Part 3 Industrial and commercial training
Division 1 Establishment of training schemes
(1) The Minister may, by order published in the Gazette, designate any vocation to be a declared trade or declared calling for the purposes of this Act.(2) The same vocation may be both a declared trade and a declared calling.
(1) The Director-General may from time to time make orders specifying, in relation to a particular declared trade or declared calling:(a) the appropriate term of apprenticeship or traineeship in that trade or calling, and(b) the appropriate courses of studies to be undertaken by apprentices or trainees in that trade or calling, and(c) the appropriate courses of on-the-job training to be provided to apprentices or trainees by employers in that trade or calling, and(d) such other matters relating to the training of apprentices or trainees in that trade or calling as the Director-General considers appropriate.(2) Such an order applies to an apprenticeship or traineeship whether or not the apprenticeship or traineeship was established before the order took effect, but does not, unless it expressly so provides, affect:(a) any vocational training direction in force in respect of the apprenticeship or traineeship, or(b) any course of studies or course of on-the-job training that is being undertaken, or that has been completed, by apprentices or trainees in that trade or calling,prior to the making of the order.(3) An order made under this section takes effect when notice of its making is published in the Gazette.(4) Such a notice shall identify the order, shall contain brief particulars of the substance of the order and shall specify that a copy of the order may be obtained from the offices of the Department.(5) Copies of each order made under this section shall be kept at the offices of the Department and shall be made available for public inspection free of charge, and for purchase, during ordinary office hours.
23 Vocational training guidelines
(1) The Director-General may from time to time issue guidelines, in relation to a particular declared trade or declared calling or in relation to declared trades or declared callings generally, as to how the functions under this Part in respect of any such trade or calling shall be exercised by the Board or by the Commissioner.(2) Copies of each guideline issued under this section shall be kept at the offices of the Department and shall be made available for public inspection free of charge, and for purchase, during ordinary office hours.
24 Persons under 21 not to be employed in declared trades unless apprentices etc
(1) An employer shall not employ a person who is under the age of 21 years in a declared trade unless the employed person is an apprentice or qualified tradesperson in that trade.Maximum penalty: 10 penalty units.
(2) This section does not apply to:(a) the employment of a person in a declared trade that is also a declared calling, or(b) the employment of a person in a declared trade by a parent of the person, or(c) the employment of a person in a declared trade, or in any area of a declared trade, that is exempted by the regulations from the operation of this section.(3) An employer shall not employ a person as a probationary apprentice in a declared trade for a period of, or for periods totalling, more than 3 months, otherwise than with the consent of the Commissioner.Maximum penalty: 5 penalty units.
(4) The Commissioner may consent to the employment of a person as a probationary apprentice for a further period of, or for further periods totalling, not more than 3 months.
25 Applications for establishment of apprenticeships
(1) An employer who employs a person in a declared trade may apply to the Commissioner for the establishment of an apprenticeship for the person.(2) An application for establishment of an apprenticeship shall specify whether the proposed apprenticeship is to be served under an indentured apprenticeship or under a trainee apprenticeship.
26 Compulsory applications for apprentices who are under 21
(1) An employer who employs a person (being a person who is under the age of 21 years) as a probationary apprentice in a declared trade shall, within 14 days after the person is first employed by the employer, apply to the Commissioner for the establishment of an apprenticeship in that trade for the person.Maximum penalty: 5 penalty units.
(2) Nothing in this section prevents an application that is made later than 14 days after the person is first employed from being considered under this Division.
27 Determination of applications
(1) The Commissioner shall deal with an application for establishment of an apprenticeship:(a) by approving the application, or(b) by dismissing the application, or(c) by referring the application to the Board.(2) The Board shall deal with an application referred to it under this section:(a) by approving the application, or(b) by dismissing the application.(3) An application for establishment of an apprenticeship shall not be approved unless the Commissioner or the Board, as the case may be, is satisfied that the prospective employer has the ability to provide proper training in the relevant trade.
