Vocational Education and Training Act 1990 · Vocational Education and Training Act 1990 ... Wage Award 19 9C. Functions of the Commission ... administration of vocational education

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Version No. 035

Vocational Education and Training Act 1990 Act No. 45/1990

Version incorporating amendments as at 1 March 2001

TABLE OF PROVISIONS

Section Page

PART 1—PRELIMINARY 1

1. Purposes 1 2. Commencement 2 3. Definitions 2 4. Objects 8

PART 2—CO-ORDINATION OF STATE TRAINING SYSTEM 11

Division 1—State Co-ordination 11

5. Ministerial guidelines 11 6. Ministerial directions 11 6A. Ministerial directions on employment matters 13 6B. Ministerial orders 14 7. Compliance with Ministerial guidelines and directions 15 8. Establishment of Victorian Learning and Employment Skills

Commission 15 9. Functions of the Commission 16 9A. Functions of the Commission in relation to ANTA 18 9B. Functions of the Commission under National Training

Wage Award 19 9C. Functions of the Commission under Commonwealth

Workplace Relations Act 1996 20 10. Performance agreements and financial powers 20 11. Powers of the Commission 21 12. Accountability 22 13. Member 23 14. Terms and conditions of office of member 24 15. Acting members 26 16. Validity of acts or decisions of the Commission 26 17. Repealed 26 18. Meetings of the Commission 27 19. Public service staff 27

Section Page

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20. Delegations 28 20AA. Power of further delegation—Workplace Relations Act 1996

of the Commonwealth 31 20A. Power of further delegation 31 20B. Delegations to approved training agents 32 21. Establishment of bodies to act as delegates of Commission 32 22. Immunity of Commission members from suit 33

Division 2—National System 34

22A. Conferral of functions on ANTA in relation to Victoria 34 22B. Powers of ANTA in Victoria 34 22C. Representations to funding bodies 34

PART 3—TAFE COLLEGES 36

23. TAFE colleges 36 24. Incorporation of TAFE college councils 37 25. Functions of TAFE college councils 39 26. Powers of TAFE college councils 41 27. Accountability of TAFE college councils 41 28. Council membership 42 29. Terms and conditions of office of members 43 29A. Repealed 44 30. Proceedings of councils 44 31. Reserve powers of Minister 45 32. Notice of proposal 46 33. Appointment of administrator 47 34. Saving of acts of council 48 34A. Employment of staff 48 34B. Minister may object to college director appointment 49 34C. Schedule 2 49 35. College directors 49 36. Immunity 50 37. Repealed 50

PART 4—INDUSTRY TRAINING BOARDS 51

38. Establishment or declaration of industry training boards 51 39. Orders establishing industry training boards 52 40. Revocation of orders 53 41. Functions of industry training boards 53 42. Powers of industry training boards 54 43. Members 54 44. Terms and conditions of office of members 54 44A. Proceedings of boards 55 45. Immunity of board members from suit 56 46–48. Repealed 56

Section Page

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PART 5—APPRENTICESHIPS 57

Division 1—Application of Part 57

49. Binding of Crown 57 50. Application of Part 57

Division 2—Training Schemes 58

51. Training schemes 58 52. Schedule 3 59

Division 3—Training Agreements 60

53. Employer must have Commission's approval to enter into a training agreement with an apprentice 60

54. Employer's obligations under a training agreement 61 55. Apprentice's obligations under a training agreement 62 56. General provisions about training agreements 62 57. Term of a training agreement 64 58. Cancellation, suspension or variation of a training agreement 64 59. Suspension or cancellation of a training agreement if

insufficient employment available 65 60. Commission to determine grievances in certain circumstances 66 61. Associations of employers may employ apprentices 67 62. Partnerships 67

Division 4—Miscellaneous 68

63. Register of apprentices 68 64. Subsidies 68

PART 6—Repealed 69

65–85. Repealed 69

PART 7—PRACTICAL PLACEMENT 70

86. Definitions 70 87. Practical placement agreements 70 88. Determination about the placement of post-secondary students 72 89. Repealed 72 90. Suspension of conditions for students 72 91. Exemption of practical placement from laws prohibiting or

regulating employment of young persons 73 91A. Duty of care 73

PART 7A—MINIMUM TERMS AND CONDITIONS 74

91AB. Rates of pay 74

Section Page

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PART 8—MISCELLANEOUS 76

91B. Authorised officers 76 91C. Identification 76 91D. Powers of authorised officers 76 92. Proceedings for offences 77 92A. Offences by corporations etc. 78 93. Evidentiary 79 93AA. Certificates 79 93A. Supreme Court—limitation of jurisdiction 80 94. Regulations 80 94A. Fees for certificates 80 94B. Review of decisions by training agents 80

PART 9—SAVINGS, REPEAL AND AMENDMENTS 82

Division 1—Savings Provisions 82

95. Abolition of authorities 82 96. Repealed 84 97. Trades, apprenticeships and training agreements 84

Division 2—Further savings provisions 85

98. Vocational Education and Training (Training Framework) Act 1997 85

99. Transitional provisions 86 100–106. Repealed 85

Divisions 3, 4—Repealed 86

107–120. Repealed 86 __________________

SCHEDULES 87

SCHEDULE 1—TAFE Institutions 88

SCHEDULE 2—Employment of staff 89

SCHEDULE 3—State training wage provisions 93 ═══════════════

ENDNOTES 97

1. General Information 97

2. Table of Amendments 98

Section Page

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3. Explanatory Details 104

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Version No. 035

Vocational Education and Training Act 1990 Act No. 45/1990

Version incorporating amendments as at 1 March 2001

The Parliament of Victoria enacts as follows:

PART 1—PRELIMINARY

1. Purposes

The main purposes of this Act are—

(a) to establish the Victorian Learning and Employment Skills Commission and to specify its powers and functions in the promotion, planning, co-ordination and administration of vocational education and training in Victoria and of adult, community and further education in TAFE colleges; and

(b) to provide for the establishment of TAFE colleges as self governing institutions forming part of the post-secondary education system in Victoria which includes vocational education and training and adult, community and further education; and

(c) to provide for the establishment or declaration of industry training boards; and

(d) to provide for the regulation of apprenticeships and other workplace training; and

S. 1(a) amended by Nos 91/1991 s. 43(a)(i), 97/2000 s. 41(Sch. 2 item 5.1).

S. 1(b) amended by No. 91/1991 s. 43(a)(ii).

S. 1(d) amended by Nos 62/1994 s. 31(1), 80/1997 s. 35(1).

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* * * * *

(f) to provide for and regulate the practical placements of students of TAFE providers so as to enable those students to obtain general work experience or to receive workplace training.

2. Commencement

This Act comes into operation on a day or days to be proclaimed.

3. Definitions

In this Act—

* * * * *

"adult, community and further education" has the same meaning as in the Adult, Community and Further Education Act 1991;

S. 1(e) amended by No. 62/1994 s. 60, repealed by No. 97/2000 s. 37(Sch. 1 item 3.1). S. 1(f) inserted by No. 62/1994 s. 60.

s. 2

S. 3 def. of "accredited course" inserted by No. 62/1994 s. 45(1), amended by No. 80/1997 s. 4(a), repealed by No. 97/2000 s. 37(Sch. 1 item 3.2).

S. 3 def. of "adult, community and further education" inserted by No. 91/1991 s. 43(b)(i).

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"Adult, Community and Further Education Board" means the Adult, Community and Further Education Board established under the Adult, Community and Further Education Act 1991;

"adult, community and further education plan" means the adult, community and further education plan made under the Adult, Community and Further Education Act 1991;

"ANTA" means the Australian National Training Authority established under the Australian National Training Authority Act 1992 of the Commonwealth;

"apprentice" means a person whom an employer has undertaken to train under a training agreement;

"approved training scheme" means a training scheme approved under section 51;

* * * * *

S. 3 def. of "Adult, Community and Further Education Board" inserted by No. 91/1991 s. 43(b)(i).

S. 3 def. of "adult, community and further education plan" inserted by No. 91/1991 s. 43(b)(i).

S. 3 def. of "ANTA" inserted by No. 62/1994 s. 11.

S. 3 def. of "apprentice" inserted by No. 62/1994 s. 45(1), amended by No. 80/1997 s. 4(b).

s. 3

S. 3 def. of "approved training scheme" inserted by No. 62/1994 s. 45(1).

S. 3 def. of "award" substituted by No. 83/1992 s. 184(Sch. 6 item 22.1), repealed by No. 82/1994 s. 13(Sch. 2 item 10.1).

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"Board" means the State Training Board established under Part 2;

"Commission" means the Victorian Learning and Employment Skills Commission;

* * * * *

* * * * *

* * * * *

* * * * *

S. 3 def. of "Commis-sion" inserted by No. 97/2000 s. 41(Sch. 2 item 5.2).

S. 3 def. of "Council of further education" repealed by No. 91/1991 s. 43(b)(ii).

S. 3 def. of "declared vocation" inserted by No. 62/1994 s. 45(1), repealed by No. 80/1997 s. 4(c).

S. 3 def. of "Defence Force" inserted by No. 62/1994 s. 42, repealed by No. 80/1997 s. 4(c).

S. 3 def. of "employment agreement" inserted by No. 106/1994 s. 4, repealed by No. 80/1997 s. 4(c).

s. 3

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"executive officer" means a member of the management staff of a TAFE college or the TAFE division of a university with a TAFE division;

"further education" means that part of technical and further education which is not vocational education and training and which is not provided or offered by a university or autonomous college;

"government office" means—

(a) an office under the Crown in right of the State of Victoria (not being an office in the public service or the teaching service) to which the right to appoint is vested in the Governor in Council; or

(b) an office of member, acting member or deputy member of a public statutory body whether corporate or unincorporate to which the right to appoint is vested in the Governor in Council;

"National standards" means standards agreed to from time to time by the governments of the Commonwealth, States and Territories;

"National Statement" means the statement set out in the Schedule to the Australian National Training Authority Act 1992 of the Commonwealth;

S. 3 def. of "executive officer" inserted by No. 14/1993 s. 4, amended by No. 62/1994 s. 23(1).

s. 3

S. 3 def. of "government office" amended by No. 62/1994 s. 78(a).

S. 3 def. of "National standards" inserted by No. 62/1994 s. 45(1).

S. 3 def. of "National Statement" inserted by No. 62/1994 s. 11, amended by No. 80/1997 s. 35(2).

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"prescribed" means prescribed by this Act or the regulations;

* * * * *

"registered training organisation" means a person or body registered under section 81 to deliver an accredited course or issue a recognised qualification;

"Regional Council" means a Regional Council of Adult, Community and Further Education, established under the Adult, Community and Further Education Act 1991;

* * * * *

* * * * *

s. 3

S. 3 def. of "recognised qualification" inserted by No. 80/1997 s. 4(d), repealed by No. 97/2000 s. 37(Sch. 1 item 3.2).

S. 3 def. of "registered training organisation" inserted by No. 80/1997 s. 4(d).

S. 3 def. of "Regional Council" inserted by No. 91/1991 s. 43(b)(iii).

S. 3 def. of "State Register of Accredited Courses" inserted by No. 62/1994 s. 45(1), repealed by No. 80/1997 s. 4(e).

S. 3 def. of "State Register of Accredited Courses and Recognised Qualificat-ions" inserted by No. 80/1997 s. 4(e), repealed by No. 97/2000 s. 37(Sch. 1 item 3.2).

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"TAFE" means technical and further education;

"TAFE college" means an institution specified in Schedule 1 but if an institution is also specified in Schedule 2 of the Tertiary Education Act 1993 means that part of the institution which provides technical and further education;

"TAFE institution" means a university, school, college or centre at or from which technical and further education is provided;

"technical and further education" has the same meaning as in the Tertiary Education Act 1993;

* * * * *

"training" means training whether by way of course, instruction or practical training in the knowledge and skills required for a vocation;

"university with a TAFE division" means the University of Ballarat, Royal Melbourne Institute of Technology, Swinburne University of Technology and Victoria University of Technology;

S. 3 def. of "TAFE college" amended by Nos 14/1993 s. 12(2)(a), 18/1993 s. 29(1)(b).

S. 3 def. of "technical and further education" substituted by No. 18/1993 s. 29(1)(a).

s. 3

S. 3 defs of "trade", "trainee" inserted by No. 62/1994 s. 45(1), repealed by No. 80/1997 s. 4(c).

S. 3 def. of "training" inserted by No. 62/1994 s. 45(1).

S. 3 def. of "university with a TAFE division" inserted by No. 62/1994 s. 21, amended by No. 79/1997 s. 19(1).

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"vocational education and training" means—

(a) that part of technical and further education which is directed to the development of skills in relation to a trade or vocation; and

(b) apprenticeships and other forms of training which are based in the workplace;

"vocational education and training course" means a sequence of vocational education and training.

4. Objects

The objects of this Act are—

(a) to establish a State Training System for the provision of vocational education and training responsive to the needs of industry and the community; and

(b) to establish institutions for the provision of TAFE as part of the system of State post-secondary education institutions; and

(c) to provide mechanisms by which industry can advise government on vocational education and training needs and priorities to meet those needs; and

(d) to provide mechanisms for consultation between the Commission and technical and further education providers and other bodies involved in technical and further education; and

S. 3 def. of "vocational education and training course" inserted by No. 62/1994 s. 45(1).

s. 4

S. 4(c) amended by No. 62/1994 s. 14(1).

S. 4(d) amended by No. 97/2000 s. 41(Sch. 2 item 5.3).

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* * * * *

* * * * *

(f) to facilitate the development of training by and within industry; and

(g) to promote the devolution and decentralisation of decision-making within the State Training System; and

* * * * *

(i) to ensure adequate access to vocational education and training and to the services and programs of TAFE colleges and TAFE institutions in general by disadvantaged persons and groups and to make provision for the equitable treatment of all individuals in the provision of services and programs by TAFE colleges and TAFE institutions; and

(ia) to ensure the provision of and access to adult, community and further education in TAFE colleges in accordance with the adult, community and further education plan; and

S. 4(e) amended by No. 62/1994 s. 44, repealed by No. 97/2000 s. 37(Sch. 1 item 3.3).

S. 4(ea) inserted by No. 80/1997 s. 5, repealed by No. 97/2000 s. 37(Sch. 1 item 3.3).

S. 4(h) repealed by No. 97/2000 s. 37(Sch. 1 item 3.3).

s. 4

S. 4(ia) inserted by No. 91/1991 s. 43(c).

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(j) to ensure adequate representation of women and men at all levels of the State Training System and on all bodies in the State Training System.

_______________

s. 4

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PART 2—CO-ORDINATION OF STATE TRAINING SYSTEM

Division 1—State Co-ordination

5. Ministerial guidelines

(1) The Minister, after consulting with or considering the advice of the Commission, may issue written guidelines on any matter relating to vocational education and training in Victoria or adult, community and further education in TAFE colleges.

