Training and Workforce Development (Transitional Provisions) Act 2013 (Tas)

Training and Workforce Development (Transitional Provisions) Act 2013 An Act to provide for matters of a savings and transitional nature, and to provide for the avoidance of doubt in respect of certain matters, consequent on the enactment of the Training and Workforce Development Act 2013 and the repeal of the Vocational Education and Training Act 1994 , the Education and Training (Tasmanian Polytechnic) Act 2008 and the Education and Training (Tasmanian Skills Institute) Act 2008 [Royal Assent 13 June 2013] Be it enacted by His Excellency the Governor of Tasmania, by and with the advice and consent of the Legislative Council and House of Assembly, in Parliament assembled, as follows: PART 1 - Preliminary 1. Short title This Act may be cited as the Training and Workforce Development (Transitional Provisions) Act 2013 . 2. Commencement This Act commences on 1 July 2013. PART 2 - Transitional Matters for TasTAFE 3. Interpretation of Part In this Part – commencement day means 1 July 2013; Education Department means the department responsible to the Minister to whom the administration of the Training and Workforce Development Act 2013 , other than Part 5 , is assigned; Polytechnic means the Tasmanian Polytechnic continued as a State educational institution by section 5 of the Polytechnic Act; Polytechnic Act means the Education and Training (Tasmanian Polytechnic) Act 2008 as in force immediately before the commencement day; Polytechnic contract means any contract in force immediately before the commencement day and entered into in the name of the Polytechnic or by the Crown in relation to the performance of the functions of the Polytechnic, other than a contract of employment or a contract determined under section 4(3) not to be a Polytechnic contract; Polytechnic liability means any liability or obligation (whether actual, prospective or contingent) belonging, immediately before the commencement day, to the Polytechnic or the Crown in relation to the performance of the functions of the Polytechnic, other than a liability or obligation determined under section 4(3) not to be a Polytechnic liability; Polytechnic property means any property or right held, immediately before the commencement day, in the name of the Polytechnic or by the Crown in relation to the performance of the functions of the Polytechnic, other than any property or right determined under section 4(3) not to be Polytechnic property; Secretary means the Secretary of the Education Department; Skills Institute means the Tasmanian Skills Institute established under section 5 of the Skills Institute Act; Skills Institute Act means the Education and Training (Tasmanian Skills Institute) Act 2008 as in force immediately before the commencement day; Skills Institute audit committee means the audit committee established under section 18 of the Skills Institute Act, as constituted immediately before the commencement day; Skills Institute Board means the Board of Directors of the Skills Institute established under section 8 of the Skills Institute Act, as constituted immediately before the commencement day; Skills Institute contract means any contract in force immediately before the commencement day and entered into by the Skills Institute, other than a contract of employment, or a contract determined under section 4(3) not to be a Skills Institute contract; Skills Institute liability means any liability or obligation (whether actual, prospective or contingent) belonging, immediately before the commencement day, to the Skills Institute, other than a liability or obligation determined under section 4(3) not to be a Skills Institute liability; Skills Institute property means any property or right vested, immediately before the commencement day, in the Skills Institute, other than any property or right determined under section 4(3) not to be Skills Institute property; TasTAFE means TasTAFE created under section 56 of the Training and Workforce Development Act 2013 ; TasTAFE Act means Part 5 of the Training and Workforce Development Act 2013 . 4. TasTAFE successor in title to Polytechnic and Skills Institute (1) For the avoidance of doubt, it is declared that TasTAFE is the legal successor in title in relation to all Polytechnic property, Polytechnic liabilities, Polytechnic contracts, Skills Institute property, Skills Institute liabilities and Skills Institute contracts. (2) Despite the merger and continuation as TasTAFE of the Polytechnic and the Skills Institute by section 56 of the Training and Workforce Development Act 2013 , TasTAFE is not the legal successor in title in relation to any property, liability or contract determined by the Minister under subsection (3) not to be Polytechnic property, a Polytechnic liability, a Polytechnic contract, Skills Institute property, a Skills Institute liability or a Skills Institute contract. (3) The Minister, by notice published in the Gazette, may determine that – (a) any property or right is not Polytechnic property or Skills Institute property; and (b) a liability or obligation (whether actual, prospective or contingent) is not a Polytechnic liability or a Skills Institute liability; and (c) a contract is not a Polytechnic contract or a Skills Institute contract. (4) A notice under subsection (3) is not a statutory rule for the purposes of the Rules Publication Act 1953 . 