(1) As soon as practicable after an application for establishment of an apprenticeship has been determined, the Commissioner shall cause notice of the determination, together with a copy of any vocational training direction made in relation to the application, to be given to the applicant.(2) If the application specifies that the proposed apprenticeship is to be served under an indentured apprenticeship, the Commissioner shall, within 3 months after the application is approved, cause indentures (in such form as may be approved for the time being by the Commissioner) to be sent to the employer for execution by the employer and by the apprentice.(3) If the application specifies that the proposed apprenticeship is to be served under a trainee apprenticeship, the Commissioner shall, as soon as practicable after the application is approved, cause a progress card to be sent to the employer for use in recording the progress of the apprentice.(4) An employer to whom indentures are sent under this section shall return the indentures to the Commissioner (whether or not they have been duly executed) within 1 month after they were sent to the employer.Maximum penalty: 10 penalty units.
29 Commencement of apprenticeships
(1) An indentured apprenticeship takes effect when indentures:(a) signed by the employer and by the apprentice, and(b) in the case of an apprentice who is under the age of 18 years—accompanied by the written consent of a parent or guardian of the apprentice to the establishment of the apprenticeship,are lodged with the Commissioner.(2) A trainee apprenticeship takes effect on such date as is specified in that regard on the progress card sent to the employer in respect of the apprenticeship.
30 Commissioner may direct apprenticeship to have effect
(1) If an employer:(a) fails to make an application for the establishment of an apprenticeship within 3 months after a probationary apprentice who is under the age of 21 years is first employed by the employer, or(b) fails to return indentures to the Commissioner (whether or not they have been duly executed) within 1 month after they were sent to the employer under section 28,the Commissioner may, on the application of the apprentice, direct that an indentured apprenticeship be taken to have come into effect, as from the expiry of that period, between the employer and the apprentice.(2) As soon as practicable after giving such a direction, the Commissioner shall cause indentures, endorsed by the Commissioner in such manner as the Commissioner may determine, to be sent to the employer and to the apprentice.
31 Conditions of apprenticeship
Except as otherwise provided by a vocational training direction, the conditions of an apprenticeship, including:(a) the term of the apprenticeship, and(b) the course of studies to be undertaken by the apprentice, and(c) the course of on-the-job training to be undertaken by the apprentice,shall be as specified by the relevant vocational training order.
32 Vocational training directions
(1) The Commissioner or the Board may, when determining an application for establishment of an apprenticeship, make a vocational training direction in relation to the proposed apprenticeship.(2) A vocational training direction may:(a) reduce or extend the term of the apprenticeship, or(b) approve an alternative course of studies to be undertaken by the apprentice, or(c) approve an alternative course of on-the-job training to be undertaken by the apprentice.(3) In making a vocational training direction, the Commissioner or the Board:(a) shall have regard to any relevant instruction or training that the apprentice has received:(i) whether as an apprentice or otherwise, and(ii) whether in the particular trade or in some other trade or calling, and(iii) whether in New South Wales or elsewhere, and(b) may have regard to any other matter that the Commissioner or the Board considers relevant, and(c) shall comply with any relevant vocational training guidelines.
33 Previous time as probationary apprentice to form part of term of apprenticeship
The period of time during which a person is a probationary apprentice in a declared trade shall, if the person subsequently becomes an apprentice under an apprenticeship in that trade, be taken to form part of the term of the person’s apprenticeship.
34 Remuneration of adult apprentices
(1) If:(a) an apprenticeship is established in a declared trade for a person who is of or above the age of 21 years, and(b) there is no industrial award or industrial agreement in force under which a rate of remuneration is set for apprentices in that trade who are of or above the age of 21 years, but there is such an award or agreement in force under which a rate of remuneration is set for apprentices who are under that age,pending appropriate award or agreement variation, the interim rate of remuneration for that person shall be the maximum rate of remuneration set by the award or agreement for apprentices in that trade who are under the age of 21 years, being apprentices who are at the same stage of apprenticeship in that trade.(2) A rate of remuneration set by this section has effect as if it formed part of an industrial award that applied to the person for whom it is set, and any remuneration payable under this section may be recovered accordingly.(3) This section does not apply to an apprenticeship between an employer and an apprentice if the employer is a parent of the apprentice.
