Div 4Compliance notices, misconduct, disputes and grievances

Division 4—Compliance notices, misconduct, disputes and grievances 63—Compliance notices (1) If it appears that a prescribed person has contravened a provision of this Act, a member of the Commission, or a person authorised by the Commission to exercise the powers conferred by this section, may issue a compliance notice requiring the prescribed person, within a period stated in the notice— (a) to take specified action to remedy the non‑compliance; and (b) to produce reasonable evidence of the prescribed person's compliance with the notice. (2) A prescribed person who fails to comply with a compliance notice within the time allowed in the notice is guilty of an offence. (3) The following applications may, within 14 days after the issue of a compliance notice under this section, be made to SAET under Part 3 Division 1 of the South Australian Employment Tribunal Act 2014 for a review of the notice: (a) a prescribed person may apply to SAET on the ground that the prescribed person has in fact complied with this Act; (b) an employee may apply to SAET on the ground that the prescribed person's failure to comply with this Act is more extensive than stated in the notice. (4) SAET may, at the conclusion of the review— (a) confirm the notice; or (b) confirm the notice with such modification as it thinks fit; or (c) cancel the notice. (5) In this section— prescribed person means— (a) an employer in relation to a training contract; or (b) a nominated training organisation for an apprentice or trainee; or (c) any other person, or class of persons, prescribed by the regulations. 64—Employer may suspend apprentice or trainee for serious misconduct (1) If an employer has reasonable grounds to believe that an apprentice or trainee employed by the employer is guilty of wilful and serious misconduct, the employer may (without first obtaining the approval of the Commission) suspend the apprentice or trainee from employment. (1a) If an employer suspends an apprentice or trainee from employment under subsection (1), the employer must, in accordance with any requirement set out in the South Australian Skills Standards— (a) as soon as is reasonably practicable— (i) refer the matter to the Commission for mediation; and (ii) notify SAET that the matter has been so referred; and (b) notify the apprentice or trainee that the matter has been so referred; and (c) comply with any other reasonable requirement of the Commission in relation to the mediation. (1b) If a matter is unable to be resolved by mediation under subsection (1a), the employer must, as soon as is reasonably practicable after the conclusion of the mediation (but in any event within 3 days), refer the matter to SAET for consideration. (1c) Despite section 65, a matter referred to the Commission for mediation cannot be considered by SAET until after the conclusion of the mediation. (2) Except where— (a) the employer and the trainee or apprentice agree to a longer suspension (whether in the course of mediation or otherwise); or (b) the Commission extends the suspension for a specified period (not being more than 3 days after the conclusion of the mediation); or (c) SAET confirms or extends the suspension under section 65, a suspension under this section will cease after 7 working days, unless cancelled sooner. (3) A referral to SAET under this section will be dealt with under Part 3 Division 1 of the South Australian Employment Tribunal Act 2014. 65—Other matters to be dealt with by SAET (1) If— (a) a dispute arises between parties to a training contract; or (b) a party to a training contract is aggrieved by the conduct of another party, a party to the contract may apply to SAET for consideration of the matter. (2) SAET may, if it thinks fit, by order, exercise 1 or more of the following powers in relation to a matter before SAET: (a) it may make recommendations to the Commission about the assessment of the skills of an apprentice or trainee and, if appropriate, the granting of an appropriate qualification under the AQF; (b) it may reprimand a party in default; (c) it may suspend the employment of an apprentice or trainee commencing on a date specified in the order; (d) it may confirm, extend (for a period not exceeding 4 weeks) or revoke a suspension imposed by an employer under section 64 and, in the event of revocation— (i) order the employer to pay any remuneration, or compensation for any non‑monetary benefit, to which the apprentice/trainee would, but for the suspension, have been entitled; and (ii) order the employer to treat the period of suspension as service for specified purposes; (e) it may extend or reduce the term of, or otherwise vary, a training contract; (f) it may terminate a training contract as at the date specified in the order; (fa) it may order an employer (including a substituted employer) to pay to another employer specified costs associated with the early termination of a training contract, where that termination occurs wholly or partly due to the use of a financial or other inducement or reward; (g) it may order an employer to pay any remuneration to which an apprentice/trainee is entitled; (h) it may order an employer to pay compensation for any breach of the training contract; (i) it may order a party to a training contract to take any other action that, in the opinion of SAET, the party is required to take under the contract or under this Part; (j) it may excuse a party to a training contract from performing 1 or more of his or her obligations under the contract; (k) it may order that, for the purpose of computing the period of training that has been served by an apprentice/trainee, a specified period or specified periods be excluded; (l) it may vary, suspend or cancel the registration of an employer granted by the Commission under this Part; (m) it may order an employer not to employ any apprentices or trainees in addition to those named in the order without the approval of SAET; (n) it may make any consequential orders that SAET thinks necessary or expedient. (2a) Despite subsection (2)(c), SAET may suspend the employment of an apprentice/trainee for a period exceeding 4 weeks if— (a) SAET is satisfied that the suspension is necessary having regard to the circumstances of the COVID-19 pandemic; and (b) the period of suspension will end on or before 1 January 2021. (3) The Commission may, without further inquiry, accept and act on any recommendation of SAET under this Division. (4) The term of a training contract must be computed and the contract must be construed and must apply in accordance with an order made by SAET under this Division. (5) The cancellation or suspension of the registration of an employer by SAET under this Division may relate to a particular apprentice or trainee or to all apprentices or trainees employed by the employer. (6) Notice must be given by SAET to the Commission of the outcome of any application or reference of a matter under this Division. (7) A person must not contravene an order of SAET under this Division. (8) An application to SAET under subsection (1) must be made during the term of the relevant training contract or within 6 months after the expiry, termination or cancellation of the relevant training contract. (9) SAET may extend the time within which any such application may be made. (9a) For the purposes of this section, a reference to a training contract will be taken to include a reference to a terminated or expired training contract. (9b) For the purposes of this section, a reference to an employer, apprentice or trainee will, in the case where a training contract has been terminated or expired, be taken to include a reference to a person who was, at a relevant time, an employer, apprentice or trainee (as the case requires). (10) In this section— party to a training contract or party includes a person who was formerly a party to a training contract. 66—Holding of compulsory conciliation conferences For the purposes of section 43 of the South Australian Employment Tribunal Act 2014, in relation to proceedings before SAET under this Division (other than applications for review of a compliance notice issued under section 63), parties are required to attend a compulsory conciliation conference. 67—Representation in proceedings before SAET (1) The following provisions govern representation in proceedings (other than appellate proceedings) before SAET under this Division: (a) a party to the proceedings that is a member of a registered association may be represented by an officer or employee of the registered association acting in the course of employment with that registered association; (b) a party to the proceedings that is a body corporate may be represented by an officer or employee of the body corporate; (ba) a party to the proceedings may be represented by a person appointed by the Commission to represent the party in such proceedings (however described); (c) a party to the proceedings may be represented by another person with leave of SAET if— (i) SAET is satisfied that the party will be disadvantaged if the party is not represented by another person; and (ii) the other person is acting gratuitously. (2) However, a person acting as a representative of a party under subsection (1) (other than a person referred to in paragraph (ba)) cannot be a legal practitioner or a registered agent. (3) In this section— registered agent means a person who is a registered agent under the Fair Work Act 1994; registered association means a registered association under the Fair Work Act 1994.