the Commissioner are— (a) to advise and assist the Minister in relation to the Minister's functions under the Act; and (b) to further the objects of this Act; and (c) such other functions as may be conferred on the Commissioner by or under this or any other Act. 14—Reporting obligations (1) The Commissioner must, on or before 31 March in each year, report to the Minister on the performance of the Commissioner's functions during the preceding financial year. (2) The Minister must, within 6 sitting days after receiving a report from the Commissioner, have copies of the report laid before both Houses of Parliament. Division 2—South Australian Skills Commission 15—South Australian Skills Commission (1) The South Australian Skills Commission is established. (2) The South Australian Skills Commission is responsible to the Commissioner for the performance of its functions (and, to avoid doubt, the Commissioner is not bound by the recommendations of the Commission). (3) The Commission is subject to direction by the Minister but— (a) the Commission cannot be directed to make a particular finding or recommendation; and (b) the Minister must, within 3 sitting days after giving a direction, cause a copy of the direction to be laid before both Houses of Parliament; and (c) a direction must be published in the annual report of the Commission relating to the period in which the direction was given. (4) The Commission consists of— (a) the Commissioner (ex officio); and (b) up to 10 persons appointed by the Minister who, in the Minister's opinion, together have the abilities and experience required for the effective performance of the Commission's functions. (5) The Minister appoint a suitable person to be the deputy of a member and a person so appointed may act as a member of the Commission in the member's absence. 16—Terms and conditions of membership (1) Subject to this section, a member of the Commission will hold office on conditions, and for a term (not exceeding 2 years), determined by the Minister and specified in the instrument of appointment and is, at the expiration of a term of office, eligible for reappointment. (2) 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— (i) an indictable offence against the law of this State; or (ii) an offence against the law of this State that is punishable by imprisonment for a term of at least 12 months; or (iii) an offence against the law of another jurisdiction that, if committed in this State, would be an offence of a kind referred to in a preceding paragraph; or (e) is sentenced to imprisonment for an offence (whether against a law of this State or another jurisdiction); or (f) is removed from office by the Minister under subsection (3). (3) The Minister may remove a member from office— (a) for misconduct or conduct that may bring the Commission into disrepute; or (b) for breach of, or non‑compliance with, a condition of appointment; or (c) if the member has become bankrupt or has applied to take the benefit of a law for the relief of insolvent debtors; or (d) if the member has been disqualified from managing corporations under Chapter 2D Part 2D.6 of the Corporations Act 2001 of the Commonwealth; or (e) if the member has, because of mental or physical incapacity, failed to carry out duties of the position satisfactorily; or (f) for incompetence or neglecting the duties of the position; or (g) any other reason the Minister thinks fit. 17—Remuneration A member of the Commission is entitled to remuneration, allowances and expenses determined by the Minister. 18—Procedures of Commission (1) The Commissioner will preside at each meeting of the Commission at which the Commissioner is present. (2) The Minister may appoint a member to preside at meetings of the Commission in the absence of the Commissioner. (3) If the Commissioner is absent from a meeting of the Commission, the following provisions apply: (a) if another member has been appointed to chair meetings in the absence of the Commissioner and is present at the meeting—that member 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. (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. (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 and to any direction of the Commissioner, 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. 19—Functions of Commission (1) The Commission's functions are— (a) to advise the Minister on— (i) matters relating to the development, funding, quality and performance of vocational education and training and adult community education; and (ii) 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 (iii) the State's role as part of an integrated national system of education and training; and (b) to regulate the State's apprenticeship and traineeship system; and (c) to prepare the South Australian Skills Standards and other information for the purposes of this Act; and (d) to undertake complaint handling and provide, where appropriate, mediation and advocacy services in disputes relating to apprenticeships and traineeships, vocational education and training, higher education or international education, and to otherwise assist in the resolution of such disputes (including by providing advocacy services for parties in proceedings before the SAET); and (e) to monitor, and report 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 those areas; and (f) to promote the development of investment, equity and participation in, and access to, vocational education and training and adult community education; and (g) to promote pathways between the secondary school, vocational education and training, adult community education, and higher education sectors; and (h) to enter into reciprocal arrangements with appropriate bodies with respect to the recognition of education and training; and (i) to monitor, and make recommendations to the Minister on, the administration and operation of this Act; and (j) such other functions as may be assigned to the Commission by the Minister or by or under this or any other Act. (2) The Commission must, in advising or making recommendations to the Minister, to such extent as may be reasonably practicable, consult with— (a) industry and commerce, including industry, skills and other 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. (3) The Commission may, in accordance with any requirements in the regulations, establish such industry engagement or advisory bodies as the Commission thinks appropriate (which may but need not consist of members of the Commission). 