5. Continuation of Skills Institute Board and Skills Institute audit committee Despite the repeal of the Skills Institute Act by the Training and Workforce Development (Repeals and Consequential Amendments) Act 2013 , the Skills Institute Board and the Skills Institute audit committee continue until abolished under section 6 . 6. Abolition of Skills Institute, Skills Institute Board and Skills Institute committees (1) The Skills Institute is abolished on the commencement day. (2) The Skills Institute Board is abolished on the day determined by the Minister by notice published in the Gazette. (3) The Minister is not to determine a day for the abolition of the Skills Institute Board until satisfied that it has fulfilled its obligations under this Part. (4) The appointment of each member of the Skills Institute Board is terminated on the day that Board is abolished. (5) The Skills Institute audit committee is abolished on the day the Skills Institute Board is abolished and the appointment of each of its members is terminated on that day. (6) All committees established under section 19 of the Skills Institute Act, as constituted immediately before the commencement day, are abolished on the commencement day and the appointment of each member of such a committee is terminated on the commencement day. (7) A member of the Skills Institute Board, the audit committee referred to in subsection (5) or a committee referred to in subsection (6) is not entitled to receive any benefit in respect of the termination of his or her appointment as such a member. (8) A notice under subsection (2) is not a statutory rule for the purposes of the Rules Publication Act 1953 . 7. TasTAFE interim board (1) In this section – interim board means the board established for the purposes of preparing for and overseeing the establishment of TasTAFE prior to the formal commencement of the Training and Workforce Development Act 2013 and consisting of persons appointed – (a) to the interim board of TasTAFE; and (b) by the Minister; and (c) for the purposes of preparing for the establishment of, and establishing, TasTAFE; interim chairperson means the member of the interim board that was appointed by the Minister as chairperson of the interim board on 22 November 2012. (2) A member of the interim board is taken to have been appointed as a member of the Board of Directors of TasTAFE under section 60(1) of the Training and Workforce Development Act 2013 for the term and on the conditions, including remuneration, specified in his or her instrument of appointment to the interim board. (3) The person appointed by the Minister as interim chairperson is taken to have been appointed as chairperson of the Board of Directors of TasTAFE under section 60(5) of the Training and Workforce Development Act 2013 for the term and on the conditions, including remuneration, specified in his or her instrument of appointment to the office of chairperson of the interim board. (4) Any act done by the interim board, its interim chairperson or a member of the interim board for the purposes of – (a) preparing for the establishment of, or establishing, TasTAFE; or (b) bringing into operation, or giving full effect to, this Act or the TasTAFE Act – is not invalid by reason only of the fact that this Act or the TasTAFE Act had not commenced or been enacted and, if appropriate, is taken to have been done by the Board of Directors of TasTAFE, its chairperson or a member of that Board of Directors under this Act or the TasTAFE Act. 8. Interim chief executive officer (1) In this section – interim chief executive officer means the person appointed – (a) on 3 December 2012; and (b) pursuant to and in accordance with the provisions of section 31 of the State Service Act 2000 as the chief executive officer of TasTAFE; and (c) by the Premier. (2) The interim chief executive officer is taken to have been appointed as the chief executive officer of TasTAFE under section 66 of the Training and Workforce Development Act 2013 for the term and on the conditions, including remuneration, specified in his or her instrument of appointment to the office of chief executive officer of TasTAFE. (3) Any act done by the interim chief executive officer for the purposes of – (a) preparing for the establishment of, or establishing, TasTAFE; or (b) bringing into operation, or giving full effect to, this Act or the TasTAFE Act – is not invalid by reason only of the fact that this Act or the TasTAFE Act had not commenced or been enacted and, if appropriate, is taken to have been done by the chief executive officer of TasTAFE under this Act or the TasTAFE Act. 9. Employees of TasTAFE (1) In this section – transferring employee means – (a) a person who, on the commencement day, would have been holding an appointment, or