(2) A guideline may be issued so as to require a matter affected by the guideline to be approved by or to the satisfaction of a specified person or body or a specified class of persons or bodies.

(3) A guideline takes effect—

(a) on and from the day specified in it; or

(b) if no day is specified, on and from the day on which the guideline is issued.

6. Ministerial directions

(1) The Minister, after consulting with or considering the advice of the Commission, may give written directions to—

Pt 2 (Heading) amended by No. 62/1994 s. 4.

Pt 2 Div. 1 (Heading) inserted by No. 62/1994 s. 9.

s. 5

S. 5(1) amended by Nos 91/1991 s. 43(d), 97/2000 s. 41(Sch. 2 item 5.3).

S. 5(2) amended by Nos 91/1991 s. 43(e)(i)(ii), 18/1993 s. 29(1)(c), substituted by No. 62/1994 s. 5.

S. 5(3) inserted by No. 62/1994 s. 5.

S. 6 amended by No. 62/1994 s. 6(1)(a)(b).

S. 6(1) amended by No. 97/2000 s. 41(Sch. 2 item 5.3).

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(aa) the council of a TAFE college; or

(ab) the council of a university with a TAFE division; or

(ac) an industry training board—

in relation to all or any of the following matters—

(a) the preparation, scope and form of performance agreements;

(b) the preparation, scope and form of management plans;

(c) the fees and charges which may or must be imposed and any concessions or exemptions which may or must apply to them;

(d) any action necessary to enable the State to comply with the terms of any agreement or arrangement made between it and the Commonwealth of Australia or any other State or Territory;

(e) the standard and general form of accounts and records to be kept by the council or board;

(f) the inspection of facilities, accounts and records of the council or board;

(g) in the case of a council of a TAFE college, as to whether the council may exercise any of the powers mentioned in section 26(2), the approvals which must be obtained before those powers are exercised and the

S. 6(1)(aa) inserted by No. 62/1994 s. 6(1)(b).

S. 6(1)(ab) inserted by No. 62/1994 s. 6(1)(b).

S. 6(1)(ac) inserted by No. 62/1994 s. 6(1)(b).

S. 6(1)(c) substituted by No. 62/1994 s. 6(1)(c).

s. 6

S. 6(1)(g) amended by No. 62/1994 s. 6(1)(d).

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conditions under which the powers are to be exercised;

(h) reporting requirements.

(2) The Minister's power to give directions to the council of a university with a TAFE division is limited to those matters referred to in sub-section (1) to the extent that they relate to the TAFE division of that university.

(3) A direction may be given so as to require a matter affected by the direction to be approved by or to the satisfaction of a specified person or body or a specified class of persons or bodies.

(4) A direction takes effect—


(b) if no day is specified, on and from the day on which it is given.

6A. Ministerial directions on employment matters

(1) The Minister may give written directions to—

(a) the council of a TAFE college; or

(b) the council of a university with a TAFE division—

about the employment of staff by the council or, in the case of a university, the employment of staff in the TAFE division of that university.

(2) Without limiting sub-section (1), a direction may make provision for or with respect to—

(a) staff redundancies including the number of staff to be made redundant within a specified period and the transfer of staff to another TAFE college or to the TAFE division of a university with a TAFE division;

S. 6(2) inserted by No. 62/1994 s. 6(2).

S. 6(3) inserted by No. 62/1994 s. 6(2).

S. 6(4) inserted by No. 62/1994 s. 6(2).

S. 6A inserted by No. 14/1993 s. 5.

s. 6A

S. 6A(1)(b) substituted by No. 62/1994 s. 23(2)(a).

S. 6A(2)(a) amended by No. 62/1994 s. 23(2)(b).

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(b) staff superannuation arrangements including the making of employer contributions;

(c) the method of accounting and payment between TAFE colleges and the universities with TAFE divisions in respect of accrued or accruing leave or other employment entitlements where a staff member transfers to another TAFE college or the TAFE division of a university with a TAFE division.

(3) A direction may be made so as to apply—

(a) generally or in specified cases or in a specified class of case or specified classes of cases;

(b) at all times or at a specified time or specified times.

(4) A direction may be made so as to require a matter affected by the direction to be approved by or to the satisfaction of a specified person or a specified class of persons.

(5) A direction takes effect—


(b) if no day is specified, on and from the day on which the direction is notified in the Government Gazette.

(6) The Minister must cause a direction to be published in the Government Gazette as soon as practicable after it is made.

6B. Ministerial orders

The Minister may make an order declaring a position or class of positions on the staff of a TAFE college or the TAFE division of a university with a TAFE division to be part of the

S. 6A(2)(c) amended by No. 62/1994 s. 23(2)(b)(c).

S. 6B inserted by No. 14/1993 s. 5, amended by No. 62/1994 s. 23(3).

s. 6B

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management staff of the TAFE college or TAFE division.

7. Compliance with Ministerial guidelines and directions

The council of a TAFE college or a university with a TAFE division and an industry training board must observe and give effect to any guideline issued under section 5 and any direction under section 6 or 6A applying to it when exercising its functions or powers under this Act.

8. Establishment of Victorian Learning and Employment Skills Commission

(1) There is established a Commission to be called the Victorian Learning and Employment Skills Commission.

(2) The Commission—

(a) is a body corporate with perpetual succession; and

(b) has a common seal; and

(c) may sue and be sued in its corporate name; and

(d) is capable of acquiring, holding, dealing with or disposing of property for the purpose of performing its functions and exercising its powers; and

(e) is capable of doing and suffering anything that a body corporate may by law do and suffer, and that is necessary or expedient for performing its functions and exercising its powers.

(3) The common seal must be kept as directed by the Commission and must only be used as authorised by the Commission.

(4) All courts must take judicial notice of the imprint

S. 7 amended by Nos 14/1993 s. 6, 62/1994 s. 6(3).

s. 7

S. 8(1) substituted by No. 97/2000 s. 38(1).



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of the common seal on a document and, until the contrary is proved, must presume that the document was properly sealed.

9. Functions of the Commission

(1) The functions of the Commission are—

(a) to advise the Minister about the development and implementation of policy frameworks for post compulsory education and training and employment in Victoria that will ensure high quality services and programs are provided to meet the needs of industry, government and individuals;

(ab) to advise the Minister about state wide planning for post compulsory education and training and employment;

(ac) to advise the Minister about emerging post compulsory education and training requirements of government, industry, the community and individuals;

(ad) to advise on the planning for the integration of post compulsory education and training and labour market programs;

(b) to advise the Minister about vocational education and training strategies to complement State and national economic and social development;

s. 9

S. 9(1) amended by No. 91/1991 s. 43(f)(i)–(viii), substituted by No. 62/1994 s. 7, amended by No. 97/2000 s. 41(Sch. 2 item 5.3).

S. 9(1)(a) substituted by No. 97/2000 s. 38(2)(a).

S. 9(1)(ab) inserted by No. 97/2000 s. 38(2)(a).

S. 9(1)(ac) inserted by No. 97/2000 s. 38(2)(a).

S. 9(1)(ad) inserted by No. 97/2000 s. 38(2)(a).

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(c) to identify major vocational education and training issues and make recommendations to the Minister about those issues;

(d) to provide for the delivery of post compulsory education and training in Victoria by education and training organisations registered under the Victorian Qualifications Authority Act 2000;

(da) to monitor the outcomes of post compulsory education and training for the broad purposes of economic and regional development, community and individual development and social justice;

(db) to support local learning and employment networks of providers and stakeholders in post compulsory education and training programs and services;

(e) to promote research in relation to vocational education and training;

(f) to advise the Minister about curriculum in vocational education and training;

(g) to advise the Minister about the effective spending of money made available for vocational education and training;

(h) to advise the Minister about the provision of adult, community and further education in TAFE colleges;

(i) to advise the Minister on any other matter that the Minister refers to the Commission;

(j) to carry out any other function that is conferred on the Commission by this or any other Act.

S. 9(1)(d) substituted by No. 97/2000 s. 38(2)(b).

s. 9

S. 9(1)(da) inserted by No. 97/2000 s. 38(2)(b).

S. 9(1)(db) inserted by No. 97/2000 s. 38(2)(b).

S. 9(1)(i) amended by No. 97/2000 s. 41(Sch. 2 item 5.3).

S. 9(1)(j) amended by No. 97/2000 s. 41(Sch. 2 item 5.3).

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(2) The Commission must—

(a) have regard to the whole of the functions conferred on councils of TAFE colleges by or under this Act; and

(b) establish systems to achieve co-operation between the Commission and the Adult, Community and Further Education Board in relation to, among other things, planning, curriculum development, accreditation, cross-crediting and linking of courses and recognition of prior learning for adult, community and further education;

(c) ensure that its actions are consistent with arrangements for the provision of adult, community and further education in Victoria; and

(d) give effect to the adult, community and further education plan—

in carrying out its functions.

9A. Functions of the Commission in relation to ANTA

(1) The Commission is the State training agency for Victoria under the National Statement.

(2) The functions of the Commission as the State training agency are—

(a) to provide data and advice to ANTA about the vocational education and training needs and priorities in Victoria and the funding implications of those needs and priorities;


S. 9(2)(b) substituted by No. 91/1991 s. 43(g)(i), amended by No. 97/2000 s. 41(Sch. 2 item 5.3).

S. 9(2)(c) amended by No. 91/1991 s. 43(g)(ii)(iii).

S. 9(2)(d) inserted by No. 91/1991 s. 43(g)(iii).


s. 9A

S. 9A(1) amended by No. 97/2000 s. 41(Sch. 2 item 5.3).


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(b) to advise ANTA about—

(i) the development of vocational education and training policy; and

(ii) the development of a National Strategic Plan for vocational education and training; and

(c) to develop for ANTA a State Training Profile having regard to—

(i) the planning parameters set by the Ministerial Council referred to in the National Statement; and

(ii) the National Strategic Plan referred to in that Statement;

(d) to ensure that vocational education and training in Victoria is managed and delivered having regard to the National Strategic Plan;

(e) to provide annual vocational education and training performance reports to ANTA;

(f) to perform any other function given to the Victorian State training agency under the National Statement.

(3) In this section "vocational education and training" includes adult, community and further education.

9B. Functions of the Commission under National Training Wage Award

(1) The Commission as the relevant State Training Authority may enter into an agreement with NETTFORCE as provided by the National Training Wage Interim Award 1994 made by the Australian Industrial Relations Commission as varied from time to time and may perform the

S. 9B inserted by No. 106/1994 s. 5.

s. 9B

S. 9B(1) amended by No. 97/2000 s. 41(Sch. 2 item 5.3).

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functions and exercise the powers given to it under any such agreement.

(2) In this section "NETTFORCE" means the body known as Nettforce Incorporated which is incorporated as an association under the Associations Incorporation Act 1991 of the Australian Capital Territory.

9C. Functions of the Commission under Commonwealth Workplace Relations Act 1996

If the Commission is declared an approving authority for the purposes of Part VIE of the Workplace Relations Act 1996 of the Commonwealth it may perform the functions and exercise the powers conferred on it by that Act.

10. Performance agreements and financial powers

(1) The Commission may enter into a performance agreement with a council of a TAFE college with respect to the provision by the college of vocational education and training or adult, community and further education.

(2) A performance agreement under sub-section (1) may contain, with the consent of the Minister and subject to any conditions imposed by the Minister, additional provisions with respect to the provision by the TAFE college of education other than vocational education and training or adult, community and further education.

(3) The Commission may enter into a performance agreement with an industry training board with respect to the board's functions under this Act.

S. 9C inserted by No. 80/1997 s. 6, amended by No. 97/2000 s. 41(Sch. 2 item 5.3).

s. 9C

S. 10(1) amended by Nos 91/1991 s. 43(h), 97/2000 s. 41(Sch. 2 item 5.3).

S. 10(2) amended by No. 91/1991 s. 43(i).


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(4) The Commission—

(a) may apply money for or towards the costs of or incidental to the performance of its functions and exercise of its powers under this Act; and

(b) may make payments to the council of a TAFE college in accordance with a performance agreement with the council; and

(c) may make payments to an industry training board in accordance with a performance agreement with the board; and

(d) may make payments by way of grants, subsidies or loans in relation to vocational education and training to any person, organisation or institution, whether public or private, on any terms or conditions that the Commission thinks fit.

(5) The Commission must cause to be kept proper accounts and records of all money applied or paid under sub-section (4).

(6) The accounts and records are to be kept in the form required by the Auditor-General.

(7) The accounts of the Commission kept under this section must be audited at least once a year by the Auditor-General, who has in respect of the accounts all the powers conferred on the Auditor-General by any law relating to the audit of public accounts.

11. Powers of the Commission

The Commission has power to do everything that is necessary or convenient for it to do for or in connection with the performance of its functions including any function delegated to it.

S. 10(4) amended by Nos 62/1994 s. 77(1), 97/2000 s. 41(Sch. 2 item 5.3).

S. 10(4)(d) amended by No. 97/2000 s. 41(Sch. 2 item 5.3).


S. 10(7) amended by Nos 93/1997 s. 28(Sch. item 33), 53/1999 s. 26(Sch. item 26), 97/2000 s. 41(Sch. 2 item 5.3).

S. 11 amended by No. 97/2000 s. 41(Sch. 2 item 5.3).

s. 11

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12. Accountability

(1) The Commission must perform its functions and exercise its powers subject to—

(a) any economic and social objectives and public sector management policy established from time to time by the Government of Victoria; and

(b) the general direction and control of the Minister; and

(c) in the case of the Board's functions and powers under sections 9A and 10, the specific direction and control of the Minister—

and in accordance with the objectives of the National Statement.

(2) The Commission must publish any written direction given to it during a financial year in its annual report for that year.

* * * * *

S. 12(1) amended by Nos 62/1994 s. 12(2), 97/2000 s. 41(Sch. 2 item 5.3).

s. 12

S. 12(1)(a) amended by No. 62/1994 s. 12(1).

S. 12(1)(b) amended by No. 62/1994 s. 12(2).

S. 12(1)(c) inserted by No. 62/1994 s. 12(2).


S. 12(3) repealed by No. 62/1994 s. 12(3).

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13. Member1

(1) The Commission consists of—

(a) a person appointed by the Governor in Council on the nomination of the Minister as Chairperson;

(b) the Chairperson of the Victorian Qualifications Authority established by the Victorian Qualifications Authority Act 2000 or his or her nominee;

(c) the Chairperson of the Adult, Community and Further Education Board established by the Adult, Community and Further Education Act 1991 or his or her nominee;

(d) the Secretary of the Department or his or her nominee;

(e) not more than five other members appointed by the Governor in Council on the nomination of the Minister.

