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Legislative Council - Fifty-Fourth Parliament, Second Session (54-2)
2020-11-10 Daily Xml
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Bills

Training and Skills Development (Miscellaneous) Amendment Bill

Committee Stage

In committee.

Clause 1.

The Hon. C.M. SCRIVEN: I have a number of general questions in regard to the bill and then a number on several clauses, including clause 7.

There were 43 amendments to this bill filed by the government. This is a government bill that was introduced in the House of Assembly on 2 July, forced to a debate quite quickly, and the government filed 43 amendments on the afternoon of 7 September. Can the minister explain why there were so many amendments, given that the minister in the other place had claimed the bill itself had been subject to a huge and extensive amount of consultation?

The Hon. S.G. WADE: I am advised that consultation on the Training and Skills Development (Miscellaneous) Amendment Bill 2020 was undertaken concurrently with the consideration in the house. That was an accommodation to COVID. As a result of that consultation, and presumably in the wisdom in the House of Assembly, the government developed a set of amendments that the minister duly introduced.

The Hon. C.M. SCRIVEN: Could the minister explain what he means by 'an accommodation for COVID'? The bill was introduced in the lower house while consultation was still open on the YourSAy website, for example.

The Hon. S.G. WADE: It was intended that public consultation on this bill would have occurred earlier in the year. That was not possible due to COVID and therefore, to facilitate the progress of the legislation, the public consultation was done concurrently with the parliamentary consideration.

The Hon. C.M. SCRIVEN: Why could the consultation not be done earlier due to COVID, given my understanding is that much of the consultation was done electronically and using the YourSAy website, etc.?

The Hon. S.G. WADE: In the early stages of the development of the bill it was intended that different consultation mechanisms be used. I also remind the honourable member that COVID was extremely challenging for both industry and workers and to expect full engagement in a consultation process earlier in the year would have been challenging to both industry and training organisations.

The Hon. C.M. SCRIVEN: Why then was the introduction of the bill not delayed until that consultation could be completed?

The Hon. S.G. WADE: In many portfolios, accommodations have been made to continue to achieve government objectives in the context of COVID. One example of an independent body within my own portfolio is the Health Performance Council, whose approach for its inquiry on institutional racism was significantly restructured in the context of COVID. This example is not rare.

The Hon. C.M. SCRIVEN: Can the minister advise who was consulted on this bill, and is he confident that all relevant bodies were consulted and made aware of the proposed changes to the legislation?

The Hon. S.G. WADE: As the honourable member has already highlighted, this bill consultation was made available through the YourSAy website, which is a well-established practice of the government of South Australia both under this administration and the previous one. In addition to that, I am advised that all relevant stakeholders were directly contacted in relation to the bill.

The Hon. C.M. SCRIVEN: Is the minister aware of any unions that were not directly contacted and, if so, can he advise whether that was deliberate on the part of the minister in the other place?

The Hon. S.G. WADE: The honourable member's question, if I heard her correctly, was whether I am aware of any unions that were not invited to make a submission on the legislation. The government is not asserting that it contacted every union in South Australia. What I can advise the honourable member is that the government received a submission from the Australian Manufacturing Workers' Union, which had a joint submission with the Australian Workers' Union, and also a submission was received from SA Unions.

The Hon. C.M. SCRIVEN: I thank the minister for that answer, and I would note that that was submissions received rather than consultation necessarily going out to those bodies. I would just place on the record that some of the unions with a considerable interest in this were not directly contacted. Moving to another point, can the minister advise whether, through any of the consultation on this bill, anyone has advocated for skills councils to be legislated?

The Hon. S.G. WADE: I am advised that there were a range of suggestions made in terms of legislating or not legislating for skills councils. I would draw the honourable member's attention to subclause 19(3), which reads:

(3) The Commission may, in accordance with any requirements in the regulations, establish such industry engagement or advisory bodies as the Commission thinks appropriate (which may but need not consist of members of the Commission).

