Part Part 1 - Training Guarantee (Administration) Act 1990 - PRELIMINARY | Zoe
23.
Directions by Minister for Finance
PART 3—ELIGIBLE TRAINING EXPENDITURE AND PROGRAMS
24.
Meaning of net eligible training expenditure
25.
Meaning of eligible training expenditure
26.
Examples of eligible training expenditure
27.
Meaning of eligible training program
28.
Election by employer for application of minimum allowable apprentice or trainee amount
29.
Election by employer in relation to approved entry-level training arrangement
30.
Guidelines by Minister in relation to eligible training programs
31.
Application of Part to training institutions
PART 4—TRAINING GUARANTEE FUND
32.
Establishment of Fund
33.
Payments into Fund
34.
Application of Fund
35.
Training guarantee agreements with States and Territories
36.
Failure to comply with training guarantee agreement
PART 5—ADMINISTRATION
37.
General administration of Act
38.
Annual report and financial statements
39.
Secrecy
PART 6—TRAINING GUARANTEE STATEMENTS AND ASSESSMENTS
Division 1—Training guarantee statements
40.
Annual training guarantee statements
41.
Other training guarantee statements
42.
Requirements for training guarantee statements
Division 2—Training advisory certificates
43.
Training advisory certificates given by registered industry training agent
44.
Training advisory certificates given by training advisory body
45.
Training advisory certificates binding on Commissioner
Division 3—Assessments
46.
First training guarantee statement for year taken to be assessment
47.
Default assessments
48.
Assessments where Commissioner has insufficient information
49.
Amendment of assessments
50.
Refund of overpaid amounts
51.
Amended assessment to be an assessment
52.
Notice of assessment
53.
Validity of assessment
TABLE OF PROVISIONS—continued
Section
PART 7—OBJECTIONS, REVIEWS AND APPEALS
Division 1—Objections to and review of assessments
54.
Objections
55.
Request for referral
56.
Applications for extension of time
57.
Consideration of applications for extension of time for lodging objections
58.
Consideration of applications for extension of time for lodging requests for referral
59.
Referral to Tribunal or Federal Court
60.
Procedure on review or appeal
Division 2—Review of training advisory certificate decisions
61.
Review of industry training agent’s refusal to give training advisory certificate
62.
Request for referral to Tribunal
63.
Applications for extension of time
64.
Consideration of applications for extension of time
65.
Referral to Tribunal
66.
Procedure on review
Division 3—Review or appeal generally
67.
Notice to refer
68.
Powers of Federal Court on appeal
69.
Implementation of decisions
70.
Pending review or appeal not to affect assessment
PART 8—COLLECTION AND RECOVERY OF CHARGE
71.
When training guarantee charge becomes due and payable
72.
When additional training guarantee charge becomes due and payable
73.
Employer leaving Australia
74.
Extension of time and payment by instalments
75.
Penalty for unpaid training guarantee charge
76.
Recovery of training guarantee charge
77.
Substituted service
78.
Liquidators
79.
Recovery of training guarantee charge from trustee of deceased employer
80.
Recovery of charge from unadministered deceased estates
81.
Commissioner may collect training guarantee charge from person owing money to person liable to training guarantee charge
82.
Public officer of company
83.
Public officer of trust estate
PART 9—PENALTY CHARGE
84.
Failure to provide statements or information
85.
False or misleading statements
86.
Penalty training guarantee charge where arrangement to avoid training guarantee charge
87.
Assessment of additional training guarantee charge
PART 10—REGISTRATION OF INDUSTRY TRAINING AGENTS
88.
Interpretation
89.
Register of industry training agents
90.
Application for registration of industry training agent
91.
Registration of industry training agents
92.
Registration subject to compliance with guidelines
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Training Guarantee (Administration) Act 1990
No. 60 of 1990
An Act relating to the establishment and administration of the Training Guarantee Scheme, and for other purposes
[Assented to 16 June 1990]
BE IT ENACTED by the Queen, and the Senate and the House of Representatives of the Commonwealth of Australia, as follows:
PART 1—PRELIMINARY
Short title
This Act may be cited as the Training Guarantee (Administration) Act 1990.
