Department of Industry, Skills and Regional Development ... · Department of Industry, Skills and...

Department of Industry, Skills and Regional Development Level 12, 1 Oxford Street Darlinghurst NSW 2010 19th September, 2016 Dear Sir/Madam,

Re: Review of Apprenticeships and Traineeships in New South Wales Thank you for the opportunity to present comment for the review of the Apprenticeships and Traineeships in New South Wales. Please find attached Master Builders Association of NSW submission. Should you have any questions regarding this submission, please do not hesitate to contact the undersigned on 02 8586 3555. Regards,

Brian Seidler Executive Director

Master Builders Submission - Review of Apprenticeship and Traineeship Act of 24 19th September, 2016

Table of Contents

Contents Part 1 ........................................................................................................................ 4

Introduction .......................................................................................................... 4

About the Master Builders Association of NSW ..................................................... 5

Part 2 ........................................................................................................................ 6

Providing flexibility in training arrangements......................................................... 6

Alternative models for apprenticeships and traineeships ...................................... 8

Establishing apprenticeships and traineeships ....................................................... 9

Training contracts are binding ............................................................................. 11

Roles and responsibilities .................................................................................... 12

The development of a training plan ..................................................................... 14

Cancellation of apprenticeships and traineeships ................................................ 15

Certification ......................................................................................................... 17

Registration of group training organisations ........................................................ 18

Dealing with disputes, complaints and appeals .................................................... 19

Sanctions ............................................................................................................. 20

Trade Recognition ............................................................................................... 21

The Regulation .................................................................................................... 22

Conclusion ............................................................................................................... 23


Part 1 Introduction This submission is made by the Master Builders Association of New South Wales (Master Builders). The submission is defined in three key parts. Part 1 of this submission introduces Master Builders and provides a synopsis of Master Builders and its history of engagement with education and training in the building and construction industry. Part 2 of the submission provides responses to the items for consideration posed in the Consultation Paper released by the Department of Industry and discussed at recent briefings held by the Department. Following Part 2 is the Conclusion, which summarises key points and includes additional items for consideration.


About the Master Builders Association of NSW The Master Builders is the oldest industry association in Australia, having been founded in Sydney in 1873. It is the only industry body representing the key building construction sectors - residential, commercial, engineering and civil construction. Throughout Master Builders’ long history, it has made a strong direct contribution to the training and education of building and construction industry (industry) participants. Master Builders has been operating a Registered Training Organisation (RTO) for nearly 20 years and in 2014, Master Builders established an Education Centre in North West Sydney which enabled it to commence training of apprentices. Master Builders’ Group Training Organisation (GTO) is the oldest GTO operating in NSW and currently employs approximately 280 apprentices. Also, Master Builders Industrial Relations Department has represented the building and construction industry to the Vocational Training Tribunal for some 40 years. Master Builders has a robust and active membership which is organised into 28 Divisions throughout New South Wales. Each Division conducts regular meetings and has an elected President (honorary) and an Executive Committee to represent the interests of their local members to the Association’s peak decision making body, the Council of Management. This member structure provides a true democratic process for the formation of policy by a diverse group of building and construction industry professionals. Master Builders currently represents approximately 8,000 members in NSW. Master Builders Head Office is located at Forest Lodge, Sydney and its Education Centre is located in Norwest Business Park, Baulkham Hills. Master Builders has dedicated regional offices in Ballina, Port Macquarie, Newcastle, Gosford, Wollongong, Ulladulla, Albury and Orange.