(1A) The Minister must nominate a person to be Chairperson who, in the Minister's opinion, is experienced in industry or government.

(1B) In nominating other members, the Minister must have regard to—

(a) ensuring that the membership of the Commission includes at least 5 persons with knowledge of or experience in industry;

S. 13 amended by Nos 91/1991 s. 43(j)(i)(ii), 18/1993 s. 29(1)(d)(i)(ii), substituted by No. 62/1994 s. 13(1).

s. 13

S. 13(1) substituted by No. 97/2000 s. 39.

S. 13(1A) inserted by No. 97/2000 s. 39.

S. 13(1B) inserted by No. 97/2000 s. 39.

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(b) ensuring that the membership of the Commission includes persons who have backgrounds in vocational education and training and community development;

(c) ensuring that the composition of the Commission is a fair and balanced reflection of the diversity of the community;

(d) ensuring that the composition of the Commission reflects both metropolitan and country interests;

(e) ensuring that there is sufficient financial and management expertise on the Commission.

(2) The Public Sector Management and Employment Act 1998 does not apply to a member in respect of the office of member.

14. Terms and conditions of office of member

(1) A member holds office for the term, not exceeding 3 years, that is specified in the instrument of appointment, and is eligible for re-appointment.

(2) The office of a member becomes vacant if—

(a) the member becomes bankrupt; or

(b) the member is found guilty of an offence which is, or which would if committed in Victoria be, an indictable offence; or

(c) the member is absent from 3 consecutive meetings of the Commission without the leave of the Chairperson, or in the case of the Chairperson without the Minister's leave;

* * * * *

S. 13(2) amended by No. 46/1998 s. 7(Sch. 1).

s. 14

S. 14(2)(c) amended by Nos 42/1995 s. 224(Sch. 2 item 47(a)), 97/2000 s. 41(Sch. 2 item 5.3).

S. 14(2)(d) repealed by No. 42/1995 s. 224(Sch. 2 item 47(b)).

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(3) A member must in the exercise of his or her functions—

(a) act honestly; and

(b) exercise reasonable care and diligence; and

(c) not make improper use of any information acquired as a member of the Commission; and

(d) disclose to the Commission any conflict of interest or duties except those arising directly out of the person's qualification for membership of the Commission.

(4) A member may resign his or her office in writing delivered to the Governor in Council.

(5) The Governor in Council may remove or suspend a member from office.

(6) A member, other than a person who holds a full-time government office or a full-time office in the public service, teaching service or with a statutory authority and whose travelling and personal expenses are met through that office, is entitled to be paid—

(a) any remuneration that is specified in the instrument of appointment or that is fixed from time to time by the Governor in Council; and

(b) allowances for travelling and personal expenses at the rates and on the conditions applicable to officers of the public service.

(7) A member is appointed subject to any other terms and conditions that are specified in the instrument of appointment and that are not inconsistent with this Act.

S. 14(3)(c) amended by No. 97/2000 s. 41(Sch. 2 item 5.3).


s. 14

S. 14(6) amended by No. 62/1994 s. 78(b).

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15. Acting members

(1) If a member is unable to perform his or her duties or is absent from duty or there is a vacancy in the office of a member, the Minister may appoint a person whom the Minister considers suitable to act in the place of that member during that inability, absence or until the vacancy is filled or for any other period specified in the instrument of appointment.

(2) A person so appointed, while acting in the place of the member or during the vacancy in the office of a member—

(a) has all the powers and may perform all the functions of the member; and

(b) if the person does not hold a full-time government office or a full-time office in the public service, the teaching service or with a statutory authority, is entitled to be paid any remuneration and travelling or other allowances that the member would have been entitled to under section 14(6).

16. Validity of acts or decisions of the Commission

An act or decision of the Commission is not invalid only because—

(a) of a vacancy in the office of a member; or

(b) of a defect or irregularity in or in connection with the appointment of a member; or

(c) in the case of a presiding or acting member, the occasion for that person so presiding or acting had not arisen or had ceased.

* * * * *

s. 15

S. 15(1) amended by No. 80/1997 s. 35(3).

S. 15(2)(b) amended by No. 62/1994 s. 78(c).

S. 16 amended by No. 97/2000 s. 41(Sch. 2 item 5.3).

S. 17 repealed by No. 62/1994 s. 14(2).

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18. Meetings of the Commission

(1) The Chairperson must preside at any meeting of the Commission at which he or she is present.

(2) If the Chairperson is absent, a member elected by the members present at a Board meeting must preside.

(3) A majority of members in office at the time constitutes a quorum.

(4) A question arising at a Board meeting is determined by a majority of votes and, if the votes are equal, the person presiding has a casting vote.

(5) The Commission must meet at the times and places that are determined by the Chairperson or the Commission.

(5A) The Commission may permit members to participate in a particular meeting, or all meetings, by telephone, closed circuit television or other means of communication.

(6) The Commission must keep a record of the decisions and full and accurate minutes of its meetings and must not later than 14 days after a meeting give to the Minister a copy of the minutes of the meeting.

(7) Subject to this Act, the Commission may regulate its own proceedings.

19. Public service staff 2


s. 18



S. 18(5A) inserted by No. 62/1994 s. 36, amended by No. 97/2000 s. 41(Sch. 2 item 5.3).



S. 19 substituted by No. 62/1994 s. 15(1).

s. 19

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(1) A Director and any other employees that are necessary for the purposes of this Act may be employed under Part 3 of the Public Sector Management and Employment Act 1998.

(2) The Director is responsible for implementing any policy or decision of the Minister or the Commission made in accordance with this Act.

20. Delegations

(1) The Commission may, by instrument under its common seal, delegate to—

(a) a member of the Commission; or

(b) the council of a TAFE college or a university with a TAFE division; or

(c) an industry training board; or

(d) to the members of a training recognition board established under section 75; or

S. 19(1) substituted by No. 46/1998 s. 7(Sch. 1).


S. 20 amended by Nos 21/1990 s. 71(1), 91/1991 s. 43(k)(i)–(iv), 44/1992 s. 69(a)–(c), 45/1992 s. 65(a)–(c), 18/1993 s. 29(1)(e)(2), substituted by No. 62/1994 s. 17.


S. 20(1)(a) amended by No. 97/2000 s. 41(Sch. 2 item 5.3).

S. 20(1)(d) substituted by No. 80/1997 s. 7(1).

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29 AR-28/2/01

* * * * *

(f) the Director or an officer or employee appointed or employed under section 19; or

(g) the Adult Community and Further Education Board, the General Manager of that Board, the members of a further education recognition board established under section 13B of the Adult, Community and Further Education Act 1991 or an officer or employee appointed under section 25 of that Act—

any power or function of the Commission.

(2) The Commission may, by instrument under its common seal, delegate to a further education accreditation board established under section 13B of the Adult, Community and Further Education Act 1991 any power or function of the Commission under section 74.

(3) The Minister may, by instrument in writing, delegate to—

(a) the Commission or any member of the Commission; or

(b) the Director or an officer or employee appointed under section 19; or

(c) the council of a TAFE college or a university with a TAFE division; or

(d) the Adult, Community and Further Education Board, the General Manager of that Board or an officer or employee of the

S. 20(1)(e) repealed by No. 80/1997 s. 7(1).

S. 20(1)(g) amended by No. 80/1997 s. 7(2).

s. 20



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public service appointed under section 25 of the Adult, Community and Further Education Act 1991—

any of the Minister's powers or functions under this Act except this power of delegation and any powers or functions under sections 5, 6, 12(1)(b) or (c), 13 and 28.

(4) The Director may, by instrument in writing, delegate to—

(a) an officer or employee appointed under section 19; or

(b) the council of a TAFE college or a university with a TAFE division; or

(c) the Adult, Community and Further Education Board, the General Manager of that Board or an officer or employee of the public service appointed under section 25 of the Adult, Community and Further Education Act 1991—

any of the Director's powers or functions under this Act.

(5) Without limiting the generality of sub-section (1), the Commission may, by instrument under its common seal, delegate to a body established under section 4 of the Tertiary Education Act 1993 or section 13B or 31 of the Adult, Community and Further Education Act 1991 any of its powers and functions under section 74 or 85 in relation to a specified type of post-secondary education course or a specified type of post-secondary education.

(6) A delegation to an industry training board must not be made without the Minister's consent and must be published in the Government Gazette.

s. 20

S. 20(5) amended by Nos 80/1997 s. 7(3)(a)(b), 97/2000 s. 41(Sch. 2 item 5.3).

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(7) The Commission, the Minister or the Director may delegate a power or function even though the Commission, Minister or Director may only exercise the power or perform the function after receiving the report, recommendation, opinion or advice or after consulting the person to whom the power or function is delegated.

20AA. Power of further delegation—Workplace Relations Act 1996 of the Commonwealth

(1) Without limiting the powers of the Commission under section 20, the Commission may if so authorised by or under the Workplace Relations Act 1996 of the Commonwealth, by instrument under its common seal, further delegate any of the powers or functions referred to in section 9C to the Director or an officer or employee appointed or employed under section 19.

(2) Sections 42 and 42A of the Interpretation of Legislation Act 1984 apply to a further delegation authorised by this section in the same way as they apply to a delegation.

20A. Power of further delegation

(1) If a power or function has been delegated to the council of a TAFE college or a university with a TAFE division under section 20, that council may delegate the power or function to—

(a) any other person or body to whom that power or function may be delegated directly; and

(b) in the case of the council of a TAFE college, any person employed by the council under section 34A; and


S. 20AA inserted by No. 80/1997 s. 8.

s. 20AA

S. 20AA(1) amended by No. 97/2000 s. 41(Sch. 2 item 5.3).


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(c) in the case of a university with a TAFE division, any person employed on the staff of the university—

if the original instrument of delegation of that power or function authorised the making of a further delegation.

(2) An original instrument of delegation may specify any terms, conditions, limitations or restrictions on the making of a further delegation.

(3) Sections 42 and 42A of the Interpretation of Legislation Act 1984 apply to a sub-delegation authorised by this section in the same way as they apply to a delegation.

20B. Delegations to approved training agents

(1) Without limiting the powers of the Commission under section 20, the Commission may, by instrument under its common seal, delegate to any person or body appointed as an approved training agent any power or function of the Commission under section 53, 56(3), 57 and 59(2).

(2) The Governor in Council may, on the recommendation of the Minister by Order published in the Government Gazette, appoint any person or body to be an approved training agent for the purposes of this Act.

(3) The Commission must ensure that a copy of an instrument of delegation under this section is published in the Government Gazette as soon as practicable after its making.

21. Establishment of bodies to act as delegates of Commission


s. 20B

S. 20B(1) amended by Nos 80/1997 s. 9, 97/2000 s. 41(Sch. 2 item 5.3), 97/2000 s. 37(Sch. 1 item 3.4).


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(1) The Governor in Council may from time to time by Order establish a board, committee or other similar body to exercise any of the powers and functions of the Commission that are delegated to it under this section.

(2) The Governor in Council may in any Order made under sub-section (1) make any provision with respect to the terms and conditions of appointment of the members of the body and the procedure of the body as the Governor in Council thinks fit.

(3) The Commission with the consent of the Minister may, by instrument in writing, delegate to any body established under sub-section (1) any of its powers and functions (except this power of delegation).

(4) A body established under sub-section (1) may permit members to participate in a particular meeting, or all meetings, by telephone, closed circuit television or other means of communication.

22. Immunity of Commission members from suit

(1) An action does not lie against a member of the Commission for anything done, or not done, in good faith in the course of giving effect, or purporting to give effect to this Act.

(2) An action which would lie against a member of the Commission except for sub-section (1) may be brought against the Commission.


s. 21


S. 21(4) inserted by No. 62/1994 s. 37.



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Division 2—National System

22A. Conferral of functions on ANTA in relation to Victoria

ANTA has the functions, in relation to Victoria, that are expressed to be conferred on it by the Australian National Training Authority Act 1992 of the Commonwealth.

22B. Powers of ANTA in Victoria

(1) In Victoria, ANTA has power to do all things necessary or convenient to be done in the performance of the functions, and may exercise the powers, expressed to be conferred on it by—

(a) this Act; or

(b) the Australian National Training Authority Act 1992 of the Commonwealth; or

(c) the law of another State or Territory corresponding to this Act.

(2) This section is in addition to, and does not limit another law of the Commonwealth, a State or a Territory that confers power on ANTA.

22C. Representations to funding bodies

(1) The council of a TAFE college or of a university with a TAFE division must give the State Training Board at least 4 weeks notice before it makes any representations in writing to ANTA or any other body established under the law of the Commonwealth or of the law of the State of Victoria which is charged with the duty of allocating funds for vocational education and training or advising or making recommendations about the allocation of those funds to the

Pt 2 Div. 2 (Heading and ss 22A–22C) inserted by No. 62/1994 s. 10. S. 22A inserted by No. 62/1994 s. 10.

s. 22A


S. 22C inserted by No. 62/1994 s. 10.

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Commonwealth Parliament or the Commonwealth Government or the Parliament or the Government of the State of Victoria.

(2) If the Commission receives notice under sub-section (1) it may, within 4 weeks of receiving that notice, inform the council that the Commission wishes its views to be attached to those representations.

(3) If a council receives information from the Commission that the Commission wishes its views to be attached to the council's representations, the council must ensure that those views are attached unless—

(a) the Commission advises the council that it no longer wishes its views to be attached; or

(b) the Commission does not, within 4 weeks of informing the council under sub-section (2), supply the council with a written copy of its views.

_______________

S. 22C(2) amended by No. 97/2000 s. 41(Sch. 2 item 5.3).

S. 22C(3) amended by No. 97/2000 s. 41(Sch. 2 item 5.3).

S. 22C(3)(a) amended by No. 97/2000 s. 41(Sch. 2 item 5.3).

S. 22C(3)(b) amended by No. 97/2000 s. 41(Sch. 2 item 5.3).

s. 22C

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PART 3—TAFE COLLEGES

23. TAFE colleges

(1) The Governor in Council may, on the recommendation of the Minister, by Order published in the Government Gazette—

(a) create a TAFE college; or

(b) abolish a TAFE college; or

(c) amalgamate one or more TAFE colleges; or

(ca) if the council of a university with a TAFE division approves, merge a TAFE college with the university; or

(d) change the name of a TAFE college—

and amend Schedule 1 by—

(e) inserting the name of a new or amalgamated TAFE college; or

(f) removing the name of a TAFE college; or

(g) changing the name of a TAFE college.

(2) The Minister must not make a recommendation under sub-section (1) unless—

(a) the council or the governing body (if any) of any college or proposed college concerned has made a request for the proposed order or has been consulted about the proposed order; and

s. 23

S. 23(1) amended by Nos 44/1992 s. 69(d), 62/1994 s. 18(a), 85/1995 s. 10(a).

S. 23(1)(ca) inserted by No. 44/1992 s. 69(d), substituted by No. 62/1994 s. 22.

S. 23(2) amended by No. 62/1994 s. 18(b).

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(b) the Minister has consulted the Commission about the proposed order.

