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House of Assembly - Fifty-First Parliament, Second Session (51-2)
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TRAINING AND SKILLS DEVELOPMENT BILL

Introduction and First Reading

The Hon. P. CAICA (Colton—Minister for Employment, Training and Further Education, Minister for Science and Information Economy, Minister for Youth, Minister for Gambling) (15:41): Obtained leave and introduced a bill for an act relating to higher education, vocational education and training, adult community education, and education services for overseas students; to establish the Training and Skills Commission; to repeal the Training and Skills Development Act 2003; to make related amendments to the Fair Work Act 1994; and for other purposes. Read a first time.

Second Reading

The Hon. P. CAICA (Colton—Minister for Employment, Training and Further Education, Minister for Science and Information Economy, Minister for Youth, Minister for Gambling) (15:41): I move:

That this bill be now read a second time.

The government is committed to ensuring all South Australians have the opportunity to participate in and benefit from our state's economic growth. This necessarily includes a strong commitment to supporting the delivery of education and training that contributes to the achievement of the twin goals of economic development and social inclusion, and that leads to sustainable employment opportunities for all South Australians.

Workforce development will be critical in underpinning the growth of our economy and in providing pathways to rewarding and sustainable jobs. The government's strategic approach to workforce development will focus on increasing the capacity of individuals to meet their employment needs throughout their lives—as well as meeting industry demand for a skilled workforce—and increasing the capacity of firms to adopt work practices that support their employees to develop the full range of their potential.

A review of the Training and Skills Development Act 2003, which included extensive stakeholder and participant consultation about the effectiveness of the act in supporting our education, training and workforce development goals at the state and national levels, has been undertaken and has provided the foundation for the development of this bill.

The Training and Skills Development Bill 2008 provides a legislative framework for our training system, higher education and community learning, and includes the provision of advice on workforce development, the registration of training providers, course accreditation, arrangements for traineeships and apprenticeships, and protections for students.

This bill provides for a stronger role for the Training and Skills Commission, in consultation with industry training bodies, such as Industry Skills Boards, and employee and employer associations, in providing high level strategic advice about the application of workforce development strategies that are informed by effective industry engagement.

Through this bill, the role of the training advocate, which has been widely accepted, is being given statutory recognition. The training advocate will continue to support clients or prospective clients, including international students, regarding their questions or concerns about the education and training system. The training advocate will carry out functions described in a public charter developed by the minister in consultation with the training advocate and the Training and Skills Commission, and will have powers to request information which may be necessary in resolving issues.

The 2007 National Protocols for Higher Education, which create the national framework for the approval of Australian universities, other higher education providers and their courses, as well as international higher education institutions operating in Australia, will be incorporated into the act through this bill.

Our state must balance the need for a flexible and responsive training sector with ensuring that the interests of apprentices, trainees and students are protected. Employers will be required to be registered before engaging apprentices or trainees under a trainee contract. Registration will be for up to five years, with employers who are currently a party to a contract of training being automatically registered for five years. Details of employers who are registered, and the scope of their registration, will be available through a public website. These changes aim to streamline the processes for employers wanting to take on apprentices or trainees, and will assist in making parties to a proposed training contract better informed about their rights and obligations under the training contract.

Early intervention strategies, many of them requiring a redirection of administrative focus, will be implemented to identify grievances and disputes arising from training contracts and assist the parties towards an appropriate and timely resolution. Parties to a training contract will be able to access the resources of the Industrial Relations Commission of South Australia (IRC) as a means for resolving disputes arising from a training contract. The IRC is establishing processes, in consultation with stakeholders, to ensure that disputes arising from training contracts can be resolved in a manner appropriate to the needs of the parties to those contracts. This bill allows for the inclusion of compulsory conferences to resolve training contract disputes prior to matters being referred for hearing.

Assessors, nominated by employer and employee associations, will assist the IRC in considering training contract disputes brought before it. Orders of the IRC will be enforceable and an appeals process will be available. This bill introduces measures to streamline yet strengthen matters concerning the quality of education and training that will be delivered under this legislation, including the issuing of compliance notices and expiation fees, and offences and penalties have been reviewed.