20—Delegation (1) The Commission may, with the approval of the Minister, delegate any of its functions or powers under this Act to a specified person or body. (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 delegator to act in any matter. (3) A function or power delegated under this section may, if the instrument of delegation so provides, be further delegated. 21—Committees (1) The Commission may establish committees— (a) to advise the Commission; or (b) to carry out functions on behalf of the Commission. (2) The membership of a committee will be determined by the Commission and may, but need not, consist of, or include, members of the Commission. (3) The Commission will determine who will be the presiding member of a committee. (4) The procedures to be observed in relation to the conduct of the business of a committee will be— (a) as determined by the Commission; and (b) insofar as a procedure is not determined under paragraph (a)—as determined by the committee. 22—Validity of acts An act or proceeding of the Commission is not invalid by reason only of a vacancy in its membership. 23—Staff (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 TAFE SA Act 2012 assigned to work in the office of the Commission under this Act. (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 Act 2009; and (ii) officers or employees under the TAFE SA Act 2012 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. 24—Use of staff etc of Public Service The Commissioner 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. 25—Conflict of interest under Public Sector (Honesty and Accountability) Act A member of the Commission will not be taken to have a direct or indirect interest in a matter for the purposes of the Public Sector (Honesty and Accountability) Act 1995 by reason only of the fact that the member has an interest in a matter that is shared in common with employers generally or employees generally, or a substantial section of employers or employees. Division 3—South Australian Skills Standards 26—Commission to prepare South Australian Skills Standards (1) The Commission must, in accordance with any requirements set out in the regulations, prepare and maintain standards for the purposes of this Act (the South Australian Skills Standards). (2) The Commission may, in accordance with any requirements set out in the regulations, vary the South Australian Skills Standards (and must review the Standards at least every 5 years). (3) The Commission must cause the South Australian Skills Standards, or the South Australian Skills Standards as varied, (as the case requires) to be published— (a) in the Gazette; and (b) on a website determined by the Commission. (4) The South Australian Skills Standards, and any variation of the Standards, have effect from the day on which they are published in the Gazette. (5) For the purposes of this section, a reference to a variation of the South Australian Skills Standards will be taken to include a reference to the substitution of the Standards. Part 4—Apprenticeships, traineeships and training contracts Division 1—Interpretation 45—Interpretation (1) In this Part, unless the contrary intention appears— probationary period for a training contract for a trade or declared vocation—see subsection (2); remuneration means wages and other monetary benefits of employment; standard conditions for a training contract for a trade or declared vocation—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 or declared vocation; (c) determine standard conditions for a training contract for a specified trade or declared vocation, including— (i) the term of the contract; and (ii) the qualifications available for a person in the trade or declared vocation; 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). Division 1A—Certain training to occur under training contract 45A—Training in trade must occur under training contract (1) A person must not undertake to train a person in a trade except under a training contract. Maximum penalty: $5 000. Expiation fee: $315. (2) However, subsection (1) does not apply in relation to the further training or re‑training of a person who— (a) has already completed the training required under a training contract; or (b) has an equivalent qualification; or (c) has been certified by the Commission as competent in relation to the relevant trade. Note— This section does not limit the Commission's ability to recognise trade skills obtained through other pathways. 45B—Training in declared vocation may occur under training contract An employer may undertake to train a person in a declared vocation under a training contract. Division 2—Training contracts 46—Training contracts (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 or 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 or 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 or declared vocation; (iii) the standard conditions for a contract for the relevant trade or declared vocation; (iv) a condition that the apprentice or trainee will be trained and assessed in accordance with the training plan (to be agreed between the employer, the apprentice or trainee and a registered training provider chosen jointly by the employer and the apprentice or trainee); (v) any other conditions that have been agreed between the employer and the apprentice or trainee after consultation with the registered training provider. (7) A person under the age of 15 years must not enter into a training contract unless— (a) otherwise permitted under an industrial agreement or award; or (b) the person has, on application, obtained the written approval of the Commission granted in accordance with any requirements under the South Australian Skills Standards. (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—Training contracts to be approved by Commission (1) An employer must, not