Part 4 Proceedings with respect to disputes and disciplinary matters
39 Complaints to be made to Commissioner
(1) A complaint that a party to an apprenticeship or traineeship has failed to discharge his or her obligations under the apprenticeship or traineeship may be made:(a) by the other party to the apprenticeship or traineeship, or(b) by an industry training officer who is a public servant.(2) A complaint that a party to an apprenticeship or traineeship has failed to comply with the requirements of this Act (whether or not that failure constitutes an offence) may be made by an industry training officer.(3) A complaint that a party to an apprenticeship or traineeship has refused to consent to the transfer, suspension, cancellation or variation of an apprenticeship or traineeship, may be made by the other party to the apprenticeship or traineeship.(4) A complaint must be lodged at, or sent by post to, the offices of the Commissioner.
40 Complaints that cannot be settled to be referred to Tribunal
(1) In the case of a complaint made by one of the parties to an apprenticeship or traineeship, the Commissioner must attempt to bring the parties to a settlement acceptable to each of them.(2) If such a settlement is not achievable, the Commissioner must refer the complaint to the Tribunal.(3) A complaint made by an industry training officer is to be referred directly to the Tribunal.
41 Suspension of apprenticeships and traineeships pending hearing
(1) If the Commissioner is satisfied that the gravity of a complaint justifies such action, the Commissioner may suspend the relevant apprenticeship or traineeship pending the hearing of the complaint.(2) The suspension of an apprenticeship or traineeship under this section has effect until the complaint is withdrawn or determined.
42 Tribunal to fix time and place for hearing complaints
The Tribunal must fix a time and place for the hearing of a complaint and must give notice of the time and place so fixed to the complainant and to each of the parties to the relevant apprenticeship or traineeship.
The parties to the hearing of a complaint are the complainant and each of the parties to the relevant apprenticeship or traineeship.
(1) The Tribunal is not bound by the rules of law governing the admission of evidence but may inform itself on any matter in such manner as it thinks fit.(2) A hearing must be conducted with as little formality and legal technicality as the circumstances of the case permit.(3) A hearing must be conducted in the absence of the public.(4) The Tribunal may from time to time adjourn a hearing to such time, date and place, and for such reasons, as it considers fit.
(1) A party to a complaint is not entitled to be represented by an Australian legal practitioner except with the consent of the Tribunal and of each of the other parties to the hearing.(2) This section:(a) does not prevent a party from being represented by an industrial organisation, and(b) does not prevent the Crown, or a party that is a corporation or an industrial organisation, from appearing by an Australian legal practitioner.(3) At any hearing at which the Crown, or a party that is a corporation or an industrial organisation, appears by an Australian legal practitioner, each of the other parties to the hearing is entitled to be represented at the hearing by an Australian legal practitioner.(4) In this section industrial organisation has the same meaning as it has in the Industrial Relations Act 1996.
46 Attendance of witnesses and production of documents
(1) The presiding member of the Tribunal:(a) may require a person:(i) to attend a hearing for the purpose of giving evidence, or(ii) to produce to the Tribunal any document that is relevant to a hearing,at a time, date and place specified in a notice served on the person, and(b) may require a person who attends a hearing to be sworn for the purpose of giving evidence on oath, and(c) may administer an oath to a person who attends a hearing for the purpose of giving evidence.(2) The Tribunal may retain possession of a document produced to it under this section for such period as it considers necessary for the purpose of completing the hearing.(3) A person (other than a public servant) who is required to attend or to give evidence at a hearing is entitled to be paid such allowances and expenses as may be prescribed by the regulations.(4) A person must not fail to comply with a requirement to attend a hearing, or to produce a document, to the extent to which the person is lawfully able to comply with the requirement.Maximum penalty (subsection (4)): 5 penalty units.
47 Witnesses to answer questions
(1) The presiding member of the Tribunal may require a person who attends a hearing to answer any question that is reasonably related to the hearing.(2) A person may refuse to answer a question on the ground that the answer might tend to incriminate the person.(3) A person:(a) must not fail to comply with a requirement to answer a question, to the extent to which the person is lawfully able to comply with the requirement, and(b) must not, in purported compliance with a requirement to answer a question, make a statement that the person knows to be false or misleading in a material particular.Maximum penalty: 5 penalty units.