35 Extent to which apprenticeships are binding
(1) Duly executed indentures that have been returned to the Commissioner (including indentures endorsed by the Commissioner in accordance with section 30):(a) have effect as if they were a deed duly executed by the employer and by the apprentice, and(b) bind the employer and the apprentice throughout the term of the apprenticeship.(2) A trainee apprenticeship binds the employer and the apprentice for so long as the apprentice remains in the employ of the employer.
36 Duties under apprenticeships
(1) The employer of an apprentice shall:(a) take all reasonable steps to cause the apprentice to be instructed in the skills of the declared trade in which he or she is an apprentice, and(b) provide all necessary facilities to ensure that the apprentice receives appropriate practical training in that trade, and(c) take all reasonable steps to enable the apprentice to undertake and complete the required course of studies and the required course of on-the-job training for that trade, and(d) give the apprentice all reasonable opportunities to receive such other instruction or training as may be necessary to enable the apprentice to learn the skills of that trade, and(e) discharge his or her obligations as an employer of the apprentice.(2) An apprentice shall:(a) make all reasonable efforts to acquire the skills of the trade in which he or she is an apprentice, and(b) accept all instruction and training in that trade given to the apprentice by or on behalf of the employer, and(c) make all reasonable efforts to complete the required course of studies and the required course of on-the-job training for that trade, and(d) discharge his or her obligations as an employee of the employer.
(1) (Repealed)(2) Time spent by an apprentice in undertaking a required course of studies shall be taken to form part of the time required by the apprenticeship to be spent in discharging his or her obligations under the apprenticeship.
38 Assignment of indentured apprenticeships
(1) An indentured apprenticeship may not be assigned from one employer to another otherwise than in accordance with this section.(2) An application for approval to the assignment of an indentured apprenticeship may be made to the Commissioner by the prospective employer.(3) The Commissioner shall deal with the application:(a) by approving the application, or(b) by dismissing the application, or(c) by referring the application to the Board.(4) The Board shall deal with an application referred to it under this section:(a) by approving the application, or(b) by dismissing the application.(5) An indentured apprenticeship shall not be assigned unless the Commissioner or the Board, as the case may be, is satisfied:(a) that the prospective employer has the ability to provide proper training in the relevant trade, and(b) that the apprentice consents to the assignment of the apprenticeship.(6) If:(a) approval has been given to the assignment of an indentured apprenticeship, and(b) the Commissioner is satisfied that the apprentice’s existing employer consents to the assignment,the Commissioner shall effect the assignment by giving notice of the assignment to the existing employer, to the prospective employer and to the apprentice.(7) If the Commissioner:(a) sends a notice to an employer who is a party to an indentured apprenticeship:(i) addressed to the last address of the employer known to the Commissioner, and(ii) requesting the employer to notify the Commissioner whether or not the employer consents to the assignment of the apprenticeship to another employer, and(b) does not receive any reply to that request within 21 days after the date on which the notice was sent,the consent of the employer to whom the notice was sent shall be taken to have been given.
39 Cancellation and suspension of apprenticeships by consent
(1) An apprenticeship may be cancelled or suspended by consent of the employer and of the apprentice.(2) If the Commissioner:(a) sends a notice to the employer or to the apprentice:(i) addressed to the last address of the person known to the Commissioner, and(ii) requesting the person to notify the Commissioner whether or not the person consents to the cancellation or suspension of the apprenticeship, and(b) does not receive any reply to that request within 21 days after the date on which the notice was sent,the consent of the person to whom the notice was sent shall be taken to have been given.(3) Within 14 days after the cancellation or suspension of an apprenticeship, the employer concerned shall give notice of the cancellation or suspension to the Commissioner.Maximum penalty: 5 penalty units.
