Training and Skills Development Amendment Bill

Now Closed

This online engagement was hosted on YourSAy from 2 July to 20 August 2020. Below is a record of the engagement.

Below is an overview of the changes to the Bill, which is also available to download.

If you are interested in learning about the changes in more depth than what is provided below, you can download the Extended Explanation of Changes PDF.

Introduction

• strengthening the state's economic base by providing a modern, skilled workforce
• promoting partnerships within government, industry and other enterprises
• supporting 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
• establishing a simple, streamlined apprenticeship and traineeship system featuring flexible, industry‐endorsed approaches to training and skills development
• recognising the importance of the vocational education and training (VET) system, including adult community education (ACE)
• facilitating lifelong learning
• promoting equity in training and skills development.

• establishing the South Australian Skills Commission, supported by the South Australian Skills Commissioner (building on the success of the Industry Skills Councils)
• introducing an expanded scope of trades and declared vocations
• streamlining employer registration and introducing a new category of prohibited employer
• introducing a fee payable by employers on the transfer of a training contract
• balancing and substantiating the obligations of parties to training contracts
• recognising other forms of trade training.

Discussion of changes

A simplified Act that is easier to use

The Bill improves the structure and clarity of the Act, to assist stakeholders to meet the obligations the Act imposes on them. In this context, improvements are made to:

• the Act’s objects and guiding principles
• the fee and penalty structure, linked to more logical use of compliance notices
• reducing the amount of prescription under the Act, including by moving elements of the Act to regulations and guidelines
• removing redundant and inconsistent definitions and terminology
• reflect the referral of state powers relating to higher education, VET quality and supervision of registered training organisations to the Commonwealth in 2012.

The South Australian Skills Commission is established

The South Australian Skills Commission (Commission) is established. This role is responsible to the South Australian Skills Commissioner (Commissioner), a new office created by the Bill.

The Commission will replace and combine the roles of the Training and Skills Commission and the Training Advocate (streamlining the training system and removing confusion and duplication). The Commissioner supports the work of the Commission but is not bound by its recommendations.

The Commission is subject to direction by the Minister (but not to make a particular finding or recommendation).

The Commission consists of the Commissioner and up to 10 other members appointed by the Minister. Members must have the abilities and experience required for the effective performance of the Commission’s functions.

The functions of the Commission are to:

• advise the Minister on workforce development, strategies for developing VET and ACE, funding needs and South Australia’s role in an integrated national system
• promote the development of investment, equity and participation in, and access to, VET and ACE, including expenditure of public money
• regulate apprenticeships and traineeships
• prepare South Australian Skills Guidelines
• assist in settlement of disputes between parties to training contracts
• assist in conciliation or advocacy services in disputes, including providing advocacy services before the South Australian Employment Tribunal (SAET)
• enter reciprocal arrangements with appropriate bodies for the recognition of education and training
• promote pathways between secondary school, VET, ACE and the higher education sectors
• monitor the administration and operation of the Act.

The South Australian Skills Commissioner is established

The Bill establishes the South Australian Skills Commissioner. This role is appointed by the Governor for a term up to five years and may be renewed for up to two consecutive terms.

The Commissioner is subject to direction by the Minister but cannot be directed to make a particular finding or recommendation. Any such direction must be published in an annual report.

The Commissioner is subject to the standard conditions of appointment for statutory appointments. In addition to supporting the operations of the Commission, the functions of the Commissioner are to:

• advise and assist the Minister in relation to the Minister’s functions and further the objects of the Act
• carry our functions conferred on the Commissioner under the Act or other legislation
• provide reports before Parliament.

Pathways and declaration of trades and declared vocations

Under the Bill the Minister may, on the recommendation of the Commission, declare an occupation to be a trade or declared vocation. This power expands the scope, in addition to primary qualifications, to include:

• pre‐apprenticeships
• specified skill sets
• higher qualifications
• other matters the Minister thinks appropriate.

Streamlined employer registration

The Bill streamlines provisions under the current Act relating to employer registration. As a result of changes introduced by the Bill, the Commission must register an employer if:

• the employer is not a prohibited employer
• the application to register satisfies any requirements under regulations or guidelines
• it is appropriate to register the employer.

The Commission will continue to have the power to impose restrictions on registration in appropriate circumstances.

Registration may be renewed after five years in a matter determined by the Commission, and the Commission may vary, suspend or cancel registration with 28 days ’notice unless an apprentice or trainee employed is at imminent risk of harm; and it is reasonably necessary or appropriate to suspend the registration of the employer in order to manage that risk.

