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New South Wales
Apprenticeship and Traineeship
Bill 2001
Contents
Page
Part 1 Preliminary
1 Name of Act 2
2 Commencement 2
3 Definitions 2
Part 2 Apprenticeships and traineeships
Division 1 Preliminary
4 Vocational training guidelines 3
5 Recognised trade and traineeship vocations 3
6 Vocational training orders 3
Division 2 Establishment of apprenticeships and
traineeships
7 Applications to establish apprenticeships and traineeships 5
Apprenticeship and Traineeship Bill 2001
Contents
Page
8 Applications to be dealt with by Commissioner or Tribunal 6
9 Dismissal of certain applications 7
10 Vocational training directions 7
11 Withdrawal from apprenticeship or traineeship during
probationary period 8
12 Training contracts are binding 8
13 Duties of employers under apprenticeships and
traineeships 9
14 Duties of employers using host employment arrangements 10
15 Duties of employers to notify Commissioner of certain
matters 10
16 Duties of apprentices and trainees under apprenticeships
and traineeships 11
17 Conditions of training and employment for persons
employed as apprentices and trainees 12
18 Extension of probationary period 12
19 Attendance at registered training organisation 12
Division 3 Transfer, variation, suspension, cancellation
and completion of apprenticeships and
traineeships
20 Transfer of apprenticeships and traineeships 12
21 Variation of training contracts and training plans 13
22 Suspension and cancellation of apprenticeships and
traineeships by consent 14
23 Completion of apprenticeships and traineeships 15
24 Effect of death of employer or change in partnership 16
Division 4 Additional provisions concerning recognised
trade vocations
25 Juniors not to be employed in recognised trade vocations
unless apprentices or qualified tradespersons 16
26 Commissioner may direct apprenticeship to have effect 17
27 Remuneration of adult apprentices 17
Division 5 General
28 Register of apprenticeships and traineeships 18
29 Advertising of group training organisations 19
30 Registration of group training organisations 20
31 Preservation of conditions of employment of existing
worker trainees 20
Contents page 2
Apprenticeship and Traineeship Bill 2001
Contents
Page
32 Training contracts presumed to benefit minors 21
33 Apprentices and trainees not to be required to make
payments or give bonds 21
34 Effect of change in vocational training order 21
Part 3 Recognition of other trade qualifications
35 Recognition of Defence Force trade training 23
36 Recognition of other qualifications 24
37 Recognition of other trade training 24
38 Register of determinations 25
Part 4 Proceedings with respect to disputes and disciplinary
matters
Division 1 Complaints
39 Complaints to be made to Commissioner 26
40 Complaints that cannot be settled to be referred to
Tribunal 26
41 Suspension of apprenticeships and traineeships pending
hearing 26
42 Tribunal to fix time and place for hearing complaints 27
Division 2 Hearings
43 Parties 27
44 Procedure generally 27
45 Legal representation 27
46 Attendance of witnesses and production of documents 28
47 Witnesses to answer questions 28
48 Misconduct 29
49 Costs 29
Division 3 Determinations
50 Conciliation 29
51 Determinations 29
52 Orders for compensation 30
53 Orders prohibiting employer from entering into
apprenticeships and traineeships 31
Contents page 3
Apprenticeship and Traineeship Bill 2001
Contents
Page
Part 5 Appeals
54 Appeals to Appeal Panel 33
55 Appeals to Industrial Relations Commission 34
Part 6 Administration
Division 1 The Commissioner for Vocational Training
56 Appointment of Commissioner 35
57 Functions of Commissioner 35
58 Delegation by Commissioner 35
Division 2 The Vocational Training Tribunal
59 Establishment of Tribunal 35
60 Sittings of Tribunal 36
61 Functions of Tribunal 36
Division 3 The Vocational Training Appeal Panel
62 Constitution of Appeal Panel 36
63 Sittings of Appeal Panel 37
64 Functions of Appeal Panel 37
Division 4 Industry training officers
65 Appointment of industry training officers 37
66 Functions of industry training officers 38
67 Powers of entry to premises 38
68 Search warrants 39
69 Obstruction of industry training officers 40
Part 7 Miscellaneous
70 False or misleading information 41
71 Disclosure of business information 41
72 Contraventions of Act that give rise to offences 41
73 Proceedings for offences 42
74 Applications and notices 42
75 Fees 42
76 Evidentiary certificates 42
77 Liability 43
78 Delegation by Director-General 43
79 Act binds Crown 43
Contents page 4
Apprenticeship and Traineeship Bill 2001
Contents
Page
80 Relationship with Industrial Relations Act 1996 44
81 Regulations 44
82 Repeals 45
83 Amendments 45
84 Savings, transitional and other provisions 45
85 Review of Act 45
Schedules
1 The Vocational Training Tribunal 46
2 The Vocational Training Appeal Panel 50
3 Amendment of other Acts 52
4 Savings, transitional and other provisions 57
Dictionary 62
Contents page 5
I certify that this PUBLIC BILL, which originated in the LEGISLATIVE ASSEMBLY, has
finally passed the LEGISLATIVE COUNCIL and the LEGISLATIVE ASSEMBLY of NEW
SOUTH WALES.
Clerk of the Legislative Assembly.
Legislative Assembly,
Sydney, , 2001
New South Wales
Apprenticeship and Traineeship
Bill 2001
Act No , 2001
An Act to provide for the regulation of apprenticeships and traineeships; to repeal
the Industrial and Commercial Training Act 1989; and for other purposes.
I have examined this Bill, and find it to correspond in all respects with the Bill as
finally passed by both Houses.
Chairman of Committees of the Legislative Assembly.
Clause 1 Apprenticeship and Traineeship Bill 2001
Part 1 Preliminary
The Legislature of New South Wales enacts:
Part 1 Preliminary
1 Name of Act
This Act is the Apprenticeship and Traineeship Act 2001.
2 Commencement
This Act commences on a day or days to be appointed by
proclamation.
3 Definitions
(1) Words and expressions that are defined in the Dictionary at the end of
this Act have the meanings given to them by the Dictionary.
(2) Notes included in this Act do not form part of this Act.
Page 2
Apprenticeship and Traineeship Bill 2001 Clause 4
Apprenticeships and traineeships Part 2
Preliminary Division 1
Part 2 Apprenticeships and traineeships
Division 1 Preliminary
4 Vocational training guidelines
(1) The Director-General may from time to time issue guidelines
(vocational training guidelines) in relation to the exercise of functions
under this Act by persons involved in the administration of this Act.
(2) It is the duty of any person involved in the administration of this Act
to comply with the requirements of the vocational training guidelines.
(3) Copies of each vocational training guideline must be made available
for public inspection on the Internet and, during ordinary office hours,
at the offices of the Department.
5 Recognised trade and traineeship vocations
(1) The Commissioner, by order published in the Gazette:
(a) may designate any vocation to be a recognised trade vocation
in connection with the establishment of apprenticeships under
this Act, and
(b) may designate any vocation (including any vocation that forms
part of a recognised trade vocation) to be a recognised
traineeship vocation in connection with the establishment of
traineeships under this Act.
(2) In making such an order, the Commissioner must comply with the
relevant vocational training guidelines.
6 Vocational training orders
(1) The Commissioner may from time to time make orders (vocational
training orders) specifying the following matters in relation to the
required training for a particular recognised trade vocation or
recognised traineeship vocation:
(a) the appropriate term or terms for apprenticeships or traineeships
in that vocation,
Page 3
Clause 6 Apprenticeship and Traineeship Bill 2001
Part 2 Apprenticeships and traineeships
Division 1 Preliminary
(b) the appropriate probationary period or periods for
apprenticeships or traineeships in that vocation, having regard
to the term or terms specified for them under paragraph (a),
(c) the appropriate qualification or qualifications that may be
awarded in relation to an apprenticeship or traineeship in that
vocation,
(d) any other training to be provided in addition to the training
required for an appropriate qualification,
(e) such other matters relating to the training of apprentices or
trainees in that vocation as the Commissioner considers
appropriate.
(2) The appropriate term to be specified in a vocational training order in
relation to an apprenticeship or traineeship may vary according to:
(a) specified training that has previously been completed by the
proposed apprentice or trainee, and
(b) specified qualifications that have previously been awarded to
the proposed apprentice or trainee, and
(c) specified conditions to be complied with by the proposed
employer, or by the proposed apprentice or trainee, under an
apprenticeship or traineeship.
(3) In making a vocational training order, the Commissioner:
(a) must consult with the relevant industry groups, and
(b) must comply with the vocational training guidelines.
(4) Notice of the making of a vocational training order must be published
in the Gazette.
(5) Such a notice must identify the order, indicate when the order is to take
effect, contain brief particulars of the substance of the order and state
that a copy of the order may be obtained from the offices of the
Department.
(6) Copies of each vocational training order must be made available for
public inspection on the Internet and, during ordinary office hours, at
the offices of the Department.
Page 4
Apprenticeship and Traineeship Bill 2001 Clause 7
Apprenticeships and traineeships Part 2
Establishment of apprenticeships and traineeships Division 2
Division 2 Establishment of apprenticeships and traineeships
7 Applications to establish apprenticeships and traineeships
(1) An employer who employs a person as an apprentice or trainee may,
with the person's consent, apply to the Commissioner for the
establishment of:
(a) an apprenticeship in a recognised trade vocation, or
(b) a traineeship in a recognised traineeship vocation (including a
recognised traineeship vocation that is, or forms part of, a
recognised trade vocation).
(2) Within 28 days after the date on which an employer employs a person
as an apprentice or trainee, the employer must, if he or she has not
already done so, apply to the Commissioner for the establishment of
the relevant apprenticeship or traineeship.
Maximum penalty: 20 penalty units.
(3) The application:
(a) must be accompanied by such details as may be required by the
relevant vocational training order in relation to:
(i) the proposed training contract, as executed by the
prospective employer and prospective apprentice or
trainee, and
(ii) the proposed training plan, as endorsed by the registered
training organisation by which the training is to be
provided, and
(b) must identify the industrial award or agreement that applies to
the apprenticeship or traineeship concerned, and
(c) must indicate the date on which the prospective apprentice or
trainee began to work, or will begin to work, for the employer
as an apprentice or trainee, and
(d) in the case of an apprenticeship that the relevant industrial
award or agreement provides may be undertaken as a trainee
apprenticeship, must indicate whether or not the apprenticeship
is to be undertaken as a trainee apprenticeship, and
Page 5
Clause 7 Apprenticeship and Traineeship Bill 2001
Part 2 Apprenticeships and traineeships
Division 2 Establishment of apprenticeships and traineeships
(e) in the case of an application by an employer who proposes to
place the apprentice or trainee with a host employer from the
commencement of the apprenticeship or traineeship, must
indicate the name and address of the host employer with whom
the apprentice or trainee is initially to be placed, and
(f) in the case of an application for a traineeship, must indicate
whether the prospective trainee is an existing worker trainee.
(4) The training contract referred to in subsection (3) (a) (i) must be
prepared in accordance with the relevant vocational training order and,
in particular, must indicate the term of the proposed apprenticeship or
traineeship.
(5) The training plan referred to in subsection (3) (a) (ii) must be prepared
in accordance with the relevant vocational training order and, in
particular, must indicate:
(a) the arrangements for the provision of training to the apprentice
or trainee that have been agreed to by the employer and the
registered training organisation by which the training is to be
provided, and
(b) the appropriate qualification or qualifications to be awarded to
the apprentice or trainee in relation to the proposed
apprenticeship or traineeship.
(6) An application under this section may not be made by a prohibited
employer.
(7) The regulations may make provision for or with respect to applications
under this section.