Commencement
(1) Subject to subsections (2) and (3), this Act commences on 1 July 1990.
(2) Section 43 and Part 10 commence on a day to be fixed by Proclamation.
(3) If section 43 and Part 10 do not commence under subsection (2) before 1 January 1991, they commence on that day.
Objects
(1) The principal objects of this Act are to increase, and improve the quality of, the employment related skills of the Australian workforce so that it works more productively, flexibly and safely, thereby increasing the efficiency and international competitiveness of Australian industry.
(2) Other objects of this Act include:
(a) improving the quality of employment related training provided by employers by encouraging the adoption of structured training; and
(b) encouraging further employer investment in employment related training; and
(c) ensuring a more equitable distribution of effort in relation to employment related training among employers; and
(d) accelerating change in industry perceptions of the value of employment related training.
(3) The objects of this Act are to be achieved by guaranteeing a minimum level of expenditure by employers on quality employment related training.
(4) It is the intention of the Parliament that this Act should be implemented in a manner that, as far as is consistent with the achievement of its objects, minimises the administrative burden on employers.
Interpretation—definitions
In this Act, unless the contrary intention appears:
“annual national payroll”, in relation to an employer and a year, means the aggregate of the salary or wages paid by the employer during the year:
(a) in Australia; or
(b) outside Australia in relation to services performed or rendered wholly in Australia;
“apprentice” means a person who is employed as an apprentice under an industrial instrument;
“arrangement” means, in section 19:
(a) an agreement, arrangement, understanding, promise or undertaking, whether express or implied, and whether or not enforceable, or intended to be enforceable, by legal proceedings; or
(b) any scheme, plan, proposal, action, course of action or course of conduct, whether unilateral or otherwise;
“assessment” means:
(a) the ascertainment of an employer’s training guarantee shortfall in a year and of the training guarantee charge payable on the shortfall; or
(b) the ascertainment of additional charge payable under Part 9;
“authorised officer” means an officer or employee within the meaning of the Public Service Act 1922 who has been authorised in writing by the Commissioner for the purposes of the provision in which the expression appears;
“AWE amount” has the meaning given by subsection 5 (2);
“building” includes a part of a building;
“Commissioner” means the Commissioner of Taxation;
“Commonwealth Department” means:
(a) a Department of State of the Commonwealth; or
(b) a Department of the Parliament; or
(c) a branch or part of the Australian Public Service in relation to the staff of which a person has, under an Act, the powers of, or exercisable by, a Secretary under the Public Service Act 1922;
“company” includes any body or association (whether incorporated or unincorporated), except a partnership;
“data processing device” means any article or material from which information is capable of being reproduced with or without the aid of any other article or device;
“depreciable property” means plant or articles within the meaning of section 54 of the Income Tax Assessment Act 1936;
“Deputy Commissioner” means a Deputy Commissioner of Taxation; “eligible training expenditure” has the meaning given by sections 25 and 26;
“eligible training program” has the meaning given by section 27;
“employee” means a person who receives, or is entitled to receive, salary or wages, and includes a person employed by:
(a) a State or Territory; or
(b) a State or Territory authority;
but does not include:
(c) an employee of a religious institution whose duties are solely or principally:
(i) pastoral duties; or
(ii) duties directly related to the practice, study, teaching or propagation of religious beliefs; or
(d) a person who is not a resident of Australia during the whole or a part of the year concerned; or
(e) a prescribed person;
“employer” means a person who pays, or is liable to pay, salary or wages, and includes:
(a) a State or Territory; and
(b) a State or Territory authority; and
(c) in the case of a partnership—each partner; and
(d) in the case of any other unincorporated association or body of persons—the manager or other principal officer of the association or body;
“employment related skill” includes a skill used, or that may be used, by a person in the course of:
(a) holding any office or appointment, performing any functions or duties, engaging in any work, or doing anything, that results in the person’s being an employee; and
(b) any business, occupation, profession or trade carried out by the person otherwise than as an employee;
