Hansard Daily: Legislative Council - Tuesday, September 22 2020

Training and Skills Development (Miscellaneous) Amendment Bill

Second Reading

The Hon. R.I. LUCAS (Treasurer) (18:27): I move:

That this bill be now read a second time.

I seek leave to have the second reading explanation and the detailed explanation of clauses inserted in Hansard without my reading them.

Leave granted.

This Bill is the outcome of a thorough consultative review of the Training and Skills Development Act 2008 (TSD Act).

Training and skills development underpin economic growth and industry diversification and provide people with the life-long skills to share in economic wealth through gainful employment.

The current Act commenced operation in 2008. Since then, the workforce development needs of the State, and the associated training and skills landscape has changed significantly. We have seen changes to industry structures, the nature of work and the tools and technologies used in the workplace—particularly as Industry 4.0 is rapidly transforming how businesses operate. The training system needs to be flexible and responsive both in relation to the kinds of skills that are required and the way that training is accessed and delivered.

The training system is important in supporting pathways into work and avenues for upskilling. The specific skills required by occupations increasingly need to be supported by a strong base of foundation skill and digital competencies on the one hand, and opportunities for upskilling and specialisation on the other.

Apprenticeships and traineeships have proved to be a very effective way of combining learning and employment. The Bill preserves the importance of this well recognised and respected form of training in a broader context of new forms of mixed delivery training. This flexibility is increasingly important to support industries that find it difficult to recruit and retain skilled employees.

The Bill proposes amendments that respond to this changing context. The proposed changes improve the governance and regulatory framework for apprenticeships and traineeships. The objective of enabling employers and apprentices and trainees to engage in training and skills development remains. It is critical that the Bill continues to meet the needs of modern workplaces and the rapidly changing nature of work.

This Bill has been informed by input from stakeholders and the Training and Skills Commission's Futureproofing the South Australian Apprenticeship and Traineeship system report and accompanying recommendations.

The amendments introduced by the Bill, developed through extensive engagement with stakeholders and end-users of the system, and tested by an expert review panel established for the review of the Act, aim to strengthen, increase flexibility and relevance to the South Australian training system by:

Ensuring the Act reflects changes to the state and national training and skills architecture, including the transfer of VET regulatory powers and international student complaint handling services to the Commonwealth.

Reducing complexity and improving clarity by using plain English descriptions of the key concepts, and articulating the responsibilities of apprentices, trainees, their employers and training providers.

Refreshing the Act's objects and mechanisms to reflect the importance of partnerships between industry and the post school education system, and the contemporary environment in which apprenticeships and traineeships operate and their importance to the development of the economy.

It establishes a new body, the South Australian Skills Commission (Commission), to lead workforce development, promote apprenticeships and traineeships, support parties under training contracts to resolve disputes and promote pathways between secondary school, vocational education and training and lifelong learning.

This change 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.

To support the operations of the Commission and the fulfilment of the Act's objectives, the Bill establishes a new statutory office, the South Australian Skills Commissioner, who will advise and assist the Minister in relation to the training and skills portfolio and report each year on the performance of his or her functions. The Commissioner is responsible for the operations of, but is not bound by, recommendations of the Commission.

The Commission will consist of the Commissioner and up to 10 other members appointed by the Minister who have the abilities and experience required for effective performance of its functions. The model will build on the success of the eight Industry Skills Councils established to inform government's training objectives and investment.

Further reforms introduced by the Bill include clarifying and streamlining regulatory requirements while maintaining adequate protections and support structures for employers, apprentices, trainees and training providers. This includes amendments to:

Simplify employer registration for the majority of employers who are suitable to employ apprentices and trainees.

Streamline Training Contract and Training Plan approval processes for quicker turn-around of applications.

Powers for the Commission to declare an employer a 'prohibited employer' and preclude him or her from employing apprentices or trainees, where it is demonstrable that an employer is unfit for prescribed reasons.

More rigour for apprenticeship and traineeship transfers to new employers with the aim of reducing the incidence of poaching productive apprentices and trainees, and recognising the training investment (time and cost) of the previous employer.