(3) If an Order in Council changes the name of a college pursuant to sub-section (1)—

(a) the college continues in existence under the new name so that its identity is not affected; and

(b) in an Act, in a subordinate instrument made under an Act or in any other document a reference to a college under the former name shall, except in relation to matters that occurred before the change of name, be construed as a reference to the college under the new name.

24. Incorporation of TAFE college councils

(1) The Governor in Council may, on the recommendation of the Minister by Order—

(a) establish a council to oversee and manage a TAFE college; or

(b) amalgamate a council with another council; or

(c) abolish a council; or

(d) change the name of a council; or

(e) make provision or further provision for or with respect to the constitution, management structure, membership, objectives, powers, duties or functions of a council, the manner of appointment or the terms and conditions of appointment of members of a council; or

S. 23(2)(b) substituted by No. 62/1994 s. 18(c), amended by No. 97/2000 s. 41(Sch. 2 item 5.3).

s. 24

S. 24(1) amended by No. 62/1994 s. 18(a).

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(f) make provision for the council to make rules for the government of the college; or

(g) make provision for the council to delegate any of its powers and functions under this Act (except any powers delegated to it under this Act) to a person employed at the college or to a committee established by or under an Order in Council relating to the council;

(h) amend any provision of a previous order relating to a council; or

(i) make provision for or with respect to anything that is consequential upon the making of an order including the rights and obligations or the assignment of any property (subject to any trusts) of any council referred to in the Order.

(2) The Minister must not make a recommendation under sub-section (1) unless—

(a) the council of any college concerned has made a request for the proposed Order or has been consulted about the proposed Order; and

(b) the Minister has consulted the Commission about the proposed order.

(3) A council established under sub-section (1)—



S. 24(1)(f) amended by No. 62/1994 s. 82(a).

S. 24(2) amended by No. 62/1994 s. 18(b).

S. 24(2)(b) substituted by No. 62/1994 s. 18(c), amended by No. 97/2000 s. 41(Sch. 2 item 5.3).

s. 24

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(d) is capable of acquiring, holding, dealing with or disposing of property for the purpose of performing its functions and exercising its powers; and

(e) is capable of doing and suffering anything that a body corporate may by law do and suffer and that is necessary or expedient for performing its functions and exercising its powers.

(4) If two or more councils previously incorporated pursuant to this Act or the Post-Secondary Education Act 1978 or the Tertiary Education Act 1993 are amalgamated pursuant to an Order under sub-section (1), any legal proceedings that might have been commenced or continued by or against any of the councils may be commenced or continued by or against the single council formed by the amalgamation.

(5) A change of name pursuant to an Order under sub-section (1) does not affect the identity of the council or any rights or obligations of the council or render defective any legal proceedings by or against the council, and any legal proceedings that might have been continued or commenced by or against it by its former name may be continued by or against it by its new name.

25. Functions of TAFE college councils

(1) The functions of the council of a college are—

(a) to oversee and manage the college efficiently and effectively and to prepare periodic management plans for the college; and

(b) to provide the population of the area served by the college with efficient and effective

S. 24(4) amended by No. 18/1993 s. 29(1)(f).

s. 25

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technical and further education programs and services responsive to the needs of industry, students and the general community; and

(ba) to provide the population of the area served by the college with efficient and effective adult, community and further education programs and services which are responsive to the needs of the community and to consult with the relevant Regional Councils about the provision of these programs and services; and

(c) to make adequate arrangements for persons and groups which have not had or do not have adequate access to technical and further education programs and services; and

(d) to carry out any other function conferred on the council by or under this Act or any Order in Council made under section 24.

(2) Without limiting the generality of sub-section (1) the council may carry out all or any of the following functions—

(a) provide facilities or services for study, research or education;

(b) undertake research, development, counselling or other services for commercial organizations;

(c) aid or engage in the development or promotion of college research or the application or use of the results of that research;

(d) prepare, publish or distribute or license the use of literary or artistic work, audio or audio-visual material or computer software;

(e) seek or encourage gifts to the college or for college purposes;

S. 25(1)(ba) inserted by No. 91/1991 s. 43(l).

s. 25

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(f) promote or assist drama, music or the visual arts.

26. Powers of TAFE college councils

(1) A council has power to do all things that are necessary or convenient to be done for or in connection with or, as incidental to, the performance of its functions including any function delegated to it.

(2) Without limiting the generality of sub-section (1) a council, for the purpose of carrying out its functions under section 25(2), may—

(a) be a member of a company, association trust or partnership;

(b) form or participate in the formation of a company, association, trust or partnership;

(c) enter into a joint venture with another person or persons.

27. Accountability of TAFE college councils

(1) A council must perform its functions and exercise its powers subject to—

(a) a performance agreement; and

(b) any economic and social objectives established from time to time by the Government of Victoria; and

(c) any Order in Council made under section 24; and

(d) any other requirements of this Act.

(2) A council must establish and keep full and complete books and accounts of all money received and paid by the council and must arrange for a continuous audit of the income and expenditure to be made at any intervals not exceeding one month that the Minister directs.

s. 26

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(3) The books and accounts referred to in sub-section (2) must be kept in the form and manner approved by the Auditor-General.

28. Council membership3

(1) An Order in Council under section 24 must provide for a council consisting of not less than 9 and not more than 15 persons of whom—

(a) not less than one half must be appointed by the Minister;

(b) one must be a staff member of the college elected by staff of the college;

(c) one must be a student of the college elected by students of the college;

(d) one must be the director of the college;

(e) the remaining members must be persons with knowledge of or experience in the community or any industry served by the college or in adult, community and further education or with special skills or knowledge relevant to the council appointed by the council by co-option.

(2) At least half the members referred to in sub-section (1)(a) must be persons with knowledge of or experience in any industry in which training is provided in the college, appointed by the Minister after considering the advice of the members of the council who have been appointed.

(3) A person who is a member of Parliament must not be appointed or elected to be a member of a council.

(4) A person holding office as a member of a council immediately before the commencement of the Vocational Education and Training (Council

S. 28 amended by No. 91/1991 s. 43(m), substituted by No. 62/1994 s. 19(1).

s. 28

S. 28(3) inserted by No. 25/2000 s. 3.

S. 28(4) inserted by No. 25/2000 s. 3.

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43 AR-28/2/01

Membership) Act 2000 who was on that date a member of Parliament ceases to hold office as a member of the council.

29. Terms and conditions of office of members

(1) The office of a member becomes vacant if—



(c) the member is absent from 3 consecutive meetings of the council without the leave of the Chairperson; or

(d) the member becomes a represented person within the meaning of the Guardianship and Administration Act 1986.

(2) A member must in the exercise of his or her functions—



(c) not make improper use of any information acquired as a member of a council; and

(d) disclose to the council any conflict of interest or duties except those arising directly out of the person's qualification for membership of a council.

(3) The Governor in Council may remove a member appointed by the Minister under section 28(1)(a) from office at any time.

(4) The Governor in Council may remove a member elected or appointed to the council under section 28(1)(b), (c) or (e)—

s. 29


S. 29(3) amended by No. 62/1994 s. 20(a)(i)(ii).

S. 29(4) amended by No. 62/1994 s. 20(b).

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(a) on the recommendation of two thirds of the members for the time being of the council; or

(b) on the recommendation of the Commission.

(5) The Commission must not make a recommendation under sub-section (4)(b) unless—

(a) the Commission has requested the council to recommend the removal of a member and the council has not made a recommendation within 30 days of the request; and

(b) the Commission is satisfied that the member failed to comply with any requirement of sub-section (2); and

(c) the Commission has given the member an opportunity to submit an explanation in relation to the alleged failure.

* * * * *

30. Proceedings of councils

(1) Subject to this Act and any Order in Council made under section 24 relating to a college, the council of the college may regulate its own proceedings.

S. 29(4)(b) amended by No. 97/2000 s. 41(Sch. 2 item 5.3).





S. 29A inserted by No. 62/1994 s. 35, repealed by No. 25/2000 s. 4.

S. 30 amended by No. 62/1994 s. 38(a).

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(2) The council of a college may permit members to participate in a particular meeting, or all meetings, by telephone, closed circuit television or other means of communication.

31. Reserve powers of Minister

(1) If the Minister is satisfied that the council of a college—

(a) is inefficiently or incompetently managing the college; or

(b) is failing to comply with its performance agreement; or

(c) has failed to comply with any provision of this Act, a guideline issued by the Minister under Part 2 or any directions given to the council by the Minister under this Part or an Order in Council establishing the council—

the Minister may do any one or more of the following—

(d) issue written directions to the council about—

(i) action to be taken to remedy inefficient or incompetent management, which may include the dismissal of the college director; or

(ii) compliance with a performance agreement; or

(iii) compliance with the Act, guidelines, directions or an Order in Council;

(e) censure the council in accordance with section 32;

(f) recommend that the Governor in Council dismiss the members of the council and appoint new members of the council and

S. 30(2) inserted by No. 62/1994 s. 38(b).

s. 31

S. 31(1)(c) amended by No. 14/1993 s. 7(1)(a).

S. 31(1)(d)(i) amended by No. 14/1993 s. 7(1)(b).

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make arrangements for the elections for elected members of the council; or

(g) recommend to the Governor in Council that an administrator of the college be appointed in accordance with sections 32 and 33.

(2) If the Minister is satisfied that a council has failed to comply with a direction given under sub-section (1)(d) the Minister may do any one or more of the things specified in sub-section (1)(e), (f) and (g).

32. Notice of proposal

(1) If the Minister proposes to exercise his or her powers under section 31, the Minister—

(a) must give the council notice in writing of the proposal and the reasons for the proposal; and

(b) must consider any submissions whether oral or in writing made to the Minister by the council within 7 days after the giving of the notice or any further time specified in the notice; and

(c) may consider any other submissions and any matters the Minister considers appropriate—

before deciding whether or not to exercise the power.

(2) If the Minister decides to censure or dismiss a council or appoint an administrator to the council, the Minister must—

(a) give notice in writing of the censure, dismissal or appointment to the council; and

(b) cause to be tabled in each House of Parliament within 7 sitting days of the House after the notice is given to the council—

S. 31(2) amended by No. 14/1993 s. 7(2).

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(i) a copy of the notice; and

(ii) a report of the circumstances leading to the action; and

(iii) a copy of any written submission made by the council.

33. Appointment of administrator

(1) If the Minister decides to recommend the appointment of an administrator, the Governor in Council, on the recommendation of the Minister, may appoint an administrator of the college for the period and subject to the terms and conditions that are specified in the appointment.

(2) An administrator of a college appointed under this section has and may exercise all the powers and is subject to all the duties of the council of the college and the director of the college.

(3) On the appointment of an administrator, the members of the council of the college cease to hold office.

(4) The Minister must review the appointment of an administrator within 12 months after the appointment.

(5) If the Minister recommends to the Governor in Council that the appointment of the administrator should be revoked, the Governor in Council may by notice published in the Government Gazette declare that the appointment will be revoked on the date specified in the notice, being a date not less than 28 days after the publication of the notice.

(6) If a notice is published under sub-section (5) in relation to a college—

s. 33

S. 33(2) amended by No. 14/1993 s. 8.

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(a) members of the council of the college shall be elected or appointed in accordance with this Part; and

(b) on the date specified in the notice—

(i) the appointment of the administrator is revoked; and

(ii) the council of the college is re-established.

34. Saving of acts of council

Nothing done by a council is in any way abated or affected by the dismissal of the council or the appointment of an administrator under section 32 or 33.

34A. Employment of staff

(1) Subject to any direction given by the Minister under section 6A, a council—

(a) must employ a college director; and

(b) may employ such other staff as is necessary to enable the council to perform its functions and exercise its powers.

(2) A council, in employing persons under this section, does not represent the Crown.

(3) The college director must be taken to be the employer, for the purposes of the provisions of Schedule 2 relating to contracts of employment and for no other purpose, of any person employed under sub-section (1)(b).

(4) A college director is subject to the direction and control of the council in the exercise of his or her powers as an employer for the purposes referred to in sub-section (3).

(5) A council may, by instrument under its common seal, delegate to the college director any power of

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the council under this section, other than this power of delegation.

34B. Minister may object to college director appointment

(1) Before appointing a person as a college director a council must notify the Minister in writing of the proposal to make the appointment.

(2) The Minister may, within 10 days after receiving that notification and after considering the council's proposal, give to the council notice in writing of his or her objection to the proposed appointment.

(3) A council must not appoint a person as a college director if the Minister has objected to the appointment in accordance with sub-section (2).

34C. Schedule 2

(1) Schedule 2 applies to the employment of staff at a TAFE college or in the TAFE division of a university with a TAFE division.

(2) A council may determine terms and conditions of employment of persons employed under section 34A to the extent that those terms and conditions are not determined or agreed in accordance with Schedule 2.

(3) A provision determined under sub-section (2) is of no effect to the extent that it provides a term and condition of employment that is less favourable to an employee than a term or condition to which he or she was entitled under section 19, 20 or 21 of the Vocational Education and Training (College Employment) Act 1993.

35. College directors

A college director—


s. 34B

S. 34C inserted by No. 14/1993 s. 10.

S. 34C(1) amended by No. 62/1994 s. 23(4).

S. 35 amended by No. 14/1993 s. 11.

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(a) is the chief executive officer of the council; and

(b) is responsible for the day to day administration and management of the college in accordance with any policies or directions of the council of the college and with the requirements of this Act;

(c) must satisfy the council that—

(i) funds are spent; and

(ii) staff are carrying out functions; and

(iii) the college is generally managed and administered—

in accordance with the requirements of this Act.

36. Immunity

(1) An action does not lie against a member of a council established by Order in Council under section 24 for anything done, or not done in good faith in the course of giving effect, or purporting to give effect to the provisions of this Part except section 26(2).

(2) An action which would lie against a member of a council except for sub-section (1) may be brought against the council.

* * * * *

_______________

s. 36

S. 37 amended by Nos 44/1992 s. 69(e), 45/1992 s. 65(d), 14/1993 s. 9, 62/1994 s. 75, repealed by No. 79/1997 s. 19(2).

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PART 4—INDUSTRY TRAINING BOARDS

38. Establishment or declaration of industry training boards

(1) On the recommendation of the Minister, the Governor in Council may by Order published in the Government Gazette—

(a) establish an industry training board; or

(b) declare any association incorporated under the Associations Incorporation Act 1981 or any company within the meaning of the Corporations Law to be an industry training board—

in respect of the industry specified in the Order.