40 Variation of apprenticeships
(1) An apprenticeship may not be varied otherwise than in accordance with this section.(2) An application for variation of an apprenticeship may be made to the Commissioner by the employer or by the apprentice.(3) The Commissioner shall deal with the application:(a) by approving the application, or(b) by dismissing the application, or(c) by referring the application to the Board.(4) The Board shall deal with an application referred to it under this section:(a) by approving the application, or(b) by dismissing the application.(5) An apprenticeship shall not be varied in a manner that contravenes any relevant vocational training guideline.
(1) If:(a) the employer of an apprentice dies, and(b) the business in which the apprentice was employed is carried on by the executors or administrators for the time being of the will or estate of the deceased employer,the apprenticeship shall be taken not to have been determined by the death of the employer.(2) Unless cancellation of the apprenticeship is approved by the Board on the application of those executors or administrators, or of the apprentice, the apprenticeship continues to bind those executors or administrators as if they were the employers of the apprentice.
42 Effect of change of composition in partnership etc
(1) If:(a) the employers of an apprentice are partners in a partnership, and(b) the business in which the apprentice is employed is carried on by the partners for the time being after a change in the composition of the partnership,the apprenticeship shall be taken not to have been determined by that change.(2) Unless cancellation of the apprenticeship is approved by the Board on the application of those partners, or of the apprentice, the apprenticeship continues to bind those partners as if they were the employers of the apprentice.
43 Completion of apprenticeship
(1) As soon as practicable after an apprentice completes his or her term of apprenticeship in a declared trade, the Commissioner shall, if satisfied that the apprentice is adequately trained to pursue that trade, cause a craft certificate in that trade to be given to the apprentice.(2) An apprentice who has completed his or her term of apprenticeship in a declared trade, and who has successfully completed the required course of studies for that trade, is entitled to be issued instead with a certificate of proficiency in that trade.
44 Applications for approval as a recognised trainee employer
(1) An employer in a declared calling may apply to the Commissioner for approval of the employer as a recognised trainee employer in that calling.(2) The Commissioner shall deal with the application:(a) by approving the application, or(b) by dismissing the application, or(c) by referring the application to the Board.(3) The Board shall deal with an application referred to it under this section:(a) by approving the application, or(b) by dismissing the application.(4) An application for approval of an employer as a recognised trainee employer shall not be approved unless the Commissioner or the Board, as the case may be, is satisfied that the employer has the ability to provide proper training in the relevant calling.
45 Recognised trainee employers may enter traineeships
(1) A recognised trainee employer who is engaged in a declared calling may enter into a traineeship in that calling with any of the employer’s employees.(2) The indentures by which a recognised trainee employer and an employee enter into such a traineeship shall be in such form as may be approved for the time being by the Commissioner.
46 Applications for establishment of traineeships
(1) An employer (whether or not a recognised trainee employer) who employs a person in a declared calling may apply to the Commissioner for the establishment of a traineeship for the person.(2) The Commissioner shall deal with the application:(a) by approving the application, or(b) by dismissing the application, or(c) by referring the application to the Board.(3) The Board shall deal with an application referred to it under this section:(a) by approving the application, or(b) by dismissing the application.(4) An application for establishment of a traineeship shall not be approved unless the Commissioner or the Board, as the case may be, is satisfied that the prospective employer has the ability to provide proper training in the relevant calling.
(1) As soon as practicable after an application for establishment of a traineeship has been determined, the Commissioner shall cause notice of the determination, together with a copy of any vocational training direction made in relation to the application, to be given to the applicant.(2) The Commissioner shall, within 3 months after the application is approved, cause indentures (in such form as may be approved for the time being by the Commissioner) to be sent to the employer for execution by the employer and by the trainee.(3) An employer to whom indentures are sent under this section shall return the indentures to the Commissioner (whether or not they have been duly executed) within 1 month after they were sent to the employer.Maximum penalty: 10 penalty units.
48 Commencement of traineeships
A traineeship takes effect when indentures:(a) signed by the employer and by the trainee, and(b) in the case of a trainee who is under the age of 18 years—accompanied by the written consent of a parent or guardian of the trainee to the establishment of the traineeship,are lodged with the Commissioner.