The legislation proposes related amendments to the Fair Work Act 1994. Transition provisions provide for the vacation of all offices of members of the Training and Skills Commission, the Grievance and Disputes Mediation Committee, any committee established by the Training and Skills Commission and any reference group established by the minister.

Transition provisions also provide continuity of registration of training providers, accreditation of courses and continuation of current training contracts. These provisions also establish that suspensions, orders or decisions of the Grievances and Disputes Mediation Committee in force immediately before the repeal of the Training and Skills Development Act 2003, continue in force as a suspension, order or decision of the IRC. I commend the bill to members and I seek leave to insert the explanation of clauses in Hansard without reading them.

Leave granted.

Explanation of Clauses

Part 1—Preliminary

1—Short title

2—Commencement

These clauses are formal.

3—Objects

The objects of this measure are to further the State's economic and social development through the operations of the Training and Skills Commission (the Commission)—

in assisting the Minister to establish priorities and workforce development strategies to meet the State's current and future work skills needs through education, training, skills development and workforce development; and

in providing quality assurance in relation to higher education (other than that delivered by a State university) and vocational education and training by regulating training providers, courses and the relationship between employers and apprentices/trainees; and

in promoting—

(i) equity and participation in and access to education, training and skills development; and

(ii) partnerships with industry and enterprises for the development of skills for the State's workforce; and

(iii) an integrated national system of education and training that recognises the diversity of the State's workforce needs; and

(iv) the development of a culture of continuous learning through adult community education.

4—Interpretation

This clause contains the definitions of words and phrases used for the purposes of this measure. Among the many terms defined are AQTF, AQF, higher education, vocational education and training and education services for overseas students.

5—Declarations relating to universities and higher education

The Minister may, by notice in the Gazette, make the following declarations:

that an institution is—

(i) a university; or

(ii) a university college; or

(iii) a specialised university of a kind specified in the declaration;

that an institution is a self accrediting higher education institution;

that an institution that is an overseas higher education institution is an institution authorised to offer non AQF higher education qualifications in the State.

Any such declaration—

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

will operate for the period set in the declaration; and

may, by further notice in the Gazette, be varied or revoked.

It is an offence for an institution in relation to which a declaration has been made to contravene a condition imposed by the Minister and specified in the declaration. The penalty for any such offence is a fine of $5,000, expiable on payment of a fee of $315.

6—Declarations of trade and non trade occupations

The Minister may, on the Commission's recommendation—

by notice in the Gazette, declare an occupation to be—

(i) a trade occupation; or

(ii) a non trade occupation; and

by further notice in the Gazette, vary or revoke such a declaration.

Part 2—Administration

Division 1—Minister

7—Functions of Minister

The Minister has the following functions under this measure:

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;

to manage—

(i) 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;

(ii) the State's system of higher education (other than that delivered by a State university), vocational education and training, and adult community education, through planning and regulating the provision of public and private training; and

(iii) the State's role as part of an integrated national system of education and training;

functions (if any) contemplated by the Skilling Australia's Workforce Act 2005 of the Commonwealth;

any other function assigned to the Minister under this measure or an Act or that the Minister considers appropriate.

8—Delegation by Minister

The Minister may delegate his or her functions or powers under this measure within the usual terms.

Division 2—Training and Skills Commission

9—Establishment of Training and Skills Commission

The Training and Skills Commission (the Commission) is established. The Commission will consist of 11 members appointed by the Governor on the nomination of the Minister. Its membership will include a representative of employer groups and employee groups, respectively.

10—Functions of Commission

This clause provides for general and other functions of the Commission. Its general functions are—

to assist, advise and make recommendations to the Minister on matters relating to the development, funding, quality and performance of vocational education and training and adult community education; and

to regulate—

(i) training providers under Part 3 of the measure; and

(ii) apprenticeships/traineeships under Part 4 of the measure.

11—Ministerial control

The Commission is subject to control and direction of the Minister apart from when the Commission is formulating advice or reports to the Minister.