later than 28 days after entering an agreement— (a) under which the employer is to train a person in a trade, or to otherwise train a person under a training contract; and (b) that is intended to be a training contract, apply to the Commission for approval of the agreement as a training contract. Maximum penalty: $5 000. Expiation fee: $315. (2) An application under subsection (1)— (a) must be made in a manner and form determined by the Commission; and (b) must be accompanied by the agreement; and (c) must be accompanied by any other information or documents specified by the Commission. (3) The Commission may, by notice in writing, require an employer to provide, within a specified period, such other specified information or documents as may be required by the Commission for the purposes of determining an application. (4) The Commission must refuse to approve an agreement as a training contract— (a) if the employer is a prohibited employer; or (b) if, by training a person under the proposed training contract, the employer would commit an offence under section 46(4); or (c) in any other circumstances prescribed by the regulations. (5) The Commission may refuse to approve an agreement as a training contract for any other reason the Commission considers appropriate including where— (a) the agreement— (i) is not in the form of the standard form contract; or (ii) does not otherwise comply with this Act; or (b) the qualification to which the agreement relates is, in the opinion of the Commission, an inappropriate qualification for a training contract; or (c) the employer, or the apprentice or trainee, will, in the opinion of the Commission, be unable to fulfil their obligations under the proposed training contract; or (d) the requirements under this Act in relation to a training plan for the apprentice or trainee are unlikely to be satisfied; or (e) a term of the proposed training contract is, in the opinion of the Commission, prejudicial to the interests of the apprentice or trainee; or (f) the Commission reasonably suspects that the employer has engaged in conduct that is likely to result in the employer being declared a prohibited employer. (6) The Commission must, on determining an application under this section— (a) notify the employer and apprentice or trainee in writing of the Commission's determination; and (b) if the Commission refuses to approve an agreement—the reasons for the refusal; and (c) if the Commission approves an agreement as a training contract—the date of approval of the agreement. (7) An employer who has made an application under this section that has been refused by the Commission must not, except with the written authority of the Commission, continue to train a person in a trade under the refused agreement. Maximum penalty: $5 000. Expiation fee: $315. 48A—Transfer of training contracts between jurisdictions (1) The Commission may, in the case where a trainee or apprentice under a training contract (however described) entered into under the law of another State or Territory that is in force wishes to relocate to this State— (a) recognise (with or without modification) the training contract as a training contract under this Act; and (b) recognise (with or without modification) a training plan relating to the training contract as a training plan under this Act; and (c) substitute the employer in relation to the training contract for an employer in this State; and (d) recognise any employment undertaken, or achievement in relation to the training contract, in the other State or Territory; and (e) make such other arrangements in respect of the apprentice or trainee, or training contract, as the Commission considers necessary or appropriate. (2) The regulations may make further provisions in relation to the transfer of training contracts between jurisdictions (including, to avoid doubt, provisions limiting a training contract, or class of training contract, from being recognised under this section). 49—Commencement date of apprenticeship or traineeship and term of training contracts (1) Subject to this section, an apprenticeship or traineeship under a training contract will be taken to commence on— (a) if a commencement date is specified in the training contract—that date; or (b) if no such commencement date is specified—on the day on which the relevant agreement is approved as a training contract under section 48. (2) Subject to this section, a training contract remains in force until— (a) if the training contract specifies a period during which the training contract remains in force—the end of that period; or (b) if the training contract specifies an event on which occurrence the training contract ceases to be in force—the occurrence of that event; or (c) the Commission certifies the apprentice or trainee under the contract as competent in relation to the relevant trade or declared vocation; or (d) the contract is terminated under this Act, whichever occurs first. (3) The Commission may, on an application under this section or on its own motion, determine— (a) that the whole or a part of a period of training that occurred before the date of a training 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 a specified training contract; or (c) that a period of absence of an apprentice or trainee under a training contract be excluded from consideration in computing the length of service of the apprentice or trainee under the contract, and the training contract (including the term of the contract) is to be construed in accordance with the determination. (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 or trainee, or a former apprentice or trainee, the Commission may, on an application under this section or on its own motion, in accordance with any requirements set out in the South Australian Skills Standards— (a) certify that the apprentice or 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) To avoid doubt, subsection (5) applies whether or not the relevant training contract is still in operation. (7) An application under this section— (a) may be made by a party to a training contract; and (b) must be made in a manner and form determined by the Commission; and (c) must be accompanied by such information or documents as may be required by the Commission; and (d) must be accompanied by the prescribed fee. (8) Nothing in this section prevents the extension or reduction of the term of a training contract by SAET. (9) If a conflict occurs between a determination of the Commission under this section and a determination of SAET, the determination of SAET prevails. 