would have been taken to have been holding an appointment, made under the State Service Act 2000 for the purposes of the Education Department in relation to the Polytechnic or for the purposes of the Polytechnic Act had the Training and Workforce Development Act 2013 and this Act not been enacted; or (b) a person who, on the commencement day, would have been holding an appointment, or would have been taken to have been holding an appointment, made under the State Service Act 2000 for the purposes of the Skills Institute or the Skills Institute Act. (2) For the avoidance of doubt, it is declared that the appointment of a transferring employee under the State Service Act 2000 continues and is taken to have been made for the purposes of TasTAFE and Part 5 of the Training and Workforce Development Act 2013 . (3) The continuation of the appointment of a transferring employee, as done by or referred to in this section, is not a State Service action for the purposes of section 50 of the State Service Act 2000 . 10. Students and courses (1) For the avoidance of doubt, it is declared that, if a person, immediately before the commencement day, was enrolled as a student at or with the Polytechnic or the Skills Institute, that enrolment continues at or with TasTAFE. (2) For the avoidance of doubt, it is declared that, if immediately before the commencement day a course of education and training was being provided to students enrolled at or with the Polytechnic or the Skills Institute and, but for the commencement of the Training and Workforce Development (Repeals and Consequential Amendments) Act 2013 , that course would continue on or after the commencement day, that course continues as a course provided by TasTAFE. (3) For the avoidance of doubt, it is declared that, if before the commencement day a course of education and training has been offered to be provided to students enrolled at or with the Polytechnic or the Skills Institute but has not commenced, that offer continues as an offer by TasTAFE to its students and TasTAFE may provide that course on and after the commencement day. 11. By-laws of Skills Institute (1) In this section – Skills Institute by-laws means the Education and Training (Tasmanian Skills Institute) By-laws 2010 . (2) The Skills Institute by-laws – (a) continue until the first of the following occurs: (i) they are rescinded; (ii) the period of 6 months commencing on the commencement day ends; and (b) for that purpose, are taken to have been made by the TasTAFE Board under section 85 of the Training and Workforce Development Act 2013 . (3) In the application of the Skills Institute by-laws on and after the commencement day – (a) a reference to the Act is a reference to the TasTAFE Act and a reference to a section of the Act is a reference to the corresponding section of the TasTAFE Act; and (b) a reference to the Skills Institute is a reference to TasTAFE; and (c) a reference to the Board is a reference to the Board of Directors of TasTAFE; and (d) a reference to the chief executive officer is a reference to the chief executive officer of TasTAFE; and (e) a reference to a student is taken to be a reference to a TasTAFE student; and (f) a reference to the Polytechnic is taken to have been omitted from the by-laws; and (g) a person who, immediately before the commencement day, was an authorised person for the purposes of the Skills Institute by-laws continues to be such an authorised officer. (4) For the avoidance of doubt, it is declared that – (a) any disciplinary hearing under the Skills Institute by-laws commenced but not completed before the commencement day may be continued by the chief executive officer of TasTAFE; and (b) any disciplinary sanction imposed by the chief executive officer under the Skills Institute by-laws on any of its students before the commencement day is taken, if appropriate, to have been imposed by the chief executive officer of TasTAFE; and (c) any appeal under the Skills Institute by-laws against the imposition of a disciplinary sanction commenced but not completed before the commencement day may be continued by the Board of Directors of TasTAFE; and (d) any disciplinary sanction confirmed or substituted by the Skills Institute Board on an appeal under the Skills Institute by-laws against the imposition of a disciplinary sanction before the commencement day is taken, if appropriate, to have been confirmed or substituted by the Board of Directors of TasTAFE; and (e) if the issue of an award from the Skills Institute was deferred under the Skills Institute by-laws and so not issued before the commencement day, that award is taken to be an award of TasTAFE and may be issued by TasTAFE in accordance with the by-laws. 12. Provisions relating to Polytechnic Regulations (1) In this section – Polytechnic Regulations means the Education and Training (Tasmanian Polytechnic) Regulations 2011 , as in force immediately before the commencement day. (2) A disciplinary hearing under the Polytechnic Regulations commenced but not completed before the commencement day may be continued by the chief executive