8 Applications to be dealt with by Commissioner or Tribunal
(1) The Commissioner must deal with an application for the establishment
of an apprenticeship or traineeship:
(a) by approving the application, or
(b) by dismissing the application, or
(c) by referring the application to the Tribunal.
(2) The Tribunal must deal with a referred application:
(a) by approving the application, or
(b) by dismissing the application.
Page 6
Apprenticeship and Traineeship Bill 2001 Clause 8
Apprenticeships and traineeships Part 2
Establishment of apprenticeships and traineeships Division 2
(3) The Commissioner may, but is not required to, deal with an application
made more than 28 days after the date on which the prospective
apprentice or trainee began working for the employer as an apprentice
or trainee.
(4) As soon as practicable after an application is determined, the
Commissioner must notify the applicant of the determination.
9 Dismissal of certain applications
(1) An application for establishment of an apprenticeship or traineeship
must be dismissed unless the Commissioner or Tribunal, as the case
may be, is satisfied:
(a) that the employer can provide the work-based component of
the required training in the relevant vocation, and
(b) in the case of an application by an employer who proposes to
place the apprentice or trainee with a host employer from the
commencement of the apprenticeship or traineeship, that the
host employer with whom the apprentice or trainee is initially
to be placed is available to provide appropriate training to the
apprentice or trainee.
(2) An application for the establishment of a trainee apprenticeship may
be dismissed if the Commissioner or Tribunal, as the case may be, is
satisfied that a trainee apprenticeship is inappropriate in the
circumstances of the case, despite the fact that the relevant industrial
award or agreement recognises that the apprenticeship may be
undertaken as a trainee apprenticeship.
10 Vocational training directions
(1) When dealing with an application for the establishment of an
apprenticeship or traineeship, the Commissioner or Tribunal, as the
case may be, may issue a direction (a vocational training direction) in
relation to the proposed apprenticeship or traineeship.
(2) A vocational training direction may do any one or more of the
following:
(a) it may reduce or extend the term of the apprenticeship or
traineeship,
(b) it may approve alternative training to be undertaken by the
apprentice or trainee.
Page 7
Clause 10 Apprenticeship and Traineeship Bill 2001
Part 2 Apprenticeships and traineeships
Division 2 Establishment of apprenticeships and traineeships
(3) In making a vocational training direction, the Commissioner or
Tribunal:
(a) must have regard to any relevant training that the apprentice or
trainee has received:
(i) whether as an apprentice or trainee or otherwise, and
(ii) whether in the particular vocation or in some other
vocation, and
(iii) whether in New South Wales or elsewhere, and
(b) may have regard to any other matter that the Commissioner or
Tribunal considers relevant, and
(c) must comply with the vocational training guidelines.
(4) If a vocational training direction is made that affects the provisions of
the proposed training contract:
(a) a copy of the contract (appropriately amended) must be
returned to the applicant for execution, and
(b) the application is not to be further dealt with until the contract
(as amended) is duly executed and returned to the
Commissioner.
11 Withdrawal from apprenticeship or traineeship during probationary
period
(1) At any time during the apprentice's or trainee's probationary period,
and whether or not a training contract is in force, either the employer
or the apprentice or trainee may, by notice in writing addressed to the
other, withdraw from the apprenticeship or traineeship.
(2) An application for the establishment of an apprenticeship or
traineeship is taken to have been withdrawn, and need not be dealt
with, if notice is given to the Commissioner, before the application is
dealt with, that the employer or the apprentice or trainee has withdrawn
from the apprenticeship or traineeship during the probationary period.
12 Training contracts are binding
(1) A training contract has effect as if it were a deed duly executed by the
employer and the apprentice or trainee.
(2) Subject to section 11:
(a) the training contract for a full apprenticeship binds the
employer and the apprentice:
Page 8
Apprenticeship and Traineeship Bill 2001 Clause 12
Apprenticeships and traineeships Part 2
Establishment of apprenticeships and traineeships Division 2
(i) from the time the employer is notified that the
establishment of the apprenticeship has been approved,
or
(ii) from the end of the probationary period,
whichever is the later, until the end of the term of the
apprenticeship, and
(b) the training contract for a trainee apprenticeship binds the
employer and the apprentice from the time the employer is
notified that the establishment of the apprenticeship has been
approved until the apprentice ceases to be in the employ of the
employer, and
(c) the training contract for a traineeship binds the employer and
the trainee:
(i) from the time the employer is notified that the
establishment of the traineeship has been approved, or
(ii) from the end of the probationary period,
whichever is the later, until the end of the term of the
traineeship.
(3) Any time during which an employer has employed a person as an
apprentice or trainee is taken to form part of the term of the person's
apprenticeship or traineeship.
13 Duties of employers under apprenticeships and traineeships
(1) The employer of an apprentice or trainee must, in accordance with the
relevant training plan, take all reasonable steps:
(a) to enable the apprentice or trainee to receive the work-based
component of the required training, in particular by providing
all necessary facilities and opportunities to acquire the
competencies of the vocation concerned, and
(b) to enable the apprentice or trainee to obtain an appropriate
qualification for that vocation, in particular:
(i) by releasing the apprentice or trainee as required for
attendance at the relevant registered training
organisation, and
(ii) by liaising with the relevant registered training
organisation in relation to the apprentice's or trainee's
attendance and participation in the training provided by
the relevant registered training organisation.
Page 9
Clause 13 Apprenticeship and Traineeship Bill 2001
Part 2 Apprenticeships and traineeships
Division 2 Establishment of apprenticeships and traineeships
(2) The employer of an apprentice or trainee must discharge his or her
obligations under the apprenticeship or traineeship as an employer of
the apprentice or trainee.
14 Duties of employers using host employment arrangements
(1) An employer that places an apprentice or trainee with a host employer
under a host employment arrangement remains liable to fulfill the
obligations imposed on the employer by this Act, but is taken to have
fulfilled those obligations if they have been fulfilled by the host
employer.
(2) Without limiting subsection (1), an employer that places an apprentice
or trainee with a host employer under a host employment arrangement:
(a) must place the apprentice or trainee with host employers in a
manner that ensures that the apprentice or trainee receives the
work-based component of the required training in all aspects of
the apprenticeship or traineeship, and
(b) must properly supervise any such host employer in its provision
of the required training to the apprentice or trainee, in
particular:
(i) by ensuring that the host employer releases the
apprentice or trainee as required for attendance at the
relevant registered training organisation, and
(ii) by liaising with the relevant registered training
organisation in relation to the apprentice's or trainee's
attendance and participation in the training provided by
the relevant registered training organisation.
(3) An employer must not knowingly place an apprentice or trainee with
a host employer who is a prohibited employer.
Maximum penalty: 20 penalty units.
(4) A prohibited employer must not accept an apprentice or trainee under
a host employment arrangement.
Maximum penalty (subsection (4)): 20 penalty units.
15 Duties of employers to notify Commissioner of certain matters
(1) In relation to each apprentice or trainee that he or she employs, an
employer must notify the Commissioner of the following matters
within 14 days after the matter arises:
Page 10
Apprenticeship and Traineeship Bill 2001 Clause 15
Apprenticeships and traineeships Part 2
Establishment of apprenticeships and traineeships Division 2
(a) any injury to the apprentice or trainee that adversely affects the
apprentice's or trainee's ability to continue or complete the
apprenticeship or traineeship,
(b) any failure by the apprentice or trainee to make satisfactory
progress in learning the competencies of the relevant vocation,
(c) any change in the registered training organisation attended by
the apprentice or trainee,
(d) any failure by the apprentice or trainee to participate in, or
make satisfactory progress in, the training provided by the
relevant registered training organisation,
(e) in the case of an employer who places the apprentice or trainee
with host employers, any matter that is likely to have an adverse
effect on the completion of the apprenticeship or traineeship by
the apprentice or trainee, including:
(i) any difficulties encountered by the employer in finding
host employers, and
(ii) any difficulties encountered by the apprentice or trainee
in relation to any host employer, whether in relation to
training or employment or otherwise,
(f) in the case of a trainee apprentice, any termination of
employment of the apprentice or trainee by the employer.
(2) An employer must also notify the Commissioner of the following
matters within 14 days after the matter arises:
(a) any change in the name under which the employer carries on
business or in the address from which the employer carries on
business,
(b) any change in the nature of the employer's business that
adversely affects the employer's ability to comply with his or
her obligations under this Act.
16 Duties of apprentices and trainees under apprenticeships and
traineeships
(1) An apprentice or trainee must, in accordance with the relevant training
plan, make all reasonable efforts:
(a) to acquire the competencies of the vocation concerned, and
(b) to obtain an appropriate qualification or qualifications for that
vocation.
Page 11
Clause 16 Apprenticeship and Traineeship Bill 2001
Part 2 Apprenticeships and traineeships
Division 2 Establishment of apprenticeships and traineeships
(2) An apprentice or trainee must discharge his or her obligations under
the apprenticeship or traineeship as an employee of the employer.
17 Conditions of training and employment for persons employed as
apprentices and trainees
An employer that employs a person as an apprentice or trainee in a
recognised trade vocation or recognised traineeship vocation:
(a) must provide work-based training in accordance with the
relevant vocational training order for that vocation, and
(b) must employ the person under conditions no less favourable
than those set by the provisions of the relevant industrial award
or agreement,
whether or not an apprenticeship or traineeship has been established
for the apprentice or trainee.
18 Extension of probationary period
On the application of the employer or the apprentice or trainee, the
Commissioner may extend the apprentice's or trainee's probationary
period for up to a maximum of 3 months beyond the initial period
specified in the relevant vocational training order.
19 Attendance at registered training organisation
Time spent by an apprentice or trainee in attending the training
provided by a relevant registered training organisation is taken to form
part of the time required by the relevant training contract to be spent
in discharging the apprentice's or trainee's obligations under the
contract.
Division 3 Transfer, variation, suspension, cancellation and
completion of apprenticeships and traineeships
20 Transfer of apprenticeships and traineeships
(1) An application for approval to the transfer of an apprenticeship or
traineeship may be made to the Commissioner by the prospective
employer.
(2) The Commissioner must deal with the application:
(a) by approving the application, or
Page 12
Apprenticeship and Traineeship Bill 2001 Clause 20
Apprenticeships and traineeships Part 2
Transfer, variation, suspension, cancellation and completion of Division 3
apprenticeships and traineeships
(b) by dismissing the application, or
(c) by referring the application to the Tribunal.
(3) The Tribunal must deal with a referred application:
(a) by approving the application, or
(b) by dismissing the application.
(4) Approval to the transfer is not to be given unless the Commissioner or
Tribunal, as the case may be, is satisfied:
(a) that the prospective employer has the ability to provide
appropriate training in the relevant vocation, and
(b) that the apprentice or trainee, and the apprentice's or trainee's
existing employer, consent to the transfer of the apprenticeship
or traineeship.
(5) The Commissioner must send a notice to the apprentice's or trainee's
existing employer requesting the employer to notify the Commissioner
whether or not the employer consents to the transfer.
(6) If the Commissioner does not receive any reply to such a request
within 21 days after the date on which the notice was sent, the consent
of the existing employer is taken to have been given.
(7) If the application for transfer is approved, all rights and obligations
conferred or imposed on an employer by the relevant training contract
cease to be the rights and obligations of the existing employer and
become the rights and obligations of the prospective employer.
(8) Subsection (7) does not affect any rights or obligations in relation to
matters arising before the transfer was approved, and any such rights
and obligations remain the rights and obligations of the existing
employer.
21 Variation of training contracts and training plans
(1) An application for the variation of a training contract or training plan
may be made to the Commissioner by the employer and the apprentice
or trainee, or by either of them alone.