Statements of responsibilities of apprentices, trainees and employers to improve transparency around the financial, training and other commitments associated with apprenticeships and traineeships.

Improve enforcement of training contract compliance by providing appropriate penalties for significant instances of non-compliance.

Permit the parties to a training contract to seek an extension of the term of the probation period for the apprenticeship or traineeship up to a maximum of six months.

Greater emphasis under the Act on the role of Registered Training Organisations (RTO) in relation to the development of the Training Plan and monitoring progress and reporting underperforming apprentices, trainees or employers.

More flexibility in training pathways including by enabling the Commission to identify vocational training pathways that support entry to, establishment in and upskilling required by declared vocations.

Recognise trade skills that have been acquired outside a training contract subject to specified standards and conditions being met.

Empower the Commission to direct parties to disputes and certain applications, including an application to continue an apprenticeship or traineeship with another employer, to mediation.

Modernise the form of the legislation in accordance with the principle of legislating where statutory support is necessary and utilising regulations or guidelines to address operational and administrative matters.

I commend the Bill to members. I seek leave to insert the explanation of clauses without my reading it.

Explanation of Clauses

Part 1—Preliminary

1—Short title

2—Commencement

3—Amendment provisions

These clauses are formal.

Part 2—Amendment of Training and Skills Development Act 2008

4—Amendment of long title

This clause amends the long title of the principal Act to reflect the changes made by the measure.

5—Amendment of section 1—Short title

This clause amends the long title of the principal Act to reflect the changes made by the measure

6—Substitution of section 3

This clause substitutes a new section 3 into the principal Act, setting out the objects for the Act as amended by this measure.

7—Amendment of section 4—Interpretation

This clause amends section 4 of the principal Act to delete obsolete definitions, and to define key terms and phrases used in the principal Act.

8—Amendment of section 5—Declarations relating to universities and higher education

This clause repeals section 5(1)(b) of the principal Act.

9—Substitution of section 6

This clause substitutes a new section 6 in the principal Act, providing the Minister with a power to declare an occupation to be a trade or declared vocation for the purposes of the Act.

10—Insertion of section 6A

This clause inserts a new section 6A in the principal Act, clarifying the relationship between the principal Act and other legislation.

11—Substitution of Parts 2 and 3

This clause substitutes Parts 2 and 3 of the principal Act as follows:

Part 2—Role of Minister

7—Functions of Minister

This section sets out the functions of the Minister under the Act.

8—Delegation by Minister

This section is a standard power of delegation.

Part 3—South Australian Skills Commission

Division 1—South Australian Skills Commissioner

9—South Australian Training Commissioner

10—Term of office and conditions of appointment

11—Remuneration

12—Acting Commissioner

13—Functions of Commissioner

14—Reporting obligations

These clauses provide for the creation of the SA Skills Commissioner, including setting out the terms and conditions of appointment as well as the Commissioner's functions and reporting obligations under the Act.

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

These clauses establish a new SA Skills Commission to replace the current Training and Skills Commission.

The Commission will consist of up to 11 members (including the SA Skills Commissioner, who is an ex officio member). Its functions are set out in new section 19.

The remaining clauses effectively reproduce the existing arrangements for the Training and Skills Commission.

Division 3—South Australian Skills Standards

26—Commission to prepare South Australian Skills Standards

This section requires the SA Skills Commission to prepare standards for the purposes of the Act. Compliance with the Standards is required in respect of many decisions and actions taken under the Act.

The Standards must be reviewed at least every 5 years.

12—Amendment of heading to Part 4

This clause makes a consequential amendment to the heading of Part 4 of the principal Act.

13—Insertion of Part 4 Division 1A

This clause inserts new Division 1A into Part 4 of the principal Act as follows:

Division 1A—Certain training to occur under training contract

45A—Training in trade must occur under training contract

This section creates an offence for a person to undertake to train a person in a trade other than under a training contract. The maximum penalty is a fine of $5,000. The section also disapplies the offence provision in the circumstances set out in subsection (2).

45B—Training in declared vocation may occur under training contract

This section clarifies that an employer may train a person in a declared vocation under a training contract.