Part 2 Providing flexibility in training arrangements Are Vocational Training Orders still required to determine which qualifications should provide apprenticeship or traineeship pathways? Do Vocational Training Orders restrict innovation in apprenticeships and traineeships or are there other employment and training models that should be available as apprenticeships and traineeships? How can we increase flexibility to meet employer and apprentice/trainee needs? Do Vocational Training Orders adequately support competency based progression and completion of apprenticeships and traineeships? Are there any other ways that the Act or the Department’s policies and procedures could better facilitate flexibility in apprenticeship and traineeship arrangements? Response: Vocational Training Orders (VTOs) continue to play an important role within traineeships and apprenticeships in NSW. They set the parameters for delivery of training by employers and training providers to apprentices and trainees. VTOs should continue to align with prevailing industrial Awards and arrangements. VTOs do not currently place any restriction on innovation and generally provide flexibility to employers and training providers in relation to delivering full qualifications. It is the responsibility of employers and training providers to work within the guidelines that the VTO offers. However, the apprenticeship system seems misaligned with an important aspect of the building and construction industry. That is, the work is often undertaken by sub-contractors who increasingly specialise resulting in niche or narrow job roles. The current apprenticeship system does not have the flexibility to train in specific skill sets and allow step-on and step-off points. Apprentices who step off are “incomplete” even though they have been thoroughly educated and skilled in their sphere of work. Industry recognised skill sets are a defined, narrow set of skills in a job role that is supported by a select group of units of competency.


VTOs should be made more flexible by allowing for step off points throughout an apprenticeship or traineeship. These step off points would be identified by industry recognised skill sets. For example, within the building and construction industry, a recognised skill set may result in a participant becoming qualified to erect timber frames and trusses, which is a niche job role currently being occupied within the industry. Step-off points should then be recognised by formal certification from the RTO, in the form of an enhanced Statement of Attainment. Master Builders recognises the significant difference this would create within a VTO and strongly holds the view that the stature of established trades should not be reduced or negatively impacted by the creation of skill set step-off points. The full qualification and apprenticeship should be maintained and represent a higher and broader attained level of skill and knowledge. The fundamental support of competency based progression and completion is seen in the fact that the term is nominal, therefore allowing those who achieve more quickly to earn qualifications faster. Although, the Master Builders strongly urges a significant amendment to the competency based completion process. Currently, many employers experience difficulties in relationships with apprentices and trainees on receipt of the Competency Based Completion letter (giving 21 days of notice to the employer of intention to complete the apprenticeship). Apprentices and employers may disagree on the completion, skills, knowledge and capability of the apprentice/trainee at this time. Master Builders recommends a return to the previous process whereby employers were informed that an apprentice or trainee has successfully completed their qualification with the RTO and provides the opportunity for the employer and apprentice/trainee to apply for competency based completion. This reflects “opting in” to competency based completion, rather than the current system, which provides an “opt out” of competency based completion principle.


Alternative models for apprenticeships and traineeships What alternate models for apprenticeships and traineeships could be considered by NSW? Are there international apprenticeship models that are applicable to NSW? Is there an opportunity to increase flexibility to meet employer, apprentice and trainee needs? Response: Alternate models for apprenticeships and traineeships that may be considered by the NSW Government (Government) should allow for the inclusion of step off points throughout the contract term (as discussed in the previous section).


Establishing apprenticeships and traineeships Is the current apprenticeship model of an integrated program of paid work, on the job training and attainment of the relevant qualification still relevant? Does the Act or do the Department’s policies and procedures create any barriers or impediments for the organisations, bodies and individuals involved in the establishment of apprenticeships and traineeships? Should casual employees be able to enter into training contracts for an apprenticeship or traineeship? Should independent contractors be able to undertake an apprenticeship if they were able to nominate an independent qualified person as their supervisor? Are there measures that could be taken to simplify the current process of establishing apprenticeships or traineeships? Is there a need for the Act to deal with the roles and responsibilities of a third party acting on the employer’s behalf in the relationship to the establishment of apprenticeships or traineeship arrangements? Should the definition of “junior” be changed to persons less than 18 years of age? Response: The current model of an apprenticeship being based on paid work, on the job training and formal study within a qualification is still relevant. Master Builders believes that the establishment of apprenticeship and traineeship contracts should become more modern, by being moved to a simplified online process and system, rather than the antiquated paper based system that is currently in use. This would have a significant effect on the speed of issuance of a Training Contract Identification (TCID) number for the apprentice and trainee. Currently, a TCID may not be approved for up to six weeks after the lodgement of the National Training Contract. The delays experienced by using a paper based system have a flow on effect to the apprentice or trainee, and may include:

• Trade Support Loans are not able to be established • Enrolments with training providers (e.g. TAFE) may not be confirmed • Concession Card for public transport is delayed

Arguably, this is the time that an apprentice or trainee most needs the support that these items offer, as they may have only just commenced working and earning an income.


Master Builders suggests that the TCID should be immediately available, but with a “pending” status. This would allow the apprentice or trainee to move forward with the support that the above items offer. The TCID would be then moved to an “approved” status when:

• all signatures are finalised on the contract, including parents or guardians for those under 18 years of age;

• the VTO that the apprentice or trainee is enrolling into is confirmed as current;

• the employer is not a prohibited employer; • credit checks have been finalised; and • the relevant probation period has been completed.

This will also benefit the employer and training provider who will be able to register all details related to the apprenticeship or traineeship at commencement. An RTO will also be able to finalise a full training plan sooner. An apprenticeship or traineeship should not be offered for those working ‘casually’ as a casual employee. There is no guarantee of sufficient work for the employee. The nature of casual work implies that the commitment of hours by the employer is variable and does not support the consistent learning of skills. Similarly, subcontractors should not be able to enter into an apprenticeship or traineeship, as the nature of the engagement does not provide adequate protection of a binding agreement that reflects a commitment to training and learning. Permanent employment, therefore, is the correct employment basis on which apprenticeships and traineeships should be based. The Act should not specifically address a third party’s involvement in the process of establishing an apprenticeship or traineeship on behalf of an employer. The decision to engage an apprentice or trainee must be made by the employer directly. Master Builders believes, however, that the Act should address the key roles and responsibilities of the Australian Apprenticeship Support Network (AASN) providers and their representatives. Currently, the Act is silent on these responsibilities, which are key to the establishment, monitoring and management of an apprenticeship or traineeship. The term “junior” should remain as those under the age of 21 years.


Training contracts are binding Is it appropriate to maintain the classification of trainee apprentice? Should the binding clause only apply while the employment relationship is in place? From an industrial perspective, can an apprenticeship exist without employment? Response: Master Builders supports the retention of the classification of trainee apprentices. The historical difference between trainee and indentured apprentice has served the NSW system well in the past and should be maintained into the future. Master Builders agrees that the binding clause should only apply while the employment relationship is in place. An apprenticeship cannot and should not exist without employment.


Roles and responsibilities Is the Act or the Department’s policies and procedures regarding the roles & responsibilities of the parties too prescriptive? Are the roles, responsibilities and obligations of all organisations, bodies and individuals who are routinely involved in influencing apprenticeship and traineeship commencements and completions covered adequately? Are there any terms or references, which routinely influence apprenticeship and traineeship commencements/completions, not adequately accommodated for in the Act? Should there be any distinction between the hosting arrangements for Group Training Organisations and other employers? Does the Act or the Department’s policies and procedures adequately deal with the role of a registered training organisation and their responsibilities in supporting the conduct of an apprenticeship or traineeship in a manner that meets the needs of the learner and the employer? Response: Master Builders does not believe that the Act, or the Department’s policies and procedures, are too prescriptive. In the vocational education and training sector, prescriptive definitions and responsibilities are needed. Further, Master Builders identifies that the roles and responsibilities of those influencing apprenticeships and traineeships are not adequately addressed. There is a lack of compulsion within the Act, and the Department’s policies and procedures, to follow Guidelines such as the Smart and Skilled Operating Guidelines, and the Full Training Plan Guidelines. Host employers operating within Group Training Organisations are not adequately identified throughout the legislation. Effectively, the host employer has the same obligations as the legal employer in respect of the safety and well-being of apprentices on site. The responsibilities of the host employer should be more prescriptive.


