South Australian Skills Regulations 2021

The regulations introduce or elaborate several key concepts that operate within the apprenticeship and traineeship system. A declared trade and a declared vocation are occupations that the Commission has formally recognised by notice under section 6(2)(c) of the Act. Regulation 4 requires that such a notice must contain the full name of the trade or vocation and, where a relevant pathway is identified, any conditions attached to that pathway. This gives clarity to employers and training organisations about the scope of recognised occupations.

A training contract is the formal agreement between an employer and an apprentice or trainee that must be approved by the Commission. Regulation 6 sets out two mandatory refusal grounds: the trade or vocation is not declared, or the employer cannot provide the necessary facilities, range of work, supervision and training under a training plan. The training plan is the document that details how the apprenticeship or traineeship will be delivered. Regulation 14 specifies that a training plan must be prepared within 28 days after the nominated training organisation is appointed, or such longer time as the Commission allows.

The South Australian Skills Standards are instruments that set competency and supervision benchmarks. Regulation 5 requires the Commission, before preparing a Standard, to have regard to regulatory impact and compliance costs and to undertake consultation as it thinks fit. Before varying or reviewing a Standard, the Commission must consult the Department, relevant State and Federal bodies, and affected persons, unless exceptional circumstances exist. This gives the Standards some procedural legitimacy but leaves the Commission with wide discretion on what consultation is “fit”.

A prohibited employer is an employer declared as such under section 54B of the Act. Regulation 8 requires that before making such a declaration, the Commission must give written notice and allow 14 days (or longer) for the employer to make submissions against the declaration. The notice must state any conditions imposed and whether the prohibition is for a specified period or indefinite. Registration of employers under section 54F is conditional on satisfying employer supervision requirements set out in the Skills Standards (regulation 9). This ties registration directly to compliance with Standards that may be amended without the employer’s consent.

A nominated training organisation is the registered training organisation delivering the training. Regulation 15 requires it to notify the Commission of multiple matters: additional nominated organisations, employer non-compliance, health or safety risks to the apprentice, and adverse regulatory decisions by ASQA or TEQSA (suspension, cancellation, rejection of renewal, amendment of scope, imposition of conditions, or entry into an enforceable undertaking). This creates a proactive monitoring duty on training organisations that carries compliance costs and potential liability.

Corresponding laws are laws of other jurisdictions that are treated as equivalents for the purpose of recognising interstate training contracts. Regulation 10 lists the laws of New South Wales, Victoria, Queensland, the Northern Territory, the Australian Capital Territory, Tasmania, Western Australia, and the Commonwealth National Vocational Education and Training Regulator Act 2011. Regulation 7 allows the Commission to refuse to recognise an interstate training contract if there is no nominated training organisation, no training plan, the trade has no SA equivalent, or the proposed employer is unregistered, outside its registration scope, or has breached a condition of registration. The Commission must not recognise an interstate contract if the proposed employer is prohibited.

These regulations directly affect employers who take on apprentices or trainees, apprentices and trainees themselves, nominated training organisations (RTOs), host employers who provide workplace placements, supervisors of apprentices, and the South Australian Skills Commission as the administering body. They also affect corresponding bodies in other jurisdictions, ASQA, TEQSA, the National Centre for Vocational Education Research, the National Skills Commissioner, and state accreditation councils.

Employers bear the heaviest compliance burden. They must be registered under section 54F and satisfy employer supervision requirements set out in Skills Standards (regulation 9). They must keep detailed records: the training contract and plan, on-the-job training and competency assessments, attendance records (at workplace and training, specifying location), costs incurred by both parties, and records of transfer fee payments (regulation 12). They must notify the Commission if an apprentice fails to comply with section 54M(1) of the Act (regulation 11). They face the risk of being declared prohibited employers, which disqualifies them from employing apprentices or trainees entirely (regulation 8). The prohibition can be indefinite, with only a 14-day submission period before the declaration is made.

Nominated training organisations must prepare training plans within 28 days of nomination (regulation 14) and keep records including the training plan, employer contact details, meeting records showing progress or lack thereof, remedial actions, and supports provided (regulation 16). They must notify the Commission of additional nominated organisations, employer non-compliance, health/safety risks, and adverse ASQA/TEQSA decisions (regulation 15). This imposes ongoing monitoring and reporting duties that add to their administrative costs.