(2) In the case of an application for the variation of a training plan, the
application must be endorsed with the consent of the relevant
registered training organisation to the proposed variation.
(3) The Commissioner must deal with an application:
Page 13
Clause 21 Apprenticeship and Traineeship Bill 2001
Part 2 Apprenticeships and traineeships
Division 3 Transfer, variation, suspension, cancellation and completion of
apprenticeships and traineeships
(a) by approving the application, or
(b) by dismissing the application, or
(c) by referring the application to the Tribunal.
(4) The Tribunal must deal with a referred application:
(a) by approving the application, or
(b) by dismissing the application.
(5) In the case of an application made by only one of the parties, the
Commissioner must send a notice to the other party requesting the
party to notify the Commissioner whether or not the party consents to
the variation.
(6) If the Commissioner does not receive any reply to such a request
within 21 days after the date on which the notice was sent:
(a) the consent of the party to whom the notice was sent is taken to
have been given, and
(b) approval of the application for variation is taken to have been
given on the expiry of the 21-day period.
(7) If the application for variation of a training contract or training plan is
approved, the training contract or training plan is taken to be varied in
accordance with the approval.
22 Suspension and cancellation of apprenticeships and traineeships by
consent
(1) An application for suspension or cancellation of an apprenticeship or
traineeship may be made to the Commissioner by the employer and the
apprentice or trainee, or by either of them alone.
(2) In the case of an application made by both parties, the apprenticeship
or traineeship is suspended or cancelled in accordance with the
application on the expiry of 7 days after the application is lodged with
the Commissioner, unless the Commissioner directs otherwise.
(3) Such a direction may be given only if the Commissioner is satisfied:
(a) that the consent of one of the parties to the application has been
obtained as a result of undue influence, or
(b) one of the parties to the application has, before the expiry of the
7-day period, notified the Commissioner that he or she
withdraws consent to the application.
Page 14
Apprenticeship and Traineeship Bill 2001 Clause 22
Apprenticeships and traineeships Part 2
Transfer, variation, suspension, cancellation and completion of Division 3
apprenticeships and traineeships
(4) In the case of an application made by one only of the parties, the
Commissioner must send a notice to the other party requesting the
party to notify the Commissioner whether or not the party consents to
the suspension or cancellation.
(5) If the Commissioner does not receive any reply to such a request
within 21 days after the date on which the notice was sent:
(a) the consent of the party to whom the notice was sent is taken to
have been given, and
(b) the apprenticeship or traineeship is suspended or cancelled in
accordance with the application on the expiry of the 21-day
period.
23 Completion of apprenticeships and traineeships
(1) As soon as practicable after an apprentice:
(a) has completed his or her term of apprenticeship in a recognised
trade vocation, and
(b) has been awarded an appropriate qualification by a registered
training organisation,
the Commissioner must issue the apprentice with a certificate of
proficiency for that vocation.
(2) An apprentice who has completed his or her term of apprenticeship in
a recognised trade vocation but has yet to be awarded an appropriate
qualification may instead be awarded a craft certificate for that
vocation.
(3) As soon as practicable after a trainee:
(a) has completed his or her term of traineeship in a recognised
traineeship vocation, and
(b) has been awarded an appropriate qualification by a registered
training organisation,
the Commissioner must issue the trainee with a certificate of
proficiency for that vocation.
(4) A trainee who has completed his or her term of traineeship in a
recognised traineeship vocation but has yet to be awarded an
appropriate qualification may instead be awarded a certificate of
completion for that vocation.
Page 15
Clause 24 Apprenticeship and Traineeship Bill 2001
Part 2 Apprenticeships and traineeships
Division 3 Transfer, variation, suspension, cancellation and completion of
apprenticeships and traineeships
24 Effect of death of employer or change in partnership
(1) If:
(a) the employer of an apprentice or trainee dies, and
(b) the business in which the apprentice or trainee was employed
is carried on by the executors or administrators for the time
being of the will or estate of the deceased employer,
the apprenticeship or traineeship is taken not to have been terminated
by the death of the employer.
(2) If:
(a) the employers of an apprentice or trainee are partners in a
partnership, and
(b) the business in which the apprentice or trainee is employed is
carried on after a change in the composition of the partnership,
the apprenticeship or traineeship is taken not to have been terminated
by that change.
(3) Unless cancellation of the apprenticeship or traineeship is approved by
the Commissioner on the application of those executors, administrators
or partners:
(a) the relevant training contract continues to bind them as if they
were the employers of the apprentice or trainee, and
(b) while it does so, they are taken to be the employers of the
apprentice or trainee for the purposes of this Act.
Division 4 Additional provisions concerning recognised trade
vocations
25 Juniors not to be employed in recognised trade vocations unless
apprentices or qualified tradespersons
(1) An employer must not employ a junior in a recognised trade vocation
unless the junior is an apprentice or qualified tradesperson in that
vocation.
Maximum penalty: 20 penalty units.
Page 16
Apprenticeship and Traineeship Bill 2001 Clause 25
Apprenticeships and traineeships Part 2
Additional provisions concerning recognised trade vocations Division 4
(2) This section does not apply to:
(a) the employment of a person in a recognised traineeship
vocation that is, or forms part of, a recognised trade vocation,
or
(b) the employment of a person in a recognised trade vocation by
a spouse or parent of the person, or
(c) the employment of a person in a recognised trade vocation, or
in any part of a recognised trade vocation, that is exempted by
the regulations from the operation of this section.
26 Commissioner may direct apprenticeship to have effect
(1) If an employer fails to apply for the establishment of an apprenticeship
within 28 days after the employer employs a junior as an apprentice,
the Commissioner may, on the application of the junior, direct that an
apprenticeship contract be taken to have come into effect between the
employer and the junior.
(2) As soon as practicable after giving such a direction, the Commissioner:
(a) must serve a document in the form of an apprenticeship
contract (endorsed by the Commissioner to indicate that it has
been prepared pursuant to a direction under this section) on the
employer, and
(b) must send a copy of the document to the apprentice.
(3) Subject to this Act, an apprenticeship contract under this section:
(a) takes effect when the document referred to in subsection (2) (a)
is served on the employer, and
(b) has effect as if it were a deed duly executed by the employer
and the apprentice.
(4) Any time during which the employer has employed the apprentice as
an apprentice prior to the giving of the direction referred to in
subsection (1) is taken to form part of the term of the apprenticeship.
27 Remuneration of adult apprentices
(1) If:
(a) an apprenticeship is established in a recognised trade vocation
for an adult, and
Page 17
Clause 27 Apprenticeship and Traineeship Bill 2001
Part 2 Apprenticeships and traineeships
Division 4 Additional provisions concerning recognised trade vocations
(b) there is no adult award in force, but there is a junior award in
force, in relation to that vocation,
then, until an adult award comes into force in relation to that vocation,
the minimum rate of remuneration for the person is to be the
maximum rate set by the junior award for apprentices who are at the
same stage of apprenticeship in that vocation.
(2) A rate of remuneration set by this section has effect as if it formed part
of an industrial award or agreement that applied to the person for
whom it is set, and any remuneration payable under this section may
be recovered accordingly.
(3) This section does not apply to an apprenticeship between an employer
and an apprentice if the employer is a parent or guardian of the
apprentice.
(4) In this section:
adult award means an industrial award or agreement under which a
rate of remuneration is set for apprentices who are adults (that is,
persons who are not juniors).
junior award means an industrial award or agreement under which a
rate of remuneration is set for apprentices who are juniors.
Division 5 General
28 Register of apprenticeships and traineeships
(1) The Commissioner is to establish and maintain a register of
apprenticeships and traineeships.
(2) The register must contain such of the following information as is
relevant to each apprenticeship or traineeship established under this
Act:
(a) the names and addresses of the employer and the apprentice or
trainee,
(b) the date on which the apprenticeship or traineeship was
approved,
(c) the recognised trade vocation or recognised traineeship
vocation for which the apprenticeship or traineeship is
established,
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Apprenticeship and Traineeship Bill 2001 Clause 28
Apprenticeships and traineeships Part 2
General Division 5
(d) the appropriate qualification or qualifications that may be
awarded to the apprentice or trainee in relation to the
apprenticeship or traineeship,
(e) the term of the apprenticeship or traineeship,
(f) the industrial award or agreement identified in the application
for the establishment of the apprenticeship or traineeship as the
industrial award or agreement that applies to the apprenticeship
or traineeship,
(g) the date of commencement of the apprenticeship or traineeship,
(h) the serial number of the training contract approved in relation
to the apprenticeship or traineeship,
(i) the name of the registered training organisation associated with
the apprenticeship or traineeship,
(j) each date on which the apprenticeship or traineeship has been
transferred, suspended, cancelled or varied,
(k) the date on which the apprenticeship or traineeship was
completed,
(l) whether the trainee under a traineeship is an existing worker
trainee.
(3) The regulations may make provision for or with respect to the manner
and form in which the register is to be kept.
29 Advertising of group training organisations
A person must not advertise or otherwise represent that a person or
body:
(a) is a registered group training organisation, or
(b) is registered, endorsed or otherwise approved by the
Government (however expressed) to offer training or other
services under host employment arrangements,
unless the person or body concerned is a registered group training
organisation.
Maximum penalty: 10 penalty units.
Page 19
Clause 30 Apprenticeship and Traineeship Bill 2001
Part 2 Apprenticeships and traineeships
Division 5 General
30 Registration of group training organisations
(1) Any person or body may apply to the Commissioner to be registered
as a group training organisation.
(2) The Commissioner may register the applicant as a group training
organisation if satisfied, in accordance with any relevant vocational
training guidelines, that the organisation meets minimum operational
standards.
(3) The Commissioner may suspend or cancel the registration of a person
or body as a group training organisation if satisfied that the person or
body no longer meets minimum operational standards.
Note. Registration of a person or body as a group training organisation may render
the person or body eligible for certain payments available under Commonwealth
or State incentive schemes.
31 Preservation of conditions of employment of existing worker trainees
(1) The conditions of employment of a person who becomes registered as
an existing worker trainee (including conditions with respect to
superannuation, accrual of leave and other entitlements) are unaffected
by the establishment of the traineeship.
(2) Such a person:
(a) is entitled to remain employed under those conditions (together
with such variations of those conditions as are authorised by
law) as if the traineeship had not been established, and
(b) has the same rights under any Act or law in relation to those
conditions as those to which he or she would have been entitled
had the traineeship not been established.
(3) In particular:
(a) the fact that a person is registered as an existing worker trainee
does not invoke the provisions of any industrial award or
agreement to the extent to which those provisions would
diminish the conditions (including conditions with respect to
superannuation, accrual of leave and other entitlements) to
which the person is entitled, and
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Apprenticeship and Traineeship Bill 2001 Clause 31
Apprenticeships and traineeships Part 2
General Division 5
(b) the fact that a person who is registered as an existing worker
trainee completes a traineeship does not authorise the employer
to terminate the person's employment with the employer.
Note. Registration of an employee as an existing worker trainee may render the
employer eligible for certain payments available under Commonwealth incentive
schemes.
32 Training contracts presumed to benefit minors
In the application of the Minors (Property and Contracts) Act 1970 to
a training contract into which a minor has entered as an apprentice or
trainee, the participation by the minor in the contract is, in the absence
of evidence to the contrary, taken to be for the benefit of the minor.
33 Apprentices and trainees not to be required to make payments or give
bonds
(1) Except with the consent of the Commissioner, a person must not,
whether directly or indirectly:
(a) require or permit a prospective apprentice or trainee to make
any payment, or
(b) demand or receive any payment from a prospective apprentice
or trainee, or
(c) require a prospective apprentice or trainee to enter into any
bond or guarantee,
for or with respect to the establishment of an apprenticeship or
traineeship.