12—Conditions of membership

This clause is drafted in the usual way in relation to the appointment of a member to the Commission by the Governor, with the term and conditions of membership being determined by the Governor.

13—Proceedings of Commission

This clause makes provision for the manner in which the Commission is to conduct its proceedings.

14—Validity of acts

This clause provides that an act or proceeding of the Commission (or 1 of its committees) is not invalid by reason only of a vacancy in its membership.

15—Staff

This clause makes provision for the Commission's staff, which is to consist of—

Public Service employees assigned to work in the office of the Commission; and

officers or employees under the Technical and Further Education Act 1975 assigned to work in the office of the Commission; and

any person appointed to the staff by the Commission with the consent of the Minister.

16—Report

The Commission must, before 31 March in each year, present to the Minister a report on its operations for the preceding calendar year. This report must be tabled by the Minister in Parliament.

Division 3—Reference groups

17—Establishment of reference groups

This clause makes provision for the mandatory establishment of 2 reference groups by the Minister to advise the Commission in relation to its functions under Parts 3 and 4 of this measure, and in relation to its functions relating to adult community education, respectively. The reference groups must submit a report on their respective operations to the Commission for inclusion in the Commission's annual report.

Division 4—Training Advocate

18—Training Advocate

There will be a Training Advocate.

19—Appointment of Training Advocate

Under this clause, the Governor will appoint a person to be the Training Advocate on terms and conditions determined by the Governor.

20—Term of office of Training Advocate etc

This clause makes provision for the following matters in relation to the Training Advocate:

term of office (5 years);

how the office becomes vacant;

removal from office.

21—Functions of Training Advocate

The functions of the Training Advocate will be set out in a charter prepared by the Minister after consultation with the Training Advocate and the Commission. A number of examples of the sorts of functions that may (but need not) be given to the Training Advocate under the charter are set out. The charter is to be tabled in Parliament within 6 days of coming into force or being amended.

22—Training Advocate subject to direction of Minister

The Training Advocate is subject to the written direction of the Minister, except in relation to an investigation being undertaken by the Training Advocate in the performance of his or her functions.

23—Delegation by Training Advocate

This clause makes provision for the Training Advocate to delegate his or her functions.

24—Staff

This clause makes provision for the Training Advocate's staff, which is to consist of—

Public Service employees assigned to work in the office of the Training Advocate; and

officers or employees under the Technical and Further Education Act 1975 assigned to work in the office of the Training Advocate; and

any person appointed to the staff by the Training Advocate with the consent of the Minister.

25—Report

The Training Advocate must present a written report on his or her activities to the Minister on or before 31 March in each year. Such a report must include any direction given to the Training Advocate by the Minister and must be tabled in the Parliament by the Minister.

Part 3—Higher education, vocational education and training and education services for overseas students

Division 1—Registration of training providers

26—Registration of training providers

The Commission may, on application or of its own motion, register, or renew the registration of, a person as a training provider—

(a) to—

deliver education and training and provide assessment services; and

issue qualifications and statements of attainment under the AQF,

in relation to higher education or vocational education and training, or both; or

(b) to—

provide assessment services; and

issue qualifications and statements of attainment under the AQF,

in relation to higher education or vocational education and training, or both; or

(c) for the delivery of education services for overseas students.

An application for registration or renewal of registration must—

be made to the Commission in the manner and form approved by the Commission; and

be accompanied by the fee fixed by regulation.

27—Conditions of registration

This clause makes provision for the conditions to which the registration of a training provider is subject, including conditions establishing the operations the provider is authorised to conduct by the registration. A registered training provider who contravenes a condition of registration is guilty of an offence, the penalty for which is a fine of $5,000, expiable on payment of a fee of $315.

28—Variation or cancellation of registration

The Commission may, on application, vary or cancel the registration of a training provider. Variation of any such registration means variation of either the conditions of registration or the registered details of the training provider.

29—Criteria for registration

This clause sets out the criteria that the Commission must apply when determining whether to register, renew or vary the registration of, a training provider and the conditions of registration.