“Federal Court” means the Federal Court of Australia;
“Fund” means the Training Guarantee Fund established by section 32;
“government body” means:
(a) the Commonwealth or a State or Territory; or
(b) a Commonwealth, State or Territory authority;
“higher education institution” has the same meaning as in the Employment, Education and Training Act 1988;
“indexation factor” has the meaning given by subsection 5 (1);
“industrial instrument” means:
(a) a Commonwealth, State or Territory law; or
(b) an award, order, determination or industrial agreement in force under any such law;
“liability to the Commonwealth” means a liability to the Commonwealth arising under an Act of which the Commissioner has the general administration;
“liquidator”, in relation to a company, means a person who, whether or not appointed as liquidator, is required by law to carry out the winding-up of a company;
“lodge” means lodge with the Commissioner;
“minimum allowable apprentice or trainee amount” has the meaning given by section 6;
“minimum training rate” has the meaning given by subsection 15 (2);
“minimum training requirement” has the meaning given by subsection 15 (1);
“Minister” means the Minister administering the Employment, Education and Training Act 1988;
“modifications” includes additions, omissions and substitutions;
“natural person” does not include a natural person in the capacity of trustee;
“net eligible training expenditure” has the meaning given by subsection 24 (1);
“offence against this Act” includes an offence relating to this Act against:
(a) the Crimes Act 1914; or
(b) the Taxation Administration Act 1953;
“person” includes:
(a) a body politic; and
(b) a body corporate; and
(c) a partnership; and
(d) any other unincorporated association or body of persons; and
(e) a person in the capacity of trustee;
“proceeding under this Act” includes:
(a) a proceeding for an offence against this Act; and
(b) a proceeding under the Taxation Administration Act 1953 relating to this Act;
“register of industry training agents” means the register kept under section 89;
“registered industry training agent” means a person specified in the register of industry training agents;
“reimbursement” includes:
(a) a donation or contribution; or
(b) a fee or charge;
but does not include a prescribed matter;
“remuneration”, in relation to a Commonwealth employee, means remuneration of the Commonwealth employee in his or her capacity as a Commonwealth employee;
“resident of Australia” has the meaning given by section 7;
“responsible Department”, in relation to a Commonwealth employee, means:
(a) if the employee’s remuneration is paid solely or principally out of money appropriated under an annual Appropriation Act— the Department in relation to which the money was appropriated; and
(b) if the employee’s remuneration is paid solely or principally out of money appropriated under an Act other than an annual Appropriation Act and:
(i) the employee performs his or her duties as a Commonwealth employee in, or in relation to, a Department—that Department; or
(ii) the employee does not perform his or her duties as a
Commonwealth employee in, or in relation to, a Department—the Department of State of the Commonwealth administered by the Minister who administers the Act under which that money was appropriated; and
(c) if the employee’s remuneration is paid solely or principally out of money appropriated by the Constitution—the Department of Administrative Services;
“salary or wages” means salary, wages, commission, bonuses or allowances paid (whether at piece-work rates or otherwise) to an employee in his or her capacity as an employee and includes, for example, a payment made:
(a) under a contract that is wholly or principally for the labour of the person to whom the payment is made if:
(i) the person making the payment is not a natural person; or
(ii) the payment is not wholly or principally of a private or domestic nature; and
(b) by a company by way of remuneration to a director of the company; and
(c) by way of commission to an insurance or time-payment canvasser or collector;
but does not include:
(d) fringe benefits within the meaning of the Fringe Benefits Tax Assessment Act 1986; or
(e) prescribed payments;
“school” has the same meaning as in the Employment, Education and Training Act 1988;
“Second Commissioner” means a Second Commissioner of Taxation;
“skill” includes competence and knowledge;
“structured training program” has the meaning given by subsection 27 (2);
“subsidy” means direct pecuniary aid provided by a government body, but does not include a prescribed matter;
“taxation officer” means a person exercising powers, or performing functions, under this Act;
“technical and further education institution” has the same meaning as in the Employment, Education and Training Act 1988;
“this Act” includes the regulations;
“threshold amount” has the meaning given by section 8;