AASN providers should be added to the Act, policies and procedures, in relation to roles and responsibilities. In particular, the AASN should be identified by their responsibility to:

• advise employers, apprentices and trainees; • undertake monitoring and mentoring visits; • report to employers and Training Services NSW; • establish contracts; and • process withdrawals and completions.

A significant influence on the progression of apprentices and trainees is the funding and payment structure to RTOs. The Act does not effectively or adequately support the quality of training delivery. There is a requirement for the Act to be stronger, more comprehensive and deeper in its regulation of GTOs, their dealings with host employers and support of apprentices/trainees. Items that should be regulated include:

• mentoring and pastoral care; • standards for acceptability of management systems within host training

employers; • consideration provided in relation to the acceptability of host employers

based on their history of engagement with apprentices and trainees; • the host employer’s proven history in relation to work health and safety; and • the need for a GTO to have an identified Employee Assistance Program (EAP).


The development of a training plan Does the Act or do the Department’s policies and procedures create any barriers or impediments for the organisations, bodies and individuals involved in the development and use of the Training Plan? Does the Act adequately deal with the roles, responsibilities and obligations of the registered training organisation, concerning the development of a Training Plan consistent with the National Training Plan Template? Should the Act identify the roles, responsibilities and obligations for registered training organisation to support the employer, apprentice/trainee in the apprenticeship or traineeship system or is the current policy sufficient? Response: The distinct absence of Training Plans from RTOs in the last 18 months has identified that the Guidelines, Act and the Department’s policies are inadequate in compelling employers and RTOs to follow their responsibilities in relation to Training Plans. The policies and procedures of the Department seem to lack effect or force in monitoring RTOs in their use of Training Plans. Further, there appears to be no identified sanction of RTOs that do not adhere to Training Plan Guidelines. One of the key issues in relation to Training Plans is many employers’ limited understanding of their obligations and the importance of their role in the Training Plan. Basically, many employers have a very limited understanding of the significance of signing for the competence of the apprentice or trainee in relation to individual units of competency. The Act should pick up the important role of the RTO in the development and regular issuance of Training Plans. The Act needs to be more prescriptive in this area to compel RTOs to ensure Training Plans are being used for their desired purpose. The Act should include and support the RTOs obligations and responsibilities for Training Plans. It appears that the Guidelines for Training Plans are inadequate, with a need for the Act to demand adherence to the guidelines by the RTO.


Cancellation of apprenticeships and traineeships Are there any circumstances where it is appropriate for the Commissioner for Vocational Training to instigate the cessation of an apprenticeship or traineeship training contract, subject to the affected parties being given an opportunity to:

- Make representations to the contrary if they so choose? - Show cause why the training contract should not cease?

Are there methods of cancelling and re-establishing training contracts that the Department should consider?

Response: There is an appropriate balance in the system in relation to the cancellation and re-establishment of training contracts. Master Builders suggests that, along with the establishment of apprenticeship and traineeship contracts, maintenance of contracts should be digitalised, moving processes such as cancelling, suspending or other changes to the contract into an online environment. The entire apprenticeship and traineeship system is heavily paper based, which creates delays that can have a significant effect on an individual’s apprenticeship or traineeship. Given the nature of the work that a GTO undertakes, and the volume of apprentices or trainees that they may have within their employ at any given time, GTOs should be afforded direct reporting access to Training Services NSW. Currently, a GTO is required to report any changes to an apprenticeship or traineeship to their identified AASN in the first instance. Master Builders raises concerns with the introduction of the Fair Work Act (Federal legislation) in respect to its unfair dismissal regime and its applicability with apprentices under NSW Apprenticeship legislation. An apprentice and employer enter into a four year contract, which is administered by the NSW Apprenticeship and Traineeship Act. The legislation provides criteria for cancellation and/or application to cancel an apprenticeship, as well as a process for the administration and assistance for the completion of apprenticeships or traineeships. The Fair Work Act allows an apprentice to claim unfair termination along identical lines to any employee, without any regard for the NSW legislation. It is Master Builders’ view that any claim by either a disgruntled apprentice or trainee should be dealt with in the first instance by Training Services NSW in accordance with the NSW legislation and not by the Fair Work Commission. Training Services NSW, and its predecessors, over many years have provided great support, guidance and direction with proven acceptable resolution in these matters.


