Industrial and Commercial Training Act 1989 No 77

An Act to establish the Vocational Training Board; to define the functions of that body; to provide for the regulation of apprenticeships and traineeships; and for other purposes.

long title: Am 1994 No 33, Sch 2.

Part 1 Preliminary

1 Name of Act

This Act may be cited as the Industrial and Commercial Training Act 1989.

2 Commencement

(1)  This Act commences on a day or days to be appointed by proclamation.

(2)  Different days may be appointed for the commencement of section 101 in its application to different Acts or to different provisions of the same Act.

3 Object of Act

The object of this Act is to promote training within industry and commerce.

4 Definitions

(1)  In this Act:

Appeal Panel means the Appeal Panel constituted by section 85.

apprentice means a probationary apprentice, an indentured apprentice or a trainee apprentice.

apprenticeship means an apprenticeship established under Division 2 of Part 3.

Board means the Vocational Training Board of New South Wales constituted by section 16.

certificate of completion means a certificate issued under section 61, and includes a certificate of proficiency issued under that section.

certificate of identification means a certificate of identification issued under section 89.

Commissioner means the Commissioner for Vocational Training referred to in section 13.

craft certificate means a craft certificate issued under section 43, 81, 82 or 83, and includes a certificate of proficiency issued under any of those sections.

declared calling means a vocation that is the subject of an order in force under section 21 by which the vocation is designated to be a declared calling for the purposes of this Act.

declared trade means a vocation that is the subject of an order in force under section 21 by which the vocation is designated to be a declared trade for the purposes of this Act.

Department means the Department of Industrial Relations and Employment.

Director-General means the Director-General of the Department.

employer, in relation to an apprentice or trainee, means:

(a)  the person who is, pursuant to an apprenticeship or traineeship, the employer of the apprentice or trainee, or

(b)  the person who is, in the case of a probationary apprentice, the person by whom the apprentice is for the time being actually employed.

indentured apprentice means an employee who is a party to an indentured apprenticeship.

probationary apprentice means a person who is employed as an apprentice in a declared trade but in respect of whom:

(a)  an application for establishment of an apprenticeship has yet to be made, or

(b)  such an application has been made but has yet to be determined, or

(c)  such an application has been approved but an apprenticeship between the employer and the apprentice has yet to take effect.

public servant means an officer or temporary employee within the meaning of the Public Sector Management Act 1988.

qualified tradesperson, in relation to a trade, means:

(a)  a person who has a craft certificate in respect of that trade, or

(b)  a person who has qualifications and experience that, pursuant to a determination under section 81, 82 or 83, entitle the person to a craft certificate under any of those sections.

recognised trainee employer means an employer who is approved as a recognised trainee employer under section 44.

required course of on-the-job training, in relation to an apprentice or trainee who is employed in a declared trade or declared calling, means:

(a)  the course of on-the-job training that an apprentice or trainee is required by a vocational training order to undertake in connection with that trade or calling, or

(b)  if a vocational training direction allows the apprentice or trainee to undertake an alternative course of on-the-job training—the alternative course of on-the-job training.

required course of studies, in relation to an apprentice or trainee who is employed in a declared trade or declared calling, means:

(a)  the course of studies that an apprentice or trainee is required by a vocational training order to undertake in connection with that trade or calling, or

(b)  if a vocational training direction allows the apprentice or trainee to undertake an alternative course of studies—the alternative course of studies.

Secretary means the Secretary of the Department.

trainee means an employee who is a party to a traineeship.

trainee apprentice means an employee who is a party to a trainee apprenticeship.

traineeship means a traineeship established under Division 3 of Part 3.

training officer means a training officer appointed under section 19.

vocation includes trade and calling.

vocational training direction means a direction in force under section 32 or 50.

vocational training guideline means a guideline in force under section 23.

vocational training order means an order in force under section 22.

(2)  In this Act:

(a)  a reference to a function includes a reference to a power, authority and duty, and

(b)  a reference to the exercise of a function includes, where the function is a duty, a reference to the performance of the duty.

s 4: Am 1989 No 130, Sch 1; 1991 No 34, Sch 3; 1994 No 33, Sch 2; 1996 No 121, Sch 4.28 [1].

5 Relationship with Industrial Relations Act 1996

In the event of an inconsistency between:

(a)  the provisions of this Act, or of any regulation, vocational training order or vocational training direction made under this Act, and

(b)  the provisions of the Industrial Relations Act 1996 or of any regulation, order, award or agreement under that Act,

the provisions referred to in paragraph (a) shall prevail to the extent of the inconsistency.

s 5: Am 1990 No 113, Sch 2; 1991 No 34, Sch 3; 1996 No 121, Sch 4.28 [2].

6 Act binds Crown

This Act binds the Crown in right of New South Wales and, in so far as the legislative power of Parliament permits, the Crown in all its other capacities.

Part 2 Administration

Division 1

7–12   (Repealed)

pt 2, div 1: Rep 1994 No 33, Sch 2.

s 7: Am 1990 No 118, Sch 3. Rep 1994 No 33, Sch 2.

ss 8–12: Rep 1994 No 33, Sch 2.