Except as otherwise provided by a vocational training direction, the conditions of a traineeship, including:(a) the term of the traineeship, and(b) the course of studies to be undertaken by the trainee, and(c) the course of on-the-job training to be undertaken by the trainee,shall be as specified by the relevant vocational training order.
50 Vocational training directions
(1) The Commissioner or the Board may, when determining an application for establishment of a traineeship, make a vocational training direction in relation to the proposed traineeship.(2) A vocational training direction may:(a) reduce or extend the term of the traineeship, or(b) approve an alternative course of studies to be undertaken by the trainee, or(c) approve an alternative course of on-the-job training to be undertaken by the trainee.(3) In making a vocational training direction, the Commissioner or the Board:(a) shall have regard to any relevant instruction or training that the trainee has received:(i) whether as a trainee or otherwise, and(ii) whether in the particular calling or in some other trade or calling, and(iii) whether in New South Wales or elsewhere, and(b) shall comply with any relevant vocational training guidelines.
51 Previous time as trainee to form part of term of traineeship
The period of time during which a person is employed in a declared calling pending the establishment of traineeship in that calling shall, if the person subsequently becomes a trainee under a traineeship in that calling, be taken to form part of the term of the person’s traineeship.
52 Remuneration of adult trainees
(1) If:(a) a traineeship is established in a declared calling for a person who is of or above the age of 21 years, and(b) there is no industrial award or industrial agreement in force under which a rate of remuneration is set for trainees in that calling who are of or above the age of 21 years, but there is such an award or agreement in force under which a rate of remuneration is set for trainees who are under that age,pending appropriate award or agreement variation, the interim rate of remuneration for that person shall be the maximum rate of remuneration set by the award or agreement for trainees in that calling who are under the age of 21 years.(2) A rate of remuneration set by this section has effect as if it formed part of an industrial award that applied to the person for whom it is set, and any remuneration payable under this section may be recovered accordingly.(3) This section does not apply to a traineeship between an employer and a trainee if the employer is a parent of the trainee.
53 Extent to which traineeships are binding
Duly executed indentures that have been returned to the Commissioner:(a) have effect as if they were a deed duly executed by the employer and by the trainee, and(b) bind the employer and the trainee throughout the term of the traineeship.
(1) The employer of a trainee shall:(a) take all reasonable steps to cause the trainee to be instructed in the skills of the declared calling in which he or she is a trainee, and(b) provide all necessary facilities to ensure that the trainee receives appropriate practical training in that calling, and(c) take all reasonable steps to enable the trainee to undertake and complete the required course of studies and the required course of on-the-job training for that calling, and(d) give the trainee all reasonable opportunities to receive such other instruction or training as may be necessary to enable the trainee to learn the skills of that calling, and(e) discharge his or her obligations as an employer of the trainee.(2) A trainee shall:(a) make all reasonable efforts to acquire the skills of the calling in which he or she is a trainee, and(b) accept all instruction and training in that calling given to the trainee by or on behalf of the employer, and(c) make all reasonable efforts to complete the required course of studies and the required course of on-the-job training for that calling, and(d) discharge his or her obligations as an employee of the employer.
(1) (Repealed)(2) Time spent by a trainee in undertaking a required course of studies shall be taken to form part of the time required by the traineeship to be spent in discharging his or her obligations under the traineeship.
(1) A traineeship may not be assigned from one employer to another otherwise than in accordance with this section.(2) An application for approval to the assignment of a traineeship may be made to the Commissioner by the prospective employer.(3) The Commissioner shall deal with the application:(a) by approving the application, or(b) by dismissing the application, or(c) by referring the application to the Board.(4) The Board shall deal with an application referred to it under this section:(a) by approving the application, or(b) by dismissing the application.(5) A traineeship shall not be assigned unless the Commissioner or the Board, as the case may be, is satisfied:(a) that the prospective employer has the ability to provide proper training in the relevant calling, and(b) that the trainee consents to the assignment of the traineeship.(6) If:(a) approval has been given to the assignment of a traineeship, and(b) the Commissioner is satisfied that the trainee’s existing employer consents to the assignment,the Commissioner shall effect the assignment by giving notice of the assignment to the existing employer, to the prospective employer and to the trainee.(7) If the Commissioner:(a) sends a notice to an employer who is a party to a traineeship:(i) addressed to the last address of the employer known to the Commissioner, and(ii) requesting the employer to notify the Commissioner whether or not the employer consents to the assignment of the traineeship to another employer, and(b) does not receive any reply to that request within 21 days after the date on which the notice was sent,the consent of the employer to whom the notice was sent shall be taken to have been given.
