Industry Training Amendment Act 2002

1: Title
1: This Act is the Industry Training Amendment Act 2002.
2: In this Act, the Industry Training Act 1992 the principal Act
2: Commencement
1: This Act, other than the sections referred to in subsection (2), comes into force on 1 January 2003.
2: Sections 4(3) and (4) 5(1), (2), and (4) 6(1) and (2) 7(1), (2), and (4) 8 9(1), (5), (6), and (7) 11 12 13 15 17
3: Purpose
The purpose of this Act is to improve the effectiveness and responsiveness of the industry training system.
4: Interpretation
1: Section 2 Agency applicant organisation Board
2: Section 2 employment agreement Commission section 159C of the Education Act 1989
3: Section 2 funding agreement
4: Section 2 Minister profile section 159W of the Education Act 1989
5: Section 2 statement of tertiary education priorities section 159AC of the Education Act 1989
5: Board may recognise certain organisations
1: The heading to section 5 Commission Minister
2: Section 5 Commission Minister
3: Section 5
2: The Commission may, at the request of an industry training organisation, at any time before that industry training organisation's recognition expires, amend the description of the industry in respect of which that industry training organisation is recognised, by publishing a notice in the Gazette
4: Section 5(2) Commission Minister
6: Board to be satisfied of organisation's abilities
1: The heading to section 6 Commission to Minister must
2: Section 6 Commission Minister
3: Section 6 ; and
c: provide leadership within the industry on matters relating to skill and training needs by—
i: identifying current and future skill needs; and
ii: developing strategic training plans to assist the industry to meet those needs; and
iii: promoting training that will meet those needs to employers and employees; and
d: develop arrangements for the collective representation of employees in the governance of the organisation.
7: Matters to which Board is to have regard before recognising organisations
1: The heading to section 7 Commission is to Minister must
2: Section 7 Commission is to Minister must
3: Section 7
g: whether the organisation has performed satisfactorily at other times when the organisation has been recognised or provisionally recognised; and
h: whether the organisation has taken reasonable steps to avoid fragmentation and to provide a clear and representative industry focus for each organisation; and
i: any other matters in that behalf specified in the Commission's statement of intent.
4: Section 7(i) Subsection (4) amended 22 October 2003 section 3 Industry Training Amendment Act 2003 by substituting the expression 7(i) 7(j)
8: Provisional recognition
1: Section 8(1) applicant organisation organisation seeking recognition
2: Section 8(1)﻿(b) enter into funding agreements with fund
3: Section 8(1) Commission may Minister may
9: Expiry and cancellation of recognition
1: Section 9(3) Commission Minister
2: Section 9(3)
ab: if the circumstances in subsection (3A) apply; or.
3: Section 9
3A: The circumstances referred to in subsection (3)﻿(ab) are that—
a: the Commission has issued a notice to the organisation, in accordance with subsection (3B), stating that it considers that the organisation's performance is inadequate because it is not meeting 1 or more of the requirements under section 6(a) to (d)
b: the period of time specified in the notice within which the organisation must improve its performance has elapsed; and
c: the Commission is satisfied that the organisation's performance continues to be inadequate for the reason specified in the notice.
3B: A notice under subsection (3A) must—
a: be in writing; and
b: specify—
i: the areas in which the Commission considers the organisation's performance to be inadequate, with reference to the requirements under section 6(a) to (d)
ii: what actions that the organisation should take to improve its performance; and
iii: the period, which must be a reasonable period, within which the organisation must improve its performance; and
iv: the fact that the Commission may cancel the organisation's recognition, under subsection (3)﻿(ab), if it fails to improve its performance within that period.