In light of the consultation, the government made the decision to maintain flexibility in the arrangements in relation to the skills council. Skills councils are intended, but skills councils may well evolve to give flexibility to the commission. It is anticipated that the commission may well choose to give, if you like, a legislative touchstone to skills councils through subclause 19(3).

The Hon. C.M. SCRIVEN: Is it the case that one of the reasons for not giving a specific legislative section for skills councils was so there would be less scrutiny of appointments to those councils so minister Pisoni can avoid a repeat of the debacle that was Nick Handley being appointed to a board for which he was not qualified?

The Hon. S.G. WADE: I take that as a comment.

The Hon. C.M. SCRIVEN: It is quite instructive that the minister does not want to either confirm or deny that. There was a representation made to minister Pisoni in the other place from the Equal Opportunity Commissioner in regard to the Skilling South Australia program, which of course includes training and skills development, hence why it might be relevant to this bill, in which the then commissioner, Dr Niki Vincent, stated that it did not appear to provide appropriate and sustainable pathways to employment for mature age jobseekers. Her concerns were essentially that the state government's signature skills policy, Skilling South Australia, was discriminatory towards mature age jobseekers. Is there anything in this bill that addresses any of her concerns whatsoever?

The Hon. S.G. WADE: Indeed, the honourable member is correct: this bill will help mature age pathways develop. The bill is fundamentally going to facilitate greater flexibility and a broader range of training contract arrangements to support both upskilling and reskilling and, of course, we mature workers are most likely to need upskilling and reskilling.

The Hon. C.M. SCRIVEN: Thank you to the minister for that generalisation, but it is at least an attempt to answer the question. My next question, whilst it does relate particularly to clause 9, I think has a fairly broad impact, hence I am asking it now, if the minister does not object, and also given that we have our crossbenchers who are going to be going out and we do not want to get to any divisions.

The Hon. S.G. WADE: I am happy with that.

The Hon. C.M. SCRIVEN: One of the aspects of this bill is that it allows the minister to declare a particular trade as a vocation rather than the current system. Clause 9 allows the minister to declare an occupation to be a trade or a declared vocation. During consultations with the opposition some stakeholders have raised a concern that this essentially establishes a state-based scheme, or has the potential to do so, instead of the national training scheme, which as I understand it was established with a great deal of angst over many years to ensure that there was continuity between jurisdictions and that people undertaking a trade or declared vocation did not find that when they moved 20 kilometres over the border their qualifications were not recognised. Could the minister address the thinking behind that in this bill and the concerns that have been raised?

The Hon. S.G. WADE: Apprenticeships are and have long been regulated by the state, drawing on national qualifications, and there is no intention to move away from that. What this clause seeks to achieve is to strengthen the opportunity to innovate and to respond to both the needs of business and also apprentices.

The Hon. C.M. SCRIVEN: I thank the minister for that answer and I appreciate that is, if you like, the—

The Hon. S.G. WADE: Aspiration.

The Hon. C.M. SCRIVEN: The aspiration, as the minister says. I was thinking 'spin' but I was trying to think of a better word to use that was not implying something derogatory. That does not actually address the issue. What is going to prevent the possibility of an occupation being declared as a trade or declared vocation and then, because it has been declared by a minister of South Australia and not as part of a national qualifications framework, it creates exactly the issues that we had in years gone by when different states had different qualification frameworks, different abilities to determine whether someone was qualified or not, and all of those consequential concerns that have been raised?

The Hon. S.G. WADE: I would make the point to the honourable member that the clause increases the breadth of categories—pre-apprenticeships, specialised skills and so forth—but fundamentally the process has not changed. If there is a risk of this process undermining national consistency, that risk is already there.

The Hon. C.M. SCRIVEN: I am just referring to the existing act.

The Hon. S.G. WADE: Section 6(3)?

The Hon. C.M. SCRIVEN: Yes, that is right. Can the minister outline two things: whether the existing section 6 has been used, and if so when, and in what circumstances it is envisaged that the proposed new section 6 would be used?