Division 2—Accreditation of courses

30—Accreditation of courses

The Commission may, on application or of its own motion, accredit a course, or renew the accreditation of a course, as a course in higher education or vocational education and training.

An application for accreditation or renewal of accreditation must—

be made to the Commission in the manner and form approved by the Commission; and

be accompanied by the fee fixed by regulation.

31—Conditions of accreditation

This clause makes provision for the conditions to which the accreditation of a course is subject. The holder of accreditation of a course who contravenes a condition of accreditation is guilty of an offence for which the penalty is a fine of $5,000, expiable on payment of a fee of $315.

32—Variation or cancellation of accreditation

The Commission may on application vary or cancel the accreditation of a course. Variation of accreditation of a course means variation of the conditions of accreditation of the course.

33—Criteria for accreditation

This clause sets out the criteria that the Commission must apply when determining whether to accredit, or renew or vary the accreditation of, a course and the conditions of accreditation.

Division 3—Duration of registration/accreditation

34—Duration of registration/accreditation

This clause provides that, subject to this measure, registration or accreditation remains in force for a period of up to 5 years determined by the Commission. The holder of registration or accreditation must, at intervals fixed by regulation, pay a prescribed fee and lodge returns.

Division 4—Other powers of Commission relating to training providers and courses

35—Grievances

A person with a grievance relating to a registered training provider may refer the grievance to the Commission for consideration.

36—Commission may inquire into training providers or courses

This clause provides the Commission with power to inquire into a training provider or a course.

37—Commission may cancel, suspend or vary registration or accreditation

This clause empowers the Commission to impose or vary a condition of registration or accreditation, or cancel or suspend registration or accreditation, where there has been a breach of a condition of the registration or accreditation. Such action cannot be taken without first giving the holder of the registration or accreditation 28 days written notice of the proposed action, taking account of any representations made to the Commission, and consulting (where necessary) the registering/course accrediting body in other jurisdictions.

38—Commission may issue qualification or statement of attainment in certain circumstances

This clause gives the Commission the power to issue to a person a qualification or statement of attainment under the AQF in relation to specified higher education or vocational education and training offered by a registered training provider if satisfied that—

the person has achieved the learning outcomes or competencies necessary to demonstrate that the person possesses and is able to apply the knowledge and skills acquired; and

the provider is unable (whether because it is no longer registered or for some other reason) to issue the qualification or statement of attainment.

39—Cancellation of qualification or statement of attainment

The Commission may (by written notice) cancel a qualification or statement of attainment issued by a registered training provider if the Commission is satisfied that the qualification or statement of attainment was issued by mistake or on the basis of false or misleading information.

40—Commission may assess and certify competency in certain circumstances

Under this clause, the Commission may assess (by such means as the Commission thinks fit) the competency of persons who have acquired skills or qualifications otherwise than under the AQF and, in appropriate cases, having regard to the standards and outcomes specified in accredited courses or training packages, grant, or arrange for or approve the granting of, statements certifying that competency.

41—Provision of information

The Commission may, subject to such conditions as the Commission thinks fit, provide to another registering body/course accrediting body any information obtained by the Commission in the course of carrying out its functions under this measure.

Division 5—Appeal to District Court

42—Appeal to District Court

An appeal to the District Court may be made (within 28 days of the making of the decision being appealed) against a decision of the Commission—

refusing an application for the grant or renewal of registration or accreditation; or

imposing or varying conditions of registration or accreditation; or

suspending or cancelling registration or accreditation; or

cancelling a qualification or statement of attainment.

Division 6—Offences

43—Offences relating to registration and issuing of qualifications

This clause sets out the offences relating to registration of training providers and the issuing of qualifications. The penalty for each of the offences under this provision is a fine not exceeding $5,000. The offences are set out below.

A person must not claim or purport to be a registered training provider in relation to higher education unless registered as a training provider in relation to higher education.