Maximum penalty: 20 penalty units.
(2) This section does not apply to any fee charged by a registered training
organisation for the training it provides in connection with an
apprenticeship or traineeship.
34 Effect of change in vocational training order
(1) The making of a vocational training order that amends or replaces an
earlier vocational training order does not affect any apprenticeship or
traineeship begun in accordance with the earlier order (an existing
apprenticeship or traineeship), and an existing apprenticeship or
traineeship may be continued and completed in accordance with the
earlier order as if the later order had not been made.
Page 21
Clause 34 Apprenticeship and Traineeship Bill 2001
Part 2 Apprenticeships and traineeships
Division 5 General
(2) Subsection (1) does not apply to the extent to which the later order
expressly provides that it is to apply to an existing apprenticeship or
traineeship, in which case the existing apprenticeship or traineeship is
to be continued and completed:
(a) if the later order amends the earlier order, in accordance with
the earlier order as amended by the later order, or
(b) if the later order replaces the earlier order, in accordance with
the later order,
but to the extent only to which the later order so provides.
Page 22
Apprenticeship and Traineeship Bill 2001 Clause 35
Recognition of other trade qualifications Part 3
Part 3 Recognition of other trade qualifications
35 Recognition of Defence Force trade training
(1) In this section:
Defence Force means the Defence Force of the Commonwealth.
service adult trade training means training undertaken by a member
of the Defence Force under a scheme (not involving apprenticeship)
for the trade training of persons who are of or above the age of 17
years.
service apprenticeship means an apprenticeship served by a person as
a member of the Defence Force.
(2) The Tribunal may confer with representatives of the Defence Force, on
any matter concerning service apprenticeships or service adult trade
training, with a view to ensuring that a person who has completed a
service apprenticeship or a period of service adult trade training in a
recognised trade vocation will be accorded recognition in that
vocation.
(3) The Tribunal may determine that the course of training provided for a
class of service apprenticeship or service adult trade training in a
recognised trade vocation is such that a person:
(a) who satisfactorily completes the course, and
(b) who complies with such further conditions as to experience or
otherwise as the Tribunal may determine,
is adequately trained to pursue that vocation.
(4) A determination under this section must be set out in an instrument
signed by the Commissioner, and a copy of the instrument must be
sent by the Commissioner to the relevant Defence Force authority.
(5) The Commissioner must issue a certificate of proficiency or a craft
certificate, whichever is appropriate, to a person who satisfies the
Commissioner that the person:
(a) has satisfactorily completed the course of training to which
such a determination relates, and
(b) has complied with any other conditions prescribed by the
determination.
Page 23
Clause 36 Apprenticeship and Traineeship Bill 2001
Part 3 Recognition of other trade qualifications
36 Recognition of other qualifications
(1) The Tribunal may, on the application of any person or on its own
motion, determine that a person:
(a) who has specified qualifications in a recognised trade vocation
(being qualifications obtained elsewhere than in New South
Wales), and
(b) who complies with such further conditions as to experience or
otherwise as the Tribunal may determine,
is adequately trained to pursue that vocation.
(2) A determination under this section must be set out in an instrument
signed by the Commissioner.
(3) The Commissioner must issue a certificate of proficiency or a craft
certificate, whichever is appropriate, to a person who satisfies the
Commissioner that the person:
(a) has the qualifications to which such a determination relates, and
(b) has complied with any other conditions prescribed by the
determination.
37 Recognition of other trade training
(1) A person may apply to the Tribunal for recognition of the person's
qualifications or experience in a particular recognised trade vocation.
(2) If the Tribunal is satisfied that the applicant has acquired the
competencies of the recognised trade vocation, it may determine that
the applicant is adequately trained to pursue that vocation.
(3) In making such a determination, the Tribunal must have regard to:
(a) the length of time for which the applicant has been working in
the recognised trade vocation, and
(b) the nature and duration of any instruction or training received
by the applicant in the recognised trade vocation, and
(c) the nature of any qualifications held by the applicant in relation
to the recognised trade vocation, and
(d) such other matters (including the applicant's performance in
any examination or test set by the Tribunal) as it considers
relevant.
Page 24
Apprenticeship and Traineeship Bill 2001 Clause 37
Recognition of other trade qualifications Part 3
(4) A determination under this section must be set out in an instrument
signed by the Commissioner.
(5) The Commissioner must issue a certificate of proficiency or a craft
certificate, whichever is appropriate, to the person to whom the
determination relates.
38 Register of determinations
(1) The Commissioner is to establish and maintain a register of
determinations under this Part.
(2) The regulations may make provision for or with respect to the manner
and form in which the register is to be kept.
Page 25
Clause 39 Apprenticeship and Traineeship Bill 2001
Part 4 Proceedings with respect to disputes and disciplinary matters
Division 1 Complaints
Part 4 Proceedings with respect to disputes and
disciplinary matters
Division 1 Complaints
39 Complaints to be made to Commissioner
(1) A complaint that a party to an apprenticeship or traineeship has failed
to discharge his or her obligations under the apprenticeship or
traineeship may be made:
(a) by the other party to the apprenticeship or traineeship, or
(b) by an industry training officer who is a public servant.
(2) A complaint that a party to an apprenticeship or traineeship has failed
to comply with the requirements of this Act (whether or not that failure
constitutes an offence) may be made by an industry training officer.
(3) A complaint that a party to an apprenticeship or traineeship has refused
to consent to the transfer, suspension, cancellation or variation of an
apprenticeship or traineeship, may be made by the other party to the
apprenticeship or traineeship.
(4) A complaint must be lodged at, or sent by post to, the offices of the
Commissioner.
40 Complaints that cannot be settled to be referred to Tribunal
(1) In the case of a complaint made by one of the parties to an
apprenticeship or traineeship, the Commissioner must attempt to bring
the parties to a settlement acceptable to each of them.
(2) If such a settlement is not achievable, the Commissioner must refer the
complaint to the Tribunal.
(3) A complaint made by an industry training officer is to be referred
directly to the Tribunal.
41 Suspension of apprenticeships and traineeships pending hearing
(1) If the Commissioner is satisfied that the gravity of a complaint justifies
such action, the Commissioner may suspend the relevant
apprenticeship or traineeship pending the hearing of the complaint.
Page 26
Apprenticeship and Traineeship Bill 2001 Clause 41
Proceedings with respect to disputes and disciplinary matters Part 4
Complaints Division 1
(2) The suspension of an apprenticeship or traineeship under this section
has effect until the complaint is withdrawn or determined.
42 Tribunal to fix time and place for hearing complaints
The Tribunal must fix a time and place for the hearing of a complaint
and must give notice of the time and place so fixed to the complainant
and to each of the parties to the relevant apprenticeship or traineeship.
Division 2 Hearings
43 Parties
The parties to the hearing of a complaint are the complainant and each
of the parties to the relevant apprenticeship or traineeship.
44 Procedure generally
(1) The Tribunal is not bound by the rules of law governing the admission
of evidence but may inform itself on any matter in such manner as it
thinks fit.
(2) A hearing must be conducted with as little formality and legal
technicality as the circumstances of the case permit.
(3) A hearing must be conducted in the absence of the public.
(4) The Tribunal may from time to time adjourn a hearing to such time,
date and place, and for such reasons, as it considers fit.
45 Legal representation
(1) A party to a complaint is not entitled to be represented by a legal
practitioner except with the consent of the Tribunal and of each of the
other parties to the hearing.
(2) This section:
(a) does not prevent a party from being represented by an industrial
organisation, and
(b) does not prevent the Crown, or a party that is a corporation or
an industrial organisation, from appearing by a legal
practitioner.
Page 27
Clause 45 Apprenticeship and Traineeship Bill 2001
Part 4 Proceedings with respect to disputes and disciplinary matters
Division 2 Hearings
(3) At any hearing at which the Crown, or a party that is a corporation or
an industrial organisation, appears by a legal practitioner, each of the
other parties to the hearing is entitled to be represented at the hearing
by a legal practitioner.
(4) In this section industrial organisation has the same meaning as it has
in the Industrial Relations Act 1996.
46 Attendance of witnesses and production of documents
(1) The presiding member of the Tribunal:
(a) may require a person:
(i) to attend a hearing for the purpose of giving evidence,
or
(ii) to produce to the Tribunal any document that is relevant
to a hearing,
at a time, date and place specified in a notice served on the
person, and
(b) may require a person who attends a hearing to be sworn for the
purpose of giving evidence on oath, and
(c) may administer an oath to a person who attends a hearing for
the purpose of giving evidence.
(2) The Tribunal may retain possession of a document produced to it
under this section for such period as it considers necessary for the
purpose of completing the hearing.
(3) A person (other than a public servant) who is required to attend or to
give evidence at a hearing is entitled to be paid such allowances and
expenses as may be prescribed by the regulations.
(4) A person must not fail to comply with a requirement to attend a
hearing, or to produce a document, to the extent to which the person
is lawfully able to comply with the requirement.
Maximum penalty (subsection (4)): 5 penalty units.
47 Witnesses to answer questions
(1) The presiding member of the Tribunal may require a person who
attends a hearing to answer any question that is reasonably related to
the hearing.
(2) A person may refuse to answer a question on the ground that the
answer might tend to incriminate the person.
Page 28
Apprenticeship and Traineeship Bill 2001 Clause 47
Proceedings with respect to disputes and disciplinary matters Part 4
Hearings Division 2
(3) A person:
(a) must not fail to comply with a requirement to answer a
question, to the extent to which the person is lawfully able to
comply with the requirement, and
(b) must not, in purported compliance with a requirement to
answer a question, make a statement that the person knows to
be false or misleading in a material particular.
Maximum penalty: 5 penalty units.
(4) Subsection (3) (b) does not apply to statements made on oath.
48 Misconduct
A person must not misconduct himself or herself at a hearing.
Maximum penalty: 5 penalty units.
49 Costs
Each party to a hearing is to bear his or her own costs of the hearing.
Division 3 Determinations
50 Conciliation
The Tribunal must not make a determination in relation to a complaint
made by a party to an apprenticeship or traineeship until it has
attempted to bring each of the parties to the apprenticeship or
traineeship to a settlement acceptable to all of them.
51 Determinations
(1) The Tribunal must determine a complaint made under section 39 (1)
or (2):
(a) by cautioning or reprimanding the person against whom the
complaint has been made, or
(b) by ordering the person against whom the complaint has been
made to make such redress (otherwise than by way of damages
for breach of contract) as the Tribunal considers appropriate, or
(c) by varying, suspending or cancelling the apprenticeship or
traineeship to which the complaint relates, or
Page 29
Clause 51 Apprenticeship and Traineeship Bill 2001
Part 4 Proceedings with respect to disputes and disciplinary matters
Division 3 Determinations
(d) by dismissing the complaint.
(2) A complaint must not be determined as referred to in subsection
(1) (a), (b) or (c) unless the Tribunal is satisfied that the person against
whom the complaint has been made:
(a) has failed to discharge his or her obligations under the
apprenticeship or traineeship to which the complaint relates, or
(b) has failed to comply with the requirements of this Act.
(3) The Tribunal must not suspend or cancel an apprenticeship or
traineeship under subsection (1) unless it is satisfied that:
(a) one of the parties is unlikely to discharge his or her obligations
under the apprenticeship or traineeship, and
(b) if that party is the employer:
(i) the other party is unwilling to allow another employer
to assume those obligations, or
(ii) no other employer can be found who is willing to
assume those obligations.
(4) The Tribunal must determine a complaint made under section 39 (3):
(a) by directing that the requirement for consent referred to in that
subsection be waived, or
(b) by dismissing the complaint.
