Training and Skills Development Act 2003 [Act]

TRAINING AND SKILLS DEVELOPMENT ACT 2003

being

Training and Skills Development Act 2003 No. 10 of 2003

[Assented to 12 June 2003]¹

¹Came into operation 1 July 2003: Gaz. 26 June 2003, p. 2813.

Contents

Part 1—Preliminary

1.Short title

2.Commencement

3.Objects

4.Interpretation

5.Declarations for purposes of Act

Part 2—Administration

Division 1—State Training Agency

6.Minister to be Agency

7.Functions of Minister as Agency

8.Delegation by Minister

Division 2—Training and Skills Commission

9.Establishment of Training and Skills Commission

10.Commission's functions

11.Ministerial control

12.Conditions of membership

13.Commission's proceedings

14.Validity of acts

15.Immunity

16.Minister to provide facilities, staff etc

17.Report

Division 3—Reference groups

18.Establishment of reference groups

Division 4—Grievances and Disputes Mediation Committee

19.Establishment of Grievances and Disputes Mediation Committee

Part 3—Higher education and vocational education and training

20.Registration of training organisations

21.Conditions of registration

22.Variation of registration of training organisations

23.Criteria for registration etc of training organisations

24.Accreditation of courses

25.Conditions of accreditation

26.Criteria for accreditation of courses

27.Duration of registration/accreditation and periodic fee and return

28.Grievances relating to registered training organisations

29.Commission may inquire into training organisations or courses

30.Commission may cancel, suspend or vary registration or accreditation

31.Provision of information to other State or Territory registering/course accrediting bodies

32.Cancellation of qualification or statement of attainment

33.Appeal to District Court

34.Offences relating to registration

35.Offences relating to universities, degrees etc

Part 4—Apprenticeships/traineeships

36.Interpretation

37.Training under contracts of training

38.Minister may enter contracts of training

39.Approval of employers for training of apprentices/trainees

40.Term of contracts of training

41.Approval of contracts of training

42.Alteration of training under contract of training to part‑time or full‑time

43.Termination of contract of training

44.Transfer of contract of training to new employer

45.Termination/expiry of contract of training and pre‑existing employment

46.Disputes and grievances relating to contracts of training

47.Relation to other Acts and awards etc

48.Making and retention of records

Part 5—Recognition of competency

49.Commission may issue qualifications or statements of competency

Part 6—Miscellaneous

50.State register

51.Maintenance of registers

52.Powers of entry and inspection

53.False or misleading information

54.Evidentiary provision relating to registration

55.Gazette notices may be varied or revoked

56.Service

57.Regulations

Schedule 1—Grievances and Disputes Mediation Committee

Schedule 2—Repeal and transitional provisions

The Parliament of South Australia enacts as follows:

Part 1—Preliminary

Short title

1. This Act may be cited as the Training and Skills Development Act 2003.

Commencement

2. This Act will come into operation on a day to be fixed by proclamation.

Objects

3. The objects of this Act are—

(a)to further the State's economic and social development by establishing the Training and Skills Commission—

(i)to assist the Minister in identifying strategies and priorities to meet the State's current and future work skills needs through education, training and skills development; and

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

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

(iv)to promote the development of a culture of continuous learning through adult community education; and

(b)to further the commitment by the States, the Territories and the Commonwealth, in partnership with industry, to work together to increase the participation of Australians in an integrated national vocational education and training system that allows for local diversity.