Prohibited employers

Under changes introduced by the Bill, the Commission may declare an employer to be a prohibited employer, and in making such a declaration, must have regard to:

• the employer’s facilities, range of work, supervision and training required for the apprenticeship or traineeship
• the employer’s record in delivering training to apprentices or trainees
• the behaviour of the employer or employees towards apprentices and trainees
• a contravention of the Act, or any other Act related to employment
• criminal history of the employer
• whether the employer is a fit and proper person to employ an apprentice or trainee.

A declaration may be conditional or unconditional, for a stated or indefinite period and may be varied or revoked on the application of the employer the subject of the declaration.

The effect of a declaration is that a prohibited employer must not employ or offer to employ or train an apprentice or trainee, nor permit an apprentice or trainee to be placed with a host employer.

A prohibited employer (or one subject to a conditional declaration) may not make a false representation relating to their status as a prohibited employer.

The Commission may revoke a declaration on the application by the employer or on its own motion, and the South Australian Civil and Administrative Tribunal (SACAT) may review a decision of the Commission to declare a person a prohibited employer.

Transfer fee

The Bill introduces a transfer fee payable from an employer to another employer when a training contract is transferred from the former to the latter. Such transfer (or substitution) must be approved by the Commission, which can consider the submissions of the first employer in relation to the proposed transfer of the apprenticeship or traineeship.

An employer or employers of a specified class subject to a transfer fee can be exempt from the fee by regulation.

The amount of the fee is based on the size of business, and small businesses (with fewer than 20 employees) pay a lower fee. The amount of the fee will be specified under regulation and will vary based on the number of years served by the apprentice or trainee in their current apprenticeship or traineeship.

Balance of obligations of parties to training contracts

The Bill places a stronger focus on the obligations of parties to training contracts.

In particular, employers must:

• comply with the South Australian Skills Guidelines
• permit apprentices and trainees to carry out obligations under the training contract and training plan
• not place an apprentice or trainee with a prohibited employer or an employer who is not registered
• not prevent an apprentice or trainee from participating in required training, or prejudice or disadvantage an apprentice or trainee because of training, or discourage participation in training.

The Commission, in relation to a breach of these obligations, may issue a written warning; vary, suspend or cancel registration; issue a compliance notice; or declare the employer a prohibited employer.

Apprentices must:

• comply with the South Australian training guidelines
• comply with obligations specified in the training contract or training plan
• participate in the development of their training plan and attainment of development goals.

In relation to an apprentice or trainee’s breach of any of the above, the Commission may issue a warning, require parties to attend conciliation, or suspend or terminate the training contract.

Nominated training organisations

The Bill improves clarity around the role of registered training organisations (RTOs), which are key to the success of apprenticeships and traineeships.

In this context, the Bill:

• prescribes a nominated training organisation (NTO, an RTO or a recognised higher education provider), which must be agreed by the employer and apprentice or trainee
• ensures an apprentice or trainee may have more than one NTO at any time.

NTOs have obligations to:

• comply with South Australian Skills Guidelines
• comply with the obligations in the training plan
• ensure the training required is provided in accordance with the training plan
• notify the Commission if the apprentice or trainee is not meeting goals in the training plan
• notify the Commission if it cannot comply with any obligations, or it ceases to be the NTO.

Parties to a training contract may substitute the NTO for a different NTO.

Recognition of other trade training

The Bill provides a clearer framework for recognition of qualifications or experience in relation to a trade or vocation outside of a training contract.

In relation to this, the Commission may:

• require an examination, test or independent competency assessment or seek expert advice
• determine an applicant is adequately trained and issue a certificate of proficiency.

In making a determination, the Commission must consider work history, training received, qualifications held, expert advice (if sought), and an applicant’s performance in an exam, test or assessment.

South Australian Employment Tribunal (SAET)
The Bill empowers the SAET to order an employer to pay another employer specified costs associated with the early termination of a training contract where it occurs partly or wholly due to a financial or other inducement or reward.

The Bill continues rights of parties to proceedings in the SAET to be represented by a member of a registered association acting in the course of employment with the association; or a person appointed by the Commission.

Review of decisions by the South Australian Civil and Administrative Tribunal (SACAT)

SACAT has jurisdiction to review certain decisions of the Commission, including:

• decisions to declare prohibited employers
• a refusal of registration or renewal, imposition of conditions, or to vary, suspend or cancel a registration of an employer
• refusal of an application to substitute an employer
• refusal of an application for recognition of other trade training.

Applications must be made within 20 days of notice of the relevant decision

Additional reforms:

The Bill:

• places a stronger emphasis on the use of conciliation and mediation to assist parties to a training contract to avoid costly disputes that undermine apprenticeships and traineeships
• adopts a stronger framework around the development and use of training plans for apprentices and trainees, and details responsibilities of the parties to the training contract and nominated RTOs in relation to the training plan
• amends the Act to permit a party to a training contract to apply to extend the probationary period for an apprenticeships or traineeship, to a maximum total period of six months.