“trainee” means a person who is a trainee under the Australian Traineeship System;
“training” includes instruction and closely supervised practice;
“training advisory body” means:
(a) in subsection 30 (4)—The National Training Board Ltd. or, if another person is prescribed for the purposes of this paragraph, that other person; or
(b) in any other provision of this Act—The National Training Board Ltd. or, if another person is prescribed for the purposes of this paragraph, that other person;
“training advisory certificate” means a certificate given under subsection (2), 44 (1) or (2) or 61 (2);
“training guarantee agreement” means an agreement under section 35;
“training guarantee charge” means charge imposed by the Training Guarantee Act 1990;
“training guarantee shortfall” has the meaning given by section 14;
“training guarantee statement” means a training guarantee statement lodged under Division 1 of Part 6;
“training institution” means:
(a) a higher education institution, a technical and further education institution or a school; or
(b) a person who conducts training for profit or reward; or
(c) a prescribed person;
“Tribunal” means the Administrative Appeals Tribunal;
“trustee” includes:
(a) a person appointed or constituted trustee by:
(i) act of parties; or
(ii) order or declaration of a court; or
(iii) operation of law; and
(b) an executor, administrator or other personal representative of a deceased person; and
(c) a guardian or committee; and
(d) a receiver or receiver and manager; and
(e) an official manager or liquidator of a company; and
(f) a person:
(i) having or taking upon himself or herself the administration or control of any real or personal property affected by any express or implied trust; or
(ii) acting in any fiduciary capacity; or
(iii) having the possession, control or management of any real or personal property of a person under any legal or other disability;
“year” means financial year.
Interpretation—meaning of “indexation factor”
(1) The indexation factor for a year is whichever is the greater of the following:
(a) 1;
(b) the number calculated (to 3 decimal places), in relation to the year, using the formula:
AWE amount for Marchquarter immediately precedingyear
÷
AWE amount for Marchquarter immediately precedingthat March quarter
(2) The AWE amount for a quarter is the estimate of the full-time adult average weekly total earnings for persons in Australia for the middle month of the quarter published by the Australian Statistician in relation to the month.
(3) If the Australian Statistician publishes an estimate of the fulltime adult average weekly total earnings for persons in Australia for a period for which such an estimate was previously published by the Australian Statistician, the publication of the later estimate is to be disregarded for the purposes of this section.
(4) If the number calculated for the purposes of paragraph (1) (b) in relation to a year would, if it were calculated to 4 decimal places, end with a number greater than 4, the number ascertained under that paragraph in relation to the year is to be taken to be the number calculated to 3 decimal places and increased by 0.001.
Interpretation—meaning of “minimum allowable apprentice or trainee amount”
The minimum allowable apprentice or trainee amount is:
(a) for the year commencing on 1 July 1990—$1,000; and
(b) for a later year—the amount calculated in relation to the year, using the formula:
minimum allowable apprentice ortrainee amount for immediatelypreceding year
×
indexation factor foryear
Interpretation—meaning of “resident of Australia”
For the purposes of this Act, a person is a resident of Australia during the whole or a part of a year if, during the whole or that part of the year:
(a) the person is a resident of Australia for the purposes of the Income Tax Assessment Act 1936 otherwise than because of subsection 7a (2) of that Act; or
(b) if the person is a company that is not incorporated in Australia but carries on business in Australia—the person would be a resident of Australia for the purposes of that Act otherwise than
because of that subsection if the words and has either its central management and control in Australia, or its voting power controlled by shareholders who are residents of Australia” were omitted from paragraph (b) of the definition of “resident” in subsection 6 (1) of that Act.
Interpretation—meaning of “threshold amount”
The threshold amount is:
(a) for the year commencing on 1 July 1990—$200,000; and
(b) for a later year—the amount calculated, in relation to the year, using the formula:
threshold amount for immediatelypreceding year
×
indexation factor foryear.
Act binds Crown
(1) This Act binds the Crown in right of the Commonwealth, each State, the Australian Capital Territory, the Northern Territory and Norfolk Island.
(2) Nothing in this Act permits the Crown to be prosecuted for an offence.