(5) The Commissioner must give notice of the Tribunal's determination
to each of the parties to the hearing.
(6) On the making of a determination that varies, suspends or cancels an
apprenticeship or traineeship, the apprenticeship or traineeship is taken
to be varied, suspended or cancelled, as the case may be, in
accordance with the determination.
52 Orders for compensation
(1) If:
(a) the Tribunal dismisses a complaint made by an employer, and
(b) an apprenticeship or traineeship has been suspended by the
Commissioner pending the hearing of the complaint, and
(c) the employer has, under the terms of employment between the
employer and the apprentice or trainee:
Page 30
Apprenticeship and Traineeship Bill 2001 Clause 52
Proceedings with respect to disputes and disciplinary matters Part 4
Determinations Division 3
(i) failed to give to the apprentice or trainee the whole, or
any part, of any right or benefit (whether by way of
remuneration or otherwise) to which the apprentice or
trainee would, but for the suspension, be entitled, or
(ii) failed to contribute to any superannuation scheme the
whole, or any part, of any payment which the employer
would, but for the suspension, be required to contribute
in relation to the apprentice or trainee,
the Tribunal must direct the employer to pay to the apprentice or
trainee, and to contribute to any such scheme, specified amounts
equivalent to the value of any right or benefit that the employer has
failed to give or the amount of any payment that the employer has
failed to contribute.
(2) On the filing in the office or registry of a court having jurisdiction to
order payment of an amount so specified of:
(a) a copy of the direction, certified by the Commissioner to be a
true copy, and
(b) an affidavit by the apprentice or trainee specifying the amount
unpaid under the direction,
the direction is taken to be a judgment of that court for that amount.
53 Orders prohibiting employer from entering into apprenticeships and
traineeships
(1) If, in determining a complaint against an employer under section 39 (1)
or (2), the Tribunal is of the opinion that it is appropriate to do so in
the public interest, the Tribunal:
(a) may make an order declaring the employer to be a prohibited
employer, either indefinitely or for a specified period, and
(b) if it does so, may make a further order authorising the transfer
to other employers of all or specified apprenticeships and
traineeships to which the employer is party (including any
apprentice or trainee involved in the proceedings on the
complaint).
(2) An order under this section may not be made unless the Tribunal:
(a) has given notice to the employer of its intention to make such
an order, and
Page 31
Clause 53 Apprenticeship and Traineeship Bill 2001
Part 4 Proceedings with respect to disputes and disciplinary matters
Division 3 Determinations
(b) has given the employer at least 21 days within which to make
submissions to the Tribunal with respect to the proposed order,
and
(c) has taken any such submissions into consideration.
(3) For the purposes of section 20 (4) (b), consent to the transfer of an
apprentice or trainee to a new employer is not required from an
existing employer the subject of an order referred to in
subsection (1) (b).
Page 32
Apprenticeship and Traineeship Bill 2001 Clause 54
Appeals Part 5
Part 5 Appeals
54 Appeals to Appeal Panel
(1) An appeal to the Appeal Panel may be made, in accordance with the
regulations, from any of the following:
(a) any decision by the Tribunal or by the Commissioner
dismissing an application for establishment of an apprenticeship
or traineeship,
(b) any vocational training direction made by the Tribunal or by the
Commissioner,
(c) any decision by the Tribunal or by the Commissioner
dismissing an application for approval to the transfer of an
apprenticeship or traineeship,
(d) any decision by the Tribunal or by the Commissioner
dismissing an application for variation of an apprenticeship or
traineeship,
(e) any decision by the Tribunal or by the Commissioner under
which an apprenticeship or traineeship has been varied,
(f) any decision by the Commissioner to refuse to register a person
as an existing worker trainee,
(g) any decision by the Commissioner to refuse to register a person
or body as a group training organisation or to suspend or cancel
the registration of a person or body as a group training
organisation,
(h) any refusal by the Commissioner to issue a certificate of
proficiency, craft certificate or certificate of completion under
Part 2 or 3,
(i) any determination by the Tribunal under section 36 that denies
recognition of a person's qualifications or experience in a
particular recognised trade vocation,
(j) any decision by the Commissioner refusing to refer a complaint
under Part 4 for determination by the Tribunal,
(k) any determination by the Tribunal in respect of a complaint
under Part 4, including any order of the kind referred to in
section 53.
Page 33
Clause 54 Apprenticeship and Traineeship Bill 2001
Part 5 Appeals
(2) An appeal is to be dealt with by way of a new hearing, and fresh
evidence or fresh information may be given on the appeal.
(3) The provisions of Division 2 of Part 4 apply to proceedings before the
Appeal Panel in the same way as they apply to proceedings before the
Tribunal.
(4) The provisions of Division 3 of Part 4 apply to a determination by the
Appeal Panel in the same way as they apply to a determination by the
Tribunal.
(5) The decision of the Appeal Panel is to be given effect to as if it were
the decision of the person or body in respect of whose decision,
determination, action or failure to act the appeal has been made.
55 Appeals to Industrial Relations Commission
(1) An appeal from a decision of the Appeal Panel may be made to the
Industrial Relations Commission in Court Session (the Commission),
but only by leave of the Commission.
(2) An application for leave to appeal under this section must be made
within 6 months after the appellant is notified of the Appeal Panel's
determination or within such further period as the Commission allows.
(3) In dealing with the appeal, the Commission:
(a) may exercise any function that could have been exercised by
the Appeal Panel in making the determination the subject of the
appeal, and
(b) is not bound by the rules of evidence, but may inform itself in
any manner it thinks fit.
(4) The decision of the Commission is final and is to be given effect to as
if it were the decision of the person or body in respect of whose
decision, determination, action or failure to act the appeal has been
made.
Page 34
Apprenticeship and Traineeship Bill 2001 Clause 56
Administration Part 6
The Commissioner for Vocational Training Division 1
Part 6 Administration
Division 1 The Commissioner for Vocational Training
56 Appointment of Commissioner
A Commissioner for Vocational Training is to be appointed under
Part 2 of the Public Sector Management Act 1988.
57 Functions of Commissioner
The Commissioner has such functions as are conferred or imposed on
the Commissioner by or under this or any other Act.
58 Delegation by Commissioner
The Commissioner may delegate to any person, or to any person
belonging to a specified class of persons, any of the Commissioner's
functions, other than this power of delegation and other than the
Commissioner's functions as a member of the Tribunal.
Division 2 The Vocational Training Tribunal
59 Establishment of Tribunal
(1) There is to be a Vocational Training Tribunal of New South Wales.
(2) The Tribunal is to consist of at least 4 members appointed by the
Director-General, of whom:
(a) one is to be the Commissioner, and
(b) at least one is to be a person appointed to represent registered
training organisations, and
(c) at least one is to be a person appointed to represent employers,
and
(d) at least one is to be a person appointed to represent employees.
(3) The Commissioner is the Chairperson of the Tribunal.
(4) Schedule 1 has effect with respect to the members and procedure of
the Tribunal.
Page 35
Clause 60 Apprenticeship and Traineeship Bill 2001
Part 6 Administration
Division 2 The Vocational Training Tribunal
60 Sittings of Tribunal
(1) For the purpose of exercising its functions under Part 4, the Tribunal
is to be constituted by at least 4 of its members, of whom:
(a) one is to be the Commissioner, and
(b) at least one is to be a member appointed by the Commissioner
from among the persons referred to in section 59 (2) (b), and
(c) at least one is to be a member appointed by the Commissioner
from among the persons referred to in section 59 (2) (c), and
(d) at least one is to be a member appointed by the Commissioner
from among the persons referred to in section 59 (2) (d).
(2) Equal numbers of members are to be appointed from among the
persons referred to in section 59 (2) (b), (c) and (d).
(3) For the purpose of exercising its functions otherwise than under Part 4,
the Tribunal is to be constituted by at least 2 of its members, of whom
one is to be the Commissioner.
(4) At any sitting of the Tribunal, the Commissioner is to preside.
(5) The Commissioner may delegate the exercise of the Commissioner's
functions as a member of the Tribunal to any public servant employed
within the Department, and for that purpose any such delegate is taken
to be a member of the Tribunal and is to preside at any sitting of the
Tribunal in place of the Commissioner.
(6) More than one sitting of the Tribunal may be held at any one time.
61 Functions of Tribunal
The Tribunal has such functions as are conferred or imposed on it by
or under this or any other Act.
Division 3 The Vocational Training Appeal Panel
62 Constitution of Appeal Panel
(1) There is to be a Vocational Training Appeal Panel.
(2) The Appeal Panel is to consist of at least 4 persons appointed by the
Director-General, of whom:
(a) at least one is to be a public servant employed within the
Department,
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Apprenticeship and Traineeship Bill 2001 Clause 62
Administration Part 6
The Vocational Training Appeal Panel Division 3
(b) at least one is to be a person appointed to represent registered
training organisations, and
(c) at least one is to be a person appointed to represent employers,
and
(d) at least one is to be a person appointed to represent employees.
(3) Nothing in this Act prevents a person from being both a member of the
Tribunal and a member of the Appeal Panel.
(4) Schedule 2 has effect with respect to the members of the Appeal
Panel.
63 Sittings of Appeal Panel
(1) For the purpose of exercising its functions, the Appeal Panel is to be
constituted by 4 of its members, one from each of the categories
referred to in section 62 (2) (a), (b), (c) and (d).
(2) One of the members appointed as referred to in section 62 (2) (a) is to
be the presiding member of the Appeal Panel for the purposes of the
appeal in respect of which the Appeal Panel is constituted.
(3) When constituted for the purpose of hearing and determining an
appeal from a decision or determination by the Tribunal, the Appeal
Panel must not be constituted so as to include any of the persons by
whom the Tribunal was constituted in relation to that decision or
determination.
(4) More than one sitting of the Appeal Panel may be held at any one time.
64 Functions of Appeal Panel
The Appeal Panel has such functions as are conferred or imposed on
it by or under this or any other Act.
Division 4 Industry training officers
65 Appointment of industry training officers
(1) The Commissioner may appoint such persons (whether public servants
or otherwise) as the Commissioner thinks fit to be industry training
officers.
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Clause 65 Apprenticeship and Traineeship Bill 2001
Part 6 Administration
Division 4 Industry training officers
(2) An industry training officer (other than a public servant) is entitled to
such remuneration as the Commissioner may, with the approval of the
Minister, determine in respect of the officer.
66 Functions of industry training officers
The functions of an industry training officer are:
(a) to monitor the required training provided to apprentices and
trainees, including the training provided by host employers
under host employment arrangements and the supervision of
training by employers who make use of host employment
arrangements, and
(b) to report to the Commissioner on the adequacy of such training,
either generally or in a particular case, and
(c) to advise and assist employers in relation to the provision of
training to apprentices and trainees, and
(d) to advise and assist apprentices and trainees in relation to the
training being provided to them, and
(e) to exercise such other functions as are conferred or imposed on
industry training officers by or under this Act.
67 Powers of entry to premises
(1) An industry training officer may exercise any one or more of the
following powers for the purpose of exercising the functions of such
an officer under this Act:
(a) the officer may enter any premises or place in or on which a
recognised trade vocation or recognised traineeship vocation is
conducted,
(b) the officer may examine:
(i) any plant, equipment, material or substance used in
relation to any such vocation, and
(ii) any document relating to any such vocation,
found in or on the premises or place,
(c) the officer may take copies of, or extracts or notes from, any
document relating to any such vocation found in or on the
premises or place,
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Apprenticeship and Traineeship Bill 2001 Clause 67
Administration Part 6
Industry training officers Division 4
(d) the officer may require any person found in or on the premises
or place to produce:
(i) any plant, equipment, material or substance used in
relation to any such vocation, or
(ii) any document relating to any such vocation,
that is in the possession or under the control of that person.