14—Amendment of section 46—Training contracts

This clause makes consequential amendments to section 46 of the principal Act, and clarifies the operation of the Act in relation to training contracts for children under 15 years of age.

15—Substitution of section 48

This clause substitutes section 48 of the principal Act to insert 2 new sections as follows:

48—Training contracts to be approved by Commission

This section requires an employer to obtain the approval of the Commission for approval of certain agreements as training contracts, and makes procedural provision as to how the approval is to be granted or refused.

An employer who continues to train a person in a trade where an application under the new section has been refused is guilty of an offence carrying a maximum fine of $5,000.

48A—Transfer of training contracts between jurisdictions

This section sets out how training contracts from other jurisdictions can be recognised, and modified, by the Commission.

16—Substitution of section 49

This clause substitutes section 49 of the principal Act, setting out when training contracts commence and finish under the Act.

17—Insertion of section 49A

This clause inserts new section 49A into the principal Act, allowing the Commission to extend a probationary period under a training contract up to a total of 6 months, or 25% of the length of the training contract, in total.

18—Amendment of section 50—Commission may vary hours under training contract

This clause amends section 50 of the principal Act to allow the Commission to vary the hours under a training contract on its own motion (in addition to on application) and makes a consequential amendment.

19—Substitution of section 51

This clause substitutes a new section 51 into the principal Act, allowing the Commission to suspend a training contract (either on the application by a party to the training contract or on its own motion).

20—Insertion of sections 51A, 51B and 51C

This clause inserts new sections 51A, 51B and 51C as follows:

51A—Termination of training contract during probationary period

This section provides that parties to a training contract can terminate the contract during the probationary period of the contract simply by giving written notice to the other parties to the contract. The Commission must be notified of any such terminations.

51B—Commission may terminate training contract

This section allows the Commission to terminate a training contract (either on the application by a party to the training contract or on its own motion).

51C—Offence to terminate etc training contract

This section creates an offence for a person to terminate, or purport to terminate, a training contract if they are not authorised to do so under the Act.

21—Substitution of section 52

This clause substitutes a new section 52 into the principal Act, allowing the Commission to require the parties to the training contract to undertake dispute resolution of a specified kind before the Commission determines certain applications under the relevant Part.

22—Substitution of section 53

This clause substitutes a new section 53 into the principal Act, providing that any time spent by an apprentice or trainee attending a course as part of their apprenticeship or traineeship will be taken to be part of their employment.

23—Substitution of Part 4 Division 3

This clause substitutes a new Division 3 into Part 4 of the principal Act as follows:

Division 3—Prohibited employers

54B—Prohibited employers

This section empowers the Commission to declare an employer to be a prohibited employer where the Commission reasonably believes the employer is not a suitable person to employ an apprentice or trainee. The clause sets out matters to which the Commission must have regard when deciding whether to do.

54C—Revocation of declaration

This section provides that the Commission can revoke a declaration that an employer is a prohibited employer, on application or on the Commission's own motion.

54D—Offence for prohibited employer to employ etc apprentice or trainee

This section creates an offence for a prohibited employer to do the things specified in the section, with a maximum penalty of $10,000 applying for a contravention of the section.

54E—Offence to make certain false representations relating to prohibited employers

This section creates an offence for a prohibited employer or other person who makes certain false representations relating to status as a prohibited employer, with a maximum penalty of $10,000 applying for a contravention of the section.

Division 3A—Provisions relating to employers

54F—Registration of employers

This section requires the Commission to register an employer for the purposes of the Act, providing they meet the specified requirements under the guidelines and assuming the Commission is of the opinion that it is appropriate to do so. However, a prohibited employer cannot be registered under the section. The section also makes procedural provision in respect of applications and registration.

54G—Variation, suspension and cancellation of registration of employer

This section sets out the circumstances in which the registration of an employer must be cancelled, as well as conferring powers on the Commission to deal with an employer's registration in the ways specified (including suspension and cancellation of registration, or varying the conditions attached to the registration).