A person must not issue, or claim or purport to issue, qualifications or statements of attainment under the AQF in relation to higher education unless—

the person is a State university; or

the person is—

(i) a declared institution; and

(ii) operating within the terms and complying with the conditions (if any) of the declaration; or

the person is—

(i) registered as a training provider in relation to higher education; and

(ii) operating within the scope of the registration of the provider and complying with the conditions of the registration.

A person must not claim or purport to be a registered training provider in relation to vocational education and training unless registered as a training provider in relation to vocational education and training.

A person must not issue, or claim or purport to issue, qualifications or statements of attainment under the AQF in relation to vocational education and training unless the person is—

registered as a training provider in relation to vocational education and training; and

operating within the scope of the registration of the provider and complying with the conditions of the registration.

A person must not claim or purport to be able to deliver education and training that will result in the issue of a qualification or statement of attainment by another person if the person knows that the other person is not lawfully able to issue the qualification or statement of attainment.

This provision does not apply to the Commission.

44—Offences relating to universities, degrees, etc

This clause sets out the offences relating to universities and the granting of degrees and graduate qualifications. The penalty for each of the offences under this provision is a fine not exceeding $5,000. The offences are set out below. The offences prohibit an institution from holding out that it is an institution (whether a university, university college, etc) of a kind that it is not, and prohibit such institutions from issuing degrees or graduate qualifications unless they are authorised to do so.

Part 4—Apprenticeships/traineeships

Division 1—Interpretation

45—Interpretation

This clause sets out definitions for the purposes of Part 4.

Division 2—Training contracts

46—Training under training contracts

An employer must not undertake to train a person in a trade occupation (see clause 6) except under a training contract. The penalty for such an offence is a fine of $5,000, expiable on payment of a fee of $315. An employer may undertake to train a person in a non trade occupation under a training contract.

Only registered employers may enter into training contracts.

The clause sets out requirements for training contracts and the obligations and duties of the parties to such contracts.

47—Minister may enter training contracts

This clause provides that the Minister may enter into a training contract (on a temporary basis or where it is not reasonably practicable for another employer to do so) assuming the rights and obligations of an employer under the contract.

48—Approval of training contracts

An employer must, within 4 weeks after executing a contract—

by which the employer undertakes to train a person in a trade occupation, apply to the Commission for approval of the contract;

with a person that is intended to be a training contract under this Part, apply to the Commission for approval of the contract.

The Commission may decline to approve a contract as a training contract if the criteria set out in the clause are not met.

It is an offence for an employer to continue to train a person in a trade occupation if the Commission has declined to approve the contract entered into for that purpose.

The penalty for non compliance with a provision of this clause is a fine of $5,000, expiable on payment of a fee of $315.

49—Term of training contracts

The Commission may, on the application of the parties to a training contract (or proposed training contract) or of its own motion, determine—

that the whole or a part of a period of training that occurred before the date of the contract be treated as a period of training served under the contract; or

that the whole or a part of a period of training that occurred under a previous training contract be treated as a period of training served under the contract; or

that a period of absence of the apprentice/trainee under the training contract be excluded from consideration in computing the length of the apprentice's/trainee's service under the contract.

The term of a training contract must be computed and the contract must be construed and must apply in accordance with any such determination of the Commission. However, if there is a conflict between a determination of the Commission and a determination of the Industrial Relations Commission (the IRC), the determination of the IRC prevails.

If the Commission is satisfied of the competence of an apprentice/trainee or former apprentice/trainee, the Commission may, of its own motion or on the application of each party to the training contract (whether or not the contract is still in operation)—

certify that the apprentice/trainee is to be taken to have completed the training required under the contract; and

if the contract is still in operation—terminate the contract and relieve the parties of their obligations under the contract.

50—Variation of training under training contract to part time or full time

The Commission may—

on application by the parties to a training contract, vary the contract so that it provides for part time training instead of full time training, or full time training instead of part time training, if to do so is not inconsistent with the award or industrial agreement under which the apprentice/trainee is employed;

on application by the parties to a school based training contract, vary the contract so that it provides for full time training or part time training (as the case requires) when the school based apprentice/trainee finishes school.

