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Legislative Council - Fifty-Fourth Parliament, Second Session (54-2)
2020-11-10 Daily Xml
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Training and Skills Development (Miscellaneous) Amendment Bill

Committee Stage

In committee (resumed on motion).

Clause 1.

Clause passed.

Clauses 2 to 6 passed.

Clause 7.

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

Amendment No 1 [Scriven–1]—

Page 9, line 14 [clause 7(30)]—Delete subclause (30)

This amendment reinstates the definition of the Training Advocate. I will take this as an indicator in terms of support for consequential amendments in regard to the Training Advocate. I will therefore take this opportunity to outline the reasons for the amendment. It reinstates the definition of the Training Advocate prior to later amendments which reinstate the role of the Training Advocate.

The Training Advocate's role has been both advocacy and the education of users of the training system. This bill transfers those powers, the powers of the Training Advocate, instead to the commission and will include the role of conducting complaint handling, mediation and advocacy.

As seen from my earlier questions at clause 1, the advocate will cease to be independent. I acknowledge that the minister has said that no, there will be both a regulatory and complaints section within the Department for Innovation and Skills, and therefore in that way it will retain its independence. However, given that some of the argument as to why the advocate's position should be eliminated and instead have those functions within the new commission, it is clear that the visibility of independence will be totally lost.

Some of the previous argument was that there was confusion about the role of the Training Advocate, confusion about who was responsible for what. I submit that there will be more confusion in terms of not being able to see the advocacy role as an independent one when it is actually going to be within the Department for Innovation and Skills in terms of its administration.

Some of the feedback that we have had, which I alluded to in my contribution at clause 1, is that the department will be seen to be investigating complaints against its own handling of issues between employers and apprentices and trainees. By having the regulatory arm and the complaints arm, the intent, apparently, is for that not to be the case, but I think it is very clear that to an apprentice or trainee, particularly a young person, who is concerned about the way that they have been treated it will certainly appear as though the department is investigating complaints against itself. Therefore, I think it will lose the visibility of independence, and that will reduce the efficacy of the role of the Training Advocate.

There are also strong concerns raised by stakeholders in consultation with the opposition about the capacity and capability of the department to actually undertake those roles. As I mentioned, later clauses actually reinstate that role, and I will take the vote on this amendment—for which I will call a division, if necessary—as an indicator of whether to then move forward with those other amendments.

The Hon. S.G. WADE: I thank the honourable member for her comments, but as I indicated previously in our discussions on these very issues, the government does not support her views and does not support this amendment. The establishment of the South Australian Skills Commission and the South Australian Skills Commissioner will provide greater strategic oversight of the South Australian vocational sector and skilled workforce and consolidate current functions, resulting in simplification of access. The consolidation of functions within the South Australian Skills Commission will reduce duplication and alleviate confusion among stakeholders, which was identified as an issue through the course of the consultation.

The Hon. T.A. FRANKS: The Greens will be supporting the Labor opposition's amendment. We believe that it is integral to ensure the independence and also the separate identity of the Training Advocate.

The committee divided on the amendment:

Ayes 9

Noes 10

Majority 1

AYES
Bourke, E.S. Franks, T.A. Hanson, J.E.
Hunter, I.K. Maher, K.J. Parnell, M.C.
Pnevmatikos, I. Scriven, C.M. (teller) Wortley, R.P.
NOES
Bonaros, C. Centofanti, N.J. Darley, J.A.
Hood, D.G.E. Lee, J.S. Lensink, J.M.A.
Pangallo, F. Ridgway, D.W. Stephens, T.J.
Wade, S.G. (teller)
PAIRS
Ngo, T.T. Lucas, R.I.

Amendment thus negatived; clause passed.

Clauses 8 to 10 passed.

Clause 11.

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

Amendment No 2 [Scriven–1]—

Page 12, after line 17 [clause 11, inserted section 9(4)]—Insert:

(ab) the Minister must, within 3 sitting days after giving a direction, cause a copy of the direction to be laid before both Houses of Parliament; and

This amendment is in regard to transparency. Currently, the bill as given to this house shows that when a direction is made to the commissioner—so when the minister directs the commissioner—that would be reported in the annual report. Of course, that could be many months later and does not help with transparency.