(2) In determining whether to make a recommendation under sub-section (1) about the declaration of an association or a company the Minister must consult with the Commission and consider—

(a) whether the functions, objects, purposes or powers of the association or company are similar to the functions set out in section 41 and the powers set out in section 42; and

(b) whether the membership of the governing body of the association or company includes persons with experience in the various aspects of the industry specified in the order including backgrounds as employers and as employees.

s. 38

S. 38(1) amended by No. 62/1994 s. 27(1)(a).

S. 38(1)(b) amended by No. 62/1994 s. 82(b).

S. 38(2) amended by Nos 62/1994 s. 27(1)(b), 97/2000 s. 41(Sch. 2 item 5.3).

S. 38(2)(b) substituted by No. 62/1994 s. 27(1)(c).

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39. Orders establishing industry training boards

(1) An Order in Council under section 38(1)(a) may make provision for or with respect to the constitution, management structure, membership or objectives of a board or the manner of appointment or the terms and conditions of appointment of members of a board.

(2) An industry training board established under section 38(1)(a)—




(d) is capable of acquiring, holding, dealing with or disposing of property for the purpose of performing its functions or exercising its powers; and

(e) is capable of doing and suffering anything that a body corporate may by law do and suffer and that is necessary or expedient for performing its functions and exercising its powers.

(3) The common seal of an industry training board established under section 38(1)(a) must be kept as directed by that board and must only be used as authorised by that board.

(4) All courts must take judicial notice of the imprint of the common seal on a document and, until the contrary is proved, must presume that the document was properly sealed.

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40. Revocation of orders

(1) The Governor in Council may by Order published in the Government Gazette—

(a) abolish an industry training board established under section 38(1)(a); or

(b) revoke any declaration under section 38(1)(b) in respect of an industry training board; or

(c) make any provision for any matter consequential upon the making of an order under paragraph (a) or (b).

(2) Without limiting the generality of sub-section (1)(c) an Order abolishing a board may provide for the distribution of the assets of the abolished board to another board established under section 38(1)(a).

41. Functions of industry training boards

(1) The functions of an industry training board established under section 38(1)(a) are—

(a) within the national and state strategic framework, to prepare quality training plans detailing industry skill requirements, the quantity and types of training needed by industry and training arrangements;

(b) to promote training within the industry;

(c) to liaise with or participate on national industry training advisory bodies;

(d) to participate in accreditation and recognition processes.

(2) An Order in Council under section 38(1)(a) may confer any additional functions on the industry training board established by the Order.

s. 40

S. 40(1) amended by No. 62/1994 s. 27(2).

S. 41(1) amended by No. 91/1991 s. 43(n), substituted by No. 62/1994 s. 28.

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(3) The Governor in Council may at any time by Order published in the Government Gazette confer any additional functions on an industry training board or amend any of the functions conferred on the board by Order in Council.

42. Powers of industry training boards

An industry training board established under section 38(1)(a) has power to do everything that is necessary or convenient for it to do for or in connection with the performance of the functions including any function delegated to it.

43. Members

(1) An industry training board established under section 38(1)(a) consists of the number of members that is fixed by the Order in Council establishing the board.

(2) Members of a board established under section 38(1)(a) are to be appointed by the Governor in Council on the recommendation of the Minister.

(3) The Minister must, in recommending members for appointment to a board established under section 38(1)(a), endeavour to ensure that the board has a membership of persons with experience in the various aspects of the industry specified in the order including backgrounds as employers and employees.

44. Terms and conditions of office of members

(1) A member of a board established under section 38(1)(a) holds office for a term not exceeding 3 years and is eligible for re-appointment.

(2) The office of a member of a board established under section 38(1)(a) becomes vacant if—


S. 41(3) amended by No. 62/1994 s. 27(2).

s. 42

S. 43(2) amended by No. 62/1994 s. 27(3).


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(c) the member is absent from 3 consecutive meetings of the Board without the Chairperson's leave; or

(d) the member becomes a represented person within the meaning of the Guardianship and Administration Act 1986.

(3) A member of a board established under section 38(1)(a) must in the exercise of his or her functions—



(c) not make improper use of any information acquired as a member of an industry training board; and

(d) disclose any conflict of interest or duties to the industry training board.

(4) The Minister may at any time remove a member of an industry training board established under section 38(1)(a) from office.

44A. Proceedings of boards

(1) Subject to this Act and any Order in Council made under section 38(1)(a), a board established under section 38(1)(a) may regulate its own proceedings.

(2) A board may permit members to participate in a particular meeting or all meetings, by telephone, closed circuit television or other means of communication.


S. 44(4) amended by No. 62/1994 s. 27(5).


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45. Immunity of board members from suit

(1) An action does not lie against a member of a board established under section 38(1)(a) for anything done, or not done, in good faith in the course of giving effect or purporting to give effect to this Act.

(2) An action which would lie against a member of a board except for sub-section (1) may be brought against the board.

_______________

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PART 5—APPRENTICESHIPS

Division 1—Application of Part

49. Binding of Crown

This Part binds the Crown, not only in right of the State of Victoria but also, so far as the legislative power of Parliament permits, the Crown in all its other capacities.

50. Application of Part

Sections 58(1), 59(2), (3) and (4), 60(1)(d) and 62 do not apply to, or in relation to, a vocation if the Commission makes a determination under section 51, that those provisions do not apply to the vocation specified in the determination.

Pt 5 (Heading and ss 46–72) amended by Nos 83/1992 s. 184(Sch. 6 items 22.2, 22.3), 62/1994 ss 29, 30(1), 31(2)–(8), 32, 33, 34, 69, 71(2), 73(2), 77(2), 79, 82(c), 82/1994 s. 13(Sch. 2 items 10.2–10.4), 106/1994 ss 6–8, 85/1995 ss 4–7, 35/1996 s. 453(Sch. 1 item 88), 59/1996 s. 10(Sch. 2 items 24.2–24.4), substituted as Pt 5 (Headings and ss 49–64) by No. 80/1997 s. 10. S. 49 substituted by No. 80/1997 s. 10.

s. 49

S. 50 substituted by No. 80/1997 s. 10, amended by No. 97/2000 s. 41(Sch. 2 item 5.3).

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Division 2—Training Schemes

51. Training schemes

(1) The Commission may determine that a specified training scheme is an approved training scheme.

(2) A determination under sub-section (1) may provide for all or any of the following matters—

(a) whether the vocation is one to which sections 58(1), 59(2), (3) and (4), 60(1)(d) and 62 do not apply;

(b) the duration of an approved training scheme by reference to a fixed period or a maximum or minimum period;

(c) whether any apprentice may be engaged as a full time or part time employee;

(d) any requirement for a probationary period and, if so, its length;

(e) the nature and syllabus of the training scheme and any course of study, instruction or practical or workplace training comprising the content of that scheme;

(f) the requirements as to age, education, experience or any other matter to be satisfied by a person wishing to undertake the training scheme;

(g) the standards of skill and knowledge required to adequately perform the activities or tasks of the vocation which are to be obtained by an apprentice undertaking the training scheme;

S. 51 substituted by No. 80/1997 s. 10.

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(h) the credit to be given in the training scheme for any qualifications, training or experience that an apprentice undertaking the training scheme has prior to entry to that scheme.

(3) A determination may be made so as to apply, adopt or incorporate any matter contained in any document issued or published by any person or body.

(4) The Commission must cause a notice to be published in the Government Gazette of the making of a determination and setting out where copies of the approved training scheme can be obtained.

52. Schedule 3

(1) Schedule 3 has effect.

(2) A provision of a training agreement or an employment agreement or any other contract of employment to which an apprentice is a party is of no effect to the extent that it provides a term or condition of employment that is less favourable to the apprentice than one applicable under Schedule 3.

(3) An employer must not enter into, or purport to enter into a training agreement or an employment agreement or any other contract of employment with an apprentice that provides a term or condition of employment that is less favourable to the apprentice than one applicable under clause 6(1) of Schedule 3.

Penalty: 100 penalty units.

(4) If a training agreement or an employment agreement or any other contract of employment to which an apprentice is a party does not at any time comply with a term or condition of employment applicable under clause 6(1) of Schedule 3, it



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must then, for the purposes of section 160 of the Long Service Leave Act 1992, be taken to have effect as if it did.

(5) A training agreement or an employment agreement or any other contract of employment entered into by an employer in contravention of sub-section (3) is not, for that reason only, illegal, void or unenforceable.

Division 3—Training Agreements

53. Employer must have Commission's approval to enter into a training agreement with an apprentice

(1) An employer must not employ a person under a training agreement unless the employer is approved by the Commission to do so.

Penalty: in the case of a natural person, 10 penalty units, or, in the case of a body corporate, 50 penalty units.

(2) In determining whether to approve an employer to employ a person under a training agreement the Commission must have regard to the employer's ability to comply with the training agreement and without limiting the generality of the foregoing to all or any of the following matters—

(a) the premises in which the person is to be employed;

(b) the equipment and methods to be used in training;

(c) whether any person whom the employer uses or proposes to use for the purpose of supervising the training of an apprentice under a training agreement—


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(i) has the appropriate qualifications, knowledge and skill for that purpose; and

(ii) is otherwise a fit and proper person for that purpose;

(d) whether the employer is a fit and proper person for employing an apprentice.

(3) An approval under sub-section (1) may be given subject to conditions—

(a) limiting the number of apprentices that the employer may have in the employer's employment at any one time; and

(b) as to any other matters that the Commission thinks fit.

(4) The Commission may revoke an approval at any time and in any circumstances including those where a condition of the approval is breached.

54. Employer's obligations under a training agreement

(1) An employer who employs an apprentice under a training agreement—

(a) must ensure that the apprentice is trained in accordance with an approved training scheme; and

(b) must allow the apprentice to comply with the approved training scheme without hindrance if that scheme or any part of that scheme is conducted during normal working hours.

Penalty: For a natural person, 10 penalty units.

For a body corporate, 50 penalty units.




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(2) If an apprentice under a training agreement attends a vocational education and training course provided by a registered training organisation in accordance with an approved training scheme during normal working hours, that attendance shall be deemed to be attendance at work for the purposes of any employment agreement or any other contract of employment.

55. Apprentice's obligations under a training agreement

An apprentice's obligations under a training agreement include the obligation to comply with the requirements of the approved training scheme.

56. General provisions about training agreements

(1) A training agreement must be in the form, and contain the particulars, approved by the Commission and must include an outline of the training to be provided to the apprentice.

(2) The parties to a training agreement are the employer, the apprentice and, if the apprentice is under 18 years, the parent or guardian of the apprentice.

(3) If an apprentice has no parent or guardian or no parent or guardian resident in Victoria and capable of acting, the Commission may approve a person to act instead of the parent or guardian.

(4) If an apprentice is under the age of 18 years and the Commission is satisfied that it is in the interests of the employer and the apprentice, the Commission may consent to the training agreement being executed by the employer and the apprentice only.


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(5) The Commission must endorse its consent under sub-section (4) on the original training agreement and the endorsement has the effect of dispensing with the necessity of there being a parent or guardian as a party to the training agreement.

(6) The employer must arrange for—

(a) the training agreement to be executed by the parties and lodged with the Commission or a person or body nominated by the Commission within 14 days after the date of execution of the training agreement; and

(b) a copy of the training agreement to be given to the apprentice within 14 days after the date of execution of the training agreement; and

(c) the apprentice to be enrolled in a vocational education and training course provided by a registered training organisation, as required by the approved training scheme, within 3 months after the date of commencement of the training agreement; and

(d) an outline of the training to be signed by—

(i) the employer;

(ii) the apprentice; and

(iii) the registered training organisation;

(e) a copy of the outline of the training referred to in paragraph (d) to be lodged with the Commission, a person or body nominated by the Commission or an approved training agent within 3 months after the date of commencement of the training agreement.



s. 56

S. 56(6)(e) amended by No. 97/2000 s. 41(Sch. 2 item 5.3).

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57. Term of a training agreement

(1) The Commission may determine the term or terms or fix minimum or maximum terms of training agreements for any vocation or for any specified training agreement.

(2) If the Commission is satisfied that an apprentice has the knowledge and skills required under a training agreement it may reduce the term of the agreement.

(3) If the Commission is satisfied that an apprentice does not have the knowledge and skills required under a training agreement it may extend the term of the agreement.

58. Cancellation, suspension or variation of a training agreement

(1) The parties to a training agreement may by mutual consent—

(a) cancel the training agreement; or

(b) suspend the training agreement; or

(c) vary the provisions of the training agreement.

(2) The Commission may at any time order the cancellation or suspension of a training agreement if it is of the opinion that special circumstances make the cancellation or suspension desirable.

(3) The powers of the Commission under sub-section (2) are in addition to any other powers of the Commission under this Part.


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59. Suspension or cancellation of a training agreement if insufficient employment available

(1) If an employer is temporarily unable to provide sufficient work to keep an apprentice fully employed under a training agreement during any working week or month, the employer may—

(a) reduce the time of employment of the apprentice in the week or month; and

(b) reduce the wages of the apprentice in proportion to the reduction of the time of his or her employment in the week or month.

(2) If an employer cannot provide sufficient employment for an apprentice employed by the employer under a training agreement because of lack of business or financial difficulties the Commission may, on the application of the employer—

(a) order the suspension of the training agreement for any period that the Commission thinks fit; or

(b) order the cancellation of the training agreement.

(3) The Commission must not make an order unless it is satisfied after due inquiry that the circumstances warrant the making of an order.

(4) Nothing in this section limits the powers of the employer to stand down an apprentice under a provision of the apprentice's training agreement for the standing-down of apprentices who cannot usefully be employed because of any strike, breakdown of machinery or any stoppage of work for any cause for which the employer cannot reasonably be held responsible or the deduction of payment for any part of a day during which the apprentice is stood down.


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60. Commission to determine grievances in certain circumstances

(1) The Commission may determine any question or difference arising between an employer and an apprentice about—

(a) the training agreement or anything contained in the training agreement; or

(b) the construction or operation of the training agreement; or

(c) the rights, duties and liabilities of the employer or apprentice under the training agreement; or

(d) the dismissal or threatened dismissal of an apprentice if the apprentice believes that the dismissal or threatened dismissal is harsh, unjust or unreasonable.

(2) The Commission must not determine any question or difference about whether money is or is not due by an employer to an apprentice.

(3) The Commission must enquire into any matter referred to it under this section and it may—

(a) cancel, suspend or vary the training agreement; or

(b) order all or any parties to a training agreement to perform all or specified obligations or duties under or related to the agreement; or

(c) make any consequential orders that it thinks fit;

(d) make any other order it thinks fit.


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(4) A party to a proceeding before the Commission under this section is not entitled to legal representation.

(5) A person must not contravene any order made by the Commission under this section.


61. Associations of employers may employ apprentices

(1) An association of employers may enter into a training agreement with a person.