54H—Substitution of employer under training contract following cancellation, suspension or variation of registration

This section allows the Commission to substitute an employer under a training contract to deal with situations where the registration of the original employer under the training contract has been cancelled or suspended, or varied in a way that makes it inappropriate for the employer to continue in that role. The section makes further procedural provisions in relation to such substitutions, and allows for an unregistered to be substituted where their application for registration is pending.

54I—Offence to make certain false representations relating to registration

This section creates a number of offences where a person makes a false representation of respect of the registration of an employer. The maximum penalty for an offence is a fine of $10,000.

54J—Employer's obligations under training contract

This section sets out the obligations that an employer has under a training contract, and imposes those obligations as conditions on the employer's registration. Subsection (3) sets out the actions the Commission may take if an employer fails to satisfy their obligations.

54K—Employer to notify Commission of certain matters

This section requires an employer to notify the Commission if certain specified events occur, and creates an offence where an employer fails to do so.

54L—Making and retention of records

This section requires an employer to keep such records as may be required by the regulations, and to keep them for at least 7 years after the completion, expiry or termination of the relevant training contract, and creates an offence where an employer fails to do so.

Division 3B—Provisions relating to apprentices and trainees

54M—Obligations of apprentices and trainees under training contracts

This section sets out the obligations that an apprentice or trainee has under a training contract. Subsection (2) sets out the actions the Commission may take if an apprentice or trainee fails to satisfy their obligations.

Division 3C—Substitution of employer under training contract and transfer fees

54MA—Transfer of training contract where change of ownership of business

This clause provides that, on a change of ownership of a business, rights, obligations and liabilities under a training contract transfer to the new owner.

54N—Commission may approve substitution of employer under training contract

This section enables the Commission to substitute an employer under a training contract on the application of a party to the training contract, or a proposed employer.

The Commission may only approve the substitution in specified circumstances, and must have regard to any submissions made by the current employer. This provision in particular is intended to lessen instances of 'poaching' of apprentices and trainees as they near the end of their training.

54O—Transfer fee payable in relation to certain substitutions of employer in relation to training contract

This section sets out a scheme whereby a transfer fee is required to be paid to an employer where it is proposed to substitute a new employer under proposed section 54N. Again, this is to mitigate some of the expenses incurred by the original employer, particular in instances of poaching. The size of the fee is determined by reference to the size of the employer's business, and the fee must be paid in accordance with the regulations and the SA Skills Standards.

Division 3D—Provisions relating to nominated training organisations and training plans

54P—Nomination of training organisation for apprentice or trainee

This section requires that each apprentice or trainee have a nominated training organisation, whose responsibilities include the preparation of the apprentice or trainee's training plan. The section sets out how that NTO is to appointed, and clarifies that an apprentice or trainee can have more than 1 NTO.

54Q—Training plans

This section requires the NTO for an apprentice or trainee to prepare a training plan for the apprentice or trainee. The training plan must be prepared in accordance with the SA Skills Standards, and must be endorsed by each party to the training plan, and the Commission notified when that has happened.

54R—Obligations of nominated training organisations

This section sets out the obligations that a nominated training organisation under the training plan, and requires an NTO to comply with the SA Skills Standards.

54S—Nominated training organisation to notify Commission of certain matters

This section requires an NTO to notify the Commission if certain specified events occur.

54T—Substitution of nominated training organisation

This section allows an employer and the apprentice or trainee under a training contract to substitute an NTO. Such a substitution must comply with the SA Skills Standards. The section makes further procedural provisions in relation to such substitutions.

54U—Making and retention of records

This section requires an NTO to keep such records as may be required by the regulations, and to keep them for at least 7 years after the expiry of the relevant training contract.

54V—Offences by nominated training organisations

This section creates an offence for a nominated training organisation to refuse or fail to comply with requirement under this proposed Division, carrying a maximum penalty of $5,000.

54W—Commission may notify certain bodies where contravention of Act

This section authorises the disclosure of information by the Commission to the bodies specified in the proposed section where a registered training organisation has contravened the Act.

24—Amendment of section 63—Compliance notices

This clause amends section 63 of the principal Act to extend the persons to whom a compliance notice can be given to include a nominated training organisation, consequent upon the amendments made by this measure.