Interpretation

4. (1) In this Act, unless the contrary intention appears—

"accredited"—see subsection (3), and "accredit" and "accreditation" have corresponding meanings;

"ANTA" means—

(a)the Australian National Training Authority established under the Commonwealth Act; or

(b)any other body declared by regulation to be the successor of ANTA;

"Annual VET Plan" has the same meaning as in the ANTA Agreement;

"ANTA Agreement" means the Australian National Training Authority Agreement (a copy of which is set out in the Schedule of the Commonwealth Act), approved by the Commonwealth, the States and the Territories;

"apprentice/trainee" means a person (who may be either an apprentice or a trainee) undertaking training in a trade, declared vocation or other occupation under a contract of training;

"AQF" means the policy framework entitled "Australian Qualifications Framework" that defines all qualifications recognised nationally in post‑compulsory education within Australia, endorsed by the Ministerial Council on Education, Employment, Training and Youth Affairs so as to commence on 1 January 1995;

"AQTF" means the policy framework entitled "Australian Quality Training Framework" that defines the criteria and standards for the registration of training organisations and the accreditation of courses in the vocational education and training sector, endorsed by the Ministerial Council on 8 June 2001;

"Commission" means the Training and Skills Commission established under Part 2;

"Commonwealth Act" means the Australian National Training Authority Act 1992 of the Commonwealth, as amended from time to time;

"condition" includes a limitation or restriction;

"contract of training" means a contract of training under Part 4;

"contravene" includes fail to comply with, and "contravention" has a corresponding meaning;

"corresponding law" means the law of another State or a Territory relating to vocational education and training;

"course accrediting body" means the body equivalent to the Commission in another State or a Territory responsible for the administration of the accreditation of courses under that State's or Territory's corresponding law;

"declared vocation" means an occupation declared by notice in the Gazette under section 5 to be a declared vocation for the purposes of this Act;

"Grievances and Disputes Mediation Committee" means the Grievances and Disputes Mediation Committee established under Part 2;

"higher education"—see subsection (2);

"Ministerial Council" means the Council consisting of the Ministers from each State and the Commonwealth responsible for vocational education and training operating in accordance with the ANTA Agreement;

"National Protocols" mean the protocols entitled "National Protocols for Higher Education Approval Processes" relating to quality assurance for the higher education sector in Australia, endorsed by the Ministerial Council on Education, Employment, Training and Youth Affairs in March 2000;

"National register" means—

(a)the National Training Information Service—an information database maintained by ANTA; or

(b)if the regulations declare some other information database to be in substitution for the National Training Information Service—that information database;

"National Training Framework" means the policy framework comprising the AQTF and the concept of training packages, endorsed by the Ministerial Council in September 1996;

"qualification" has the same meaning as in the AQF;

"reference group"—see Part 2;

"registered"—see subsection (4), and "register" and "registration" have corresponding meanings;

"registering body" means the body equivalent to the Commission in another State or a Territory responsible for the registration of training organisations under that State's or Territory's corresponding law;

"scope of the registration" of a registered training organisation means the operations that the organisation is authorised to conduct by its registration;

"standards for accreditation of courses" means—

(a)in relation to higher education—the criteria for accreditation of courses under the National Protocols;

(b)in relation to vocational education and training—the standards for accreditation of courses under the AQTF;

(c)in relation to education services for overseas students—the standards determined from time to time by the Minister;

"standards for registered training organisations" means—

(a)in relation to a training organisation for higher education—the criteria for registration of training organisations under the National Protocols;

(b)in relation to a training organisation for vocational education and training—the standards for registration of training organisations under the AQTF;

(c)in relation to a training organisation for education services for overseas students—the standards determined from time to time by the Minister;

"standards for State and Territory registering/course accrediting bodies" means—

(a)in relation to higher education—the criteria for State and Territory registering bodies and course accrediting bodies under the National Protocols;

(b)in relation to vocational education and training—the standards for State and Territory registering bodies and course accrediting bodies under the AQTF,

and includes, in relation to higher education or vocational education and training, any standards determined from time to time by the Minister for higher education or vocational education and training;

"statement of attainment" has the same meaning as in the AQF;

"State register" means the register maintained by the Commission for the purposes of this Act;

"State university" means a university established under an Act of this State;

"trade" means an occupation declared by notice in the Gazette under section 5 to be a trade for the purposes of this Act;

"training package"—a training package is an integrated set of competency standards, assessment guidelines and AQF qualifications for a specific industry, industry sector or enterprise (see, also, the definition of National Training Framework);

"variation of registration"—see section 22;

"vocational education and training"—see subsection (2).