(2) The members of an association of employers that is not a body corporate must appoint one of their members who—

(a) is to be treated as the employer of the apprentice for the purposes of this Act; and

(b) must execute the training agreement on behalf of the association; and

(c) is responsible for complying with this Act and the regulations.

62. Partnerships

(1) If a person has entered into a training agreement with partners, the training agreement is not determined by reason only of the death or retirement of any of those partners but is to be treated as being assigned to the surviving or continuing partner or partners.

(2) Upon the transmission of the business or any part of the business of an employer, the training agreement of an apprentice in any vocation which may form part of the business transmitted is to be treated as being assigned to the person to whom the business is being transmitted.




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(3) In this section "transmission" includes transfer, conveyance, assignment or succession whether by agreement or operation of law.

Division 4—Miscellaneous

63. Register of apprentices

The Commission must establish and maintain a register of apprentices who have entered into training agreements which have been lodged under section 56.

64. Subsidies

The Commission may cause to be paid to an apprentice a subsidy towards the costs incurred in attending a vocational education and training course required by the training scheme and conducted by a registered training organisation at a place remote from the apprentice's home or place of work.

_______________


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* * * * *

_______________

Pt 6 (Headings and ss 73–85) amended by Nos 52/1992 s. 19, 18/1993 ss 30–32 (as amended by No. 59/1994 s. 10), 62/1994 ss 29(1), 40, 41, 43, 45(2), 46, 47(1), 48–55, 70, 80, 85/1995 s. 10(b), 9/1997 s. 14, 80/1997 ss 11–23, 52/1998 s. 311(Sch. 1 items 104.2–104.4), repealed by No. 97/2000 s. 37(Sch. 1 item 3.5).

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PART 7—PRACTICAL PLACEMENT

86. Definitions

In this Part—

* * * * *

"employer" includes a department of the Commonwealth Government or a body established under a Commonwealth Act;

"law" includes an employment agreement and any provision which restricts the employment of persons who are not apprentices;

"post-secondary student" means a student who is enrolled in a post-secondary education course of a TAFE provider;

"TAFE provider" means a body registered under section 81 or section 13D of the Adult, Community and Further Education Act 1991.

87. Practical placement agreements

(1) A post-secondary student of a TAFE provider may be placed with an employer for work experience or training if the governing body of the TAFE

Pt 7 (Heading and ss 86–91) substituted as Pt 7 (Heading and ss 86–91A) by No. 62/1994 s. 59.


s. 86

S. 86 def. of "disabled student" repealed by No. 80/1997 s. 24(a).

S. 86 def. of "law" amended by Nos 82/1994 s. 13(Sch. 2 item 10.5), 25/2000 s. 5(a).

S. 86 def. of "TAFE provider" substituted by No. 80/1997 s. 24(b).


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provider has entered into an agreement with the employer about the placement of that student.

(2) An agreement—

(a) must be in writing; and

(b) may be varied or amended by another agreement; and

(c) must be consistent with any determination of the Commission about placements of that kind; and

(d) may be cancelled at any time by notice in writing—

(i) given by the employer to the governing body; or

(ii) given by the governing body to the employer.

(3) The Governor in Council may, by Order published in the Government Gazette, fix a rate of payment for students employed under an agreement referred to in sub-section (1).

(4) A student employed under an agreement referred to in sub-section (1) is entitled to receive payment at the rate of payment that is fixed by Order of the Governor in Council.

(5) The minimum rate of payment payable to a student employed under an agreement referred to in sub-section (1), despite anything to the contrary in any Act or law, is the minimum rate of payment as fixed by Order of the Governor in Council.

(6) A department of the Commonwealth government or a body established pursuant to a Commonwealth Act that employs a student under an agreement referred to in sub-section (1) is not required to make any payment to the student,


s. 87

S. 87(3) inserted by No. 80/1997 s. 25.

S. 87(4) inserted by No. 80/1997 s. 25.

S. 87(5) inserted by No. 80/1997 s. 25.

S. 87(6) inserted by No. 80/1997 s. 25.

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despite anything to the contrary in this or in any other Act or in any law or training agreement.

(7) For the purposes of the Accident Compensation Act 1985, a student employed under an agreement referred to in sub-section (1) is deemed to be paid the minimum rate of payment as fixed by Order of the Governor in Council.

88. Determination about the placement of post-secondary students

(1) The Commission may make a determination about the placement of post-secondary students or any class of post-secondary students with employers for work experience or training.

(2) The determination may—

(a) fix the period of the placements to which the determination relates; and

(b) specify the number of students any employer or class of employers may take; and

(c) specify that the Commission retain the power to cancel or vary any placement; and

(d) specify any other conditions which are to apply to those placements.

* * * * *

90. Suspension of conditions for students

S. 87(7) inserted by No. 80/1997 s. 25.


s. 88


S. 88(2)(a) amended by No. 25/2000 s. 5(b).


S. 89 substituted by No. 62/1994 s. 59, repealed by No. 80/1997 s. 26.

S. 90 substituted by Nos 62/1994 s. 59, 80/1997 s. 27.

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(1) The Commission may suspend the operation of all or any of the provisions of this Part for any student or class of students.

(2) A suspension under sub-section (1) may operate for a specified time or indefinitely.

91. Exemption of practical placement from laws prohibiting or regulating employment of young persons

(1) Any Act or law relating to the prohibition of or regulation of the employment of persons of or over the age of 15 years and under the age of 21 years does not apply to the employment of such a person who is—

(a) a student of a TAFE provider; and

(b) employed under an agreement.

(2) If any Act or law prohibits the employment or regulates the working conditions in any specified trade of persons of less than or not more than a specified age expressed as a number of years then sub-section (1) is not to be taken to permit the employment of any person contrary to that Act or law.

91A. Duty of care

(1) A duty which any person has relating to the care or control of a student of a TAFE provider as a student of that provider is to be taken not to apply while that student is employed under an agreement and an action does not lie against that person because of a breach of that duty.

(2) Sub-section (1) does not extend to a duty which a person has as occupier of the premises of the TAFE provider.

_______________



s. 91


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PART 7A—MINIMUM TERMS AND CONDITIONS

91AB. Rates of pay

(1) An employer must pay a student the relevant minimum rate of pay that would be applicable under paragraph 1(c) of Schedule 1A to the Workplace Relations Act 1996 of the Commonwealth as if the student were an employee within the meaning of Part XV of that Act.

(2) Sub-section (1) does not apply in respect of a student—

(a) holding a certificate of exemption under this section; or

(b) to whom an exemption order under this section applies.

(3) The Secretary to the Department of Education may give a student a certificate of exemption if the Secretary is satisfied that the student—

(a) is undertaking a post-secondary education course; and

(b) is required to work during those studies for the purpose of gaining knowledge and skill which relates to those studies.

(4) The Secretary to the Department of Education may impose conditions on a certificate of exemption.

Pt 7A (Heading and s. 91AB) inserted by No. 59/1996 s. 13.

S. 91AB inserted by No. 59/1996 s. 13.

s. 91AB

S. 91AB(1) amended by Nos 25/2000 s. 5(c)(i)(ii), 74/2000 s. 3(Sch. 1 item 142).

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(5) The student and any employer must comply with any condition imposed under sub-section (4).


(6) The Secretary to the Department of Education may make an exemption order in relation to any class of students if the Secretary is satisfied that the students—

(a) are undertaking a post-secondary education course; and

(b) are required to work to satisfy the practical training and experience requirements of the course.

(7) The exemption order may—

(a) in the case of any students, provide that the students are not required to be paid for the work; and

(b) in the case of students required to work more than 240 hours as part of a course requirement, specify the appropriate rate of pay which may be less than the minimum rate of pay that would be the applicable rate of pay referred to in sub-section (1).

(8) A certificate of exemption in force under section 16 of the Employee Relations Act 1992, as in force immediately before its repeal, or an exemption order in force under section 16A of that Act, continues in force for the purposes of this section as if it had been given or made, as the case requires, under this section.

_______________

s. 91AB

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PART 8—MISCELLANEOUS

91B. Authorised officers

The Director may appoint a person employed under Part 2 or by the Council of a TAFE college, a University with a TAFE division or an approved training agent as an authorised officer for the purposes of this Act.

91C. Identification

The Director must furnish an authorised officer with an identification card bearing a recent photograph of the officer.

91D. Powers of authorised officers

(1) An authorised officer—

(a) with any necessary help, may enter, at any time during ordinary working hours on any day, any premises—

(i) where an apprentice is employed or where the officer has reasonable cause to believe that an apprentice is employed; and

* * * * *

(b) in the case of a place referred to in paragraph (a)(i)—

(i) may require the production of any documents relating to the employment of any apprentice required to be kept under this or any other Act or under the National Training Wage Interim Award 1994 made by the Australian Industrial Relations Commission as varied from

S. 91B inserted by No. 62/1994 s. 71(1), amended by No. 80/1997 s. 28.

s. 91B

S. 91C inserted by No. 62/1994 s. 71(1).

S. 91D inserted by No. 62/1994 s. 71(1).

S. 91D(1)(a)(i) amended by No. 25/2000 s. 5(d)(i).

S. 91D(1) (a)(ii)(iii) repealed by No. 97/2000 s. 37(Sch. 1 item 3.6).

S. 91D(1)(b)(i) amended by Nos 106/1994 s. 9, 25/2000 s. 5(d)(ii).

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time to time, and inspect and examine them and take copies or extracts from them; and

(ii) may make any inquiries that appear to be necessary to ascertain whether the provisions of this Act are being or have been complied with;

* * * * *

(2) An authorised officer may not exercise any power under sub-section (1)—

(a) in relation to premises if the occupier of the premises has required the officer to produce his or her identification card for inspection by the occupier and the officer fails to comply with the requirement; or

(b) in relation to premises used as or mainly as residential premises, except with the consent of the occupier.

(3) A person must not obstruct delay or intimidate an authorised officer when the officer is exercising or attempting to exercise his or her functions as an authorised officer.


92. Proceedings for offences

(1) Proceedings for an offence against this Act may only be taken by an person employed under section 19 who is authorised by the Director either generally or in a particular case to take those proceedings.

S. 91D(1)(c)(d) repealed by No. 97/2000 s. 37(Sch. 1 item 3.7).

s. 92

S. 92(1) amended by No. 62/1994 s. 16, substituted by No. 85/1995 s. 8, amended by No. 46/1998 s. 7(Sch. 1).

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(2) All courts must take judicial notice of the fact that an employee under sub-section (1) has valid authority to take proceedings referred to in sub-section (1).

92A. Offences by corporations etc.

(1) If a corporation contravenes any provision of this Act, the person who is the principal executive officer (however described) of the corporation is deemed to have contravened the same provision if that person knowingly authorised or permitted the contravention.

(2) A person may be proceeded against and convicted under a provision pursuant to sub-section (1) whether or not the corporation has been proceeded against or convicted under that provision.

(3) Nothing in this section affects any liability imposed on a corporation for an offence committed by the corporation against this Act.

(4) If a provision of this Act is contravened in respect of an unincorporated body of persons—

(a) the person who is the principal executive officer (however described) of the body at the time of the contravention is deemed to have contravened the same provision at that time; and

(b) if there was a governing body of the unincorporated body at the time of the contravention, each person who is a member of the governing body of that unincorporated body at that time is also deemed to have contravened the provision at that time.

S. 92(2) amended by No. 46/1998 s. 7(Sch. 1).


s. 92A

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93. Evidentiary

(1) In any proceedings for an offence under this Act a certificate signed by or on behalf of the Director and stating that—

(a) on any specified date a person is or is not or was or was not registered under section 63 as an apprentice who has entered a training agreement lodged under section 56; or

* * * * *

(c) on any specified date a person or body did or did not have the approval of the Commission under section 53 to employ a person under a training agreement—

is admissible in evidence in the proceedings and, in the absence of evidence to the contrary, is proof of the matters stated in the certificate.

(2) A certificate signed by or on behalf of the Director purporting to record a determination, resolution or decision of the Commission is evidence of the making of that determination, resolution or decision by the Commission.

93AA. Certificates

The Commission may issue or arrange for the issuing of certificates to people who have satisfactorily completed an approved training scheme that has been entered into before the commencement of section 10 of the Vocational Education and Training (Training Framework) Act 1997.

s. 93

S. 93(1) amended by Nos 62/1994 ss 16, 31(7), 106/1994 s. 10, 59/1996 s. 10(Sch. 2 item 24.5), substituted by No. 80/1997 s. 29(1).

S. 93(1)(b) repealed by No. 97/2000 s. 37(Sch. 1 item 3.8).


S. 93(2) amended by Nos 62/1994 s. 16, 97/2000 s. 41(Sch. 2 item 5.3).

S. 93AA inserted by No. 80/1997 s. 30, amended by No. 97/2000 s. 41(Sch. 2 item 5.3).

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93A. Supreme Court—limitation of jurisdiction

It is the intention of this section to alter or vary section 85 of the Constitution Act 1975 to the extent necessary to prevent the bringing before the Supreme Court of an action of a kind referred to in section 91A.

94. Regulations

The Governor in Council may make regulations for or with respect to any matter or thing required or permitted by this Act to be prescribed or necessary to be prescribed to give effect to this Act.

* * * * *

94A. Fees for certificates

The Commission may charge a fee determined by the Minister for the issue of any certificate or duplicate certificate for the purposes of this Act.

94B. Review of decisions by training agents

(1) A person who is aggrieved by any decision of an approved training agent made under section 53, 56(3), 57 or 59(2) acting as a delegate of the Commission under section 20B may apply to the Commission for a review of that decision within 14 days after the person was notified of that decision by the approved training agent or within any longer period that the Commission allows.


s. 93A

S. 94 amended by No. 80/1997 s. 31(1).

S. 94(2)(3) repealed by No. 80/1997 s. 31(2). S. 94A inserted by No. 62/1994 s. 73(1), amended by Nos 80/1997 s. 32, 97/2000 s. 41(Sch. 2 item 5.3).

S. 94B inserted by No. 80/1997 s. 33. S. 94B(1) amended by No. 97/2000 ss 37(Sch. 1 item 3.9), 41(Sch. 2 item 5.3).

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(2) The Commission may exercise all the powers and discretions that it would have had in determining the matter under review and may in writing—

(a) affirm the decision under review; or

(b) vary the decision under review; or

(c) set aside the decision under review and—

(i) make a decision in substitution for the decision set aside; or

(ii) remit the matter for reconsideration by the approved training agent in accordance with any directions or recommendations of the Commission.

_______________


s. 94B

S. 94B(2)(c)(ii) amended by No. 97/2000 s. 41(Sch. 2 item 5.3).

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PART 9—SAVINGS, REPEAL AND AMENDMENTS

Division 1—Savings Provisions

95. Abolition of authorities

(1) In this section—

"former authority" means—

(a) the Industrial Training Commission established under the Industrial Training Act 1975; and

(b) the State Training Board established by Order in Council dated 17 November 1987 and published in the Government Gazette on 24 November 1987; and

(c) the Technical and Further Education Board established under section 41 of the Post-Secondary Education Act 1978;

"State Training Board" means the State Training Board established under Part 2 of this Act.