Division 2 The Commissioner for Vocational Training

13 Appointment of the Commissioner

The Governor may, under and in accordance with the Public Sector Management Act 1988, appoint a Commissioner for Vocational Training.

14 Functions of the Commissioner

The Commissioner has such functions as are conferred or imposed on the Commissioner by or under this or any other Act.

15 Delegation by the Commissioner

The Commissioner may delegate to any person, or to any person belonging to a specified class of persons, any of the Commissioner’s functions (including his or her functions as member or Chairperson of the Board), other than this power of delegation.

Division 3 The Vocational Training Board

16 Establishment of the Board

(1)  There shall be a Vocational Training Board of New South Wales.

(2)  The Board shall consist of at least 4 members, of whom:

(a)  1 shall be the Commissioner, and

(b)  at least 1 shall be a person nominated for the time being by the Managing Director of the TAFE Commission for the purposes of this paragraph, and

(c)  at least 1 shall be a person appointed by the Minister to represent employers, and

(d)  at least 1 shall be a person appointed by the Minister to represent employees.

(3)  The Commissioner is the Chairperson of the Board.

(4)  Schedule 3 has effect with respect to the members of the Board.

(5)  Schedule 4 has effect with respect to the procedure of the Board.

s 16: Am 1990 No 118, Sch 3.

17 Functions of the Board

The Board has such functions as are conferred or imposed on it by or under this or any other Act.

18 Sittings of the Board

(1)  The Board shall, for the purpose of exercising its functions, be constituted by at least 4 of its members, of whom:

(a)  1 shall be the Commissioner or a person to whom the Commissioner has delegated his or her functions as Chairperson of the Board, and

(b)  1 shall be a member appointed by the Commissioner from among the persons referred to in section 16 (2) (b), and

(c)  at least 1 shall be a member appointed by the Commissioner from among the persons referred to in section 16 (2) (c), and

(d)  at least 1 shall be a member appointed by the Commissioner from among the persons referred to in section 16 (2) (d).

(2)  The number of members appointed from among the persons referred to in section 16 (2) (c) shall be the same as the number of members appointed from among the persons referred to in section 16 (2) (d).

(3)  More than 1 sitting of the Board may be held at any 1 time.

(4)  At any sitting of the Board, the Commissioner, or a person to whom the Commissioner has delegated his or her functions as Chairperson of the Board, shall be taken to be the Chairperson of the Board.

Division 4 Training officers

19 Appointment of training officers

(1)  The Commissioner may appoint such persons (whether public servants or otherwise) as the Commissioner thinks fit to be training officers, either for particular declared trades or declared callings or for declared trades and declared callings generally.

(2)  A training officer (other than a public servant) is entitled to such remuneration as the Commissioner may, with the approval of the Minister, determine in respect of the officer.

20 Functions of training officers

The functions of a training officer are:

(a)  to monitor the training provided by employers to apprentices and trainees, and

(b)  to report to the Commissioner on the adequacy of such training, either generally or in a particular case, and

(c)  to advise and assist employers in relation to the provision of training to apprentices and trainees, and

(d)  to advise and assist apprentices and trainees in relation to training being provided to them by employers, and

(e)  to exercise such other functions as are conferred or imposed on training officers by or under this Act,

in connection with each trade or calling in respect of which the officer is appointed.

Part 3 Industrial and commercial training

Division 1 Establishment of training schemes

21 Declared vocations

(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.

22 Vocational training orders

(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.

s 22: Am 1994 No 33, Sch 2.

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.

s 23: Am 1994 No 33, Sch 2.

Division 2 Apprenticeships

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.

28 Notice of determination

(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.

37 Courses of studies

(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.

s 37: Am 1994 No 33, Sch 2.

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.

41 Death of employer etc

(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.

Division 3 Traineeships

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.

47 Notice of determination

(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.

49 Conditions of traineeship

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.

54 Duties under traineeships

(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.

55 Courses of studies

(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.

s 55: Am 1994 No 33, Sch 2.

56 Assignment of traineeships

(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.

58 Variation of traineeships

(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.

59 Death of employer etc

(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.

61 Completion of traineeship

(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.

Division 4 General

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.

Part 4 Proceedings before the Vocational Training Board with respect to disputes and disciplinary matters

Division 1 Complaints

65 Complaints to be made to the 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 a training officer for the relevant trade or calling (other than a training officer who is not a public servant).

(2)  A complaint that a party to an apprenticeship or traineeship has refused to consent to:

(a)  the assignment of an indentured apprenticeship or traineeship, or

(b)  the suspension or cancellation of an apprenticeship or traineeship,

may be made by the other party to the apprenticeship or traineeship.

(3)  A complaint shall be lodged at, or sent by post to, the offices of the Commissioner.

66 Commissioner to refer complaints to the Board

(1)  The Commissioner shall refer all complaints to the Board for determination by the Board.