(2) A person must not fail to comply with a requirement made by an
industry training officer under subsection (1) (d).
Maximum penalty: 20 penalty units.
(3) An industry training officer may exercise any power conferred by this
section at any reasonable time during normal business hours.
(4) This section does not authorise the exercise of any power conferred by
this section in or on any residential premises or in relation to any
person found in or on any residential premises.
(5) In exercising in or on any premises or place any power conferred by
this section, an industry training officer:
(a) must, if required to do so by a person apparently occupying the
premises or place, produce to that person the officer's
certificate of identification, and
(b) must, as far as practicable, avoid doing anything which is likely
to impede the lawful conduct of any vocation being carried out
in or on the premises or place.
(6) For the purposes of this section, an industry training officer is to be
issued with a certificate of identification that is in or to the effect of the
form prescribed by the regulations.
(7) An industry training officer who is not a public servant does not have,
and may not exercise, the powers conferred by this section.
68 Search warrants
(1) An industry training officer may apply to an authorised justice for a
search warrant if the officer has reasonable grounds for believing that
a provision of this Act or the regulations is being or has been
contravened in or on any premises or place.
(2) An authorised justice to whom such an application is made may, if
satisfied that there are reasonable grounds for doing so, issue a search
warrant authorising an industry training officer named in the warrant:
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Clause 68 Apprenticeship and Traineeship Bill 2001
Part 6 Administration
Division 4 Industry training officers
(a) to enter the premises or place, and
(b) to search the premises or place for evidence of a contravention
of this Act or the regulations.
(3) Part 3 of the Search Warrants Act 1985 applies to a search warrant
issued under this section.
(4) Without limiting the generality of section 18 of the Search Warrants
Act 1985, a police officer:
(a) may accompany an industry training officer executing a search
warrant issued under this section, and
(b) may take all reasonable steps to assist an industry training
officer in the exercise of the officer's functions under this
section.
(5) An industry training officer who is not a public servant does not have,
and may not exercise, the powers conferred by this section.
(6) In this section, authorised justice has the same meaning as in the
Search Warrants Act 1985.
69 Obstruction of industry training officers
A person must not assault, delay, obstruct, hinder or impede an
industry training officer in the exercise of the officer's functions under
this Act.
Maximum penalty: 20 penalty units.
Page 40
Apprenticeship and Traineeship Bill 2001 Clause 70
Miscellaneous Part 7
Part 7 Miscellaneous
70 False or misleading information
A person must not, in or in relation to any application under this Act,
make any statement or furnish any information that the person knows
to be false or misleading in a material particular.
Maximum penalty: 20 penalty units.
71 Disclosure of business information
(1) A person must not disclose any business information obtained in
connection with the administration or execution of this Act unless that
disclosure is made:
(a) with the consent of the person from whom the information was
obtained, or
(b) in connection with the administration or execution of this Act,
or
(c) for the purposes of any legal proceedings arising out of this Act
or of any report of any such proceedings, or
(d) in accordance with a requirement imposed under the
Ombudsman Act 1974, or
(e) with other lawful excuse.
Maximum penalty: 20 penalty units.
(2) In this section business information means:
(a) trade secrets, or
(b) information (other than trade secrets) that is of commercial
value, or
(c) information concerning the business or financial affairs of the
person from whom the information is obtained.
72 Contraventions of Act that give rise to offences
A contravention of this Act does not give rise to an offence except to
the extent to which this Act expressly states or necessarily implies.
Page 41
Clause 73 Apprenticeship and Traineeship Bill 2001
Part 7 Miscellaneous
73 Proceedings for offences
(1) Proceedings for an offence against this Act or the regulations are to be
dealt with summarily before a Local Court constituted by a Magistrate
sitting alone.
(2) Proceedings for an offence against this Act or the regulations are not
to be instituted otherwise than by:
(a) the Minister or the Commissioner, or
(b) a person duly authorised by the Minister or the Commissioner
in that behalf, either generally or in a particular case.
Note. Section 382 of the Industrial Relations Act 1996 provides that the
jurisdiction of a Local Court under this section is exercisable by an Industrial
Magistrate.
74 Applications and notices
(1) An application under this Act or the regulations to the Commissioner,
the Tribunal or the Appeal Panel:
(a) must be in such form as may be approved for the time being by
the Commissioner, and
(b) must be lodged at, or sent by post to, the offices of the
Commissioner.
(2) A notice that the Commissioner is required or permitted to give to a
person may be served personally or by means of a letter addressed to
the person at the person's address last known to the Commissioner.
75 Fees
The matters for which fees are payable under this Act, the amount of
any such fees and the circumstances in which any such fees may be
waived, postponed or remitted are to be prescribed by the regulations.
76 Evidentiary certificates
A certificate that is signed by the Commissioner and that certifies that
on a specified date or during a specified period:
(a) a specified person was or was not an industry training officer,
or
(b) the provisions of a specified vocational training direction were
or were not in specified terms, or
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Apprenticeship and Traineeship Bill 2001 Clause 76
Miscellaneous Part 7
(c) a specified person was or was not a party to an apprenticeship
or traineeship, or
(d) the provisions of a specified training contract were or were not
in specified terms, or
(e) a specified person was or was not registered as an existing
worker trainee, or
(f) a specified person or body was or was not a registered group
training organisation, or
(g) a specified person or body was or was not a prohibited
employer,
is admissible in any proceedings and is evidence of the fact or facts so
certified.
77 Liability
A matter or thing done or omitted to be done by:
(a) the Commissioner, or
(b) the Tribunal or any member of the Tribunal, or
(c) the Appeal Panel or any member of the Appeal Panel, or
(d) an industry training officer, or
(e) any person acting under the direction of the Commissioner, the
Tribunal or the Appeal Panel,
does not subject the Commissioner, any member of the Tribunal or
Appeal Panel, any industry training officer or any person so acting,
personally, to any action, liability, claim or demand if the matter or
thing was done in good faith for the purposes of executing this Act.
78 Delegation by Director-General
The Director-General may delegate to any public servant employed
within the Department the exercise of any of the Director-General's
functions under this Act, other than this power of delegation.
79 Act binds Crown
This Act binds the Crown in right of New South Wales and, in so far
as the legislative power of Parliament permits, the Crown in all its
other capacities.
Page 43
Clause 80 Apprenticeship and Traineeship Bill 2001
Part 7 Miscellaneous
80 Relationship with Industrial Relations Act 1996
In the event of an inconsistency between:
(a) the provisions of this Act, or of any regulation, vocational
training order or vocational training direction made under this
Act, and
(b) the provisions of the Industrial Relations Act 1996 or of any
regulation, order, award or agreement under that Act (other than
a provision with respect to existing worker trainees),
the provisions referred to in paragraph (a) prevail to the extent of the
inconsistency.
81 Regulations
(1) The Governor may make regulations, not inconsistent with this Act, for
or with respect to any matter that by this Act is required or permitted
to be prescribed or that is necessary or convenient to be prescribed for
carrying out or giving effect to this Act and, in particular, for or with
respect to:
(a) the lodgment, variation and withdrawal of applications, and
(b) the proportion of apprentices to skilled tradespersons who may
be employed by employers in specified trades or vocations, and
(c) the training to be provided for and undertaken by apprentices
and trainees, and
(d) the supervision of apprentices and trainees by their employers,
and
(e) the facilities to be provided for apprentices and trainees for the
purpose of their being trained by their employers, and
(f) the keeping of progress cards and records, and
(g) the forms to be used for the purposes of this Act, and
(h) the use of electronic communication, electronic data storage
and electronic signatures for the purpose of making
applications, sending notices and keeping records for the
purposes of this Act, and
(i) any other matter relating to the training of apprentices and
trainees by their employers.
(2) A regulation may create an offence punishable by a penalty not
exceeding 10 penalty units.
Page 44
Apprenticeship and Traineeship Bill 2001 Clause 82
Miscellaneous Part 7
82 Repeals
The Industrial and Commercial Training Act 1989 is repealed.
83 Amendments
Each Act referred to in Schedule 3 is amended as set out in that
Schedule.
84 Savings, transitional and other provisions
Schedule 4 has effect.
85 Review of Act
(1) The Minister is to review this Act to determine whether the policy
objectives of the Act remain valid and whether the terms of the Act
remain appropriate for securing those objectives.
(2) The review is to be undertaken as soon as practicable after the period
of 5 years from the date of assent to this Act.
(3) A report on the outcome of the review is to be tabled in each House of
Parliament within 12 months after the end of the period of 5 years.
Page 45
Apprenticeship and Traineeship Bill 2001
Schedule 1 The Vocational Training Tribunal
Schedule 1 The Vocational Training Tribunal
(Section 59)
Part 1 Constitution of Tribunal
1 Definition
In this Schedule:
appointed member means a member of the Tribunal referred to in
section 59 (2) (b), (c) or (d).
2 Nomination of appointed members
An appointed member:
(a) in the case of a member appointed to represent registered
training organisations:
(i) is to be nominated for appointment in the manner
prescribed by the regulations by such registered training
organisations, or by such associations of registered
training organisations, as may be so prescribed, or
(ii) if no such nomination is made within a reasonable time
after the Director-General requests such a nomination to
be made, is to be appointed by the Director-General
without the necessity for nomination, and
(b) in the case of a member appointed to represent employers:
(i) is to be nominated for appointment in the manner
prescribed by the regulations by such employers, or by
such industrial organisations of employers, as may be so
prescribed, or
(ii) if no such nomination is made within a reasonable time
after the Director-General requests such a nomination to
be made, is to be appointed by the Director-General
without the necessity for nomination, and
(c) in the case of a member appointed to represent employees:
(i) is to be nominated in the manner prescribed by the
regulations by such industrial organisations of
employees as may be so prescribed, or
Page 46
Apprenticeship and Traineeship Bill 2001
The Vocational Training Tribunal Schedule 1
(ii) if no such nomination is made within a reasonable time
after the Director-General requests such a nomination to
be made, is to be appointed by the Director-General
without the necessity for nomination.
3 Term of office
Subject to this Schedule, an appointed member holds office for such
period, not exceeding 5 years, as may be specified in the member's
instrument of appointment, but is eligible (if otherwise qualified) for
re-appointment.
4 Remuneration
An appointed member is entitled to be paid such remuneration
(including travelling and subsistence allowances) as the Minister may
from time to time determine in respect of the member.
5 Vacancy in office of appointed member
(1) An appointed member ceases to hold office if the member:
(a) dies, or
(b) completes a term of office and is not re-appointed, or
(c) resigns the office by instrument in writing addressed to the
Director-General, or
(d) is removed from office by the Director-General, or
(e) becomes a mentally incapacitated person, or
(f) becomes bankrupt, applies to take the benefit of any law for the
relief of bankrupt or insolvent debtors, compounds with his or
her creditors or makes an assignment of his or her remuneration
for their benefit, or
(g) is convicted in New South Wales of an offence that is
punishable by imprisonment for 12 months or more or is
convicted elsewhere than in New South Wales of an offence
that, if committed in New South Wales, would be an offence so
punishable.
(2) An appointed member also ceases to hold office if the person or body
by whom the member was nominated for appointment withdraws the
nomination in the manner prescribed by the regulations.
Page 47
Apprenticeship and Traineeship Bill 2001
Schedule 1 The Vocational Training Tribunal
(3) The Director-General may remove an appointed member from office
at any time.
6 Filling of vacancies
If the office of an appointed member becomes vacant, a person is,
subject to this Act, to be appointed to fill the vacancy.