4: Section 9
4: Nothing in this section prevents an organisation whose recognition has expired under subsection (1) or subsection (2), or been cancelled under subsection (3)﻿(a) or (ab), from seeking recognition in accordance with section 5 section 8(1)
5: Section 9(3A) Commission Minister
6: Section 9(3A)﻿(a) it considers he or she considers
7: Section 9(3B) Commission Minister
10: Board may agree with industry training organisation to fund setting of standards and administration of training
1: Section 10(1)
c: provide leadership within the industry on matters relating to skill and training needs by—
i: identifying current and future skill needs; and
ii: developing strategic training plans to assist the industry to meet those needs; and
iii: promoting training that will meet those needs to employers and employees; and
d: develop arrangements for the collective representation of employees in the governance of the organisation; and
e: receive funding from the Commission for the purpose.
2: Section 10
2A: The Commission may enter into a written agreement with an industry training organisation (or 2 or more industry training organisations) providing for the organisation (or organisations) to manage the delivery of industry training to employees of a particular employer, and to receive funding from the Commission for that purpose, even if the employer is not part of the industry specified in the Gazette section 5
a: the employer has applied to the Commission in writing for industry training to be managed by the industry training organisation; and
b: the Commission is satisfied that the employer's application should be granted because either—
i: the industry training organisation that manages training for the employer's industry does not have the capacity to provide a satisfactory service to the employer; or
ii: the employer faces significant administrative and compliance costs (but not taking into account the cost of any training levies) because its training needs are covered by more than 1 industry training organisation; and
c: the Commission is satisfied that the industry training organisation is capable of managing delivery of industry training that will enable the employees of the employer to attain the skill standards applicable in the industry to which the training relates.
11: New sections 10 and 10A substituted
The principal Act is amended by repealing section 10
10: Industry training organisation's profile must identify activities for which it seeks funding
1: An industry training organisation that seeks funding under section 159ZC of the Education Act 1989
a: prepare a charter in accordance with section 159O of the Education Act 1989 section 159P
b: prepare a profile (or a combined profile if 2 or more organisations seek the funding) that identifies the activity or activities set out in subsection (2) for which the funding is sought.
2: The activities are—
a: setting skill standards for the industry (or industries); and
b: developing arrangements for the delivery (not being delivery by the organisation itself or organisations themselves) of industry training intended to enable trainees to attain those standards, including arrangements for—
i: monitoring the training to ensure that it enables trainees to attain those standards; and
ii: assessing trainees and the extent to which they have in fact attained those standards; and
c: making arrangements for the delivery (not being delivery by the organisation itself or organisations themselves) of industry training that will enable trainees to attain skill standards previously set by the organisation (or organisations) and registered by the qualifications authority, including arrangements accepted by the qualifications authority for—
i: monitoring the training to ensure that it enables trainees to attain those standards; and
ii: assessing trainees and the extent to which they have in fact attained those standards; and
d: making arrangements for the delivery (not being delivery by the organisation itself or organisations themselves) of industry training under apprenticeship contracts, technicians' contracts, or programmes of industry training recognised under section 18(a)
i: monitoring the training to ensure that it enables trainees to attain the levels of skill intended; and
ii: assessing trainees and the extent to which they have in fact attained those levels of skill; and
e: providing leadership within the industry on matters relating to skill and training needs by—
i: identifying current and future skill needs; and
ii: developing strategic training plans to assist the industry to meet those needs; and
iii: promoting training that will meet those needs to employers and employees; and
f: developing arrangements for the collective representation of employees in the governance of the organisation.
3: Every profile of an industry training organisation, or combined profile of 2 or more industry training organisations, must—
a: specify agreed levels of performance for the industry training organisation or organisations to which the profile relates; and
b: provide for the variation, suspension, and termination of funding if those levels of performance are not achieved.