Given the background and the track record of the current Minister for Innovation and Skills in the other place, in terms of turning otherwise functional boards into political instruments, it seems most necessary to ensure that in the event that a minister does make a direction to the commissioner that direction is then laid before both houses so that it is transparent; it is clear. I note that in the earlier contribution, the minister in this place indicated that the government would be supporting this amendment. I note that it will ensure that the direction is laid before both houses within three sitting days, so at this stage I probably do not need to speak further, unless the government has changed its mind.

The Hon. S.G. WADE: I would certainly encourage the member not to speak further because I can assure you that there is no part of the government's support for this amendment that is predicated on the personal slur on the minister in the other place. This is a clause that will stand no matter who is the minister, and the government supports this on the recommendation of the minister. Because of the minister's commitment and the government's commitment to transparency, we are not siding with the inappropriate remarks of the honourable member.

The Hon. F. PANGALLO: I rise to say that SA-Best will not be supporting this amendment.

The Hon. J.A. DARLEY: For the record, I will not be supporting this amendment.

The Hon. T.A. FRANKS: For the record, the Greens will be supporting this amendment.

Amendment carried.

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

Amendment No 3 [Scriven–1]—

Page 14, after line 13 [clause 11, inserted section 15(3)]—Insert:

(ab) the Minister must, within 3 sitting days after giving a direction, cause a copy of the direction to be laid before both Houses of Parliament; and

This is a similar amendment, where the minister makes a direction to the commission, whereas the previous one related to the commissioner, similarly that that direction should be laid before both houses within three sitting days.

The Hon. S.G. WADE: The government certainly considers it is similar and supports it similarly.

Amendment carried.

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

Amendment No 4 [Scriven–1]—

Page 14, after line 22 [clause 11, inserted section 15]—Insert:

(4a) Of the members appointed under subsection (4)(b)—

(a) at least 1 must be a person appointed on the recommendation of State employer associations, including the South Australian Employers' Chamber of Commerce and Industry Inc (Business SA); and

(b) at least 1 must be a person appointed on the recommendation of the United Trades and Labor Council (SA Unions).

This amendment is in relation to the make-up of the Training and Skills Commission. In our current Training and Skills Commission is a requirement that two of the members be recommended, the first by Business SA and the second by SA Unions. That is 20 per cent of members to be appointed by consultation with significant bodies. The opposition believes that 20 per cent of appointments to be done by consultation is a good thing, a positive thing, and certainly is not too much to expect. There is quite possibly a strong argument to expand it to include, for example, the Master Builders Association as well as Business SA, as they represent very large numbers of employees who have a very direct involvement in training and skills.

However, I have not moved that as an amendment, but simply to retain the existing provision where one person must be appointed on the recommendation of employer associations, designated in the act currently as Business SA, and one on the recommendation of the UTLC, currently delegated as SA Unions. This is about consultation. The Minister for Innovation and Skills tends not to like consultation, as evidenced by his introduction of this bill before consultation was complete. We know the minister hates unions, so it is no surprise that he is trying to cease the requirement to consult with unions. I will note that it is consultation rather than any further mandating.

So we are not surprised that he wants to get rid of SA Unions from the training and skills body, but what does he have against Business SA, and why does he want them to be left out? We know that the minister wants there to be no restrictions on who he can appoint. He uses the term 'flexibility' to make every appointment the potential to be a political point. I in no way suggest that every appointment he has made is a political appointment, because some fine people have been included, but he, unfortunately, has a tendency to want to make political appointments when it suits him.

It is no surprise that he is seeking to remove both Business SA and SA Unions from consultation in terms of who makes up the commission. We need to remember that this is about training and skills, particularly of apprentices and trainees, though not exclusively. Apprentices and trainees are not included anywhere themselves in terms of this bill, so consulting with the very people who are most impacted by conditions, by structures, by processes in training and skills, will not be represented on the training and skills body that is being proposed by this legislation. It seems entirely reasonable to have this, I reiterate, 20 per cent of appointments made following consultation, and therefore I commend this amendment to the council.

The Hon. S.G. WADE: The government does not support this amendment. The whole thrust of this legislation is to have a merit-based appointment process for the commission in line with modern appointment approaches. The minister responsible for this bill in the other place tabled the skills matrix developed to guide the appointment process, and the process outlined in the bill will ensure an appropriate skills mix of commission members to undertake the functions of the South Australian Skills Commission.

With all due respect to the honourable deputy leader, she kept using the word 'consultation', that her amendment required 'consultation'. In both (4a)(a) and (4a)(b) it does not talk about consultation; it says 'at least one person must be appointed on the recommendation of'. That is not consultation: that is an automatic right to appointment. It actually goes further than what is required in the current legislation. The government certainly does not support this. The government supports merit-based appointments.

