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Legislative Council - Fifty-Fourth Parliament, Second Session (54-2)
2020-11-11 Daily Xml
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Training and Skills Development (Miscellaneous) Amendment Bill

Committee Stage

In committee.

(Continued from 10 November 2020.)

Clause 20.

The Hon. C.M. SCRIVEN: Members may recall when we adjourned on this bill it was following a question that I had in regard to the commission on its own motion being able to terminate a training contract. My question was around whether there would be any processes for appeal. My recollection is that the minister came back and said that he would give an undertaking that such a provision would be included in the regulations.

First of all, I would like to clarify that, as I have just described it, it was correct. All of that was in regard to suspending a training contract and whether there was a process for appeal. My question then is whether we got to the next section and discussed a process of appeal for terminating a training contract. I am sorry if that sounded a bit vague. I am happy to clarify a bit more, if necessary.

The Hon. R.I. LUCAS: I am advised that the minister on behalf of the minister did give an undertaking to provide an appeal provision in the regulations for both suspension and termination.

The Hon. C.M. SCRIVEN: On the basis that was provided for both the suspension and the termination of a training contract, I have no further contribution at clause 20.

Clause passed.

Clause 21.

The Hon. C.M. SCRIVEN: Clause 21 removes the existing section 52, which is about the transfer of a training contract to a new employer when there is a change of ownership of the business, being that the rights and obligations are transferred to the new owner of that business. Could the Treasurer explain why that provision is going to be removed which I understand is the outcome of this clause?

The Hon. R.I. LUCAS: I am advised if the member could clarify, as we are not aware of this particular clause removing anything. If the member could perhaps indicate what her understanding is and we will seek to clarify it perhaps, if she could clarify her question?

The Hon. C.M. SCRIVEN: My understanding is that clause 21 says to delete section 52 and substitute with what then appears in the bill. My understanding is that by removing that existing section 52 it removes the obligation for the training contract to be transferred to the new employer when there is a change of ownership of the business.

The Hon. R.I. LUCAS: I am advised that we very sneakily just moved this to new section 54MA. The existing provision has been transferred to 54MA, clause 23, page 35 of the bill.

The Hon. C.M. SCRIVEN: Thank you. I appreciate that clarification very much. My next contribution is at clause 22, so that is all on clause 21.

Clause passed.

Clause 22.

The Hon. C.M. SCRIVEN: My concern is with the wording of clause 22. It states:

(1) Subject to this section, the time spent by an apprentice or trainee attending a course as part of their apprenticeship or traineeship will be treated for all purposes as part of the employment of the apprentice or trainee.

My question, essentially, is: what about training and assessment associated with a training contract that is not attending a course, given that is essentially inconsistent with competency-based training? The suggestion and feedback that the opposition received from stakeholders is that it is a bit of a hangover in terminology from the pre competency-based training days, when training was delivered in courses and students sat tests and were marked, etc.

Delivery modes, of course, have changed greatly since those days. Providers customise delivery and assessment to suit different learning styles, to make sure that deficiencies in learning are addressed to then achieve competency. For example, it might be that an apprentice or trainee is completing TAFE work online, or other modes that may even still be in development, and would not be attending a course as such. Can the Treasurer provide some clarity around what is intended here?

The Hon. R.I. LUCAS: I am advised that it is intended for the phrase 'attending a course' to have a broad definition that would include, for example, other activities aligned to off-job training. Detail with regard to off-job training, including clarification with regard to off-job training and wages, will be provided as necessary in the regulations and South Australian Skills Standards. Stakeholders will be consulted in the development of these documents.

The Hon. C.M. SCRIVEN: Thank you for that clarification. On the basis that that is intended to be broad, that it is intended to capture examples such as the one that I mentioned, and that the Treasurer has given an undertaking that they will be in the regulations, I have no further contributions at clause 22.

Clause passed.

Clause 23.

The Hon. C.M. SCRIVEN: Clause 23 relates to prohibited employers. This clause deletes the current registration of employers and replaces it with a new section 54F. I would just like to note for the record that the problem with the previous bill, prior to the government amendments to its own bill, was that the only recourse was after an incident had occurred, and that could, of course, be something very serious: a death or serious injury. The opposition is pleased to note that the term 'imminent risk of harm' is now included, but it does demonstrate, unfortunately, how the previous, original bill was ill thought through or at least ill developed by the minister in the other place. The new section now talks about prohibited employers, and it states:

(2) In determining whether or not an employer is suitable to employ an apprentice or trainee, the Commission must have regard to the following:

(a) whether the employer is able to provide, or arrange to provide, an apprentice or trainee with the facilities, range of work, supervision and training required under a training plan for the apprentice or trainee…

What this means is that the criteria that has been deleted from the existing legislation is that the employer must provide or be able to provide suitable premises and suitable equipment, supervision of the apprentice or trainee and the ability to provide the appropriate range of work to satisfy the training contract.