Host employers and supervisors are prescribed persons for compliance notices (regulation 17) and information requests (regulation 18). This means they can be directed by the Commission to provide information under section 70C of the Act, and non-compliance could lead to penalties under the Act. Host employers are not parties to the training contract but can still be drawn into enforcement actions.

Apprentices and trainees are indirectly affected. The regulations do not impose direct duties on them (except via the Act’s section 54M(1) referenced in regulation 11), but the quality of their training depends on employer compliance with record keeping and supervision requirements. They can apply for review of decisions such as the Commission’s refusal to allow a person under 15 to enter a training contract, or refusal to extend a probationary period (regulation 20).

The Commission must follow procedural steps before making declarations or Standards. These steps consume resources but also give the Commission substantial discretion. For example, it can determine “exceptional circumstances” to avoid consultation before varying a Standard (regulation 5(2)), and it can decide whether consultation is “fit” (regulation 5(1)(b)). The fee waiver discretion (regulation 13) gives the Commission flexibility but also introduces uncertainty for applicants.

Interstate and Commonwealth bodies listed in regulation 10 (corresponding laws) and regulation 19 (information sharing) are affected to the extent that South Australia recognises their decisions and shares information with them. The regulations facilitate mutual recognition but also allow the Commission to refuse recognition in several circumstances, creating potential friction for cross-border training arrangements.

Duties of employers are set out primarily in regulation 12 (record keeping) and regulation 9 (supervision compliance). An employer must keep the training contract and plan, on-the-job training and competency assessments, attendance records specifying location, costs incurred, and transfer fee records. Any additional records specified in Skills Standards must also be kept. The employer must notify the Commission of a prescribed matter: a failure by the apprentice to comply with section 54M(1) of the Act (regulation 11). The employer must satisfy supervision requirements in relevant Skills Standards as a condition of registration (regulation 9). These duties are ongoing and create a paper trail that can be inspected.

Duties of nominated training organisations are in regulations 15 and 16. They must notify the Commission of: multiple nominated organisations; becoming aware that an employer is not meeting obligations; becoming aware that the health or safety of an apprentice is at risk; and any adverse ASQA/TEQSA decision (suspension/cancellation of registration, cancellation of qualification, rejection of renewal, amendment of scope, imposition of conditions, or entry into an enforceable undertaking). They must keep records: the training plan for all apprentices; employer names and contact details; records of meetings with employers, apprentices and trainees, including progress, lack of progress, agreed remedial action, and supports provided. Any other records specified in Skills Standards must also be kept.

Duties of the Commission are procedural. Before preparing a Standard, it must have regard to regulatory impact and compliance costs and undertake consultation as it thinks fit (regulation 5(1)). Before varying or reviewing a Standard, it must consult the Department, relevant State and Federal bodies, and affected persons, unless exceptional circumstances exist (regulation 5(2)). Before declaring a prohibited employer, it must give written notice and allow at least 14 days for submissions (regulation 8(1)). It must refuse to approve a training contract if the trade is not declared or the employer cannot provide the necessary facilities and supervision (regulation 6). It must not recognise an interstate training contract if the proposed employer is prohibited (regulation 7(1)). It may refuse recognition in other specified circumstances (regulation 7(2)).

Rights for employers and others include: the right to make submissions before being declared a prohibited employer (regulation 8(1)(b)); the right to apply for waiver or reduction of the prescribed transfer fee if all parties agree, or if the previous employer cannot employ or provide scope of training (regulation 13(1)); the right to apply for waiver or reduction of certain fees under section 70A(2)(c) (regulation 13(2)); the right to seek review of decisions listed in regulation 20, including refusal of a training contract for a person under 15, refusal to extend a probationary period, and refusal to approve substitution of an employer. Note that these are the only prescribed reviewable decisions; many other Commission decisions (e.g., to refuse recognition of an interstate contract under regulation 7(2)) are not prescribed as reviewable under this regulation, though they may be reviewable under the Act’s general provisions.

The regulations themselves do not create monetary penalties; those are in the Act. However, the regulations support enforcement by specifying who can receive compliance notices and information requests, and by setting conditions that trigger adverse consequences. Regulation 17 prescribes host employers and supervisors as persons who can be served with a compliance notice under section 63(5)(c) of the Act. A compliance notice can direct a person to take specified action to comply with the Act or regulations, and failure to comply is an offence under the Act.