(2) For the purposes of this Act—

(a)education in relation to which qualifications are issued under the higher education provisions of the AQF is higher education;

(b)education and training for work in relation to which qualifications and statements of attainment are issued under the vocational education and training provisions of the AQF is vocational education and training.

(3) For the purposes of this Act, a course is accredited if—

(a)the course is entered as an accredited course in higher education, and the conditions of accreditation and details of the course are recorded, on the State register by the Commission; or

(b)the course is entered as an accredited course in vocational education and training, and the conditions of accreditation and details of the course are recorded, on the National register by the Commission or some other course accrediting body.

(4) For the purposes of this Act, a training organisation is registered if—

(a)the training organisation is entered as a registered training organisation in relation to higher education, and the conditions of registration and details of the organisation are recorded, on the State register by the Commission; or

(b)the training organisation is entered as a registered training organisation in relation to vocational education and training, and the conditions of registration and details of the organisation are recorded, on the National register whether by the Commission or some other registering body; or

(c)the training organisation is entered as a registered training organisation in relation to education and training for overseas students, and the conditions of registration and details of the organisation are recorded, on the State register by the Commission.

(5) A reference in this Act to a particular agreement, policy framework or protocol defined in subsection (1) is—

(a)a reference to the agreement, policy framework or protocol as amended from time to time; or

(b)if the regulations declare a document to be in substitution for the agreement, policy framework or protocol—a reference to the substituted document as amended from time to time.

Declarations for purposes of Act

5. (1) The Minister may, by notice in the Gazette, declare an institution to be a university for the purposes of this Act.

(2) The Minister must, in making a declaration under subsection (1), apply—

(a)the National Protocols; and

(b)any other guidelines determined by the Minister.

(3) A declaration under subsection (1)—

(a)may be subject to such conditions as the Minister thinks fit and specifies in the declaration; and

(b)will operate for the period set in the declaration; and

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

(4) The Minister may, on the Commission's recommendation—

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

(i)a trade; or

(ii)a declared vocation,

for the purposes of this Act; and

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

Part 2—Administration

Division 1—State Training Agency

Minister to be Agency

6. The Minister is the State Training Agency contemplated by the Commonwealth Act.

Functions of Minister as Agency

7. (1) As the State Training Agency, the Minister has the following functions:

(a)to provide to ANTA advice and information on vocational education and training and adult community education needs and the funding implications of those needs, in consultation with all interested parties, including industry, commerce and government;

(b)to develop, in conjunction with ANTA, the Annual VET Plan in accordance with the ANTA Agreement;

(c)to ensure that the management of the State's system of vocational education and training and adult community education, including—

(i)planning, regulation and provision of public and private training; and

(ii)allocation of resources within the State on a program and geographic basis,

is in accordance with any national priorities approved by the Ministerial Council under the ANTA Agreement and the Annual VET Plan;

(d)to provide annually to ANTA a report on performance to enable the compilation of an annual integrated report for approval by the Ministerial Council;

(e)the other functions contemplated by the ANTA Agreement and any other functions that the Minister considers appropriate.

(2) The Minister is to ensure that the vocational education and training and adult community education needs of the State are identified and met in a cost effective and efficient manner.

Delegation by Minister

8. (1) The Minister may delegate a function of the Minister as the State Training Agency or any other function or matter that the Minister considers appropriate—

(a)to the Commission or any other particular person or body; or

(b)to the person for the time being occupying a particular office or position.

(2) A function or matter delegated under this section may, if the instrument of delegation so provides, be further delegated.

(3) A delegation—

(a)must be made by instrument in writing; and

(b)may be made subject to conditions specified in the instrument of delegation; and

(c)is revocable at will and does not prevent the delegator from acting in a matter.