Because the apprentice or trainee is employed under a training contract for the life of the training, any matters relating to this aspect of the contract should be dealt with by Training Services NSW.


Certification Should the issue of Craft Certificates and Completion Certificates be discontinued and only the Certificate of Proficiency be issued upon successful completion of the on the job training and the qualification? Does the granting of a Craft Certificate assist/benefit individuals in gaining relevant skilled/trade employment? Does the granting of a Craft Certificate assist/benefit employers in determining an individual’s suitability for skilled/trade employment?

Response: Master Builders submits that the Craft Certificate and Certificate of Completion should be continued, as they can lead to a change in an individual’s condition of employment. Those who receive the Craft Certificate may be recognised as a skilled tradesperson and be paid as such, rather than an unskilled worker. The Craft Certificate and Certificate of Completion, however, should explicitly identify the difference between the achievement of a nationally recognised qualification and the Certificates issued by the Department. A lack of clarity can create confusion where an employer believes that the apprentice or trainee who holds the certificate has been deemed competent in the skill and knowledge requirements of the nationally recognised qualification. There is a general lack of knowledge or awareness by employers of the difference between Craft Certificates, Completion Certificates and Certificates of Proficiency. Craft Certificates are not recognised by Fair Trading NSW for licensing purposes.


Registration of group training organisations Should the Act continue to provide for the registration of group training organisations? Are there any other measures required in the Act or through Departmental policies and procedures to deal with the legal employer as identified on the training contract who relies solely on host employers or worksites outside of their management control, to meet their employer obligations, such as:

- Labour hire companies - Employers that operate as if they are labour hire companies - A group of employers who share the responsibilities for on the job

training?

Response: The Act must continue to provide for the registration of Group Training Organisations. In fact, there should not be an opportunity for a GTO to operate without being registered under the legislative obligations of the Act. Further, the Act could be significantly more comprehensive and prescriptive around the performance, governance and compliance of GTOs in the mentoring and selection of apprentices, as well as the selection of appropriate host employers. It appears as though the policing and monitoring of industry standards required by the Act are not enforced or consistently applied. For further information on the industry standards, refer to the earlier section on ‘Roles and Responsibilities’.


Dealing with disputes, complaints and appeals Can decisions made under delegations by Training Officers be reviewed internally without the need of a Review Panel? With the introduction of the NSW Civil and Administrative Tribunal does VTRP remain the most appropriate body for resolution of complaints? Should the Act include provision for a complaint to be made against a person or body, other than an employer or apprentice/trainee:

- Where their actions have put the successful completion of an apprenticeship/traineeship in jeopardy?

- Where they have failed to comply with the Act?

Are there particular situations, roles, responsibilities not adequately dealt with under Act’s existing arrangements for dealing with complaints or disputes? Should the Act include provision for the resolution of dispute/complaints resulting from a registered training organisations failing to meet their obligations under an apprenticeship/traineeship training plan? Response: Master Builders supports the retention of Vocational Training Review Panels (VTRPs). The VTRP system is, in many cases, more efficient, practical and timely in determining outcomes than the NSW Civil and Administrative Tribunal. Master Builders submits that generally the Act operates satisfactorily in resolving matters relating to disputes/complaints resulting from employers or RTOs.