Regulation 18 prescribes additional persons from whom the Commission can require information under section 70C: a host employer, a former registered employer (defined as an employer whose registration has been suspended, cancelled, or expired within the six months before the notice), a supervisor, and an apprenticeship network provider. This gives the Commission broad investigative powers that extend beyond current parties to a training contract, potentially reaching back six months after an employer’s registration ends. The term “former registered employer” catches those who are no longer registered but may still have relevant information. Non-compliance with an information request is likely an offence under the Act.

The most direct penalty mechanism is the prohibited employer declaration under regulation 8. If the Commission, after giving notice and considering submissions, declares an employer prohibited, that employer cannot take on new apprentices or trainees. The declaration can be indefinite. This is a severe commercial consequence, effectively barring the employer from participating in the apprenticeship system. The 14-day submission period is relatively short for an employer to gather and present evidence, especially if the grounds for prohibition relate to systemic issues.

Employer registration under section 54F is conditional on satisfying supervision requirements in the Skills Standards (regulation 9). If an employer fails to comply, the Commission can suspend or cancel registration under the Act, which would prevent the employer from continuing existing training contracts (presumably subject to transition provisions in the Act). Similarly, a nominated training organisation that fails to comply with record-keeping or notification duties risks adverse regulatory action by ASQA or TEQSA, and the Commission may take that into account when approving training contracts.

Refusal to approve a training contract (regulation 6) is not a penalty per se but prevents the apprenticeship from commencing. The Commission’s opinion on whether the employer can provide necessary facilities and supervision is subjective and may be difficult for an employer to challenge except through the review mechanism for decisions under the Act (not all refusals are listed in regulation 20). The regulation does not prescribe objective criteria, leaving employers exposed to inconsistent decisions.

The regulations explicitly interact with the laws of other jurisdictions and with Commonwealth legislation. Regulation 10 declares eight laws as corresponding laws for the purposes of section 54G(7) of the Act, enabling mutual recognition of training contracts and employer registration across state and territory borders. This is critical for employers whose apprentices move between jurisdictions or who operate in multiple states. However, regulation 7 gives the Commission broad discretion to refuse to recognise an interstate training contract on grounds including absence of a declared trade equivalent, lack of a training plan, or the proposed employer’s non-compliance with registration conditions. This undermines the mutual recognition objective and can increase transaction costs for interstate transfers.

Regulation 19 authorises the Commission to disclose information received under section 70D to ASQA, the Department, the National Centre for Vocational Education Research, the National Skills Commissioner, the Victorian Registration and Qualifications Authority, TEQSA, and the Western Australian Training Accreditation Council. This facilitates data sharing and regulatory coordination but raises privacy concerns for employers and apprentices whose information may be shared without their consent. The regulation does not limit the purposes for which those bodies may use the information; it merely authorises disclosure.

The regulations also reference ASQA and TEQSA decisions as trigger events for notification duties (regulation 15(d) and (e)). This means that regulatory actions taken under the National Vocational Education and Training Regulator Act 2011 (Commonwealth) or the Tertiary Education Quality and Standards Agency Act 2011 (Commonwealth) have direct consequences for nominated training organisations operating under South Australian training contracts. A suspension or cancellation by ASQA or TEQSA must be reported to the Commission, which may then consider whether the training organisation can continue to fulfil its duties under existing training contracts.

The regulations revoke the Training and Skills Development Regulations 2008 (Schedule 1). Those regulations ceased to have effect from 1 July 2021. Any transitional arrangements are presumably in the Act itself, not in these regulations. There is no transitional provision in the text provided, which may create uncertainty for training contracts that were in place under the old regulations.

The Act itself is not reproduced, but the regulations repeatedly refer to specific sections. For example, regulation 11 refers to section 54K(1)(e) and 54M(1); regulation 13 refers to sections 54O and 70A(2)(c); regulation 14 refers to section 54Q(1), etc. A reader must cross-reference the Act to understand the full duties. The regulation on fee waiver (regulation 13) allows reduction of up to 20% or full waiver, potentially interacting with the Act’s fee-setting provisions. The Act may also contain merits review rights beyond those prescribed in regulation 20.

The regulations as provided are the principal regulations made in 2021 (Statutory Instrument 2021 No. 81) and commenced on 1 July 2021. The text does not include any subsequent amending regulations. The legislative history note directs readers to the Index of South Australian Statutes or www.legislation.sa.gov.au for further information, indicating that amendments may have been made after the text was compiled. Without access to that source, it is not possible to state the amendment history from the source alone. The only amendment noted in the text is the revocation of the 2008 regulations, which is a substantive replacement rather than an amendment to these regulations.