The Hon. S.G. WADE: I am advised that indeed section 6 has been used. Section 6 is used for every apprenticeship and traineeship pathway. The key point is not to change the process but to broaden section 6.

The Hon. C.M. SCRIVEN: Could the minister expand on how that operates in practice, please?

The Hon. S.G. WADE: I am advised that the process is that industry applies to the commission for a pathway to be declared. The commission considers that application in the context of factors such as the level of demand, the alignment with the national system and the like. If the commission makes a decision to establish such a pathway, it would then be published in the Gazette.

The Hon. C.M. SCRIVEN: Thank you for that, minister. I think that relates to the new section 6(3), but I was also asking how it operates in practice at the moment, which I appreciate does not include the pathways. In terms of declaring an occupation to be a trade or declared vocation, how does that then actually proceed in practice?

The Hon. S.G. WADE: I just reassure the member that it is the same process. There will be a different name to the commission, but the process is the same.

The Hon. C.M. SCRIVEN: Is there any tie-up with the new section 6(3) and the recording of statistics for the National Centre for Vocational Education and Research and the way they record any of these pathways?

The Hon. S.G. WADE: The NCVER is focused on delivering nationally consistent data. Obviously, in the complexity of federation that needs to take into account the particular frameworks that are developed to deliver the services in each state and territory.

The Hon. C.M. SCRIVEN: That did not really answer the question.

The Hon. S.G. WADE: Let me have another go: we do not control the way that the NCVER reports.

The Hon. C.M. SCRIVEN: I see. So can the minister confirm that this has not been set up in a way that would particularly feed into the way that NCVER currently interprets its data? To put it another way, are there any training courses that are currently not picked up as being training contracts for the purposes of NCVER which would be picked up in such a way if this change occurs in the legislation?

The Hon. S.G. WADE: I am advised that the answer to the honourable member's question is that that would only be the case if the commission declares them to be a trade or a declared vocation and they meet the NCVER accounting rules. In terms of the NCVER, a traineeship is defined by the following four criteria: firstly, the existence of a regulated employment-based training arrangement and a registered legal training agreement, originally called an indenture and more recently a contract of training or a training contract; secondly, a commitment by the employer, the apprentice or trainee and a registered training organisation to an agreed training program in a specified occupation, all of which are set out in the training agreement; thirdly, an occupation training program that consists of a concurrent combination of paid employment and on-the-job training and formal, usually off-the-job, training that leads to a recognised qualification; fourthly, training that is provided at an agreed level in the Australian Qualifications Framework and the standards set down in the Australian Quality Training Framework.

The Hon. C.M. SCRIVEN: How will funding for the new commission compare to current funding for the functions that currently exist, which of course includes the Training Advocate as well as the existing Training and Skills Commission?

The Hon. S.G. WADE: With all due respect to the deputy leader, that question relates to a budget matter, not a legislation matter. As the commission is established and their functions are clarified then so will its budget.

The Hon. C.M. SCRIVEN: Who will do the administration for the training commission?

The Hon. S.G. WADE: As is the practice with the current commission, the new commission will be supported by staff of the department.

The Hon. C.M. SCRIVEN: The Department for Innovation and Skills, did you say?

The Hon. S.G. WADE: I did, yes.

The Hon. C.M. SCRIVEN: The point of my question is in regard to the mediation. If the department will be doing the administration for the training commission, essentially the department will be investigating complaints against its own handling of issues between employers and apprentices or trainees. The concerns are that therefore the mediation cannot be independent.

The Hon. S.G. WADE: I am advised that there will be a clear separation of powers in terms of the regulatory function and the complaints-handling function. In terms of the responsibility for the complaints, that is in the hands of the commission. The role of commissioner is a statutory office, and they will be responsible for maintaining that separation. I think it is noteworthy for the council to consider that the current advocate is supported by the department.