49A—Extension of probationary period (1) The Commission may, on the application by a party to a training contract and in accordance with the South Australian Skills Standards, vary the contract to extend the probationary period for a contract for a specified period (however the probationary period, as extended, must not exceed 6 months in total or 25% of the term of the contract, whichever is the lesser). (2) If the Commission extends a probationary period under subsection (1), the Commission must give written notice of that fact to each party to the training contract. (3) The Commission may, by notice in the Gazette made with the approval of the Minister, vary a specified class of training contracts to extend the probationary period for a training contract of that class for a specified period (however the probationary period, as extended, must not exceed 6 months in total or 25% of the term of the contract, whichever is the lesser). 50—Commission may vary hours under training contract (1) The Commission may, on application by the parties to a training contract or on its own motion, 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 or trainee is employed. (2) The Commission may, on application by the parties to a school‑based training contract or on its own motion, vary the contract so that it provides for full‑time training or part‑time training (as the case requires) when the school‑based apprentice or trainee finishes school. 51—Commission may suspend training contract (1) The Commission may, on an application under this section or on its own motion, suspend a training contract. (2) An application under this section— (a) may be made by a party to a training contract; and (b) must be made in a manner and form determined by the Commission; and (c) must be accompanied by such information or documents as may be required by the Commission; and (d) must be accompanied by the prescribed fee. (3) A suspension under this section— (a) must be by notice in writing; (b) may be conditional or unconditional. (4) The Commission may, by notice in writing, vary or revoke a condition of a suspension. (5) A suspension under this section commences on the day specified by the Commission and remains in force for the period specified in the notice or until further notice by the Commission (as the case requires). 51A—Termination of training contract during probationary period (1) 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. (2) If a training contract is terminated during the probationary period, the employer in relation to the contract must, within 7 days of the termination, notify the Commission in writing of the termination. Maximum penalty: $5 000. Expiation fee: $315. 51B—Commission may terminate training contract (1) The Commission may, on an application under this section or on its own motion, terminate a training contract. (2) An application under this section— (a) may be made by a party to a training contract; and (b) must be made in a manner and form determined by the Commission; and (c) must be accompanied by such information or documents as may be required by the Commission; and (d) must be accompanied by the prescribed fee. (3) The Commission must cause written notice of a termination under this section to be given to each party under a training contract. (4) A termination under this section has effect on the day specified by the Commission. 51C—Offence to terminate etc training contract A person who, without being authorised to do so under this Act— (a) terminates or purports to terminate a training contract; or (b) suspends or purports to suspend a training contract, is guilty of an offence. Maximum penalty: $5 000. Expiation fee: $315. 52—Commission may require dispute resolution between parties to certain applications The Commission may, before determining an application under this Part for termination or suspension of a training contract, or substitution of an employer in relation to a training contract, require the parties to the training contract to undertake dispute resolution of a specified kind. 53—Effect of time spent training on employment of apprentice or trainee (1) Subject to this section, the time spent by an apprentice or trainee attending a course as part of their apprenticeship or traineeship will be treated for all purposes as part of the employment of the apprentice or trainee. (2) If it is necessary for an apprentice or trainee to re‑attend a course previously undertaken by the apprentice or 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 or trainee. 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—Prohibited employers 54B—Prohibited employers (1) The Commission may, by notice in writing and in accordance with any requirements set out in the regulations, declare an employer to be a prohibited employer if the Commission reasonably believes the employer is not a suitable person to employ an apprentice or trainee. (2) In determining whether or not an employer is suitable to employ an apprentice or trainee, the Commission must have regard to the following: (a) whether the employer is able to provide, or arrange to provide, an apprentice or trainee with the facilities, range of work, supervision and training required under a training plan for the apprentice or trainee; (b) the employer's record in delivering training to apprentices or trainees; (c) whether the employer behaves, or permits their employees to behave, in an objectionable way towards apprentices or trainees; (d) whether the employer has contravened this Act, or any other Act (whether of the State another State or Territory or the Commonwealth) relating to employment; (e) the criminal history of the employer; (f) whether the employer is a fit and proper person to employ an apprentice or trainee; (g) any other matter prescribed by the regulations, and may have regard to any other matter the Commission considers relevant to the decision whether or not to declare the employer to be a prohibited employer. (3) A declaration under this section— (a) may be conditional or unconditional; (b) may be for a stated or indefinite period. (4) The Commission may, by notice in writing, vary or revoke a condition of a declaration. 