(2)  The Commissioner shall not refer to the Board a complaint made by a party to an apprenticeship or traineeship unless the Commissioner has attempted to bring each of the parties to the apprenticeship or traineeship to a settlement acceptable to all of them.

67 Suspension of apprenticeships etc 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.

(3)  The suspension of an apprenticeship or traineeship under this section does not, of itself, affect the relationship between the employer and the apprentice or trainee otherwise than in relation to instruction and training.

68 Board to fix time and place for hearing complaints

The Board shall fix a time and place for the hearing of a complaint and shall cause notice of the time and place so fixed to be given to the complainant and to each of the parties to the relevant apprenticeship or traineeship.

69 Parties

The parties to the hearing of a complaint are the complainant and each of the parties to the relevant apprenticeship or traineeship.

Division 2 Hearings

70 Procedure generally

(1)  The Board 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 shall be conducted with as little formality and legal technicality as the circumstances of the case permit.

(3)  A hearing shall be conducted in the absence of the public.

71 Legal representation

(1)  A party to a hearing is not entitled to be represented by a barrister or solicitor except with the consent of the Board 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 a barrister or solicitor.

(3)  At any hearing at which the Crown, or a party that is a corporation or an industrial organisation, appears by a barrister or solicitor, each of the other parties to the hearing is entitled to be represented at the hearing by a barrister or solicitor.

(4)  In this section:

industrial organisation has the same meaning as it has in the Industrial Relations Act 1996.

s 71: Am 1991 No 34, Sch 3; 1996 No 121, Sch 4.28 [2].

72 Attendance of witnesses etc

(1)  The Board:

(a)  may require a person:

(i)  to attend a hearing for the purpose of giving evidence, or

(ii)  to produce to the Board 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 Board may retain possession of a document produced to it pursuant to this section for such period as it considers necessary for the purpose of completing the hearing.

73 Witnesses to answer questions

(1)  The Board 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.

74 Refusal to attend or to answer questions etc

(1)  A person:

(a)  shall not fail to comply with a requirement to attend a hearing, or to produce a document or to answer a question, to the extent to which the person is lawfully able to comply with the requirement, and

(b)  shall 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.

(2)  Subsection (1) (b) does not apply to statements made on oath.

75 Witnesses’ expenses

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.

76 Adjournments

The Board may from time to time adjourn a hearing to such time, date and place, and for such reasons, as it considers fit.

77 Misconduct

A person shall not misconduct himself or herself at a hearing.

Maximum penalty: 5 penalty units.

78 Costs

Each party to a hearing shall bear his or her own costs of the hearing.

Division 3 Determinations

79 Conciliation

The Board shall 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.

80 Determinations

(1)  The Board shall determine a complaint made under section 65 (1):

(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 Board 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 shall not be determined as referred to in subsection (1) (a), (b) or (c) unless the Board is satisfied that the person against whom the complaint has been made has failed to discharge his or her obligations under the apprenticeship or traineeship to which the complaint relates.

(3)  The Board shall not cancel or suspend 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 Board shall determine a complaint made under section 65 (2):

(a)  by directing that the requirement for consent referred to in that subsection be waived, or

(b)  by dismissing the complaint.

(5)  The Commissioner shall cause notice of the Board’s determination to be given 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 shall be taken to be varied, suspended or cancelled, as the case may be, in accordance with the determination.

(7)  If:

(a)  the Board 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, pursuant to the terms of employment between the employer and the apprentice or trainee:

(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,

the Board shall direct the employer to pay to the apprentice or trainee, and to contribute to any such scheme, an amount equivalent to the value of any right or benefit that the employer has failed to give and the amount of any payment that the employer has failed to contribute.

(8)  Such a direction:

(a)  shall specify each amount to be paid under the direction, and

(b)  shall, on the filing of the prescribed documents in the office or registry of a court having jurisdiction to order payment of an amount so specified, be taken to be a judgment of that court for that amount.

(9)  The prescribed documents are:

(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.

Part 5 Recognition of other trade qualifications

81 Recognition of Defence Force trade training

(1)  In this section:

Defence Force means the Defence Force of the Commonwealth.

service adult trade training means training undertaken by a member of the Defence Force pursuant to a scheme (not involving apprenticeship) for the trade training of persons who are of or above the age of 17 years.

service apprenticeship means an apprenticeship served by a person as a member of the Defence Force.

(2)  The Board may confer with representatives of the Defence Force, on any matter concerning service apprenticeships or service adult trade training, with a view to ensuring that a person who has completed a service apprenticeship or a period of service adult trade training in a declared trade will be accorded recognition in that trade.

(3)  The Board may determine that the course of training provided for a class of service apprenticeship or service adult trade training in a declared trade is such that a person:

(a)  who satisfactorily completes the course, and

(b)  who complies with such further conditions as to experience or otherwise as the Board may determine,

is adequately trained to pursue that trade.

(4)  A determination under this section:

(a)  shall be set out in an instrument signed by the Commissioner, and

(b)  shall be filed by the Commissioner,

and a copy of the instrument shall be sent by the Commissioner to the relevant Defence Force authority.

