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, equi