The Hon. J.A. DARLEY: I indicate for the record that I will not be supporting this amendment.

The Hon. F. PANGALLO: SA-Best will not be supporting the amendment.

The Hon. T.A. FRANKS: The Greens will be supporting this amendment.

Ayes 9

Noes 10

Majority 1

AYES
Bourke, E.S. Franks, T.A. Hanson, J.E.
Hunter, I.K. Ngo, T.T. Parnell, M.C.
Pnevmatikos, I. Scriven, C.M. (teller) Wortley, R.P.
NOES
Bonaros, C. Centofanti, N.J. Darley, J.A.
Hood, D.G.E. Lee, J.S. Lensink, J.M.A.
Pangallo, F. Ridgway, D.W. Stephens, T.J.
Wade, S.G. (teller)
PAIRS
Maher, K.J. Lucas, R.I.

Clause 12 passed.

New clause 12A.

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

Amendment No 7 [Scriven–1]—

Page 19, after line 40—Insert:

12A—Amendment of section 45—Interpretation

Section 45—after subsection (2) insert:

(2a) However, a probationary period for a training contract cannot exceed—

(a) in the case of a training contract that is of less than 24 months' duration—60 days; or

(b) in the case of a training contract that is of 24 months' duration or longer—90 days.

This amendment is in relation to the probationary period for a training contract. This has been the subject of an amendment in the other place. Initially, the bill as presented in the other place would have enabled a very significant extension of probationary periods, which was considered to be detrimental in a number of cases.

I am glad to see that the minister in the other place did introduce some changes to that to make them less problematic. However, it is still considered by a number of stakeholders that a probationary period should not be longer than 60 days, if it is two years or 24 months or less in terms of the training contract, or should not be more than 90 days in the case of a training contract that is of 24 months or two years' duration or longer.

During consultation on the bill, some of the feedback to the opposition was that extending the probation time can actually be a disincentive. This is from an employer association. Extending the probationary period could disincentivise employers, because often they do not really get into, if you like, the nitty-gritty, the specific work, for some time until the probationary period is over, with some employers only signing up their apprentices to their training aspects, so into their training provider, once probation is complete.

There were two lots of feedback that came from that. One was from the employer's point of view: they did not necessarily want to start that formal training during the probation period. The other was that it could actually affect the way that apprentices or trainees experience the beginning of their apprenticeship or traineeship, because until they were signed up in the sense of their training provider and off of probation they might be left essentially doing meaningless work, sweeping floors or tidying papers, rather than actually getting into the vocation that they expected to commence with their apprenticeship or traineeship. The opposition took all that feedback on board and hence the reason for this amendment.

The Hon. S.G. WADE: The government does not support this amendment. As the honourable member said, there were government amendments in the other place. We think the bill, as it arrived in this place, sets the right balance. I would make the point too that this amendment is actually more prescriptive than the current act. When one of the key drivers of this bill is to provide flexibility within the system, we do not believe this amendment should be supported. We believe that it potentially jeopardises training contract arrangements and the flexibility in those arrangements.

The Hon. J.A. DARLEY: For the record, I will not be supporting this amendment.

The Hon. F. PANGALLO: SA-Best will not be supporting the amendment.

The Hon. T.A. FRANKS: The Greens will be supporting this amendment.

New clause negatived.

Clause 13 passed.

Clause 14.

The Hon. C.M. SCRIVEN: My question on clause 14 is in relation to a person under the age of 15 years. The bill states:

(7) A person under the age of 15 years must not enter into a training contract unless—

And there are a couple of provisions there, one of them being:

(b) the person has, on application, obtained the written approval of the Commission granted in accordance with any requirements under the South Australian Skills Standards.

We know from earlier discussion at clause 1 that the skills standards will sit under the regulations, so there will not be any opportunity for disallowance. It appears here that the skills standards could potentially allow a minimum age of 15 years to be evaded. First, some clarification from the minister on that would be appreciated.

The Hon. S.G. WADE: The bill formalises the national harmonised position that the minimum age for an apprentice or trainee is 15 years of age. The opposition has already indicated their support for a nationally harmonised position. This can be waived if permitted under an industrial award or agreement or if the SC has expressly approved the training contract.