54C—Revocation of declaration (1) The Commission may, by notice in writing on the application of a prohibited employer or on the Commission's own motion, revoke a declaration under section 54B if the Commission is satisfied that it is, in all of the circumstances, appropriate to do so. (2) An application under this section— (a) must be made in a manner and form determined by the Commission; and (b) must be accompanied by any information or documents required by the Commission; and (c) must be accompanied by the prescribed fee. 54D—Offence for prohibited employer to employ etc apprentice or trainee (1) A prohibited employer must not— (a) employ, or offer to employ, a person as an apprentice or trainee; or (b) train, or undertake to train, a person in a trade; or (c) train, or undertake to train, a person in a declared vocation under a training contract. Maximum penalty: $10 000. (2) A prohibited employer must not permit an apprentice or trainee to be placed with the prohibited employer under a host employment arrangement. Maximum penalty: $10 000. 54E—Offence to make certain false representations relating to prohibited employers (1) A prohibited employer must not falsely represent that they are not a prohibited employer. Maximum penalty: $10 000. (2) A prohibited employer who is the subject of a conditional declaration under section 54B must not falsely represent that the declaration is, or is not, subject to a specified condition, or a condition of a specified kind. Maximum penalty: $10 000. (3) A person must not falsely represent that— (a) another person is not a prohibited employer; or (b) a declaration under section 54B that another person is a prohibited employer is, or is not, subject to a specified condition, or a condition of a specified kind. Maximum penalty: $10 000. Division 3A—Provisions relating to employers 54F—Registration of employers (1) The Commission must, on an application by or on behalf of an employer, register an employer under this section if— (a) the employer is not a prohibited employer; and (b) the employer satisfies any requirements set out in the regulations or the South Australian Skills Standards in relation to registration under this section; and (c) it is, in the opinion of the Commission, appropriate to register the employer under this section. (2) An application under this section— (a) must be made in a manner and form determined by the Commission; and (b) must be accompanied by any information or documents that may be required by the Commission; and (c) must be accompanied by the prescribed fee. (3) In registering an employer under this section, the Commission— (a) must impose such conditions on the registration as may be prescribed by the regulations; and (b) may impose such other conditions as the Commission thinks fit. (4) Registration under this section remains in force for the period (not exceeding 5 years) specified by the Commission and, on expiry, may be renewed in a manner determined by the Commission. 54G—Variation, suspension and cancellation of registration of employer (1) The Commission must, on declaring an employer to be a prohibited employer, cancel the employer's registration. (2) The Commission, on an application by a registered employer— (a) must cancel the employer's registration; and (b) may vary or revoke a condition of the employer's registration (not being a condition referred to in section 54F(3)(a)). (3) The Commission may, if satisfied that— (a) a registered employer has contravened a provision of this Act or a corresponding law; or (b) has failed to comply with a compliance notice; or (c) a registered employer has contravened a condition of the employer's registration; or (d) it otherwise is in the public interest, or the interest of apprentices or trainees employed by the employer, that the employer's registration be varied, suspended or cancelled (as the case requires), do such of the following as the Commission thinks fit: (e) vary or revoke a condition of the employer's registration; (f) impose a new condition on the employer's registration; (g) suspend the employer's registration for a specified period, or until further notice by the Commission; (h) cancel the employer's registration. (4) Subject to subsection (5), the Commission must give a registered employer at least 28 days written notice before taking action under this section. (5) The Commission may suspend the registration of an employer under this section without complying with subsection (4) if the Commission believes on reasonable grounds that— (a) an apprentice or trainee employed by the employer is at imminent risk of harm; and (b) it is reasonably necessary or appropriate to suspend the registration of an employer without complying with subsection (4) in order to manage that risk. (6) To avoid doubt, the Commission may exercise a power under this section whether the contravention occurred within or outside of this State. (7) In this section— corresponding law means a law of the Commonwealth, or of another State or Territory, declared by the regulations to be a corresponding law for the purposes of this section. 