Div 1ACertain training to occur under training contract

Division 1A—Certain training to occur under training contract 45A—Training in trade must occur under training contract (1) A person must not undertake to train a person in a trade except under a training contract. (2) However, subsection (1) does not apply in relation to the further training or re‑training of a person who— (a) has already completed the training required under a training contract; or (b) has an equivalent qualification; or (c) has been certified by the Commission as competent in relation to the relevant trade. Note— This section does not limit the Commission's ability to recognise trade skills obtained through other pathways. 45B—Training in declared vocation may occur under training contract An employer may undertake to train a person in a declared vocation under a training contract. Division 2—Training contracts 46—Training contracts (4) An employer must not enter into a training contract to train a person unless the employer is— (a) a registered employer; and (b) operating within the scope of the registration of the employer; and (c) complying with any other condition of the registration. (5) 2 or more registered employers may, with the approval of the Commission, enter into a training contract with the same apprentice or trainee. (6) A training contract must— (a) be in the form of the standard form contract; and (b) contain the following conditions: (i) a condition that the apprentice or trainee will be employed by the employer party to the contract in accordance with the applicable award or industrial agreement; (ii) a condition specifying the probationary period for a contract for the relevant trade or declared vocation; (iii) the standard conditions for a contract for the relevant trade or declared vocation; (iv) a condition that the apprentice or trainee will be trained and assessed in accordance with the training plan (to be agreed between the employer, the apprentice or trainee and a registered training provider chosen jointly by the employer and the apprentice or trainee); (v) any other conditions that have been agreed between the employer and the apprentice or trainee after consultation with the registered training provider. (7) A person under the age of 15 years must not enter into a training contract unless— (a) otherwise permitted under an industrial agreement or award; or (b) the person has, on application, obtained the written approval of the Commission granted in accordance with any requirements under the South Australian Skills Standards. (13) Non-compliance with any of the provisions of this section does not of itself affect the validity of a training contract. 47—Minister may enter training contracts (1) The Minister may enter into a training contract assuming the rights and obligations of an employer under the contract. (2) The Minister may not enter into a training contract except— (a) on a temporary basis; or (b) where it is not reasonably practicable for some other employer to enter into the contract. 48—Training contracts to be approved by Commission (1) An employer must, not later than 28 days after entering an agreement— (a) under which the employer is to train a person in a trade, or to otherwise train a person under a training contract; and (b) that is intended to be a training contract, apply to the Commission for approval of the agreement as a training contract. (2) An application under subsection (1)— (b) must be accompanied by the agreement; and (c) must be accompanied by any other information or documents specified by the Commission. (3) The Commission may, by notice in writing, require an employer to provide, within a specified period, such other specified information or documents as may be required by the Commission for the purposes of determining an application. (4) The Commission must refuse to approve an agreement as a training contract— (a) if the employer is a prohibited employer; or (b) if, by training a person under the proposed training contract, the employer would commit an offence under section 46(4); or (c) in any other circumstances prescribed by the regulations. (5) The Commission may refuse to approve an agreement as a training contract for any other reason the Commission considers appropriate including where— (a) the agreement— (i) is not in the form of the standard form contract; or (ii) does not otherwise comply with this Act; or (b) the qualification to which the agreement relates is, in the opinion of the Commission, an inappropriate qualification for a training contract; or (c) the employer, or the apprentice or trainee, will, in the opinion of the Commission, be unable to fulfil their obligations under the proposed training contract; or (d) the requirements under this Act in relation to a training plan for the apprentice or trainee are unlikely to be satisfied; or (e) a term of the proposed training contract is, in the opinion of the Commission, prejudicial to the interests of the apprentice or trainee; or (f) the Commission reasonably suspects that the employer has engaged in conduct that is likely to result in the employer being declared a prohibited employer. (6) The Commission must, on determining an application under this section— (a) notify the employer and apprentice or trainee in writing of the Commission's determination; and (b) if the Commission refuses to approve an agreement—the reasons for the refusal; and (c) if the Commission approves an agreement as a training contract—the date of approval of the agreement. (7) An employer who has made an application under this section that has been refused by the Commission must not, except with the written authority of the Commission, continue to train a person in a trade under the refused agreement. 