Apprenticeship and Traineeship Act 2001

This Act is the Apprenticeship and Traineeship Act 2001.

This Act commences on a day or days to be appointed by proclamation.

Words and expressions that are defined in the Dictionary at the end of this Act have the meanings given to them by the Dictionary.

Notes included in this Act do not form part of this Act.

In this section—

Commonwealth Act means the National Vocational Education and Training Regulator Act 2011 of the Commonwealth.

State apprenticeship and traineeship regulation provisions means the provisions of this Act and the regulations—

regulating organisations providing training, assessment or instruction in relation to a recognised trade vocation or a recognised traineeship vocation, and

providing for the approval by or under this Act of training, assessment or instruction provided by organisations, and

providing for the standards to be complied with under this Act by organisations, and

providing for the exercise of investigative powers, sanctions and enforcement by or under this Act in relation to such matters.

The State apprenticeship and traineeship regulation provisions are declared to be an excluded matter for the purposes of section 10 of the Commonwealth Act in relation to section 9 (Immunity from State and Territory laws) of the Commonwealth Act to the extent that section 9 would prevent the application of the State apprenticeship and traineeship regulation provisions to an NVR registered training organisation (within the meaning of the Commonwealth Act) providing training, assessment or instruction in relation to a recognised trade vocation or a recognised traineeship vocation.

Without limiting subsection (2), each provision of this Act (and of any regulations made under this Act) is declared to be a VET legislation displacement provision for the purposes of section 11 of the Commonwealth Act generally.

The Commissioner 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.

It is the duty of any person involved in the administration of this Act to comply with the requirements of the vocational training guidelines.

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.

The Commissioner, by order published in the Gazette—

may designate any vocation to be a recognised trade vocation in connection with the establishment of apprenticeships under this Act, and

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.

In making such an order, the Commissioner must comply with the relevant vocational training guidelines.

The Commissioner may from time to time make orders (vocational training orders) specifying the following matters in relation to the training that an apprentice or trainee who is employed in a recognised trade vocation or recognised traineeship vocation is required to undertake in connection with that vocation—

the appropriate term or terms for apprenticeships or traineeships in that vocation,

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),

the qualification or qualifications that may be awarded in relation to an apprenticeship or traineeship in that vocation,

the units of competency forming part of the training for that vocation,

any other training to be provided in addition to the training required for an appropriate qualification,

such other matters relating to the training of apprentices or trainees in that vocation as the Commissioner considers appropriate.

The appropriate term to be specified in a vocational training order in relation to an apprenticeship or traineeship may vary according to—

specified training that has previously been completed by the proposed apprentice or trainee, and

specified qualifications that have previously been awarded to the proposed apprentice or trainee, and

specified conditions to be complied with by the proposed employer, or by the proposed apprentice or trainee, under an apprenticeship or traineeship.

In making a vocational training order, the Commissioner—

must consult with the relevant industry groups, and

must comply with the vocational training guidelines.

Notice of the making of a vocational training order must be published in the Gazette.

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.

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.

Editorial note.

For orders under this section see the Department of Industry website at https://www.training.nsw.gov.au/promotions/apprenticeships_traineeships.html.

An employer who employs, or proposes to employ, a person as an apprentice or trainee may apply to the Commissioner for the establishment of—

an apprenticeship in a recognised trade vocation, or

a traineeship in a recognised traineeship vocation.

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—100 penalty units.

The application—

must be accompanied by the proposed training contract (as executed by the prospective employer and prospective apprentice or trainee), and

must be accompanied by the training plan proposal (as endorsed by the relevant registered training organisation), and

must identify the industrial award or agreement that applies to the apprenticeship or traineeship concerned, and

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

(Repealed)

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, business address, ACN (if any) and ABN of the host employer with whom the apprentice or trainee is initially to be placed, and

in the case of an application for a traineeship, must indicate whether the prospective trainee is an existing worker trainee.

A training plan proposal is a document prepared by the prospective employer and prospective apprentice or trainee outlining the following matters in relation to the proposed apprenticeship or traineeship—

the proposed arrangements for the provision of training to the prospective apprentice or trainee,

the appropriate qualification or qualifications proposed to be awarded to the prospective apprentice or trainee.

The proposed training contract and training plan proposal—

must be set out in the form approved by the Commissioner, and

must be prepared in accordance with the relevant vocational training order.

The Commissioner may require the applicant to lodge with the application a training plan for the proposed apprenticeship or traineeship instead of a training plan proposal.

An application under this section may be made on behalf of the employer by an agent of the employer approved by the Commissioner if the agent certifies that the relevant training contract and any associated documentation have been duly executed by the parties to the contract.

The Commissioner may refuse to accept applications lodged by a particular agent (and must notify the relevant applicants accordingly) if the agent fails to comply with this section or any requirement of the regulations in relation to any application lodged by the agent.

The establishment of a trainee apprenticeship is not permitted under this Act, even if the relevant industrial award or agreement recognises that the apprenticeship may be undertaken as a trainee apprenticeship.

An application under this section may not be made by a prohibited employer contrary to a prohibition order.

The regulations may make provision for or with respect to applications under this section.

The Commissioner must deal with an application for the establishment of an apprenticeship or traineeship—

by approving the application, or

by dismissing the application, or

(Repealed)

(Repealed)

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.

As soon as practicable after an application is determined, the Commissioner must notify the applicant and the relevant registered training organisation of the determination.

An application for establishment of an apprenticeship or traineeship must be dismissed unless the Commissioner is satisfied—

that the employer can provide the work-based component of the required training in the relevant vocation, and

that the employer will employ the apprentice or trainee under conditions that do not contravene the relevant industrial award or agreement, and

that the apprentice or trainee is capable of undertaking the required training in the relevant vocation, and

that the proposed training contract has been prepared in accordance with the relevant vocational training order, and

that the employment provided, or to be provided, by the employer complies with the relevant vocational training order, and

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.

(Repealed)

When dealing with an application for the establishment of an apprenticeship or traineeship, the Commissioner may issue a direction (a vocational training direction) in relation to the proposed apprenticeship or traineeship.

A vocational training direction may do any one or more of the following—

it may reduce or extend the term of the apprenticeship or traineeship,

it may approve alternative training to be undertaken by the apprentice or trainee.

In making a vocational training direction, the Commissioner—

must have regard to any relevant training that the apprentice or trainee has received—

whether as an apprentice or trainee or otherwise, and

whether in the particular vocation or in some other vocation, and

whether in New South Wales or elsewhere, and

may have regard to any other matter that the Commissioner considers relevant, and

must comply with the vocational training guidelines.

If a vocational training direction is made that affects the provisions of the proposed training contract—

a copy of the contract (appropriately amended) must be returned to the applicant for execution, and

the application is not to be further dealt with until the contract (as amended) is duly executed and returned to the Commissioner.

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.

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.