It is entirely appropriate that the employer must be able to provide a variety of things, but the new registration does not require an employer to demonstrate that he or she can provide those things in order to become registered. My questions are around why the registration requirements are no longer legislated, given that they are important things such as suitable premises, equipment, supervision and the range of work.

The Hon. R.I. LUCAS: I am advised that these new requirements are more consistent with other jurisdictions and, in broad terms, the need to streamline the employer registration process, whilst maintaining protection for apprentices and trainees was identified as a key matter for review in both the current and the 2016 reviews of the act. The department's processing times for new employer registration applications are currently around 10 to 12 days following the introduction of a risk assessment matrix for prospective employers and the introduction of an online application system.

Before these changes, the processing time for employer registration applications was approximately 26 days. The streamlined registration process should further significantly reduce registration times and provide a lighter regulatory touch for employers when they engage with the system.

The Hon. C.M. SCRIVEN: I thank the Treasurer for his response. Does the Treasurer envisage that the ability to provide suitable scope of work will be in the Skills Standards, which is what is referred to a number of times—the Skills Standards to be apparently covering things which will no longer be legislated? My specific question is: will suitable scope of work be in those standards?

The Hon. R.I. LUCAS: The specific answer to the honourable member's question is that it will be subject to further consultation as to whether it will be included in the skills standard but that the scope of work question that the member has put will be considered either at the registration process or at the signing of the contract. So there is the assurance that the scope of work will be considered at either registration or at the signing of the contract of service. The issue of whether or not the scope of work will be part of a skills standard will be the subject of further discussion and consultation.

The Hon. C.M. SCRIVEN: I thank the Treasurer for his answer. Could he point to where in the bill it says that scope of work will be part of the registration process? It may be that it is—it is late in the night—but I have not seen it.

The Hon. R.I. LUCAS: It is not specifically referred to in the bill. The advice I am provided with is that it will be part of that particular discussion, but it is not specifically provided for in the bill.

The Hon. C.M. SCRIVEN: The answer that I have just been given possibly affects my next question. I will put on the record a concern that if that is going to be part of the registration process it would be better if it were specifically included in the bill. Given that we are looking at prohibited employers, the opposition is concerned that if an apprentice, for example, has not been provided with a suitable scope of work during their apprenticeship, what recourse will they have? It will obviously be of no use to them that the employer, now being designated a prohibited employer, will not be able to take on a new apprentice. That is going not to help the apprentice who has been through his or her apprenticeship and has not been provided with suitable scope of work to actually be competent.

The Hon. R.I. LUCAS: I am advised that the scope of work would be checked and assessed before the actual contract of training, so that there will be the protection, at that particular stage, for the individual that the member is referring to.

The Hon. C.M. SCRIVEN: Can I ask, then, why the scope of work has been taken out of the legislation if that is the intention?

The Hon. R.I. LUCAS: I am advised that it is part of the development in this bill of the risk assessment matrix, and in some cases the scope of work is of greater importance in some higher risk occupations and of lesser importance in some lower risk occupations. It is part of the risk assessment matrix that is going to be determined between higher risk occupations and lower risk occupations.

Clause passed.

Clause 24.

The Hon. C.M. SCRIVEN: My question is in regard to the new section 54(O), which is regarding a transfer fee payable in relation to certain substitutions of employer in relation to a training contract. My understanding from briefings on this topic is that this is intended to discourage poaching of apprentices (and possibly others, but apprentices for brevity). Did the government receive any feedback to indicate any opposition from any stakeholders to this, particularly from employer, employer groups or training organisations?

The Hon. R.I. Lucas: Clare, we have passed that clause; 54(O) is still part of clause 23. We are on clause 24.

Clause passed.

Clause 25 passed.

Clause 26.