51—Termination or suspension of training contract

Subject to Part 4, no person apart from the Commission may terminate or suspend, or purport to terminate or suspend, a training contract. The penalty for such an offence is a fine of $5,000, expiable on payment of a fee of $315. Subject to Part 4, the Commission may, on application or of its own motion, terminate or suspend a training contract. A party to a training contract may, terminate a written contract within the probationary period of the contract by written notice to the other party.

52—Transfer of training contract to new employer

A change in the ownership of a business (or part of a business) does not result in the termination of a training contract entered into by the former owner but, where a change in ownership occurs, the rights, obligations and liabilities of the former owner under the contract are transferred to the new owner who must notify the Commission of the transfer.

53—Offence to exert undue influence etc in relation to training contracts

A person who exerts undue influence or pressure on, or uses unfair tactics against, a person in relation to entering into a training contract is guilty of an offence, the penalty for which is a fine of $5,000. It is also an offence (carrying the same penalty) for a person to exert undue influence or pressure on, or use unfair tactics against, a party to a training contract in relation to—

the making of an application to the Commission in relation to the contract under clause 49;

variation of the contract; or

the transfer or assignment of the contract from 1 employer to another; or

the termination or suspension, or purported termination or suspension, of the contract.

54—Termination/expiry of training contract and pre existing employment

If a training contract is entered into between an employer and a person who is already in the employment of the employer, the termination, or expiry of the term, of the training contract does not of itself terminate the person's employment with the employer.

Division 3—Registration of employers

55—Registration of employers

The Commission may, on application, register, or renew the registration of, an employer who may enter into a training contract as follows:

in relation to a specified trade occupation—for the training of a particular apprentice/trainee;

in relation to a specified trade occupation or specified trade occupations—for training apprentices/trainees generally;

in relation to a specified non trade occupation—for the training of a particular apprentice/trainee;

in relation to a specified non trade occupation or specified non trade occupations—for training apprentices/trainees generally.

56—Conditions of registration

Registration of an employer is subject to—

the conditions determined by the Commission as to the operations that the employer is authorised to conduct by the registration; and

a condition that an apprentice/trainee, or apprentices/trainees of a specified class, will be managed in a specified way; and

if guidelines have been developed by the Commission—the condition that the employer will comply with the guidelines; and

any other condition determined by the Commission.

It is an offence for a registered employer to contravene a condition of the registration, punishable by a fine of $5,000, expiable on payment of a fee of $315.

57—Criteria for registration

This clause sets out the criteria that the Commission must apply when determining whether to register, or renew or vary the registration of, an employer and in determining any conditions of the registration.

58—Variation or cancellation of registration

The Commission may, on application, vary or cancel the registration of an employer.

59—Duration of registration

Subject to this measure, registration of an employer remains in force, on initial grant or renewal, for a period (which may not be longer than 5 years) determined by the Commission.

60—Commission may cancel, suspend or vary registration

If—

a registered employer contravenes this Act or a corresponding law or a condition of the registration (whether the contravention occurs in this State or elsewhere); or

the circumstances are such that it is, in the Commission's opinion, no longer appropriate that the employer be so registered,

the Commission may do either or both of the following:

impose or vary a condition of the registration;

cancel or suspend the registration.

The Commission must, before taking any such action, give the person 28 days written notice of its intention and take into account any representations made by the person.

61—Appeal to District Court

An appeal to the District Court may be made (within 28 days of the making of the decision being appealed) against a decision of the Commission—

refusing an application for the grant or renewal of registration of an employer; or

imposing or varying conditions of registration; or

suspending or cancelling registration.

62—Commission may inquire into employers

The Commission may, at any time, inquire into an employer, whether registered or the subject of an application for registration.

Division 4—Compliance notices, misconduct, disputes and grievances

63—Compliance notices

If it appears that an employer has contravened a provision of this measure, the Commission may issue a compliance notice requiring the employer, within a period stated in the notice—

to take specified action to remedy the non compliance; and

to produce reasonable evidence of the employer's compliance with the notice.