It is reasonable to assume that the regulations were drafted concurrently with the South Australian Skills Act 2008 (which was enacted earlier, as the Act is 2008, but the regulations are 2021). This suggests that the Act may have been significantly amended before these regulations were made, or that the Act came into force later. However, the source text does not provide amendment history for the Act. For the regulations, the source shows no amendments, and the original version remains as at commencement. Users should verify with the South Australian legislation database whether any later amendments have been made, as the text provided may be out of date.

The source text contains no references to any court or tribunal decisions. There is no litigation history embedded in the regulations themselves. It is not possible to infer any specific cases from the text. However, the regulations establish a framework that is likely to generate disputes, particularly around the exercise of Commission discretion. Potential areas of litigation include: refusal to approve a training contract under regulation 6(b), where the Commission must form an opinion about the employer’s ability to provide facilities and supervision; refusal to recognise an interstate training contract under regulation 7(2); declarations of prohibited employer status under regulation 8; and decisions listed as reviewable decisions in regulation 20, which may be challenged in the South Australian Employment Tribunal or the Supreme Court depending on the Act’s provisions.

The fee waiver discretion (regulation 13) is another potential source of challenge, as the Commission may refuse to waive or reduce fees even when one of the factual preconditions is met, because the regulation adds “and the Commission considers that it is otherwise appropriate.” This introduces a second discretionary step that is difficult to review on its merits. The limited list of reviewable decisions in regulation 20 means that many administrative decisions (e.g., refusal to accept a late training plan) may not be reviewable under this regulation, forcing parties to rely on the Act’s general review mechanisms or judicial review. Without access to the Act’s review provisions, the practical extent of review rights remains uncertain.

Several provisions contain traps that practitioners and employers should watch for. First, regulation 6(b) allows the Commission to refuse to approve a training contract if “in the opinion of the Commission, the employer is not 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.” This is a subjective test that gives the Commission wide latitude. An employer with a marginal training environment may be refused without objective benchmarks. The employer cannot rely on having satisfied the supervision requirements in the Skills Standards (regulation 9), because that is a separate registration requirement; the Commission could still form an adverse opinion about the employer’s ability to provide the “range of work.”

Second, regulation 7(2)(c) provides that the Commission may refuse to recognise an interstate training contract if the trade or vocation is not declared under the Act and does not have an equivalent declared trade or vocation. This creates a gap: even if the interstate training is for a legitimate occupation, if South Australia has not declared an equivalent, the transfer can be blocked. Employers bringing apprentices from other states should check that the occupation has a declared equivalent in SA.

Third, regulation 9 ties registration to compliance with employer supervision requirements set out in Skills Standards. The Standards themselves are not set out in the regulations; they are separate instruments that the Commission may amend with limited consultation (regulation 5(2)). An employer’s registration can therefore be undermined by changes to Standards that the employer had no meaningful opportunity to contest. The requirement that the Commission “unless the Commission determines that exceptional circumstances exist for not doing so” consult before varying a Standard leaves room for the Commission to bypass consultation in many cases.

Fourth, regulation 12(d) requires employers to keep records of “[c]osts incurred by the employer and the apprentice or trainee in relation to the training.” This is a burdensome requirement: it requires tracking not only the employer’s own costs but also costs incurred by the apprentice, which the employer may not know. The regulation does not specify how the employer should ascertain apprentice costs, nor does it provide a de minimis exception. Non-compliance could lead to a compliance notice or penalty.

Fifth, regulation 15(b) requires a nominated training organisation to notify the Commission if it “becomes aware that an employer is not meeting its obligations under the training contract or training plan.” This creates a duty to report that may conflict with the training organisation’s commercial relationship with the employer. The training organisation may become aware of non-compliance during routine monitoring and must decide whether to report, knowing that the Commission may take action against the employer, possibly jeopardising future enrolments. The same applies to health and safety risks (regulation 15(c)), though that is less ambiguous.

Sixth, regulation 13(2)(b) allows the Commission to reduce a fee payable under section 70A(2)(c) by only 20%, or waive it in full. There is no intermediate reduction. This all-or-nothing/20% structure is inflexible; a person who can afford to pay part of the fee but not the full amount may still have to pay 80% or find the full waiver. The Commission may be reluctant to grant full waiver in borderline cases.