(4) Subsection (3) (b) does not apply to statements made on oath.
A person must not misconduct himself or herself at a hearing.Maximum penalty: 5 penalty units.
Each party to a hearing is to bear his or her own costs of the hearing.
The Tribunal must not make a determination in relation to a complaint made by a party to an apprenticeship or traineeship until it has attempted to bring each of the parties to the apprenticeship or traineeship to a settlement acceptable to all of them.
(1) The Tribunal must determine a complaint made under section 39 (1) or (2):(a) by cautioning or reprimanding the person against whom the complaint has been made, or(b) by ordering the person against whom the complaint has been made to make such redress (otherwise than by way of damages for breach of contract) as the Tribunal considers appropriate, or(c) by varying, suspending or cancelling the apprenticeship or traineeship to which the complaint relates, or(d) by dismissing the complaint.(2) A complaint must not be determined as referred to in subsection (1) (a), (b) or (c) unless the Tribunal is satisfied that the person against whom the complaint has been made:(a) has failed to discharge his or her obligations under the apprenticeship or traineeship to which the complaint relates, or(b) has failed to comply with the requirements of this Act.(3) The Tribunal must not suspend or cancel an apprenticeship or traineeship under subsection (1) unless it is satisfied that:(a) one of the parties is unlikely to discharge his or her obligations under the apprenticeship or traineeship, and(b) if that party is the employer:(i) the other party is unwilling to allow another employer to assume those obligations, or(ii) no other employer can be found who is willing to assume those obligations.(4) The Tribunal must determine a complaint made under section 39 (3):(a) by directing that the requirement for consent referred to in that subsection be waived, or(b) by dismissing the complaint.(5) The Commissioner must give notice of the Tribunal’s determination to each of the parties to the hearing.(6) On the making of a determination that varies, suspends or cancels an apprenticeship or traineeship, the apprenticeship or traineeship is taken to be varied, suspended or cancelled, as the case may be, in accordance with the determination.
(1) If:(a) the Tribunal dismisses a complaint made by an employer, and(b) an apprenticeship or traineeship has been suspended by the Commissioner pending the hearing of the complaint, and(c) the employer has, under the terms of employment between the employer and the apprentice or trainee:the Tribunal must direct the employer to pay to the apprentice or trainee, and to contribute to any such scheme, specified amounts equivalent to the value of any right or benefit that the employer has failed to give or the amount of any payment that the employer has failed to contribute.(i) failed to give to the apprentice or trainee the whole, or any part, of any right or benefit (whether by way of remuneration or otherwise) to which the apprentice or trainee would, but for the suspension, be entitled, or(ii) failed to contribute to any superannuation scheme the whole, or any part, of any payment which the employer would, but for the suspension, be required to contribute in relation to the apprentice or trainee,(2) On the filing in the office or registry of a court having jurisdiction to order payment of an amount so specified of:(a) a copy of the direction, certified by the Commissioner to be a true copy, and(b) an affidavit by the apprentice or trainee specifying the amount unpaid under the direction,the direction is taken to be a judgment of that court for that amount.
53 Orders prohibiting employer from entering into apprenticeships and traineeships
(1) If, in determining a complaint against an employer under section 39 (1) or (2), the Tribunal is of the opinion that it is appropriate to do so in the public interest, the Tribunal:(a) may make an order declaring the employer to be a prohibited employer, either indefinitely or for a specified period, and(b) if it does so, may make a further order authorising the transfer to other employers of all or specified apprenticeships and traineeships to which the employer is party (including any apprentice or trainee involved in the proceedings on the complaint).(2) An order under this section may not be made unless the Tribunal:(a) has given notice to the employer of its intention to make such an order, and(b) has given the employer at least 21 days within which to make submissions to the Tribunal with respect to the proposed order, and(c) has taken any such submissions into consideration.(3) For the purposes of section 20 (4) (b), consent to the transfer of an apprentice or trainee to a new employer is not required from an existing employer the subject of an order referred to in subsection (1) (b).