The Hon. C.M. SCRIVEN: Can the minister explain why the Training Advocate was established as an independent body initially and why it is no longer considered necessary for it to be independent?

The Hon. S.G. WADE: Humility prevents me from putting myself in the mind of the former government when they put the role in. In terms of the rationale for dissolving the role of the Training Advocate in clause 1, I am happy to respond. Feedback from consolidation indicated that there is confusion in relation to dispute resolution and educating parties about apprenticeships and traineeships. The overlap between certain functions performed by the Office of the Training Advocate and those of the TASC and the department through delegation from the TASC was also identified as a source of confusion by various stakeholders.

The amended structure will assist in modernising the state's vocational education and training system, lifting the status of apprenticeships and traineeships and increasing industry leadership and accountability. This amended structure will also provide for a single point of accountability.

The Hon. C.M. SCRIVEN: In terms of the specific question about the independence of the Training Advocate, within your answer, minister, you said that there has been confusion about the different roles. Would it not be that the answer to such confusion is education rather than dissolving the role, where it then does not have the same visibility as an independent advocate?

The Hon. S.G. WADE: I am sure that is one of the options the department and the minister considered as they digested the consultation. It was considered that this approach is preferred.

The Hon. C.M. SCRIVEN: Did you receive any feedback that the staff to support the Training Advocate should be from outside the department?

The Hon. S.G. WADE: I am advised that to the best of our knowledge there was no such feedback.

The Hon. C.M. SCRIVEN: Certainly the opposition received that feedback, so I am surprised that it was not also provided to the minister and his department. In terms of process, I can now go on to some other general questions that are more directly linked to clauses, given what we are trying to do in terms of our crossbench colleagues. If we are not expecting any divisions up to clause 7, we could do clauses 1 to 6.

The Hon. S.G. WADE: I am happy either way.

The CHAIR: I indicated privately before that I am happy to facilitate discussion about clauses 1 to 6—I thought you wanted to go beyond that. I call the minister.

The Hon. S.G. WADE: Perhaps if I can clarify what the honourable member is suggesting: the Chair has been very mindful of the situation and allowed us to have more latitude in terms of discussing issues at clause 1, but I am clarifying whether the Hon. Clare Scriven is suggesting that we might move beyond clause 1 and consider clauses 2 to 6. Personally, I think it might be better to continue our consideration of the broader issues at clause 1, because we never know whether a crossbencher might have a comment on clauses 2 to 5.

The CHAIR: I am happy to proceed in that regard.

The Hon. C.M. SCRIVEN: I am happy to do so as well. In terms of the minister being able to direct the commissioner (particularly relevant to clause 11), why does the minister need to be able to direct the commission?

The Hon. S.G. WADE: I would make the point to the honourable member that the minister can currently direct the commission, and that power to direct has been brought forward in relation to the commissioner.

The Hon. C.M. SCRIVEN: Certainly I am aware of that, but as the minister mentioned earlier the commissioner will be a statutory office, so why is it necessary to be able to direct the commissioner?

The Hon. S.G. WADE: I accept the point the honourable member makes, that the commissioner is the statutory office, but that is also true of the commission. The commission is a statutory office. The commissioner will be a statutory office. The minister is able to direct both of them.

The Hon. C.M. SCRIVEN: Could the minister just clarify whether the minister is currently able to direct the Training Advocate?

The Hon. S.G. WADE: I am advised that the minister can direct the Training Advocate under section 22 of the current act.

The Hon. C.M. SCRIVEN: I sought that clarification for two reasons. Firstly, of course, the Training Advocate is currently considered to be independent. If the Training Advocate is already subject to the direction of the minister, then that is not a change. Secondly, given the track record that the minister in the other place has of appointing people to boards who are, for example, fundraisers for his local sub-branch, that relates to why there are concerns raised by stakeholders about the opportunities for the minister to direct in this case the commissioner or, indeed, a variety so that, instead of being an independent body as proposed as a statutory office, which is independent of the minister's whims or political aspirations, it would be the opportunity to be a political arm. Do you have any responses to the concerns that stakeholders have raised with the minister?