Sanctions Are there alternative sanctions that should be applied under the Act or through Departmental policies and procedures? Are there particular responsibilities, obligations and actions that routinely influence apprenticeship and traineeship commencements/completions that should be identified for inclusion for management under a sanctions regime under the Act? Should the sanctions regime in the Act establish different categories of seriousness with appropriate sanctions to match such as:

- Prohibition - Suspension/limitation - Monitory fines or financial restitution - Others

Response: Master Builders supports the increase, expansion and creation of appropriate sanctions where necessary to ensure compliance by all parties. For Master Builders’ comments on sanctions, refer to responses in the following sections above:

• Roles and responsibilities • The development of a training plan • Cancellation of apprenticeships and traineeships


Trade Recognition Should the Act continue to have a mechanism to enable an individual to apply for trade skills recognition or should trade skills recognition be undertaken through Departmental policies and procedures? What is the benefit to individuals or employers of granting of a Craft Certificate? Does the provision for trade skills recognition provide individuals, industry and employers with a worthwhile alternative to the apprenticeships system as a means to gaining a trade qualification?

Response: With recent changes to Smart and Skilled policy to allow for traditional apprenticeship qualifications to be undertaken with Entitlement Full Qualification funding, the need for Trade Skills Recognition has significantly reduced. Applicants are encouraged to undertake the process with an RTO as the qualification issued by the RTO is needed in the submission of their application for a licence.


The Regulation Are there matters in the Regulation that should be contained in the Act? Are there additional matters that should be included in the Regulation? Are there matters in the Regulation that should not be regulated? Response: The requirement of an apprentice to be supervised by a suitably qualified and/or experienced person should be added to the Act. Master Builders supports the retention of the NSW Traineeship and Apprenticeship Act.


Conclusion The current level of building and construction activity in NSW is historically high and generally the prevailing level of building work is likely to continue for at least the next five years. There is a great opportunity to derive a skills legacy for NSW from the current and forecasted level of building works. In order to accomplish this there is a need for fundamental change in the Vocational Education and Training system. Specifically, there is a need to review and re-tool some of the foundational aspects of the apprenticeship/traineeship training pathways. Generally, the apprenticeship system, Act, Regulations and related Guidelines are relevant and worthwhile. Changes are required that provide additional flexibility and elicit greater compliance. Master Builders has identified many of the changing job roles within the building and construction industry and believes the apprenticeship and traineeship system in NSW must adjust to suit the changing needs of the industry. Improvements to the system can be made in Vocational Training Orders, providing for defined skill sets for specified job roles. This would allow entrants to the industry to undertake an apprenticeship or traineeship and have the potential to step off their learning path on the successful completion of identified skill sets. Master Builders is ready to comprehensively survey industry to identify job roles, related skill requirements and the competencies that support specified learning requirements for job roles. Master Builders has identified for some years, that there has been strong and committed partnerships developed between NSW Government departments and industry representatives to enhance apprenticeships and traineeships. Master Builders encourages further development in these areas and, in particular, partnerships which provide awareness and education to high school students. Master Builders encourages such partnerships to be more committed than they have previously been, in order to provide an opportunity for high school students to understand the benefits of an apprenticeship or traineeship. Master Builders considers the apprenticeship and traineeship system in NSW to be central to the development of future workers in the building and construction industry, as has traditionally been the case. In fact, a recent Master Builders Australia survey found that the industry rated the importance of apprentices for the future well being of the industry as extremely high. However, there is a palpable need for the Apprenticeship and Traineeship Act and Regulations to provide greater policing for the Government to address non-compliant organisations. There is also a need for the Act and associated Guidelines to include greater compulsion for organisations to comply with their requirements.


This could include an increase in the penalties imposed on organisations that do not comply.


Department of Industry, Skills and Regional Development ... · Department of Industry, Skills and...

Documents

Transcript of Department of Industry, Skills and Regional Development ... · Department of Industry, Skills and...