4: Nothing in this section limits any other requirement as to the content and form of profiles that may be notified by the Commission under section 159X of the Education Act 1989
10A: Power to fund if employer switches industry training organisation
The Commission may approve, for funding purposes, the profile of an industry training organisation under which it seeks to manage the delivery of industry training to the employees of a particular employer who is not part of the industry specified in the Gazette section 5
a: that employer has applied to the Commission in writing for industry training to be managed by the industry training organisation; and
b: the Commission is satisfied that the employer's application should be granted because either—
i: the industry training organisation that manages training for the employer's industry does not have the capacity to provide a satisfactory service to the employer; or
ii: the employer faces significant administrative and compliance costs (but not taking into account the cost of any training levies) because its training needs are covered by more than 1 industry training organisation; and
c: the Commission is satisfied that the industry training organisation is capable of managing delivery of industry training that will enable the employees of the employer to attain the skill standards applicable in the industry to which the training relates.
12: New section 11 substituted
The principal Act is amended by repealing section 11
11: Matters to which Commission must have regard in determining whether to approve profile for funding purposes
In determining whether to approve an industry training organisation's profile, or a part of its profile, for funding purposes, the Commission must have regard to the following matters:
a: the amount of training to which it relates, and the likely number of trainees to be trained in accordance with it; and
b: the desirability of introducing into the organisation's industry (or the organisations' industries) skills (whether new skills or enhanced existing skills) likely to increase its (or their) international competitiveness; and
c: the desirability of extending industry training to industries, or areas of any industry (or industries), where industry training linked to nationally recognised qualifications has not traditionally been available; and
d: the desirability of extending industry training to people of a kind or description specified in the Commission's statement of intent as people to whom industry training linked to nationally recognised qualifications has not traditionally been available (whether within any industry or industries, or generally).
13: Section 12 repealed
Section 12
14: Additional functions of Commission
Section 13
f: to exercise the powers and perform the functions of the Commission under Part 5
15: Transitional provision relating to recognition
An industry training organisation that, immediately before the commencement of this section, was recognised or provisionally recognised, continues to be recognised or provisionally recognised after the commencement of this section until that recognition expires or is cancelled in accordance with section 9
16: New Part 5 inserted
The principal Act is amended by inserting, after section 23
5: Training levies
24: Purpose
The purpose of this Part is to enable the making of Orders in Council imposing a training levy on the members of an industry, payable to an industry training organisation, if there is sufficient support for the imposition of that levy following a ballot of those members.
25: Interpretation
For the purposes of this Part,— ballot section 27(1)﻿(a) closing date section 36(b) levy group member of an industry qualifying member, in relation to a levy group, means a member who does not have a certificate of exemption under section 40 relevant industry Imposition of levy
26: Governor-General may impose levy
1: The Governor-General may, on the recommendation of the Minister, by Order in Council, impose a levy on qualifying members of a levy group, payable to an industry training organisation.
2: The Minister must not recommend the making of an Order in Council under subsection (1) unless the Minister is satisfied of the matters in section 27
3: Under a levy order under subsection (1), a levy may be payable to—
a: 1 industry training organisation by all qualifying members of the industry that is covered by that organisation; or
b: 1 industry training organisation by all qualifying members of a specific industry that is within the range of industries covered by that industry training organisation; or
c: more than 1 industry training organisation, jointly, by all qualifying members of an industry that is covered by those industry training organisations.
4: Every levy order is a regulation for the purposes of the Regulations (Disallowance) Act 1989
27: Restrictions on making of levy orders
1: The Minister must not recommend the making of a levy order unless he or she is satisfied that—
a: the industry training organisation to which the levy will be payable has, within the previous 12 months, balloted all known members of the levy group, in accordance with sections 31 to 38
b: at least 60% of the ballot papers distributed were validly completed and returned to the independent returning officer conducting the ballot, before the closing date; and
c: out of those ballot papers validly completed and returned,—
i: more than 60% of the total supported the imposition of the levy; and
ii: more than 60%, weighted according to the size of the industry member that returned the ballot paper (calculated at the date that the ballot closed and on the same basis as the levy is proposed to be charged, as set out in the ballot paper), supported the imposition of the levy; and
d: the details specified in the order do not differ in any material way from those specified in the ballot paper; and
e: the details specified in the order are acceptable to the Minister; and
f: the industry training organisation has or will have in place adequate systems for accounting to qualifying members of the levy group for the expenditure of levy funds; and
g: all other relevant matters known to the Minister have been properly considered.