48A—Transfer of training contracts between jurisdictions (1) The Commission may, in the case where a trainee or apprentice under a training contract (however described) entered into under the law of another State or Territory that is in force wishes to relocate to this State— (a) recognise (with or without modification) the training contract as a training contract under this Act; and (b) recognise (with or without modification) a training plan relating to the training contract as a training plan under this Act; and (c) substitute the employer in relation to the training contract for an employer in this State; and (d) recognise any employment undertaken, or achievement in relation to the training contract, in the other State or Territory; and (e) make such other arrangements in respect of the apprentice or trainee, or training contract, as the Commission considers necessary or appropriate. (2) The regulations may make further provisions in relation to the transfer of training contracts between jurisdictions (including, to avoid doubt, provisions limiting a training contract, or class of training contract, from being recognised under this section). 49—Commencement date of apprenticeship or traineeship and term of training contracts (1) Subject to this section, an apprenticeship or traineeship under a training contract will be taken to commence on— (a) if a commencement date is specified in the training contract—that date; or (b) if no such commencement date is specified—on the day on which the relevant agreement is approved as a training contract under section 48. (2) Subject to this section, a training contract remains in force until— (a) if the training contract specifies a period during which the training contract remains in force—the end of that period; or (b) if the training contract specifies an event on which occurrence the training contract ceases to be in force—the occurrence of that event; or (c) the Commission certifies the apprentice or trainee under the contract as competent in relation to the relevant trade or declared vocation; or (d) the contract is terminated under this Act, whichever occurs first. (3) The Commission may, on an application under this section or on its own motion, determine— (a) that the whole or a part of a period of training that occurred before the date of a training contract be treated as a period of training served under the contract; or (b) that the whole or a part of a period of training that occurred under a previous training contract be treated as a period of training served under a specified training contract; or (c) that a period of absence of an apprentice or trainee under a training contract be excluded from consideration in computing the length of service of the apprentice or trainee under the contract, and the training contract (including the term of the contract) is to be construed in accordance with the determination. (4) The Commission may, by notice in writing to the parties to a training contract, increase or reduce the term of the contract. (5) If the Commission is satisfied of the competence of an apprentice or trainee, or a former apprentice or trainee, the Commission may, on an application under this section or on its own motion, in accordance with any requirements set out in the South Australian Skills Standards— (a) certify that the apprentice or trainee is to be taken to have completed the training required under the contract; and (b) if the contract is still in operation—terminate the contract and relieve the parties to the contract of their obligations under the contract. (6) To avoid doubt, subsection (5) applies whether or not the relevant training contract is still in operation. (7) An application under this section— (8) Nothing in this section prevents the extension or reduction of the term of a training contract by SAET. (9) If a conflict occurs between a determination of the Commission under this section and a determination of SAET, the determination of SAET prevails. 49A—Extension of probationary period (1) The Commission may, on the application by a party to a training contract and in accordance with the South Australian Skills Standards, vary the contract to extend the probationary period for a contract for a specified period (however the probationary period, as extended, must not exceed 6 months in total or 25% of the term of the contract, whichever is the lesser). (2) If the Commission extends a probationary period under subsection (1), the Commission must give written notice of that fact to each party to the training contract. (3) The Commission may, by notice in the Gazette made with the approval of the Minister, vary a specified class of training contracts to extend the probationary period for a training contract of that class for a specified period (however the probationary period, as extended, must not exceed 6 months in total or 25% of the term of the contract, whichever is the lesser). 50—Commission may vary hours under training contract (1) The Commission may, on application by the parties to a training contract or on its own motion, vary the contract so that it provides for part‑time training instead of full‑time training, or full‑time training instead of part‑time training, if to do so is not inconsistent with the award or industrial agreement under which the apprentice or trainee is employed. (2) The Commission may, on application by the parties to a school‑based training contract or on its own motion, vary the contract so that it provides for full‑time training or part‑time training (as the case requires) when the school‑based apprentice or trainee finishes school. 