Division 2—Training and Skills Commission

Establishment of Training and Skills Commission

9. (1) The Training and Skills Commission is established.

(2) The Commission will consist of not more than 9 members appointed by the Governor on the nomination of the Minister.

(3) Membership of the Commission will include persons who together have, in the Minister's opinion, the abilities and experience required for the effective performance of the Commission's functions, of whom—

(a)at least 2 will be nominated after consultation with State employer associations; and

(b)at least 2 will be nominated after consultation with the United Trades and Labor Council.

(4) The Governor may, on the nomination of the Minister—

(a)appoint a member to chair meetings of the Commission; and

(b)appoint a member to be the deputy of the member appointed to chair meetings of the Commission (and the deputy may perform or exercise the functions and powers of that member in the member's absence).

(5) The Governor may, on the nomination of the Minister, appoint a suitable person to be the deputy of a member (other than the members referred to in subsection (4)) and a person so appointed may act as a member of the Commission in the member's absence.

(6) The qualifications required for the appointment of members under subsection (3) extend to the appointment of deputies.

(7) The same number of members must be appointed by the Governor under subsection (3)(a) and (b).

(8) At least one member of the Commission must be a woman and one a man.

Commission's functions

10. (1) The Commission's general functions are—

(a)to assist, advise and make recommendations to the Minister on—

(i)the Minister's functions as the State Training Agency; and

(ii)other matters relating to the development, funding, quality and performance of vocational education and training and adult community education; and

(b)to regulate higher education (other than that delivered by a State university) and vocational education and training.

(2) The Commission's functions include—

(a)promoting and encouraging the development of, investment, equity and participation in, and access to, vocational education and training and adult community education; and

(b)advising and making recommendations to the Minister—

(i)on strategies and priorities for increasing the work skills base in the State with the aim of supporting employment growth and investment in the State (including the recognition of skills and qualifications gained outside of Australia); and

(ii)on strategies for the development of vocational education and training and adult community education in the State; and

(iii)relating to the amount and allocation of funds for vocational education and training and adult community education; and

(iv)about the occupations that should constitute trades or declared vocations; and

(c)registering training organisations and accrediting courses under Part 3; and

(d)performing the functions assigned to the Commission under Part 4; and

(e)monitoring vocational education and training and adult community education in the State and advising the Minister of the extent of compliance with, and any departures from, the Annual VET Plan; and

(f)reporting annually to the Minister on vocational education and training and adult community education in the State, including the expenditure of public money in these areas; and

(g)developing guidelines—

(i)relating to contracts of training; and

(ii)if required—for the purposes of Part 3 for the approval of the Minister; and

(h)promoting pathways between the secondary school, vocational education and training, adult community education, and university, sectors; and

(i)entering into reciprocal arrangements with appropriate bodies with respect to the recognition of education and training; and

(j)monitoring, and making recommendations to the Minister on, the administration and operation of this Act; and

(k)performing any other function assigned to the Commission by the Minister or by or under this or any other Act.

(3) For the purpose, or in the course, of performing its functions, the Commission may—

(a)establish committees (which may but need not consist of members of the Commission); and

(b)with the consent of the Minister, delegate a function—

(i)to a particular committee, reference group or any other person or body; or

(ii)to the person for the time being occupying a particular office or position.

(4) A function delegated under this section may, if the instrument of delegation so provides, be further delegated.

(5) A delegation—

(a)must be made by instrument in writing; and

(b)may be made subject to conditions specified in the instrument of delegation; and

(c)is revocable at will and does not prevent the delegator from acting in a matter.

(6) The Commission must, for the purposes of assisting, advising and making recommendations to the Minister on the Minister's functions as the State Training Agency, and generally to the extent practicable, consult with—

(a)industry and commerce, including industry training advisory bodies and associations and organisations established by or representing industry and commerce; and

(b)associations and organisations representing employees; and

(c)relevant government and community bodies.