54H—Substitution of employer under training contract following cancellation, suspension or variation of registration (1) This section applies to a training contract where the registration of the employer in relation to the training contract— (a) has been cancelled under section 54G; or (b) has been suspended under section 54G; or (c) has been varied (whether under section 54G or otherwise) such that it is no longer, in the opinion of the Commission, appropriate that the employer continues as the employer in relation to the training contract. (2) The Commission may, on its own motion or on the application of a party to the training contract, substitute an employer in relation to a training contract to which this section applies if— (a) the proposed employer consents to the substitution; and (b) the proposed employer is not a prohibited employer; and (c) the proposed employer is— (i) a registered employer; and (ii) operating within the scope of the registration of the employer; and (iii) complying with any other condition of the registration. (3) Despite subsection (2)(c), the Commission may approve a substitution despite a proposed employer not being a registered employer if the proposed employer has applied for registration under this Division, but that application has not yet been determined. (4) A substitution of an employer under this section may be permanent, or for a period specified by the Commission. (5) The following provisions apply where an employer is substituted under this section: (a) the employment of the apprentice or trainee to which the training contract relates continues as employment with the new employer; (b) the training contract continues in force, subject to the substitution; (c) any rights, obligations and liabilities of the former employer in respect of the training contract are, by force of this paragraph, transferred to the new employer. 54I—Offence to make certain false representations relating to registration (1) A person must not falsely represent that they are a registered employer. Maximum penalty: $10 000. (2) A registered employer must not falsely represent that the employer's registration is, or is not, subject to a specified condition, or a condition of a specified kind. Maximum penalty: $10 000. (3) A person must not falsely represent that— (a) another person is a registered employer; or (b) the registration of another person is, or is not, subject to a specified condition, or a condition of a specified kind. Maximum penalty: $10 000. 54J—Employer's obligations under training contract (1) An employer in relation to a training contract must comply with the following provisions (the employer's obligations under the training contract): (a) the employer must comply with the South Australian Skills Standards; (b) the employer must permit an apprentice or trainee under the training contract to carry out their obligations under the training contract; (c) the employer must not place, or permit the placement of, an apprentice or trainee under the training contract with a prohibited employer; (d) the employer must not, without the authorisation of the Commission, place, or permit the placement of, an apprentice or trainee under the training contract with an employer who is not a registered employer; (e) the employer must not— (i) prevent or obstruct the apprentice or trainee from carrying out their obligations under a training plan; (ii) prevent or obstruct the apprentice or trainee from participating in any training required to be delivered by the nominated training organisation under a training plan; or (iii) prejudice the employment of the apprentice or trainee, or place the apprentice or trainee at a disadvantage, because the apprentice or trainee participates or attempts to participate in such training; or (iv) take any other steps to discourage the apprentice or trainee from participating in such training; (f) the employer must comply with any other obligation specified in the training contract or training plan that is applicable to the employer. (2) Each of the provisions referred to in subsection (1) will be taken to be a condition of the employer's registration. (3) Without limiting any other provision of this Act, the Commission may, in relation to an employer's failure to satisfy the employer's obligations under the training contract, do 1 or more of the following: (a) give the employer a written warning; (b) vary, suspend or cancel the employer's registration under section 54G(3); (c) issue a compliance notice under section 63; (d) declare the employer to be a prohibited employer under Part 3. 54K—Employer to notify Commission of certain matters (1) An employer in relation to a training contract must notify the Commission if any of the following occurs: (a) there is a material change in any information provided to the Commission in relation to the employer's application for registration; (b) the employer sells, or offers for sale, the business to which the employer's registration relates; (c) the employer, or the business to which the employer's registration relates, becomes insolvent or bankrupt; (d) the employer is convicted of an indictable offence or a summary offence for which a term of imprisonment may be imposed; (e) any other matter prescribed by the regulations. (2) A notice under subsection (1)— (a) must be given in a manner and form determined by the Commission; and (b) must be given as soon as is reasonably practicable after the relevant matter occurs; and (c) must contain the information required by the regulations for the purposes of this paragraph. (3) An employer who refuses or fails to comply with subsection (1) is guilty of an offence. Maximum penalty: $5 000. Expiation fee: $315. 54L—Making and retention of records (1) An employer in relation to a training contract must keep such records as may be required by the regulations. 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 completion, expiry or termination (as the case requires) of the training contract to which the record relates. Maximum penalty: $5 000. Expiation fee: $315. Division 3B—Provisions relating to apprentices and trainees 54M—Obligations of apprentices and trainees under training contracts (1) An apprentice or trainee in relation to a training contract must comply with the following provisions: (a) the apprentice or trainee must comply with the South Australian Skills Standards; (b) the apprentice or trainee must comply with any other obligation specified in the training contract or training plan that is applicable to the apprentice or trainee; (c) the apprentice or trainee must, as far as is reasonably practicable, participate in the development of their training plan, and contribute to the attainment of their development goals under the training contract and training p