(5)  The Commissioner shall issue a craft certificate or a certificate of proficiency, whichever is appropriate, to a person who satisfies the Commissioner that the person:

(a)  has satisfactorily completed the course of training to which such a determination relates, and

(b)  has complied with any other conditions prescribed by the determination.

82 Recognition of other qualifications

(1)  The Board may, on the application of any person or on its own motion, determine that a person:

(a)  who has specified qualifications in a declared trade (being qualifications obtained elsewhere than in New South Wales), and

(b)  who complies with such further conditions as to experience or otherwise as the Board may determine,

is adequately trained to pursue that trade.

(2)  A determination under this section:

(a)  shall be set out in an instrument signed by the Commissioner, and

(b)  shall be filed by the Commissioner.

(3)  The Commissioner shall issue a craft certificate or a certificate of proficiency, whichever is appropriate, to a person who satisfies the Commissioner that the person:

(a)  has the qualifications to which such a determination relates, and

(b)  has complied with any other conditions prescribed by the determination.

83 Recognition of other trade training

(1)  A person may apply to the Commissioner for recognition of the person’s qualifications or experience in a particular declared trade.

(2)  The Commissioner shall refer the application to the Board.

(3)  If the Board is satisfied that the applicant has acquired the skills of the declared trade, it may determine that the applicant is adequately trained to pursue that trade.

(4)  In making such a determination, the Board shall have regard to:

(a)  the length of time for which the applicant has been working in the declared trade, and

(b)  the nature and duration of any instruction or training received by the applicant in the declared trade, and

(c)  the nature of any qualifications held by the applicant in relation to the declared trade, and

(d)  such other matters (including the applicant’s performance in any examination or test set by the Board) as it considers relevant.

(5)  A determination under this section:

(a)  shall be set out in an instrument signed by the Commissioner, and

(b)  shall be filed by the Commissioner.

(6)  The Commissioner shall issue a craft certificate or a certificate of proficiency, whichever is appropriate, to the person to whom the determination relates.

Part 6 Review and appeals

Division 1

84   (Repealed)

pt 6, div 1 (s 84): Rep 1994 No 33, Sch 2.

Division 2 Appeals

85 Constitution of the Appeal Panel

(1)  There shall be an Appeal Panel.

(2)  The Appeal Panel shall consist of at least 3 persons, of whom:

(a)  at least 1 shall be an officer of the Department appointed by the Secretary, and

(b)  at least 1 shall be a person appointed by the Minister to represent employers, and

(c)  at least 1 shall be a person appointed by the Minister to represent employees.

(3)  Schedule 5 has effect with respect to the members of the Appeal Panel.

86 Appeals

An appeal to the Appeal Panel may be made, in accordance with the regulations:

(a)  from any decision by the Board or by the Commissioner dismissing an application for establishment of an apprenticeship or traineeship, or

(b)  from any vocational training direction made by the Board or by the Commissioner, or

(c)  from any decision by the Board or by the Commissioner dismissing an application for approval to the assignment of an indentured apprenticeship or traineeship, or

(d)  from any decision by the Board or by the Commissioner dismissing an application for variation of an apprenticeship or traineeship, or

(e)  from any decision by the Board or by the Commissioner pursuant to which an apprenticeship or traineeship has been varied, or

(f)  from any refusal by the Commissioner to issue a craft certificate or certificate of completion under Part 3 or 5, or

(g)  from any decision by the Board or by the Commissioner dismissing an application for approval as a recognised trainee employer, or

(h)  from any decision by the Commissioner refusing to refer a complaint under Part 4 for determination by the Board, or

(i)  from any determination by the Board in respect of a complaint under Part 4, or

(j)  from any determination by the Board under section 83 that denies recognition of a person’s qualifications or experience in a particular declared trade.

(k)    (Repealed)

s 86: Am 1994 No 33, Sch 2.

87 Sittings of the Appeal Panel

(1)  The Appeal Panel shall, for the purposes of hearing and determining an appeal, be constituted by 3 of its members, of whom:

(a)  1 shall be a member appointed by the Secretary from among the persons referred to in section 85 (2) (a), and

(b)  1 shall be a member appointed by the Secretary from among the persons referred to in section 85 (2) (b), and

(c)  1 shall be a member appointed by the Secretary from among the persons referred to in section 85 (2) (c).

(2)  The person referred to in subsection (1) (a) shall be the presiding member of the Appeal Panel for the purposes of the appeal in respect of which the Appeal Panel is constituted.

(3)  When constituted for the purposes of hearing and determining an appeal from a decision or determination by the Board, the Appeal Panel shall not be constituted so as to include a member of the Appeal Panel who is also a member of the Board.

(4)  More than 1 sitting of the Appeal Panel may be held at any 1 time.

88 Determination of appeals

(1)  An appeal shall be dealt with by way of a new hearing, and fresh evidence or fresh information may be given on the appeal.