The Hon. C.M. SCRIVEN: I appreciate the answer from the minister, but it does not really explain in what circumstances it has envisaged this might be necessary, in fact, why it is there, why that potential exemption from a nationally acknowledged minimum age of 15 years old is required.

The Hon. S.G. WADE: I am advised that this is very rare. I stress, also, that it can only be waived if permitted under an industrial award or agreement, so there is that protection as well. The sort of context in which it is envisaged that provision may be activated is in the context of a family business. It might also be in the context of a school-based apprenticeship, where the school, the parents and the apprentice all agree with the arrangement.

The Hon. C.M. SCRIVEN: Thank you, minister, for that explanation, it is helpful. However, for the record I will point out that a person under the age of 15 must not enter into a training contract unless (a) otherwise permitted under an industrial agreement or award or (b) the person has, on application, obtained the written approval of the commission, etc. So for the record, we point out that it does not have to be currently within the industrial agreement or award. However, I do acknowledge the minister's answer, and the opposition will not be opposing this clause.

Clause passed.

Clause 15 passed.

Clause 16.

The Hon. C.M. SCRIVEN: Clause 16 relates to the commencement date of apprenticeships and traineeships and the terms of training contracts. In section 49(2)(c) it provides that subject to this section a training contract remains in force until 'the Commission certifies the apprentice or trainee under the contract as competent in relation to the relevant trade or declared vocation'.

Is that simply, if you like, the commission doing the administrative process of ticking off that everything has been completed and approved in the normal course of events, or is it allowing the commission to certify, in some other way, that the apprentice or trainee is competent in relation to the relevant trade or declared vocation?

The Hon. S.G. WADE: I am advised that it is the employer and the training provider that certify that the trainee or apprentice is competent. The amendments the honourable member refers to do not materially alter the powers under the current act to certify the completion of training under a training contract. In terms of the characterisations the honourable member offered, this is an administrative process.

The Hon. C.M. SCRIVEN: I thank the minister for that clarification. The opposition will not be opposing this clause.

Clause passed.

Clause 17.

The Hon. C.M. SCRIVEN: My question first of all relates to new section 49A—Extension of probationary period, and new subsection (3), which provides:

(3) The Commission may, by notice in the Gazette made with the approval of the Minister, vary a specified class of training contracts—

The CHAIR: I am not sure whether this is the right one.

The Hon. C.M. SCRIVEN: Are we at clause 17?

The CHAIR: Clause 17 just deals with remuneration. Your amendment is listed as clause 17, page 24, lines 27 to 42, but says this clause will opposed.

The Hon. C.M. SCRIVEN: Certainly. Can I ask some questions about the clause overall first and then decide whether to proceed with the amendment?

The CHAIR: You can—

The Hon. C.M. SCRIVEN: This is new section 49A?

The CHAIR: I am just taking some advice. We are fine, so please proceed; apologies.

The Hon. C.M. SCRIVEN: Thank you, Mr Chair, no problem at all. While the amendment relates specifically to the changes to the probationary period, a specific question that the opposition has relates to new subsection (3), which provides:

(3) The Commission may, by notice in the Gazette made with the approval of the Minister, vary a specified class of training contracts to extend the probationary period for a training contract of that class for a specified period.

Why would the probation period for an entire class of training contracts be varied? Can the minister give an example of where that would be appropriate or envisaged?

The Hon. S.G. WADE: I am advised that this clause may well be useful in instances where a group of apprentices or trainees are similarly affected by an event. That event might be industry related, it might relate to, if you like, the termination of a training provider, or it might relate to a societal event, like COVID. Just as we needed to change the consultation plans on the bill, apprentices or trainees might need to change their training time frame.

The Hon. C.M. SCRIVEN: Thank you for that answer, minister, but it is specifically to vary the probationary period, not simply to vary training, and for a whole class of people to have their probationary period varied.

The Hon. S.G. WADE: The purpose behind this clause is to maximise the chances for the apprentice or trainee to complete their preparation period and progress in their training contract; ipso facto, the extension of the probation period extends the end point of the training contract.

The Hon. C.M. SCRIVEN: Is there any limit in that circumstance only, for a whole specified class of training contracts, to how long that probationary period could be extended by? It simply says here 'for a specified period'.

The Hon. S.G. WADE: I am advised the intention is that the extension would be consistent with section 49A(1) as an upper limit.

The Hon. C.M. SCRIVEN: I appreciate that that is the intention; however, it does not appear to say that in the legislation. Whereas subsection (2) refers to subsection (1), subsection (3) does not. Perhaps we could have some advice from parliamentary counsel, if necessary.