officer of TasTAFE. (3) A disciplinary sanction imposed by the Secretary of the Education Department or an authorised person under the Polytechnic Regulations on a student of the Polytechnic before the commencement day is taken, if appropriate, to have been imposed by the chief executive officer of TasTAFE. (4) An appeal under the Polytechnic Regulations against the imposition of a disciplinary sanction commenced but not completed before the commencement day may be continued by the Board of Directors of TasTAFE. (5) A disciplinary sanction confirmed or substituted by the Secretary of the Education Department on an appeal under the Polytechnic Regulations against the imposition of a disciplinary sanction before the commencement day is taken, if appropriate, to have been confirmed or substituted by the Board of Directors of TasTAFE. (6) If the issue of an award from the Polytechnic was deferred under the Polytechnic Regulations and so not issued before the commencement day, that award is taken to be an award of TasTAFE and may be issued by TasTAFE in accordance with the by-laws. 13. Authorised deposit-taking institution accounts Despite TasTAFE being the legal successor in title to the Skills Institute, on or as soon as practicable after the commencement day, the Skills Institute Board is to close all authorised deposit-taking institution accounts that are maintained in the name of the Skills Institute and is to deal with the money from those accounts as specified by the Minister by notice provided to the Skills Institute Board. 14. Legal matters (1) In this section – relevant Polytechnic contract means a Polytechnic contract that has not been performed or discharged before the commencement day; relevant Skills Institute contract means a Skills Institute contract that has not been performed or discharged before the commencement day; transferred matter means Polytechnic property, a Polytechnic liability, a relevant Polytechnic contract, Skills Institute property, a Skills Institute liability, a relevant Skills Institute contract, a transferring student or a transferring employee; transferring employee has the same meaning as in section 9 ; transferring student means a person who, immediately before the commencement day, was enrolled as a student at or with the Polytechnic or the Skills Institute and who, but for the commencement of the Training and Workforce Development Act 2013 and the Training and Workforce Development (Repeals and Consequential Amendments) Act 2013 , would have remained enrolled as a student at or with the Polytechnic or the Skills Institute. (2) For the avoidance of doubt, it is declared that a legal proceeding in relation to a transferred matter that is instituted by or against the Crown or the Skills Institute and is pending immediately before the commencement day may be continued by or against TasTAFE. (3) For the avoidance of doubt, it is declared that a legal proceeding in relation to a transferred matter that could have been instituted by or against the Crown or the Skills Institute to enforce a right that had accrued, and was in existence, immediately before the commencement day may be instituted by or against TasTAFE. (4) For the avoidance of doubt, it is declared that a judgment or order of a court obtained by or against the Crown or the Skills Institute in relation to a transferred matter before the commencement day may be enforced by or against TasTAFE. 15. Financial statements of Skills Institute (1) As soon as practicable after the commencement day, the Skills Institute Board is to – (a) prepare financial statements for the Skills Institute for the financial year ending on 30 June 2013; and (b) provide the Auditor-General with those financial statements. (2) The financial statements are to contain the information and documents that are referred to in section 27(2) of the Skills Institute Act. (3) The financial statements – (a) are to comply with any directions given under subsection (4) ; and (b) subject to any directions so given, are to comply with the Australian Accounting Standards. (4) The Treasurer may give written directions to the Skills Institute Board with respect to the form of the financial statements. (5) The Skills Institute audit committee is to provide the Skills Institute Board with such advice as that Board requires for the purposes of fulfilling its obligations under this section. (6) The Auditor-General must – (a) audit the financial statements as if the Skills Institute were still in existence and a State authority, within the meaning of the Audit Act 2008 ; and (b) provide the Skills Institute Board and the Minister with a copy of his or her report made under section 19 of the Audit Act 2008 . 