Part 2 Procedure of the Tribunal
7 Convening meetings
A meeting of the Tribunal is to be convened by the Commissioner:
(a) whenever he or she thinks fit, or
(b) within 5 days of receipt of a written request signed by any 2
other members of the Tribunal.
8 Rules for conduct of business
The procedure for the conduct of business at a meeting of the Tribunal
is, subject to this Act and the regulations, to be as determined by the
Tribunal.
9 Procedure and decisions of Tribunal
(1) The Chairperson of the Tribunal is to preside at a meeting of the
Tribunal.
(2) The Chairperson of the Tribunal has a deliberative vote at any meeting
of the Tribunal and, in the event of an equality of votes, has a second
or casting vote.
10 Chairperson may act as Tribunal when other members are absent
(1) If, with respect to a matter arising at a meeting of the Tribunal, there
are no votes of the other members of the Tribunal, the Chairperson of
the Tribunal may decide the matter, in which case the matter is taken
to have been decided by the Tribunal at the meeting.
(2) If:
(a) the Chairperson of the Tribunal is present at a duly convened
meeting of the Tribunal or at a time and place to which any
such meeting has been adjourned, and
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Apprenticeship and Traineeship Bill 2001
The Vocational Training Tribunal Schedule 1
(b) all of the other members of the Tribunal are absent from the
meeting or from the place at that time,
any matter that the Tribunal is competent to deal with may be dealt
with by the Chairperson, in which case the matter is taken to have been
dealt with by the Tribunal at a meeting.
11 Clauses 710 not to apply to proceedings under Part 4
Clauses 710 do not apply to the procedure of the Tribunal in the
exercise of its functions under Part 4.
Page 49
Apprenticeship and Traineeship Bill 2001
Schedule 2 The Vocational Training Appeal Panel
Schedule 2 The Vocational Training Appeal Panel
(Section 62)
1 Definition
In this Schedule:
appointed member means a member of the Appeal Panel referred to
in section 62 (2) (b), (c) or (d).
2 Nomination of appointed members
An appointed member:
(a) in the case of a member appointed to represent registered
training organisations:
(i) is to be nominated for appointment in the manner
prescribed by the regulations by such registered training
organisations, or by such associations of registered
training organisations, as may be so prescribed, or
(ii) if no such nomination is made within a reasonable time
after the Director-General requests such a nomination to
be made, is to be appointed by the Director-General
without the necessity for nomination, and
(b) in the case of a member appointed to represent employers:
(i) is to be nominated for appointment in the manner
prescribed by the regulations by such employers, or by
such industrial organisations of employers, as may be so
prescribed, or
(ii) if no such nomination is made within a reasonable time
after the Director-General requests such a nomination to
be made, is to be appointed by the Director-General
without the necessity for nomination, and
(c) in the case of a member appointed to represent employees:
(i) is to be nominated in the manner prescribed by the
regulations by such industrial organisations of
employees as may be so prescribed, or
(ii) if no such nomination is made within a reasonable time
after the Director-General requests such a nomination to
be made, is to be appointed by the Director-General
without the necessity for nomination.
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Apprenticeship and Traineeship Bill 2001
The Vocational Training Appeal Panel Schedule 2
3 Term of office
Subject to this Schedule, an appointed member holds office for such
period, not exceeding 5 years, as may be specified in the member's
instrument of appointment, but is eligible (if otherwise qualified) for
re-appointment.
4 Remuneration
An appointed member is entitled to be paid such remuneration
(including travelling and subsistence allowances) as the Minister may
from time to time determine in respect of the member.
5 Vacancy in office of member
(1) The office of an appointed member becomes vacant if the member:
(a) dies, or
(b) completes a term of office and is not re-appointed, or
(c) resigns the office by instrument in writing addressed to the
Director-General, or
(d) is removed from office by the Director-General, or
(e) becomes a mentally incapacitated person, or
(f) becomes bankrupt, applies to take the benefit of any law for the
relief of bankrupt or insolvent debtors, compounds with his or
her creditors or makes an assignment of his or her remuneration
for their benefit, or
(g) is convicted in New South Wales of an offence that is
punishable by imprisonment for 12 months or more or is
convicted elsewhere than in New South Wales of an offence
that, if committed in New South Wales, would be an offence so
punishable.
(2) An appointed member also ceases to hold office if the person or body
by whom the member was nominated for appointment withdraws the
nomination in the manner prescribed by the regulations.
(3) The Director-General may remove an appointed member from office
at any time.
6 Filling of vacancy in office of member
If the office of an appointed member becomes vacant, a person is,
subject to this Act, to be appointed to fill the vacancy.
Page 51
Apprenticeship and Traineeship Bill 2001
Schedule 3 Amendment of other Acts
Schedule 3 Amendment of other Acts
(Section 83)
3.1 Casino Control Act 1992 No 15
Section 101 Apprentices and trainees permitted entry to casino
Omit "Industrial and Commercial Training Act 1989".
Insert instead "Apprenticeship and Traineeship Act 2001".
3.2 Dentists Act 1989 No 139
Section 57 Practice of dentistry by unregistered person
Omit "Industrial and Commercial Training Act 1989".
Insert instead "Apprenticeship and Traineeship Act 2001".
3.3 Industrial Relations Act 1996 No 17
[1] Section 6 Definition of industrial matters
Omit the Note to the section. Insert instead:
Note. The Apprenticeship and Traineeship Act 2001 deals with
apprenticeships and traineeships. Section 80 of that Act provides that that
Act (and regulations, orders and directions under that Act) prevail over this
Act (and regulations, orders, awards and agreements under this Act) to
the extent of any inconsistency.
[2] Section 83 Application of Part
Omit "apprentice or trainee (within the meaning of the Industrial and
Commercial Training Act 1989)" from section 83 (3).
Insert instead "apprentice or trainee (other than an existing worker trainee)
within the meaning of the Apprenticeship and Traineeship Act 2001".
Page 52
Apprenticeship and Traineeship Bill 2001
Amendment of other Acts Schedule 3
[3] Section 126 Stand-down orders--suspension of payment of
remuneration
Omit "apprentice or trainee within the meaning of the Industrial and
Commercial Training Act 1989" from section 126 (5).
Insert instead "apprentice or trainee (other than an existing worker trainee)
within the meaning of the Apprenticeship and Traineeship Act 2001".
[4] Section 382 Jurisdiction of Chief and other Industrial Magistrates
Omit "Industrial and Commercial Training Act 1989" from section 382 (1).
Insert instead "Apprenticeship and Traineeship Act 2001".
3.4 Liquor Act 1982 No 147
[1] Section 116A Offences by minors in hotels, nightclubs and restaurants
Omit "Industrial and Commercial Training Act 1989" from section
116A (1A).
Insert instead "Apprenticeship and Traineeship Act 2001".
[2] Section 116B Offences by licensees in relation to minors
Omit "Industrial and Commercial Training Act 1989" from section
116B (4).
Insert instead "Apprenticeship and Traineeship Act 2001".
3.5 Pay-roll Tax Act 1971 No 22
Section 10A Exemptions from pay-roll tax of wages of apprentices
Omit "Industrial and Commercial Training Act 1989" wherever occurring
in section 10A (1) and (2).
Insert instead "Apprenticeship and Traineeship Act 2001".
Page 53
Apprenticeship and Traineeship Bill 2001
Schedule 3 Amendment of other Acts
3.6 Registered Clubs Act 1976 No 31
[1] Section 45 Unauthorised persons using defined premises of registered
club
Omit "Industrial and Commercial Training Act 1989" from section 45 (3).
Insert instead "Apprenticeship and Traineeship Act 2001".
[2] Section 50 Restrictions on sales etc of liquor by registered clubs
Omit "Industrial and Commercial Training Act 1989" from section 50 (4).
Insert instead "Apprenticeship and Traineeship Act 2001".
[3] Section 50A Minors not permitted in poker machine areas
Omit "Industrial and Commercial Training Act 1989" from section 50A (3).
Insert instead "Apprenticeship and Traineeship Act 2001".
[4] Section 51 Consumption of liquor or operation of poker machines by
persons under 18 years
Omit "Industrial and Commercial Training Act 1989" from section 51 (3).
Insert instead "Apprenticeship and Traineeship Act 2001".
[5] Section 52 Prohibition on persons under 18 years being in bars
Omit "Industrial and Commercial Training Act 1989" from section 52 (3).
Insert instead "Apprenticeship and Traineeship Act 2001".
3.7 Search Warrants Act 1985 No 37
Section 10 Definitions
Omit from the definition of search warrant:
section 90 of the Industrial and Commercial Training
Act 1989,
Insert instead, in alphabetical order of Acts:
section 68 of the Apprenticeship and Traineeship Act 2001,
Page 54
Apprenticeship and Traineeship Bill 2001
Amendment of other Acts Schedule 3
3.8 Shops and Industries Act 1962 No 43
[1] Section 104 Definitions
Omit the definitions of Apprentice and Trainee apprentice.
[2] Section 107 Exemption from application of Division
Omit "or a probationer for apprenticeship or trainee apprentice".
Insert instead "(within the meaning of the Apprenticeship and Traineeship
Act 2001)".
3.9 Vocational Education and Training Accreditation Act 1990 No 120
[1] Section 4 Definitions
Omit the definitions of declared calling and declared trade from section
4 (1).
Insert instead, in alphabetical order:
recognised trade vocation has the same meaning as it has in
the Apprenticeship and Traineeship Act 2001.
recognised traineeship vocation has the same meaning as it
has in the Apprenticeship and Traineeship Act 2001.
[2] Section 12 Accreditation
Omit "declared trade or declared calling" from section 12 (2A).
Insert instead "recognised trade vocation or recognised traineeship
vocation".
[3] Section 15 Accreditation
Omit "declared trade or declared calling" from section 15 (2A).
Insert instead "recognised trade vocation or recognised traineeship
vocation".
Page 55
Apprenticeship and Traineeship Bill 2001
Schedule 3 Amendment of other Acts
[4] Section 22P Universities taken to be registered providers in relation to
certain vocational courses
Omit "declared trades and declared callings".
Insert instead "recognised trade vocations and recognised traineeship
vocations".
3.10 Workers Compensation Act 1987 No 70
Section 158 Insurance for trainees
Omit the definition of trainee in section 158 (1). Insert instead:
trainee means a person who is a trainee (other than an existing
worker trainee) within the meaning of the Apprenticeship and
Traineeship Act 2001.
3.11 Workplace Injury Management and Workers Compensation
Act 1998 No 86
Section 150 Insurance for trainees
Omit the definition of trainee in section 150 (1). Insert instead:
trainee means a person who is a trainee (other than an existing
worker trainee) within the meaning of the Apprenticeship and
Traineeship Act 2001.
Page 56
Apprenticeship and Traineeship Bill 2001
Savings, transitional and other provisions Schedule 4
Schedule 4 Savings, transitional and other provisions
(Section 84)
Part 1 Preliminary
1 Regulations
(1) The regulations may contain provisions of a savings or transitional
nature consequent on the enactment of the following Acts:
this Act
(2) Such a provision may, if the regulations so provide, take effect on the
date of assent to the Act concerned or a later date.
(3) To the extent to which such a provision takes effect on a date that is
earlier than the date of its publication in the Gazette, the provision does
not operate so as:
(a) to affect, in a manner prejudicial to any person (other than the
State or an authority of the State), the rights of that person
existing before the date of that publication, or
(b) to impose liabilities on any person (other than the State or an
authority of the State) in respect of anything done or omitted to
be done before the date of that publication.
Part 2 Provisions consequent on enactment of
Apprenticeship and Traineeship Act 2001
2 Definition
In this Part:
the 1989 Act means the Industrial and Commercial Training Act 1989.