The Hon. C.M. SCRIVEN: I move:

Amendment No 9 [Scriven–1]—

Page 43, line 15 [clause 26(2)]—Delete '(for a period not exceeding 4 weeks)'

This is in regard to the SAET being able to suspend the employment of an apprentice or trainee for no more than four weeks. The bill removes the provision that, if the South Australian Employment Tribunal suspends the employment of an apprentice or trainee, it can be for a period not exceeding four weeks. Our understanding is that that suspension could be for longer than four weeks under the bill as it stands. The opposition is concerned that the removal of this limit of four weeks will place an unfair burden on an apprentice or trainee who may be suspended from work without pay for a much longer period of time.

The essential change is that it ensures that that suspension can only be for four weeks. That is designed to protect an apprentice or trainee from suspension for a longer time, which would seriously financially compromise them.

The Hon. R.I. LUCAS: The government does not support this amendment. The government bill introduces changes to reduce red tape, including when matters are referred to the SAET for resolution. The government does not support the amendment, as it would reintroduce a layer of red tape by requiring parties to reapply to suspend an apprentice or trainee's employment each four weeks a dispute is being conciliated or adjudicated before the SAET.

Amendment negatived; clause passed.

Clauses 27 and 28 passed.

Clause 29.

The Hon. C.M. SCRIVEN: I move:

Amendment No 12 [Scriven–1]—

Page 45, lines 18 and 19 [clause 29, inserted section 70B(1)]—Delete 'may, on an application under section 70A or on its own motion,' and substitute 'must, on an application under section 70A,'

This amendment is quite an important one, so it is probably a good one to finish off on for the night, as it is our final one from the opposition. This is in regard to application for recognition of other trade qualifications. The section says:

A person may apply to the Commission for recognition of the person's qualifications or experience in relation to a particular trade…

Further, it states:

The Commission may, for the purpose of determining an application…require the applicant to—

(a) undertake an examination or test; or

(b) undergo an independent competency assessment…

As determined, and that is all well and good. Subsection (6) states:

The Commission may, in determining an application under this section, seek advice from any person or body who, in the Commission's opinion, has special knowledge of, and experience in, the relevant trade or declared vocation.

It is saying that, when the commission is deciding whether to accept a person's qualifications in regard to a particular trade or vocation, they may seek advice from a relevant body. It could be a training body, it could be the certifying body in the case of a particular aspects, but it does not insist that they must do so. The amendment, instead of saying that they 'may' seek advice from an industry body with relevant expect is, says that they 'must' seek advice from an industry body with relevant expertise. Note that that advice will not be binding on them. Once that advice was sought, they would not be required to be bound by it, but it ensures that all relevant information is taken into account.

One of the concerns that was raised in consultation and getting feedback on this bill is the fact that there can be times when there might be particular pushes, for example, from a baking franchise to have a qualification—let's say a baker's qualification—accepted without necessarily things like a full scope of work. So, for example, working in a baker's franchise would not expose an apprentice to the full range of work and scope that would be available in many other baking positions.

Obviously, one cannot expect the commission to be across every single trade and apprenticeship, and it is clearly already acknowledged in the bill that the commission may gain some benefit from it. But there was a strong view from those with an interest in this sector that this should be a requirement, that they should be required to seek advice from, for example, an industry body with relevant expertise, and that that was essential in safeguarding the quality level of qualifications and ensuring that the consistency of qualifications and the value and recognition of them was retained, hence the amendment.

The Hon. R.I. LUCAS: The government does not support this amendment. Clause 29 of the bill introduces new sections 70A and 70B to enable the SASC to recognise qualifications and experience obtained outside of a training contract. The amended act permits an individual to apply for the SASC to have their skills and experience in relation to a particular trade or declared vocation assessed, and sets out how the SASC will assess the application.

The opposition's amendment does not materially enhance the government's bill. To the contrary, this amendment would restrict the discretion of the commission to determine for itself whether or not a person is adequately trained. It would also prevent the commission from, on its own motion, determining and certifying that a person is adequately trained for work in an occupation.

The Hon. C.M. SCRIVEN: Can the Treasurer explain how it would prevent any of those things? It simply says that the commission must seek advice. It does not ask for that advice to be binding, so how would it prevent any one of those things that has been put forward by the Treasurer?

Amendment negatived; clause passed.

Remaining clauses (30 to 36), schedule and title passed.

Bill reported with amendment.

Third Reading

The Hon. R.I. LUCAS (Treasurer) (22:37): I move:

That this bill be now read a third time.

Bill read a third time and passed.


At 22:38 the council adjourned until Thursday 12 November 2020 at 11:00.

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