16. Annual report (1) As soon as practicable after the commencement day, the Skills Institute Board is to prepare and provide to the Minister an annual report for the financial year ending on 30 June 2013. (2) The annual report is to contain the information and documents referred to in section 29(2) of the Skills Institute Act. (3) The Minister is to lay a copy of the annual report before each House of Parliament within 10 sitting-days after receiving the annual report under subsection (1) . (4) If the Minister is unable to comply with subsection (3) before the expiration of the period specified in that subsection, the Minister is to lay before each House of Parliament a statement specifying – (a) the reasons for the failure to comply with that subsection; and (b) an estimate of the day by which a copy of the annual report may be ready to be laid before each House of Parliament. 17. References to Skills Institute Act and Polytechnic Act If appropriate, a reference in an Act or document to the Skills Institute Act or a provision of the Skills Institute Act, or to the Polytechnic Act or a provision of the Polytechnic Act, is taken to be, or to include, a reference to Part 5 of the Training and Workforce Development Act 2013 or the corresponding provision in Part 5 of the Training and Workforce Development Act 2013 . PART 3 - Transitional Matters for Former Skills Tasmania and Former TTAC 18. Interpretation of Part In this Part – commencement day means 1 July 2013; Education Department means the department responsible to the Minister to whom the administration of the Training and Workforce Development Act 2013 , other than Part 5 , is assigned; former Skills Tasmania means Skills Tasmania established under section 6 of the former VET Act; former Skills Tasmania audit committee means the audit committee established under section 14(1)(a) of the former VET Act, as constituted immediately before the commencement day; former Skills Tasmania Board means the Board of Directors of Skills Tasmania established under section 10C of the former VET Act, as constituted immediately before the commencement day; former Skills Tasmania Equity Committee means the committee of that name established under section 14(1)(c) of the former VET Act, as constituted immediately before the commencement day; former TTAC means the Tasmanian Training Agreements Committee established under section 14(1)(b) of the former VET Act; former VET Act means the Vocational Education and Training Act 1994 as in force immediately before the commencement day; new TTAC means the Tasmanian Traineeships and Apprenticeships Committee established under section 17 of the Training and Workforce Development Act 2013 ; Secretary means the Secretary of the Education Department. 19. Continuation of former Skills Tasmania Board and former Skills Tasmania audit committee Despite the repeal of the former VET Act by the Training and Workforce Development (Repeals and Consequential Amendments) Act 2013 , the former Skills Tasmania Board and the former Skills Tasmania audit committee continue until abolished under section 20 . 20. Abolition of former Skills Tasmania, former Skills Tasmania Board and former Skills Tasmania committees (1) In this section – prescribed committee means a committee established under section 14(1)(c) of the former VET Act, as constituted immediately before the commencement day, but does not include the former Skills Tasmania Equity Committee. (2) The former Skills Tasmania is abolished on the commencement day. (3) The former Skills Tasmania Board is abolished on the day determined by the Minister by notice published in the Gazette. (4) The Minister is not to determine a day for the abolition of the former Skills Tasmania Board until satisfied that it has fulfilled its obligations under this Part. (5) The appointment of each member of the former Skills Tasmania Board is terminated on the day that Board is abolished. (6) The former Skills Tasmania audit committee is abolished on the day the former Skills Tasmania Board is abolished and the appointment of each of its members is terminated on that day. (7) The former TTAC and all prescribed committees are abolished on the commencement day and the appointment of each member of such a committee is terminated on that day. (8) A member of the former Skills Tasmania Board, the former Skills Tasmania audit committee or a committee referred to in subsection (7) is not entitled to receive any benefit in respect of the termination of his or her appointment as such a member. (9) A notice under subsection (3) is not a statutory rule for the purposes of the Rules Publication Act 1953 . 21. Continuation of Skills Tasmania Equity Committee (1) The former Skills Tasmania Equity Committee continues and is taken to be a committee, with the name of "Skills Tasmania Equity Committee" (continuing committee), established by the Secretary under section 7 of the Training and Workforce Development Act 2013 . (2) For the avoidance of doubt, it is declared – (a) that the initial members, and the chairperson, of the continuing committee are the persons who held office as member, and chairperson, of the former Skills Tasmania Equity Committee immediately before the commencement day; and (b) that those persons hold those offices in the continuing committee for the term and on the conditions specified in their instruments of appointment. 