(2)  The provisions of Division 2 of Part 4 apply to proceedings before the Appeal Panel in the same way as they apply to proceedings before the Board under that Part.

(3)  The provisions of Division 3 of Part 4 apply to proceedings before the Appeal Panel on an appeal from a determination by the Board under Part 4 in the same way as they apply to proceedings before the Board under that Part.

(4)  The decision of the Appeal Panel shall be given effect to as if it were the decision of the person or body in respect of whose decision, determination, action or failure to act the appeal has been made.

(5)  An appeal may be made to the Industrial Relations Commission from a decision of the Appeal Panel by leave of the Industrial Relations Commission.

(6)  An appeal under subsection (5) shall be heard and determined by the Industrial Relations Commission as if it were an application under the Industrial Relations Act 1996 for determination of an industrial matter.

(7)  The decision of the Industrial Relations Commission is final and shall be given effect to as if it were the decision of the person or body in respect of whose decision, determination, action or failure to act the appeal has been made.

s 88: Am 1991 No 34, Sch 3; 1996 No 121, Sch 4.28 [2].

Part 7 Miscellaneous

89 Powers of entry to premises etc

(1)  A training officer may exercise any one or more of the following powers:

(a)  such an officer may enter any premises or place in or on which a declared trade or declared calling is conducted,

(b)  such an officer may examine:

(i)  any plant, equipment, material or substance used in relation to any such trade or calling, and

(ii)  any document relating to any such trade or calling,

found in or on the premises or place,

(c)  such an officer may take copies of, or extracts or notes from, any document relating to any such trade or calling found in or on the premises or place,

(d)  such an officer may require any person found in or on the premises or place to produce:

(i)  any plant, equipment, material or substance used in relation to any such trade or calling, or

(ii)  any document relating to any such trade or calling,

that is in the possession or under the control of that person.

(2)  A person shall not fail to comply with a requirement made by a training officer under subsection (1) (d).

Maximum penalty: 10 penalty units.

(3)  A training officer may exercise any power conferred by this section at any reasonable time during normal business hours.

(4)  This section does not authorise the exercise of any power conferred by this section in or on any residential premises or in relation to any person found in or on any residential premises.

(5)  In exercising in or on any premises or place any power conferred by this section, a training officer:

(a)  shall, if required to do so by a person apparently occupying the premises or place, produce to that person the officer’s certificate of identification, and

(b)  shall, as far as practicable, avoid doing anything which is likely to impede the lawful conduct of any trade or calling being carried out in or on the premises or place.

(6)  A training officer shall, for the purposes of this section, be issued with a certificate of identification that is in or to the effect of the prescribed form.

(7)  A training officer who is not a public servant does not have, and may not exercise, the powers conferred by this section.

90 Search warrants

(1)  A training officer may apply to an authorised justice for a search warrant if the officer has reasonable grounds for believing that a provision of this Act or the regulations is being or has been contravened in or on any premises or place.

(2)  An authorised justice to whom such an application is made may, if satisfied that there are reasonable grounds for doing so, issue a search warrant authorising a training officer named in the warrant:

(a)  to enter the premises or place, and

(b)  to search the premises or place for evidence of a contravention of this Act or the regulations.

(3)  Part 3 of the Search Warrants Act 1985 applies to a search warrant issued under this section.

(4)  Without limiting the generality of section 18 of the Search Warrants Act 1985, a member of the police force:

(a)  may accompany a training officer executing a search warrant issued under this section, and

(b)  may take all reasonable steps to assist the officer in the exercise of the officer’s functions under this section.

(5)  In this section:

authorised justice has the same meaning as in the Search Warrants Act 1985.

(6)  A training officer who is not a public servant does not have, and may not exercise, the powers conferred by this section.

s 90: Am 1991 No 92, Sch 2.

91 Obstruction etc of training officers

A person shall not assault, delay, obstruct, hinder or impede a training officer in the exercise of the officer’s functions under this Act.

Maximum penalty: 10 penalty units.

92 False or misleading information

A person shall not, in or in relation to any application under this Act, make any statement or furnish any information that the person knows to be false or misleading in a material particular.

Maximum penalty: 20 penalty units.

93 Disclosure of business information

(1)  A person shall not disclose any business information obtained in connection with the administration or execution of this Act unless that disclosure is made:

(a)  with the consent of the person from whom the information was obtained, or

(b)  in connection with the administration or execution of this Act, or

(c)  for the purposes of any legal proceedings arising out of this Act or of any report of any such proceedings, or

(d)  in accordance with a requirement imposed under the Ombudsman Act 1974, or

(e)  with other lawful excuse.

Maximum penalty: 20 penalty units.

(2)  In this section:

business information means:

(a)  trade secrets, or

(b)  information (other than trade secrets) that is of commercial value, or

(c)  information concerning the business or financial affairs of the person from whom the information is obtained.

94 Proceedings for offences

(1)  Proceedings for an offence against this Act or the regulations shall be dealt with summarily before a Local Court constituted by a Magistrate sitting alone.

