South Australian Skills Act 2008

This Act may be cited as the South Australian Skills

Act 2008.

The objects of this Act are—

to strengthen the State's economic base by providing a modern, skilled workforce that meets the current and future needs of industry,

Government and the community; and

to promote partnerships within government, industry and other enterprises for the purpose of training and skills development for the State's workforce; and

to support South Australians to access and complete the skills training they need to get a job and contribute to the State's economy and their own prosperity; and

to establish a simple, streamlined apprenticeship and traineeship system featuring flexible, industry‑endorsed approaches to training and skills development that reflects—

the purpose of apprenticeships and traineeships is to develop the skills, knowledge and experience necessary for a person to acquire a vocation and qualification that contributes towards the person's employment and future occupational requirements; and

the responsibilities of an employer of an apprentice or trainee for the training required for the purposes of the apprenticeship or traineeship;

and

the integral role of registered training organisations in the development of training goals and the success of apprenticeships and traineeships; and

the responsibilities of each party to a training contract to take appropriate action to support completion of the apprenticeship or traineeship, including where appropriate by resolving disputes in a timely manner that preserves the training relationship; and

to recognise the importance of the vocational education and training system, including adult community education; and

to facilitate life‑long learning and supporting South

Australians who change careers or wish to improve their skills;

and

to promote equity in training and skills development (including in access to such development).

Each person or body engaged in the administration, operation or enforcement of this Act must exercise their powers and perform their functions so as to further the objects set out in this section.

In this Act, unless the contrary intention appears—

accredited—see subsection (3);

apprentice means a person who is being trained under an apprenticeship pursuant to a training contract that is in force;

AQF means the policy framework entitled "Australian Qualifications Framework" that defines qualifications recognised nationally in post‑compulsory education within Australia, as approved by the Ministerial Council on

Education, Employment, Training and Youth Affairs from time to time;

ASQA means Australian Skills Quality Authority established under the National Vocational

Education and Training Regulator Act 2011 of the

Commonwealth;

Commission means the South Australian Skills

Commission established under

Part

3;

compliance notice means a compliance notice issued under section 63;

condition includes a limitation or restriction;

contravene includes fail to comply with;

Department means the administrative unit of the

Public Service assisting a Minister in the administration of this

Act;

declared vocation means an occupation declared under section 6 to be a declared vocation for the purposes of this Act;

employer, in relation to a training contract, means an employer who is a party to the training contract;

employer's obligations under the training contract—see section 54J;

higher education—see subsection (2);

Higher Education Standards means the Higher

Education Standards Framework (Threshold Standards) 2015 made under the

Tertiary Education Quality and Standards

Agency Act 2011 of the Commonwealth, as in force from time to time;

host employment arrangement means an arrangement under which the employer of an apprentice or trainee places the apprentice or trainee with another person or body for particular training required under a training contract or training plan;

nominated training organisation—see section 54P;

prohibited employer means an employer with respect to whom a declaration is in force under section 54B, and includes—

in the case of an employer that is a body corporate—any person who, when the body corporate became a prohibited employer, was a director of the body corporate or was concerned in the management of the body corporate; and

in the case of an employer that is a partnership—any person who, when the partnership became a prohibited employer, was a partner in the partnership or was concerned in the management of the partnership;

qualification means a VET qualification within the meaning of the National Vocational

Education and Training Regulator Act 2011 of the

Commonwealth;

recognised higher education provider means a body established and recognised as a higher education provider by or under the law of the State, or of the Commonwealth or another State or

Territory;

Register means the South Australian Skills

Register;

registered means registered under

Part

4Division 3A, and a reference to a

registered employer has a corresponding meaning;

registered training organisation means a registered training organisation within the meaning of the

National Vocational Education and

Training Regulator Act 2011 of the Commonwealth;

repealed Act means the

Training and Skills Development

Act 2003 repealed under

Schedule

2;

SAET means the South Australian Employment

Tribunal established under the South

Australian Employment Tribunal Act 2014;

scope of the registration, in relation to a registered employer, means the declared trades or vocations in relation to which the employer may enter into a training contract, as determined by the conditions imposed on the registration;

South Australian Skills Standards or

Standards means the South Australian Skills Standards prepared under section 26, as in force from time to time;

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

TEQSA means the Tertiary Education Quality and

Standards Agency established under the Tertiary Education Quality and Standards Agency Act

2011 of the Commonwealth;

trade means an occupation declared under section 6 to be a trade for the purposes of this

Act;

trainee means a person who is being trained in a traineeship pursuant to a training contract that is in force;

training contract means—

a training contract approved under section 48; or

a training contract transferred from another jurisdiction under section 48A, as in force from time to time;

training plan, for an apprentice or trainee, means a training plan for the apprentice or trainee prepared and endorsed under section 54Q, as in force from time to time;

Tribunal means the South Australian Civil and

Administrative Tribunal established under the South Australian Civil and Administrative Tribunal

Act 2013;

vocational education and training—see subsection (2).

For the purposes of this Act—

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

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;

education and training services provided to persons holding a student visa within the meaning of the Education Services for Overseas Students Act

2000 of the Commonwealth are education services for overseas students.

For the purposes of this Act, a course is accredited if it is a VET accredited course within the meaning of the National Vocational Education and Training Regulator Act

2011 of the Commonwealth.

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

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

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.