The Hon. S.G. WADE: I thank the honourable member for raising the issue and the government is happy to provide clarification within the bill. I would ask for patience as we try to do this, though. Perhaps I might explain what I am going to do and then we can try to find the words that make it happen. What the government is proposing is that the words in parentheses at the end of section 49A(1), that is:

…(however the probationary period, as extended, must not exceed 6 months in total or 25% of the term of the contract, whichever is the lesser)—

be replicated at the end of subsection (3). So I move:

Page 24, line 42, after 'for a specified period'—Insert:

(however the probationary period, as extended, must not exceed 6 months in total or 25% of the term of the contract, whichever is the lesser).

The CHAIR: Because we do not have it in writing, I am keen that everybody has the opportunity to understand what it is. I am happy to ask the minister to explain it again. We are trying to advance—

The Hon. T.A. Franks: It is all good.

The CHAIR: It is all good.

The Hon. S.G. WADE: I just emphasise that it is the government's view that the intent was clear. We are more than happy to take up the invitation of the opposition to make it doubly clear.

The Hon. C.M. SCRIVEN: I thank the minister for that extra clarification. Whilst the opposition still has some reservations about this clause, we also know we do not have the numbers to oppose it outright. The change that has just been proposed to subsection (3) does make it slightly more palatable so the opposition is willing to accept the further amendment that the minister has just outlined, while reserving our right in terms of opposing the actual clause.

Amendment carried.

The Hon. C.M. SCRIVEN: I would still like to move the amendment standing in my name as a matter of principle, even though we know we are not going to win it, which is in regard to opposing that overall clause.

The CHAIR: You do not need to move that; all you will do is oppose the clause.

Clause as amended passed.

Clause 18 passed.

Clause 19.

The Hon. C.M. SCRIVEN: A question in regard to section 51(1), which provides:

(1) The Commission may…on its own motion, suspend a training contract.

Could the minister explain why the commission would be doing that on its own motion, on what sort of grounds, and why those grounds are not specified or indicated within the bill?

The Hon. S.G. WADE: I am advised that, in relation to the termination or suspension of a training contract, referred to in section 51(2), the criteria will be outlined in the skills standards, which in due course are published in the Gazette, but stakeholders will be consulted on the development of the skills standards.

In terms of the sorts of circumstances where section 51(2) might have work to do, one can envisage a circumstance where the commission, in its regulatory role, becomes aware of issues. For example, it might be a safety issue or it might be that the employer has themselves become prohibited.

The Hon. C.M. SCRIVEN: I appreciate that clarification. Will there be a process for appeal, either on behalf of the apprentice or trainee or on behalf of the employer, in the sort of circumstances that have just been outlined, such as safety?

The Hon. S.G. WADE: I remind the council that the provision that is in the act, section 51(2), is what is in the current act.

The Hon. C.M. Scriven interjecting:

The Hon. S.G. WADE: I thought we were referring to subsection (2) which provides:

Subject to this Part, the Commission may, on application or of its own motion, terminate or suspend a training contract.

The Hon. C.M. Scriven: In the bill that I have in front of me that's 51(1), it talks about suspension and then clause 20 talks about termination.

The Hon. S.G. WADE: Sorry, just to clarify that, in the act it was section 51(2), and the honourable member is correct: in the bill, the old section 51(2) becomes section 51(1), but still the same provision is there. The honourable member raises the point about appropriate reviews and in that context there is scope under section 70F of the act to, by regulation, specify a class of decisions as reviewable. The government is happy to give an undertaking that a regulation will be made to make determinations under section 51(1) reviewable by so regulating.

The Hon. I.K. Hunter interjecting:

The Hon. C.M. SCRIVEN: I note the honourable member's suggestion that we report progress but my next question is on a very similar matter in clause 20, new section 51B(1), which is essentially the same question but regarding termination of a training contract, whereas this one was regarding the suspension of a training contract. Is the minister willing to give the same undertaking for that section also?

The Hon. S.G. WADE: I think I can safely do so.

The Hon. C.M. SCRIVEN: On the basis that the government has given an undertaking to have a regulation whereby the commission, suspension or termination of a training contract would have a process for appeal—the undertaking that has just been given by the government—the opposition will not be opposing clause 19 or clause 20.

Clause passed.

Progress reported; committee to sit again.

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