(2)  Proceedings for an offence against this Act or the regulations shall not be instituted otherwise than by:

(a)  the Minister or the Commissioner, or

(b)  a person duly authorised by the Minister or the Commissioner in that behalf, either generally or in a particular case.

s 94: Am 1991 No 34, Sch 3.

95 Applications and notices

(1)  An application that, pursuant to this Act or the regulations, may be made to the Commissioner or to the Board:

(a)  shall be in such form as may be approved for the time being by the Commissioner, and

(b)  shall be lodged at, or sent by post to, the offices of the Commissioner.

(2)  A notice that the Commissioner is required or permitted to cause to be given to a person may be served personally or by means of a letter addressed to the person at the person’s address last known to the Commissioner.

96 Evidentiary certificates

A certificate that is signed by the Commissioner and that certifies that on a specified date or during a specified period:

(a)  a specified person was or was not a training officer, or

(b)  a specified person was or was not a party to an apprenticeship or traineeship, or

(c)  the provisions of a specified apprenticeship or traineeship were or were not in specified terms, or

(d)  the provisions of a specified vocational training direction were or were not in specified terms,

is admissible in any proceedings and is evidence of the fact or facts so certified.

97 Publication of certain matters

(1)  It is sufficient compliance with a requirement of this Act that matter be published in the Gazette if the matter is instead published in the Industrial Gazette.

(2)  Evidence of any such matter may be given by the production of a copy of the Gazette, or of the Industrial Gazette, in which the matter has been published.

98 Liability

No matter or thing done by:

(a)    (Repealed)

(b)  the Commissioner, or

(c)  the Board or any member of the Board, or

(d)  a training officer, or

(e)  any person acting under the direction of the Board or the Commissioner,

shall, if the matter or thing was done in good faith for the purposes of executing this Act, subject the Commissioner, any member of the Board, any training officer or any person so acting, personally, to any action, liability, claim or demand.

s 98: Am 1994 No 33, Sch 2.

99 (Repealed)

s 99: Rep 1994 No 33, Sch 2.

100 Regulations

(1)  The Governor may make regulations, not inconsistent with this Act, for or with respect to any matter that by this Act is required or permitted to be prescribed or that is necessary or convenient to be prescribed for carrying out or giving effect to this Act and, in particular, for or with respect to:

(a)  the lodgment, variation and withdrawal of applications, and

(b)  the terms and conditions of apprenticeships and traineeships, and

(c)  the registration of employers in connection with apprenticeships and traineeships, and

(d)  the proportion of apprentices to skilled tradesmen who may be employed by employers in specified trades, and

(e)  the instruction and practical training to be provided for and undertaken by apprentices and trainees, and

(f)  the supervision of apprentices and trainees by their employers, and

(g)  the facilities to be provided for apprentices and trainees for the purpose of their being trained by their employers, and

(h)  the temporary transfer of apprentices and trainees to the service of alternative employers, and

(i)  the issue, renewal, transfer and cancellation of progress cards in relation to apprentices, the completion of such cards and their return to the Commissioner, and

(j)  the recognition of group training schemes, and

(k)  the keeping of records, and

(l)  the forms to be used for the purposes of this Act, and

(m)  any other matter relating to the instruction or practical training of apprentices and trainees by their employers.

(2)  A regulation may create an offence punishable by a penalty not exceeding 10 penalty units.

101 Repeals

The Apprenticeship Act 1981 and the Commerce and Industry Training Council Act 1985 are repealed.

102 Savings, transitional and other provisions

Schedule 6 has effect.

Schedules 1, 2 (Repealed)

sch 1: Rep 1994 No 33, Sch 2.

sch 2: Rep 1994 No 33, Sch 2.

Schedule 3 Provisions with respect to the members of the Vocational Training Board

(Section 16)

1 Definitions

In this Schedule:

appointed member means a member of the Board referred to in section 16 (2) (c) or (d).

2 Nomination of appointed members

An appointed member:

(a)  in the case of a member appointed to represent employers:

(i)  shall be nominated for appointment in the prescribed manner by such employers, or by such associations or industrial unions of employers, as may be prescribed, or

(ii)  if no such nomination is made within a reasonable time after the Minister requests such a nomination to be made, shall be appointed by the Minister without the necessity for nomination, and

(b)  in the case of a member appointed to represent employees:

(i)  shall be nominated in the prescribed manner by such industrial unions of employees as may be prescribed, or

(ii)  if no such nomination is made within a reasonable time after the Minister requests such a nomination to be made, shall be appointed by the Minister without the necessity for nomination.

3 Acting members

(1)  The Minister may appoint a person to act in the position of an appointed member.

(2)  An acting appointed member, while so acting, has all the functions of the member for whom the acting member is acting and shall be taken to be that member.

(3)  A person, while acting in the position of an appointed member, is entitled to be paid such remuneration (including travelling and subsistence allowances) as the Minister may determine in respect of the person.

4 Term of office

Subject to this Schedule, an appointed member shall hold office for such period, not exceeding 5 years, as may be specified in the member’s instrument of appointment, but is eligible (if otherwise qualified) for re-appointment.