57 Cancellation of traineeships by consent
(1) A traineeship may be cancelled by consent of the employer and of the trainee.(2) If the Commissioner:(a) sends a notice to the employer or to the trainee:(i) addressed to the last address of the person known to the Commissioner, and(ii) requesting the person to notify the Commissioner whether or not the person consents to the cancellation of the traineeship, and(b) does not receive any reply to that request within 21 days after the date on which the notice was sent,the consent of the person to whom the notice was sent shall be taken to have been given.(3) Within 14 days after the cancellation of a traineeship, the employer concerned shall give notice of the cancellation to the Commissioner.Maximum penalty: 5 penalty units.
(1) A traineeship may not be varied otherwise than in accordance with this section.(2) An application for variation of a traineeship may be made to the Commissioner by the employer or by the trainee.(3) The Commissioner shall deal with the application:(a) by approving the application, or(b) by dismissing the application, or(c) by referring the application to the Board.(4) The Board shall deal with an application referred to it under this section:(a) by approving the application, or(b) by dismissing the application.(5) A traineeship shall not be varied in a manner that contravenes any relevant vocational training guideline.
(1) If:(a) the employer of a trainee dies, and(b) the business in which the trainee was employed is carried on by the executors or administrators for the time being of the will or estate of the deceased employer,the traineeship shall be taken not to have been determined by the death of the employer.(2) Unless cancellation of the traineeship is approved by the Board on the application of those executors or administrators, or of the trainee, the traineeship continues to bind those executors or administrators as if they were the employers of the trainee.
60 Effect of change of composition of partnership etc
(1) If:(a) the employers of a trainee are partners in a partnership, and(b) the business in which the trainee is employed is carried on by the partners for the time being after a change in the composition of the partnership,the traineeship shall be taken not to have been determined by that change.(2) Unless cancellation of the traineeship is approved by the Board on the application of those partners, or of the trainee, the traineeship continues to bind those partners as if they were the employers of the trainee.
(1) As soon as practicable after a trainee completes his or her term of traineeship in a declared calling, the Commissioner shall, if satisfied that the trainee is adequately trained in that calling, cause a certificate of completion in that calling to be given to the trainee.(2) A trainee who has completed his or her term of traineeship in a declared calling, and who has successfully completed the required course of studies for that calling, is entitled to be issued instead with a certificate of proficiency in that calling.
62 Apprenticeships etc presumed to benefit apprentices etc
In the application of the Minors (Property and Contracts) Act 1970 to:(a) an apprenticeship into which a minor has entered as an apprentice, or(b) a traineeship into which a minor has entered as a trainee,the participation by the minor in the apprenticeship or traineeship shall, in the absence of evidence to the contrary, be taken to be for the benefit of the minor.
63 Premiums etc for entering apprenticeships etc
A person shall not:(a) directly or indirectly:(i) require or permit any other person to pay or to give, or(ii) demand or receive from any other person,any fee or reward, or(b) require any other person to enter into any bond or guarantee,for or with respect to that other person’s entering into an apprenticeship or traineeship with the first person, or with any other person, without having first obtained the consent of the Board.Maximum penalty: 10 penalty units.
64 Probationary apprentices not to be employed otherwise than in accordance with relevant vocational training order
An employer shall not employ a probationary apprentice in a declared trade otherwise than in accordance with the relevant vocational training order.Maximum penalty: 10 penalty units.