2: When considering the matters in subsection (1), the Minister must consult with the Commission and may consult with any other persons the Minister considers appropriate.
28: Matters to be specified in levy orders
Every levy order must specify the matters set out in Schedule 4
29: Purposes for which levy may be required
1: A levy order must specify the purposes for which levy funds are to be used.
2: A levy order may also specify any purpose or purposes for which no amount of levy may be used.
3: In specifying how levy funds are to be used, a levy order may specify 1 or more purposes that will benefit the levy group as a whole and that are related to meeting the costs (including infrastructure and administration costs) associated with—
a: designing qualifications and setting skill standards for the relevant industry; and
b: providing leadership in the relevant industry in matters relating to skill and training needs by identifying present and future skill needs and promoting training to meet those needs.
4: No levy order may specify a purpose for which levy funds may be used that is related to—
a: meeting the costs of arranging delivery of industry training; or
b: undertaking any commercial or trading activity; or
c: any matter that directly benefits 1 or more individual members of the levy group, as opposed to generally benefiting the relevant industry as a whole.
5: Nothing in subsection (4)﻿(b) prevents an industry training organisation from—
a: using any part of a levy to publish or sell any educational, informative, or promotional material (whether or not at a profit); or
b: investing any part of a levy pending its expenditure.
30: Levy order may require provision of information
A levy order may require qualifying members of the levy group to provide information to the industry training organisation, or some other person or body, for the purpose of enabling or assisting the determination of the amount of levy payable. Ballots
31: Independent returning officer must conduct ballot
A ballot must be conducted by an independent returning officer appointed by the industry training organisation and approved by the Minister.
32: Industry training organisation must identify potential members of levy group
1: An industry training organisation that proposes to impose a levy must take reasonable steps to ensure that it identifies all potential members of the levy group, including—
a: obtaining from that organisation's records, and from records that may be available from other organisations, information that is able to be used to identify potential members; and
b: giving adequate notice of the ballot in public newspapers and industry-specific publications, and inviting members of the relevant industry to register to receive information about the ballot and ballot papers.
2: After satisfying the requirements of subsection (1), the industry training organisation must provide to the independent returning officer who is administering the ballot a list of all potential members of the levy group of whom it is aware.
33: Returning officer must notify potential members of levy group
1: The returning officer must give notice of the ballot to—
a: every person named on the list of potential members of the levy group provided by the industry training organisation under section 32(2)
b: any other person whom the independent returning officer considers may be a member of the levy group.
2: The notice under subsection (1) must advise the person about the ballot and must state—
a: the description of the industry that is intended to be covered by the proposed levy order; and
b: that the returning officer considers that the person is or may be a member of that industry; and
c: that membership of the industry means that the person—
i: is entitled to participate in the ballot; and
ii: will be required to pay the levy if there is sufficient support for it in the ballot and the levy order is made; and
d: that the person must notify the returning officer if the person disputes that he or she or it is a member of the industry intended to be covered by the proposed levy order (a coverage dispute
e: the date by which that notification of a coverage dispute must be received.
34: Commission resolves coverage disputes
If the returning officer is notified by a person under section 33(2)﻿(d) section 49
35: Population to be balloted
As soon as practicable after all coverage disputes have been finally determined (including any appeals under section 50(2)
36: Requirements of ballot papers
A ballot paper must state—
a: the address to which ballot papers must be returned; and
b: the date by which ballot papers must be returned; and
c: full information on the nature of the levy power being sought, including all the matters listed in Schedule 4
37: Returning officer must count votes
The returning officer must collect all validly completed ballot papers received by him or her at the closing date and calculate—
a: the proportion of the total number of ballot papers distributed by him or her under section 35
b: the proportion of the validly completed ballot papers received by him or her at the closing date that are in favour of the proposal to impose the levy; and
c: the proportion of the validly completed ballot papers received by him or her at the closing date that are in favour of the proposal to impose the levy if the votes are weighted according to the size of the member of the industry that returned the ballot paper (calculated at the date that the ballot closed and on the same basis as the levy is proposed to be charged as set out in the ballot paper).