22. General manager of former Skills Tasmania (1) In this section – general manager means the person appointed as general manager of the former Skills Tasmania under section 10I of the former VET Act and holding that office immediately before the commencement day. (2) For the avoidance of doubt, it is declared that the appointment of the general manager under the State Service Act 2000 continues for the purposes of the Education Department. (3) The transfer, by reason of this section, of the employment of the general manager from employment for the purposes of the former Skills Tasmania to employment for the purposes of the Education Department is not a State Service action for the purposes of section 50 of the State Service Act 2000 . 23. Initial members of new TTAC The initial members of the new TTAC are those persons who, immediately before the commencement day, were members of the former TTAC and for that purpose each of those persons – (a) is taken to have been appointed as a member of the new TTAC by the Minister under section 17 of the Training and Workforce Development Act 2013 ; and (b) holds office as a member of the new TTAC for the term specified in, and on and in accordance with the terms of, his or her appointment as a member of the former TTAC. 24. Tasmanian Operational Requirements for Group Training Organisations and registered group training organisations (1) In this section – former Operational Requirements means the Tasmanian Operational Requirements for Group Training Organisations – (a) issued by the former TTAC and published on the website of the former Skills Tasmania; and (b) as in force immediately before the commencement day; listed group training organisation has the same meaning as in the Training and Workforce Development Act 2013 ; operational requirement guidelines means guidelines made by the new TTAC under section 21 of the Training and Workforce Development Act 2013 in relation to operational requirements for group training organisations in Tasmania. (2) The former Operational Requirements are taken to be operational requirement guidelines and continue to have effect, in so far as they are not inconsistent with the Training and Workforce Development Act 2013 , until such time as they are repealed by the new TTAC under section 21 of that Act. (3) A group training organisation that, immediately before the commencement day, was registered under the former Operational Requirements is taken to have been registered as a listed group training organisation under section 13 of the Training and Workforce Development Act 2013 until – (a) the end of the term for which it was registered under the former Operational Requirements; or (b) its registration as a listed group training organisation is cancelled under section 15 of that Act – whichever first occurs. 25. Training agreements (1) In this section – existing training agreement means a training agreement that – (a) was entered into under section 34 , and approved by the former TTAC under section 36 , of the former VET Act; and (b) had effect immediately before the commencement day – and includes any amendment to such a training agreement; training contract means a training contract entered into under section 30, and approved by the TTAC under section 32 , of the Training and Workforce Development Act 2013 . (2) An existing training agreement – (a) continues to have effect in accordance with its terms and subject to its conditions; and (b) is taken to be a training contract. (3) If immediately before the commencement day an existing training agreement was suspended and would have continued to be suspended had not the former VET Act been repealed by the Training and Workforce Development (Repeals and Consequential Amendments) Act 2013 , that suspension – (a) continues to have effect in accordance with its terms; and (b) is taken to have been done under section 36 of the Training and Workforce Development Act 2013 by the parties, with the approval of the Secretary, or by the Secretary, as appropriate. (4) If – (a) a determination or approval was made or given by the former TTAC under a provision of the former VET Act in relation to training agreements generally, a class of training agreements or a particular existing training agreement; and (b) that determination or approval is in effect immediately before the commencement day – that determination or approval is taken to have been made or given by the Secretary or the new TTAC, as appropriate, under the corresponding provision of the Training and Workforce Development Act 2013 in relation to training contracts generally, a class of training contracts or the relevant particular training contract. (5) For the purposes of, and without limiting the generality of, subsection (4) , a determination or approval by the former TTAC referred to in that subsection includes – (a) a determination as to whether an employer is a fit and proper person for the purposes of entering into training agreements; and (b) an approval of a temporary release from the obligations of an existing training agreement. (6) A direction validly given to a party to an existing training agreement by the former TTAC, under a provision of th