Seventh, regulation 18(2) defines a “former registered employer” as someone whose registration has been suspended, cancelled, or expired within six months before the information notice. This means the Commission can demand information from an employer who has exited the system up to six months ago. The former employer may have destroyed records, believing they were no longer required, but the Commission’s request could compel them to recreate information. The regulation does not provide a defence if records were lawfully destroyed in accordance with the Act or other laws.

Eighth, regulation 20 prescribes only three decisions as reviewable: refusal of a training contract for a person under 15, refusal to extend the probationary period, and refusal to approve substitution of an employer. Many other decisions that affect employers and apprentices are not listed: refusal to approve a training contract for an adult apprentice, refusal to recognise an interstate contract, refusal to waive a fee, or the content of a compliance notice. If the Act does not independently provide for review of those decisions, parties may have no effective avenue to challenge them.

Employers must first ensure they are registered under section 54F of the Act and that their registration is current. Regulation 9 requires them to satisfy the employer supervision requirements set out in the relevant South Australian Skills Standards. This means the employer must know which Standards apply to their industry and occupation, and implement systems to meet those supervision benchmarks. Regular review of the Standards is necessary because they can be varied (regulation 5(2)).

When entering into a training contract, the employer must ensure that the trade or vocation is declared under the Act (regulation 6(a)). If it is not, the Commission must refuse approval. The employer must also be able to demonstrate that it can provide the facilities, range of work, supervision and training required under the training plan. Prudent employers should prepare documentation showing their training capacity before lodging the contract for approval.

Once the training contract is approved and a nominated training organisation is appointed, the employer must cooperate in the preparation of a training plan within 28 days (regulation 14). If the 28-day deadline cannot be met, the employer should apply to the Commission for an extension before the deadline expires, as the regulation says “such longer time as the Commission may allow in a particular case.” It is unclear whether late applications will be accepted.

Record keeping is a central compliance obligation. Regulation 12 requires the employer to retain the training contract and plan, on-the-job training and competency assessments, attendance records (specifying location of training), costs incurred by both employer and apprentice, and records of transfer fee payments. Additional records may be specified in Skills Standards. These records should be kept in a secure, accessible format and retained for the duration of the training contract plus any period required under the Act or Skills Standards. The employer should also maintain a system to track apprentice attendance at both workplace and off-site training, as the regulation requires the record to specify whether training occurred at the workplace or another specified location.

If the employer wishes to transfer the apprentice to a different employer, the employer must be aware that the Commission may require notice and possibly a transfer fee. Regulation 13 allows the Commission to waive or reduce the prescribed transfer fee if all parties agree, or if the previous employer cannot employ the apprentice or provide the necessary scope of training. Employers should document the reasons for the transfer and seek the agreement of all parties to support a fee waiver application.

Nominated training organisations must comply with regulation 15 notification duties. If there is more than one nominated training organisation, the additional organisation must be reported. If the training organisation becomes aware that the employer is not meeting its obligations or that the apprentice’s health or safety is at risk, it must promptly notify the Commission. The training organisation must also report any adverse ASQA or TEQSA decisions affecting its registration or scope of training. Record keeping under regulation 16 requires retention of the training plan, employer contact details, meeting records, and any other records specified in Skills Standards. Meetings with employers and apprentices should be documented promptly, noting progress, lack of progress, agreed remedial actions, and supports provided. These records may be requested by the Commission or used as evidence in disputes.

Both employers and training organisations should be prepared to respond to compliance notices (regulation 17) and information requests (regulation 18). Host employers, supervisors, former employers, and apprenticeship network providers can also be targeted. Anyone receiving a notice or request should seek legal advice promptly. The 14-day submission period for prohibited employer declarations is short; an employer who receives such a notice should immediately engage legal representation and gather evidence to show why the declaration should not be made.

For interstate transfers, the proposed employer must ensure that they are registered under section 54F and operating within the scope of their registration, and that the trade or vocation has a declared equivalent in South Australia (regulation 7). The Commission may refuse recognition on several grounds, so the employer should check all requirements before proceeding.

Finally, parties should keep a record of their attempts to comply, including correspondence with the Commission, training plans, attendance records, and financial records. In the event of a dispute or review application under regulation 20, contemporaneous records will be essential.