(2) On the commencement of this sub-section the Industrial Training Commission is abolished and its members go out of office.

(3) On the commencement of this sub-section the State Training Board referred to in paragraph (b) of the definition of "former authority" is abolished and its members go out of office.

(4) On the commencement of this sub-section the Technical and Further Education Board is abolished and its members go out of office.

s. 95

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(5) On the commencement of a sub-section abolishing a former authority—

(a) all rights, property and assets that, immediately before that commencement, were vested in the former authority are, by force of this sub-section, vested in the State Training Board; and

(b) all debts, liabilities and obligations of the former authority existing immediately before that commencement become, by force of this sub-section debts, liabilities and obligations of the State Training Board; and

(c) the State Training Board is, by force of this sub-section, substituted as a party to any arrangement or contract entered into by or on behalf of the former authority and in force immediately before that commencement; and

(d) the State Training Board is by force of this sub-section substituted as a party to any proceedings pending in any court to which the former authority was a party immediately before that commencement; and

(e) any reference to the former authority in any Act or a subordinate instrument made under an Act or in any other document, must, so far as it relates to any period after that commencement and if not inconsistent with the context or subject-matter, be construed as a reference to the State Training Board.

(6) On the commencement of sub-section (4) any reference to the Chairman of the Technical and Further Education Board in any Act or subordinate instrument made under an Act or in any other document must, so far as it relates to the functions of the Chairman under Divisions 3 and 4 of Part III of the Post-Secondary Education Act

S. 95(5)(b) amended by No. 80/1997 s. 35(5).

s. 95

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1978 and to any period after that commencement and if not inconsistent with the context or subject-matter, be construed as a reference to the General Manager.

(7) Any person who was, immediately before the commencement of sub-section (3), a member of the State Training Board established by Order in Council dated 17 November 1987 and published in the Government Gazette on 24 November 1987, becomes a corresponding member of the State Training Board for the remainder of the member's term of appointment.

* * * * *

97. Trades, apprenticeships and training agreements

On the commencement of this section—

(a) any trade which was, immediately before that commencement, proclaimed to be a trade under section 19 of the Industrial Training Act 1975 shall be deemed to be a declared vocation under section 49 and to have been specified as a trade under that section and any exclusion in that proclamation from the operation of section 22 or 41 of that Act shall be deemed to be an exclusion from section 50 or 54; and

(b) any indentures of apprenticeship in relation to which an apprentice is registered under the Industrial Training Act 1975 and in force immediately before that commencement shall be deemed to be a contract of training in relation to which the apprentice is deemed to be a trainee registered under section 69;

S. 96 repealed by No. 62/1994 s. 81.

s. 97

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(c) any training agreement entered into under section 43 or 43A of the Industrial Training Act 1975 and in force immediately before that commencement shall be deemed to be a training agreement made pursuant to a training program approved under section 51 and in relation to which the trainee is registered under section 69.

* * * * *

Division 2—Further savings provisions

98. Vocational Education and Training (Training Framework) Act 1997

(1) A contract of training entered into and in force under Part 5 immediately before the commencement of section 10 of the Vocational Education and Training (Training Framework) Act 1997 is deemed to be a training agreement.

(2) An employer who obtained the permission of the Board to employ a person in a vocation under a contract of training or training agreement before the commencement of section 10 is deemed to have obtained the approval of the Board under section 53 to employ that person as an apprentice.

Pt 9 Div. 2 (Heading and ss 98–106) repealed by No. 18/1993 s. 32(e) (as amended by No. 59/1994 s. 10).

New Pt 9 Div 2 (Heading and s. 98) inserted by No. 80/1997 s. 36.

New s. 98 inserted by No. 80/1997 s. 36.

s. 98

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* * * * *

99. Transitional provisions

(1) The Victorian Learning and Employment Skills Commission is deemed to be the same body as the State Training Board of Victoria despite the changes to the name and structure of the Board by sections 38 and 39 of the Victorian Qualifications Authority Act 2000, and no act matter or thing is to be affected because of those changes of name and structure.

(2) On and after the commencement of section 38 of the Victorian Qualifications Authority Act 2000, a reference to the State Training Board of Victoria in an Act, subordinate instrument within the meaning of the Interpretation of Legislation Act 1984 or any document whatever, unless inconsistent with the context or subject matter, is deemed to be a reference to the Victorian Learning and Employment Skills Commission.

(3) The members of the State Training Board of Victoria who held office immediately before the commencement of section 39 of the Victorian Qualifications Authority Act 2000, go out of office on that commencement.

* * * * *

__________________

S. 98(3)(4) repealed by No. 97/2000 s. 37(Sch. 1 item 3.10).

New s. 99 inserted by No. 97/2000 s. 40.

s. 99

Pt 9 Divs 3, 4 (Headings and ss 107–120) repealed by No. 62/1994 s. 82(d).

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SCHEDULES

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SCHEDULE 1

Box Hill Institute of Technical and Further Education

Central Gippsland Institute of Technical and Further Education

Chisholm Institute of Technical and Further Education

East Gippsland Institute of Technical and Further Education

Gordon Institute of Technical and Further Education4

Goulburn Ovens Institute of Technical and Further Education

Holmesglen Institute of Technical and Further Education

Kangan Batman Institute of Technical and Further Education

Bendigo Regional Institute of Technical and Further Education

Northern Melbourne Institute of Technical and Further Education

Southwest Institute of Technical and Further Education

Sunraysia Institute of Technical and Further Education

William Angliss Institute of Technical and Further Education

Wodonga Institute of Technical and Further Education

_______________

Sch. amended by GGs 27.2.91 p. 442, 31.7.91 p. 2151, 8.1.92 p. 38, Nos 21/1990 s. 71(2)(b), 44/1992 s. 69(f)(i)(ii), 45/1992 s. 65(e), GG 23.12.92 p. 3904, SG (No. 46) 29.6.93 p. 9, Sch. renamed as Sch. 1 by No. 14/1993 s. 12(2)(b), amended by GG 2.12.93 p. 3239, SG (No. 95) 21.12.93 p. 3, SG (No. 18) 18.4.94 p. 1, GGs 8.12.94 p. 3264, 22.12.94 pp 3485, 3486, 13.4.95 pp 896, 897, 8.6.95 p. 1389, 20.7.95 pp 1864, 1865, SG (No. 77) 4.8.95 p. 1, GGs 10.8.95 p. 2106, 28.9.95 p. 2776, SG (No. 109) 1.11.95 p. 1, GGs 2.11.95 p. 3084, 21.12.95 p. 3658, 12.9.96 pp 2432, 2433, 8.5.97 p. 1044, 5.6.97 p. 1317, No. 79/1997 s. 19(3), GGs 18.6.98 pp 1532–1536, 25.6.98 pp 1657, 1658, 24.12.98 p. 3261

Sch. 1

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SCHEDULE 2

EMPLOYMENT OF STAFF

PART 1—GENERAL

* * * * *

2. Superannuation

(1) A person who, immediately before being employed under section 34A or being employed in the TAFE division of a university with a TAFE division was a contributor to or member of a superannuation fund or arrangement established by the State Superannuation Act 1988 continues, subject to that Act, to be a contributor to or member of that fund or arrangement for so long as he or she is employed under section 34A or employed in the TAFE division of one of those universities.

(2) The terms and conditions of a superannuation fund or arrangement to which a person continues to contribute or of which he or she continues to be a member by virtue of sub-clause (1) apply to that person, for so long as he or she is employed under section 34A or employed in a TAFE division of a university with a TAFE division as if there had been no change of employer.

Sch. 2 inserted by No. 14/1993 s. 12(1).

Sch. 2

Sch. 2 cl. 1 amended by No. 62/1994 s. 23(5), repealed by No. 59/1996 s. 10(Sch. 2 item 24.6).

Sch. 2 cl. 2(1) amended by No. 62/1994 s. 23(5).

Sch. 2 cl. 2(2) amended by No. 62/1994 s. 23(5).

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PART 2—EXECUTIVE OFFICERS

* * * * *

4. Contracts for executive officers

The employment of an executive officer shall be governed by a contract of employment between the officer and his or her employer.

5. Contracts to be in writing

(1) The contract must be in writing and be signed by or on behalf of the employer and the officer.

(2) The parties to a contract must not include a right of return to the public sector in that contract.

6. Termination of contracts

A contract of employment of an executive officer may be terminated by either party to the contract giving to the other party the period of notice of termination required by Part 6 of Schedule 1 to the Employee Relations Act 1992.

7. Contracts for incumbent officers

An executive officer who was appointed to a position before it was declared under section 6B to be part of the management staff of a TAFE college or a TAFE division of a university may elect to enter into a contract of employment for the position at any time up until 3 months after the date on which it was declared to be part of the management staff. After that time the officer cannot enter into a contract of employment for that position.

8. Certain positions not required to be advertised

An executive officer who elects within the period specified in clause 7 to enter into a contract of employment for that position is entitled to be offered a contract for that position without the position being advertised.

Sch. 2 cl. 3 amended by Nos 62/1994 s. 23(5), 82/1994 s. 13(Sch. 2 item 10.6), repealed by No. 59/1996 s. 10(Sch. 2 item 24.6).

Sch. 2 cl. 6 amended by No. 82/1994 s. 13(Sch. 2 item 10.7).

Sch. 2

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9. Continuity in position

If a position has been declared to be part of the management staff of a TAFE college or the TAFE division of a university, the person (if any) holding that position is to continue to hold it until the position otherwise becomes vacant even if he or she does not elect to enter into a contract of employment for that position.

10. Continuing terms and conditions of employment

While a person continues to hold a position under clause 9 without having entered into a contract of employment for it the terms and conditions of employment of the person are to be the same as those which applied to the person immediately before the position was declared to be part of the management staff of a TAFE college or the TAFE division of a university. That person continues to have the benefit of all rights that have accrued or are accruing to him or her under those terms and conditions.

11. Performance allowances cease if no contract

An executive officer who continues to hold a position in the circumstances set out in clause 10 ceases to be entitled to any performance related incentive payment provided for under the terms and conditions applicable under that clause.

12. TAFE directors who do not enter into contracts

Despite clause 9, the director of a TAFE college or the TAFE division of a university, who has not elected to enter into a contract of employment before the end of the period specified in clause 7—

(a) ceases to hold the position of director; and

(b) is entitled to be employed under the same terms and conditions of employment as applied to the position of that director immediately before the position was declared to be part of the management staff; and

(c) is not entitled to receive any performance related incentive payment provided for in the terms and conditions referred to in paragraph (b).

13. Superannuation

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(1) The Superannuation (Public Sector) Act 1992 applies to an executive officer who is a member of a statutory superannuation scheme within the meaning of Part 2 of that Act as if—

(a) any reference to Part 3, Division 5 of the Public Sector Management and Employment Act 1998 were a reference to this Schedule;

(b) any reference to an employer were a reference to—

(i) in the case of staff of a TAFE college, the council of the college; and

(ii) in the case of staff of the TAFE division of a university, the council of that university.

_______________

Sch. 2 cl. 13(1)(a) amended by No. 46/1998 s. 7(Sch. 1).

Sch. 2

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SCHEDULE 3

STATE TRAINING WAGE PROVISIONS

1. Definitions

In this Schedule—

"approved training" means training undertaken (both on or off the job) under an approved training scheme;

* * * * *

"training agreement" means a training agreement entered

into pursuant to an approved training scheme.

2. Application

(1) Subject to sub-clause (3), this Schedule applies with respect to any training agreement entered into after the commencement of the Vocational Education and Training (State Training Wage) Act 1994.

(2) Subject to sub-clause (3), this Schedule also applies with respect to any training agreement entered into before the commencement of the Vocational Education and Training (State Training Wage) Act 1994 if the parties to that agreement agree that it is to apply.

(3) The Commission may, by notice published in the Government Gazette, declare any class of training agreement to be a class of training agreement to which this Schedule does not apply.

* * * * *

Sch. 3 inserted by No. 106/1994 s. 11.

Sch. 3

Sch. 3 cl. 1 def. of "trainee" repealed by No. 80/1997 s. 34(2)(a).

Sch. 3 cl. 2(3) amended by No. 97/2000 s. 41(Sch. 2 item 5.4).

Sch. 3 cl. 2(4) repealed by No. 80/1997 s. 34(2)(b).

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3. Objective

The objective of this Schedule is to assist in the establishment of a system of apprenticeships which provides approved training in conjunction with employment in order to enhance the skill levels and future employment prospects of apprentices, particularly young people and the long term unemployed. The system is neither designed nor intended for those who are already trained and job ready. It is not intended that existing employees shall be displaced from employment by apprentices.

4. Training conditions

(1) The apprentice must perform his or her duties under the training agreement and the approved training scheme.

(2) The employer must during the duration of the training

agreement provide a level of supervision that is in accordance with that agreement and the approved training scheme.

(3) Training must be directed at enabling the apprentice to attain the standards of skill and knowledge required by the approved training scheme to be attained by persons undertaking the scheme.

5. Employment conditions

* * * * *

(2) An employer must not terminate the employment of an

apprentice without having provided written notice of termination in accordance with the training agreement—

(a) to the apprentice, before the termination; and

(b) to the Commission, within 5 working days after the

termination.

Sch. 3 cl. 3 amended by No. 80/1997 s. 34(2)(c)(i)(ii).

Sch. 3 cl. 4(1) amended by No. 80/1997 s. 34(2)(d).

Sch. 3 cl. 4(3) amended by No. 80/1997 s. 34(2)(d).

Sch. 3

Sch. 3 cl. 5(1) repealed by No. 80/1997 s. 34(1).

Sch. 3 cl. 5(2) amended by No. 80/1997 s. 34(2)(e)(i). Sch. 3 cl. 5(2)(a) amended by No. 80/1997 s. 34(2)(e)(ii).

Sch. 3 cl. 5(2)(b) amended by No. 97/2000 s. 41(Sch. 2 item 5.4).

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(3) An employer who decides not to continue the employment of an apprentice on the completion of the approved training scheme must notify the Commission in writing of that decision.

(4) If the employment of an apprentice is continued after the

completion of the approved training scheme, that period of training must be regarded as service with the employer for the purposes of any provision made by or under any Act conferring entitlements on an employee having regard to his or her period of service.

(5) A training agreement may restrict the circumstances under which an apprentice may work overtime or shiftwork in order to ensure that the approved training scheme is satisfactorily completed.

(6) An apprentice must not work shiftwork unless the apprentice and the employer have agreed that satisfactory provision is made for approved training under the relevant approved training scheme. Training for shiftwork employees may be applied over a cycle in excess of a week but must average over the relevant period no less than the amount of training required for non-shiftwork apprentices.