The Hon. S.G. WADE: I note the honourable member's comment.

The Hon. C.M. SCRIVEN: I note the honourable minister's lack of response or denial on behalf of the minister.

Members interjecting:

The CHAIR: We are not having a conversation. The deputy leader has the call to ask a question.

The Hon. C.M. SCRIVEN: Can the minister answer why, if this bill passes, the minister would need to direct the commission?

The Hon. S.G. WADE: I just reiterate the point that this is the power of direction operated under the commission, operated in relation to the Training Advocate under the previous government. This government is not intending to change those arrangements.

The Hon. C.M. SCRIVEN: I flag that, when we do get to the clause, I am moving an amendment in regard to any directions to the commissioner—not to the commission—should be laid before the houses within three sitting days rather than only in the annual report. Can the minister indicate whether the government is intending to accept that amendment and, if not, why not?

The Hon. S.G. WADE: I assure you that the minister is very keen for that amendment to be accepted, demonstrating yet again his commitment to transparency and accountability.

The Hon. C.M. SCRIVEN: I appreciate the minister's humour, but I am glad to hear that the government intends to accept that amendment; is that correct?

The Hon. S.G. WADE: That is our intention, but the member may be able to persuade us out of it. See how you go.

The Hon. C.M. SCRIVEN: Could the minister outline how the skills standards are envisaged to operate?

The Hon. S.G. WADE: I am advised that arrangements for delegation of functions and the South Australian skills standards will be put in place prior to the act's commencement on 1 July 2021. Upon enactment of the amendment act, the Minister for Innovation and Skills will appoint the South Australian Skills Commissioner to conduct consultations, prepare regulations, develop standards, establish the framework for delegations, and establish the operational structure of the South Australian Skills Council.

The commissioner will not have any statutory powers until the act comes into operation; however, the functions proposed to be conducted by the commissioner do not require statutory authority in order to be undertaken. Stakeholders will be given an opportunity to provide input into such matters through the consultation process to be undertaken by the commissioner.

The Hon. C.M. SCRIVEN: Two questions on that: first, does the minister envisage there will be any change to that time frame, given COVID and the changes we saw happening in terms of this bill as result of COVID?

The Hon. S.G. WADE: Of course, as health minister I need to warn the council again, warn the parliament, that we have done well in COVID so far, but many jurisdictions have had serious setbacks after their first wave. Obviously, the most pressing example for us is Victoria. I do not know what the future holds between now and July 2021, but the government's best estimate is that time frame. Of course, that is also dependent on this parliament dealing with this legislation expeditiously.

The Hon. C.M. SCRIVEN: Thank you for that clarification, minister. Could you outline in a bit more detail what it is expected the skills standards will cover? I appreciate they have not been developed yet in a specific sense but, given that the registration will be dependent on an employer satisfying any requirements set out in those South Australian skills standards, it is a fairly significant part of the bill, so I think it is reasonable that we have on the record the sorts of things that those skills standards are expected to cover.

The Hon. S.G. WADE: I am advised that the skills standards will sit under the regulations and provide further guidance and clarification. For example, the skills standards may guide decision-making for declaring an employer a prohibited employer. They might provide clarification in relation to assessing applications and certifying the competence of individuals for skills recognition purposes. They might also deal with assessing applications for employer registration under the modified criteria implemented by the bill.

The Hon. C.M. SCRIVEN: Could the minister explain what he means by 'they will sit under the regulations'? Specifically, will they come back to the parliament or will they be quite separate to that process?

The Hon. S.G. WADE: I thank the honourable member for the opportunity to clarify. The skills standards sit under the regulations in the sense that they are authorised by the regulations, but the skills standards themselves are not disallowable instruments such that they themselves need to be tabled. I am advised that the skills standards will be published in the Gazette and made available on a website determined by the commission.

Progress reported; committee to sit again.

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