For the purposes of this Act, the Minister may, by notice in the

Gazette, make any of the following declarations:

that an institution is—

a university; or

a university college; or

a specialised university of a kind specified in the declaration;

that an institution that is an overseas higher education institution is an institution authorised to offer non AQF higher education qualifications in the State.

The Minister must, in making a declaration under this section, apply—

the Higher Education Standards; and

any other guidelines determined by the Minister.

A declaration under this section—

may be subject to such conditions (including conditions that determine the scope of the operations of the institution) as the Minister thinks fit and specifies in the declaration; and

will operate for the period set in the declaration;

and

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

It is an offence for an institution in relation to which a declaration has been made under this section to contravene a condition imposed by the Minister and specified in the declaration. Maximum penalty: $10 000. Expiation fee: $500.

The Minister may, by notice in the Gazette and on the recommendation of the Commission, declare an occupation to be a trade or a declared vocation (as the case requires).

A notice under subsection (1) must, in relation to each trade or vocation to which the notice relates:

identify the job or occupation, or class of job or occupation, to which the trade or vocation relates; and

identify any relevant pathways (including, where appropriate, pathways at a national level) to the trade or vocation; and

contain any other information required by the regulations.

To avoid doubt, a relevant pathway to a trade or vocation may, in addition to the primary qualification relating to the trade or vocation, include—

pre‑apprenticeships or pre‑traineeships;

or

specified skill sets; or

higher qualifications; or

such other matters as the Minister thinks appropriate.

Subject to subsection (2), this Act and any statutory instrument made under this Act prevail to the extent of any inconsistency over the Fair Work

Act 1994 or any other similar Act (including any regulation, award or other determination, enterprise agreement or industrial agreement made under those Acts or an Act repealed by those

Acts).

A provision of an award or other determination, enterprise agreement or industrial agreement (whether made under the

Fair Work Act 1994 or otherwise) requiring employers to employ apprentices or trainees in preference to junior employees remains in full force.

The Minister has the following functions under this Act:

to establish priorities and workforce development strategies to meet the State's current and future work skills needs in conjunction with industry, commerce, employee representatives and governments;

to manage the State's system of vocational education and training and adult community education by allocating resources within the State on a program and geographic basis;

to promote opportunities for adults to engage in further training and skills development opportunities, including through adult community education;

to manage the State's role as part of an integrated national system of education and training;

to administer the State's apprenticeship and traineeship system;

to facilitate complaint handling, mediation and advocacy in relation to the resolution of disputes relating to apprenticeships and traineeships, vocational education and training or international education, and to otherwise assist in the resolution of such disputes (including by providing advocacy services for parties in proceedings before the SAET);

any other function assigned to the Minister under this or any other

Act or that the Minister considers appropriate.

The Minister may delegate a function or power of the Minister under this Act—

to the Commissioner, the Commission or any other specified person or body; or

to the person for the time being occupying a specified office or position.

A function or power delegated under this section may, if the instrument of delegation so provides, be further delegated.

A delegation—

must be made by instrument in writing; and

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

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

There is to be a South Australian Skills

Commissioner.

The Commissioner is to be appointed by the Governor on conditions determined by the Governor and for a term, not exceeding 5 years, specified in the instrument of appointment.

An appointment of a person as Commissioner may be renewed, but a person must not hold office as Commissioner for more than 2 consecutive terms.

The Commissioner is subject to direction by the Minister but—

the Commissioner cannot be directed to make a particular finding or recommendation; and

the Minister must, within 3 sitting days after giving a direction, cause a copy of the direction to be laid before both Houses of

Parliament; and

a direction must be published in the annual report of the

Commissioner relating to the period in which the direction was given.

The Commissioner is a senior official for the purposes of the

Public Sector (Honesty and Accountability)

Act 1995.

The Governor may remove the Commissioner from office on the presentation of an address from both Houses of Parliament seeking the

Commissioner's removal.

The Governor may suspend the Commissioner from office on the ground of incompetence or misbehaviour and, in that event—

a full statement of the reason for the suspension must be laid before both Houses of Parliament within 3 sitting days of the suspension; and

if, at the expiration of 1 month from the date on which the statement was laid before Parliament, an address from both Houses of Parliament seeking the Commissioner's removal has not been presented to the Governor, the

Commissioner must be restored to office.

The office of Commissioner becomes vacant if the

Commissioner—

dies; or

resigns by written notice given to the Minister; or

completes a term of office and is not reappointed; or

is removed from office by the Governor under subsection (1); or

becomes bankrupt or applies as a debtor to take the benefit of the laws relating to bankruptcy; or

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

becomes a member of the Parliament of this State or any other State of the Commonwealth or of the Commonwealth or becomes a member of a Legislative

Assembly of a Territory of the Commonwealth; or

becomes, in the opinion of the Governor, mentally or physically incapable of carrying out satisfactorily the duties of office.

The Commissioner is entitled to remuneration, allowances and expenses determined by the Governor.

The Minister may appoint a person (who may but need not be an employee in the Public Service) to act as the Commissioner—

during a vacancy in the office of Commissioner; or

when the Commissioner is absent from, or unable to discharge, official duties; or

if the Commissioner is suspended from office under this

Act.

A person appointed to act as the Commissioner is a senior official for the purposes of the Public Sector (Honesty and Accountability) Act 1995.