5 Remuneration

An appointed member is entitled to be paid such remuneration (including travelling and subsistence allowances) as the Minister may from time to time determine in respect of the member.

6 Vacancy in office of appointed member

(1)  An appointed member ceases to hold office:

(a)  if the member:

(i)  dies, or

(ii)  completes a term of office and is not re-appointed, or

(iii)  resigns the office by instrument in writing addressed to the Minister, or

(iv)  is removed from office by the Minister, or

(b)  if the person or body by whom the member was nominated for appointment withdraws the nomination in the prescribed manner.

(2)  The Minister may remove an appointed member from office at any time.

7 Filling of vacancies

If the office of an appointed member becomes vacant, a person shall, subject to this Act, be appointed to fill the vacancy.

Schedule 4 Provisions with respect to the procedure of the Vocational Training Board

(Section 16)

1 Convening meetings

A meeting of the Board shall be convened by the Commissioner:

(a)  whenever he or she thinks fit, or

(b)  within 5 days of receipt of a written request signed by any 2 other members of the Board.

2 Rules for conduct of business

The procedure for the conduct of business at a meeting of the Board shall, subject to this Act and the regulations, be as determined by the Board.

3 Quorum

The quorum for a meeting of the Board is 2 members, of whom 1 must be the Commissioner.

4 Procedure and decisions of the Board

(1)  The Chairperson of the Board shall preside at a meeting of the Board.

(2)  A member of the Board referred to in section 16 (2) (b) is not entitled to vote at any meeting of the Board, but is entitled to be heard on any matter that is before the Board.

(3)  The Chairperson of the Board has a deliberative vote at any meeting of the Board and, in the event of an equality of votes, has a second or casting vote.

5 Chairperson may act as Board when other members are absent etc

(1)  Where, with respect to a matter arising at a meeting of the Board, there are no votes of the other members of the Board, the Chairperson of the Board may decide the matter, in which case the matter shall be taken to have been decided by the Board at the meeting.

(2)  If:

(a)  the Chairperson of the Board is present at a duly convened meeting of the Board or at a time and place to which any such meeting has been adjourned, and

(b)  all of the other members of the Board are absent from the meeting or from the place at that time,

any matter that the Board is competent to deal with may be dealt with by the Chairperson, in which case the matter shall be taken to have been dealt with by the Board at a meeting.

6 Schedule not to apply to proceedings under Part 4

This Schedule does not apply to the procedure of the Board in the exercise of its functions under Part 4.

Schedule 5 Provisions with respect to the members of the Appeal Panel

(Section 85)

1 Definitions

In this Schedule:

appointed member means a member of the Appeal Panel referred to in section 85 (2) (b) or (c).

2 Term of office

Subject to this Schedule, an appointed member shall hold office for such period, not exceeding 5 years, as may be specified in the member’s instrument of appointment, but is eligible (if otherwise qualified) for re-appointment.

3 Remuneration

An appointed member is entitled to be paid such remuneration (including travelling and subsistence allowances) as the Minister may from time to time determine in respect of the member.

4 Vacancy in office of member

(1)  The office of an appointed member becomes vacant if the member:

(a)  dies, or

(b)  completes a term of office and is not re-appointed, or

(c)  resigns the office by instrument in writing addressed to the Secretary, or

(d)  is removed from office by the Minister, or

(e)  becomes bankrupt, applies to take the benefit of any law for the relief of bankrupt or insolvent debtors, compounds with his or her creditors or makes an assignment of his or her remuneration for their benefit, or

(f)  becomes a temporary patient or a continued treatment patient within the meaning of the Mental Health Act 1958, a forensic patient within the meaning of the Mental Health Act 1983 or a protected person within the meaning of the Protected Estates Act 1983, or

(g)  is convicted in New South Wales of an offence that is punishable by imprisonment for 12 months or more or is convicted elsewhere than in New South Wales of an offence that, if committed in New South Wales, would be an offence so punishable.

(2)  The Minister may remove an appointed member from office at any time on the grounds of incompetence, incapacity or misbehaviour.

5 Filling of vacancy in office of member

If the office of an appointed member becomes vacant, a person shall, subject to this Act, be appointed to fill the vacancy.

sch 5: Am 1999 No 94, sec 7 (2) and Sch 5, Part 2.

Schedule 6 Savings, transitional and other provisions

(Section 102)

Part 1 Preliminary

1 Regulations

(1)  The regulations may contain provisions of a savings or transitional nature consequent on the enactment of the following Acts:

This Act

Industrial Arbitration (Industrial and Commercial Training) Amendment Act 1989

Miscellaneous Acts (Industrial and Commercial Training) Amendment Act 1989

Board of Vocational Education and Training Act 1994.

(2)  Such a provision may, if the regulations so provide, take effect on the date of assent to the Act concerned or a later date.