Now Closed

This online engagement was hosted on YourSAy from 2 July to 20 August 2020. Below is a record of the engagement.

Below is information on the Bill, and what it is trying to achieve. This is followed by a question for you to think about when giving your feedback. Read the paragraphs under each heading, view the question and consider this in your response.

Download a PDF of the Questions for Feedback.

A simplified Act that is easier to use

The Bill aims to improve the structure and clarity of the Act, to assist stakeholders navigate the Act and understand and exercise obligations under the Act.

Does the Bill provide greater clarity on the training and skills system it regulates for South Australia, including obligations imposed by the Bill?

The South Australian Skills Commission is established

The South Australian Skills Commission (Commission) is established by the Bill and is responsible to the South Australian Skills Commissioner (Commissioner), a new office created by the Bill. The Commission will replace and combine the roles of the Training and Skills Commission and Training Advocate. Importantly, the establishment the SASC supports the emphasis of skills and training at a national level – including reforms to promote and streamline training and workforce development as a key part of economic recovery.

This reform responds to concerns raised by stakeholders regarding confusion and duplication of roles within the apprenticeship and traineeship system and the need for greater strategic oversight of the system.

Do you have feedback on the establishment and scope of the new Commission and Commissioner?

Pathways and Declaration of trades and declared vocations

To support the modernisation of skill development and improve flexibility in delivery of employmentbased training the Bill expands the scope of trades and declared vocations (including higher level apprenticeships/traineeships), in addition to primary qualifications.

This responds to stakeholder support for a modern and flexible declaration process, focussed on the essential connection between training and the job it is equipping the apprentice or trainee to do.

Do you have any feedback on the expanded scope and/or the process for declaration of trades and vocations?

Employer registration and Prohibition

The Bill streamlines provisions under the current Act relating to employer registration and introduces a prohibited employer category. The first reform responds to stakeholder feedback that despite improvements to the employer registration process, the current Act uses complex criteria that have little impact on risk. The second, related, reform maintains robust protection for apprentices and trainees against unscrupulous employers and more efficiently directs assessment and response to risk raised by poor performing employers.

Do you have any feedback on the employer registration and prohibited employer processes or conditions?

Apprentice/trainee transfer fee

The Bill introduces a transfer fee payable from an employer to another employer when a training contract is transferred from the former to the latter. The fee would be adjusted according to the time served with the first employer and the size of the businesses involved. Such transfer (or employer substitution) must be approved by the Commission and the fee can be waived in accordance with Regulation.

This reform acknowledges the investment employers make in training new apprentices and trainees and will work to discourage poaching of productive employees by businesses that have made no investment in the apprentice/trainee’s training.

Do you have any feedback on the introduction of a transfer fee or the factors affecting adjustments to the fee?

Balance of obligations of parties to training contracts

The Bill places a stronger focus on the obligations of all parties (employer, student and RTO) to training contracts by legislating obligations under the contract of training. This gives clearer guidance to the parties to the training contract, who otherwise may misunderstand or misconstrue the nature and extent of their obligations under the training contract.

Does the Bill clearly articulate and balance the obligations of each party and the penalties for breach of these obligations?

Recognition of other trade training

Alternate forms of skills recognition assist the supply of skilled labour to industries that experience skills shortages, exacerbated by complex or prohibitive skills recognition schemes. The Bill provides a framework for recognition of qualifications or experience in relation to a trade or vocation outside of a training contract, including in relation to skilled migrants seeking a pathway to having their prior training and work experience recognised.

Do you have any feedback on the recognition framework?

Additional reforms:

The Bill also:

• Places a stronger emphasis on the use of conciliation and mediation to assist parties to a training contract constructively resolve disputes and maintain the employment relationship that underpins the training contract. Matters than cannot be resolved can still be referred to the South Australian Employment Tribunal (SAET) for resolution.
• Adopts a clearer framework for the development and use of training plans for apprentices and trainees, with the early involvement of a Registered Training Organisation (RTO) nominated by the employer and apprentice or trainee.
• Amends the Act to permit a party to a training contract to apply to extend the probationary period for an apprenticeships or traineeship, to a maximum total period of 6 months, to assist the parties agree and make the commitment to the full duration of the training contract.

Do you have any feedback on the additional Reforms proposed by the Bill?

Bill passed through Parliament

The Training and Skills Development Amendment Bill has passed through the Parliament.

Consultation report available

A Consultation Outcomes Report which summarises the input received from stakeholders throughout the consultation processes is now available.