(7) Without limiting the application to the apprentice of the provisions referred to in clause 7(1), an apprentice who fails to complete the approved training scheme or who cannot for any reason be placed in full-time employment with the employer on satisfactory completion of the approved training scheme is not entitled to any severance payment payable under any termination, change and redundancy provisions or any similar provisions.

6. Wages

(1) The weekly wages payable to apprentices shall be as provided by the National Training Wage Interim Award 1994 made by the Australian Industrial Relations Commission as varied from time to time.

(2) For the purposes of applying sub-clause (1) the appropriate industry/skill level in relation to an apprentice is as specified in the relevant determination made by the Commission under section 51(1).

Sch 3 cl. 5(3) amended by Nos 80/1997 s. 34(2)(e)(i), 97/2000 s. 41(Sch. 2 item 5.4). Sch. 3 cl. 5(4) amended by Nos 59/1996 s. 10(Sch. 2 item 24.7), 80/1997 s. 34(2)(e)(i).

Sch. 3

Sch. 3 cl. 5(5) amended by No. 80/1997 s. 34(2)(e)(i).

Sch. 3 cl. 5(6) amended by No. 80/1997 s. 34(2)(e) (ii)(iii)(A)(B).

Sch. 3 cl. 5(7) amended by No. 80/1997 s. 34(2)(e)(i)(ii).

Sch. 3 cl. 6(1) amended by No. 80/1997 s. 34(2)(f)(i).

Sch. 3 cl. 6(2) amended by Nos 80/1997 s. 34(2)(f)(ii), 97/2000 s. 41(Sch. 2 item 5.4).

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* * * * *

═══════════════

Sch. 3 cl. 7 repealed by No. 80/1997 s. 34(2)(g).

Sch. 3

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ENDNOTES

1. General Information Minister's second reading speech—

Legislative Assembly: 5 April 1990

Legislative Council: 17 May 1990

The long title for the Bill for this Act was "A Bill to establish a State Training System in Victoria and to amend the Post-Secondary Education Act 1978, to amend the Employment and Training Act 1981 and to repeal the Industrial Training Act 1975 and for other purposes.".

The Vocational Education and Training Act 1990 was assented to on 19 June 1990 and came into operation as follows:

Parts 1, 2, 4, sections 72, 95(1)(3)(5)(7), Part 8 on 1 July 1990: Government Gazette 27 June 1990 page 1926; Parts 3, 6 (except sections 80–84), Part 7, sections 95(4)(6), 96, Division 2 of Part 9 (except section 98(3)(f)(ii)), sections 118, 119 and the Schedule on 31 January 1991 by virtue of the Interpretation of Legislation Act 1984—see Government Gazette 19 December 1990 page 3745: Special Gazette (No. 9) 31 January 1991 page 3 and section 76 of Act No. 62/1994;

Sections 80–84 on 1 March 1991: Government Gazette 19 December 1990 page 3745 and Special Gazette (No. 9) 31 January 1991 page 3; sections 46–71, 95(2), 97, Division 3 of Part 9, sections 108–117, 120 on 1 July 1991: Government Gazette 19 December 1990 page 3745 and Special Gazette (No. 9) 31 January 1991 page 3.

Section 98(3)(f)(ii) was repealed and never proclaimed.

Endnotes

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2. Table of Amendments This Version incorporates amendments made to the Vocational Education and Training Act 1990 by Acts and subordinate instruments.

–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––

Victoria University of Technology Act 1990, No. 21/1990 Assent Date: 30.5.90 Commencement Date: S. 71(1) on 1.7.90: Government Gazette 24.6.90

p. 1862; s. 71(2)(b) on 30.1.92: Government Gazette 29.1.92 p. 178

Current State: This information relates only to the provision/s amending the Vocational Education and Training Act 1990

Adult, Community and Further Education Act 1991, No. 91/1991 Assent Date: 10.12.91 Commencement Date: 19.3.92: Special Gazette (No. 4) 18.3.92 p. 1 Current State: All of Act in operation

Swinburne University of Technology Act 1992, No. 44/1992 Assent Date: 23.6.92 Commencement Date: 1.7.92: Government Gazette 1.7.92 p. 1628 Current State: All of Act in operation

Royal Melbourne Institute of Technology Act 1992, No. 45/1992 Assent Date: 23.6.92 Commencement Date: 1.7.92: Government Gazette 1.7.92 p. 1626 Current State: All of Act in operation

Melbourne University (VCAH) Act 1992, No. 52/1992 Assent Date: 30.6.92 Commencement Date: S. 19 on 1.7.92: Government Gazette 1.7.92 p. 1628 Current State: This information relates only to the provision/s

amending the Vocational Education and Training Act 1990

Employee Relations Act 1992, No. 83/1992 Assent Date: 24.11.92 Commencement Date: S. 184(Sch. 6 item 22) on 1.3.93: Special Gazette

(No. 63) 27.11.92 p. 1 Current State: This information relates only to the provision/s


Vocational Education and Training (College Employment) Act 1993, No. 14/1993

Endnotes Endnotes

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Assent Date: 11.5.93 Commencement Date: Ss 1, 2 on 11.5.93: s. 2(1); rest of Act on 1.7.93:

s. 2(2) Current State: All of Act in operation

Tertiary Education Act 1993 No. 18/1993 (as amended by Act No. 59/1994) Assent Date: 18.5.93 Commencement Date: Ss 1, 2 on 18.5.93: s. 2(1); s. 24 on 7.6.93; rest of Act

on 1.7.93: Government Gazette 3.6.93 p. 1414 Current State: All of Act in operation

Financial Management (Consequential Amendments) Act 1994, No. 31/1994 Assent Date: 31.5.94 Commencement Date: S. 3(Sch. 1 item 63) on 7.7.94: Government Gazette

7.7.94 p. 1878—see Interpretation of Legislation Act 1984


Vocational Education and Training (Amendment) Act 1994, No. 62/1994 Assent Date: 15.6.94 Commencement Date: Ss 1–3 on 15.6.94: s. 2(1): s. 77 on 30.6.94; rest of

Act (except ss 13, 14, 51–68) on 1.7.94; ss 51–58 on 1.8.94; ss 59–68 on 1.12.94: Government Gazette 23.6.94 p. 1671; ss 13, 14 on 15.9.94: Government Gazette 15.9.94 p. 2472

Current State: All of Act in operation

Employee Relations (Amendment) Act 1994, No. 82/1994 Assent Date: 29.11.94 Commencement Date: S. 13(Sch. 2 item 10) on 11.5.95: Government Gazette

11.5.95 p. 1093—see Interpretation of Legislation Act 1984


Vocational Education and Training (State Training Wage) Act 1994, No. 106/1994

Assent Date: 13.12.94 Commencement Date: 13.12.94: s. 2 Current State: All of Act in operation

Equal Opportunity Act 1995, No. 42/1995

Endnotes

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Assent Date: 14.6.95 Commencement Date: S. 224 on 5.10.95: Government Gazette 28.9.95

p. 2731; Sch. 2 item 47 on 1.1.96: Government Gazette 21.12.95 p. 3571


Vocational Education and Training (Amendment) Act 1995, No. 85/1995 Assent Date: 28.11.95 Commencement Date: 28.11.95 Current State: All of Act in operation

Legal Practice Act 1996, No. 35/1996 Assent Date: 6.11.96 Commencement Date: S. 453(Sch. 1 item 88) on 1.1.97: s. 2(3) Current State: This information relates only to the provision/s


Commonwealth Powers (Industrial Relations) Act 1996, No. 59/1996 Assent Date: 12.12.96 Commencement Date: Pt 6 (s. 13), s. 10(Sch. 2 item 24) on 1.1.97: Special

Gazette (No. 146) 23.12.96 p. 15 Current State: This information relates only to the provision/s


Melbourne University (VCAH) Act 1997, No. 9/1997 Assent Date: 29.4.97 Commencement Date: S. 14 on 1.7.97: s. 2(2) Current State: This information relates only to the provision/s


University of Ballarat (Amendment) Act 1997, No. 79/1997 Assent Date: 25.11.97 Commencement Date: S. 19 on 1.1.98: s. 2(2) Current State: This information relates only to the provision/s


Vocational Education and Training (Training Framework) Act 1997, No. 80/1997

Endnotes

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Assent Date: 25.11.97 Commencement Date: Ss 6, 8, 34(1) on 25.11.97: s. 2(1); ss 3–5, 7, 9–33,

34(2)–36 on 1.1.98: Government Gazette 18.12.97 p. 3614


Audit (Amendment) Act 1997, No. 93/1997 Assent Date: 16.12.97 Commencement Date: S. 28(Sch. item 33) on 1.7.98: s. 2(2) Current State: This information relates only to the provision/s


Public Sector Reform (Miscellaneous Amendments) Act 1998, No. 46/1998 Assent Date: 26.5.98 Commencement Date: S. 7(Sch. 1) on 1.7.98: s. 2(2) Current State: This information relates only to the provision/s


Tribunals and Licensing Authorities (Miscellaneous Amendments) Act 1998, No. 52/1998

Assent Date: 2.6.98 Commencement Date: S. 311(Sch. 1 item 104) on 1.7.98: Government

Gazette 18.6.98 p. 1512 Current State: This information relates only to the provision/s


Audit (Amendment) Act 1999, No. 53/1999 Assent Date: 14.12.99 Commencement Date: S. 26(Sch. item 26) on 1.1.2000: Government Gazette

23.12.99 p. 2764 Current State: This information relates only to the provision/s


Vocational Education and Training (Council Membership) Act 2000, No. 25/2000 Assent Date: 16.5.00 Commencement Date: 17.5.00: s. 2 Current State: All of Act in operation

Statute Law Revision Act 2000, No. 74/2000

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Assent Date: 21.11.00 Commencement Date: S. 3(Sch. 1 item 142) on 17.5.00: s. 2(2)(za) Current State: This information relates only to the provision/s


Victorian Qualifications Authority Act 2000, No. 97/2000 Assent Date: 5.12.00 Commencement Date: Ss 37(Sch. 1 item 3), 38–40, 41(Sch. 2 item 5) on

1.3.01: Government Gazette 1.3.01 p. 304 Current State: This information relates only to the provision/s


–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––

Government Gazette 27 February 1991 page 442

Government Gazette 31 July 1991 page 2151

Government Gazette 8 January 1992 page 38

Government Gazette 23 December 1992 page 3904

Special Gazette (No. 46) 29 June 1993 page 9


Special Gazette (No. 95) 21 December 1993 page 3

Special Gazette (No. 18) 18 April 1994 page 1

Government Gazettes 8 December 1994 page 3264

Government Gazette 22 December 1994 pages 3485, 3486

Government Gazette 13 April 1995 pages 896, 897

Government Gazette 8 June 1995 page 1389

Government Gazette 20 July 1995 pages 1864, 1865

Special Gazette (No. 77) 4 August 1995 page 1

Government Gazette 10 August 1995 page 2106

Government Gazette 28 September 1995 page 2776

Special Gazette (No. 109) 1 November 1995 page 1

Government Gazette 2 November 1995 page 3084


Government Gazette 12 September 1996 pages 2432, 2433

Endnotes

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Government Gazette 8 May 1997 page 1044

Government Gazette 5 June 1997 page 1317

Government Gazette 18 June 1998 pages 1532–1536

Government Gazette 25 June 1998 pages 1657, 1658


–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––

Endnotes

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3. Explanatory Details

1 S. 13: Section 13(2)(3) of the Vocational Education and Training (Amendment) Act 1994, No. 62/1994 reads as follows:

13. Members of the Board and savings

(2) On the commencement of this section the members of the State Training Board go out of office.

(3) Despite the commencement of this section, the State Training Board as it is constituted after the commencement of sub-section (1) is deemed to be the same body as the State Training Board as it was constituted immediately before that commencement.

2 S. 19: Section 15(2) of the Vocational Education and Training (Amendment) Act 1994, No. 62/1994 reads as follows:

15. New section 19 substituted and transitional

(2) On and from the commencement of this section, in—

(a) an Act; or

(b) a subordinate instrument within the meaning of the Interpretation of Legislation Act 1984; or

(c) any document whatever—

a reference to the General Manager of the Board (whether reconstrued by Order under the Administrative Arrangements Act 1983 to be a reference to the Secretary to the Department of Education or not) is, in relation to any period occurring on or after that date of commencement, and unless inconsistent with the context or subject matter, to be taken to be a reference to the Director of the Board.

Endnotes

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3 S. 28: Section 19(2)(3) of the Vocational Education and Training (Amendment) Act 1994, No. 62/1994 reads as follows:

19. New section 28 substituted and transitional

(2) Despite the commencement of this section—

(a) an Order in Council made under section 24 of the Principal Act which was in force immediately before that commencement continues in operation until it is remade in accordance with sub-section (3); and

(b) a person who was a member of the council of a TAFE college immediately before that commencement continues to be a member of that council subject to the Principal Act and the Order in Council continued under paragraph (a) until the Order in Council is remade in accordance with sub-section (3);

(c) a council incorporated by an Order referred to in paragraph (a) is deemed to be the same body after that commencement as it was immediately before that commencement.

(3) The Minister must ensure that within 12 months after the commencement of this section or within any further period fixed by the Minister in respect of a particular council, every Order in Council continued in operation by sub-section (1) is reviewed and remade.

4 Schedule 1 (Gordon Technical College): Section 74 of the Vocational Education and Training (Amendment) Act 1994, No. 62/1994 reads as follows:

74. Gordon Technical College

(1) The Gordon Technical College Act 1976 is repealed.

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(2) On the commencement of sub-section (1)—

(a) Gordon Technical College continues to be a TAFE college as if it had been created under section 23 of the Principal Act;

(b) the Order in Council made under section 4 of the Gordon Technical College Act 1976 on 25 January 1984 and published in the Government Gazette on 11 February 1984 continues in operation as if it had been made under section 24 of the Principal Act; and

(c) the Council of the Gordon Technical College incorporated under section 4 of the Gordon Technical College Act 1976 is deemed to be a council incorporated under section 24 of the Principal Act.

(3) Despite the repeal of section 6(3) of the Gordon Technical College Act 1976, the lands the subject of Crown Grant volume 4976 folium 995194 permanently reserved as a site for the Gordon Technical College by section 6(3) continue to be permanently reserved as if they were so reserved under section 4 of the Crown Lands (Reserves) Act 1978.

(4) The Minister must, within 12 months or any further period fixed by the Minister, ensure that the Order in Council referred to in sub-section (2)(b) is reviewed and remade.

Vocational Education and Training Act 1990 · Vocational Education and Training Act 1990 ... Wage Award 19 9C. Functions of the Commission ... administration of vocational education

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