(3)  To the extent to which such a provision takes effect on a date that is earlier than the date of its publication in the Gazette, the provision does not operate so as:

(a)  to affect, in a manner prejudicial to any person (other than the State or an authority of the State), the rights of that person existing before the date of that publication, or

(b)  to impose liabilities on any person (other than the State or an authority of the State) in respect of anything done or omitted to be done before the date of that publication.

Part 2 Provisions consequent on the enactment of the Industrial and Commercial Training Act 1989

2 Definitions

(1)  In this Part:

the 1981 Act means the Apprenticeship Act 1981.

the 1985 Act means the Commerce and Industry Training Council Act 1985.

(2)  The provisions of a regulation referred to in clause 1 shall, to the extent to which they consist of provisions of a savings or transitional nature consequent on the enactment of the Industrial and Commercial Training Act 1989, be taken to be included within this Part.

3 Pending proceedings etc

(1)  Any proceedings that were pending before:

(a)  an apprenticeship training committee, or

(b)  the Industrial Commission, or

(c)  an industrial magistrate,

before the commencement of this clause may be continued and completed, and any order may be made in those proceedings and shall (subject to this Part) be given effect to, as if this Act had not been enacted.

(2)  The provisions of this Part apply to and in respect of any order made, or anything done, by:

(a)  an apprenticeship training committee, or

(b)  the Industrial Commission, or

(c)  an industrial magistrate,

in any such proceedings as if the order had been made, or the thing done, immediately before the commencement of this clause.

4 Pending appeals

(1)  For the purposes of any appeal proceedings, the decision of an apprenticeship training committee under the 1981 Act shall be taken to be a decision of the Board.

(2)  This clause does not apply to any appeal proceedings that were pending before the Industrial Commission before the commencement of this clause.

5 Abolition of Councils

(1)  The New South Wales Apprenticeship Council and the Commerce and Industry Training Council of New South Wales are abolished.

(2)  A reference in any Act or statutory instrument, or in any other document, to:

(a)  the New South Wales Apprenticeship Council, or

(b)  the Commerce and Industry Training Council of New South Wales,

shall, on and from the commencement of this clause, be read as a reference to the Council constituted by section 7.

6 Apprenticeship training committees

(1)  On the commencement of this clause:

(a)  each apprenticeship training committee established under the 1981 Act is dissolved, and

(b)  each member of any such committee shall become a member of the Board.

(2)  A person who becomes a member of the Board pursuant to this clause shall, subject to this Act, hold office as such for 3 years from the commencement of this clause.

7 Apprenticeship supervisors

(1)  A person who was an apprenticeship supervisor under the 1981 Act immediately before the commencement of this clause shall be taken to be a training officer under this Act.

(2)  A reference in any Act or statutory instrument, or in any other document, to an apprenticeship supervisor shall, on and from the commencement of this clause, be read as a reference to a training officer.

8 Apprenticeships

An apprenticeship in force immediately before the commencement of this clause under Division 2 or 3 of Part 4 of the 1981 Act shall be taken to be an indentured apprenticeship or trainee apprenticeship, as the case may be, established under this Act.

9 Certificates

A certificate issued under section 28 or 29 of the 1981 Act before the commencement of this clause, or issued under that section as a consequence of the operation of clause 3, shall be taken to be a craft certificate issued under section 43 of this Act.

10 Defence Force determinations

On and from the commencement of this clause:

(a)  a determination under section 35 of the 1981 Act shall be taken to be a determination under section 81 of this Act, and

(b)  an instrument filed under section 35 of the 1981 Act shall be taken to be an instrument filed under section 81 of this Act, and

(c)  a certificate issued under section 35 of the 1981 Act shall be taken to be a craft certificate issued under section 81 of this Act.

11 Regulations

On and from the commencement of this clause, all regulations under the 1981 Act and the 1985 Act are repealed.

12 Evidence

Evidence of any order, decision, ruling or determination made under the authority of the 1981 Act may, on and from the commencement of this clause, be given by the production of a copy thereof duly certified by the Commissioner.

13 Construction of references to repealed Acts

A reference in any Act or statutory instrument, or in any other document, to the 1981 Act or to the 1985 Act shall, on and from the date of assent to this Act, be read as including a reference to this Act.

14 The Director of Apprenticeship

A reference in any Act or statutory instrument, or in any other document, to the Director of Apprenticeship shall, on and from the commencement of this clause, be read as a reference to the Commissioner.

Part 3 Provisions consequent on the enactment of the Board of Vocational Education and Training Act 1994

15 Definitions

In this Part:

amending Act means the Board of Vocational Education and Training Act 1994.

16 Dissolution of the Council

(1)  The Industrial and Commercial Training Council is dissolved.

(2)  The assets and liabilities of the Council become the assets and liabilities of the Crown.

(3)  A reference in any Act or instrument to the Industrial and Commercial Training Council is taken to include a reference to the Director-General.

17 Vocational training orders and guidelines

A vocational training order or vocational training guideline that was in force immediately before the commencement of this clause is taken to be a vocational training order or vocational training guideline in force under this Act, as amended by the amending Act.

sch 6: Am 1994 No 33, Sch 2.