Ministerial control

11. Except in relation to the formulation of advice and reports to the Minister, the Commission is, in the performance of its functions, subject to control and direction by the Minister.

Conditions of membership

12. (1) A member of the Commission will be appointed for a term not exceeding 2 years and on conditions determined by the Governor and specified in the instrument of appointment.

(2) A member of the Commission will, at the expiration of a term of appointment, be eligible for reappointment.

(3) The Governor may remove a member from office—

(a)for misconduct; or

(b)for failure or incapacity to carry out the duties of his or her office satisfactorily; or

(c)for contravention of a condition of his or her appointment; or

(d)if serious irregularities have occurred in the conduct of the Commission's affairs or the Commission has failed to carry out its functions satisfactorily and its membership should, in the opinion of the Governor, be reconstituted for that reason.

(4) The office of a member becomes vacant if the member—

(a)dies; or

(b)completes a term of office and is not reappointed; or

(c)resigns by written notice to the Minister; or

(d)is convicted of an indictable offence or sentenced to imprisonment for an offence; or

(e)is removed from office under subsection (3).

(5) On the office of a member becoming vacant, a person may be appointed in accordance with this Division to the vacant office.

Commission's proceedings

13. (1) The member appointed to chair meetings of the Commission will preside at each meeting of the Commission at which the member is present.

(2) If the member appointed to chair meetings of the Commission is absent from a meeting of the Commission, the following provisions apply:

(a)if another member has been appointed as that member's deputy and is present at the meeting—the deputy will preside at the meeting;

(b)in any other case—a member chosen by the members present at the meeting will preside at the meeting.

(3) A quorum of the Commission consists of half of the total number of its members (ignoring any fraction resulting from the division) plus one and must include at least one of the members appointed under section 9(3)(a) and at least one of the members appointed under section 9(3)(b).

(4) A decision carried by a majority of the votes cast by members at a meeting is a decision of the Commission.

(5) Each member present at a meeting of the Commission has one vote on any question arising for decision and, if the votes are equal, the member presiding at the meeting may exercise a casting vote.

(6) A telephone or video conference between members will, for the purposes of this section, be taken to be a meeting of the Commission at which the participating members are present.

(7) A proposed resolution of the Commission becomes a valid decision of the Commission despite the fact that it is not voted on at a meeting of the Commission if—

(a)notice of the proposed resolution is given to all members in accordance with procedures determined by the Commission; and

(b)a majority of the members express their concurrence in the proposed resolution by letter, fax or other written communication setting out the terms of the resolution.

(8) The Commission must cause accurate minutes to be kept of its proceedings.

(9) Subject to this Act, the Commission may determine its own procedures.

(10) Subject to the directions of the Commission, this section applies to a committee of the Commission (other than the Grievances and Disputes Mediation Committee) in the same way as to the Commission.

Validity of acts

14. An act or proceeding of the Commission or a committee of the Commission is not invalid by reason only of a vacancy in its membership.

Immunity

15. (1) A member of the Commission or a committee of the Commission incurs no liability for anything done honestly in the performance or exercise, or purported performance or exercise, of functions or powers under this Act.

(2) A liability that would, but for this section, attach to a member attaches instead to the Crown.

Minister to provide facilities, staff etc

16. (1) The Minister must provide the Commission with facilities and assistance by staff and consultants as reasonably required for the proper performance of the Commission's functions.

(2) For the purposes of subsection (1), the Minister may, if so requested by the Commission, do either or both of the following:

(a)allow the Commission to select persons to be engaged as staff members or consultants to assist the Commission;

(b)engage staff members or consultants otherwise than as Public Service employees or officers or employees under the Technical and Further Education Act 1975.

Report

17. (1) The Commission must, on or before 31 March in each year, present to the Minister a report on its operations for the preceding calendar year.

(2) The Minister must, within 6 sitting days after receipt of a report under this section, cause copies of the report to be laid before each House of Parliament.

Division 3—Reference groups

Establishment of reference groups

18. (1) The Minister must establish—