25—Amendment of section 64—Employer may suspend apprentice or trainee for serious misconduct

This clause amends section 64 of the principal Act, and provides a mechanism by which disputes arising about the conduct of an apprentice or trainee can be mediated, in accordance with any determination of the Commission, before it can be referred to the SAET for consideration. This is in addition to the existing capacity under the section for the employer to suspend the apprentice or trainee pending such referral.

26—Amendment of section 65—Other matters to be dealt with by SAET

This clause amends section 65 of the principal Act to make consequential amendments, but also to allow SAET to make orders requiring an employer to pay to another employer specified costs associated with the early termination of a training contract, where that termination occurs wholly or partly due to the use of a financial or other inducement or reward, for example where one employer 'poaches' an apprentice from another.

27—Amendment of section 67—Representation in proceedings before SAET

This clause makes a consequential amendment to section 67 of the principal Act to reflect the fact that the Training Advocate is abolished.

28—Repeal of Part 4 Division 5

This clause repeals Division 5 of Part 4 of the principal Act.

29—Insertion of Parts 4A, 4B and 4C

This clause inserts new Parts 4A, 4B and 4C into the principal Act as follows:

Part 4A—Recognition of other trade training etc

70A—Application for recognition of other trade qualifications etc

This section enables a person to apply to the Commission for recognition of their qualifications or experience in relation to a particular trade or declared vocation where those qualifications etc were not obtained under a training contract. The section sets out procedural matters in relation to such applications, including in circumstances where the Commission may require an examination or independent assessment of the applicant's competencies.

70B—Commission may determine person adequately trained

This section provides that, where the Commission is satisfied (on an application under proposed section 70A or on its own motion) that an applicant for recognition of qualifications or experience in a particular trade or declared vocation has acquired the competencies of the trade or declared vocation, the Commission may determine that the applicant is adequately trained to pursue that vocation and may then certify the applicant accordingly.

Part 4B—Additional powers of Commission etc

70C—Commission may require information

This section confers a power on the Commission to require certain persons and bodies to provide the Commission specified information or documents that the Commissioner reasonably requires for the performance of functions under the Act. An offence carrying a maximum penalty of $10,000 applies where a person or body refuses or fails to do so.

70D—Sharing of information between certain persons and bodies

This section empowers the persons and bodies specified to exchange certain information and documents for purposes related to their functions and duties under the Act.

70E—Other powers of Commission and authorised persons

This section sets out additional powers that the Commission, or a person authorised by the commission, has under the Act, and also creates offences related to the exercise of the powers.

Part 4C—Review of certain decisions by South Australian Civil and Administrative Tribunal

70F—Review of decisions by Tribunal

This section sets out decisions under the Act that are able to be reviewed in the South Australian Civil and Administrative Tribunal.

30—Insertion of section 70G

This clause inserts new section 70G into the principal Act, creating an offence for a person to exert undue influence or pressure on, or use unfair tactics against, another person in relation to the matters specified in the section. The maximum penalty is a $10,000 fine.

31—Amendment of section 71—South Australian Skills Register

This clause amends section 71 of the principal Act to continue the current Training and Skills Register as the South Australian Skills Register.

32—Repeal of section 72

This clause repeals section 72 of the principal Act.

33—Amendment of section 72A—Confidentiality

This clause amends section 72A of the principal Act to clarify that certain confidential information obtained in the course of the operation or enforcement of the Act, or corresponding Acts, is protected from disclosure.

34—Substitution of section 73

This clause substitutes a new section 73 into the principal Act, allowing the Commission to correct determinations, decisions and statements to rectify certain minor errors.

35—Amendment of section 76—Evidentiary provision

This clause makes a consequential amendment to section 76 of the principal Act.

36—Amendment of section 79—Regulations

This clause amends section 79 of the principal Act to modernise that section, and to allow the regulations to prescribed fee, and expiation fees.

Schedule 1—Related amendments and transitional etc provisions

Part 1—Amendment of Controlled Substances Act 1984

1—Amendment of section 30A—Interpretation