Non-compliance with a notice within the time specified in the notice is an offence, the penalty for which is a fine of $5,000, expiable on payment of a fee of $315. An application for review of any such notice may be made to the IRC within 14 days of the issue of the notice.

64—Employer may suspend apprentice/trainee for serious misconduct

If an employer has reasonable grounds to believe that an apprentice/trainee employed by the employer is guilty of wilful and serious misconduct, the employer may (without first obtaining the approval of the Commission) suspend the apprentice/trainee from employment and must, in that event—

immediately refer the matter to the Industrial Relations Commission; and

within 3 days of the suspension—confirm the reference in writing.

A suspension under this section must, unless confirmed or extended by the Industrial Relations Commission, not operate for more than 7 working days.

65—Other matters to be dealt by Industrial Relations Commission

A party to a training contract may apply to the IRC for consideration of a matter arising from a dispute between the parties to the contract or if aggrieved by the conduct of another party to the contract. If the Commission suspects on reasonable grounds that a party to a training contract has contravened a provision of the contract or this Act, it may refer the matter to the IRC.

The powers that may be exercised by the IRC in relation to a matter before it under this Division are set out in the provision.

66—Holding of conciliation conferences compulsory

Proceedings (other than applications for review of a compliance notice) before the Industrial Relations Commission under Part 4 Division 4 are proceedings to which Chapter 5, Part 1, Division 4A of the Fair Work Act 1994 applies (Division 4A provides for the holding of compulsory conciliation conferences).

If a conciliation conference before the Industrial Relations Commission is held in proceedings relating to a suspension under section 64, the member presiding at the conference—

is not required to give a preliminary assessment or to make a recommendation under section 155B(3) of the Fair Work Act 1994; and

if the proceedings are not resolved by conciliation or withdrawn—is not disqualified from further involvement in the proceedings by reason only of the fact that he or she presided at the conference.

67—Representation in proceedings before Industrial Relations Commission

Representation in proceedings (other than appellate proceedings) before the IRC under this Division is regulated as follows:

representation of a party by a legal practitioner or a registered agent will not be permitted;

if a party to the proceedings is a body corporate, the IRC may, if the party seeks to be represented by an officer or employee who is not a legal practitioner or registered agent, permit such representation;

if a party to the proceedings satisfies the IRC that he or she will be disadvantaged in the proceedings if he or she is not given assistance by another person, the IRC may permit the party to be assisted by a person who is not a legal practitioner or registered agent, but only if that person is not acting for fee or reward.

68—Participation of assessors and other experts in proceedings before Industrial Relations Commission

In proceedings before the IRC under this Division, the IRC—

(a) must sit with assessors selected in accordance with Schedule 1; and

(b) may select an expert in accordance with Schedule 1 to advise the IRC in relation to a matter relating to the proceedings.

However, in the types of proceedings listed below, the IRC has complete discretion to sit with assessors or select an expert advisor:

a conference under Chapter 5, Part 1, Division 4A of the Fair Work Act 1994;

proceedings for the purposes of—

(i) dealing with preliminary, interlocutory or procedural matters; or

(ii) dealing with questions of costs; or

(iii) entering consent orders;

a part of the proceedings relating only to questions of law;

appellate proceedings.

Division 5—General

69—Relation to other Acts and awards etc

This clause provides that this measure and any statutory instrument made under this measure will prevail to the extent of any inconsistency over the Fair Work Act 1994 and any regulation, award or other determination, enterprise agreement or industrial agreement made under that Act or an Act repealed by that Act. However, a provision of an award or other determination, enterprise agreement or industrial agreement made under the Fair Work Act 1994 or an Act repealed by that Act requiring employers to employ apprentices/trainees in preference to junior employees remains in full force.

70—Making and retention of records

This clause provides that an employer who employs an apprentice/trainee must keep records as required by the Commission for at least 7 years after the expiry or termination of the training contract to which the record relates. The penalty for non compliance with this provision is a fine of $5,000, expiable on payment of a fee of $315.