3 Delegations
A function that, immediately before the commencement of this clause,
was delegated by the Commissioner under section 15 of the 1989 Act
is taken to have been delegated under section 58 of this Act.
Page 57
Apprenticeship and Traineeship Bill 2001
Schedule 4 Savings, transitional and other provisions
4 Vocational Training Board
(1) The Vocational Training Tribunal established under this Act is a
continuation of the Vocational Training Board established under the
1989 Act.
(2) Each person who, immediately before the commencement of this
clause, was a member of the Vocational Training Board under the
1989 Act is taken to have been appointed as a member of the
Vocational Training Tribunal under this Act for the balance of his or
her term of office as a member of the Vocational Training Board under
the 1989 Act.
5 Training officers
A person who, immediately before the commencement of this clause,
was a training officer under the 1989 Act is taken to have been
appointed as an industry training officer under this Act.
6 Declared trades and callings
(1) A vocation that, immediately before the commencement of this clause,
was a declared trade under the 1989 Act is taken to be a recognised
trade vocation under this Act.
(2) A vocation that, immediately before the commencement of this clause,
was a declared calling under the 1989 Act is taken to be a recognised
traineeship vocation under this Act.
7 Vocational training orders
A vocational training order that, immediately before the
commencement of this clause, was in force under the 1989 Act is
taken to have been made under this Act.
8 Vocational training guidelines
A vocational training guideline that, immediately before the
commencement of this clause, was in force under the 1989 Act is
taken to have been issued under this Act.
9 Applications for establishment of apprenticeships and traineeships
An application for the establishment of an apprenticeship or
traineeship that had not been finally determined under the 1989 Act
before the commencement of this clause is to be dealt with under the
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Apprenticeship and Traineeship Bill 2001
Savings, transitional and other provisions Schedule 4
1989 Act as if this Act had not been enacted and, for that purpose, the
Vocational Training Tribunal may exercise the functions of the
Vocational Training Board under the 1989 Act.
10 Vocational training directions
A vocational training direction under the 1989 Act is taken to be a
vocational training direction under this Act.
11 Application of sections 12 and 19
(1) Section 12 (3) of this Act extends to any time during which an
employer has employed a person as an apprentice or trainee before the
commencement of that subsection.
(2) Section 19 of this Act extends to any time during which an apprentice
or trainee has attended a relevant registered training organisation, in
relation to his or her apprenticeship or traineeship, before the
commencement of that section.
12 Apprenticeships and traineeships
(1) A trainee apprenticeship under the 1989 Act (including a trainee
apprenticeship arising under clause 9) is taken to be a trainee
apprenticeship under this Act.
(2) An indentured apprenticeship under the 1989 Act (including an
indentured apprenticeship arising under clause 9) is taken to be a full
apprenticeship under this Act.
(3) A traineeship under the 1989 Act (including a traineeship arising
under clause 9) is taken to be a traineeship under this Act.
13 Transfers and variations
Any application for the assignment or variation of an apprenticeship
or traineeship that had not been finally determined under the 1989 Act
before the commencement of this clause is to be dealt with under the
1989 Act as if this Act had not been enacted and, for that purpose, the
Vocational Training Tribunal may exercise the functions of the
Vocational Training Board under the 1989 Act.
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Apprenticeship and Traineeship Bill 2001
Schedule 4 Savings, transitional and other provisions
14 Certificates
Any craft certificate, certificate of completion or certificate of
proficiency granted under the 1989 Act is taken to be the
corresponding craft certificate, certificate of completion or certificate
of proficiency under this Act.
15 Complaints
Any complaint that had not been finally determined under the 1989
Act before the commencement of this clause is to be dealt with under
the 1989 Act as if this Act had not been enacted and, for that purpose,
the Vocational Training Tribunal under this Act may exercise the
functions of the Vocational Training Board under the 1989 Act.
16 Determination of complaints
Any determination of the Vocational Training Board under Part 4 or
5 of the 1989 Act is taken to be a determination by the Vocational
Training Tribunal under Part 4 or 3, respectively, of this Act.
17 Appeal Panel
(1) The Appeal Panel established under this Act is a continuation of the
Appeal Panel established under the 1989 Act.
(2) Each person who, immediately before the commencement of this
clause, was a member of the Appeal Panel under the 1989 Act is taken
to have been appointed as a member of the Appeal Panel under this
Act for the balance of his or her term of office as a member of the
Appeal Panel under the 1989 Act.
18 Appeals
Any appeal that had not been finally determined under the 1989 Act
before the commencement of this clause is to be dealt with under the
1989 Act as if this Act had not been enacted and, for that purpose, the
Appeal Panel under this Act may exercise the functions of the Appeal
Panel under the 1989 Act.
19 Determination of appeals
Any determination of the Appeal Panel under Part 6 of the 1989 Act
is taken to be a determination by the Appeal Panel under Part 5 of this
Act.
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20 Certificates of identification
Any certificate of identification under section 89 of the 1989 Act is
taken to be a certificate of identification under section 67 of this Act.
21 Search warrants
Any search warrant under section 90 of the 1989 Act is taken to be a
search warrant under section 68 of this Act.
22 Evidentiary certificates
Any evidentiary certificate under section 96 of the 1989 Act is taken
to be an evidentiary certificate under section 76 of this Act.
23 Regulation
Any regulation in force under the 1989 Act immediately before the
commencement of this clause is taken to have been made under this
Act, and may be amended or repealed accordingly.
24 Construction of references
Subject to the regulations, in any Act or instrument:
(a) a reference to the 1989 Act extends to this Act, and
(b) a reference to a provision of the 1989 Act for which there is a
corresponding provision in this Act extends to the
corresponding provision of this Act, and
(c) a reference to any act, matter or thing referred to in a provision
of the 1989 Act for which there is a corresponding provision in
this Act extends to the corresponding act, matter or thing
referred to in the corresponding provision of this Act.
25 General saving
Subject to the regulations:
(a) anything begun before the commencement of this clause under
a provision of the 1989 Act for which there is a corresponding
provision in this Act may be continued and completed under
the 1989 Act as if this Act had not been enacted, and
(b) subject to paragraph (a), anything done under a provision of the
1989 Act for which there is a corresponding provision in this
Act (including anything arising under paragraph (a)) is taken to
have been done under the corresponding provision of this Act.
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Apprenticeship and Traineeship Bill 2001
Dictionary
Dictionary
(Section 3)
Appeal Panel means the Vocational Training Appeal Panel
constituted by section 62.
apprentice means an employee who is party to an apprenticeship
contract, and includes a person who is employed as an apprentice but
in respect of whom an apprenticeship contract is not yet in force.
apprenticeship means an apprenticeship established under Division 2
of Part 2.
apprenticeship contract means a training contract under which an
apprenticeship is established.
appropriate qualification, in relation to an apprenticeship or
traineeship, means a qualification that pursuant to a vocational training
order may be awarded by a registered training organisation for
successful completion of the required training for that apprenticeship
or traineeship.
certificate of identification means a certificate of identification issued
under section 67.
certificate of completion means a certificate of completion issued
under section 23 in relation to a recognised traineeship vocation.
certificate of proficiency means a certificate of proficiency issued
under section 23, 35, 36 or 37 in relation to a recognised trade
vocation or recognised traineeship vocation.
Commissioner means the Commissioner for Vocational Training
referred to in section 56.
craft certificate means a craft certificate issued under section 23, 35,
36 or 37 in relation to a recognised trade vocation.
Department means the Department of Education and Training.
Director-General means the Director-General of the Department.
employer, in relation to an apprentice or trainee, means:
(a) in the case of an apprentice or trainee who is party to an
apprenticeship or traineeship contract, the person who is, under
that contract, the employer of the apprentice or trainee, or
(b) in the case of an apprentice or trainee in respect of whom no
such contract is in force, the person by whom the apprentice or
trainee is for the time being actually employed.
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Dictionary
exercise a function includes perform a duty.
existing worker trainee means a trainee who is identified as an
existing worker trainee in the register of apprenticeships and
traineeships.
full apprenticeship means an apprenticeship under which the employer
undertakes to employ the apprentice for the whole of the term of the
apprenticeship.
function includes power, authority and duty.
host employer means a person or body with whom an apprentice or
trainee is placed for training under a host employment arrangement.
host employment arrangement means an arrangement under which
the employer of an apprentice or trainee places the apprentice or
trainee with a host employer for training, supervises the host employer
in its provision of training and monitors the progress of the apprentice
or trainee during training.
industrial award or agreement means:
(a) an industrial instrument within the meaning of the Industrial
Relations Act 1996, or
(b) an award or agreement made or entered into in accordance with
the provisions of the Workplace Relations Act 1996 of the
Commonwealth.
industry training officer means an industry training officer appointed
under section 65.
junior means a person who is under the age of 21 years.
probationary period, in relation to a person who is employed in a
recognised trade vocation or recognised traineeship vocation, means:
(a) the period specified in the vocational training order for that
vocation or, if that period is extended under section 18, that
period as so extended, or
(b) if an application for the establishment of an apprenticeship or
traineeship in that vocation:
(i) is made before the end of that period, or that period as
so extended, and
(ii) the Commissioner's or Tribunal's determination of the
application is not made until after the end of that period,
or that period as so extended,
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the period ending on the date on which the person's employer
is notified of the Commissioner's or Tribunal's determination
of the application,
being in either case the period beginning on the date on which the
person begins working for the employer as an apprentice or trainee in
that vocation.
prohibited employer means an employer with respect to whom an
order is in force under section 53 and:
(a) in the case of an employer that is a corporation, includes a
reference to any person who, when the corporation became
subject to the order, was a director of the corporation or was
concerned in the management of the corporation's business,
and
(b) in the case of an employer that is a partnership, includes a
reference to any person who, when the partnership became
subject to the order, was a partner in the partnership or was
concerned in the management of the partnership's business.
public servant means an officer or temporary employee within the
meaning of the Public Sector Management Act 1988.
qualified tradesperson, in relation to a recognised trade vocation,
means:
(a) a person who has a craft certificate or certificate of proficiency
for that vocation, or
(b) a person who has qualifications and experience that, pursuant
to a determination under section 35, 36 or 37, entitle the person
to a craft certificate or certificate of proficiency for that
vocation.
recognised trade vocation means a vocation that is designated as a
recognised trade vocation by an order in force under section 5.
recognised traineeship vocation means a vocation that is designated
as a recognised traineeship vocation by an order in force under
section 5.
register of apprenticeships and traineeships means the register
referred to in section 28.
registered group training organisation means a person or body that
is registered as a group training organisation as referred to in
section 30.
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registered training organisation has the same meaning as registered
provider in the Vocational Education and Training Accreditation
Act 1990.
required training, in relation to an apprentice or trainee who is
employed in a recognised trade vocation or recognised traineeship
vocation, means:
(a) the training that an apprentice or trainee is required by a
vocational training order to undertake in connection with that
vocation, or
(b) if a vocational training direction allows the apprentice or trainee
to undertake alternative training, that alternative training.
trainee means an employee who is party to a traineeship contract, and
includes a person who is employed as a trainee but in respect of whom
a traineeship contract is not yet in force.
trainee apprenticeship means an apprenticeship under which the
employer does not undertake to employ the apprentice for the whole
of the term of the apprenticeship.
traineeship means a traineeship established under Division 2 of Part 2.
traineeship contract means a training contract under which a
traineeship is established.
training contract means a contract entered into for the purpose of
establishing an apprenticeship or traineeship.
Tribunal means the Vocational Training Tribunal of New South
Wales constituted by section 59.
vocational training direction means a direction in force under
section 10.
vocational training guideline means a guideline in force under
section 4.
vocational training order means an order in force under section 6.
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