38: Returning officer must keep ballot papers, etc
The returning officer must take all reasonable steps to ensure that all ballot papers, envelopes, lists, and other documents used in connection with a ballot conducted under this Part are preserved and kept for a period of 1 year after the completion of the ballot. Collection of levy
39: Levy is payable by qualifying members to industry training organisation
If a levy order is made, the levy specified in the order is payable by every qualifying member of the levy group to the industry training organisation or organisations named in the levy order.
40: Certificate of exemption
1: The chief executive of the Commission may issue a certificate of exemption from payment of a levy to a member of the relevant industry who—
a: was a member of the industry at the time of the ballot held in relation to that levy; and
b: was, through no fault or neglect on that person's part, not included in the ballot.
2: The chief executive may revoke a certificate of exemption if—
a: the person to whom it has been issued agrees; or
b: it was issued in error.
41: Method of collecting levy
1: An industry training organisation may collect levies directly from qualifying members of the levy group or by using a collection agent specified in the levy order in accordance with section 42
2: An industry training organisation may recover levies due from any qualifying member of the levy group—
a: by deducting the amount due from any amount the organisation owes that qualifying member; or
b: as a debt due to the organisation in any court of competent jurisdiction.
42: Levy order may provide for collection by agent
1: A levy order may specify persons, other than the persons who are primarily responsible for paying the levy, who must collect levy money due from qualifying members and pay it to the industry training organisation.
2: If a levy order specifies a person who must act as a collection agent under subsection (1)
43: Collection of levy if person switches industry training organisation
1: A person who is a qualifying member of an industry must continue to pay any levy that is payable to the industry training organisation or organisations that cover members of that industry (the original organisation section 10(2A) new organisation
2: If a person must pay a levy to its original organisation under subsection (1),—
a: the person does not have to pay a levy to the new organisation as a result only of the new organisation managing the person's training; but
b: if the person was obliged to pay a levy to the new organisation before the employer's application was granted, the employer must continue to pay the levy. Duties of industry training organisations and others in relation to levies
44: Levy funds must be kept in separate bank accounts and used only for authorised purposes
1: An industry training organisation that receives a levy under a levy order must open 1 or more bank accounts for the purpose of the levy and must use the account or those accounts for the following purposes only:
a: the deposit of amounts of levy paid or recovered; and
b: making payments out of levy funds.
2: Only people expressly authorised by the organisation may operate the account or those accounts.
3: No money may be paid out of the account or those accounts except for a purpose authorised in the levy order.
45: Duty to keep records
An industry training organisation that receives a levy must ensure that accurate and up-to-date records are kept of—
a: the names of all members of the levy group from whom the levy has been collected or recovered; and
b: the amount of the levy collected or recovered from those members; and
c: the names of all members of the levy group who are or may be liable to pay the levy but have not done so; and
d: the use to which the levy funds have been put.
46: Duty to provide annual report
1: As soon as is practicable after the end of a financial year during which a levy has been paid to an industry training organisation under a levy order, the organisation—
a: must prepare, in respect of that year, financial statements in accordance with generally accepted accounting practice; and
b: must include in the financial statements required by paragraph (a) all the necessary information to explain—
i: the balance of the levy fund; and
ii: the movements in the levy fund over the course of the year, including receipts of money collected and payments of money made under the levy order; and
iii: the use of assets acquired or built up with or out of money received under the levy order.
2: The organisation must ensure that the financial statements prepared under subsection (1) are audited within 90 days of the end of that financial year.
3: Financial statements prepared under subsection (1) must be included in the organisation's annual report for that year.