Part 5—Miscellaneous

71—Training and Skills Register

The State register under the repealed Act continues in existence as the Training and Skills Register (the Register) under this measure and the following matters must be recorded in the Register:

details of the declarations (if any) made by the Minister under clause 5;

the registration of training providers and accreditation of courses under Part 3;

the variation, cancellation, suspension or expiry of the registration of a training provider or accreditation of a course under Part 3;

the registration of employers under Part 4;

the variation, cancellation, suspension or expiry of the registration of an employer under Part 4;

any other matter that, in the opinion of the Commission, should be recorded in the Register.

The Register will be kept in the form of a computer record and published on a website determined by the Commission.

72—Provision of information to/by prescribed authority

This provision gives the Commission and the Training Advocate the power to request for the purposes of this measure certain information from a prescribed authority and the prescribed authority the ability to comply with such a request within a reasonable time. The clause also authorises the Commission and the Training Advocate to provide information to a prescribed authority. A prescribed authority is defined as an agency or instrumentality of the Crown or a person or authority prescribed by regulation.

73—Other powers of Commission, Training Advocate, etc

This clause provides that, for the purposes of this measure, a member of the Commission, the Training Advocate, or a person authorised by the Commission or Training Advocate (an authorised person), may exercise any 1 or more of the following powers:

an authorised person may question any person—

(i) in relation to Part 3—about the delivery or provision of education and training or other services;

(ii) in relation to Part 4—about—

(A) the delivery or provision of education or training; or

(B) the employment of an apprentice/trainee;

an authorised person may require the production of any record or document required to be kept by or under this measure and inspect, examine or copy it;

an authorised person may enter and inspect, at any reasonable time, the following places or premises or anything in the following places or premises:

(i) a place or premises in which education or training is provided, including a place or premises in which a person undertakes the practical component of any such course;

(ii) a place or premises in which an apprentice/trainee is employed.

74—Immunity from liability

No civil liability attaches to a member of the Commission, a member of a committee of the Commission, the Training Advocate, a person authorised by the Commission or the Training Advocate or a member of a reference group established under the measure for an act or omission in the exercise or performance, or purported exercise or performance of powers, functions or duties conferred or imposed by or under this measure or any law. An action that would, but for this provision, lie against a person lies instead against the Crown. This provision does not, however, prejudice rights of action of the Crown in respect of an act or omission not in good faith.

75—False or misleading information

It is an offence (punishable by a fine of $5,000) for a person to make a statement that is false or misleading in a material particular in information provided under this measure.

76—Evidentiary provision relating to registration

This clause makes provision for evidentiary matters for the purposes of this measure.

77—Gazette notices may be varied or revoked

A notice published in the Gazette by the Commission may be varied or revoked by the Commission by subsequent notice in the Gazette.

78—Service

This clause provides that a notice or other document required or authorised to be given to or served on a person may be given or served personally or by post

79—Regulations

This clause makes provision for the making of regulations for the purposes of this measure.

Schedule 1—Appointment and selection of assessors and other experts for Industrial Relations Commission proceedings under Part 4

Division 1—Assessors

Clauses 1 to 7 of this Schedule make provision for the appointment and selection of assessors for IRC proceedings under Part 4.

Division 2—Experts

Clauses 8 and 9 of this Schedule make provision for the appointment and selection of experts in higher education and vocational education and training to provide advice to the IRC in proceedings under Part 4.

Schedule 2—Related amendments, repeal and transitional provisions

Part 1—Preliminary

Part 2—Amendment of Fair Work Act 1994

This Part of the Schedule contains amendments to the Fair Work Act 1994 that are related to the conferral of jurisdiction on the IRC under Part 4 of this measure.

Part 3—Repeal of Training and Skills Development Act 2003

The Training and Skills Development Act 2003 is to be repealed.

Part 4—Transitional provisions

This Part of the Schedule contains transitional provisions consequent on the passage of this measure and the repeal of the Training and Skills Development Act 2003.

Debate adjourned on motion of Mrs Redmond.

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