51—Commission may suspend training contract (1) The Commission may, on an application under this section or on its own motion, suspend a training contract. (3) A suspension under this section— (a) must be by notice in writing; (b) may be conditional or unconditional. (4) The Commission may, by notice in writing, vary or revoke a condition of a suspension. (5) A suspension under this section commences on the day specified by the Commission and remains in force for the period specified in the notice or until further notice by the Commission (as the case requires). 51A—Termination of training contract during probationary period (1) A party to a training contract may, after the commencement of the term of the contract and within the probationary period, terminate the contract by written notice to the other party or parties to the contract. (2) If a training contract is terminated during the probationary period, the employer in relation to the contract must, within 7 days of the termination, notify the Commission in writing of the termination. 51B—Commission may terminate training contract (1) The Commission may, on an application under this section or on its own motion, terminate a training contract. (3) The Commission must cause written notice of a termination under this section to be given to each party under a training contract. (4) A termination under this section has effect on the day specified by the Commission. 51C—Offence to terminate etc training contract A person who, without being authorised to do so under this Act— (a) terminates or purports to terminate a training contract; or (b) suspends or purports to suspend a training contract, is guilty of an offence. 52—Commission may require dispute resolution between parties to certain applications The Commission may, before determining an application under this Part for termination or suspension of a training contract, or substitution of an employer in relation to a training contract, require the parties to the training contract to undertake dispute resolution of a specified kind. 53—Effect of time spent training on employment of apprentice or trainee (1) Subject to this section, the time spent by an apprentice or trainee attending a course as part of their apprenticeship or traineeship will be treated for all purposes as part of the employment of the apprentice or trainee. (2) If it is necessary for an apprentice or trainee to re‑attend a course previously undertaken by the apprentice or trainee, the employer has a discretion as to whether time spent re‑attending the course is to be taken into account for the purpose of determining the wages payable to the apprentice or trainee. 54—Termination/expiry of training contract and pre‑existing employment If a training contract is entered into between an employer and a person who is already in the employment of the employer, the termination, or expiry of the term, of the training contract does not of itself terminate the person's employment with the employer. Division 3—Prohibited employers 54B—Prohibited employers (1) The Commission may, by notice in writing and in accordance with any requirements set out in the regulations, declare an employer to be a prohibited employer if the Commission reasonably believes the employer is not a suitable person to employ an apprentice or trainee. (2) In determining whether or not an employer is suitable to employ an apprentice or trainee, the Commission must have regard to the following: (a) whether the employer is able to provide, or arrange to provide, an apprentice or trainee with the facilities, range of work, supervision and training required under a training plan for the apprentice or trainee; (b) the employer's record in delivering training to apprentices or trainees; (c) whether the employer behaves, or permits their employees to behave, in an objectionable way towards apprentices or trainees; (d) whether the employer has contravened this Act, or any other Act (whether of the State another State or Territory or the Commonwealth) relating to employment; (e) the criminal history of the employer; (f) whether the employer is a fit and proper person to employ an apprentice or trainee; (g) any other matter prescribed by the regulations, and may have regard to any other matter the Commission considers relevant to the decision whether or not to declare the employer to be a prohibited employer. (3) A declaration under this section— (a) may be conditional or unconditional; (b) may be for a stated or indefinite period. (4) The Commission may, by notice in writing, vary or revoke a condition of a declaration. 54C—Revocation of declaration (1) The Commission may, by notice in writing on the application of a prohibited employer or on the Commission's own motion, revoke a declaration under section 54B if the Commission is satisfied that it is, in all of the circumstances, appropriate to do so. (b) must be accompanied by any information or documents required by the Commission; and 54D—Offence for prohibited employer to employ etc apprentice or trainee (1) A prohibited employer must not— (a) employ, or offer to employ, a person as an apprentice or trainee; or (b) train, or undertake to train, a person in a trade; or (c) train, or undertake to train, a person in a declared vocation under a training contract. (2) A prohibited employer must not permit an apprentice or trainee to be placed with the prohibited employer under a host employment arrangement. 54E—Offence to make certain false representations relating to prohibited employers (1) A prohibited employer must not falsely represent that they are not a prohibited employer. (2) A prohibited employer who is the subject of a conditional declaration under section 54B must not falsely represent that the declaration is, or is not, subject to a specified condition, or a condition of a specified kind. (3) A person must not falsely represent that— (a) another person is not a prohibited employer; or (b) a declaration under section 54B that another person is a prohibited employer is, or is not, subject to a specified condition, or a condition of a specified kind.