4: An industry training organisation that is required by subsection (3)
5: Despite subsection (4), if an enactment other than this Act requires an industry training organisation to give a Minister a copy of its annual report and requires the Minister to present a copy to the House of Representatives, that organisation must, to the extent that the enactment and subsection (4) impose different requirements, comply with the enactment and not with subsection (4).
6: An industry training organisation that is required by subsection (3)
47: Duty to protect commercially sensitive information
Every person who receives commercially sensitive information for the purposes of carrying out a function or activity under this Part, or under a levy order, must take reasonable steps to protect that information. Disputes
48: Arbitration or mediation system must be established
1: An industry training organisation that receives a levy under a levy order must establish a method of arbitration or mediation in the case of disputes as to—
a: whether a person was included in the ballot relating to that levy; and
b: whether a person has paid the levy; and
c: the amount of levy payable; and
d: any other matter relating to the levy, except disputes about whether a person is within the levy group.
2: Details of the arbitration or mediation system must be specified in the levy order, including—
a: the method of appointment of arbitrators or mediators; and
b: the procedures to be followed by arbitrators or mediators; and
c: the remuneration of arbitrators or mediators; and
d: the payment of costs in relation to arbitration or mediation; and
e: any other matters relating to the resolution of disputes.
49: Disputes about coverage
1: If there is a dispute about whether a person is within a levy group, whether before or after the ballot, the dispute must be referred to the Commission, which must determine the matter.
2: The industry training organisation that is proposing to impose a levy or, if a levy order has been made, that is responsible for administering the levy must pay the reasonable costs of the Commission for determining disputes.
50: Appeals to District Court
1: If a dispute is unresolved following arbitration or mediation in accordance with the method specified in the levy order, or if a party wishes to appeal a decision of an arbitrator or mediator, the dispute may be referred, or the decision may be appealed, to a District Court.
2: A determination by the Commission under section 49
3: An appeal under subsection (2) may be made to a District Court by the person disputing membership of the levy group or by the industry training organisation that is proposing to impose, or responsible for administering, the levy. Confirmation and expiry of orders
51: Orders must be confirmed
1: Subsection (2) applies to a levy order that is made on or after 1 January and before 1 July in any year, and that—
a: has not been revoked with effect on or before 1 July in the next year; and
b: has not ceased, and will not cease, to have effect on or before 1 July in the next year by virtue of the Regulations (Disallowance) Act 1989
2: If subsection (1) applies to a levy order, the order is deemed to be revoked with the close of 30 June in that next year unless it has been confirmed by an Act of Parliament passed on or before that day.
3: Subsection (4) applies to a levy order that is made after 30 June and on or before 31 December in any year, and that—
a: has not been revoked with effect on or before 1 January in the year after the next year; and
b: has not ceased, and will not cease, to have effect on or before 1 January in the year after the next year by virtue of the Regulations (Disallowance) Act 1989
4: If subsection (3) applies to a levy order, the order is deemed to be revoked with the close of 31 December in the year after the year in which it was made unless it has been confirmed by an Act of Parliament passed on or before that day.
5: The Minister on whose recommendation a levy order was made must, by notice published in the Gazette
a: revoked; or
b: disallowed under the Regulations (Disallowance) Act 1989
c: confirmed by an Act of Parliament.
52: Expiry of levy orders
1: A levy order expires 5 years after the day on which it was made unless it is sooner—
a: revoked; or
b: disallowed under the Regulations (Disallowance) Act 1989
2: A levy order is deemed to be revoked if the industry training organisation responsible for administering the levy ceases to be recognised.
17: Collection of levy if person switches industry training organisation
Section 43 10(2A) 10A
18: Part 4 repealed
Part IV
19: New Schedule 4 inserted
The principal Act is amended by inserting the Schedule 4 Schedule 1
20: Consequential amendments to principal Act
The principal Act is consequentially amended in the manner set out in Schedule 2